            IN THE MISSOURI COURT OF APPEALS
                    WESTERN DISTRICT
 YURIY MATYSYUK,             )
                  Appellant, )
                             )
 v.                          )                  WD82414
                             )
 VIKTOR PANTYUKHIN and       )                  FILED: February 25, 2020
 LYUBOV PANTYUKHIN,          )
                Respondents. )
                 Appeal from the Circuit Court of Pettis County
                   The Honorable Robert L. Koffman, Judge
            Before Division Three: Lisa White Hardwick, P.J., and
                 Alok Ahuja and Anthony Rex Gabbert, JJ.
       Yuriy Matysyuk was injured in an automobile accident while riding as a

passenger in a vehicle driven by Igor Pantyukhin.1 The vehicle was owned by Igor’s

father. Matysyuk sued Igor’s parents, Viktor and Lyubov Pantyukhin (collectively,

the “Pantyukhins”) in the Circuit Court of Pettis County, alleging that they had

negligently entrusted the accident vehicle to their son. The circuit court granted

the Pantyukhins’ motion for summary judgment. It found that the uncontroverted

facts failed to establish that Igor was incompetent to drive due to habitual

recklessness, and that Matysyuk would therefore not be able to prove an essential

element of his negligent entrustment claim. Matysyuk appeals. He argues that the

circuit court should have stayed proceedings on the Pantyukhins’ summary

judgment motion to permit him to conduct further discovery, and that a genuine


      1       To distinguish him from his parents, we refer to Igor Pantyukhin by his first
name in this opinion. No familiarity or disrespect is intended.
issue of material fact existed regarding whether Igor was incompetent to drive. We

affirm.

                                Factual Background
      On October 7, 2014, Igor was driving Matysyuk, his co-employee, to the

jobsite of a pipeline project in Muskingum County in central Ohio, on which they

were both working for their employer, ProEnergy Services. Igor was driving a 1999

Honda Accord owned by his father Viktor Pantyukhin. On the way to the jobsite,

Igor drove off the right side of the roadway while attempting to negotiate a left-

hand curve. The vehicle struck a tree. Matysyuk was seriously injured in the

accident, was hospitalized for several weeks, and incurred medical expenses

exceeding $400,000. Igor was issued a citation for failure to control his vehicle. He

pleaded guilty to the offense, and was assessed fines and court costs totaling $120.

      Igor was twenty years old at the time of the 2014 accident. He was residing

at home in Sedalia with his parents, the Pantyukhins, at the time.

      Igor had been involved in a prior car accident in September 2011, when he

was seventeen years old, and three years prior to the accident involving Matysyuk.

In the 2011 incident, Igor failed to stop at a stop sign and collided with another

vehicle which was traveling on a cross-street. The driver of the other vehicle and
two passengers in Igor’s vehicle were injured. Igor was driving a 2000 Suzuki Swift

owned by Viktor Pantyukhin in the 2011 accident. In connection with the 2011

accident, Igor was cited for failure to yield, and for failing to properly secure a minor

passenger.

      Igor had one other motor-vehicle-related citation prior to the 2014 accident

involving Matysyuk. In June 2012, Igor pleaded guilty to failing to wear a seatbelt

and for failing to secure two minor children in seatbelts.

      On September 26, 2014, Igor was listed as an “Excluded Driver” in the
automobile insurance policy purchased by the Pantyukhins to insure the 1999


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Honda Accord. Although Matysyuk’s Brief contends that Igor was excluded from

the policy because he had become “too costly to insure” and was “an unreasonable

risk,” nothing in the record suggests any reason for Igor’s exclusion from the

Pantyukhins’ automobile insurance policy. There is also no support in the record

for the assertion (made for the first time in the “Conclusion” of Matysyuk’s Brief)

that the Pantyukhins’ were “told by the insurance agent not to let [Igor] drive their

cars.”

         On September 12, 2016, Matysyuk filed a Petition against Igor, their joint

employer, and the Pantyukhins. The petition alleged that the Pantyukhins

negligently entrusted their 1999 Honda to Igor, when he was incompetent to drive it

due to his habitual recklessness. The Petition also alleged a claim against the

Pantyukhins for negligent supervision, although that claim is not at issue in this

appeal.

