[Cite as Sirak v. Sirak,

.]

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