[Cite as Tillimon v. Coutcher, 2020-Ohio-3215.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

LUCAS COUNTY 

Duane J. Tillimon Court of Appeals No. L-19-1156 

 

 Appellant Trial Court No. CVG-14-05044 

v. 

Loriann Coutcher, et al. DECISION AND JUDGMENT

Appellees Decided: June 5, 2020 

* * * * * 

 Duane J. Tillimon, pro se. 

* * * * * 

MAYLE, J. 

{¶ 1} Plaintiff-appellant, Duane Tillimon, appeals two judgments of the Toledo 

Municipal Court: the July 23, 2019 judgment that vacated a 2015 judgment against 

defendants-appellees, Curtis Coutcher and Kristen Coutcher,1

 and the July 26, 2019 

 

1

 Tillimon also identified Curtis and Kristen’s mother, Loriann Coutcher, as an appellee. 

None of the Coutchers filed briefs in this appeal. 
2.

judgment that released to Curtis garnished funds held by the clerk of court. For the 

following reasons, we reverse, in part, and affirm, in part. 

I. Background and Facts 

{¶ 2} This case is before us after remand to the trial court for a hearing on Curtis 

and Kristen’s motion for relief from judgment. See Tillimon v. Coutcher, 6th Dist. Lucas 

No. L-18-1158, 2019-Ohio-1683 (“Tillimon I”). 

{¶ 3} To briefly recap the facts of this case, on August 1, 2010, Tillimon and 

Loriann entered into a “residential rental agreement” for a property in Toledo. The lease 

identified Tillimon as the landlord and Loriann as the tenant; they are the only people 

who signed the lease. Curtis and Kristen, who are Loriann’s children, are listed in the 

agreement as “occupants.” The rental agreement includes their birthdates, which show 

that Curtis was 17 years old and Kristen was 14 years old at the time that Loriann signed 

the lease. 

{¶ 4} In 2014, Tillimon filed a complaint in the trial court seeking eviction and a 

money judgment for unpaid rent and damages to the property. He named Loriann, Curtis, 

and Kristen as defendants. The trial court granted the eviction and awarded Tillimon 

possession of the property. The trial court also granted the Coutchers the first of several 

extensions to file answers to the complaint for money damages. None of them filed an 

answer, however. 

{¶ 5} In October 2015, the trial court issued a judgment against the Coutchers, 

jointly and severally, in the amount of $12,819.72, plus interest. Two and one-half years 
3.

later, in late April and early May 2018, respectively, Tillimon filed a wage garnishment 

against Curtis and a nonwage garnishment against Kristen. Approximately three weeks 

after the trial court issued the garnishment orders, Curtis and Kristen filed a motion to 

vacate the judgment and dismiss the garnishments because neither of them were listed as 

the leaseholders and both were minors and unable to consent to a binding contract at the 

time the lease was signed. 

{¶ 6} In June 2018, the trial court granted Curtis and Kristen’s motion to vacate. 

Tillimon appealed. We found that the trial court abused its discretion by granting Curtis 

and Kristen’s motion to vacate judgment without holding a hearing and remanded the 

case to the trial court. Tillimon I, 6th Dist. Lucas No. L-18-1158, 2019-Ohio-1683, at 

¶ 21. 

{¶ 7} On July 11, 2019, the trial court held a hearing on Curtis and Kristen’s 

motion. Tillimon and Kristen appeared at the hearing. Curtis did not, and, although 

Kristen said that Curtis was planning to attend, she did not know why he was not there.2

 

According to Kristen, when her mother filed bankruptcy in 2015, she assured Curtis and 

Kristen that the case filed by Tillimon “was done. And it was going to be dismissed and 

everything, and we believed her.” This led Curtis and Kristen to mistakenly believe that 

 

2

 Several hours after the July 11 hearing concluded, Curtis filed a motion to “reschedule 

trial date” because he was working at the time of the hearing that morning and the notice 

of the hearing was sent to the wrong address. Tillimon filed a response arguing that 

Curtis’s motion was untimely and that he knew about the hearing, despite the notice 

going to the wrong address. The trial court denied Curtis’s motion in its July 23 

judgment granting Curtis and Kristen’s motion to vacate. 
4.

