BASIC APPEAL FORMS
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TWELFTH APPELLATE DISTRICT LOCAL
RULES
Effective May 1, 2014
Counties of Brown, Butler, Clermont,
Clinton,
Fayette, Madison, Preble and Warren
RULE
1. Scope and Application of Rules
2. Cost Deposit
(A)
Appeals
(B)
Original Actions
3. Notice of Appeal
4. Docket Statement; Scheduling Order
5. Notification of Lack of Transcript
or Narrative Statement;
App.R. 11(B) Notice
6. Accelerated Calendar
7. Scheduling Order
8. Stays; Bail; Suspension of Execution
of Sentence
9. Counsel
10.
Filing of the Record
11.
Brief
(A)
Form
(1) References to the Record
(2)
Contents of Brief
(3)
Length of Brief
(B)
Substance
(1)
Table of Contents
(2)
Statement of the Case
(3)
Argument
(4)
Conclusion
(C)
Citations
(D)
Appendices
(E)
Supplemental Authority
(F)
Place of Filing
(G)
Failure to Comply
12. Oral Argument
(A)
Request for Oral Argument
(B)
Length of Oral Argument
(C)
Supplemental Authority
13. Motions and Memoranda
(A)
Content
(B)
Number of Copies/Place of Filing
(C)
Oral Argument
(D)
Filing by Facsimile or Other Electronic Transmission
14. Extensions of Time
15. Failure to Prosecute
16. Judgment Entries; Reconsideration
17. Motions to Certify
18. En Banc Consideration
19. Presiding Judge
20. Administrative Judge
21. Original Actions
(A)
How Instituted
(B)
Deposit for Costs
(C)
Alternative Writs
(D)
Motion to Dismiss
(E)
Brief in Opposition to Motion to Dismiss
(F)
Oral Argument on Motion to Dismiss
(G)
Presentation of Evidence
(H)
Time for Briefs
(I)
Service of Copy of Brief
(J)
Briefs
(K)
Election Matters
(L)
Oral Argument
(M)
Referral to Magistrate
(N)
Dismissal for Want of Prosecution
(O)
Filing by Facsimile
22. Prehearing
Mediation Conference Procedure
23. Appeal of
Order Denying Bail
24. Authorized Signatures
25-26. Reserved
27. Effective
Date and Applicability
Rule
1 SCOPE
AND APPLICATION OF RULES.
The
following rules have been adopted by the judges of the Twelfth District
Court of Appeals pursuant to Section 5(B), Article IV of the Ohio
Constitution, as amended, and App.R. 41 in the interest of promoting
the administration of justice and increasing the efficiency of
the court's operation.They shall be cited as follows: "12th Dist.Loc.App.R. ____."
These
rules and the Ohio Rules of Appellate Procedure shall govern all
procedures in appeals to the Twelfth District Court of Appeals from
courts of record within the jurisdictional boundaries of the
Twelfth District. The Rules of Appellate Procedure and these rules
prescribe the procedures to be followed in this court by all parties,
whether represented or unrepresented.
The
Ohio Rules of Civil Procedure, as supplemented by these rules, shall
govern procedure in original actions filed in the Twelfth District
Court of Appeals.
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Rule
2COST
DEPOSIT.
(A)
Appeals. After the initial filing, no notice of appeal or cross-appeal shall be permitted to proceed
in the court of appeals unless the party bringing the appeal
or cross-appeal first deposits with the clerk of the trial court
a deposit in the sum of $225 as security for payment of costs, except
in criminal actions where the party who proffers the filing makes and files with the
clerk a sworn affidavit of inability to secure costs by such prepayment
or produces evidence that the trial court determined that the appellant
is indigent for purposes of appeal. In the event the affidavit
is filed by an inmate of a state institution, it shall be accompanied
by a certificate by the warden or other
appropriate officer of the institution setting forth the amount
of funds, if any, that the inmate has on deposit with the institution
available to the inmate to secure costs. No security shall be required
on appeals by the state or any of its subdivisions. R.C. 109.19.
The
deposit for costs shall be forwarded upon receipt by the clerk of
the trial court to the clerk of the court of appeals along with
a copy of the notice of appeal, a copy of the entry or order appealed
from, a copy of the listing of docket and journal entries and a
copy of the docket statement required by Loc.R. 4.
Any personal check given for the deposit amount shall be made payable
to the clerk of the court of appeals. The deposit for costs shall
be in addition to any other fees or deposits required by law, including
the lawful fees of the clerk of the trial court prescribed by
R.C. 2303.20 and 2303.31. The deposit for costs shall be applied
by the clerk of the court of appeals to the costs, if any, assessed
against the respective appellant(s) or cross-appellant(s) during
the appeal, as determined by this court, and any balance remaining
shall be returned by the clerk to the depositor.
(B)
Original Actions. After the initial filing, no complaint in an original action (mandamus,
prohibition, procedendo, or quo warranto, and except where prohibited
by law, habeas corpus) shall be permitted to proceed in the court of appeals
unless the party bringing the action shall have first deposited
with the clerk the sum of $225 as security for payment of the costs
that may accrue in the action. The deposit for costs shall be
in addition to any other fees or deposits required
by law. A subpoena shall not be issued for any witness
in an action unless an additional deposit in the amount of $30
as security for costs is deposited with the clerk together with
a praecipe for subpoena. A $30 deposit and praecipe shall be submitted
for each subpoena to be issued. If the
party bringing the action or the party seeking the attendance of
witnesses makes and files with the clerk a sworn affidavit of inability
to secure costs by such prepayment, the clerk shall
receive and file the complaint and subpoena witnesses without
such deposits, subject to the approval of the court of appeals. In the event the affidavit is filed by an inmate
of a state institution, it shall be accompanied
by a certificate by the warden or other appropriate officer
of the institution setting forth the amount of funds, if any, that
the inmate has on deposit with the institution available to the
inmate to secure costs.
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Rule
3NOTICE
OF APPEAL.
(A)
The notice of appeal shall comply in all respects with App.R. 3(D)
and shall be accompanied by a docket statement as required by
Loc.R. 4. If the docket statement is not filed with
the notice of appeal, it shall be filed
with the clerk of the court of appeals no later than five (5) days
after filing of the notice of appeal. Filing
of the docket statement is not jurisdictional, but omission of the
docket statement may be a basis for dismissal, or may result in
assessing against the appellant such court costs as may be attributable
to failure to file the docket statement.
(B)
The appellant shall file with the notice of appeal a praecipe directing
the clerk of the trial court to prepare a record of the original
papers and exhibits, and a copy of the docket and journal entries
as specified in App.R. 9(A).
(C)
Upon filing of the notice of appeal, the clerk of the trial court
shall promptly forward to the clerk of the court of appeals
(1) a copy of the notice of appeal and docket statement; (2) a copy of the entry or order
appealed from; (3) a copy of the opinion or decision supporting
such entry or order if any, and a copy of any findings of fact and
conclusions of law filed in the trial court; (4) a copy of the transcript
of docket and journal entries; and (5) the deposit amount or an affidavit
of indigency, with Loc.R. 2 certificate of funds if applicable.
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Rule
4DOCKET
STATEMENT; SCHEDULING ORDER.
(A)
Upon every appeal filed in the court of appeals, counsel of record
for the appellant, or the appellant when unrepresented and acting
pro se, shall complete a docket statement (criminal appeal
- Form 1; civil appeal - Form 2) and file the completed docket statement
with the notice of appeal in the clerk's office of the trial court
as set forth in Loc.R. 3(A). The clerk of the trial court
shall then forward the notice of appeal and the docket statement
to the clerk's office of the court of appeals within five (5) days.
Failure to file a docket statement may result in dismissal of the
appeal, or may result in assessing against the appellant such court
costs as may be attributable to failure to file the docket statement.
(B)
Upon receipt of the notice of appeal and the docket statement, the
court will cause a scheduling order to be issued pursuant to Loc.R. 7 directing when
the record and the briefs are to be filed.
(C)
If necessary, the court administrator may schedule a pre-scheduling
order conference with counsel of record to resolve preliminary issues
such as (1) the finality of the order being appealed, (2) the type
of record to be filed, (3) the probable time required to complete
preparation of the record on appeal, (4) the assignments of error
and issues to be raised, (5) the time needed for briefing and oral
argument, and (6) other matters of relevance to the appeal.
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Rule
5NOTIFICATION
OF LACK OF TRANSCRIPT OR NARRATIVE STATEMENT; APP.R. 11(B) NOTICE.
(A)
In every appeal taken in which no transcript of proceedings or
narrative statement or agreed statement as described in App.R. 9
will be filed, or such transcript or narrative statement is already
a part of the trial court record, counsel for the appellant shall
file a notice of such fact with the clerk of the court of appeals
for the county from which the appeal is being taken.
(B)
Counsel for the appellant need not file the statement required by
paragraph (A) above if the docket statement (see Loc.R. 4)
indicates that no transcript or App.R. 9 statement will be filed,
or that such transcript or narrative statement is already a part
of the trial court record.
(C)
Upon the filing of a complete record for purposes of an appeal,
the clerk of the court of appeals shall serve upon all parties to
the appeal notice as required by App.R. 11(B). Simultaneously with
serving said notice upon the parties, the clerk shall forward a
copy of the notice to the Court of Appeals at 1001 Reinartz Blvd.,
Middletown, Ohio 45042 (See Form 3 – suggested App.R.
11(B) Notice). Service of the App.R. 11(B) notice shall begin
the time for filing the appellant's brief as set forth in the scheduling
order (see Loc.R. 7).
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Rule
6ACCELERATED
CALENDAR.
Pursuant
to App.R. 11.1, this court hereby adopts an accelerated calendar,
which shall be administered as follows:
(A)
Each appellant and cross-appellant when filing the docket statement
required by Loc.R. 4, and each appellee within ten
(10) days thereafter, may request that the case be placed on the
court's accelerated calendar. Based upon a review of the docket
statement and pursuant to App.R. 3(G), the court may issue a scheduling
order accelerating the appeal. The court in its discretion may
sua sponte assign or remove any appeal from the accelerated
calendar at any stage of the proceedings.
(B)
Counsel for the party not requesting acceleration may, within ten
(10) days after journalization of the scheduling order accelerating
the appeal, file a motion requesting that the appeal be removed
from the accelerated calendar. The motion shall be supported by
a memorandum setting forth good cause for such request.
(C)
Cases typically considered appropriate for assignment to the accelerated
calendar include the following:
(1)
Cases where:
a.
No transcript of proceedings is required.
b.
Length of the transcript is such that preparation time will
not be a source of delay, or the transcript has already been
prepared in connection with objections to a magistrate's
decision or otherwise.
c.
The record was made in an administrative hearing and filed with
the trial court.
(2)
Criminal cases involving:
a.
Crim.R. 11 challenge.
b.
Revocation of community control or failure to impose community
control.
c.
Crim.R. 29 or weight of the evidence challenge, especially
if a lesser crime is involved.
d.
Routine OVI or other minor traffic offense.
e.
Expungement.
(3)
Civil cases involving:
a.
Administrative appeal.
b.
Action on an account.
c.
Slip and fall.
d.
Civ.R. 60(B) motion.
e.
Simple contract action.
f.
Minor negligence action.
(D)
All briefs filed in a case that has been accelerated shall conform
to the appellate rules and the local rules of this court as to form
and content; however, such briefs shall not exceed fifteen (15)
pages excluding table of contents and appendices. The appellant
shall serve and file a brief within fifteen (15) days of the date
on which the record is filed. The appellee shall serve and file
a brief within fifteen (15) days after service of the brief of the
appellant. Reply briefs may be filed within five (5) days after
service of the brief of the appellee and shall not exceed five (5)
pages in length.
(E)
Total extensions granted to either party on a case on the accelerated
calendar shall not exceed seven (7) days.
(F)
Pursuant to App.R. 11.1(E), the court may state the reasons for its
finding on each assignment of error in brief and conclusory form.
The parties should expect to receive only a judgment entry instead
of an opinion or decision. If an opinion or decision is desired the
accelerated calendar should not be requested or placement on the
accelerated calendar should be objected to within 10 days.
(G)
All cases placed on the accelerated calendar shall be so designated
following the case number on the caption of each brief, pleading
or other paper filed in the case.
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Rule
7SCHEDULING
ORDER.
Upon
receipt of the notice of appeal and docket statement, the court will issue a scheduling
order of events with respect to the appeal. The scheduling order
will be modified only upon written motion establishing good cause
or pursuant to Loc.R. 22(D) [Prehearing Mediation Conference Procedure].
An unexcused failure to comply with the scheduling order in any
respect may result in dismissal of the appeal. No scheduling order
will be issued on appeals from orders denying bail (see Loc.R. 23).
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Rule
8STAYS;
BAIL; SUSPENSION OF EXECUTION OF SENTENCE.
All
motions for stay, motions for bond pending appeal and motions for
suspension of execution of sentence pending appeal shall be made
in the first instance in the trial court as required by App.R. 7
and 8. If any such motion is denied by the trial court, it may
be made in the court of appeals. Service shall be made upon all
other parties, and absent exigent circumstances, the motion will
be decided in accordance with Loc.R. 13.
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Rule
9COUNSEL.
(A)
Every notice of appeal, pleading, motion and brief filed shall have
typed or printed thereon the name, Ohio Supreme Court registration
number, address, telephone and/or cell phone number, and e-mail address of all counsel (or parties,
if not represented by counsel). Where a party is represented
by more than one counsel, or by a firm of attorneys, one counsel
shall be designated as having primary responsibility for the appeal.
Counsel so designated shall be responsible for conducting the appeal,
including the filing of briefs and other memoranda, oral argument,
and receipt of notices and pleadings from the court and all other
parties.
(B)
Counsel seeking to withdraw shall, with a written application showing
good cause, submit proof of service of the notice of withdrawal
upon the client, and the name and address of any substitute counsel,
or, if none, the name and address of the client.
(C)
In cases where appointment of appellate counsel is necessary, such
appointment shall be sought in the first instance in the trial court.
(D)
Admission of an out-of-state attorney pro hac vice will be allowed only
following compliance with Gov.Bar R. XII, Rules for the Government of the Bar
promulgated by the Supreme Court of Ohio. Prior to being granted permission
to appear pro hac vice, the attorney shall have applied for registration with the
Supreme Court Office of Attorney Services, paid the annual registration fee and
been issued a certificate of pro hac vice registration. A motion for admission
pro hac vice shall briefly and succinctly state the qualifications of the
attorney seeking admission and comply with the requirements of Gov.Bar R. XII. It
shall be filed with the first pleading or brief in which the attorney
seeks to participate or at least thirty (30) days before oral argument
if the attorney seeks only to participate in oral argument. The
court may withdraw admission pro hac vice at any time.
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Rule
10FILING
OF THE RECORD.
(A)
If a transcript of proceedings is to be filed in accordance with
App.R. 9(B), a copy of the notice of appeal with praecipe shall
be served by the appellant upon the court reporter. The appellant
is responsible for contacting the court reporter and ordering the
transcript of proceedings, and filing the transcript with the clerk
of the trial court in accordance with App.R. 9(B). The court reporter
shall comply and prepare those portions of the record enumerated
in the praecipe, subject to being made secure in the payment of
fees by the party who ordered the transcript.
(B)
If a statement of evidence or agreed statement is to be filed in lieu of a transcript
pursuant to App.R. 9(C) or (D), the statement of evidence or agreed statement approved
by the trial court shall be filed with the clerk of the trial court
within the time permitted for transmission of the
record pursuant to the scheduling order. A Loc.R. 5 notice shall
not be filed with the clerk of the court of appeals if a statement
of evidence or agreed statement will be filed pursuant to App.R. 9(C) or (D).
(C)
Extensions of time by trial court and court of appeals.
(1)
The appellant is responsible for causing timely transmission
of the record and for obtaining such extensions as are necessary
to discharge this responsibility. The appellant shall file
with the clerk of the court of appeals a copy of any extension
obtained from the trial court.
(2)
The trial court shall not extend the time for transmitting the
record beyond eighty (80) days after the filing of the notice
of appeal, and the court of appeals will not recognize an order
of the trial court purporting to do so. Extensions of time for
transmitting the record beyond the eightieth day may be granted
only by the court of appeals.
