RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0354p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

MARJORIE NIXON,

 Plaintiff-Appellant,

v.

WILMINGTON TRUST COMPANY, et al.,

 Defendants-Appellees.

X

-

-

-

-

>

,

-

-

N

No. 07-4140

Appeal from the United States District Court

for the Northern District of Ohio at Toledo.

No. 06-03046—David A. Katz, District Judge.

Submitted: September 22, 2008

Decided and Filed: September 29, 2008 

Before: MARTIN, ROGERS, and SUTTON, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Michael D. Portnoy, Rossford, Ohio, for Appellants. Thomas L. Feher, Jennifer M.

Burke, THOMPSON HINE, Cleveland, Ohio, for Appellee. 

_________________

OPINION _________________

BOYCE F. MARTIN, JR., Circuit Judge. Marjorie Nixon appeals the district court’s

dismissal pursuant to Rule 12(b)(6) of her claims for breach of fiduciary duty, breach of contract,

and respondeat superior liability against Wilmington Trust. We AFFIRM.

I.

 In July 2003, Wilmington Trust Company, as trustee, and Symphonix, as settlor, established

the Symphonix Devices, Inc., Liquidating Trust Agreement. The Trust Agreement specifically

describes “Beneficiaries” as persons that fall into one of two categories: 1) “creditors listed pursuant

to Section 5 of the [Plan of Dissolution and Liquidation]” and 2) “former shareholders listed on

Exhibit B” of the Trust Agreement. 

In March 2006, Nixon obtained a default judgment in a civil suit against Symphonix in

which she had alleged personal injuries caused by defective Symphonix cochlear implants. She has

been unable to collect her judgment and argues that Wilmington Trust should pay her personal injury

default judgment from the Trust.

1
No. 07-4140 Nixon v. Wilmington Trust Company, et al. Page 2

1

Delaware law is applicable pursuant to Section 23 of the Trust Agreement, and Nixon does not challenge its

applicability. 

2

Nixon attached a copy of the Trust Agreement, but not a copy of Section 5 or Exhibit B to the Trust Agreement

to her complaint. Nevertheless, a court may consider a document not formally incorporated by reference in a complaint

when the complaint refers to the document and the document is central to the claims. Greenberg v. Life Ins. Co. of Va., 177 F.3d 507, 514 (6th Cir. 1999). 

 According to Nixon, Symphonix’s former chief financial officer informed Nixon’s counsel

that the Trust was set up to pay for claims for defective cochlear implants. Nixon says that

Symphonix’s counsel, Isaac Vaughn, also confirmed that the Trust was intended to compensate

individuals who made claims within three years of June 2003. When Nixon’s counsel attempted to

contact the Trustee in June 2006, Wilmington Trust employees allegedly stated that the Trust had

been closed in July 2005 or “years ago.” 

The district court granted Wilmington Trust’s motion to dismiss pursuant to Fed. R. Civ. P.

12(b)(6). Nixon now appeals asking this Court to reverse the district court and remand this case for

further proceedings. 

II. 

We review de novo the district court’s dismissal of Nixon’s complaint pursuant to Fed. R.

Civ. P. 12(b)(6). Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 716 (6th Cir. 2005). We

will affirm the district court only if it appears beyond doubt that Nixon “can prove no set of facts

in support of [her] claims that would entitle [her] to relief.” Marks v. Newcourt Credit Group, Inc., 342 F.3d 444, 452-53 (6th Cir. 2003).

III.

The district court correctly dismissed Nixon’s breach of fiduciary duty claim because

Wilmington Trust owed her no legal duty. Under Delaware law,1

 to state a claim for breach of

fiduciary duty, a plaintiff must show: 1) that a fiduciary duty exists; and 2) that a fiduciary breached

that duty. Legatski v. Bethany Forests Assoc., Inc., 2006 WL 1229689, at *3 (Del. Super. Ct. Apr.

28, 2006). A non-beneficiary to a trust cannot state a claim for breach of fiduciary duty. Sergeson

v. Del. Trust Co., 413 A.2d 880, 882 (Del. 1980).

In trust construction cases, the settlor’s intent controls the interpretation of the instrument.

In re Couch Trust, 723 A.2d 376, 382 (Del. Ch. 1998) (citations omitted). A court determines intent

by “considering the language of the Trust instrument, read as an entirety, in light of the

circumstances surrounding its creation.” Id. (quotation omitted). Courts will not consider extrinsic

evidence to vary or contradict express provisions of a trust instrument that are clear, unambiguous

and susceptible of only one interpretation. Id. (citations omitted).

Here, the clear and unambiguous language of the Trust Agreement defines two categories

of beneficiaries, and Nixon does not fit into either. First, she is not among the “creditors” listed

pursuant to Section 5 of the Plan. Section 5 does not describe general creditors – rather it

specifically defines “creditors” as stockholders to whom distributions cannot be made, including

those who cannot be found.2 Nixon does not claim to be a stockholder. And Nixon does not fit into

the second category because she does not claim to be a “shareholder.” The district court correctly

concluded that the specific and unambiguous language of the Trust Agreement precluded

consideration of extrinsic evidence regarding Symphonix’s subjective intent in establishing the trust,

including statements purportedly made by Symphonix’s officers or counsel. Because Nixon is not
No. 07-4140 Nixon v. Wilmington Trust Company, et al. Page 3

a beneficiary of the Trust Agreement, the district court did not err in dismissing her claim for breach

of fiduciary duty against Wilmington.

Nixon’s breach of contract claim fails as a matter of law for the same reason – she is not a

beneficiary of the Trust. The unambiguous purpose of the Trust is “to collect and distribute to the

Beneficiaries the income and proceeds of the sale of the Trust Estate.” Nixon did not plead the

existence of a third-party contract apart from the Trust Agreement, and the Agreement’s express

terms do not indicate an intent to confer any benefit to non-beneficiaries. The district court therefore

properly dismissed Nixon’s breach of contract claim without considering extrinsic evidence.

Finally, although Nixon included Wilmington employee James Hanley in her appeal, she had

earlier stipulated that she would dismiss all claims against him pursuant to Fed. R. Civ. P. 41(a), and

the district court subsequently dismissed him from this action with prejudice. This case does not

fit within the narrow circumstances where a party may appeal a stipulated dismissal with prejudice.

See Laczay v. Ross Adhesives, 855 F.2d 351, 354-55 (6th Cir. 1988).

IV.

In sum, Nixon’s breach of fiduciary duty and breach of contract claims against Wilmington

Trust are simply not proper causes of action to collect a personal injury judgment entered subsequent

to the creation of a liquidating trust, which by its terms clearly and unambiguously defined its

purpose and beneficiaries. 

For the foregoing reasons, we AFFIRM the district court’s judgment.