Rizzo-Lortz v. Eric Ins. Group

[Cite as Rizzo-Lortz v. Eric Ins. Group, 2019-Ohio-2133.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Louise Rizzo-Lortz, :
Plaintiff-Appellant, :
No. 17AP-623
v. : (C.P.C. No. 15CV-1962)
Erie Insurance Group, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on May 30, 2019
On brief: Louise Rizzo-Lortz, pro se.
On brief: Caborn & Butauski Co. LPA, and Joseph A.
Butauski, for appellee. Argued: Joseph A. Butauski.
APPEAL from the Franklin County Court of Common Pleas
PER CURIAM.
{¶ 1} Plaintiff-appellant, Louise Rizzo-Lortz, appeals a judgment of the Franklin
County Court of Common Pleas that dismissed her action against defendant-appellee, Erie
Insurance Group ("Erie"), for failure to prosecute. For the following reasons, we affirm that
judgment.
{¶ 2} On March 5, 2015, Rizzo-Lortz filed a complaint alleging that she had
suffered both personal injury and property damage when another automobile hit the rear
of her automobile. The owner of the other automobile did not have any insurance. At the
time of the collision, Rizzo-Lortz had an automobile insurance policy with Erie that
included uninsured/underinsured motorist coverage. In her complaint, Rizzo-Lortz sought
recovery under her policy for the damages caused by the collision.
No. 17AP-623 2
{¶ 3} Over a year later, on March 25, 2016, Rizzo-Lortz's attorney moved to
withdraw as counsel due to irreconcilable differences with her client. Concerned about the
age of the case and the fast approaching trial date, the trial court scheduled a hearing on
the motion to withdraw for April 12, 2016. The trial court also scheduled a mediation
conference for the same date.
{¶ 4} When mediation proved unsuccessful, the trial court granted the motion to
withdraw filed by Rizzo-Lortz's attorney. Additionally, with the agreement of the parties,
the trial court referred the matter to a magistrate for a jury trial. The magistrate postponed
the trial until February 6, 2017 in order to give Rizzo-Lortz time to retain new counsel and
provide the new counsel with ample opportunity to prepare for trial.
{¶ 5} On February 6, 2017, both parties appeared for trial. Rizzo-Lortz, however,
had not retained a new attorney. Over Erie's objection, the magistrate continued the trial
until June 28, 2017. In the February 10, 2017 order rescheduling the trial date, the
magistrate stated, "This date is firm and no further continuances will be
extended." (Emphasis sic.)
{¶ 6} Two days prior to the June 28, 2017 trial date, the magistrate received an
email from Rizzo-Lortz that included a purported motion for summary judgment and a
document objecting to the video deposition of Erie's expert witness, which Erie had filed in
preparation for trial. Rizzo-Lortz did not file either of these documents with the Franklin
County Clerk of Courts ("clerk"). Additionally, Rizzo-Lortz neither signed the documents
nor attached certificates of service to the documents.1
{¶ 7} On June 28, 2017, both Erie's attorney and representative appeared for trial.
Rizzo-Lortz did not. That morning, the magistrate had received an email from Rizzo-Lortz
in which Rizzo-Lortz suggested that she would not attend trial and offered a number of
excuses for her absence, including financial hardship, transportation difficulties, mental
anguish, and physical pain. In the email, Rizzo-Lortz also requested that the magistrate
continue the trial date.
{¶ 8} In a decision issued June 29, 2017, the magistrate overruled the motions
contained within Rizzo-Lortz's June 26, 2017 email. The magistrate also found that Rizzo-
1 The magistrate later marked these documents as an exhibit and admitted the exhibit into evidence at the
subsequent show-cause hearing so they would appear in the record.
No. 17AP-623 3
Lortz's nonappearance for trial constituted a failure to prosecute her action. Consequently,
the magistrate set a hearing for July 14, 2017 so Rizzo-Lortz could show cause why her
action should not be dismissed pursuant to Civ.R. 41(B)(1). The magistrate warned Rizzo-
Lortz that "[f]ailure to appear shall result in a court-ordered dismissal with
prejudice." (Emphasis sic.) (June 29, 2017 Mag.'s Decision and Order for Show Cause
Hearing at 3.)
{¶ 9} Rizzo-Lortz did not attend the July 14, 2017 show-cause hearing. The
magistrate, therefore, issued a decision that recommended that the trial court dismiss
Rizzo-Lortz's action with prejudice for failure to prosecute. Rizzo-Lortz did not object to
the magistrate's decision. On August 2, 2017, the trial court issued a judgment adopting
the magistrate's decision and dismissing Rizzo-Lortz's action with prejudice.
{¶ 10} Rizzo-Lortz now appeals the trial court's August 2, 2017 judgment, and she
assigns the following errors:
[1.] Denial of motion for a change of venue.
[2.] The trial court erred to the prejudice of Appellant/Louise
Rizzo with the denial of Due Process Rights.
[3.] The trial court erred to the prejudice of Louise Rizzo by
admitting into evidence, over her objections, misleading
testimony from Erie's expert's "record review".
[4.] The trial court abused its discretion in not granting the
motion for summary judgment.
{¶ 11} By her first assignment of error, Rizzo-Lortz argues that the trial court erred
by denying her motion for a change of venue. The record, however, contains no motion for
a change of venue or a ruling on such a motion. In her reply brief, Rizzo-Lortz states that
she made her motion orally. In that event, Rizzo-Lortz had an obligation to provide this
court with a transcript of the proceeding in which she requested a change of venue. See
Knapp v. Edwards Laboratories, 61 Ohio St. 2d 197, 199 (1980) (holding that an appellant
has the duty to provide a transcript for appellate review because the appellant bears the
burden of showing error by reference to matters in the record). She did not do so. Based
on the record before this court, we can only conclude that Rizzo-Lortz did not move for a
change in venue and, consequently, has waived appellate review of that issue. See Niskanen
No. 17AP-623 4
v. Giant Eagle, Inc., 122 Ohio St. 3d 486, 2009-Ohio-3626, ¶ 34 (holding that a party who
fails to raise an argument in the court below waives her right to raise it on appeal); accord
Yoel v. Yoel, 11th Dist. No. 2009-L-063, 2012-Ohio-643, ¶ 33 (because the appellant failed
to provide a transcript showing that he made an oral motion, the record did not reveal any
motion and, thus, the appellant waived any error related to the alleged motion).
Accordingly, we overrule Rizzo-Lortz's first assignment of error.
{¶ 12} By her second assignment of error, Rizzo-Lortz argues that the trial court
deprived her of due process when it failed to provide her notice of the July 14, 2017 show-
cause hearing. We are not persuaded.
{¶ 13} Due process requires that litigants receive " 'notice reasonably calculated,
under all the circumstances, to appraise interested parties of the pendency of the action and
afford them an opportunity to present their objections.' " Ohio Valley Radiology Assocs.,
Inc. v. Ohio Valley Hosp. Assn., 28 Ohio St. 3d 118, 124-25 (1986), quoting Mullane v. Cent.
Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Due process, therefore, demands
that litigants receive some form of reasonable notice of hearings. Id. at 124. However, that
notice need not be actual notice. In the absence of a court rule mandating that actual notice
occur, " 'due process is satisfied where the trial court sets a case down on its docket for
hearing, since the parties or their attorneys are expected to keep themselves advised of the
progress of their cases.' " Yoder v. Thorpe, 10th Dist. No. 07AP-225, 2007-Ohio-5866, ¶ 13,
quoting Metcalf v. Ohio State Univ. Hosp., 2 Ohio App. 3d 166, 168 (10th Dist.1981). In
other words, the entry of a hearing date on the trial court's docket provides litigants with
the requisite due process because such an entry constitutes reasonable, constructive notice
of the hearing. Id. at ¶ 10; Davidson v. West, 10th Dist. No. 18AP-268, 2019-Ohio-224,
¶ 13; Coleman v. R&T Invest. Property, 10th Dist. No. 13AP-863, 2014-Ohio-2080, ¶ 11;
Leader Ins. Co. v. Moncrief, 10th Dist. No. 05AP-1289, 2006-Ohio-4232, ¶ 37. Entry of the
hearing date on the docket achieves constructive notice to the parties because "[p]arties to
an action have a duty to keep themselves apprised of the entries on the record and to
monitor the progress of their case." Wiltz v. Clark Schaefer Hackett & Co., 10th Dist. No.
