2018 Ohio 907
Ohio Ct. App.2018Background
- David L. Filby was declared a vexatious litigator by the Geauga County Court of Common Pleas on October 16, 2017 under R.C. 2323.52.
- The trial court ordered Filby may not initiate or file pleadings in any Ohio court without first providing a certified copy of the vexatious-litigant order and obtaining leave from that court.
- Filby sought leave from the trial court to proceed in the Court of Appeals; the trial court purported to grant that leave.
- The Court of Appeals held the trial court lacked jurisdiction to grant leave to proceed in the appellate court; under R.C. 2323.52(F)(2) leave to proceed in a court of appeals must be sought in that court.
- Filby then filed an application for leave in the Court of Appeals, but he did so after the statutory/time period for filing had expired.
- The Court of Appeals dismissed the appeal for lack of jurisdiction because Filby, as a designated vexatious litigator, failed to timely obtain leave from the Court of Appeals before filing the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court could grant Filby leave to file an appeal in the Court of Appeals | Filby argued the trial court’s grant of leave permitted him to proceed in this court | The appellee (and court) argued the trial court lacked authority to grant leave for proceedings in the court of appeals under R.C. 2323.52 | Trial court’s grant was void; leave to proceed in an appellate court must be filed in that appellate court |
| Whether Filby’s later-filed application for leave in the Court of Appeals preserved jurisdiction | Filby relied on his later application to this court for leave (filed Feb 9, 2018) | The court and appellee argued the application was untimely and therefore did not satisfy the statute or the appellate rules | Filby’s application was untimely; the court lacked jurisdiction and dismissed the appeal |
| Statutory meaning and mandatory nature of "shall" in R.C. 2323.52(F)(2) | Filby implicitly treated leave procedures as satisfied by trial-court action | The majority treated the statute’s use of “shall” as mandatory, requiring filing in the court of appeals | The word “shall” in R.C. 2323.52(F)(2) is mandatory; appellate leave must be sought in the court of appeals |
| Consistency of court’s statutory interpretation (concurring view) | N/A | Concurring judge argued the court must consistently apply the mandatory meaning of "shall" across cases | Concurrence emphasized prior inconsistent readings and urged future consistency |
Key Cases Cited
- State ex rel. Sapp v. Franklin Cty. Court of Appeals, 118 Ohio St.3d 368 (Ohio 2008) (discusses timing and requirements for filing appeals under App.R. 3 and 4)
- State v. Palmer, 112 Ohio St.3d 457 (Ohio 2007) (Ohio Supreme Court guidance that "shall" is ordinarily mandatory absent clear intent otherwise)
- Lakewood v. Papadelis, 32 Ohio St.3d 1 (Ohio 1987) (quoted precedent on mandatory interpretation of "shall")
- Risner v. Ohio Dept. of Natural Resources, Ohio Div. of Wildlife, 144 Ohio St.3d 278 (Ohio 2015) (reiterates that "shall" is generally mandatory)