[Cite as Sallock v. Tillimon , 2023
- Ohio
- 3193.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COU NTY

Abraham Sallock, et al. Court of Appeals No

. L

- 22

- 1241 Appellee s Trial Court No. CI0202002705

v. Duane J. Ti llimon, et al

. DECISION AND JUDGMENT Appellant Decided: September 8, 2023
* * * * *
Duane J. Tillimon, Pro se.
* * * * * OSOWIK, J. {¶ 1} This is an appeal from three judgment s of the Lucas County Court of Common Pleas which , collectively: (1) denied the motion to dismiss by def endant

appellant, Duane J. Ti llimon , to the complaint by plaintiffs

- appell ees, Abraham Salloc k and his wife Manira Sallock , to declare app ellant a vexatious litigator ; (2) d ismissed2

.

appellant ’ s cross - claim against appellee ’ s att orney, Jacob Studer, for san ctions, and (3) awarded appellant out

- of

- pocket costs plus filing fees aft er previously grant ing appellant ’ s motion for summary judgment

. Ultimately, the trial court dismissed appellees ’ complaint with prejudice, granted appe ll ant ’ s counterclaim against a ppellees for noncompliance with discovery orders, and awarded appella nt d amages . For the

reason s set forth below, thi s court affirms the ju dgment s of the trial court.
I. Background {¶ 2} While the subject of th is appeal is Ohio ’ s Vex atious Litigator Sta tute, R. C. 2323.52, the underl ying dispute beg a n with a tenant

- landlord dispute over the return of a security deposit for a res idential premises loc ated in Lucas County, Ohio

. A. Securi ty Deposit Dispute {¶ 3} A ppellant vacated the residentia l premises h e rented from ap pell ees in 2018

. When the appellees did not promptly return appellant ’ s full security deposit of $1,095 , appellant filed a complaint in Sylv ania Municipal Court , assigned case No. CVF1900682, and , in 2019, obtained a judgment in his fa vor for $2,117, plus costs and interest, pursuant to R.C. 5321.16

. {¶ 4} Appellees , acting pro se at the time , appealed the decision of the Sylvania Municipal Court to this court, which was assigned case No. L

- 20

- 1015. This court eventually dismissed the matter on March 27, 2020, p ursuant to App.R. 18.3

. {¶ 5} Meanwhile, appellees tendered payment for the judgmen t 1 to appellant

.

A ppellees allege appellant rejected the payment f or unexplained reasons, and then on June 17, motions for proceeding in aid of execution and for Civ.R. 11 sanctions against
Mr. Studer were file d in case No. CVF1900682 , both of which the municipal court promptly denied. The court then set a date for a debtor e xa m on July 30

. {¶ 6} Around the same time , appellees petitioned this court to waive t he court costs in case No. L

- 20

- 1 015, which this court denied on A ugust 28 , 2020

. {¶ 7} P rior to July 30 , appellant filed a motion for sanctions of $1 , 000 against
app ellees and re qu ested an oral hearing in case No. CVF1900682 , which the municipal court promptly denied. Appellant followed up wi th a motion to compel discovery

. The court set July 27 for a review hearing. {¶ 8} Then on July 20, appellees filed motion s for relief from judgment, or alt ernatively, to stay judgment for appellant to accept initial judgment, a nd for a hearing on all matt ers . Appellant opposed the motion s , and t he municipal court set August 6 , 2020 for a hearing on the motion s . {¶ 9} Then on July 29, appellees filed a motio n to c ontinue both the July 30 debtor ’ s exam and the August 6 hearing on the m otion for relief from judgme nt

. T he

1 Ex hibit A of the c omplaint is the certified mailing of a January 16 , 2020 check payable to a pp ellant , which referenced “ case No. CVF1900682 payment ” for $2,426.68 , comprised of $2,117 .00 for damages , plus $225 .00 for court costs , plus $84.68 for interest. Ap pellant signed for it on January 21 , 2020

.4

.

court promptly granted that motion , cancelled the July 30 debtor ’ s exam, cancelled the August 6 hearing, and scheduled a hearing for August 20 to ad dress the motion to accept initi al judgment. On July 30, appellant , ag ain, filed a motion for Civ. R. 11 sanctions against Mr. Studer, and four days later filed a mo tion to order Mr. Studer to submit verifiable evidence for failing to attend the July 30 deb tor ’ s exam . {¶ 10} The subsequent history and resoluti on of case No. CVF19006 82 is not in the record befo re us . 2 App.R. 9(A) (1)

. B . Vexatious Litigator Dispute {¶ 11} While the municipal court tenant

- landl ord dispute was pending , o n August 5, appellees filed a com plaint in Lucas County C ommon P leas C ourt , assigned
case No. CI2020

- 02705, t o have appellant declared a vexat iou s litigator pursuant to R.C.
2323.52 3 and for related damages and attorney fees incurred by appellees from appellant ’ s vexatious condu ct. A t all times appellant , who is not a n attorney licensed to practice law in Ohio, acted pro se

.

2 As the common pleas cour t explained in its A pril 16, 2021 journalized en try, appellant ’ s motion to dis miss appellee s ’ complaint is based on “ winning ” at a n August 20, 2020 hearing in case No. CVF1900682 , but the doc ket f or case No. CVF190068 2 attached to t he complaint only contains journal entries t hrough August 3.

3 Appellee s all ege , “ Duane J. Tillimon has previously been placed on the Supreme Court of O hio ’ s vexatious litigator li st and a previous judgment rend ering him thus has been ordere d ou t of this Court. ”5

. 1. Trial C ourt Denies Appellant ’ s Motion to Dismiss Complaint

{¶ 12} On August 24, a ppellant filed , pursuan t to Civ.R. 12(B)( 1 ) and 12(B)(6) , 4 a

“ Motion for Dismissal of Com plaint with Prejudice Based Upon the Pleadings Filed , ” which appellees o pposed. Appellant argued th e com mon pl eas court lacked jurisdiction

“ over the issue of attorney fees incurred in another court [Sylvania Municipal Court]

. ” Appellant essentially al lege d that the only reason for the vexatious

- litigator compla int is

a ppelle es ’ refusal to pay Mr. Stude r ’ s a ttorney fees from case No. CVF1900682

. Appellant further alleged that Mr. Studer advised appellees “ that if they pro secute Tillimon to recover their att orney fees, they will not owe attorney Jacob Studer any
money . ” Appell ant concluded that Mr. Stude r is unhappy that a pro se litigant won in
court and that appellees are , in effect, “ vexatious litigators

. ” {¶ 13} The trial court denied appellan t ’ s motion to dis mi ss by journalized entry on April 16, 2021. The trial court detailed t he reasons why appellant ’ s m otion was meritless

. First, the trial court had Civ.R. 12(B)(1) subject

- matter jurisdiction pursuant to R.C. 2323.52(B) and applicable law and reject ed appella n t ’ s unsupported argument that a jurisdictional prerequ isite was not met

. A ppellant ’ s argument s rel i ed on speculation s

4 The trial court determined that ap pellant ’ s motion , which fail ed to clearly ide ntify its bas is, implicated and invoke d both Civ.R. 12(B)( 1 ) and 12(B)( 6 )

.6

.

using “ his own gratuitous, psychologized speculation regarding the m otives of the Sallocks and their counsel for bringing this [vexati ous - litiga tor] lawsuit ” where the complaint “ evinces no attempt to est ablish entitlement to attorn ey fe es as a claim for relief. ” {¶ 14} Second, the trial court concluded appellant failed to meet his burden under Civ.R. 12(B)(6). A ppellant ’ s argument s rel ied on spe culation s from events occurring i n case No. CVF1900682 after Augus t 3, 2020 , including a so

- ca lled “ win ” on August 20 , 2020

. T he trial court determined that appellant ’ s post

- judgment 5 c onduct “ constitutes the gravamen of the Sallock s ’ comp laint , ” and R.C. 2323.52 governs post

- judgment proceedin gs . Conseque ntly, “ c ourts hold that initial good fait h in bringing an action does not per se insulate the party from being declar ed a vexatious litigator for subse quent conduct. ” {¶ 15} One example of appellant ’ s post

- judgme nt conduct alleged in appellees ’ compla int are letters attached to the complaint sent by app ellan t dated Janua ry 4, 2020, to 17 putative tenants of appellees

. A ppellant defended them as routine letters by a judgment creditor

. I n t h o s e l e t t e r s a p p e l l a n t tol d t h e r e c i p i e n t s t h a t a p p e l l e e s a r e d i s h o n e s t l a n d l o r d s a n d t h a t a p p e l l a n t , a s a f o r m e r t e n a n t , h a d won a judgment against them

. Appellant then specifically told th ose putative tenants, “ B ecause the Sallocks

5 On December 10, 2019, appellant obtained judg ment against appellees in Sylv ania Municipal Court in case No. CVF1900682

.7

.

refuse to pay me the judgment, I am now required to garnish you for any money you owe them for rent. If you v o lun tarily pay me next month ’ s re nt, I will not name you in any fu ture ga rnishment action in court, I will accept one month’s rent and release you of all further liabili ty. ” There is no evidence of a garnishment order in the municipal court
docket record as of August 3, 2020. 2 . Tri al Co urt Dismiss es Cross
- Claim {¶ 16} While appellant ’ s motion to dismiss remained pending, a ppellant answered the complaint on February 22, 2021 , and counter claimed against a ppellees while cross claiming against Mr. Studer , a nonparty

. 6 Ap pellant ’ s counterclaim and cross - claim duplicated alleg ations against appell e es and Mr. Studer for frivolous conduct , violating R.C. 2323.51, lack of due diligenc e, extortion, abuse of legal process, malicious prosecution , and violating Civ.R. 11

. {¶ 17} O n March 3, M r. Studer filed a Civ. R. 12(B)(6) motion to dismiss appellan t ’ s cross - claim , which appellant opposed . Mr. Studer argued appellant lacked privity of contract and lacked proof of malice to sue Mr. Studer, a l icensed attorney , who acted in good fai th whi le rep resenting appell ees i n their disputes with appellant. Mr. Studer argued that appellan t ’ s extensive history with Ohio ’ s judi cial system as a pro se

6 The record does not clearly state that for p urposes of t he counterclaim, defendant

appellant is the counterclaim plaintiff , and plaintiffs

- appellees are the counterclaim defendant s. F or purposes of the cross

- c laim, defendant

- appellant is the cross

- claim plaintiff, a n d M r. Studer is the nonpart y cro ss - claim defe ndant.8

.

litigator previously resulted in his d eclaration by the Luca s County Common Plea s Court
in case No. CI2 005

- 03931 as a vexati ous l itigator. He further a rgue d ,

Tillimon has been put on notice that his actions of the same kind in this matter and the Sylvania Municipal Court matter are unacceptabl e and he has chosen to ignore that warning. Not only has he acted outside the real m of ac ceptable conduct by trying to use the legal system to generate

mone y but he has now filed this crossclaim against C ounsel with the specific purpose of causing C ounsel damage , be it monetary o r a drain on Counsel ’ s time from other cl ients , in orde r to try t o force a favorable resolution for himself. Cou nsel would state t hat T illi mon has acted wit h malice and disregard for the legal process. {¶ 18} Then o n July 1 3 , 2021, the t ri al court journalized its notice of intent to dismiss ap pellant ’ s cross - claim on its sua sponte Civ.R. 12(B)(6) motion. Appellant opposed the tri al court ’ s notice , and o n January 3, 2022, pursuant to its sua sponte motion, the trial court dismissed without prejudice appellant ’ s cross - claim against Mr. Studer

. The trial court t hen limite d the remaining litigation to one issue: “ Does this court have authority pursuant to R.C. 2323.52, to grant the requests for pecuniary relief (damages and attorney fees) set f orth in the co mplaint ’ s demand for judgment? ” 3 . Tri al Court Dismisses the Compl aint and Grants Appellant ’ s Counterclaim9

. {¶ 19} On March 3, a ppellees answered appellant ’ s counterclaims and asser ted

numerous affi rmative defenses. Subsequently, the trial court sch eduled the complain t and counterclaim for trial on J une 20, 2022, which was then move d to June 21, and then
to August 29

. Meanwhile, appellant sought to depose appellees prior to trial. {¶ 20} On July 6, the trial court ordered appellees to schedule and complete all de positions by August 8

. Although there is no n otice in the record, apparen tly a ppellant sought to depose appellees on August 3

. On that day appellees faxed appellant and the trial court a motion to continue the deposi tions because M rs. Sallock had jus t had a cardiac event

. The motion attached docume nt ation of that ca rdiac even t. F or unknown reasons, the trial court clerk did not journalize the August 3 motion until August 11. Nevertheless, by the August 11 pretrial hearing , the August 3 deposition date had passed, appellees orally withdrew their mot ion for continu ance , and as journ ali zed on August 2 3, the trial court denied the motion as mo ot. {¶ 21} Following a n August 12 journalized order for appellees to report for , and to pay for, a deposition to be schedu led by appellant, appellant filed a n otice of de position for August 17. A pp ellan t ’ s notice is silent on whether he consulted appellees before schedul ing the deposition

. On August 15 , appellees fa x ed appellant and the trial court a motion to continue the Au gust 17 deposition , with supporting documentat ion, bec ause of Mrs. Sallock ’ s sc hedul ed follow up care for the cardiac event. For unknown reasons, once again, the clerk did not journalize the August 15 motion

. Despite not being found in10

.

the record, appellan t opposed it in the record , and the trial co urt acknowledged the motion in it s August 2 3 order denying it as moot. {¶ 22} O n August 22, appellant filed a motion for contempt of the August 12 order , which the trial court treated as a motio n for summary judgmen t to dismiss the complai nt , and granted it with prejudice 7 pu rsuant to Civ.R . 41( B ) , which states , “ (1) Where the plaintiff f

a il s to * * * comply with * * * any court order, the court upon motion of a defendant * * * after notice to the plaintiff ’ s counsel, di smiss an action or claim. ” The assessment o f damages was schedule d for Septe mb er 30

. {¶ 23} With the assessment of damages set for September 30, the trial court ordered appel lees to appear for, and to pay for, t he ir deposition s by appellant on September 16 . On Se ptember 21 , the trial court denied appellan t ’ s motion to continue the
d amage s hearing for a delay in receiving the September 16 deposition transcripts

. On September 30, appellant testified his out

- of

- pocket expense was $65 .00 for one missed depo sition and the court costs. Appellant admitted that at torney ’ s fees can only be

aw arded t o attorneys. Appellant further testified that “ substantial damages ” are necessary
to send a message “ to prevent the Sallock s from doing this gain to me * * * or against * *

7 The trial court ’ s original judgme nt entry, journalized on August 2 6 , 2022, was subsequently amended by journalized entry on Ma rch 13, 202 3 , to dismiss appellees ’ complaint with prejudice

.11

.

