IN THE SUPREME COURT OF OHIO -

GEORGE R. WERTZ

Appellee

-vs-

GERARD TOMASIK, ET AL.

Appellant

COLUMBUS, OHIO 08-1324OHIO SUPREME COURT CASE

No.

ON APPEAL FROM THENINTH JUDICIAL DISTRICTAPPEALS CASE NO. 24013

SUMMIT COUNTY COMMONPLEAS CASE NO. 1998 CV 03008

MEMORANDUM IN SUPPORT OF JURISIDICTIONOF APPELLANT, GERARD TOMASIK, ET AL.

Michael A. Partlow (0037102)Morganstern, MacAdams, & DeVito CO., LPA623 West St. Clair Ave.Cleveland, OH 44113(216) 621-4244Fax: (216) 621-2951

Counsel for Appellant

L. Terrence Ufholz304 N. Cleveland-Massillon RoadAkron, Ohio 44333

Counsel for Appellee ^ILjEL^J

3 )!?

01.ER6( OF COURTSUM^ GO`

FOHIO

TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . ...... ... . . .. . .. .... .. ... .. ...... .. .. .. . .. .... . .. . .. . .. ... .. . .. . . .. . .. .. .... . . .....i

EXPLANATION OF WHY THIS CASE INCLUDES A SUBSTANTIALCONSTITUTIONAL ISSUE, AN ISSUE OF GREAT GENERAL AND PUBLICINTEREST . .. .. . . . .. . . ... .. . . .. . . . . ... . . .. . .. .. .. . . . ..... . .. ..... .. .. . . . .. .. ... ... .. . .. . .. . . .. ... .. ...... . . .....1

STATEMENT OF THE CASE ................................................................................3

STATEMENT OF FACTS ........................... .........................................................6

PROPOSITION OF LAW NO. I: A TRIAL COURT ORDER WHICH RESOLVES ALLCLAIMS BETWEEN THE PARTIES, GRANTS ATTORNEY FEES, THE AMOUNT OFWHICH IS TO BE DETERMINED AT A LATER DATE, AND CONTAINS "NO JUSTCAUSE FOR DELAY" LANGUAGE PURSUANT TO CIV.R. 54(B) IS NOT A FINALAPPEALABLE ORDER AS TO ANY ISSUE .............................................................8

PROPOSITION OF LAW NO. II: A TRIAL COURT ORDER WHICH GRANTSATTORNEY FEES, THE AMOUNT OF WHICH IS TO BE DETERMINED AT A LATERDATE, AND CONTAINS "NO JUST CAUSE FOR DELAY" LANGUAGE PURSUANTTO CIV.R. 54(B) IS NOT A FINAL APPEALABLE ORDER AS TO THE FACT OFATTORNEY FEES BEING GRANTED ..................................................................10

PROPOSITION OF LAW NO. III: AN APPELLATE COURT MAY NOT FIND THATAN ORDER ENTERED BY A TRIAL COURT NUNC PRO TUNC WAS IMPROPERAND INVALID WITHOUT REVERSING AND VACATING THAT ORDER ..................11

PROPOSITION OF LAW NO. IV: A TRIAL COURT ABUSES ITS DISCRETION INDENYING A MOTION FOR FAILURE TO PROSECUTE WHERE THE CASE HAS NOTPROCEEDED FOR AN EXCESSIVE AMOUNT OF TIME . .......................................13

CONCLUSION .. . . .. . ... ... .. .... . . .... .. ... ..... . . ... .. . . .. ...... . .... .. .. . . .. .. . .. .. ... .. .. ..... .. ... .. ....15

CERTIFICATE OF SERVICE . . .... . .. ... ..... .... ... ..... . . . . .. . .. . . . . . ..... .. . ...... . . .. ... .. . . ...... . . ..15

EXPLANATION OF WHY THIS CASE IS ONE OF PUBLIC OR GREATGENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONALQUESTION.

The Appellants respectfully submit that the first, second, and third Propositions of

Law present significant Constitutional issues with regard to the jurisdiction of appellate

courts to review interlocutory orders and the jurisdiction of appellate courts to issue

advisory opinions. Further, the fifth Proposition of Law presents a question of great

general interest concerning the length of time a case may languish on a trial court's

docket before being properly dismissed for failure to prosecute.

With regard to Proposition of Law No. I, as is more fully explained infra., the

Court of Appeals determined that it had no jurisdiction to review one of the issues

contained in the order appealed from based upon its conclusion that a final appealable

order concerning that issue had previously been entered and an appeal therefrom

dismissed. In so holding, the appellate court relied heavily upon the fact that the prior

order in controversy disposed of all issues between the parties, with the exception of the

amount of the attorney fee award against Appellants, and contained "no just cause for

delay" language pursuant to Civ.R. 54(B). With respect, the Appellants submit that

neither the Trial Court's judgment of July 18, 2000 nor its judgment of August 9, 2002

constituted final appealable orders due to the fact that counsel fees had been previously

been awarded and the amount of such never determined. Further, the inclusion of Civ.R.

54(B) language had absolutely no effect in this regard based upon the holding in at least

one other Ohio appellate case, to wit: McKee v. Inabnitt (Sept. 26, 2001), Adams App.

No. O1CA711, unreported, 2001-Ohio-2595. In McKee the Fourth District Court of

1

Appeals found that an order which resolves all claims except attomey fees is not a final

appealable order. In so holding, the Fourth District stated; inter alia;

Damages are part of a claim for relief, rather than separate claim in and ofitself, and therefore a determination of liability without a determination ofdamages is not a final appealable order even with the addition of Civ.R.54(B) language.

Hence, it is clear that the Ninth District's determination of the affect of Civ.R.

54(B) language in the case at bar is in conflict with that in McKee, supra and resolution

of such conflicts is one of the primary functions this Court.

Even assuming that the Ninth District's rule eventually prevails, Proposition of

Law No. II addresses a separate and distinct issue of wliether an award of unliquidated

attorney fees must be immediately appealed, despite the fact that no amount for the award

has been established. The Ninth District answered this query in the positive, as is more

fully addressed infra. However, when confronted with the same question in Bell v.

Turner, supra, the Fourth District Court of Appeals specifically ruled that an order

which grants attorney fees and does not determine the amount is not a final appealable

order, even as to the issue of whether attomey fees should be granted at all. In so

holding, the Fourth District stated;

We acknowledge that the January 11, 2005 entry contains Civ.R. 54(13)finding of "no just reason for delay." This inclusion does not, however,cure the deficiency. Civ.R. 54(B) applies to "claims" as a whole; it doesnot apply to the component parts of a claim. We recently addressed theconcept of a "claim," for purposes of that rule, as follows:

Whether reimbursement of attorney fees in the zoning matters isviewed as simply another part of that claim, or is viewed as a remedy, thefact remains that it is not a separate claim for relief and Civ.R. 54(B) doesnot apply. Moreover, it is well settled that the inclusion of Civ.R. 54(B)language does not make appealable an otherwise nonappealable order.(Citations omitted).

2

Once again a clear conflict exists. Finally, with regard to the third and fourth

Propositions of Law, significant questions concerning; (1) the jurisdiction of an appellate

court to issue an advisory opinion which finds a portion of an order to be "invalid" and

fails to issue a ruling reversing that order; (2) the length of time a case may languish on a

court's docket before being subject to dismissal for failure to prosecute. In light of these

circumstances, the Appellants respectfully submit that this Court should accept

jurisdiction of this entire matter.

STATEMENT OF THE CASE

This cause arises as an appeal from a Trial Court Order filed on November 21,

2007 wherein the Trial Court assigned a variety of judgments rendered in other cases to

this case. While said Order characterizes many of these judgments as "final Orders", a

separate Memorandum was submitted to the Ohio Ninth District Court of Appeals

explaining why the order now in question was a final appealable order.

The Appellants respectfully submit that the Order in question presented the

Appellants for the first time, with an opportunity to appeal those portions of that Order

in controversy. For clarity, the Appellants will address each prior order mentioned in the

Order now in question, in the order that they are addressed in the Order now appealed

from. However, by way of background, the Appellants respectfully submit that the

proceedings below were somewhat unusual in that the Appellants filed a Motion to

Dismiss this cause for failure to prosecute. Subsequently, Judge Spicer recused himself

from the case and it is axiomatic that all proceedings should have been then halted until

the Supreme Court appointed a new judge to handle the matter. Subsequently, the

Appellees filed a Memorandum in Opposition to the Motion to Dismiss and, additionally,

3

submitted the "Order Nunc Pro Tune" now appealed from. As is discussed below, many

of the orders referenced in the Nune Pro Tunc Order were not final judgments previously,

at least as they pertained to the Appellants.

With regard to the Trial Court's Order of July 18, 2000 in Case No. 1998 CV

03008, the Appellants did in fact appeal from that order. In Ninth District Court of

Appeals Case No. 20209, the Court reversed the judgment of the Trial Court in part,

vacated the judgment of the Trial Court, and remanded the matter to the Trial Court for

further proceedings concerning the issue of whether or not the "family gift presumption"

pertained to the facts of this case. Interestingly, it is highly questionable whether or not

the July 18, 2000 Order was in fact a final appealable order at that time since the amount

of "expenses and attorney fees" awarded remained unliquidated.

The next Order mentioned in the Order Nunc Pro Tunc in question is an Order

filed on January 2, 2001 in Probate Court Case No. G96-09-002. In that order, attorney

fees were awarded to three attorneys in the guardianship matter. Once again, the

Appellants did attempt to appeal that entry at that time. The case was assigned Summit

County Court of Appeals No. CA-20426 and in an Order filed on June 19, 2001, the

Ninth District Court found that the Appellants did not have standing to attack this award

of attorney fees since nothing in that order actually required Appellants to pay these

attorney fees and, in fact, the Appellants were not, themselves, parties to the guardianship

action.

The next order mentioned in the Order Nunc Pro Tunc is an August 9, 2002 Order

entered in Summit County Probate Case No. 1998 CV 03008, wherein the Trial Court

after the previously described remand by the Ninth District Court determined that the

4

"family gift presumption" should not be extended to the Appellants. Once again, the

Appellants perfected an appeal from this Order and the matter was assigned Summit

County Court of Appeals Case No. CA-21248. In that case, the Ninth District Court

questioned whether a final appealable order existed and Counsel for Appellants

concurred that such did not exist for several reasons. First, the Trial Court never

reinstated the previously vacated monetary judgments against the Appellants and,

consequently, that was still pending. Further, once again, the Trial Court had never

liquidated the amount of attorney fees and expenses for which the Appellants were

purportedly liable and, therefore, that appeal was ultimately dismissed. Thus, the

Appellants have never been afforded an opportunity to challenge the Trial Court's ruling

concerning the family gift presumption.

Finally, the Trial Court's Order Nunc Pro Tunc addressed an order of May 8,

2003 entered in Case No. G96-09002. Once again, that is the guardianship case and the

Appellants were not parties to that case and had no standing to challenge this order. In

fact, they were not served with a copy of such. Thus, the Appellants clearly could not

have appealed that order since the Ninth District Court of Appeals had already ruled that

Appellants lacked standing to perfect appeals in that case.

With regard to the Appellants' Third Assignment of Error, in the Brief filed with

the Ninth District Court of Appeals, on March 5, 2008, the Court held that the amount of

the attomey's fees was "invalid." On the other hand, the Court held, that with regard to

Appellants' First and Fourth Assignments of Error, the Court lacked Jurisdiction, because

a Final Appealable Order had previously been rendered and Appellants did not timely

appeal from that Order.

5

STATEMENT OF FACTS

The Trial Court did not conduct any hearing concerning the order now in question

and therefore, no transcript of such exists. Most, but not all, of the relevant facts

concerning the issues in this appeal were set forth in the trial of this matter, a transcript of

was supplemented into this Record.

The trial was held before the Magistrate for a period of two days in April, 1999.

The Magistrate first overruled the Motion of the Appellants to continue the trial to allow

the impanelment of a jury to try the two pending counterclaims of Appellants Martha and

Elaine Tomasik. The Magistrate next limited the scope of the Hearing to proof (or

rebuttal) of funds "not accounted for" from the Estate of Hedy Jurkoshek in excess of the

$171,000.00 plus the amount of funds she found to be "unaccounted for" after a Hearing

held by The Magistrate on December 18, 1998, It is important to note that the funds

transferred from the Ward's account after a fiduciary status was established and at

the advice of counsel had already been repaid, including tax reimbursement, and

such were neither the subject of this hearing or the ultimate judgment rendered.

The services of this attorney had already been terminated. The Magistrate then stated

that once the Plaintiff put on additional evidence about missing funds in excess of the

amounts she determined to be missing in December then "[Aft that point your

Defendants raise an affirmative defense of gift and then the burden shifts and they must

go forward with sufficient evidence to satisfy this court that indeed those monies were

received by gift." {Emph. Supp). Accordingly, the Magistrate allocated the burden of

persuasion that the accounts and bonds were gifts to the Appellants, all of whom were

family members of Hedy Jurkoshek's family.

6

Although there was only one Plaintiff, George Wertz, Wertz was represented by

co-counsel. On repeated occasions during the two-day trial before the magistrate, the

Magistrate allowed both co-counsel for the Plaintiff to argue points of law and evidence,

even allowing them both to object to the same proffered evidence.

Witness Sheryl Ray testified that Appellants cashed in 120 or so bonds in

December 1996, all older than five years. The bonds had a mix of addresses on them.

Some dated back to 1964. The holders of the bonds, the Appellants, did not use powers-

of-attorney because, under Federal Rules, none were needed,. Many of the bonds

indicated on their face that they were gifts to Defendants/Appellants.

All Appellants testified that Hedy Jurkoshek began giving them gifts at early

ages, at holidays, on special occasions, and the like. All Appellants testified that Hedy

and they and Cecilia were very close and spent a good deal of time with one another

while they were children. All testified that after Hedy's husband died, she relied heavily

on Cecilia and the sisters Tomasik, in particular, to help her remain in her home and to

attend to her needs.

In her decision, the Magistrate framed the issue as follows:

"The defendants assert the affirmative defense of gi........ Under the traditional

law of gifts, the person claiming the gift bears the burden of establishing by clear and

convincing evidence that the item was conveyed as a gift..."

The Magistrate then decided that: "the defendants have failed to prove that

the...payments were valid gifts from Hedy to her nieces...or that Gerard, pursuant to the

purported POA, had authority to make gifts...of bonds to himself or his siblings." She

7

then continued: "[I]f the original transfer of possession (of bonds) is alleged to be a gift,

it must properly qualify as such."

The Magistrate then determined that the four Tomasiks were liable to return

various funds from bond transactions and from account transfers because they had not

provided clear and convincing evidence that these items had been gifted to them by Hedy

Jurkoshek, presumably from 1964 to 1996.

ARGUMENT

PROPOSITION OF LAW NO. I: A TRIAL COURT ORDER WHICH RESOLVESALL CLAIMS BETWEEN THE PARTIES, GRANTS ATTORNEY FEES, THEAMOUNT OF WHICH IS TO BE DETERMINED AT A LATER DATE, ANDCONTAINS "NO JUST CAUSE FOR DELAY" LANGUAGE PURSUANT TOCIV.R. 54(B) IS NOT A FINAL APPEALABLE ORDER AS TO ANY ISSUE.

In the Court of Appeals Appellants raised the following Assignment of Error;

First Assignment of Error: The Trial Court erred as a matter of law, infmding that the family gift presumption does not apply in the case at bar.

In Support of that Assignment of Error the Appellants made the following

argument. In an entry filed on August 9, 2002, the Trial Court found that the family gift

presumption does not extend "beyond that of parent and child" and, therefore, does not

apply in the case at bar. In so holding, the trial court primarily relied upon an extremely

old case from the 8t" District Court of Appeals known as Waterworth v. Paisley (1925),

3 Ohio Law Abs. 618. In that case, the court of appeals found that the presumption does

not apply to a nephew whom the grantor is under no obligation to support. In so holding,

the court of appeals did not refer to any authority whatsoever. Since at least 1852 the

Supreme Court of Ohio has recognized that the family gift presumption could be

extended beyond parent and child or husband and wife. For example, in Creed v.

Lancaster Bank (1852), 1 Ohio St. 1, the Court recognized the presumption could be

8

extended to brothers-in-law. More recent case law in other appellate districts recognizes

and follows the broader rule established in Creed, supra. See Estate of Kelsey (2006),

165 Ohio App.3d 680. It is axiomatic that Ohio appellate courts frequently refer to the

Restatement of the Law in establishing Ohio law. In Restatement (Second) of Trusts

section 442:

"Where a transfer of property is made to one person and the purchaseprice is paid by another and the transferee is a wife, child, or other naturalobject of bounty of the person by whom the purchase price is paid, aresulting trust does not arise unless the latter manifests an intention thatthe transferee should not have the beneficial interest in the property."

In the case at bar, this is the first opportunity that the Appellants have had to

appeal this issue, since the Trial Court never previously reinstated the judgments against

the Appellants or liquidated the amount of attorneys fees or costs that they are

purportedly liable. Although the Court did not specifically distinguish between the

property in question in its prior Opinion since it was not necessary to do so, as previously

discussed the Record is clear that: (1) The Appellants were supported by the grantor in

the past with regard to their college education, etc.; (2) The bulk of the judgment against

the Appellants included bonds which were purchased for the Appellants by the grantor,

long before any type of fiduciary relationship existed by the Appellants with the grantor

and at a time when the grantor was undeniably competent to do so; and (3) The

Appellants were primary beneficiaries under the grantor's will as it existed at the time of

all transfers and gifts now in question.

In disposing of the Appellants' Assigmnent of Error Number One, the Court of

Appeals stated, inter alia;

9

Our review of the record indicates that the probate court entered a finaljudgment in this matter on July 18, 2000. That order awarded a monetaryjudgment in favor of Wertz (as the guardian of Jurkoshek), reasonableattorney fees in an amount to be determined at a later point in time,and indicated that the parties had no just reason for delay in seeking theirappeal.

The record reflects that after the trial court issued its final order as to thefamily gift presumption on August 9, 2002, the parties had a finaljudgment as to each aspect of Case No. 1998-CV-03008, with exceptionof the exact amount of attorney's fees to be awarded to Wertz asJurkoshek's guardian.... Furthermore, the trial court's July 18, 2000 ordercontained Civ.R. 54(B) language. (Citation omitted).

Appellants submit the Court of Appeals erred in finding Appellants failed

to timely file an Appeal on this issue for the reasons stated in the "Explanation"

section of this Memorandum, supra.

PROPOSITION OF LAW NO. H: A TRIAL COURT ORDER WHICH GRANTSATTORNEY FEES, THE AMOUNT OF WHICH IS TO BE DETERMINED AT ALATER DATE, AND CONTAINS "NO JUST CAUSE FOR DELAY" LANGUAGEPURSUANT TO CIV.R. 54(B) IS NOT A FINAL APPEALABLE ORDER AS TOTHE FACT OF ATTORNEY FEES BEING GRANTED.

In the Court of Appeals Appellants raised the following Assignment of Error;

Fourth Assignment of Error: The Probate Court erred in awarding attorneyfees based upon an original action for declaratory judgment.

In Support of this Assignment of Error the Appellants made the following

argument. Judgment was awarded for attorney fees in a declaratory judgment proceeding

brought under case nutnber CJ 98-03-08. Appellees filed their Motion for Attorney Fees

under the guardianship case. (Summit County Probate Number G96-09-002). In the

hearing before the Magistrate conducted on June 27, 2000, Appellees acknowledged that

the application for fees was "in direct response" to the court order entered in case number

CJ 98-03-08. (Tp. Pages 9-10).

10

Ohio Revised Code Section 2721.16, which was enacted on September 24, 1999

expressly prohibits an award of attorney's fees in such cases. Further the statute applied

to a pending proceeding. Given the enactment of O.R.C. 2721.16 which became

effective on September 24, 1999, the Probate Court's Judgment of October 5, 1999 is

void. Cf. Sheppard v. Mack (1980) 68 Ohio App.95 (addressing Civil Rule 53

procedural defects).

In denying of the Appellants' Assignment of Error Number Four, the

Court of Appeals stated, inter alia;

In their August 10, 2000 appeal, the Tomasiks only challenged the trialcourt's application of the family gift tax presumption and Jurkoshek'scompetency. They failed to challenge the court's award of attorney fees.While the Tomasilcs obviously could not have challenged the amount ofunspecified attorney fees awarded, they could have raised the argumentthat Wertz was not entitled to any fees in light of R.C. 2721.16 as theyseek to do now. Because they failed to raise this argument in their firstdirect appeal, they cannot raise it now. (Citation omitted).

Appellants submit that the Court of Appeals erred in finding Appellants

should have raised this argument in their first direct appeal for the reasons stated

in the "Explanation" section, supra.

PROPOSITION OF LAW NO. III: AN APPELLATE COURT MAY NOTFIND THAT AN ORDER ENTERED BY A TRIAL COURT NUNC PROTUNC WAS IMPROPER AND INVALID WITHOUT REVERSING ANDVACATING THAT ORDER.

In the Court of Appeals Appellants raised the following Assignment of Error;

Fifth Assignment of Error: The Trial Court violated the Appellants' DueProcess rights pursuant to the 14"' Amendment to the United StatesConstitution and Section 16, Article I of the Ohio Constitution byconducting a hearing, to which the Appellants were not parties and couldnot appeal from, wherein damages in the form of counsel fees and costswere established and then transferred by the Trial Court for collectionagainst the Appellants to a proceeding where the Appellants were parties.

11

In Support of this Assignment of Error the Appellants made the following

argument. In State v. Cowen (2004), 103 Ohio St.3d 144 the Ohio Supreme Court

explained that both the federal and state due process clauses require, at minimum; (1) an

opportunity to be heard; (2) which occurs in a meaningful time and manner; and (3)

includes appropriate procedural safeguards, such as appellate review. In the case at bar,

the Appellants' rights in this regard have clearly been violated.

After the Trial Court rendered the judgments previously discussed against the

Appellants and the Appellants appealed, the Appellees cleverly sought attorney fees in a

separate proceeding, to wit the guardianship case, so as to avoid the jurisdictional bar

presented by virtue of the pending appeal in the case at bar. It is undeniable that both the

Appellees and the Trial Court anticipated assigning any attorney fees awarded for

collection against the Appellants. Although both the Magistrate and the Trial court did

permit the Appellants to participate in the evidentiary proceedings, both the Trial Court

and the Court of Appeals ultimately held that the Appellants lacked standing to challenge

any aspect of that proceeding. Years later, once again in the guardianship case to which

the Appellants are not parties, the Trial Court assigned these judgments to the Estate of

the ward, another proceeding to which the Appellants are not parties. Years after that, the

Appellees sought to have these amounts assigned to the case at bar for collection against

the Appellants at a time when all proceedings in the case at bar were stayed due to the not

surprising fact that the initial trial judge had recused and the Ohio Supreme Court had not

yet assigned a new judge. Immediately upon being assigned the present trial judge

executed the order now in question presented by the Appellees, without waiting for the

12

Appellants time to respond to expire since such did not begin to run until the new judge

was appointed!

With respect the Appellants submit that the procedure employed in the case at bar

is both unfair and unconstitutional. It is impossible to conclude that the Appellants were

provided a meaningful opportunity to be heard on the evidence concerning attorney fees

and costs, when the trial court ultimately concluded that the Appellants lacked standing to

participate. Moreover, the outrageous nature of the "end around" which the Appellees

pursued in an effort to obtain judgments against Appellants for these fees and costs, in

proceedings to which the Appellants were not parties, is only exceeded by the Trial Court

permitting the Appelles to do so, prior to recusing himself from the case. Now, half a

decade later, the Appellants are expected to bear the burden and prosecute an appeal for

significant fees and costs awarded against thern in an appellate proceeding where it is

nearly impossible to even get the proper record before the reviewing court.

The Ninth District Court of Appeals agreed with the foregoing argument and

found that the amount of attorney fees included in the Nunc Pro Tunc Order were not

supported by the record and were "invalid." However, the Court of Appeals did not

reverse the Nunc Pro Tunc Order, in that regard. Consequently, it is extremely unclear

how the parties are to proceed.

PROPOSITION OF LAW NO. IV: A TRIAL COURT ABUSES ITSDISCRETION IN DENYING A MOTION TO DISMISS FOR FAILURETO PROSECUTE WHERE THE CASE HAS NOT PROCEEDED FOR ANEXCESSIVE AMOUNT OF TIME.

In the Court of Appeals Appellants raised the following Assignment of Error;

Sixth Assignment of Error: The Trial Court erred and abused its discretionby denying the Appellants' Motion to Dismiss this action for failure toprosecute.

13

In Support of this Assignment of Error the Appellants made the following

argument. The Appellants recognize that this Assignment of Error is closely related to

the Fifth Assignment of Error in terms of the subject matter. At the same time that it

entered the judgment now in question, the Trial Court denied the Appellants' Motion to

Dismiss this action. This Motion was based upon the fact that the Appellees and the Trial

Court took nearly half a decade to enter a final, appealable order in order to permit the

Appellants to prosecute this appeal. In fact, it was only when confronted with a Motion

to Dismiss that the Appellee sought such an order!

The Appellants also recognize that Ohio law is clear that denial or granting a

Motion to Dismiss for failure to prosecute is subject to an abuse of discretion standard of

review. See Jones v. Dillard (Dec. 7, 2006), Cuyahoga App. No. 87733, unreported,

2006-Ohio-6417. However, the Appellants respectfully submit that this standard is met

in the case at bar for all of the reason previously discussed. Clearly, the Trial Court

should have recognized that the Appellees slept upon their rights for years. It is

undeniable that a review of the Trial Court order reveals that so many different cases are

involved in that order, the bulk of which the Appellants were not even parties to, it is

impossible to assemble a cogent record for meaningful review by this court. In sum, a

review of Ohio law shows that is nearly impossible to find a reported or unreported case

where a party/plaintiff slept so long upon its rights and a Motion to Dismiss was actually

denied.

Although the Court of Appeals affirmed the denial of the Motion to Dismiss, they

did recognize that the issue as to the amount of attorney fees in controversy is still

pending and apparently will be permitted to pend forever

14

CONCLUSION

In light of the above, Appellant respectfully submits that the judgments of the

Trial Court and the Ninth District Court of Appeals are unlawful and this Court should

accept jurisdiction of this matter.

Respectfully Submitted,

Michael A. Partlow (0037102)Morganstem, MacAdams, & DeVito Co. LPA623 West St. Clair AvenueCleveland, Ohio 44113(216) 621-4244 (216) 621-2951 Fax

Counsel for Appellants

CERTIFICATE OF SERVICE

A copy of the foregoing, Memorandum in Support oj Jurisdiction, has been

served via regular U.S. Mail, postage pre-paid this ^ day of July, 2008, upon:

L. Terrence Ufholz304 N. Cleveland-Massillon RoadAkron, Ohio 44333

Counselfor Appellee,George R. Wertz, Gdn.

Michael A. Partlow (0037102)Counsel for Appellant

15

VOUI S I Vr

D,'^vlL M.STATE OF OHIO )

COUNTY OF SUMMIT'i J.)l; ^`

)

IN THE COURT OF APPEALSMNTH JUDICIAL DISTRICT

GEORGE R. WERTZ CLEriK CiF Cl RTC. A. No. 24013GUARDIAN OF ^HEDWIG M. JURKOSHEK

Appellee

V.

GERARD S. TOMASIK, et al.

Appellants

Dated: June 18, 2008

APPEAL FROM JUDGMENTENTERED IN THECOURT OF COMMON PLEASCOUNTY OF SUMMIT, OHIOCASE No. 1998 CV 03008

DECISION AND JOURNAL ENTRY

WHITMORE, Judge.

{11} Defendants-Appellants Gerard, Daniel, Elaine, and Martha Tomasik (collectively

"the Tomasiks") have appealed from the judgment of the Sununit County Court of Common

Pleas, Probate Division, finding them liable to Plaintiff-Appellee, George Wertz, the guardian of

Hedwig M. Jurkoshek's estate. This Court dismisses in part and affirms in part.

I

{T2{ This appeal involves one of the many actions pertaining to Jurkoshek, and

subsequently, her estate. During the latter half of 1996, the Tomasiks, Jurkoshek's nieces and

nephews, took various monies from Jurkoshek, including her bank account funds and various

bonds. When Jurkoshek discovered that the Tomasiks had taken these actions, she sought the

help of Attorney George Wertz. On September 4, 1996, Wertz filed an application in probate

court, asking the court to appoint him as Jurkoshek's guardian. See Probate Case No. GA-1996-

2

09-002 ("guardianship case"). On December 27, 1996, the probate court formally appointed

Wertz as Jurkoshek's guardian.

{13} On March 16, 1998, Wertz filed a declaratory judgment action in the probate

court along with an accounting, requesting each of the Tomasiks return the monies that they took

from Jurkoshek without her consent. See Probate Case No. 1998-CV-03008. As Jurkoshek's

guardian, Wertz also hired Attorneys Thomas Mullen and Philip Kauflnann to pursue a

conversion action in the Summit County Court of Common Pleas against Gerard, Martha, and

Elaine Tomasik. See Common Pleas No. 1997-CV-074518. On February 10, 1998, Martha and

Elaine Tomasik filed their answer in the common pleas conversion action and counterclaimed

against Wertz for conversion and breach of fiduciary duty. On March 17, 1998, Wertz filed a

notice of voluntary dismissal, dismissing his conversion action against Gerard, Martha, and

Elaine Tomasik. Martha and Elaine Tomasik, however, did not dismiss their counterclaims

against Wertz.

{¶4} On May 4, 1998, Martha and Elaine Tomasik answered Wertz' declaratory action

in the probate court and counterclaimed against Wertz for conversion and breach of fiduciary

duty as Jurkoshek's guardian. Daniel and Gerard Tomasik filed separate answers on May 20,

1998 and May 21, 1998, respectively. Because of the identical nature of Martha and Elaine

Tomasiks' counterclaims in the guardianship case and the common pleas conversion action, the

trial judge in the common pleas court ordered that the common pleas case be transferred to

probate court. The parties then engaged in a lengthy discovery period, partially owing to the

Tomasiks' refusal to respond to Wertz' discovery requests. On February 8, 1999, the parties

filed an agreed upon entry in which the Tomasiks acknowledged that they had failed to comply

with discovery and stipulated to any sanctions that the court might impose for this failure. The

3

parties further agreed that any sanctions would be deferred until the scheduled trial. On Apri120,

1999, the parties had a trial before the magistrate.

{¶5} On July 26, 1999, the magistrate issued her decision, awarding judgment to

Wertz. The magistrate found each of the Tomasiks liable for specific dollar amounts including

interest. The magistrate also found that Wertz, as Jurkoshek's guardian, was entitled to an award

of attorney fees because "[t]he declaratory judgment statutes *** and relevant case law ***

recognize[] the authority to access attorney fees[.]" Additionally, the magistrate reasoned that

Civ.R. 37 authorized her to award attorney fees as a sanction for the Tomasiks' failure to respond

to discovery. She awarded Wertz "all expenses and attorney fees incurred by [him] in the

recovery of [Jurkoshek's] assets." She specified that "[t]hese additional amounts shall be subject

to future determination as to reasonableness and necessity upon Motion to this Court[.]"

{¶6} On August 6, 1999, the trial court entered judgment adopting the magistrate's

decision. The court ordered the following: (1) Daniel Tomasik owed Jurkoshek's guardianship

estate $42,927.00 plus interest at 6% from December 5, 1996 ("interest"); (2) Gerard Tomasik

owed Jurkoshek's guardianship estate $42,370.00 plus $4,832.00 in withdrawal penalties plus

interest; (3) Elaine Tomasik owed Jurkoshek's guardianship estate $48,973.00 plus $40,000

"gift" and interest; (4) Martha Tomasik owed Jurkoshek's guardianship estate $48,924.00 plus

$40,000 "gift" and interest; and (5) the Tomasiks owed Wertz expenses and attomey fees. The

trial court repeated the magistrate's mandate that "[t]hese additional [expenses and attorney fees]

shall be subject to future determination as to reasonableness and necessity upon Motion to this

Court[.]"

4

{l^7} On August 31, 1999, the Tomasiks filed their objections to the magistrate's

decision.1 Wertz filed a response on September 20, 1999. On October 5, 1999, the trial court

overruled the Tomasiks' objections and reiterated the findings and conclusions of law it set forth

in its August 6, 1999 judgment entry. The Tomasiks filed their notice of appeal in this Court, but

this Court dismissed their appeal for lack of a final, appealable order. See Wertz v. Tomasik, et

al. (June 28, 2000), 9th Dist. No. 19835, at * 1(noting that the trial court failed to enter judgment

as to one of the defendants). On July 18, 2000, the trial court issued a corrected, final order,

which disposed of all the defendants, reiterated the court's judgment, and indicated that there

was no just reason for delay.

{1[8} On August 10, 2000, the Tomasiks again filed a notice of appeal, arguing that the

probate court failed to consider the family gift presumption and that Jurkoshek was not

competent to testify at trial. This Court issued its decision on February 7, 2001. See Tfertz v.

