[Cite as Zimmerman v. Patricia E. Zirpolo Trust, 2011-Ohio-814.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT




ADRIENNE MONNOT ZIMMERMAN :                               JUDGES:
                          :                               Hon. W. Scott Gwin, P.J.
     Plaintiff-Appellant  :                               Hon. Sheila G. Farmer, J.
                          :                               Hon. John W. Wise, J.
-vs-                      :
                          :
PATRICIA E. ZIRPOLO TRUST :                               Case No. 2010CA00271
C/O PAUL MILANO, TRUSTEE  :
                          :
     Defendant-Appellee   :                               OPINION




CHARACTER OF PROCEEDING:                              Appeal from the Court of Common Pleas,
                                                      Probate Division, Case No. 209161



JUDGMENT:                                             Reversed and Remanded




DATE OF JUDGMENT ENTRY:                               February 22, 2011




APPEARANCES:

For Plaintiff-Appellant                               For Defendant-Appellee

J. SEAN KEENAN                                        TREVOR A. LYKE
200 Market Avenue North                               1375 South Main Street
Suite 300                                             Suite 202
Canton, OH 44702                                      North Canton, OH 44720
Stark County, Case No. 2010CA00271                                                      2

Farmer, J.

       {¶1}    Appellant, Adrienne Monnot Zimmerman, is the mother of Charles,

Guinevere Anna, and Grayson Oliver. The children are named beneficiaries under the

Patricia Zirpolo Trust. Mrs. Zirpolo passed away in April of 2008 and was appellant's

grandmother.     Appellee, Paul Milano, is trustee of the trust and was Mrs. Zirpolo's

nephew.

       {¶2}    Starting in 2010, appellant requested from appellee a copy of the trust

document. Appellee declined to give appellant a copy.

       {¶3}    On June 4, 2010, appellant filed a complaint against appellee under R.C.

5808.13, claiming appellee was obligated to give a copy of the trust to the beneficiaries,

as well as any applicable reports.

       {¶4}    A pretrial was held on July 21, 2010. By judgment entry filed September

1, 2010, the trial court denied appellant's request for a copy of the trust document.

       {¶5}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

       {¶6}    "THE PROBATE COURT'S JUDGMENT THAT THERE IS A CONFLICT

OF INTEREST WHICH PREVENTS APPELLANT FROM BEING A PROPER

REPRESENTATIVE FOR HER MINOR CHILDREN IS CONTRARY TO LAW."

                                             II

       {¶7}    "THE PROBATE COURT'S JUDGMENT THAT THERE IS A CONFLICT

OF INTEREST WHICH PREVENTS APPELLANT FROM BEING A PROPER
Stark County, Case No. 2010CA00271                                                      3


REPRESENTATIVE FOR HER MINOR CHILDREN IS WITHOUT SUFFICIENCY OF

EVIDENCE."

                                            I, II

       {¶8}   Appellant claims the trial court erred in finding a conflict existed between

her and her children, the beneficiaries of the trust, and there is no record evidence to

support the trial court's conclusions.

       {¶9}   The state of the record consists of the parties' pleadings and exhibits, as

well as a scheduled pre-trial. We note a memorialization of the pre-trial was not filed.

Also, there are sealed exhibits attached to the case file.

       {¶10} Because of the state of the record, with no pending motions of either party

before the trial court pursuant to the rules of civil procedure, the only vehicle by which

the trial court could consider the case was a Civ.R. 12(C) motion for judgment on the

pleadings which states, "[a]fter the pleadings are closed but within such time as not to

delay the trial, any party may move for judgment on the pleadings."

       {¶11} As stated by this court in Estate of Heath v. Grange Mutual Casualty

Company, Delaware App. No. 02CAE05023, 2002-Ohio-5494, ¶8-9:

       {¶12} "The standard of review of the grant of a Motion for Judgment on the

Pleadings is the same as the standard of review for a Civ. R. 12(B)(6) Motion. As the

reviewing court, our review of a dismissal of a complaint based upon a judgment on the

pleadings requires us to independently review the complaint and determine if the

dismissal was appropriate.      Rich v. Erie County Department of Human Resources

(1995), 106 Ohio App.3d 88, 91, 665 N.E.2d 278. Judgment on the pleadings may be

granted where no material factual issue exists. However, it is axiomatic that a motion
Stark County, Case No. 2010CA00271                                                       4


for judgment on the pleadings is restricted solely to the allegations contained in those

pleadings. Flanagan v. Williams (1993), 87 Ohio App.3d 768, 623 N.E.2d 185. See,

also, Nelson v. Pleasant (1991), 73 Ohio App.3d 479, 481, 597 N.E.2d 1137; Barilatz v.

Luke (Dec. 7, 1995), Cuyahoga App. No. 68304, unreported, 1995 WL 723294.

      {¶13} "A reviewing court need not defer to the trial court's decision in such

cases. Id. A Motion for a Judgment on the Pleadings, pursuant to Civ. R. 12(C),

presents only questions of law. Peterson v. Teodosia (1973), 34 Ohio St.2d 161, 165-

166, 297 N.E.2d 113. The determination of a motion under Civ. R. 12(C) is restricted

solely to the allegations in the pleadings and the nonmoving party is entitled to have all

material allegations in the complaint, with all reasonable inferences to be drawn

therefrom, construed in her favor. Id."

      {¶14} Employing this standard, we find the motion for judgment on the pleadings

was in error. The trial court examined the unredacted trustee agreement and made

factual findings which were beyond the four corners of the pleadings:

      {¶15} "Defendant provided the Court with a copy of the trust document that is

not redacted under seal.

      {¶16} "Following review of the trust document, it is clear that the Trustee is not to

provide any information about the trust proceeds to the beneficiaries. Additionally, the

beneficiaries shall have no information about the proceeds until the time they are

entitled to receive the proceeds.

      {¶17} "***

      {¶18} "In this case, Plaintiff does not meet the requirements of Ohio Revised

Code § 5803.03 as there is a conflict between her and the children.          Plaintiff was
Stark County, Case No. 2010CA00271                                                     5


disinherited by the Decedent and is not a proper representative for the minor children in

this case."

       {¶19} Assignments of Error I and II are granted.

       {¶20} The judgment of the Court of Common Pleas of Stark County, Ohio,

Probate Division is hereby reversed.

By Farmer, J.

Gwin, P.J. and

Wise, J. concur.




                                            _s/Sheila G. Farmer__________________




                                            _s/W. Scott Gwin_____________________




                                            _s/John W. Wise            ______________


                                                             JUDGES

SGF/sg 209
Stark County, Case No. 2010CA00271                                                 6


              IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT




ADRIENNE MONNOT ZIMMERMAN                 :
                                          :
       Plaintiff-Appellant                :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
PATRICIA E. ZIRPOLO TRUST                 :
C/O PAUL MILANO, TRUSTEE                  :
                                          :
       Defendant-Appellee                 :         CASE NO. 2010CA00271




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, Probate Division is

reversed, and the matter is remanded to said court for further proceedings consistent

with this opinion. Costs to appellee.




                                          _s/Sheila G. Farmer__________________




                                          _s/W. Scott Gwin_____________________




                                          _s/John W. Wise          ______________


                                                          JUDGES
