Ohio App. R. 4

As amended through March 13, 2024

Rule 4 - Appeal as of Right-When Taken

(A) Time for appeal.

(1) Appeal from order that is final upon its entry. Subject to the provisions of App. R. 4(A)(3), a party who wishes to appeal from an order that is final upon its entry shall file the notice of appeal required by App. R. 3 within 30 days of that entry.

(2) Appeal from order that is not final upon its entry. Subject to the provisions of App. R. 4(A)(3), a party who wishes to appeal from an order that is not final upon its entry but subsequently becomes final-such as an order that merges into a final order entered by the clerk or that becomes final upon dismissal of the action-shall file the notice of appeal required by App. R. 3 within 30 days of the date on which the order becomes final.

(3) Delay of clerk's service in civil case. In a civil case, if the clerk has not completed service of notice of the judgment within the three-day period prescribed in Civ. R. 58(B), the 30-day periods referenced in App.R. 4(A)(1) and 4(A)(2) begin to run on the date when the clerk actually completes service.

(B) Exceptions. The following are exceptions to the appeal time period in division (A) of this rule:

(1) Multiple or cross appeals. If a notice of appeal is timely filed by a party, another party may file a notice of appeal within the appeal time period otherwise prescribed by this rule or within ten days of the filing of the first notice of appeal.

(2) Civil or juvenile post-judgment motion. In a civil case or juvenile proceeding, if a party files any of the following, if timely and appropriate:

(a) a motion for judgment under Civ. R. 50(B);

(b) a motion for a new trial under Civ. R. 59;

(c) objections to a magistrate's decision under Civ. R 53(D)(3)(b) or Juv. R. 40(D)(3)(b);

(d) a request for findings of fact and conclusions of law under Civ. R. 52, Juv. R. 29(F)(3), Civ. R. 53(D)(3)(a)(ii), or Juv. R. 40(D)(3)(a)(ii);

(e) a motion for attorney fees; or

(f) a motion for prejudgment interest,

If a party files a notice of appeal from an otherwise final judgment but before the trial court has resolved one or more of the filings listed in this division, then the court of appeals, upon suggestion of any of the parties, shall remand the matter to the trial court to resolve the post-judgment filings in question and shall stay appellate proceedings until the trial court has done so. After the trial court has ruled on the post-judgment filing on remand, any party who wishes to appeal from the trial court's orders or judgments on remand shall do so in the following manner:

(i) by moving to amend a previously filed notice of appeal or cross-appeal under App. R. 3(F), for which leave shall be granted if sought within thirty days of the entry of the last of the trial court's judgments or orders on remand and if sought after thirty days of the entry, the motion may be granted at the discretion of the appellate court; or (ii) by filing a new notice of appeal in the trial court in accordance with App. R. 3 and 4(A). In the latter case, any new appeal shall be consolidated with the original appeal under App. R. 3(B).

(3) Criminal and traffic post-judgment motions. In a criminal or traffic case, if a party files any of the following, if timely and appropriate:

(a) a motion for arrest of judgment under Crim. R. 34;

(b) a motion for a new trial under Crim. R. 33 for a reason other than newly discovered evidence; or

(c) objections to a magistrate's decision under Crim. R. 19(D)(3)(b) or Traf. R. 14; or

(d) a request for findings of fact and conclusions of law under Crim. R. 19(d)(3)(a)(ii),

then the time for filing a notice of appeal from the judgment or final order in question begins to run as to all parties when the trial court enters an order resolving the last of these post-judgment filings. A motion for a new trial under Crim. R. 33 on the ground of newly discovered evidence made within the time for filing a motion for a new trial on other grounds extends the time for filing a notice of appeal from a judgment of conviction in the same manner as a motion on other grounds; but if made after the expiration of the time for filing a motion on other grounds, the motion on the ground of newly discovered evidence does not extend the time for filing a notice of appeal.

If a party files a notice of appeal from an otherwise final judgment but before the trial court has resolved one or more of the filings listed in (a), (b), or (c) of this division, then the court of appeals, upon suggestion of any of the parties, shall remand the matter to the trial court to resolve the motion in question and shall stay appellate proceedings until the trial court has done so.

After the trial court has ruled on the post-judgment filings on remand, any party who wishes to appeal from the trial court's orders or judgments on remand shall do so in the following manner:

(i) by moving to amend a previously filed notice of appeal or cross-appeal under App. R. 3(F), for which leave shall be granted if sought within thirty days of the entry of the last of the trial court's judgments or orders on remand and if sought after thirty days of the entry, the motion may be granted in the discretion of the appellate court; or (ii) by filing a new notice of appeal in the trial court in accordance with App. R. 3 and 4(A). In the latter case, any new appeal shall be consolidated with the original appeal under App. R. 3(B).

(4) Appeal by prosecution. In an appeal by the prosecution under Crim. R. 12(K) or Juv. R. 22(F), the prosecution shall file a notice of appeal within seven days of entry of the judgment or order appealed.

(5) Partial final judgment or order. If an appeal is permitted from a judgment or order entered in a case in which the trial court has not disposed of all claims as to all parties, other than a judgment or order entered under Civ. R. 54(B), a party may file a notice of appeal within thirty days of entry of the judgment or order appealed or the judgment or order that disposes of the remaining claims. Division (A) of this rule applies to a judgment or order entered under Civ. R. 54(B).

(C) Premature notice of appeal. A notice of appeal filed after the announcement of a decision, order, or sentence but before entry of the judgment or order that begins the running of the appeal time period is treated as filed immediately after the entry.

(D) Definition of "entry" or "entered". As used in this rule, "entry" or "entered" means when a judgment or order is entered under Civ. R. 58(A) or Crim. R. 32(C).

Ohio. App. R. 4

Effective:7/1/1971; amended effective 7/1/1972;7/1/1985;7/1/1989;7/1/1992;7/1/1996;7/1/2002;7/1/2009;7/1/2011;7/1/2012;7/1/2013;7/1/2014; amended April 29, 2021, effective 7/1/2021.

Staff Notes (July 1, 2014 amendments)

The amendments to App.R. 4(A) are designed to clarify confusion that can arise when the trial court enters an order that is not final when entered but becomes final as a result of merging into a subsequently entered final order or because of the dismissal of the action (e.g., under Civ. R. 41(A) ). In these circumstances, the time to appeal begins to run when the previously non-final order becomes a final order. Not all interlocutory orders will survive the voluntary dismissal of the action, and the amendment is not intended to suggest otherwise. But it does provide guidance about the time to appeal in the event that a case terminates without a final order into which a prior order can merge. The amendments to App.R. 4(A) also remove the references to "judgment or order"; this change is not substantive but merely recognizes that there is no need to use both terms, since every judgment is also a final order. See, e.g., Civ. R. 54(A); R.C. 2505.02(B)(1). The amendments also contain stylistic, non-substantive changes to accommodate the already-existing provision that extends the time to appeal when the clerk fails to complete service in a civil case under Civ. R. 58(B); that provision is now found in App.R. 4(A)(3).

The amendments to App.R. 4(B)(2)(e) and 4(B)(2)(f) clarify that a timely and appropriate motion for attorney fees or prejudgment interest suspends the time to appeal. The Supreme Court has held that the pendency of such a motion deprives a trial-court judgment of finality. See Miller v. First Intl. Fid. & Trust Bldg., Ltd., 113 Ohio St.3d 474, 2007-Ohio-2457, 866 N.E.2d 1059 (prejudgment interest); Intl. Bhd. of Elec. Workers, Loc. Union No. 8 v. Vaughn Indus., L.L.C., 116 Ohio St.3d 335, 2007-Ohio-6439, 879 N.E.2d 187 (attorney fees). But trial courts often enter judgment before parties file these types of post-trial motions, and during the window of time between the entry of that judgment and the filing of one of these motions, one of the parties may choose to appeal from an order that appears to be final at the time it was entered. The current amendments are designed to avoid the jurisdictional and procedural uncertainty that results from this situation. Now, the appellate court has the authority to remand the matter for a ruling on the post-judgment motion, rather than dismissing the appeal. Also, the reference to R.C. 2323.42 was deleted from App.R. 4(B)(2)(3); that reference suggested that only motions for attorney fees made under that statute suspend the time to appeal. The current amendment provides that any timely and appropriate motion for attorney fees and prejudgment interest suspends the time to appeal, regardless of the legal authority for the motion.

