COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 71938 & 72966 JOHN DOE : : Plaintiff-Appellant : JOURNAL ENTRY : v. : AND : FATHER EDWARD F. RUPP, et al. : OPINION : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 29, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Cuyahoga County Common Pleas Court, Case No. CV-269722 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ______________________________ APPEARANCES: For Plaintiff-Appellant: Defendants-Appellees HOWARD A. SCHULMAN EDWARD J. MAHER Schulman, Schulman & Meros 1548 Standard Building 1700 Standard Building 1370 Ontario Street 1370 Ontario Street Cleveland, Ohio 44113-1740 Cleveland, Ohio 44113-1727 WILLIAM T. DOYLE 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 O'DONNELL, J.: John Doe has filed two appeals which we have consolidated for review. In the first, he contests a December 30, 1996 decision of the common pleas court granting summary judgment to Fr. Edward F. -2- Rupp and The Catholic Diocese of Cleveland, in connection with his claims that Fr. Rupp sexually abused him from 1966 through 1973, and that the diocese negligently hired and retained Fr. Rupp. In the second appeal, Doe challenges a July 24, 1997 denial of his motion for relief from that summary judgment, alleging that the trial court failed to consider relevant affidavit evidence. After reviewing these matters, we conclude that Doe failed to establish that the sexual abuse caused him to be of unsound mind and, therefore, failed to timely commence this action; accordingly, we affirm the court's decision granting summary judgment to appellees and, based on the reasons set forth herein, have determined the court's dismissal of Doe's motion for relief from judgment constituted harmless error. The record in this case reveals that during the summer of 1966, Fr. Rupp took then thirteen-year-old John Doe on a camping trip to Murphy's Beach in Madison, Ohio, and, while there, sexually abused him. Following this incident, Fr. Rupp continued to abuse Doe on numerous occasions until the summer of 1973, when Doe informed a social worker, Mike Dorrler, about the incidents, who in turn reported the matter to a priest, Fr. John Coakley. Fr. Coakley encouraged Doe to confront Fr. Rupp and to inform his parents about the sexual abuse. Subsequently, in 1973, Fr. Coakley discussed the matter at length with Doe and his parents, and Doe at that time decided not to pursue any legal action against Fr. Rupp. Thereafter, in 1974, Doe earned a Bachelor's degree from Xavier University, spent the following year in Europe, and obtained -3- employment at the University of Vienna. In 1976, he enrolled in the Jesuit novitiate, where he remained for three years. During this period of time, he told Dr. Walter Clark, Mary McLaughlin- Davis, Fr. Francis Houdek, Fr. Tom Powers, and Dr. Raschert, a psychologist, about the sexual abuse. From 1978 until August, 1979, he studied at the University of Detroit, where he earned a Master's Degree in Humanities, and then began teaching at the University of Detroit Jesuit High School and Academy until 1982. In 1982, he enrolled at the University of Michigan, where he earned a Master's degree in Business Administration. During this period of time, he traveled throughout the Orient. He then accepted employment with the Eli Lilly Company and worked there until 1986, when he accepted a position as Assistant Director of the Cleveland Foodbank. Doe eventually became the Executive Director of the Foodbank, where he worked until November, 1992, when that organization terminated his employment. At that time, upon the recommendation of the Diocese of Cleveland, he began counseling with Thomas W. Frazier, Ph.D., a licensed psychologist, who conducted several sessions with him. On April 29, 1994, Doe filed this case, alleging causes of action against Fr. Rupp for sexual abuse, and breach of fiduciary duty, and against the Diocese for negligence in hiring, and retaining Fr. Rupp after learning of the sexual abuse. Fr. Rupp and the Diocese moved for summary judgment, arguing that Doe failed to timely commence the action, and Doe, in response, filed a brief in opposition, attaching affidavits from himself and Dr. Frazier, -4- alleging that the sexual abuse caused him to be of unsound mind and prevented him from asserting his legal rights. After an oral hearing on the motion, during which counsel presented their respective positions and referred to the affidavits of Doe and Dr. Frazier, the trial court granted summary judgment to the appellees and, in a two-page written opinion, found Dr. Frazier's affidavit insufficient as a matter of law. Doe has appealed that determination to this court, known as Cuyahoga App. No. 71938. Pending