[Cite as Tillimon v. Myles, 2018-Ohio-434.]




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


Duane J. Tillimon                                 Court of Appeals No. L-17-1032

        Appellant                                 Trial Court No. CVG-16-11128

v.

Lyn J. Myles and Eddie J. Bailey                  DECISION AND JUDGMENT

        Appellees                                 Decided: February 2, 2018

                                              *****

        Duane J. Tillimon, pro se.

                                              *****

        MAYLE, P.J.

        {¶ 1} Following a bench trial, plaintiff-appellant, Duane J. Tillimon, appeals the

January 13, 2017 judgment of the Toledo Municipal Court. Defendants-appellees, Lyn

Myles and Eddie Bailey, did not file briefs. For the reasons that follow, we affirm, in

part, and reverse, in part.
                                       I. Background

       {¶ 2} Plaintiff-appellant, Duane J. Tillimon, owns property located at 3802 House

of Stuart Avenue, Toledo, Ohio, which he leased to Lyn J. Myles and Eddie J. Bailey

(“appellees”) pursuant to a written residential rental agreement. The term of the lease

was November 1, 2015, to October 31, 2017, however, Tillimon alleged that Myles and

Bailey defaulted on rent payments beginning June 1, 2016. On August 1, 2016, he filed a

landlord’s complaint for forcible entry and detainer, and he sought money damages for

unpaid rent and utilities and damage to the property.

       {¶ 3} The case was tried to the court on January 3, 2017. Tillimon requested

judgment in the amount of $5,030 for past-due rent; $888.37 for unpaid water bills;

$196.57 for an unpaid gas bill; and $6,880.56 for miscellaneous damages to the home. In

an order journalized on January 13, 2017, the trial court awarded Tillimon only $1,180

for past due rent and $196.57 for the unpaid gas bill.

       {¶ 4} Tillimon timely appealed the trial court judgment. He requested that the

court reporter prepare a trial transcript, but the court reporter indicated that the contents

of the stenographic record could not be retrieved due to a software malfunction. Because

the trial transcript could not be obtained, Tillimon filed a statement of evidence under

App.R. 9(C). He served the statement of evidence on appellees, and appellees filed no

objections and proposed no amendments. He also filed the statement of the evidence in

the trial court, but he did not seek the trial court’s “settlement and approval” of the

statement as required by App.R. 9(C). We, therefore, granted him 30 days by which to




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obtain the trial court’s approval of his statement of evidence, or, alternatively, for the trial

court to “delete, add or otherwise modify” the statement so that it is accurate and

conforms to the truth.

       {¶ 5} The trial court approved the statement of evidence on December 11, 2017,

and the docket entry reflecting its approval was journalized on December 21, 2017. It

was finally forwarded to this court on January 3, 2018. We are now able to consider the

merits of Tillimon’s appeal. He assigns the following errors for our review:

              ASSIGNMENT OF ERROR NO. 1

              THE TRIAL COURT COMMITTED REVERSABLE [sic] ERROR,

       AND ABUSED ITS DISCRETION, BY DENYING THE APPELLANT

       THE FULL AMOUNT OF RENTAL LOSS DURING THE TERM OF

       THE RENTAL AGREEMENT SUCH DENIAL BEING AGAINST THE

       MANIFEST WEIGHT OF THE EVIDENCE[.]

              ASSIGNMENT OF ERROR NO. 2

              THE TRIAL COURT COMMITTED REVERSABLE [sic] ERROR,

       AND ABUSED ITS DISCRETION, BY DENYING APPELLANT

       REIMBURSEMENT FOR WATER, SEWER AND GARBAGE

       REMOVAL BILLS HE PAID THAT WERE THE RESPONSIBILITY OF

       APPELLEES TO PAY SUCH DENIAL BEING AGAINST THE

       MANIFESR [sic] WEIGHT OF THE EVIDENCEDECISION [sic]

       AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE[.]




3.
          ASSIGNMENT OF ERROR NO. 3

          THE TRIAL COURT COMMITTED REVERSABLE [sic] ERROR,

     AND ABUSED ITS DISCRETION, BY DENYING APPELLANT WHAT

     THE [sic] REFERRED TO AS “MISCELLANEOUS DAMAGES”

     TOTALLING [sic] $6,164.53 THAT THE APPELLANT PROVED

     EXISTED AT THE TIME OF MOVE-OUT OF THE PREMISES BY

     APPELLEES, MOST DAMAGES NOT DISPUTED BY APPELLEES,

     SUCH DENIAL BEING AGAINST THE MANIFEST WEIGHT OF THE

     EVIDENCE[.]

          ASSIGNMENT OF ERROR NO. 4

          THE TRIAL COURT COMMITTED REVERSABLE [sic] ERROR,

     AND ABUSED ITS DISCRETION, BY ALLOWING THE APPELLEES

     TO TESTIFY REGARDING RENT, UTILITY EXPENSES AND PRE-

     EXISTING CONDITIONS AFTER APPELLEES FAILED TO COMPLY

     WITH THE COURT’S DISCOVERY ORDER REGARDING RENT,

     UTILITY EXPENSES and PRE-EXISTING CONDITIONS[.]

          ASSIGNMENT OF ERROR NO. 5

          THE TRIAL COURT COMMITTED REVERSABLE [sic] ERROR,

     AND ABUSED ITS DISCRETION, BY ALLOWING THE APPELLEES

     TO INTRODUCE EVIDENCE AFTER APPELLEES RESTED THEIR

     CASE, A DOCUMENT NEVER TESTIFIED ABOUT AT TRIAL AND




4.
       THAT THE COURT DID NOT ALLOW APPELLANT TO LOOK AT

       OR TESTIFY ABOUT[.]

                                   II. Law and Analysis

       {¶ 6} Tillimon sought damages at trial of $12,279.47 stemming from appellees’

breach of the residential rental agreement; the trial court awarded him only $1,376.57. In

his first assignment of error, Tillimon challenges the amount awarded to him for unpaid

rent. In his second assignment of error, he challenges the trial court’s denial of his

request for damages for unpaid utilities. In his third assignment of error, he challenges

the trial court’s denial of his request for miscellaneous damages for expenses incurred in

repairing damage to the property allegedly caused by appellees. And in his fourth and

fifth assignments of error, he challenges the trial court’s decision to admit certain

testimony and evidence. We consider each of Tillimon’s assignments of error.

                               A. Damages for unpaid rent

       {¶ 7} Tillimon sought a total award of $5,030 for damages for unpaid rent. The

trial court awarded him $2,250 for June, July, and August 2016 rent, which it offset with

appellees’ $750 security deposit and with a $320 partial payment remitted on July 8,

2016. This left Tillimon with a total award of $1,180 for unpaid rent. In his first

assignment of error, Tillimon claims that the trial court erred in denying him the full

amount he requested.

       {¶ 8} Under the parties’ rental agreement, appellees agreed to pay rent of $750 per

month for the period of November 1, 2015, to October 21, 2017. According to his




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statement of evidence, Tillimon testified that appellees’ May 2016 rent was deficient by

$100. He testified that appellees made a partial rent payment of $320 on July 8, 2016.

Other than that, no rent was received for June, July, or August of 2016. Appellees

vacated the property on August 29, 2016. It remained vacant until January 1, 2017, when

Tillimon entered into a residential rent agreement with a new tenant. Tillimon insists that

he is entitled to rent for the period of June 1, 2016, through December 31, 2016, plus

$100 for the May 2016 deficiency.

       {¶ 9} The rental agreement provides that “[i]f the Tenant vacates the premises

prior to the termination date or the anniversary date, the Tenant shall remain liable for

rent * * * until the premises is re-rented, or can be re-rented if not left in a re-rentable

condition.”

       {¶ 10} While the terms of the agreement entitle Tillimon to rent payments until the

property is re-rented, “[a] landlord has a duty to make reasonable efforts to mitigate

damages incurred when a lessee vacates the property before the expiration of the lease

term.” (Citations omitted.) Tincher v. Interstate Precision Tool, 2d Dist. Montgomery

No. 19093, 2002-Ohio-3311, ¶ 11. What constitutes “reasonable efforts” is a fact-

specific determination made by the trial court. Beatley v. Schwartz, 10th Dist. Franklin

No. 03AP-911, 2004-Ohio-2945, ¶ 17; Manor Park Apts., LLC v. Delfosse, 11th Dist.