         On March 9, 2017, the Pantyukhins moved for summary judgment. They

argued that Matysyuk could not establish a necessary element of his negligent

entrustment claim: that Igor was incompetent to drive by reason of habitual

recklessness.

         On April 10, 2017, Matysyuk filed his response to the Pantyukhins’ motion.
Matysyuk responded to the Pantyukhins’ statement of uncontroverted material

facts, and alleged additional purportedly material facts. Matysyuk argued that

there was a genuine issue of material fact whether Igor was a habitually reckless

driver based on his 2011 accident, his 2012 citations, and his exclusion from the

Pantyukhins’ automobile insurance policy. Matysyuk’s response did not contend

that the Pantyukhins’ summary judgment motion was premature because he had

propounded written discovery to which the Pantyukhins had not yet responded, or

because he desired to take their depositions, or the depositions of other witnesses.




                                            3
      On April 24, 2017, the Pantyukhins filed a reply memorandum in support of

their summary judgment motion, which responded to Matysyuk’s statement of

additional facts.

      Matysyuk filed a motion to strike some of the Pantyukhins’ responses to his

statement of additional material facts; he also moved for leave to file a sur-reply

memorandum. Once again, Matysyuk did not assert that proceedings on the

Pantyukhins’ motion should be stayed to permit him to conduct additional

discovery.

      On May 18, 2017, the Pantyukhins noticed their summary judgment motion

for hearing on July 17, 2017. At the conclusion of the July 17 hearing, the circuit

court took the matter under advisement.

      After the hearing concluded, Matysyuk filed a motion to stay proceedings on

the Pantyukhins’ motion for summary judgment pending further discovery. In his

motion, Matysyuk noted that the circuit court had asked during the July 17 hearing

“why proceedings on the Motion for Summary Judgment had not been stayed.”

Matysyuk noted that besides his first round of interrogatories, no other discovery

had been conducted between the parties. He requested that, before the court ruled

on the summary judgment motion, he be permitted to depose the Pantyukhins, Igor,
and the Pantyukhins’ insurance agent to learn why Igor was excluded from the

Pantyukhins’ automobile insurance policy.

      After conducting a further hearing, the circuit court denied Matysyuk’s

motion for stay on July 20, 2017.

      On August 2, 2017, the circuit court granted the Pantyukhins’ motion for

summary judgment. In its judgment, the circuit court stated that the record

showed that “Igor has had one accident prior to the fateful one in the present case.”

The court found that “[t]his [one accident] is not sufficient to establish habitual
recklessness,” as required to support a negligent entrustment claim against his


                                           4
parents. The judgment also found (in a ruling not challenged here) that the

Pantyukhins were entitled to summary judgment on Matysyuk’s negligent

supervision claim.

      Matysyuk later voluntarily dismissed his claims against Igor, and against

their employer, with prejudice. Matysyuk then filed this appeal.

                                         Analysis
                                            I.
      We examine Matysyuk’s Points in reverse order. In his second Point,

Matysyuk argues that the circuit court erred in denying his motion to stay

proceedings on the Pantyukhins’ motion for summary judgment.

      “The trial court has discretion to grant or deny additional time to conduct

discovery before ruling on a pending summary judgment motion.” Brooks v. City of

Sugar Creek, 340 S.W.3d 201, 209 (Mo. App. W.D. 2011) (citation omitted). “A trial

court abuses its discretion only when its ruling is clearly against the logic of the

circumstances then before the court and is so arbitrary and unreasonable as to

shock the sense of justice and indicate a lack of careful consideration.” Holm v.

Wells Fargo Home Mortg., Inc., 514 S.W.3d 590, 596 (Mo. 2017) (citation and

internal quotation marks omitted).

      Under Rule 74.04(b), a party defending a claim may move for summary

judgment “[a]t any time.” See also Farrow v. Saint Francis Med. Ctr., 407 S.W.3d

579, 587 n.4 (Mo. 2013). “When a motion for summary judgment is filed, the party

against whom it is directed may not stand idly by doing nothing.” Duncan v.

