Arnold v. PNC Bank N.A.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DARCY G. ARNOLD, et al., :

:

Plaintiffs, : Case No. 2:20-cv-01804

:

v. : Chief Judge Algenon L. Marbley

:

PNC BANK, N.A., : Magistrate Judge Chelsey M. Vascura

:

Defendant. :

OPINION & ORDER

This matter comes before the Court on the Motion for Summary Judgment of Defendant

PNC Bank, N.A., on all claims and counterclaims (ECF No. 93). For the reasons set forth below,

this Court GRANTS the Motion for Summary Judgment on Plaintiffs’ declaratory judgment,

undue influence, tortious interference, and breach of contract claims (Counts I, II, III, and V) and

DENIES the motion on Plaintiffs’ breach of fiduciary duty, breach of trust, and accounting

claims (Counts IV, VI, and VII) and Defendant’s declaratory judgment counterclaim.

I. BACKGROUND

A. Factual Background

In 2016, Jack Richardson made changes to his estate. The changes, referenced by the

parties as the “2016 Amendment,” replaced his only daughter, Plaintiff Darcy G. Arnold, as

successor trustee and executor of his will with Defendant PNC Bank, N.A. (“PNC” or “PNC

Bank”); the changes also delayed the timing and altered the manner of disbursements from

Richardson’s trust to Arnold and his granddaughters, Plaintiffs Ashley N. Pennington and

Angela M. DeNoble. Plaintiffs believe that these changes were made at the behest of PNC Bank,

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as part of a concerted effort by PNC to target elderly clients and hoard assets and fees.

Defendant, on the other hand, maintains that Richardson personally asked for, directed, and

understood the changes to his estate. The disagreement about the true rationale for Jack

Richardson’s decision to change his trust is at the heart of this case.

1. Creation and Initial Amendments to Trust and Will

In 2003, Jack Richardson executed a will and accompanying trust (the “Trust”) with the

help of attorney Richard Burke. (See Pls.’ Second Am. Compl., Ex. A, ECF No. 56-1). Under

the terms of the Trust, Jack and his wife, Betty, were named co-trustees. (Id. at 1). Upon Jack’s

death, the Trust would be split into a “Marital Trust” and a “Family Trust,” each of which would

provide income to Betty. (Id. at 2–3). Richardson amended the trust in 2007 and 2011. (See

Exs. B & D, ECF No. 56-2, -4). The 2011 Amendment changed the successor trustee from PNC

Bank to his daughter, Arnold, and adjusted the final distribution of the trust, such that half of the

trust would go to Arnold and one quarter to each granddaughter upon the deaths of the

Richardsons. (Ex. D, ECF No. 56-4 at 1–4). Richardson also amended his will at this time,

replacing PNC with Arnold as executor. (See Am. Pls.’ Resp. in Opp’n to Def.’s Mot. Summ. J.,

Ex. G (“First Codicil”), ECF No. 97-7).

These documents were prepared by a new attorney, David Humphrey, because, according

to Plaintiffs, Richardson had fired his previous attorney. (See ECF No. 97 at 4). Richardson

certainly did have an unexplained issue with Burke on July 12, 2011, ten days after Burke had

already transferred all documents from his Richardson file to Humphrey. (See Deposition of

Richard Burke (“Burke Dep.”), Ex. 42, ECF No. 91-1 at 19–20; Deposition of Kimberly Mason

(“Mason Dep.”), Ex. 4, ECF No. 90-1 at 9). A PNC email two weeks later notes that “[Jack]

now has changed his mind and does not want to use this attorney. . . . He has now fired this

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attorney,” but the email mentions only David Humphrey by name and does not reference Burke.

(Mason Dep, Ex. 5, ECF No. 90-1 at 10). Burke himself claimed that Richardson stopped

working with him and switched to Humphrey, who is based in Columbus, when the Richardsons

moved to Columbus. (Burke Dep. 14:15–15:6, ECF No. 91).

2. The 2016 Amendment

Richardson’s health declined in the years after the 2011 Amendment. (See Def.’s Mot.

Summ. J. at 4, ECF No. 93; ECF No. 97 at 12). Richardson suffered from anxiety and

depression, partly stemming from the fact that his wife, Betty, had been afflicted by Alzheimer’s

disease.1 (See, e.g., Ex. J, ECF No. 97-10). The anxiety and depression manifested at times as

moments of “angry and negative attitude,” which sometimes required medication. (Ex. K, ECF

No. 97-11). Nurses at the Richardsons’ living facility, Feridean Commons, noted that Jack

occasionally appeared “confused and forgetful.” (Ex. N, ECF No. 97-12; see also Ex. R, ECF

No. 97-18). Additionally, he had lingering issues involving his digestive tracts, stemming from

surgery to treat colon cancer. (See ECF No. 97 at 13; ECF No. 93 at 4). The parties vigorously

dispute the extent to which these health issues affected his cognitive functioning or sense of

independence; Plaintiffs suggest that “he was mentally and physically unwell” (ECF No. 97 at

26), whereas Defendant points out that Richardson continued to read the newspaper every day,

1 Defendant PNC Bank suggests that the medical records attached as exhibits to Plaintiffs’ memorandum

contra (ECF No. 97) are hearsay, and therefore cannot be considered by this Court in deciding Defendant’s summary

judgment motion. (See id. at 6 (citing Tranter v. Orick, 460 F. App’x 513, 514 (6th Cir. 2012) (internal citations

omitted); Charles v. Air Enters., LLC, 224 F. Supp. 3d 657, 661 (N.D. Ohio 2017) (internal quotations omitted)).

Medical records may be admissible as an exception from the rule against hearsay as a business record “provided the

party offering the records can meet the requirements set forth in Rule 803(6).” Tucker v. Nelson, 390 F. Supp. 3d

858, 863 (S.D. Ohio 2019). Rule 803(6) “specifically refers to the ‘compilation, in any form, of . . . diagnoses, made

at or near the time by . . . a person with knowledge, if kept in the course of a regularly conducted business activity . .

. .’” Id. (quoting Norton v. Colyer, 828 F.2d 384, 386–87 (6th Cir. 1987)). Of course, one of the requirements is

authentication “by the testimony of the custodian or another qualified witness, or by a certification,” Fed. R. Evid.

803(6), which Plaintiffs have not provided. But this Court may provide a party with an opportunity to rectify that

misstep: therefore, Plaintiffs have fourteen days from the entry of this Opinion & Order to authenticate the medical

records. See Thomas v. Harvey, 381 F. App’x 542, 545–46 (6th Cir. 2010).

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was able to recognize and took an interest in his great-grandchildren, and knew his progeny and

their relationship to him. (See Deposition of Darcy G. Arnold (“Arnold Dep.”) 66:24–67:22,

ECF No. 88; Deposition of Angela M. DeNoble (“DeNoble Dep.”) 40:12–41:21, ECF No. 85).

Defendant also argues that the medical records provided by Plaintiffs do not establish health

concerns contemporaneous with the execution of the 2016 Amendment, see infra, only issues in

the years before and after 2016.

On June 8, 2016, DeAnn Riley, a wealth strategist at PNC Bank, and Kim Mason, a

Senior Trust Adviser at PNC, met with Jack Richardson to discuss the Trust. (See Mason Dep.,

Ex. 19, ECF No. 90-3 at 11–12). Although PNC had been removed as the successor trustee in

2011, it continued to assist Richardson with his financial affairs and estate planning; the meeting

in June had been pre-scheduled as part of PNC’s semi-annual investment reviews with

Richardson. (Id. 76:23–78:11, ECF No. 90). The same day,2 Riley received an email from Doug

Hicks, a vice president at PNC, who listed Richardson as a “$3+” client and wanted to know how

Riley was planning to retain the accounts of these “$3+” clients after they died.3 (Ex. A, ECF

No. 97-1). PNC often recommended to such clients that PNC be put in place as the executor of

the clients’ wills and as trustee for the clients. (Deposition of Douglas Hicks (“Hicks Dep.”)

