MISSOURI COURT OF APPEALS EASTERN DISTRICT

ST. LOUIS UNION STATION HOLDINGS INC.,

Appellant, v. THE DISCOVERY CHANNEL STORE INC.,

Respondent.

)))))))))

Appeal No. ED91374

Appeal from the Twenty-Second Judicial Circuit

Division 2 Honorable David L. Dowd

BRIEF OF APPELLANT

DAVID O. KREUTER, MBE #28802 Kreuter & Gordon, P.C. 7751 Carondelet Avenue, Suite 401 Clayton, Missouri 63105 (314) 727-2488 fax: (314) 727-6376

Attorneys for Appellant St. Louis Union Station Holdings, Inc.

1

TABLE OF CONTENTS

Table of Authorities ............................................................................................................. 2

Jurisdictional Statement ....................................................................................................... 3

Statement Of Facts ............................................................................................................... 4

Points Relied On .................................................................................................................. 9

Argument ........................................................................................................................... 11

Standard of Review for All Points .............................................................. 11

I. The circuit court erred in entering judgment enforcing a settlement because

there was no enforceable agreement to terminate the subject

lease in that there was no written agreement signed by an

authorized representative of the parties to terminate the

subject lease.... .................................................................................. 11

II. The circuit court erred in entering judgment enforcing a

settlement because there was no enforceable agreement to

terminate the subject lease in that there was no offer and

acceptance and no meeting of the minds in order to form an

enforceable agreement… .................................................................. 14

III. The circuit court erred in entering judgment enforcing

settlement because Discovery Channel failed to prove a

settlement by clear and convincing evidence in that there was

no hearing to determine the evidence. .............................................. 15

Conclusion ......................................................................................................................... 19

2

Certification under Rule 84.06 .......................................................................................... 20

Certificate Of Service ........................................................................................................ 20

Appendix ........................................................................................................................... 21

TABLE OF AUTHORITIES

Cases

Commission on Ecumenical Mission and Relations of United Presbyterian Church

in U.S. of America v. Roger Gray, Limited, 318 N.Y.S.2d 726, 27 N.Y.2d 457

(N.Y., 1971) ............................................................................................................. 9, 13

Crestwood Shops LLC v. Hilkene, 197 S.W.3d 641 (Mo.App. 2006).......................... 9, 12

Eaton v. Mallinckrodt Inc., 224 S.W.3d 596 (Mo.banc 2007) ................................ 9, 11, 15

Gee v. Nieberg, 501 S.W.2d 542 ....................................................................................... 12

Hoover v. Pacific Oil Co., 41 Mo.App. 317 .................................................................. 9, 12

Lindhorst v. St. Louis Protestant Orphan Asylum, 231 Mo. 379, 132 S.W. 666

(Mo. 1910) ................................................................................................................. 9, 12

Londoff v. Conrad, 749 S.W.2d 463 (Mo.App. 1988) .................................................. 9, 15

Murphy v. Carron, 536 S.W.2d 30 (Mo.banc. 1976) ........................................................ 11

Saunders v. Bowersox

Statutes

, 179 S.W.3d 288 (Mo. App. 2005) ........................................... 9, 17

Mo.Const. Art. V § 3 ........................................................................................................... 3

Mo.Rev.Stat. §432.010 (2000) .......................................................................................... 12

Rules

Mo.R.Civ.P. 43.01 ............................................................................................................. 13

3

Mo.R.Civ.P. 44.01(e)......................................................................................................... 13

Mo.R.Civ.P. 55.27 ..................................................................................... 10, 11, 16, 17, 18

Mo.R.Civ.P. 59.01 ............................................................................................................. 13

Mo.R.Civ.P. 74.04 ........................................................................................... 10, 16, 17, 18

JURISDICTIONAL STATEMENT

This is an appeal of a judgment entered by the circuit court for the City of St.

Louis enforcing a purported settlement between private parties to a written real estate

lease. This appeal is within the general appellate jurisdiction of this Court because it does

not involve the validity of a treaty or statute of the United States, the validity of a statute

or constitutional provision of Missouri, the construction of the revenue laws of Missouri,

title to any State office, or a case where punishment by death is imposed. Mo.Const. Art.

V § 3; Mo.Rev.Stat. §477.050 (2000).

4

STATEMENT OF FACTS

The real estate development known as Union Station in the City of St. Louis,

Missouri was owned in 1990 by The Rouse Company Of Missouri, Inc. (“Rouse”). In

1990, Rouse as landlord and The Nature Company, Inc. (“Nature”) as tenant executed a

written lease (“Lease”) for a certain space containing 2,934 square feet within Union

Station. The Lease was executed by the corporate officers of Rouse and Nature. [L.F. at

pp. 40 & 41] The Lease also provided the following language:

Section 20.14.

No Modification.

This writing is intended by the parties as a final expression of the agreement and as a complete and exclusive statement of the terms thereof, all negotiations, considerations and representations between the parties having been incorporated herein. No course of prior dealings between the parties or their officers, employees, agents or affiliates shall be relevant or admissible to supplement, explain, or vary any of the terms of this Lease. Acceptance of, or acquiescence in, a course of performance rendered under this or any prior agreement between the parties or their affiliates shall not be relevant or admissible to determine the meaning of any of the terms of this Lease. No representations, understandings, or agreements have been made or relied upon in the making of this Lease other than those specifically set forth herein. This Lease can be modified only by a writing signed by the party against whom the modification is enforceable. [L.F. at p. 38]

In 1996, this Lease was assigned from Nature to the Defendant/Respondent The

Discovery Channel Stores, Inc. (“Discovery Channel”) by execution of the Assignment

Of Lease And First Amendment To Lease. [L.F. at p. 7, para. 5]

In 1998, Discovery Channel and Rouse executed the Second Amendment To

Lease. [L.F. at pp. 82-87] The effect of this Second Amendment was to extend the lease

5

term from January 31, 2002 to January 31, 2011 and to re-set the monthly rent at

$10,269.00. [L.F. at p.82, para. 1 and p. 82, para.2]

Sometime prior to November 22, 2005 Plaintiff/Appellant St. Louis Union Station

Holdings, Inc. (“StLUSH”) purchased Union Station from Rouse. Thereafter, a Third

Amendment Of Lease was executed between StLUSH and Discovery Channel on

November 22, 2005. [See first whereas clause at L.F., p. 88] This Third Amendment

granted rent relief to the tenant for a designated period and that period has expired.

A Fourth Amendment Of Lease was executed between StLUSH and Discovery

Channel on March 1, 2007. [L.F. at pp. 88-90] The effect of this Fourth Amendment

was to grant rent relief to the tenant for a Relief Period from February 1, 2007 through

January 31, 2008. During this Relief Period, paragraph 1 of this Fourth Amendment

abated the monthly rent of $10,269.00. However, paragraphs 2(a) & (b) of the Fourth

Amendment provided that upon any default by Discovery Channel, StLUSH was entitled

to terminate the Relief Period and collect all rent that would have been due but for this

Fourth Amendment.

As required by Section 20.14 of the Lease, the lease itself and each of these

amendments to the Lease were executed by officers of the parties themselves and not by

the parties’ brokers or mall managers. [L.F. at pp. 40, 42, 49, 81, 87, and 90]

Discovery Channel ceased doing business and abandoned its premises at Union

Station and in August 2007. [L.F. at p.7, para. 10] This created a default under section

17.1(h) [L.F. at p. 34] of the Lease and section 2(a) [L.F. at p. 89] of the subsequent

Fourth Amendment. This default terminated the Relief Period and retroactively accrued

6

all rent that would have been due but for the Fourth Amendment. Thus, Discovery

Channel (tenant) owed StLUSH (landlord) monthly rent of $10,269.00 from February 1,

2007 through the end of the lease on January 31, 2011. [L.F. at p. 8, para. 14] The Lease

and subsequent amendments also provided for 15% per annum interest [L.F. at p. 21,

sect. 5.8; p. 16, para. 1.1(S)] and reasonable attorney fees [L.F. at p. 35, sect. 17.2].

StLUSH sued Discovery Channel for rent due under the Lease by petition filed on

September 5, 2007. [L.F. at pp. 6-91] After being served with the petition, but before

entering its appearance in the lawsuit, Byron Marshall (employee of the management

company engaged by StLUSH to lease and operate the mall known as St. Louis Union

Station) and Tom Davidson (a real estate salesperson employed by DJM Realty, a broker

engaged by Discovery Channel) exchanged emails. The email exchange took place on

September 21, 2007. [L.F. at pp. 151 & 152] To date, the full email exchange has not

been produced by Discovery Channel, but the portion produced provides:

Marshall to Davidson: “Mr. Davidson, I am aware that you have had conversation with both my colleague, John fee as well as our attorney, Michael Wolff representing St. Louis Union Station regarding the lease termination of Discovery Channel Store, and thus after most recently speaking with our ownership, our owner will agree to counter your previous offers with $220,000.00. Please call should you have any questions.”

Davidson to Marshall: “Byron, Your lease termination counter offer of

$220,000 ‘all inclusive and as is condition’ is accepted for Discovery Channel St. Louis Union Station. Kindly prepare the lease termination agreement and email it to me for processing and review by Discovery. Regards, Tom Davidson DJM Realty”.

Shortly after the above 9/21/07 email exchange, there were phone conversations wherein

Tom Davison and Michael Wolff continued to negotiate the lease termination terms.

7

[L.F. at pp. 148-149, para. 5-9] During these oral negotiations, the amount offered by

Discovery Channel went as low as $200,000 on September 27, 2007 and as high as

$240,000 on October 25, 2007. [L.F. at p. 149] Thereafter Discovery Channel entered

its appearance by attorney on November 2, 2007 and filed its Answer and Affirmative

Defenses on November 9, 2007. [L.F. at pp. 92-98] As an affirmative defense, Discovery

Channel pled:

6. The Defendant states that Plaintiff’s Verified Petition for Damages Over $25,000 is being pursued by Plaintiff in bad faith in that the parties had previously negotiated a settlement and Plaintiff is now acting in bad faith by repudiating that settlement. [L.F. at p. 96] On January 18, 2008, Discovery Channel filed a Motion To Enforce Settlement.

[L.F. at pp. 100-111] In that Motion, Discovery Channel claimed that StLUSH and

Discovery Channel had agreed to settle the lawsuit by virtue of the emails that were

exchanged on September 21, 2007 between two individuals that Discovery Channel

contended were legally-authorized agents of the parties. [L.F. at p. 100] Paragraph 3 of

Defendant’s Motion To Enforce Settlement incorrectly alleges that Jones Lang LaSalle is

the landlord of St. Louis Union Station. As alleged in the Verified Petition Jones Lang

LaSalle is the managing agent for the landlord of St. Louis Union Station. [L.F. at p. 6,

para. 2]

Union Station filed its Memorandum In Opposition to the Motion To Enforce

Settlement on January 31, 2008, including the affidavit of its attorney and a copy of its

responses to Discovery Channel’s Requests For Admissions. [L.F. at pp. 139-156]

8

The circuit court heard arguments on the motion on January 31, 2008. [L.F. at p.

170] On April 4, 2008, the court entered Judgment granting Discovery Channel’s

motion. [L.F. at pp. 171-174] Union Station filed its first Notice Of Appeal on May 12,

2008. [L.F. at pp. 177-183] The Missouri Court of Appeals, Eastern District, dismissed

the appeal for the reason that there was no final appealable judgment. [L.F. at pp. 186-

190] Thereafter, on January 6, 2009, Plaintiff filed its Motion To Reconsider Or In The

Alternative To Designate Final Judgment. [L.F. at pp. 191-194] The Defendant filed its

response [L.F. at pp. 195-204] and the Court issued its final Order And Judgment in this

matter on February 19, 2009. [L.F. at pp. 206-207] The Order And Judgment held that an

enforceable agreement had been reached by the parties on or about September 21, 2007

and therefore dismissed the cause of action.

