In Re Estate of Hollingsworth ( 1989 )

This cause involves a continuing dispute over the rights to a joint and survivorship account held in the names of appellant, Charles Hollingsworth, and his late mother, Mabel E. Hollingsworth. On January 9, 1987, the Warren County Court of Common Pleas, Probate Division, found that the account should be placed into the estate of Mabel E. Hollingsworth to be distributed as an asset of the estate. However, the court subsequently reconsidered its decision and excluded the account from the inventory. Pursuant to an appeal by the executrix, appellee Garnett Gilbert, we reversed the trial court's decision and remanded the cause to the trial court with a mandate to place the account into the estate to be distributed as an asset of the estate. In re Estate of Hollingsworth (Mar. 31, 1988), Warren App. No. CA87-06-050, unreported. The Ohio Supreme Court refused to accept the case for review on August 3, 1988 (see 38 Ohio St.3d 709,533 N.E.2d 359), and denied appellant's motion for a rehearing on September 14, 1988 (see 38 Ohio St.3d 721,533 N.E.2d 1064).

Upon remand, the trial court granted a motion to compel appellant to pay over to the estate $45,325.56 plus interest from the date of death as proceeds from the account pursuant to this court's mandate of March 31, 1988. Appellant refused to pay over the money, however, and filed the instant appeal, arguing that the trial court could not compel him to pay over money which was lawfully in his possession. Appellee filed a motion to dismiss and penalize on the grounds that appellant was simply ignoring this court's previous mandate and asserting arguments that we had previously addressed.

We find appellee's motion to dismiss to be well-taken. The order from which appellant appeals is not a final appealable order under R.C. 2505.02. The trial court's order compelling appellant to pay over the money to the estate did not determine any issues or prevent a judgment. It was merely an order carrying out the judgment of this court that the money in question belonged in the estate. Accordingly, the appeal must be, and hereby is, dismissed. Appellant is ordered to pay over the $45,325.56 plus interest from date of death to the estate.

We further find appellee's motion to penalize to be well-taken. App. R. 23 allows a court of appeals to require appellant to pay reasonable expenses of the appellee, including attorney fees and costs, upon a finding that an appeal is frivolous. An appeal may be considered frivolous if it is insufficient on its face. See Brown v. Lamb (1960), 112 Ohio App. 116, 122, 13 O.O. 2d 430, 433, 171 N.E.2d 191, 196. The instant appeal is clearly insufficient on its face. Appellant is attempting to appeal an order which merely executes this court's previous mandate. It is readily apparent that this appeal represents nothing more than appellant's obstinate refusal to accept the ruling of this court and to delay execution of our mandate. Under such circumstances, sanctions are both appropriate and warranted. See 1 Whiteside, Ohio Appellate Practice (1988) 87, Section T 23.08. Therefore, pursuant to App. R. 23, we find the instant appeal to be frivolous and order appellant to pay the reasonable expenses of appellee, including attorney fees and costs. Appellee may submit evidence by way of affidavit regarding the costs, including attorney fees, incurred in this appeal, within seven days of the judgment entry herein. Appellant may submit counteraffidavits concerning the amount of reasonable attorney fees and costs within fourteen days after judgment is entered herein. This court will then make a finding of costs, including attorney fees, which will be assessed in favor of appellee against appellant.

This cause is dismissed.

Cause dismissed.

HENDRICKSON, P.J., concurs.

KOEHLER, J., dissents.