Initial Civil Appeals: Ohio

A Q&A guide to appealing from a trial court of

general jurisdiction in Ohio. This Q&A addresses

starting an appeal (as of right or by permission),

obtaining a stay pending appeal, completing

preliminary requirements (like mediation),

submitting a factual record or appendix, brieﬁng

the appeal, arguing the appeal and requesting

rehearing.

OVERVIEW OF STATE APPEALS

1. What types of rulings can a party appeal as of right (for example,

ﬁnal judgments, preliminary injunctions, interlocutory orders)?

In Ohio, a party may appeal as of right a ﬁnal judgment or order from the

Court of Common Pleas, municipal and county courts to the Ohio Court

of Appeals (Ohio's intermediate appellate court) (Ohio Rev. Code Ann. §§

2505.02 to 2505.03). Although other discrete types of orders might be

appealable as of right, the following generally qualify as ﬁnal orders:

 Orders affecting a substantial right (which includes rights arising

under the US Constitution, the Ohio Constitution, a statute, the

common law or a rule of procedure) that are made:

 in an action and that in effect determines the action and

prevents a judgment;

 in a special proceeding, which is an action or proceeding

specially created by statute that did not exist before 1853, such

as a declaratory judgment action; or

 on a summary application in an action after judgment, for

example an allocation of fees after judgment.

 Orders vacating or setting aside a judgment or granting a new trial.

 Orders granting or denying a provisional remedy (such as a

preliminary injunction, attachment, discovery of privileged matter

or suppression of evidence) if:

 the order in effect determines the action regarding the

provisional remedy and prevents a judgment in favor of the

appealing party concerning the provisional remedy; and

 the appealing party would not be afforded a meaningful

or effective remedy if it were required to appeal after ﬁnal

judgment on all claims and issues.

 Orders determining whether an action may or may not be

maintained as a class action.

 Certain orders in proceedings for government appropriation of real

property.

(Ohio Rev. Code Ann. § 2505.02(B).)

In cases involving multiple claims or multiple parties, however, a court

may enter a ﬁnal judgment on one or more, but less than all, of the

claims or parties if it determines there is no just reason for delay (Ohio

R. Civ. P. 54(B)). If the court enters a ﬁnal judgment on less than all

of the claims or parties, an appellant may appeal this judgment as of

right if it otherwise qualiﬁes as a ﬁnal order under Section 2505.02 of

the Ohio Revised Code Annotated. The judgment cannot be made ﬁ-

nal and appealable merely by stating there is no just reason for delay

(Noble v. Colwell, 540 N.E.2d 1381, 1385 (Ohio 1989)).

2. What types of rulings, if any, can a party appeal by

permission (for example, interlocutory orders)?

Under Ohio law, appeals by permission are not allowed.

3. Are there any restrictions on the types of issues the appellate

court can consider (for example, only questions of law)?

There are no restrictions on the types of issues an appellate court may

consider. The Ohio Court of Appeals is, however, limited to the record on

appeal and considers only those issues that are raised by the appellant.

Initial Civil Appeals: Ohio

GREGORY P. MATTHEWS, DINSMORE & SHOHL, LLP, WITH PRACTICAL LAW LITIGATION

View the online version at http://us.practicallaw.com/w-000-1664

Initial Civil Appeals: Ohio

STARTING AN APPEAL

4. When must a party start an appeal?

An appellant must appeal to the Court of Appeals within 30 days of

either:

 The entry of judgment or order.

 Service of the notice of judgment and its entry if the party is not

served within three days under Rule 58(B) of the Ohio Rules of

Civil Procedure (Ohio R. App. P. 4(A)).

If the order is ﬁnal at the time it is entered, the 30-day period gener-

ally begins to run from the date of entry. If the order is not ﬁnal at the

time it is entered but later becomes ﬁnal, the 30-day period begins

to run from the date the order became ﬁnal. A party ﬁling a cross-ap-

peal may ﬁle its notice of appeal as provided above or within ten days

after the ﬁrst notice of appeal was ﬁled (Ohio R. App. P. 4(B)(1).)

However, in an appeal involving an election contest, the time to

appeal to the Supreme Court of Ohio is reduced to 20 days (Ohio S.

Ct. Prac. R. 6.01(A)(2)). For more information about appeals to the

Supreme Court of Ohio, see State Q&A, Additional Civil Appeals: Ohio

(http://us.practicallaw.com/w-000-1665).