Lake No. 2006-L-036, 2006-Ohio-6867, ¶ 34. There is no bright-line test for determining

reasonableness. Beatley at ¶ 17.




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       {¶ 11} We review a trial court’s “reasonable efforts” determination under a

manifest-weight-of-the-evidence standard. Id. In doing so, we must weigh the evidence

and all reasonable inferences, consider the credibility of witnesses, and determine

whether the trier of fact clearly lost its way in resolving evidentiary conflicts so as to

create a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997).

       {¶ 12} The trial court issued a written decision in this case, but it denied

Tillimon’s claim for rent for September 2016, through December 2016, without

explanation. Appellees failed to file a brief in this matter, thus “we may accept

appellant’s statement of the facts and issues as correct and reverse the judgment if

appellant’s brief reasonably sustains such action.” Applecrest Village v. Yaple, 7th Dist.

Mahoning No. 01-CA-185, 2003-Ohio-695, ¶ 4, citing App.R. 18(C).

       {¶ 13} Tillimon presented evidence of his efforts to mitigate damages. According

to his trial exhibits and statement of evidence, he advertised the property on Craigslist—

the same method he used to advertise the property when he rented it to appellees. He also

placed a “for rent” sign in the yard and distributed flyers at neighborhood businesses.

Tillimon testified that “once school commences three quarters of the rental market goes

away,” and “it is nearly impossible to rent a house during the Halloween, Thanksgiving,

Christmas and New Years Holidays.” After that, he explained, “the market is dependent

on weather conditions.” Tillimon contends that before appellees vacated the property, he




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found a potential new tenant named Teresa, but appellees refused to allow the house to be

shown.

       {¶ 14} Myles appeared for trial, but Bailey did not. Tillimon represents in his

approved statement of evidence that Myles did not deny owing him $100 for May 2016

rent. According to Tillimon, Myles also did not dispute that he tried to re-rent the

property, she conceded that she did not allow the house to be shown, and she testified that

someone showed up unannounced to see the house and tried to force himself in without

her permission.

       {¶ 15} As we previously recognized, whether a landlord made reasonable efforts

to re-rent a property is a fact-specific determination. In Oldendick v. Crocker, 2016-

Ohio-5621, 70 N.E.3d 1033, ¶ 63 (8th Dist.), the trial court found that the landlord did

not fail to mitigate damages where he actively sought to re-rent the apartment using the

same advertising strategies that he used before leasing the apartment to his former

tenants. In Kanistros v. Holeman, 2d Dist. Montgomery No. 20528, 2005-Ohio-660,

¶ 37, the trial court found reasonable efforts to mitigate where the landlord testified that

she put out a “for rent” sign the day after she learned of the tenant’s intent to vacate, and,

in her experience as a landlord, “any other efforts to advertise would be unavailing during

the holiday season.” And in Gerber v. Lewis, 8th Dist. Cuyahoga No. 70955, 1996 Ohio

App. LEXIS 5633, *7-8 (Dec. 12, 1996), the court accepted the landlord’s uncontradicted

testimony that “it would not be feasible or practical to attempt to re-rent the property




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during the month of November, the implication being that no one would be looking for a

home during the middle of the school year.”

       {¶ 16} Here, the uncontradicted evidence demonstrates that Tillimon advertised

the rental on Craigslist, as he did when he leased the home to appellees, distributed flyers,

and displayed a “for rent” sign on the property. While he did not succeed in finding a

new tenant until January 1, 2017, we nonetheless find that he made reasonable efforts to

re-rent the home.

       {¶ 17} We, therefore, find that it was against the manifest weight of the evidence

for the trial court to deny Tillimon’s claim for unpaid rent for the period of September 1,

2016, through December 31, 2016. Accordingly, Tillimon is entitled to $5,250 for rent

for June 1, 2016, to December 31, 2016, plus $100 for the May 2016 deficiency.

