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Croft v. Lindgren

Court of Appeals of Ohio, First District

July 19, 2013

DAMON CROFT, Plaintiff-Appellant,
v.
LAWRENCE F. LINDGREN, Defendant-Appellee.

Civil Appeal From: Hamilton County Juvenile Court, TRIAL NO. A-1102353

Stephen R. Felson and Robert B. Newman, for Plaintiff-Appellant,

Reminger Co., L.P.A., Robert W. Hojnoski and Carrie M. Starts, for Defendant Appellee.

OPINION

Hildebrandt, Presiding Judge.

{¶1} Plaintiff-appellant Damon Croft appeals the summary judgment entered by the Hamilton County Court of Common Pleas in favor of defendant-appellee Lawrence F. Lindgren in a legal-malpractice action.

Croft's Guilty Pleas and Sentencing

{¶2} In 2009, Croft was indicted for two counts of violating a protection order. Although charged in the same indictment, the alleged offenses arose from separate protection orders. Both counts were charged as felonies of the third degree rather than felonies of the fifth degree because Croft was alleged to have violated the orders while committing a felony, specifically menacing by stalking. Nonetheless, he was not separately charged with menacing by stalking.

{¶3} Croft retained Lindgren to represent him in the matter. In April 2009, Croft entered guilty pleas to the charges and was sentenced to two concurrent three-year terms of imprisonment.

{¶4} On August 13, 2010, Croft, through a different attorney, filed a motion to withdraw his guilty pleas. The basis for the motion was that Lindgren had improperly advised him to enter the pleas because the enhancement of the offenses had "violated Croft's federal and state constitutional rights to Due Process and to be free from Double Jeopardy."

{¶5} On October 13, 2010, the court journalized an entry stating, "By agreement of the parties, the defendant is permitted to withdraw his guilty plea." Croft then entered guilty pleas under the same indictment, but the offenses were amended to felonies of the fifth degree. He was sentenced to 180 days' confinement on count one and a concurrent term of 12 months' imprisonment on count two. Croft was given credit for time already served, and he was released.

{¶6} On March 21, 2011, Croft filed a complaint against Lindgren. He contended that Lindgren had committed malpractice by failing to assert the argument advanced in the motion to withdraw the guilty plea, namely that violating a protection order and menacing by stalking were allied offenses of similar import, rendering the enhancement of the offenses improper. Lindgren filed a counterclaim for breach of contract, asserting that Croft owed unpaid attorney fees.

{¶7} Lindgren filed a motion for summary judgment with respect to Croft's claim and his own counterclaim. The trial court granted the motion with respect to both, ordering that Croft pay Lindgren $1732 in damages.

Malpractice and Summary Judgment

{¶8} In his first assignment of error, Croft argues that the trial court erred in entering summary judgment in favor of Lindgren on the malpractice claim. Croft argues that he had met his burden of demonstrating that Lindgren was deficient in his representation for ...


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