Tillimon v. Pennington
This text of 2018 Ohio 529 (Tillimon v. Pennington) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
[Cite as Tillimon v. Pennington, 2018-Ohio-529.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Duane J. Tillimon Court of Appeals No. L-17-1134
Appellant Trial Court No. CVG-01-16811
v.
Karen Pennington, et al. DECISION AND JUDGMENT
Appellees Decided: February 9, 2018
*****
Duane J. Tillimon, pro se.
Howard B. Hershman, for appellees.
OSOWIK, J.
{¶ 1} This is an appeal of an April 28, 2017 judgment of the Toledo Municipal
Court, Housing Division, granting appellees’ motion to dismiss appellant’s underlying
2001 housing court complaint for want of prosecution. {¶ 2} Notably, this matter has previously been before this court. Of particular
relevance, this court previously held, “[W]e conclude that the order of reviver purported
to revive a nonexistent judgment. The consent judgment entry by its’ own terms
addressed only the first cause of action * * * It did not address the second cause of action
for money damages.” Tillimon v. Pennington, 6th Dist. Lucas No. L-16-1056, 2017-
Ohio-48, ¶ 21. For the reasons set forth below, this court affirms the judgment of the trial
court.
{¶ 3} Appellant, Duane J Tillimon, sets forth the following two assignments of
error:
ASSIGNMENT OF ERROR #1: THE TRIAL COURT
COMMITTED REVERSIBLE ERROR, AND ABUSED IT [SIC]
DIS[C]RETION, BY DENYING THE PLAINTIFF JUDGMENT
AGAINST DEFENDANTS, JOINTLY AND SEVERALLY, IN THE
AMOUNT OF $2298 PLUS STATUTORY INTEREST AND COURT
COSTS, AND AS SUCH THE JUDGMENT ENTRY JOURNALIZED ON
MAY 1, 2017 WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
ASSIGNMENT OF ERROR #2 THE TRIAL COURT
COMMITTED REVERS[I]BLE ERROR, AND ABUSED IT [SIC]
DISCRETION, BY DISMISSING THE CASE FOR ONE OF
PROSECUTION WHILE THERE WAS A PENDING MOTION FOR
THE COURT TO DECIDE, AND AS SUCH THE DECISION
2. JOURNALIZED MAY 1, 2017 WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶ 4} The following undisputed facts are relevant to this appeal. This case stems
from a 2001 municipal court filing arising from a 1997 residential land contract executed
by the parties. The record reflects that the underlying 2001 filing did not proceed to trial.
{¶ 5} On November 29, 2001, the parties executed a voluntary consent judgment
entry. It was subsequently approved by the trial court. The parties agreed pursuant to the
consent agreement to the cancellation of the underlying residential land contract and to
the return of possession of the subject premises to appellant. No further action of any
kind by any party transpired in this case for approximately 15 years.
{¶ 6} Approximately 15 years after execution of the consent agreement, appellant
filed a motion for conditional reviver of the case in the trial court alleging the existence
of a monetary judgment against appellees in the amount of $2,298.00 plus interest.
{¶ 7} Appellant’s mistaken position regarding the claimed monetary judgment
against appellee appears to stem from a reference in the consent judgment entry that,
“Defendants agreed to pay plaintiff $2,298.00 no later than November 1, 2001.”
Significantly, the above-quoted consent judgment entry itself was executed on November
29, 2001, nearly a month after the purported payment deadline. (Emphasis added).
{¶ 8} The record of evidence in this case suggests that if payment had not been
made and/or the referenced monetary matter had remained in dispute as of November 29,
2001, the parties would have either not proceeded with the execution of the consent
3. judgment entry at a time subsequent to a missed payment deadline or would have, at a
minimum, addressed the unresolved monetary matter to the trial court at that time. The
record reflects that they did not do so.
{¶ 9} More importantly, this court has previously scrutinized this matter in its
entirety, paying particular attention to appellees’ position that appellant never possessed a
monetary judgment against them capable of being revived. As such, any trial court entry
purporting to do so would be rendered void as a matter of law.
{¶ 10} This court determined, in relevant part, “Upon careful review, we conclude
that the order of reviver purported to revive a nonexistent judgment. The consent
judgment entry by its own terms addressed only the first cause of action in this forcible
entry and detainer action.” Tillimon v. Pennington, 6th Dist. Lucas No. L-16-1056, 2017-
Ohio-48, at ¶ 21.
{¶ 11} Both assignments of error maintain that the April 28, 2017 trial court
judgment granting appellees’ motion to dismiss for want of prosecution, journalized May
1, 2017, constituted an abuse of discretion by the trial court. We do not concur.
{¶ 12} The record reflects that the sole underlying basis from which appellant has
attempted to reactivate the 2001 filing in the Toledo Municipal Court is premised upon
the incorrect assertion that appellant possesses some sort of collectible monetary
judgment against appellees. The record of evidence, and the prior ruling of this court in
this case, refute that position.
{¶ 13} We again note that appellant did not take any action in this matter
following the 2001 consent judgment for approximately 15 years.
4. {¶ 14} In attempting to explain the substantial period of time in which this case
was dormant, appellant stated to this court in support of this appeal, “Back in the year
2001, the internet was comprised of primarily pornography sites, and unlike today there
were no skip searching, people finding, or craigslist type sites to determine locations and
debtors.”
{¶ 15} Appellant appears to be suggesting that he took no action in the underlying
case for approximately 15 years due to a claimed lack of adequate technology or
resources to secure the information needed to pursue any action. We are not persuaded.
{¶ 16} The disputed trial court action in dismissing appellant’s case for want of
prosecution is reviewed by this court pursuant to the abuse of discretion standard.
{¶ 17} To establish an abuse of discretion, more than a mere error of law or
judgment must be demonstrated. It must be shown that the disputed trial court action was
unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
450 N.E.2d 1140 (1983).
{¶ 18} The record reflects that appellant filed a municipal court action in 2001
stemming from a 1997 residential land contract with appellees. The record reflects that
the parties executed a voluntary consent judgment entry on November 29, 2001. It was
approved by the trial court on December 4, 2001. The record reflects no further action in
this matter for approximately 15 years.
{¶ 19} The record reflects that subsequent to appellant’s efforts many years later
to revive this matter and assert the existence of a collectible monetary judgment against
5. appellees, this court determined that no such monetary judgment exists, thereby rendering
any judgments or actions in connection to the claimed, non-existent monetary judgment
void.
{¶ 20} Wherefore, we find appellant’s assignments of error to be not well-taken.
The judgment of the Toledo Municipal Court, Housing Division, is hereby affirmed.
Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
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