475 N.E.2d 187 | Ohio Ct. App. | 1984
Lead Opinion
Plaintiffs-appellees' motion for an award of attorney fees for a frivolous appeal, pursuant to App. R. 23, is not well-taken.
A frivolous appeal under App. R. 23 is essentially one which presents no reasonable question for review. While an appeal which is brought from an order which is not final and appealable pursuant to R.C.
Moreover, the agreed judgment entry filed on February 15, 1984, which rendered the appeal moot, did not render the appeal frivolous under App. R. 23. The notice of appeal was filed before the entry of the agreed judgment, and it is reiterated that there has been no determination that there was no reasonable question for review at the time the appeal was commenced. While appellants should have sought the dismissal of this appeal at the time of the entry of the agreed judgment, they did not contest appellees' motion to dismiss, and in fact filed their own motion to dismiss on March 15, 1984. Thus, it is evident that appellees' expenses incurred in seeking the dismissal of this appeal could have been avoided had appellees' counsel communicated with counsel for appellants prior to the preparation of appellees' motion to dismiss.
For the foregoing reasons, appellees' motion for attorney fees incurred in seeking the dismissal of this appeal is not well-taken, and is overruled.
Motion for attorney fees overruled.
WHITESIDE and NORRIS, JJ., concur. *227
Concurrence Opinion
An appeal from an order which is not appealable may be insufficient on its face, which is one of the definitions of frivolous. See Brown v. Lamb (1960),
One exception is where the question of appealability is reasonably debatable, necessitating the filing of an appeal to determine the issue of appealability.
Another exception is where the appeal is prematurely filed after decision but before judgment, which, pursuant to App. R. 4(A), becomes an appeal only upon filing of the judgment, even though the clerk of the trial court may erroneously process the appeal. This appears to be the situation here if the order is not appealable. The notice of appeal was filed on February 7, 1984, without specifying the order appealed from as required by App. R. 3(C), but was filed the day after an entry entered February 6, 1984. If that entry was either interlocutory or in effect only a decision, the clerk of the trial court erroneously prematurely processed the appeal. There is no indication that appellants insisted upon immediate processing of a premature appeal.
R.C.