FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CV-2017-02-0788
APPEARANCES: LUTHER LOPEZ, pro se, Appellant.
HULBURT, pro se, Appellee.
DECISION AND JOURNAL ENTRY
A. TEODOSIO UNITED STATES DISTRICT JUDGE
Appellant, Luther Lopez, appeals the judgment of the Summit
County Court of Common Pleas, that granted summary judgment
in favor of Appellee, Sarah Hulburt, on the claims in Mr.
Lopez' complaint. This Court reverses and remands.
Ms. Hulburt is an attorney who was appointed to represent Mr.
Lopez in a criminal matter. After the matter concluded, Mr.
Lopez filed a civil complaint against Ms. Hulburt, alleging
legal malpractice. In lieu of an answer or motion to dismiss
pursuant to Civ.R. 12(B), Ms. Hulburt filed a motion for
judgment on the pleadings pursuant to Civ.R. 12(C). Because
Ms. Hulburt attached evidence outside the complaint to her
motion, the magistrate later construed the motion for
judgment on the pleadings as a motion to dismiss pursuant to
Civ.R. 12(B)(6), converted that motion into a motion for
summary judgment, and gave Mr. Lopez thirty days in which to
respond. Prior to the conversion to a motion for summary
judgment, however, Mr. Lopez had responded in opposition to
the motion for judgment on the pleadings, attaching his own
extraneous evidence. In addition, Mr. Lopez filed a motion
for summary judgment, purportedly relying on Ms.
Hulburt's admissions based on her failure to respond to
his request for admissions.
With dispositive motions pending by both parties, Ms. Hulburt
filed an answer to the complaint, in which she disputed
proper service, denied the material allegations, and raised a
few affirmative defenses. It was after she filed her answer
that the magistrate converted her prior motion for judgment
on the pleadings into a motion for summary judgment. Ms.
Hulburt also filed a motion for the trial court to accept her
filing of her responses to Mr. Lopez' request for
admissions instanter, based on improper Civ.R. 36(A) service
of the request and Mr. Lopez' failure to certify service.
The trial court granted Ms. Hulburt's motion. Mr. Lopez
filed a motion for reconsideration of the order allowing Ms.
Hulburt to file her response to the request for admissions
Shortly thereafter, the magistrate issued a magistrate's
order in which he purported to grant Ms. Hulburt's motion
for summary judgment, and "overrule" Mr.
Lopez' motion for summary judgment. Citing Civ.R.
53(D)(2)(b), the order stated that any party may file a
motion within ten days to set aside the magistrate's
order. Mr. Lopez filed a motion for reconsideration. The
trial court issued an order finding that Mr. Lopez had failed
to submit any evidence to establish any material issues of
fact. It, therefore, ordered that it "grants [Ms.]
Hulburt's Motion for Judgment on the Pleadings, which was
previously converted into a Motion for Summary Judgment, on
all claims contained in [Mr.] Lopez' Complaint."
Mr. Lopez filed a timely appeal in which he raises four
assignments of error for review.
As an initial matter, we note that Ms. Hulburt has failed to
file an appellee's brief. Accordingly, pursuant to App.R.
18(C), "in determining the appeal, the court may accept
the appellant's statement of the facts and issues as
correct and reverse the judgment if appellant's brief
reasonably appears to sustain such action."
OF ERROR I
TRIAL COURT ERRED IN GRANTING [MS. HULBURT] SUMMARY
Mr. Lopez argues that the trial court erred by granting
summary judgment to Ms. Hulburt on his claims. Mr. Lopez does
not challenge the machinations engaged in by the trial court
in converting Ms. Hulburt's motion for judgment on the
pleadings into a motion for summary judgment. Accordingly, we
decline to address that issue. Nevertheless, ...