Subtracting the $320 payment that was made on July 8, 2016, and appellees’ $750

security deposit withheld by Tillimon, Tillimon is owed a balance of $4,280.

       {¶ 18} We find Tillimon’s first assignment of error well-taken.

            B. Reimbursement for water, sewer and garbage removal bills

       {¶ 19} In addition to rent, the rental agreement required appellees to pay the cost

of utilities incurred “prior to the termination date * * * until the premises is re-rented.”

Tillimon sought damages of $888.37 for those utility expenses, which included water,

sewer, and garbage removal. The trial court indicated that it was unable to determine

what appellees owed for utilities, and, therefore, awarded nothing to Tillimon. In his

second assignment of error, Tillimon claims that this was error.




9.
      {¶ 20} Tillimon provided a breakdown of the amounts he paid to the city of

Toledo for water, garbage, and sewer charges: (1) $155, remitted on September 2, 2016,

as a down payment on an installment plan; (2) $685.55, remitted on November 22, 2016,

to satisfy unpaid bills accrued; (3) $137.37 for service from September 1, 2016, to

December 1, 2016; and (4) $47.32 prorated for service from December 1, 2016, to

December 31, 2016. He calculated that his former tenant owes $109.87 of this amount,

and appellees owe the remainder—$888.37.

      {¶ 21} There are a number of problems with Tillimon’s claim for utilities. First,

the math is off. When the amounts paid by Tillimon are added together, and the amount

owed by his prior tenant is subtracted, the total is $915.37—not $888.37.

      {¶ 22} Second, Tillimon did not submit all of the utility statements for the period

of appellees’ tenancy. The following statements appear in the record and reflect the

previous balance, payments made, current charges, and total amount due for those

periods:

 Period of service        Previous    Payments       Total current    Total amount due
                          balance                    charges
 9/2/2015 to12/4/2015     $446.91     -$90.00        $165.45          $522.36
 3/4/2016 to 6/3/2016     $738.13     -$252.00       $220.58          $706.71
 6/4/2016 to 9/1/2016     $706.71     -$706.71       $186.49          $186.49
 9/2/2016 to 12/1/2016    $186.49     -$186.49       $137.37          $137.37

Absent from the record are the bill for December 5, 2015, to March 3, 2016, and the bill

that would include usage for December 2, 2016, to December 31, 2016.




10.
       {¶ 23} Third, appellees did not move into the home until November 1, 2015, thus

the bill for September 2, 2015, to December 4, 2015, includes charges for utilities

consumed by Tillimon’s former tenant. There is nothing in the record from which we can

ascertain what amount is fairly attributable to each tenant.

       {¶ 24} Finally, it is not entirely clear who made the payments credited to the

account. Tillimon contends that the former tenant paid $252 toward the bill on April 26,

2016, and $100 on August 8, 2016, and still owes $109.87. Myles claimed at trial that

she made a $100 payment toward the utilities bill by adding it to her $750 rent payment.

She provided a copy of a money order receipt dated April 6, 2016, showing a payment of

$850 for “Rent H2O.” But Tillimon provided evidence that he refunded $100 to Myles

via a check dated March 8, 2016, for “overpayment refund,” and that Myles cashed this

check on April 15, 2016. It is not clear why Tillimon’s check pre-dates Myles’ April 6,

2016 money order.

       {¶ 25} Because the trial court could not determine how much appellees actually

owed and how much each tenant paid, it awarded nothing to Tillimon. We agree with

Tillimon that the trial court’s decision is against the manifest weight of the evidence.

However, we find that the evidence in the record does not support an award of $888.37,

as requested by Tillimon. Rather, the evidence in the record demonstrates that appellees

are responsible for the amounts owed for March 4, 2016, to June 3, 2016 ($220.58),

June 4, 2016, through September 1, 2016 ($186.49), and September 2, 2016, through

December 1, 2016 ($137.37). These bills total $544.44. Given appellees’ failure to file a




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brief and the trial court’s approval of Tillimon’s statement of evidence, we will accept as

true Tillimon’s contention that he refunded any overpayments Myles included with her

rent checks. But we decline to impose utility expenses for months where no statements

were submitted or for months where appellees’ usage cannot reliably be separated from

prior tenants’ usage.

