Burel v. BurelBurel v. Burel
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Jack G. Fynes and Rebecca E. Shope, for appellant.
Beverly J. Cox, for appellee Angela L. Burel.
Keith L. Mitchell and Corey L. Tomlinson, for appellee Houston Johnson, Jr., M.D.
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HANDWORK, J.
{¶ 1} Plaintiff-appellant, Ronald A. Burel, appeals various judgments entered by the Lucas County Court of Common Pleas in favor of defendants-appellees, Angela L.
{¶ 2} Appellant Ronald and appellee Angela had a long-term and tumultuous personal relationship that began in the early 1990‘s and was characterized by a series of breakups and reunifications over a number of years.
{¶ 3} Angela and appellee Johnson were colleagues at Flower Hospital beginning in approximately 1994. Angela was employed as a surgical technician, and Johnson, a surgeon, had privileges at the hospital.
{¶ 4} At some point prior to Valentine‘s Day 1996, when Angela and Ronald became engaged, Angela‘s relationship with Johnson advanced to one of a sexual nature. The relationship between Angela and Johnson continued even after Ronald and Angela got married on September 21, 1996.
{¶ 5} Approximately four months after Angela and Ronald were married, Angela became pregnant. Angela testified that she believed the child was conceived on or near the 1997 New Year‘s Day holiday. She specifically recalled having sexual intercourse with Ronald after attending a comedy club with another couple on New Year‘s Eve 1996. Angela gave birth to a child in September 1997.
{¶ 6} Shortly after the child‘s birth, Angela introduced Ronald to Johnson. At Angela‘s suggestion, she and Ronald nominated Johnson to be the child‘s godfather. Johnson regularly visited the couple‘s home and participated in the family‘s activities and
{¶ 7} The marriage of Angela and Ronald was dissolved on January 21, 2001. In February 2007, Ronald subjected himself and the minor child to DNA testing in an effort to determine whether or not Angela had been faithful to him throughout their marriage. Ronald received the results of the test in March 2007. The results showed that Ronald was not the biological father of the child. After notifying Angela of the paternity test results, Angela informed Ronald that, if he was not the father of the child, then the father had to be Johnson. Angela provided Ronald with the option of keeping the paternity matter between themselves, with Ronald continuing his relationship with the child as though he were, in fact, the child‘s biological father.
{¶ 8} Prior to March 2007, neither Johnson nor Angela informed appellant of their sexual relationship or of the fact that appellant may not be—or in fact was not—the minor child‘s biological father. Angela and Johnson each testified that until they were presented with the DNA test results, they were unaware that Johnson was the minor child‘s biological father. Angela testified that Johnson seemed “shocked” when she told him that about the paternity results and the fact that he had to be the child‘s biological father.
{¶ 9} In January 2008, the Domestic Relations Division of the Lucas County Court of Common Pleas found, via consent judgment entry, that Johnson was the biological father of the child, and that Ronald was not. As a result of these
{¶ 10} Ronald instituted the current action against Angela and Johnson in August 2008. An amended complaint was filed on January 14, 2009. In the amended complaint, Ronald asserted several claims against appellees, including claims for invasion of privacy, intentional infliction of emotional distress, necessaries, and unjust enrichment. Ronald also asserted claims, against Angela only, for breach of confidential relationship, fraud, breach of marital contract, breach of the covenant of good faith and fair dealing, and promissory estoppel.
{¶ 11} Appellees moved to dismiss the claims against them, pursuant to
{¶ 13} Angela and Johnson filed motions for summary judgment on September 30 and October 5, 2009, respectively. Ronald filed a motion to strike the motions for summary judgment on October 21, 2009, on the grounds that appellees failed to file the deposition transcripts to which they cited and, thus, the motions for summary judgment were unsupported by evidence as required by
{¶ 14} On October 26, 2009, Johnson filed the deposition transcripts of Ronald, Angela, and Johnson.
{¶ 15} On December 11, 2009, the court denied Ronald‘s motion to strike, distinguishing the cases cited in the motion on the basis that the court “did not erroneously [consider] the testimony offered by Plaintiff or Defendants.”
