Daniel Noziska v. Robert Zimmerman

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 8, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP2076 Cir. Ct. No. 2019PR14

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN THE MATTER OF THE JOSEPH L. SIMEK REVOCABLE TRUST:

DANIEL NOZISKA AND WILLIAM NOZISKA,

APPELLANTS,

V.

ROBERT ZIMMERMAN,

RESPONDENT.

APPEAL from a judgment of the circuit court for Taylor County:
ANN KNOX-BAUER, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP2076

¶1 PER CURIAM. Daniel and William Noziska appeal a circuit court
decision granting summary judgment to Robert Zimmerman, the trustee of a trust
of which the Noziskas are beneficiaries. The court concluded that the Noziskas’
breach of trust claim against Zimmerman was untimely filed under WIS. STAT.
§ 701.1005 (2021-22).1 For the reasons that follow, we agree and affirm the
court’s judgment in favor of Zimmerman.

BACKGROUND

¶2 Joseph L. Simek died in February 2013, leaving a will that
bequeathed all of his remaining property to a trust. The Noziskas were both listed
as beneficiaries of the trust, as were three of Simek’s children and Ernest
Olmstead, Simek’s former business partner. The trust stated that the Noziskas
would each receive a 9% interest in Simek’s “interest in Captain Morgan’s
Vacation Beach Club Limited,” located in Belize.

¶3 Shortly after Simek’s death, Zimmerman learned that there was
confusion regarding the beach club entity referred to in the trust. Although there
were a number of entities in Belize with similar names to that in which Simek had
an interest (hereinafter, Captain Morgan’s entities),2 there was no entity by the
name listed in the trust. Nor was there, according to Zimmerman, an entity by that
name “which [could] be specifically and with certainty identified as having been
the entity as to which [the Noziskas were] entitled to receive an interest.”

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
2
It is unclear from the record what the names of the entities were or how many such
entities existed.

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¶4 Zimmerman resolved this issue by giving each of the Noziskas a
19.56% interest in all of the Captain Morgan’s entities after Simek’s children
disclaimed their interests. By March 2013, Zimmerman hired an attorney in
Belize—Magali Young—to assist with the administration of the trust in Belize.
That same year, Zimmerman and Young commenced a probate action in Belize to
effectuate the transfers of the interests in the Captain Morgan’s entities to the
Noziskas.

¶5 In January 2014, Daniel emailed Zimmerman and asked to have the
“inheritance resolved” and requested “basic information necessary to make an
informed decision[,] such as the legal name[s] of the” Captain Morgan’s entities.
Zimmerman emailed Daniel in return and informed him of the 19.56% interest in
the Captain Morgan’s entities that he and William would receive. Zimmerman
also stated that he “sent a number of packets to [Young] to assist with
the … probate and complete the transfer of ownership” and that he “assume[d]
[Young was] in the process of making th[ose] transfers.”

¶6 In May 2016, Young sent the Noziskas the necessary paperwork to
register their interests in the Captain Morgan’s entities.3 According to the
Noziskas, the paperwork was never completed—and the transfer was therefore
never completed—because “the documents provided by Young contained
discrepancies in the names of the entities and improper share allocation.” Daniel
asserted that the Noziskas never received “corrected” copies of the documents.

3
Zimmerman contends that the transfer of documents occurred in 2014. The circuit
court also found this fact to be true, although it was disputed in the documents submitted for
summary judgment. We will assume for the sake of this opinion that the documents were not sent
until May 2016, but we note that this particular factual dispute is not material. See WIS. STAT.
§ 802.08(2).

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¶7 In a letter dated March 15, 2017, Daniel requested from Zimmerman
information related to the trust, including “[a]nnual trust accountings” since
Simek’s death and the “basis and supporting documents for the valuation of all
Captain Morgan’s[ entities’] assets entered in the trust inventory.” Daniel
informed Zimmerman that he and William sought “an immediate remedy of the
absence of reasonable information furnished to [them] about Captain Morgan’s”
entities and that they would “not hesitate to take additional steps to redress th[e]
situation.”

¶8 Zimmerman responded to Daniel in a March 23, 2017 letter.
Zimmerman informed Daniel that he believed Daniel was “directing [his] request
to the wrong person,” and he should instead request the information from
Olmstead. Zimmerman wrote, “I am not sure why you are putting me in the
middle of this when, as you know, I have made numerous attempts to try to get
you the information you have requested.” Zimmerman added:

I am also enclosing [the assignment]. I provided this
document to [Young] once the family [members]
disclaimed their interest[s] to transfer the ownership in the
Belize entities to [Olmstead], you[,] and [William]. I made
this [a]ssignment pursuant to the terms of the [t]rust to
distribute to you as a beneficiary of that [t]rust. This is the
only asset in the [t]rust you are entitled to which was a
percentage ownership in these Belizean entities. I
instructed [Young] to transfer the shares of these
companies to the parties listed in the [a]ssignment. As I
understand it, this would have been done except that you
and [William] will not cooperate to have the shares
properly put into your name. As far as I am concerned,
when I made that [a]ssignment, I performed my duties as a
[t]rustee and distributed to you, [William, and Olmstead]
the assets you were entitled to receive from the [t]rust.
You are not entitled to receive any further assets from the
[t]rust.

….

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I hope this information is helpful to you. As I have
previously suggested to you, I highly recommend that you
take ownership as you were supposed to of the Belizean
entities so that you are then legally considered a
shareholder and can make demands on [Olmstead] for
information you may need. I would provide you additional
information regarding the entities in Belize over and above
what you have been provided if I had it. Frankly, I have
provided to you all of the same financial information I
have, so I cannot provide you anything further. I am also
enclosing a copy of an email to you dated January 15,
2014, wherein I told you I had transferred the ownership to
you as provided in [Simek’s t]rust.

(Emphasis added.) Zimmerman also informed Daniel that his “personal opinion of
the net value of the” Captain Morgan’s entities “has always been close to zero and
may even be negative.”

¶9 From March 2017 to August 2019, Zimmerman and the Noziskas
continued communicating regarding the Captain Morgan’s entities. In
October 2017, the Noziskas’ counsel sent a letter to Young requesting more
information on the Captain Morgan’s entities. Later that month, Zimmerman
contacted the Noziskas’ counsel via email and stated that their previous letter was
forwarded to Zimmerman and that Young resigned as the “agent and
administrator” of the trust because Young believed that Zimmerman had
incorrectly “implied that she had financial information for the Belize companies.”
Zimmerman also gave updated financial information regarding the Captain
Morgan’s entities. In June 2018, Zimmerman retained a new attorney in Belize to
act as representative for Simek’s estate in Belize and to transfer the shares of the
Captain Morgan’s entities to the Noziskas.

¶10 In March 2019, Zimmerman emailed the Noziskas’ counsel and
stated that he had not received any update from the new attorney in Belize, but he
learned that there had been an asset sale of the Captain Morgan’s entities. In June

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No. 2021AP2076

2019, the Noziskas received a copy of the asset sale and learned that the sale had
taken place in February 2017 and that the Captain Morgan’s entities were sold for
$2.5 million. The asset sale documents included three Captain Morgan’s entities,
but, according to the Noziskas, the documents did not include the name of an
entity that Young and Zimmerman “previously represented to [them] was part of
their interest bequeathed to them in the [t]rust.”

¶11 In August 2019, the Noziskas raised concerns with Zimmerman
regarding the asset sale. That same month, Zimmerman emailed the Noziskas and
again stated that his “duty as trustee was to transfer ownership in ‘Captain
Morgan’s Vacation Beach Club’ which [he] attempted to do many years ago and
the Noziska’s [sic] refused to cooperate or take ownership.” Zimmerman also
stated that he did not “see [his] duty as doing all the investigation and gathering
miscellaneous assets or even trying to get financial information for the Noziskas.”

¶12 In December 2019, the Noziskas filed with the circuit court a
“petition for determination of breach of fiduciary duty and breach of trust and
appointment of additional trustee.” They asked the court to find that Zimmerman
“committed material breaches of trust” under WIS. STAT. § 701.1001(1).
Zimmerman filed a motion for summary judgment and dismissal of the petition on
the grounds that the petition was untimely filed pursuant to WIS. STAT.
§ 701.1005. The court granted Zimmerman’s motion, finding that his March 2017
letter was a “report” under § 701.1005 and, therefore, the Noziskas’ breach of trust
claim was untimely filed. The court dismissed the Noziskas’ petition.

¶13 The Noziskas now appeal. Additional facts will be provided below
as necessary.

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DISCUSSION

¶14 We review a circuit court’s grant of summary judgment de novo,
using the same methodology as the circuit court. Wisconsin State J. v. Blazel,
2023 WI App 18, ¶16, 407 Wis. 2d 472, 991 N.W.2d 450. Summary judgment is
appropriate “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, … show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as
a matter of law.” WIS. STAT. § 802.08(2). Additionally, this case requires us to
interpret a statute and apply it to the facts of the case. “Issues of statutory
interpretation and application present questions of law.” James v. Heinrich, 2021
WI 58, ¶15, 397 Wis. 2d 517, 960 N.W.2d 350.

¶15 A beneficiary’s claim against a trustee for breach of trust must be
brought within one year of the date the beneficiary “was sent a report that
adequately disclosed the existence of a potential claim for breach of trust.” WIS.
STAT. § 701.1005(1). “A report adequately discloses the existence of a potential
claim for breach of trust if it provides sufficient information so that the beneficiary
or representative knows of the potential claim or should have inquired into its
existence.” Sec. 701.1005(2). A breach of trust occurs when a trustee violates “a
duty the trustee owes to a beneficiary.” WIS. STAT. § 701.1001(1). The duties a

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No. 2021AP2076

trustee owes to a trust’s beneficiaries are listed in WIS. STAT.
§§ 701.0801-701.0813.4

¶16 Here, the Noziskas’ breach of trust claim was based on allegations
that Zimmerman violated his duties as trustee to: (1) inventory trust assets and
account pursuant to WIS. STAT. § 701.0810; (2) collect trust property pursuant to
WIS. STAT. § 701.0812; (3) control and protect trust property pursuant to WIS.
STAT. § 701.0809; and (4) act impartially among trust beneficiaries pursuant to
WIS. STAT. § 701.0803.

¶17 We conclude that Zimmerman’s March 2017 letter constituted a
report as defined under WIS. STAT. § 701.1005. That is, Zimmerman’s
March 2017 letter provided sufficient information for the Noziskas to know of
potential claims under WIS. STAT. §§ 701.0803, 701.0809, 701.0810, and
701.0812, or, at the very least, provided sufficient information to alert them that
they should have inquired further into the existence of such claims. In the letter,
Zimmerman stated that he was not going to perform trustee duties other than what
he had already completed, which was making an “[a]ssignment Separate from
Certificate” that he provided to the Belize attorney and instructing her “to transfer
the shares of these companies to the parties listed in the [a]ssignment.” According
to his letter, Zimmerman believed that “when [he] made that [a]ssignment, [he]

4
Evidence in the record suggests that the trust at issue in this case was terminated in
December 2013. Therefore, there is some question as to whether the Noziskas could each meet
the definition of a “beneficiary” and, thus, whether Zimmerman’s March 2017 letter could
constitute a “report.” See WIS. STAT. § 701.0103 (beneficiary means a person who has “a present
or future beneficial interest in a trust”). Because the Noziskas do not raise this argument on
appeal, we will assume without deciding that they each met the definition of a beneficiary in
March 2017.

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No. 2021AP2076

performed [his] duties as a [t]rustee and distributed to [Daniel], [William], and
[Olmstead] the assets [they] were entitled to receive from the [t]rust.”