38:25–39:9)., ECF No. 97-2). At the meeting with Mason and Riley, Richardson expressed

concerns “that Darcy lived beyond her means” and that he “wanted to make sure that the assets

that he and Betty had accumulated through their lifetimes was there for [Darcy’s] retirement”

2 Although Hicks’ email was sent the day that Riley and Mason met with Jack Richardson, Plaintiffs

characterize the Hicks email as the starting point of PNC’s machinations. (See ECF No. 97 at 7 (“After Hicks’ June

8, 2016 Email, PNC Bank immediately began to isolate the Richardsons from anyone who might find PNC Bank’s

actions suspicions. . . . For this reason, on June 8, 2016, that day after Hicks’ email, Mason and Riley traveled to

Columbus to meet with Jack.”)). In fact, Riley and Mason had already been planning to meet with Richardson, and

had discussed notes in preparation for the meeting the day before. (See Mason Dep. 79:1–11, ECF No. 90).

Additionally, contrary to Plaintiffs’ implication, June 8 is not the day after June 8.

3 In this context, “$3+” indicates a client with over $3 million in net assets. (See Mason Dep. 80:22–81:4,

ECF No. 90).

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and for their granddaughters’ retirements. (Mason Dep. 94:6–19, ECF No. 90; see also

Deposition of DeAnn Riley (“Riley Dep.”) 41:21–42:5, ECF No. 89). Because of this,

Richardson wanted to change the mandatory distributions set out in the 2011 Amendment.

(Riley Dep. 43:2–6, ECF No. 89). Richardson was also upset and worried that Arnold would not

follow through with his wishes, because Arnold had obtained a power of attorney for Betty

without Jack’s permission in 2015. (Riley Dep. 44:2–12, ECF No. 89; see also Arnold Dep.

81:19–83:4, ECF No. 88). After the meeting, Sydney Landon, a caretaker at Feridean Commons,

contacted Arnold and told her that Mason was “strongly encouraging [Richardson] to change

Ashley + Angela’s trust distribution to age 65,” according to notes taken by Arnold after the call.

(Affidavit of D. Arnold (“Arnold Aff.”) ¶¶ 5–8, ECF No. 97-5; see also id. at 3).

Mason set out some options for amending the Trust, based on approaches that other PNC

clients had taken. (See Riley Dep. 43:7–17, ECF No. 89). Burke, the attorney who had worked

with Richardson until 2011, met with Richardson to discuss his desires and then, upon

determining that he understood his options, drafted revisions to the estate planning documents

according to the changes that Richardson had requested. (Id. 18:1–11). The parties dispute who

hired Burke: Plaintiffs suggest that PNC unilaterally approached Burke without Richardson’s

permission based on an email from Mason to Burke asking to meet to discuss Richardson’s

desired changes to the Trust, whereas Mason testified that Richardson had asked her to reach out

to Burke. (See Mason Dep. 89:13–16, ECF No. 90; Burke Dep., Ex. 47, ECF No. 91-1 at 29).

PNC Bank was already familiar with Burke not only as Richardson’s former attorney — he had

represented several PNC clients and had also represented PNC in its fiduciary capacity of the

estate of Burke’s clients after they had passed away. (Id. 58:2–25, ECF No. 91; Hicks Dep.

44:9–45:17, ECF No. 97-2).

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Richardson signed the 2016 Amendment in November. (See Ex. E, ECF No. 52-5). He

reviewed the changes with Burke twice — once when he called Burke a week before signing and

a second time on the day of for about 40 minutes. (See Burke Dep. 18:19–7, ECF No. 91).

Burke confirmed that Richardson understood the revisions and affirmed that they matched his

desires. (Id. 21:14–22:17, ECF No. 91). The 2016 Amendment made the following disputed

changes to the Trust: (1) removing Arnold, Pennington, and DeNoble as successor trustees; (2)

appointing PNC as the successor trustee; (3) creating separate trusts for Richardson’s daughter,

granddaughters, and any great-grandchildren, each of which would be “wholly discretionary”;

(4) removing all mandatory principal distributions to Plaintiffs; (5) delaying mandatory income

distributions to Arnold until age 65; and (6) delaying mandatory income distributions to the

granddaughters, Pennington and DeNoble, by thirty-five (35) years.4 (Ex. E, ECF No. 52-5 at 3–

7, 12; see also Ohio Rev. Code § 5801.01(Y)).

Neither Richardson nor PNC Bank informed Arnold, DeNoble, or Pennington of the

changes. In fact, Richardson had explicitly asked his contacts at PNC not to discuss the 2016

Amendment with his family. (Mason Dep. 122:11–17, ECF No. 90). Instead, Richardson asked

Mason in 2017 to draft a letter explaining the changes to Arnold, who he was worried would put

up a fight. (Id. 131:2–11). The letter itself does not mention the specific changes made to the

estate in the 2016 Amendment, Richardson’s concerns about Arnold’s spending habits, or

Arnold’s decision to change Betty’s power of attorney. (Id. 133:8–134:20). The letter was

written by Mason, with revisions suggested by Richardson that Mason incorporated into a second

4 Plaintiffs suggest that the 2016 Amendment “removed all mandatory distributions to Darcy, Angela, and

Ashley.” (ECF No. 97 at 9). That is not the case.

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draft.5 (See id. 132:14–18). Although the letter was signed by Richardson, Plaintiffs dispute the

fidelity of the letter to Richardson’s own thoughts, in part because the sign-off of the letter read

“Jack Richardson” rather than “your dad” or “your grandpa.” (Arnold Dep. 163:14–18, ECF No.

88; ECF No 97 at 10).

Richardson passed away in 2019, at which time PNC Bank succeeded him as trustee.

Plaintiffs allege that, since then, PNC has disregarded the Trust provisions and prioritized its

own interests over the interests of the Trust beneficiaries. (See ECF No. 56 ¶¶ 44–49). Although

the 2016 Amendment dictated that Arnold would receive income distributions after turning 65,

she has not received anything from the Trust in the last three years. (See ECF No. 56-5 at 5;

Arnold Aff. ¶¶ 3–4, ECF No. 97-5). Nor has PNC transferred title to the Florida condominium

owned by the Richardsons to Arnold, as required by the 2016 Amendment. (See ECF No. 56-6

at 2–3). This, to Plaintiffs, is further evidence that the 2016 Amendment was the result of a

concerted plan of action by PNC Bank to target wealthy, elderly clients and retain their assets

after the clients passed away, in contravention of the clients’ true desires. (See ECF No. 97 at 6).

B. Procedural Background

Plaintiffs Darcy G. Arnold, Angela M. DeNoble, Ashley N. Pennington, and Betty L.

Richardson filed this action against Defendant PNC Bank, N.A., in the Delaware County Court

of Common Pleas on March 10, 2020, alleging five causes of action. (See ECF No. 1-1). PNC

removed the action to this Court based on diversity jurisdiction. (See ECF No. 1). After Betty L.

Richardson passed away on January 17, 2021, Plaintiffs requested — and this Court granted —

the substitution of Adam Rinehart, special administrator of Betty Richardson’s estate, for her.

5 Plaintiffs describe Mason as “PNC Bank’s licensed attorney.” (See, e.g., ECF No. 97 at 9). Although

Mason has a law degree, it is undisputed that she does not serve as an attorney or practice law at PNC. (See Mason

Dep. 21:12–14, ECF No. 90 (testifying that she works in a trust advisor role at PNC); see also Hicks Dep. 48:10–22,

ECF No. 97-2 (“[I]f you’re in any role at PNC on the wealth management team, you cannot practice law.”)).

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(See ECF Nos. 43, 44). Rinehart is also the special administrator of Jack Richardson’s estate. In

May 2020, Plaintiffs sought to join Kimberly Mason, the PNC Senior Trust Adviser and an Ohio

resident (see ECF No. 18 at 5), as an additional defendant and, upon joinder, to remand the case

back to state court for lack of diversity. (See generally id.). Over Plaintiffs’ objections, this

Court upheld the Magistrate Judge’s recommendation that PNC’s Motion to Deny Joinder (ECF

No. 24) be granted and Plaintiffs’ Motion to Remand (ECF No. 18) be denied. (See ECF No.