* so me other tenant that they refuse to give th e [sec urity] deposit back to

. ” T h e trial
court ’ s f inal , appealable order , journalized on October 3, 2022, states, This case is before the court for a hearing on default judgment granted to defendant on his counter claims against plaintiffs for failing to

co m ply w ith discovery orders i ssued by the court. 8 After due consideration of the record the court awa rds judgment for defendant against plai ntiffs for defendant ’ s out

- of

- pocket costs plus filing fees. * * * [D]efen dant is awarded a judgment of one hundred ninety dollars ($190.00) pl us in terest at the statu tory rate. {¶ 24} Appellee s paid the judgment to appella nt , did not appeal th e trial court ’ s decision , and d id not file a n appellee brief . Appellant t imely appe aled and s et forth four assignments of error:

1. Th e tr ial cou r t committed reve rsibl e error , and abused its discretion, when it dismissed Defendant Tillimon ’ s Crossclaim against Plaintiff ’ s attorney Studer.

8 The record does not contain a separate judg ment entry of default a gainst appellees on appellant ’ s c ounterclaim , and the record contains a ppellees March 3, 2021 an swer to the counte rclaims

. N e vertheless, at the September 30 hearing, the trial court anno un ced, w ithou t objection, “ We ’ re here for an a ssessment of damages hearing. The court previously grante d summary judg ment on behalf of the defendant on plaintiffs ’ complaint, and a def

ault judgment on the counterclaim based upon failures to comply with thi s court ’ s di scovery rules. ”12

. 2. The trial co urt committed reversible error , and abused its

dis cretion, when it denied Defe n dant T illimon additi onal discovery time and a transcri pt of Plaintiff ’ s deposition to use in court.
3. Th e trial court committed reversible error , and abused its discretion, when it denied Defendant Tillimon his right to a d a mage hearing before a jury as endorse d by Plaintiffs S allock.
4. The t ri al co urt committed reversible error , and abused its discretion, when it failed to award Defendant Tillimon reas onable compensatory damages, punitive damages, and sa nctions against Plaintiffs
S allock for filing a frivolous Cou nterclaim, Appea l an d Co mplai nt against Defendant Tillimon since the Trial Court found the Plaintiffs Sallock financially liable4 for suc h conduct on Summary Judgment

.

I I. Dismissal of Cross
- Claim {¶ 25} In support of his first as signment of error, a ppellant incorrectly argues t h e
prope r sta ndard of appellate review is abu se of discretion of the trial court ’s dismissal without prejudice of appellant ’s cross

- claim against Mr. St uder

. We note that , o riginally,
Mr. S tuder filed his mo tion to dismiss pursuant to Civ.R. 12(B)(6) , but the tri al co urt did not grant that motion

. I nstead, the trial court dismissed appellant ’s cross - claim on its own Civ.R. 12(B)(6) motion , after giving over five months’ notice to the parties pursuant to Emery v. State Farm Ins. , 6th Dis t. Sandusky No. S

- 15

- 010, 20 15

- Oh io

- 4056, ¶ 14 , citing13

.

State ex rel. Edwards v. Toledo City School Dist. Bd. of Edn. , 72 Ohio St.3d 106, 108, 647 N.E.2d 799 (1995)

. The trial court then denied Mr. Studer ’ s motion as moot. {¶ 26} Civ.R. 12(B)(6) states, “Every de fense , in law or fact, to a claim for relief in any pleading * * * may at t he option of the pleader be made by motion: * * * (6)
failure to state a claim upon which relief can be granted [

. ] ” Civ.R. 12(B)(6) applies to

cross - claim s as it does to a complaint

. Royce v. Smith , 68 O hio S t.2d 106, 108, 429 N.E.2d 134 (1981) ; Commerce & Industry Ins. Co. v. City of Toledo , 45 Ohio St.3d 96,
101

- 02, 543 N.E.2d 1188 (1989)

. {¶ 27} We revie w de novo a trial court’s dismissal pursuant to Civ.R. 12( B)( 6) , which tests th e suf

f iciency of appellant ’s cros s - cla im

. State ex rel. Myl es v. Goering , Slip Opinion No. 2023

- Ohio

- 483 , ¶ 5

. “ ‘ Dismissal of a complaint for failure to state a claim upon which relief can be granted is appropriate if, after all factua l all egations of the
comp laint are presumed true and all r easonable inferences a re made in relator ’ s favo r, it appears beyond doubt that relator can prove no set of facts warranting relief. ’ ” Id. , quoting Clark v. Connor , 82 Ohio St.3d 309, 311, 695 N.E.2d 751 (1998)