       {¶ 26} We find Tillimon’s second assignment of error well-taken.

                              C. “Miscellaneous damages”

       {¶ 27} Tillimon sought damages of $6,880.56 for painting, floor coverings, lawn

care, and numerous other repairs which he claims were necessitated by appellees’

damage to the property.1 The trial court declined to award damages for these expenses

because “the actual damages are difficult to ascertain due to Plaintiff not inspecting the

home before Defendant took possession.” The court further noted that Tillimon did not

provide sufficient evidence that appellees were actually responsible for causing the

damages. In his third assignment of error, Tillimon claims that the trial court erred in

denying his request for these miscellaneous damages.

       {¶ 28} According to the trial court’s judgment entry, Tillimon did not do a walk-

through of the home after the previous tenant moved out, he met with appellees at a

McDonald’s to sign the lease, Myles presented testimony that the home was not in good



1
 The trial court judgment indicates that Tillimon requested $6,164.53. The basis for this
amount is unclear. Tillimon’s conclusion in his merit brief references a figure of
$6,080.56. This may have been a typographical error, but again, this is not clear.




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condition when she moved in, and Myles testified that she provided Tillimon with a list

of necessary repairs upon move-in. Myles introduced testimony from her mother as to

the poor condition of the home, and she presented photographs showing the home’s

condition. Tillimon insists that Myles’ mother was unable to say who took the

photographs or when they were taken. He also denies ever receiving a list of necessary

repairs from appellees.

       {¶ 29} The Rental Agreement obligated appellees to inspect the property before

taking possession “and to notify the Landlord in writing within three days after the

Commencement Date of this Rental Agreement of any existing damage to the property

that the tenant does not want to be held liable for at the time of the move-out inspection.”

It provides that “[t]he tenant shall be responsible for any damages to the property caused

by the Tenants or their invited or uninvited guests,” and that “[t]he Tenant agrees to

perform all routine maintenance,” including lawn care, snow removal, and maintaining

the landscaping. “The Tenant agrees to return the dwelling and yard to the Landlord in

the same condition it was in at the time of occupancy by the Tenant excepting for normal

wear.” The agreement encourages the tenant “to arrange with the Landlord for a move-

out inspection [so] the Landlord can prepare a list of cleaning and repairs beyond normal

wear that need to be performed.”

       {¶ 30} Both the rental agreement and the common law require a tenant “to return

the leased premises in substantially as good a condition as when received, reasonable

wear and tear excepted.” (Citations omitted.) Bibler v. Nash, 3d Dist. Hancock No.




13.
5-05-09, 2005-Ohio-5036, ¶ 18. A tenant may be held liable for extraordinary damages

which are not the result of normal wear and tear, but the landlord must establish the link

between the damage and the tenants. Id.; R.C. 5321.05; Kelley v. Johnston, 4th Dist.

Gallia No. 01CA5, 2001 Ohio App. LEXIS 5177, *8 (Nov. 14, 2001). “It is axiomatic

that in order to determine the reasonable cost to restore property to the condition it was in

prior to being damaged, a court must have evidence of the condition of the property

before it was damaged.” PAG Holdings v. Love, 2d Dist. Greene No. 12CA0012, 2012-

Ohio-3388, ¶ 11.

       {¶ 31} Here, Myles claimed that the house was in poor condition when she moved

in, Tillimon failed to inspect the property before Myles took possession of it, and Myles

insisted that she left the property in the same condition that she found it. We, therefore,

find no error in the trial court’s conclusion that Tillimon failed to provide sufficient

evidence that appellees were responsible for the damage. We do find, however, that

Tillimon paid $75 for lawn mowing services for which he provided invoices. The rental

agreement obligated appellees to pay the cost of maintaining the yard in the event of

early termination of the lease up until the time the premises could be re-rented.

       {¶ 32} We, therefore, find Tillimon’s third assignment of error well-taken to the

extent that Tillimon is owed $75 for expenses incurred to mow the lawn.




14.
                 D. Admission of appellee’s testimony regarding rent,
                     utility expenses and pre-existing conditions

       {¶ 33} The trial court issued a judgment journalized on November 17, 2016,

granting Tillimon’s motion to compel discovery of documents evidencing rent payments,

utility payments, and pre-existing damage to the property, and providing that appellees

“will not be permitted to enter this information into evidence” if not produced by

November 28, 2016. In his fourth assignment of error, Tillimon claims that the trial court

erred by allowing appellees to testify about these topics because they failed to comply

with the court’s discovery order.

       {¶ 34} “A trial court has broad discretion when imposing discovery sanctions. A

reviewing court shall review these rulings only for an abuse of discretion.” Nakoff v.

Fairview Gen. Hosp., 75 Ohio St.3d 254, 256, 662 N.E.2d 1, syllabus. An abuse of

discretion connotes that the trial court’s attitude is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

       {¶ 35} Here, we find no abuse of discretion in allowing appellees to testify

regarding “rent, utility expenses, and pre-existing conditions.” For one, we read the trial

court’s order to mean that it would not allow appellees to introduce documents showing

proof of rent, utility payments, and the condition of the property if not produced to

Tillimon—not that appellees could not testify about these matters. Second, it was within

the trial court’s discretion to reconsider its prior decision. Zions First Natl. Bank v. Shiva




15.
Hosp., Inc., 3d Dist. Wyandot No. 16-12-12, 2013-Ohio-5666, ¶ 20. And most

importantly, we have found Tillimon’s first three assignments of error well-taken. To the

extent that he has not been awarded the full amount of damages he requested, it is

because he failed to submit sufficient evidence to support those damages—not because

the exhibits offered by Myles contradicted his damages claims.

       {¶ 36} Accordingly, we find Tillimon’s fourth assignment of error not well-taken.

         E. Allowing appellees to introduce evidence after resting their case

       {¶ 37} In his fifth assignment of error, Tillimon claims that the trial court erred by

allowing appellees to introduce evidence after resting their case, and by allowing

admission into evidence of a document (Exhibit J—a water bill) that was never testified

about at trial and that he was not allowed to review or explain.

       {¶ 38} “[I]t is within the discretion of the trial court to permit or deny the

presentation of evidence that is part of a party’s case in chief after that party has rested.”

Obenour v. Bower, 6th Dist. Lucas No. L-93-319, 1994 Ohio App. LEXIS 3606, *4

(Aug. 19, 1994). Moreover, “[t]he admission or exclusion of evidence is within the trial

court’s discretion and will not be reversed absent an abuse of discretion.” State v.

Burkholder, 6th Dist. Lucas No. L-11-1216, 2013-Ohio-1589, ¶ 14, citing State v. Sage,

31 Ohio St.3d 173, 180, 510 N.E.2d 343 (1987).

       {¶ 39} It was the prerogative of the trial court whether to hear additional evidence

from Myles after she rested her case. As for the exhibit that Tillimon complains he was

not permitted to review, a letter written by Tillimon and offered into evidence by Myles




16.
as Exhibit I, specifically references the document. It is clear, therefore, that he had seen

it before. We find no abuse of discretion here.

       {¶ 40} We find Tillimon’s fifth assignment of error not well-taken.

                                      III. Conclusion

       {¶ 41} We find that the trial court erred in failing to award Tillimon damages for

unpaid rent for September 2016, through December 2016. We also find that the trial

court erred in awarding no amount for utility payments and for costs incurred in

maintaining the lawn following appellees’ breach of the rental agreement. We find no

abuse of discretion in the trial court’s decision to admit testimony and evidence at trial.

       {¶ 42} We affirm, in part, and reverse, in part, the January 13, 2017 judgment of

the Toledo Municipal Court. Tillimon is awarded $4,280 for unpaid rent, $544.44 for

utilities, sewer, and garbage, and $75 for lawn service, for a total award of $4,899.44.

Appellees are ordered to pay the costs of this appeal under 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.




17.
                                             Tillimon v. Myles
                                             C.A. No. L-17-1032




Mark L. Pietrykowski, J.   _______________________________
                                       JUDGE
Arlene Singer, J.
                           _______________________________
Christine E. Mayle, P.J.               JUDGE
CONCUR.
                           _______________________________
                                       JUDGE




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