An Appellate Lesson from the Tenth District Court of Appeals

January 11, 2017

Thompson v. Knobeloch: An Appellate Lesson, Courtesy of the Tenth District Court of Appeals

The Tenth District Court of Appeals recently decided the case of Thompson v. Knobeloch, a lawyer’s worst nightmare. Ohio appellate attorneys must take note.

This was a medical malpractice case. The lawyers for the Plaintiffs/malpractice victims did an incredible job. They won a jury verdict of $1,578,539.51 for their clients in the Franklin County Court of Common Pleas, a remarkable result in what I can only imagine must have been a very hard-fought trial. Of course, the doctor they sued filed numerous post-trial motions requesting a new trial and asking the Trial Court to set aside the jury verdict. When the Trial Court denied their motions, they appealed.

The Plaintiffs filed a “Notice of Cross Appeal” (having to do with the jury not being instructed on punitive damages). But the Court of Appeals, sua sponte (“on its own Motion,” without the Defendant even requesting it), dismissed their cross appeal. Why? Because it was filed with the clerk of the Court of Appeals, not the clerk of the Trial Court.

Rule 3(A) of the Ohio Rules of Appellate Procedure provides that a party commences an appeal

“by filing a notice of appeal with the clerk of the trial court within the time allowed by Rule 4 [which is 30 days from the date of the judgment].”

However, in the event one party files a Notice of Appeal within 30 days, Rule 4(B)(1) allows the other party(ies) 10 extra days to file their own Notice of Appeal (called a “Notice of Cross Appeal”) if case they wish to appeal some aspect of the judgment. In this case, the Plaintiffs filed a Notice of Cross Appeal but they filed it with the Court of Appeals clerk, and not with the “clerk of the trial court.” The procedural question presented is an interesting one, and one the Court of Appeals has not considered since 1939.

Several observations:

1. One interesting thing not mentioned in the decision is that in the caption of the Notice of Cross Appeal, the Plaintiffs’ attorneys wrote “IN THE COURT OF COMMON PLEAS – FRANKLIN COUNTY, OHIO – CIVIL DIVISION.” It just was technically filed with the clerk of the Court of Appeals. In many Ohio counties, the Appellate clerk is in the same exact location as the trial court clerk, which makes it confusing. Furthermore, what happened in this case could even be the result of a mistake by clerk staff or the person filing the Notice of Cross Appeal (who probably was not an attorney).

If it was filed electronically, I wonder why the Court of Appeals would even have an option for submitting, or accept, a Notice of Cross Appeal if it has to be filed in the Trial Court. Sometimes the clerk will make a phone call to counsel to inform them that a filing is being made that they cannot accept, but that must not have happened here. I truly do not think they lawyers representing the Plaintiffs should be criticized.

2. The Plaintiffs may seek further appellate review from the Supreme Court of Ohio. There is almost no precedent that is directly on point (that I was able to find). The Court of Appeals decision simply stated:

“While plaintiffs did attempt to file a notice of cross-appeal on December 8, they did so with the clerk of the court of appeals. App.R. 3(A) requires that a notice of appeal (which includes a notice of cross-appeal) “shall be taken by filing a notice of appeal with the clerk of the trial court within the time allowed by [App.R.] 4.” (Emphasis added.) Because plaintiffs’ notice of cross-appeal was filed in the wrong court, it does not comply with App.R. 3(A).”

The analysis may not be entirely clear-cut. The full language of Rule 3(A) is:

(A) Filing the notice of appeal. An appeal as of right shall be taken by filing a notice of appeal with the clerk of the trial court within the time allowed by Rule 4. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal. Appeals by leave of court shall be taken in the manner prescribed by Rule 5.

The full language of Rule 3(C)(1) is:

(C) Cross appeal. 

(1) Cross appeal required. A person who intends to defend a judgment or order against an appeal taken by an appellant and who also seeks to change the judgment or order or, in the event the judgment or order may be reversed or modified, an interlocutory ruling merged into the judgment or order, shall file a notice of cross appeal within the time allowed by App.R. 4.

As such, the Ohio Rules of Appellate Procedure differentiate between a “notice of appeal” and a “notice of cross appeal.” Rule 3(A) only states that a “notice of appeal” must be filed with the clerk of the trial court – it does not provide where a “notice of cross appeal” must be filed. Rule 3(C)(1) does not state which clerk a “notice of cross appeal” must be filed with either – it only states that it must be filed (and in a timely manner). It should also be noted that Rule 3(A) seems to refer more to how an appeal is commenced. It makes sense that the initial notice of appeal should be filed in the trial court, but there is arguably no reason why a notice of cross appeal should not be allowed to be filed directly in the court of appeals.

After all, “the filing of a notice of appeal generally divests the trial court of jurisdiction to act except over issues not inconsistent with the appellate court’s jurisdiction.” Estate of Beavers v. Knapp, 175 Ohio App.3d 758, 2008-Ohio-2023, 889 N.E.2d 181, ¶ 75 (10th Dist.). Rule 4(B)(1) uses the term “notice of appeal” to refer to a cross appeal, but, the Plaintiffs could argue, it only provides a time limit for when it must be filed by and does not state that it would have to be filed with the clerk of the trial court.

A confusing Franklin County Court of Appeals case from 1939, Harbage v. Tracy, 35 Ohio Law Abs. 59, 39 N.E.2d 212, 213 (2nd Dist.1939), may support the Plaintiffs’ position. At that time, the Court of Appeals that covered Franklin County was apparently the “Second District.” This case held:

It should be observed that this cross-appeal was not noted as filed in the Appearance Docket of the Common Pleas Court. There is no number on it which was placed there by the Clerk of Courts and apparently no number was officially given to it. In the upper right hand corner in pencil is noted No. 3027, but who placed it there or by what authority does not appear. This notice of cross-appeal, however, does bear the stamp of the Clerk of the Common Pleas Court and bears no stamp whatever of the Clerk of the Court of Appeals. So that it must be said that this appeal can not be referred to No. 3031 as distinguished from No. 3027.

It is our conclusion from the whole matter that the entry in No. 3031 should be stricken because it was not approved by any counsel for defendant, Auditor of State, who was adversely affected thereby and it was only approved by one member of this court.

While the case is confusing, it appears the cross appeal was invalidated, in part, because it was not filed with the Court of Appeals Clerk. Of course, more research would be needed because I have no clue what civil rules or appellate rules were in place at that time.

3. The Plaintiffs cannot simply request leave of Court to file a Notice of Cross Appeal out of time. While the Defendant would not be prejudiced in any conceivable way, and this would allow for fundamental fairness and adjudication on the merits, a failure to timely file a Notice of Cross appeal is jursdictional and cannot be extended. See Eyajan v. Eyajan.

Of course, it is also possible that the case will settle on the same terms it otherwise would have and we will never hear anything further. Whatever happens next, the lesson to Ohio appellate attorneys is clear.

Alex J. Durst

Alex J. Durst is a civil trial attorney with over a decade of experience handling commercial and complex civil litigation matters on behalf of clients across a wide range of industries, with an emphasis on financial services litigation and high-dollar-value breach of contract claims.

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