Norwalk Mk. Inc. v. McCormick, Unpublished Decision (4-24-2006)

DECISION AND JUDGMENT ENTRY {¶ 1} Appellee, Norwalk MK., Inc., has filed a motion to dismiss the appeal filed by Darlyss H. McCormick alleging that it is frivolous. McCormick filed a memorandum in opposition. We find the motion not well taken.

{¶ 2} A claim of a frivolous appeal under App.R. 23 is not a grounds for dismissal of an appeal, rather, it is a basis on which the court can award sanctions against the party filing the frivolous appeal. The court cannot determine whether an appeal is frivolous prior to hearing the appeal on its merits after full briefing and review of the record. Accordingly, the court denies the motion to dismiss. Appellee can file a motion for sanctions under App.R. 23 which the court will consider at the time the case is decided on its merits.

{¶ 3} It is so ordered.

Handwork, J., Pietrykowski, J., Singer, P.J., concur.