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{¶ 31} I concur in the judgment affirming the lower court's decision solely because the lower court order for which this appeal was filed (a temporary order) is, on its face, not a final appealable order. General. Acc. Ins. Co. v. Insurance Co. ofNorth America (1989) 44 Ohio St.3d 17, 19; Route 20 BowlingAlley, Inc. v. Mentor (Sep. 30, 1993), 11th Dist. No. 93-L-010, 1993 Ohio App. LEXIS 4780 at *1 (citation omitted); The LydenCo. v. Muncipal Planning Comm. of Mentor (Sep. 17, 1993), 11th Dist. No. 92-L-193, 1993 Ohio App. LEXIS 4449, at *4 (citation omitted).
{¶ 32} This ruling should not be misinterpreted to mean that the lower courts and parties can unilaterally decide when the filing of a notice of appeal divests a lower court of jurisdiction to proceed.
{¶ 33} Generally, the filing of a notice of appeal invokes the jurisdiction of this court, see R.C.
2505.04 ; TransamericaIns. Co. v. Nolan (1995),72 Ohio St.3d 320 ,322 , and divests the trial court of jurisdiction to proceed in the case. Daloiav. Franciscan Health Syst. of Cent. Ohio, Inc.,79 Ohio St.3d 98 ,101 n. 5, 1997-Ohio-402; Westbay v. Westbay (Jun. 26, 1998), 11th Dist. No. 97-T-0069, 1998 Ohio App. LEXIS at *14;Bishop v. Bishop (Jun. 9, 2000), 11th Dist. Nos. 98-P-0055 and 98-P-0080, 2000 Ohio App. LEXIS 2523 at *18.{¶ 34} In most cases, once this court's jurisdiction is invoked, only this court can determine the validity of the appeal. Nolan,
72 Ohio St.3d at 322 . Neither trial courts, nor parties can unilaterally decide the validity of a notice of appeal. Allowing trial courts and parties the unilateral right to make such a decision would erode the power of this court and introduce instability to the appellate process.{¶ 35} In the vast majority of cases, when the validity of an appeal is challenged, the correct procedure is for the appellee to file a motion to dismiss. See e.g., Columbus v. Adams (Jun. 14, 1983), 10th Dist. Nos. 83AP-305, 83AP-306, 83AP-307, 83AP-308, 83AP-415, 83AP-416, 83AP-417, 83AP-421, 83AP-448, 83AP-449, 1983 Ohio App. LEXIS 15236, at *2.
{¶ 36} This action, however, presents an exception to the general rule, to wit: When the lower court ruling is facially not a final appealable order. In this case, the non-appealable nature of the lower court's temporary ruling is readily cognizable under R.C.
2505.02 . Under this limited circumstance, the trial court's decision to proceed was correct.
Document Info
Docket Number: Case Nos. 2003-A-0049, 2003-A-0058.
Citation Numbers: 2004 Ohio 5638
Judges: CYNTHIA WESTCOTT RICE, J.
Filed Date: 10/22/2004
Precedential Status: Non-Precedential
Modified Date: 4/18/2021