[Cite as Zook v. JPMorgan Chase Bank, 2017-Ohio-838.]

                            IN THE COURT OF APPEALS OF OHIO

                                TENTH APPELLATE DISTRICT


Jeffrey Zook et al.,                             :

               Plaintiffs-Appellees,             :

OhioHealth Foundation, Inc. et al.,              :                No. 15AP-750
                                                               (C.P.C. No. 13CV-6033)
               [Involuntary] Plaintiffs-         :
               Appellants,                                (REGULAR CALENDAR)
                                                 :
v.
                                                 :
JPMorgan Chase Bank National
Association,                                     :

               Defendant-Appellee.               :

Jeffrey Zook et al.,                             :

               Plaintiffs-Appellants,            :

OhioHealth Foundation, Inc. et al.,              :                No. 15AP-751
                                                               (C.P.C. No. 13CV-6033)
               [Involuntary] Plaintiffs-         :
               Appellees,                                 (REGULAR CALENDAR)
                                                 :
v.
                                                 :
JPMorgan Chase Bank National
Association,                                     :

               Defendant-Appellee.               :



                                      D E C I S I O N

                                   Rendered on March 9, 2017


               On brief: Robert Gray Palmer Co., LPA, and Robert G.
               Palmer; Paul A. Bodycombe, for Jeffrey Zook, Karla
Nos. 15AP-750 & 15AP-751                                                                 2

              Hindman, Kimberly Heath-Goodman, Cynthia Wolfe, Sean
              Zook, and Jason Zook. Argued: Robert G. Palmer.

              On brief: Dreyfuss Williams & Associates Co., L.P.A.,
              John F. Garswood, Nicholas J. Kopcho, and Michael T.
              Williams, for OhioHealth Foundation, Inc. and Columbus
              Museum of Art.

              On brief: Carpenter Lipps & Leland LLP, Jeffrey A. Lipps,
              and Angela Paul Whitfield, for JPMorgan Chase Bank, N.A.
              Argued: Jeffrey A. Lipps.

               APPEALS from the Franklin County Court of Common Pleas

BROWN, J.

       {¶ 1} This is an action by beneficiaries of a trust bringing claims against the
institutional trustee for negligence and breach of fiduciary duty. Plaintiffs-appellants
Jeffrey Zook, Karla Hindman, Kimberly Heath-Goodman, Cynthia Wolfe, Sean Zook, and
Jason Zook (the "Zook plaintiffs") appeal from a judgment of the Franklin County Court
of Common Pleas granting summary judgment in favor of defendant-appellee, JPMorgan
Chase Bank, N.A. ("Chase"). Involuntary plaintiffs-appellants, OhioHealth Foundation,
Inc. and Columbus Museum of Art ("involuntary plaintiffs") together filed a separate
notice of appeal from the same judgment. This court has consolidated the two appeals for
argument and determination.
       {¶ 2} On October 10, 1990, John D. Zook ("John Zook Sr.") executed a last will
and testament and created the John D. Zook Trust. John Zook Sr. named his wife, Sharon
Zook, as income beneficiary of the trust, and selected Chase's corporate predecessor, Bank
One, as successor trustee of the trust upon his death. The remainder beneficiaries of the
trust at inception were the five adult children of John Zook Sr. by a previous marriage,
John Zook Jr., Jeffrey, Karla, Kimberly, and Cynthia, as well as predecessor entities for
the two charities that have become involuntary plaintiffs in the case. Under Article VII of
the trust instrument, the trust would terminate upon the death of Sharon and distribute
all remaining assets to the remainder beneficiaries.
       {¶ 3} On November 26, 1995, John Zook Sr. died and Chase became successor
trustee of the trust. At that time, the greater part of trust assets were comprised of a
Nos. 15AP-750 & 15AP-751                                                                   3

controlling interest in Zook Advertising, Inc. ("Zook Advertising") a business founded and
operated by John Zook Sr.
       {¶ 4} Article X of the trust instrument states in part:

               Being aware of the fact that the duties the Trustee has been
               requested to assume with respect to the business interests
               may considerably enlarge and increase the Trustee's usual
               responsibilities, duties, and work as Trustee, it is agreed that
               the Trustee shall be entitled to such additional reasonable
               compensation as is commensurate with the time, effort, and
               responsibility involved in the Trustee's performance of
               services rendered to the business may be paid by the Trustee
               from the business or from other assets, or from both, as the
               Trustee in the Trustee's discretion may determine to be
               advisable.

