TOMMY MORPHIS vs. BASS PRO GROUP, LLC, TRACKER MARINE, LLC and KEN BURROUGHS

Springfield, Mo - Employment contract attorney represented Tommy Morphis with suing Bass Pro Group, Tracker Marine, and Ken Burroughs alleging they failed in a promise to create an incentive plan to increase Morphis's compensation by $400,000 per year for three years.

Morphis first filed suit in 2010, eventually amending his petition to assert

11 counts for tort, contract, and ancillary relief. In 2013, the trial court sanctioned

Morphis and his attorney for discovery violations, following which Defendants

sought summary judgment on all counts. After the court heard argument and took

the motion under submission, Morphis voluntarily dismissed his case, refiled it the

same day, and disqualified the judge.

Defendants sought and obtained another protective order regarding

Morphis's prior discovery violations, then again sought summary judgment, which

was granted on all counts in October 2015.

Morphis appealed to this Court, which found procedural failings regarding

the protective order and, in turn, a procedural need to set aside the summary

judgment. We reversed and remanded for an evidentiary hearing regarding the

protective order, then to proceed consistent with our opinion. See Morphis v.

Bass Pro Group, LLC, 518 S.W.3d 259 (Mo.App. 2017)("Morphis I”).

On remand, Defendants filed an amended motion for protective order. The

court held an evidentiary hearing, admitted evidence, and upon Morphis's request

therefor, included 40 pages of fact findings and legal conclusions as support for a

July 2018 protective order.2 Later, Defendants again sought summary judgment,

which the court granted in July 2019 except as to Morphis's negligentmisrepresentation Count III. Morphis then voluntarily dismissed Count III, the

court entered a final judgment for Defendants, and Morphis brought this appeal.

2 Point 16, which claims the order was entered without evidence of good cause or prejudice,

fails because it ignores the no-substantial-evidence framework established in Houston

v. Crider, 317 S.W.3d 178, 186-87 (Mo.App. 2010). Further, Exhibits A-Z and AA-PP

were admitted at the hearing in evidentiary rulings not challenged on appeal.3

Analysis

Contract-Based Claims (Points 1-5)

We take together these points relating to Morphis's contract-based claims,

denying them all because Morphis shows, at most, only a gratuitous promise to

vastly boost his compensation for no extra work. His continued employment may

have been an implicit condition to reaping any such windfall, but was not

contractual consideration that bound Defendants to pay up.

A contract involves an offer, acceptance, and bargained-for consideration.

Baker v. Bristol Care, Inc., 450 S.W.3d 770, 774 (Mo. banc 2014). Mere

expressions of intention, which are all Morphis ever showed, do not amount to

offers. 1 Williston on Contracts § 4.9 (4th ed. 2020). Nor did Morphis show any

bargained-for consideration or exchange, either that he bargained for the extra

$400,000 annually he now seeks, or that he bargained to continue working at

Tracker for any reason.3 Either failing defeats Morphis's contract claims, so we

need not discuss why § 432.010's statute of frauds also would bar recovery.

Ancillary Claims (Points 6-13 & 19-21)

These points involve ancillary claims that depend on success in the contractbased counts, so they also fail.

3 An Ohio case collects hornbook common-law contract principles applicable here:

Gratuitous promises are not enforceable as contracts, because there is no

consideration. Restatement of [the Law 2d, Contracts (1981)], 172–174,

Section 71, Comments a and b . . . . A written gratuitous promise, even if it

evidences an intent by the promisor to be bound, is not a contract. 2

Corbin, Contracts (Rev.1995) 20, Section 5.3. Likewise, conditional

gratuitous promises, which require the promisee to do something before

the promised act or omission will take place, are not enforceable as

contracts. Restatement of Contracts, supra, 174, Section 71,

Comment c. While it is true, therefore, that courts generally do not

inquire into the adequacy of consideration once it is found to exist, it must

be determined in a contract case whether any "consideration” was really

bargained for. If it was not bargained for, it could not support a contract.

Carlisle v. T & R Excavating, Inc., 704 N.E.2d 39, 43 (Ohio App. 1997).4

Fraudulent Misrepresentation (Point 15)

By contrast, Morphis's challenge to summary judgment on his fraudulentmisrepresentation claim is well taken. To start, Defendants' Statement of

Uncontroverted Material Facts ("SUMF”) asserts 150 evidentiary facts, not

material facts.4 For evidentiary facts to prove material (i.e., ultimate) facts, a

factfinder usually must weigh evidence and draw inferences. This rarely works in

summary judgment where courts are not factfinders, cannot weigh evidence, and

must view inferences against the movant. ITT, 854 S.W.2d at 376, 378.

To make matters worse, Defendants disregard all SUMF denials, claiming

that Morphis's supporting affidavit contradicted his earlier deposition testimony.

Defendants correctly cite the rule (see Calvert v. Plenge, 351 S.W.3d 851, 855-

4 To briefly review these distinctions and their importance, "ultimate facts” and summaryjudgment "material facts” are equivalent concepts (all following emphasis ours):

• "Ultimate facts are those the jury must find to return a verdict for the

plaintiff.” R.M.A. by Appleberry v. Blue Springs R-IV Sch.

