[Cite as Lopez v. Hulburt , 2019-Ohio-5331.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

LUTHER LOPEZ Appellant

v. SARAH HULBURT Appellee C.A. No. 29309

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV-2017-02-0788

DECISION AND JOURNAL ENTRY Dated: December 26, 2019

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

I. {¶2} This Court previously summarize d the history of this case in a prior appeal: [Defendant-Appellee Sarah] Hul burt is an attorney who was appoi nted to represent Mr. Lopez in a criminal matter. [In that matter, fol lowing plea negotiations, Mr. Lopez pleaded guilty to domestic violence and receiving stolen property, while a charge for ha ving weapons while under disabil ity was dismissed.] After the matter c oncluded, Mr. Lopez filed a civi l 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 judgme nt on the pleadings pursuant to Civ.R. 12(C). Because Ms. Hulburt attach ed evidence outside the complaint to her mo tion, the magistrate later const rued the motion for judgment on the pleadings as a motion to dismiss pursuant to Ci v.R. 12(B)(6), converted that motion into a mo tion for summary judgment, and g ave 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 evidenc e. In addition, Mr. Lopez filed a motion for su mmary judgment, purportedly rely ing on Ms. Hulburt's admissions based on her failure to respond to his req uest for admissions.2

With dispositive motions pending by both parties, Ms. Hulburt f iled an answer to the complaint, in which she disputed proper service, denied the material allegations, and raised a few affirmative defenses. It was aft er she filed her answer that the magistrate converted her prior motion for judgm ent 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 imp roper 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 or der allowing Ms. Hulburt to file her response to t he request for admissions inst anter. Shortly thereafter, the magistrate issued a magistrate’s order in which he purported to grant Ms. Hulburt’s motion for summary judgment, a nd “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 t o set aside the magistrate’s order. Mr. Lopez filed a motion for reconsiderati on. 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 previ ously 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 burd en of proof to Mr. Lopez as the nonmoving party. Accordingly, the trial court failed to proper ly 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 su mmary judgment or whether the t rial 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 a llowing 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 issu ed a scheduling order which pr ovided that discovery would be completed by November 16, 2018 and that disp ositive motions would be filed by November 30, 2018. In a ddition, the trial court requi red that initial expert witnesses had3

to be identified by September 28, 2018, and any rebuttal expert s were to be identified by and reports provided by October 29, 2018. {¶5} On October 3, 2018, Ms. Hulburt iden tified her rebuttal expert as Donald Hicks, a local attorney. Mr. Lopez did not identify an expert. Thereaf ter, both partie s filed several

motions. Of relevance to this a ppeal, Mr. Lopez filed a motion to deem unanswered admissions as admitted or, in the alternative, a motion to compel Ms. Hulb urt to answer the admissions. In addition, Mr. Lopez filed a moti on to extend the discovery dead line and a motion to strike the expert testimony of Mr. Hicks. T he trial court denied Mr. Lope z’ motions. {¶6} On November 30, 2018, Ms. Hulburt filed a motion for summary ju dgment along

with several exhibits. She incl uded her own affidavit, as well as the affidavit and expert report of Mr. Hicks. Mr. Lopez filed a brief in opposition to Ms. Hul burt’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 judgme nt 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 r eview.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BEFORE THE COMPLETION OF PLAINTIFF’S DISCOVERY WAS COMPLETED. {¶8} Mr. Lopez asserts in his first assignment of error that the tri al court erred in granting summary judgment prior to the completion of his discov ery.4

{¶9} “A trial court has the inherent a uthority to control its docket and to decide discovery matters. Accordingly, [t]his Court will not reverse a trial court’s decision concerning the regulation of its discovery proceedings absent an abuse of discretion.” (Internal citation and quotations omitted.) Herhold v. Smith Land Co. , 9th Dist. Summit No. 28915, 2019-Ohio-2418, ¶ 67. {¶10} Here, the trial court issued a s cheduling order providing that discovery would be completed by November 16, 2018 and dispositive motions would be filed on or before November 30, 2018. Ms. Hulburt’s motion for summary judgment w as filed November 30, 2018

and the trial court ruled o n the motion on January 16, 2019. I n so doing, the trial court noted that Mr. Lopez’ response was untimely, but nonetheless, in the inter ests of justice, opted to deem the response timely and considered his response. {¶11} Mr. Lopez points to a case from a federal district court, which he argues stands for the proposition that a party may not move for summary judgm ent until 30 days after the close of all discovery. However, even if we were to agree that the t rial court was bound by procedures in federal court, the case does not stand for the proposition M r. Lopez believes it does. That case states that “Federal Rule of Civil Procedure 56(b) permits a pa rty to move for summary judgment ‘at any time until 30 days after the close of all disc overy.’” Brooks v. Vision Wheel,