               Upon the death of the Grantor, the Grantor's spouse,
               SHARON G. ZOOK, shall have the right to either operate and
               manage any business and/or real estate (whether corporate,
               partnership, or proprietary in form) in which the Grantor had
               an interest at the time of Grantor's death which becomes a
               part of this trust, or designate any third party acceptable to
               the Trustee to operate and manage any such business, but
               subject to a management contract that either SHARON G.
               ZOOK or her designee must enter into with the Trustee.

       {¶ 5} After John Zook Sr. died, Sharon immediately took over operation and
control of Zook Advertising although she and Chase never entered into the management
agreement required by Article X. When John Zook Sr.'s majority ownership interest,
comprising 148 shares out of 150 issued and transferred to the trust in January 1997,
Zook Advertising had an appraised value of $1,036,000.00 on the trust accounts and
probate inventory.     The balance of other trust assets at that time amounted to
$258,904.69.
       {¶ 6} The business thereafter went into a rapid decline under Sharon's
management. The shares of Zook Advertising remained an asset of the trust until 2003,
at which time Chase considered that the business was not only worthless but presented a
significant risk of liability that could compromise the other assets still held by the trust.
Chase then sold the trust's 148 shares to Sharon for the nominal figure of $5 per share, or
$740.00 total. Shortly thereafter, Zook Advertising ceased business entirely.
Nos. 15AP-750 & 15AP-751                                                                  4

       {¶ 7} In 2010, Sharon died. Her death triggered termination and distribution of
the trust under Article VII of the trust instrument. Due to the intervening death of John
Zook Jr. in 2003, two grandchildren of John Zook Sr., Jason and Sean Zook, had become
remainder beneficiaries by this time under Article VII(1)(a), alongside the four surviving
children and the charities.
       {¶ 8} David Curry, a Chase employee, sent a letter to each remainder beneficiary,
advising that Chase would provide a "Receipt, Release and Refunding Agreement" for
signature by each beneficiary so that Chase could close the trust and distribute the corpus.
In his letter to the beneficiaries, Curry summed up the terms of the release agreement:
"These agreements basically state that you acknowledge receipt of the assets, agree to
release the Bank for the administration of the trust and also to refund any funds
distributed out should additional taxes, bills or expenses be owed after we have released
the funds."
       {¶ 9} Each of the Zook plaintiffs and involuntary plaintiffs eventually signed such
a release, which states in pertinent part as follows:
              NOW, THEREFORE, in order to induce the Trustee to
              terminate the Trusts without seeking formal court approval of
              its accounting, and to distribute all of the Trusts' assets to
              Jeffrey A. Zook, Karla L. Zook, Kimberly A. Heath, Cynthia A.
              Wolfe, Jason Zook, Sean Zook, OhioHealth Foundation, and
              Columbus Museum of Art, and in consideration of the
              premises and other good and valuable consideration, receipt
              of which is hereby acknowledged, the undersigned, Jeffrey A.
              Zook, Karla L. Zook, Kimberly A. Heath, Cynthia A. Wolfe,
              Jason Zook, Sean Zook, OhioHealth Foundation, and
              Columbus Museum of Art remainder beneficiaries of the Trust
              (hereafter called the "Beneficiaries"), for themselves and their
              descendants, spouse, heirs, successors, assigns and legal
              representatives, agree and covenant as follows:

              That the accounting of receipts, disbursements and
              transactions of JPMorgan Chase Bank, National Association
              as Trustee from the inception of the Trusts to the date hereof
              are correct and approved, and all of the acts, doings,
              administration, and omissions of JPMorgan Chase Bank,
              National Association with respect to the Trusts are hereby
              ratified, affirmed and approved;
Nos. 15AP-750 & 15AP-751                                                                5

              That JPMorgan Chase Bank, National Association, as soon as
              is practicable, shall deliver the assets of the Trusts, including
              principal and any accrued or unpaid income to the
              Beneficiaries in the percentages specified as follows: Jeffrey A.
              Zook 8%, Karla L. Zook 8%, Kimberly A. Heath 8%,
              Cynthia A. Wolfe 8%; Jason Zook 4%, Sean Zook 4%,
              OhioHealth Foundation 50%, and Columbus Museum of Art
              10%;

              That effective immediately, JPMorgan Chase Bank, National
              Association is released and discharged for having acted as
              Trustee of the Trusts and the Trusts are considered
              terminated;

              That Jeffrey A. Zook, Karla L. Zook, Kimberly A. Heath,
              Cynthia A. Wolfe, Jason Zook, Sean Zook, OhioHealth
              Foundation, and Columbus Museum of Art, remainder
              beneficiaries of the Trust, hereby agree to release, indemnify,
              defend and hold harmless JPMorgan Chase Bank, National
              Association, both as a Trustee of the Trusts and in its
              individual capacity, its affiliates and their respective officers,
              directors, employees, stockholders, successors, predecessors,
              assigns and representatives, against any and all action,
              inaction, grounds for complaint, and any causes of action, in
              law or in equity, suits, debts, liens, contracts, promises, taxes,
              interest, penalties, liabilities, losses, claims, expenses
              (including legal and other professional fees), costs or other
              demands which it may incur or which may be charged against
              it by reason of its acting as Trustee of the Trusts * * *.

