Martin v. Roeder

[This opinion has been published in Ohio Official Reports at 

.]




               MARTIN, APPELLANT, v. ROEDER ET AL., APPELLEES.
                     [Cite as Martin v. Roeder, 

.]
Appellate procedure—Civ.R. 60(B) inapplicable to appellate proceedings.
         (No. 96-399—Submitted May 7, 1996—Decided June 19, 1996.)
       APPEAL from the Court of Appeals for Marion County, No. 9-94-46.
                                  __________________
        {¶ 1} In 1994, appellant, Robert Martin, filed a complaint in the Marion
County Court of Common Pleas against appellees, employees of Marion
Correctional Institution, alleging a violation of Section 1983, Title 42, U.S. Code.
The common pleas court granted summary judgment in favor of appellees. The
court of appeals affirmed the judgment on appeal. Martin v. Roeder (Dec. 16,
1994), Marion App. No. 9-94-46, unreported, 

. A discretionary
appeal to this court was not allowed. Martin v. Roeder (1995), 

,

.
        {¶ 2} In January 1996, Martin filed a Civ.R. 60(B)(5) motion for relief from
the court of appeals’ 1994 judgment. The court of appeals overruled Martin’s
motion based on its determination that Civ.R. 60(B) was inapplicable to appellate
proceedings.
        {¶ 3} The cause is now before the court upon a claimed appeal as of right.
                                ____________________
        Robert Martin, pro se.
        Betty D. Montgomery, Attorney General, and Paula Luna Paoletti,
Assistant Attorney General, for appellees.
                                ____________________
                             SUPREME COURT OF OHIO




       Per Curiam.
       {¶ 4} The court of appeals correctly concluded that Civ.R. 60(B) is clearly
inapplicable to review the court’s judgment on appeal. Civ.R. 1(C)(1). The Rules
of Appellate Procedure govern appeals from trial courts of record to courts of
appeals in Ohio. App.R. 1(A); Pegan v. Crawmer (1996), 

, 608,

; see, generally, McCormac, Ohio Civil Rules Practice (2
Ed.1992) 5, Section 1.05 (Civil Rules have no application to procedure in courts of
appeals to review any judgment, order, or ruling, since the Appellate Rules set forth
the applicable procedure).
       {¶ 5} In addition, under the Appellate Rules, application for reconsideration
of any judgment submitted on appeal must be filed within ten days after filing of
the judgment or announcement of the court’s decision, whichever is later. App.R.
26(A). Therefore, even if Martin’s motion could have been construed as an
application for reconsideration, it would have been untimely.
       {¶ 6} Accordingly, the judgment of the court of appeals is affirmed.
                                                                Judgment affirmed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
STRATTON, JJ., concur.
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