[Cite as Tillimon v. Pennington, 2019-Ohio-1031.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 LUCAS COUNTY 

Duane J. Tillimon Court of Appeals No. L-18-1157 

 

 Appellant Trial Court No. CVG-01-16811 

v. 

Karen S. Pennington, et al. DECISION AND JUDGMENT

Appellees Decided: March 22, 2019 

* * * * * 

 Duane J. Tillimon, pro se. 

 Howard B. Hershman, for appellees. 

* * * * * 

 ZMUDA, J. 

I. Introduction 

{¶ 1} Appellant, Duane Tillimon, appeals the judgment of the Toledo Municipal 

Court, awarding $10,277 in attorney fees to appellees, Karen and Sean Pennington,1

 

1

 While we refer to appellees in the plural throughout this decision since judgment was 

rendered for appellees Karen and Sean Pennington, we note the brief was filed on behalf 

of appellee Sean Pennington. This does not affect this court’s final determination. 
2.

following appellees’ filing of a motion for sanctions. For the reasons that follow, we 

reverse. 

A. Facts and Procedural Background 

{¶ 2} This is the third appeal taken in this case to address the parties’ dispute 

arising from a 1997 land installment contract. While we previously discussed the 

procedural and factual history of this matter, a detailed review of this history is in order 

to properly frame the current issues on appeal, and explain why this case is once again 

before this court. 

{¶ 3} In 2001, appellant filed a landlord’s complaint, seeking forcible entry and 

detainer and monetary damages, with the first count regarding possession of the property 

resolved by consent judgment entry. Almost 15 years later, appellant attempted to collect 

on a money judgment as to the second count, construing the consent judgment entry as 

addressing his claim for damages. This series of appeals ensued. 

{¶ 4} We previously had determined there was no valid, enforceable judgment for 

damages entered on the second cause of action in appellant’s landlord complaint. See 

Tillimon v. Pennington, 6th Dist. Lucas No. L-16-1056, 2017-Ohio-48 (Tillimon I). As a 

consequence of this ruling, appellees then moved to dismiss the damages claim for want 

of prosecution, and the trial court dismissed, noting more than 15 years had elapsed from 

the date of filing. In the second appeal, we affirmed the trial court’s dismissal of the 

second cause of action, finding no abuse of discretion. See Tillimon v. Pennington, 6th 

Dist. Lucas No. 17-17-1134, 2018-Ohio-529 (Tillimon II). 
3.

{¶ 5} Prior to our ruling in Tillimon II, appellees filed a motion in the trial court, 

seeking an award of attorney fees for bad faith and frivolous conduct, pursuant to Civ.R. 

11 and R.C. 2323.51. After our ruling in Tillimon II, the trial court granted appellees’ 

motion and awarded attorney fees as sanction against appellant, based on appellant’s 

actions to collect the money judgment, prior to the trial court’s determination that no 

judgment existed. In the present appeal, we address this award of attorney fees. 

{¶ 6} The following facts are relevant to this third appeal. 

{¶ 7} In March 1997, the parties executed a land installment contract regarding 

property located at 16 Van Buren Avenue in Toledo, Ohio. Following appellees’ default 

on the terms of the land installment contract, appellant filed a landlord’s complaint in 

Toledo Municipal Court. In the complaint, appellant asserted two causes of action: 

(1) an action for forcible entry and detainer, and (2) a civil action for a money judgment 

of $15,000. The case never proceeded to trial. Instead, the parties executed a consent 

judgment entry, which provided, in pertinent part: 

Defendants Karen S. Pennington and Sean M. Pennington consent to 

judgment for possession on the first cause of action in this forcible entry 

and detainer action with a writ of restitution to issue upon payment. 

Defendants agree to cancellation of the Land Installment Contract 

dated March 21, 1997 * * *. 

Plaintiff Duane J. Tillimon agrees to stay the execution of the writ of 

restitution until November 30, 2001. 
4.

