COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68061 ERNST & DOWLING : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION LONNIE TURNER, JR., ET AL. : : Defendants-appellants : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 18, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-272411 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendants-Appellants: CHRISTOPHER M. ERNST, ESQ. LONNIE TURNER, JR. PRO SE DAWN M. DOWLING, ESQ. JANIS COCHRAN TURNER, PRO SE ERNST & DOWLING 3141 E. Derbyshire The Hilliard Building Cleveland Hts., Ohio 44118 Second Floor 1419 West Ninth Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Defendants-appellants, Lonnie and Janis Turner appeal a summary judgment granted in favor of Plaintiff-appellee law firm, Ernst & Dowling in its action to recover unreimbursed costs and expenses. Appellants claim that the trial court erred in granting appellee's motion for summary judgment because it was prematurely filed. They also claim that "disputed" issues of fact remain with respect to whether appellee is entitled to receive the entire amount awarded. Upon review, we find appellants' assignments of error to be devoid of merit. Hence, we affirm the judgment of the trial court. The facts which gave rise to this appeal are stated as follows. On June 16, 1994 appellee law firm filed an action to recover $9,046.70 in unreimbursed costs and expenses incurred during the representation of appellants in a personal injury 1 claim. Service of process was perfected on July 5, 1994. On July 29, 1994 appellants' counsel, Mitchell Johnson, filed a Notice Of Appearance and a Motion For Leave to Plead. The trial court granted Appellants an extension to answer until August 30, 1994. On August 11, 1994 appellee filed a Motion for Summary Judgment. On September 8, 1994 it filed a Motion for Default Judgment. On September 21, 1994 the trial court granted appellee's unopposed 1 Appellee represented appellants in Turner, et al. v. Cozzens, C.C.P. Case No. 248486. The jury verdict rendered against appellants was affirmed by this court in Turner v. Cozzens (November 22, 1995) Cuyahoga App. No. 67808, unreported. - 3 - 2 motion for summary judgment in the amount of $9,046.10. On September 22, 1994 appellants filed a Motion For Leave to file an Answer, Counterclaim and Third Party Complaint. These motions were denied on September 26, 1994. On September 29, 1994 appellants filed a Motion for Relief From Judgment and a Motion for 3 Reconsideration and Rehearing which were denied and not appealed. The instant appeal followed. I THE TRIAL COURT ERRED IN GRANTING THE PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT WHEN IT WAS FILED PREMATURELY AND WHEN THERE WAS A DEFAULT JUDGMENT HEARING PENDING. Appellants claim that the trial court erred in awarding summary judgment because appellee's motion was prematurely filed to wit, filed before appellants' extended period to answer expired on August 30, 1994. (See, Civ.R. 56(A)) Appellants also claim error in that the motion was granted during the pendency of appellee's default hearing. Upon review, we find these arguments to be devoid of merit. 2 There is a sixty cent difference between the amount prayed for in appellee's complaint and the amount awarded to wit, $9,046.70 and $9,046.10. However, appellee has indicated that such difference constitutes a de minimis, typographical error. 3 The record demonstrates that the trial court denied these post-judgment motions on October 21, 1994. However, due to an administrative error such denial was not docketed. Upon receipt of the instant appeal, this court sua sponte remanded the case for the limited purpose of having the trial court journalize its Civ.R. 60(B) ruling. See, Cuyahoga App. Motion No. 64545. The trial court set forth its grounds for denial in a three page opinion journalized on August 15, 1995. See, Vol. 877, Pg. 464. - 4 - It is well settled that a litigant's failure to object to errors which could have been raised below constitutes a waiver of same for purposes of appellate review. See, Oster v. Motorists Mut. Ins. Co (May 4, 1989), Cuyahoga App. No. 56420, unreported. Moreover, this court has specifically held that litigants have a duty to respond to improperly filed motions by filing a motion to strike or by otherwise interposing a timely objection. See, Hines v. Aetna Cas. & Sur. Co. (January 9, 1992), Cuyahoga App. No. 59600, unreported citing Rodger v. McDonald's Restaurants of Ohio, Inc. (1982), 8 Ohio App.3d 256, 258 at fn. 7; Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App.3d 78, 82 and Brown v. Ohio Cas. Ins. Co. (1978), 63 Ohio