Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of St. Louis County Honorable Michael
B. SULLIVAN, J.
Securities, LLC (Appellant) appeals from the trial
court's judgment granting the Motion to Enforce
Settlement and For Sanctions filed by Sansone Law, LLC
(Respondent) and dismissing all claims with prejudice. We
reverse and remand to the trial court to reinstate
Appellant's and Respondent's claims for further
and Procedural Background
filed a three-count petition against Appellant alleging
Respondent had represented Appellant and had, at
Appellant's request, provided legal services to
Appellant. Respondent further alleged Appellant received the
legal services but failed to pay for them. The petition
against Appellant alleged (1) quantum meruit, (2) fraudulent
misrepresentation, and (3) slander/libel. Respondent
requested relief in excess of $25, 000 in compensatory
damages, as well as attorney's fees and costs.
filed a partial answer, along with affirmative defenses, and
eleven counterclaims. In the counterclaims, Appellant alleged
Respondent (1) breached the legal services contract, (2) was
unjustly enriched, (3) committed legal malpractice, (4)
breached its fiduciary duty, (5) tortiously interfered with a
business expectancy, (6) illegally evicted Appellant, (7)
abused process in evicting Appellant, (8) failed to return
Appellant's security deposit, (9) committed conversion of
Appellant's office property, (10) was unjustly enriched
by the office property, and (11) was unjustly enriched by
joint legal services. Appellant also filed a motion to
dismiss Respondent's prayer for attorney's fees,
along with Count II of Respondent's petition, fraudulent
misrepresentation, for failing to state a claim upon which
relief could be granted.
Appellant's answer, the trial court entered an order that
On application of the parties, presented ex parte, by consent
of the attorneys, by Talmage Newton, the Clerk is instructed
to withdraw the partial answer, affirmative defenses and
counterclaims filed by J&M Securities, LLC. Sansone Law
has agreed not to default J&M Securities pending further
discussions of the parties.
management conference was held in January 2017. The trial
court entered an order following the hearing that stated,
"Discovery pending, parties discussing resolution of
discovery issues. [Case management conference] reset for
March 31, 2017 @ 11 am."
day following the case management conference, Respondent
filed a motion to compel Appellant to fully answer and
respond to its interrogatories and request for production.
The motion to compel was set for hearing. Prior to the
scheduled hearing on the motion to compel, Appellant filed
its revised partial answer, affirmative defenses, and
filed a memorandum to cancel the hearing on the motion to
compel, which the trial court judge signed.
the cancellation of the motion to compel hearing, Respondent
filed a motion to dismiss Appellant's counterclaims. The
trial court set both Appellant's and Respondent's
motions to dismiss for hearing. On the day of the hearing,
the trial court entered an order that stated, "Both
parties ordered to amend claims within 30 days or each
parties [sic] motion to dismiss is granted."
and Respondent did not amend their respective claims within
30 days, but instead jointly requested the trial court extend
the deadline for filing amended pleadings for an additional
30 days. The trial court granted the parties' request.
days later, Appellant and Respondent jointly requested a
second extension of an additional seven days for filing the
days later, Appellant filed its amended partial answer,
affirmative defenses, and counterclaims alleging: (1) legal
malpractice (Hefley case), (2) legal malpractice
(Scharafinski case), (3) legal malpractice (case
abandonment), (4) unjust enrichment (case abandonment), (5)
breach of fiduciary duty, (6) unjust enrichment (joint legal
services), (7) breach of contract (illegal eviction), (8)
abuse of process (illegal eviction), (9) unjust enrichment
(security deposit), (10) conversion (office property), and
(11) unjust enrichment (office property).
did not file its amended petition, but rather filed a motion
for extension, as well as its Motion to Enforce Settlement
and For Sanctions. Respondent's motion for extension
requested the trial court extend the deadline for filing its
amended petition until after the motion to enforce settlement
was heard. The request stated in part:
The parties agreed to an extended deadline of 7.17.2017 to
file amended petitions that had been previously ordered as
settlement had been reached. However, on July 17, 2017
counsel for Defendant abruptly claimed no settlement and
offered only a dismissal without prejudice of all
Motion to Enforce Settlement and For Sanctions claimed the
parties previously agreed to settle all pending claims and
counterclaims by mutual release of all parties for all
pending claims. The motion further requested attorney's
fees be awarded to Respondent for the time spent on enforcing
filed a notice of hearing stating the motion to enforce
settlement would be called for hearing on August 8, 2017. On
July 26, 2017, Respondent filed an amended notice of hearing
stating the motion would be heard on August 16, 2017. On
August 16, 2017, the trial court entered an order stating,
"By consent, the parties pass hearing on plaintiff's
motion to compel/enforce settlement from today to 8-25-2017 @
August 24, 2017, Respondent filed a memorandum regarding the
hearing scheduled for the following day, which stated,
"Plaintiff hereby passes its hearing on Plaintiff's
Motion to Enforce Settlement set for 8.25.2017 at 10:30
August 29, 2017, Appellant filed a motion for default
judgment against Respondent. Appellant's motion stated
while it had agreed to stay the filing deadline for
Respondent for any responsive pleadings to the counterclaims
until hearing on the motion to enforce settlement, it agreed
to do so with the expectation that the motion would be heard
in a timely fashion as agreed to by the parties.
Appellant's motion went on to state Respondent
unilaterally cancelled the August 25, 2017 hearing, which had
not been rescheduled, and further that Respondent's
counsel had not responded to a request to reset the pending
filed a motion to strike Appellant's default judgment
motion and for sanctions. Along with its motion, Respondent
filed an amended notice of hearing that set the motions to
enforce settlement, strike the default motion, and for
issuance of sanctions for hearing on September 12, 2017.
