Recently, I was asked a question regarding a notice of appeal and App.R. 3(D), which describes the required contents of a notice of appeal, and whether the failure to designate the order appealed was fatal to assigning error to that judgment entry. The question was interesting in that as much as the civil rules are meant to provide clarity, there is some confusion in the courts about how to address technical errors with the failure to designate the order from which the appeal is taken.
Typically, a party appealing a trial court’s decision must file a notice of appeal within 30 days of the final judgment and designate from which trial court order the appeal stems. In July 2013, the appellate rule was amended to clarify the procedure for amending a notice of appeal in situations where the appellant failed to designate the order appeal properly. App.R. 3(F) seems to indicate that a party may not amend a notice of appeal if the amendment seeks to appeal a trial court order beyond the 30 day time requirements. Prior to the 2013 amendment, App.R. 3(F) was fairly broad and allowed any amendment.
The problem is that in 1988, the Ohio Supreme Court held that the failure to properly designate the final verdict in the notice of appeal was not fatal to advancing assigned errors to that trial court order in Barksdale v. Van’s Auto Sales, Inc., 38 Ohio St.3d 127, 527 N.E.2d 284 (1988). How can Barksdale be reconciled with App.R. 3(F)?
The short answer is that App.R. 3(F) conflicts with the holding of Barksdale. Typically, because the rule was amended later in time, the rule should control the outcome, but Barksdale remains good law in Ohio for the proposition that cases should be decided on its merits. In fact, App.R. 3(A) specifically provides that the only jurisdictional requirement for a valid appeal is the timely filing a notice of appeal. Courts have discretion to determine whether to consider all other defects, including the failure to designate the order appealed, as grounds to dismiss the appeal.
Practically speaking, this means that the outcome of this issue will likely depend on the particular panel assigned to the case. If facing this issue, certainly the issue should be raised, especially in multiparty cases where one party may not have notice of the intent to appeal because the appellant failed to designate the pertinent order. It’s a rare area of law where the rule creates an ambiguity that frustrates the most efficient administration of appeals.