Loriann’s bankruptcy would end Tillimon’s case against all of them, not just Loriann. 

Kristen assumed that Curtis did not answer the complaint for the same reason. Kristen 

also said that she did not receive any paperwork related to this case until Tillimon filed a 

garnishment against her in 2018, which prompted her to file the motion to vacate the 

judgment. 

{¶ 8} Additionally, at the hearing, the court confirmed with Tillimon that he filed 

a complaint stating that Loriann, Curtis, and Kristen “are Tenants of Plaintiff at the 

Premises pursuant to terms contained within a written Residential Rental Agreement 

* * *,” even though Loriann is the only “Tenant” that is listed in the agreement, and 

Curtis and Kristen were listed in the lease as “Occupants.” Tillimon said that he filed the 

complaint against Curtis and Kristen because he claimed that “they were tenants at the 

time [he] filed the eviction.” He did not, however, have a written lease that named Curtis 

or Kristen as “Tenants,” as stated in the complaint. 

{¶ 9} On July 23, 2019, the trial court issued a decision once again vacating the 

October 2015 judgment against Curtis and Kristen. The court found that the evidence at 

the hearing established the three elements of a Civ.R. 60(B) claim. 

{¶ 10} First, Kristen alleged a meritorious defense in that she and Curtis were 

minors at the time Loriann signed the rental agreement, and although they were adults at 

the time Tillimon filed the eviction action, the only rental agreement before the court 

showed that Curtis and Kristen were occupants—not tenants—of Tillimon’s property. 
5.

{¶ 11} Next, the court found that Curtis and Kristen properly sought relief under 

Civ.R. 60(B)(5), the catch-all provision in Civ.R. 60(B). The court determined that 

Curtis and Kristen did not ignore the complaint. Instead, they believed that the matter 

was dismissed when Loriann filed for bankruptcy, and filed their motion for relief from 

judgment when they learned of the default judgment against them. 

{¶ 12} Finally, the court determined that, under the circumstances of the case, 

Curtis and Kristen’s motion was filed within a reasonable time because their “previously 

unknown knowledge of the case continuing against them when they believed the matter 

to be dismissed due to their mother filing bankruptcy is understandable.” 

{¶ 13} Additionally, the trial court found that equity favored granting Curtis and 

Kristen’s motion for relief from judgment because although “[t]he record reveals that at 

the time of signing the lease—the only one provided—Defendants, Kristen and Curtis, 

were considered under the age of majority and only occupants,” the filed complaint 

nonetheless states that Curtis and Kristen are “tenants” under that lease agreement and 

therefore responsible for unpaid rent and damages. The court found that “Plaintiff’s own 

acknowledgement of Defendants’ ages and listing as occupants are not consistent with 

Plaintiff’s original Complaint against Defendants. Thus, this court is inclined to find this 

matter equitable to intervene and release them from such obligations of the lease and 

original Complaint.” 
6.

{¶ 14} Consequently, the trial court vacated the judgments against Curtis and 

Kristen, finding that each “was not a proper party to the suit and equitable factors 

intervene.” The court reaffirmed the October 2015 judgment against Loriann. 

{¶ 15} On July 26, 2019, the trial court ordered that the clerk of court release to 

Curtis the funds the clerk was holding pursuant to an order garnishing Curtis’s wages. 

The record does not indicate when (or if) the clerk sent the funds to Curtis. However, the 

trial court’s decision on Tillimon’s post-judgment “Motion to Order Defendant Curtis 

Coutcher to Return Funds” notes that the funds were sent to Curtis before the court 

granted Tillimon’s post-judgment “Motion to Stay Release of Funds” on August 1, 2019. 

Additionally, Tillimon claims in his brief that the check issued to Curtis was cashed on 

August 2, 2019. 

{¶ 16} Tillimon now appeals, raising four assignments of error: 

ASSIGNMENT OF ERROR #1[:] THE TRIAL COURT 

COMMITTED REVERSABLE [sic] ERROR, AND ABUSED ITS 

DISCRETION, BY VACATING THE MONEY JUDGMENT AGAINST 

APPELLEES CURTIS COUTCHER AND KRISTEN COUTCHER AND 

REAFFIRMING THE MONEY JUDGMENT AGAINST LORIANN 

COUTCHER[.] 

ASSIGNMENT OF ERROR #2[:] THE TRIAL COURT 

COMMITTED REVERSABLE [sic] ERROR, AND ABUSED ITS 

DISCRETION, IN CONCLUDING THAT APPELLEES CURTIS AND 
7.

KRISTEN WERE NOT TENANTS AND THEREFROE [sic] NOT 

LIABLE FOR RENT AND DAMAGES INCURRED BY APPELLANT 

UNDER ANY SET OF CIRCUMSTANCES WITHOUT HOLDING ANY 

HEARINGS AS TO THEIR LIABILITY[.] 

ASSIGNMENT OF ERROR #3[:] THE TRIAL COURT 

COMMITTED REVERSABLE [sic] ERROR, AND ABUSED ITS 

DISCRETION, WHEN IT RELEASED MONEY HELD BY THE TRIAL 

COURT TO APPELLEE CURTIS COUTCHER WHEN THE DEADLINE 

FOR APPELLANT TO FILE AN APPEAL HAD NOT YET EXPIRED[.] 

ASSIGNMENT OF ERROR #4[:] THE TRIAL COURT 

COMMITTED REVERSABLE [sic] ERROR, AND ABUSED ITS 

DISCRETION, WHEN IT VIOLATED THE APPELLANTS [sic] 

RIGHTS OF DUE PROCESS UNDER THE UNITED STATES AND 

OHIO CONSTITUTIONS< [sic] AND VIOLATED APPELLANT’S CIVL 

[sic] RIGHTS, AND ACTED ULTRA-VIRES IN NOT HOLDING A 

CIV.R. 60(B) MOTION HEARING AS WAS MANDATED BY THE 

OHIO SIXTH DISTRICT COURT OF APPEALS AND BY RELEASING 

FUNDS HELD BY THE TOLEDO MUNICIPAL COURT ON BEHALF 

OF THE JUDGMENT CREDITOR APPELLANT[.] 

 
8.

II. Law and Analysis 

A. The trial court abused its discretion by granting Civ.R. 60(B) relief. 

{¶ 17} In his first assignment of error, Tillimon argues that the trial court abused 

its discretion by vacating the 2015 judgment against Curtis and Kristen because they did 

not provide sufficient justification for their failure to answer the complaint. 

{¶ 18} We review a trial court judgment granting a motion for relief from 

judgment for an abuse of discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 

1122 (1987). Abuse of discretion means that the trial court’s decision was unreasonable, 

arbitrary, or unconscionable. State ex rel. Askew v. Goldhart, 75 Ohio St.3d 608, 610, 

665 N.E.2d 200 (1996). 

{¶ 19} Under Civ.R. 60(B), a party may be relieved from a final judgment because 

of: 

(1) mistake, inadvertence, surprise or excusable neglect; 

(2) newly discovered evidence which by due diligence could not 

have been discovered in time to move for a new trial under Rule 59(B); 

(3) fraud (whether heretofore denominated intrinsic or extrinsic), 

misrepresentation or other misconduct of an adverse party; 

(4) the judgment has been satisfied, released or discharged, or a prior 

judgment upon which it is based has been reversed or otherwise vacated, or 

 
9.

it is no longer equitable that the judgment should have prospective 

application; or 

(5) any other reason justifying relief from the judgment. 

{¶ 20} To prevail on a motion for relief from judgment, the moving party must 

demonstrate that: “(1) the party has a meritorious defense or claim to present if relief is 

granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 

60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the 

grounds of relief are Civ.R. 60(B)(1), (2), or (3), not more than one year after the 

judgment, order or proceeding was entered or taken.” GTE Automatic Elec., Inc. v. Arc 

Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the 

syllabus. “These requirements are independent and in the conjunctive; thus the test is not 

fulfilled if any one of the requirements is not met.” Strack v. Pelton, 70 Ohio St.3d 172, 

174, 637 N.E.2d 914 (1994). 

{¶ 21} Regarding the first GTE prong, we agree with the trial court’s conclusion 

that Curtis and Kristen have a meritorious defense. They are not parties to the lease 

agreement between Loriann and Tillimon, they were children when Loriann and Tillimon 

executed the lease agreement, and they are expressly designated as mere “occupants”—

not “tenants”—under the lease agreement. The notion that Curtin and Kristen somehow 

became parties to the lease agreement when they reached the age of majority is 

completely unfounded. 
10. 

{¶ 22} Regarding the second GTE prong, the trial court concluded that Curtis and 

Kristen are entitled to relief under Civ.R. 60(B)(5), which provides that a party may be 

relieved from a final judgment due to “any other reason justifying relief from the 

judgment.” Unlike Civ.R. 60(B)(1) to (3)—which firmly require a motion under those 

provisions to be filed within a year after judgment—a motion under Civ.R. 60(B)(5) may 

be filed within a “reasonable time.” Given that Curtis and Kristen filed their Civ.R. 

60(B) motion approximately two and one-half years after final judgment, they must 

demonstrate that Civ.R. 60(B)(5) is applicable. 

{¶ 23} Civ.R. 60(B)(5) is “intended as a catch-all provision reflecting the inherent 

power of a court to relieve a person from the unjust operation of a judgment * * *,” and 

the grounds for granting relief “should be substantial.” Caruso-Ciresi, Inc. v. Lohman, 5 

Ohio St.3d 64, 448 N.E.2d 1365 (1983), paragraphs one and two of the syllabus. Section 

(B)(5) is not to be used as a substitute for the more specific provisions in Civ.R. 60(B), 

but is reserved for cases where the operative facts are different from or in addition to 

sections (B)(1) to (4). Ferrell v. Kakika Enters., Ltd., 6th Dist. Erie No. E-18-037, 2019-

Ohio-575, ¶ 19, citing Caruso-Ciresi at paragraph one of the syllabus, and Whitt v. 

Bennett, 82 Ohio App.3d 792, 797, 613 N.E.2d 667 (2d Dist.1992). That is, “Civ.R. 

60(B)(5) applies only when a more specific provision [of Civ.R. 60(B)] does not apply.” 

Strack, 70 Ohio St.3d at 174, 637 N.E.2d 914. 
11. 

{¶ 24} Here, the trial court determined that Curtis and Kristen properly sought 

relief under Civ.R. 60(B)(5) because they “did not ignore the original complaint as they 

believed the matter to be dismissed once Defendant Loriann filed for bankruptcy.” 

{¶ 25} But, a party’s erroneous belief that a case had been resolved amounts to 

“mistake, inadvertence, surprise or excusable neglect”—a claim that must be raised under 

Civ.R. 60(B)(1)—and therefore does not fall under the catchall provision of section 

(B)(5). See Lawhorn v. Pirtle, 6th Dist. Lucas No. L-97-1222, 1998 WL 196281, *3 

(Apr. 17, 1998) (finding defendant’s claim that he mistakenly believed that a civil suit 

against him ended when the corresponding traffic charges were dismissed amounted to a 

claim of mistake or excusable neglect under Civ.R. 60(B)(1) and was therefore 

inappropriate for relief under Civ.R. 60(B)(5)); see also Ferrell at ¶ 20 (“the catch-all 

provision of Civ.R. 60(B)(5) is not to be used as a mere substitute for relief under Civ.R. 

60(B)(1).”) Thus, Curtis and Kristen’s mistaken belief that their mother’s bankruptcy 

resolved Tillimon’s claims against them is not a sufficient basis for relief under Civ.R. 

60(B)(5).

{¶ 26} The trial court also found that two “equitable factors” weighed in favor of 

releasing Curtis and Kristen from judgment under Civ.R. 60(B)(5). First, the trial court 

found that it would be inequitable to hold Curtis and Kristen liable for damages in this 

case because they were minors when Loriann entered into the lease agreement and, 

regardless, they are not even listed as tenants under the lease agreement. This, however, 

is merely a restatement of their meritorious defense—which is an element that Curtis and 
12. 

Kristen must establish in addition to demonstrating that Civ.R. 60(B)(5) is applicable. 

GTE, 47 Ohio St.2d 146, 351 N.E.2d 113, at paragraph two of the syllabus. 

{¶ 27} Indeed, the Supreme Court of Ohio has expressly held that a trial court 

abuses its discretion when it “grants [a] motion based on Civ.R. 60(B)(5) because the 

movant had a meritorious defense.” Caruso-Ciresi, 5 Ohio St.3d at 67, 448 N.E.2d 1365. 

See also Scotlad Foods, Inc. v. Bryant, 2d Dist. Clark No. 95-CA-2, 1995 WL 628045, *4 

(Oct. 25, 1995) (trial court properly denied Civ.R. 60(B)(5) relief to a defendant who 

established that the plaintiff had “incorrectly named him as a party to the suit” because 

that is a meritorious defense and not a basis for relief under Civ.R. 60(B)(5)); Rocha v. 

Salsbury, 6th Dist. Fulton No. F-05-014, 2006-Ohio-2615, ¶ 16 (the fact that the plaintiff 

brought suit against the wrong party is a meritorious defense, not a reason justifying 

relief from judgment under Civ.R. 60(B)(1) to (5)). Accordingly, the fact that Curtis and 

Kristen were minors when Loriann signed the lease agreement (which, in addition, 

designates them as mere “occupants” and not “tenants”) establishes their meritorious 

defense—which is not a basis for relief under Civ.R. 60(B)(5). 

{¶ 28} Lastly, the trial court found that it would be inequitable to hold Curtis and 

Kristen liable in this case because Tillimon had misrepresented a key fact in multiple 

court documents. That is, Tillimon stated in the complaint and various affidavits that 

Curtis and Kristen are “tenants” pursuant to the written lease agreement when, in fact, the 

agreement clearly states that they are merely “occupants.” The trial court expanded on 

this point at the hearing on the Civ.R. 60(B) motion: 
13. 

I’m just reading what you swore to in the court. You swore they 

were listed, on the written agreement, as a tenant. And that’s not true. And 

then you have been filing affidavits, for the last five years, reaffirming that 

same misstatement. Is that—that’s what I’m pointing out. The basis of 

your complaint, and I read it again, pursuant to the terms contained in the 

written residential lease agreement. That’s not true. They are not listed as 

tenants in that written agreement. And you have been swearing out 

affidavits, as well as this original complaint, based upon false information. 

Tillimon maintained that he properly sued Curtis and Kristen because, in his view, they 

were tenants when the complaint was filed. 

{¶ 29} The trial court was understandably troubled by Tillimon’s 

misrepresentations in the complaint and various affidavits, which stated that Curtis and 

Kristen were “tenants” under the written lease agreement when, in fact, they were not. 

But, such conduct may be a basis to vacate a judgment under Civ.R. 60(B)(3)—which 

provides that a judgment may be vacated due to “fraud (whether heretofore denominated 

intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party”—and is 

therefore an insufficient basis to vacate a judgment under the catch-all provision of 

Civ.R. 60(B)(5). See, e.g., McGowan v. Stoyer, 10th Dist. Franklin No. 02AP-263, 2002-

Ohio-5410, ¶ 18 (“If the alleged fraud [or misrepresentation] occurred between the 

parties, Civ.R. 60(B)(3) is the only ground upon which the aggrieved party can seek relief 

from a prior judgment.”); Hoyt v. Hoyt, 9th Dist. Summit No. 20411, 2001 WL 929380 
14. 

(Aug. 15, 2001) (trial court properly considered wife’s Civ.R. 60(B)(5) motion under 

(B)(3) because husband’s failure to disclose marital assets during divorce proceedings 

was fraud or misrepresentation by an adverse party); Still v. Still, 4th Dist. Gallia No. 

95CA15, 1996 WL 362259 (June 25, 1996) (husband was required to raise wife’s false 

testimony regarding the paternity of her child under Civ.R. 60(B)(3), not (B)(5)). 

{¶ 30} Moreover, we must distinguish this case from situations involving “fraud 

upon the court,” which has been recognized as a basis for granting relief from judgment 

under Civ.R. 60(B)(5). Coulson v. Coulson, 5 Ohio St.3d 12, 448 N.E.2d 809 (1983), 

paragraph one of the syllabus (“Pursuant to Civ.R. 60(B)(5), a court in appropriate 

circumstances may vacate a judgment vitiated by a fraud upon the court.”). “Fraud upon 

the court,” however, “has been narrowly construed to include only that type of conduct 

which defiles the court itself, or fraud which is perpetrated by officers of the court so as 

to prevent the judicial system from functioning in the customary manner of deciding the 

cases presented in an impartial manner.” Derico v. Schimoler, 8th Dist. Cuyahoga No. 

94935, 2011-Ohio-615, ¶ 12, citing Hartford v. Hartford, 53 Ohio App.2d 79, 83-84, 371 

N.E.2d 591 (8th Dist.1977). “Conduct that amounts to merely withholding information 

and alleging facts known to be untrue does not constitute a fraud upon the court.” Id., 

citing CIT Fin. Servs., Inc. v. Lazzano, 8th Dist. Cuyahoga No. 47401, 1984 WL 5461 

(Apr. 12, 1984). The fact that neither Curtis nor Kristen were actually parties to the lease 

agreement is apparent from the face of the written lease agreement—which is attached as 

an exhibit to the complaint—and could have been raised by Curtis and Kristen as a 
15. 

defense in this case. Tillimon’s statements to the contrary therefore do not rise to the 

level of conduct that “defiles the court itself” under Civ.R. 60(B)(5). 

{¶ 31} In sum, Curtis and Kristen’s mistaken belief that this case was dismissed 

when Loriann filed for bankruptcy amounts to “mistake” or “excusable neglect,” which is 

a basis for relief under Civ.R. 60(B)(1), and Tillimon’s misstatement in the complaint is a 

“misrepresentation * * * of an adverse party,” which is a basis for relief under Civ.R. 

60(B)(3). Given that more specific provisions of Civ.R. 60(B) govern their motion, 

Curtis and Kristen are not entitled to relief under Civ.R. 60(B)(5). Strack, 70 Ohio St.3d 

at 174, 637 N.E.2d 914. In addition, even though Curtis and Kristen have a meritorious 

defense because they were minors when Loriann entered the lease agreement and they are 

merely “occupants” under that agreement, a trial court abuses its discretion when it 

“grants [a] motion based on Civ.R. 60(B)(5) because the movant had a meritorious 

defense.” Caruso-Ciresi, 5 Ohio St.3d at 67, 448 N.E.2d 1365. For these reasons, we 

must conclude that the trial court abused its discretion by granting Curtis and Kristen 

relief from final judgment under Civ.R. 60(B)(5). As the Supreme Court of Ohio 

recognized, 

[a] claim under Civ.R. 60(B) requires the court to carefully consider the 

two conflicting principles of finality and perfection. * * * “[F]inality 

requires that there be some end to every lawsuit, thus producing certainty in 

the law and public confidence in the system’s ability to resolve disputes. 

Perfection requires that every case be litigated until a perfect result is 
16. 

achieved. For obvious reasons, courts have typically placed finality above 

perfection in the hierarchy of values.” 

Strack at 175, quoting Knapp v. Knapp, 24 Ohio St.3d 141, 144-145, 493 N.E.2d 1353 

(1986). In this case, although the trial court tipped the balance toward perfection, we 

must follow binding precedent and tip the balance toward finality instead. 

{¶ 32} For these reasons, Tillimon’s first assignment of error is well-taken. 

B. Tillimon’s second assignment of error is moot. 

{¶ 33} In his second assignment of error, Tillimon argues that the trial court erred 

by finding that Curtis and Kristen were not liable under the rental agreement. Because 

we are reversing the trial court’s decision to vacate the judgment against Curtis and 

Kristen, this assignment of error is moot and is not well-taken. 

C. The trial court’s release of the garnished funds was not an abuse of discretion. 

{¶ 34} In his third assignment of error, Tillimon argues that the trial court abused 

its discretion by releasing funds that the clerk of court had collected pursuant to a 

garnishment of Curtis’s wages before the time for Tillimon to file an appeal had passed. 

We disagree. 

{¶ 35} When funds are paid into the court under a garnishment order, the 

judgment creditor obtains a lien on those funds. State ex rel. Auto Loan Co., Inc. v. 

Jennings, 14 Ohio St.2d 152, 159, 237 N.E.2d 305 (1968). However, the “mere 

garnishment of property does not vest ‘title’ in a judgment creditor * * *.” Id. In other 

words, although the judgment creditor has an interest in any funds garnished from the 
17. 

judgment debtor and paid into the court, the judgment creditor does not own the funds 

held by the court until they are released to him. 

{¶ 36} In this case, when the underlying judgment against Curtis ceased to exist, 

so did Tillimon’s lien on the funds held by the clerk of court because Tillimon no longer 

had a basis for garnishing Curtis’s earnings. Once Tillimon’s interest in the garnished 

funds was extinguished, the trial court ordered that the clerk return the funds to Curtis. 

Although Tillimon sought—and was granted—a stay of the release of the funds held by 

the clerk, the clerk released the funds to Curtis before Tillimon filed his motion for a stay. 

Because the trial court released the funds to Curtis during the period of time when 

Tillimon did not have any interest in the funds and had not yet asked the court to stay the 

release of the funds, the court did not abuse its discretion by returning the funds to Curtis. 

{¶ 37} Our conclusion is supported by a similar case decided by the Eighth 

District Court of Appeals. In Univ. Carnegie Med. Partners Assocs. v. Cleveland 

Therapy Ctr., 8th Dist. Cuyahoga Nos. 61016 and 61463, 1992 WL 292270 (Oct. 15, 

1992), a lessor obtained a judgment against its lessees and garnished the lessees’ bank 

account. The lessees filed a motion to stay, which the trial court granted. Id. at *1. 

Shortly after, the lessor sought to vacate the stay based on its assertion that the lessees 

served the motion to stay on the lessor six days later than noted in the certificate of 

service. Id. The trial court subsequently vacated the stay, and, before the lessees could 

seek a stay in the appellate court, the clerk of courts released the funds it held to the 

lessor. Id. The lessees were unaware of the disbursement, so they sought a stay in the 
18. 

appellate court, which the appellate court granted. Id. at *2. When the lessees 

discovered that the clerk had disbursed the funds, they filed a motion for return of the 

funds, which the trial court granted (after the lessees filed a notice of appeal). Id.

{¶ 38} On appeal, the Eighth District, after noting that the party that obtains a 

garnishment order has a lien on any funds held by the clerk, found that the lessees were 

not wrongfully deprived of the garnished funds that were released to the lessor because 

“[f]irst, the garnished funds were in the possession of the clerk. Second, there was no 

stay in existence. The lessor [as the party that prevailed in the trial court] was thus 

clearly entitled to the funds and the lessees were, therefore, not wrongfully deprived of 

them.” Id. at *8. 

{¶ 39} Although the case before us presents the converse situation (i.e., the 

prevailing party is not the party that had a lien on the garnished funds), we believe that 

the same principle applies. At the time the clerk released the funds to Curtis, Tillimon 

did not have an interest in them or have a court order staying their release. Because 

Tillimon has not shown that the trial court’s release of the funds was unreasonable, 

arbitrary, or unconscionable, we find that the court did not abuse its discretion by 

releasing the funds. Accordingly, Tillimon’s third assignment of error is not well-taken. 

D. The trial court did not act in contravention of our 

mandate in Tillimon I or act without authority. 

{¶ 40} In his final assignment of error, Tillimon seems to argue that the trial court 

acted in contravention of our mandate in Tillimon I by vacating the judgment against 
19. 

Curtis and Kristen after holding its hearing on July 11, 2019, despite this court reversing 

the trial court’s initial decision to vacate the judgment in Tillimon I. He also claims that 

the trial court acted “ultra vires” because it was without authority to release the garnished 

funds to Curtis. 

{¶ 41} In Tillimon I, we reversed the trial court’s decision vacating the judgment 

against Curtis and Kristen and remanded the case for a hearing on whether Curtis and 

Kristen could meet the requirements for relief from judgment under Civ.R. 60(B). 

Tillimon I, 6th Dist. Lucas No. L-18-1158, 2019-Ohio-1683, at ¶ 21, 26. Specifically, we 

stated that “[w]e reverse and remand to the trial court for a hearing, at which time the 

court must hear evidence and argument relating to whether Curtis and Kristen can 

establish all three elements of a successful Civ.R. 60(B) claim.” Id. at ¶ 21. On remand, 

the trial court must follow the mandate of the appellate court. Evanich v. Bridge, 170 

Ohio App.3d 653, 2007-Ohio-1349, 868 N.E.2d 747, ¶ 18 (9th Dist.). That is precisely 

what the trial court in this case did; we ordered the trial court to hold a hearing on Curtis 

and Kristen’s motion to vacate, and the trial court did so on July 11, 2019. Our mandate 

did not direct the trial court to rule in Tillimon’s favor (as he seems to imply). Because 

the trial court held a hearing as we directed, Tillimon’s argument that the trial court acted 

in contravention of our mandate is without merit. 

{¶ 42} Finally, Tillimon argues, again, that the trial court acted without authority 

when it released the garnished funds to Curtis. We have already determined that the trial 

court did not err by releasing the funds, so this argument is also without merit. 
20. 

{¶ 43} Tillimon’s fourth assignment of error is not well-taken. 

III. Conclusion 

{¶ 44} Because Curtis and Kristen did not demonstrate that they are entitled to 

relief from judgment under Civ.R. 60(B)(5), the July 23, 2019 judgment of the Toledo 

Municipal Court granting Curtis and Kristen’s motion to vacate is reversed. And because 

the trial court returned the garnished funds to Curtis at a time when Tillimon did not have 

an interest in the funds or an order staying the release of the funds, the July 26, 2019 

judgment of the Toledo Municipal Court is affirmed. The parties are ordered to divide 

the costs of this appeal equally pursuant to App.R. 24. 

Judgment reversed, in part, 

and affirmed, in part. 

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

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

Mark L. Pietrykowski, J. _______________________________ 

JUDGE 

Arlene Singer, J. 

_______________________________ 

Christine E. Mayle, 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/.