Fisher v. Fusco, SD37132

CourtCourt of Appeal of Missouri (US)
Writing for the CourtGARY W. LYNCH, C.J.
PartiesNANCY FISHER, Respondent, v. MARCUS FUSCO, Respondent, and STATE FARM MUTUAL AUTO INSURANCE CO., Appellant.
Decision Date18 January 2022
Docket NumberSD37132

NANCY FISHER, Respondent,

MARCUS FUSCO, Respondent,


No. SD37132

Court of Appeals of Missouri, Southern District, Second Division

January 18, 2022




State Farm Mutual Automobile Insurance Company ("State Farm"), which intervened in the underlying tort action brought by Nancy Fisher ("Plaintiff") against Marcus Fusco ("Defendant"), appeals a Rule 74.01(b) "Judgment and Order" denying its motion seeking the enforcement of a purported settlement agreement ("the motion to enforce").[1] Because State


Farm was not aggrieved by the trial court's ruling on the motion to enforce, we dismiss its appeal for lack of standing.

Factual and Procedural Background

Plaintiff filed a petition for damages against Defendant, claiming that Defendant was legally at fault for a motor vehicle collision ("the collision") involving himself and Plaintiff. All parties to this lawsuit generally agree that Defendant's negligence was the sole and proximate cause of the collision.

Defendant, however, also asserted several affirmative defenses in his amended answer, which included, in pertinent part, the following allegations:

Plaintiff's claim for an enforceable Judgment against Defendant for full recovery, as sought herein, is barred due to the doctrine of accord and satisfaction in that Plaintiff made an offer for settlement to limit recovery against Defendant on June 29, 2018, which was timely accepted on September 13, 2018 by State Farm (Defendant's insurer) on behalf of Defendant. The settlement agreement consisted of payment of the $50, 000 each person/$100, 000 each accident policy limits in exchange for resolution of all claims by Plaintiff against Defendant and such agreement must be enforced

State Farm, Defendant's motor vehicle liability insurer, thereafter sought and was granted intervention into the lawsuit "but only for the purpose of addressing the issue of the existence of an enforceable settlement agreement between State Farm and the Plaintiff which would have effectively settled Plaintiff's injury claim against Defendant arising out of the facts alleged in Plaintiff's Petition." Following its intervention, State Farm filed a pleading asserting, against Plaintiff, the same accord and satisfaction affirmative defense based upon the same purported settlement agreement as already had been pleaded by Defendant as well as counterclaims seeking the declaration and specific performance of the terms of that settlement agreement. State Farm then filed the motion to enforce, raising the same allegations as to the existence of a settlement agreement.


Ultimately, the trial court issued its "Judgment and Order" denying the motion to enforce. The trial court's reasoning for this denial was that "the Court does not believe that the correspondences exchanged by the parties constituted an enforceable agreement and that they were at best an agreement to agree and would require further negotiations and documentation." Without reaching any of the other claims or defenses raised by the parties in their pleadings, the trial court stated that "[t]he Court, in entering this Judgment, expressly determines that there is no just reason for delay."

State Farm's timely appeal followed.

State Farm Lacks Standing to Appeal the Denial of the Motion to Enforce

"In every case before considering claims raised on appeal, this Court has a duty to sua sponte determine whether we have authority to decide the appeal." Collector of Revenue of City of St. Louis v. Parcels of Land Encumbered with Delinquent Tax Liens, 350 S.W.3d 840, 841 (Mo.App. 2011). "The right to appeal is purely statutory and, where a statute does not give a right to appeal, no right exists." Buemi v. Kerckhoff, 359 S.W.3d 16, 20 (Mo. banc 2011) (internal quotation marks omitted). "If the appellate court lacks authority to hear an appeal, the appeal must be dismissed." Lopez v. Heartland Midwest, LLC, 602 S.W.3d 841, 844 (Mo.App. 2020).

As applicable here, "[a]ny party to a suit aggrieved by any judgment of any trial court in any civil cause . . . may . . . appeal . . . from any . . . [f]inal judgment...

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