Norwalk MK. Inc. v. McCormick

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[Cite as Norwalk MK. Inc. v. McCormick, 2006-Ohio-2120.] IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT HURON COUNTY Norwalk MK., Inc. d.b.a. Kasper Chevoret Buick Court of Appeals No. H-05-026 Trial Court No. CIV 0401535 Appellee v. Darlyss H. McCormick Appellant DECISION AND JUDGMENT ENTRY Decided: April 24, 2006 ***** William W. Owens, for appellee. Thomas J. Stoll, for appellant. ***** PER CURIAM {¶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 1. 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. Peter M. Handwork, J. _______________________________ JUDGE Mark L. Pietrykowski, J. Arlene Singer, P.J. CONCUR. _______________________________ JUDGE _______________________________ JUDGE This decision is subject to further editing by the Supreme Court of Ohio's Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court's web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6. 2.

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