32). In so concluding, this Court concurred with the Magistrate Judge’s finding that Plaintiffs

sought to join Mason for the purpose of destroying federal jurisdiction. (See id. at 3). Thus,

PNC Bank remains the sole defendant in this case.

Plaintiffs have twice amended their complaint. The Second Amended Complaint alleges

six causes of action: (1) declaratory judgment that the 2016 Amendment was the result of undue

influence and therefore invalid and void; (2) undue influence; (3) tortious interference with

expected inheritance; (4) breach of fiduciary duty; (5) breach of contract; (6) accounting; and (7)

breach of trust. (ECF No. 56 ¶¶ 54–118). Defendant has filed a counterclaim, asking this Court

for a declaratory judgment that Plaintiffs did not have “just cause” to remove PNC as trustee.

(Def.’s Countercl. ¶¶ 12–16, ECF No. 55). On June 2, 2022, Defendant PNC Bank filed its

Motion for Summary Judgment (ECF No. 93) on all claims and counterclaims. That motion is

now ripe for this Court’s review.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(a) states, in relevant part, that summary judgment is

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

movant is entitled to judgment as a matter of law.” In evaluating a motion for summary

judgment, the Court must view the evidence in the light most favorable to the nonmoving party,

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and draw all reasonable inferences in the non-movant’s favor. S.E.C. v. Sierra Brokerage Servs.,

Inc., 712 F.3d 321, 327 (6th Cir. 2013) (citing Tysinger v. Police Dep’t of City of Zanesville, 463

F.3d 569, 572 (6th Cir. 2006)). This Court then asks “whether ‘the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party must

prevail as a matter of law.’” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting

Anderson v. Liberty Lobby, 477 U.S. 242, 251–52 (1986)). But “if the evidence is such that a

reasonable jury could return a verdict for the non-moving party,” the court must find that there is

a “genuine” dispute of material fact and that summary judgment is inappropriate. Anderson, 477

U.S. at 248. Evidence that is “merely colorable” or “not significantly probative,” however, is not

enough to defeat summary judgment. Id. at 249–50. Nor will “[t]he mere existence of a scintilla

of evidence to support [the non-moving party’s] position” be sufficient to overcome such a

motion. Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995).

The initial burden rests upon the movant to present the Court with law and argument in

support of its motion, and to identify the relevant portions of “‘the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it

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

477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56). If this initial burden is satisfied, the

burden then shifts to the nonmoving party to set forth specific facts showing that there remains a

genuine issue for trial. See Fed. R. Civ. P. 56(e); see also Cox v. Ky. Dep’t of Transp., 53 F.3d

146, 150 (6th Cir. 1995) (noting that after the burden shifts, the nonmovant must “produce

evidence that results in a conflict of material fact to be resolved by a jury”).

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III. LAW & ANALYSIS

A. Undue Influence

A claim of undue influence “descends upon a transaction ‘[w]here there is imbecility, or

weakness of mind, arising from old age, sickness, intemperance, or other cause, and inadequacy

of consideration; or where there is weakness of mind and circumstances of undue influence and

advantage; in either case, a contract may be set aside in equity.’” Carter v. LL&B Headwater II,

LP, 2017 WL 4270503, at *4 (S.D. Ohio Sept. 26, 2017) (quoting Tracey v. Sacket, 1 Ohio St.

54, 54 (Ohio 1852)). Under Ohio law, courts presume that a will admitted to probate was made

free from restraint, see Krischbaum v. Dillon, 567 N.E.2d 1291, 1297 (Ohio 1991); see also Ohio

Rev. Code § 2107.74, and contestants of the validity of the will bear the burden of proving undue

influence, by showing: “(1) a susceptible testator; (2) another’s opportunity to exert influence on

the testator; (3) the fact of improper influence exerted or attempted; and (4) a result showing the

effect of such influence.” Young v. Bellamy, 2017-Ohio-2994, ¶ 19, 91 N.E.3d 172, 177 (Ohio

Ct. App. 2017) (citing West v. Henry, 184 N.E.2d 200, 208 (Ohio 1962)). And they must do so

by clear and convincing evidence. See Simon v. Aulino, 2020-Ohio-6962, ¶ 38, 165 N.E.3d 706,

718 (Ohio Ct. App. 2020).

As a threshold matter, Plaintiffs dispute their burden of proof, suggesting that “Ohio law

does not require clear and convincing evidence, much less direct proof, of undue influence with

respect to a will.” (ECF No. 97 at 24 (citing Simon, 165 N.E.3d at 718–19)). While it is true that

undue influence can be inferred from circumstantial evidence and does not require direct proof,

see Simon, 165 N.E.3d at 718 (citing Calloway v. Roy, 1997 WL 200400, at *3 (Ohio Ct. App.

Sept. 8, 1977)), the evidence adduced by the contestant must still meet the clear and convincing

standard of proof for each of the four, above-mentioned prongs. See id. at 718; see also Young v.

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Kaufman, 2017-Ohio-9015, ¶ 52, 101 N.E.3d 655, 670 (Ohio Ct. App. 2017); Huntington v.

Riversource, 2015-Ohio-5600, ¶ 39, 45 N.E.3d 1053, 1059 (Ohio Ct. App. 2015). In arguing

otherwise, Plaintiffs appear to conflate types of evidence (i.e., direct evidence or circumstantial

evidence) with the standards of proof. Plaintiffs also suggest that “there is a rebuttable

presumption that PNC Bank unduly influenced Jack into signing the 2016 Amendment” because

“PNC Bank had a confidential, fiduciary relationship with the Richardsons.” (ECF No. 97 at

25). Here, too, Plaintiffs have drawn the wrong conclusion from a correct premise. While

“undue influence is presumed if the challenging party establishes that a fiduciary or confidential

relationship existed between the decedent and a beneficiary,” Kaufman, 101 N.E.3d at 671

(internal citations omitted), PNC is not a beneficiary of Richardson’s estate. (See ECF No. 56-5;

Def.’s Reply Mem. in Supp. of Mot. Summ. J., ECF No. 99 at 3). Therefore, the rebuttable

presumption does not apply here.

1. Susceptibility

In evaluating whether a testator was susceptible to influence, courts in Ohio have

typically looked to the testator’s personal characteristics and health. See, e.g., Lah v. Rogers,

707 N.E.2d 1208, 1214 (Ohio Ct. App. 1998). In this case, PNC focuses its argument primarily

on the former, noting that Richardson was a strong-willed, independent, and stubborn individual

who prioritized saving money. (See ECF No. 93 at 9 (citing deposition testimony from

Richardson’s daughter, son-in-law, and granddaughters)). Plaintiffs emphasize the latter: they

note that Richardson suffered from a panoply of health issues, which allegedly rendered him

susceptible to undue influence. (See ECF No. 97 at 12–13). These concerns included moments

of forgetfulness and confusion (though Arnold acknowledged that Richardson was still aware of

the identity of his grandchildren and great-grandchildren, and his relationships to them),

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depression, and gastrointestinal problems. (See Arnold Dep. 66:24–67:22, ECF No. 88; ECF No.

97 at 13).

Defendant suggests that “generic claims of health issues” related to old age are

insufficient to establish susceptibility. (See ECF No. 99 at 7 (citing Neumeyer v. Estate of

Penick, 180 Ohio App. 3d 654, ¶ 21, 2009-Ohio-321, 906 N.E.2d 1168, 1171–72 (Ohio Ct. App.