. Although w e
are to assume th e facts al leged in the cross - claim are true for Civ.R. 12( B )(6) purposes , we do not assume the legal conclusions alleged to be drawn from those facts are also true , and we disregard any unsupported conclusions incl u ded among the facts all eged in the
amended compla in t. O ’

Loughlin v. Ottawa St

. Condo minium Assn. , 6th Dist. Lucas No.
L

- 16

- 1128, 2018

- Ohio

- 327, ¶ 22

.14

. {¶ 28} The trial court gave six reasons for dismissing appellant ’ s cross - claim

against Mr. S t uder

. Upon de novo r eview, w e agree w ith each reason ; however , any on e

r ea son supports dismiss al of the cross

- claim

. {¶ 29} First, appellant cannot properly as se rt a cross

- claim against Mr. Studer , a nonparty. Civ.R. 13( G) authorizes a cross

- claim only by one party against a co

- part y : “ A pleading may s tate as a cross

- claim any cl aim b y one party against a co

- party arising out of the transaction or occurrence that is the subject matter either of the original action or of
a counter claim therein [.] ” The trial court cited Cincinnati Ins. Co. v. Bellini , 12 th Dist. Clermont No. CA91

- 0 5

- 034 , 1991 WL 27 8255, *2 (Dec. 30, 1991) (Civ.R. 13(G) only allows a cross

- claim against one who is already a party) , in addition to other appellate distr icts. We concur. Mr. Studer was never a party in appel lees ’ vexatious l itigator action against appe llant , and appellan t ’s cross - clai m against Mr. Studer did not make him a party. Whitehall v. Olander , 10th Dist. Franklin No. 14AP

- 6, 2014

- Ohio

- 4066, ¶ 20

. {¶ 30} Second , appellant failed t o allege sufficient underly in g facts to satis fy Civ.R. 8(A)(1) where the cross - claim averment s mostly “ state purely legal conclusions , and the remainder do not combine to supp ort of elements of any claim for relief. ” We

concur . For example, appellant supports his averment for a violat ion of R.C. 23 23.51 by merely stating , “ Th e Sal locks and the ir a ttorney Jacob A. Studer conducted themselves in a frivolous manner thereby violating [R.C.] 2323.51 by filing the Complaint in this case. ”15

. {¶ 31} Third, appellant is not entitled to sanct ions or a he aring to deter mine

attorney fees under R.C . 232 3.51 , because app ellant i s a pro se litigant , citing State ex rel.
Freeman v. Wilkinson , 64 Ohio St.3d 516, 517

- 18, 597 N.E.2d 126 (1992)

. We concu r , finding that the Ohio Supreme Court clearly held t hat “ R.C. 2323.51 prov ides for attorney fees, not compe nsation for pro se litigants

. ” Id. at 517. It is undisputed that at all times appellant was a pro se litigant and admitted that attorney ’s fees can only be awarded to attorneys

. {¶ 32} Fourth , appellant failed to plea d a pr ovabl e claim under Civ.R. 11 wher e he alleges that Mr. Stu der signed the complaint for appellees and “ there are not good grounds ” to support it

. “ Civ.R. 11 does not create an independent cause of action cognizable in a separate suit. ” Mitchell v. Whi taker , 33 Ohio App.3d 170, 17 1 , 514
N .E.2d 937 (8th Dist.1986) , paragraph two of the syllab us . We concur. {¶ 33} Fifth, appellant is not entitled to pursue his malicious

- prosecution claim against Mr. Studer where appellant failed to allege underlying facts of the essenti al elements : “ (1) maliciou s insti tution of prior proceedings against the plaintiff by defendant, (2) lack of probable cause for the filing of the prior lawsuit, (3) t ermination of the prior proceedings in plaintiff's favor, and (4) seizure of plain tiff ’ s p erson or property during t he cour se of the prior proceedings. ” Robb v. Chagrin Lagoons Yacht Club, Inc. , 75 Ohio St.3d 264, 662 N.E.2d 9 (1996) , syllabus

. We concur

. Appellant , as the c ross claim plaintiff , does n ot allege that Mr. Studer , as the n onpar ty cross - claim defendant ,16

.

in i tiat e d, maliciously or otherwise, case No. CVF1900682

. Appellant admits he initiated the municipal court lit igation against appellees and “ won . ” {¶ 34} Finally, appellant is not entitled to pursue an abuse

- of

- process claim agains t Mr . Studer where appellant fai le d t o allege underlying facts of the essenti al
elements : “ (1) that a legal proceeding has been set in motion in proper form and with probabl e cause; (2) that the proceeding has been perverted to attempt to accomplish an ult erio r purpose for which it was n ot de signed ; and (3) that direct damage has resulted from the wrongful use of process. ” Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A. , 68 Ohio St.3d 294, 298, 626 N.E.2d 115 (1994)

