Filby v. Filby , 2018 Ohio 907 ( 2018 )

[Cite as Filby v. Filby, 2018-Ohio-907.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
TRICIA FILBY, : MEMORANDUM OPINION
Plaintiff-Appellee, :
CASE NO. 2017-G-0142
- vs - :
DAVID LEE FILBY, :
Defendant-Appellant. :
Civil Appeal from the Geauga County Court of Common Pleas, Case No. 13 DC 000638.
Judgment: Appeal dismissed.
Robert E. Zulandt, Jr., Robert E. Zulandt Co., LPA, 100 Center Street, Suite 201-B,
Chardon, OH 44024 (For Plaintiff-Appellee).
David Lee Filby, pro se, 8850 Robinson Road, Chardon, OH 44024 (Defendant-
Appellant).
TIMOTHY P. CANNON, J.
{¶1} David Lee Filby has filed a notice of appeal from the October 16, 2017
judgment of the Geauga County Court of Common Pleas declaring him a vexatious
litigator under R.C. 2323.52. For the following reasons, Mr. Filby’s notice of appeal is
dismissed for lack of jurisdiction.
{¶2} Pursuant to R.C. 2323.52(D)(1), the trial court determined Mr. Filby “shall
NOT institute any new proceeding, or file any pleading in any pending proceeding in any
Ohio Court including a Municipal Court, a County Court, a Court of Common Pleas, a
Court of Appeals or the Court of Claims without first providing a Certified Copy of this
order to such a Court and obtaining leave from that Court.”
{¶3} Here, Mr. Filby filed an application with the trial court for leave to proceed
in this court, which the trial court purported to grant. The trial court, however, did not have
jurisdiction to grant Mr. Filby leave to proceed in the court of appeals, pursuant to R.C.
2323.52(D)(3) & (F)(2), and the order is therefore void and of no effect. See Humbert v.
Borkowski, 6th Dist. Fulton No. F-05-007, 2005-Ohio-918.
{¶4} Mr. Filby did not file an application in this court for leave to proceed with this
court until February 9, 2018. However, the time within which to do so has expired. See
State ex rel. Sapp v. Franklin Cty. Court of Appeals, 118 Ohio St. 3d 368 (2008), at ¶27-
30, citing App.R. 3 & 4. Thus, as a designated vexatious litigator, Mr. Filby has not
satisfied the statutory requirement for instituting a new appellate proceeding. This court
lacks jurisdiction to proceed.
{¶5} The author of the attached concurring opinion has exploited this
straightforward dismissal as an opportunity to misconstrue a holding of this court in an
unrelated case. Her portrayal of this writer’s position in that case is inaccurate. As was
aptly stated therein, the disagreement concerned what actions the word “shall” was
intended to apply, not the definition of “shall.” As it is not worthwhile to elaborate any
further in response to an injudicious assertion of no moment to the case sub judice, I shall
not.
{¶6} Appeal dismissed.
THOMAS R. WRIGHT, P.J., concurs,
DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.
____________________
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DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.
{¶7} I concur in the decision of this court, holding that Filby, as a vexatious
litigator, was required to seek leave of this court to file an appeal. His failure to do so
necessitates the dismissal of his appeal. I write separately, however, to emphasize the
writing judge’s inconsistency in interpreting and applying the law.
{¶8} The writing judge in the present matter applies R.C. 2323.52(D)(3) and
(F)(2) to reach a finding that Filby was required to file for leave to proceed before this
court rather than in the trial court. This is an accurate conclusion, as R.C. 2323.52(F)(2)
requires that a person seeking leave to institute or continue legal proceedings in a court
of appeals “shall file an application for leave to proceed in the court of appeals * * *.” The
statute’s use of the word “shall” mandates the conclusion reached by the writing judge:
that the act of filing for leave in this court is mandatory. However, such an application of
the word “shall” differs from the meaning he has assigned to this word in the past.
{¶9} In State ex rel. Flaiz v. MERSCORP, 11th Dist. Geauga No. 2016-G-0079,
2017-Ohio-7126, the majority of this court failed to find the word “shall” had a mandatory
nature. In that case, we applied R.C. 5301.25 and 5301.32, which require that pertinent
documentation, “including mortgages and assignments ‘shall be recorded’ in the office
of the county recorder.” Id. at ¶ 36 (Grendell, J., dissenting). As was explained in my
dissenting opinion, the interpretation of the word “shall” could not be questioned, since
the Ohio Supreme Court has repeatedly held that “shall” is to be “interpreted to make
mandatory the provision in which it is contained, absent a clear and unequivocal intent
that it receive a construction other than its ordinary meaning.” (Emphasis added.) Id.,
citing State v. Palmer, 112 Ohio St. 3d 457, 2007-Ohio-374, 860 N.E.2d 1011, ¶ 19,
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quoting Lakewood v. Papadelis, 32 Ohio St. 3d 1, 3-4, 511 N.E.2d 1138 (1987); Risner v.
Ohio Dept. of Natural Resources, Ohio Div. of Wildlife, 144 Ohio St. 3d 278, 2015-Ohio-
3731, 42 N.E.3d 718, ¶ 16.
{¶10} While the writing judge now recognizes the legally accurate and
undisputable definition of “shall,” by applying R.C. 2323.52(F)(2)’s mandatory
requirement to justify dismissal of the appeal, such was not the case in Flaiz. Instead,
the majority there ignored the mandatory nature of the term “shall” and found that
recordation was allowed but not required. This was the opposite of the correct meaning
of the word “shall” and the meaning now advanced by the writing judge in the present
case. The prior act of redefining the word “shall” created a situation in which this court is
inconsistent in its interpretation and application of a basic statutory term.
{¶11} As I explained in Flaiz, the majority’s decision to hold that “‘shall’ does not
really mean ‘shall,’ but rather means ‘may,’” was an “‘Alice through the Looking Glass’
interpretation of the English language [that] will cause confusion when considering the
many statutes that use the term ‘shall.’” Id. at ¶ 42. That serious concern has now come
to fruition. Given the opinion here, it is necessary that, going forward, this court recognize
the correct mandatory meaning of this term and use it appropriately in future decisions.
It is critical for this court to maintain consistency in its decisions, to provide guidance to
appellants and attorneys.
{¶12} The writing judge’s erroneous contention that the majority’s holding in Flaiz
is somehow unrelated to the present matter is disingenuous. In order to ensure the
aforementioned consistency that is of critical importance in appellate court decisions, it is
necessary to refer to and examine prior opinions. The relevance of Flaiz, then, is
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apparent and indisputable. The writing judge’s inexplicable failure to recognize the
inconsistencies in his rulings is injudicious.
{¶13} For the foregoing reasons, I concur in judgment only.
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