COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74013 : ACCELERATED DOCKET KENNETH J. THOMPSON, ET AL. : : JOURNAL ENTRY Plaintiffs-Appellants : : AND vs. : : OPINION : HELEN A. THOMPSON, ET AL. : : Defendants-Appellees : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION: JULY 16, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-341920 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellants: For Defendants-Appellees: JOSHUA R. COHEN THOMAS C SCHRADER ELLEN MAGLICIC KRAMER DAN L. MAKEE Kohrman Jackson & Krantz P.L.L. DOUGLAS B. SCHNEE One Cleveland Center McDonald, Hopkins, Burke & 20th Floor Haber, Co., L.P.A. 1375 East Ninth Street 2100 Bank One Center Cleveland, Ohio 44114 600 Superior Avenue, East Cleveland, Ohio 44114-2653 -2- PER CURIAM: This case came on for hearing upon the accelerated calendar of our court pursuant to App.R. 11.1 and Loc.R. 25, the records from the court of common pleas, and the briefs of counsel. Kenneth Thompson appeals from a judgment of the common pleas court alleging the court erred in dismissing his discovery action, maintaining he complied with the requirements of R.C. 2317.48 and Civ.R. 34(D). The dispute in this case concerns allegations by Kenneth Thompson that his sister, Kathleen Hlavin, and his mother, Helen Thompson, influenced his father, John, to modify the terms of a testamentary trust to exclude him from sharing in its proceeds following his mother's death. The history of the case reveals that John Thompson founded Thogus Products, a company which manufactures injection moldings for the automobile industry, and he hired his children, Kathleen and Kenneth, as vice presidents. In 1990, John suffered a stroke, and his health subsequently deteriorated. In 1995, John and Kathleen voted to terminate Kenneth at Thogus, and in response, Kenneth filed suit in common pleas court against his father, his sister, and Thogus Products, alleging breach of fiduciary duty, which resulted in a jury verdict of $750,000 in favor of Kenneth. This court recently vacated the verdict on appeal. Following that trial, in 1997, John Thompson died, and upon probate of the estate, Kenneth learned in a letter from counsel for his father's estate that he would not inherit or receive any stock -3- or money from the estate or from a testamentary trust which John had established. Because he believed he had been included in his father's trust prior to receiving the letter, Kenneth thought either his sister or his mother exercised undue influence upon his father during his illness, to cause him to modify the terms of the trust. In order to pursue a claim to set aside the trust modification, Kenneth filed an action against his mother and his sister for discovery pursuant to R.C. 2317.48 and Civ.R. 34(D) seeking answers to interrogatories concerning modifications to the trust and documents relating to the trust. In response, Kathleen and Helen filed a joint motion to dismiss the discovery action, alleging it failed to state a cause of action, which the court granted. Kenneth now appeals from the court's order granting the motion and presents the following assignment of error for our review: I. THE TRIAL COURT ERRED IN GRANTING THE MOTION OF DEFENDANTS HELEN A. THOMPSON AND KATHLEEN J. HLAVIN TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO CIVIL RULE 12(B)(6). Kenneth contends the court erred in granting the motion to dismiss his discovery action because his first amended complaint stated a cause of action, and he complied with the requirements of R.C. 2317.48 and Civ.R. 34(D). Helen and Kathleen maintain the court properly granted their motion because the complaint alleged no viable cause of action, and the complaint for discovery is unduly broad. -4- The issue before us, then, is whether the court properly granted Helen and Kathleen's motion to dismiss the complaint pursuant to Civ.R. 12(B)(6). Our review of a Civ.R. 12(B)(6) dismissal is guided by the standard set out in Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, where the court stated at 192: In construing a complaint upon a motion to dismiss for failure to state a claim, we must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party. R.C. 2317.48 allows a party to obtain discovery prior to filing a complaint, and provides: When a person claiming to have a cause of action * * * without the discovery of a fact from the adverse party, is unable to file his complaint * * * he may bring an action for discovery, setting forth in his complaint in the action for discovery the necessity and the grounds for the action, with any interrogatories relating to the subject matter of the discovery that are necessary to procure the discovery sought. * * * Civ.R. 34(D) also permits discovery prior to filing an action and states in relevant part: * * * a person who claims to have a potential cause of action may file a petition to obtain discovery as provided in this rule. Prior to filing a petition for discovery, the person seeking discovery shall make reasonable efforts to obtain voluntarily the information from the person from whom the discovery is sought. * * * The court shall issue an order authorizing the petitioner to obtain the requested discovery if the court finds all of the following: (a) The discovery is necessary to ascertain the identity of a potential adverse party; (b) The petitioner is otherwise unable to bring the contemplated action; -5- (c) The petitioner made reasonable efforts to obtain voluntarily the information from the person from whom the discovery is sought. In Kirschbaum v. Dillon (1991), 58 Ohio St.3d 58, the court stated at 65, that in order to establish a claim of undue influence, a party must prove the following elements: a susceptible testator, another's opportunity to exert [undue influence], the fact of improper influence exerted or attempted, and the result showing the effect of such influence. In this case, the record reflects Kenneth's first amended complaint alleged facts sufficient to establish the elements of a claim of undue influence. In it, he alleged his father's failing health made him a susceptible testator; his mother's and sister's proximity and communication with his father gave them the opportunity to exert undue influence upon him; allegations of possible improper influence arising out of the fact that Kenneth Thompson did not speak to his father during the relevant time period and his sister had a close relationship with him and that John Thompson modified his will at a time when his counsel suggested he was too ill to be deposed; and additional allegations that the modifications to the Helen A. Thompson Trust could have resulted from improper influence. Based on the foregoing, we have concluded that Kenneth complied with R.C. 2317.48, in that he alleged a factual basis for his inability to communicate with Helen and Kathleen to obtain answers to his interrogatories relating to his claim for undue influence; and further, in compliance with Civ.R. 34(D), Kenneth alleged he made efforts to obtain the information voluntarily but did not succeed. -6- Therefore, after construing the allegations of the complaint in a light most favorable to Kenneth, and after making all reasonable inferences in favor of Kenneth, as we are constrained to do in accordance with Mitchell v. Lawson Milk Co., supra, we have concluded the court erred in granting appellees' motion to dismiss for failure to state a claim upon which relief can be granted because the complaint alleges facts which could state a claim of undue influence, and because it complies with the requirements of R.C. 2317.48 and Civ.R. 34(D). Accordingly this assignment of error is well taken, and we reverse the judgment of the trial court and remand the matter for further proceedings consistent with this opinion. Judgment reversed. Case remanded. -7- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of said appellees costs herein taxed. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TERRENCE O'DONNELL, PRESIDING JUDGE TIMOTHY E. McMONAGLE, JUDGE LEO M. SPELLACY, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .