The opinion
Koehler, J.,
dissenting in part. The majority has concluded that the order from which the appeal was taken is not a final appealable order under R.C. 2505.02.1 agree.
An appeal which is taken from an order which is not final and appealable pursuant to R.C. 2505.02 is subject to dismissal for lack of appellate jurisdiction. The majority has made disposition of this appeal on a jurisdictional basis and grants appellee’s motion to dismiss. I concur with the majority’s disposition on jurisdictional grounds.
Having dismissed the appeal and without any statutory or case law to support its jurisdiction to do so, the majority orders appellant to comply with the trial court’s order. There is no retained jurisdiction for this court to make such an order. In my view, App. R. 12 precludes such an order.
I must further disagree with the majority’s efforts to impose sanctions upon appellant.
Relying upon the provisions of App. R. 23, the majority finds that ap-pellee’s motion to penalize is well-taken and proposes to determine the appropriate penalty to be assessed in subsequent proceedings. App. R. 23, damages for delay, reads in its entirety as follows:
“If a court of appeals shall determine that an appeal is frivolous, it may require the appellant to pay reasonable expenses of the appellee including attorney fees and costs.”
The majority has made a judicial determination that “the instant appeal is clearly insufficient on its face.” It therefore concludes that the appeal may be considered frivolous and cites
Brown
v.
Lamb
(1960), 112 Ohio App. 116, 122 , 13 O.O. 2d 430, 433, 171 N.E. 2d 191, 196 , for the proposition that “an
appeal
may be considered frivolous if it is insufficient on its face.” The cited authority from the Court of Appeals for Lucas County considered an appeal from the court of common pleas which granted a motion to strike appellant’s complaint because it was frivolous. The opinion was directed to the trial court’s authority to strike a frivolous pleading and is irrelevant to and not analogous to the majority’s interpretation of App. R. 23. Additionally, the author has mis
*17
quoted Judge Fess, who actually wrote:
“* * * A
pleading
is called ‘frivolous’ when it is clearly insufficient on its face and does not controvert the material points of the opposite pleadings and is presumably interposed for mere purposes of delay or to embarrass the opponent.” (Emphasis added.)
Id.
The author relies generally upon 1 Whiteside, Ohio Appellate Practice (1988) 87, Section T 23.08.
The text principally deals with appeals heard and decided and the relationship of App. R. 23 and R.C. 2505.35 to appeals determined to be frivolous.
Overlooked in the text is the following at 88: “* * * [h]owever, when an appeal must be dismissed because it is taken from an order which is not final and appealable, the appeal is not frivolous within the contemplation of Appellate Rule 23.” Here Judge Whiteside footnotes
Talbott
v.
Fountas
(1984), 16 Ohio App. 3d 226 , 16 OBR 242, 475 N.E. 2d 187 . In that cause, Judge Reilly, writing for the Court of Appeals for Franklin County, with the concurrence of Judges Whiteside and Norris, stated at 226, 16 OBR at 242, 475 N.E. 2d at 188 :
“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.”
Accordingly, it is my belief that without a final appealable order this court does not have jurisdiction and is without authority to order appellant to comply with the trial court’s order, nor does this court have jurisdiction to assess a penalty against appellant for bringing a frivolous appeal.
I must dissent, not from the dismissal of the appeal or the reason therefor, but for the overreaching nature of the mandate herein.