v. Hughes

Filing 153

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff St. Louis Produce Market's motion for summary judgment 133 is GRANTED. IT IS FURTHER ORDERED that Plaintiff St. Louis Produce Market's amended motion for sanctions 137 is GRANTED. Defendant Clarence Hughes' pleadings are hereby stricken in this matter. IT IS FURTHER ORDERED that Defendant Hughes' motion for summary judgment 139 is DENIED.. Signed by District Judge Rodney W. Sippel on 9/25/12. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ST. LOUIS PRODUCE MARKET,
Plaintiff,
vs.
CLARENCE HUGHES,
Defendant.

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Case No. 4:09CV1912 RWS

MEMORANDUM AND ORDER
This case is about a dispute over an employment separation agreement.
Defendant Clarence Hughes was employed as the property manager of Plaintiff St.
Louis Produce Market. Hughes’ job was eliminated. The Produce Market drafted
and gave Hughes a proposed agreement stating the terms of Hughes’ separation of
employment from the Produce Market which included fourteen weeks of
severance pay. Hughes altered the agreement by, among other changes, increasing
the amount of severance he would receive by 104 weeks. Hughes presented the
altered agreement to the Produce Market’s president for his signature. Hughes did
not inform the president that Hughes made any changes to the agreement. The
president signed the agreement believing it contained the terms originally
proposed by the Produce Market. A few hours later, the president discovered that
Hughes had changed the terms of the agreement. Despite the Produce Market’s

request to void the agreement, Hughes responded that he intended to enforce the
agreement as signed. The Produce Market filed this lawsuit seeking a declaration
that the agreement is unenforceable because it was procured through a fraudulent
and/or negligent misrepresentation by Hughes. In response Hughes has filed a
counterclaim seeking to enforce the altered agreement.
Both parties have moved for summary judgment. Because it is undisputed
that Hughes has not fulfilled his obligations under the signed agreement I will
grant the Produce Market’s motion. In the alternative, I will grant the Produce
Market’s motion for sanctions based on Hughes’ egregious discovery abuses.
Hughes pleadings in this matter will be stricken and judgment will be entered in
favor of the Produce Market.

Legal Standard
Summary judgment is appropriate if the evidence, viewed in the light most
favorable to the nonmoving party, demonstrates that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of
law. Lynn v. Deaconess Medical Center, 160 F.3d 484, 486 (8th Cir. 1998)(citing
Fed. R. Civ. P. 56(c)). The party seeking summary judgment bears the initial
responsibility of informing the court of the basis of its motion and identifying
those portions of the affidavits, pleadings, depositions, answers to interrogatories,
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and admissions on file which it believes demonstrates the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When
such a motion is made and supported by the movant, the nonmoving party may not
rest on his pleadings but must produce sufficient evidence to support the existence
of the essential elements of his case on which he bears the burden of proof. Id. at
324. In resisting a properly supported motion for summary judgment, the plaintiff
has an affirmative burden to designate specific facts creating a triable controversy.
Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1113 (8th Cir. 2004).

Background
The St. Louis Produce Market is a wholesale produce market in St. Louis,
Missouri. Defendant Hughes was employed for 19 years as the property manager
for the Produce Market. His responsibilities included the daily management of all
the building services for the tenants of the Produce Market.
Hughes reported to the president of the Produce Market, Bruce Rubin, and
its Board of Directors. Hughes’ position was eliminated and his employment was
terminated on August 27, 2009. At the time of his termination, the Produce
Market paid Hughes four weeks of severance pay.
On September 14, 2009, Hughes asked the Produce Market to draft a
separation agreement providing six months (twenty-six weeks) of separation pay
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in exchange for a comprehensive mutual release of any potential claims that
parties may have had against each other. Counsel for the Produce Market drafted
a separation agreement that provided fourteen weeks of separation pay in addition
to the four weeks pay that Hughes had already received (for a total of eighteen
weeks separation pay) at Hughes’ pay rate of $1,750 per week. The draft
agreement was sent to Hughes on October 2, 2009. Among other conditions, the
agreement stated that the payment of the additional separation pay was contingent
upon Hughes returning all of the Produce Market’s property. The draft agreement
contained a signature page for Bruce Rubin and a separate signature page for
Hughes. Both signature pages had a notary public signature block.
On October 6, 2009, Hughes’ counsel at that time, Christopher Rausch,
requested counsel for the Produce Market to email him a Microsoft Word format
copy of the separation agreement for his “review, comment, and proposed changes
thereto.” Counsel for the Produce Market sent Rausch a Word copy of the
agreement by email the same day. Counsel’s email informed Hughes’ counsel that
any proposed changes to the legal terms and conditions should be directed to
counsel for the Produce Market for review. The email further required that any
proposed changes in the economic terms should be negotiated between Hughes
and Rubin.
Hughes discussed revisions of the agreement with his new counsel,
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Christopher Swiecicki. On October 16, 2009, Swiecicki emailed a revised
agreement to Hughes stating:
As per our telephone conversation of earlier today I have
revised the agreement. It is my understanding that it is your desire to
directly communicate this offer to your former employer as per the
directions provided to you by your former employer’s counsel.
(Doc. # 135, Pl.’s Statement of Uncontroverted Facts, Ex. I)
Swiecicki, had altered several provisions of the agreement. (Id. Ex.
E. at pp 169-170) These revisions included an obligation for the Produce
Market to pay Hughes a lump sum of $208,000 (equal to 104 weeks of pay
at the rate of $2,000 per week) in addition to the eighteen weeks of
severance payment offered in the original agreement.1 Swiecicki had also
altered the release terms from a unilateral release to a mutual release.
Swiecicki provided the revised agreement to Hughes. Hughes made a final
change on the document by deleting the notary public signature block under
the section designated for Rubin’s signature. (Id.)
Although these material changes were made to the original
agreement, and despite the Produce Market counsel’s request to be informed
of proposed changes to the legal terms and conditions, neither Hughes nor
his counsel informed the Produce Market’s counsel of the proposed

1

This additional $208,000 was to be paid in January 2010.
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changes. Instead, on October 22, 2009, Hughes appeared at the Produce
Market and went to Rubin’s office with two copies of Hughes’ altered
version of the agreement. Hughes had already signed the agreement and
had his signature notarized. Hughes presented two copies of the altered
agreement to Rubin and did not tell him that any changes were made to the
document. Rubin testified at his deposition that he asked Hughes whether
any changes had been made to the Produce Market’s original proposed
separation agreement and Hughes responded that there had not been any
changes. (Id. Ex. F. at pp 50-51)2
Based on this representation, and based on Rubin’s trust of Hughes
given his long term relationship with the Produce Market, Rubin signed
both copies of the revised agreement without reading it. He did not notice
that the notary signature block under his name had been removed by
Hughes. Hughes then immediately left Rubin’s office with one copy of the
document, leaving the other copy with Rubin. After Hughes left, Rubin
took his copy of the revised agreement to the office of another board
member, Joan Dalco. She read the agreement and realized it had been

