[Cite as Sirak v. Sirak, 2011-Ohio-6150.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

NORMAN L. SIRAK, 

 Defendant-Appellant, 

v. 

ELEANOR SIRAK ET. AL., 

 Plaintiff-Appellees. 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. Sheila G. Farmer, J. 

Hon. Julie A. Edwards, J. 

Case No. 2011CA00123 

O P I N I O N 

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