our review of that appeal, Doe, believing that the trial judge had not reviewed affidavits submitted in connection with the motion for summary judgment, filed a motion for relief from judgment which the court also denied. Doe then filed a second notice of appeal from that determination, known as Cuyahoga App. No. 72966. We have now consolidated both appeals for purposes of review. In Cuyahoga App. No. 71938, the appeal from the granting of summary judgment, Doe raises the following assignments of error: I. THE TRIAL JUDGE ABUSED HIS DISCRETION IN REFUSING TO ORDER DEFENDANT CATHOLIC DIOCESE OF CLEVELAND TO PRODUCE DOCUMENTS THAT WERE RELEVANT TO THE ALLEGATIONS OF THE COMPLAINT, THAT WERE NOT SUBJECT TO ANY PRIVILEGE, AND THAT DID NOT IMPOSE ANY BURDEN TO PRODUCE. II. THE TRIAL JUDGE ERRED IN GRANTING SUMMARY JUDGMENT TO BOTH DEFENDANTS, BASED UPON THE EXPIRATION OF THE APPLICABLE STATUTES OF LIMITATIONS, DESPITE THE FACT THAT AFFIDAVITS SUBMITTED BY PLAINTIFF DEMONSTRATED A GENUINE ISSUE OF MATERIAL FACT THAT PLAINTIFF WAS OF UNSOUND MIND, WITHIN THE MEANING OF R.C. S2305.16, FROM THE BEGINNING OF THE SEXUAL ABUSE UNTIL A TIME WITHIN THE APPLICABLE STATUTES OF LIMITATIONS. -5- III. THE TRIAL JUDGE ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANT CATHOLIC DIOCESE OF CLEVELAND, BASED UPON THE EXPIRATION OF THE APPLICABLE STATUTE OF LIMITATIONS, DESPITE THE FACT THAT PLAINTIFF DID NOT DISCOVER THE FACTS UNDERLYING HIS CLAIM AGAINST DEFENDANT CATHOLIC DIOCESE OF CLEVELAND UNTIL A TIME WITHIN THE APPLICABLE STATUTE OF LIMITATIONS. IV. THE TRIAL JUDGE ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANT RUPP, BASED UPON THE EXPIRATION OF THE APPLICABLE STATUTE OF LIMITATIONS, DESPITE THE FACT THAT DEFENDANT RUPP WAS THE CAUSE OF ANY DELAY BY PLAINTIFF IN ASSERTING HIS CLAIM. V. THE TRIAL JUDGE ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANT RUPP, BASED UPON THE EXPIRATION OF THE APPLICABLE STATUTE OF LIMITATIONS, DESPITE THE FACT THAT ALL OF THE ACTS OF SEXUAL ABUSE WERE ADMITTED BY DEFENDANT RUPP. Doe contends the court erroneously granted summary judgment to the appellees, asserting this action is timely filed because the sexual abuse caused him to be of unsound mind and therefore tolled the running of the statutes of limitations for his causes of action. He alternatively urges that the appellees are estopped from raising the statute of limitations defense, because the sexual abuse prevented him from timely asserting his legal rights against appellees. Further, he claims the court erred when it denied his motion to compel discovery of certain documents from the Diocesan confidential information file on Fr. Rupp. Appellees, on the other hand, urge that the court properly granted summary judgment because Doe failed to demonstrate that the sexual abuse caused him to be of unsound mind from the time he reached majority until 1973. They also argue the doctrine of -6- equitable estoppel is inapplicable to this case, and maintain the court properly denied the motion to compel discovery. The issues then presented for our consideration here concern whether the trial court erred in finding Dr. Frazier's affidavit insufficient to establish that Doe was of unsound mind, and granting summary judgment to the appellees on the basis that the case had not been timely filed; whether the doctrine of equitable estoppel applies to this case; and whether the court abused its discretion in denying Doe's motion to compel production of documents. We begin by reviewing the propriety of the summary judgment order in this case. Civ.R. 56(C) sets forth the standard of review for cases involving summary judgment: * * * 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 therefrom, 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 his favor. This court reviews the trial court's grant of summary judgment de novo. See Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704; Abbott v. Parma (1996), 112 Ohio App.3d 570. -7- Further, in Dresher v. Burt (1996), 75 Ohio St.3d 280, the court stated in relevant part at 293: * * * the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. * * * if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial * * *. (Emphasis in original). Thus, in reviewing the trial court's decision and in applying the substantive law in this case, we are called upon to determine whether there are any genuine issues of material facts posited and whether appellees are entitled to judgment as a matter of law. The applicable substantive law here concerns the respective statutes of limitation for the causes of action asserted by Doe: sexual abuse, negligence, and breach of fiduciary duty. In Doe v. First United Methodist Church (1994), 68 Ohio St.3d 531, the court stated in its syllabus: 1. A cause of action premised upon acts of sexual abuse is subject to the one-year statute of limitations for assault and battery. 