{¶ 16} On January 27, 2010, the trial court granted appellees’ motions for summary judgment and dismissed all remaining claims. The court held that Ronald‘s claim for invasion of privacy was time barred because the alleged invasion of privacy had only occurred during Ronald and Angela‘s marriage, which ended in 2001.
{¶ 18} Finally, the court found that, because appellees were entitled to judgment with respect to Ronald‘s claims for invasion of privacy and intentional infliction of emotional distress, Ronald‘s claim for civil conspiracy necessarily failed as well.
{¶ 19} Ronald timely filed an appeal from the judgments of the trial court that: (1) partially granted appellees’ motions to dismiss; (2) denied Ronald‘s motion to strike; and (3) granted appellees’ motions for summary judgment. In this appeal, Ronald raises the following assignments of error:
{¶ 20} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING DEFENDANTS’ MOTIONS TO DISMISS PLAINTIFF‘S CLAIMS FOR NECESSARIES AND UNJUST ENRICHMENT.
{¶ 21} “II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING DEFENDANTS’ MOTIONS TO DISMISS PLAINTIFF‘S CLAIMS FOR FRAUD AND PROMISSORY ESTOPPEL.
{¶ 22} “III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING PLAINTIFF‘S MOTION TO STRIKE DEFENDANTS’ PURPORTED MOTIONS FOR SUMMARY JUDGMENT.
{¶ 24} Appellant argues in his first and second assignments of error that the trial court erred in granting appellees’
{¶ 25} Appellant argues in his first assignment of error that the court erred in granting appellees’ motions to dismiss appellant‘s claims for necessaries and unjust enrichment. Ronald brought his claims against appellants for necessaries pursuant to
{¶ 26} “If a parent neglects to support the parent‘s minor child in accordance with this section and if the minor child in question is unemancipated, any other person, in good faith, may supply the minor child with necessaries for the support of the minor child and recover the reasonable value of the necessaries supplied from the parent who neglected to support the minor child.”
{¶ 27} In considering whether appellant‘s claims were properly dismissed, we first look to authority set forth by the Supreme Court of Ohio in Weinman v. Larsh (1983), 5
{¶ 28} It is undisputed that the Weinman decision predated the enactment of
{¶ 30} For all of the foregoing reasons, appellant‘s first assignment of error is found not well-taken.
{¶ 31} Appellant argues in his second assignment of error that the trial court erred in granting appellees’ motions to dismiss his claims for fraud and promissory estoppel. The trial court, in making its ruling, concluded that appellant‘s claims for fraud and
{¶ 32} Appellant argues in his third assignment of error that the court erred in denying his motion to strike the motions for summary judgment that were filed by appellees. A trial court making a summary judgment determination has discretion when considering which evidence is appropriate under
{¶ 33} In the instant case, the trial court stated, in an order dated July 13, 2009, that motions for summary judgment were due on or before September 30, 2009. Angela filed her motion by the stated deadline, and Johnson received an extension of time until October 5, 2009, to file his. Johnson filed his motion for summary judgment on October 5, 2009. Appellant filed the motion to strike the motions for summary judgment on October 21, 2009. Five days later, on October 26, 2009, Johnson filed the necessary transcripts with the trial court.
{¶ 35} Even if September 30 were the final date to submit evidence on the motions, there is no rule that would have precluded the court, in its discretion, from considering the evidence once it was filed. Cf. Rostorfer v. Mayfield (1991), 72 Ohio App.3d 515, 518 (trial court acted within its discretion in considering an affidavit filed after the deadline set by the trial court). “Late filing of evidence, if accepted and considered, does not destroy its evidentiary value to the court.” Id.
{¶ 36} For the foregoing reasons, appellant‘s third assignment of error is found not well-taken.
{¶ 37} Appellant argues in his fourth assignment of error that the trial court erred in granting appellees’ motions for summary judgment.
{¶ 38} An appellate court reviewing a trial court‘s granting of summary judgment does so de novo, applying the same standard used by the trial court. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105.