¶18 As the circuit court stated, Zimmerman’s March 2017 letter to the
Noziskas “was responding to [the Noziskas’] prior correspondence in which they
expected [Zimmerman] to distribute their interests under the trust and that they
would take further action to redress the situation” if necessary. We agree with the
court that Zimmerman’s letter

clearly stated [his] position [as trustee] … that he did not
intend to assist the beneficiaries further.… If it was not
clear before this time, the [Noziskas] should have been on
notice that Zimmerman was not going to take any more
action on their behalf after receiving that letter. Thus, their
claim for breach of trust would have been ripe at that time.

As such, Zimmerman’s letter—whether correctly or incorrectly identifying his
duties as trustee—constituted a “report” as defined in WIS. STAT. § 701.1005(2).5

¶19 The Noziskas argue that Zimmerman never stated that he would not
assist them further and, therefore, the March 2017 letter could not have been a
report. We disagree. Although Zimmerman did state in the letter to call him if he

5
On appeal, the Noziskas argue for the first time that Zimmerman’s March 2017 letter
could not be a “report” because the letter was “sent to only one of the two brothers.” Zimmerman
contends that this argument was “waived” because it was not presented to the circuit court. The
Noziskas do not respond to Zimmerman’s waiver argument. Although the correct term is
“forfeiture,” see State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612 (explaining
that waiver and forfeiture are two distinct legal concepts), we agree that the Noziskas cannot now
raise this argument, having failed to raise it before the circuit court. See Thompson v. Ouellette,
2023 WI App 7, ¶13, 406 Wis. 2d 99, 986 N.W.2d 338.

Even so, it appears that the March 2017 letter was sufficiently sent to both brothers
because the letter was in response to the March 15, 2017 letter from Daniel that used language
indicating that the letter was from Daniel and William—that is, that Daniel represented both
brothers’ interests. See WIS. STAT. § 701.1005(1).

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No. 2021AP2076

could “provide further assistance,” Zimmerman also expressly stated in the letter
that he believed he completed his duties as trustee and explained why he believed
that to be the case. Furthermore, Zimmerman’s communications with the
Noziskas after the March 2017 letter were in response to the Noziskas’ continued
requests for information. Zimmerman made it clear that he did not believe he was
obligated as trustee to continue to help the Noziskas. In fact, in his October 2017
email, he stated:

While I am trying to help to get this resolved[,] I don’t
think Mr. Simek’s estate/trust has an obligation to a
potential beneficiary to get them financial information so
they can make a decision whether to take a bequest or not.
Seems like they should either take the bequest and then
request financial information or decline the bequest
entirely.

¶20 According to the Noziskas, the March 2017 letter did not disclose to
them that Zimmerman “might allow the assets of [the entities] to be sold … when
[he] was representing almost the precise opposite.”6 They contend that their
breach of trust claim was based on Zimmerman breaching “his duties by not
completing the transfer of shares before the other resort share owners sold off all
the resort’s value.” Stated differently, according to the Noziskas, their petition
alleged that Zimmerman “intentionally or negligently allowed for the Captain
Morgan’s entities in which the Noziskas were bequeathed an interest by the [t]rust
to liquidate their assets and [Zimmerman] refused to take any action to investigate
the sale or protect [their] interest in the proceeds.” According to the Noziskas, in

6
The parties also argue on appeal as to whether the Noziskas’ request to Zimmerman in
2019 to toll the statute of limitations for further investigation constituted evidence that the
Noziskas had knowledge of a breach of trust claim at that time. We need not address this issue,
as we decide the appeal on narrower grounds. See Patrick Fur Farm, Inc. v. United Vaccines,
Inc., 2005 WI App 190, ¶8 n.1, 286 Wis. 2d 774, 703 N.W.2d 707.

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order for the March 2017 letter to have constituted a report, it would have had to
disclose that “the assets of the [Noziskas’] interests ha[d] been sold and … state
that those assets had value far above [Zimmerman’s] assurances.”7

¶21 The Noziskas raised this theory in the circuit court, but the court
adopted Zimmerman’s argument that the asset sale “would not have affected [the
Noziskas’] knowledge of any alleged breach of trust. It would have only increased
the amount of damages that the [Noziskas] could claim. The idea that the assets
were sold does not change the initial claim that [Zimmerman] failed to properly
distribute the assets ….”