9

POINTS RELIED ON

I. The circuit court erred in entering judgment enforcing a settlement

because there was no enforceable agreement to terminate the subject lease in that there

was no written agreement signed by an authorized representative of the parties to

terminate the subject lease.

Crestwood Shops LLC v. Hilkene, 197 S.W.3d 641 (Mo.App. 2006)

Lindhorst v. St. Louis Protestant Orphan Asylum, 231 Mo. 379, 132

S.W. 666 (Mo. 1910)

Hoover v. Pacific Oil Co., 41 Mo.App. 317

Commission on Ecumenical Mission and Relations of United

Presbyterian Church in U.S. of America v. Roger Gray, Limited

II. The circuit court erred in entering judgment enforcing a settlement

because there was no enforceable agreement to terminate the subject lease in that there

was no offer and acceptance and no meeting of the minds in order to form an enforceable

agreement.

, 318

N.Y.S.2d 726, 27 N.Y.2d 457 (N.Y., 1971)

Londoff v. Conrad

III. The circuit court erred in entering judgment enforcing settlement

because Discovery Channel failed to prove a settlement by clear and convincing evidence

in that there was no hearing to determine the evidence.

, 749 S.W.2d 463, 465 (Mo.App. 1988)

Eaton v. Mallinckrodt Inc., 224 S.W.3d 596 (Mo.banc 2007)

Saunders v. Bowersox, 179 S.W.3d 288, 292 (Mo. App. 2005

10

Rule 55.27, Mo.R.Civ.P.

Rule 74.04, Mo.R.Civ.P.

11

ARGUMENT

Standard of Review for All Points

The Court must reverse the judgment of the circuit court if there is no substantial

evidence to support it, if it is against the weight of the evidence, if it erroneously declares

the law, or if it erroneously applies the law. Eaton v. Mallinckrodt Inc., 224 S.W.3d 596,

598 (Mo.banc 2007); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc. 1976). A circuit

court can grant a motion to enforce a settlement only upon clear, convincing, and

satisfactory evidence. Eaton

I. The circuit court erred in entering judgment enforcing a

settlement because there was no enforceable agreement to

terminate the subject lease in that there was no written

agreement signed by an authorized representative of the parties

to terminate the subject lease.

, 224 S.W.3d at 599.

Defendant’s Motion To Enforce Settlement was decided without a hearing. It thus

was taken as a motion for judgment on the pleadings under Rule 55.27 Mo.R.Civ.P.

Defendant’s motion should have been denied as a matter of law. There are several

justifications for this; namely, there is no written lease termination agreement, the email

exchange did not constitute a meeting of the minds, the email exchange did not constitute

an offer and acceptance, and/or there was no authorization on behalf of the brokers/agents

of the parties to execute binding real estate contracts on behalf of the parties.

A. NO AGREEMENT SIGNED BY AN AGENT WITH WRITTEN

AUTHORIZATION.

12

A written agreement to modify or terminate a multi-year lease is not enforceable

because of the statute of frauds and because the real estate lease between the parties

requires a written agreement.

1. Statute of Frauds

No action shall be brought… to charge any person …upon any contract made for the sale of lands, tenements, hereditaments, or an interest in or concerning them, or any lease thereof, for a longer time than one year, or upon any agreement that is not to be performed within one year from the making thereof, unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized, and no contract for the sale of lands made by an agent shall be binding upon the principal, unless such agent is authorized in writing to make said contract.

. The Section 432.010 RSMo provides that:

The Lease in this matter was for a term of over one year, and therefore it was within the

purview of the Statute of Frauds. Crestwood Shops LLC v. Hilkene, 197 S.W.3d 641,

651 (Mo.App. 2006). Thus, like the Lease itself, the termination of the Lease must also

be in writing to comport with the Statute of Frauds. Id. Gee v. Nieberg, 501 S.W.2d 542.

Missouri cases have held that where the written contract for a lease (or to terminate a

lease) for more than one year is made with an agent, and the agent was not authorized in

writing, that renders the contract nonenforceable. Lindhorst v. St. Louis Protestant

Orphan Asylum, 231 Mo. 379, 132 S.W. 666, 669 (Mo. 1910). Thus, while an agent can

make a contract leasing lands and tenements for less than one year without authority in

writing, he cannot do so for more than one year. Hoover v. Pacific Oil Co.

Discovery Channel’s Motion To Enforce Settlement does not plead any written

authorization for Byron Marshall to commit to any lease termination agreement and thus,

, 41 Mo.App.

317.

13

as a matter of law, Defendant’s Motion should be denied. See Commission on

Ecumenical Mission and Relations of United Presbyterian Church in U.S. of America v.

Roger Gray, Limited

Discovery Channel’s only basis for claiming authorization by Marshall and

Davison and the reason stated by the trial court for finding authorization is the purported

failure of Holding to timely respond to Discovery Channel’s requests for admissions.

[L.F. at pp. 172-173] Holding did not fail to timely respond to Discovery Channel’s

requests for admission. Discovery Channel mailed and emailed its requests for

admissions on December 17, 2007. [L.F. at p. 109] Holding’s responses were not due

until January 22, 2008. Rule 59.01(d) (1) Mo.R.Civ.P. ; Rule 44.01(e) Mo.R.Civ.P.

, 318 N.Y.S.2d 726, 27 N.Y.2d 457 (N.Y., 1971) for a similar result

for a managing agent of a building executing a store lease extension agreement.

1

1 Union Station’s attorneys did not file Form 17 and did not accept service by electronic

mail. Mo.R.Civ.P. 43.01(c).

StLUSH answered and objected to the requests for admissions on January 17, 2008.

[L.F. at pp. 2 & 156] Discovery Channel did not challenge the answers, objections, or

timeliness of StLUSH’s responses by motion pursuant to Rule 59.01(f) Mo.R.Civ.P. The

circuit court did not overrule StLUSH’s objections or order StLUSH to serve answers in

lieu of the objections under Rule 59.01(f). The trial court was in error to deem the

Requests For Admissions to be deemed admitted, because StLUSH did timely respond to

them.

14

2. Section 20.14 of the Lease

Discovery Channel’s Motion To Enforce Settlement does not plead any written

lease termination that is required by Section 20.14 of the Lease, in order to constitute an

enforceable settlement. As a matter of law, Defendant’s Motion should be denied. The

circuit court did not address this aspect of the law in its judgment and therefore

erroneously declared and applied the law.

. Section 20.14 provides that, “This Lease can be

modified only by a writing signed by the party against whom the modification is

enforceable.” The parties understood and complied with this Section 20.14. The lease

documents in evidence before the court were printed documents signed by a Vice-

President of StLUSH or its predecessor in interest. [L.F. at pp. 40, 42, 49, 81, 87, and 90]

In fact, the real estate salesperson for Discovery Channel, Tom Davidson,

acknowledged this requirement by requesting in his September 21 email that StLUSH

prepare a “lease termination agreement . . . for processing and review by Discovery.”

[L.F. at p. 152] No lease termination agreement was prepared or signed. Without a

written lease termination agreement signed by StLUSH, there was no agreement

(settlement or otherwise) to enforce. The emails do not purport to be the lease

termination agreement, but instead refer to a lease termination agreement that was to be

prepared by and signed by the actual parties to the lease.

II. The circuit court erred in entering judgment enforcing a settlement

because there was no enforceable agreement to terminate the subject

lease in that there was no offer and acceptance and no meeting of the

minds in order to form an enforceable agreement.

15

A. NO OFFER AND ACCEPTANCE

DISCOVERY CHANNEL cannot claim that the September 21 emails constituted

an offer and acceptance. To the purported “offer” by Marshall “…to counter your

previous offers with $220,000.00”, Davison did not accept the offer, but added a

substantial condition to Marshall’s offer by requiring that the termination would be “all

inclusive and as is condition”. [L.F. at p. 152] This, by law, is not a valid acceptance of

an offer.

.

Londoff v. Conrad

B.

, 749 S.W.2d 463, 465 (Mo.App. 1988).

NO MEETING OF THE MINDS

The Judgment in this cause of action could not detail the terms of the termination,

for the simple reason that the record contains no terms. In fact, the April 4, 2008 Order

and Judgment commands the parties to execute a Settlement Agreement and Release, the

terms of which are not mentioned. The final Judgment dated February 19, 2009 also

finds that the parties have reached an enforceable settlement and commands that “the

terms of which are to be complied with as stated in this Court’s April 4, 2008 Order.

However, the Circuit Court is unable to annunciate these terms. They do not exist.

.

III. The circuit court erred in entering judgment enforcing settlement

because Discovery Channel failed to prove a settlement by clear and

convincing evidence in that there was no hearing to determine the

evidence.

The Missouri Supreme Court was very specific on the proper procedure for a trial

court to rule on a Motion To Enforce Settlement. Eaton v. Mallinckrodt Inc., 224 S.W.3d

16

596 (Mo.banc 2007). To enforce a settlement agreement by motion, the Supreme Court

in Eaton has stated that a court must either (1) hold an evidentiary hearing, (2) dispose of

the motion on the pleadings pursuant to Rule 55.27 Mo.R.Civ.P., or (3) treat the motion

as akin to that for a summary judgment pursuant to Rule 74.04 Mo.R.Civ.P. How do

these three options apply to our case at bar?

1. Evidentiary hearing

The Supreme Court held the evidentiary hearing to be the most desirable

approach. However, in this case the trial court did not hold an evidentiary hearing but,

rather, took the motion under submission after oral argument was heard.

.

2. Judgment on the pleadings

If Discovery Channel’s Motion To Enforce Settlement is treated as a motion for

judgment on the pleadings under Rule 55.27 Mo.R.Civ.P., then it can be granted only if

the trial court chose to treat the issues of:

.

i. offer and acceptance,

ii. meeting of the minds,

iii. authority to bind,

iv. the terms of the settlement agreement, and

v. the requirement of a writing

solely as matters of law and not as matters of fact. However, the pleadings of any

settlement is nonexistent. The only “pleadings” of any purported settlement is contained

in the Defendant’s Motion To Enforce Settlement [L.F. at 100-111] and paragraph 6 of

the Affirmative Defenses [L.F. at 96] only. Since the pleadings in this case raise

17

questions of material facts, any motion for judgment on the pleadings, as a matter of law,

must fail.

3. Summary judgment

The trial court may consider matters outside the pleadings under Rule

55.27(b). If the trial court chooses to consider "matters outside the pleadings . . .

presented to and not excluded by the court”, the trial court is treating the motion for

judgment on the pleadings as one for summary judgment under Rule 74.04. Rule

55.27(b). In so doing, the court must give "all parties . . . a reasonable opportunity to

present all materials made pertinent to such a motion by Rule 74.04.” These materials

include "discovery, exhibits or affidavits upon which the motion relies." Rule 74.04(c)

(1).

.

Discovery Channel attached to its motion an unauthenticated (see Saunders v.

Bowersox

4.

, 179 S.W.3d 288, 292 (Mo. App. 2005)) copy of the alleged emails as Exhibit

A, and a copy of their Requests For Admissions as Exhibit B. The record does not reflect

that the trial court excluded these exhibits. In fact, the record reflects that the trial court

referred to these exhibits in its orders and judgments. If the trial court considered the

exhibits, thereby treating the defendants' motion as one for summary judgment, the trial

court would have been required to provide notice of its intention to do so to StLUSH. The

record does not reflect that the trial court provided the requisite notice or that the court

afforded StLUSH the opportunity to provide its own exhibits and affidavits. The failure

to provide notice or the opportunity to proffer affidavits and exhibits violates Rule 55.27.