Dist., 568 S.W.3d 420, 425 (Mo. banc 2019).

• "A material fact in the context of summary judgment is one from

which the right to judgment flows.” Goerlitz v. City of Maryville,

333 S.W.3d 450, 453 (Mo. banc 2011).

• "[M]aterial facts are those ultimate facts that constitute the elements

of a cause of action or affirmative defense, sometimes referred to as

'elements facts.'” Custer v. Wal-Mart Stores East I, LP, 492

S.W.3d 212, 215 (Mo.App. 2016)(internal citation omitted).

By contrast, "evidentiary facts” generally play a subordinate persuasive role:

• "A proper verdict-directing instruction submits only the ultimate

facts, not evidentiary details.” Blanks v. Fluor Corp., 450 S.W.3d

308, 395 (Mo.App. 2014).

• "[T]he facts that must be pleaded are the ultimate facts, not

evidentiary facts.” R.M.A., 568 S.W.3d at 425.

• "Credible, believable, even uncontradicted proof of evidentiary facts

may not prove a contested issue of ultimate fact to the fact-finder's

satisfaction.” Black River Elec. Coop. v. People's Cmty. State

Bank, 466 S.W.3d 638, 640 (Mo.App. 2015).

See also Columbia Mut. Ins. Co. v. Heriford, 518 S.W.3d 234 (Mo.App. 2017), which

distinguished at length between any item of evidence playing "a primary role as a material

fact, where its mere existence is a fact from which the right to [summary] judgment flows,”

or only "a secondary, supporting role to that of a material fact—where its existence directly

or inferentially tends to prove or disprove a particular material fact . . . .” Id. at 240-44

(internal quotations and citation omitted).5

56 (Mo.App. 2011)), but overstretch it in three respects:

1. Defendants' brief specifies alleged contradictions to only

three of 115 SUMF denials (#66 (twice), #70, and #146).

2. Checking those three, we find "affirmative contradiction”

(Calvert, 351 S.W.3d at 856) only as to SUMF#146, which

Bass Pro's own interrogatory answers also contradict as

noted below.

3. Morphis did not rely solely on his affidavit for most denials,

but usually cited other record support too.

Defendants' blanket disregard for all SUMF denials cannot withstand any of these,

let alone all of them, which alone warrants a reversal on this claim.

In addition, as developed below, summary judgment fails even if we ignore

Morphis's affidavit completely.

Correctly noting that failure to prove any of fraudulent misrepresentation's

nine elements5 bars recovery, Defendants initially claim Morphis did not prove

five, but offer meaningful arguments only on two related elements: falsity and

representation.6

As to those, Defendants admit they led Morphis to believe they were still

considering a plan for him as late as 2009. They also claim those assertions were

true ("Burroughs and Morris made truthful statements about the possibility of a

plan . . . and did explore many plan options, while making these statements”) and

uncontrovertibly proven so. For example, they cite SUMF #49 as uncontroverted

proof that "until 2009, [Defendants] were still considering some plan that would

5 As set forth in Stevens v. Markirk Construction, Inc., 454 S.W.3d 875, 880 (Mo.

banc 2015), the nine elements of fraudulent misrepresentation are:

(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's

knowledge of its falsity or ignorance of its truth; (5) the speaker's intent

that it be acted on by the person in the manner reasonably contemplated;

(6) the hearer's ignorance of the representation's falsity; (7) the hearer's

reliance on the representation being true; (8) the hearer's right to rely

thereon; and (9) the hearer's consequent and proximately caused injury.

6 Defendants develop no "materiality” argument and thus abandon that assertion. Their

scant combined argument on the "reliance” and "damage” elements fails because (1) every

cited SUMF, except one, was denied; (2) Defendants suggest no reason to discredit those

denials; and (3) whether denied or not, the cited SUMFs are merely evidentiary,

addressing reliance or damage only by inference, but Morphis gets the benefit of

inferences on summary judgment. ITT, 854 S.W.2d at 376.6

have included [Morphis].” Similarly, they cite SUMF #50 as uncontroverted proof

that "[u]p to and including 2009, Morris had supported trying to create some sort

of plan that would have included [Morphis].”

Yet Morphis denied both of these "facts,” citing as support two Bass Pro

interrogatory answers:

• One interrogatory had asked whether Bass Pro ever meant

for Morphis to participate in either Hagale's solo plan or a

second plan Burroughs admittedly had discussed with

Morphis. Bass Pro answered that "it consulted with outside

counsel regarding developing a plan” for certain executive

management employees, but that incident to adopting

Hagale's plan, "John Morris made the decision that

employees other than Jim Hagle [sic] would not be allowed

to participate in such a plan. This decision was made in

2007.”

• The other interrogatory asked if Bass Pro made any efforts or

took any steps to establish any plan for Morphis. Bass Pro

answered that it considered adopting an executive incentive

plan "during 2005, 2006, and early 2007 .... However, no

further steps were taken to provide such a plan for Plaintiff.”

These sworn statements justify Morphis's denials even if we ignore his affidavit.