Dempsey, 547 S.W.3d 815, 821 (Mo. App. E.D. 2018) (citation and internal quotation

marks omitted). If the non-movant wishes to conduct further discovery before the

court rules on the summary judgment motion, it may move for a continuance under

Rule 74.04(f). Rule 74.04(f) provides:




                                            5
      Should it appear from the affidavits of a party opposing the motion
      that for reasons stated in the affidavits facts essential to justify
      opposition to the motion cannot be presented in the affidavits, the
      court may refuse the application for judgment or may order a
      continuance to permit affidavits to be obtained or depositions to be
      taken or discovery to be had or may make such other order as is just.
“Rule 74.04(f) allows the trial court to postpone any ruling on a pending summary

judgment motion to accommodate further discovery.” Brooks, 340 S.W.3d at 209

(footnote omitted).

      The Pantyukhins moved for summary judgment on Matysyuk’s negligent

entrustment claim on March 9, 2017. Instead of filing a motion for a continuance

under Rule 74.04(f) so that he could conduct further discovery, Matysyuk responded

to the Pantyukhins’ motion on the merits on April 10, 2017. In his response,

Matysyuk alleged additional facts, which he argued created a genuine issue of

material fact regarding whether Igor was incompetent to drive. Matysyuk’s

opposition to the summary judgment motion relied on the discovery which had been

completed to date. The Pantyukhins filed a reply memorandum, and Matysyuk

then filed a motion to strike some of the Pantyukhins’ responses to his additional

facts, and a motion requesting leave to file a sur-reply to correct one of his

additional facts. After the parties completed their motions practice, the

Pantyukhins noticed their summary judgment motion for hearing on July 17, 2017.
      Matysyuk only moved to stay the summary judgment proceeding so that he

could conduct further discovery after the July 17 hearing was held. Matysyuk’s

motion was apparently prompted by comments the circuit court had made at the

hearing on the Pantyukhins’ motion. (We have not been provided with a transcript

of that hearing.) By the time Matysyuk requested a stay, the Pantyukhins’ motion

for summary judgment had been pending for more than 4 months, the parties had

fully briefed and argued the motion, and the circuit court had taken it under
advisement.



                                           6
      The circuit court did not abuse its discretion by refusing to allow Matysyuk to

have two bites at the apple: first, by responding to the Pantyukhins’ summary

judgment motion on the merits; and then by seeking to stay proceedings on the

motion after the circuit court has apparently questioned his merits arguments, and

taken the matter under advisement. The circuit court was entitled to hold that the

time to seek relief pursuant to Rule 74.04(f) was during the briefing of the summary

judgment motion, not after the motion had been fully (and extensively) briefed, and

taken under advisement.

      Rule 74.04 does not generally contemplate post-hearing briefing on a

summary judgment motion. The Rule specifies that “[n]o other papers with respect

to the motion for summary judgment [beyond the motion, response, reply, and sur-

reply] shall be filed without leave of court,” Rule 74.04(c)(5), and that “[a]fter the

response, reply and any sur-reply have been filed or the deadlines therefore have

expired, the court shall decide the motion.” Rule 74.04(c)(6). A circuit court may

have good reason to deny a post-hearing motion to stay. A stay motion may create

the prospect of yet further briefing, since the party moving for summary judgment

may wish to oppose the motion for stay with its own affidavits, arguing a lack of

diligence or bad faith in the conduct of discovery by the party seeking the stay. It is
within the circuit court’s discretion to require that such matters be addressed in the

course of the parties’ summary judgment briefing, rather than after that briefing

has concluded. See Resolution Trust Corp. v. Lieberman, 826 S.W.2d 55, 56 (Mo.

App. E.D. 1992) (circuit court did not abuse its discretion when it denied a motion to

stay involving a summary judgment motion which had been pending for seven

months, where stay motion was filed four days before the summary judgment

hearing).

      Point II is denied.




                                            7
                                          II.
      In his first Point, Matysyuk challenges the merits of the circuit court’s ruling

granting the Pantyukhins summary judgment on his negligent entrustment claim.

      “This Court reviews a grant of summary judgment de novo.” Messina v.

Shelter Ins. Co., 585 S.W.3d 839, 842 (Mo. App. W.D. 2019) (citation and internal

quotation marks omitted). “Summary judgment shall be entered if there is no

genuine issue as to any material fact and the moving party is entitled to judgment

as a matter of law.” Folsom v. Mo. State Hwy. Patrol, 580 S.W.3d 645, 649 (Mo.

