On March 16, 2022, the Ohio Supreme Court dismissed the appeal in Rachel Davis v. Tammie Nathaniel, a case in which a biological aunt was seeking companionship status and visitation of her sister’s three children, who were adopted by another aunt when their mother passed away in 2013. The appeal was dismissed for lacking a final appealable order on a 6-1 vote. Justice Brunner dissented with a written opinion. Dismissals are not uncommon – the sad part is that no party raised the final appealable order issue in their briefing, and it was discussed for the first time at oral argument.

Why this matters to me

This outcome brings back some painful memories from the start of my career. I began to serve as an appellate litigator two years after clerking at the Ohio Supreme Court. When it came time for my first oral argument, I was highly prepared and ready to discuss how the Court of Appeals should affirm the default judgment in favor of my client.

And that’s exactly what I did. While my now-wife was the only spectator in the gallery, she assured me I did an excellent job. We had lunch, and I went back to the office to wait.

I waited two and a half months to get a postcard entry stating that the appeal was dismissed for lacking a final appealable order. There were claims against a defunct and non-defending entity still outstanding.

That hadn’t been discussed in the briefing! Nor the oral argument!

I had lost, but not for the reasons I had prepared for.

We went back, fixed the final appealable order issue by dismissing the claims against the defunct entity, and went through the whole thing again. This time, I won.

Beware of final appealable order issues

I have said before that the first role of appellate counsel is to determine the date that the notice of appeal must be filed by, and the second is to determine the standard of review. I probably should revise this – while the notice of appeal is still the most critical issue, at some point prior to merits briefing, counsel should determine whether or not they have a final appealable order.

frustrated woman representing lack of final appealable order

Ohio courts lack jurisdiction to review any order that is not a “final appealable order” either as a judgment, pursuant to R.C. 2505.02, or the myriad other subject matter statutes that create a final appealable order. The individual appellate districts handle this differently. Some districts have their staff attorneys review for final appealable order status as part of the case initiation. If there’s a question, they issue a show cause order and ask the counsel to speak to the issue. Others may not review at all (as happened to my first oral argument) until after the case is briefed and argued.

Staff from some appellate districts even advise being proactive if you are the appellant and have a question on the issue – encouraging the filing of a motion to determine the issue before the expense of briefing is incurred.

Looking for practice pointers in Davis v. Nathaniel

Davis is like the case in my first oral argument in that the final appealable order issue was not addressed by any parties in briefing. But, they should have been on notice of the concern. The underlying decision contained a detailed discussion of the final appealable order status, addressing the issue over three lengthy paragraphs. A motion on the issue (by the appellant or the appellee) prior to the briefing may have raised the issue to the Supreme Court’s attention.

After more than 40 oral arguments since my first aborted one, now when I assist others in preparing, I make sure that they are prepared to answer the final appealable order question with a detailed understanding of how the judgment on appeal is ripe for review. It comes up fairly regularly, even if it is not an issue in dispute between the parties. Being prepared to answer this question demonstrates a deep understanding of what’s important to the judges or justices.

Lastly, the appellant in the Davis case may wish to file a motion for reconsideration. The court dismissed the case for lacking a final appealable order without the briefing of the parties. Maybe there is more to say.

Always be ready for FAO issues

After bearing the expense of briefing and preparing for oral argument, explaining to your client that their appeal was dismissed for lacking a final appealable order is both technically and personally challenging. Being aware of these issues and forward in raising them on appeal is economically and practically prudent.

Always being prepared to answer how the issue before the court presents a final appealable order means that you are always ready to speak to an issue of primary importance to Ohio appellate judges. Reconsideration remains an option, but as always, it is an uphill battle.