FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CV-2017-02-0788
LOPEZ, PRO SE, APPELLANT.
MICHELLE STINE BARNOFF, ATTORNEY AT LAW, FOR APPELLEE.
DECISION AND JOURNAL ENTRY
J. CARR JUDGE.
Plaintiff-Appellant Luther Lopez appeals, pro se, the
judgment of the Summit County Court of Common Pleas. This
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
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."
Lopez v. Hulburt, 9th Dist. Summit No. 28817,
2018-Ohio-2499, ¶ 2-4.
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.
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.
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'
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.
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
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BEFORE THE
COMPLETION OF PLAINTIFF'S ...