They likewise support Morphis's Rule 74.04(c)(2) assertions, confirmed by

Defendants per Rule 74.04(c)(3), that the following additional material facts

remained in dispute (cited record support omitted):

10. By early 2007 Bass Pro Group had abandoned all efforts

to provide the plan to Plaintiff and had made the decision that

Plaintiff would not be allowed to participate in any such plan.

11. In 2007 John Morris, owner of Bass Pro Group and

Tracker Marine, made the decision that only James Hagale

would be allowed to participate in a plan and that no other key

executive employees would be allowed to participate in a plan.

12. After early 2007 Bass Pro Group made no efforts and

took no further steps or actions to develop, implement or

provide the plan described, offered and promised to Plaintiff by

Ken Burroughs.

Defendants might explain their interrogatory answers to a jury's satisfaction

and prevail on these fact issues at a trial, but they preclude summary judgment on

this count. "It is proper to weigh competing evidence at a trial, but such is not the 7

case where the same question is presented in the context of a motion for summary

judgment.” Missouri Dist. Church of the Nazarene v. First Church of the

Nazarene of Caruthersville, 312 S.W.3d 428, 431 (Mo.App. 2010)(internal

quotation marks omitted).

Thus, even without Morphis's affidavit, Defendants' interrogatory answers

show that genuine factual disputes preclude summary judgment on Count XI as

Morphis asserted below and reasserts here as Point 15. We grant that point, which

moots Point 14's alternative challenge to judgment on the same count.

Protective Order (Point 17)

Point 17 challenges the 2018 protective order entered following our

Morphis I remand. As noted previously, at Morphis's request, the court made 40

pages of supporting findings and conclusions, but a succinct summary will suffice

given our standard of review.

After the May 2018 evidentiary hearing, the court found that:

• Morphis secretly recorded Defendants' employees four times

through May 2010 and gave the recordings to his counsel

before or at the outset of his lawsuit.

• Despite several relevant discovery requests, Morphis and his

counsel disclosed none of these recordings until, after

depositions, they produced an altered version of one

recording in support of their 2013 request to file a fourth

amended petition.

• Only after the (then-presiding) judge asked about other

recordings did Morphis produce the rest and eventually

admit that the recording he initially produced had been

altered.

The trial court then entered its July 2018 protective order which, as relevant

here, barred Morphis from directly or indirectly using or referring to any such

recording for any purpose, including cross-examination. The court's findings of

good cause for doing so included, but were not limited to, the following:

• Morphis and his counsel acted in bad faith by providing

incomplete and false discovery responses and by

intentionally withholding the recordings. This flagrant

violation of discovery rules was an affront to the purposes of

discovery. 8

• Morphis and his counsel utilized discovery to hide

responsive evidence and obfuscate the truth by answers and

responses can only be construed as intentionally false and

establish an intent to deceive.

• These intentionally incomplete, evasive, misleading, and

false discovery responses breached Morphis and his

counsel's Rule 56 obligations to disclose.

• The deceit of Morphis and his counsel did not stop with

simply providing false sworn discovery responses, but

showed a pattern of deceptive discovery practices intended

to deceive Defendants.

• Morphis's counsel did not apprise Defendants of the

existence of the recordings, let alone produce them, although

they were responsive to numerous discovery requests.

• The written discovery was done in different sets, over a

period of time, so the fraud continued over a period of years.

• In responding to three sets of interrogatories and two

production request that required disclosure of the

recordings, Morphis never mentioned them.

• Both Morphis and his counsel signed the answers to

interrogatories, and Morphis's counsel signed the responses

to the requests for production of documents.

• Further, Morphis's counsel supplemented discovery without

identifying the recordings.

• By withholding four recordings that contained Rule 56.01

statements and were requested through at least eleven

discovery requests, Plaintiff flagrantly violated the discovery

rules. He and his counsel intentionally concealed material

directly relevant and responsive to Defendants' discovery

requests, and discovery that is required to be produced

under the Missouri Rules of Civil Procedure.

• This contemptuous behavior and pattern of deceit continued

over a period of years by numerous fraudulent acts to

conceal the existence of the recordings so Morphis could

benefit by the non-disclosure and Defendants would be

prejudiced.

• Morphis and his counsel should not be rewarded by their

deceptive behavior.9

• The conduct of Morphis and his counsel offends the purpose

of discovery – to eliminate concealment and surprise in the

trial of lawsuits. Justice requires that Morphis and his

counsel not be permitted to gain a tactical advantage from

such abuses.

• Allowing Morphis to use the purposely withheld, altered

recordings would be a miscarriage of justice to Defendants'

prejudice.

The hearing record supports the trial court's findings. As Morphis admits,

we review for abuse of discretion, reversing only if the order was so arbitrary,

unreasonable, illogical, and ill-considered as to shock the sense of justice. See

Ferguson v. Strutton, 302 S.W.3d 239, 243 (Mo.App. 2009). We cannot so

find. Point denied.7

We affirm the judgment in all respects except as to Count XI, fraudulent

misrepresentation. As to Count XI only, we reverse and remand for further

proceedings consistent with this opinion.