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

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

ADRIENNE MONNOT ZIMMERMAN : 

 : 

 Plaintiff-Appellant : 

 : 

-vs- : 

 : 

PATRICIA E. ZIRPOLO TRUST : 

C/O PAUL MILANO, TRUSTEE : 

 : 

 Defendant-Appellee : 

JUDGES: 

Hon. W. Scott Gwin, P.J. 

Hon. Sheila G. Farmer, J. 

Hon. John W. Wise, J. 

Case No. 2010CA00271 

O P I N I O N 

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