Sirak v. Sirak

[Cite as Sirak v. Sirak, 2011-Ohio-6150.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
NORMAN L. SIRAK, JUDGES:
Hon. William B. Hoffman, P.J.
Defendant-Appellant, Hon. Sheila G. Farmer, J.
Hon. Julie A. Edwards, J.
v.
Case No. 2011CA00123
ELEANOR SIRAK ET. AL.,
Plaintiff-Appellees. OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Probate
Court, Case No. 210978
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: November 28, 2011
APPEARANCES:
For Defendant-Appellant For Plaintiff-Appellees
NORMAN L. SIRAK, PRO SE NICHOLAS I. ANDERSEN
4035 Cinwood Street N.W. Arenstein & Andersen Co. LPA
Massillon, Ohio 44646 5131 Post Road, Suite 350
Dublin, Ohio 43017
Stark County, Case No. 2011CA00123 2
Hoffman, P.J.
{¶ 1} Defendant-appellant Norman L. Sirak appeals the May 25, 2011 Pre-trial
Order issued by the Stark County Probate Court. Plaintiff-appellee is Eleanor Sirak.
STATEMENT OF THE CASE
{¶ 2} Appellee filed an action seeking to have the trial court declare her will,
dated January 26, 2011, valid pursuant to R.C. 2107.081, et seq. Appellant, the son of
Appellee, was named a defendant in that action.
{¶ 3} Appellant filed an answer, counterclaim and cross-claim.
{¶ 4} The trial court conducted a pretrial conference on May 25, 2011. No
recording was made of the pretrial. However, both parties to this appeal represent in
their briefs to this Court Appellant orally requested1 the trial court require certain
discovery be had regarding a medical examination of Appellee and other legal
documents. Appellant asserts the trial court orally denied his request and “… issued a
Pre-Trial Order denying Defendant Norman Sirak authority to conduct an expert medical
examination…and further denied Defendant Norman Sirak authority to conduct
discovery…”. Appellant’s Brief at p. 1.
{¶ 5} It is from the May 25, 2011 Pre-Trial Order, Appellant prosecutes this
appeal, assigning as error:
{¶ 6} “I. R.C. § 2107.084(A) STIPULATES THAT A PROBATE COURT CAN
DECLARE A WILL VALID IF, AFTER CONDUCTING A HEARING, IT FINDS THAT
THE TESTATOR HAD THE REQUISITE TESTAMENTARY CAPACITY AND
FREEDOM FROM UNDUE INFLUENCE. DEFENDANT NORMAN SIRAK
1
Appellant did not file a written request or motion for discovery.
Stark County, Case No. 2011CA00123 3
CHALLENGED PLAINTIFF ELEANOR SIRAK’S TESTAMENTARY CAPACITY AND
FREEDOM FROM UNDUE INFLUENCE. THE PROBATE COURT ERRED WHEN IT
REFUSED TO GRANT DEFENDANT NORMAN SIRAK AUTHORITY TO CONDUCT
THIS MEDICAL EXAMINATION BY AN EXPERT PHYSICIAN, EVEN THOUGH THIS
REQUEST WAS MADE IN WRITING AND VERBALLY AT EVERY AVAILABLE
OPPORTUNITY, INCLUDING A REQUEST DIRECTED TO JUDGE PARK IN PERSON
DURING THE COURSE OF THE MAY 25, 2011 PRE-TRIAL HEARING.
{¶ 7} “II. R.C. § 2108.083 CONTAINS TWO COMMANDS. FIRST, IT STATES
THAT A HEARING ON THE VALIDATION OF A WILL SHALL BE ADVERSARY IN
NATURE. SECOND, IT STIPULATES THE FORMALITIES TO BE OVSERVED IN A
WILL VALIDATION HEARING BY CITING R.C. § 2721.10, WHICH STATES THAT AN
ISSUE OF FACT IS TO BE TRIED IN THE SAME MANNER AS ISSUES OF FACT
ARE TRIED AND DETERMINED IN OTHER CIVIL ACTIONS. THE PROBATE COURT
ERRED WHEN IT REFUSED TO GRANT DEFENDANT NORMAN SIRAK AUTHORITY
TO ISSUE SUBPOENAS AND CONDUCT DISCOVERY SO THAT HE COULD
LEGALLY PROVE THE AVERMENTS IN HIS ANSWER, CROSS-CLAIM AND THIRD
PARTY COMPLAINT, EVEN THOUGH THIS REQUEST WAS MADE IN WRITING AT
EVERY AVAILABE OPPORTUNITY, INCLUDING A WRITTEN SUBMISSION TO
JUDGE PARK PERSONALLY JUST PRIOR TO THE PRE-TRIAL HEARING.”
{¶ 8} We dismiss this appeal for want of a final appealable order. Appellant
himself characterizes this appeal as “interlocutory”. Appellant’s Brief at p. 1. We have
reviewed the entry being appealed, and find it is an interlocutory order.2 Furthermore,
2
A copy of the Pre-Trial Order is attached hereto and incorporated herein.
Stark County, Case No. 2011CA00123 4
from our review of that order, we find it does not mention, let alone prohibit, Appellant
from requesting or pursuing discovery. It is fundamental a court speaks only through its
journal.
{¶ 9} Because we find the order being appealed does not constitute a final
appealable order, we dismiss this appeal for want of jurisdiction.
By: Hoffman, P.J.
Farmer, and Edwards, JJ., concur.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
Stark County, Case No. 2011CA00123 5
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
NORMAN L. SIRAK, :
:
Defendant-Appellant, :
:
v. : JUDGMENT ENTRY
:
ELEANOR SIRAK ET AL., :
:
Plaintiff-Appellees. : Case No. 2011CA00123
For the reason stated in our accompanying Opinion, this appeal is dismissed.
Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS