PRENTIS BOLES v. UNION PACIFIC RAILROAD COMPANY (2024)

ORDER

Prentis Boles appeals the circuit court's grant of summary judgment in favor of Union Pacific Railroad Company (“Union Pacific”) on his petition for damages under the Federal Employers’ Liability Act (“FELA”). Upon review of the briefs, we find no error and affirm the judgment. We have provided the parties with a Memorandum explaining the reasons for our decision, because a published opinion would have no precedential value.

AFFIRMED. Rule 84.16(b)

MISSOURI COURT OF APPEALS

WESTERN DISTRICT

PRENTIS E. BOLES, Appellant,

v.

UNION PACIFIC RAILROAD COMPANY, Respondent.

WD86638

Filed: December 24, 2024

MEMORANDUM SUPPLEMENTING ORDER AFFIRMING JUDGMENT PURSUANT TO RULE 84.16(B)

This memorandum is for the information of the parties and sets forth the reasons for the order affirming the judgment.

PLEASE NOTE: This unpublished Memorandum does not constitute a formal opinion of the Court. It has no precedential value and should not be cited in unrelated cases. See Rule 84.16(b). A copy of this memorandum must be attached to any motion for rehearing or to transfer the case to the Missouri Supreme Court.

Prentis Boles appeals the circuit court's grant of summary judgment in favor of Union Pacific Railroad Company (“Union Pacific”) on his petition for damages under the Federal Employers’ Liability Act (“FELA”). Boles contends the court erred in entering summary judgment because genuine issues of material fact remain; counsel for Union Pacific was not licensed to practice law in Missouri; he did not receive notice of the motion for summary judgment or notice of the court's extension of time for him to respond to the motion; the court did not review his entire deposition; and the court considered improper affidavits. For reasons explained herein, we affirm.

Factual and Procedural History

In March 2022, Boles, then represented by counsel, filed a petition for damages under FELA, 45 U.S.C. §§ 51-60, against Union Pacific. A year later, he filed an amended petition for damages. In his amended petition, Boles alleged he was employed by Union Pacific as a relief utility clerk and was injured at work while driving a company vehicle through the rail yard on March 11, 2019. Union Pacific filed an answer denying the allegations and raising several affirmative defenses.

The circuit court entered a scheduling order setting trial for October 16, 2023, and a pretrial conference for October 5, 2023. Boles's expert disclosures were due on April 21, 2023, and he disclosed his treating physicians. Union Pacific disclosed its medical expert, a board-certified orthopedic surgeon. Boles did not depose Union Pacific's medical expert. On July 7, 2023, Boles's counsel filed a motion for leave to withdraw. The circuit court granted the motion on the same day. Discovery closed on July 21, 2023, and dispositive motions were due on or before August 4, 2023.

Union Pacific filed a motion for summary judgment on August 4, 2023. Boles did not respond to Union Pacific's summary judgment motion within 30 days as required by Rule 74.04(c)(2). Because Boles was pro se, the court sua sponte granted an additional 30 days to Boles to respond after the expiration of the initial 30 days. Boles did not respond.

Pursuant to the scheduling order, Union Pacific filed witness and exhibit lists, motions in limine, proposed jury instructions, and a trial brief in anticipation of the October 5, 2023 pretrial conference. Boles did not file any documents under the scheduling order. Instead, at 5:00 p.m. on October 4, 2023, Boles filed motions to strike the affidavits of Union Pacific's medical expert and Boles's supervisor at Union Pacific, which Union Pacific had cited to support the summary judgment motion; a motion to strike Union Pacific, its counsel, or agents “from [the] 16th Circuit Court of Jackson County, Missouri, at Independence”; and suggestions in opposition to Union Pacific's summary judgment motion. Boles did not file a response admitting or denying each of the facts set out in Union Pacific's statement of uncontroverted facts.

At the start of the pretrial conference, the court informed the parties it had granted Union Pacific's summary judgment motion earlier that day, after receiving no response to the motion from Boles. The court did not consider Boles's motions or suggestions in opposition to the summary judgment because it did not receive them prior to entering the judgment. Boles argued to the court that he never received Union Pacific's summary judgment motion because the zip code in the certificate of service was incorrect. In response, Union Pacific's counsel advised the court that Boles called her office on September 1, 2023, and said he was “calling in response to a motion that he received that we had filed.” The only motion Union Pacific had filed was the motion for summary judgment. Boles admitted Union Pacific's counsel told him during that September 1, 2023 conversation that there was a summary judgment motion on file and that “he needed to respond to that motion,” but he insisted he “did not see a summary judgment on file.” Also during that phone conversation, Union Pacific's counsel offered to email any documents, including the summary judgment motion, to Boles, but Boles told her he “did not do email.” The court determined Boles received notice of the summary judgment motion and failed to respond.

