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Hamilton v. Spirtos3/27/2002
ce of appeal is jurisdictional generally subject to no exceptions in a civil case, App.R. 3 and 4(A), without such timely filing the Court of Appeals is 'without jurisdiction' to entertain the appeal. * * * The only pertinent factual basis set out in the affidavit to support the motion to vacate is a claimed failure of notice of the date of judgment until after the thirty-day appeal period had expired. A determination of that justification was foreclosed when the first appeal was dismissed for untimely filing of the notice of appeal. Given these facts it would violate the purpose of Civ.R. 60(B)(1) and (5) to allow it to substitute for appeal or be used to circumvent the policy of App.R. 4(A) establishing an appeal period of thirty days. There was no factual issue requiring a hearing. The denial of the motion to vacate was not contrary to law. 'There must be an end to litigation someday, . . ..' Ackermann v. United States (1950), 340 U.S. 193, 198, 71 S.Ct. 209, 211, 95 L.Ed. 207, 211." Id. 42-43 (footnotes and citations partially omitted).
. Appellant is bound by the procedural steps her attorneys have taken and by the judgments resulting from those procedural devices. Although Civ.R. 60(B) may have been used to raise the alleged notification error if no direct appeal had been filed, once the direct appeal was filed and litigated, any further attempt to use Civ.R. 60(B) to litigate the same issues was barred.
. When a Civ.R. 60(B) motion is used as a substitute for a timely appeal, and when the denial of that motion is subsequently appealed, the proper response is the dismissal of the appeal. State ex rel. Richard v. Cuyahoga Cty. Commrs. (2000), 89 Ohio St.3d 205; Key, supra, 81 Ohio St.3d at 91; and State ex rel. Durkin v. Ungaro (1988), 39 Ohio St.3d 191. Because this Court has previously found that Appellant's prior appeal was untimely, and because Appellant's subsequent filing of a Civ.R. 60(B) motion to vacate was an attempt to circumvent the fact that no timely appeal was filed, we hereby dismiss this appeal.
Vukovich, P.J., concurs.
DeGenaro, J., concurs.
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