{¶ 40} Summary judgment is proper where: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) when the evidence is viewed most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion, a conclusion adverse to the nonmoving party. Ryberg v. Allstate Ins. Co. (July 12, 2001), 10th Dist. No. 00AP-1243, citing Tokles & Son, Inc. v. Midwestern Indemn. Co. (1992), 65 Ohio St.3d 621, 629.
{¶ 41} The moving party bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of fact as to an essential element of one or more of the non-moving party‘s claims. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292. Once this burden has been satisfied, the non-moving party has the burden, as set forth at
{¶ 42} In the instant case, appellant argues that the trial court erred in granting appellees’ motions on appellant‘s claims for intentional infliction of emotional distress (“IIED“). To establish a claim for intentional infliction of emotional distress, a plaintiff
{¶ 43} Appellant‘s claim for IIED is based upon his assertion that appellees knew the child‘s true paternity and “intentionally or, at the very least, recklessly, caused him emotional distress.” In considering this issue, we are mindful that a distinction must be made between the act of engaging in an extramarital affair and the alleged act of knowing and concealing the true paternity of the minor child. The former is not actionable under Ohio law, as amatory torts were abolished by this state by the enactment of
{¶ 44} Appellant acknowledges in his briefs that knowledge on the part of appellees concerning the minor child‘s paternity is essential to the establishment of his claim for IIED. Unfortunately for appellant, we do not find in the record evidence sufficient to support his claim that appellees had the requisite knowledge. Appellees each testified that they did not know of or suspect the child‘s true paternity.
{¶ 45} Arguing that appellees did, in fact, know of the child‘s paternity, appellant points to evidence that appellees knew or should have known that, by engaging in sexual relations with one another, without the benefit of contraception, conception was a
{¶ 46} Such evidence is, at best, speculative and is not, in this court‘s opinion, sufficient to demonstrate that appellees knew of the child‘s true paternity in this case. Evidence that appellees knew that there was a possibility of pregnancy is wholly insufficient to establish that appellees knew that Johnson was the child‘s father.
{¶ 47} Likewise, evidence of Johnson‘s selection as godfather, his role in the family‘s life, and his decision to pay the child‘s private school tuition are simply not enough, even when considered together, to establish knowledge of paternity. For example, although there was, in fact, evidence that Johnson was the child‘s godfather, additional evidence that is set forth in the record reveals that Johnson is also godfather to the child of another female colleague, one with whom he denied ever having a sexual relationship. Additional evidence demonstrates that Johnson, a single man with an ivy-league education, has a belief in the importance of education, and has paid educational expenses, not just for Angela‘s minor child, but for various other individuals in his life, including a nephew of his, and Angela, herself. Further evidence demonstrates that, at some point in the past, Johnson wrote checks to another former lover who “was having some hard times,” but with whom he had no children. If anything, the evidence shows that Johnson is generous with his money when it comes to those he cares for. It does not, however, establish that he knew he was the father of Angela‘s child.
{¶ 49} Accordingly, we find that summary judgment was properly entered with respect to appellant‘s claim for IIED.
{¶ 50} Finally, we consider appellant‘s argument that it was error for the trial court to conclude that appellant‘s claims for invasion of privacy were barred by the applicable statute of limitations. Appellant stated in his amended complaint that “[d]uring the course of plaintiff‘s marriage, Angela and Johnson wrongfully intruded into plaintiff‘s private activities in such a manner as to cause plaintiff outrage, mental suffering, shame or humiliation.”
{¶ 52} Because the alleged invasion of privacy occurred during appellant‘s marriage, which ended in 2001, we find that appellant‘s claims for invasion of privacy are clearly time-barred. Accordingly, appellant‘s fourth assignment of error is found not well-taken.
{¶ 53} For the foregoing reasons, the judgment from which this appeal is taken is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
JUDGMENT AFFIRMED.
C.A. No. L-10-1057
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Peter M. Handwork, J.
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JUDGE
Arlene Singer, J.
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JUDGE
Thomas J. Osowik, P.J.
CONCUR.
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JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.