In its judgment, the court found Union Pacific's summary judgment motion to be unopposed and, therefore, all facts alleged in the motion were deemed admitted. Based on those facts, the court found Boles could not establish that Union Pacific breached its duty to provide a reasonably safe environment as required under FELA. The court found Boles provided no evidence to show where, when, or how the injury occurred, the road conditions at the time of the alleged incident, or the vehicle he was driving at the time of the alleged incident. Additionally, the court found Boles did not produce any medical evidence that he suffered an injury on March 11, 2019, that was proximately caused by Union Pacific's negligence, or that he suffers from a current, diagnosable, and permanent physical restriction resulting from his alleged injury. Based on these findings, the court determined Union Pacific was entitled to judgment as a matter of law. Boles appeals.

Boles’s Brief Violates Rule 84.04

Boles's original appellant's brief was struck for multiple Rule 84.04 violations. His amended appellant's brief also contains several violations. In particular, his statement of facts is incomprehensible, full of argument, and does not contain specific references to the record, all in violation of Rule 84.04(c); several of his points relied on are multifarious and none of them comply with Rule 84.04(d)’s requirements; and he fails to provide argument under each point relied on as required by Rule 84.04(e). While he includes a “Statement of Argument” section after setting out his seven points relied on, that section does not address the issues raised in each point with relevant authority or argument beyond conclusory statements. Therefore, his points are deemed abandoned. Summers v. Dep't of Corr., Emp'r, & Div. of Emp't Sec., 689 S.W.3d 573, 576-77 (Mo. App. 2024).

We recognize Boles is appearing pro se. Nevertheless, he is subject to the same procedural rules as parties represented by counsel. Hoover v. Hoover, 581 S.W.3d 638, 640 (Mo. App. 2019). Compliance with Rule 84.04 is mandatory; the failure to comply preserves nothing for appellate review and warrants dismissal. Quincy Clark Entm't, LLC v. Liquor Control, 677 S.W.3d 610, 612 (Mo. App. 2023). Because we prefer to decide cases on their merits, we have discretion to review noncompliant briefs when “we can ascertain the gist of an appellant's arguments.” Id. (citation omitted). Therefore, to the extent we are able to discern the issues raised in Boles's points relied on, we will address them and decide this case on its merits. See id.

Analysis

In Point I, Boles contends the circuit court erred in entering judgment in favor of Union Pacific because genuine issues of fact remain on his FELA claim. Appellate review of summary judgment is essentially de novo. Green v. Fotoohighiam, 606 S.W.3d 113, 115 (Mo. banc 2020). Summary judgment is appropriate when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Rule 74.04(c)(6). Where, as in this case, the movant is the defendant, the movant establishes the right to judgment as a matter of law by showing one of the following:

(1) facts negating any one of the claimant's elements necessary for judgment; (2) that the claimant, after an adequate period of discovery, has not been able to—and will not be able to—produce evidence sufficient to allow the trier of fact to find the existence of one of the claimant's elements; or (3) facts necessary to support [its] properly pleaded affirmative defense.

Roberts v. BJC Health Sys., 391 S.W.3d 433, 437 (Mo. banc 2013). In determining whether the movant has met this burden, we review the summary judgment record in the light most favorable to the party against whom judgment was entered and accord that party the benefit of all reasonable inferences. Green, 606 S.W.3d at 116.

In his amended petition, Boles asserted a claim for direct negligence under FELA, 45 U.S.C. § 51. This statute provides, in pertinent part:

Every common carrier by railroad while engaging in commerce ․ shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ․ for such injury ․ resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, ․ or other equipment.

45 U.S.C. § 51. Boles alleged he suffered injuries on March 11, 2019, when Union Pacific required him to drive a company vehicle through its Neff Yard. Specifically, he alleged Union Pacific failed to provide him with a reasonably safe workplace and equipment because “Neff Yard was full of potholes, uneven terrain, and non-maintained railroad tracks,” and the vehicle he was operating “was in a state of disrepair with worn suspension system, shocks and struts.” Boles asserted that, as a result of the March 11, 2019 incident, he suffered injuries to his spine, back, and neck, resulting in permanent physical impairment, loss of earnings, diminished earning capacity, past and future medical expenses, and other damages.

“FELA cases adjudicated in state courts are subject to state procedural rules, but the substantive law governing them is federal.” Ackman v. Union Pac. R.R. Co., 556 S.W.3d 80, 85 (Mo. App. 2018). To recover under FELA, a plaintiff must prove: “(1) the employer had a duty to provide him with a reasonably safe place to work; (2) the employer breached its duty of care; (3) this lack of due care played some part in causing the plaintiff's injury; and (4) the plaintiff's injury was reasonably foreseeable.” Id.

In its judgment, the court found Union Pacific's statement of uncontroverted facts established that Boles would be unable to prove elements (2) and (3). We agree. The uncontroverted facts concerning Union Pacific's alleged breach of its duty of care are that, on March 11, 2019, Boles was driving a vehicle in daylight hours through a rail yard that he had worked in since 1998 but could not remember the moment he was injured, the specific event that caused his injury, or where in the rail yard the incident occurred; he never reported the road conditions in the Neff Yard to anyone at Union Pacific; he did not actually know which vehicle he drove on March 11, 2019; he did not notify anyone on March 11, 2019, that he was injured but instead worked his entire shift; and he called in sick the next day but did not tell his supervisor at Union Pacific that he had been injured at work. There are no facts from which to infer that Union Pacific breached its duty of care to provide Boles a reasonably safe workplace on March 11, 2019. “Speculation cannot supply the place of proof.” Moore v. Chesapeake & O. Ry. Co., 340 U.S. 573, 578 (1951).

As for Union Pacific's alleged lack of due care playing some part in Boles's alleged injury, the uncontroverted facts from Boles's treating physicians and medical records are that Boles had been treated for low back pain since 2014; a comparison of his MRIs from two years before the alleged incident to after the alleged incident showed only a mild degenerative change without significant interval change; neither Boles's primary care physician nor his orthopedic surgeon advised him he could not work as a result of the alleged incident; and Boles was physically able to drive and applied for jobs similar to the work he did for Union Pacific. There is no medical evidence indicating that negligence on the part of Union Pacific on March 11, 2019, played any part in causing Boles's alleged injury. “[W]hen there is no obvious origin of the plaintiff's injury, ‘expert testimony is necessary to establish even that small quantum of causation required by FELA.’ ” Ackman, 556 S.W.3d at 85 (quoting Brooks v. Union Pac. R.R. Co., 620 F.3d 896, 899 (8th Cir. 2010)).

Because Boles failed to file a response under Rule 74.04(c)(2) denying Union Pacific's statement of uncontroverted facts and supporting the denials “with specific references to the discovery, exhibits, or affidavits that demonstrate specific facts showing that there is a genuine factual issue for trial,” the facts were deemed admitted. Rule 74.04(c)(2). These facts show Boles could not prove that Union Pacific breached its duty of care and that he was injured as a result. Therefore, Union Pacific was entitled to judgment as a matter of law on Boles's FELA claim. Point I is denied.

In Points II and IV, Boles contends the circuit court erred in allowing one of Union Pacific's attorneys to appear before the court because her office was in Colorado, and she did not meet the requirements to appear pro hac vice. The circuit court determined the attorney is, in fact, licensed to practice law in Missouri. Boles offers no evidence to the contrary.¹

Additionally, in Point IV, Boles appears to take issue with the court's reliance on statements made by Union Pacific's counsel during the pretrial conference because she was not under oath. “An attorney is an officer of the court who is bound by the rules of professional conduct.” McIntosh v. State, 413 S.W.3d 320, 327 (Mo. banc 2013). Rule 4-3.3(a)(1) states, in pertinent part, that an attorney “shall not knowingly make a false statement of fact or law to a tribunal.” Id. Thus, Union Pacific's counsel had a duty to be truthful in speaking to the court during the pretrial conference. See id. Boles does not indicate which of counsel's statements he believes was untrue, and he provides no reason why the circuit court should have questioned counsel's truthfulness. Points II and IV are denied.

In Points III and V, Boles contends the court erred in entering summary judgment because he did not receive proper notice that the summary judgment motion was filed on August 4, 2023, or that the court had given him an additional 30 days to respond to the motion after the expiration of the initial 30 days. At the pretrial conference, Boles told the court the zip code listed for him in the certificate of service in the summary judgment motion was incorrect, and he did not receive the motion. Boles admitted, however, that Union Pacific's counsel told him during their September 1, 2023 phone conversation that there was a summary judgment motion on file and that “he needed to respond to that motion.” Although Boles insisted he “did not see a summary judgment on file,” Case.net shows the summary judgment motion was filed on August 4, 2023. The court could reasonably infer that Boles had notice of the motion, at the very latest, by September 1, 2023, if not before. Yet, Boles filed no response until 33 days later, at 5:00 p.m. on the night of October 4, 2023, after the expiration of both the original and additional 30-day periods. While Boles is correct that the court did not notify him it was granting him an additional 30 days to respond, he is unable to show that he was prejudiced. The record supports the circuit court's finding that Boles had sufficient notice of the summary judgment motion and failed to respond in a timely manner.

Ex gratia, we note that, even if the court had considered Boles's untimely response to the summary judgment motion, Union Pacific would still be entitled to summary judgment. In his response, Boles did not admit or deny each individual fact set forth in Union Pacific's statement of uncontroverted facts and support each denial with discovery, exhibits, or affidavits. Because Boles failed to comply with Rule 74.04(c)(2), the facts were deemed admitted, and those facts establish Union Pacific is entitled to judgment as a matter of law on his FELA claim. Points III and V are denied.

In Point VI, Boles contends the circuit court erred in granting summary judgment because the court considered only the portions of his deposition cited by Union Pacific in support of its summary judgment motion, instead of his entire deposition. The court could not consider anything outside of the summary judgment record. “Facts come into a summary judgment record only via Rule 74.04(c)’s numbered-paragraphs-and-responses framework. ․ Courts determine and review summary judgment based on that Rule 74.04(c) record, not the whole trial court record.” Green, 606 S.W.3d at 118 (quoting Jones v. Union Pac. R.R. Co., 508 S.W.3d 159, 161 (Mo. App. 2016)). If there were other portions of his deposition that Boles wanted the court to consider in ruling on the summary judgment motion, he needed to cite them as part of a response that complied with Rule 74.04(c)(2). He failed to do so. Point VI is denied.

In Point VII, Boles contends the circuit court erred entering summary judgment because it considered improper evidence, namely, the affidavit of his Union Pacific supervisor and the affidavit of Union Pacific's medical expert, both of which Union Pacific cited to support its statement of uncontroverted facts. Rule 74.04(e) allows parties to provide affidavits based on personal knowledge in support of and in opposition to summary judgment motions. “An affidavit is a written declaration on oath sworn to by a person before someone authorized to administer such oath.” Shiffman v. Kansas City Royals Baseball Club, LLC, 687 S.W.3d 443, 455 (Mo. App. 2024) (citation omitted). The affidavit of Boles's supervisor at Union Pacific was based on his personal knowledge and was signed and sworn to before a notary; therefore, the court properly considered it.

Although Union Pacific's medical expert indicated he executed his affidavit “under penalty of perjury,” his affidavit was not sworn to before a notary or other person authorized to administer oaths. Therefore, it was not an affidavit but was “merely an unsworn statement.” See Brown v. Chipotle Servs., LLC, 645 S.W.3d 518, 524-25 (Mo. App. 2022). Because Union Pacific's medical expert's unnotarized affidavit was not competent evidence on the motion for summary judgment, the court erred in considering it. See Weiss v. Alford, 267 S.W.3d 822, 825 n.1 (Mo. App. 2008). This error does not require reversal, however. Disregarding the unnotarized affidavit, there is still no medical evidence in the summary judgment record connecting Boles's alleged injury to any incident on March 11, 2019, no evidence that any such incident was caused by Union Pacific's negligence, and no evidence that Union Pacific was, in fact, negligent. Point VII is denied.

Conclusion

The judgment is affirmed.

FOOTNOTES

1.   A search of counsel's Missouri Bar number, which Boles sets out repeatedly in his brief, on the publicly-accessible Official Missouri Directory of Lawyers shows counsel is an attorney in good standing in this state. The Missouri Bar, https://mobar.org/site/content/For-thePublic/Lawyer_Directory.aspx (last visited Nov. 21, 2024).

Per Curiam