In re Testamentary Trust of Jones

2025 Ohio 1678

• Court: Ohio Court of Appeals
• Decided: May 9, 2025
• Docket: 30295
• Status: Published

Opinion

[Cite as In re Testamentary Trust of Jones, 2025-Ohio-1678.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

IN THE MATTER OF THE : TESTAMENTARY TRUST OF : BENNY JONES, DECEASED F/B/O : C.A. No. 30295 SHARON ROE : : Trial Court Case No. 1997 TRS 318527 : : (Appeal from Common Pleas Court- : Probate Division) : :

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OPINION

Rendered on May 9, 2025

GEORGIANNA PARISI, Pro Se Appellant

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EPLEY, P.J.

{¶ 1} Georgianna Parisi, trustee of the testamentary trust of Benny Jones for the

benefit of Sharon Roe, appeals from the trial court’s denial of her (1) motion for documents

or, in the alternative, continuance; (2) motion for special process server; and (3) amended

motion for trustee fees. For the following reasons, the trial court’s judgment will be -2-

affirmed.

I. Facts and Procedural History

{¶ 2} On March 31, 1993, Benny Jones executed a will that had been drafted by

Parisi. The will established three testamentary trusts, one of which was created to

provide for Jones’s “close friend and companion” Sharon Roe. See In re Testamentary

Trust of Roe, 2005-Ohio-4033, ¶ 4 (2d Dist.). Jones named Parisi as trustee of each

trust, and she was appointed trustee for the trusts following Jones’s death in May 1993.

Parisi was the trusts’ attorney until 2013, when her law license was registered as inactive.

Parisi hires others to prepare the partial accounts and the annual tax returns for the trust.

{¶ 3} Roe passed away in March 2023. In April 2024, Parisi filed the 25th partial

account for the Trust of Sharon Roe, which covered the period from January 1, 2023, to

December 31, 2023. That partial account was approved on June 25, 2024.

{¶ 4} On July 27, 2024, Parisi filed an “amended motion for trustee fees,” seeking

ordinary and extraordinary trustee fees in the amount of $6,282.50 (35.9 hours x

$175/hour). She indicated that she would be willing to accept $5,385 (35.9 hours x

$150/hour) if the motion were resolved without a hearing and testimony.

{¶ 5} In her motion, Parisi claimed that her equal protection rights were violated,

because corporate trustees were able to receive a larger trustee fee than individual

trustees for similarly-sized trusts under the Montgomery County Probate Court Trustee

Fee Appendix. She further claimed that it was a violation of her due process rights to

require individual trustees to base their fees on an Appendix when there was “no other -3-

means for the individual Trustees to calculate their fees, such as is afforded to corporate

trustees which simply post their fee schedules with the court.”

{¶ 6} Parisi attached several documents to her motion: (1) an itemized statement

of her services as trustee from July 21, 2022 to April 21, 2024 (Exhibit A); (2) documents

related to three other trusts to show what trustee fees were taken there and what those

bank trustees would have received under the Appendix (Exhibits B-G); (3) examples of

how three other counties calculate trustee compensation (Exhibits H-J); (4) documents

from another trust where the attorney/trust sought attorney fees at $240 per hour (Exhibit

K); and (5) statements from two of the Sharon Roe Trust beneficiaries, consenting to

Parisi’s fee request.

{¶ 7} A hearing on Parisi’s motion was originally scheduled for August 29, 2024,

but rescheduled to September 24, 2024, at her request. Approximately two weeks

before the hearing date, Parisi sought the appointment of a special process server.

{¶ 8} A week later, Parisi filed a motion for documents or, alternatively, a

continuance. She explained that she had tried to obtain copies of trustee fee

appendices, but starting in 2023, those appendices were not imaged on the probate

court’s online dockets, and she was unable to view them when she went to the clerk’s

office. Parisi had sought those records through a Freedom of Information Act (FOIA)

request. She also stated that she “believed it would be helpful to the Court for trustees

from banks and individual trustees to testify as to their duties and what services they

provide, and why they charge . . . the trustee fees they do.” She indicated that she had

been unable to subpoena any witnesses, however, because her request for a special -4-

process server had not yet been ruled upon.

