Court of Appeals of Ohio, Eleventh District, Lake
Appeal from the Lake County Court of Common Pleas, Case No.
2014 CV 002291. Judgment: Appeal dismissed.
Jonathan H. Krol, Reminger Co., L.P.A. (For
Graham, Prosecutor, Painesville Police Department, (For
TIMOTHY P. CANNON, J.
On March 8, 2017, appellant, Jeffrey Quirk, filed an appeal
from a Lake County Court of Common Pleas' judgment entry.
The record reveals that on December 2, 2014, appellee, James
Quirk, filed a five-count complaint against appellant for
breach of fiduciary duty, breach of contract, conversion,
undue influence, and declaratory judgment. Appellee moved for
summary judgment on all of the claims in his complaint. In a
July 29, 2016 entry, the trial court granted appellee's
motion for summary judgment as to the breach of contract and
declaratory judgment claims, but denied the motion on the
other three claims.
Appellee then filed a motion for partial summary judgment.
Appellant filed a brief in opposition to the motion and a
motion to remove appellee's counsel on the grounds that
appellee's counsel became a witness to the case when he
attached an affidavit authenticating appellee's
bankruptcy to the motion for summary judgment. In an entry
dated February 15, 2017, the trial court denied
appellee's motion for partial summary judgment and also
denied appellant's motion to remove counsel. Appellant
filed the instant appeal as a result.
Under Section 3(B)(2), Article IV of the Ohio Constitution, a
judgment of a trial court can be immediately reviewed by an
appellate court only if it constitutes a "final
order" in the action. Germ v. Fuerst, 11th
Dist. Lake No. 2003-L-116, 2003-Ohio-6241, ¶ 3. If a
lower court's order is not final, then an appellate court
does not have jurisdiction to review the matter, and the
matter must be dismissed. Gen. Acc. Ins. Co. v. Ins. Co.
of N. Am., 44 Ohio St.3d 17, 20 (1989). R.C. 2505.02(B)
defines a "final order" and sets forth seven
categories of appealable judgments.
R.C. 2505.02(B) states that:
"An order is a final order that may be reviewed,
affirmed, modified, or reversed, with or without retrial,
when it is one of the following:
"(1) An order that affects a substantial right in an
action that in effect determines the action and prevents a
"(2) An order that affects a substantial right made in a
special proceeding or upon a summary application in an action
"(3) An order that vacates or sets aside a judgment or
grants a new trial;
"(4) An order that grants or denies a provisional remedy
and to which ...