2009); Allerton v. Burns, 2021-Ohio-500, ¶ 16, 2021 WL 734764, at *3 (Ohio Ct. App. Feb. 23,

2021); Robinson v. Harmon, 157 N.E.2d 749 (Ohio Ct. App. 1958))). To the contrary, the cases

cited by PNC have deemed that evidence of health issues common among the elderly, such as “a

stroke suffered by [testator], his frailty, his hearing problems, and his poor eyesight[,] . . . may be

sufficient to create a genuine issue of material fact regarding whether [he] was susceptible to

undue influence at the time he executed the documents.” Neumeyer, 906 N.E. at 1172. On the

other hand, a health concern that does not pinpoint “any specifics establishing [] susceptibility

due to the effect the [health concern] had on Decedent’s decision-making ability” would not raise

a genuine issue of material fact. See Allerton, 2021 WL 734764, at *3. Here, Plaintiffs have put

forward specific concerns, including Richardson’s use of medication, depression, confusion, and

forgetfulness — all of which could point to susceptibility. Cf. MacDowell v. DeCarlo, 2007-

Ohio-249, ¶ 86, 2007 WL 172123, at *15 (Ohio Ct. App. Jan. 24, 2007) (noting a medical

expert’s belief, “based on [the decedent’s] age, health condition, and drug usage, that [she] was

susceptible to influence” especially as she also suffered from depression due to pancreatic

cancer); Ayers v. Morenz-Harbinger, 2020-Ohio-6861, ¶ 47, 2020 WL 7647954, at *7 (Ohio Ct.

App. Dec. 23, 2020) (noting that “there was an issue of fact on this element” of whether the

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testator was susceptible, because she suffered from depression).6 Defendant does not provide

any evidence to rebut the specific medical issues noted by Plaintiffs, and instead only reiterates

its evidence that Richardson was strong-willed.7 (See ECF No. 99 at 6). But a strong will or a

stubborn character does not render one immune to health issues or to their effects.

As such, there is a genuine issue of material fact as to whether Richardson was a

susceptible testator.

2. Opportunity to Influence

The second prong of the “undue influence” test is whether someone (or some

organization) had an opportunity to influence the testator. Defendant, in asking for summary

judgment, points to the fact that the 2016 Amendment was made only after Richardson had

reviewed the drafted changes with an attorney, asked questions about the changes, and walked

through the provisions a second time right before signing. (See ECF No. 93 at 13 (internal

citations omitted)). But though the participation of an attorney in drafting changes to a will does

provide a presumption of regularity to the execution of the will, PNC has not provided case law

applying that presumption to the undue influence analysis under Ohio law — or to the

opportunity to influence prong specifically. (See id. at 11 (citing Estate of Snell v. Kilburn, 165

Ohio. App. 3d 352, ¶ 30, 2005-Ohio-7076, 846 N.E.2d 572, 578 (Ohio Ct. App. 2005))).

In evaluating whether there was an opportunity to influence, courts often look to the

alleged wrongdoer’s access to the testator, and whether that access was to the exclusion of

6 Defendant is correct in noting that the cases it cites granted summary judgment on the ultimate question

of undue influence. Many of them, however, found a genuine dispute on the fact-specific first prong of

susceptibility, which is at issue here.

7 The admissibility of the medical records is addressed earlier. See supra Part I.A.2 n.2. Additionally,

Defendant suggests that Plaintiffs fail to cite to any evidence that Richardson was “weak or feebleminded” or “easily

persuadable.” (ECF No. 99 at 6 (quoting Allerton, 2021 WL 734764, at *4)). This Court is unable to find any

language in Allerton suggesting that that is the standard which Plaintiffs must meet for susceptibility. Notably, the

portion of Allerton cited by Defendant is about the third prong of the undue influence test, not the first prong, which

is at issue here.

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others. See, e.g., Allerton, 2021 WL 734764, at *3. PNC employees, specifically Mason and

Riley, met with Richardson between June 8 and November 15, 2016, to discuss his investments

and the 2016 Amendment.8 (See ECF NO. 97 at 19). Because Richardson was mentally and

physically unwell from early 2012 until he passed away in 2019, these meetings may have

presented opportunities to unduly influence Richardson. (See id. at 18). Moreover, the meetings

were conducted without any other family members present; even if the secrecy was requested by

Richardson, the absence of other family members points in favor of a finding of that PNC had

the opportunity to influence Richardson. See Allerton, 2021 WL 734764, at *3 (finding an

opportunity to influence where the alleged influencer restricted visits to the testator from family

members and monitored calls); see also Lah, 707 N.E.2d at 174.

Neither the participation of an attorney nor the testator’s purported understanding of the

changes disproves the existence of an opportunity to influence the testator. And that is what

PNC’s position relies on: PNC does not dispute that its employees met with Richardson or that

Arnold was kept in the dark about the meetings and changes to the Trust. Rather, PNC suggests

only that any opportunities its employees had to influence Richardson were mitigated by

Richardson’s review of the 2016 Amendment with Burke, comprehension of Burke’s

explanations of the changes, and agreement that the changes were consistent with his requests.

(See id. at 14 (citing Burke Dep. 22:18–25, ECF No. 91)). While this may be helpful in

assessing whether the changes were the result of undue influence, it does not demonstrate

conclusively that PNC employees lacked opportunities to influence Richardson during their

meetings in 2016.

8 To the extent that Plaintiffs’ argument relies on their assertion that only Burke, Riley, and Mason

explained the effects of the 2016 Amendments and that “there is no evidence that Jack Richardson understood or

appreciated the impact of the 2016 Amendments” (see id.), it is not Richardson’s understanding (or lack thereof) that

would demonstrate an opportunity to exert influence.

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In summary, PNC has not shown that there is no genuine dispute of material fact of the

second prong of the undue influence test.

3. Actual Exertion of Undue Influence

A successful claim of undue influence must demonstrate not only that there was an

opportunity to influence, but also that there was actual or attempted imposition of improper

influence. As Plaintiffs note, actual or attempted exertion of undue influence can be

demonstrated through circumstantial evidence and inference, see Simon, 165 N.E.3d at 722, but

the evidence presented must be more than just the “‘hunch’ or personal feelings” of a jilted

beneficiary. See Foelsch v. Farson, 2020-Ohio-1259, ¶ 28, 153 N.E.3d 601, 609 (Ohio Ct. App.

2020) (affirming a finding of no undue influence where contestant of will “presented no evidence

of any control” exerted over the testator). Thus, Ohio courts have found summary judgment

against will contestants warranted where they could only adduce evidence of an opportunity or

motive to influence, without any evidence of actual exertion of influence. See Golub v. Golub,

2012-Ohio-2509, ¶¶ 20–28, 2012 WL 2047734, at *4 (Ohio Ct. App. June 7, 2012). Conversely,

courts have found that undue influence was actually exerted based on direct evidence of specific

actions that, in combination, implied the existence of a scheme to influence. See Simon, 165

N.E.3d at 719–23.

Here, Plaintiffs have not put forward evidence, circumstantial or other, demonstrating a

genuine dispute that PNC actually exerted, or attempted to exert, undue influence on Richardson.

Instead, the evidence cited by Plaintiffs only goes to show that PNC employees might have had a

motive to exert influence. For example, Plaintiffs cite to the Hicks email, in which Riley was

asked how she planned to retain the assets of “$3+” clients, such as Richardson, after the clients

passed away. (See ECF No. 97 at 20–21). This email demonstrates, from Plaintiffs’ perspective,

15

“PNC Bank’s willingness to elevate its own interests above the interests of the Richardsons.”

(Id.). Similarly, Plaintiffs suggest that Mason and Riley’s questions to Richardson about his

assets held at other financial institutions also demonstrate their desire to maintain, or even

increase, the assets held at PNC after his death. (See id. at 20–21). But, as Defendant notes, “an

interest or motive to [exercise undue influence] is not sufficient, but such influence must actually

be exerted on the mind of the testator with respect to the execution of the will in question.”

West, 184 N.E.2d at 202; see also Golub, 2012 WL 2047734, at *4. In other words, the evidence

presented by Plaintiffs of PNC’s motive is not sufficient to establish the third prong.

In response to Defendant’s evidence, which consists primarily of testimony that

Richardson consulted with Burke before amending the Trust and requested the changes

embodied in the 2016 Amendment (see ECF No. 93 at 15–16),9 Plaintiffs suggest that the PNC

employees’ testimony should be disregarded as self-serving and that Richardson did not

understand the Trust revisions drafted by Burke. (See ECF No. 97 at 20). Of course, where both

parties have provided conflicting evidence, such as testimony disagreeing on whether Richardson

wanted to make certain changes to his Trust, this Court will certainly view the evidence in the

light most favorable to the nonmoving party. See Sierra Brokerage Servs., 712 F.3d at 327

(citing Tysinger, 463 F.3d at 572)). Here, Plaintiffs have not produced any evidence

contradicting Mason and Riley’s testimony that Richardson asked that they facilitate revisions to

the Trust on June 8, 2016. Nor have Plaintiffs produced evidence tending to show that

Richardson had expressed desires that conflicted with Mason and Riley’s representations, such

as a desire to keep the 2011 Amendment in place, around the same time or afterward. See infra

9 As Plaintiffs do not raise the issue of alcohol-impairment, this Court sets aside Defendant’s arguments on

that issue. (See ECF No. 93 at 15).

