               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 13a0222n.06

                                          No. 12-3993
                                                                                       FILED
                                                                                   Mar 04, 2013
                          UNITED STATES COURT OF APPEALS
                                                                             DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


JERRY A. SCHWAB; DONNA L. SCHWAB;                       )
DAVID A. SCHWAB,                                        )
                                                        )        ON APPEAL FROM THE
       Plaintiffs-Appellants,                           )        UNITED STATES DISTRICT
                                                        )        COURT FOR THE
v.                                                      )        NORTHERN DISTRICT OF
                                                        )        OHIO
HUNTINGTON NATIONAL BANK,                               )
                                                        )                          OPINION
       Defendant-Appellee.                              )
                                                        )


BEFORE: DAUGHTREY, ROGERS and McKEAGUE, Circuit Judges.

       McKeague, Circuit Judge. David Schwab appeals the district court’s grant of summary

judgment to Huntington National Bank on Schwab’s counterclaim that Huntington breached its

duties as Trustee of the Schwab Irrevocable Trust. We affirm the district court’s grant of summary

judgment in favor of Huntington.

                                                I.

The Trust

       In April 1992, Jerry Schwab established a trust for the benefit of his children. Defendant

Huntington National Bank is trustee of the Schwab Trust.1 The Trust was funded by life insurance




       1
        Huntington Trust Company of Florida, N.A. was the original trustee. Huntington National
Bank later became Trustee as the successor in interest of the Huntington Trust Company of Florida,
N.A.
No. 12-3993
Schwab, et. al. v. Huntington National Bank

policies on the lives of Jerry Schwab and his wife, Donna. The same day the Trust was established,

Jerry Schwab’s business, Schwab Industries, Inc., entered into an agreement with Huntington stating

that the life insurance premiums funding the Trust were to be paid through Schwab Industries (“The

Split Dollar Agreement”). In exchange for payment of the annual premiums, Huntington, as trustee,

granted Schwab Industries a collateral interest in the life insurance policies limited to the total

premiums contributed by Schwab Industries. The Agreement also stated that it could be terminated

upon the happening of certain events, including “expiration of ten (10) days after receipt by either

party of written notice of termination given by the other party.” R. 16-2, Page ID #200.

The Bankruptcy and District Court Proceedings

       Eighteen years after the Schwab Trust was created, on February 28, 2010, Schwab Industries

filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code. One of Schwab

Industries’ creditors, KeyBank, acting as administrative agent to several other creditors, filed an

adversary proceeding in the bankruptcy court asserting that the creditors had a security interest in

Schwab Industries’ collateral interest in the Split Dollar Agreement, and that KeyBank intended to

exercise Schwab Industries’ rights to terminate the Agreement so that it could collect the company’s

interest in the premiums. KeyBank Compl., Bankr. R. 1. As Trustee, Huntington disputed

KeyBank’s alleged security interest, refused to pay KeyBank what it claimed to be entitled to,

contested KeyBank’s authority to terminate the Agreement, and argued that “any repayment by

Huntington of the premiums paid by SII [may] constitute a breach of Huntington’s fiduciary duties

under the trust instrument.” Huntington Answer, Counterclaim and Third-Party Complaint, Bankr.



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R. 9 at 8-9. Accordingly, Huntington requested that the bankruptcy court declare the rights of all the

parties under the Split Dollar Agreement.

       One of the Trust beneficiaries, David Schwab (“Schwab”), then filed a counterclaim against

Huntington alleging that Huntington breached its fiduciary duties as trustee under the statutory and

common law of Florida. Bankr. R. 61. The counterclaim argued that Huntington was not acting in

the best interests of the beneficiaries when it requested a declaration that it would not be breaching

its duties if it disposed of the premiums in accordance with an order of the court. The counterclaim

also asserted that Huntington improperly used Trust assets to pay for legal representation in filing

its counterclaim against KeyBank and its request for declaratory relief because those expenses were

not “reasonable expenses incurred in the management and protection of the trust.” Bankr. R. 61 at

11 (quoting the Schwab Trust). Schwab’s counterclaim sought an order prohibiting Huntington from

paying any costs or fees from the Trust and also sought a refund to the Trust for the attorney’s fees

already spent.

       In November 2011, Schwab filed a motion in the district court to withdraw reference to the

bankruptcy action. R. 1. The district court granted the motion on March 16, 2012. R. 12. Shortly

thereafter, Huntington moved for summary judgment on KeyBank’s original claims, and argued that

KeyBank was not entitled to any Trust property and even if it were, it was not entitled to liquidated

damages. Huntington Mot. for Summ. J., R. 15. Huntington separately moved for summary

judgment on Schwab’s counterclaims against Huntington. Huntington Mot. for Summ. J., R. 16.

       On May 10, 2012, Schwab filed a brief opposing Huntington’s motion for summary

judgment. With respect to the breach of fiduciary duties claims against Huntington, Schwab’s brief

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Schwab, et. al. v. Huntington National Bank

in opposition argued that by filing the request for declaratory judgment in order to protect itself,

Huntington “stepped out of its role as a fiduciary,” and thereby “unnecessarily brought the

beneficiaries into the lawsuit . . .” Schwab Opp., R. 39, Page ID # 365. The brief also argued that

because Huntington was seeking to protect itself from suit, its interests conflicted with the duties

owed to the Trust, and thus, Huntington should not have used its powers as trustee to pay for legal

representation from the Trust funds. Schwab Opp., R. 39, Page ID # 365. It further argued that

Huntington breached its duties by not notifying the beneficiaries immediately after KeyBank sought

termination of the Agreement and attempted to collect Trust property. Schwab Opp., R. 39, Page

ID # 366.

       On July 2, 2012, after successful mediation, KeyBank, Huntington, and Schwab reached a

partial settlement, resolving the disputes over the Split Dollar Agreement and effectively releasing

KeyBank from the action. R. 64. Following the settlement and partial dismissal, Schwab’s

counterclaim against Huntington was the only outstanding issue.

       On July 16, 2012, the district court granted Huntington’s motion for summary judgment on

Schwab’s counterclaim. This appeal followed.

                                                II.

       We review a district court’s grant of summary judgment de novo. Summary judgment is

appropriate if “the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” FED . R. CIV . P. 56(a). The party seeking

summary judgment has the initial burden of identifying those portions of the “‘pleadings,

depositions, answers to interrogatories, and admissions on file together with the affidavits’ which

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it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986) (quoting FED . R. CIV . P. 56(c)). The burden then shifts to the nonmoving

party who “must set forth specific facts showing that there is a genuine issue for trial.” Anderson

v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986). It is not sufficient for the party opposing summary

judgment to “simply show that there is some metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The reviewing court

draws all reasonable inferences in the favor of the moving party. Anderson, 477 U.S. at 255.

        The counterclaim against Huntington alleged mismanagement of the Trust in violation of

Florida law.2 Accordingly, we review the claims on appeal under Florida law.

                                                   III.

        Florida trust law requires a trustee to “administer the trust in good faith, in accordance with

its terms and purposes and the interests of the beneficiaries . . . .” FLA . STAT . § 736.0801; see also

FLA . STAT . § 736.0802(1) (stating the trustee is to “administer the trust solely in the interests of the

beneficiaries”). Florida law also provides that courts should have “a limited role in supervising the

exercise of the trustee’s discretion,” DeMello v. Buckman, 916 So. 2d 882, 886 (Fla. Dist. Ct. App.

2005), and presumes that trustees act within the bounds of sound discretion.” In re Ziegler’s Trusts,

157 So. 2d 549, 550 (Fla. Dist. Ct. App. 1963).




        2
        The Trust elects Florida law. R. 16-1, Page ID # 197 (“The law of the State of Florida shall
govern the interpretation and validity of the provisions of this instrument and all questions relating
to the management, administration, investment and distribution of the trusts hereby created.”).

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Schwab, et. al. v. Huntington National Bank

        Schwab argues that Huntington breached its duties to the Trust beneficiaries in several ways.

Schwab’s first and second arguments on appeal assert that Huntington breached its duties by

continuing to take action on behalf of the Trust even though Huntington had a conflict of interest as

one of Schwab Industries’ secured creditors. Huntington counters that Schwab forfeited this

argument by not raising it below. Huntington is correct.

        “[T]he failure to present an issue to the district court forfeits the right to have the argument

addressed on appeal.” Vance v. Wade, 546 F.3d 774, 781 (6th Cir. 2008) (quotation omitted). “Our

function is to review the case presented to the district court, rather than a better case fashioned after

a district court's unfavorable order.” Barner v. Pilkington N. Am., Inc., 399 F.3d 745, 749 (6th Cir.

2005) (quotation omitted). “It is well settled law that this court will not consider an error or issue

which could have been raised below but was not.” Id. (quotation and alteration omitted).

        The claims Schwab raised below focused entirely on the argument that Huntington breached

its duties by requesting a declaration that it would not be breaching its duties if it disposed of the life

insurance premiums in accordance with a court order. This argument was made in Schwab’s

counterclaim, Bankr. R. 61, and in his brief in opposition to Huntington’s motion for summary

judgment. Schwab Opp., R. 39, Page ID # 365. Schwab never formally raised the argument he now

asserts, that Huntington had a conflict of interest as a secured creditor of Schwab Industries, and that

the secured creditor conflict somehow resulted in a breach of Huntington’s duties.3 Because Schwab


        3
        Schwab attempts to argue in his Reply Brief that the issue was discussed during an off-the-
record pre-trial conference, Reply Br. at 3-4, and in an exhibit attached to Schwab’s opposition to
Huntington’s motion for summary judgment, Reply Br. at 4. But in order to preserve an issue for
appellate review, generally it must be raised sufficiently for the trial court to rule on it. See

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Schwab, et. al. v. Huntington National Bank

never raised the issue, it is forfeited. Vance, 546 F.3d at 781.

        Next, Schwab alleges several ways that Huntington breached its duties to the Trust when

Huntington reimbursed itself for legal fees. First, Schwab claims that because of Huntington’s

conflict of interest as Trustee and secured creditor, Florida law requires court authorization before

trust funds can be used to pay attorney’s fees. But this argument is rooted in the premise that there

was such a conflict in the first place—an issue that we have determined Schwab forfeited. Thus, we

also decline to address this argument as it relates to fees.

        Schwab next argues that the district court erred by concluding that the amount and purpose

of the attorney’s fees paid were reasonable and that the fees were for the benefit of the Trust and not

for Huntington’s personal benefit.

        Florida law establishes that trustees have the power to “[p]ay or contest any claim, settle a

claim by or against the trust, and release, in whole or in part, a claim belonging to the trust,” FLA .

STAT . § 736.0816(14) (emphasis added); see also FLA . STAT . § 736.0811 (“A trustee shall take

reasonable steps to . . . defend claims against the trust.”), and that trustees are empowered to “ . . .

defend . . . an action, claim, or judicial proceeding in any jurisdiction to protect trust property or the

trustee in the performance of the trustee’s duties.” FLA . STAT . § 736.0816(23).

        The Trust states that Huntington has the power to “employ . . . attorneys . . . and to delegate



generally, 157 A.L.R. Fed. 581 § 4 (1999); Rosedale Missionary Baptist Church v. New Orleans
City, 641 F.3d 86, 89 (5th Cir. 2011) (stating that to preserve an argument, it “must be raised to such
a degree that the district court has an opportunity to rule on it”) (quotations omitted). There is no
indication in the record in this case that this argument was pressed in any way that the district court
could have ruled on it.

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No. 12-3993
Schwab, et. al. v. Huntington National Bank

to them such powers as the trustee considers desirable.” R. 16-1 at 17. Similarly, Florida law

establishes that trustees may “[e]mploy . . . attorneys . . . to advise or assist the trustee in the exercise

of any of the trustee’s powers and pay reasonable compensation and costs incurred in connection

with such employment from the assets of the trust . . . .” FLA . STAT . § 736.0816(20); see also First

Union Nat’l Bank v. Jones, 768 So. 2d 1213, 1214 (Fla. Dist. Ct. App. 2000) (“In Florida, a trustee

is entitled to receive payment of his reasonable expenses in managing a trust, including attorney's

fees, from the assets of a trust he manages.”). Importantly, Florida law also permits trustees to

collect fees for litigation against the trust. See FLA . STAT . § 736.1007(5)(a) (permitting fees for

“[i]nvolvement in . . . adversary proceedings or litigation by or against the trust”); see also, First

Union, 768 So. 2d at 1215 (stating that Florida law entitles trustee to fees for defending itself in an

action filed against it by trust beneficiaries who alleged mismanagement of the trust).

        The district court concluded that the record was void of any evidence that Huntington’s use

of counsel and its fee reimbursement were not well within the parameters of Florida law. We agree.

In opposing summary judgment, it was Schwab’s burden to “set forth specific facts showing that

there is a genuine issue for trial,” Anderson, 477 U.S. at 250, and that there is more than “some

metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586. But

Schwab has failed to point to any evidence in the record showing that the amount of fees Huntington

incurred was unreasonable or otherwise outside the bounds established under Florida law.

        Further, the cases Schwab points to in an effort to support his claims that Huntington should

not receive fees for its request for declaratory relief or that it was required to seek court approval are

inapposite. In Shriner v. Dyer, 462 So. 2d 1122, 1124 (Fla. Dist. Ct. App. 1984), the beneficiaries

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Schwab, et. al. v. Huntington National Bank

sued the trustees (two individuals), in both their individual capacities and as trustees, for trust

mismanagement. During the appeal, the beneficiaries contended that the co-trustees improperly paid

from the trust funds attorney’s fees incurred for their individual defenses. The Florida court agreed.

It stated: “Since Dyer and Hartstone defended against individual liability for trust mismanagement

in the previous action, their personal interests conflicted with their position as trustees.” Id. Relying

on a then-valid Florida law, which stated that when “the duty of the trustee and his individual interest

. . . conflict in the exercise of a trust power, the power may be exercised only by court authorization,”

the court reasoned, the co-trustees “should have obtained court approval before exercising their

trustee power to use trust funds to pay their attorney’s fees.” Id. (quoting FLA . STAT . 737.403(2),

repealed by Laws 2006, c. 2006-217, § 48, eff. July 1, 2007; Laws 2008, c. 2008-5, § 16, eff. July

1, 2008); see also Brigham v. Brigham, 9334 So. 2d 544 (Fla. Dist. Ct. App. 2006) (affirming

Shriner under a similar set of facts); J.P. Morgan Trust Co., N.A. v. Siegel, 965 So. 2d 1193, 1196

(Fla. Dist. Ct. App. 2007) (affirming Shriner and Brigham and similarly relying on FLA . STAT .

737.403(2)).

        The biggest problem for Schwab in relying on these cases is that in 2008 the Florida

legislature repealed the law upon which all of these cases are based, FLA . STAT . § 737.403. And

Schwab has not pointed to a new law or recent case that would hold the trustee to the same

obligations as the former law. In fact, FLA STAT . § 736.0802(10) affirmatively states that payment

of fees “incurred in any proceeding” can be made out of the trust without court approval. If a

beneficiary wants to challenge that general rule, the law puts the burden on the beneficiary to “obtain

a court order to prohibit the trustee from paying . . . attorney’s fees from trust assets.” FLA . STAT .

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Schwab, et. al. v. Huntington National Bank

§ 736.0802(10)(b). To receive such an order, the beneficiary has to “make a reasonable showing by

evidence in the record or by proffering evidence that provides a reasonable basis for a court to

conclude that there has been a breach of trust.” Id.; see also Covenant Trust Co. v. Guardianship

of Ihraman, 45 So. 3d 499, 504 (Fla. Dist. Ct. App. 2010).4 In other words, the old law stated that

a trustee had a duty to seek court authorization for payment of fees anytime a breach of trust action

or defense had been asserted against the trustee. By contrast, the new law states that after a breach

of trust action or defense has been asserted, the trustee’s only affirmative duty is to give notice to the

beneficiaries of the fees it intends to pay from the trust (a duty not challenged in this case). In stark

contrast to the old law, the new law puts the burden on the beneficiary to seek a court order enjoining

such payments.

        Schwab requested an order under § 736.0802(10)(b) in his counterclaim, Bankr. R. 61 at 13,

but the district court soundly rejected the request in its summary judgment decision because Schwab

had not produced any evidence there was a breach of trust. Schwab v. KeyBank Nat’l Ass’n, 2012

WL 2906081, at *4 (N.D. Ohio July 16, 2012). On appeal, Schwab did not renew his argument

requesting the order under § 736.0802(10)(b), nor did he challenge the district court’s decision on

that issue. On appeal he only argues that the cases cited above stand for the proposition that

Huntington needed court approval prior to paying fees out of the trust.

        While the former law and the cases relying on the former law may have proved helpful for


        4
         Notably, the new law also requires that if a beneficiary makes a breach of trust claim against
a trustee, the trustee has to provide notice to the beneficiaries of the trustee’s intent to pay fees and
costs out of the trust. FLA . STAT . § 736.0802(10)(a). Schwab has not alleged that Huntington
violated this provision.

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No. 12-3993
Schwab, et. al. v. Huntington National Bank

Schwab prior to the 2008 repeal, any conflict as alleged in this case would not have arisen until

Huntington’s request for declaratory relief in December 2010. That date was long after the repeal

of § 737.403 and its accompanying duties. And the new law clearly states that “Payment of costs

or attorney’s fees incurred in any proceeding from the assets of the trust may be made by the trustee

without the approval of any person and without court authorization . . .” unless the beneficiary

satisfies the standards under FLA . STAT . § 736.0802(10)(b).5 Accordingly, the district court correctly

granted summary judgment on this claim.

        Schwab next contends that Huntington breached its duties by failing to inform the

beneficiaries that KeyBank was seeking to terminate the Split Dollar Agreement and collect trust

assets. Schwab relies exclusively on the decision in Brent v. Smathers, 547 So. 2d 683 (Fl. Dist. Ct.

App. 1989), to support his argument. In Brent, a trustee-beneficiary brought a claim against her co-

trustee alleging he inadequately advised her of the effects of the trust disbursement. The court

explained that while a trustee has “a duty to keep beneficiaries reasonably informed about the trust

and its administration,” Id. at 685 (citing G. BOGERT , TRUSTS & TRUSTEES 961 (rev. 2d ed. 1982)),

“in the absence of a request, the trustee is ordinarily not under a duty to furnish information to the

beneficiary.” Id. at 685-86. However, the court further explained, “‘he is under a duty to



        5
          Florida’s revised trust code also states that it “applies to all trusts created before, on, or after
such date,” “to all judicial proceedings concerning trusts commenced on or after such date,” and that
“any rule of construction or presumption provided in this code applies to trust instruments executed
before the effective date of this code unless there is a clear indication of a contrary intent in the terms
of the trust.” FLA . STAT . § 736.1303(1)(a), (b) and (d). Accordingly, because the Schwab Trust does
not make a contrary indication, the updated law applies to duties arising under the Trust even though
the instrument was created in 1992.

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communicate to the beneficiary material facts affecting the interest of the beneficiary which he

knows the beneficiary does not know and which the beneficiary needs to know for his protection in

dealing with a third person with respect to his interest.’” Id. at 686 (quoting RESTATEMENT

(SECOND ) OF TRUSTS § 173 at 379 (1959)). Applying these principles, the Brent court reasoned that

the co-trustee “had no duty to explain the effects of the transactions to the beneficiaries unless such

an explanation was requested or he knew that they did not have knowledge of the facts.” Id.

       Thus, in this case, Brent would preclude liability as to Huntington unless Schwab can show

that KeyBank’s efforts to terminate the Agreement were material facts affecting Schwab’s interest,

and that Schwab and the other beneficiaries either requested the information related to KeyBank’s

efforts to terminate the Agreement, or that Huntington knew that Schwab did not have the

information. The district court concluded that Schwab failed to show how the information was

material, and that Schwab’s unsubstantiated assertion that Huntington failed to notify the

beneficiaries of KeyBank’s claim and its possible effects was not enough to withstand summary

judgment. Schwab v. Keybank Nat’l Ass’n, 2012 WL 2906081, at *3 (N.D. Ohio July 16, 2012).

       Even assuming the information was material, Schwab has failed to produce any evidence that

the beneficiaries requested the information regarding KeyBank or that Huntington affirmatively

knew that the beneficiaries did not know about KeyBank’s efforts. It is difficult to imagine that

Schwab and the other beneficiaries did not have at least some knowledge of KeyBank’s strategy

since KeyBank’s complaint was actually filed in the Schwab Industries bankruptcy action. Schwab’s

mere allegations that Huntington breached its duty by failing to inform the beneficiaries about the

KeyBank issue, without more, is not enough to withstand summary judgment. Matsushita Elec.

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Indus. Co., 475 U.S. at 586.

       Schwab raises two final arguments, neither of which detains us for long. First, he alleges the

district court improperly weighed evidence and made conclusive findings. But this argument is

wholly unsupported and thus we decline to address it. See United States v. Layne, 192 F.3d 556, 566

(6th Cir. 1999) (“[I]ssues adverted to [on appeal] in a perfunctory manner, unaccompanied by some

effort at developed argumentation, are deemed waived . . . .”).

       Second, Schwab contends that the trust instrument entitles him to attorney’s fees for filing

his counterclaim against Huntington in “protection of the trust.” Reply Br. at 14. The district court

did not address this argument because Schwab never raised it. In his Reply Brief, Schwab asserts

that this argument was raised in his counterclaim, but he erroneously cites to an irrelevant paragraph,

and otherwise he appears to be mistaken. His only claims for relief in the counterclaim were

statutory claims for damages under the Florida Trust Code. See Bankr. R. 61 at 9, 10, 11, 12

(requesting relief under Fla. Stat. § 736.1001, § 736.1002, and § 736.1004). Moreover, he also failed

to raise the argument in his brief in opposition to Huntington’s summary judgment motion.

Accordingly, we decline to address it now. See Barner, 399 F.3d at 749 (“It is well settled law that

this court will not consider an error or issue which could have been raised below but was not.”)

(alteration and quotation omitted).

                                                 IV.

       For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment in

favor of Huntington.



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