{¶ 9} The hearing proceeded on September 24, as scheduled, with Parisi as the

sole witness. The court first orally denied Parisi’s FOIA request for trustee fee

appendices, saying that she needed to provide the court with specific case numbers,

dates, and notations on the docket to locate the requested records.

{¶ 10} The court then asked Parisi for an overview of the trust, including how it

came about, the number of beneficiaries, when the trust terminates, and its current status.

Parisi responded to the court’s questions on these matters.

{¶ 11} Before turning to the motion for trustee fees, Parisi orally requested a

continuance so that she could obtain witnesses related to the disparity between what

banks and individual trustees could charge for the same work for the same types of trusts.

Parisi stated that she wanted to bring in bank trustees to testify to “what they actually do

as a trustee for the bank trust.” She stated that these were fact witnesses, not experts,

and that the anticipated testimony would be unrelated to the Trust of Sharon Roe. The

trial court orally denied the motion for a continuance, ruling that “[y]ou can’t bring in a lay

witness to give expert opinion that’s unrelated to the facts of the case.” Tr. 14. When

Parisi reiterated that the witness would be a fact witness, not an expert, the court stated

that it “wouldn’t allow that” and that it was not permitted by the Rules of Evidence. As a

result of this ruling, the request for a process server was also denied.

{¶ 12} Parisi then argued that having different fee processes for individual trustees

and corporate trustees violated equal protection and due process. She stated that

“banks were able to charge much higher rates based upon whatever they charge their -5-

inter vivos folks as long as the trust was over $75,000.” Parisi also pointed out that

Cuyahoga, Clermont, and Hamilton Counties permit much higher trustee fees than the

Montgomery County Appendix. She stated that her calculated fee under the Appendix

was $1,619.35.

{¶ 13} Finally, Parisi argued to the court that part of her trustee work justified

extraordinary trustee fees. Specifically, she noted that cutting checks for Roe’s long-

term care was extraordinary, because “it was never requested before, and I needed to

put together a lot of the costs and that kind of thing and what they needed. I wouldn’t

consider that ordinary.” She also stated that contacting a certified public accountant for

a beneficiary who wanted an in-kind distribution rather than cash constituted extraordinary

work. Parisi characterized her work in managing the trust’s investments as ordinary

trustee work. Parisi’s itemized statement of her trustee work was admitted into evidence.

{¶ 14} On September 27, 2024, the trial court issued a written entry denying

Parisi’s motions. As for the motions for documents or, alternatively, a continuance and

for a special process server, the court found that “examples of trustee compensation in

wholly unrelated matters is not relevant to this matter as each trust administration is

different and non-reflective of the current trust administration.” It further found that “the

appointment of a special process server to secure the attendance of a bank employee is

not necessary as such person, as admitted by Trustee, cannot be qualified as an expert

witness to provide testimony relevant to the specific administration of this trust.”

{¶ 15} As for the motion for trustee fees, the trial court noted that the itemized

statement provided by Parisi included work performed in 2022 and 2023 for which Parisi -6-

had already been compensated, according to the 24th and 25th partial accounts. The

court rejected Parisi’s contention that she had performed extraordinary services during

that time period. The court concluded: “Trustee has already been compensated for her

ordinary services in prior account periods. As to trustee services provided in 2024,

Trustee shall account for her trustee fees in the next Partial or Final account.” The trial

court did not address Parisi’s equal protection argument.

{¶ 16} Parisi appeals from the trial court’s judgment, raising three assignments of

error. We will address them in a manner that facilitates our analysis

II. Parisi’s Witnesses and Constitutional Argument

{¶ 17} In her first assignment of error, Parisi challenges the trial court’s denial of

her request to subpoena bank trustees to testify as fact witnesses. Her second

assignment of error claims that the trial court erred when it failed to address her equal

protection argument.

{¶ 18} “The admission or exclusion of evidence rests within the sound discretion

of the trial court and will not be disturbed on appeal absent an abuse of that discretion.”