2. A minor who is the victim of sexual abuse has one year from the date he or she reaches the age of majority to assert any claims against the perpetrator arising from the sexual abuse where the victim knows the identity of the perpetrator and is fully aware -8- of the fact that a battery has occurred. (Emphasis added). The court also stated at 537: * * * The fact that appellant pled negligence and intentional infliction of emotional distress cannot be allowed to mask or change the fundamental nature of appellant's causes of action which are predicated upon acts of sexual battery. As this court has previously recognized: [T]hrough clever pleading or by utilizing another theory of law, the assault and battery cannot be [transformed] into another type of action subject to a longer statute of limitations as it would circumvent the statute of limitations for assault and battery to allow that to be done * * *. Accordingly, we hold that a cause of action premised upon acts of sexual abuse is subject to the one-year statute of limitations for assault and battery. * * * With respect to appellant's claims against the church and the school district for the alleged negligence of these defendants in failing to protect appellant from [the abuser's] sexual behavior, it appears, given appellant's allegation of physical harm, that the applicable statute of limitations is found in R.C. 2305.10, which provides, in part: An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose. Appellant also sought to hold the church and the school district vicariously liable for [the abuser's conduct]. The statute of limitations that applies to these claims for derivative liability is the same statute that applies to appellant's action against [the abuser], to wit, the one-year statute of limitations for assault and battery * * *. (Emphasis added). Further, the court discussed when the statute of limitations -9- for the negligence cause of action against the church and the school district began to run: * * * appellant has never claimed or argued that his knowledge of the sexual abuse was insufficient to apprise him of the possibility that the church or the school district had been negligent in failing to protect him from [the abuser]. Under these circumstances, we are left to assume that the events that triggered the one-year statute of limitations for assault and battery were no different from the events that triggered the two-year statute of limitations that applies to appellant's negligence causes of action against the church and the school district. Therefore, the two- year period of limitations commenced [upon appellant's reaching the age of majority] in July 1984 * * *. (Emphasis added). However, R.C. 2305.16 provides for the tolling of a statute of limitations, and states in relevant part: * * * if a person entitled to bring [an] action * * * is, at the time the cause of action accrues, * * * of unsound mind, the person may bring it within the * * * times limited * * *, after the disability is removed * * *. (Emphasis added). In Fisher v. Ohio University (1992), 63 Ohio St.3d 484, the court defined unsound mind, as it relates to the ability to understand and enforce legal rights, at 487-488: Unsound mind is defined in R.C. 1.02(C) as includ[ing] all forms of mental retardation or derangement. * * * derangement has been equated with insanity * * *. (Punctuation in original). In the present case, the parties do not dispute that Doe reached the age of majority on September 10, 1970; further, the evidence in the record demonstrates that in 1973, Doe discussed the abuse with Mike Dorrler, Fr. John Coakley, and his parents, and -10- knew Fr. Rupp as the perpetrator of the abuse but chose not to pursue any legal action at that time against either the priest or the Diocese. In accordance with Doe v. First United, supra, these facts lead to the ineluctable conclusion that since he knew of the abuse, and the identity of the perpetrator, and the possibility of Diocesan negligence in failing to protect him, the statutes of limitation for his claims based upon these acts began to run when he reached majority, but certainly not later than the summer of 1973 when he terminated his relationship with Fr. Rupp and related the incidents of abuse to his parents, Fr. Coakley and Mike Dorrler. In response to Doe's complaint, appellees raised the issue of the statute of limitations in their motion for summary judgment, pointing out that the abuse had occurred twenty-one years earlier. In accordance with Dresher, supra, the burden of going forward