. We concur. Appellant , as the c ross - claim plaintiff , does n ot allege t hat M r. Studer , as the nonparty cross - claim defendant , filed th e complaint as the plain tiff in c a se No. CI2020

- 02705, let alone that Mr. Studer did so in proper form and with probabl e cause . {¶ 35} Appellant ’s reliance on Keith

- Harpe r v. Lake Hosp. Sys., Inc

. , 2 017

- O hio

7361, 96 N.E.3d 82 3 ( 11th Dist. ) is misplaced. In that wrongful employment termination
matter, no appeal was taken from the trial court ’ s final appealable order

. Id. at ¶ 1

- 4. Subsequent to the trial court ’ s final deci sion, the former employer fi led a motion for sanctions under R.C. 2323.51 and Civ.R. 11 for attorney con duct since that decision. Id.
at ¶ 5. Here, appellant file d a cross - clai m against a nonparty pursuant to R.C. 2323.51 in
the original c ause of action th at was actively p ending be fore the trial court.17

. {¶ 36} We reviewed the record de novo and find no trial court error dismiss ing

appellant ’ s cross - claim ag ainst M r. Studer witho ut pr ejudice

. {¶ 37} Appellant ’ s fi rst assignment of error is n ot well

- taken.
I I I. Continuanc e {¶ 38} In support of his second a ssign men t of error, appellant argues the trial court was unreasonable when it denied his motion to continue the September 30, 2022 damages hearing for an u nspecified perio d of time in order for him to obtain the deposition
trans cr ipt of appellees

. Appella n t ar gues the transcript was necessary f or the damages hearing because , “ Both the Sallocks, and attorney Studer falsely testified about not having the ‘ off the record ’ hear ing they, in fact, had with Judge Bonfiglio. ” Appellant
arg ues such testimony “ need ed to be a uthenticated. ” However, appellant does not explain why or how such authentication was relevant to the September 30 hearing

. Appe llan t merely concludes that , because th e trial court did not give it s reasons , he was
pre judic ed by the trial court ’ s deni al

. We disa gree. {¶ 39} We review the grant or denial of a continuance for an abuse of discretion.
In re Edward M. , 6th Dist. Lucas Nos. L

- 04

- 12 82, L

- 04

- 1304, 2005

- Ohio

- 3354, ¶ 21, citing State v. Unger , 67 Ohio St.2d 65, 67, 42 3 N.E. 2d 1078 (1981)

. A buse of d iscretio n “‘connotes more than an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionabl e.’” Blakemore v. Blakemore , 5 Ohio St.3d 2 17, 219, 450 N.E.2d 1140 (1983), quotin g State v. Adams , 62 Ohio St .2d 1 51, 157, 40418

.

N.E.2d 144 (1980). For the following reasons we do not find the trial court ’ s attitude wa s unreasonable, arbitra ry or unconscio n able. {¶ 40} First , a ppellant was on notice since the trial court ’s January 3 judgmen t

e ntry , tha t the trial court l imite d the liti gation to the issue of the court ‘ s authority to grant the requests for pe cuniary relief in appellees ’ complaint. The trial court announced :

It is painfully obvious that the fa ilure to bring resolution to that is sue has sp awned the controve rsy t o date, and threatens to prolong the discovery
process. This court has the author ity, inherently a nd under amended Civ.R. 26(F), to control its doc ket and to regulate discovery; and it is no w going to exercise that au thori ty to it s f ull, permissible exten t[.] The den ied continuance is consistent with the trial court ’ s announcement. “ [C] ontrol over a trial docket is within the judge ’ s dis cretion [.] ” Warrick v. Gaudynski , 6th Dist.
Lucas No. L

- 86

- 358, 1987 WL 18442, *1 (Oct . 16, 1987)

. {¶ 41} Second, t he tra nscri pt of the Sept ember 30 damages hear ing is in the record, but appellant does not point us to where the prejudice to appellant arose f rom the alleged trial court error

. App.R. 16(A)(7). We decline to speculate

. {¶ 42} Third, the t rial court admi tted , over ap pelle es ’ objections, all of appellant ’ s evidence at th e h earing , including his 49

- page “Affidavit of Duane J. Tillimon in Support of Damage s ” and “the ex parte private secret letter sent to Sylvania Municipal Court Judge Michael Bonfiglio that was construe d as a Notice of Appe al by Judge Bonfiglio [. ] ”19

.

Further, the trial court listened to all of appellant ’ s arguments in fav or of damages , until appellant had nothing further to say

. The trial court ’s October 3 journalized entry sta tes appellant “p resented evi dence and exhibits , ” a ll of which was available for the trial
court ’s consideration {¶ 43} Fourth, t he trial court ’s judgment e ntry, journalized on Sep tember 16, confirms that appelle es ’ depositions by appellant were held on that day a t the trial cour t

. Thus, the tria l court was aware of what transpired during those depositions and , on September 30, was prepared to rule on a ny objections raised. {¶ 44} Finally, and c ontrary to appellant ’ s urging, the tria l court is not required to adopt his ch aracterization o f the munici pal c ourt pr oceedings

. The trial court judge, as the fact finder, remin ded the parties it “ will only consider th ose portions [of th e evidence] that are relevant as it relates to damages. ” “ On the trial of a case, either civil or criminal, the w eight to b e giv en the ev idence and the credibility of the witnesses are primarily for the trier of the facts. ” State v. DeHass , 10 Ohio St.2d 2 30, 227 N.E.2d 212, 213 (1967) , paragraph one of the syllabus

. {¶ 45} We find the trial court did not abuse its discreti on when i t den ied appell ant ’s motion to continue the damages hearing for an unspecified period of time. {¶ 46} Appellant ’ s second assignment of error is not well

- tak en.20

. I V . Damage s Assessment by Jury

{¶ 47} Appellant argues for this third assignment of error that becaus e appel le es ’ complaint m ade a jury demand, appellant is entitled to a jury determination of his d amages pursuant to Civ.R. 38 (D)

. In support , appellant points to a portion of the September 30 transcript in whi ch he ackno wledges he may have been under a mis concep tion that Septembe r 30 was a jury trial , and acknowl edges the trial court instructed him, “ No, this is an assessment of damages hearing to determine what money you were owed as a result of the judgment that has been entered agai nst the Sallocks

. ” App ellant mere ly co ncludes, “The D amage Hearing clearly should have been hel d before a jury. ” We disagree

. T he hearing transcr ipt shows appellant did not argue to the trial court why he believed he was entitled to a damages jury

- tri al , such as having paid the jur y fee

. Rather , t he t rial court ’s October 3 journalized entry shows that appellant

“ withdrew the Jury Inst ructions that were filed on Septem ber 19, 2022

. ” {¶ 48} We review the denial of jury trial for an abuse of discretion. See Skiad as v. Finkbeiner , 6th Dist

. Lucas No. L

- 05

- 1094, 2 007

- Ohio

- 3956 , ¶ 30 (no abuse of discretion for waiving jury trial for fai lure to pay jury fee) ; Runge v. Brown , 6th Dist. Ottawa No.
OT

- 12

- 033, 2013

- Ohio

- 3064, ¶ 12

. {¶ 49} Civ .R. 38(D) states, “ The failure of a party to serve a demand as r equir ed by this rule a nd to file it as required by Rule 5(D) constitutes a waiver by him of a trial by jury

. A demand for trial by jury made as herein provided may not be withdrawn without21

.

the consent of the parties. ” As expla ined by the Staff Notes to C iv.R. 38(D), the
consequ enc e of failing to make a proper jury demand under Civ.R. 38(B) i s a waiver of the ri ght to a jury trial. {¶ 50} This matter was before th e Genera l Division of the Lucas County Court of Common Pleas, and under Gen. R. 5.07(F), if a party fails to de posit $200 at least seven days pr ior to t he scheduled trial date and to send immediate notice to c ounsel for all other parties regarding the filing of the jury deposit , t hat party waives the jury and waives any object ion to the payment of the ju ry fe e by another. Appel lant provides neither evidence of payment of the $200 jury fee by him o r by appellees , nor of notice to appellees that he paid the jury fee when appellees failed to do so

. {¶ 51} Having failed to properly make a jury demand and fee payme n t un der the local rules, we find that appellant waived his right to a jury trial on damages. “ Local court rules, requiring an advance deposit as security for the costs of a jury trial and providing that the failure of a party to advance such deposit c ons ti tut es a waiver of the
ri ght to a trial by jury, are moderate and reasonable regulations of the right of trial by jury, and ar e constitutional and valid. ” Walters v. Griffith , 38 Ohio St.2d 132, 311 N.E.2d 14 (1974) , s yllabus

. Such local rule is suppleme nta ry to, not in opposition with, Civ.R. 38. Id. at 133

- 134 ; s ee Pasco v. McCoy , 6th Dist. Ottawa No. OT

- 94

- 046, 1995 WL 386441, *5 (June 30, 1995) (finding a $250 jury deposit is not excessive, is22

.

constitutional, and subject to w aiver of the right to a ju ry tr ial under the court ’s local rules )

. {¶ 52} We reviewed the record and find the trial court did not abuse its discretion when it de nied appellant a jury trial for the assessment of damages

. {¶ 53} Appellant ’s third assignment of error is not well

- tak en. V . Damages A war d {¶ 54} Appellant argues for t his fourth assignment of error that the trial court ab used it s discretion by ordering an award that did not reasonably co mpen sat e him and did not sufficiently pun ish appellees. Appellant argues that b ecause his c ounter claim agai nst t he appellees was succes sfully grante d on summary judgment , and because in his

c ounter claim he demanded in excess of $ 25, 000 in damages from each of them , the sole