App.2d 87. Appellants received notice of appellee's prematurely filed motion on or about August 11, 1994. The trial court did not grant the motion until September 21, 1994. Hence, appellants had over 40 days to move to strike or object to same. However, they failed to do so. The record demonstrates that appellants not only failed to file a motion to strike or a motion to object, they failed to file a brief in opposition to the motion and also failed to comply with the court's order to answer appellee's complaint by August 30, 1994. Hence, appellants filed no other responsive pleadings in this case until after the court awarded summary judgment on September 21, 1994. We find appellants' pendency argument to be similarly devoid of merit as the record clearly demonstrates that the court predicated its judgment on the merits of appellee's - 5 - unopposed motion for summary judgment not its motion for default judgment. Having failed to object to appellee's prematurely filed motion, appellants have waived any procedural error committed by the trial court in considering same. Their first assignment of error is overruled. II THE TRIAL COURT ERRED IN HOLDING THE DEFENDANTS LIABLE FOR THE INEXCUSABLE NEGLIGENCE OF THEIR ATTORNEY, WHO FAILED TO RESPOND TO THE MOTION FOR SUMMARY JUDGMENT. Appellants' second assignment of error is devoid of merit. The issue of whether counsel's negligence was excusable or inexcusable was the subject of appellants' denied Civ.R. 60(B) motion. Such issue is not before this court as the final order appealed from in this case is the trial court's award of summary judgment. Having failed to file a timely appeal of the denial of their Civ.R. 60(B) motion, appellants are precluded from doing so now. The bootstrapping of unappealed Civ.R.60(B) issues to this Civ.R. 56(C) appeal is procedurally prohibited. See, App.R. 4 and State v. Church (November 2, 1995), Cuyahoga App. No. 68590, unreported. Appellants' second assignment of error is overruled. III THE TRIAL COURT ERRED IN GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AS THERE EXISTED DISPUTED ISSUES OF MATERIAL FACT. In their third assignment of error appellants claim that "disputed" issues of fact remain with respect to whether they owe appellee the entire amount awarded. Such argument is meritless as - 6 - appellants failed to file a brief in opposition to create such claimed "dispute." Summary judgment is proper, pursuant to Civ.R. 56(C) if the trial court determines that: (1)No genuine issue as to any material fact remains to be litigated; (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 conclu- sion 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 party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274; see, also Delker v. Ohio Edison Co. (1989), 47 Ohio App.3d 1, 2, 546 N.E.2d 975, 976. Once summary proceedings have been properly initiated, the responding party must set forth specific facts demonstrating triable issues on all essential matters for which he bears the initial burden of proof. Mere reliance upon the pleadings is insufficient. Civ.R. 56(D); see, also, Celotex Corp. v. Catrett (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211. The issue to be tried must also be "genuine," allowing reasonable minds to return a verdict for the nonmoving party. Id. 477 U.S. at 248-252, 106 S.Ct. at 2510-2512, 91 L.Ed. at 211-214. See, Manofsky v. Goodyear Tire & Rubber Co. (1990), 69 Ohio App.3d 663, 666 motion to certify overruled (1991), 58 Ohio St.3d 703. At the time the trial court reviewed appellee's motion it was supported by a copy of appellants' executed contingent fee contract indicating their agreement to pay for incurred costs and expenses and a summary of invoices in appellee's name in the amount of $9,046.70. Appellants' claim that the award was erroneous because appellee Exhibits "I" and "J" indicated that $3,375 was owed - 7 - directly to "Cohen and Company" and not to appellee is moot as the record demonstrates that appellee deducted this amount from a total of $12, 421.70 in incurred costs and expenses to arrive at its prayer for $9,046.70. Since, appellants' contractual liability to the appellee in the amount of $9,046.70 was fully supported in appellee's unopposed motion, no triable issue of fact remains with respect to such liability. Appellants' third assignment of error is overruled. The summary judgment of the trial court is affirmed. - 8 - It is ordered that appellees recover of appellants its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. KARPINSKI, J., AND MCMONAGLE, J., CONCUR ANN DYKE PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .