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Quirk v. Quirk

Court of Appeals of Ohio, Eleventh District, Lake

June 12, 2017

JAMES QUIRK, Plaintiff-Appellee,
v.
JEFFREY QUIRK, et al., Defendant-Appellant.

         Civil 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 Plaintiff-Appellee).

          Ron M. Graham, Prosecutor, Painesville Police Department, (For Defendant-Appellant).

          MEMORANDUM OPINION

          TIMOTHY P. CANNON, J.

         {¶1} On March 8, 2017, appellant, Jeffrey Quirk, filed an appeal from a Lake County Court of Common Pleas' judgment entry.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} R.C. 2505.02(B) states that:

         {¶6} "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:

         {¶7} "(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;

         {¶8} "(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment;

         {¶9} "(3) An order that vacates or sets aside a judgment or grants a new trial;

         {¶10} "(4) An order that grants or denies a provisional remedy and to which ...


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