         [Cite as Hasselbring v. Bernard, 2019-Ohio-2812.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



SCOTT HASSELBRING,                                :          APPEAL NO. C-180367
                                                             TRIAL NO. A-1703837
        Plaintiff-Appellant,                      :

  vs.                                             :           O P I N I O N.

BONNIE BERNARD,                                   :

    Defendant-Appellee.                           :




Civil Appeal From:       Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: July 10, 2019


McCaslin, Imbus and McCaslin and William M. Cussen, for Plaintiff-Appellant,

Vorys, Sater, Seymour and Pease, LLP, and Elizabeth E.W. Weinewuth, for
Defendant-Appellee.
                      OHIO FIRST DISTRICT COURT OF APPEALS



Z AYAS , Presiding Judge.

       {¶1}    Plaintiff-appellant Scott Hasselbring, appeals the May 31, 2018

judgment entry of the Hamilton County Court of Common Pleas, which granted

summary judgment to his sister and defendant-appellee, Bonnie Bernard, the sole

trustee of the “June Hasselbring Living Trust.” For the following reasons, we affirm.

       {¶2}    Hasselbring and Bernard are beneficiaries of the revocable trust of

their mother, June Hasselbring. Under the terms of the trust, they will each receive

an equal distribution of the trust’s assets upon their mother’s death. Concerned

about mismanagement, Hasselbring sued Bernard for a full report of the trust’s

assets. Hasselbring complained that he, as a beneficiary, was entitled to information

pertaining to the trust property, liabilities, receipts, and disbursements. Bernard

prevailed on summary judgment by arguing that as a trustee of a revocable trust she

only owes a duty to report information regarding the trust to the settlor, her mother.

In a single assignment of error, Hasselbring argues that trial court erred in finding

that he was not entitled to the requested information.

       {¶3}    Appellate review of a trial court’s decision granting summary judgment

is de novo. Duell v. City of Cincinnati, 2018-Ohio-4400, 122 N.E.3d 640, ¶ 3 (1st Dist.).

Under Civ.R. 56(C), summary judgment is appropriate when (1) there are no genuine

issues of material fact; (2) the moving party is entitled to judgment as a matter of law;

and (3) when all evidence is construed in favor of the nonmoving party, reasonable

minds can come to only one conclusion, and that conclusion is adverse to the

nonmoving party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696

N.E.2d 201 (1998).

       {¶4}    The facts of this case are not in dispute. The only dispute before us is a

matter of law: whether a beneficiary of a revocable trust is entitled to information

concerning the trust while the settlor of the trust is still living.




                                              2
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶5}   Trusts are governed by the Ohio Trust Code, R.C. Chapters 5801 to

5811. R.C. 5808.13, which is entitled “Keeping beneficiaries informed - requests -

required reports,” generally requires trustees to keep beneficiaries of a trust

informed, fulfill requests for information concerning a trust, and make required

reports of the trust property.

       {¶6}   R.C. 5808.13 provides, in relevant part:

       (A) A trustee shall keep the current beneficiaries of the trust

       reasonably informed about the administration of the trust and of the

       material facts necessary for them to protect their interests. Unless

       unreasonable under the circumstances, a trustee shall promptly

       respond to a beneficiary’s request for information related to the

       administration of the trust.

                                           ***

       (C) A trustee of a trust that has a fiscal year ending on or after January

       1, 2007, shall send to the current beneficiaries, and to other

       beneficiaries who request it, at least annually and at the termination of

       the trust, a report of the trust property, liabilities, receipts, and

       disbursements, including the source and amount of the trustee’s

       compensation, a listing of the trust assets, and, if feasible, the trust

       assets’ respective market values.

       {¶7}   In addition, R.C. 5808.13(G) provides:

       During the lifetime of the settlor of a revocable trust, whether or not

       the settlor has capacity to revoke the trust, the trustee’s duties under

       this section are owed exclusively to the settlor.

       {¶8}   Hasselbring argues that nothing in R.C. 5808.13 limits a beneficiary’s

right to receive information. Rather, he asserts that R.C. 5808.13(A) and (C) require

the trustee to provide him with information. Alternatively, Hasselbring argues that



                                            3
                     OHIO FIRST DISTRICT COURT OF APPEALS



the broad language of subdivision (A), pertaining to keeping beneficiaries informed,

controls in the event of a conflict between the limiting language of subdivision (G).

        {¶9}   Bernard contends that a trustee of a revocable trust owes reporting

duties exclusively to the living settlor, as stated under R.C. 5808.13(G)—to the

exclusion of beneficiaries like Hasselbring, while a trustee of another type of trust

owes additional reporting duties, as stated under R.C. 5808.13(A) through (F).

Bernard also argues that to the extent there is conflict, subdivision (G) controls

because a specific provision prevails over a more general provision under the Revised

Code.

        {¶10} R.C. 5808.13(G) distinguishes revocable trusts from other types of
trusts, and makes clear that the trustee of a revocable trust has a responsibility solely

to the living settlor. Furthermore, this language is reiterated in another section of

the Ohio Trust Code, R.C. 5806.03(A), which specifies control of rights of

beneficiaries and the particular duties of trustees for revocable trusts and refers to

R.C. 5808.13. In Puhl v. U.S. Bank, N.A., 2015-Ohio-2083, 34 N.E.3d 530 (12th

Dist.), a case applying R.C. 5806.03(A) to a dispute over a revocable trust, the

Twelfth District Court of Appeals interpreted “the duties of the trustee are owed

exclusively to the settlor during the settlor’s lifetime” to mean exactly that. The

trustee had no obligation to the beneficiaries of the trust while the settlor was still

alive. Puhl at ¶ 24. This is in contrast to cases involving irrevocable trusts, where the

trustee does in fact have a duty to the beneficiaries. See, e.g, Zimmerman v. Zirpolo

Trust, 5th Dist. Stark No. 2011CA00142, 2012-Ohio-346, ¶ 22; In re Marjorie A.

Fearn Trust, 5th Dist. Knox No. 11-CA-16, 2012-Ohio-1029, ¶ 19-28.

        {¶11} Accordingly, R.C. 5808.13(G) must be read as an exception to R.C.
5808.13(A). “It is a well-settled principle of statutory construction that when two

statutes, one general and the other special, cover the same subject matter, the special

provision is to be construed as an exception to the general statute which might



                                           4
                     OHIO FIRST DISTRICT COURT OF APPEALS



otherwise apply.” State ex rel. Dublin Secs. Inc. v. Ohio Div. of Secs., 68 Ohio St.3d

426, 429, 627 N.E.2d 993 (1994). This principle is codified in R.C. 1.51, which

provides that “[i]f a general provision conflicts with a special or local provision, they

shall be construed, if possible, so that effect is given to both. If the conflict between

the provisions is irreconcilable, the special or local provision prevails as an exception

to the general provision, unless the general provision is the later adoption and the

manifest intent is that the general provision prevails.” State ex rel. Slagle v. Rogers,

103 Ohio St.3d 89, 2004-Ohio-4354, 814 N.E.2d 55, ¶ 14.

       {¶12} In this instance, R.C. 5808.13(A) and 5808.13(G) “cover the same

subject matter” in that they both identify the duties of a trustee. However, R.C.

5808.13(G) is specific to trusts that are revocable. For revocable trusts, the trustee’s

duties are owed exclusively to the settlor—as opposed to a beneficiary—while the

settlor is living. R.C. 5808.13(A) is more general in that it requires trustees to inform

current beneficiaries and to respond to beneficiaries’ requests of the trust. Because a

modifier does not precede the word “trust” in this section, trust broadly means

various types of trusts. The two sections, therefore, conflict because the application

of R.C. 5808.13(A)’s broad language would render the specific language of R.C.

5808.13(G) meaningless. And, there is nothing in R.C. 5808.13(A) that expresses an

intention by the General Assembly for that section to prevail over the specific section

regarding revocable trusts and the duties owed to the settlor. See State ex rel. Slagle

at ¶ 15; see also Riffle v. Physicians & Surgeons Ambulance Serv., 2011-Ohio-6595,

969 N.E.2d 297, ¶ 16 (9th Dist.), aff’d sub nom., Riffle v. Physicians & Surgeons

Ambulance Serv., Inc., 135 Ohio St.3d 357, 2013-Ohio-989, 986 N.E.2d 983, ¶ 16.

Consequently, we conclude that in cases involving a trustee of a revocable trust

whose settlor is still living, R.C. 5808.13(G) applies instead of R.C. 5808.13(A).




                                           5
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶13} Given the undisputed facts of this case, reasonable minds could only
conclude that Bernard is entitled to summary judgment as a matter of law.

Therefore, Hasselbring’s sole assignment of error is overruled and the judgment of

the Hamilton County Court of Common Pleas is affirmed.

                                                                     Judgment affirmed.



MYERS and CROUSE, JJ., concur.


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




                                            6