(3)
See Loc.R. 14 for additional requirements applicable
to motions for extension of time.
(D)
The transcript of proceedings or Loc.R. 5 notice shall be filed
with the clerk of the court of appeals of the county from which
the appeal is being taken. No filings of any nature can be made
at the court's central office in Middletown.
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Rule
11BRIEF.
(A)
Form. An original brief and three copies shall be filed and shall
be stapled once in the upper left corner. It is not necessary or desirable
to enclose any brief in a paper or plastic cover or binder. Carbon
copies are not acceptable without prior permission of the court.
Typewritten copies must appear on opaque, unglazed paper and text shall appear on only one side of each page.
Briefs prepared with word processing software must use a minimum font size of 12.
Briefs prepared using other typewriting equipment shall use characters equivalent in size. The front
cover of every brief filed shall include the name, address, Ohio
Supreme Court registration number, telephone and/or cell phone number, and e-mail address of all counsel,
or parties if not represented by counsel. Citations to authority shall appear
in the body of the brief, not in footnotes.
(1)
References to the Record. Suggested abbreviations for
transcript of the proceedings and transcript
of docket, journal entries and original papers are T.p.
and T.d. respectively. Where documents are relied
upon which consist of more than one page, citations shall be to
the document number assigned by the clerk of courts in preparing
the transcript of docket and journal entries followed by the page
number integral to the document, e.g., "defendant's
deposition, T.d. 10, p. 50."
(2)
Contents of Brief. The briefs of the appellant and the appellee shall consist of six (6) parts satisfying
App.R. 16 as follows:
(a) Table
of Contents, including Table of Cases,
Statutes
and Authorities and Assignments of
Error
and Issues Presented for Review
(b)
Statement of the Case (Procedural Posture)
(c)
Statement of Facts
(d) Argument
(e) Conclusion
(f) Appendix
(3)
Length of Brief. The initial and answer briefs of the parties
shall not exceed twenty (20) pages, exclusive of the table of
contents, table of cases and authorities, assignments of error
and issues presented for review, and appendix. Text shall appear
on only one side of each page and the pages shall
be numbered in a manner such that the court can easily determine
the length of the brief filed. No brief may be filed which exceeds
such limitations except by permission of the court. Application
for such permission shall be made by motion specifying the
number of extra pages required and the reason why the extra pages
are required.
Reply briefs shall be restricted to matters in
rebuttal of the answer brief, and shall not exceed ten (10) pages,
exclusive of the table of contents, lists of authorities, and
appended material except by permission of the
court.
Amicus curiae briefs filed pursuant to App.R. 17 shall not exceed
twenty (20) pages in length without leave of court.
Briefs in accelerated calendar cases shall
not exceed fifteen (15) pages; accelerated calendar reply briefs shall not exceed five (5) pages. See Loc.R. 6(D).
(B)
Substance.
(1)
Table of Contents. The principal function of the table
of contents is to list and index the assignments of error and
issues presented for review. The table of contents shall also
serve as, and consist of, a combined index of the table of authorities
with page references to each item listed. Indented as numbered
subparagraphs under each assignment of error shall be the issues
presented for review applicable to that assignment. The authorities
cited in support of each assignment of error shall be set out
in alphabetical order in another indented subparagraph. For
the form of the assignments of error and issues, see Form 4.
The appellee may recast or substitute issues to demonstrate
the absence of error.
(2)
Statement of the Case; Statement of Facts. App.R. 16(A)(5)
and (6) pertaining to statement of the case and statement of facts
may be complied with in this court by stating the case in two
sections, i.e., procedural posture and statement of facts.
There should be no inconsistency between the statement of the
case and the stated actions of the lower court set forth in the
argument portion of the brief.
The
procedural posture, including a statement of the relevant procedural
history and status of the litigation and the relief sought, shall
be succinctly set out and should rarely require more than one
paragraph. Normally, a chronology of the events leading to
the complaint or commencement of trial is neither necessary nor
desired. The purpose is to convey a digest of those relevant,
necessary, and essential procedural events critical to the appeal
accurately describing "the course of proceedings and ***
disposition *** below." App.R. 16(A)(5).
The
statement of facts shall consist of a recitation of those portions
of the record which support the appellant's contentions, and shall
contain citations to the record as necessary. See Section (A)(1) above.
(3)
Argument. The argument shall comprise the main body of the
brief, and shall be organized consistently with the assignments
of error and issues presented for review set forth in the table
of contents. See Section (B)(1) above. The assignments
of error and issues presented for review shall be fully set forth
verbatim as in the table of contents. The argument under each
assignment of error and issue shall be organized accordingly.
Each
assignment of error shall assert precisely the matter in which
the trial court is alleged to have erred, e.g., THE
TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO SUPPRESS
HIS CONFESSION FROM EVIDENCE. An assignment of error shall
not be set forth as a proposition of law as envisioned by Rule
V of the Rules of Practice of the Supreme Court of Ohio. Such
a statement is wholly inappropriate at this appellate level.
Assignments of error filed by an appellee pursuant to R.C. 2505.22
shall be filed with the appellee's brief in response to the assignments
of error raised in the appellant's brief.
The
argument portion of the brief shall include citations to the portion
of the record before the court on appeal wherein the lower court
committed the error complained of, e.g., "The trial
court erred in overruling plaintiff-appellant's motion for summary
judgment (T.p. 25)," or "(opinion and entry, T.d. 50,
p. 3)."
