Bilharz v. First Interstate Bank of Wisconsin

98 F.3d 985
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 24, 1996
DocketNos. 96-1503, 96-1837
StatusPublished
Cited by7 cases

This text of 98 F.3d 985 (Bilharz v. First Interstate Bank of Wisconsin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bilharz v. First Interstate Bank of Wisconsin, 98 F.3d 985 (7th Cir. 1996).

Opinion

TERENCE T. EVANS, Circuit Judge.

Eagle’s Nest Island is located in a pristine lake on the border between Wisconsin and Michigan. Forty-five of the island’s 60 acres are located in Wisconsin and contain a log [987]*987home and outbuildings. The other 15 acres call Michigan home and remain undeveloped. Given the idyllic setting, the property is worth a pretty penny, somewhere between $400,000 and $580,000. In 1989, the owners of the island, Tedd and Ann Bilharz, defaulted on loans secured by mortgages on Eagle’s Nest, and their lender, Norwest Bank, foreclosed. After the foreclosure, Robert and Diane Baldassari purchased Eagle’s Nest from Norwest and, 13 months later, evicted the Bilharzes. The Bilharzes weren’t exactly eager to leave the nest. Rather, Ann Bilharz sued, alleging, among other things, that the Baldassaris breached an oral promise to hold the island in constructive trust. The district court granted summary judgment for the Baldassaris and imposed sanctions against Bilharz for filing claims without evidentiary support. As we’ll explain below, we affirm the grant of summary judgment but reverse the award of sanctions. First, however, we need to set the factual stage for this appeal.

In 1987, the Bilharzes acquired Eagle’s Nest from Tedd Bilharz’ parents’ estate. They took the island subject to two mortgages. The mortgages, both on the Wisconsin parcel, were held by Tedd Bilharz’ siblings and secured their individual shares of their parents’ estate. In September 1987, in exchange for a $150,000 loan from Norwest, the Bilharzes executed a third mortgage on the Wisconsin parcel. Seven months later, Nor-west loaned the Bilharzes an additional $40,-000, this time using the Michigan parcel as security.

Within a year after executing the additional mortgages, the Bilharzes’ dream of owning their own island had become a nightmare. They struggled to make the mortgage payments and by May 1989 were in default to Norwest. They also learned that Tedd was stricken with cancer. Eventually, Norwest foreclosed, and Eagle’s Nest found itself being hawked on the courthouse steps. Through the foreclosure sales, Norwest wound up buying the Michigan parcel for $47,000 in April 1990 and the Wisconsin parcel for $265,000 in February 1991.

After Norwest bought the Wisconsin parcel, Scott Sehryver, a bank representative, visited Eagle’s Nest and discovered an old underground fuel tank. Schryver’s discovery set off bells and whistles at Norwest, so it dispatched Northern Environmental, an environmental engineering firm, to the scene. The ensuing environmental audit turned up some evidence of contamination, which Northern Environmental estimated would run between $10,000 and $100,000 to clean up. Norwest passed this news along to a number of the island’s potential purchasers, who, with the exception of the Baldassaris, flew away from Eagle’s Nest. Facing the possibility of an expensive cleanup and having already lost its shirt on the Eagle’s Nest mortgages, Norwest wanted to cut its losses. In June 1991, after offering the same deal to the Bilharzes, Norwest sold its interest in the Wisconsin foreclosure action and title to the Michigan parcel to the Baldassaris for the bargain sum of $150,000.

Before the Baldassaris inked the deal with Norwest, they offered to loan the Bilharzes $400,000 to help them keep Eagle’s Nest. Tedd Bilharz, then terminally ill and not certain that the Bilharzes could repay a loan of that size, rejected the offer. According to Ann Bilharz, the Baldassaris then responded with a promise that they never intended to keep. The Baldassaris, Bilharz says, promised that they would reeonvey the island to the Bilharzes for $150,000 as soon as the Bilharzes could come up with the cash or locate another buyer. The Baldassaris deny making the promise but agree that we should assume its existence for summary judgment purposes.

Shortly after the Baldassaris purchased Norwest’s interest in Eagle’s Nest, they sent another environmental engineering firm, Square Bay Associates, to the island for a second opinion on the extent of the environmental contamination. In August 1991, Square Bay reported that the contamination was not as extensive as Northern Environmental previously thought. Approximately 11 months later, the Baldassaris evicted the Bilharzes. After the eviction, the Baldassar-is cleaned up the contaminated soil — it turned out to be a small-time job requiring only a couple of guys with shovels — for approximately $7,000. A few months later, Tedd Bilharz passed away.

[988]*988In January 1995, alter failing to obtain jurisdiction in Michigan, Ann Bilharz filed this diversity case in the United States District Court for the Western District of Wisconsin. She sued Norwest, Sehryver, Northern Environmental, and the Baldassaris. She alleged a civil conspiracy under RICO, common law fraud, and breach of an oral promise to hold the property in constructive trust. The district court granted summary judgment for all defendants on all counts. The court also found that Bilharz’ claims lacked evidentiary support and awarded the Baldassaris $11,261.51 in attorneys fees and costs under Federal Rule of Civil Procedure 11(b)(3). Bilharz appealed, challenging the grant of summary judgment and the award of sanctions. She has since abandoned her appeals against Norwest, Sehryver, and Northern Environmental, leaving only the Baldassaris as respondents. Then, at oral argument, Bilharz agreed to drop her conspiracy and fraud claims against the Baldas-saris and proceed only on her constructive trust theory. The Baldassaris think the appeal is frivolous and request additional sanctions under Federal Rule of Appellate Procedure 38.

Bilharz first challenges the grant of summary judgment in favor of the Baldassaris on her constructive trust claim. She pins her hopes on a constructive trust, because without one, her claim runs smack dab into the statute of frauds. See Wisconsin Statute §§ 706.01, 706.02 (1993) (requiring that all promises to convey land be in writing). The question is, then, can Bilharz show she is entitled to a constructive trust? The district court said no and granted summary judgment for the Baldassaris. We review that decision de novo, Jasper Cabinet Co. v. United Steelworkers of America, 77 F.3d 1025, 1026 (7th Cir.1996) and, like the district court, apply the law of the forum state, Wisconsin, to this diversity action. American Home Assur. Co. v. Stone, 61 F.3d 1321, 1328-29 (7th Cir.1995).

Under Wisconsin law, a constructive trust will be imposed where a party has been unjustly enriched and the enrichment was achieved through wrongful conduct such as fraud, duress, mistake, or an abuse of a confidential relationship. Wilharms v. Wilharms, 93 Wis.2d 671, 678-79, 287 N.W.2d 779, 783 (1980). To show unjust enrichment, Bilharz must prove that she conferred a benefit on the Baldassaris, the Baldassaris knew of the benefit, and it would be inequitable to allow the Baldassaris to retain the benefit. Watts v. Watts, 137 Wis.2d 506, 531, 405 N.W.2d 303, 313 (1987). Bilharz has not shown that she conferred a benefit on the Baldassaris.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Diamond v. Nicholls
N.D. Illinois, 2020
Benitez v. King
298 F. Supp. 3d 530 (W.D. New York, 2018)
Bilharz v. First Interstate Bank Of Wisconsin
98 F.3d 985 (First Circuit, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
98 F.3d 985, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bilharz-v-first-interstate-bank-of-wisconsin-ca7-1996.