State v. Malloy, 2011-Ohio-30, ¶ 64, (2d Dist.). “A trial court abuses its discretion when

it makes a decision that is unreasonable, unconscionable, or arbitrary.” (Citation omitted.)

State v. Darmond, 2013-Ohio-966, ¶ 34.

{¶ 19} When engaging in this gatekeeper capacity with respect to the admission

of evidence, the trial court must determine if potential evidence is relevant. To be

relevant, evidence must have a “tendency to make the existence of any fact that is of

consequence to the determination of the action more or less probable than it would be -7-

without the evidence.” Evid.R. 401. In other words, there must be some probative value

to the evidence. Generally, relevant evidence is admissible. Evid.R. 402. However,

even if evidence is relevant, it can become inadmissible if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or of

misleading the jury. Evid.R. 403(A); State v. Dennis, 2022-Ohio-2888, ¶ 27 (2d Dist.).

Evidence that is not relevant is not admissible. Evid.R. 402; State v. Stone, 2024-Ohio-

177, ¶ 33 (2d Dist.).

{¶ 20} Parisi sought to subpoena and call witnesses to support her equal

protection claim. “[T]he Equal Protection Clauses of both the Ohio and United States

Constitutions protect ‘similarly situated’ persons from being treated differently by the

government.” State v. Ramey, 2021-Ohio-1522, ¶ 24 (2d Dist.), citing State v. Murphy,

2003-Ohio-128, ¶ 8 (5th Dist.). In other words, the law must “operate equally upon

persons who are identified in the same class.” State ex rel. Patterson v. Indus. Comm.,

77 Ohio St.3d 201, 204 (1996); In re Adoption of Y.E.F., 2020-Ohio-6785, ¶ 27.

{¶ 21} In this case, Parisi stated that she wanted to call bank trustees “to testify as

to their duties and what services they provide, and why they charge . . . the trustee fees

they do.” Recognizing that each trust administration is “different and non-reflective of

the current trust administration,” the trial court found that Parisi’s proposed fact witnesses

were not relevant to how trustee fees should be awarded in this case and, further, were

not necessary because they could not testify as experts. Because Parisi needed to

establish that corporate trustees were similarly situated to individual trustees, the trial

court reasonably concluded that an expert witness was required and that the individual -8-

trustees, who would testify about their specific unrelated trusts, would not satisfy this

evidentiary burden. We find no abuse of discretion in the court’s conclusions.

{¶ 22} Given that the trial court did not abuse its discretion in excluding Parisi’s

proposed witnesses, the trial court likewise did not abuse its discretion in denying her

request for a special process server to secure the attendance of those witnesses.

Further, in the absence of any evidence on the constitutional issues, the trial court did not

err when it implicitly overruled Parisi’s constitutional argument. See, e.g., State v.

Conard, 2024-Ohio-1906, ¶ 3 (2d Dist.) (“The court did not address the motion to dismiss,

and we presume it was overruled.”); Smith v. Farmer, 2022-Ohio-4180, ¶ 17 (2d Dist.)

(where the trial court failed to rule on a motion to strike and considered the merits of the

motion, we presume the motion to strike was overruled); State ex rel. The V Cos. v.

Marshall, 81 Ohio St.3d 467, 469 (1998) (“[W]hen a trial court fails to rule on a pretrial

motion, it may ordinarily be presumed that the court overruled it.”).

{¶ 23} Parisi’s first and second assignments of error are overruled.

III. Extraordinary Trustee Fees

{¶ 24} In her third assignment of error, Parisi claims that the trial court “committed

prejudicial error when it confused the work of a guardian of the person who makes medical

decisions with the Trustee filing for the first time in this Trust a Motion to permit her to pay

long term memory care facility bills, as permitted by the express terms of said

Testamentary Trust while making a determination as to what work constitutes

extraordinary trustee fees, and when it failed to understand the extraordinary fees that

the Trustee was requesting.” The crux of Parisi’s claim is that the trial court erred in -9-

failing to compensate her for her purported extraordinary services as trustee.

