[Cite as Yeager v. U.S. Bank, 2021-Ohio-1972.] 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

JOHN YEAGER, 

STEVE YEAGER, 

 and 

MIKE YEAGER, 

 Plaintiffs-Appellants, 

 vs. 

U.S. BANK, AS TRUSTEE OF THE 

SARA LEE YEAGER TRUST DATED 

OCTOBER 23, 1990, 

 Defendant-Appellee. 

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APPEAL NO. C-200262 

TRIAL NO. 2018003570 

 

 O P I N I O N.

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

 

Judgment Appealed From Is: Affirmed in Part as Modified and Reversed in Part and 

Cause Remanded 

Date of Judgment Entry on Appeal: June 11, 2021 

Cohen, Todd, Kite and Stanford, LLC, Nicolas A. Zuccarelli, Lyons and Lyons and 

Robert H. Lyons, for Plaintiffs-Appellants, 

Taft Stettinius & Hollister LLP, Sanna-Rae Taylor, Andrew A. Spievack and Anna 

M. Greve, for Defendant-Appellee. 
OHIO FIRST DISTRICT COURT OF APPEALS

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ZAYAS, Presiding Judge. 

{¶1} Plaintiffs-appellants John Yeager, Steve Yeager, and Mike Yeager (“the 

Yeagers”) appeal from the judgment of the Hamilton County Court of Common 

Pleas, Probate Division, which dismissed their amended complaint against 

defendant-appellee U.S. Bank, as trustee of the Sara Lee Yeager Trust dated October 

23, 1990 (“U.S. Bank”). For the following reasons, we affirm in part as modified and 

reverse in part the judgment of the trial court and remand the cause for further 

proceedings consistent with this opinion and the law. 

Facts in the Amended Complaint 

{¶2} Sara Lee Yeager established a generation-skipping, irrevocable trust 

on October 23, 1990 (“the trust”). Upon Sara’s death, Robert L. Yeager became the 

primary beneficiary of the trust. In February of 2017, upon the death of Robert, the 

Yeagers became the “beneficiaries” of the trust.1 

{¶3} In 2011, U.S. Bank discovered that one or more of its trust officers 

embezzled funds from various trusts held and administered by U.S. Bank, including 

the trust at hand. On July 1, 2011, U.S. Bank made a cash deposit into the trust in the 

amount of $453,366. A trust statement for the period of July 1, 2011, to September 

30, 2011, showed the deposit and listed a description with the deposit as “Cash 

Receipt Miscellaneous Receipt Reimb Cash Due to Loss.” 

{¶4} On January 5, 2018, the Yeagers sent a letter to U.S. Bank demanding 

an explanation for the cash receipt, including why it was made and why there was a 

loss that needed to be reimbursed. On May 1, 2018, the Yeagers sent a second 

request to U.S. Bank demanding a full accounting of the trust. U.S. Bank never 

 1 A copy of the trust instrument was not in the record. 
OHIO FIRST DISTRICT COURT OF APPEALS

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provided an accounting of the trust, any explanation of embezzlement, or any 

explanation of how the reimbursement figure was calculated. 

Procedural History 

{¶5} The Yeagers filed a complaint for a trust accounting against U.S. Bank 

on September 4, 2018. A trust statement for the period of July 1, 2011, to September 

30, 2011, was attached to the complaint. After several extensions of time to file a 

response, U.S. Bank filed a motion to dismiss the complaint. Subsequently, the 

Yeagers filed a motion for leave to amend the complaint. 

{¶6} The trial court entered an agreed order granting the motion for leave 

to amend the complaint on November 22, 2019. The amended complaint was 

attached to the order. The complaint added four new claims seeking damages for (1) 

breach of statutory fiduciary duty, (2) breach of common law fiduciary duty, (3) 

conversion, and (4) civil theft. Thereafter, U.S. Bank filed a motion to dismiss the 

amended complaint. 

{¶7} On March 3, 2020, the magistrate entered a decision denying the 

motion to dismiss, finding the facts in the amended complaint sufficient to proceed 

to trial. U.S. Bank filed objections to the magistrate’s decision. 

{¶8} The trial court granted the objections to the magistrate’s decision and 

dismissed the case on June 30, 2020. The trial court’s entry reasoned that: 

 Defendant moved to dismiss the Complaint alleging, inter alia, 

that Plaintiffs lacked privity to sue. Defendants cited Lewis v. Star 

Bank, N.A., Butler Cty, 90 Ohio App.3d 709 (12th Dist.1993). The 

appellate court in Lewis held that “one not in privity cannot sue; 

vesting gives the necessary privity to sue” and “the status of those 
OHIO FIRST DISTRICT COURT OF APPEALS

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seeking to sue must be examined at the time the claimed mistakes 

occurred.” Id. at 711-712. 

* * * 

 Based upon the allegations in the complaint, the Court agrees 

that Plaintiffs were not in privity in 2011 when the alleged wrongdoing 

occurred and therefore, under Lewis, Plaintiffs lacked standing to sue 

with respect to the underlying wrongdoing. 

 Furthermore, Plaintiffs have failed to alleged [sic] operative 

facts that, even if proven true, would support their claims of 

conversion and civil theft. 

* * * 

 Having found that Plaintiffs do not have standing to sue for the 

alleged underlying wrongdoing, the Court likewise finds that based 

upon the allegations in the complaint, the accounting being sought is 

not reasonably necessary to enforce the Plaintiffs’ rights. 

{¶9} This appeal followed. The Yeagers now raise three assignments of 

error for our review, challenging each of the trial court’s findings on their claims. In 

their first assignment of error, the Yeagers challenge the trial court’s finding that 

they lacked privity to maintain an action for a trust accounting. In their second 

assignment of error, the Yeagers assert that the trial court erred in concluding that 

they lacked privity to maintain their causes of action for money damages. In their 

final assignment of error, the Yeagers claim that the trial court erred in finding that 

they failed to allege operative facts that, even if proven true, would support their 

claims for conversion and civil theft. 
OHIO FIRST DISTRICT COURT OF APPEALS

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Law and Analysis 

{¶10} We review dismissals for failure to state a claim de novo. (Citation 

omitted.) Zalvin v. Alyers, 2020-Ohio-4021, 157 N.E.3d 256, ¶ 13 (1st Dist.). A court 

may dismiss a complaint for failure to state a claim upon which relief may be granted 

only when it appears “ ‘beyond doubt that the plaintiff can prove no set of facts in 

support of his claim which would entitle him to relief.’ ” York v. Ohio State Highway 

Patrol, 60 Ohio St.3d 143, 144, 573 N.E.2d 1063 (1991), quoting O’Brien v. Univ. 

Community Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975). 

When construing the complaint, “ ‘we must presume all factual allegations of the 

complaint are true and make all reasonable inferences in favor of the nonmoving 

party.’ ” Id., quoting Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 

N.E.2d 753 (1988). 

This standard for granting a motion to dismiss is in accord with the 

notice pleading regimen set up by the Federal Rules of Civil Procedure 

and incorporated into the Ohio Rules of Civil Procedure. Under these 

rules, a plaintiff is not required to prove his or her case at the pleading 

stage. Very often, the evidence necessary for a plaintiff to prevail is not 

obtained until the plaintiff is able to discover materials in the 

defendant’s possession. If the plaintiff were required to prove his or 

her case in the complaint, many valid claims would be dismissed 

because of the plaintiff’s lack of access to relevant evidence. 

Consequently, as long as there is a set of facts, consistent with the 

plaintiff’s complaint, which would allow the plaintiff to recover, the 

court may not grant a defendant’s motion to dismiss. 

Id. at 144-145. 
OHIO FIRST DISTRICT COURT OF APPEALS

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Claim for Trust Accounting 

{¶11} The Yeagers alleged in their amended complaint that they made two 

requests to U.S. Bank for information regarding the trust. The first request was for 

an explanation regarding the $453,366 deposit made into the trust on July 1, 2011. 

The second request was for a full trust accounting. Both requests went unanswered. 

Thus, in their first claim, the Yeagers alleged that U.S. Bank, as trustee, has a duty to 

provide them with a full trust accounting under R.C. 5808.13. 

{¶12} R.C. 5808.13(A) addresses the duty of a trustee to inform and report: 

 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. 

(Emphasis added.) 

{¶13} In relevant part, a beneficiary is defined as “a person that has a present 

or future beneficial interest in a trust, whether vested or contingent * * *,” while a 

“current beneficiary” is defined as “a beneficiary that, on the date the beneficiary’s 

qualification is determined, is a distributee or permissible distributee of the trust 

income or principal.” R.C. 5801.01(C) and (F). 

{¶14} “In construing a statute, it is the duty of the court to give effect to the 

words used and not to insert words not used.” Corban v. Chesapeake Exploration, 

L.L.C., 149 Ohio St.3d 512, 2016-Ohio-5796, 76 N.E.3d 1089, ¶ 111, citing State ex rel. 

Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 220, 631 N.E.2d 

150 (1994). Under the plain language of R.C. 5808.13(A), one of the duties of a 
OHIO FIRST DISTRICT COURT OF APPEALS

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trustee is to “promptly respond to a beneficiary’s request for information related to 

the administration of the trust,” unless unreasonable under the circumstances. 

Thus, the only restriction placed on a request by a “beneficiary” for information 

concerning the administration of a trust is that the request must be reasonable under 

the circumstances. See R.C. 5808.13(A). 

{¶15} In the case at bar, the Yeagers were beneficiaries at the time of their 

request for information. Under R.C. 5808.13(A), U.S. Bank, as trustee, had a duty to 

promptly respond to the Yeagers request for information related to the 

administration of the trust, unless the request was unreasonable under the 

circumstances. Based on the allegations in the complaint, it does not appear beyond 

doubt that the Yeagers’ request for information was unreasonable. Accordingly, we 

cannot conclude that plaintiffs can prove no set of facts which would entitle them to 

relief on this claim. 

Privity 

{¶16} Relying on Lewis v. Star Bank, N.A., Butler Cty., 90 Ohio App.3d 709, 

630 N.E.2d 418 (12th Dist.1993), U.S. Bank argues that a trust beneficiary does not 

have privity to sue based on events that occurred prior to the beneficiary becoming a 

“current beneficiary” because his or her rights were not yet vested. However, this 

reliance on Lewis is misguided. The court in Lewis held that a beneficiary has no 

standing to sue based on errors that occurred prior to the death of the settlor of a 

revocable trust. (Emphasis added.) Lewis at 712. The court did not hold, as U.S. 

Bank suggests, that a beneficiary has no standing to sue prior to becoming a “current 

beneficiary.” In fact, the court expressly declined to analyze the status of the noncurrent beneficiaries after the death of the settlor. Id. at 713 (“We limit our analysis 

of the post-death interests in this case to that of Lewis, not the Lewis Children.”). 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶17} U.S. Bank also relies on Thallman v. Thallman, 3d Dist. Seneca No. 

13-15-36, 2016-Ohio-992, for support. However, the court in Thallman also 

expressly declined to address the status of the remainder beneficiaries prior to the 

death of the life beneficiary. Thallman at ¶ 54 (“In analyzing the statutory 

definitions for ‘beneficiary,’ ‘current beneficiary,’ and ‘qualified beneficiary’ under 

R.C. 5801.01, there appears to be a legitimate question as to just what status the 

appellants had prior to Herval Thallman’s death. However, we need not reach a 

decision on this matter as even if we assumed that appellants met the statutory 

definition of ‘other beneficiaries’ under R.C. 5808.13(C), the trial court’s decision 

denying appellants’ motion to compel was supported on other grounds as previously 

stated.”). 

{¶18} “Any rule other than that the interest of the beneficiary vests upon the 

creation of the trust would result in a confusion of the law of trusts * * *.” First Natl. 

Bank of Cincinnati v. Tenney, 165 Ohio St. 513, 518-519, 138 N.E.2d 15 (1956). In 

the case at bar, the complaint alleges the trust at issue in this case is an irrevocable, 

generation-skipping trust. Thus, based on the allegations in the complaint, the 

Yeagers’ interests became vested upon the creation of the trust and their interests 

were absolute. Therefore, the Yeagers were in privity to enforce their rights as 

beneficiaries in 2011 when the alleged embezzlement occurred, and in 2018 when the 

requests for information were made. 

Claims for Breach of Fiduciary Duty

{¶19} In their claims for breach of fiduciary duty, the Yeagers alleged that 

U.S. Bank, through its agent, breached its fiduciary duties by converting and 

expending trust property from the trust, and that U.S. Bank failed to adequately 

compensate them for the financial injury occasioned by the misconduct of its officer. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶20} At this stage in the proceedings, the information about the alleged 

embezzlement is in the hands of U.S. Bank, and it would be premature on the state of 

this record to conclude beyond doubt that there is no set of facts which would entitle 

the Yeagers to relief on these claims. See York, 60 Ohio St.3d at 144-145, 573 N.E.2d 

1063. After construing all the facts and reasonable inferences in the complaint in the 

Yeagers’ favor, a set of facts could exist that would entitle them to relief for their 

alleged injuries. This conclusion is all that is required at this stage of the 

proceedings. We express no opinion on whether the Yeagers can ultimately prove 

their entitlement to relief as this remains to be seen through the discovery process. 

Our resolution is not to be construed to reflect upon the strength or weakness of 

these claims. We sustain the second assignment of error. 

Conversion and Civil-Theft Claims 

{¶21} The final two claims in the Yeagers complaint sought damages for 

conversion and civil theft. Conversion is an intentional tort. Estate of Barney v. 

Manning, 8th Dist. Cuyahoga No. 94947, 2011-Ohio-480, ¶ 12. For the purposes of 

civil theft, a “theft” is defined in R.C. 2913.01. R.C. 2307.61(A). “[T]o the extent that 

a ‘theft offense’ under R.C. 2913.01 constitutes tortious conduct, it is akin to an 

intentional tort, such as conversion.” Gurry v. C.P., 2012-Ohio-2640, 972 N.E.2d 

154, ¶ 14 (8th Dist.). “Unsupported conclusions that [a defendant] committed an 

intentional tort are not taken as admitted by a motion to dismiss and are not 

sufficient to withstand such a motion.” (Emphasis sic.) Mitchell, 40 Ohio St.3d at 

193, 532 N.E.2d 753, citing Schulman v. Cleveland, 30 Ohio St.2d 196, 198, 283 

N.E.2d 175 (1972). 

{¶22} Here, the Yeagers alleged that (1) U.S. Bank wrongfully converted the 

trust assets, (2) that U.S Bank’s actions were willful, wanton and malicious, and (3) 
OHIO FIRST DISTRICT COURT OF APPEALS

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that the conversion also constituted a theft offense under R.C. 2307.60 and 2307.61. 

These conclusions are not supported by the facts as plead in the complaint. The 

complaint alleged that U.S. Bank “discovered” in 2011 that one or more of its trust 

officers was engaged in the embezzlement of funds from various trusts held and 

administered by U.S. Bank. However, a principal is not liable for the acts of an agent 

which in no way facilitate or promote his business unless the principal expressly 

authorized or otherwise ratified the tortious action. See Estate of Manning at ¶ 9- 

12. Even when making all reasonable inferences in favor of the Yeagers, the 

allegation that U.S. Bank “discovered” the embezzlement of trust funds by one or 

more of its agents is not sufficient to support the claims for conversion and civil 

theft. Therefore, we overrule the third assignment of error. 

{¶23} However, notwithstanding the appropriateness of the dismissal, we 

find that, in light of our ruling on the accounting claim, the conversion and civil-theft 

claims could be pled in another way. Therefore, we find that dismissal of these 

claims should have been without prejudice. See Fletcher v. Univ. Hosps. of 

Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147, ¶ 17 (“[A] dismissal 

for failure to state a claim is without prejudice except in those cases where the claim 

cannot be pled another way.”). 

Conclusion 

{¶24} For the foregoing reasons, we sustain the first and second assignments 

of error, and overrule the third assignment of error. We reverse in part the trial 

court’s judgment and remand this cause to the trial court for further proceedings 

consistent with this opinion and the law. The trial court’s judgment is modified to 

reflect that the claims for conversion and civil theft are dismissed without prejudice, 

and we affirm in part the trial court’s judgment as modified. 
OHIO FIRST DISTRICT COURT OF APPEALS

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Judgment affirmed in part as modified and reversed in part and cause remanded. 

BERGERON and SUNDERMANN, JJ., concur. 

J. HOWARD SUNDERMANN, retired, from the First Appellate District, sitting by 

assignment. 

Please note: 

The court has recorded its own entry this date.