Ohio App. R. 3

As amended through March 13, 2024

Rule 3 - Appeal as of Right-How Taken

(A) Filing the notice of appeal. An appeal as of right shall be taken by filing a notice of appeal with the clerk of the trial court within the time allowed by Rule 4. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal. Appeals by leave of court shall be taken in the manner prescribed by Rule 5.

(B) Joint or consolidated appeals. If two or more persons are entitled to appeal from a judgment or order of a trial court and their interests are such as to make joinder practicable, they may file a joint notice of appeal, or may join in appeal after filing separate timely notices of appeal, and they may thereafter proceed on appeal as a single appellant. Appeals may be consolidated by order of the court of appeals upon its own motion or upon motion of a party, or by stipulation of the parties to the several appeals.

(C)Cross appeal.

(1) When notice of cross appeal required Whether or not an appellee intends to defend an order on appeal , an appellee who seeks to change the order or, in the event the order is reversed or modified, an interlocutory ruling merged into the order, shall file a notice of cross appeal with the clerk of the trial court, and may also file a courtesy copy of the notice of cross-appeal with the clerk of the appellate court, within the time allowed by App.R. 4. The clerk of the trial court shall process the notice of cross-appeal in the same manner as the notice of appeal.

(2)When notice of cross appeal not required; cross-assignment of error never required. A person who intends to defend an order appealed by an appellant on a ground other than that relied on by the trial court but who does not seek to change the order is not required to file a notice of cross-appeal or to raise a cross-assignment of error.

(D) Content of the notice of appeal. The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof apealed from; and shall name the court to which the appeal is taken. The title of the case shall be the same as in the trial court with the designation of the appellant added, as appropriate. Form 1 in the Appendix of Forms is a suggested form of a notice of appeal.

(E) Service of the notice of appeal. The clerk of the trial court shall serve notice of the filing of a notice of appeal and, where required by local rule, a docketing statement, by mailing, or by facsimile transmission, a copy to counsel of record of each party other than the appellant, or, if a party is not represented by counsel, to the party at the party's last known address. The clerk shall mail or otherwise forward a copy of the notice of appeal and of the docket entries, together with a copy of all filings by appellant pursuant to App. R. 9(B), to the clerk of the court of appeals named in the notice. The clerk shall note on each copy served the date on which the notice of appeal was filed. Failure of the clerk to serve notice shall not affect the validity of the appeal. Service shall be sufficient notwithstanding the death of a party or a party's counsel. The clerk shall note in the docket the names of the parties served, the date served, and the means of service.

(F) Amendment of the notice of appeal.

(1) When leave required. A party may amend a notice of appeal without leave if the time to appeal from the order that was the subject of the initial notice of appeal has not yet lapsed under App. R. 4. Thereafter, the court of appeals within its discretion and upon such terms as are just may allow the amendment of a notice of appeal, so long as the amendment does not seek to appeal from a trial court order beyond the time requirements of App. R. 4.

(2) Where filed. An amended notice of appeal shall be filed in both the trial court and the court of appeals.

(G) Docketing statement

(1) If a court of appeals has adopted an accelerated calendar by local rule pursuant to Rule 11.1, the appellant shall file a docketing statement with the Clerk of the trial court with the notice of appeal. (See Form 2, Appendix of Forms.)

The purpose of the docketing statement is to determine whether an appeal will be assigned to the accelerated or the regular calendar.

A case may be assigned to the accelerated calendar if any of the following apply:

(a) No transcript is required (e.g., summary judgment or judgment on the pleadings);

(b) The length of the transcript is such that its preparation time will not be a source of delay;

(c) An agreed statement is submitted in lieu of the record;

(d) The record was made in an administrative hearing and filed with the trial court;

(e) All parties to the appeal approve an assignment of the appeal to the accelerated calendar; or

(f) The case has been designated by local rule for the accelerated calendar.

The court of appeals by local rule may assign a case to the accelerated calendar at any stage of the proceeding. The court of appeals may provide by local rule for an oral hearing before a full panel in order to assist it in determining whether the appeal should be assigned to the accelerated calendar.

Upon motion of appellant or appellee for a procedural order pursuant to App.R. 15(B) filed within seven days after a case is placed upon the accelerated calendar, a case may be removed for good cause from the accelerated calendar and assigned to the regular calendar. Demonstration of a unique issue of law which will be of substantial precedential value in the determination of similar cases will ordinarily be good cause for transfer to the regular calendar

(2) If the appeal is expedited under App. R. 11.2, the appellant shall file a docketing statement with the clerk of the trial court with the notice of appeal indicating the category of case under App. R. 11.2 and the need for priority disposition.

Ohio. App. R. 3

Effective:7/1/1971; amended effective 7/1/1972;7/1/1977;7/1/1982;7/1/1991;7/1/1992;7/1/1994;7/1/2013;7/1/2015; amended April 24, 2019, effective 7/1/2019; amended March 12, 2020, effective 7/1/2020.

Proposed Staff Note (July 1, 2019 Amendment)

App.R. 3

The amendment to App.R. 3(G) is designed to ensure that a party who wishes to challenge the assignment of an appeal to the accelerated calendar has adequate notice of the assignment before the seven-day deadline for moving to transfer to the regular calendar begins to run.

Staff Note (July 1, 2015 amendment)

App. R. 3(G) is amended by adding a new subsection requiring appellants in expedited cases under App. R. 11.2 to file a docketing statement with the notice of appeal, in order to alert the appellate court to the need for priority disposition.

Staff Notes (July 1, 2013 Amendments)

App. R. 3(C)(2) is amended to clarify that a party seeking to defend a judgment on a ground other than that relied on by the trial court need not file a cross-assignment of error to do so; instead, that party may simply raise the arguments in the appellate brief. The prior rule suggested as much, but some courts, relying on R.C. 2505.22, have refused to consider arguments in defense of a judgment in the absence of a cross-assignment of error. See, e.g., Justus v. Allstate Ins. Co., 10th Dist. No. 02AP-1222, 2003-Ohio-3913, ¶ 21; Good v. Krohn, 151 Ohio App.3d 832, 2002-Ohio-4001, 786 N.E.2d 480, ¶ 15 (3d Dist.); Zotter v. United Servs. Auto. Assn., 11th Dist. No. 94-P-0001, 1994 WL 660838, *2 (Nov. 19, 1994). Other courts, by contrast, followed the "well established" rule "that 'a reviewing court is not authorized to reverse a correct judgment merely because erroneous reasons were assigned as the basis thereof."' See, e.g., Schaaf v. Schaaf, 9th Dist. No. 05CA 0060 -M, 2006-Ohio-2983, ¶ 19, quoting State ex rel. Carter v. Schotten, 70 Ohio St.3d 89, 92, 637 N.E.2d 306 (1994). The language of the amendment to App. R. 3(C)(2) clarifies that the latter view is the correct one and confirms that the requirement of a cross-assignment of error in R.C. 2505.22 is abrogated by rule.

App. R. 3(F) is amended to clarify the procedure for amending a notice of appeal. Amending a notice of appeal is an efficient mechanism for appealing from a trial court order different from the order referenced in the initial notice of appeal without having to file a second notice of appeal and then seeking to consolidate the two appellate cases. The amendment clarifies that no leave is required to amend a notice of appeal if the time to appeal from the order identified in the initial notice of appeal has not yet lapsed under App. R. 4; this resolves a perceived ambiguity in the former rule, see Am. Chem. Soc. v. Leadscope, 10th Dist. No. 08AP-1026, 2010-Ohio-2725, ¶ 22, and is consistent with the general practice of permitting amendments during that initial 30-day time frame. See, e.g., State v. West, 2d Dist. No. 2000CA 56, 2001 WL 43110, at *1 (Jan. 19, 2001). By contrast, leave is required if a party seeks timely to appeal from a subsequent trial court order after the time to appeal from the originally appealed order has expired under App. R. 4; the decision whether to grant leave at that point is discretionary, reflecting the general reluctance to permit such amendments, see, e.g., Rickard v. Trumbull Twp. Zoning Bd., 11th Dist. Nos. 2008-A-0024, 2008-A-0027, 2008-A-0025, 2008-A-0028, and 2008-A-0026, 2009-Ohio-2619, ¶ 42, but also recognizing the potential efficiencies of avoiding a second appeal if the orders in question are inter-related. In all events, however, an amended notice of appeal may not be used to appeal from a trial court order if the time to appeal from that order has already lapsed under App. R. 4. App. R. 3(F)(2) also clarifies that the party filing an amended notice of appeal must file the amendment in both the trial and appellate courts so that both courts are aware of the scope of the appeal.