16

Part III.A.4.; cf. Simon, 165 N.E.2d at 721–22. The fact that the 2016 Amendment was markedly

different from the 2011 Amendment does not alter this conclusion; after all, Richardson could

easily have changed his mind in the intervening five years. And without evidence disputing the

PNC employees’ testimony that the 2016 Amendment requested by Richardson, rather than

imposed by Riley and Mason, there are no inferences for this Court to draw in favor of the non-

movant on this issue.

Similarly, Plaintiffs’ attempts to point out a genuine dispute about Richardson’s capacity

to understand the 2016 Amendment fall short. Whereas PNC cites to Burke’s testimony that he

walked through the revisions with Richardson twice and that Richardson understood the changes

and confirmed that they adhered to his wishes,10 Plaintiffs simply conclude that “as set forth

above, there is strong circumstantial evidence that Jack Richardson did not understand,

comprehend, or appreciate what the 2016 Amendments were doing to Darcy Arnold and his

granddaughters” without specifying what previous information or evidence is referenced. (ECF

No. 97 at 20). In the absence of guidance, this Court presumes that the previously-discussed

health problems and the complexity of the 2016 Amendment are incorporated here by reference.

(See id. at 12–15, 19–20).

10 Plaintiffs argue that Burke’s testimony should not be credited, because he was actually acting on behalf

of PNC, not Richardson. (See ECF No. 97 at 19 (referring to “PNC attorney Burke”). But see Burke Dep. 38:5–18,

ECF No. 91 (stating that “my client was Jack Richardson and I do what’s in the best interest of Jack Richardson”)).

Plaintiffs also argue that Burke’s meetings with Richardson about the 2016 Amendment represent opportunities that

PNC had to exert influence over Richardson. (Id. at 18–19). Although Burke had previously represented clients of

PNC and had represented PNC itself in probate matters where PNC served as the fiduciary of estates of Burke’s

clients (after the clients had passed away), Plaintiffs have not cited any authorities holding that Burke’s

representation of PNC in those circumstances was unusual or provided any evidence indicating that Burke was

working on behalf of PNC at the time he drafted the 2016 Amendment. Nor have Plaintiffs identified a previous

conflict between Richardson and Burke; despite their assertions that Richardson ”fired” Burke, the evidence does

not demonstrate termination rooted in performance or personal issues. In fact, PNC suggests that it was Richardson

who requested and reached out to Burke to draft the 2016 Amendment.

17

But just as testimony that Richardson was strong-willed and stubborn does not indicate

that his health issues could not render him susceptible to undue influence, see supra Part III.A.1,

the reverse is true here: evidence of health issues demonstrates only that he was infirm at times,

but not that he lacked all capacity to understand the 2016 Amendment. Occasional moments of

forgetfulness or confusion, or gastrointestinal issues, are not indicative of a total loss of cognitive

ability or probative of whether someone can comprehend a concept. In fact, the evidence

produced by Plaintiffs demonstrate that the opposite is true. Arnold acknowledged, for example,

that her father was fully able to recognize her and his son-in-law, granddaughters, and great-

grandchildren even just a few days before he passed away in 2019. (Arnold Dep. 19:7–22:8,

ECF No. 88). The medical records by Plaintiffs indicate inter alia that Richardson “denie[d]

having difficulty with concentration . . . [or] any difficulty with attention” in 2015 and often

responded well to treatment. (Ex. R, ECF No. 97-18 at 3; see Ex. N, ECF No. 97-14). Nowhere

in the evidence is there an indication that Richardson’s health issues were so severe and so

constant as to impair his ability to understand the 2016 Amendment at any point — or, in other

words, to dispute explicit testimony that he did understand the 2016 Amendment.

Ultimately, Plaintiffs have not presented sufficient evidence that undue influence was

actually exerted. Consider, for the sake of comparison, the circumstantial evidence presented in

Simon. There, the contestor of the will, Simon, showed inter alia that: (1) her sister, Aulino,

claimed to be unaware of changes that their father had made with Aulino present; (2) Aulino had

daily conversations with Simon’s ex-husband for three months immediately after their divorce

and the ex-husband then told Simon and Aulino’s father that Simon had cheated on him, was

addicted to painkillers, and had lied about having cancer; (3) the father subsequently changed

various aspects of his estate to cut out Simon; (4) once the changes were made, Aulino stopped

18

calling her sister’s ex-husband; and (5) there was clear evidence from multiple third parties that

the father did not want to disinherit Simon. Simon, 165 N.E.3d at 719–21. In short, the plaintiff

in that case put forward direct evidence of specific actions with clear causal links that combined

to create a circumstantial picture of actual exertion of influence. Other courts have suggested

that the actual exertion of undue influence may be shown testimony or exhibits “tending to show

that [the testator] was coerced either by threats or solicitations or by mercenary kindness or

attentions.” Lah, 707 N.E.2d at 174. But no corresponding evidence exists here: Plaintiffs have

not demonstrated evidence linking PNC or its employees with concrete actions that imply

influence or coercion.

Instead, Plaintiffs rely entirely on speculative leaps to support their conclusion that PNC

actually exerted undue influence — that because PNC had a motive to exact undue influence, it

must have done so. Although a claim of undue influence may rely on circumstantial evidence,

mere speculation is insufficient. Accordingly, this Court finds that there is no genuine dispute of

material fact as to whether PNC actually or attempted to exert undue influence over Richardson.

4. Result Showing the Effect of Such Influence

Nor can Plaintiffs demonstrate a genuine issue of material fact that the 2016 Amendment

implemented changes that are the effect of influence by PNC, and not simply the result of

Richardson’s own wishes. According to PNC, the 2016 Amendment simply embodied

Richardson’s concerns about Arnold’s liberal spending habits and his desire that the Trust

provide Arnold and her daughters with sufficient funds during their retirements. (ECF Nos. 93 at

19–21; 99 at 16). Thus, placing disbursement power in the hands of a third-party trustee and

delaying the mandatory distributions until retirement age were simply mechanisms for ensuring

that the assets in the Trust were not depleted too quickly by profligate spending and were

19

available as Richardson’s daughter and granddaughters reached retirement age. Cf. Medicare

Benefits, SOC. SEC. ADMIN., https://www.ssa.gov/benefits/medicare/ (explaining that Medicare

provides health insurance to people age 65 or older). And the removal of Arnold as trustee,

according to PNC, was in accord with Richardson’s growing distrust of, and unhappiness with

Arnold, due to her unilateral decision to give herself a power of attorney for Betty. (See ECF

No. 93 at 19–21). In support of its argument, PNC notes the testimony of various individuals,

including its own employees, who reported that Richardson had concerns about the way “future

generations” spent money. (Id. at 19–20).

Plaintiffs raise various arguments in dispute of the conclusion that the 2016 Amendment

reflected Richardson’s desires.11 (See ECF No. 97 at 24). The arguments do not, however,

address the evidence produced by Defendant PNC. First, Plaintiffs suggest that the fact that the

2016 Amendment is “markedly different” and “the one and only time in the Richardsons’ estate

planning that every change was for the benefit of a single entity” is enough on its own to “lead to

a conclusion and finding of undue influence.” (ECF No. 97 at 30). That is simply not the case:

changes to a will, even drastic changes, do not state a claim for undue influence on their own.