with evidence then shifted to Doe who offered Dr. Thomas Frazier's affidavit, but could not demonstrate that Frazier knew his mental condition in 1970 or 1973; and because Frazier never characterized Doe as deranged or insane, Doe failed to sustain his burden on this issue. After reviewing this evidence de novo, and after construing it most strongly in favor of Doe, reasonable minds could come to but one conclusion: the sexual abuse did not cause Doe, at the time he reached his majority and at relevant times thereafter, to be of unsound mind, as that term is defined by the Revised Code and by -11- case law. Thus, Doe failed to timely commence this action, and the trial court properly granted summary judgment in this case. Doe further contends that the appellees should be estopped from asserting the statute of limitations defense because Fr. Rupp's sexual abuse prevented him from timely filing his claims. In order to prevail on this argument, Doe must demonstrate that he reasonably relied to his detriment upon a misleading factual misrepresentation. See Doe v. Blue Cross/Blue Shield of Ohio (1992), 79 Ohio App.3d 369. We have already concluded, however, that Doe failed to meet his burden of proof that the sexual abuse prevented him from timely pursuing this action and, thus, his mere assertion, without more, does not prove the required elements of equitable estoppel. Therefore, the trial court properly refused to apply the doctrine. Regarding Doe's motion to compel discovery, the record reflects he sought documents from the Diocese's confidential information file regarding Fr. Rupp, and his counsel admitted at oral argument that this requested discovery material did not relate to his arguments regarding the condition of unsound mind. In accordance with our determination that Doe failed to timely file the action, this assignment of error is moot and we decline to review it. See App.R. 12(A)(1)(c). In Cuyahoga App. No. 72966, the appeal from the denial of Doe's motion for relief from judgment, the assignments of error state: I. THE TRIAL COURT HAD NO JURISDICTION TO TAKE ANY ACTION ON PLAINTIFF'S MOTION FOR RELIEF -12- FROM JUDGMENT WHILE THE APPEAL IN CASE NO. 71938 WAS PENDING. II. THE DECISION OF THE TRIAL COURT, DENYING PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT, WAS ERRONEOUS AND AN ABUSE OF DISCRETION. PLAINTIFF WAS CLEARLY ENTITLED TO RELIEF FROM THE SUMMARY JUDGMENT GRANTED BY THE PREVIOUS TRIAL JUDGE, BECAUSE PLAINTIFF CLEARLY DEMONSTRATED THAT THE PREVIOUS TRIAL JUDGE HAD NOT READ THE EVIDENCE THAT PLAINTIFF HAD SUBMITTED IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. Doe contends the trial court erred when it denied his motion for relief from judgment, arguing the court had no jurisdiction to rule on the motion because the case had been appealed and, in the alternative, that the trial judge did not read his or Dr. Frazier's affidavit prior to ruling on the motion for summary judgment. The appellees urge that the court properly denied the motion for relief from judgment, because it lacked jurisdiction to entertain it, and because Doe only speculated that the trial judge did not review the affidavits. The issue then presented for our review is whether the court erred when it denied Doe's motion for relief from judgment. A trial court errs when it rules on a motion for relief from judgment while the case is pending in the appellate court. See Howard v. Catholic Social Serv. of Cuyahoga Cty., Inc. (1994), 70 Ohio St.3d 141; Daloia v. Franciscan Health Sys. of Cent. Ohio, Inc. (1997), 79 Ohio St.3d 98. Here, although the trial court erred when it ruled on Doe's motion for relief from judgment pending appeal, we recognize that the court not only conducted an oral hearing on appellees' summary -13- judgment motion but also had benefit of counsel's briefs which referred to and cited the affidavits of Doe and Dr. Frazier. Further, the trial court's two-page written Memorandum of Opinion granting that summary judgment referred to the specific opinions held by Dr. Frazier, Doe's expert. Hence, the record before us permits an inference that the trial court had knowledge of the contents of those affidavits at the time it ruled on the motion for summary judgment. Therefore, although the trial court should not have ruled on the motion for relief from summary judgment pending appeal, that decision in this case constitutes harmless error at best, because we have concluded the trial court did not err when it granted summary judgment to the appellees. Accordingly, these assignments of error are overruled. Judgment affirmed. -14- It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J., and ROCCO, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .