[Cite as Wofford v. Auto Owners Ins., 2014-Ohio-2841.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


Barry Wofford                                            Court of Appeals No. L-13-1254

        Appellant                                        Trial Court No. CVE-12-05819

v.

Auto-Owners Insurance-Lynn Rex                           DECISION AND JUDGMENT

        Appellee                                         Decided: June 27, 2014

                                                 *****

        Barry Wofford, pro se.

        Robert J. Bahret and Andrew J. Ayers, for appellee Auto-Owners
        Insurance Company.

                                                 *****

        OSOWIK, J.

        {¶ 1} This is a pro se appeal from a judgment of the Toledo Municipal Court that

granted appellee’s motion for a directed verdict on appellant’s action filed to recover his

deductible from appellee, Auto-Owners Insurance Company. For the following reasons,

the judgment of the trial court is affirmed.
        {¶ 2} This matter arose from an automobile collision involving appellant and

another driver, Tiffany Pettaway, on May 8, 2010. Appellant did not report the accident

to the police or to appellee, his insurer. He eventually was contacted by Lynn Rex, an

Auto- Owners adjuster, following up on a claim made by Pettaway. After speaking to

appellant several times, Rex sent a property damage appraiser to inspect both vehicles.

On April 2, 2012, appellant filed suit against Auto-Owners to recover his $250

deductible, claiming the accident was not his fault and that the insurance company should

not have paid the claim to Pettaway. It is undisputed that Auto-Owners did not receive

notice of the trial date because notice was sent to an improper address. As a result, when

the case came to trial before a jury on August 23, 2012, appellee did not appear.

Therefore, the trial court granted a default judgment for appellant in the amount of $250

plus costs and interest. The trial court vacated the default judgment on October 11, 2012,

however, when Auto-Owners demonstrated it had not received notice, and set the matter

for trial.

        {¶ 3} The trial proceeded to the bench and testimony was taken on October 21,

2013. Appellant called no witnesses but informed the court he wished to testify. In so

doing, appellant stated that he filed an accident report with the police one month after the

collision. He also testified that the police cited Pettaway and that she was ultimately

found guilty of a minor misdemeanor in connection with the accident. Appellant further

stated that Auto-Owners improperly paid Pettaway’s claim for damages to her vehicle.

Appellant was unable, however, to point to any portion of his policy with Auto-Owners




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that permitted him to contest how the insurer handled claims on his behalf that were paid

within the policy limits, or any language permitting him to recover his deductible from

Auto-Owners rather than from the third party that caused the accident.

      {¶ 4} At the close of appellant’s evidence, Auto-Owners moved for a directed

verdict, which was granted. Appellant filed a timely appeal.

      {¶ 5} In support of this appeal, appellant sets forth 12 arguments under the caption

“Statement of Assignment of Error.” Due to the length of the “assignments,” excerpts of

each follow:

               The trial court erred by vacating a default judgement [sic] without

      applying the rules of the court.

               The trial court erred granting a motion filed by a person who is not

      one of the attorneys of record and did not filed [sic] an entry of appearance.

               The trial court erred in vacating the trial by jury because appellant

      fail [sic] to pay jury demand.

               The trial courts [sic] erred in notification that harmed the appellant.

               The trial court erred by not granting appellant’s oral motion for

      default judgement [sic] when the appellee failed to appear.

               The trial court erred when it denied appellant’s motion to compel

      appellee to pay jury demand.

               The trial court erred when it vacate [sic] a demand for trial by jury

      without all parties [sic] consent.




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              The trial court erred when it deny [sic] the appellant a trial by jury,

       ORC Rule 38 and TMC Rule 27(C).

              The trial court erred in granting a motion for a directed verdict for

       the appellee when the weight of the evidence was more in favor of the

       appellant, ORC Rule 12(C) [sic].

              The trial court erred when it fail [sic] to address the true issues

       before the court.