2

In his brief in opposition to the Produce Market’s motion for summary judgment,
Hughes denies that he ever indicated to Rubin that there were no changes to the original
agreement. But, Hughes concedes, for purposes of the Produce Market’s motion for summary
judgment, that Rubin’s version of events is accurate. (Def.’s Mem. in Opp’n at 3)
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changed. Later that afternoon, the Produce Market’s counsel sent an email
to Hughes’ former counsel Rausch (apparently not knowing he was no
longer representing Hughes), asserting that Hughes fraudulently procured
Rubin’s signature on the altered agreement. (Id. Ex. A/F) The email stated
that if the issue wasn’t resolved by the next day, the Produce Market would
file a lawsuit for a declaratory judgment that the altered agreement was
void. Hughes refused to void the agreement.
On October 27, 2009, the Produce Market filed this lawsuit in the
Circuit Court for the City of St. Louis, Missouri. Hughes removed the case
to this Court. The Produce Market’s complaint asserts that Rubin’s
signature on the altered separation agreement was procured by the negligent
or fraudulent conduct of Hughes. The Produce Market seeks a declaratory
judgment that agreement is void. Hughes filed a counterclaim for breach of
contract. His position throughout this litigation is that the agreement is
valid despite the method Hughes used to secure Rubin’s signature.
The laptop
The signed agreement contained a condition precedent which must be
met before Hughes was entitled to any severance payment. That condition
precedent required Hughes to return all of the Produce Market’s “Companyowned property.” During his employment, Hughes was provided a laptop
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computer owned by the Produce Market. From the beginning of this lawsuit
the Produce Market asserted that Hughes never returned the laptop.
Hughes’ failure to return the laptop would render the Produce Market’s
obligations under the separation agreement unenforceable.
Throughout the course of this litigation multiple discovery hearings
were held at which the issue of the existence and location of the laptop was
raised. Hughes asserted that he did not know where the laptop was and that
he could not recall but that he may have returned it to the Produce Market
within a few days of his termination. The evidence uncovered as this
litigation progressed indicated that Hughes did not return the laptop and that
he knew what happened to it.
The Produce Market asserts that the laptop was never returned.
One of the Produce Market’s core discovery requests was to identify
the computer on which Hughes made alterations to the separation agreement
and on which Hughes stored emails relevant to this lawsuit. Hughes’
position throughout discovery was that he only computer he had access to
was his home computer and to his niece’s laptop computer. Forensic
examinations of the home computer and the niece’s laptop were conducted.
Neither Hughes’ home computer nor his niece’s laptop computer contained
the electronically stored information sought by the Produce Market’s
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discovery requests. Hughes remained steadfast in his position that he did
not have access to any other computer.
Valerie Hughes, Hughes’ former wife, testified at her deposition that
Hughes was using a laptop at home during the course of this litigation and
that she did not recall Hughes having ever purchased a laptop. (Id. Ex. R at
pp. 16-17) As a result, the Produce Market renewed its request for Hughes
to produce the Produce Market’s laptop.
While the search for the laptop continued, the Produce Market
discovered a material witness whom Hughes did not identify in either his
Rule 26 disclosures or in his other discovery responses. This witness was
Hughes’ paramour, Janet Taft. Hughes visited Taft in Boston in September
and November 2009, in the months immediately after Hughes was
terminated. (Id. Ex. O at pp. 14 and 60) Taft provided information about a
laptop which Hughes used during his trips to see her in Boston. She
testified at her deposition that Hughes had a laptop that matched the
description of the Produce Market’s laptop. She also testified that Hughes
told her that he and Rubin were “on very good terms and Mr. Rubin trusted
him because they worked together for so long ...” (Id. at p. 27) Hughes told
Taft that Rubin trusted him and would not read the altered agreement when
Hughes presented it and that Hughes was hoping to secure Rubin’s
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signature. (Id. at 39) Hughes discussed his meeting with Rubin the day the
altered agreement was signed. Hughes told Taft, “I went in there and started
schmoozing and talking, and I was hoping to get [Rubin’s] mind off
everything.” Taft testified that Hughes was elated and could not believe
that he got Rubin to sign the altered agreement. (Id. at 78-79)
After multiple discovery hearings it became evident that Hughes had
not returned the laptop to the Produce Market. During the last two
discovery hearings on October 13, 2011 and November 9, 2011, I expressed
my concern that the Produce Market’s laptop still had not been produced.
Given the cumulative deposition testimony by Hughes’ ex-wife and his
paramour, it was clear that Hughes was using the laptop during the course of
this litigation. It was also clear that the laptop contained relevant
information regarding Hughes’ email and the revisions to the separation
agreement. I stated at the November 9, 2011 hearing that the laptop should
be located at all costs.
Miraculously, the day after the November 9, 2011 hearing, despite
two years of demands to produce the laptop, Hughes managed to locate the
laptop. He asserts that on November 10, 2011, he went to the house of a
former employee of the Produce Market. The former employee was not
home. As Hughes walked around the former employee’s residence he
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“encountered a neighbor.” He told the neighbor he was looking for the
Produce Market’s laptop and was willing to pay $150.00 for its recovery.
Two days later, Hughes returned to the former employee’s residence. Again
the former employee was not home. However, the neighbor produced the
Produce Market’s laptop and Hughes paid him $150.00. (Id. Ex. T) Hughes
delivered the laptop to the a computer services specialist chosen by the
parties, IVIZE Services, on December 12, 2011. The laptop had been
extensively damaged3 and was missing its hard drive, battery and powerchord. (Id. Ex. U at pp. 56-62) None of these components have been
recovered.
Discovery abuses regarding the production of documents
In his December 16, 2010 deposition testimony, Hughes waived all
claims of privilege and stated that he had instructed his counsel not to
withhold any documents in this case. Despite the waiver of all claims of
privilege, Hughes and his counsel failed to turn over documents that were
responsive to multiple Produce Market’s document requests.
On September 21, 2010, a hearing on one of the Produce Market’s
motions for contempt and sanctions was held. Hughes’ counsel represented

