Rizzo-Lortz v. Eric Ins. Group
2019 Ohio 2133
Ohio Ct. App.2019Background
- Plaintiff Louise Rizzo-Lortz sued her insurer, Erie Insurance Group, seeking uninsured/underinsured motorist benefits after a rear-end collision with an uninsured motorist.
- Rizzo-Lortz’s counsel moved to withdraw in March 2016; the court granted withdrawal after unsuccessful mediation and continued the case to allow Rizzo-Lortz to obtain new counsel.
- A magistrate set a firm trial date of February 6, 2017, later continued to June 28, 2017; Rizzo-Lortz did not retain new counsel and failed to appear on June 28.
- Rizzo-Lortz emailed proposed motions two days before trial but did not file them with the clerk, did not sign them, and did not include certificates of service.
- The magistrate found failure to prosecute, scheduled a July 14 show-cause hearing, which Rizzo-Lortz also did not attend; the magistrate recommended dismissal with prejudice under Civ.R. 41(B)(1), the trial court adopted the recommendation, and Rizzo-Lortz appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the court err by denying an oral motion for change of venue? | Rizzo-Lortz says she requested change of venue. | No written motion appears in the record; no transcript of oral motion provided. | Waived — no record support; appellant bears burden to provide transcript (Knapp). |
| Was Rizzo-Lortz denied due process for lack of notice of the July 14 show-cause hearing? | She contends she did not receive actual notice of the hearing. | Docket entry and magistrate’s decision provided constructive notice; parties must monitor docket. | No due process violation — constructive notice via docket was sufficient. |
| Did the court err by refusing to consider motions emailed to the magistrate (e.g., motion for summary judgment)? | Rizzo-Lortz argues the emailed motions should be considered. | Motions were not filed with the clerk, unsigned, and lacked certificates of service; Civ.R. 5 governs filing. | No error — improperly filed documents are ineffective; court properly declined to consider them. |
| Was dismissal for failure to prosecute improper given pro se status and procedural difficulties? | As a pro se litigant, she sought leniency for procedural missteps and difficulty accessing online docket. | Pro se litigants are held to same standards as represented parties and must follow rules; prior warnings and opportunities were given. | Dismissal affirmed — pro se status does not excuse noncompliance. |
Key Cases Cited
- Knapp v. Edwards Laboratories, 61 Ohio St.2d 197 (1980) (appellant must provide transcript to demonstrate alleged error).
- Niskanen v. Giant Eagle, Inc., 122 Ohio St.3d 486 (2009) (failure to raise issue below waives appellate review).
- Ohio Valley Radiology Assocs., Inc. v. Ohio Valley Hosp. Assn., 28 Ohio St.3d 118 (1986) (due process satisfied by notice reasonably calculated to inform parties; constructive notice via docket entries).
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (standard for adequacy of notice under due process).
- Metcalf v. Ohio State Univ. Hosp., 2 Ohio App.3d 166 (10th Dist.) (entry of hearing date on docket provides constructive notice).
- In re Application of Black Fork Wind Energy, LLC, 138 Ohio St.3d 43 (2013) (pro se litigants are held to same procedural standards as represented parties).