              The trial court erred by not holding a fair and impartial trial under

       the U.S. 6th Amendment [sic].

              The trial court erred when it denied the appellant default judgement

       [sic] when the appellee/defendant Lynn Rex fail [sic] to appear.”

       {¶ 6} Some of appellant’s claims/assignments of error are followed by a sentence

or two of argument. They are not precise statements but rather, as appellee describes

them, “rambling discourse.” Then, in the section of his brief captioned “Argument,”

appellant re-states the issues as he perceives them, primarily supported by brief

references to the trial court transcript. Essentially, appellant does not support his claims

with relevant legal authority.

       {¶ 7} It appears that appellant’s arguments arise from three main issues: default

judgment, lack of a jury trial and the directed verdict.

       {¶ 8} As to default judgment, appellant asserts that the trial court erred by vacating

its order of default judgment. The record reflects, as summarized above, that the trial




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court vacated the default judgment when it was made clear that appellee had not been

notified of the trial date because the notice was sent to an old address that was not listed

in any pleadings filed by Auto-Owners’ counsel. The trial court’s order vacating

judgment was proper in this case. See Civ.R. 60(B). Appellant also argues that the trial

court erred by denying his motion for default judgment because Lynn Rex, the insurance

adjuster who handled this matter, did not appear. The record reflects that the insurance

company informed the trial court that Rex, who no longer worked for appellee, would not

be appearing as a witness because she was in her 38th week of pregnancy and had been

advised by her physician not to travel to Toledo for the trial. Further, the record reflects

that the court and the parties agreed Rex’s testimony could be admitted through

authentication of her claim notes and that it was not necessary for her to appear as a

witness.

       {¶ 9} As to appellant’s arguments regarding this matter being tried to the bench,

the record reflects that appellant never demanded a trial by jury. The transcript reflects

that appellant may have been confused and perhaps anticipated trial to a jury as he

thought appellee had requested same when the case was transferred from small claims to

the regular civil docket. This argument is without merit.

       {¶ 10} Appellant also asserts that the trial court erred by granting appellee’s

motion for a directed verdict. Initially, we note that appellee incorrectly requested relief

pursuant to Civ.R. 50 at the close of appellant’s case. It is well established that in a

bench trial, the proper motion for judgment at the conclusion of a plaintiff’s case is one




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for dismissal under Civ.R. 41(B)(2). Harris v. City of Cincinnati, 79 Ohio App.3d 163,

607 N.E.2d 15 (1st Dist.1999). Thus, we will construe it as one for involuntary dismissal

under Civ.R. 41(B)(2). The trial court on such a motion “is not required to review the

evidence in the light most favorable to the plaintiff but is required only to determine

whether the plaintiff has made out his case by a preponderance of the evidence.” Jacobs

v. Bd. of Cty. Commrs., 27 Ohio App.2d 63, 65, 272 N.E.2d 635 (3d Dist.1971).

       {¶ 11} The record reflects that appellant admitted at trial that he had offered no

evidence that he lost any money as a result of the accident or that he had paid for any

repairs to his vehicle. Appellant did not present any evidence that his deductible was

applied to any payments in this matter, nor is there any evidence that appellant paid his

$250 deductible for any reason, at any time, following the accident at issue herein. Based

on our review of the record, we find that the trial court did not err in granting appellee’s

motion pursuant to its finding that appellant presented no evidence that he paid a

deductible and that, even if he had, he was not entitled to reimbursement of the

deductible pursuant to the terms of his policy.

       {¶ 12} Based on the foregoing, this court finds that appellant’s assignments of

error are not well-taken. The judgment of the Toledo Municipal Court is affirmed. Costs

of this appeal are assessed to appellant pursuant to App.R. 24.


                                                                         Judgment affirmed.




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                                                        Wofford v. Auto-Owners Ins.
                                                        C.A. No. L-13-1254




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Stephen A. Yarbrough, P.J.                                 JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.
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