Professional Funding Company v. Joseph F. Bufogle, Sr., and Bufogle & Associates, P.C.

Opinion

In the Missouri Court of Appeals Eastern District

DIVISION THREE

PROFESSIONAL FUNDING COMPANY, ) No. ED108799 )

Respondent, ) Appeal from the Circuit Court of ) St. Louis County

vs. ) 19SL-CC04156 )

JOSEPH F. BUFOGLE, SR., and ) BUFOGLE & ASSOCIATES, P.C., ) Honorable Ellen H. Ribaudo )

Appellants. ) Filed: February 2, 2021

Angela T. Quigless, P.J., Kurt S. Odenwald, J., and James M. Dowd, J.

Introduction

The issue before us is whether the judgment the trial court entered here sua sponte is void, because it was entered before the defendants had an opportunity to file an answer to the petition, or whether the trial court correctly found that the document it adopted as the judgment in this case, was a valid consent judgment from the parties’ previous litigation. Because we find that no judgment, consent or otherwise, had been entered in the parties’ previous litigation, the trial court erred in treating the document that Respondent Professional Funding Company (PFC) attached to its breach of contract petition in this case as a consent judgment and in adopting that document as the judgment here against Appellants Joseph Bufogle, Sr., and Bufogle &

Associates, P.C., (Bufogle) before the Bufogle defendants were able to file an answer.1 Reversed and remanded.

Background

To help finance his law practice, Bufogle2 borrowed money from PFC. After Bufogle breached the repayment agreement, PFC sued Bufogle in September 2018. The parties reached a settlement agreement in that case and the suit was dismissed.

The settlement agreement provided for two different scenarios whereby subsequent litigation might be instigated in the event the agreement was breached. The first scenario was addressed in paragraphs 2 and 3 of the settlement agreement. Paragraph 2 provided that the parties would execute a one-page pleading-like document the parties labelled “Consent Judgment” which was attached as Exhibit A to the settlement agreement. Exhibit A provided: “BY CONSENT, Judgment is hereby entered in favor of Plaintiff and against Defendants, jointly and severally, in the amount of Seven Hundred Thousand Dollars ($700,000.00), less any payments made prior to the filing date of this Consent Judgment. Non Compounded (sic) interest at the rate of 12% per year shall accrue on any unpaid balance from the date of default giving rise to the filing of this Consent Judgment until paid in full.”

Exhibit A was signed by PFC’s representative and by Bufogle individually and as the agent of the law firm, but it was not filed with the court which presided over that settled lawsuit, signed by the judge, or otherwise entered as the judgment in that case. Instead, that case terminated by way of a voluntary dismissal without prejudice.

1 Professional Funding filed a Motion to Dismiss Appellants’ Appeal which was taken with this case. That motion is denied. 2 For readability purposes, we refer in this opinion to the two Bufogle parties in the singular.

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Paragraph 3 of the settlement agreement then provided that if Bufogle breached its payment obligations, PFC would be entitled to file a new lawsuit in which Bufogle would waive service and enter an appearance, and PFC could immediately file Exhibit A. Paragraph 3 did not describe the nature or type of lawsuit the parties anticipated.

A second litigation scenario was set forth in paragraph 5: “In the event it becomes necessary to institute proceedings to enforce this Agreement, the parties agree that venue shall be proper in the County of St. Louis, jurisdiction in the State of Missouri, and Missouri law shall govern. The parties further agree that the prevailing party shall be entitled to all costs incurred in enforcing this Agreement, including reasonable attorney fees.”

On September 16, 2019, after Bufogle allegedly breached the settlement agreement by failing to make the required payments, PFC filed its unverified petition for breach of contract against Bufogle attaching to the petition the settlement agreement together with Exhibit A. Bufogle was served with the summons and petition on October 16, 2019, therefore pursuant to Rule 55.25(a) and to the summons itself, the answer to the petition was due on November 15, 2019. However, on October 22, 2019, without notice to the parties and before Bufogle filed an answer to the petition or entered an appearance in the case, the trial court entered judgment sua sponte by executing Exhibit A as its judgment in this case. The court denied Bufogle’s motion to set aside the judgment reasoning that the parties’ settlement agreement “created a judgment by consent,” and that it had merely been “stayed by the parties’ [settlement] agreement.”

On this appeal, Bufogle alleges that the trial court erred in denying his motion to set aside the judgment because Exhibit A was not a consent judgment. Instead, Bufogle alleges the judgment is void under due process principles and is in violation of the rules of civil procedure

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because it was entered just six days after Bufogle was served with the summons and petition in this suit for breach of contract and Bufogle had yet to even file an answer.3 We agree.

Standard of Review

“A judgment is void under Rule 74.06(b)(4) if the trial court: (1) lacked subject matter jurisdiction, (2) lacked personal jurisdiction, or (3) entered the judgment in a manner that violated due process.” Williams v. Zellers, 611 S.W.3d 357, 364 (Mo. App. E.D. 2020). “Ordinarily, we review the circuit court’s ruling on a motion to set aside a judgment under Rule 74.06 for an abuse of discretion. However, whether a judgment should be vacated because it is void is a question of law that we review de novo; we give no deference to the circuit court’s decision.” Kerth v. Polestar Entm’t, 325 S.W.3d 373, 378 (Mo. App. E.D. 2010) (citations omitted).

Analysis

Unless the judgment entered in this case was a valid consent judgment, it is void because its entry before Bufogle had answered the petition violates fundamental principles of due process and the specific dictates of Rules 55.01 and 55.25(a), which respectively mandate the filing of an answer in a civil action and permit defendants 30 days to do so after service of the summons and petition.

