Morphis v. Bass Pro Grp., LLC

• Decision Date: 03 March 2021
• Docket Number: No. SD 36307,SD 36307
• Citation: 622 S.W.3d 188
• Parties: Tommy MORPHIS, Appellant, v. BASS PRO GROUP, LLC, Tracker Marine, LLC, and Ken Burroughs, Respondents.
• Court: Missouri Court of Appeals

622 S.W.3d 188

Tommy MORPHIS, Appellant,

v.BASS PRO GROUP, LLC, Tracker Marine, LLC, and Ken Burroughs, Respondents.

No. SD 36307

Missouri Court of Appeals, Southern District, Division One.

Filed: March 3, 2021

Motion for Rehearing and/or Application for Transfer Denied March 25, 2021

Application for Transfer Denied June 1, 2021

Appellant's Attorney – Steven E. Marsh of Springfield, MO.

Respondents’ Attorney – Charles E. Reis, IV, Ashley A. Diaz, Lillian T. Manning of St. Louis, MO.

DANIEL E. SCOTT, SENIOR JUDGE

Tommy Morphis sued Bass Pro Group, Tracker Marine, and Ken Burroughs (collectively "Defendants") alleging they failed in a promise to create an incentive plan to increase Morphis's compensation by $400,000 per year for three years.¹ After Defendants won summary judgment on 10 of 11 counts, Morphis dismissed his surviving count and brought this 21-point appeal.

Our review is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993). Viewing the record most favorably to the non-movant Morphis ( id. ) and according him the benefit of every doubt ( Seaton v. Shelter Mut. Ins. Co. , 574 S.W.3d 245, 246-47 (Mo. banc 2019) ), we affirm in part, reverse in part, and remand.

Background

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 negligent-misrepresentation Count III. Morphis then voluntarily dismissed Count III, the court entered a final judgment for Defendants, and Morphis brought this appeal.

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 contract-based counts, so they also fail.

Fraudulent Misrepresentation (Point 15)

By contrast, Morphis's challenge to summary judgment on his fraudulent-misrepresentation 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, 855-56 (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 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 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...