To the contrary, “[t]he fact that the will of the testator . . . disposes of his property in an

unnatural manner, unjustly, or unequally, and however much at variance with expressions by the

testator concerning relatives or the natural objects of his bounty, does not invalidate the will,

unless undue influence was actually exercised on the testator.” West, 184 N.E.2d at 202 (quoting

95 C.J.S. Wills § 224). Instead, to satisfy this prong of the undue influence test, Plaintiffs must

11 Plaintiffs also argue that this case “highlights precisely why those who are unscrupulous in dealing with

end-of-life modifications to estate plans zealously hide their actions until after the death of the testator” and note

their pending motion seeking evidence about other PNC clients. (ECF No. 97 at 21–22). Setting aside the merits of

this assertion, this Court notes that the deadline for discovery passed nearly six months ago. (See ECF Nos. 69, 98).

And as Plaintiffs have not produced any evidence regarding the “zealous” hiding of actions, this Court disregards

that portion of Plaintiffs’ arguments.

20

show not only that the Trust was altered, but also that the alterations were a result of undue

influence — in other words, that the changes in the 2016 Amendment were the result of PNC’s

ploy, and not Richardson’s own desires. Cf. Simon, 165 N.E.3d at 721 (noting abundant

evidence that the contested will disinheriting daughter did not reflect father’s desires, including

multiple third-party witnesses, text messages, and birthday cards from the father).

Next, Plaintiffs dispute PNC’s characterization of Richardson’s intent, noting that he

expressed concerns only about Arnold living beyond her means, and not about his

granddaughters doing so too. (See ECF No. 97 at 23). It is true that the deposition testimony

cited by PNC does not conclusively demonstrate Richardson expressing the same misgivings

about his granddaughters’ spending habits. Mason, for example, notes only that Richardson “felt

that Darcy lived beyond her means,” and does not mention DeNoble or Pennington. (See Mason

Dep. 94:8–12, ECF No. 90). Donatelli’s comments, as Plaintiffs noted, are drawn from his

recollections of Richardson from the early 1990s; it is difficult to draw conclusions about

Richardson’s granddaughters’ spending habits as adults from that testimony. (See Deposition of

Robert Donatelli (“Donatelli Dep.”) 47:23–48:6, ECF No. 92). Finally, Riley noted that

Richardson was worried that “they lived outside their means,” but it is unclear if “they” referred

to Arnold and her husband or to Arnold and her daughters.12 (See Riley Dep. 42:1–43:6, ECF

No. 89). Although PNC’s mischaracterization somewhat undermines Richardson’s purported

rationale for delaying the mandatory distributions to DeNoble and Pennington, it does not leave

the 2016 Amendment without any basis; after all, delaying the distributions until DeNoble and

Pennington turn 60 still aligns with Richardson’s stated intent to provide for their retirements,

12 Riley refers to Arnold and the granddaughters preceding this quote, but there is an interruption by

counsel. Moments before, Riley had reported that Richardson “said to Kim and I, I could be wrong, but I believe

that Darcy and Jim live outside of their means.” (See Riley Dep. 41:24–42:2, ECF No. 89).

21

which Plaintiffs do not dispute. (See id. at 23). Nor do Plaintiffs provide evidence disputing

PNC’s assertion that Richardson had concerns about Arnold’s spending habits,13 and thus may

have had valid reasons to limit the mandatory distributions in the trust. (See id. at 23).

Finally, Plaintiffs maintain that, even if PNC correctly characterized Richardson’s intent,

the 2016 Amendment does not align with that intent because Arnold has been retired for three

years and has not received any money from the Trust. Instead, if Richardson truly wanted to

provide for Darcy’s retirement, Plaintiffs suggest that he would have either made no changes to

the Trust at all, since Darcy was already nearing retirement age in 2016, or implemented a

different set of changes that would have ensured that she receive distributions in the first few

years of her retirement. (Id. at 24). This argument appears to be at the core of Plaintiffs’ undue

influence claim: the fact that, in the years since Richardson passed, the Trust has not provided

any distributions to Plaintiffs. (See also id. at 19 (arguing that Richardson did not understand the

2016 Amendment because he would not have wanted to set up his estate such that “his only

daughter and granddaughters have yet to receive anything” three years after his death)).

But this argument conflates distinct claims. According to Plaintiffs’ theory, the 2016

Amendment is the “result” that shows the effect of the alleged undue influence. But the 2016

Amendment explicitly requires quarterly mandatory distributions to Arnold starting at age 65,

which would align both with PNC’s characterization of Richardson’s intent (i.e., that the Trust

allow Arnold to be comfortable in retirement) and also with Plaintiffs’ version of Richardson’s

intent (i.e., that he would have wanted Arnold to receive distributions since 2019); after all, it did

13 Plaintiffs suggest that Mason and Riley’s testimony should be discredited because both are biased. (See

ECF No. 97 at 23). But, as before, Plaintiffs have not provided any evidence disputing Mason and Riley’s testimony

for this Court to weigh. Plaintiffs also argue that “Jack never definitively said that Darcy lived beyond her means.”

(ECF No. 97 at 23). The quoted testimony from Riley recalls Richardson saying: “I believe that Darcy and Jim live

outside of their means.” (Id. at 23 (quoting Riley Dep. 41:21–42:9, ECF No. 89)). Plaintiffs’ objection, in other

words, is a quibble about semantics, not a serious dispute of the substance of the statement.

22

not eliminate distributions to Arnold, DeNoble, or Pennington from the Trust altogether. Cf.

Simon, 165 N.E.3d at 711. Instead, the true reason that Arnold has not received any distributions

is because of how the Trustee has executed the Trust provisions (or, rather, how the Trustee has

failed to execute the provisions mandating income distributions). That may raise a breach of

trust claim,14 but does not speak to Richardson’s intent in enacting the 2016 Amendment. After

all, courts evaluate a testator’s intent by looking to the circumstances and contemplations at the

time the will (or trust amendments) was made, see, e.g., Bank One Ohio Trust Co., N.A. v. Hiram

Coll., 115 Ohio App. 3d 159, 161 (Ohio Ct. App. 1996), not “by what occurred long after the

execution of his will.” Id. Plaintiffs’ evidence that PNC has not issued distributions in line with

the Trust mandates after 2019 does not, in other words, create a genuine dispute of material fact

about Richardson’s intent in changing the Trust in 2016.

* * *

In summary, there is no genuine dispute that Plaintiffs have failed to put forward clear

and convincing evidence showing that PNC “so overpower[ed] and subjugate[d] the mind of the

testator as to destroy his free agency and make him express the will of another rather than his

own.” West, 184 N.E.2d at 202. Accordingly, Defendant’s Motion for Summary Judgment is

GRANTED as to Plaintiffs’ undue influence claim.

B. Declaratory Judgment Claims

1. Validity of the 2016 Amendment

In Count One of the Second Amended Complaint, Plaintiffs requested a declaratory

judgment that the 2016 Amendment was invalid, void, and of no force or effect because the

changes were the result of undue influence or because Richardson lacked testamentary capacity.

14 This is discussed further below. See infra Part III.B.2.

23

(See ECF No. 56 ¶¶ 54–60). As there is no genuine issue of material fact regarding the undue

influence claim, see supra Part III.A, this Court focuses its analysis here on the question of

testamentary capacity. The test for testamentary capacity is whether the testator had sufficient

mind and memory to “[(1)] to understand the nature of the business in which he is engaged; [(2)]

to comprehend generally the nature and extent of his property; [(3)] to hold in his mind the

names and identity of those who have natural claims upon his bounty; [and (4)] to be able to

appreciate his relation to the members of his family.” In re Ludwick, 1999 WL 391092, at *3

(Ohio Ct. App. May 24, 1999) (citing Niemes v. Niemes, 119 N.E. 503, syllabus ¶ 4 (Ohio

1917)). As a threshold matter, Plaintiffs again appear to misunderstand the standard of review,

asserting that PNC has flipped the summary judgment standard by “arguing that Plaintiffs cannot

present any facts to support their claim.” (ECF No. 97 at 25). But that is exactly what PNC is

asked to do at summary judgment: to argue and demonstrate that Plaintiffs are unable to present

sufficient evidence in support of their claim to meet the burden of proof and that, therefore, there

is no genuine issue of material fact. And it is incumbent on Plaintiffs, as the non-movant, to

present sufficient facts in support of their claims to demonstrate the existence of a genuine issue

of material fact.