Inc. , W.D.Tenn. No. 11-2697-STA, 2012 WL 1252457, *2 (Apr. 13, 2012 ). {¶12} Mr. Lopez also seems to assert t hat he was prevented from condu cting adequate discovery because Ms. Hulburt fa iled to answer certain admissio ns. While Mr. Lopez did move the trial court to extend the discovery deadline and filed a mo tion to compel the answers, the trial

court denied the motions. Mr. Lopez has not expressly challeng ed the denial of his motion to5

extend discovery in this appeal. Further, Mr. Lopez’ challenge to the denial of his motion to compel is addressed below. {¶13} Overall, Mr. Lopez has not met his burden on appeal to demonstr ate the trial court erred in ruling on the motion for s ummary judgment when it did. {¶14} Mr. Lopez’ first assignme nt of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED BY REFUSING TO COMPEL THE APPELLEE TO ANSWER THE APPELLANTS UNANSWERED ADMISSIONS AND/OR REFUSING TO DEEM THE UNANSWERED ADMISSIONS DEEMED ADMITTED. [SIC.] {¶15} Mr. Lopez argues in his second assignment of error that the tri al court erred in failing to compel Ms. Hulburt to answer the admissions or in fa iling to deem the unanswered

admissions admitted. {¶16} As noted above, this Court revie ws rulings on discovery matters for an abuse of

discretion. Herhold , 2019-Ohio-2418, at ¶ 67. {¶17} In his motion, Mr. Lopez mainta ined that he propounded admissio ns upon Ms. Hulburt on September 17, 2018 and she repeatedly refused to res pond to all of them. Mr. Lopez did not submit Ms. Hulburt’s responses, or list the admissions that he asserted remained unanswered, in support of his mo tion. Ms. Hulburt responded to the motion asserting that she had served Mr. Lopez with her responses on or about October 2, 2018. She further maintained that objections to some of the admissions were properly entered under Civ.R. 36(A)(1)-(2). Thus, Ms. Hulbert argued that Mr. Lopez was seeking an incorrec t remedy. {¶18} The trial court denied Mr. Lopez’ motion as moot, noting that M s. Hulburt responded to Mr. Lopez’ motion st ating that she had served her responses on October 2, 2018. Mr. Lopez has not demonstrated that the trial court abused its discretion in doing so. In the trial6

court, Mr. Lopez did not submit Ms. Hulburt’s responses to his request for admissions nor did he identify the admissions he belie ved Ms. Hulburt failed to adequ ately respond to. Thus, it would

have been difficult for the trial court to even determine if th e responses to the admissions were inadequate under the law. More over, Ms. Hulburt replied that s he had responded to the request for admissions and that her responses included objections to so me of the statements. Subsequently, Mr. Lopez did not file anything disputing Ms. Hul burt’s contention. Accordingly, we cannot say that Mr. Lopez has demonstrated that the trial court abused its discretion in concluding that Mr. Lopez’ motion was moot. {¶19} Mr. Lopez’ second assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN DENYING APPELLANTS MOTION TO STRIKES THE APPELLEES EXPERT TESTIMONY AFTER IT WAS PROVING THAT THE EXPERT SUBMITTED MISLEADING, FRAUDULENT AND PERJURED TESTIMONY TO THE COURT. [SIC.] {¶20} Mr. Lopez argues in his third assignment of error that the tria l court erred in denying his motion to strike the expert testimony of Mr. Hicks. {¶21} A trial court’s ruling on a motion to strike is reviewed for an abuse of discretion.

See Flower v. Brunswick C ity School Dist. Bd. of Edn. , 9th Dist. Medina No. 14CA0021-M, 2015-Ohio-2620, ¶ 44. {¶22} Mr. Lopez did not argue that the affidavit and accompanying rep ort were improper Civ.R. 56 evidence, nor did he assert that Mr. Hicks f ailed to qualify as an expert. Instead, in essence, Mr. Lopez strongly disagreed with Mr. Hick s’ conclusions. Mr. Lopez has not pointed to any law that would require the trial court to st rike Mr. Hicks’ affidavit and report

for that reason. See App.R. 16(A)(7). While Mr. Lopez could have presented evidence to7

contradict the affidavit and re port of Mr. Hicks, he chose not to do so. Mr. Lopez has not

demonstrated that the trial c ourt abused its discretion in deny ing Mr. Lopez’ motion to strike. {¶23} Mr. Lopez’ third assignment of error is overruled.

ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE APPELLEE IN LIGHT OF BEING PRESENTED WITH A NUMBER OF GENUINE ISSUES IN DISPUTE. {¶24} Mr. Lopez argues in his fourth assignment of error that the tri al court erred in granting summary judgment to Ms. Hulburt. In so doing, Mr. Lop ez argues that this Court should not consider Mr. Hicks’ report; however, that issue was resolved in Mr. Lopez’ third assignment of error. In addition, Mr. Lopez asserts that case law confirms that Ms. Hulburt was negligent. {¶25} This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co ., 77 Ohio St.3d 102, 105 (1996). Thi s Court applies the same standard as the trial court, viewing the facts in the case in the light most favorabl e to the non-moving party and resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co. , 13 Ohio App.3d 7, 12 (6th Dist.1983). {¶26} Pursuant to Civ.R. 56(C), summa ry judgment is proper if: (1) No genuine issue as to any material fact remains to be liti gated; (2) the moving party is entitled to judgment as a matter of law; and (3 ) it appears from the evidence that reasonable minds can come to but one conclusi on, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that pa rty. Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327 (1977). {¶27} The party moving for summary judgment bears the initial burden of informing the

trial court of the basis for the motion and pointing to parts o f the record that show the absence of8

a genuine issue of material fact. Dresher v. Burt , 75 Ohio St.3d 280, 292-293 (1996). Specifically, the moving party must support the motion by point ing to some evidence in the record of the type listed in Civ.R. 56(C). Id . Once a moving party satisfies its burden of supporting its motion for summary judgment with acceptable evid ence pursuant to Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving party may not rest up on the mere allegations or denials of the moving party’s pleadings. Id . at 293. Rather, the non-moving party has a reciprocal burden of responding b y setting forth specific facts , demonstrating that a “genuine triable issue” exists to be litigated at trial. State ex rel. Zimmerman v. Tompkins , 75 Ohio St.3d 447, 449 (1996). {¶28} “To state a cause of action for legal malpractice arising from criminal representation, a plaintiff must allege (1) an attorney-client relationship giving rise to a duty, (2) a breach of that duty, and (3) damages proximately caused by th e breach.” Krahn v. Kinney , 43 Ohio St.3d 103 (1989), syllabus; see also Houser v. Pond , 9th Dist. Summit No. 21887, 2004- Ohio-4578, ¶ 11. “[A] plaintiff need not allege a reversal of his or her conviction in order to state a cause of action for legal malpractice arising from repr esentation in a criminal proceeding.” Id. at 106. The attorney’s duty is to exercise the knowledge, skill, and ab ility ordinarily possessed and exercised by membe rs of the legal profession simi larly situated, and to be ordinarily and reasonably diligent, careful, and prud ent[.] [I]n an action for legal malpractice, one must set forth expert testimony to e stablish an attorney’s alleged malpractice or breach of duty and care, unle ss the breach is so obvious that it can be determined b y the court or is within the ordinary knowledge and experience of laymen. Furthermore, an affidavit from the a cting attorney is a legally sufficient basis upon which to grant a motion for summa ry judgment in a legal malpractice action absent any opposing affidavit of a qua lified expert witness for the plaintiff. (Internal citations and quotations omitted.) Yates v. Barilla , 9th Dist. Lorain No. 11CA010055, 2012-Ohio-3876, ¶ 8.9

{¶29} In his complaint, Mr. Lopez raised several issues that he belie ved demonstrated Ms. Hulburt’s negligent representation of his criminal matter. Mr. Lopez asserted that Ms. Hulburt failed to pursue legal strategies that were discussed, failed to challenge Mr. Lopez’ denial of a preliminary hearing, failed to conduct an adequate investigation, failed to file a motion to dismiss the indictment as defective, encouraged Mr. L opez to plead guilty without conducting an adequate investiga tion, failed to object to the t rial court’s prison sentence when Mr. Lopez understood he was to receive community control, faile d to verify the information in the presentence investigation re port or provide Mr. Lopez with a copy of it, failed to advise Mr. Lopez of the dangers of allo cution, and failed to secure Mr. Lo pez’ right to an appeal. {¶30} In her motion for summary judgment, Ms. Hulburt argued that she met the standard of care in her representation of Mr. Lopez. In suppor t of her motion she submitted her