September 12, 2017, the court entered an order that denied
Appellant's motion for default judgment and reset the
hearing on Respondent's motion to enforce settlement to
September 27, 2017.
to Enforce Settlement
September 27, 2017, the hearing on Respondent's Motion to
Enforce Settlement and For Sanctions began with the following
The Court: [I]n a previous discussion here, we decided that
the case will be presented as follows. I think the
parties are in agreement that for the most part, this case is
one where the evidence is based upon the exchange of emails.
So the emails, I believe, will be submitted and offered as
evidence in this case, and then we'll hear the arguments
of the respective parties. Then we'll set a date for
the filing of findings of fact, conclusions of law and
proposed order. So with that, I believe we are ready to
proceed. So, Mr. Pedroli.
Pedroli: Your Honor, if you don't mind, I think it might
be a good idea to memorialize, also, sort of what happened
this morning. We came here intending for this to be an
evidentiary hearing where the lawyers would all testify as to
the emails, the telephone conversations, and even some
in-person discussions with regard to the settlement
agreement. That's what we thought we were doing.
At the last minute, Mr. Newton cited Ethical Rule 4.37 - or
4-37, saying that he feels as if he can't, without an
opinion, testify in this case and act as counsel.
Is that correct?
Newton: That is correct, Your Honor. I believe that the
Ethical Rule 4-3.7 prohibits me in this proceeding from both
being lead advocate for Mr. Metzger and his companies as well
as a key witness to the facts that are intended to be put on.
The Court: Thank you.
Pedroli: And although we disagree with that, we have
agreed to proceed with the emails and the telephone
conversation as our primary evidence in the motion to
enforce settlement. So at this point do you want to just --
Newton: Your Honor, for purposes of making the record
complete on this point, I would note that plaintiff has
been offered by defense counsel the opportunity, subject to
the Court's discretion, to reschedule this matter if they
felt the need to do so, and have declined that opportunity
and elected to proceed on the documentary record.
The Court: Okay. Well, that being the case, but I understand
- Mr. Sansone, Mr. Pedroli, correct me if I'm wrong, but
you are proceeding because this matter has been scheduled any
number of times, and I believe it's your position that
it's time to have this matter heard and the Court to make
Pedroli: We are proceeding because my client's opinion is
that these last minute changes and continuances are
vexatious, and it demonstrates their inability to settle a
case that they have already settled and agreed to before. We
want to get it over with. We believe this case was settled a
long time ago, and we believe the documentary evidence
should be enough for Your Honor to make that decision that a
settlement was agreed to. So that being the case, we are
going to admit the emails and the telephone transcript at
hearing proceeded, and both Appellant and Respondent
submitted exhibits into evidence and made legal arguments
regarding whether a settlement was agreed to on June 9, 2017.
The evidence admitted at the hearing consisted of the
9, 2017 - Voicemail
9, 2017, Appellant's counsel, Newton, called
Respondent's counsel, Ben Sansone (Sansone), and left a
voicemail. A transcription of the voicemail was submitted
into evidence by Respondent. The voice message stated:
Bennett's [sic] Talmage would you [give] me a call when
you a chance it's noon on Friday I think I have a
proposal that's going to get this thing worked out So we
may be able to get this thing wrapped up give me a call when
you can obviously we've got a pending deadline so sooner
9, 2017 - Recorded Telephone Conversation
returned the call to Newton on June 9, 2017, and without
Newton's knowledge, recorded the phone conversation.
Respondent submitted a transcript of that phone call into
evidence at the hearing, which stated:
Reception: Good morning NewtonBarth, this is Claire speaking,
how may I assist you?
Sansone: Hi, Ben Sansone calling for Talmage.
Reception: Sure, Ben, give me one moment.
Sansone: Talmage, Ben, what's going on?
Newton: Okay. I think I have kind of gotten everybody to
come around on our side. Here's what I would propose
doing. I would say that we continue out whatever deadline
for whatever period you are convenient with to give me time
to put together a written settlement agreement for your
review. It would more or less be this. There would be no
money changing hands on either side. It would be more or
less a mutual walk-away, but it would have some things in
there that I think you would not have a hard time agreeing
to from our conversation at - at court last month, some
of them just an agreement that you are not going to provide
people Shannon [Metzger]'s home address, and then the
big one being more or less a, you know, an agreement
resolving all of these disputes with the exception saying
that if this judgment issue comes up, it's more of [sic]
less cut out of the settlement agreement, that in the
event it ever is brought up, you two are going to have to
deal with that. That means if you are sued you can bring him
in, if he is sued he can bring you it. It's the one
cutout provision here.
Sansone: We will figure that out. But I mean,
that's not a dispute that's between us, either one of
our filings so I don't know how -
Newton: That is correct, yeah.
Sansone: It wouldn't be addressed by just us resolving
this anyway, so I don't know why we have to specifically
drop that out, but I will keep an open mind.
Newton: You know why. Just because it -
Sansone: No, I mean if you are just - Actually, I think I
know why. You know why because is Shannon is Shannon or is
there a reason for -
Newton: Yeah, that's more [or] less. I still maintain
that this is in both your best interest which is why I am
working so hard to get this done. But I want to have
language in there that you are comfortable with, that he is,
but I've got to craft it. Are you comfortable with that
as far as the pending deadline. I will confirm that with
you in writing, that I'm drafting a settlement agreement,
we will push out this kind of artificial deadline that we
created, whatever period you are comfortable with.
Sansone: No, that's fine. I mean, listen, what I
don't want to have happen, and I don't think it would
be your fault, but it might be on your client. I do not want
- If we are going to get this thing ...