Plaintiffs have not done so here. PNC argues that Richardson satisfied all four elements

of the test for testamentary capacity. (See ECF No. 93 at 23). He understood the nature of the

changes, according to Burke’s testimony; he knew the extent of his assets; he remembered his

daughter, granddaughters, and great-grandchildren, even if he occasionally mixed up their

names, and the nature of his relationships to them, according to Arnold’s testimony. (See id. at

23–24). Plaintiffs dispute how much weight this Court should give to Arnold’s lack of personal

knowledge as to whether Richardson understood the 2016 Amendment. (See ECF No. 97 at 25–

24

26). That point is well-taken: just because Arnold did not have personal knowledge that

Richardson did not understand the changes does not mean that there is no such evidence

supporting a lack of understanding.

The problem for Plaintiffs, however, is that the dispute about the value of Arnold’s

testimony is the entirety of their argument: they have not affirmatively provided any evidence

tending to show that Richardson did not understand the 2016 Amendment. (See generally id.).

Nor do Plaintiffs explain how the health issues, which were identified in their arguments about

the undue influence claim,15 affected Richardson’s ability to understand the changes to the Trust;

generalized claims of occasional forgetfulness or depressions do little to undermine Burke’s

testimony that Richardson understood and approved the 2016 Amendment. See supra Part

III.A.3.

In the absence of evidence creating a genuine dispute of material fact, this Court

GRANTS Defendant’s Motion for Summary Judgment (ECF No. 93) on Count I of Plaintiffs’

Second Amended Complaint (ECF No. 56).

2. “Just Cause” for Removal

In its counterclaim, PNC asks this Court for a declaratory judgment that Plaintiffs lacked

“just cause” for removing PNC as trustee. Under § 7.4(b) of the Trust agreement, beneficiaries

of the Trust are authorized to remove the bank or trust company serving as Trustee “for just

cause only,” and “any Trustee so removed [is authorized] to bring an action in a court of

competent jurisdiction to review the beneficiary’s act.” (ECF No. 56-5 at 12). Plaintiffs, who

are beneficiaries of the Trust, delivered a removal letter to PNC on July 14, 2021. (See ECF No.

15 Plaintiffs do not cite to or mention the health issues discussed in the undue difference claim, but this

Court presumes that that is their intent in referencing “the evidence set forth above” without any further specificity.

25

56-6). In Plaintiffs’ removal letter, they raise several reasons for taking action: (1) conflict of

interest; (2) incurable breakdown in communications; (3) failure to make distributions; (4) failure

to prepare and to submit tax documents timely; (5) failure to transfer the Florida condo; and (6)

poor investment returns. (See ECF No. 56-6).

Under Ohio law, “just cause” for removal includes cases where: “(1) The trustee has

committed a serious breach of trust; (2) Lack of cooperation among cotrustees substantially

impairs the administration of the trust; [and] (3) Because of unfitness, unwillingness or persistent

failure of the trustee to administer the trust effectively, the court determines the removal of the

trustee best serves the interests of the beneficiaries.” Ohio Rev. Code § 5807.06(B). Defendant

notes, as an initial matter, that the second category only applies to cases of friction between co-

trustees and not to cases of friction between trustee and beneficiary, and is therefore inapplicable

here. (See ECF No. 93 at 30–31). Defendant also argues that poor investment returns for a year

or two are insufficient to constitute “persistent failure of the trustee to administer the trust

effectively.” (See ECF No. 93 at 32 (citing Ohio Rev. Code § 5807.06; Bartlett v. Betlach, 146

P.3d 1235 (Wash. App. 2006)). Both points are well-taken; therefore, this Court focuses its

analysis on whether the first, third, fourth, and fifth reasons for removal identified in Plaintiffs’

letter constituted a “serious breach of trust.” See Ohio Rev. Code § 5807.06(B).

A breach of trust claim arises from any “violation by a trustee of a duty the trustee owes

to a beneficiary,” id. § 5810.01, which includes trust requirements regarding the distribution of

income. See, e.g., Gorby v. Aberth, 2017-Ohio-274, ¶ 16, 81 N.E.3d 910, 915 (Ohio Ct. App.

2017). It is undisputed here that the 2016 Amendment mandated the Trustee provide quarterly

income distributions to Arnold after she turned 65, which Plaintiffs allege PNC has not. (See

ECF Nos. 56-5 at 4; 56-6 at 3; 97-5 ¶ 3). It is also undisputed that the Trustee is required to

26

transfer the Florida condo to Arnold, which Plaintiffs also allege that PNC has not done. (See

ECF Nos. 56-5 at 2–3; 56-6 at 3). PNC labels both oversights “minor” in its Motion for

Summary Judgment (see ECF No. 97 at 31), but does not explain why an apparent failure to

fulfill its explicit trustee obligations should be considered minor, nor provide any evidence

explaining why its inaction is justified.

As a reasonable jury could disagree on whether Plaintiffs had “just cause” for the

removal of PNC as trustee, Defendant’s Motion for Summary Judgment (ECF No. 97) on its

counterclaim for declaratory judgment is DENIED. Additionally, Plaintiff’s Seventh Cause of

Action is for breach of trust agreement. (See ECF No. 56 ¶¶ 112–118). As the foregoing “just

cause” analysis looked to whether Defendant had committed a serious breach of trust and found

that there were genuine issues of material fact on that question, Defendant’s Motion for

Summary Judgment (ECF No. 97) on Plaintiffs’ breach of trust claim is also DENIED.

C. Tort Claims

In the Second Amended Complaint, Plaintiffs present two tort claims against PNC Bank:

tortious interference with expected inheritance and breach of fiduciary duty.

1. Tortious Interference with Expected Inheritance

Under Ohio law, the “elements of intentional interference with an expectancy of

inheritance are: (1) the plaintiff’s expectancy of an inheritance; (2) the defendant’s intentional

interference with that expectancy of inheritance; (3) conduct by the defendant involving the

interference that is tortious in nature, such as fraud, duress or undue influence; (4) a reasonable

certainty that the expectancy of inheritance would have been realized, but for the defendant’s

interference; and (5) damage resulting from the interference.” Mackay v. Thomas, 2018-Ohio-

4154, ¶ 26, 121 N.E.3d 814, 818 (Ohio Ct. App. 2018) (citing Firestone v. Galbreath, 67 Ohio

27

St.3d 87, 88 (1993)). The parties appear to agree that Plaintiffs had an expectancy of inheritance,

as established by the 2011 Amendment. The parties also agree that the 2016 Amendment

changed the structure, amount, and timeframe of Plaintiffs’ inheritance. (See ECF No. 97 at 27).

The key disagreement between the parties is whether there exists a genuine dispute about

the third element of a tortious interference claim. PNC asserts that it “acted only in furtherance

of Richardson’s expressed interests and desires” and did not exert undue influence.16 (ECF Nos.

93 at 26; 97 at 27–28). Plaintiffs counter that PNC “targeted the Richardsons in June 2016 as

clients whose money PNC Bank sought to ‘retain’” and that “Darcy has not yet received a single

distribution under the 2016 Amendments.” (See ECF No. 97 at 27–28). These arguments,

however, are insufficient to establish undue influence, as noted previously: (1) a motive does not,

on its own, prove undue influence, see West, 184 N.E.2d at 202; and (2) after-the-fact

distributions (or lack thereof) do not speak to the intent of the testator, let alone to whether

influence was exerted. And Plaintiffs have not even demonstrated that influence was exerted at

all: the mere fact that the Trust was revised in 2016 is insufficient, contrary to Plaintiffs’

assertion.17 (See ECF No. 97 at 27).

Plaintiffs have not done adduced evidence, direct or circumstantial, that PNC

“overpower[ed] and subjugat[ed] the mind of the testator,” West, 184 N.E.2d at 202, and thus

have not established a genuine issue of material fact on the third element of their expectancy of

inheritance claim. Accordingly, this Court GRANTS Defendant’s Motion for Summary

Judgment as to Plaintiffs’ tortious interference claim.

