Prof'l Funding Co. v. Bufogle

Decision Date08 November 2022
Docket NumberED 110482
Parties PROFESSIONAL FUNDING COMPANY, Respondent, v. Joseph F. BUFOGLE, Sr., and Bufogle & Associates, P.C., Appellants.
CourtMissouri Court of Appeals

FOR APPELLANTS: David L. Baylard, 30 South McKinley Street, Union, MO 63084.

FOR RESPONDENT: David G. Bender, 7733 Forsyth Boulevard, 4th Floor, Clayton, MO 63105.

Cristian M. Stevens, J.


Defendants-Appellants Joseph F. Bufogle, Sr. and Bufogle & Associates, P.C. (collectively, Bufogle) argue the circuit court erred and misapplied the law in granting Plaintiff-Respondent Professional Funding Company's (PFC) motion for summary judgment on its breach of contract claim against Bufogle.1 In his sole Point Relied On, Bufogle argues PFC is not entitled to summary judgment because PFC anticipatorily breached the contract by filing suit against Bufogle before Bufogle was required to perform under the contract. We affirm the judgment of the circuit court.

Factual and Procedural Background

To help finance his law practice, Bufogle borrowed money from PFC. After Bufogle breached the repayment agreement, PFC filed suit against Bufogle in September 2018. The parties reached a settlement agreement on September 24, 2018, and PFC's suit was dismissed pursuant to the agreement.

In the settlement agreement, Bufogle promised to pay PFC $600,000 in satisfaction of alleged damages of $700,000.00. Bufogle agreed to pay $200,000 by September 24, 2019, within one year of the effective date of the agreement. He also agreed to pay an additional $200,000 within two years of the effective date, and a final $200,000 within three years of the effective date. The agreement provided that all payments must be made in at least $25,000 increments.

For its part, PFC promised to voluntarily dismiss the then-pending lawsuit without prejudice and to hold and not file a new suit so long as Bufogle fully complied with the payment terms.

The parties agreed that, should Bufogle fail in any way to fully comply with the payment terms, PFC would file a new lawsuit against Bufogle. Bufogle promised to waive service of process and voluntarily enter his appearance within five days of being advised that the new lawsuit was filed. Bufogle also agreed and consented to PFC's immediately filing a proposed consent judgment attached to, and incorporated in, the settlement agreement. The terms of the consent judgment, signed by both parties, entered judgment in favor of PFC and against Bufogle in the amount of $700,000, less any payments Bufogle made prior to the filing of the consent judgment, with interest.

On September 16, 2019, eight days before Bufogle was due to pay the first $200,000, PFC filed a petition alleging Bufogle's breach of the settlement agreement. With its petition, PFC filed a copy of the settlement agreement. Bufogle was not served with the petition and summons until October 8, 2019. Following service of Bufogle, PFC also filed the proposed consent judgment on October 17, 2019. After PFC filed its petition, the settlement agreement, and the consent judgment, Bufogle made two payments of $4,000 each to PFC.

On October 22, 2019, without notice to either party and before Bufogle filed an answer or entered his appearance, the circuit court entered judgment by executing the consent judgment. Bufogle appealed to this Court. See Pro. Funding Co. v. Bufogle , 617 S.W.3d 509 (Mo. App. E.D. 2021). In that first appeal, we held that the circuit court's entry of the consent judgment was void for violating due process and the rules of civil procedure. Id. at 512. We therefore reversed the judgment and remanded the case to the circuit court. Id. at 511, 514.

Upon remand, Bufogle filed his answer to PFC's petition on April 16, 2021. Bufogle answered, by way of affirmative defense, that PFC "anticipatorily repudiated the parties’ agreement when [PFC] sued [Bufogle] before any payments were due under the agreement in issue."2

On June 1, 2021, PFC filed a motion for summary judgment and a statement of uncontroverted material facts pursuant to Rule 74.04, arguing that PFC was entitled to judgment as a matter of law on its breach of contract claim.3

Bufogle's response generally was that there was no dispute as to most of the facts. In his response to PFC's statement of uncontroverted material facts, Bufogle admitted, among other facts: the parties entered into the settlement agreement on September 24, 2018; pursuant to the agreement, Bufogle was to make certain payments to PFC; Bufogle executed the consent judgment as part of the settlement agreement; Bufogle owed PFC a total of $700,000 but $100,000 would be forgiven if Bufogle fully complied with the settlement agreement; and, after the filing of the consent judgment, Bufogle made two payments of $4,000 each. Bufogle did not file a statement of any additional material facts pursuant to Rule 74.04.4

Regarding PFC's statement of material facts that Bufogle breached the settlement agreement and PFC was entitled to summary judgment and damages, Bufogle's response was not to dispute the facts, but to again invoke the affirmative defense of anticipatory breach by repudiation as a matter of law. Bufogle argued that PFC anticipatorily repudiated the settlement agreement by filing suit eight days before the first payment was due from Bufogle. Thus, argued Bufogle, his contractual obligations were terminated and PFC was precluded from enforcing the agreement.

After substantial briefing of PFC's motion for summary judgment, the circuit court heard arguments on August 12, 2021. On October 29, 2021, the circuit court entered its order and judgment rejecting Bufogle's affirmative defense of anticipatory breach by repudiation and granting PFC's motion for summary judgment. The circuit court found there were no material facts in dispute, Bufogle would not have been aware of PFC's lawsuit until he was served on October 8, 2019, after he failed to make the first payment on September 24, 2019, and the settlement agreement was first breached by Bufogle when he failed to make the first payment.

Bufogle now appeals the circuit court's judgment.

Standard of Review

The propriety of summary judgment is an issue of law. City of Arnold v. Ray Dickhaner, L.L.C. , 649 S.W.3d 340, 342 (Mo. App. E.D. 2022) (citing ITT Com. Fin. Corp. v. Mid-Am. Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993) ). This Court reviews the circuit court's grant of summary judgment de novo. Johnson v. Springfield Solar 1, L.L.C. , 648 S.W.3d 101, 103 (Mo. banc 2022) (citing Goerlitz v. City of Maryville , 333 S.W.3d 450, 452 (Mo. banc 2011) ). Summary judgment requires the moving party to establish that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Johnson , 648 S.W.3d at 103 ; see also Rule 74.04(c)(1), (6). Summary judgment is appropriate in a breach of contract action where the language of the contract is so clear and unambiguous that the meaning of the portion in dispute is so apparent that it may be ascertained from the four corners of the document. Monsanto Co. v. Garst Seed Co. , 241 S.W.3d 401, 406–07 (Mo. App. E.D. 2007) (quoting Bd. of Educ. of the City of St. Louis v. State , 134 S.W.3d 689, 695 (Mo. App. E.D. 2004) ).


On appeal, Bufogle does not allege there remains a disputed issue of material fact.

Rather, he maintains PFC was not entitled to judgment as a matter of law. He argues the circuit court erred in granting PFC's motion for summary judgment because, when PFC filed its suit for breach of contract, Bufogle had not yet breached the settlement agreement. According to Bufogle, PFC's filing suit before Bufogle's first payment of $200,000 was due manifested PFC's intent to no longer perform under the agreement and was an anticipatory breach. That anticipatory breach, Bufogle's argument goes, precluded PFC from enforcing the agreement against Bufogle. PFC counters that, by filing suit eight days before Bufogle's payment was due, it manifested a strong desire to perform by enforcing Bufogle's obligations under the agreement. We affirm the circuit court's summary judgment in favor of PFC.

A settlement agreement is governed by contract law. Brewer v. Cosgrove , 498 S.W.3d 837, 843 (Mo. App. E.D. 2016). A covenant not to sue is nothing but a contract, and should be so construed. Passer v. U.S. Fid. & Guar. Co. , 577 S.W.2d 639, 648 (Mo. banc 1979). The elements of a breach of contract claim are: (1) the existence and terms of a contract including certain rights and obligations between the parties; (2) the defendant breached his obligation under the contract; and (3) the plaintiff suffered damages from the breach. Reddick v. Spring Lake Ests. Homeowner's Ass'n , 648 S.W.3d 765, 782 (Mo. App. E.D. 2022) (citing Khalil v. 3HB Corp. , 621 S.W.3d 1, 8 (Mo. App. E.D. 2021) ). A cause of action for breach of contract does not accrue until after the contract is breached. Back Ventures, L.L.C. Series D v. Safeway, Inc. , 410 S.W.3d 245, 257 (Mo. App. W.D. 2013) (quoting Real Est. Invs. Four, Inc. v. Am. Design Group Inc. , 46 S.W.3d 51, 59 (Mo. App. E.D. 2001) ).

The only element of PFC's breach of contract claim disputed by Bufogle is that he breached his obligation to pay PFC under the settlement agreement. Pursuant to his affirmative defense of anticipatory breach by repudiation, Bufogle argues that PFC's filing suit before Bufogle's first payment was due excused Bufogle of his obligation to pay PFC as a matter of law.

Anticipatory Breach by Repudiation

Missouri recognizes the doctrine of anticipatory breach. TDV Transp., Inc. v. Keel , 966 S.W.2d 347, 349 (Mo. App. E.D. 1998) (citing Powell v. Bagley , 862 S.W.2d 412, 415 (Mo. App. E.D. 1993), Cork Plumbing Co. v. Martin Bloom Assocs., Inc. , 573 S.W.2d 947, 955 (Mo. App. St. Louis 1978), and Restatement (Second) of Contracts § 253 )); see also 23 Williston on Contracts § 63:28 (4th ed.) ("[A]n anticipatory...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT