COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72136 CAROL PISANI : : Plaintiff-Appellant : JOURNAL ENTRY : v. : AND : GLENN PISANI, ET AL. : OPINION : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 11, 1997 CHARACTER OF PROCEEDING: Civil appeal from the Cuyahoga County Common Pleas Court Case No. CV-309505 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ______________________________ APPEARANCES: For Plaintiff-Appellant: CAROL PISANI, Pro Se 30 Commons Court Chagrin Falls, Ohio 44022 For Defendants-Appellees: RICHARD J. RYMOND P.J. MOONEY JACK A. KRONENBERG RONALD A. MINGUS Kronenberg & Kronenberg Reminger & Reminger Co., LPA 410 Midland Building The 113 St. Clair Building 101 Prospect Avenue Cleveland, Ohio 44114 Cleveland, Ohio 44115 CRAIG J. MORICE WILLIAM J. HEINE PETER A. RUSSELL 3429 West 159th Street RICHARD S. KOBLENTZ Cleveland, Ohio 44111 Koblentz & Koblentz 75 Public Square Suite 1025 Cleveland, Ohio 44113 -2- O'DONNELL, J.: Carol Pisani appeals from separate judgments of the General Division of Common Pleas Court alleging the court erred in dismissing her separate claims against Dr. Yael Crawford and Dr. Sandra McPherson, two psychologists who testified during her divorce proceedings; against both William Heine, Esq., the guardian ad litem for her children, and Richard Koblentz, Esq., opposing counsel in the divorce case; against her former husband, Glenn Pisani and Theresa Schustrich, her children's former babysitter; and also challenging the court's grant of summary judgment in favor of Joel Gecht, her ex-husband's psychologist. Having thoroughly reviewed the record in this case, we affirm these judgments. The matters which led to this appeal began in 1994 when Carol and Glenn Pisani obtained a divorce, and the court awarded custody of their minor children, Carly and Kyle, to Glenn Pisani. This court affirmed that decision in Pisani v. Pisani (January 25, 1996), Cuy. App. Nos. 67814, 68044, unreported. On May 31, 1996, however, Carol Pisani filed the instant action against Crawford, McPherson, Heine, Koblentz, Schustrich, Gecht, and her ex-husband, alleging invasion of privacy against each, claims of slander against Heine and Koblentz, and a malpractice claim against Gecht. Significantly, she based these claims on communications made surrounding the divorce litigation. All parties moved for dismissal except Gecht, who moved for summary judgment. The court granted summary judgment to Gecht and dismissed all remaining parties. Carol Pisani now appeals, raising -3- nine assignments of error for our review. Because the first, second, third, fourth, fifth and seventh assignments of error concern similar questions of law, we shall consider them jointly. These state: I. THE TRIAL COURT ERRED IN DISMISSING DEFENDANT YAEL CRAWFORD AS A MATTER OF LAW THAT SHE WAS COURT APPOINTED WHEN SHE WAS NOT AND WITHOUT AN AFFADAVIT [sic]. II. THE TRIAL COURT ERRED IN DISMISSING DEFENDANT YAEL CRAWFORD AS A MATTER OF LAW AFTER OCTOBER 1994 WHEN THE PISANI DIVORCE CASE WAS OVER AND IN THE COURT OF APPEALS AND SHE WAS NEVER COURT APPOINTED. III. THE TRIAL COURT ERRED IN DISMISSING DEFENDANT WILLIAM HEINE AS A MATTER OF LAW AS BEING IMMUNE AS A COURT APPOINTED GUARDIAN. IV. THE TRIAL COURT ERRED IN DISMISSING DEFENDANT SANDRA MCPHERSON AS A MATTER OF LAW AS BEING IMMUNE AS THE COURT APPOINTED PSYCHOLOGIST. V. THE TRIAL COURT ERRED IN DISMISSING SANDRA MCPHERSON AS A MATTER OF LAW AFTER OCTOBER 1994 WHEN SHE ACTED ON HER OWN BEHALF AND NOT UNDER THE DIRECTION OF THE COURT BECAUSE THE CASE WAS OVER. VII. THE TRIAL COURT ERRED IN DISMISSING DEFENDANT KOBLENTZ AS A MATTER OF LAW ON IMMUNITY OR WHATEVER THEY DISMISSED HIM FOR. Appellant contends the court erred when it dismissed Crawford and McPherson, as they were not court-appointed experts, and further erred in dismissing Heine and Koblentz, as they were not immune from liability. Each of these appellees urges the trial court properly granted their respective motions to dismiss. -4- The issue then presented for our review is whether the court erred when it dismissed appellant's claims against these appellees. In Tulloh v. Goodyear Atomic Corp. (1992), 62 Ohio St.3d 541, 544, the court articulated the relevant standard of review: When construing a complaint upon a motion to dismiss for failure to state a claim, it is presumed that all factual allegations in the complaint are true and it must appear beyond doubt that the plaintiff can prove no set of facts warranting recovery. We begin our analysis by reviewing the law regarding immunity to those involved in litigation. In Willitzer v. McCloud (1983), 6 Ohio St.3d 447, 448-49, the court stated: It is a well-established rule that judges, counsel, parties, and witnesses are absolutely immune from civil suits for defamatory remarks made during and relevant to judicial proceedings. Such immunity also extends to a guardian ad litem. See Penn v. McMonagle (1990), 60 Ohio App.3d 149. Further, the same rule of law precludes actions for invasion of privacy. Wallace v. Feador (November 3, 1983), Cuy. App. No. 46662, unreported. Additionally, the court in Elling v. Graves (1994), 94 Ohio App.3d 382, 387, stated in relevant part: [A] witness is immune from civil liability for giving false testimony. * * * This ban on civil liability for false statements applies even in cases where the party testifying knew his statements were false. See Stoll v. Kennedy (1987), 38 Ohio App.3d 102; Schmidt v. Statistics, Inc. (1978), 62 Ohio App.2d 48; Baker v. Orlowsky (1971), 28 Ohio App.2d 188; Wallace, supra. -5- In Fallang v. Cormier (1989), 63 Ohio App.3d 450, 452, the court held that [t]he absolute privilege that applies to trial and deposition testimony likewise extends to communications involving pending litigation as between parties, counsel and potential witnesses. (Emphasis