16 Of course, Plaintiffs may also satisfy the undue influence elements by demonstrating that the 2016

Amendment was made under duress or was fraudulent, but Plaintiffs do not appear to allege any other tortious

conduct besides undue influence. (See ECF Nos. 93 at 26; 97 at 27).

17 It appears that Plaintiffs imply that any major change in an estate entails interference. This Court may

have misunderstood Plaintiffs’ briefing, but the alternative reading of the same passage suggests that Plaintiffs

conclude PNC “is simply wrong” without any supporting citations or explanations. (See ECF No. 97 at 27).

28

2. Breach of Fiduciary Duty

To prove a breach of fiduciary duty, a plaintiff must show: “(1) the existence of a duty

from a fiduciary relationship; (2) a failure to observe the duty; and (3) an injury resulting

proximately therefrom.” Akerstrom v. 635 W. Lakeside, Ltd., 2018-Ohio-98, ¶ 18, 105 N.E.3d

440, 446 (Ohio Ct. App. 2018) (citing Lombardo v. Mahoney, 2009-Ohio-5826, ¶¶ 18–19, 2009

WL 3649997, at *4 (Ohio Ct. App. Nov. 5, 2009)). It appears that Plaintiffs allege the following

actions by PNC and its employees breached their fiduciary duties to Richardson: (1) suing Betty

Richardson in probate court; (2) failing to disclose conflicts of interest, potential conflicts of

interest, and a right to independent counsel; (3) targeting the Richardsons; (4) succeeding in

influencing the Richardsons to move their non-PNC-held assets into PNC’s control; and (5)

persuading Richardson to enact the 2016 Amendment.18 (See ECF No. 97 at 28–29).

Although Defendant is correct in stating that “Plaintiffs fail to provide any analysis in

their Opposition of how they satisfy [the] elements” of a breach of fiduciary duty claim (ECF

No. 99 at 21 n.5), it is also the case that Defendant has provided little analysis of how its actions

do not satisfy the elements of a breach of fiduciary claim. Plaintiffs’ tort claims may be rooted

in their undue influence claim, but they have also identified specific actions of PNC employees,

distinct from the overarching undue influence claim, that allegedly breached PNC’s fiduciary

duty to the Richardsons. For example, Plaintiffs are not required to succeed on their undue

influence cause of action as a prerequisite for claiming that PNC’s efforts to convince

Richardson to transfer assets held outside of PNC into his PNC account breached its fiduciary

duty. (Cf. ECF No. 99 at 21 (arguing that “because Plaintiffs’ undue influence claim undeniably

18 Plaintiffs list a number of facts that are “undisputed,” before then discussing breaches. (See ECF No. 97

at 28). As it is unclear whether the “undisputed” events are also intended to constitute alleged breaches of fiduciary

duty, this Court has included them for the sake of completeness.

29

fails . . . so too must Plaintiffs’ bootstrapped tort claims fail”)). And, as the party moving for

summary judgment, PNC bears the burden of demonstrating that there does not exist a genuine

issue of material fact with respect to the specific breaches alleged by Plaintiffs.

Accordingly, Defendant’s Motion for Summary Judgment (ECF No. 93) is DENIED as

to Plaintiffs’ breach of fiduciary duty claim.

D. Other Claims

1. Breach of Contract

Plaintiffs’ Fifth Cause of Action is for breach of contract (see ECF No. 56 ¶¶ 101–08),

which, under Ohio law, requires establishing “by a preponderance of the evidence that (1) a

contract existed, (2) one party fulfilled his obligations, (3) the other party failed to fulfill his

obligations, and (4) damages resulted from that failure.” Quest Workforce Sols., LLC v.

Job1USA, Inc., 2016-Ohio-8380, ¶ 40, 75 N.E.3d 1020, 1030 (Ohio Ct. App. 2016) (citing Blake

Homes, Ltd. v. FirstEnergy Corp., 173 Ohio App. 3d 230, ¶ 77, 2007-Ohio-4606, 877 N.E.2d

1041, 1052 (Ohio Ct. App. 2007)). Defendant suggests that “there is no evidence of a contract

between PNC and Richardson (nor any contract between PNC and Plaintiffs),” and thus that not

even the threshold element of a breach of contract claim has been met. (ECF No. 93 at 28). In

response, Plaintiffs do not provide any evidence that a contract exists. (See generally ECF No.

97 at 29). Instead, Plaintiffs argue that:

[A]s PNC Bank moved for summary judgment, PNC Bank had the opportunity to

present legal argument regarding whether there is a contract. Instead, PNC Bank

concluded that, in its view, there is no evidence of a contract, so none exists. In

doing so, PNC failed to address whether the features of a valid contract exist, and

has thus waived the right to do so.

(Id.). Plaintiffs appear to misunderstand what is required of them at this stage of the litigation: as

PNC has moved for summary judgment and argued that there is no evidence of any contract at

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all (let alone any features of a valid contract), Plaintiffs now carry the burden of providing

evidence that, at the least, tends to show that such a contract exists. It is unclear what evidence

Plaintiffs believe Defendant must point to regarding the non-existence of a contract, since the

very basis of Defendant’s argument is that the record does not contain any evidence of a

contract. As noted previously, this Court cannot construe evidence in favor of the non-movant

(here, in favor of Plaintiffs), if the non-movant does not provide any evidence to construe.

In the absence of any evidence suggesting the existence of a contract, and thus any

evidence disputing PNC’s claim that no contract exists, this Court finds that PNC is entitled to

summary judgment as a matter of law on the breach of contract claim.

2. Accounting

The Sixth Cause of Action “requests that PNC provide a full accounting of the Trust.”

(ECF No. 56 ¶ 111). PNC suggests that this request is unnecessary, because the Trust already

requires an annual accounting, without the need for an extraneous, court-ordered accounting.

(See ECF No. 93 at 29 (“Section 8.6 of the Trust says, ‘The Trustee (if other than myself or my

wife) shall render an account of trust receipts and disbursements and a statement of assets, at

least annually, to each person then entitled to receive distributions from the trust.’” (citing ECF

No. 56-5 at 15))). But according to Plaintiffs, “it is undisputed that PNC Bank has never

rendered an accounting under the Trust. . . . [and] has failed to provide and/or identify any

accounting of the Trust to Plaintiffs since PNC Bank took over as Trustee in 2019.” (See ECF

No. 97 at 30). And, though Plaintiffs do not specify the basis for their equitable accounting

claim, they do provide sufficient facts — including allegations of necessity, given PNC’s refusal

to adhere to the accounting schedule in the Trust, and trust/fiduciary relationship — to sustain an

accounting claim in light of the inadequacy of other legal remedies. See Sabre Energy Corp. v.

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Gulfport Energy Corp., 2021 WL 2779157, at *4 (S.D. Ohio July 2, 2021); cf. Executone of

Columbus, Inc. v. Inter-Tel, Inc., 2007 WL 1144866, at *4 (S.D. Ohio Apr. 16, 2007) (noting

that legal bases for an accounting claim include inter alia fraud, fiduciary or trust relationship,

necessity, mutual accounts, or circumstances of great complication). Although the Sixth Circuit

has noted that “in light of the broad discovery available to litigants, accounting actions are of

dubious utility,” Digital 2000, Inc. v. Bear Commc’ns, 130 F. App’x 12 at *23 (6th Cir. 2005),

the benefits of discovery are unavailable here, where PNC has rejected Plaintiffs’ discovery

requests for an accounting.

Accordingly, this Court finds that there are genuine issues of material fact as to Plaintiffs’

accounting claim and therefore DENIES Defendant’s Motion for Summary Judgment (ECF No.

93) as to that claim.

IV. CONCLUSION

For the reasons set forth above, this Court GRANTS IN PART and DENIES IN PART

Defendant’s Motion for Summary Judgment (ECF No. 93). Plaintiffs’ declaratory judgment,

undue influence, tortious interference, and breach of contract (Counts I–III, V) are DISMISSED.

IT IS SO ORDERED.

ALGENON L. MARBLEY

CHIEF UNITED STATES DISTRICT JUDGE

DATE: December 27, 2022

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