        [Cite as Helton v. Fifth Third Bank, 2019-Ohio-5208.]

                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO




HELEN CLARKE HELTON,                             :         APPEAL NO. C-180284
                                                           TRIAL NO. 2015-003814
CATHERINE T. CLARKE,                             :
                                                                O P I N I O N.
JAMES W. CLARKE,                                 :

MARY ZIGO,                                       :

  and                                            :

BRIDGET MURPHY,                                  :

     Plaintiffs-Appellants,                      :

  vs.                                            :

FIFTH THIRD BANK,                                :

     Defendant-Appellee.                         :




Appeal From: Hamilton County Court of Common Pleas, Probate Division

Judgment Appealed From Is:              Affirmed in Part, Reversed in Part, and Cause
                                        Remanded

Date of Judgment Entry on Appeal: December 18, 2019



Schlicter Bogard & Denton, Jerome J. Schlicter, Nelson G. Wolff and Andrew D.
Schlicter, and Christopher R. Heekin Co. LLC and Christopher R. Heekin, for
Plaintiffs-Appellants,

Vorys, Sater, Seymour and Pease LLP, Victor A. Walton, Jr., Nathaniel Lampley,
Jr., Jacob D. Mahle, James B. Lind and Jessica K. Baverman, for Defendant-
Appellee.
                     OHIO FIRST DISTRICT COURT OF APPEALS




MYERS, Judge.

       {¶1}    Plaintiffs-appellants Helen Clarke Helton, Catherine T. Clarke, James

W. Clarke, Mary Zigo, and Bridget Murphy, (collectively referred to as “the Clarke

siblings”) appeal from the trial court’s order granting summary judgment to

defendant-appellee Fifth Third Bank on their complaint asserting various claims

regarding Fifth Third’s management of two trusts of which they are beneficiaries.

       {¶2}   Because the trial court correctly determined that the Clarke siblings’

claim for breach of the duty to diversify was barred by the applicable statute of

limitations, and that their claims for breach of the duty of impartiality and breach of

trust/fiduciary duty were in essence additional claims for breach of the duty to

diversify that were filed outside of the limitations period, we affirm its grant of

summary judgment on those claims. But because the Clarke siblings’ claim for

unjust enrichment was supported by different allegations of misconduct than those

supporting the claim for breach of the duty to diversify, we find that the trial court

erred in determining that it stemmed from the alleged breach of the duty to diversify,

and we reverse the trial court’s grant of summary judgment on that claim.


                        Factual and Procedural Background


       {¶3}   The Clarke siblings are current income beneficiaries of two trusts

established by their great uncle William C. Sherman. In 1939, Sherman created an

irrevocable inter vivos trust. As relevant to this appeal, the income beneficiaries of

this trust were his niece Helen Hook Clarke (the Clarke siblings’ mother) and her

descendants, and Sherman’s brother, John Q. Sherman (“JQS”), and his

descendants. While their mother was alive, the Clarke siblings were remainder




                                              2
                       OHIO FIRST DISTRICT COURT OF APPEALS



beneficiaries of this trust, but they became income beneficiaries when their mother

passed away in 2015.

       {¶4}   Sherman also established a testamentary trust for the benefit of his

sister Helen Sherman Hook and her descendants, who were Helen Hook Clarke (her

daughter) and the Clarke siblings. As with the inter vivos trust, the Clarke siblings

were remainder beneficiaries of this trust until their mother passed away in 2015, at

which time they became income beneficiaries.

       {¶5}   Fifth Third was named in the trust documents as a successor trustee

for both trusts, and in 1980, it became the sole trustee. Both the inter vivos trust and

the testamentary trust granted the trustee broad discretion over the trusts’

investments and provided that the trustee had discretion “to retain and continue to

hold as a part of the Trust Estate any property or investment owned by [Sherman] at

the date of [his] death without liability for depreciation or loss occasioned by doing

so.”

