[Cite as Tillimon v. Moore, 2018-Ohio-3212.]




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


Duane J. Tillimon                                  Court of Appeals Nos. L-18-1040
                                                                         L-18-1041
        Appellant
                                                   Trial Court Nos. CVG-17-15338
v.                                                                  CVG-17-14177

Brittany Moore, et al.

        Appellees

and

MidFirst Bank                                      DECISION AND JUDGMENT

        Defendant                                  Decided: August 10, 2018

                                               *****

        Duane J. Tillimon, pro se.

        Kaser S. Bhatti and Veronica L. Martinez, for appellee Brittany Moore.

                                               *****

        SINGER, J.

        {¶ 1} Appellant, Duane Tillimon, appeals from the January 29, 2018 judgment of

the Toledo Municipal Court, where his requests for monetary damages resulting from
appellees’ breach of lease and subsequent eviction were partly denied. Because we take

issue with the denial of the requests for unpaid utilities and other damages for the months

of September and October 2017, we affirm, in part, and reverse, in part.

                                   Assignment of Error

       {¶ 2} Appellant sets forth the following assignment of error:

                THE TRIAL COURT COMMITTED REVERSIBLE ERROR, AND

       ABUSED ITS DISCRETION, BY GRANTING A MONEY JUDGMENT

       WITHOUT FIRST ELICITING EITHER ORAL OR WRITTEN

       TESTIMONY TO SUPPORT THE JUDGMENT GRANTED, AND

       SINCE THERE WAS NO ADMISSIBLE EVIDENCE INTRODUCED TO

       SUPPORT THE TRIAL COURT’S JUDGMENT, THE JUDGMENT

       WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

                                       Background

       {¶ 3} This consolidated, accelerated appeal stems from two separate landlord

complaints appellant filed in the Toledo Municipal Court against appellees in September

and October 2017, which commenced case Nos. CVG-17-14177 and CVG-17-15338,

respectively.

       {¶ 4} In both cases appellant requested restitution of the property located at

14 Van Buren Avenue, Toledo, Ohio 43605, along with unpaid rent, unpaid utilities, and

other expenses. The trial court denied restitution of the property in the first case because




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appellant had filed the first complaint prematurely, and that is what prompted appellant to

file the second complaint.

       {¶ 5} Eventually appellant was granted restitution of the property, and the cases

were consolidated on December 13, 2017. Prior to being consolidated, both cases had a

set time for appellees to respond to appellant’s complaints and requests for damages, but

appellees failed to do so.

       {¶ 6} As a result of appellees failing to timely answer, the trial court granted

default judgment with respect to the action for damages. Without holding a hearing, the

court granted appellant $850 in unpaid rent for the months of September and October

2017. The trial court, however, denied appellant the other damages sought, stating in

relevant part as follows:

              In Plaintiff’s Motion for Default Judgment, Plaintiff states that, as a

       matter of law, Plaintiff is entitled to default judgment against the

       Defendants due to the fact that Defendant failed to file a timely answer or

       other responsive pleading. The court agrees. However, due to the

       foreclosure action against the Plaintiff in the Lucas County Court of

       Common Pleas in Case Number G-4801-CI-201701936-000, the court finds

       that Plaintiff is only entitled to non-payment of rent for September and

       October 2017, less the security deposit paid ($750.00 + $750.00 - $650.00

       = $850.00). Plaintiff is not entitled to any other damages as he is no longer

       owner of premises.




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       {¶ 7} This is the only language in the January 29, 2018 judgment entry with which

the trial court addressed monetary damages granted appellant. Appellant timely

appealed.

                                      Legal Analysis

       {¶ 8} Appellant argues the trial court erred by limiting his unpaid rent damages

and denying the other requested damages without a hearing. He argues the trial court

incorrectly relied on a foreclosure case that was not part of this consolidated case to find

him to not be the owner and, hence, that the record was insufficient to render such

judgment.

       {¶ 9} Appellee Moore counters, arguing a local rule allows for judgment without a

hearing where the damages sought are liquidated. Appellee Moore further argues that

appellant was divested of ownership of the property beyond October 2017, and that the

trial court could and did take judicial notice of that judgment.

       {¶ 10} Toledo Municipal Court Loc.R. 29(D) states:

              In a forcible entry and detainer action, if the defendant has failed to

       appear or otherwise defend on the second cause of action, default judgment

       may be entered upon oral or written motion when judgment is to be based

       upon a liquidated claim and when the motion is accompanied by an

       affidavit with supporting documentation signed by a party with actual

       knowledge verifying that the amount is accurate. A second cause of action




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       claiming unliquidated damages will be set for an assessment hearing by the

       assignment commissioner before the housing court judge.

       {¶ 11} Here, appellant requested damages for unpaid rent, unpaid utilities,

cleaning and repairs beyond normal wear, re-rental expenses, and attorney fees. The trial

court, however, only granted appellant the unpaid rent damages in the amount of $850.

This amount was for the months of September and October 2017, as the court found

appellant no longer had an interest in the rental property beyond that point in time.

       {¶ 12} Initially, we find no error in the trial court limiting appellant’s damages to

those months, as there is competent, credible evidence in the record where an October 26,

2017 Lucas County Common Pleas judgment entry was submitted and reflected the

October 4, 2017 sheriff sale of the property to MidFirst Bank. See, e.g., Ohio ex rel.

Kolkowski v. Bd. of Commrs., 11th Dist. Lake No. 2008-L-138, 2009-Ohio-2532, ¶ 38

(“Although this court’s ability to take judicial notice is not unbridled, we may take

judicial notice of findings and judgments as rendered in other Ohio cases.”).

       {¶ 13} Moreover, and although appellant attempts to argue there is no “oral or

written” evidence of his actual damages, we find in the record an October 20, 2017

affidavit from him which reflects in relevant part as follows:

              2. Brittany Moore, Denise Moore and the Boyfriend of Brittany

       Moore are in default for payment of the September, 2017 and October,

       2017 rent payments.




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              3. Brittany Moore, Denise Moore, and the Boyfriend of Brittany

       Moore are in default for failing to pay the water, sewer and refuse (sic)

       collection charges pursuant to Paragraph #8 UTILITIES of the Rental

       Agreement attached to the Complaint in Toledo Municipal Court Case No.

       CVG-17-15338.

       {¶ 14} Therefore there is competent, credible evidence to support the trial court’s

calculation of the unpaid rent damages, and we affirm the amount ($850) and the limiting

of those damages to the months appellant was owner.

       {¶ 15} We do note, however, that the trial court only granted appellant unpaid rent

for that time period, and did not address why it denied appellant’s requests for unpaid

utilities and other damages incurred during those months he was owner. Our review of

the record actually reveals appellant may be entitled to relief based on unpaid utilities and

other damages.

       {¶ 16} For example, the second complaint, which was filed in case No. CVG-17-

15338, specifically states in pertinent part as follows:

              3. Defendants are in default for payment of rent and payment of

       water, sewer and trash pick-up charges since September 1, 2017. * * *

              7. There is now owing to the Plaintiff the sum of $1500 plus

       $750.00 per month commencing November 1, 2017 and until the premises

       is re-rented or the termination date of August 31, 2018 is reached,

       whichever date is earlier, and for unpaid utilities, and cleaning and repairs




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       beyond normal wear, and for re-rental expenses and attorney fees pursuant

       to R.C. 5321.04(C).

              8. Defendants have violated R.C. 5321.05(A)(1) through (A)(8) by

       physically damaging the premises by failing to keep the premises in an

       undamaged, clean, safe and sanitary condition.

              9. There is now owing to Plaintiff the sum of $1500.00 or more,

       plus court costs, and the actual amount proven for the balance of rent owed

       on the Rental Agreement, utility expenses, cleaning and repairs beyond

       normal wear, re-rental expenses, and attorney fees pursuant to R.C.

       5321.04(C) and statutory interest on the judgment. * * *

       {¶ 17} In addition, appellant attached to his complaints the lease in which he and

appellees agreed to rental terms. The lease, in relevant part, states as follows:

              6. CONTRACT RENTAL PAYMENT (GROSS): The rent shall be

       $750.00 per month payable in four equal installments of $187.50 payable

       no later than 4:00 P.M. on the 1st, 8th, 15th, and 22nd days of the month in

       advance of occupancy. * * *

              8. UTITLITIES: The Landlord shall pay the following utilities

       NONE. The Tenant shall pay the following utilities ALL. Utilities shall be

       transferred within 3 days of commencement of this Rental Agreement.* * *

              16. BREACH OF RENTAL AGREEMENT: * * * If the Tenant

       vacates the premises prior to the termination date of the anniversary date,




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       the Tenant shall remain liable for rent, the cost of utilities, and the cost of

       maintaining the dwelling and yard, until the premises is re-rented, or can be

       re-rented id not left in a re-rentable condition.

       {¶ 18} Furthermore with respect to damages to which appellant may be entitled,

R.C. 5321.05(C)(1) provides:

              If the tenant violates any provision of this section, other than

       division (A)(9) of this section, the landlord may recover any actual

       damages that result from the violation together with reasonable attorney’s

       fees. This remedy is in addition to any right of the landlord to terminate the

       rental agreement, to maintain an action for the possession of the premises,

       or to obtain injunctive relief to compel access under division (B) of this

       section.

       {¶ 19} Accordingly, appellant may still have a valid claim for compensation for

damages incurred during the months he was owner of the premises. The trial court’s

general justification for denying the additional damages, which was based on appellant’s

lack of ownership, is found insufficient to dispose of those requests. The assigned error

is found well-taken, in part.

       {¶ 20} Lastly, we note that appellant filed a post-oral argument motion to

supplement the record on June 8, 2018, arguing that additional material submitted into

the trial record (after this appeal was filed) would further support reversal. No opposition

has been filed. Reviewing the motion and the entire record as submitted, we find the




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additional material to which appellant refers was submitted beyond the date of the

judgment appealed, January 29, 2018. Therefore we will not consider the material in

addressing this appeal, and the motion is denied.

                                        Conclusion

       {¶ 21} The January 29, 2018 judgment of the Toledo Municipal Court is affirmed,

in part, and reversed, in part. The matter is remanded, and the trial court is ordered to

hold a hearing and allow submission of evidence to calculate, ascertain, and grant

appropriate monetary damages to appellant in a manner consistent with this decision.

Appellant and appellee Moore are ordered to split the costs of this appeal pursuant to

App.R. 24.

                                                                 Judgment affirmed, in part,
                                                                      and reversed, in part.


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


Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Arlene Singer, J.
                                                _______________________________
James D. Jensen, 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.supremecourt.ohio.gov/ROD/docs/.




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