added). See Kelley v. Sweeney (November 18, 1993), Cuy. App. No. 63931, unreported. Accordingly, these appellees, in their respective capacities enjoyed immunity from civil liability, in connection with appellant's claims against them. Appellant specifically argues, however, that because McPherson arranged for Crawford to supervise visitation between Carol Pisani and her children, and because the court did not make that appointment, Crawford did not possess absolute immunity. The record reflects that Crawford supervised twenty-two visitations, kept her own records, and testified before the court magistrate regarding these visitations, which influenced the decision regarding custody of the Pisani children. As a witness, Crawford was entitled to the same immunity as other witnesses, regardless of court appointment. Appellant further complains of the following colloquy which occurred during the course of the proceedings in this case involving Koblentz: November 1stMS. PISANI: It's my birthday, , I'll get to see our kids. MR. KOBLENTZ: Right and they'll get to spit in your face. We recognize that DR 7-106(C) of the Code of Professional Responsibility states: -6- In appearing in his professional capacity before a tribunal, a lawyer shall not: * * * (6) Engage in undignified or discourteous conduct which is degrading to a tribunal. This prohibition, however, does not give rise to an independent cause of action against appellee-Koblentz for invasion of privacy or slander. Here, therefore, the trial court did not err in dismissing appellant's claims against Koblentz, despite his courtroom comment. Based on the foregoing analysis, we affirm the court's judgments in each instance, with regard to Crawford, McPherson, Heine and Koblentz. The sixth assignment of error states: VI. THE TRIAL COURT ERRED IN GRANTING DEFENDANT GECHT SUMMARY JUDGMENT AS A MATTER OF LAW. Appellant here contends she established a prima facie case of malpractice against Gecht and, therefore, urges the trial court erred in granting summary judgment. Gecht maintains appellant failed to establish a prima facie negligence case against him and, thus, the court properly granted summary judgment. The issue then presented for our review is whether the trial court properly granted summary judgment in this instance. Civ.R. 56(C) states in relevant part: * * * Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of -7- 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. We begin by examining the law of professional negligence as it relates to psychologists. In order to establish liability, appellant must demonstrate, by a preponderance of evidence, the existence of a duty owed by the psychologist, as defined by the standard of care in the psychological community, breach of that duty, and resultant injury proximately caused by that psychologist's act or omission. Further, without evidence from a properly qualified expert witness, based upon reasonable psychological certainty, liability cannot be established. Accord State v. Lowe (1994), 69 Ohio St.3d 527. In Stinson v. England (1994), 69 Ohio St.3d 451, the court stated in the first paragraph of its syllabus: The admissibility of expert testimony that an event is the proximate cause is contingent upon the expression of an opinion by the expert with respect to the causative event in terms of probability. (Citations omitted). * * * Consequently, expert opinion regarding a causative event, including alternative causes, must be expressed in terms of probability irrespective of whether the proponent of the evidence bears the burden of persuasion with respect to the issue. -8- Here, appellant produced an expert witness report, prepared by Dr. Terence W. Campbell, Ph.D., which stated in relevant part: If Dr. Gecht has no independent recall of his February 7, 1995 session with Mr. Pisani, then it seems unlikely that his opinion regarding Mr. Pisani's counseling needs was based on professionally derived knowledge. This statement does not constitute evidence, to a reasonable degree of psychological certainty, that Gecht breached any standard of care, and appellant offered no other evidence of Gecht's alleged professional negligence, or proximate cause of any resultant injury to her. The trial court, therefore, properly granted summary judgment in favor of Gecht. Accordingly, the sixth assignment of error is overruled. The eighth and ninth assignments of error state: VIII. THE TRIAL COURT ERRED IN DISMISSING DEFENDANT THERESE SCHUSTRICH WITHOUT ANY LAW PRESENTED BY THE DEFENDANT AND WITHOUT A TRIAL BECAUSE IT IS A MATTER OF FACT. IX. THE TRIAL COURT ERRED IN DISMISSING DEFENDANT GLENN PISANI WITHOUT ANY LAW PRESENTED BY THE DEFENDANT AND WITHOUT A TRIAL BECAUSE IT IS A MATTER OF FACT. Appellant contends the trial court erred when it dismissed Glenn Pisani and Theresa Schustrich, because they did not provide any law to the court. These appellees argue that appellant failed to state a justiciable cause of action against them as recognized under Ohio law. The issue then for our determination is whether the trial court properly dismissed these appellees from the lawsuit. -9- Upon our review of the allegations set forth in the complaint, it becomes obvious that appellant's complaint failed to state a cause of action against either Glenn Pisani or Theresa Schustrich. Appellant alleged her former husband manipulated the court in an effort to obtain custody of Carly and Kyle, and further alleged the babysitter interfered with appellant's efforts to obtain visitation. These allegations, however, do not constitute cognizable causes of action in Ohio and, therefore, the court properly granted the motions to dismiss these claims. Accordingly, the eighth and ninth assignments of error are overruled. Judgment affirmed. -10- 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 .