Heinz v. State

2022 Ohio 1369

• Court: Ohio Court of Appeals
• Decided: April 25, 2022
• Docket: 2022-P-0019
• Status: Published

Opinion

[Cite as Heinz v. State, 2022-Ohio-1369.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY

TIMOTHY J. HEINZ, CASE NO. 2022-P-0019

Plaintiff-Appellant, Civil Appeal from the -v- Court of Common Pleas

STATE OF OHIO, et al., Trial Court No. 2021 CV 00249 Defendants-Appellees.

MEMORANDUM OPINION

Decided: April 25, 2022 Judgment: Appeal dismissed

Timothy J. Heinz, pro se, P.O. Box 1071, Ravenna, OH 44266 (Plaintiff-Appellant).

Dave Yost, Ohio Attorney General, and Michael A. Walton, Assistant Attorney General, State Office Tower, 30 East Broad Street, 16th Floor, Columbus, OH 43215-3428 (For Defendants-Appellees, State of Ohio and Attorney General Dave Yost).

Cooper D. Bowen and Lisa M. Zaring, Montgomery Jonson, LLP, 600 Vine Street, Suite 2650, Cincinnati, OH 45202 (For Defendants-Appellees, Judge Laurie J. Pittman, Clerk Jill Fankhauser and Sheriff David Doak).

Eric Fink, 11 River Street, Kent, OH 44240 (For Defendants-Appellees, Eric N. Lindsey and Eradal Inc.).

David J. Dirisamer, Barnes & Thornburg, LLP, 41 South High Street, Suite 3300, Columbus, OH 43215 (For Defendant-Appellee, U.S. Bank Trust, N.A. as Trustee for LSF9 Master Participation Trust).

Peter C. Kratcoski, Williams, Kratcoski & Can, LLC, 11 South River Street, Suite A, Kent, OH 44240 (For Defendant-Appellee, Peter C. Kratcoski, Esq.). MARY JANE TRAPP, J.

{¶1} Timothy J. Heinz appeals a March 11, 2022 judgment entry from the

Portage County Court of Common Pleas, which declared him a vexatious litigator and

ordered him to seek leave of court prior to instituting or continuing any legal proceedings

and prior to making any application in any legal proceedings, other than an application

for leave to proceed. He also appeals another trial court March 11 entry. We dismiss.

{¶2} “A person who is subject to an order entered pursuant to division (D)(1) of

this section may not institute legal proceedings in a court of appeals, continue any

legal proceedings that the vexatious litigator had instituted in a court of appeals prior to

entry of the order, or make any application, other than the application for leave to proceed

allowed by division (F)(2) of this section, in any legal proceedings instituted by the

vexatious litigator * * * in a court of appeals without first obtaining leave of the court of

appeals to proceed pursuant to division (F)(2) of this section.” R.C. 2323.52(D)(3)

(emphasis added). An appealing party subject to a vexatious litigator order that requires

leave of court “shall file an application for leave to proceed in the court of appeals in which

the legal proceedings would be instituted or are pending.” R.C. 2323.52(F)(2).

{¶3} This leave requirement includes any direct appeal from the initial vexatious

litigator designation. State ex rel. Sapp v. Franklin Cty. Court of Appeals, 118 Ohio St.3d

368, 2008-Ohio-2637, ¶ 26.

{¶4} “Whenever it appears by suggestion of the parties or otherwise that a

person found to be a vexatious litigator under this section has instituted, continued, or

made an application in legal proceedings without obtaining leave to proceed from the

appropriate court of common pleas or court of appeals to do so under division (F) of this

Case No. 2022-P-0019 section, the court in which the legal proceedings are pending shall dismiss the

proceedings or application of the vexatious litigator.” R.C. 2323.52(I) (emphasis added).

{¶5} When the word “shall” is used in a statute, compliance is mandatory unless

there appears a clear and unequivocal legislative intent that it receive a construction other

than its ordinary usage. See Watkins v. Hall, 11th Dist. Trumbull No. 2020-T-0030, 2020-

Ohio-4192, ¶ 5. This court has also held that, “[a]bsent the requisite request for leave, a

court of appeals is required to dismiss the proceedings.” Id.; Novotny v. Krlich, 11th Dist.

Trumbull No. 2017-T-0074, 2017-Ohio-8287, ¶ 3.

{¶6} In the instant matter, Mr. Heinz filed his notice of appeal on March 22, 2022,

from the trial court’s vexatious litigator determination dated March 11, 2022. However,

he did not seek leave to appeal the trial court’s decision.

{¶7} Accordingly, this appeal is dismissed.

MATT LYNCH, J.,

JOHN J. EKLUND, J.,

concur.

Case No. 2022-P-0019