Tomasik, et al. (Feb. 7, 2001), 9th Dist. No. 20209. We found that the probate court mentioned

the family gift presumption in its judgment entry, but did not determine whether or not it applied.

Consequently, we reversed the judgment in part and remanded for the trial court to determine

whether the family gift presumption applied. We also affirmed the court's judgment in part,

finding that the probate court did not abuse its discretion in determining that Jurkoshek was

competent to testify.

{¶9} Post-remand, a different magistrate considered the evidence and found that the

family gift presumption did not apply. The Tomasiks filed their objections to the magistrate's

decision on November 21, 2001, and Wertz filed a response on December 21, 2001. On August

i Previously, the Tomasiks sought and received additional time within which to file their

objections.

9, 2002, the trial court issued its order overruling the Tomasiks' objections. The trial court

adopted the magistrate's decision and found that the family gift presumption did not apply.

{¶10} On September 9, 2002, the Tomasiks filed their notice of appeal in this Court. On

September 12, 2002, this Court issued a show cause order, ordering the Tomasiks to respond

within twenty days with a memorandum explaining why the matter should not be dismissed for

lack of a final, appealable order. The Tomasiks never responded to this Court's show cause

order, so we dismissed their appeal on October 10, 2002.

{¶11} On September 27, 2007, the Tomasiks filed a motion to dismiss for failure to

prosecute pursuant to Civ.R. 41(B) in the probate court.2 The Tomasiks argued Wertz' action

should be dismissed because Wertz failed to secure a final, appealable order after this Court

dismissed the action on October 10, 2002. The Tomasiks claimed the following:

"[S]aid appeal was dismissed for lack of a final appealable order due to the factthat [the probate] [c]ourt had never reinstated the money judgments previouslyrendered against the [Tomasiks] and, therefore, that issue still remains before the[probate] [c]ourt."

The Tomasiks sought dismissal of the action since, they argued, Wertz had not secured a final

appealable order in the five years since this Court's dismissal.

{¶12} On October 30, 2007, Wertz filed his response to the Tomasiks' motion to

dismiss. Wertz requested that the probate court "issue an Order Nunc Pro Tunc so that this case

can be closed." Wertz argued that the judgment in this matter, Case No. 1998-CV-03008, was

final as to everything but the award of attorney fees. He further argued that the probate court

2 While Wertz, and to some extent the Tomasiks, continued to litigate in other matters involvingJurkoshek and her estate, no action was taken in this case, Case No. 1998-CV-03008, unti12007.The other cases the parties continued to litigate were the guardianship case (Case No. GA-1996-09-002), a will contest case that was filed after Jurkoshek's death on March 19, 2002 (Case No.2003-CV-00145), and an estate case similarly filed after her death (Case No. 2003-ES-0463).

6

already had awarded attomey fees in the guardianship case and that these fees were actually for

the work performed in Case No. 1998-CV-03008. Consequently, Wertz argued that the probate

court only had to issue one additional entry containing both the final judgments from Case No.

1998-CV-03008 and the award of attorney fees from the guardianship case to "close the case."

{¶13} On November 21, 2007, the probate court issued an order denying the Tomasiks'

motion to dismiss for failure to prosecute. That same day, the court issued an "Order Nunc Pro

Tune" that reiterated the money judgments against the Tomasiks, noted that it had ordered an

award of attomey fees in the guardianship case, adopted the award of the attorney fees in Case

No. 1998-CV-03008, and assigned "[a]ll judgments herein *** to the estate of [Jurkoshek], case

number 2003 ES 0463."

{¶14} On December 19, 2007, the Tomasiks filed their notice of appeal in this Court.

On March 10, 2008, the Tomasiks moved to supplement the record with all the pleadings and

transcripts from their prior appeals in this case and from the guardianship case and their appeal in

that case. This Court denied the Tomasiks' motion to supplement, but ordered them to provide

the Court with copies of all the trial court orders issued in the guardianship case. The Tomasiks'

appeal is now before this Court and raises six assignments of error for our review. For ease of

analysis, we reaiTange and consolidate several of the assignments of error.

II

Assignment of Error Number One

"THE TRIAL COURT ERRED, AS A MATTER OF LAW, IN FINDING THATTHE FAMILY GIFT PRESUMPTION DOES NOT APPLY IN THE CASE ATBAR."

{$15} In their first assignment of error, the Tomasiks argue that the trial court erred in

determining, upon this Court's remand, that the family gift presumption did not apply them. The

7

Tomasiks argue that this appeal represents the first opportunity that they have had to challenge

the trial court's finding because the trial court's judgment was not final until the court issued its

"Order Nunc Pro Tunc" on November 21, 2007.

{¶16} Courts have inherent authority to issue nunc pro tune entries in certain instances,

such as to remedy a factual inaccuracy or jurisdictional defect. Fisher v. Cleveland, 109 Ohio

St.3d 33, 2006-Ohi.o-1827, at ¶45; State v. Taylor (1997), 78 Ohio St.3d 15, 23-24. This

authority, however, only extends to issues actually decided. State ex rel. Fogle v. Steiner (1995),

74 Oluo St.3d 158, 164 ("[N]unc pro tunc entries are limited in proper use to reflecting what the

court actually decided, not what the court might or should have decided or what the court

intended to decide."). If a court exceeds its authority by entering a purported "nunc pro tune"

that actually determines issues not previously decided, then the court's order is invalid. National

Life Irr.s. Co. v. Kohn (1937), 133 Ohio St. 111, paragraph three of the syllabus. Moreover, even

if a court properly enters a nunc pro tunc pursuant to its inherent authority that order generally

will be given retrospective application. Petition for Inquiry into Certain Practices (1948), 150

Ohio St. 393, paragraph two of the syllabus (noting that a judgment sometimes may be given

effect from the actual date of the nune pro tune entry, but generally will be given retrospective

operation).

{¶17} Our review of the record indicates that the probate court entered a final judgment

in this matter on July 18, 2000. That order awarded a monetary judgment in favor of Wertz (as

the guardian of Jurkoshek), reasonable attomey fees in an amount to be determined at a later

point in time, and indicated that the parties had no just reason for delay in seeking their appeal.

The Tomasiks appealed from that final order, challenging the trial court's consideration of the

family gift presumption and Jurkoshek's competence to testify. See Wertz v. Tornasik, et al.

8

(Feb. 7, 2001), 9th Dist. No. 20209. Although we reversed the trial court's decision in part and

rernanded the case for the trial court to consider the family gift presumption, this Couit never

vacated the trial court's order. See id. at *3. On remand, the trial court decided the single issue

upon which this Court remanded the case. The Tomasiks subsequently appealed, and we

dismissed their appeal on October 17, 2002. The Tomasiks argue that this Court dismissed their

appeal because the trial court's entry failed to reiterate the monetary judgment in its entirety.

Unfortunately, the Tomasiks misconstrued our prior order.

{¶18} This Court issued a show cause order on September 12, 2002. That order raised

the following concem:

"[I]t does not appear as if the trial court has independently entered judgment inthe present case, but, rather, has only ruled on the [7urkosliek's] objections to themagistrate's decision. See, generally, Harkai v. Scherba Industries, Inc. (2000),136 Ohio App.3d 211, 221."

Harkai held that a trial court's order is not final when it simply "affirms" or adopts a

magistrate's order without entering its own statement of relief. Harkai, 136 Ohio App.3d at 221.

The trial court must independently enter its own judgment because the trial court's judgment is

the focal point for accessing finality, not the court's ruling on the magistrate's decision. Id.

(noting that "the trial court's action on the magistrate's decision is not an essential element of a

final order"). The reason that this Court issued its show cause order, therefore, was out of a

concern that the trial court's order did not independently enter judgment on the magistrate's

decision as set forth in Harkai. Upon further, independent review of the trial comt's order, we

find that the order contained sufficient language to make it a final, appealable order.3 This Court

3 While the trial court's August 9, 2002 order simply referenced the magistrate's findings anddecision in several places, the order did finally declare that "[i]t is the finding of the Court thatthe family gift presumption does not apply."

9

never reached that determination in 2002, however, because the Tomasiks failed to respond to its

show cause order. Thus, we disrnissed the Tomasiks' appeal, not because of the finality of the

trial court's order, but because the Tomasiks failed to respond to our order.

{¶19} The record reflects that after the trial court issued its final order as to the family

gift presumption on August 9, 2002, the parties had a final judgment as to each aspect of Case

No. 1998-CV-03008, with the exception of the exact amount of attorney fees to be awarded to

Wertz as Jurkoshek's guardian. This Court's partial reversal and remand on the sole issue of the

family gift presumption did not disturb the remainder of the trial court's July 18, 2000 order,

including its monetary judgments. See Wertz v. Tomasik, et al. (Feb. 7, 2001), 9th Dist. No.

20209, at *2-3 (noting that the trial court had mentioned the presumption in its order, but had not

specified whether or not it applied, and remanding the matter for that determination without

vacating the trial court's order). Furthermore, the trial court's July 18, 2000 order contained

Civ.R. 54(B) language. SeeInternatl. Bhd. of Electrical Workers, Local Union No. 8 v. Vaughn

Industries, L.L.C., 116 Ohio St.3d 335, 2007-Ohio-6439, at ¶17; Weber v. Weber (May 23,

2001), 9th Dist. No. 00CA007722, at *4. The fact that the trial court reiterated its July 18, 2000

and August 9, 2002 final orders in its purported "nunc pro tunc" entry on November 21, 2007 is

inapposite. See Petition for Inquiry into Certain Practices at paragraph two of the syllabus

(noting that even valid nunc pro tunc entries generally are given retrospective application). The

trial court's July 18, 2000 order remains intact along with the judgment and awards contained

10

therein, and the November 21, 2007 order had no impact on that prior, final order.

{¶20} In sum, the Tomasiks had an opportunity to appeal from the trial court's judgment

as to the family gift presumption in 2002. They voluntarily forwent their appeal, however, by

failing to respond to this Court's show cause order. The time for the Tomasiks' appeal has long

since passed. See App.R. 4(A) (providing that parties must file their notice of appeal within

thirty days of the judgment or order from which they seek to appeal). Since a timely appeal is a

matter of jurisdiction for this Court, we cannot now review the Tomasiks' first assignment of

error. See Miller v. Miller, 9th Dist. No. 07CA0068-M, 2008-Ohio-2106, at ¶14-16.

Assignment of Error Number Four

"THE PROBATE COURT ERRED IN AWARDING ATTORNEY FEESBASED UPON AN ORIGINAL ACTION FOR DECLARATORYJUDGMENT[.]"

{¶21} In their fourth assignment of error, the Tomasiks argue that the trial court erred in

awarding attorney fees to Wertz in Case No. 1998-CV-03008 because R.C. 2721.16 prohibits

atry award of attomey fees in a declaratory judgment action. Once again, however, we cannot

consider the merits of the Tomasiks' argument. The Tomasiks appealed from the trial court's

July 18, 2000 judgment entry, which awarded attorney fees (albeit an unspecified amount) to

Wertz as Jurkoshek's guardian. In their August 10, 2000 appeal, the Tomasiks only challenged

the trial court's application of the family gift presumption and Jurkoshek's competency. They

failed to challenge the court's award of attorney fees. While the Tomasiks obviously could not

have challenged the amount of unspecified attorney fees to be awarded, they could have raised

the argument that Wertz was not entitled to any fees in light of R.C. 2721.16 as they seek to do

now. Because they failed to raise this argument in their first direct appeal, they cannot raise it

11

now. See State ex rel. Mora v. Wilkinson, 105 Ohio St.3d 272, 2005-Ohio-1509, at ¶13-14

(discussing the doctrine of res judicata). The Tomasiks' fourth assignment of error is overruled.

Assignment of Error Number Two

"THE PROBATE COURT ERRED IN DETERMINING THAT ATTORNEYDENNIS BARTEK WAS COMPETENT TO TESTIFY AS AN EXPERT."

AssiBUnent of Error Number Three

"THE PROBATE COURTS (sic) AWARD OF ATTORNY (sic) FEES IN THEAMOUNT OF $63,860.75 WAS EXCESSIVE AND CONSTITUTED ANABUSE OF DISCRETION."

Assienment of Error Number Five

"THE TRIAL COURT VIOLATED THE APPELLANTS' DUE PROCESSRIGHTS PURSUANT TO THE [FOURTEENTH] AMENDMENT TO THEUNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THEOHIO CONSTITUTION BY CONDUCTING A HEARING, TO WHICH THEAPPELLANTS WERE NOT PARTIES AND COULD NOT APPEAL FROM,WHEREIN DAMAGES IN THE FORM OF COUNSEL FEES AND COSTSWERE ESTABLISHED AND THEN TRANSFERRED BY THE TRIALCOURT FOR COLLECTION AGAINST THE APPELLANTS TO APROCEEDING WHERE THE APPELLANTS WERE PARTIES."

{1122} In their third assigmnent of error, the Tomasiks argue that the trial court abused

its discretion in awarding excessive attomey fees in the guardianship case. In their second

assignment of error, they argue that Attomey Dennis Bartek was not qualified to testify as an

expert about the fairness, reasonableness, and necessity of these fees. In their fifth assignment of

error, they argue that this award of attomey fees offended their due process rights because they

did not have any opportunity to challenge the award.

