Rule 3 Appeal of Right – How Taken

(A) Filing the notice of appeal An appeal of right from a trial court to a court of appeals may be taken only by filing a notice of appeal with the clerk of the trial court within the time allowed by Rule 4. The appellant must attach to the notice of appeal a time-stamped copy of the judgment or order from which the appeal is taken.

Each court of appeals may also, by local rule, require the filing of a docketing statement with the notice of appeal.

An Appellant’s failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but the court of appeals may take any action that the court considers appropriate, including dismissing the appeal.

Appeals by permission of the court of appeals may be taken only in the manner prescribed by App.R. 5.

(B) Joint or consolidated appeals When two or more persons are entitled to appeal from a judgment or order of a trial court, and their interests make joinder practicable, they may file a joint notice of appeal or may join in an appeal after filing separate timely notices of appeal, and they may then proceed on appeal as a single appellant. Appeals may be consolidated by the court of appeals acting on its own or on a motion or stipulation from a party or parties.

(C) Cross appeals

(1) When notice of cross-appeal required Whether or not an appellee intends to defend an order on appeal, an appellee who seeks to change the order—or, should the order be reversed or modified, seeks to change an interlocutory ruling that would be merged into the order—must file a notice of cross appeal with the clerk of the trial court within the time allowed by App.R. 4. The clerk of the trial court must then process the notice of cross-appeal in the same manner as the notice of appeal.

(2) When notice of cross appeal not required; cross-assignment of error never required A party intending to defend an order appealed by an appellant on a ground other than that relied on by the trial court but who does not seek to change the order is not required to file a notice of cross-appeal or to raise a cross-assignment of error.

(D) Contents of the notice of appeal or cross-appeal The notice of appeal or cross-appeal must (1) specify the party or parties taking the appeal by naming each one in the body of the notice or by using terms such as “all plaintiffs,” “the defendants,” “plaintiffs A, C, and D” or “all defendants except ___;” (2) designate the judgment—or the order or the part of it—from which the appeal is taken; and (3) name the court to which the appeal is taken. The title of the case will stay the same as in the trial court, with the designation of the appellant added, as appropriate. Form 1 in the Appendix of Forms is a suggested form of a notice of appeal.

(E) Service of the notice of appeal or cross-appeal The party or parties filing any notice of appeal or cross-appeal must serve that notice in accordance with App.R. 13(D), but, for purposes of this rule, the references to “the clerk” in App.R. 13(D)(5) and App.R. 13(D)(7), refer to the clerk of the trial court. Service is sufficient despite the death of a party or a party’s counsel.

(F) Duties of the clerk of the trial court and the clerk of the court of appeals when a notice of appeal or cross-appeal is filed When a notice of appeal or cross-appeal is filed, the trial court clerk must promptly send a copy of that notice and a copy of the docket—together with a copy of all filings by the appellant or cross-appellant under App.R. 9(B)—to the clerk of the court of appeals named in the notice. The clerk of the trial court must note on the copy of the notice of appeal or cross-appeal the date when that notice was filed. Failure of the trial-court clerk to send a copy of the notice to the clerk of the court of appeals does not affect the validity of the appeal or cross appeal.

When the clerk of the court of appeals receives from the clerk of the trial court a copy of a notice of appeal, the clerk of the court of appeals must assign a case number to the appeal and must enter the case on the docket in accordance with App.R. 11(A). Any notice of cross-appeal in the same case must be docketed under a new case number rather than being assigned the same number as the notice of appeal. The date when the notice of appeal and any cross-appeal was filed with the clerk of the trial court must be noted on the docket of the case in the court of appeals by the clerk of the court of appeals.

The clerk of the court of appeals must promptly send to the clerk of the trial court a notice informing the trial-court clerk about the assigned case number for any new appeal or cross- appeal from that clerk’s trial court.

Once any notice of appeal or cross-appeal has been docketed by the clerk of the court of appeals, that clerk must also promptly send to all counsel and to any unrepresented parties in the case a copy of the notice of appeal or cross-appeal. Each copy—or a notice accompanying each copy—must indicate the date when the notice of appeal or cross-appeal was filed with the clerk of the trial court as well as the case number that the clerk of the court of appeals has assigned to the appeal or cross-appeal. The clerk of the court of appeals must note on the case docket the date when this step is completed and the names of all counsel or unrepresented parties to whom any copies have been sent.

(G) Amendment of the notice of appeal or cross-appeal

(1) When permission required A party may amend a notice of appeal or cross-appeal without seeking permission from the court of appeals if the time to appeal from the order that was the subject of the initial notice of appeal has not yet lapsed under App.R. 4. Thereafter, the court of appeals within its discretion may allow the amendment of a notice of appeal or cross appeal, but no amendment that would allow a party to appeal from a trial court order beyond the time requirements of App.R. 4 is permitted.

(2) Where filed Any amended notice of appeal or cross-appeal must be filed in both the trial court and the court of appeals.

(H) Docketing statement for accelerated and expedited appeals

(1) If a court of appeals has adopted an accelerated calendar by local rule under App.R. 11.1, the appellant must file with the clerk of the trial court a docketing statement as well as the notice of appeal. (See Form 2, Appendix of Forms.)

The purpose of the docketing statement is to assist the court in determining whether an appeal should be assigned to the accelerated or the regular calendar.

A case may be assigned to the accelerated calendar if any of the following apply:

(a) No transcript is required (e.g., summary judgment or judgment on the pleadings);

(b) The length of the transcript is such that its preparation time will not be a source of delay;

(c) An agreed statement is submitted in lieu of the record;

(d) The record was made in an administrative hearing and filed with the trial court;

(e) All parties to the appeal approve an assignment of the appeal to the accelerated calendar; or

(f) The case has been designated by local rule for the accelerated calendar.

The court of appeals by local rule may assign a case to the accelerated calendar at any stage of the proceeding. The court of appeals may provide by local rule for a hearing before a full panel to assist it in determining whether the appeal should be assigned to the accelerated calendar.

Upon motion of the appellant or appellee for a procedural order under App.R. 15(B) filed within seven days after a case is placed on the accelerated calendar, a case may be removed for good cause from the accelerated calendar and assigned to the regular calendar. Demonstration of a unique issue of law that will be of substantial precedential value in the determination of similar cases will ordinarily be good cause for transfer to the regular calendar

(2) If the appeal is expedited under App.R. 11.2, the appellant must file a docketing statement with the clerk of the trial court with the notice of appeal indicating the category of case under App.R. 11.2 and the need for priority disposition.