¶22 We again agree with the circuit court. The disclosure of the asset
sale in 2019 did not disclose a potential separate cause of action for breach of trust
different from that disclosed in March 2017.8 Although the asset sale may have
disclosed to the Noziskas the fact that the Captain Morgan’s entities were actually

7
In support of their argument on appeal that Zimmerman’s March 2017 letter did not
constitute a report, the Noziskas rely on Mueller v. Krohn, No. 2018AP25, unpublished slip op.
(WI App July 17, 2019). Mueller is an unpublished per curiam decision. It therefore cannot be
cited even for persuasive value. See WIS. STAT. RULE 809.23(3)(b).

The Noziskas, like the circuit court, also rely on Meyers v. First Tennessee Bank, N.A.,
503 S.W.3d 365 (Tenn. Ct. App. 2016). Although Meyers analyzed a similar statutory provision
to the one at issue here, we do not find Meyers persuasive, given that it is a case from outside our
jurisdiction and that the facts were substantially different from those presented here. See id. at
384 (trustee’s letter to beneficiaries gave “point-by-point assurances” that no breach of trust had
occurred).
8
The Noziskas argue that WIS. STAT. § 701.1005 “does not state that the disclosure of
one breach of trust commences the limitation period on any breach of trust.” Because we
conclude that the 2019 disclosure of the asset sale was not an independent claim from the claim
disclosed in March 2017, we need not answer the question of whether the statute of limitations
under § 701.1005 begins to run only once a specific breach of trust claim identified in a petition
(as opposed to any claim for breach of trust) is disclosed. See Patrick Fur Farm, 286 Wis. 2d
774, ¶8 n.1.

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worth more than Zimmerman had estimated, the Noziskas’ breach of trust claim
was based on the allegation that Zimmerman did not take sufficient action to
protect the Noziskas’ interests. Again, it was Zimmerman’s clearly stated position
in the March 2017 letter that he had performed all of his duties as trustee. He was
not informing the Noziskas that the interests in the Captain Morgan’s entities
would not be sold. In fact, he “highly recommend[ed]” to the Noziskas that they
take ownership of the interests so that they would be considered shareholders and
could demand information from Olmstead.

¶23 Similarly, the fact that the asset sale disclosed “two new entities” not
previously disclosed to the Noziskas does not alter our conclusion. The Noziskas
were previously made aware that the trust bequeathed to them interests in an entity
that likely did not exist. To resolve this issue, Zimmerman gave the Noziskas
interests in other entities. As the Noziskas claim, they did not sign the transfer
documents in May 2016 because there were discrepancies with the names of the
entities and improper share allocations. Therefore, the Noziskas—in March
2017—believed that there were issues with the Captain Morgan’s entities’ names
and knew that Zimmerman believed he had performed his duties as trustee. These
facts did not change once the asset sale was disclosed in 2019. Accordingly, the
March 2017 letter “adequately disclosed the existence of a potential claim for
breach of trust”—that is, that Zimmerman was not going to take any further action
as trustee. See WIS. STAT. § 701.1005(1).

¶24 Lastly, the Noziskas contend that the circuit court erred in granting
summary judgment because competing inferences can be drawn from the
March 2017 letter and because “a genuine issue of material fact exists as to
whether the Noziskas received a report.” In support of these arguments, the
Noziskas essentially rehash their arguments discussed above and add that

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inferences from the record must be viewed in their favor as the nonmoving party.
For example, they argue that the March 2017 letter could be seen as an offer by
Zimmerman to continue working as trustee for their benefit. For the reasons
discussed previously, we conclude there is only one reasonable inference from the
March 2017 letter—that Zimmerman gave notice to the Noziskas that he believed
he had completed his duties as trustee. Consequently, we agree with the circuit
court that the March 2017 letter constituted a report as a matter of law.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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