App. W.D. 2019) (citation and internal quotation marks omitted). “The Court

reviews the record in the light most favorable to the party against whom judgment

was entered, and gives the non-movant the benefit of all reasonable inferences from

the record.” Messina, 585 S.W.2d at 842 (citation and internal quotation marks

omitted).

      To prove a claim for negligent entrustment of a chattel by the defendant, a

plaintiff must prove that:

      (1) the entrustee was incompetent by reason of age, inexperience,
      habitual recklessness or otherwise; (2) the entrustor knew or had
      reason to know of the entrustee’s incompetence; (3) there was
      entrustment of the chattel; and (4) the negligence of the entrustor
      concurred with the conduct of the entrustee to cause the plaintiff’s
      injuries.
Lockhart v. Carlyle, 585 S.W.3d 310, 313 (Mo. App. W.D. 2019) (citation and

internal quotation marks omitted); see also Delana v. CED Sales, Inc., 486 S.W.3d

316, 324-26 (Mo. 2016); Evans v. Allen Auto Rental & Truck Leasing Co., 555

S.W.2d 325, 326 (Mo. 1977).

      “To establish their right to summary judgment, the [Pantyukhins] were

required to negate at least one of the requisite elements of a claim for negligent

entrustment.” Hallquist v. Smith, 189 S.W.3d 173, 176 (Mo. App. E.D. 2006)
(citation omitted). The Pantyukhins’ motion contended that Matysyuk could not



                                          8
prove the first element: that Igor was incompetent to drive their car. In his

petition, Matysyuk did not allege that Igor was incompetent due to his age or

inexperience. Instead, Matysyuk’s petition alleged only that Igor was incompetent

“due to his habitual reckless driving behavior.” The Pantyukhins’ summary

judgment motion contended that the undisputed facts failed to establish Igor’s

habitual recklessness.

      “Proof of the entrustee’s incompetence is essential to establish liability under

the doctrine of negligent entrustment.” Evans, 555 S.W.2d at 326–27 (citation and

internal quotation marks omitted). “Incompetence of the [entrustee] may be shown

by specific acts of carelessness and recklessness committed by him.” Lix v. Gastian,

261 S.W.2d 497, 500 (Mo. App. 1953) (citations omitted). To establish that an

entrustee was incompetent by reason of habitual recklessness, “it must be shown

that the reckless conduct of the [entrustee] was so constantly committed as to

constitute a habit of negligence.” Id. (citations omitted). Therefore, “proof of a

single accident, even though accompanied by negligence, is not sufficient to

establish habitual recklessness.” Peters v. Henshaw, 640 S.W.2d 197, 200 (Mo. App.

W.D. 1982); accord, Schneider v. Warr, No. 06-3252-CV-S-GAF, 2007 WL 9718150,

at *3 (W.D. Mo. Sept. 19, 2007).
      Igor’s prior accident in September 2011, more than three years prior to the

accident in which Matysyuk was injured, is insufficient to establish Igor’s habitual

recklessness. See Portmann v. Stanley, 674 S.W.2d 678, 679-80 (Mo. App. E.D.

1984) (affirming grant of summary judgment to parents who entrusted vehicle to

son, where son had been involved in three prior accidents, but “[e]ach of these

occurred more than two years before the collision now in issue”). Matysyuk’s Brief

understandably emphasizes the severity of the 2011 accident, and of the injuries

that resulted. But the severity of the 2011 accident cannot change the fact that it




                                           9
was a single accident, more than three years prior to the current incident. That

single accident cannot establish a habit of recklessness on Igor’s part.

       Matysyuk also relies on Igor’s 2012 citations for failure to wear a seatbelt,

and for failure to properly restrain minors in his vehicle, as proof of his habitual

recklessness. “Missouri, with other states, recognizes that a history of traffic

violations is powerful evidence that a driver is incompetent [by reason of habitual

recklessness] and that a jury can find incompetence solely on the basis of numerous

traffic convictions.” LeCave v. Hardy, 73 S.W.3d 637, 641 (Mo. App. E.D. 2002)

(collecting cases). The temporal connection between the earlier traffic offenses and

the accident causing the plaintiff’s injuries, as well as the frequency of the traffic

offenses, are important when determining whether an entrustee was incompetent

by reason of habitual recklessness. See Peters, 640 S.W.2d at 200 (“[I]t becomes

most important to determine when the offenses charged to [the entrustee] took

place.”).

