[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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