Plaintiff Duane J. Tillimon agrees to vacate this judgment and 

dismiss this lawsuit if the Defendants comply with the following terms and 

conditions of this Consent Judgment Entry: 

Defendants Karen S. Pennington and Sean M. Pennington agree to 

the following: 

* * * 

5. The failure to comply with this agreement after this lawsuit is 

dismissed shall constitute a violation and breach of the land installment 

contract the subject of this lawsuit. 

6. The Defendants agree to pay Plaintiff $2298 no later than 

November 1, 2001 which payment shall constitute payment of the land 

contract payments due for August, September, October and November 

2001 plus the court costs of this action. 

{¶ 8} Approximately 14 years passed with no activity on the case. Finally, on 

June 8, 2015, appellant filed a certificate of judgment in the municipal court, and 

subsequently filed a motion seeking revivor. In his motion, appellant represented that he 

had recovered a judgment against appellees in the amount of $2,298 (an amount recited 

in the parties’ consent judgment entry), plus ten percent interest, that no execution had 

issued on the judgment for five years, and that the judgment remained unpaid in full. 

Thus, he requested the judgment be revived. 
5.

{¶ 9} The trial court issued service of summons with appellant’s motion, in 

accordance with Civ.R. 4(F), with service perfected. Appellees failed to respond to the 

summons within 28 days, and on September 22, 2015, the trial court issued a final order, 

reviving the consent judgment. Appellant promptly initiated a series of collection efforts, 

which included garnishment of wages and other property, pursuant to orders entered by 

the trial court, and consistent with the law. 

{¶ 10} On October 28, 2015, appellees filed a motion seeking reconsideration, 

relief from judgment, and a stay of proceedings. In their motion, appellees asserted that 

the consent judgment entry was not a final judgment because it failed to specify 

consequences of appellees’ failure to make the $2,298 payment. According to appellees, 

without a final order or judgment, appellant had no right to execution and no judgment to 

revive. Alternatively, appellees contended that if the court were to find that the consent 

judgment entry was a final judgment, they were entitled to relief from that judgment 

under Civ.R. 60(B)(4) because the judgment had been satisfied, released or discharged, or 

it was no longer equitable that the judgment should have prospective application. 

Appellees also asserted that appellant had received payment in full, and that subsequent 

to the filing of the case, they acquired other causes of action against appellant to which 

they could claim a setoff. 

{¶ 11} In opposing appellees’ motion, appellant argued that appellees failed to 

appeal or otherwise challenge the consent judgment, failed to object to revivor of the 

consent judgment, and failed to meet their burden under Civ.R. 60(B). Moreover, 
6.

appellant urged that the doctrine of laches barred appellees’ challenge, and the consent 

judgment entry was a valid judgment on the merits and was, therefore, a final appealable 

order. 

{¶ 12} On January 7, 2016, the trial court denied appellees’ motion by entry on the 

docket with no written decision. Eight days later, appellees filed a second motion, 

seeking relief from judgment and stay of proceedings. They clarified that they were 

seeking relief, not from the 2001 judgment, but from the 2015 order reviving the 2001 

judgment. Appellees argued that the 2001 consent judgment entry addressed only the 

claim for possession of the property, and therefore, was not a money judgment, capable 

of being revived. Additionally, appellees asserted that the consent judgment entry failed 

to address the second cause of action pertaining to money damages, with no final 

judgment for money damages entered as to that claim. Appellees also argued that 

appellant’s failure to prosecute the claim for nearly 14 years warranted dismissal of the 

second cause of action. 

{¶ 13} On February 16, 2016, upon consideration of appellees’ arguments in 

support of their motion for relief from judgment, as well as appellant’s opposition, the 

trial court granted appellees’ motion and vacated the order of revivor. In its decision, the 

court concluded that the consent judgment entry was unclear as to the parties’ agreement, 

leaving open to interpretation whether a money judgment existed. Reviewing the 

language of the consent judgment entry more carefully, the trial court interpreted the 

$2,298 as payment for back rent, and that payment of back rent was “a condition that 
7.

would allow the Defendants to remain in the Land Installment Contract” and vacate the 

consent judgment. The court noted that under the consent judgment entry, the payment 

was due on November 1, 2001, but the parties signed the agreement after this date. It 

concluded that “[i]f money was agreed upon and never received, [appellant] would have 

dealt with that issue when he signed the consent judgment * * * by filing additional 

motions or not signing and letting the case proceed through the normal court process.” 

{¶ 14} Thereafter, appellant appealed the trial court’s decision vacating the order 

of revivor in Tillimon I. We issued our decision in that appeal on January 6, 2017. In our 

decision, we found that the consent judgment only addressed the forcible entry and 

detainer action, which meant that the trial court lacked the authority to revive a judgment 

purporting to award money damages. Tillimon, 2017-Ohio-48, at ¶ 21. Therefore, we 

held that the trial court properly vacated the order of revivor. Id. at ¶ 22. 

{¶ 15} Two weeks after we released our decision in Tillimon I, appellees filed a 

motion to dismiss appellant’s 2001 landlord complaint for want of prosecution. In their 

motion, appellees contended dismissal was proper because appellant had failed to pursue 

a judgment, or take any action at all, on his second cause of action for money damages, 

and it had been approximately 15 years since appellant filed his complaint. Following a 

hearing on the matter, the trial court issued its decision granting appellees’ motion to 

dismiss on April 28, 2017. In its decision, the trial court found that appellant failed to 

take any action on his second cause of action for a period of 14 years, thereby warranting 

dismissal of the matter. 
8.

{¶ 16} Appellant appealed the trial court’s dismissal of his complaint in Tillimon 

II. On February 9, 2018, we issued our decision, affirming the judgment of the trial 

court. Tillimon, 2018-Ohio-529, at ¶ 20. 

{¶ 17} While Tillimon II was pending before our court, appellees filed a “motion 

for sanctions for frivolous conduct and for violations of Civil Rule 11.” In their motion, 

appellees sought an award of attorney fees in the amount of $10,277, which reflected the 

fees charged to appellees in connection with their attempts to defend against appellant’s 

efforts to revive and pursue collection activities on the putative 2001 consent judgment. 

{¶ 18} In support of their request for sanctions, appellees stated that “[e]very act 

taken by [appellant] in this matter from the time he attempted to revive his non-existent 

judgment is frivolous. Appellees went on to cite the specific acts that they deemed 

frivolous, all of which took place prior to the trial court’s decision granting appellees’ 

motion to vacate the order of revivor. 

{¶ 19} The trial court held a hearing on appellees’ motion for sanctions on 

May 24, 2018. At the hearing, appellant informed the court that his delay in prosecuting 

his cause of action for money damages was due to the difficulty he encountered in trying 

to locate appellees, who moved out of Northwest Ohio subsequent to the journalization of 

the consent judgment. After locating appellees, appellant stated that the clerk of the trial 

court directed him to revive his 2001 judgment, which he attempted to do. According to 

appellant, he was under the impression at the time that he had a valid, although not yet 

revived, judgment entitling him to the $2,298 in back rent detailed in the consent 
9.

judgment entry. Appellant then provided the following explanation for the actions 

complained of in appellees’ motion for sanctions: 

Everything I did, from July 31, 2015, when I was told to revive the 

judgment through September – sorry. February 15, 2016, the day before 

Judge McConnell changed the decision, was to revive the judgment and 

maintain the judgment as revived. I appeared before four judges and a 

magistrate during all this time. And they either all ruled in my favor, or 

ruled against [opposing counsel] every time there was a decision to be 

made. * * * I had no reason to do anything frivolous because I was getting 

all the decisions in my favor. The record, of the case, shows that all my 

pleadings were filed, on good faith, based upon the prior rulings of the four 

judges and a magistrate. The Court of Appeals did not find the arguments 

of my appeal frivolous. And they were the same arguments that I made in 

the trial court. 

{¶ 20} After appellant’s cross-examination by appellees’ counsel, the trial court 

permitted appellant to make a statement to the court. Appellant reiterated his belief that 

he acted in good faith in pursuit of rights he believed he possessed under the terms of the 

consent judgment. In particular, appellant stated: “I filed all of these pleadings, with the 

belief that I had a valid judgment against the [appellees]. There would be no other reason 

to file these pleadings. Other than to collect on the judgment I believed I had. The Court 

said I had to revive the judgment. To me that’s a confirmation I had a judgment.” 
10. 

{¶ 21} Following the hearing on appellees’ motion for sanctions, the trial court 

issued its decision granting the motion. The trial court found that appellant acted 

frivolously and in violation of Civ.R. 11 in attempting to collect an amount awarded for 

the second count of the complaint, based on the consent judgment, finding this claim was 

later dismissed for want of prosecution and never reduced to a final judgment. As a 

result of its finding, the trial court awarded appellees attorney fees in the amount of 

$10,277. 

B. Assignments of Error 

{¶ 22} Appellant has filed a timely notice of appeal of the trial court’s decision on 

appellees’ motion for sanctions, and asserts the following assignments of error for our 

review: 

Assignment of Error #1: The trial court comitted [sic] reversable 

[sic] error, and abused its discretion, in granting appellees sanctions against 

appellant because the appellees’ motion for sanctions was not timely filed. 

Assignment of Error #2: The trial court commited [sic] reversable 

[sic] error, and abused its discretion, when it denied the appellant’s motion 

for summary judgment (aka directed verdict) after the appellees rested their 

case in chief without testifying, or presenting testimony from a persipient 

[sic] witness, supporting the appellees’ motion for sanctions. 

Assiignment [sic] of Error #3: The trial court committed reversable 

[sic] error, and abused its discretion, when it granted the appellees’ motion 
11. 

for sanctions because the judgment entry was against the manifest weight 

of the evidence, there being no testimony or other evidence to support the 

argument that appellant did not act in good faith. 

Assignment of Error #4: The trial court committed [reversible] 

error, and abused its discretion, when it awarded the appellees attorney fees 

for the cost of defending appellant’s appeal when the trial court was 

divested of jurisdiction in the case to award any sanction. 

Assignment of Error #5: The trial court committed reversable [sic] 

error, and abused its discretion, when it granted attorney fees as sanctions 

because the attorney fees were incurred to avoid paying an admitted debt, 

not dispute the debt. 

Assignment of Error #6: The trial court committed reversable [sic] 

error because it abused its discretion in awarding sanctions without 

considering there was no testimony from appellees that appellant violated 

Civil Rule 11 or R.C. 2323.51 and there was [testimony] from appellant 

that he did not violate Civil Rule 11 and [R.C. 2323.51]. 

{¶ 23} We address appellant’s third assignment of error first, as it is dispositive of 

all issues on appeal. 

II. Standard of Review 

{¶ 24} The trial court awarded sanctions under Civ.R. 11, while also indicating it 

found appellant acted “frivolously” in seeking to execute the judgment. 
12. 

{¶ 25} An award of sanctions under Civ.R. 11 is reviewed for an abuse of 

discretion. Bergman v. Genoa Banking Co., 6th Dist. Ottawa No. OT-14-019, 2015-

Ohio-2797, ¶ 34, citing Kreger v. Spetka, 6th Dist. Lucas No. L-05-1028, 2005-Ohio3868, ¶ 11. An abuse of discretion connotes an unreasonable, arbitrary, or 

unconscionable attitude on the part of the trial court in reaching its decision. Blakemore 

v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). 

{¶ 26} Review of an award of sanctions pursuant to R.C. 2323.51, however, 

presents a mixed question of law and fact. (Citations omitted.) St. James Therapy Ct., 

Ltd. v. Ohio Vestibular & Balance Ctrs., Inc., 2018-Ohio-433, 104 N.E.3d 1016, ¶ 16 

(6th Dist.). Where a trial court determines a claim lacks support in existing law, we 

review that determination de novo, without deference to the trial court’s ruling. 

(Additional citation omitted.) Krohn v. Krohn, 2017-Ohio-408, 84 N.E.3d 249, ¶ 28 (6th 

Dist.), quoting Grove v. Gamma Ctr., 3d Dist. Marion No. 9-14-29, 2015-Ohio-1180, 

¶ 57. If sanctions are appropriate, the trial court’s imposition of sanctions “will not be 

disturbed absent an abuse of discretion.” Krohn at ¶ 28, citing Grove at ¶ 68. In other 

words, “[l]egal conclusions will be considered de novo, whereas factual determinations 

will not be disturbed if supported by competent, credible evidence.” St. James Therapy

at ¶ 16, citing R & S Roofing Co. v. Mercer-North Am., Inc., 6th Dist. Lucas No. 

L-13-1161, 2014-Ohio-1763, ¶ 21. 

 
13. 

III. Analysis 

{¶ 27} In appellant’s third assignment of error, he essentially argues that the trial 

court abused its discretion in granting appellees’ motion for sanctions and ordering him 

to pay appellees’ attorney fees, where there was no evidence that his actions constituted 

the type of conduct required to support an award of sanctions under either Civ.R. 11 or 

R.C. 2323.51. 

{¶ 28} Civ.R. 11 provides, in relevant part: 

The signature of an attorney or pro se party constitutes a certificate 

by the attorney or party that the attorney or party has read the document; 

that to the best of the attorney’s or party’s knowledge, information, and 

belief there is good ground to support it; and that it is not interposed for 

delay. * * * For a willful violation of this rule, an attorney or pro se party, 

upon motion of a party or upon the court’s own motion, may be subjected 

to appropriate action, including an award to the opposing party of expenses 

and reasonable attorney fees incurred in bringing any motion under this 

rule. 

{¶ 29} “The purpose of Civ.R. 11 is to ensure that a pleading or motion is filed in 

good faith and with adequate supporting grounds.” State ex rel. Bristow v. Baxter, 6th 

Dist. Erie Nos. E-17-060, E-17-067, and E-17-070, 2018-Ohio-1973, ¶ 25. In 

considering the imposition of sanctions for violation of Civ.R. 11, a court considers, 

among other factors, whether the attorney or pro se litigant signing the document has a 
14. 

supporting legal basis, “to the best of his or her knowledge, information, and belief.” 

(Additional citation omitted.) Bergman, 2015-Ohio-2797, at ¶ 33, quoting Stone v. 

House of Day Funeral Serv., 140 Ohio App.3d 713, 720-721, 748 N.E.2d 1200 (6th 

Dist.2000). 

{¶ 30} A trial court sanctions willful violations under Civ.R. 11, applying a 

subjective bad-faith standard. Judd v. Meszaros, 10th Dist. Franklin No. 10AP-1189, 

2011-Ohio-4983, ¶ 22. Sanctions are appropriate where “the attorney or pro se litigant 

acts willfully and in bad faith by filing a pleading that he or she believes lacks good 

grounds[.]” Lehmkuhl v. Grady, 6th Dist. Lucas No. L-15-1320, 2016-Ohio-7422, ¶ 17, 

quoting State ex rel. Bardwell v. Cuyahoga Cty. Bd. of Commrs., 127 Ohio St.3d 202, 

2010-Ohio-5073, 937 N.E.2d 1274, ¶ 8. Because a willful violation is required, merely 

negligent conduct, based on mistaken belief, is insufficient. Bardwell at ¶ 8; Gallagher v. 

AMVETS, 6th Dist. Erie No. E-09-008, 2009-Ohio-6348, ¶ 32. If the court finds that an 

attorney willfully violated Civ.R. 11, the rule allows the court to award the moving party 

“expenses and reasonable attorney fees.” 

{¶ 31} In contrast to the subjective standard under Civ.R. 11, courts employ an 

objective standard under R.C. 2323.51 in determining whether an attorney’s or party’s 

conduct is sanctionable. Bergman at ¶ 25. Courts measure frivolous conduct according 

to an objective, reasonable attorney standard, viewing the conduct “without reference to 

what the individual knew or believed.” Krohn, 2017-Ohio-408, at ¶ 31, citing Crenshaw 

v. Integrity Realty Group, LLC, 8th Dist. Cuyahoga No. 100031, 2013-Ohio-4493, ¶ 8. If 
15. 

no reasonable lawyer would have pursued an action, based on existing law, that action is 

frivolous. Middlebrooks v. Bank of Am., 6th Dist. Lucas No. L-12-1098, 2013-Ohio1592, ¶ 14. 

{¶ 32} R.C. 2323.51(A)(2) defines “frivolous conduct” in part as: 

(a) Conduct * * * that satisfies any of the following: 

(i) It obviously serves merely to harass or maliciously injure another 

party to the civil action or appeal or is for another improper purpose, 

including, but not limited to, causing unnecessary delay or a needless 

increase in the cost of litigation. 

(ii) It is not warranted under existing law, cannot be supported by a 

good faith argument for an extension, modification, or reversal of existing 

law, or cannot be supported by a good faith argument for the establishment 

of new law. 

(iii) The conduct consists of allegations or other factual contentions 

that have no evidentiary support or, if specifically so identified, are not 

likely to have evidentiary support after a reasonable opportunity for further 

investigation or discovery. 

(iv) The conduct consists of denials or factual contentions that are 

not warranted by the evidence or, if specifically so identified, are not 

reasonably based on a lack of information or belief. 
16. 

{¶ 33} “The General Assembly gave courts the discretion to hold those engaging 

in frivolous conduct responsible for their actions.” Ron Scheiderer & Assocs. v. City of 

London, 81 Ohio St.3d 94, 97, 689 N.E.2d 552 (1998). Litigants, therefore, must balance 

vigorous pursuit of their claims against the duty to perform responsibly and in accordance 

with the law. Id. at 97-98. Even so, R.C. 2323.51 contemplates punishment of egregious 

conduct, rather than misjudgment or tactical error. State ex rel. DiFranco v. City of 

S. Euclid, 144 Ohio St.3d 571, 2015-Ohio-4915, 45 N.E.3d 987, ¶ 15; Ohio Power Co. v. 

Ogle, 4th Dist. Hocking No. 12CA14, 2013-Ohio-1745, ¶ 29, quoting Hickman v. 

Murray, 2d Dist. Montgomery No. CA15030, 1996 Ohio App. LEXIS 1028 (Mar. 22, 

1996). “Merely proving that a party’s factual assertion was incorrect is not sufficient to 

demonstrate that the party’s conduct was frivolous.” Bristow, 2018-Ohio-1973, at ¶ 28, 

citing DiFranco at ¶ 15. 

{¶ 34} In this case, the trial court determined both willful violation of Civ.R. 11 

and frivolous conduct, punishable under R.C. 2323.51. In its entry, however, the trial 

court addressed only the subjective “bad faith” standard under Civ.R. 11, finding 

appellant exhibited more than just bad judgment in attempting to collect on a judgment 

“through various pleadings, motions, and appeals.” The trial court made no findings 

under the objective, reasonable attorney standard of R.C. 2323.51, but instead stated 

appellant acted frivolously in conclusory fashion. The record contains no evidence to 

support these determinations. 
17. 

{¶ 35} Appellant engaged in no willful violation of Civ.R. 11, as the record 

demonstrates only a mistaken belief by appellant regarding the consent judgment entry. 

At hearing, appellant indicated he proceeded with the belief he had a money judgment, 

and only later learned he was incorrect. The record of proceedings, as noted by appellant, 

bolstered his belief that a money judgment existed. Significantly, the trial court also 

appeared to operate under the same mistaken belief that appellant had obtained a money 

judgment as part of the consent judgment. The trial court revived the 2001 judgment, and 

denied appellees’ first motion seeking to vacate the judgment. Appellees, moreover, did 

nothing to contradict this belief, taking no action to oppose revivor or dispute a judgment 

until appellant pursued collection of the $2,298, the amount he mistakenly believed 

appellees owed under the terms of the consent judgment. Once the trial court vacated the 

judgment, appellant’s collection efforts ceased, with no further filings in which appellant 

claimed a valid judgment. 

{¶ 36} As to frivolous conduct, while it is true that the trial court subsequently 

vacated its order of revivor and determined that the consent judgment dealt only with 

appellant’s cause of action for forcible entry and detainer, all of the actions challenged, in 

appellees’ motion seeking sanctions, occurred prior to the trial court’s February 16, 2016 

decision. Once the trial court vacated the order of revivor, appellant’s collection efforts 

ceased. Appellant’s collection efforts, moreover, were consistent with the actions of a 

reasonable attorney, as any attorney would understand the appropriateness of executing 

on a judgment that has been recognized by the court through its rulings. 
18. 

{¶ 37} Appellant attempted to execute on a judgment, with favorable rulings by 

the trial court, until the trial court determined the judgment to be void. The trial court 

deemed such conduct frivolous, apparently judging appellant’s actions through the prism 

of hindsight, a standard both improper and unfair. Courts must “resist the understandable 

temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not 

ultimately prevail, his action must have been unreasonable or without foundation.” 

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-422, 98 S.Ct. 694, 54 L.Ed.2d 

648 (1978). 

{¶ 38} Here, the trial court awarded sanctions as a penalty for appellant failing to 

realize he had no judgment, despite the trial court’s own initial error on the subject (i.e. 

directing appellant to revive the judgment, granting execution on that judgment, and 

denying appellee’s first motion seeking relief from that judgment). In ordering sanctions, 

the trial court failed to correctly apply either the subjective bad faith standard under 

Civ.R. 11 or the objective reasonable lawyer standard under R.C. 2323.51. Instead, the 

trial court conducted a post hoc review of appellant’s collection efforts, and based on 

subsequent knowledge, deemed those efforts improper. However, a court may not wield 

sanctions under Civ.R. 11 and R.C. 2323.51 as retrospective punishment, based on afteracquired knowledge, as the trial court did in this case. See e.g. Riston v. Butler, 149 Ohio 

App.3d 390, 2002-Ohio-2308, 777 N.E.2d 857 (1st Dist.), syllabus (sanctions were 

inappropriate “where the information possessed by the attorney and the firm at the time 
19. 

the complaint was filed was not such that it was absolutely clear under existing law that 

no reasonable attorney could have argued the claim.”). 

{¶ 39} Based on the record of proceedings, the trial court had no basis to find a 

willful violation of Civ.R. 11 as the evidence demonstrates only a mistaken belief. 

Furthermore, appellant’s mistaken, and initially validated, belief that he had a money 

judgment, and his efforts to revive that judgment in order to collect upon it, provide no 

basis for sanctions under R.C. 2323.51, as appellant’s conduct was not egregious or—in 

the moment—unjustifiable. 

{¶ 40} Accordingly, with no evidence to support a Civ.R. 11 sanction, and no facts 

to demonstrate frivolous conduct, the trial court abused its discretion in granting 

appellees’ motion for sanctions. Appellant’s third assignment of error is therefore found 

well-taken, and the remaining assignments of error are deemed moot. 

IV. Conclusion 

{¶ 41} For the foregoing reasons, we reverse the judgment of the Toledo 

Municipal Court, and vacate the award of attorney fees. Pursuant to App.R. 24(A)(3), 

appellees are assessed the costs of this appeal. 

Judgment reversed. 

 
20. 

 Tillimon v. Pennington 

 C.A. No. L-18-1157 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Thomas J. Osowik, J. _______________________________ 

JUDGE 

Christine E. Mayle, P.J. 

 _______________________________ 

Gene A. Zmuda, 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/.