Talbott v. Fountas

Reilly, J. 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. 2505.02 is subject to dismissal for lack of jurisdiction, it is not frivolous within the provision of App. R. 23. When dismissal occurs for lack of a final appealable order, there has been no consideration of the merits of the case, and hence there is no basis for a finding that no reasonable question was presented for review. 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 ap-pellees’ counsel communicated with counsel for appellants prior to the preparation of appellees’ motion to dismiss. For the foregoing reasons, ap-pellees’ 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.