{¶ 25} In its decision denying Parisi’s request for extraordinary fees, the trial court

indicated that it had reviewed her itemized list of services and concluded that the services

rendered from July 21, 2022 through December 3, 2023 were ordinary in the course of a

trustee’s duties. As characterized by the court, those services consisted of “reviewing

financial statements and correspondence with service providers.” The trial court further

stated:

The Court notes that “extraordinary” trustee compensation is not typically

used when seeking fiduciary fees. R.C. 5807.08 does not mention

“extraordinary” trustee compensation. Trustee claims she performed

extraordinary services regarding beneficiary’s long-term care and other

actions not previously performed. Trustee is misguided. Trustee

attempts to validate her services as being beneficiary to beneficiary’s

comfort and care. Such purpose is relegated to the duties of a Guardian

of the person, for which Trustee was not.

Parisi takes issue with the trial court’s reasoning.

{¶ 26} Jones’s will is not in the record before us, but there is no suggestion that it

specified the testamentary trustee’s compensation. “If the terms of a trust do not specify

the trustee’s compensation, a trustee is entitled to compensation that is reasonable under

the circumstances.” R.C. 5807.08(A). Trustee compensation must be set by local rule.

Sup.R. 74(A). In the Montgomery County Probate Court, the local rule on trustee

compensation provides: -10-

(A) Except as provided in the trust instrument, a trustee may take trustee

fees without application or order of the Court, if the fees are less than or

equal to the sum of the following:

(1) 5% of income from intangible investments and deposits and

installment receipts, such as Social Security or Veterans’ Benefits;

(2) 10% of gross rentals from real estate actually managed by the

guardian (5% if proceeds of a net lease);

(3) .25% of intangible personal property investments and deposits for

each year of the accounting period; and

(4) 1% of distribution of personal property corpus at conclusion of the

guardianship.

(B) A computation of fees shall be filed with each account in which credit

has been taken for payment of fees. Appendix F to the Local Rules or a

similar form shall be used to compute the allowed fees. Existence of the

above schedule does not constitute approval by the Court of the

reasonableness of the fees taken.

(C) A corporate trustee may take trustee fees in accordance with its

published fee schedule provided the fee schedule has been filed with the

Court. A corporate trustee shall file its current published fee schedule with

the Court on an annual basis. Any amendments to the schedule must be

filed before a fee may be taken in accordance with the amended schedule.

Fee schedules shall be limited to a maximum 1% fee for all trust estates -11-

with a market value of $75,000.00 or less.

Mont. Co. P.C.R. 74.1. “Additional compensation for extraordinary services may be

allowed upon application setting forth an itemized statement of the services rendered and

the amount of compensation requested.” Sup.R. 74(B).

{¶ 27} Sup.R. 74 does not define “extraordinary” services. We note that the

specific terms of the document creating the trust (in this case, Jones’s will) generally

outline the trustee’s authority and responsibilities. Bryan v. Chytil, 2021-Ohio-4082,

¶ 116 (4th Dist.); see In re Haggerty’s Estate, 128 N.E.2d 680, 685 (1955).

“Extraordinary services” has been understood to mean services that lie “out of and

beyond the limit of” a trustee’s ordinary duties.” Haggerty’s Estate at 686; Bryan at

¶ 120.

{¶ 28} Here, Parisi acknowledged that many items in her itemized statement

constituted ordinary services as trustee. When asked to identify the extraordinary

services she provided, Parisi discussed that the individual holding Roe’s power of

attorney had asked for trust assets to be used to pay for Roe’s long-term care. Although

Parisi indicated that she had not dealt with that kind of expense before, the trial court did

not abuse its discretion in determining that the payment of those expenses was in line

with her ordinary trust duties and did not require any extraordinary time or skills. Parisi

also argued that one of the trust beneficiaries wanted an in-kind distribution of trust

assets, rather than cash, which necessitated contacting a CPA and other alleged

extraordinary work. Upon review of the record, the trial court did not abuse its discretion

in concluding that Parisi failed to establish that this service merited extraordinary fees. -12-

{¶ 29} Parisi’s third assignment of error is overruled.

III. Conclusion

{¶ 30} The trial court’s judgment will be affirmed.

HUFFMAN, J. and HANSEMAN, J., concur.