Strable v. Union Pac. R.R. Co.
| Decision Date | 05 March 2013 |
| Docket Number | No. ED97849,ED97849 |
| Parties | HARRISON H. STRABLE, JR., Plaintiff/Appellant, v. UNION PACIFIC RAILROAD CO., Defendant/Respondent. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court
of St. Louis County
09SL-CC03048
Honorable Ellen L. Siwak
Harrison H. Strable, Jr. (Strable) appeals from the grant of summary judgment in favor of Union Pacific Railroad Co. (Union Pacific) on his claim against Union Pacific, under the Federal Employers' Liability Act (FELA), alleging negligence which caused his traumatic and cumulative injuries during the course of his employment with the railroad. We affirm.
Factual and Procedural Background
In April 22, 2008, Strable submitted a personal injury report and pursued a claim against Union Pacific for alleged cumulative injuries as a trainman for over thirty-seven years. In February 2009, Strable suffered a fall that prevented him from working and submitted a report for traumatic injury to his head and back.
On July 15, 2009, Strable filed his seven-count petition in St. Louis County alleging he sustained traumatic injuries on February 4, 2009; that he sustained cumulative injuries over his thirty-seven-year employment with Union Pacific as a trainman; and that Union Pacificnegligently caused him to suffer hearing loss. Strable never identified an expert regarding the cause of his hearing loss or provided any affidavit or evidence to support causation.
With respect to the bankruptcy proceedings at issue here, Strable and his wife have been the subject of and were represented by attorneys in two separate bankruptcy proceedings in the United States Bankruptcy Court for the Southern District of Iowa. The first bankruptcy was filed in June 1997 and was determined to be a no asset estate. It was terminated under Chapter 7 on September 10, 1997. The second bankruptcy was filed on August 2, 2007 under Chapter 13. On December 21, 2007, the bankruptcy court entered its plan confirming Strable's Chapter 13 Plan. While the second case was initiated as a Chapter 13 bankruptcy proceeding, it was eventually converted to Chapter 7 by Strable in November 2009 as a result of his failure to make the monthly payments required under his Chapter 13 Plan. It was ultimately terminated under Chapter 7 on February 17, 2010 with a complete discharge of debts, and on February 18, 2010, the case was concluded and closed.
During the pendency of the second bankruptcy, Strable filed Amended Schedules of Income and Expenditures to reflect changes in his bankruptcy estate, but did not file an amended Schedule of Assets reflecting his alleged cause of action against Union Pacific. At no point during the pendency of this bankruptcy proceeding did Strable disclose to the U.S. Bankruptcy Court for the Southern District of Iowa the existence of the instant cause of action.
On September 2, 2010, Strable was deposed regarding his involvement in any bankruptcy proceedings. Strable testified that he had been involved in only one bankruptcy, which commenced in 2003 and ended in 2007. The following colloquy occurred between Strable and counsel for Union Pacific on the matter:
On June 16, 2011, Union Pacific filed its motion for summary judgment, arguing that Strable failed (1) to disclose the existence of this cause of action to the bankruptcy court, despite his obligation to do so, and therefore should be judicially estopped from pursuing his cause of action against Union Pacific, and (2) to produce evidence to prove causation of his alleged hearing loss. Specifically, Union Pacific alleged that Strable took a prior inconsistent position in the bankruptcy proceeding by failing to amend his bankruptcy schedules at the time of the conversion, that this omission was neither inadvertent nor mistaken, and that failure to estop Strable would result in his deriving an unfair advantage.
As a part of his response, Strable's attorney included his own affidavit regarding two attached letters discussing the effect of the FELA claim on the bankruptcy estate and whether the bankruptcy case needed to be re-opened given the pending FELA claim. Exhibit 2 purports to be a letter, dated March 28, 2011, from Strable's former bankruptcy attorney to the bankruptcy trustee informing the bankruptcy trustee that Strable had a workers compensation claim under FELA, offering to re-open the bankruptcy case to show the FELA claim and then "claim it as exempt." Exhibit 3 purports to be a letter, dated April 6, 2011, written in reply to the bankruptcy attorney's letter, and in which the bankruptcy trustee stated that he did not, "deem it necessary tore-open the case to administer a non-exempt asset," which he believed the FELA claim to be. Neither letter was accompanied by affidavit. Importantly, the only affidavit included was that of Strable's attorney stating, "that the attached exhibits are true and correct based upon my personal knowledge and belief." Union Pacific objected to the letters' admissibility on hearsay grounds, but the trial court never ruled on the objection.
The summary judgment motion was argued before the trial court on August 22, 2011. On December 5, 2011, the trial court granted Union Pacific's motion finding there was no genuine issue as to any material fact; that Union Pacific was entitled to judgment as a matter of law on the grounds of judicial estoppel; and that Strable's failed to identify an expert with respect to the hearing loss claim to prove causation. The trial court dismissed Strable's FELA action with prejudice. This appeal follows.
Standard of Review
Our review of the trial court's grant of summary judgment is de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993); Loth v. Union Pacific R. Co., 354 S.W.3d 635, 641 (Mo. App. E.D. 2011). Summary judgment is appropriate where the moving party demonstrates a right to judgment as a matter of law based on facts as to which there is no genuine dispute. Loth, 354 S.W.3d at 641; Rule 74.04(c). We view the record in the light most favorable to the party against whom summary judgment is entered and accord the non-movant the benefit of all reasonable inferences from the record. Butler v. Burlington N. & Santa Fe Ry., 119 S.W.3d 620, 621 (Mo. App. W.D. 2003).
A "defending" party may establish a right to summary judgment by showing: (1) facts negating any one of the claimant's elements; (2) the non-movant has not been able to produce, or will not be able to produce, evidence sufficient to allow the trier of fact to find the existence ofany of the claimant's elements; or (3) there is no genuine dispute as to the existence of facts necessary to support the movant's properly pleaded affirmative defense. ITT Commercial Finance Corp., 854 S.W.2d at 381. The non-movant must show by affidavits, depositions, answers to interrogatories, or admissions on file that one or more of the material facts shown by the movant to be without any genuine dispute is, in fact, genuinely disputed. Id. A "genuine issue" exists where the record contains competent materials that establish a plausible, but contradictory, version of the movant's essential facts. Id. at 382.
Judicial Estoppel
In his first and second points, Strable argues the trial court erred in entering summary judgment in favor of Union Pacific on the basis of judicial estoppel because the trial court misapplied or ignored the analysis in Loth and it erroneously concluded Strable would derive an unfair advantage if not estopped from proceeding with his FELA claims. We disagree.
Judicial estoppel applies to prevent litigants from taking a position in one judicial proceeding, thereby obtaining benefits from that position in that instance and later, in a second proceeding, taking a contrary position in order to obtain benefits from such a contrary position at that time. While judicial estoppel cannot be reduced to a precise formula, the United States Supreme Court has indicated that whether judicial estoppel applies requires the consideration of three factors: First, a party's later position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party's earlier position....A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.
Vinson v. Vinson, 243 S.W.3d 418, 422 (Mo. App. E.D. 2007). When present, these three factors "firmly tip the balance of equities in favor of barring" the subsequent action. New Hampshire v. Maine, 532 U.S. 742, 750-51 (2001). However, "the doctrine [of judicial estoppel] does not apply when a party's prior position was taken because of a good-faith mistake rather than as part of a scheme to mislead and manipulate the court." Loth, 354 S.W.3d at 638. Inother words, a court should apply judicial estoppel if the party did not act "inadvertently." Henry v. Kan. City S. R.R. Co., 2010 WL 3613795.
Equitable outcomes in bankruptcy depend on full and ongoing disclosure of assets. The Bankruptcy Code explicitly provides that, "[a]t any time after confirmation of the plan but before the completion of payments under such plan, the plan may be modified, upon request of the debtor, the trustee, or the holder of an allowed unsecured claim." 11 U.S.C. §1329 (a). In exchange for Chapter 13 protections, the Bankruptcy Code...
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