5. How, if at all, can a party extend the time to start an appeal?

The Court of Appeals may not extend the time for ﬁling a notice of

appeal (Ohio R. App. P. 14(B)). If a party timely and appropriately ﬁles

a post-judgment motion, however, the time to appeal the judgment

or order begins to run when the trial court enters an order resolving

the last post-judgment motion. Post-judgment motions that may

extend the time for an appeal include:

 Motions for a judgment notwithstanding the verdict.

 Motions for a new trial.

 Objections to a magistrate's decision.

 Requests for ﬁndings of fact and conclusions of law.

 Motions for attorneys' fees.

 Motions for prejudgment interest.

(Ohio R. App. P. 4(B)(2).)

6. How does a party start an appeal as of right (for example,

notice of appeal, petition)?

In Ohio, a party starts an appeal as of right to the Court of Appeals by

ﬁling a notice of appeal with the trial court clerk (Ohio R. App. P. 3(A)).

The notice of appeal must designate:

 The party or parties taking the appeal.

 The judgment or order being appealed.

 The court from which the appeal is taken.

(Ohio R. App. P. 3(D).)

The ﬁling fee for a notice of appeal varies by district.

7. How does a party start an appeal by permission (for example,

motion to the appellate court, motion to the trial court)?

In Ohio, appeals by permission are not allowed (see Question 2).

STAYS PENDING APPEAL

8. How, if at all, can a party stay the lower court's ruling

pending appeal (for example, posting a bond, making a

motion, automatically by appealing)?

In Ohio, ﬁling a notice of appeal does not automatically stay the

underlying judgment being appealed. Parties may obtain a stay by

making a motion.

A party generally must ﬁrst attempt to obtain a stay of the judgment

by ﬁling a motion in the trial court and by giving an adequate

supersedeas bond (Ohio R. Civ. P. 62(B); Ohio R. App. P. 7(A)). A stay

is effective when a supersedeas bond is approved by the trial court,

however, at least one Ohio court has held that a supersedeas bond

may not be necessary because an adequate bond may be deﬁned

to mean no bond (see Irvine v. Akron Beacon J., 770 N.E.2d 1105, 1123

(Ohio Ct. App. 2002)).

If the trial court does not grant a stay under the terms requested by

the appellant or a motion to the trial court is not practicable, the

appellant may make an application for stay in the Court of Appeals

(Ohio R. App. P. 7(A)). The application must:

 State:

 the reasons for the relief requested; and

 the facts relied on in requesting relief, supported by afﬁdavits if

these facts are in dispute.

 Be accompanied by the relevant parts of the trial court record, if

reasonably available.

(Ohio R. App. P. 7(A).)

A motion for a stay in the appellate court must be ﬁled with the

Court of Appeals clerk (Ohio R. App. P. 7(A)). The appellate court may

require that the appellant ﬁle a bond or other appropriate security in

the trial court (Ohio R. App. P. 7(B)).

PRELIMINARY MATTERS

9. What, if any, preliminary matters are required before the

parties brief the appeal (for example, ﬁling informational

forms, participating in mediation or settlement conferences)?

In Ohio, preliminary matters vary among the 12 appellate districts.

Therefore, counsel should review the local rules of the district in

which the appeal is pending.

Every district, by local rule, requires an appealing party to ﬁle a dock-

eting statement (see, for example, Hamilton County Court of Appeals:

R. 3.2 and Second District Court of Appeals: R. 2.13). Speciﬁc docketing

statements vary by district, but they generally require the appeal-

ing party to provide basic information concerning the appeal, which

allows the court to determine whether the case should be assigned to

the regular or accelerated calendar (see Question 11: Filing Briefs).

Many districts have also adopted prehearing-conference procedures,

which may require mediation or a discussion of substantive issues in

some cases (see, for example, Third Appellate Judicial District: R. 19

and Fourth Appellate Judicial District: R. 22).

Initial Civil Appeals: Ohio

COURT SUBMISSIONS

10. What factual materials are submitted to the court (for

example, the trial court record, excerpts of the record, an

appendix)? When and by whom?

FACTUAL MATERIALS

The record on appeal includes:

 The original papers and exhibits ﬁled in the trial court.

 Any transcript, with exhibits, of the proceedings.

 A certiﬁed copy of the docket and journal entries.

(Ohio R. App. P. 9(A).)

The appellant may decide that it is unnecessary to include a transcript

of some of the proceedings in the record. In that case, a transcript of

those proceedings is not included in the factual materials submitted

to the appellate court. The appellant must serve on the appellee and

ﬁle with the trial court clerk a statement with the notice of appeal

declaring that the proceedings were:

 Recorded and:

 listing the assignments of error the appellant intends to present

on appeal; and

 describing either the parts of the transcript the appellant

intends to include or indicating that no transcript is necessary.

 Not recorded or that the recording is not available and:

 listing the assignments of error the appellant intends to present

on appeal; and

 indicating that either a statement of the evidence or an agreed

statement of the record on appeal must be submitted.

(Ohio R. App. P. 9(B)(5).)

If the appellee considers parts of the transcript necessary, the appel-

lee has ten days from service of the statement to ﬁle and serve a tran-

script designation demanding that additional parts of the transcript

be included.

If, within ten days after service of the appellee's statement, the appel-

lant refuses to include the additional transcript portions, the appellee

has ﬁve days to order the transcript portions from the transcriber or

request a court order requiring the appellant to order the designated

portions. (Ohio R. App. P. 9(B)(5).)

TIMING

The trial court clerk must transmit the record to the Court of Appeals

clerk within 40 days after ﬁling the notice of appeal when the case

is assigned to the regular calendar. The time is reduced to 20 days

when the case is assigned to the accelerated calendar. (Ohio R. App.

P. 10(A) and see Question 11.) A request for additional time may be

granted if the request is made within the time originally prescribed

by the rule or within an extension previously granted. The trial court,

for cause shown, may extend the time and the trial court clerk must

certify the order to the Court of Appeals. (Ohio R. App. P. 10(C).)

RESPONSIBLE FOR FILING

The trial court clerk is responsible for:

 Preparing the docket.

 Assembling the original papers.

 Transmitting the record to the clerk of the Court of Appeals.

(Ohio R. App. P. 10(B).)

The appellant is responsible for:

 Ensuring that the proceedings the appellant considers necessary

for inclusion in the record are transcribed (Ohio R. App. P. 9(B)(1)).

 Ordering the transcript in writing and ﬁling a copy with the trial

court clerk (Ohio R. App. P. 9(B)(3)).

 Ensuring that a transcript of all proceedings necessary for

inclusion in the record are properly transcribed before the deadline

by which the record must be transmitted to the Court of Appeals

clerk (Ohio R. App. P. 10(A)).

11. What briefs are ﬁled and when? Does this change when

there is a cross-appeal?

FILING BRIEFS

In an appeal assigned to the regular calendar, the appellant must

ﬁle its brief within 20 days after the clerk notiﬁes the parties that the

record has been transmitted from the trial court. The appellee must

ﬁle its brief within 20 days of service of the appellant's brief. The

appellant may ﬁle a reply brief within ten days after service of the ap-

pellee's brief. (Ohio R. App. P. 18(A).)

The Court of Appeals may adopt an accelerated calendar by local rule.

The accelerated calendar is designed to eliminate delay and unnecessary

expense on appeal by recognizing that some cases do not require as

extensive or time consuming procedure as others. (Ohio R. App. P. 11.1(A).)

In an appeal assigned to the accelerated calendar, the appellant must

ﬁle its brief within 15 days after the clerk notiﬁes the parties that the

record has been transmitted from the trial court. The appellee has 15

days after service of the appellant's brief to ﬁle its brief. In an acceler-

ated appeal, a reply brief is typically not allowed. (Ohio R. App. P. 18(C).)

The criteria for placing an appeal on the accelerated calendar vary

among districts. One district provides these criteria:

 No transcript is required or the transcript consists of 50 or fewer pages.

 The parties have submitted an agreed statement in lieu of a record.

 The parties agree to an assignment to the accelerated calendar.

(10th D. Ohio R. 6(E))

BRIEFING AFTER CROSS-APPEAL

There is no uniform rule concerning the order and timing of briefs

when a cross-appeal is involved. Some appellate districts stagger the

brieﬁng schedule, while others require the parties to submit the ap-

pellant, appellee and reply briefs applicable to the separate appeals

simultaneously. Counsel should check the appellate district's local

rules to determine the schedule for cross-appeal briefs.

12. How, if at all, can a party extend the time to ﬁle a brief (for

example, stipulation, so-ordered stipulation, motion)?

In Ohio, a party may seek an extension of time to ﬁle a brief by ﬁling a

motion to extend time under Ohio Rule of Appellate Procedure 14(B).

The court grants motions only for good cause (Ohio R. App. P. 14(B)).

