Breach of Trust Claim

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WI Court of Appeals – District III

Case Name: Daniel Noziska v. Robert Zimmerman

Case No.: 2021AP002076

Officials: Stark, P.J., Hruz and Gill, JJ.

Focus: Breach of Trust Claim

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. 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), 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.” The Noziskas’ breach of trust claim was based on allegations that Zimmerman violated his duties as trustee to: (1) inventory trust assets and account (2) collect trust property (3) control and protect trust property; and (4) act impartially among trust beneficiaries. 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).

Affirmed.

Decided 08/08/23

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