3

The laptop was extensively damaged, the screen was damaged and broken and some
keys were missing. Hughes testified that “It looked like somebody had just used it for target
practice ...” (Id. Ex. U at pp. 47-62)
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to me at that hearing that no documents have been withheld on the basis of
privilege and, as a result, no privilege logs were prepared. Subsequently, it
became clear to the Produce Market that responsive documents existed
which were not being produced. Contrary to what he told me at the hearing
on September 21, 2010, Hughes’ counsel, Christopher Swiecicki, testified at
his deposition on December 16, 2010, that he had documents regarding the
case that he did not produce and that he was asserting the attorney-client
privilege and refusing to produce the documents. Swiecicki also refused to
produce a privilege log as required by the Fed. R. Civ. P 26(b)(5). (Doc. #
75, Ex. D at pp. 10-12) Similarly, Hughes’s former counsel, Christopher
Rausch, also testified at his deposition on December 16, 2010, that he was
withholding responsive documents and that he too was refusing to produce
a privilege log as required by Rule 26. (Doc. # 75, Ex. T at pp. 29-31)4
At a hearing on March 2, 2011, I ordered Hughes’ counsel to produce
complete privilege logs. On May 5, 2011, I issued an order which found
that Hughes had waived the attorney-client privilege as to any documents
which would be responsive to the Produce Market’s document requests. I

4

Indicative of his gamesmanship in this case, at a hearing on March 2, 2011, I asked Mr
Swiecicki why Mr. Rausch had not produced a privilege log. Mr Swiecicki told me, “You’ll
have to ask Mr. Rausch.” I reminded Mr. Swiecicki, that as counsel of record in this case, it was
his obligation and responsibility to provide privilege logs for all responsive documents which
were withheld from production. (Doc. # 93 pp. 24-26)
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ordered Hughes’ counsel to produce any withheld responsive documents.
Hughes’ counsel produced some but not all of the responsive documents.
On October 13, 2011, I held yet another hearing regarding, among other
issues, another motion filed by the Produce Market for contempt and
sanctions for Hughes’ counsel’s failure to provide complete privilege logs.
I again ordered Hughes’ counsel to produce a privilege log of all documents
counsel had withheld in the case and to produce all of the documents the
Produce Market requested.
On April 12, 2012, I held the final sanctions hearing in this matter.
The Produce Market presented evidence that approximately 450 documents
were still not produced by Hughes’ counsel and that Hughes had not fully
complied with my previous orders for a complete production of documents.
At the close of discovery, the Produce market moved for summary
judgment. It seeks a judgment that the signed separation agreement is
unenforceable because Hughes failed to return the laptop (with its hard
drive). In addition, it seeks summary judgment that the agreement is void
because it was fraudulently induced. The Produce Market also moves to
strike Hughes’ pleadings based on his abuse of the discovery process in this
matter. Hughes has filed a summary judgment seeking enforcement of the
agreement.
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Analysis
Failure of a condition precedent
It is undisputed that Hughes’ ability to enforce any of the Produce
Market’s obligations under the separation agreement is contingent upon
Hughes returning all of the Produce Market’s “Company-owned property.”
This case was filed on November 20, 2009. On December 12, 2011, after
two years of litigation, Hughes finally returned pieces of the Produce
Market’s laptop. I need not decide whether this belated return of property
satisfies the condition precedent clause of the agreement5. Nor do I need to
decide whether a laptop can be considered a laptop if it is returned in an
unusable, extensively damaged, condition and missing key components
including its hard drive.6 The undisputed fact is that Hughes did not return
to the Produce Market “all Company-owned property.”
Because Hughes did not return all of the Produce Market’s property
as required as a condition precedent under the agreement, I find that the
signed altered separation agreement is unenforceable by Hughes.

