[Cite as Herriott v. Trade Wind Express, Inc., 2013-Ohio-5692.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


RICHARD B. HERRIOTT                                   :    JUDGES:
                                                      :
                                                      :    Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellant                            :    Hon. William B. Hoffman, J.
                                                      :    Hon. Patricia A. Delaney, J.
-vs-                                                  :
                                                      :    Case No. 13CA32
                                                      :
TRADE WIND EXPRESS, INC., ET AL.                      :
                                                      :
                                                      :
       Defendants-Appellees                           :    OPINION


CHARACTER OF PROCEEDING:                                   Appeal from the Richland County Court
                                                           of Common Pleas, Case No.
                                                           2008CV1061


JUDGMENT:                                                  REVERSED AND REMANDED



DATE OF JUDGMENT ENTRY:                                    December 18, 2013



APPEARANCES:

For Plaintiff-Appellant:                                   For Defendant-Appellee:

PAUL M. KAUFMAN                                            GREGORY H. COLLINS
801 Terminal Tower                                         One Cascade Plaza, Suite 800
50 Public Square                                           Akron, OH 44308
Cleveland, OH 44113-2203
                                                           KAREN SOEHNLEN MCQUEEN
                                                           4775 Munson St. NW
                                                           P.O. Box 36963
                                                           Canton, OH 44735-6963
Richland County, Case No. 13CA32                                                      2

Delaney, J.

      {¶1} Plaintiff-Appellant Richard B. Herriott appeals the March 13, 2013

judgment entry of the Richland County Court of Common Pleas granting summary

judgment in favor of Defendant-Appellee Thomas J. Rowlands.

                       FACTS AND PROCEDURAL HISTORY

      {¶2} R.S. Hanline & Company, Inc. is a privately owned produce distribution

company. R.S. Hanline is the parent company of Trade Wind Express, Inc., a trucking

company that transports products for R.S. Hanline and other companies. Defendant-

Appellee Thomas J. Rowlands, the president of R.S. Hanline, hired Plaintiff-Appellant

Richard Herriott in August 2005 as a truck dispatcher and broker for Trade Wind

Express.

      {¶3} Rowlands had concerns about Herriott’s job performance. One issue was

the rejection of multiple truck deliveries by R.S. Hanline’s customer, Wal-Mart. On June

15, 2007, Rowlands called Herriott and Bob Haarhues, the Hanline account manager for

Wal-Mart, into his office to discuss the Wal-Mart issue. What follows is a summary of

the Civ.R. 56 evidence by deposition and affidavit of the three witnesses to the meeting

and the events that occurred after the meeting.

                                     The Meeting

      {¶4} During the meeting with Herriott and Haarhues, Rowlands became angry.

(Rowlands Depo., 57). He slammed his hands down on his desk and raised the level of

his voice. (Rowlands Depo., 57). Rowlands attempted to make a phone call, but was

unable to dial the phone. He slammed the receiver onto the phone and pushed the

phone off his desk. (Rowlands Depo., 58). Herriott recalled that Rowlands threw the
Richland County, Case No. 13CA32                                                       3


phone and yanked the cord out of the phone. (Herriott Depo., 287). After Rowlands

pushed the phone off the desk, he yelled at Herriott to get out his office. (Rowlands

Depo., 59; Herriott Depo., 288). As Herriott was leaving Rowlands’s office, Rowlands

kicked his own chair over. (Rowlands Depo., 59; Herriott Depo., 288). Herriott saw

Rowlands come around the desk towards him in a threatening manner. (Herriott Depo.,

288). When Rowlands came around the desk, Herriott saw Rowlands pick up another

chair and throw it. (Herriott Depo., 289).

        {¶5} At that same time, Dennis Summerford, an employee of R.S. Hanline, was

in the sales office outside Rowlands’s office. He heard voices arguing in Rowlands’s

office. (Summerford Affidavit). He saw Herriott leave Rowlands’s office and walk out of

the office building. He next saw Rowlands follow Herriott out the door. Summerford

decided to follow Herriott and Rowlands. (Summerford Affidavit).

                                     The Parking Lot

        {¶6} Herriott left the office building and walked to the parking lot. (Herriott

Depo., 291). His intention was to get to his car and drive to the Trade Wind Express

offices, located down the road.     (Herriott Depo., 291; Herriott Affidavit).   Rowlands

followed Herriot out of the office. (Rowlands Depo., 59). As Herriott left the office

building, he heard Rowlands yelling at him to come back.           (Herriott Depo., 292).

Rowlands did not recall yelling at Herriott to return, but did accuse Herriott of being

disloyal. (Rowlands Depo., 59). Herriott also heard Summerford yelling at him to run to

his car and get away. (Herriott Depo., 292). Summerford denied telling Herriott to run.

