[Cite as Christensen v. Leuthold,

.]

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),

,

. 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

8 Case No. 3-09-14

whom the motion for summary judgment is made, such party being entitled to

have the evidence construed most strongly in his favor.”

{¶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),

,

, 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,

,

,

.

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.”

{¶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,

,

,

, at ¶ 8, citing Vahila v.

9 Case No. 3-09-

Ohio St.3d 421, 427,

,

; Krahn v. Kinney

(1989),

,

. “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.”

{¶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),

, syllabus,

; see,

also, McInnis v. Hyatt Legal Clinics, Inc. (1984),

,

. 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,

,

,

, at ¶

55, citing Hoffman v. Davidson (1987),

,

.

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.

12 Case No. 3-09-14

than bare contradictions of other competent evidence and a conclusory statement

of law. Combs v. Spence, 5th Dist. No. 2006CA0034,

,

citing Ohio v. $317.49 in United States Currency, 5th Dist. No. 2006-CA-00318,

; see also Church v. Fleishour Homes, Inc.,

,

,

, at ¶ 34, citing Bhatia v. Johnston

(C.A.5, 1987),

; Am. Heritage Life Ins. Co. v. Orr (C.A.5,

2002),

, 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.

Judgment 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.

14