Summary.

18

Thus, the judgment entered in favor of Discovery Channel cannot stand. If

the trial court had based its ruling solely on the pleadings under Rule 55.27(b), the

judgment entered in favor of Discovery Channel would fail as the pleadings raised a

material issue of fact; given the dispute as to the underlying facts, the trial court could not

enter judgment solely as a matter of law. Alternately, if the judgment was entered on the

basis of the pleadings alone, the judgment is not supported by sufficient competent

evidence in the record. If the trial court considered the exhibits and was, therefore,

treating the motion as a motion for summary judgment pursuant to Rule 74.04, it failed to

provide notice to the parties that it was so treating the motion to enforce and failed to

provide StLUSH a reasonable opportunity to "present all materials made pertinent to such

a motion by Rule 74.04."

5. Conclusion

In sum, it can be said that the trial court was attempting to bring a prompt

resolution to a vexing legal dispute. The deciding factual determinations in this resolution

involved the issues of offer and acceptance, meeting of the minds, authority to bind, the

terms of the settlement agreement, and the requirement of a writing. Any determination

granting Defendant’s Motion To Enforce Settlement could only be attainable by a hearing

establishing evidence that is not a part of this record and which Appellant does not

believe exists. Under the circumstances here, a judgment on the pleadings or a summary

judgment would have been unavailable. Evidence was not presented and, therefore, there

was no evidence to support the judgment for Discovery Channel on its motion to enforce

settlement.

.

19

Therefore, it is respectfully requested that the judgment must be reversed, and the

cause remanded for trial on the merits.

CONCLUSION

The circuit court erred in entering judgment enforcing the settlement agreement

claimed by Discovery Channel because the properly-authorized representatives of the

parties did not sign a writing agreeing to terminate the lease at Union Station and because

Discovery Channel failed to prove a settlement by clear, convincing, and satisfactory

evidence. The Court must reverse the circuit court’s judgment and remand this case for

trial on the claims alleged in the Petition and Answer, with instructions that the

September 21 email exchange does not constitute an enforceable lease termination

agreement.

Respectfully submitted, KREUTER & GORDON, P.C. By:_________________________________

David O. Kreuter #28802 7751 Carondelet Ave., Suite 401 St. Louis MO 63105 (314) 727-2488 fax: (314) 727-6376 dkreuter@kgatty.com

Attorneys for Appellant

20

CERTIFICATION REQUIRED BY RULE 84.06

The undersigned hereby certifies that this Brief complies with the limitations in

Rule 84.06(b), and that it contains 4,401 words (exclusive of the cover and appendix) as

counted by Microsoft Office Word for Windows 2007.

The undersigned has filed herewith a diskette containing this Brief using

Microsoft Office Word for Windows 2007 and certifies that the diskette has been scanned

for viruses and is virus-free.

CERTIFICATE OF SERVICE

The undersigned attorney certifies that on June ___, 2009, one printed copy and

one electronic copy of this Brief were mailed to:

Mark F. Hearne, II, Esq. Lindsay S.C. Brinton, Esq. Lathrop & Gage L.C. The Equitable Bldg. 10 South Broadway, Suite 1300 St. Louis MO 63102-1708

____________________________________

21

APPENDIX

Table Of Contents

Order and Judgment dated April 4, 2008 ......................................................................... A1

Mandate from Missouri Court of Appeals, Eastern District ............................................ A5

Order and Judgment dated February 19, 2009 ............................................................... A11

Mo.Rev.Stat. §432.220 ................................................................................................... A13

Mo.R.Civ.P. 44.01 .......................................................................................................... A14

Mo.R.Civ.P. 55.08 .......................................................................................................... A15

Mo.R.Civ.P. 55.32 .......................................................................................................... A17

Mo.R.Civ.P. 59.01 .......................................................................................................... A19

Mo.R.Civ.P. 74.04 .......................................................................................................... A22