affidavit and the affidavit and report of Mr. Hicks. In additi on, she submitted the transcripts of the plea and sentencing hearings, a copy of a judgment entry fr om Mr. Lopez’ criminal matter denying his petition for post-convi ction relief, and letters fr om both the Supreme Court of Ohio Disciplinary Counsel and the Akron Bar Association dismissing h is grievances against Ms. Hulburt and closing the case files. {¶31} In Ms. Hulburt’s affidavit, she a verred that she was an attorne y in good standing with the Supreme Court of Ohio a nd licensed to practice law sin ce 2009. She asserted that she reviewed the complete case file as it related to her representa tion of Mr. Lopez in the criminal matter as well as the filings in the legal malpractice action. Ms. Hulburt averred that, “[b]ased upon [her] years of experience, education, and skill, [her] per sonal knowledge of the facts and circumstances involved in [her] r epresentation of [Mr.] Lopez, to a reasonable degree of professional certainty, [she] did not violate the standard of c are owed to [Mr.] Lopez by an10

attorney practicing in this geographic area, within the implica ted areas of law, when providing legal services to [Mr.] Lopez [in the underlying criminal matte r.]” Ms. Hulburt also detailed some of the history of her re presentation of Mr. Lopez. {¶32} Mr. Hicks, a licensed attorney since 1983, was engaged as an ex pert witness on behalf of Ms. Hulburt regarding Ms. Hulburt’s performance as it related to the standard of care owed Mr. Lopez in the underlying criminal case. Mr. Hicks also averred, based upon a reasonable degree of certainty, that Ms. Hulburt “did not breac h any duty in the attorney/client relationship by deviating from the applicable, accepted standar d of legal criminal defense practice in [the underlying criminal case.]” Mr. Hicks reviewe d the docket in the instant matter and the criminal matter, the case file in the criminal matter, related appeal dockets, the grievance memoranda filed by Mr. Lopez, a nd the transcripts of the plea a nd sentencing hearings. {¶33} As to Mr. Lopez’ allegations, Mr. Hicks pointed out that Ms. Hu lburt did not represent Mr. Lopez at the stage of the preliminary hearing, th at Ms. Hulburt exercised appropriate discretion in determin ing that motions posed by Mr. Lopez were without merit, and that Ms. Hulburt did not fail to conduct an adequate investigat ion. Mr. Hicks noted that “the discovery materials as a whole indicated the guilt of [Mr.] Lop ez [and a]s a conviction was likely, Attorney Hulburt properly exercised her duty to negotia te a plea on Lopez’ behalf.” It was Mr. Hicks’ opinion that “[t]h ere [was] no other fact-findin g or investigation that Attorney

Hulburt could have c onducted that would ha ve undone the evidenc e against [Mr.] Lopez.” Mr. Hicks also discussed the plea d eal and observed that Ms. Hulbur t’s negotiations resulted in the

dismissal of the most serious charge Mr. Lopez faced and elimin ated the possibility of 36 months in prison. Mr. Hicks did not find fault with Ms. Hulburt not ensuring that Mr. Lopez was placed on community control. Mr. Hicks pointed out that, under the pl ea deal, the State and Ms.11

Hulburt agreed to recommend a se ntence of community control, wh ich they both did, but in the end, sentencing was left to the d iscretion of the trial court. It was the trial court who chose to sentence Mr. Hicks to six months in prison. Mr. Hicks also fou nd that Ms. Hulbur t appropriately handled the pre-sentence investig ation report and concluded tha t nothing in the record indicated that Mr. Lopez wished to exercise his limited right to appeal. {¶34} In summary, Mr. Hicks’ report provided a detailed synopsis of h is analysis of Ms. Hulbert’s representation of Mr. Lopez in the criminal matter. His ultimate conclusion was that Ms. Hulbert did not breach any duty owed to Mr. Lopez. Therefo re, given all of the foregoing,

this Court concludes that Ms. Hulbert met her initial burden. Further, as Mr. Lopez did not present any evidence, expert or otherwise, to rebut Ms. Hulburt ’s evidence he failed to meet his reciprocal burden. Mr. Lopez ha s not demonstrated that the tri al court erred in granting Ms. Hulburt’s motion for summary jud gment on his claim for legal ma lpractice. {¶35} Mr. Lopez’ fourth assignment of error is overruled.

III. {¶36} Mr. Lopez’ assignments of error are overruled. The judgment of the Summit County Court of Comm on Pleas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.12

Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT

TEODOSIO, P. J. SCHAFER, J. CONCUR.

APPEARANCES: LUTHER LOPEZ, pro se, Appellant. MICHELLE STINE BARNOFF, Attorney at Law, for Appellee.