{¶23} The record reflects that Wertz hired two attomeys to file, a. conversion action

against the Tomasiks in common pleas court and to defend against Martha and Elaine Tomasiks'

counterclaims for conversion and breach of fiduciary duty in both the common pleas and probate

courts. Since Wertz hired these attomeys, Thomas Mullen and Philip Kaufinann, as a function of

12

being Jurkoshek's guardian, he sought their attorney fees, as well as his own, in the guardianship

case. On January 2, 2001, the trial court awarded the following fees "for the legal work

performed for the guardianship" to the attorneys: (1) $15,525.00 to Philip S. Kaufrnann; (2)

$47,627.75 to 'I'homas T. Mullen; and (3) $3,708.00 to George R. Wertz. The total attorney fees

awarded amounted to $63,860.75.

{¶24} On January 25, 2001, the Tomasiks appealed this award of attorney fees to this

Court. This Court dismissed the Tomasiks' appeal by journal entry on June 19, 2001. See In re:

Guardianship ofHedwig IvI. Jurkoshek, 9th Dist. No. 20426, Joumal Entry at 938. In our journal

entry, we found that the Tomasiks lacked standing to challenge the trial court's award of attorney

fees in the guardianship case because: (1) they were never made parties to that case, and (2) they

had never been directly ordered to pay the attorney fees. Id. at 936-38. Our review of the record

leads us to conclude that this analysis was correct and that the Tomasiks lack standing to appeal

from the trial court's award of attorney fees in the guardianship case.

{¶25} Unless a person intervenes in an action to which he or she was not a party, he or

she will lack standing to appeal from the court's decision in that action. In re Estate of

Markovich, 9th Dist. No. 06CA008868, 2006-Ohio-6064, at ¶8-12. "A person has standing to

sue only if he or she can demonstrate injury in fact, which requires showing that he or she has

suffered or will suffer a specific, judicially redressible injury as a result of the challenged

action." Fair Hous. Advocates Assn., Inc. v. Chance, 9th Dist. No. 07CA0016, 2008-Ohio-2603,

at ¶5, citing Eng. Technicians Assn., Inc. v. Ohio Dept. of Transp. (1991), 72 Ohio App.3d 106,

110-11. In order to demonstrate an injury in fact, a party must be able to demonstrate that he or

she has suffered or will suffer a specific injury traceable to the challenged action that is likely to

13

be redressed if the court invalidates the action or inaction. In re Estate of York (1999), 133 Ohio

App.3d 234, 241.

{126} On November 21, 2007, the trial court issued a purported "nune pro tunc" entry in

Case No. 1998-CV-03008. That order: (1) reiterated the July 18; 2000 judgment entry from Case

No. 1998-CV-03008; (2) reiterated the post-remand August 9, 2002 order from Case No. 1998-

CV-03008, finding that the family gift presumption did not apply to the Tomasiks; (3) set forth

the language from court's order in the guardianship case awarding $63,860.75 "for the related

attorney fees[;]" (4) "adopted" the court's order for those attorney fees in Case No. 1998-CV-

03008; and (5) "assigned" "[a]nl judgments herein" to Jurkoshek's estate case, Case No. 2003-

ES-0463. The Tomasiks argue that the trial court clearly ordered them to pay the $63,860.75 in

this "nunc pro tune" order, which "adopt[s]" the guardianship case attorney fees. They further

argue that the award of attorney fees in the guardianship case was clearly meant to satisfy the

outstanding attorney fees owed in Case No. 1998-CV-03008. In other words, the Tomasiks aver

that Wertz purposely recovered the unspecified ainount of attorney fees awarded in Case No.

1998-CV-03008 in the guardianship action instead, thereby depriving the Tomasiks, non-parties

to the guardianship case, of the opportunity to challenge that award. We need not address the

Tomasiks' arguments, however, because we find that the trial court's purported "nunc pro tunc"

order to be invalid.

{¶27} As previously mentioned, a trial court only may use a nunc pro tune order to

remedy inaccuracies or defects in matters already decided. See Fisher at 145; State ex rel. Fogle,

74 Ohio St.3d at 164. If a purported "nunc pro tunc" order decides new issues, it is invalid.

National Life Ins. Co., 133 Ohio St. at paragraph three of the syllabus. While it is not entirely

clear what the trial couit meant by "adopt[ing]" the guardianship case attomey fees in Case No.

14

1998-CV-03008 and "assign[ing]" "[a]ll judgments herein" to the estate case, it is clear that

neither of these items were ever previously ordered or "actually decided" in Case No. 1998-CV-

03008. The trial court, therefore, exceeded its nunc pro tunc authority by attempting to use that

autliority to issue an order on matters not already decided. The "nunc pro tunc" order is invalid.

See id.

{¶28} In sum, the Tomasiks do not have standing to challenge the award of attorney fees

in the guardianship case because they were never parties to that case and were never ordered to

pay those attorney fees. Although the trial court awarded undetermined attorney fees in Case

No. 1998-CV-03008, Wertz has never sought to recover fees in that case. The trial court's

November 21, 2007 "nunc pro tuna" order attempting to adopt or assign the attomey fees from

the guardianship case to Case No. 1998-CV-03008 is invalid. Thus, Jurkoshek's estate remains

responsible for the payment of the attorney fees awarded in the guardianship case, not the

Tomasiks. See In re: Guardianship of Hedwig M. Jurkoshek, 9th Dist. No. 20426, Joumal Entry

at 938 ("In the instant case, the court did not order [the Tomasiks] to pay the attorney fees. Thus,

they have no immediate, pecuniary interest in the outcome of the motion for attorney fees.").

They lack standing to appeal as to these attomey fees, and we lack jurisdiction to consider their

arguments related to the same. See, generally, In re Estate of Markovich, supra.

Assittzment of Error Number Six

"THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BYDENYING THE APPELLANTS' MOTION TO DISMISS THIS ACTION FORFAILURE TO PROSECUTE."

{¶29} In their sixth assignment of error, the Tomasiks argue that the trial court erred in

denying their motion to dismiss for failure to prosecute. In light of our determination of the

previous assigmnents of error and conclusion that the trial court's November 21, 2007 order is

15

invalid, the Tomasiks' last assignment of error is moot and we decline to address it. See App.R.

12(A)(1)(c).

III

{¶30} The Tomasiks' fourth assignment of error is overruled, and their sixth assignment

of error is moot. The remainder of the Tomasiks' appeal is dismissed as this Court lacks

jurisdiction to consider it.

Judgment affirmed in part,appeal dismissed in part.

The Court finds that there were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Sunnnit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

hnmediately upon the filing hereof, this document shall constitute the joumal entry of

judginent, and it shall be file stamped by the Clerk of the Court of Appeals at which tnne the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellants.

BETH WHITMOREFOR THE COURT

SLABY, J.MOORE, P. J.CONCUR

16

APPEARANCES:

MICHAEL A. PARTLOW, Attorney at Law, for Appellants.

L. TERRENCE UFHOLZ, Attomey at Law, for Appellee.