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Rizzo-Lortz v. Erie Insurance Group

Court of Appeals of Ohio, Tenth District

May 30, 2019

Louise Rizzo-Lortz, Plaintiff-Appellant,
v.
Erie Insurance Group, Defendant-Appellee.

          Appeal from the Franklin County Court of Common Pleas C.P.C. No. 15CV-1962.

         On brief:

          Louise Rizzo-Lortz, pro se.

          On brief: Caborn & Butauski Co. LPA, and Joseph A. Butauski, for appellee.

         Argued:

          Joseph A. Butauski.

          DECISION

          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.

         {¶ 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 ...


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