Court of Appeals of Ohio, Eleventh District, Geauga
Appeal from the Geauga County Court of Common Pleas. Case No.
13 DC 000638.
E. Zulandt, Jr., Robert E. Zulandt Co., LPA, (For
Lee Filby, pro se, (Defendant-Appellant).
TIMOTHY P. CANNON, J.
Appellant, David Lee Filby, appeals pro se from an October
26, 2016 judgment entered by the Geauga County Court of
Common Pleas, denying his motion for relief from judgment.
For the following reasons, the trial court's judgment is
The trial court entered a divorce decree in this matter on
August 14, 2015. One year later, on August 15, 2016,
appellant filed a motion for relief from judgment. Appellant
provided no reasons in his motion as to why he was entitled
to relief. The trial court denied the motion on October 26,
Appellant attached two entries to his notice of appeal, both
of which were docketed on October 26, 2016. An entry,
entitled "Decision, " was time-stamped at 2:23 p.m.
This Decision denies appellant's motion and sets forth
the basis for the trial court's denial: namely, that
appellant did not set forth any operative facts or identify
any errors in support of the motion. The last paragraph of
the Decision states: "Order. Per this
Court's Decision entered this date: Mr. Filby's
'Motion for Relief from Judgment' is denied." A
separate entry, entitled "Judgment, " was
time-stamped at 2:24 p.m. and states: "Per this
Court's Decision entered this date: the 'Motion for
Relief from Judgment' filed by defendant David Filby on
August 15, 2016, is denied." It is not clear why the
trial court docketed this Judgment; it is a nullity, as the
Decision, time-stamped first and ordering denial of the
motion, was a final appealable order. This procedural glitch
does not, however, affect our review of the merits of this
appeal, which we consider to be taken from the Decision of
October 26, 2016.
Appellant raises five assignments of error for our review:
[1.] The trial court committed prejudicial error in denying
my August 15, 2016 Rule 60 Motion for Relief from Judgment.
The trial courts' ruling was a criminal act of
retaliation in violation of ORC 2921.05 Retaliation. On
October 25, 2016, I filed a Motion for Temporary Restraining
Order and Permanent Injunction against Judge David L. Fuhry,
Magistrate Carolyn J. Pashcke, and Attorney Robert E. Zulandt
Jr. My motion sat on the docket for 72 days from August 15,
2016 - October 26, 2016. Judge Fuhry hastily responded in
retaliation by denying my motion for relief. [sic]
[2.] The trial court committed prejudicial error in denying
my August 15, 2016 Motion for Relief based upon the premise
that the motion did not comply with Local Rule 7. Many of my
other filings before the court were not denied based upon
this rule, even when those filings did not comply with the
local rule. The trial court acted arbitrarily by citing the
local rule. My motion for relief was neat, cited law, and
requested leave to supplement should the trial court require.
[3.] The trial court committed prejudicial error in denying
my August 15, 2016 Motion for Relief from Judgment because
Judge David L. Fuhry should have recused himself from the
bench long before he had the opportunity to deny my motion.
On August 18, 2016 I filed a criminal affidavit against Judge
David L. Fuhry with the Geauga County Prosecutor. At the time
of the trial Court's judgment denying my motion for
relief, the criminal affidavit was still not resolved.
Several motions for the Fuhry's disqualification from the
bench had been filed. Judge Fuhry refused to recuse himself
due to his obvious prejudice against me in the case, and
continued to act with prejudice against me in the case.
According to Code of Judicial Conduct Rule 2.11, Fuhry should
have recused himself from the bench long before he had the
opportunity to once again act with prejudice and deny my
motion for relief. [sic]
[4.] The trial court had prior knowledge final judgment from
which I sought relief was prejudiced, unfair, and in
violation of law. The trial court knowingly rendered judgment
based upon the false premise that a settlement had been
agreed upon by all parties when no such settlement had been
reached by all parties. The final judgment was also in
violation of Rule 75(M) of the Ohio Rules of Civil Procedure
because it was not based upon credible evidence nor did it
equally divide property and debt between the parties. Several
problems existed with the case prior to the final judgment as
a result of misconduct and crime. The trial court was aware
of all of these problems but proceeded with final judgment
anyways. With this prior knowledge and prejudice, the trial
court's pattern of abuse and prejudice was knowingly
perpetuated by denying my motion for relief. [sic]
[5.] The trial court should have granted judgment in my favor
for relief in entirety. The Plaintiff failed to timely
respond to my Motion for Relief from Judgment. On October 14,
2016, I filed a motion for Judgment 60 days later after
Defendant had not timely replied to my motion. The trial
court should have granted relief as a matter of law. [sic]
Within these assignments of error, appellant alleges (1) the
trial court committed violations of the Ohio Code of Judicial
Conduct; (2) the trial court erred when it denied
appellant's motion for relief from judgment because the
underlying divorce decree was "prejudiced, unfair, and
in violation of law, not agreed upon, [and] in violation of
[Civil] Rule 75(M)"; (3) the trial court erred in not
granting relief from judgment by default after ...