State ex rel. McGrath v. McClelland , 133 Ohio St. 3d 337 ( 2012 )

[Cite as State ex rel. McGrath v. McClelland, 133 Ohio St.3d 337, 2012-Ohio-4782.]
THE STATE EX REL. MCGRATH, APPELLANT, v. MCCLELLAND, JUDGE, ET AL.,
APPELLEES.
[Cite as State ex rel. McGrath v. McClelland,
133 Ohio St.3d 337, 2012-Ohio-4782.]
Appellate procedure—Portions of appeal dismissed as untimely—Civ.R. 60(B)
motion for relief from judgment does not extend appeal time—Civ.R. 60(B)
motion not to be used as substitute for timely appeal.
(No. 2012-0737—Submitted October 9, 2012—Decided October 17, 2012.)
APPEAL from the Court of Appeals for Cuyahoga County,
No. 97209, 2012-Ohio-157.
__________________
Per Curiam.
{¶ 1} Appellant, Joseph McGrath, filed this appeal on April 26, 2012.
We dismiss as untimely those portions of his appeal that challenge the court of
appeals’ judgments dated January 13 and March 5, 2012. See S.Ct.Prac.R.
2.2(A)(1)(a) (“To perfect an appeal from a court of appeals to the Supreme Court,
other than in a certified conflict case, which is addressed in S.Ct.Prac.R. 4.1, the
appellant shall file a notice of appeal in the Supreme Court within forty-five days
from the entry of the judgment being appealed”). McGrath’s Civ.R. 60(B)
motions for relief from judgment did not extend his time to appeal the court of
appeals’ judgment denying the writs of mandamus and prohibition and declaring
him to be a vexatious litigator. State ex rel. Manuel v. Stenson, 126 Ohio St.3d
52, 2010-Ohio-2673, 930 N.E.2d 310.
{¶ 2} In addition, insofar as McGrath timely challenges the court of
appeals’ April 10, 2012 judgment denying his second Civ.R. 60(B) motion for
relief from judgment, we affirm the judgment because McGrath used the motion
SUPREME COURT OF OHIO
to raise claims that he could have raised in a timely appeal from the judgment
denying the writs. McGrath could not use Civ.R. 60(B) as a substitute for a
timely appeal. Id.; State ex rel. Albourque v. Terry, 128 Ohio St.3d 505, 2011-
Ohio-1913, 947 N.E.2d 169, ¶ 3.
Appeal dismissed in part
and judgment affirmed in part.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Joseph McGrath, pro se.
William D. Mason, Cuyahoga County Prosecuting Attorney, and James E.
Moss, Assistant Prosecuting Attorney, for appellee.
_____________________
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