The requirement and opportunity to respond to a petition is codified in our rules of civil procedure. Rule 55.01 mandates that in a civil action, “[t]here shall be a petition and an

3 Bufogle raises three points. Because our decision with respect to point three is dispositive to this appeal, we need not address his first point, which asserted the judgment was void because it was in essence a confession of judgment and failed to follow the requirements of § 511.080, nor his second point, which asserted the judgment should have been set aside as it was for an uncertain amount that cannot be ascertained from the pleadings and record.

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answer...” Rule 55.25(a) provides that upon a suit being filed, a defendant has 30 days after the service of the summons and petition to file an answer.

“The fundamental requisite of due process of law is the opportunity to be heard.”

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); Kerth, 325 S.W.3d at 378–79. Defendants' due process rights afford them an opportunity to file a responsive pleading and present their objections to the claims against them. Kerth, 325 S.W.3d at 379. “Inherent in our law has long been the concept that the underlying principle of a summons is to place a defendant on notice of an action filed against the defendant to enable the defendant to appear and defend against the action.” Hometown Lumber & Hardware, Inc. v. Koelling, 816 S.W.2d 914, 916 (Mo. banc 1991). A judgment entered against a defendant without granting the opportunity to be heard violates the defendant’s due process rights. Kerth, 325 S.W.3d at 379. Finally, a judgment entered in violation of a defendant’s due process rights is void. Id.; Estate of Pittsenbarger, 136 S.W.3d 558, 565 (Mo. App. W.D. 2004). I. Exhibit A, the document the trial court treated as a consent judgment and then adopted and entered as its own judgment in this case, was not a consent judgment or a judgment of any kind.

The critical defect in the trial court’s reasoning here was its treatment of Exhibit A from the parties’ prior settlement agreement as a consent judgment when Exhibit A was nothing more than an exhibit to a settlement agreement that was never signed by a judge or entered as a judgment in that prior case. It was not a judgment and did not carry the weight and finality our legal system embodies in judgments. Only courts can enter judgments, even consent judgments. Rule 74.01(a).

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A consent judgment is a judgment “based on an agreement between the parties as to the terms, amount or conditions of the judgment rendered.” Fritzsche v. East Texas Motor Freight Lines, 405 S.W.2d 541, 544 (Mo. App. E.D. 1966). A consent judgment is not a judicial determination of rights, but it is an agreement of the parties and is not appealable. Nations v. Hoff, 78 S.W.3d 222, 223 (Mo. App. E.D. 2002). “[A] consent judgment has the same force and effect as any other judgment reached on the merits.” Boillot v. Conyer, 826 S.W.2d 95, 97 (Mo. App. E.D. 1992). However, since a consent judgment is like any other judgment, it must be entered by the court. Rule 74.01(a) (“A judgment is entered when a writing signed by the judge and denominated ‘judgment’ or ‘decree’ is filed.”); see also Sturgeon v. Sturgeon, 984 S.W.2d 859, 860 (Mo. App. E.D. 1998) (holding a court document titled “judgment,” filed, but signed by a commissioner rather than a judge was not a judgment under Rule 74.01).

Thus, the trial court erred when it found that the settlement agreement “created a judgment by consent.” Parties cannot create judgments. And putting the title “consent judgment” on Exhibit A is meaningless because it was never filed with the court in that case, signed by the judge in that case, or otherwise entered as the judgment in that case. Again, it remained merely a part of the parties’ private contract to resolve their previous litigation. And since that case was dismissed, it is as if that case had never been brought. Samland v. J. White Transp. Co., Inc., 675 S.W.2d 92, 96 (Mo. App. W.D. 1984).

Likewise, Exhibit A did not become a consent judgment when PFC filed this new case and attached it to the petition. The trial court described PFC’s new suit as an action “to enforce the consent judgment which was stayed by the parties’ [settlement] agreement...” Judgments are enforced through executions under Rule 76.01 not through a new civil action for breach of

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contract which PFC filed in this case. Risking redundancy, no execution or stay of execution was possible because no judgment had been entered.

By filing the new lawsuit for breach of contract and obtaining service on Bufogle, PFC set into motion a completely new action that will run its course according to our well-worn rules of civil procedure. PFC effectively went down the road envisioned by paragraph 5 of the parties’ settlement agreement apparently finding it “necessary to institute proceedings to enforce this Agreement” when it filed this breach of contract action.

Upon remand, Bufogle will be required to file an answer or other responsive pleading under Rule 55.25(a). The settlement agreement and Exhibit A which PFC attached to the petition in this case are not self-proving but represent factual allegations which PFC has the burden to prove. See Rule 55.12.

We acknowledge PFC’s intention (and Bufogle’s for that matter) through the settlement agreement and Exhibit A to create an insurance policy of sorts to keep in its back pocket in the event Bufogle breached. But what parties intend and what the law allows is where the rubber hits the road in this case. Had the parties submitted Exhibit A to the court in their previous litigation for entry as a consent judgment disposing of the issues in that case, the parties could have asked the court to stay execution of the judgment pending Bufogle’s continued timely payments and then in the event Bufogle breached, execution on the judgment could have proceeded. Household Fin. Corp. v. Jenkins, 213 S.W.3d 194, 195 (Mo. App. E.D. 2007) (a consent judgment was entered, and execution stayed upon defendant making periodic payments to the plaintiff). Since that did not take place, the swiftest litigation route available to PFC is to adhere to the pleading rules and then file a dispositive motion.

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Conclusion

The trial court’s sua sponte entry of judgment violated Bufogle’s due process rights and Bufogle’s rights under the rules of civil procedure including Rule 55.25(a). Therefore, this matter is reversed and remanded to the trial court for further proceedings consistent with this opinion.

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James M. Dowd, Judge

Angela T. Quigless, P.J., and Kurt S. Odenwald, J., concur.