[Cite as Clareshire Court Condominium Unit Owners' Assn. v. Montilla, 2013-Ohio-3911.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 97024


              CLARESHIRE COURT CONDOMINIUM
                 UNIT OWNERS’ ASSOCIATION

                                                         PLAINTIFF-APPELLEE

                                                   vs.

                        JULIE M. MONTILLA, ET AL.
                                                         DEFENDANTS-APPELLANTS




                                          JUDGMENT:
                                           DISMISSED


                                    Civil Appeal from the
                              Cuyahoga County Common Pleas Court
                                    Case No. CV-544136

        BEFORE: E.A. Gallagher, J., Jones, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                        September 12, 2013
FOR APPELLANT

Richard A. Medlar, pro se
24625 Clareshire Ct. #103
North Olmsted, OH 44070

ATTORNEYS FOR APPELLEES

Clareshire Court Condominium
Unit Owners’ Association

Dean W. Kanellis
Leonard A. Cuilli
Keith D. Weiner & Associates Co.
75 Public Square, 4th Floor
Cleveland, OH 44113


Third Federal Savings and Loan
Association

Bryan F. Hegyes
Jones & Hegyes Co., L.P.A.
38040 Euclid Avenue
Willoughby, OH 44094
EILEEN A. GALLAGHER, J.:

       {¶1} Richard A. Medlar appeals from the decision of the trial court granting

summary judgment in favor of the Clareshire Court Condominium Unit Owners’

Association. For the reasons enunciated below, the within appeal is hereby dismissed.

       {¶2} Clareshire Court filed a complaint against Julie M. Montilla and Third

Federal Savings and Loan seeking to foreclose on three certificates of lien for unpaid

common expenses. Montilla filed an answer disputing the alleged expenses and fees

and asserted a variety of counterclaims, including intentional infliction of emotional

distress. Montilla died during the pendency of the proceedings and the trial court, upon

motion of the defendant, substituted her estate as the defendant herein.

       {¶3} Clareshire Court moved for summary judgment, the estate responded and

the trial court found in favor of Clareshire Court.   The estate filed a notice of appeal

from the first judgment, Clareshire Court Condo. Unit Owners v. Montilla, 8th Dist.

Cuyahoga No. 90461, 2008-Ohio-4242. This court determined that the trial court did

not err in ruling on the parties’ discovery dispute and that there was no evidence

demonstrating Montilla’s intentional infliction of emotional distress claim. However,

this court held that genuine issues of material fact remained as to the amount owed by

Montilla and/or Clareshire Court.     The court reversed and remanded the matter for

further proceedings.
          {¶4} Proceedings resumed at the trial court.       However, on the day of the

scheduled trial, the court stayed the proceedings because of the Chapter 7 Bankruptcy

filing of Richard A. Medlar, fiduciary for the estate of Montilla.    We acknowledge that

the court’s journal entry of April 21, 2009 denotes Medlar as a defendant, however, this

is incorrect.    Medlar never intervened as a party and was, therefore, not a defendant in

the within matter. He was appointed a fiduciary through the Cuyahoga County Probate

Court in November, 2006.         The court reinstated the case once Medlar’s bankruptcy

petition was dismissed and Medlar began filing documents as fiduciary of the estate.

          {¶5} Clareshire Court filed a second motion for summary judgment, which

Medlar, “the Fiduciary of the Estate” opposed.         The magistrate hearing the instant

matter filed a recommendation that summary judgment be entered in favor of Clareshire

Court on the claims set forth in the amended complaint and to Clareshire Court on the

counterclaim of the estate.     Medlar, this time styling himself as “the property owner”

and as fiduciary for the estate, filed objections to the magistrate’s decision.1 The trial

court overruled Medlar’s objections, adopted the magistrate’s decision and entered

judgment in favor of Clareshire Court.

          {¶6} Medlar appealed, raising the following three assignments of error:

          The trial court erred to the prejudice of Appellants by failing to dismiss
          Appellee’s causes of action due to failure to respond to discovery requests

      1
       There is no evidence before this court that Richard Medlar is owner of any
property, let alone the real property at issue in this case.
          for well over one (1) year.

          The trial court erred to the prejudice of Appellants by granting Appellee’s
          Motion for Summary Judgment on all counts and claims.

          The trial court erred to the prejudice of Appellants by affirming the
          Magistrate’s Decision.