“ p urpose of the Damage Hearing was be (sic.) to determine h o w much in excess of $25,000. 00 e a ch was to be awarded, a nd not to determine whet her, or not, any judgment at all was to be award ed to Tillimon. ” Appellant a rgues the trial court should have awarded him $30,000 as compensatory damages under R.C. 2323.5 1 , w hich he calculated to be the equi valent of paying an atto rney who billed 200 hours at $150 per hour because he spent 200 hours defending this case

. We disagr ee. {¶ 55} “ In Ohio, the burden of proving damages by a preponderance of the evidence is upon the party claiming the damages. ” John son v . Ball , 6th Dist. Ottawa N o. OT

- 20

- 019, 2021

- Ohio

- 3136, ¶ 20

. A ppellant was given every opportunity at th e23

.

S eptember 30 bench trial to give evidence and argument to support the damages he sought. {¶ 56} Appellant ’ s affidavit, whi ch was admitted as eviden ce , stat es appellant sought “ a jud gment of at least $100,000 to compe nsate me for the frivolous c laims the Sallocks forced me to defend, for violating Civil Rule 11, for abusing the legal process, for acting with frivolous, malicio us and abusive conduct again st me , and in order to discoura ge a repeat of such conduct again st me, or others. ” Appellant p rovided no evidence to support his claim for $100,000, either in the affidavit or at the bench trial. {¶ 57} Appellant ’ s affida vit also sta tes he sought compe nsation f or hi s p ro se time: I have over 200 hours of time in researching law, preparing pleadings, driv ing to court, and appearing in court, and mailing out copies of pleadings over the last three years defending against the frivolous c laims in three di fferent cou rts. If I had hired a cheap atto rney at $150.00 per hour,
t he cost would total $30,000 more in damages than what I am be (sic.) entitled to recover in this case. I have also incurred the cost of ink, copy paper, copy services an d postage for hundreds of pa ges o f p leadings

. I understand t hat since I a m not an attorney, I cannot recover these expenses , but these damages should be considered when granting my judgment for the reasons I alleg ed in my Counter claim.24

. {¶ 58} Appellant provided n o evidence to support his ou t

- of

- poc ket expe nse for
paper , i nk, etc. And appellant conceded in the record he is not an atto rney and cannot seek compensation as an attorney

. Appellant ci tes no legal authorities to lead us to conclude otherwise. App.R. 16( A)(7)

. {¶ 59} Because the trial cou rt ’ s judgm ent s in appellant ’ s favo r were in response to appellees ’ failure to comply with the trial cou rt ’s discovery order s , w e find the re is competent, credible evidence in the record to support the trial court ’ s damage award

. Appellant repeatedly testif ied a t the hearing that his out

- of

- pocket costs were $65 .00 for the missed deposition and unspecified c ourt costs

. S uch proof was by a prepond erance of the e vidence because his affidavit for damages stated, “ My out

- of

- pocket ex penses in this case consiste d of the co urt costs to file the Co unterclaim, and the $65.00 I paid to Glass City Repor ting when the Sa llocks didn ’ t show up f or their deposition the first time , ” and he attache d the invoice. Th e trial court awarded him $190 .0 0 plus interest at the statu tory
rate. {¶ 60} “ We review a trial court’ s judgment following a bench trial under the manifest weight of the evidence standard.” Zak v. Air hart , 6th Dist. Lucas No. L

- 21

- 1052, 2021

- Ohio

- 4399, ¶ 42. In such review, “ we weigh the evid ence and all reasonable infe rence s, cons i der the credibility of t he witnesses, and determine whether the trial court clearly lost its way in resolving conflicts in the evidence, creating such a manifest miscarriage of justice that reversal and a new trial are necessary.” Id. We wil l not25

.

reverse t he trial court’s judgmen t if the essential elements of the case are supported by some competent, credible evidence in the reco rd. Id. {¶ 61} We reviewed the record and find the trial court ’ s damage award to appellant wa s not against the manifest w eight of the evi dence

. {¶ 62} Appellant ’s fourt h assignment of error is not well

- tak en. V I . Conclusion {¶ 63} O n consid eration whereof, the judg me nt s of the Lucas Cou nty Court of
Common P leas are affirmed

. Appellant is ordered to pay the cost s of this appeal pursuant
to App. R. 24. Judgment affirmed. A certified copy of this entry shall constitute the mand ate pursuant to App.R. 27. See also 6th Di st.Loc.App.R. 4. Thomas J. Osowik , J.

____________________________ JUDGE Gen e A. Zmuda , J.

____________________________ Charles E. Sulek , J. JUDGE CONCUR.

____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in view ing t he final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/d o cs/.