Ohio App. R. 9

As amended through March 13, 2024

Rule 9 - The Record on Appeal

(A) Composition of the record on appeal; recording of proceedings.

(1) The original papers and exhibits thereto filed in the trial court, the transcript of proceedings, if any, including exhibits, and a certified copy of the docket and journal entries prepared by the clerk of the trial court shall constitute the record on appeal in all cases.

(2) The trial court shall ensure that all proceedings of record are recorded by a reliable method, which may include a stenographic/shorthand reporter, audio-recording device, and/or video-recording device. The selection of the method in each case is in the sound discretion of the trial court, except that in all capital cases the proceedings shall be recorded by a stenographic/shorthand reporter in addition to any other recording device the trial court wishes to employ.

(B) The transcript of proceedings; discretion of trial court to select transcriber; duty of appellant to order; notice to appellee if partial transcript is ordered.

(1) Except as provided in App. R. 11.2(B)(3)(b), it is the obligation of the appellant to ensure that the proceedings the appellant considers necessary for inclusion in the record, however those proceedings were recorded, are transcribed in a form that meets the specifications of App. R. 9(B)(6).

(2) Any stenographic/shorthand reporter selected by the trial court to record the proceedings may also serve as the official transcriber of those proceedings without prior trial court approval. Otherwise, the transcriber of the proceedings must be approved by the trial court. A party may move to appoint a particular transcriber or the trial court may appoint a transcriber sua sponte; in either case, the selection of the transcriber is within the sound discretion of the trial court, so long as the trial court has a reasonable basis for determining that the transcriber has the necessary qualifications and training to produce a reliable transcript that conforms to the requirements of App. R. 9(B)(6).

(3) The appellant shall order the transcript in writing and shall file a copy of the transcript order with the clerk of the trial court.

(4) If no recording was made, or when a recording was made but is no longer available for transcription, App. R. 9(C) or 9(D) may be utilized. If the appellant intends to present an assignment of error on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the weight of the evidence, the appellant shall include in the record a transcript of proceedings that includes all evidence relevant to the findings or conclusion.

(5) Unless the entire transcript of proceedings is to be included in the record, the appellant shall file with the notice of appeal a statement, as follows:

(a) If the proceedings were recorded by a stenographic/shorthand reporter, the statement shall list the assignments of error the appellant intends to present on the appeal and shall either describe the parts of the transcript that the appellant intends to include in the record or shall indicate that the appellant believes that no transcript is necessary.

(b) If the proceedings were not recorded by any means, or if the proceedings were recorded by non-stenographic means but the recording is no longer available for transcription, or if the stenographic record has become unavailable, then the statement shall list the assignments of error the appellant intends to present on appeal and shall indicate that a statement under App. R. 9(C) or 9(D) will be submitted.

The appellant shall file this statement with the clerk of the trial court and serve the statement on the appellee.

If the appellee considers a transcript of other parts of the proceedings necessary, the appellee, within ten days after the service of the statement of the appellant, shall file and serve on the appellant a designation of additional parts to be included. The clerk of the trial court shall forward a copy of this designation to the clerk of the court of appeals.

If the appellant refuses or fails, within ten days after service on the appellant of appellee's designation, to order transcription of the additional parts, the appellee, within five days thereafter, shall either order the parts in writing from the reporter or apply to the court of appeals for an order requiring the appellant to do so. At the time of ordering, the party ordering the transcript of proceedings shall arrange for the payment to the transcriber of the cost of the transcript of proceedings.

(6) A transcript of proceedings under this rule shall be in the following form:

(a) The transcript of proceedings shall include a front and back cover; the front cover shall bear the title and number of the case and the name of the court in which the proceedings occurred;

(b) The transcript of proceedings shall be firmly bound on the left side;

(c) The first page inside the front cover shall set forth the nature of the proceedings, the date or dates of the proceedings, and the judge or judges who presided;

(d) The transcript of proceedings shall be prepared on white paper eight and one-half inches by eleven inches in size with the lines of each page numbered and the pages sequentially numbered;

(e) An index of witnesses shall be included in the front of the transcript of proceedings and shall contain page and line references to direct, cross, re-direct, and re-cross examination;

(f) An index to exhibits, whether admitted or rejected, briefly identifying each exhibit, shall be included following the index to witnesses reflecting the page and line references where the exhibit was identified and offered into evidence, was admitted or rejected, and if any objection was interposed;

(g) Exhibits such as papers, maps, photographs, and similar items that were admitted shall be firmly attached, either directly or in an envelope to the inside rear cover, except as to exhibits whose size or bulk makes attachment impractical; documentary exhibits offered at trial whose admission was denied shall be included in a separate envelope with a notation that they were not admitted and also attached to the inside rear cover unless attachment is impractical;

(h) No volume of a transcript of proceedings shall exceed two hundred and fifty pages in length, except it may be enlarged to three hundred pages, if necessary, to complete a part of the voir dire, opening statements, closing arguments, or jury instructions; when it is necessary to prepare more than one volume, each volume shall contain the number and name of the case and be sequentially numbered, and the separate volumes shall be approximately equal in length;

(i) An electronic copy of the written transcript of proceedings should be included if it is available;

(j) The transcriber shall certify the transcript of proceedings as correct and shall state whether it is a complete or partial transcript of proceedings, and, if partial, indicate the parts included and the parts excluded.

(7) The record is complete for the purposes of appeal when the last part of the record is filed with the clerk of the trial court under App. R. 10(A).

(C) Statement of the evidence or proceedings when no recording was made, when the transcript of proceedings is unavailable, or when a recording was made but is no longer available for transcription.

(1) If no recording of the proceedings was made, if a transcript is unavailable, or if a recording was made but is no longer available for transcription, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection. The statement shall be served on the appellee no later than twenty days prior to the time for transmission of the record pursuant to App. R. 10 and the appellee may serve on the appellant objections or propose amendments to the statement within ten days after service of the appellant's statement; these time periods may be extended by the court of appeals for good cause. The statement and any objections or proposed amendments shall be forthwith submitted to the trial court for settlement and approval. The trial court shall act prior to the time for transmission of the record pursuant to App. R. 10, and, as settled and approved, the statement shall be included by the clerk of the trial court in the record on appeal.

(2) In cases initially heard in the trial court by a magistrate, a party may use a statement under this division in lieu of a transcript if the error assigned on appeal relates solely to a legal conclusion. If any part of the error assigned on appeal relates to a factual finding, the record on appeal shall include a transcript or affidavit previously filed with the trial court as set forth in Civ. R. 53(D)(3)(b)(iii), Juv. R. 40(D)(3)(b)(iii), and Crim. R. 19(D)(3)(b)(iii).

(D) Agreed statement as the record on appeal.

(1) In lieu of the record on appeal as defined in division (A) of this rule, the parties, no later than ten days prior to the time for transmission of the record under App. R. 10, may prepare and sign a statement of the case showing how the issues raised in the appeal arose and were decided in the trial court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented. If the statement conforms to the truth, it, together with additions as the trial court may consider necessary to present fully the issues raised in the appeal, shall be approved by the trial court prior to the time for transmission of the record under App. R. 10 and shall then be certified to the court of appeals as the record on appeal and transmitted to the court of appeals by the clerk of the trial court within the time provided by App. R. 10.

(2) In cases initially heard in the trial court by a magistrate, a party may use a statement under this division in lieu of a transcript if the error assigned on appeal relates to a legal conclusion. If the error assigned on appeal relates to a factual finding, the record on appeal shall include a transcript or affidavit previously filed with the trial court as set forth in Civ. R. 53(D)(3)(b)(iii), Juv. R. 40(D)(3)(b)(iii), and Crim. R. 19(D)(3)(b)(iii).

(E) Correction or modification of the record. If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by the trial court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated, the parties by stipulation, or the trial court, either before or after the record is transmitted to the court of appeals, or the court of appeals, on proper suggestion or of its own initiative, may direct that omission or misstatement be corrected, and if necessary that a supplemental record be certified, filed, and transmitted. All other questions as to the form and content of the record shall be presented to the court of appeals.

Ohio. App. R. 9

Effective:7/1/1971; amended effective 7/1/1977;7/1/1978;7/1/1988;7/1/1992;7/1/2011;7/1/2013;7/1/2014;7/1/2015.

Staff Note (July 1, 2015 amendment)

App. R. 9(B)(1) is amended to recognize that in expedited abortion-related appeals from juvenile courts, there is no requirement of a written transcript if there is an audio recording of the trial court proceedings. See App. R. 11.2(B)(3)(b).

Staff Note (July 1, 2014 amendment)

App.R. 9(B)(1) is amended to clarify that the appellant's duty is to make reasonable arrangements for the transcription of recorded proceedings and that the appellant does not have the ability, and thus does not have the duty, to compel a court reporter or other transcriber to meet his or her transcription obligations. That is not to suggest that an appellate court may reverse a judgment without a proper record; it simply clarifies that the appellant should not be penalized for failing to produce a timely transcript if the deficiency is outside the appellant's control. See, e.g., Camp-Out, Inc. v. Adkins, 6th Dist. No. WD-06-057, 2007-Ohio-447 (denying motion to dismiss based on missing transcript). The amendment is necessary to avoid dismissals under App.R. 11(C) arising from the failure to produce a timely transcript if the dismissal is not of the appellant's making. Cf. In re Efford, 8th Dist. No. 77747, 2000 WL 1514100, *1 (Oct. 12, 2000) ("Appellant has the duty to ensure that the record or any portions thereof that are necessary to determine the appeal are filed with the reviewing court.").

Staff Notes (July 1, 2013 Amendments)

App. R. 9 is amended to clarify that a statement of the evidence or proceedings in lieu of an unavailable transcript (under App. R. 9(C) ) or an agreed statement of the case (under App.R. 9(D) ) is available only in limited circumstances in cases originally heard by a magistrate. One of the predicates for appealing from a factual finding in cases initially heard by a magistrate is that the trial judge must have had an adequate opportunity to conduct a full review of the factual finding. That full review is not possible unless the appellant provided the trial court with an adequate description of the evidence presented to the magistrate-either through a transcript or, if a transcript is unavailable, an affidavit describing that evidence. See Civ. R. 53(D)(3)(b) (iii), Crim. R. 19(D)(3)(b)(iii), Juv. R. 40(D)(3)(b)(iii) (same;) see also Lesh v. Moloney, 10th Dist. No. 11AP-353, 2011-Ohio-6565, ¶ 12 ("Absent a transcript, the trial court had no basis to disagree with the magistrate's findings of fact."); Harris v. Transp. Outlet, 11th Dist. No. 2007-L -188, 2008-Ohio-2917, ¶ 16. Case law already provides that an appellate court will not review factual findings on appeal unless the appellant provided the trial court with that description of the evidence and that a statement under App. R. 9(C) or App. R. 9(D) does not overcome this problem. See, e.g., Trammell v. McCortney, 9th Dist. No. 25840, 2011-Ohio-6598, ¶ 9-10; Swartz v. Swartz, 9th Dist. No. 11CA 0057 -M, 2011-Ohio-6685, ¶ 10. But appellants nevertheless continue to attempt to use such statements in these circumstances, suggesting a need for more explicit guidance in the rule. On the other hand, the absence of a transcript or affidavit at the trial court level should not preclude appellate review of a legal determination, so long as the appellant complied with the objection requirements of the applicable magistrate rule. If there is a need for a record of what occurred at a hearing or trial, a statement under App. R. 9(C) or App. R. 9(D) is an acceptable record in an appeal in a case originally tried to a magistrate if the appellant does not intend to challenge factual findings and has properly objected below.

Staff Note (July 1, 2011 amendment)

The amendments to App. R. 9 are designed to strike a balance between the trial court's autonomy in determining how to record proceedings in the trial court and the appellate court's preference for official transcripts in lieu of video recordings transcribed by counsel or counsel's assistants. Under App. R. 9(A), trial courts may choose to record proceedings through the use of a stenographic/shorthand reporter, an audio-recording device, and/or a video-recording device, except in capital cases, in which a stenographic/shorthand reporter is required. Regardless of the method of recording the proceedings, a transcript is required for the record on appeal; a videotaped recording of the trial court proceedings is no longer adequate. For parties who cannot afford to have a transcript prepared, existing case law already authorizes the use of a statement of proceedings under App. R. 9(C). See State ex rel. Motley v. Capers (1986), 23 Ohio St.3d 56, 58, 23 OBR. 130, 491 N.E.2d 311.

An electronic version of the written transcript should also be included in the record under a new provision, App. R. 9(B)(6)(i).

App. R. 9(C) has been amended to reflect that the original recording of trial court proceedings may involve recording methods other than a stenographic/shorthand reporter.