       {¶6}   Sherman funded the trusts with shares from Standard Register, a

paper company that he had founded with JQS. Pursuant to Standard Register’s

corporate documents, shares in the company owned by the trusts or family members

of the Sherman and Clarke families had “super-voting” rights, which granted them

five votes per share. But if the shares were sold to the general public, they were

converted to common stock, possessing only one vote per share. With these super-

voting rights, the two trusts established by Sherman controlled approximately 33

percent of the voting power of Standard Register. A separate trust established by

JQS for the benefit of his descendants, (the “JQS trust”), also had super-voting rights

and controlled approximately 40 percent of Standard Register’s voting power. This

percentage of voting power gave both the Sherman trusts and the JQS trust “negative

control” over the company and allowed them to block certain actions taken by the

company.

                                               3
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶7}   Income beneficiaries of the trusts received ongoing distributions.

Between 1981 and her death in 2015, Helen Hook Clarke received approximately 72

million dollars in distributions from the two trusts.

       {¶8}   After becoming sole trustee, Fifth Third in 1980 was concerned with

the trusts’ concentration in Standard Register stock, and in 1985 it hired Morgan

Stanley to prepare a report on possible ways to diversify the trusts. Morgan Stanley’s

report discussed the pros and cons of diversifying the trust in the following manners:

a rule 144 sale; private placement; a leveraged buyout; company repurchase of trust

stock; a secondary offering; a secondary offering/share repurchase; and a sale of the

company. The report noted that a sale of the company would be unlikely absent

cooperation from the JQS trust.

       {¶9}   The Clarke family was adamantly opposed to diversification. In 1986,

the Clarke siblings, along with their mother and brother, David Clarke, III, sued Fifth

Third to prevent it from selling any Standard Register stock held by the two trusts

unless the sale was a part of a coordinated sale of all stock held by both trusts and the

JQS trust. The lawsuit was resolved when the parties entered into a settlement

agreement in 1987.

       {¶10} In 1991, Fifth Third again engaged Morgan Stanley to prepare a report
on the feasibility of diversification. This report suggested a secondary offering of the

stock, as well as a combination of a secondary offering and a stock repurchase. Fifth

Third did not feel that a secondary offering was a viable option because the Clarke

family would lose the negative control over Standard Register that it possessed.

       {¶11} The value of Standard Register stock declined over time. Fifth Third
monitored     Standard    Register’s   performance      and   continued    to   consider

diversification. In 2006, Fifth Third hired a management consultant to examine

Standard Register and advise Fifth Third on potential diversification options for the

trusts. This consultant advised that the only feasible way to diversify was a complete

                                               4
                        OHIO FIRST DISTRICT COURT OF APPEALS



sale of Standard Register. Fifth Third had various discussions regarding Standard

Register’s declining performance with members of the Clarke family, particularly

David Clarke, III, who was a member of the Standard Register Board and was viewed

by Fifth Third to be the Clarke family representative. In 2007, several Fifth Third

representatives met with Helen Hook Clarke, her husband, and David Clarke, III. At

this meeting, the Fifth Third representatives expressed concern about the

deteriorating values of the trusts and discussed diversification. Fifth Third records

indicate that the Clarkes seemed to understand their concerns, but were not

particularly troubled by them.          Fifth Third had prepared printed materials

expressing the concerns, which they gave to the Clarkes in attendance. They also

gave the Clarkes copies of these materials to give to the Clarke siblings.

          {¶12} While Fifth Third agreed that a sale of the entire company was the best
way to diversify, no such sale occurred during this time period, and Fifth Third

ultimately never diversified the trusts. This was due to a variety of circumstances,

including the potential loss of negative control that would result from certain means

of diversification; the Clarke family’s perceived ongoing opposition to diversification,

which was predominately derived from the parties’ history and discussions with

David Clarke, III; the capital structure of Standard Register, which allowed for

internal family control and resulted in a loss of interest from potential investors;

potential capital gains loss; a requirement in one of the trusts to act in concert with

the JQS trust; and the JQS trust shareholders’ refusal to sell.

          {¶13} In 2008, after learning that Standard Register had rejected a 2007
offer to sell, which would have diversified the trusts, Fifth Third filed a Schedule 13D

with the SEC. This filing disclosed the number of shares held in the trusts. It also

stated:

          In the exercise of their fiduciary duties to their clients, the Reporting

          Persons are considering their alternatives with respect to the holdings

                                                 5
                      OHIO FIRST DISTRICT COURT OF APPEALS



        of Common Stock in the accounts held by them in their fiduciary

        capacity for their clients. Representatives of the Reporting Persons

        have met with the management of Standard Register and expect to

        maintain a dialogue with management regarding, among other things,

        Standard Register’s operations, strategic direction, the extent to which

        it is achieving its current business plan, its capital structure and

        corporate governance and the Reporting Persons’ expectation that

        management of Standard Register will pursue appropriate measures to

        enhance shareholder value. In addition, the Reporting Persons may

        communicate with other persons regarding Standard Register,

        including, without limitations, the board of directors of Standard

        Register, other shareholders of Standard Register and potential

        strategic partners.

        {¶14} The filing also disclosed that Fifth Third would take an active role,
including proposing a merger, reorganization, or sale if it thought prudent. And it

stated that Fifth Third would continue to review its Standard Register holdings in

accordance with its fiduciary duties.

        {¶15} Fifth Third also scheduled a conference call in 2008 with all current
and remainder beneficiaries of the Sherman trusts to discuss the SEC filing and the

trusts’ concentration in Standard Register stock, and it mailed the beneficiaries a

copy of the script that was used during the conference call. As discussed later in this

opinion, the lack of diversification was a topic of conversation.

        {¶16} Due to Standard Register’s declining performance, the dividend issued
to Standard Register shareholders was reduced in 2009.

        {¶17} Standard Register merged with Workflow One in 2013. Workflow One
was the same company that had made an offer to purchase Standard Register in

2007.

                                               6
                        OHIO FIRST DISTRICT COURT OF APPEALS



          {¶18} In 2014, Fifth Third sent the Clarke siblings a letter asking for their
input as to whether the trusts should be diversified. Three of the Clarke siblings

were in favor of diversification, while two siblings indicated that they were against

diversification.

          {¶19} Standard Register filed for bankruptcy in 2015, and it was
subsequently purchased by another company.               The values of the two trusts

established by Sherman have declined to almost zero.

          {¶20} After becoming income beneficiaries following their mother’s death in
2015 shortly after the bankruptcy, the Clarke siblings began receiving information

from Fifth Third regarding the trusts’ holdings that their mother, as the current

beneficiary, had previously been receiving. These statements included the following

language:

          With regards to trusts governed by the laws of Ohio, a beneficiary may

          not commence a proceeding against a trustee for breach of trust more

          than two years after the date the beneficiary, the beneficiary’s

          representative or a beneficiary surrogate was sent a report that

          adequately disclosed the existence of a potential claim for breach of

          trust and informed the beneficiary, the beneficiary’s representative or

          a beneficiary surrogate of the limitation period.

          {¶21} On August 31, 2015, the Clarke siblings filed suit against Fifth Third,
raising multiple claims concerning Fifth Third’s management of the trusts’ assets.

Count I of the complaint asserted that Fifth Third had breached the common law,

statutory, and trust duty to diversify. It specifically alleged that Fifth Third had

breached the duty to properly and timely diversify the trusts, which continued to be

heavily weighted and concentrated in Standard Register stock, and that this failure to

diversify substantially diminished the value of the Clarke siblings’ interest in the

trusts.

                                                 7
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶22} Count II of the complaint asserted a claim for a breach of the duty of
impartiality. It alleged that Fifth Third “failed to factor into its judgment regarding

investment and non-diversification any weight at all to the interest of” the Clarke

siblings, and that Fifth Third failed to communicate with the Clarke siblings until it

sent them a letter in 2014. Count III of the complaint asserted a claim for breach of

trust/fiduciary duty, alleging that Fifth Third owed the Clarke siblings various

fiduciary duties, including the duties of utmost good faith and undivided loyalty, and

that it violated these duties by failing to consider the Clarke siblings’ interest when

making a decision regarding investments and nondiversification.

       {¶23}    Count IV of the complaint asserted a claim for unjust enrichment,

alleging that “Fifth Third obtained and continues to retain benefits to which it is not

entitled * * *, including but not limited to the fees which it took for the purpose of

prudently managing trust assets, which, given its abdication of its duties (particularly

the duty to diversify), [were] fees it did not earn.” This count further alleged that

Fifth Third had obtained these fees by way of constructive fraud and unjust

enrichment. The complaint also sought to have Fifth Third removed as trustee and

an injunction to prohibit Fifth Third from transferring any trust assets.

       {¶24} Fifth Third moved for summary judgment on all counts in the
complaint. It argued that the claim for breach of the duty to diversify was filed

outside the applicable limitations period, and that the remaining claims arose from

the breach of the duty to diversify and were likewise time-barred. Fifth Third further

argued that the Clarke siblings’ claims were barred by the doctrine of laches, that the

trust documents exculpated Fifth Third from any liability for retaining Standard

Register stock, and that it had fulfilled its fiduciary obligations to the trusts.

       {¶25} The Clarke siblings opposed Fifth Third’s motion for summary
judgment, and additionally filed their own motion for summary judgment “regarding



                                                 8
                        OHIO FIRST DISTRICT COURT OF APPEALS



defendant’s failure to diversify the trusts and failure to provide accurate accountings

of the trusts’ assets.”1

        {¶26} The trial court granted Fifth Third’s motion for summary judgment
and denied the motion filed by the Clarke siblings. In its judgment entry, the trial

court found that the essence of all the Clarke siblings’ claims was a breach of

fiduciary duty for the failure to diversify and that the claims were filed outside of the

four-year limitation period set forth in R.C. 5810.05. It further found that the Clarke

siblings’ claims were barred by the equitable doctrine of laches.

        {¶27} The Clarke siblings have appealed, raising four assignments of error
for our review. We address these assignments out of order.


                                     Standard of Review


        {¶28} We review a trial court’s grant of summary judgment de novo. Grafton
v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).                    Summary

judgment is appropriately granted when there exists no genuine issue of material

fact, the party moving for summary judgment is entitled to judgment as a matter of

law, and the evidence, when viewed in favor of the nonmoving party, permits only

one reasonable conclusion that is adverse to that party. State ex rel. Howard v.

Ferreri, 70 Ohio St.3d 587, 589, 639 N.E.2d 1189 (1994).




1 In the motion for summary judgment, the Clarke siblings argued that the claim for the breach of
the duty to diversify was based on Fifth Third’s violation of R.C. 5809.03(B), which provides that
“[a] trustee shall diversify the investments of a trust unless the trustee reasonably determines
that, because of special circumstances, the purposes of the trust are better served without
diversifying.” The motion acknowledged that this duty to diversify is the same as the duty
previously recognized under Ohio common law in R.C. 1339.54(B). See Wood v. U.S. Bank, 160
Ohio App.3d 831, 2005-Ohio-2341, 828 N.E.2d 1072, ¶ 21 (1st Dist.) (recognizing that the
common law duty to diversify was codified in R.C. 1339.54(B).


                                                    9
                         OHIO FIRST DISTRICT COURT OF APPEALS



                                      Failure to Diversify


        {¶29} We begin our analysis with the Clarke siblings’ third assignment of
error, in which they argue that the trial court erred in granting summary judgment

on their claim for breach of the duty to diversify based on the statute of limitations.

They specifically contend that, after the conclusion of their 1986 lawsuit against Fifth

Third, they had no knowledge that the trusts remained undiversified or that Fifth

Third had breached the duty to diversify. They argue that they did not learn about

the lack of diversification and breach of duty until they became income beneficiaries

in 2015 and received documentation from Fifth Third regarding the trusts.

        {¶30} R.C. 5810.05(C) provides:
        If division (A) of this section does not apply, notwithstanding section

        2305.09 of the Revised Code, a judicial proceeding by a beneficiary

        against a trustee for breach of trust must be commenced within four

        years after the first of the following to occur:

        (1) The removal, resignation, or death of the trustee;

        (2) The termination of the beneficiary’s interest in the trust;

        (3) The termination of the trust;

        (4) The time at which the beneficiary knew or should have known of

        the breach of trust.2

        {¶31} R.C. 5801.03 provides a general definition of what constitutes
“knowledge” regarding trust issues. See Zook v. JPMorgan Chase Bank Natl. Assn.,

2017-Ohio-838, 85 N.E.3d 1197, ¶ 38 (10th Dist).                 It states that “a person has

knowledge of a fact if any of the following apply:                 (1) The person has actual

knowledge of the fact[;] (2) The person has received notice or notification of the



2 The statute of limitations for a general breach of fiduciary duty is also four years. See Meehan v.
Mardis, 1st Dist. Hamilton No. C-180406, 2019-Ohio-4075, ¶ 12; R.C. 2305.09.


                                                     10
                        OHIO FIRST DISTRICT COURT OF APPEALS



fact[; or] (3) From all the facts and circumstances known to the person at the time in

question, the person has reason to know the fact.” R.C. 5801.03(A).

       {¶32} The Clarke siblings claim that Fifth Third breached its duty to diversify
from 1986 forward. The four-year limitations period thus began to run when the

Clarke siblings either knew or should have known that the trusts remained

undiversified, as they had insisted upon in 1986-1987, and that Fifth Third had

breached the duty to diversify. See Ross Sinclaire and Assoc., LLC v. Huntington

Natl. Bank, 2018-Ohio-661, 106 N.E.3d 866, ¶ 30 (10th Dist.). “[C]onstructive

knowledge of facts, rather than actual knowledge of their legal significance, is

enough to start the statute of limitations running under the discovery rule.” Cundall

v. U.S. Bank, 122 Ohio St.3d 188, 2009-Ohio-2523, 909 N.E.2d 1244, ¶ 30, quoting

Flowers v. Walker, 63 Ohio St.3d 546, 549, 589 N.E.2d 1284 (1992).

       {¶33} While all the Clarke siblings gave deposition testimony that they had
no actual knowledge that the trusts remained undiversified, the record contains

ample evidence that the Clarke siblings had constructive knowledge, if not actual

knowledge, as of 2008. The evidence establishes that they should have known that

the trusts remained concentrated in Standard Register stock as the family demanded

by its prior lawsuit.

       {¶34} The Clarke siblings received annual proxy statements from Standard
Register from 1986 onward that set forth the number and percentage of shares held

by the two trusts. These statements showed that, other than experiencing a stock

split, the number of shares held by the trusts did not change. The percentage of

shares held by the trusts likewise remained substantially the same from year to year.

While this did not provide the Clarke siblings with knowledge as to the entire

investment portfolio of the trusts, it gave them knowledge that the trusts had not

been divested of Standard Register stock in any given year. And since this was the

primary corpus of the trusts, unless other funding was being made, the percentage

                                             11
                     OHIO FIRST DISTRICT COURT OF APPEALS



would remain the same. And there is no evidence that the trusts had other sources of

funding.

       {¶35} In 2008, Fifth Third filed a Schedule 13D with the SEC after learning
that Standard Register had rejected an offer to be purchased by Workflow One

without consulting Fifth Third. The 13D clearly showed the number of Standard

Register shares owned by the trusts.        Also in 2008, Fifth Third scheduled a

conference call for all current and remainder beneficiaries of the trusts to discuss the

Schedule 13D filing and Fifth Third’s concern about the trusts’ concentration in

Standard Register stock. Fifth Third’s records indicated that both Bridget Murphy

and Catherine Clarke participated in the call, although Murphy testified that she had

no recollection of doing so. Fifth Third mailed a copy of the script that had guided

the conference call to all beneficiaries. This script contained multiple statements

regarding the public filing with the SEC and the trusts’ lack of diversification. These

statements included “out of an abundance of caution, we made this 13D filing to

cover our obligations under securities laws and in case we decide to go further to

protect our undiversified investment in the shares of Standard Register”; “[o]ne

significant hurdle to consider in the diversification or sale of Standard Register

historically has been the very high level of income paid to the current beneficiaries”;

“[w]e would prefer the trust portfolios be diversified under the right circumstances”;

and “[t]he 13D filing was essential in enabling us to communicate these views to the

company.”

       {¶36} Following our review of the record, we find that under these collective
circumstances, the Clarke siblings should have known by 2008 that the trusts

remained undiversified and that Fifth Third had, according to them, breached the

duty to diversify. The statute of limitations for a claim for a breach of the duty to

diversity began running at that time. The Clarke siblings’ claim, filed in 2015, was

filed outside of the four-year limitations period set forth in R.C. 5810.05(C)(4).

                                              12
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶37} The Clarke siblings contend that R.C. 5810.05(C)(4) does not apply
and that their claim was filed within the limitations period set forth in R.C.

5810.05(A), which provides that:

       A beneficiary may not commence a proceeding against a trustee for

       breach of trust more than two years after the date the beneficiary, a

       representative of the beneficiary, or a beneficiary surrogate is sent a

       report that adequately discloses the existence of a potential claim for

       breach of trust and informs the beneficiary, the representative of the

       beneficiary, or the beneficiary surrogate of the time allowed for

       commencing a proceeding against a trustee.

The Clarke siblings argue that, pursuant to R.C. 5810.05(A), the limitations period

began to run in 2015 when they first received a report from Fifth Third concerning

the trusts which contained the disclosure that a claim against a trustee for breach of

trust must be commenced within two years of receiving a report that adequately

disclosed the existence of a potential claim.

       {¶38} We find this argument to be without merit. R.C. 5810.05(C) sets forth
a general four-year statute of limitations for breach of trust. R.C. 5810.05(A) puts a

further limitation on that time period: if a beneficiary received a written report

which discloses the potential claim for breach of trust, and the report contains the

required statutory disclosure, the action must be brought within two years. R.C.

5810.05(A) does not extend the statute of limitations nor state that the statute does

not begin to run until a report is sent. Rather, it shortens the four year statute to two

years when a report is sent that discloses the potential breach and contains the

disclosure.   Here, the Clarke siblings should have known that Fifth Third had

breached the duty to diversify by 2008, years before a report described in R.C.

5810.05(A) was sent.      The statute of limitations set forth in R.C. 5810.05(C)

accordingly controls in this case.

                                                13
                     OHIO FIRST DISTRICT COURT OF APPEALS



        {¶39} The Clarke siblings further argue that “a statute of limitations cannot
bar a claim relating to conduct that takes place after the date that the statute begins

to run” and that the “part of the Clarke Siblings’ failure-to-diversify claim that

concerns Fifth Third’s conduct after the limitations period began to run is not subject

to a statute of limitations defense.” They contend that if this court were to find that

their claim for breach of the duty to diversify was filed outside of the limitations

period, the claim still survives as to Fifth Third’s conduct from 2011 onward (which

encompassed the four-year period prior to the litigation being filed and was within

the limitations period from that date). They claim Fifth Third failed to diversify

throughout the period 2011 onward.

        {¶40} The Clarke siblings rely on Tibble v. Edison Internatl., __ U.S. __, 135
S.Ct. 1823, 191 L.Ed.2d 795 (2015), in support of their argument. In Tibble, the

plaintiffs were beneficiaries of a 401(k) savings plan who had sued the plan

fiduciaries for investing in six particular retail-class mutual funds, when identical

lower priced institutional-class mutual funds were available for purchase. Id. at

1824. The Ninth Circuit Court of Appeals held that, because ERISA imposed a six-

year statute of limitations on a breach-of-fiduciary-duty complaint, the plaintiffs’

complaint was untimely as to three of the mutual funds because the plan had

purchased them more than six years before the lawsuit was filed and there had not

been a change in circumstances to trigger an obligation to review the funds. Id. at

1825. The United States Supreme Court vacated the Ninth Circuit’s decision, holding

that:

        [A] fiduciary normally has a continuing duty of some kind to monitor

        investments and remove imprudent ones. A plaintiff may allege that a

        fiduciary breached the duty of prudence by failing to properly monitor

        investments and remove imprudent ones. In such a case, so long as

        the alleged breach of the continuing duty occurred within six years of

                                             14
                      OHIO FIRST DISTRICT COURT OF APPEALS



       suit, the claim is timely. The Ninth Circuit erred by applying a 6-year

       statutory bar based solely on the initial selection of the three funds

       without considering the contours of the alleged breach of fiduciary

       duty.

Id. at 1828-1829.

       {¶41} We find Tibble to be distinguishable from the case at bar. First, Tibble
was based on federal law. See Cattau v. Natl. Ins. Servs. of Wisconsin, Inc., 383

Wis.2d 600, 918 N.W.2d 127, ¶ 36 (Wis.App.2018), fn. 13 (holding that Tibble was

inapplicable because it was based on federal law and had addressed whether claims

for a breach of fiduciary duty under ERISA were timely and not whether a fiduciary

duty existed). Additionally, Tibble is factually distinguishable, as it contained no

allegations that the plaintiffs were aware that the plan had purchased retail-class

mutual funds, as opposed to identical lower priced institutional-class funds, and then

sat on that knowledge for years before filing suit. Here, the Clarke siblings were

constructively, if not actually, aware that the trusts were undiversified and that Fifth

Third had potentially breached the duty to diversify by 2008, at the latest, and

waited approximately seven years to file their complaint.

       {¶42} Because the Clarke siblings filed their claim for breach of the duty to
diversify outside of the applicable limitations period, the trial court did not err in

granting summary judgment to Fifth Third on that claim. The third assignment of

error is overruled.


                           Gravamen of Remaining Claims


       {¶43} In their first and second assignments of error, the Clarke siblings
challenge the trial court’s grant of summary judgment on their remaining claims. In

the first assignment of error, they specifically argue that the trial court erred in



                                              15
                        OHIO FIRST DISTRICT COURT OF APPEALS



determining that their claims for charging excessive trustee fees and imprudently

investing the trusts’ assets were based on the same underlying misconduct as the

claim for breach of the duty to diversify. And in the second assignment of error, they

likewise argue that their claim that Fifth Third failed to accurately account for the

trusts’ holdings was supported by different allegations of misconduct than those

supporting the claim for breach of the duty to diversify.

       {¶44} The Clarke siblings’ complaint did not contain claims for imprudent
investment or failure to accurately account. In their complaint, the Clarke siblings

raised claims for breach of the duty to diversify, breach of the duty of impartiality,

breach of trust/fiduciary duty, and unjust enrichment. The claim for breach of the

duty of impartiality was supported by the following allegations:

       Defendant-Trustee Fifth Third owed to the [Clarke siblings] the duty of

       impartiality during the time that they were residual beneficiaries.

       Defendant-Trustee Fifth Third failed to factor into its judgment

       regarding investment and non-diversification any weight at all to the

       interest of [the Clarke siblings]. Defendant-Trustee Fifth Third failed

       to communicate with them until it sent Fifth Third’s 2014 letter to

       Beneficiaries.

And the claim for breach of trust/fiduciary duty alleged that:

       Defendant-Trustee Fifth Third owed to [the Clarke siblings] duties

       under the Trust, the Ohio Trust Code * * *, and/or the Common Law of

       Ohio, including but not limited to the fiduciary duties of utmost good

       faith, undivided loyalty including but not limited to avoidance [sic]

       conflict of interest and self-dealing, to act solely in their best interest,

       to use reasonable care and skill, to use the special skills it possessed

       and is deemed to possess as a professional Trustee, and to protect

       Trust property. Defendant-Trustee Fifth Third failed to factor into its

                                               16
                     OHIO FIRST DISTRICT COURT OF APPEALS



       judgment regarding investments and non-diversification any weight at

       all to the interest of [the Clarke siblings]. Defendant-Trustee Fifth

       Third failed to communicate with them until late in 2014.

       {¶45} But on appeal, the Clarke siblings have essentially relabeled their
claims for breach of the duty of impartiality and breach of trust/fiduciary duty as

claims for imprudently investing the trusts’ assets and failing to accurately account

for the trusts’ holdings. They contend Fifth Third acted imprudently not by merely

failing to diversify the trusts’ holdings in Standard Register stock, but by investing

any portion of the trusts’ assets in that stock. And they contend that the failure-to-

accurately-account claim is based on Fifth Third’s failure to record accurate values

for the trusts over a 14-year period. The complaint, which was never amended, is

devoid of the allegations that the Clarke siblings rely on in this appeal in support of

their claims.

       {¶46} Courts must look to the “actual nature or subject matter of the case,”
rather than to the form in which the action is pled, to determine the applicable

statute of limitations. Freeman v. Durrani, 1st Dist. Hamilton No. C-180197, 2019-

Ohio-3643, ¶ 15, quoting Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 183,

465 N.E.2d 1298 (1984). We consider the allegations in support of each claim as set

forth in the complaint when determining whether the trial court erred in

determining that the claims for breach of the duty of impartiality and breach of

trust/fiduciary duty were essentially also claims for breach of the duty to diversify

and were filed outside of the limitations period. In doing so, we agree with the trial

court’s determination that these two claims were in essence claims for a breach of the

duty to diversify, as both claims were predominately supported by the allegation that

Fifth Third failed to take the Clarke siblings’ interest into account when making

decisions regarding diversification.



                                              17
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶47} We hold that the trial court did not err in finding that the claims for
breach of the duty of impartiality and breach of trust/fiduciary duty stemmed from

the alleged failure to diversify and were barred by the statute of limitations.

       {¶48} But we reach a different conclusion with respect to the Clarke siblings’
claim for unjust enrichment. Although they refer to this claim on appeal as a claim

for charging excessive trustee fees, the Clarke siblings rely on similar allegations to

support the claim in both this appeal and the complaint. The complaint contained

the following allegations in support of this claim:

       Defendant-Trustee Fifth Third obtained and continues to retain

       benefits to which it is not entitled, at the expense of [the Clarke

       siblings,] including but not limited to the fees which it took for the

       purposes of prudently managing Trust assets, which, given its

       abdication of its duties (particularly the duty to diversify), [were] fees

       it did not earn.

       {¶49} The unjust-enrichment claim was based on Fifth Third’s alleged
improper taking of fees from the trust. Although the complaint alleges that one

reason Fifth Third was not entitled to the fees was because it had failed to diversify

the trusts, the misconduct alleged in this claim is separate from the allegations of

misconduct supporting the claim for breach of the duty to diversify the trusts. We

therefore hold that the trial court erred in finding that the unjust-enrichment claim

stemmed from the claim concerning the failure to diversify.

       {¶50}    The second assignment of error is overruled. The first assignment of

error is sustained in part and overruled in part.




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                                         Laches


       {¶51} In their fourth assignment of error, the Clarke siblings argue that the
trial court erred in granting summary judgment to Fifth Third on their failure-to-

diversify claim based on the doctrine of laches.

       {¶52} We decline to address this assignment of error, as it is rendered moot
by our resolution of the third assignment of error, where we upheld the trial court’s

grant of summary judgment on the claim for breach of the duty to diversify because

it was filed outside of the applicable limitations period.


                                       Conclusion


       {¶53} We affirm the trial court’s grant of summary judgment to Fifth Third
on the Clarke siblings’ claims for breach of the duty to diversify, breach of the duty of

impartiality, and breach of trust/fiduciary, as the claims were barred by the statute of

limitations.   But because the Clarke siblings’ claim for unjust enrichment was

supported by separate allegations of misconduct than those supporting the claim for

breach of the duty to diversify, we reverse the trial court’s grant of summary

judgment on that claim. This cause is remanded for proceedings consistent with the

law and this opinion.

                    Judgment affirmed in part, reversed in part, and cause remanded.



MOCK, P.J., and CROUSE, J., concur.




Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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