Initial Civil Appeals: Ohio

REHEARING FOR STATE APPEALS

15. Is there a mechanism for rehearing (panel or en banc)? If

so, please describe:

 The process for requesting rehearing (for example, petition, motion).

 The process for presenting the merits if the court grants rehearing

(for example, decision on the existing papers, new argument,

new brieﬁng).

REQUESTING REHEARING

Reconsideration

Applications for reconsideration are appropriate in Ohio only when either:

 There is an obvious error in the court's decision.

 The application raises an issue that was either not considered at

all or not fully considered by the court when it should have been.

(Columbus v. Hodge, 523 N.E.2d 515, 516 (Ohio Ct. App. 1987).)

Applications for reconsideration are not appropriate if a party simply

disagrees with the logic or conclusions of the appellate court.

Applications for reconsideration must be made by motion no later

than ten days after the clerk has mailed a copy of the judgment to the

parties (Ohio R. App. P. 26(A)(1)(a)).

The parties opposing the application have ten days to answer after

the application is served. The movant has seven days to ﬁle a reply

brief. Oral argument is not permitted unless the court requests it.

(Ohio R. App. P. 26(A)(1)(b).)

An application for reconsideration is considered by the panel that

issued the original decision (Ohio R. App. P. 26(A)(1)(c)).

En Banc Consideration

A party may apply for en banc consideration if two or more decisions of

the court are in conﬂict, however, en banc consideration is not favored.

A majority vote of the en banc court is required for the case to proceed

to en banc consideration. Applications for en banc consideration must

be made no later than ten days after the clerk has mailed a copy of the

judgment to the parties or, under certain circumstances, within ten days

of a decision on a timely ﬁled motion for reconsideration. A court may

also order en banc consideration sua sponte. (Ohio R. App. P. 26(A)(2).)

REHEARING PROCEDURE

The Ohio Rules of Appellate Procedure do not provide for a rehearing

procedure that would apply in the event the court agrees to reconsider

an appeal or consider it en banc. Therefore, unless the court orders

additional brieﬁng and argument, the court will likely rehear the appeal

on the existing papers.

13. Are there word or page limits for briefs? If so, please indicate:

 The word or page limit for each type of brief (for example,

appellant's brief, appellee's brief, reply brief).

 How, if at all, a party can obtain permission to exceed the usual

limit (for example, stipulation, so-ordered stipulation, motion).

WORD OR PAGE LIMITS

Page limits vary depending on the appellate district in which the

appeal is pending. For example, the Twelfth District allows only 20

pages for appellant and appellee briefs, while the Tenth District per-

mits up to 60 pages for the parties' initial briefs. Most districts permit

initial briefs of between 25 and 35 pages. Reply briefs typically are

limited to ten to 15 pages. Page limits are typically reduced if a case

is assigned to the accelerated calendar (see Question 11: Filing Briefs).

Counsel should check the appellate district's local rules to determine

the relevant page limits.

OVERSIZED BRIEFS

The local rules for each district govern how and when a party may

obtain permission to ﬁle oversized briefs. Although the precise stan-

dard differs between each district, a motion is always required and

the requesting party typically must demonstrate good cause for the

request. Counsel should check the appellate district's local rules to

determine the requirements for oversized briefs.

ORAL ARGUMENTS

14. Is oral argument available? If so, please indicate:

 Any restrictions on what types of cases may be argued.

 Whether the parties can request oral argument or submission

on the papers.

 How much time each party or side typically receives for

argument.

TYPES OF CASES THAT MAY BE ARGUED

Oral argument generally is available for all cases in Ohio. The court

is not required to hold oral argument. Each appellate district may

adopt its own local rule concerning oral argument, which may require

a party to request oral argument. (Ohio R. App. P. 21(A).)

PARTY INVOLVEMENT IN DECISION

Most districts require one or both parties to afﬁrmatively request oral

argument. If a party fails to make a request, the party usually forfeits

the right to orally argue the case. Some districts, by local rule, reserve

the right to decide cases without oral argument, even if the parties

request it, if the court determines argument is unnecessary.

The parties can, by agreement, submit the case on the briefs without

oral argument. Even with the parties' stipulation to submit, however,

the court may order oral argument. (Ohio R. App. P. 21(G).)

LENGTH OF ORAL ARGUMENTS

Most of the appellate districts allot 15 minutes to each side for argu-

ment. However, each party is allowed 30 minutes if the court does

not set a shorter time (Ohio R. App. P. 21(C)).

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