(4)
Conclusion. The conclusion shall briefly summarize the
argument and state the precise relief sought on appeal.
(C)
Citations. All citations to cases in briefs
or memoranda shall be in the format set forth in the most recent edition of the
Supreme Court of Ohio Writing Manual with the following
exceptions: Ohio cases shall recite the volume and page of the official
Ohio report (where available), and the Ohio Supreme Court web citation
(where available), but not the parallel Northeastern Reporter citation, e.g.,
State v. Watkins, 99 Ohio St.3d 12, 2003-Ohio-2419; Barnett v. Beagen Homes Invests. L.L.C., 180 Ohio App.3d 272,
2008-Ohio-6756 (12th Dist.). Citations to United States Supreme Court cases shall appear with citations to United
States Reports and parallel citations to the United States Supreme Court Reporter, e.g., Paul
v. Davis, 424 U.S. 693, 96 S.Ct. 1155 (1976), rehearing denied, 425 U.S. 985, 96 S.Ct. 2194 (1977).
(D)
Appendices.
(1)
Every appellant's or cross-appellant's brief shall have attached
thereto a copy of the following:
(a)
The final appealable entry or order;
(b)
All entries or orders which are the basis of any assigned error;
(c)
All trial court, magistrate or arbitration decisions or opinions
explaining the basis for an entry or order in either (a) or
(b);
(d)
All ordinances, local rules and regulations that are in themselves
dispositive of an assignment of error or are to be given consideration
in connection with any assignment of error.
(2)
A cross-appellant's or appellee's brief should not include these items if they
are the same as those attached to the appellant's brief. If
any of these documents are handwritten and not clearly legible,
a typed copy must be attached in addition to the handwritten copy.
(E)
Supplemental Authority. If counsel wishes to present or call
the court's attention to additional authorities not discussed in
the briefs, a notice of supplemental authority shall be filed
with the court and served upon opposing counsel at the earliest
possible opportunity. Absent exceptional circumstances, a notice
of supplemental authority shall be filed only when counsel could
not, with due diligence, have been aware of the additional authority
at the time the brief was filed.
(F)
Place of Filing. All briefs shall be filed with the clerk
of the court of appeals for the county from which the appeal is
being taken. Briefs cannot be filed at the court's central office
in Middletown. If the brief is fax-filed, three (3) hard copies shall
be mailed to the clerk.
(G)
Failure to Comply. Failure to comply with the requirements
of this rule may result in the brief or notice of supplemental authority
being stricken on motion or sua sponte, and/or dismissal
of the appeal.
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Rule
12ORAL
ARGUMENT.
(A)
Request for Oral Argument. No oral argument will be heard
on any appeal unless requested by counsel for either party. Oral
argument may be requested within the time provided for filing of the
appellant's reply brief. A request for oral argument may be
made on the cover of a brief or by a separate pleading. If any party fails to appear to present oral argument,
the court shall hear argument on behalf of the opposing party, if
present. The court in its discretion may require oral argument
in any case.
(B)
Length of Oral Argument. Oral argument shall be limited
to fifteen (15) minutes per side. In those cases where counsel
deems additional time for argument is needed, counsel shall file
a motion no later than fifteen (15) days prior to argument
requesting the additional time setting forth the grounds
upon which the additional time is sought. Any party opposing such motion
shall file a response within ten (10) days.
(C)
Supplemental Authority. A notice of supplemental authority
may be filed prior to argument as provided by App.R. 21(H) and Loc.R.
11(F).
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Rule
13MOTIONS
AND MEMORANDA.
(A)
Content. All motions must be in
writing. All motions must be served upon opposing counsel, or upon the opposing party if not represented
by counsel, and filed with proof of service with the clerk of the court of appeals. Every motion shall
set forth in detail the relief requested, and shall be accompanied
by a memorandum setting forth the reasons and authorities that
support granting the requested relief. Every motion and response
shall have typed or printed thereon the name, Ohio Supreme Court
registration number, address, telephone and/or cell phone number, and e-mail address of counsel, or
the party filing the motion or response if not represented by counsel.
Any party opposing a motion shall file a written response within
ten (10) days or as otherwise permitted by the court or the Ohio
Rules of Appellate Procedure.
(B)
Number of Copies/Place of Filing. The original and one additional copy of all motions and memoranda shall be filed with the
clerk of the court of appeals in the county from which the appeal is being taken. No filings of any nature can be made at the
court's central office in Middletown.
(C)
Oral Argument. All motions will be ruled upon without oral
argument, except where the court requests such argument and notifies
counsel to appear.
(D)
Filing by Facsimile or Other Electronic Transmission. The
filing of pleadings not requiring a security deposit pursuant to Loc.R. 2
may be accomplished by telephonic facsimile or other
electronic transmission in compliance with the local rules of the
clerk of the court of appeals for the county where the appeal is
pending.
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Rule
14EXTENSIONS
OF TIME.
(A)
Except as provided in Loc.R. 22(D) [Prehearing Mediation Conference],
applications to the court of appeals for extensions of time to file
briefs and other motions and memoranda shall be made by written
motion and supported by a memorandum which sets forth facts demonstrating
good cause for the extension. Motions for extensions of time filed after the time sought to be
extended has expired will generally not be granted.
(B)
All motions for extension of time shall state whether the court
has previously granted the movant an extension of time in the case,
and the length of the extension of time that was previously granted.
(C)
See Loc.R. 10(C) for additional requirements regarding
extensions of time for transmitting the record.
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Rule
15FAILURE
TO PROSECUTE.
The following shall be
deemed good cause for dismissal of an appeal pursuant to App.R.
3(A), 11(C), or 18(C):
(A)
Failure to file a docket statement as required by Loc. R. 4.
(B)
Failure to file with the notice of appeal the appropriate filings
required by App.R. 9(B).
(C)
Failure to timely order in writing from the court reporter any
necessary transcript of proceedings, or to timely file any necessary
statement of evidence or agreed statement pursuant to App.R. 9(C) or (D), or a notice
that no transcript or narrative statement will be filed as required
by Loc.R. 5.
(D)
Failure to cause the record on appeal to be timely transmitted
to the clerk of this court.
(E)
Failure to timely file a brief and assignments of error presented
for review.
(F)
Any other non-compliance with the appellate rules or the rules of
this court.
For any
failure to comply with the appellate rules of procedure or the rules of
this court, the court may, at its discretion, dismiss the appeal or
issue a show cause order directing the party to show cause for the failure
to comply.
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Rule
16JUDGMENT
ENTRIES; RECONSIDERATION.
(A)
Decisions of the court will be announced by way of a judgment entry,
usually accompanied by an opinion or decision.
(B)
Pursuant to App.R. 26 (A), applications for reconsideration in
appeal cases may be filed within ten (10) days after the judgment
entry is filed. Pursuant to S.Ct.Prac.R. 2.2(A)(5)(b), a timely
application for reconsideration tolls the time for filing an appeal to the supreme
court.
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Rule
17MOTIONS
TO CERTIFY.
Motions
to certify to the supreme court because of conflict with a judgment
of another court of appeals upon the same question shall be filed
within ten (10) days after the journal entry of judgment is filed
with the clerk in accordance with App.R. 25(A). The motion to certify
shall set forth specifically the rule of law upon which the alleged
conflict between the two judgments exists, stated in such form that
it can be readily incorporated in a journal entry in the event the motion is granted. App.R. 25, App.R. 15
and Loc.R. 13 shall apply to motions to certify and
memoranda in support and opposition.
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Rule
18EN BANC
CONSIDERATION.
(A)
Scope of Review. The court shall consider an appeal en banc
in accordance with App.R. 26(A)(2) and the procedures set forth in that rule.
(B)
Request for En Banc Consideration. App.R. 26(A)(2) governs
parties' applications for en banc consideration. The parties must
strictly comply with the time limits of App.R. 26(A)(2) for filing
an application, an opposing brief, or a reply brief. The application
and opposing brief shall not exceed 10 pages. The reply brief shall
not exceed five pages. The parties shall file an original and three
copies of the application, opposing brief, or reply brief.
(C)
Contents of the Application. An application for en banc consideration
shall (a) disclose the dispositive point of law upon which the panel's
decision conflicts with the decision of another panel of this court; (b)
specifically cite the conflicting authority and the point of law stated
therein that conflicts with the present case; and (c) explain why en banc
consideration is necessary to secure and maintain uniformity throughout
the district.
(D)
Procedure. The administrataive judge or magistrate may summarily
dismiss any application for en banc consideration that does not comply with
the requirements of App.R. 26(A)(2) and this local rule. If a majority of
the court votes to consider a case en banc, the administrative judge shall
call an en banc conference at the earliest convenient date, which may be at
the next regularly scheduled administrative conference. Additional briefing
and/or oral argument will be permitted only at the court's request. A decision
reached by a majority of the en banc court will be binding upon the whole court.
In the event a majority of the judges of the court are unable to concur in a
decision, the decision of the original panel shall remain the decision in the case.
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Rule
19PRESIDING
JUDGE.
(A)
The presiding judge of this court shall be elected by a majority
vote of the judges of this court to serve for a term of one calendar
year. The election shall be made no later than December 31st of
the preceding calendar year. A presiding judge may succeed himself
or herself in that position. A judge who holds office by appointment
to fill a vacancy may not serve as the presiding judge.
(B)
The presiding judge shall preside over all court sessions and meetings
of the court en banc. In court sessions where the elected presiding
judge is not a member of the three-judge panel, the administrative
judge shall serve as the presiding judge. The presiding judge
shall also serve as the administrative judge in the absence or disability
of the administrative judge. In the absence of the presiding judge
and the administrative judge, the available judge who is senior
in service on the court shall perform the duties of the presiding
judge.
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Rule
20ADMINISTRATIVE
JUDGE.
(A)
The administrative judge of this court shall be elected by a majority
vote of the judges of this court to serve for a term of one calendar
year. The election shall be made no later than December 31st of
the preceding calendar year. An administrative judge may succeed
himself or herself in that position. A judge who holds office by
appointment to fill a vacancy may not serve as the administrative
judge.
(B)
The administrative judge shall be responsible for supervising the
administration, docket and calendar of the court. The administrative
judge shall rule upon all requests for extension of time and other
motions and matters to be handled by a single judge. The administrative
judge may refer any such motion or matter to a magistrate or three-judge panel.
The administrative judge shall also assist the presiding judge in
the performance of his or her duties, and shall serve as the presiding
judge during the absence or disability of the presiding judge.
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Rule
21ORIGINAL
ACTIONS.
(A)
How Instituted. An original action, other than habeas corpus
which shall be governed by the provisions of R.C. Chapter 2725,
shall be instituted by the filing of a complaint, together with
three copies thereof. Service shall be made by the clerk and
such action shall proceed as any civil action under the Ohio Rules
of Civil Procedure. Original actions shall be filed with the clerk
of the court of appeal for the county in which the action is filed.
No original action or subsequent motions, memoranda or briefs will
be accepted for filing at the court's central office in Middletown.
(B)
Deposit for Costs. A deposit for costs in an original action
and for subpoenas issued shall be paid as set forth in Loc.R. 2.
(C)
Alternative Writs. In the absence of extraordinary circumstances,
no alternative writ will be issued in an original action, other
than a habeas corpus action.
(D)
Motion to Dismiss. When a motion to dismiss is filed, an original and
one copy of a brief in support of the motion shall be filed with
the motion, and the movant shall indicate whether ruling on the
motion will dispose of the merits.
(E)
Memorandum in Opposition to Motion to Dismiss. An original and one
copy of a memorandum in opposition to a motion to dismiss shall
be filed within fifteen (15) days of the filing of such motion
with an indication whether ruling on the motion will dispose of
the merits.
(F)
Oral Argument on Motion to Dismiss. All motions will be
ruled upon without oral argument before the court, except where
the court requests such argument.
(G)
Presentation of Evidence. Unless consent of the court is
otherwise obtained, the evidence in all original actions, except
actions in habeas corpus, shall be submitted to the court by means
of an agreed statement of facts, or stipulations, or depositions;
oral testimony will not be heard. The evidence in actions in habeas
corpus shall be similarly submitted whenever practicable.
(H)
Time for Briefs. The petitioner's brief shall be filed within
fifteen (15) days after completion of the presentation of evidence
pursuant to Section (G); the respondent's brief shall be filed within
fifteen (15) days thereafter; a reply brief may be filed by the
petitioner within ten (10) days after the filing of the respondent's
brief.
(I)
Service of Copy of Brief. Service of a copy of any brief
shall be made upon opposing counsel or the opposing party if not represented by counsel
forthwith, and proof of service shall be filed with the clerk.
(J)
Briefs. Briefs shall conform to App.R. 19 and Loc.R. 11 except as described below.
The brief of the petitioner shall contain, under appropriate headings and in the following order:
(1)
A table of contents, with page references, and a table of cases,
alphabetically arranged, statutes and other authorities cited,
with references to pages of the brief where they are cited.
(2)
A statement of the issues presented.
(3)
A statement of the case and a statement of the facts. The statement
of the case shall indicate briefly the nature of the case. A
statement of the facts relevant to the issues presented shall
follow.
(4)
An argument. The argument shall include the contentions of
the petitioner with respect to the issues presented and the reasons
therefor with citations to the authorities and statutes relied
on.
(5)
A short conclusion stating the precise relief sought.
(6)
The brief of the respondent shall conform to the foregoing requirements,
except that a statement of the issues, a statement of the case
and/or a statement of the facts relevant to the issues need not
be made unless the respondent is dissatisfied with the statements
made by the petitioner.
(K)
Election Matters. Because of the necessity of promptly
disposing of original actions relating to pending elections, and
in order to give the court adequate time for full consideration
of such cases, if an original action relating to a pending election
is filed within ninety (90) days prior to the election, answer
day shall be five (5) days after service of summons and the brief
of the petitioner must be filed within five (5) days after the filing
of the answer. The respondent's brief must be filed no later than
five (5) days after the filing of the petitioner's brief. The petitioner
may file a reply brief within three (3) days after the respondent's
brief is filed. Only in exceptional cases will time be extended,
even if counsel for all parties consent.
(L)
Oral Argument. In any original action in this court, oral
argument may be had only on approval of a request therefor, provided
that the court may, if it so desires, request oral argument in any
case. A request for oral argument shall be made by any
party in writing at any time prior to the filing of the petitioner's
reply brief. The party having the affirmative shall have the right
to open and close the argument and the right to divide the allotted
time as desired. Time provided for oral argument shall be as detailed
in Loc.R. 12(B).
(M)
Referral to Magistrate. Original actions may be referred to a magistrate
pursuant to Civ.R. 53. Unless otherwise indicated in the order
of reference, the magistrate shall have all powers specified in
Civ.R. 53, and the proceedings and report of the magistrate and
objections thereto shall be governed by Civ.R. 53.
(N)
Dismissal for Want of Prosecution. Unless all evidence is
presented and the petitioner's brief is filed within four (4) months
after the filing of the complaint, an original action shall be dismissed,
after notice to counsel for record, for want of prosecution, unless
good cause is shown to the contrary.
(O)
Filing by Facsimile. The filing of pleadings that do not require a security
deposit may be accomplished by telephonic facsimile transmission or other
electronic transmission in compliance with the local rules of the clerk of the
court of appeals for the county where the original action is pending.
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Rule
22PREHEARING
MEDIATION CONFERENCE PROCEDURE.
Pursuant
to App. R. 20, this court hereby adopts the following prehearing
mediation conference procedure, applicable only to civil and administrative
appeals and original actions filed in this court.
(A)
Requesting and Scheduling a Prehearing Mediation Conference.
The court shall review the required docket statement filed
pursuant to Loc. R. 4 or complaint filed pursuant to Loc. R. 20
to determine whether a prehearing mediation conference would be
of assistance to the parties or the court. If a prehearing mediation
conference is deemed advisable, the court shall notify the parties
of the date, time and location of the prehearing mediation conference.
In
addition, any party may request a prehearing mediation conference
by contacting the conference attorney or by written motion to the
court. Such requests may be made confidentially if the requesting party desires.
