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Date: 03-14-2021
Case Style:
TOMMY MORPHIS vs. BASS PRO GROUP, LLC, TRACKER MARINE, LLC and KEN BURROUGHS
Case Number: SD36307
Judge: Daniel E. Scott
Court: Missouri Court of Appeals Southern District
Plaintiff's Attorney:
Defendant's Attorney:
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Description:
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
Outcome: 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.
Plaintiff's Experts:
Defendant's Experts:
Comments: