[Cite as Christensen v. Leuthold, 2009-Ohio-6869.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY
MARK A. CHRISTENSEN,
PLAINTIFF-APPELLANT, CASE NO. 3-09-14
v.
SHANE M. LEUTHOLD, OPINION
DEFENDANT-APPELLEE.
Appeal from Crawford County Common Pleas Court Trial Court No. 09-CV-0103
Judgment Affirmed
Date of Decision: December 28, 2009
APPEARANCES:
Mark Christensen, Appellant
Shane M. Leuthold, Appellee Case No. 3-09-14
SHAW, J.
{¶1} Plaintiff-appellant, Mark Christensen, appeals the September 9, 2009
judgment of the Common Pleas Court of Crawford County, Ohio, granting
summary judgment in favor of the appellee, Shane Leuthold.1
{¶2} The facts relevant to this appeal are as follows. According to the
record, Mr. Christensen hired Attorney Leuthold to represent him in a number of
legal matters pending in Crawford County, including a divorce, a civil protection
order, a juvenile court proceeding, and a criminal case.2
{¶3} On February 2, 2007, the juvenile court held an adjudicatory hearing
regarding one of Mr. Christensen’s children. The court noted that Attorney
Leuthold entered an appearance on behalf of Mr. Christensen the day before the
hearing and had requested a continuance because of a time conflict he had in
another case. The juvenile court denied this request because it found that Mr.
Christensen had received his summons to appear for this hearing three weeks prior
to the hearing and the mother and the child’s guardian ad litem would not waive
1 At the beginning of his oral argument in this matter, Mr. Christensen submitted a number of documents for this Court to consider in support of his position. After being afforded an opportunity to review these documents, Attorney Leuthold objected to this Court considering the documents because they were not before the trial court and made a part of the record. We took Mr. Christensen’s request under advisement. Having reviewed the various documents, we find that the majority of them were not before the trial court for consideration, and thus, are not properly before us for review. However, two documents entitled “Oral Appeal Exhibit ‘2’” and “Oral Appeal Argument Exhibit ‘5’” were a part of the record and available for the trial court’s consideration in this matter. Thus, we will consider them, where appropriate, in our review of this case. 2 In both parties’ briefs to this Court and during oral argument in this matter, the parties made a number of factual representations that are not found anywhere in the record. Thus, this opinion is based solely upon facts contained in the record.
2 Case No. 3-09-14
the statutory time period for the adjudicatory hearing. The child was then found to
be dependent.3 As to disposition, the court determined that he should remain with
his mother, that there was no need for services from the agency, and that the
temporary restraining order prohibiting Mr. Christensen from having contact with
the child be made permanent, subject to further review upon Mr. Christensen
receiving a mental health assessment and a domestic violence assessment and
following any recommendations therefrom. In his response in opposition to
Attorney Leuthold’s motion for summary judgment, Mr. Christensen stated that
Attorney Leuthold told him that he would appeal the juvenile court’s decision
because the court should not have proceeded with the matter when Mr.
Christensen refused to waive his right to counsel.4 However, Attorney Leuthold
never filed an appeal on behalf of Mr. Christensen.
{¶4} As for the criminal case, the only evidence in the record is a verdict
form, dated July 6, 2007. This form reflects that a jury found that Mr. Christensen
was not guilty of domestic violence in his criminal case. The parties agree that
Attorney Leuthold represented Mr. Christensen at this trial.
3 In his brief to this Court, Mr. Christensen repeatedly asserts that he was found guilty at this hearing. However, this was an adjudication of dependency as to one of his children, Brock, not a criminal trial to determine guilt. This dependency, according to the juvenile court’s judgment entry, was largely based upon the fact that a sibling of Brock’s was previously found to be an abused child by the same court. Thus, Brock was found to be dependent based upon R.C. 2151.04(D). However, this entry also made a previously rendered temporary restraining order into a permanent restraining order and referred to Mr. Christensen as the “alleged perpetrator.” 4 Mr. Christensen attached an affidavit to his written opposition to the motion for summary judgment filed by Attorney Leuthold, wherein he averred that the facts contained in his written opposition were true and accurate.
3 Case No. 3-09-14
{¶5} As for the divorce case and civil protection order, the parties agree
that a number of evidentiary hearings were held in the divorce over several
months. Both parties made representations in their briefs to this Court, as well as
at oral argument in this matter, regarding the evidence that was brought forth
during these hearings. However, neither party submitted any transcripts of these
proceedings or otherwise provided evidence of what transpired during these
hearings as part of the record.
{¶6} The divorce case was finalized on February 5, 2008, by an agreed
judgment entry, a copy of which was submitted in the case sub judice.5 This entry
provided Mr. Christensen with supervised visitation with his four children for one
hour per week at Andrew’s House in Delaware, Ohio. Mr. Christensen was also to
continue with counseling as long as the counselor deemed necessary. Neither
party was ordered to pay child support, and the tax exemptions for the children
were equally divided. The couple was each awarded the personal property in their
respective possessions, and Mr. Christensen was also awarded the couple’s real
property in Galion, Ohio. The civil protection orders at issue were also modified
by agreement of the Christensens in this entry to allow visitation between Mr.
Christensen and his children. The entry also reflects that Mr. and Mrs.
Christensen testified that this agreement was voluntarily entered into by them and
5 A review of the record in this case, including statements made by both parties, seems to indicate that this agreement was orally presented to the divorce court the previous December but the entry was not finalized and filed until February 5, 2008.
4 Case No. 3-09-14
that both believed that the agreement was fair and equitable and in the best interest
of the parties’ children.
{¶7} According to Mr. Christensen, he entered into this agreed judgment
because Attorney Leuthold told him that he would get Mr. Christensen “visitation
and eventual custody through legal maneuvers if he complied with the courts
request for counseling[.]” (Plaint. Resp. to Mot. for Sum. Judg., July 30, 2009.)
After the divorce entry was filed, Mr. Christensen asserts that Attorney Leuthold
would not return his calls, he was not allowed to visit his children, and Attorney
Leuthold would not respond to Mr. Christensen’s counselor’s attempts to ascertain
what type of counseling Mr. Christensen was to receive in order to comply with
the court’s orders.
{¶8} On March 5, 2008, Mr. Christensen, acting pro se, filed a motion in
the divorce proceeding for temporary custody of his children. This motion was
denied on March 18, 2008. The following day, the trial court ordered that any
visitation between Mr. Christensen and his son, Brock, be suspended until further
hearing. This order was based upon the recommendation of the children’s
guardian ad litem in the divorce case, Attorney Brad Starkey. Attorney Starkey’s
recommendation was made upon the request of another guardian ad litem for
Brock, Sandra Disantis. Disantis was appointed to be Brock’s GAL by the
5 Case No. 3-09-14
Delaware County Juvenile Court.6 Disantis asserted that Brock’s psychologist
was concerned that visits with his father would exacerbate Brock’s negative
behavior, which included acts of domestic violence. Thus, the divorce court in
Crawford County suspended visitation between Brock and Mr. Christensen.7
{¶9} On March 25, 2008, Mr. Christensen wrote a letter to Attorney
Leuthold expressing his displeasure with Attorney Leuthold’s representation and
that he believed that Attorney Leuthold engaged in malpractice in the handling of
his cases. At this time, Mr. Christensen also indicated that he would pursue a
court action for malpractice against Attorney Leuthold.
{¶10} Two months later, in May of 2008, Mr. Christensen filed a grievance
against Attorney Leuthold and Attorney Starkey with the Supreme Court’s
Disciplinary Counsel. The grievance against Attorney Leuthold was dismissed by
the Disciplinary Counsel on July 10, 2008.8
{¶11} On March 3, 2009, Mr. Christensen filed a complaint in the
Crawford County Common Pleas Court for legal malpractice against Attorneys
Leuthold and Starkey. Both attorneys filed answers, denying the allegations of
malpractice and asserting that Mr. Christensen’s claims were barred by the
6 Brock was charged in Delaware County Juvenile Court as unruly and as a delinquent by reason of an act that would constitute the offense of domestic violence if committed by an adult. 7 In reviewing Starkey’s motion to suspend visitation and the letter of Disantis, it appears that Mr. Christensen had yet to visit with Brock as of March 16, 2008, despite the order of visitation issued in the divorce on February 5th. 8 The record does not reveal whether the grievance against Starkey was also dismissed, but a letter, purportedly written by Attorney Starkey to Mr. Christensen, indicates that the grievance against him was also dismissed.
6 Case No. 3-09-14
applicable statute of limitations. Attorney Starkey filed a motion for summary
judgment on March 12, 2009. Mr. Christensen timely responded to this motion
and attached numerous exhibits in support. This motion was granted on May 14,
2009, based upon the fact that Attorney Starkey was the GAL for the Christensen
children during the divorce, not Mr. Christensen’s attorney.
{¶12} On June 5, 2009, the trial court issued a scheduling order. In this
order, the court ordered that Mr. Christensen provide the name of all expert
witnesses by September 1, 2009. The court also set a trial date of November 24,
2009.
{¶13} Mr. Christensen filed a motion to qualify Rhetta M. Daniel, Esq., as
an expert witness for legal malpractice on July 22, 2009. Attached to this motion
was Daniel’s curriculum vitae. Two days later, Attorney Leuthold filed a motion
for summary judgment. He attached a copy of the agreed judgment entry of
divorce and his personal affidavit to this motion, which included an averment that
he did not breach his duty to Mr. Christensen during his representation of Mr.
Christensen’s cases and that at no time did his representation fall below the
standard of care of a reasonable attorney in similar cases. Mr. Christensen filed
his response to this motion on July 30, 2009, and attached his personal affidavit
and numerous exhibits in support of his response.
7 Case No. 3-09-14
{¶14} On September 9, 2009, the trial court granted summary judgment in
favor of Attorney Leuthold. This appeal followed, and Mr. Christensen now
asserts five assignments of error.
{¶15} Initially, we note that Mr. Christensen’s asserted assignments of
error consist of quotations of the trial court’s judgment entry, with citations to
their respective page numbers. Although these assignments of error are not
specific, a review of his brief, including the statement of issues presented for
review, reveals that Mr. Christensen is assigning the trial court’s decision to grant
summary judgment as error for two reasons: (1) the trial court erred in finding that
there was no genuine issue of material fact regarding whether Attorney Leuthold
breached his professional duty; and (2) the trial court erred in finding that the
complaint was filed outside of the applicable statute of limitations.
{¶16} The standard for review of a grant of summary judgment is one of de
novo review. Lorain Natl. Bank v. Saratoga Apts. (1989), 61 Ohio App.3d 127,
129, 572 N.E.2d 198. Thus, a grant of summary judgment will be affirmed only
when there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Civ.R. 56(C). In addition, “summary
judgment shall not be rendered unless it appears * * * that reasonable minds can
come to but one conclusion and that conclusion is adverse to the party against
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whom the motion for summary judgment is made, such party being entitled to
have the evidence construed most strongly in his favor.” Id.
{¶17} The moving party may make his motion for summary judgment in
his favor “with or without supporting affidavits.” Civ.R. 56(B). However, “[a]
party seeking summary judgment must specifically delineate the basis upon which
summary judgment is sought in order to allow the opposing party a meaningful
opportunity to respond.” Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 526
N.E.2d 798, syllabus. Summary judgment should be granted with caution, with a
court construing all evidence and deciding any doubt in favor of the nonmovant.
Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 360, 604 N.E.2d 138, 1992-Ohio-95.
Once the moving party demonstrates that he is entitled to summary judgment, the
burden then shifts to the nonmoving party to show why summary judgment in
favor of the moving party should not be rendered. See Civ.R. 56(E). In fact, “[i]f
he does not so respond, summary judgment, if appropriate, shall be entered against
him.” Id.
{¶18} The Ohio Supreme Court has held that the following elements are
necessary to establish a cause of action for legal malpractice: “(1) an attorney-
client relationship, (2) professional duty arising from that relationship, (3) breach
of that duty, (4) proximate cause, (5) and damages.” Shoemaker v. Gindlesberger,
118 Ohio St.3d 226, 887 N.E.2d 1167, 2008-Ohio-2012, at ¶ 8, citing Vahila v.
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Hall, 77 Ohio St.3d 421, 427, 674 N.E.2d 1164, 1997-Ohio-259; Krahn v. Kinney
(1989), 43 Ohio St.3d 103, 105, 538 N.E.2d 1058. “If a plaintiff fails to establish
a genuine issue of material fact as to any of the elements, the defendant is entitled
to summary judgment on a legal-malpractice claim.” Shoemaker, supra.
{¶19} In the case sub judice, Attorney Leuthold acknowledges that an
attorney-client relationship existed between him and Mr. Christensen and that he
had a professional duty arising from that relationship. However, Attorney
Leuthold maintains, and the trial court determined, that Attorney Leuthold did not
breach that duty.
{¶20} In a legal malpractice action, “[e]xpert evidence is required * * * to
establish the attorney’s breach of duty of care except in actions where the breach
or lack thereof is so obvious that it may be determined by the court as a matter of
law, or is within the ordinary knowledge and experience of laymen.” Bloom v.
Dieckmann (1st Dist., 1983), 11 Ohio App.3d 202, syllabus, 464 N.E.2d 187; see,
also, McInnis v. Hyatt Legal Clinics, Inc. (1984), 10 Ohio St.3d 112, 461 N.E.2d
1295. In addition, “an affidavit from the defendant or acting attorney can suffice
as a legally sufficient basis upon which to grant a motion for summary judgment
absent an opposing affidavit of a qualified expert witness for the plaintiff.”
Roberts v. Hutton, 152 Ohio App.3d 412, 787 N.E.2d 1267, 2003-Ohio-1650, at ¶
55, citing Hoffman v. Davidson (1987), 31 Ohio St.3d 60, 62, 508 N.E.2d 958.
10 Case No. 3-09-14
{¶21} As previously noted, in support of his motion for summary
judgment, Attorney Leuthold attached his personal affidavit. In this affidavit, he
averred that he was a licensed attorney in the State of Ohio, had personal
knowledge of the facts and circumstances of the case, that he was competent to
testify about all matters in the case, that he did not breach any duty to the plaintiff
during his representation, and that his representation did not fall below the
standard of care of a reasonable attorney in similar cases. Mr. Christensen
provided no evidence, other than his own affidavit regarding what he believed to
be malpractice on Attorney Leuthold’s part, to demonstrate a genuine issue of
material fact as to whether Attorney Leuthold breached his duty to his client.
{¶22} Mr. Christensen averred that the following acts and/or failures to act
on the part of Attorney Leuthold constituted malpractice: (1) that Attorney
Leuthold failed to appear for the hearing in juvenile court and did not file an
appeal on his behalf; (2) that Attorney Leuthold did not properly represent him
during the divorce proceedings and his attorney’s actions during these proceedings
show that the attorney conspired with Mrs. Christensen, her attorney, and the GAL
to deprive him of his children, including failing to provide evidence to the court
that the witnesses against him were committing perjury and telling him that if he
agreed to attend counseling and to have supervised visitation with the children
initially, “the sooner he would petition the court to go from the agreed upon
11 Case No. 3-09-14
supervised weekly visits, to full custody[;]” and (3) that Attorney Leuthold did not
respond to his counselor’s questions regarding what type of counseling he needed
in order to obtain custody of his children.
{¶23} None of these claimed breaches of duty are within the ordinary
knowledge, experience and understanding of laymen such that would constitute
attorney malpractice as a matter of law. Instead, the claimed errors arose out of
numerous hearings, involving trial strategy and the attorney’s legal and ethical
obligation to have a good faith basis for presenting evidence and/or claims. See
Civ.R. 11; Prof. Cond. Rule 3.1. In addition, the record is devoid of any specific
information/evidence that Attorney Leuthold possessed and/or to which he had
access that supports Mr. Christensen’s claims regarding Attorney Leuthold’s
mishandling of the divorce proceedings and his failure to determine what kind of
counseling Mr. Christensen needed.9 Rather, Mr. Christensen’s response in
opposition to Attorney Leuthold’s motion for summary judgment, to which he
attached his personal affidavit averring that all factual statements contained in his
response were true, is purely self-serving and is largely unsupported by any other
evidence in the record. A party may not use his own self-serving affidavit to
establish a genuine issue of material fact if such affidavit contains nothing more 9 The only evidence regarding a request from Mr. Christensen’s counselor is a letter purportedly written by Sharon Howe, MA, LPCC, of Family Life Counseling & Psychiatric Services, on January 16, 2008. However, this letter is addressed to Attorney Starkey, not Attorney Leuthold. More importantly, this letter was not submitted to the trial court, but rather, is one of the exhibits provided to this Court by Mr. Christensen at the oral argument in this matter, which, as previously noted, is not properly before us for consideration.
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than bare contradictions of other competent evidence and a conclusory statement
of law. Combs v. Spence, 5th Dist. No. 2006CA0034, 2007-Ohio-2210, at ¶ 21,
citing Ohio v. $317.49 in United States Currency, 5th Dist. No. 2006-CA-00318,
2007-Ohio-475, at ¶ 30; see also Church v. Fleishour Homes, Inc., 172 Ohio
App.3d 205, 874 N.E.2d 795, 2007-Ohio-1806, at ¶ 34, citing Bhatia v. Johnston
(C.A.5, 1987), 818 F.2d 418, 421-422; Am. Heritage Life Ins. Co. v. Orr (C.A.5,
2002), 294 F.3d 702, 710 (self-serving affidavits, unsupported and without
corroborating evidentiary materials, are not sufficient to create a genuine issue of
material fact on summary judgment).
{¶24} Given the allegations made by Mr. Christensen to support his
malpractice action, an expert opinion was necessary to determine whether
Attorney Leuthold breached his duty to Mr. Christensen. Further, an expert would
have to evaluate Attorney Leuthold’s performance in light of the information
known to Attorney Leuthold during the pendency of the juvenile court and divorce
proceedings in order to form an opinion regarding whether he breached his duty.
{¶25} In the case sub judice, Mr. Christensen failed to present an expert
opinion that Attorney Leuthold breached his duty to Mr. Christensen during his
representation of Mr. Christensen. Naming someone as an expert in this area and
asking the trial court to make a pre-trial determination that this person is qualified
13 Case No. 3-09-14
as an expert in the legal field, as Mr. Christensen did, is simply not enough.10 As
such, no genuine issue of material fact existed as to whether Attorney Leuthold
breached his duty to Mr. Christensen. To the contrary, the only evidence on this
matter was that no breach occurred. Thus, summary judgment was properly
granted on this basis.
{¶26} Having determined that no genuine issue of material fact existed as
to the element of a breach of duty and that summary judgment was properly
granted on that basis, the issue regarding the statute of limitations is moot.
{¶27} For all these reasons, all five assignments of error are overruled and
the judgment of the Common Pleas Court of Crawford County, Ohio, is affirmed.
PRESTON, P.J., and ROGERS, J., concur.
/jlr
10 Mr. Christensen appears to believe that a motion to qualify a person as an expert in a certain field and a judicial finding that the person is qualified as an expert are pre-requisites to submitting that person’s expert opinion, through an affidavit or some form of testimony, on an issue to avoid summary judgment. However, this belief is inaccurate.