11AP-64, 2011-Ohio-5616, ¶ 21; accord Davidson at ¶ 14 (holding that a party to an action
has a duty to check on the proceedings of the court to assure that he or she will be at the
hearings or trial).
No. 17AP-623 5
{¶ 14} Here, the magistrate set July 14, 2017 as the date for the show-cause hearing
in a decision issued on June 29, 2017. That decision indicated that a copy of the decision
was sent to Rizzo-Lortz by ordinary mail. Even if Rizzo-Lortz did not receive the mailed
copy, she still had constructive notice of the hearing date because the clerk journalized the
magistrate's decision on June 29, 2017. Thus, beginning on June 29, 2017, the publicly
available online docket included a copy of the decision. The docket also included a separate
entry, dated June 29, 2017, that stated that a hearing was scheduled for July 14, 2017. Given
the information in the docket, Rizzo-Lortz had, at the very least, constructive notice of the
show-cause hearing. Accordingly, we conclude that due process was satisfied, and we
overrule Rizzo-Lortz's second assignment of error.
{¶ 15} We will address Rizzo-Lortz's third and fourth assignments of error together
because they are interrelated. In those two assignments of error, Rizzo-Lortz argues that
the trial court erred by not ruling in her favor on the motions she submitted by email. We
disagree.
{¶ 16} Pursuant to Civ.R. 5(D), a party must file with the court "[a]ny paper after the
complaint that is required to be served," which includes motions. See Civ.R. 5(A) (requiring
service of "every written motion other than one which may be heard ex parte"). A party
files a document with the court by filing it with the clerk of court, unless the judge permits
documents to be filed with the judge instead. Civ.R. 5(E). "Motions and other papers not
properly filed are considered unknown to a trial court." Beverly v. Lasson, 2d Dist. No. 07-
CA-22, 2008-Ohio-3707, ¶ 39.
{¶ 17} Here, neither the trial judge nor the magistrate authorized the parties to file
documents directly with the magistrate. Rizzo-Lortz, however, chose to email her motions
to the magistrate instead of properly filing them with the clerk as required by Civ.R. 5(E).
Such improperly filed documents lack any legal effect.2 Consequently, we conclude that the
trial court did not err in refusing to grant Rizzo-Lortz the relief she sought in those
documents, and we overrule Rizzo-Lortz's third and fourth assignments of error.
{¶ 18} Since her attorney withdrew in April 2016, Rizzo-Lortz has represented
herself in this matter. Due to her pro se status, Rizzo-Lortz asks this court to excuse her
2 Rizzo-Lortz also failed to comply with two other procedural rules: (1) Civ.R. 5(B)(4), which requires
litigants to attach a certificate of service to motions, and (2) Civ.R. 11, which requires litigants to sign
motions. Noncompliance with either of these rules justifies a trial court's refusal to consider a motion.
No. 17AP-623 6
noncompliance with court procedure and inability to interface with the online docket. We
cannot. Pro se litigants are presumed to have knowledge of the law and legal procedures
and are held to the same standard as litigants who are represented by counsel. In re
Application of Black Fork Wind Energy, LLC, 138 Ohio St. 3d 43, 2013-Ohio-5478, ¶ 22. A
litigant proceeding pro se can neither expect nor demand special treatment. Suon v. Mong,
10th Dist. No. 17AP-879, 2018-Ohio-4187, ¶ 26.
{¶ 19} For the foregoing reasons, we overrule all of Rizzo-Lortz's assignments of
error, and we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT, P.J., LUPER SCHUSTER and BRUNNER, JJ., concur.