5

Although, if I were to address that question, I would find that all of the Produce
Market’s property had to be returned within a reasonable time period and that Hughes’ belated
return of parts of a laptop did not meet that requirement.
6

Hughes received a functioning laptop with a hard drive, battery, and power chord.
Hughes returned a severely damaged laptop which was missing these items. Hughes, in effect,
did not return the laptop, he returned parts of a laptop.
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Fraudulent inducement
The Produce Market also seeks a judgment that the altered agreement
is void because Hughes fraudulently induced Rubin to sign the agreement.
The elements which must be established to prevail on a fraudulent
inducement claim under Missouri law are: (1) a representation was made;
(2) that is false; (3) that is material; (4) that the speaker knows is false; (5)
the speaker’s intent that it be acted upon; (6) the hearer’s ignorance of
falsity of the representation; (7) the hearer’s reliance on the representation;
(8) the hearer’s right to rely on the representation; and (9) injury to the
hearer based on the reliance on the representation. State ex rel.
PaineWebber, Inc. v. Voorhees, 891 S.W.2d 126, 128 (Mo. 1995).
That most of these elements have been established in this case is not
in dispute. Despite the Produce Market’s counsel’s request that all legal
changes to the document be submitted to him for review, Hughes’ counsel
did not comply with that request. Instead, Hughes and his counsel altered
the agreement without telling the Produce Market. For purposes of this
summary judgment motion, Hughes concedes that he falsely told Rubin that
no changes had been made to the Produce Market’s original separation
agreement proposal. However, as the evidence clearly indicates, Hughes,
with the help of his attorney, made drastic material changes to the document
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that increased his severance payment by $208,000. Hughes and his counsel
do not dispute the facts that they materially changed the document and
misinformed Rubin about the changes in the hope that he would sign the
altered document without reading it.
The Produce Market has submitted undisputed facts which establish
all of the elements of fraudulent inducement except element (8) the hearer’s
(Rubin’s) right to rely on the representation. Although evidence has been
submitted that Rubin trusted Hughes based on his long-term employment
with the Produce Market, I cannot rule as a matter of law that Rubin had a
right to rely on Hughes’ false representation. The parties were not in a
traditional position of trust such as a master-servant relationship or a
fiduciary relationship. At the time the altered severance agreement was
signed Hughes no longer worked for the Produce Market. Whether Rubin
had a right to rely on Hughes’ representations is a question of fact which
must be resolved by a jury.
As a result, summary judgment would be inappropriate on the
Produce Market’s fraudulent inducement claim.
The Produce Market’s motion for contempt and for sanctions
The Produce Market has filed a motion for contempt and for
sanctions and seeks an order which strikes Hughes’ pleadings. The Produce
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Market asserts that Hughes’s actions in deliberately destroying material
documents and abusing the discovery process warrants such a sanction.
On April 12, 2012, a hearing of the motion was held. The Produce
Market has presented substantial evidence that Hughes has deliberately
prevented the discovery of relevant, nonprivileged information throughout
this litigation.
It is undisputed that Hughes destroyed his relevant cellular phone
records after, and despite of, being informed by his attorney of a litigation
hold on all his documents. It is also undisputed that Hughes failed to
disclose, as required under Fed. R. of Civ. P. 26(a)(1), the identity of Ms.
Janet Taft as an individual likely to have discoverable information. The
Produce Market was able to identify Ms. Taft only through its own
investigation into Hughes’ reproduced phone records received from third
parties. Ms. Taft provided material evidence regarding Hughes’ possession
of the Produce Market’s laptop and of Hughes plan to get Rubin to sign the
altered separation agreement without reading it.
The undisputed evidence also shows that, despite Hughes’ knowledge
of a litigation hold on documents, Hughes intentionally deleted relevant and
material emails from his AOL account. These emails were never recovered.
Hughes contends that AOL deleted these emails. However, the only
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evidence submitted on this issue is that AOL does not delete its customer’s
emails. These lost emails would likely have supported the Produce
Market’s theory that Hughes intended to fraudulently induce Rubin to sign
the altered separation agreement.
The whereabouts of the Produce Market’s laptop is one of the most
egregious discovery abuses perpetrated by Hughes. Throughout two years
of this litigation he denied having the laptop after he was terminated. Yet
the undisputed evidence indicates that he never returned the laptop and
knew where it was during this litigation. The laptop’s hard drive would
likely have contained key information the Produce Market sought in
discovery, that is, the revisions to the separation agreement and relevant
emails. When pressured to finally produce the laptop, Hughes turned it over
with an incredible story of how he found it. Moreover, the essential
component of the laptop, the hard drive, the part which would contain the
information sought in discovery, was missing and never recovered.
Hughes has also abused the discovery process in failing to timely
produce documents in this matter. I find that Hughes has failed to comply
with my orders regarding privilege logs and the production of documents in
his and his attorney’s possession. Hughes’ counsel’s contradictory
representations to me regarding whether documents have been withheld
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based on any privilege, his failure to provide complete privilege logs as
ordered, and his failure to make a timely and complete responsive document
production lead me to conclude that Hughes has intentionally obstructed
document discovery in this matter. Hughes’ discovery abuses have cause
considerable delay in completing discovery in this matter.
I have already sanctioned Hughes on March 3, 2011 for failing to
comply with discovery requests and for failing to comply with my orders
relating to discovery. Hughes’ discovery abuses continued after that date
through his refusal to follow my orders requiring him to produce responsive
documents. Hughes’ belated recovery of the laptop indicates that he knew
its location since the beginning of this litigation.
I have carefully reviewed Hughes’ conduct in discovery throughout
this litigation. Based on Hughes’ deliberate and willful discovery abuses I
find that an appropriate sanction is the striking of his pleadings under Fed
R. Civ. P. 37(b)(2). As a result, summary judgment will be entered for the
Produce Market on the alternative ground that Hughes’ pleadings have been
stricken in this case.
Conclusion
The circumstances of this case are troubling. The Produce Market
offered a severance agreement to Hughes. The Produce Market, knowing
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that Hughes was represented by counsel, requested that any legal alterations
to the agreement be submitted to the Produce Market’s counsel for further
review. Alterations to the economic terms were left to negotiations between
Hughes and the president of the Produce Market, Mr. Rubin. Hughes and
his counsel decided not to follow this normal course of contract negotiation.
Instead, to use the vernacular, they tried to pull a fast one. They materially
and substantially altered the agreement and obtained Rubin’s signature by
deceit. When called upon to retract the altered agreement Hughes and his
counsel blamed the Produce Market for being so gullible as to trust Hughes.
Throughout this litigation Hughes and his counsel have impermissibly
evaded the discovery process. Hughes’s counsel’s tone in many of his
filings in this case have been taunting and unprofessional.7 Hughes and his
counsel also flaunted their obligation to preserve and produce documents
and to produce privilege logs. The actions of Hughes and his counsel have
been egregious and fraught with duplicity.

7

As examples; in a baseless motion for sanctions filed by Hughes against the Produce
Market, Hughes’ counsel wrote, “Unfortunately, for Polsinelli [the Produce Market’s counsel’s
firm] ‘if you are going to throw stones don’t live in a glass house.’” (Doc. # 61at p.1 n.1).
Hughes counsel stated in the footnote that the only reason he filed the motion for sanctions was
as a form of payback for statements made by the Produce Market’s counsel which were unrelated
to the motion for sanctions. Similarly, in his response to the Produce Market’s motion for
summary judgment, Hughes’ counsel states, “However, Christmas comes early for Mr. Hughes”
as somehow a justification for the deceit employed by Hughes in obtaining Rubin’s signature on
the altered separation agreement. (Doc. # 146 at p. 6)
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Accordingly,
IT IS HEREBY ORDERED that Plaintiff St. Louis Produce
Market’s motion for summary judgment [#133] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff St. Louis Produce
Market’s amended motion for sanctions [#137] is GRANTED. Defendant
Clarence Hughes’ pleadings are hereby stricken in this mater.
IT IS FURTHER ORDERED that Defendant Hughes’ motion for
summary judgment [#139] is DENIED.

________________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 25th day of September, 2012.

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