TRICIA FILBY v. DAVID LEE FILBY
CASE NO. 2017-G-0142
IN THE COURT OF APPEALS, ELEVENTH APPELLATE DISTRICT, GEAUGA COUNTY, OHIO
[Cite as Filby v. Filby, 2018-Ohio-907.]
Plaintiff-Appellee,
- vs -
DAVID LEE FILBY,
Defendant-Appellant.
MEMORANDUM OPINION
CASE NO. 2017-G-0142
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
{¶2} Pursuant to
{¶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
{¶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.
{¶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
{¶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
{¶10} While the writing judge now recognizes the legally accurate and undisputable definition of “shall,” by applying
{¶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
{¶13} For the foregoing reasons, I concur in judgment only.