          {¶7} Prior to addressing the merits of the instant appeal, this court will again

note that Medlar never intervened as a party to the action and that he brought the appeal

pro se as fiduciary of the estate.      Thus, this court issued a sua sponte order requiring

Medlar to show cause why this case should not be dismissed for lack of standing and/or

for the unauthorized practice of law.        This court removed the case from the active

docket pending the outcome of the motion.           Medlar responded, arguing that he had

standing to bring the appeal, and as the “Widower of the Defendant, Estate Heir,

Property Owner and Party of Interest” he was not engaging in the unauthorized practice

of law.2

          {¶8} We disagree with Medlar’s arguments and for the reasons that follow,

dismiss the instant appeal.

          {¶9} As noted above, Medlar did not file a motion to intervene in accordance

with Civ.R. 24(C). In State ex rel. Jones v. Wilson, 48 Ohio St.2d 349, 358 N.E.2d 605



      Again, there is nothing before this court that demonstrates that Richard
      2

Medlar is the surviving spouse or estate heir. We only have evidence that letters
testamentary were issued by the probate court to Mr. Medlar as “fiduciary.”
(1976) and State ex rel. Lipson v. Hunter, 2 Ohio St.2d 225, 208 N.E.2d 133 (1965), the

Ohio Supreme Court held that a person who is not a party to an action and has not

attempted to intervene as a party is without capacity to appeal.         Further, in In re

McAuley, 63 Ohio App.2d 5, 408 N.E.2d 697 (8th Dist.1979), this court noted that

merely being allowed to appear in an action and to submit a brief in the trial court does

not make the real party in interest a party in the proceedings.   To become a party in the

proceedings, the real party in interest must file a Civ.R. 24 motion to intervene. Id.

       {¶10}     Although Medlar filed motions with the trial court, he never moved the

court to intervene pursuant to Civ.R. 24. Thus, under the circumstances, we find that

Medlar has no capacity to appeal.

       {¶11}   Further, the instant appeal was not filed by Medlar as a pro se litigant or

with the assistance of legal counsel licensed to practice law within the state of Ohio.

To the contrary, this appeal was filed by “Richard A. Medlar, the Fiduciary for the Estate

of Julie M. Montilla.” Medlar acknowledges that he is not a licensed member of the

bar within the state of Ohio.

       {¶12}   The practice of law includes “the preparation of pleadings and other

papers incident to action and special proceedings and the management of such actions

and proceedings * * * before judges and courts.”     Disciplinary Counsel v. Coleman, 88

Ohio St.3d 155, 157, 2000-Ohio-288, 724 N.E.2d 402. The preparation and filing of an

appeal, which necessarily includes an analysis of the case for appealable issues on behalf
of the estate, constitutes the practice of law and the rendering of legal services.

       {¶13}    R.C. 4705.01 defines the unauthorized practice of law as follows:

       No person shall be permitted to practice as an attorney and counselor at
       law, or to commence, conduct, or defend any action or proceeding in which
       the person is not a party concerned, either by using or subscribing the
       person’s own name, or the name of another person, unless the person has
       been admitted to the bar by order of the supreme court in compliance with
       its prescribed and published rules. Except as provided in section 4705.09
       of the Revised Code or in rules adopted by the Supreme Court, admission
       to the bar shall entitle the person to practice before any court or
       administrative tribunal without further qualification or license.

       {¶14}    In In re Jerdine, 8th Dist. Cuyahoga No. 91172, 2008-Ohio-1928, this

court noted that it “possesse[d] the ethical duty to prevent the unauthorized practice of

law” and, after concluding that the relator was not registered to practice law within the

state of Ohio, dismissed his complaint for a writ of mandamus as the unauthorized

practice of law.

       {¶15}    Medlar, a nonattorney, filed the instant appeal as the fiduciary for an

estate without the assistance of counsel.    This act constitutes the unauthorized practice

of law and mandates that we dismiss the action. See Jerdine; State ex rel. Jenkins v.

McFaul, 8th Dist. Cuyahoga No. 74074, 1998 Ohio App. LEXIS 1732 (Apr. 23, 1998).

       {¶16}    This appeal is hereby dismissed.

       It is ordered that appellee recover from appellants costs herein taxed.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and
SEAN C. GALLAGHER, J., CONCUR
