In the Matter of the Bette R. Peterson Revocable Trust, Dated August 8, 1996, as Amended,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0256

In the Matter of the Bette R. Peterson Revocable Trust,
Dated August 8, 1996, as Amended,

In the Matter of the Hewitt L. Peterson Revocable Trust,
Dated August 8, 1996, as Amended.

Filed August 26, 2019
Reversed and remanded
Jesson, Judge

Hennepin County District Court
File Nos. 27-TR-CV-15-233, 27-TR-CV-15-234

Rebecca A. Cymek, Severn, Maryland (pro se appellant)

Charles E. Jones, Moss & Barnett, Minneapolis, Minnesota (for r espondent Michael
Murry)

Denise S. Rahne, Robins Kaplan LLP, Minneapolis, Minnesota (for respondent David E.
Peterson)

Casey Marshall, Alan Silver, Bassford & Remele, Minneapolis, Mi nnesota (for
respondents Hewitt Peterson, Jr. & Angela Peterson)

Considered and decided by Smith, Tracy M., Presiding Judge; Sc hellhas, Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant Rebecca Cymek challenges the district court’s grant of summary
judgment in favor of respondents Michael Murry and David Peterson on her claims related

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to their activities as trustees o f her parents’ trusts. Becaus e we conclude Cymek’s
breach-of-fiduciary-duty claim pr esents a genuine issue of mate rial fact for a jury, we
reverse and remand.
FACTS
Hewitt and Bette Peterson (the Pet ersons) had four children, in cluding appellant
Rebecca Cymek and respondent Dav id Peterson. In 1996, they est ablished the Hewitt
L. Peterson Revocable Trust and the Bette R. Peterson Revocable Trust (collectively, the
trusts).1 Pursuant to the terms of the trusts, Hewitt and Bette Peterson each served as the
trustee of their respective trust until Hewitt Peterson’s death on July 23, 2011. Shortly
after, Bette Peterson passed away in August 2011. The Peterson s were survived by their
four children and seven grandchildren.
Under the terms of the trusts, respondent Michael Murry became the trustee for both
trusts upon Hewitt Peterson’s death. 2 T h e P e t e r s o n s r e q u e s t e d t h a t M u r r y , a c e r t i f i e d
public accountant who performed both personal and business work for the Petersons, serve
as trustee after their deaths due to concerns that their childr en would not be able to get
along.
In his capacity as trustee, Murry began distributing trust asse ts. The primary trust
asset is an ownership interest in a company. That company owns a one-third interest in a

1 Although there are two trusts involved in this appeal, the arguments are the same for each
trust.
2 Murry became the trustee for both trusts at the time of Hewitt Peterson’s death because
Bette Peterson’s disability prevented her from serving as trustee of her trust.

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14.4-acre, largely undeveloped property in Maple Grove (the Maple Grove property).3 In
September 2011, Murry entered into a brokerage agreement author izing the Maple Grove
property to be sold for $2 milli on. One month later, in Octobe r 2011, Murry hired a
certified real-estate appraiser to assess the value of the Mapl e Grove property. The
appraiser valued the Maple Grove property at $125,000. In his affidavit, Murry stated he
did not question this valuation because he believed that there was a development
moratorium in place on the property at the time of the appraisal.
Murry served as trustee for bot h trusts for almost one year unt il his formal
resignation on July 6, 2012. Murry’s resignation stemmed from his indictment and guilty
plea to criminal charges related to preparing a false corporate tax return for another client
in an unrelated matter. After the other two successor trustees named in the trust agreements
declined to act as trustee, Murry named David Peterson trustee.
Once David Peterson became truste e, the primary remaining trust a s s e t t o b e
distributed was the shares in the company that held the ownersh ip interest in the Maple
Grove property. And in September 2012, David Peterson extended the brokerage
agreement for the property until the end of 2016, setting the list price at $3.1 million. But
David Peterson relied on the Oc tober 2011 $125,000 valuation of t h e M a p l e G r o v e
property he received from Murry w hen determining the shares to which each beneficiary
was entitled. David Peterson also took into account the fact that Cymek received additional

3 Trust property also included a home in Maryland which was distributed to Cymek, various
jewelry also in Cymek’s possession, and gold coins sold for app roximately $20,000.
Additionally, the Petersons owned 100% of the shares of an addi tional company, but
distribution of those shares was addressed in separate litigation not before us in this appeal.

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property—specifically the home in Maryland—that other beneficia ries did not receive.
Based on the $125,000 valuation of the Maple Grove property and the value of other
property Cymek had already receiv ed, David Peterson concluded t hat Cymek was not
entitled to receive any shares of the company holding the ownership interest in the Maple
Grove property. Accordingly, in February 2013, he distributed the shares among the other
beneficiaries.
Several years later, in May 2015, Cymek filed a petition with t he district court
alleging several claims against Murry and David Peterson, including claims for breach of
fiduciary duty, conversion, and fraud. Cymek’s claims stemmed from her belief that Murry
and David Peterson improperly di stributed trust assets. She as ked the district court to
declare Murry’s and David Peterson’s actions null and void and impose a constructive trust.
In early 2016, Murry moved for summary judgment. Shortly after Murry filed his
motion, Cymek supplemented her expert disclosures with an appraisal she obtained for the
Maple Grove property. In the opinion of her appraiser, the Map le Grove property was
valued at $2.64 million in 2011. The district court granted summary judgment in favor of
Murry on the conversion and fraud claims, determining that no e vidence in the record
demonstrated any fraud or conversion of trust assets. But it a llowed Cymek’s claim for
breach of fiduciary duty and her requests for declaratory relie f and the imposition of a
constructive trust to move forward.4

4 In December 2017, the district court denied David Peterson’s m otion to Accept Final
Accounting, Order Contribution, and Terminate trust, concluding that granting the motion
would be unfairly dispositive, but noting that it would consider future summary judgment
motions if additional discovery revealed that no genuine issues of material fact existed.

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In March 2018, Murry, David Peterson, and Cymek all moved for s ummary
judgment. In support of her motion for summary judgment, Cymek presented the district
court with brokerage agreements for the Maple Grove property, signed originally by Murry
and later extended by David Peterson, agreeing to list the Maple Grove property for around
$2 million in September 2011 and over $3 million in September 2012, despite the $125,000
valuation obtained in October 20 11. After a hearing, the distr ict court granted summary
judgment in favor of Murry and David Peterson. In doing so, the district court concluded
that Cymek did not present any evidence that Murry improperly or fraudulently valued the
Maple Grove property, or that David Peterson improperly relied on the previous valuation
when making distributions of trust property. The district court also noted that in reaching
its conclusion, it did not consider the opinions of Cymek’s exp erts because she failed to
comply with statutory disclosur e requirements. Subsequently, C ymek filed a motion for
amended findings, which the district court denied. Cymek appeals.
D E C I S I O N
Cymek, who is self-represented, argues that the district court improperly granted
summary judgment in favor of Murry and David Peterson. 5 The central issue is whether
there are any material, disputed facts regarding whether Murry and David Peterson
breached their fiduciary duty by relying on the October 2011 appraisal valuing the Maple

5 Cymek also alleges that her for mer attorney committed fraud an d was colluding with
opposing counsel and the court to her detriment during the liti gation. Because these
arguments are not relevant to the question of whether the distr ict court properly granted
summary judgment, we do not address them.

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Grove property at $125,000. Based on the appraisal and Cymek’s receipt of other trust
property, David Peterson denied shares of the ownership interest in the company to Cymek.
We review a district court’s grant of summary judgment de novo, evaluating
whether genuine issues of material fact exist and whether the district court properly applied
the law. Montemayor v. Sebright Prods., Inc. , 898 N.W.2d 623, 628 (Minn. 2017). In
doing so, we view the evidence in the light most favorable to the nonmoving party. STAR
Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002).
A genuine issue of material fact exists if reasonable persons c ould draw different
conclusions from the evidence presented. DLH, Inc. v. Russ , 566 N.W.2d 60, 69
(Minn. 1997). And a material fact is one whose “resolution wil l affect the outcome of a
case.” O’Malley v. Ulland Bros. , 549 N.W.2d 889, 892 (Minn. 1996). But no genuine
issue of material fact exists “when the nonmoving party present s evidence which merely
creates a metaphysical doubt as to a factual issue.” DLH, 566 N.W.2d at 71. Rather, the
nonmoving party must present specific facts to satisfy its burd en and “may not rely upon
mere averments in the pleadings or unsupported allegations.” Bebo v. Delander ,
632 N.W.2d 732, 737 (Minn. App. 2001), review denied (Minn. Oct. 16, 2001).
Here, the district court determined that there was no genuine issue of material fact
regarding Cymek’s claim that Murry and David Peterson each breached their fiduciary duty
as trustee. Specifically, the district court stated it was
not aware of any evidence to support . . . Cymek’s position that
[the October 2011] appraisal was improper. [Cymek] admits
that she disagrees with the valuation . . . but has no opinion as
to the manner in which the appraisal was conducted. [Cymek]

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also admits she has no basis to challenge the qualifications of
[the appraiser].

Accordingly, the district court concluded that Cymek did not pr esent any admissible
evidence that Murry improperly or fraudulently obtained the val uation of trust property
and that no evidence in the record suggested that David Peterson improperly relied on the
valuation obtained by Murry.
In order to prevail on her claim of breach of fiduciary duty, Cymek must prove four
elements: duty, breach, causation, and damages. TCI Bus. Capital, Inc. v. Five Star Am.
Die Casting, LLC , 890 N.W.2d 423, 434 (Minn. App. 2 0 1 7 ) . U n d e r M i n n e s o t a l a w ,
trustees owe trust beneficiaries several fiduciary duties. In re Revocable Tr. of Margolis,
731 N.W.2d 539, 545 (Minn. App. 2007). Those fiduciary duties include the duty of
loyalty, the duty to act pursuant to the terms of the trust, a duty of full disclosure, and a
responsibility to maintain a thorough accounting of their management of trust property. Id.
at 545-46.
Cymek alleges that Murry and Da vid Peterson breached their fidu ciary duty by
intentionally undervaluing the Maple Grove property, which caused her to suffer damages
because she did not receive any shares of the company holding t he ownership interest in
the Maple Grove property due to the incorrect valuation. In su pport of her allegation,
Cymek presented brokerage agreements for the Maple Grove proper ty.
6 One agreement,

6 We do not reach Cymek’s arguments regarding the district court’s exclusion of her expert
witnesses’ opinions because we do not view the appraisal done i n 2016 as material to the
question of whether Murry and David Peterson improperly and unreasonably relied on the
$125,000 valuation of the Maple Grove property.

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dated September 2011 and signed by Murry, authorized the Maple Grove property to be
sold for $2 million. One month later, Murry received the $125, 000 appraisal of the
property, but did not adjust the agreement. A second document, dated September 2012 and
signed by David Peterson, extended the brokerage agreement until the end of 2016, setting
the listing price of the Maple Grove property at $3.1 million.7
These documents create a genuine issue of material fact about w hether it was
reasonable for Murry and David Peterson in 2011 and 2012 to acc ept and rely on the
$125,000 appraisal of the Maple Grove property. Although the d istrict court found that
Cymek conceded that she had no basis to challenge the qualifications of the appraiser and
that she did not present any evidence that the appraisal was ob tained fraudulently, those
concessions do not preclude an issue of material fact as to whether the trustees intentionally
undervalued the Maple Grove property. Our review of the 2011 a nd 2012 brokerage
agreements lead us to conclude that a factual question remains about whether Murry or
David Peterson had a dditional information beyond the appraisal about the value of the
property based on the listing pric e s f o r t h e M a p l e G r o v e p r o p e rty—information which
might lead a jury to conclude that either Murry, David Peterson , or both undervalued the
property in breach of their fiduciary duty.
All parties presented significant evidence to the district cour t. A reasonable jury
evaluating that evidence could decide in either party’s favor. See DLH, 566 N.W.2d at 69

7 We note that an agreement in March 2017 maintained the $3.1 mi llion listing price.
Finally, in January 2018, David Peterson entered into a purchase agreement for the Maple
Grove property in the amount of $2.525 million.

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(stating that if reasonable persons could draw different conclu sions from the evidence
presented, a genuine issue of material fact exists). Because a genuine issue of material fact
exists on the question of whether Murry and David Peterson breached their fiduciary duty
by relying on the $125,000 valuation of the Maple Grove propert y while simultaneously
listing the same property for $2 million, the question is appropriate for jury consideration.8
Reversed and remanded.

8 We do not find Cymek’s argument regarding the appointment of David Peterson as trustee
persuasive, and we agree with the district court’s implied conc lusion that Cymek waived
the argument because it “was not raised until late in the proceeding.”