(Summerford Affidavit). Summerford recalled the parking lot was noisy. (Summerford

Affidavit).
Richland County, Case No. 13CA32                                                        4


        {¶7} Herriott saw Rowlands standing at the bottom of the steps leading from

the office building. Herriott walked towards Rowlands, but stopped approximately five to

eight feet away from where Rowlands was standing.            (Herriott Depo., 295, 297).

Summerford saw Rowlands and Herriott standing and facing each other. Summerford

saw Rowlands and Herriott standing inches apart from each other.            (Summerford

Affidavit).

        {¶8} From where Herriott was standing, Rowlands appeared to be extremely

agitated and aggressive. (Herriott Depo., 294). Rowlands was four to five feet away

from Herriott. (Herriott Depo., 297). Rowlands was not asked during his deposition how

far apart he was from Herriott. Herriott heard Rowlands say “I’m going to knock your

fucking head off” and then Rowlands tried to take a swing at Herriott with his right hand.

(Herriott Depo., 296-297). Rowlands stated he threw a punch in the air. (Rowlands

Depo., 61). Summerford did not see either one of them making any moves to hit or to

physically touch the other person. (Summerford Affidavit).

        {¶9} Herriott saw Summerford move Rowlands away from Herriott and push

Rowlands onto a car. (Herriott Depo., 298-300). Summerford stated he gently put his

hand on Rowlands’s shoulder and told him to leave the area. (Summerford Affidavit).

At the same time, he told Herriott he should get out of there. (Summerford Affidavit).

Herriott briskly walked away and drove away in his car. (Herriott Depo., 301).

        {¶10} Rowlands called Herriott on June 16, 2007 and apologized to Herriott. On

June 16, 2007, R.S. Hanline terminated Herriott’s employment.
Richland County, Case No. 13CA32                                                       5


                                      The Lawsuit

      {¶11} On May 20, 2008, Herriott filed a lawsuit in the Richland County Court of

Common Pleas naming R.S. Hanline, Trade Wind Express, and Rowlands as

defendants. Against R.S. Hanline and Trade Wind Express, Herriott alleged wrongful

termination and age discrimination. Herriott alleged civil assault and battery against

Rowlands.

      {¶12} The employment claims were disposed of in favor of R.S. Hanline and

Trade Wind Express through binding arbitration.

      {¶13} Rowlands filed a motion for summary judgment on Herriott’s claims for

assault and battery.    Herriott responded to the motion for summary judgment.       On

March 13, 2013, the trial court granted Rowlands’s motion for summary judgment. The

trial court determined Herriott’s claim for battery was barred by the one-year statute of

limitations. The trial court further found reasonable minds could only conclude that

Rowlands’s actions on June 15, 2007 did not constitute an assault.

      {¶14} It is from this decision Herriott now appeals.

                               ASSIGNMENT OF ERROR

      {¶15} Herriott raises one Assignment of Error:

      {¶16} “THE       TRIAL   COURT      ERRED     IN       GRANTING   DEFENDANTS-

APPELLEES’ MOTION FOR SUMMARY JUDGMENT: A. SUFFICIENT DISPUTED

FACTS EXIST WHICH MANDATES A JURY DETERMINATION AND B. THE FACTS,

AS SET FORTH BY THE PLAINTIFF, WERE SUFFICIENT TO CREATE A JURY

ISSUE AS TO THE CLAIM OF ASSAULT.”
Richland County, Case No. 13CA32                                                          6


                                         ANALYSIS

       {¶17} Herriott argues in his sole Assignment of Error the trial court erred when it

granted summary judgment in favor of Rowlands on Herriott’s claim for civil assault.

Herriott does not dispute the trial court’s decision as to his claim for civil battery.

                                     Standard of Review

       {¶18} We refer to Civ.R. 56(C) in reviewing a motion for summary judgment

which provides, in pertinent part:

       Summary judgment shall be rendered forthwith if the pleading,

       depositions, answers to interrogatories, written admissions, affidavits,

       transcripts of evidence in the pending case and written stipulations of fact,

       if any, timely filed in the action, show that there is no genuine issue as to

       any material fact and that the moving party is entitled to judgment as a

       matter of law. * * * A summary judgment shall not be rendered unless it

       appears from such evidence or stipulation and only from the evidence or

       stipulation, that reasonable minds can come to but one conclusion and

       that conclusion is adverse to the party against whom the motion for

       summary judgment is made, such party being entitled to have the

       evidence or stipulation construed most strongly in the party's favor.

       {¶19} The moving party bears the initial responsibility of informing the trial court

of the basis for the motion, and identifying those portions of the record before the trial

court, which demonstrate the absence of a genuine issue of fact on a material element

of the nonmoving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d

264 (1996). The nonmoving party then has a reciprocal burden of specificity and cannot
Richland County, Case No. 13CA32                                                           7


rest on the allegations or denials in the pleadings, but must set forth “specific facts” by

the means listed in Civ.R. 56(C) showing that a “triable issue of fact” exists. Mitseff v.

Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801 (1988).

       {¶20} Pursuant to the above rule, a trial court may not enter summary judgment

if it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421,

429, 674 N.E.2d 1164 (1997), citing Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264

(1996).

                                       Civil Assault

       {¶21} Herriott argues there is a genuine issue of material fact whether Rowlands

committed the tort of assault. The tort of assault consists of “the willful threat or attempt

to harm or touch another offensively, which threat or attempt reasonably places the

other in fear of such contact. The threat or attempt must be coupled with a definitive act

by one who has the apparent ability to do the harm or to commit the offensive touching.”

McNichols v. Rennicker, 5th Dist. Tuscarawas No. 2002 AP 04 0026, 2002-Ohio-7215,

¶ 13 citing Smith v. John Deere Co., 83 Ohio App.3d 398, 406, 614 N.E.2d 1148 (10th

Dist.1993). Stated another way, “[a] plaintiff establishes the tort of assault by showing

that the defendant willfully threatened or attempted to harm or offensively touch the

plaintiff and that the threat or attempt reasonably placed the plaintiff in fear of such

contact.” Ford Motor Credit Co. v. Ryan, 189 Ohio App.3d 560, 2010-Ohio-4601, 939

N.E.2d 891, ¶ 45 (10th Dist.) quoting Stafford v. Columbus Bonding Ctr., 177 Ohio

App.3d 799, 2008-Ohio-3948, 896 N.E.2d 191, ¶ 15.

       {¶22} Rowlands argued, and the trial court agreed, Rowlands’s actions during

the meeting did not constitute assault.      The trial court found abusive language or
Richland County, Case No. 13CA32                                                        8


threatening words without a definitive act to cause or attempt to cause harm that places

the plaintiff in fear of contact cannot constitute assault. Smith, supra. We agree that

Rowlands’s actions during the meeting do not meet the elements of civil assault. The

meeting, however, is not the end of this story.       The meeting is what led to the

confrontation in the parking lot and that is where we find genuine issues of material fact

exist.

         {¶23} Three individuals witnessed the confrontation in the parking lot --

Rowlands, Herriott, and Summerford. Their recollections of the events on June 15,

2007 were presented to the court as depositions or affidavits pursuant to Civ.R. 56. All

three witnesses agree Rowlands followed Herriott out of the office building after a

contentious meeting. Summerford felt the need to follow the men out of the building. In

the parking lot, Summerford saw the men standing inches apart, but could not hear

what they were saying. Herriott remembered that he and Rowlands were standing at

least four feet apart. Rowlands was not asked during his deposition how far apart he

and Herriott stood. Herriott recalled Rowlands was extremely agitated and aggressive.

Herriott heard Rowlands say “I’m going to knock your fucking head off” and then

Rowlands tried to take a swing a Herriott with his right hand. Rowlands testified he

threw a punch in the air. Summerford did not see either one of them making any moves

to hit or to physically touch the other person.     Summerford intervened and moved

Rowlands away from Herriott.      Herriott testified by affidavit that while no physical

contact occurred, he was placed in fear and anticipation of suffering physical harm by

Rowlands’s actions.    Rowlands called Herriott the next day and apologized for his

actions.
Richland County, Case No. 13CA32                                                        9


       {¶24} The three witnesses to the events on June 15, 2007 give varying accounts

of Rowlands’s actions towards Herriott.       When ruling on a motion for summary

judgment, the court is required to review the facts in a light most favorable to the non-

moving party. Based on the three different witness accounts of the confrontation in the

parking lot, we find the trial court erred in granting summary judgment on Herriott’s

assault claim. Rowlands argues his actions in the meeting could not be construed as

assault.   We find, however, reasonable minds could disagree whether Rowlands’s

actions during the meeting and the confrontation in the parking lot directly thereafter

could create a reasonable fear in Herriott that Rowlands would strike him. There is a

genuine issue of material fact whether Herriott established the tort of assault by showing

Rowlands willfully threatened or attempted to harm or offensively touch Herriott and that

the threat or attempt reasonably placed Herriott in fear of such contact.

       {¶25} Herriott’s sole Assignment of Error is sustained.
Richland County, Case No. 13CA32                                                       10


                                     CONCLUSION

       {¶26} The judgment of the Richland County Court of Common Pleas is reversed

and the matter is remanded to the trial court for further proceedings consistent with this

opinion and law.

By: Delaney, J.,

Gwin, P.J. and

Hoffman, J., concur.



                                        HON. PATRICIA A. DELANEY




                                        HON. W. SCOTT GWIN



                                        HON. WILLIAM B. HOFFMAN
