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Armoneit v. Ezell11/13/2001
Appeal From: Circuit Court of St. Louis City, Hon. Margaret M. Neill
Opinion Vote: AFFIRMED.
Hoff, J., and Blackmar, Sr.J., concur.
Opinion:
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. 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 materi
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