Such requests shall be submitted as soon as possible after
initiation of the appeal. Requests for a prehearing mediation
conference may or may not be granted by the court.
(B)
Purposes and Procedure of Prehearing Mediation Conference.
The prehearing mediation conference shall be held with the
court’s conference attorney. Conferences conducted in person shall
be subject to the attendance requirements of Section (C) of this rule. Follow-up conferences
may be conducted, attended either in person or by telephone, as
directed by the court. The primary purposes of the prehearing
mediation conference are: (1) to explore settlement possibilities
through mediation, (2) to simplify the issues in the appeal or original
action if settlement is not possible, and (3) to address any anticipated
procedural problems. Additionally, any other matters that the
conference attorney determines may aid in handling the disposition
of the proceedings will be considered.
It
is desirable to hold the prehearing mediation conference before
the parties incur additional expense. Therefore, the court will
make every effort to schedule the prehearing mediation conference
before the transcript of proceedings is to be filed or
before the appellant’s brief is due if no transcript of proceedings
is to be filed. Because this is not always possible, the parties
are cautioned that the scheduling of a prehearing mediation conference
does not automatically stay the time in which the transcript
of proceedings or briefs must be filed.
(C)
Attendance. Unless otherwise instructed by the court, the following
persons shall attend the prehearing mediation conference in person:
counsel, the parties necessary for full settlement authority including
insurance adjustors, and litigants not represented by counsel. "Counsel,"
for purposes of this rule, means the attorney with primary responsibility
for the case and upon whose advice the party relies. Persons excused in
advance by the court from attending in person shall be available by
telephone during the scheduled conference.
(D)
Extension of Time to File Record and Briefs. If a prehearing
mediation conference is scheduled after the date the record is to
be transmitted or after a brief is to be filed, the affected party
may telephone the court’s conference attorney and request that the
court issue a sua sponte order extending the time in which
to transmit the record or file the brief. Requests for extensions
may also be made orally at the prehearing mediation conference.
Thereafter, such requests may be made by telephone; however, the
court may require the request be made by written motion pursuant
to App. R. 10 or 14 and Loc. R. 10 or 14. In all instances, the
request shall be made prior to the time sought to be extended has expired
and shall indicate whether any other party opposes the request for extension.
Requests for extension made pursuant to this section may be granted if
the court deems it would facilitate settlement.
(E)
Privilege and Confidentiality. The privilege and confidentiality
provisions of the Uniform Mediation Act, R.C. Chapter 2710, apply to all
prehearing mediation conferences. Mediation communications shall be
privileged and therefore shall not be disclosed
by the conference attorney or by the parties and shall not be used
by the parties when presenting or arguing the case. Mediation
communications shall also be confidential unless all parties and
the conference attorney consent to disclosure.
(F)
Prehearing Mediation Conference Order. At the
conclusion of the prehearing mediation conference, a judge or magistrate, upon
recommendation of the conference attorney, may enter an order setting
forth the actions taken based on the agreements reached by the parties.
Such order shall govern the subsequent course of proceedings, unless
modified by the Court.
(G)
Noncompliance Sanctions. Failure to comply with the provisions
of this rule or any order of the court relating to a prehearing
mediation conference may result in dismissal of the proceeding
or assessment of such costs as may be attributable to noncompliance
including, but not limited to, attorney fees and court costs.
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Rule
23
APPEAL OF ORDER DENYING BAIL.
Appeals
taken from orders denying bail pursuant to R.C. 2937.222(D)(1) shall
be expedited as follows:
(A)(1)
The appellant shall complete the record on appeal and file a brief
as quickly as possible after filing a timely notice of appeal.
(See [D] below.) No scheduling order will be issued, and the filing
of the appellant's brief shall serve as notice that the record on
appeal is complete. The brief may be filed in the form of a memorandum
to the court, shall not exceed fifteen (15) pages and shall contain
at least one assignment of error. A copy of the trial court's order
denying bail shall be attached.
(2)
The appellee's brief shall not exceed fifteen (15) pages and shall
be filed within ten (10) days of the date that the appellant's brief
is filed. The appellee may supplement the record, if necessary, on or before
the date the appellee's brief is filed. If the appellee supplements
the record, the appellant may file a reply brief, no more than five
(5) pages in length, within five (5) days of the date the appellee's
brief is filed.
(B)
Oral argument will not be held unless requested by either party
on or prior to the date the appellee's brief or appellant's reply
brief is due for filing or ordered by the court. Oral argument
will be expedited by the court.
(C)
The decision issued by the court may be in the form of an accelerated
calendar entry as contemplated by App.R. 11.1 and Loc.R. 6.
(D)
If the appellant's brief is not filed within twenty (20) days after
the date the notice of appeal is filed, the appeal may be dismissed
by the court for failure of prosecution.
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Rule
24
AUTHORIZED SIGNATURES.
The
signature of any judge, magistrate or court employee on any document may be
executed manually or by means of any device or machine, including electronic
signature or signature stamp. No document shall be signed for any judge,
magistrate or court employee manually or by means of any device or machine,
including electronic signature or signature stamp, without first obtaining
permission indicating the intention of the signer to authenticate the
signature and the document. (Effective 7-13-2015).
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Rules
25-26RESERVED.
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Rule
27EFFECTIVE
DATE AND APPLICABILITY.
These
rules shall take effect May 1, 2014. They shall govern all proceedings
in actions brought after they take effect and all further proceedings
in actions then pending, except to the extent that, in the opinion
of the court, their application in a particular action pending when
these rules take effect would not be feasible or would work an injustice.
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