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Starting an Appeal - the Notice of Appeal
To file an
appeal, a party must file a Notice of Appeal with the clerk
of the trial court. App.R. 3. The Notice of Appeal generally must be
filed within 30 days of the date of the judgment the appellant wants to
appeal. App.R. 4. There may be exceptions to the 30-day limit
contained in Appellate Rule 4.
Key Points
* The Notice of Appeal is normally due within 30
days of the filing of the judgment appellant wants to appeal.
* The Notice of Appeal must be filed with the clerk
of the trial court.
* Filings for the Court of Appeals must be made
with the clerk of the court of appeals in the county where the case
started. Filings should not be sent to the Court's main office in
Akron and, if they are, they will not be filed or considered by the
Court.
There are terms used in this
Guide that have special meanings. An "appellant" is any
person who has filed a Notice of Appeal. Local Rule 1(B)(1).
An "appellee" is any party to the trial court case who the appellant
indicates is an appellee on the docketing statement. Local Rule
1(B)(2). If the appellant does not name a party as an appellee, that party may file a motion asking the Court of Appeals to
treat the party as an appellee during the appeal.
The appellant must
file several documents to start an appeal:
You can find
form and sample documents here.
Important Reminders
The appellant must file the Notice of Appeal, Docketing Statement, and Motion to Proceed in forma pauperis,
or pay the cost deposit, with the clerk of the trial court.
The parties must file just about everything after that with the county clerk of courts for
the county in which the appeal originated (there are, however, several specific
motions that are filed with the trial court, like a motion to prepare a
transcript of proceedings at state's expense).
For example, if a
party appeals from a decision of the Stow Municipal Court, the appellant
must file the Notice of
Appeal, Docketing Statement, and Motion to Proceed in forma pauperis in the Stow Municipal Court clerk's office. If a party
later wants to file a motion, for example, asking for additional time to
file a brief, that motion must be filed in the Summit County Clerk of
Courts, Appellate Division. If the appeal is from the Avon Lake
Municipal Court in Lorain County, however, appellate court pleadings would
need to be filed in the Lorain County Clerk of Courts. You can find
the addresses of the Clerks' offices here.
A party filing any document after the Notice of Appeal and Docketing Statement
(both of which are served by the clerk of courts) must serve the document on all
parties to the appeal and must include proof of service in the
pleading. App.R. 13(D). If there is no proof of service,
the Court of Appeals cannot consider the document.
The appellant must pay the cost deposit at the time
the Notice of Appeal is filed. If the appellant cannot afford the
cost deposit, the appellant may file a motion to proceed in forma
pauperis, which asks this Court to waive the filing of the cost deposit.
The motion must have the Financial Disclosure Form attached to it. If the motion is granted, the
appellant does not have to pay the cost deposit. If the Court
grants the motion, this only means that the cost deposit does not have
to be paid when the appeal is started, but one or both parties will
still be liable to pay the costs of the appeal at the end of the case.
Local Rule 3.1(C). In addition to the appellate court's cost
deposit, some trial courts have adopted a fee for filing a notice of
appeal, so you will need to check with the clerk of the trial court
about any additional fees involved in filing a notice of appeal.
Finally, if you do not file a required document, make
a mistake in how you prepare a document, or do not pay the cost
deposit or ask for the deposit to be waived, the Court of Appeals will
file an order telling you what the problem is and give you a deadline to correct
it. If you do not respond to the order,
your appeal may be dismissed.
Filings for the Court of Appeals must be made with
the common pleas clerk in the county where the case originated.
Any filing sent to the Court's main office in Akron will not be filed
and will not be considered by the Court of Appeals.
If it has been more than 30 days -
Delayed Appeal
The Notice of Appeal must generally be filed within
30 days after the date of the judgment to be appealed. There are
some specific exceptions contained in App.R. 4.
In addition, App.R. 5 contains provisions permitting
an appeal after 30 days by leave of the court of appeals. App.R.
5(A) allows a defendant to file a motion for delayed appeal. The
Rule applies only to three classes of cases: criminal proceedings,
delinquency proceedings, and serious youthful offender proceedings.
App.R. 5(A)(2) requires the motion for leave to
appeal to be filed with the clerk of the court of appeals at the same
time the notice of appeal is filed with the clerk of the trial court:
file the notice of appeal with the clerk of the trial court and,
at the same time, file the notice of appeal and motion for leave to
appeal with the clerk of the court of appeals. This is
different than the ordinary procedure where the appellant only files the
notice of appeal with the clerk of the trial court.
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