(Emphasis sic.)

       {¶ 10} Chase began distributing the remaining trust assets to beneficiaries in June
2011. On May 31, 2013, the Zook plaintiffs filed a complaint against Chase stating claims
for breach of fiduciary duty and negligence, and adding a demand for an accounting and
audit. These claims rested on the loss to trust corpus that resulted from the decline in
value of Zook Advertising shares during Chase's oversight of the trust. The Columbus
Museum of Art and the OhioHealth Foundation, Inc. were named as involuntary plaintiffs
based on their status as remainder beneficiaries.
       {¶ 11} On August 30, 2013, Chase filed a motion for judgment on the pleadings.
On September 4, 2013, Chase filed an answer, counterclaim, and third-party complaint.
The counterclaim alleged claims for breach and declaratory judgment against the Zook
Nos. 15AP-750 & 15AP-751                                                                   6

plaintiffs. The third-party complaint sought indemnification from the estate of Sharon
Zook. On September 23, 2013, the involuntary plaintiffs filed an answer to the Zook
plaintiffs' complaint. On October 16, 2013, the Zook plaintiffs filed a memorandum
contra Chase's motion for judgment on the pleadings.
       {¶ 12} By entry filed March 24, 2014, the trial court granted in part and denied in
part Chase's motion for judgment on the pleadings. Specifically, the court found that the
involuntary plaintiffs had conceded that their claims against Chase were barred by the
terms of a release and that Chase was entitled to judgment on the pleadings as to these
parties. The court further agreed with Chase's contention that the Zook plaintiffs' claims
for an accounting and audit were remedies and not separate causes of action.
Accordingly, the court found Chase was entitled to judgment on the pleadings on that
issue. The trial court denied Chase's motion for judgment on the pleadings as to the
remaining claims by the Zook plaintiffs.
       {¶ 13} On April 23, 2014, the involuntary plaintiffs filed a notice of appeal from the
trial court's entry granting in part Chase's motion for judgment on the pleadings. On
April 25, 2014, the Zook plaintiffs filed an amended complaint. On May 12, 2014, Chase
filed an answer to the amended complaint, restating the prior counterclaims but not
addressing its previous third-party claims against the estate of Sharon Zook.
       {¶ 14} On May 15, 2014, the involuntary plaintiffs filed a motion for
reconsideration with the trial court requesting the court reconsider its entry granting
judgment on the pleadings in favor of Chase as to the involuntary plaintiffs. On June 3,
2014, Chase filed a response to the involuntary plaintiffs' motion for reconsideration. On
June 9, 2014, the Zook plaintiffs filed a reply to Chase's counterclaim. By entry filed
June 18, 2014, the trial court granted the involuntary plaintiffs' motion for
reconsideration and vacated the judgment on the pleadings previously entered against
them. As a result, the involuntary plaintiffs dismissed their first appeal to this court from
the trial court's entry granting in part Chase's motion for judgment on the pleadings.
Zook v. JPMorgan Chase Bank, N.A., 10th Dist. No. 14AP-342 (June 16, 2014 journal
entry of dismissal).
       {¶ 15} On September 16, 2014, the Zook plaintiffs filed a second amended
complaint restating their claims for negligence and breach of fiduciary duty. This is now
Nos. 15AP-750 & 15AP-751                                                                   7

the operative complaint in the matter. On October 1, 2014, Chase filed an answer to the
second amended complaint.        This pleading does not modify the prior counterclaim
against the Zook plaintiffs. On October 31, 2014, the involuntary plaintiffs filed separate
answers to the second amended complaint.
       {¶ 16} On April 30, 2015, Chase filed a motion for summary judgment asserting
that the beneficiaries' claims were barred by the releases and barred by the two-year
statute of limitations imposed by R.C. 5810.05 on actions against a trustee. Chase also
argued that the beneficiaries could not commence the action without tendering back the
sums they had received upon distribution, and that the negligence claim was duplicative
of the breach of fiduciary duty claim. On May 12, 2015, the involuntary plaintiffs filed a
response to Chase's motion for summary judgment. On May 22, 2015, the Zook plaintiffs
filed a memorandum contra Chase's motion for summary judgment.
       {¶ 17} On July 1, 2015, the trial court conducted an oral hearing on the summary
judgment motion. The court then rendered a decision from the bench granting summary
judgment on the basis that the releases barred any breach of fiduciary duty claim and the
negligence claim was subsumed into a breach claim and similarly barred. The court
expressly rejected Chase's statute of limitations and tender arguments. By entry filed
July 7, 2015, the trial court journalized its decision and granted summary judgment in
favor of Chase on all claims in the second amended complaint. The entry did not dispose
of Chase's counterclaims. On August 5, 2015, the trial court entered a nunc pro tunc order
to add Civ.R. 54(B) language and allow an immediate appeal without disposing of Chase's
counterclaims and third-party complaint.
       {¶ 18} On appeal, the Zook plaintiffs set forth the following assignment of error for
this court's review:
              THE TRIAL COURT ERRED TO THE SUBSTANTIAL
              PREJUDICE OF PLAINTIFFS-APPELLANTS ZOOKS IN
              GRANTING SUMMARY JUDGMENT IN FAVOR OF
              DEFENDANT-APPELLEE JPMORGAN CHASE BANK, N.A.

       {¶ 19} The involuntary plaintiffs set forth the following assignment of error for this
court's review:
              The trial court erred in finding that the burden of proving the
              invalidity of a release that releases a trustee from liability to a
              trust beneficiary is on the beneficiary and not on the trustee.
Nos. 15AP-750 & 15AP-751                                                                     8


       {¶ 20} We initially note that the trial court decided this matter by summary
judgment which under Civ.R. 56(C) may be granted only when there remains no genuine
issue of material fact, the moving party is entitled to judgment as a matter of law, and
reasonable minds can come to but one conclusion, that conclusion being adverse to the
party opposing the motion. Tokles & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d
621, 629 (1992), citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64 (1978).
Additionally, a moving party cannot discharge its burden under Civ.R. 56 simply by
making conclusory assertions that the non-moving party has no evidence to prove its case.
Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). Rather, the moving party must point to
some evidence that affirmatively demonstrates that the non-moving party has no evidence
to support each element of the stated claims. Id. "A plaintiff or counterclaimant moving
for summary judgment does not bear the initial burden of addressing the nonmoving
party's affirmative defenses." Todd Dev. Co. v. Morgan, 116 Ohio St.3d 461, 2008-Ohio-
87, syllabus.
       {¶ 21} An appellate court's review of summary judgment is de novo. Koos v. Cent.
Ohio Cellular, 94 Ohio App.3d 579, 588 (8th Dist.1994); Bard v. Soc. Natl. Bank, 10th
Dist. No. 97APE11-1497 (Sept. 10, 1998). Thus, we conduct an independent review of the
record and stand in the shoes of the trial court. Jones v. Shelly Co., 106 Ohio App.3d 440,
445 (5th Dist.1995). As such, we have the authority to overrule a trial court's judgment if
the record does not support any of the grounds raised by the movant, even if the trial
court failed to consider those grounds. Bard.
       {¶ 22} The Zook plaintiffs and involuntary plaintiffs concede on appeal that, as the
case is now postured, the underlying substantive claims against Chase for negligence and
breach of fiduciary duty are not before the court. The sole issue on appeal is whether the
trial court correctly found there remained no genuine issue of material fact on those
claims solely because all plaintiff beneficiaries had executed releases barring subsequent
claims against Chase for its administration of the trust. Otherwise stated, the only issues
for determination here are the validity and preclusive effect of those releases.
       {¶ 23} Ohio law provides for two alternative mechanisms by which a trustee may
conclude its role as trustee and finally settle all questions of responsibility with respect to
the trustee's actions. The first option is a judicial proceeding under R.C. 5802.01 and
Nos. 15AP-750 & 15AP-751                                                                      9

2721.05. As an alternative to such judicial proceedings, the trustee may obtain a release
from beneficiaries under R.C. 5810.09, 5808.17(C), and 5808.02(B)(4).
          {¶ 24} R.C. 5810.09 provides in pertinent part as follows: "A trustee is not liable to
a beneficiary for breach of trust if the beneficiary * * * released the trustee from liability
for the breach. This section applies regardless of whether the conduct being * * * released
* * * constitutes one or more breaches of fiduciary duty, violates one or more provisions of
the Revised Code, or is taken without required court approval." Under R.C. 5808.17(C), a
release is valid unless it (1) "was induced by improper conduct of the trustee," (2) the
beneficiary "did not know of the beneficiary's rights," or (3) the beneficiary "did not know
of the material facts relating to the breach" when the beneficiary signed the release.
          {¶ 25} The evidence before the trial court consisted of depositions taken from the
six individual beneficiaries, trust administration documents, probate documents, and
depositions of certain bank employees. In granting summary judgment in favor of Chase,
the trial court considered whether the Zook plaintiffs and involuntary plaintiffs had
evidence supporting the application of any of the exceptions to invalidating a release. The
court first determined that the Zook plaintiffs and involuntary plaintiffs had not shown
any improper conduct or overreaching by Chase in obtaining the releases from the
beneficiaries. The court noted in part: "We had pretty sophisticated beneficiaries. They're
all fairly well educated. They knew about their father's business." (Tr. at 53.) The court
also found the second exception inapplicable because the beneficiaries had not presented
evidence to establish that they did not know of their rights. The court found that all
beneficiaries "knew they were signing a release. They knew that they were releasing all
claims against the bank. They may not have consulted counsel, but they could have." (Tr.
at 54.)
          {¶ 26} The court finally considered the third exception: whether the beneficiaries
did not know of the material facts relating to the breach. The court found the knowledge
standard under the statute to be "an objective constructive standard." (Tr. at 55.) The
court held in pertinent part:
                 Facts in the record, undisputed. The Zook children knew
                 about the business. They knew they were signing a release --
                 at the point that they were asked to sign a release and got
                 notice in 2011, they knew they were beneficiaries to a trust.
                 Whether they knew before or not, again, and whether [Chase]
Nos. 15AP-750 & 15AP-751                                                          10

            should have notified them all what was going on before, I tend
            to agree with Mr. Palmer.

            Again, I think [Chase] didn't live up to what it was supposed
            to do here, but the Zook kids signed a release. I think they had
            constructive knowledge, at that point, of all the material facts
            relating to the breach.

            You're going to sign a release; the business wasn't listed, and
            it had been listed before.

            When their dad died, they did sign off on the right to go to
            hearings and those kind of things. A document was produced,
            a certified copy. They could have found out there was a trust
            way back when.

            I find it hard to believe -- and, again, maybe this is not facts in
            the record, but I guess -- I find it hard to believe that kids,
            when they have a stepmom -- or not even a stepmom, but a
            third wife, and their father dies, lay people -- I mean, this is
            starting more fights in the law than anything in the entire
            world, except for drugs and sex, which I deal with in the
            criminal cases every day.

            But money and remarriages, kids are going to go find out.
            Hey, dad died. I hope he didn't leave everything to her. You
            know, it's human nature. Let's be real.

            At a minimum, they should have gone and checked. They also
            had the records. I don't think there's any dispute that, at least
            in the depositions, some of the documents were produced by
            Jeff Zook.

            So they had these records. Whether they knew what they were
            or not, they had them. They certainly could have said, Hey,
            wait a minute. We're being asked to sign a release. [Chase] is
            getting off the hook. We thought dad had a lot more money,
            and that business had to be worth [a] lot. And we're signing
            off on this?

            Commonsense says that they should have investigated, and
            they did have the information.

            Again, you know, listen, we -- all judges come from a
            background. We're not free from our own products of where
            we came from. Nobody will find a judge that doesn't try to
            protect the little person as much as humanly possible, within
Nos. 15AP-750 & 15AP-751                                                                    11

                  the confines of the law. But I do believe the release here
                  compels dismissal of this case, and that's the only ground
                  upon which I'm dismissing the case.

(Tr. at 55-57.)
       {¶ 27} On appeal, the Zook plaintiffs and involuntary plaintiffs do not contest the
trial court's findings that the first two exceptions to a valid R.C. 5808.17(C) release do not
apply. They argue under the third exception that, at the time they executed their
respective releases, they were unaware of certain material facts concerning Chase's
actions as trustee: the failure to comply with the trust terms due to the lack of a
management agreement between the trustee and Sharon, the nature of the subsequent
devaluation of Zook Advertising under Sharon's management and Chase's stewardship,
and the extent of the consequent loss of most of the value of the trust corpus. They then
argue that the trial court improperly placed the burden of proof on the Zook plaintiffs and
involuntary plaintiffs to establish the invalidity of the releases, and that instead it must be
Chase that bears the burden as trustee to establish that the releases are valid.
       {¶ 28} Chase maintains on appeal that the trial court correctly placed the burden of
proof on the beneficiaries to invalidate the releases. Chase then argues that the trial court
correctly concluded there remains no genuine issue of material fact regarding the
beneficiaries' knowledge of all pertinent facts regarding the loss of value in trust corpus
due to the decline and demise of Zook Advertising. In connection with this knowledge of
facts attributed to the beneficiaries, Chase argues that the beneficiaries are charged not
only with actual knowledge, but with constructive knowledge of public records, or of
material facts that would be ascertainable by reasonable inquiry or through examination
of private documents readily available to the beneficiaries.
       {¶ 29} The first issue placed before us, therefore, is which party bore the burden of
proof with respect to the validity of the releases. The second issue concerns the extent to
which the remainder beneficiaries, prior to executing the release presented to them by
Chase, knew, should have known, or were held to investigate for themselves the
conditions and events occurring during Chase's trusteeship.
       {¶ 30} With respect to the burden of proof, we first note that in the summary
judgment context this presents a different aspect than it would at trial. It is the essential
nature of summary judgment proceedings that the parties merely bear a burden of
Nos. 15AP-750 & 15AP-751                                                                     12

production, not a burden of proof. The parties here respectively asserted a valid release
on one hand and an exception to the validity on the other. The preponderance of the
evidence is not at issue, but merely the quantum of evidence necessary to maintain a
genuine issue of material fact regarding the validity of the release. That quantum does not
vary with the burden of proof that may be borne in subsequent proceedings before a trier
of fact.
           {¶ 31} With that caveat, we agree with the trial court that once the trustee presents
an executed release, the burden shifts to the beneficiaries to demonstrate that an R.C.
5808.17(C) exception applies to invalidate the release. The only Ohio authority on point,
the case of Cundall v. U.S. Bank, N.A., 174 Ohio App.3d 421, 2007-Ohio-7067 (1st Dist.),
rev'd on other grounds, 122 Ohio St.3d 188, 2009-Ohio-2523, seems to hold otherwise
and place the burden on the trustee to establish both the existence of a release and the
validity thereof, but for several reasons we find Cundall neither controlling nor
persuasive.
           {¶ 32} Cundall involved self-dealing by a trustee and beneficiary who allegedly
coerced other beneficiaries to sell him their shares in a closely held corporation for a low
price. The plaintiff beneficiaries alleged that this deprived them of the full benefit of the
later sale of the business by the trustee to a third party for a much higher price. The trial
court granted judgment on the pleadings in favor of the trustee's estate, in part because
the plaintiff beneficiaries had executed releases in favor of the trustee. The First District
reversed on this and other issues, holding that the high duty of loyalty owed by a fiduciary
meant that the trustee bore the burden of proving that he acted "solely in the
[beneficiaries'] best interests concerning both the signing of the releases and the sales of
* * * stock." Id. at ¶ 30. The court further posited, under the prominent heading "Releases
Are Highly Suspect," that "documents that purport to release a fiduciary from liability
concerning a transaction * * * where the fiduciary has gained some benefit, are highly
suspect." Id. at ¶ 34.
           {¶ 33} The first reason to approach the First District's opinion in Cundall with
some caution, obviously, is that the pertinent rulings in the case, while not explicitly
reversed, were rendered inoperative after further appeal. The Supreme Court of Ohio
chose to reinstate the judgment of the trial court on the sole basis that the complaint fell
Nos. 15AP-750 & 15AP-751                                                                        13

outside the statute of limitations, reversing the court of appeals' determination on that
issue only. While the Supreme Court decision did not expressly pass on the validity of the
releases, neither did it reflect any approval of the First District's decision on this point.
        {¶ 34} Second, the First District's opinion itself expressly notes that the operative
facts of Cundall pre-date enactment of the statutes governing releases in our case, and the
current law may not apply: "[E]ven though the new Ohio Trust Code mandates that a
trustee is not liable for breach of trust if the beneficiary has consented to the conduct,
[R.C. 5810.09], that provision does not apply if the consent is procured by improper
conduct of the trustee, a fact that [the plaintiff] alleged. Furthermore, the transaction in
question took place in 1984, long before the 2007 Ohio Trust Code was enacted." Id. at
¶ 29.
        {¶ 35} Third, because Cundall was a self-dealing case alleging fraud by the trustee,
the discussion on any given point, including validity of the releases, is interwoven with
references to the trustee's self-dealing as an aggravating factor undermining the releases:
               " '[Any] acquisition of the shares of the beneficiaries by one of
               the fiduciaries must be dealt with as presumptively void
               unless affirmative proof is made by the fiduciaries that their
               dealings with each beneficiary was in every instance
               aboveboard and fully informative. The fiduciaries in such
               circumstances have the obligation to show affirmatively not
               only that they acted in good faith but that they volunteered to
               the beneficiaries every bit of information which personal
               inquiry by the beneficiaries would have disclosed.' If the
               releases and stock sales are to be proved valid in this case, the
               burden is on the fiduciaries to show that they acted with the
               utmost good faith and exercised the most scrupulous honesty
               toward the beneficiaries, placed the beneficiaries' interests
               before their own, did not use the advantage of their trustee
               positions to gain any benefit at the beneficiaries' expense, and
               did not place themselves in a position in which their interests
               might have conflicted with their fiduciary obligations."

(Emphasis added.) Id. at ¶ 37-38, quoting Birnbaum v. Birnbaum, 117 A.D.2d 409, 416-17
(N.Y.App.1986), quoting In re Rees' Estate, 72 N.Y.S.2d 598, 599 (N.Y.Surr.Ct.1947).
This determination to conflate the execution of the release as part and parcel of the
underlying self-dealing fraud in Cundall makes it difficult to determine whether the same
standard would apply in cases not involving alleged fraud by the trustee.
Nos. 15AP-750 & 15AP-751                                                                   14

       {¶ 36} Fourth and finally, we consider that Cundall's expressed aversion to
releases in fiduciary cases simply does not comport with the manifest intent of the
legislature to allow such releases as a means of terminating a trust.            R.C. 5810.09,
5808.17(C), and 5808.02(B)(4) all contemplate the use of releases as routine in trust
matters. Releases, perhaps, should remain highly scrutinized in self-dealing cases like
Cundall, but we do not have such a case before us. On the facts here, we conclude that
once the beneficiaries admit that they executed a release, the burden shifts to the party
seeking to invalidate it.
       {¶ 37} We now consider whether the beneficiaries presented evidence to create a
genuine issue of material fact regarding their lack of knowledge of material facts relating
to the alleged breach of fiduciary duty by Chase.
       {¶ 38} R.C. 5801.03(A) provides a general definition regarding "knowledge" with
respect to trust matters, and states as follows:
              Subject to division (B) of this section, 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 fact.

              (3) From all the facts and circumstances known to the person
              at the time in question, the person has reason to know the
              fact.

       {¶ 39} Chase asserts, and the trial court agreed, that when assessing the validity of
a release executed under R.C. 5810.09(C), all beneficiaries must be charged with
constructive knowledge of not only matters of which they have actual knowledge, but facts
that they would have "reason to know," R.C. 5801.03(A)(1), from the perspective of an
objective, reasonable person, including all matters that are of public record.
       {¶ 40} We find that the applicable standard, and the law clearly does not limit
"knowledge" to "actual knowledge." Admittedly, in Ohio, a trustee has a high legal duty to
act solely in the interest of the beneficiaries, "and the duty to exercise reasonable care and
skill in administering the trust and preserving trust property." Cassner v. Bank One Trust
Co., N.A., 10th Dist. No. 03AP-1114, 2004-Ohio-3484, ¶ 28. This includes a duty to keep
the beneficiaries informed. R.C. 5808.13. In the present case, however, while the Zook
Nos. 15AP-750 & 15AP-751                                                                 15

plaintiffs argue that Chase did not inform them of material facts that would give them the
required knowledge of an alleged breach of the above standard, the Zook plaintiffs do not
allege that Chase hid or refused to provide any requested information.          Schwab v.
Huntington Natl. Bank, 516 Fed.Appx. 545 (6th Cir.2013).
       {¶ 41} Constructive knowledge may be imputed from matters freely available in
the public record. See generally Lawyers Title Ins. Corp. v. MHD Corp., 6th Dist. No. E-
10-007, 2010-Ohio-5174, ¶ 25. Charging beneficiaries with knowledge of publicly
available information or information obtained through minimum investigation prevents
them from "bury[ing] their head in the sand" with matters affecting an inheritance or
expectancy. Gracetech Inc. v. Perez, 8th Dist. No. 96913, 2012-Ohio-700, ¶ 16, fn. 3; see
also Thompson v. Butler, 2d Dist. No. 25408, 2013-Ohio-1075, ¶ 18.
       {¶ 42} We first note that the deposition evidence indicates varying degrees of
specific information known or available to certain Zook plaintiffs. Jeffrey and Kimberly
acknowledged in their depositions that they specifically knew at the time of John Zook
Sr.'s death that Zook Advertising became an asset of the trust.         Karla learned this
sometime later, when she examined a copy of the will out of curiosity. After Sharon's
death, Cynthia, Karla, and Kimberly had full access to all records relating to the company,
which were stored in boxes in Sharon's vacant home as they prepared it for sale. We do
not consider these additional facts known only to some beneficiaries because there is no
reason to impute to all Zook beneficiaries knowledge held by only some. The trial court
did not consider the beneficiaries individually with regard to the degree of their
knowledge of facts regarding the alleged breach by Chase. We therefore consider only the
facts actually known or imputable to all Zook plaintiffs.
       {¶ 43} Under    this   standard,   the   evidence    on   summary   judgment     was
uncontroverted that the probate of John Zook Sr.'s will was a matter of public record,
disclosing that the total value of the estate was $1.47 million, and that the single largest
asset was Zook Advertising, inventoried at more than $1 million. At the time John Zook
Sr. passed away, his five children received, or waived the right to receive, notice of the
probate proceedings. The will expressly referenced the trust, which would include Zook
Advertising.   All of the Zook plaintiffs knew, at least in a general sense, that Zook
Advertising had thereafter failed and was closed. After Sharon's death, the Zook plaintiffs
Nos. 15AP-750 & 15AP-751                                                                  16

received periodic trust statements indicating that the company was not a trust asset. At
the time the Zook plaintiffs executed their respective releases in favor of Chase, none
sought additional information regarding the estate, trust, or Zook Advertising. We agree
with the trial court that this evidence establishes constructive knowledge on the part of all
Zook plaintiffs regarding the facts concerning the alleged breach of fiduciary duty. There
remains no genuine issue of material fact to support the Zook plaintiffs' attempt to
invalidate their releases under R.C. 5808.17(C). The sole assignment of error of the Zook
plaintiffs is overruled.
       {¶ 44} With respect to the involuntary plaintiffs, Chase argues that the involuntary
plaintiffs did not contest Chase's earlier motion for judgment on the pleadings and have
judicially admitted the validity of the releases; Chase fails to cite any authority for this
proposition. To the contrary, this court has stated that a judicial admission must be a
distinct and unequivocal statement: " 'A judicial admission is a distinct and unequivocal
statement, made by a party or a party's counsel during a judicial proceeding, which acts as
a substitute for evidence at trial.' " Benchmark Contrs., Inc. v. Southgate Mgt. LLC, 10th
Dist. No. 13AP-390, 2014-Ohio-1254, ¶ 46, quoting In re Regency Village Certificate of
Need Application, 10th Dist. No. 11AP-41, 2011-Ohio-5059, ¶ 32, citing Haney v. Law, 1st
Dist. No. C-070313, 2008-Ohio-1843, ¶ 7.
       {¶ 45} Nonetheless, the involuntary plaintiffs executed the releases and bear the
burden of invalidating them under one of the grounds set forth in R.C. 5810.09. To avoid
summary judgment, the involuntary plaintiffs bore the corresponding burden of
production of evidence that would create a genuine issue of material fact regarding the
validity of the releases.   The involuntary plaintiffs did not submit or point to such
evidence in their memorandum opposing summary judgment, limiting their argument to
the assertion that "Defendant has failed to present evidence to establish that OhioHealth
or CMA knew that Zook Advertising was an asset of the trust." (May 22, 2015 Memo
Contra, at 6.)
       {¶ 46} While nothing in the record indicates that the involuntary plaintiffs knew of
the existence of Zook Advertising, let alone the circumstances under which the business
failed and Chase's alleged failure to act in accordance with its fiduciary duties, the record
is equally devoid of evidence that the involuntary plaintiffs lacked such knowledge
Nos. 15AP-750 & 15AP-751                                                                 17

regarding the alleged breach. The involuntary plaintiffs have therefore failed to present
evidence establishing that their remains a genuine issue of material fact regarding the
validity of their releases, and their assignment of error is overruled.
       {¶ 47} In summary, the assignment of error of the Zook plaintiffs is overruled and
the assignment of error of the involuntary plaintiffs is overruled. The judgment of the
Franklin County Court of Common Pleas granting summary judgment in favor of Chase as
to the claims brought by the Zook plaintiffs and involuntary plaintiffs is affirmed.    The
matter is remanded to that court for disposition of the remaining claims in the case.
                                                  Judgment affirmed and cause remanded.

                            KLATT and BRUNNER, JJ., concur.

                               _____________________
