Armoneit v. Ezell

• Decision Date: 13 November 2001
• Docket Number: ED79397
• Citation: Armoneit v. Ezell, 59 S.W.3d 628 (Mo. App. 2001)
• Parties: Kevin Armoneit, Appellant, v. George Ezell, Respondent. ED79397 Missouri Court of Appeals Eastern District
• Court: Missouri Court of Appeals

Kevin Armoneit, Appellant v George Ezell, Respondent

ED79397

Missouri Court of Appeals Eastern District

11/13/2001

Appeal From: Circuit Court of St. Louis City, Hon. Margaret M. Neill

Counsel for Appellant: Ray B. Marglous, James E. Lownsdale and Todd M. Boehlje

Counsel for Respondent: Beth C. Boggs

Opinion Summary:

Kevin Armoneit appeals from a summary judgment entered in favor of his employer, George Ezell. Armoneit and Ezell engaged in an altercation at work wherein Armoneit was fired. Their dispute ensued, and Ezell picked up an eight-foot-long board and swung it two or three times, injuring Armoneit. Armoneit filed suits for recklessness and for punitive damages, and the trial court entered summary judgment on the grounds that the actions constituted an assault and that the petition was filed after the two-year statute of limitations for assault had expired.

Armoneit alleges that the court erred in four respects. First, he claims a genuine issue of material fact exists regarding whether Ezell struck him intentionally or recklessly. Second, he contends Ezell failed to meet his prima facie burden for summary judgment as he relied on incompetent evidence to establish his intention when he struck Armoneit. Third, he asserts that because Ezell failed to plead the affirmative defense of statute of limitations in his answer, it was waived. Fourth, he claims Ezell failed to meet his prima facie burden for summary judgment as he failed to plead properly the affirmative defense of statute of limitations.

Division Two holds: The evidence clearly indicates that Ezell intended to assault Armoneit. Armoneit did not contest the contents of the evidence relied upon by Ezell, and thus he waived any objection to its competency. Because justice requires, it would be an abuse of discretion for the trial court to refuse to allow Ezell to amend his answer on the facts of this case, Ezell's affirmative defense was not waived, and Ezell met his prima facie burden for summary judgment.

Hoff, J., and Blackmar, Sr.J., concur.

Mary R. Russell, Presiding Judge

Kevin Armoneit ("Employee") appeals the trial court's grant of summary judgment in favor of George Ezell ("Employer"). On appeal, Employee asserts four reasons why summary judgment should not have been granted. First, Employee claims a genuine issue of material fact exists regarding whether Employer struck him intentionally or recklessly. Second, he contends Employer failed to meet his prima facie burden for summary judgment because Employer's motion relied on evidence not competent to establish his intention when he struck Employee. Third, he asserts that because Employer failed to plead the affirmative defense of statute of limitations in his answer, it was waived. Fourth, he claims Employer failed to meet his prima facie burden for summary judgment because he failed to plead properly the affirmative defense of statute of limitations upon which his summary judgment motion relied. We find no error and affirm.

Employer owned and was the president of the company for which Employee worked on November 10, 1994, when the incident at issue occurred. After a conversation in the company shop during which Employee was fired, Employee further criticized Employer, and their confrontation persisted. Employer picked up a board, approximately eight feet long, and swung it at Employee two or three times, injuring Employee.

Employee received a workers' compensation award for past medical expenses and for specified future expenses resulting from this incident. Before the workers' compensation hearing, both Employer and Employee testified at depositions. Employer testified that he swung the board without "a whole lot of force, it was mainly just to keep [Employee] away from me, not to do any damage to him." In Employee's deposition, he stated, "I looked up, and [Employer] was attacking me with a board."

Employee filed a petition against Employer on August 26, 1999, pleading a cause of action for recklessness in his first count and requesting a punitive damages award in his second count. Employer moved for summary judgment on the grounds that his actions constituted an assault on Employee, and Employee's claim was filed after the two-year statute of limitations had run. See section 516.140 RSMo 2000.¹ Employee argued that because he pleaded a case for recklessness, the applicable statute of limitations was the five-year statute of limitations of section 516.120(4) for any other injury to the person not arising from contract and not otherwise enumerated in that section. The trial court entered summary judgment on Employer's behalf on March 8, 2000, agreeing that Employee's claim was essentially one for assault and battery and was precluded because the two-year statute of limitations expired before Employee filed his petition.

Because the grant of summary judgment is purely an issue of law, our standard of review is essentially de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment should be entered if the motion and response indicate "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." Rule 74.04(c)(3). The record is reviewed in the light most favorable to the party against whom judgment was entered, and we accord the non-moving party the benefit of all reasonable inferences from the record. ITT Commercial Fin. Corp., 854 S.W.2d at 376.

The party moving for summary judgment bears the burden of proving that there is no genuine dispute of material fact and that the movant is entitled to judgment as a matter of law. Id. A movant's right to judgment as a matter of law varies, depending on whether the movant is a "claimant" or a "defending party" at trial. Id. at 381.

Where the movant for summary judgment is the defendant, as is Employer in this case, a right to summary judgment can be established by showing (1) facts negating any one of Employee's elements, (2) Employee, the claimant and non-movant, has not and will not be able to produce sufficient evidence to allow the trier of fact to find the existence of any one of his elements, or (3) there is no genuine dispute as to the existence of each of the facts needed to support Employer's properly pleaded affirmative defense. Id. If Employer establishes any one of these, then he is entitled to judgment as a matter of law. Id.

Once Employer makes the prima facie showing required by Rule 74.04(c), Employee must show "by affidavit, depositions, answers to interrogatories, or admissions on file" that a genuine issue of fact indeed exists, despite Employer's proof to the contrary. Id. A genuine issue of fact exists when there is competent evidence of "two plausible, but contradictory, accounts of the essential facts." Id. at 382. A genuine issue dispute must be real and substantial, not argumentative, imaginary, or frivolous. Id.

In his first point, Employee claims that a genuine issue of fact exists regarding whether Employer acted recklessly or intentionally when he struck Employee. This lynchpin is crucial to both parties. If Employer can prove that Employer's conduct was intentional and that his affirmative defense of the expired two-year statute of limitations is viable, then the summary judgment will stand. See section 516.140. However, if there is no genuine issue of fact and Employer's conduct could be found to have been unintentional, Employer cannot negate that element of Employee's recklessness claim, which was filed within the applicable five-year statute of limitations, and Employee will be entitled to pursue it. See section 516.120.

Employee's argument hinges on two statements made by Employer during his deposition for Employee's workers' compensation hearing. In describing the incident, Employer testified that he hit Employee with the board on the shoulder "not with a whole lot of force, it was mainly just to keep him away from me, not to do any damage to him." He also stated that when striking Employee, the blows "were not as much force as I could have used, you know, if I really intended to put him out, I think I could."

Employee's attempt to disprove Employer's characterization of the incident by using these statements is an incorrect understanding of what constitutes an assault.

"[A]n assault is any unlawful offer or attempt to injure another with the apparent present ability to effectuate the attempt under circumstances creating a fear of imminent peril." Adler v. Ewing, 347 S.W.2d 396, 402 (Mo.App.1961). "The assault is complete, 'if the intent, with the present means of carrying it into effect, exists and preparations therefor have been made' . . . even though there has been no actual violence to the person." State v. Bowles, 754 S.W.2d 902, 910 n.7 (Mo.App.1988) (defining civil and criminal assault) (quoting State v. Selle, 367 S.W.2d 522, 527 (Mo. 1963)). "A battery is the willful touching of the person of another, and has been said to be the consummation of the assault." Adler, 347 S.W.2d at 402. Every battery contains an assault. Id.

To commit an intentional tort, a person must intend the act and the resulting harm. State ex inf. Ashcroft v. Kansas City Firefighters Local No. 42, 672 S.W.2d 99, 112 (Mo.App.1984) (citing Restatement (Second) of Torts section 870 cmt. b (1977)). Employee asserts that because Employer stated he did not intend physical harm to Employee and that he did not strike Employee with his full force, then his conduct was not intentional. Employer's statements, however, evidence an assault in that the "harm" in an assault is the fear or apprehension of imminent peril, which is exactly what Employer intended for Employee. See Adler, 347 S.W.2d at 402. Employer's statement that he swung the board to keep Employee away from him demonstrates an intent to cause fear in Employee for the purpose of preventing Employee from advancing toward Employer and...