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Lopez v. Hulburt

Court of Appeals of Ohio, Ninth District, Summit

June 27, 2018

LUTHER LOPEZ Appellant
v.
SARAH HULBURT Appellee

          APPEAL 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.

          SARAH HULBURT, pro se, Appellee.

          DECISION AND JOURNAL ENTRY

          THOMAS A. TEODOSIO UNITED STATES DISTRICT JUDGE

         {¶1} 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.

         I.

         {¶2} 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.

         {¶3} 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 instanter.

         {¶4} 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.

         {¶5} 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."

         II.

         ASSIGNMENT OF ERROR I

         THE TRIAL COURT ERRED IN GRANTING [MS. HULBURT] SUMMARY JUDGMENT[.]

         {¶6} 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, ...


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