       Igor’s citations in 2012 for seatbelt-related offenses cannot establish his

habitual recklessness. These offenses occurred on a single occasion, more than two

years before the relevant accident. Further, the circumstances underlying the 2012

citations are entirely different from the circumstances of the accident in which
Matysyuk was injured.

       Matysyuk also argues that the fact that Igor was listed as an excluded driver

in the Pantyukhins’ automobile liability insurance policy is evidence that Igor was

incompetent to drive. The Eastern District rejected the argument that failure to

maintain required insurance established habitual recklessness in LeCave. The

court explained:

              The failure to obey the Motor Vehicle Financial Responsibility
       Law cannot serve as the basis for a claim of active negligence because
       there is no causal relationship between the failure to purchase
       insurance and the act of negligently operating a vehicle. In other


                                           10
      words, the absence of insurance is not a cause in fact or a contributing
      cause of an accident.
73 S.W.3d at 644 (citations omitted). This reasoning from LeCave applies with even

greater force in this case, since the Motor Vehicle Financial Responsibility Law

expressly authorizes vehicle owners to exclude designated household members from

the owners’ automobile liability insurance policies. See § 303.190.2(3), RSMo.

      While the fact of Igor’s exclusion from the Pantyukhins’ insurance policy does

not alone establish incompetence, LeCave recognized that “the circumstances

causing a driver to be uninsured may be evidence that a driver is incompetent.” 73

S.W.3d at 644. “For instance, if insurance companies refuse to insure a driver

because he is too high a risk, or if he can obtain insurance only by paying an

exorbitant premium, this may be evidence that provides notice to those aware of his

uninsured status that he may be incompetent.” Id. In this case, however, there is

no evidence in the summary judgment record regarding the reasons why Igor was

excluded from coverage under the Pantyukhins’ insurance. The record is also silent

as to whether Igor carried his own insurance. The fact that the Pantyukhins listed

Igor as an excluded driver in their insurance policy does not, by itself, create a

material question of fact as to whether Igor was incompetent to drive.

      LeCave is clearly distinguishable. In that case, at the time of the relevant

accident, the son to whom a father entrusted a vehicle was twenty-one years old.

Id. at 640.

      Between the ages of 16 and 21 [the son] incurred convictions for seven
      speeding violations, one “following too close” violation, and one
      “careless and imprudent” violation. Two weeks before the accident [the
      son] was again ticketed, resulting in a conviction for speeding. [The
      son’s] license had previously been suspended and he had a mandatory
      insurance suspension.
Id. In addition to the son’s ten traffic violations (two of which occurred in the six

months before the accident), his license had previously been suspended, and it was
“uncontroverted that [the father]’s insurance company had specifically excluded [the


                                           11
son] from its coverage of [the father]’s vehicles and that [the son] carried no

insurance of his own.” Id. at 640, 643. Based on the son’s driving record and the

circumstances underlying his failure to carry insurance, the Eastern District held

that there was a material question of fact regarding whether the son was competent

to drive an automobile. Id. at 644.

      Unlike in LeCave, in this case the summary judgment record contains

evidence of only two separate incidents, the most recent one occurring more than

two years before the accident underlying this lawsuit. Unlike in LeCave, in this

case the summary judgment record lacks any evidence concerning the

circumstances surrounding Igor’s exclusion from his parents’ insurance, or

concerning whether he carried insurance of his own. Because there is no evidence

in the record that Igor did not maintain his own insurance, Matysyuk’s claim that

the Pantyukhins violated Missouri’s Motor Vehicle Financial Responsibility Law by

allowing Igor to drive their vehicle is unsupported.

      Matysyuk’s brief also refers to traffic citations received in November 2016 by

another child, while he was driving the Pantyukhins’ vehicle. Those citations post-

date the accident at issue here by more than two years, and involve a different

person to whom the Pantyukhins apparently entrusted a different family vehicle.
The 2016 citations cannot establish a triable issue on Matysyuk’s negligent

entrustment claim.

      The circuit court did not err in granting summary judgment in favor of the

Pantyukhins on Matysyuk’s negligent entrustment claim. Point I is denied.

                                      Conclusion
      The judgment of the circuit court is affirmed.




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              ______________________________________
              Alok Ahuja, Judge
All concur.




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