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Lopez v. Hulburt

Court of Appeals of Ohio, Ninth District, Summit

December 26, 2019

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

          LUTHER LOPEZ, PRO SE, APPELLANT.

          MICHELLE STINE BARNOFF, ATTORNEY AT LAW, FOR APPELLEE.

          DECISION AND JOURNAL ENTRY

          DONNA J. CARR JUDGE.

         {¶1} Plaintiff-Appellant Luther Lopez appeals, pro se, the judgment of the Summit County Court of Common Pleas. This Court affirms.

         I.

         {¶2} This Court previously summarized the history of this case in a prior appeal:

[Defendant-Appellee Sarah] Hulburt is an attorney who was appointed to represent Mr. Lopez in a criminal matter. [In that matter, following plea negotiations, Mr. Lopez pleaded guilty to domestic violence and receiving stolen property, while a charge for having weapons while under disability was dismissed.] 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 instanter.
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."

Lopez v. Hulburt, 9th Dist. Summit No. 28817, 2018-Ohio-2499, ¶ 2-4.

         {¶3} This Court reversed the trial court's grant of summary judgment to Ms. Hulburt, concluding "the trial court improperly shifted the initial burden of proof to Mr. Lopez as the nonmoving party. Accordingly, the trial court failed to properly consider Ms. Hulburt's motion for summary judgment." Id. at ¶ 9. We declined to address whether the trial court erred in denying Mr. Lopez' motion for summary judgment or whether the trial court erred in granting summary judgment before discovery was completed. Id. at ¶ 11, 15. However, we did conclude the trial court did not err in allowing Ms. Hulbert to file her responses to Mr. Lopez' requests for admissions beyond the time allotted by the rules. Id. at ¶ 12.

         {¶4} Upon remand, the trial court issued a scheduling order which provided that discovery would be completed by November 16, 2018 and that dispositive motions would be filed by November 30, 2018. In addition, the trial court required that initial expert witnesses had to be identified by September 28, 2018, and any rebuttal experts were to be identified by and reports provided by October 29, 2018.

         {¶5} On October 3, 2018, Ms. Hulburt identified her rebuttal expert as Donald Hicks, a local attorney. Mr. Lopez did not identify an expert. Thereafter, both parties filed several motions. Of relevance to this appeal, Mr. Lopez filed a motion to deem unanswered admissions as admitted or, in the alternative, a motion to compel Ms. Hulburt to answer the admissions. In addition, Mr. Lopez filed a motion to extend the discovery deadline and a motion to strike the expert testimony of Mr. Hicks. The trial court denied Mr. Lopez' motions.

         {¶6} On November 30, 2018, Ms. Hulburt filed a motion for summary judgment along with several exhibits. She included her own affidavit, as well as the affidavit and expert report of Mr. Hicks. Mr. Lopez filed a brief in opposition to Ms. Hulburt's motion for summary judgment but submitted no accompanying evidentiary materials. Ms. Hulburt subsequently submitted a reply brief.

         {¶7} The trial court granted Ms. Hulburt's motion for summary judgment determining that Ms. Hulburt met her initial burden and Mr. Lopez failed to meet his reciprocal burden. Mr. Lopez has appealed, raising four assignments of error for our review.

         II.

ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BEFORE THE COMPLETION OF PLAINTIFF'S ...

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