Staff Notes (July 1, 2013 Amendments)

The amendments to App. R. 4(B)(2)(d) and App. R. 4(B)(3)(d) clarify that a proper and timely request to the trial court for findings of fact and conclusions of law defers the running of the time to appeal in all circumstances in which the rules permit such a request. That general concept was reflected in the prior rule, but the amendments reference additional provisions of the civil, juvenile, and criminal rules that authorize parties to request findings of fact and conclusions of law.

Staff Notes (July 1, 2012 Amendments)

The amendment to App.R. 4(B)(3) now provides that the pendency of timely objections to a magistrate's decision in a criminal or traffic case suspends the running of the time to appeal, just as they do in civil and juvenile cases under App.R. 4(B)(2). Note that in both cases the suspension matters only if the trial court has entered judgment before the objections to the magistrate's decision are filed; if the trial court has not yet entered judgment, then the 30-day period to appeal from that judgment obviously does not start to run in the first instance.

Staff Note (July 1, 2011 amendment)

Some of the amendments to App. R. 4(B)(2) are technical and grammatical, designed to accommodate the different kinds of post-judgment filings that serve as exceptions to the 30-day time to appeal that otherwise applies under App. R. 4(A). The references in App. R. 4(B)(2)(c), to Civ. R. 53(D)(3)(b) and Juv. R. 40(D)(3)(b), were changed to refer to the appropriate Civil Rule and Juvenile Rule provisions governing the timing of objections to magistrates' decisions in civil and juvenile cases.

The addition of subsection (e) to App. R. 4(B)(2) is designed to avoid the confusion that can result over the finality of a judgment in a civil action based upon a medical claim, dental claim, optometric claim, or chiropractic claim if a party subsequently files a timely motion for attorneys' fees under R.C. 2323.42. See, e.g., Ricciardi v. D'Apolito, 7th Dist. No. 09 MA 60, 2010 -Ohio-1016, at ¶12-13; see, also, id. at ¶20 (DeGenaro, J., concurring).

New language has been added to both App. R. 4(B)(2) and App. R. 4(B)(3) to resolve confusion in the courts of appeals about the finality of a judgment and the proper disposition of an appeal if a party files a notice of appeal before all proper and timely post-trial filings are resolved or if a party makes a timely post-trial filing after the notice of appeal if filed. Some courts have held that the trial court judgment is not final while a proper post-judgment filing is pending and have, accordingly, dismissed the appeal. See, e.g., Dragway 42, LLC v. Kokosing Constr. Co., 9th Dist. No. 09CA 0008, 2009 -Ohio-5630, at ¶6; In re Talbert, 5th Dist. No. CT 2008-0031, 2009 -Ohio-4237, at ¶20-22. Others have held that the judgment is final but that the case should be remanded to the trial court to rule on the motions. See, e.g., Stewart v. Zone Cabof Cleveland, 8th Dist. No. 79317, 2002-Ohio-335, at 6. The rule now adopts the latter view and also establishes a procedure for the parties to bring into the appeal the trial court's subsequent rulings on the post-judgment filings.

Staff Note (July 1, 2002 Amendment)

Appellate Rule 4Appeal as of Right-How Taken
Appellate Rule 4(B)(4) Exceptions: Appeal by prosecution

The July 1, 2002, amendment to Appellate Rule 4 corrected two errors. First, in App. R. 4(B)(4), a cross-reference was changed from Criminal Rule 12(J) to Criminal Rule 12(K), which was necessitated by an amendment to Criminal Rule 12 that was effective July 1, 2001.

Second, in App. R. 4(D), a cross-reference was changed from Criminal Rule 32(B) to Criminal Rule 32(C), which was necessitated by an amendment to Criminal Rule 12 that was effective July 1, 1998.

No substantive amendment to Appellate Rule 4 was intended by either amendment.