Kulm v. Kulm
Filing
51
DECISION AND ORDER signed by Magistrate Judge Nancy Joseph on 4/6/2022 denying 42 Motion for Partial Summary Judgment. The Clerk's Office will contact the parties regarding scheduling this case for trial. (cc: all counsel)(llc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DEAN DARRELL KULM,
Plaintiff,
v.
Case No. 18-CV-944
NANETTE M. KULM,
Defendant.
DECISION AND ORDER ON PLAINTIFF’S MOTION
FOR PARTIAL SUMMARY JUDGMENT
Dean Darrell Kulm sues his former wife, Nanette M. Kulm, alleging that she
fraudulently signed his name to an “Application/Promissory Note” for a student loan that
she later defaulted on.1 Dean moves for partial summary judgment, requesting a finding that
he did not sign the document at issue in this case. For the reasons explained below, the
plaintiff’s motion is denied.
FACTS
Dean and Nanette Kulm married on June 11, 1988. (Supplemental Affidavit of
Dean Darrell Kulm (“Pl.’s Supp. Aff.”) ¶ 2, Docket # 50; Affidavit of Nanette Kulm in
Opposition to Plaintiff’s Motion for Summary Judgment (“Def.’s Aff.”) ¶ 2, Docket # 47.)
Dean and Nanette divorced in 2007. (Plaintiff’s Proposed Findings of Fact (“PPFOF”) ¶ 2,
Docket # 44; Def.’s Aff. ¶ 12.) The document at the heart of this case is a form entitled
“Application/Promissory Note,” dated December 12, 1998, that purportedly bears the
signatures of both Dean and Nanette. (Declaration of Dean Kulm (“Pl.’s Decl.”) ¶ 5, Ex. B,
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For ease of reference, I will refer to the parties by their first names “Dean” and “Nanette.”
Docket # 45-2.) The parties dispute both the nature of the application and whether Dean in
fact signed it. Dean asserts that Nanette obtained a loan and borrowed funds for her own
education, and then later failed to make the required payments. (Id. ¶ 6.) Dean claims that
he did not sign the document and was completely unaware of this loan until approximately
September 2015, when the loan went into default and the lender notified him that he was
pursuing Dean for collection. (Id. ¶¶ 6–8; Second Am. Compl. ¶¶ 26–27.) Nanette, on the
other hand, asserts that she and Dean jointly applied on December 12, 1998 to consolidate
their individual student loans. (Def.’s Aff. ¶ 4.) She asserts that she did not receive any
money as a result of the application because the application was for a loan consolidation,
not a request for monies. (Id. ¶ 9.) Nanette further contends that Dean filled out the
application himself and she observed Dean sign the document. (Id. ¶¶ 6, 8.)
SUMMARY JUDGMENT STANDARD
Pursuant to Fed. R. Civ. P. 56(a), a party can seek summary judgment upon all or
any part of a claim or defense asserted. The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
“Material facts” are those under the applicable substantive law that “might affect the
outcome of the suit.” See Anderson, 477 U.S. at 248. The mere existence of some factual
dispute does not defeat a summary judgment motion. A dispute over a “material fact” is
“genuine” if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. To survive summary judgment, a party cannot rely on his pleadings
and “must set forth specific facts showing that there is a genuine issue for trial.” Id. “In
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short, ‘summary judgment is appropriate if, on the record as a whole, a rational trier of fact
could not find for the non-moving party.’” Durkin v. Equifax Check Services, Inc., 406 F.3d
410, 414 (7th Cir. 2005) (citing Turner v. J.V.D.B. & Assoc., Inc., 330 F.3d 991, 994 (7th Cir.
2003)). In evaluating a motion for summary judgment, I must draw all inferences in a light
most favorable to the nonmovant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
I must also view the evidence presented through the prism of the substantive
evidentiary burden. Anderson, 477 U.S. at 254. Where, as here, the party moving for
summary judgment also bears the burden of persuasion at trial (i.e., because the movant is
the plaintiff), the movant must establish each and every essential element of his claim. See
McKinney v. Am. River Transp. Co., 954 F. Supp. 2d 799, 803 (S.D. Ill. 2013) (citing Celotex,
477 U.S. at 32); see also Lewis v. Kordus, No. 09-CV-138, 2010 WL 3700020, at *1 (E.D. Wis.
Sept. 14, 2010) (“[W]here the moving party bears the burden of proof at trial, he can prevail
only by proving every element of his case with evidence so compelling that no reasonable
jury could return a verdict for the non-moving party.”). This differs from the usual summary
judgment motion filed by a defendant (who does not bear the ultimate burden of persuasion
at trial), who can prevail just by showing an absence of evidence to support any essential
element of the non-movant’s case. See Modrowski v. Pigatto, 712 F.3d 1166, 1169 (7th Cir.
2013).
ANALYSIS
Dean argues that he presents a very simple question to the Court—did someone,
other than Dean, sign Dean’s name to the Application/Promissory Note? (Pl.’s Reply Br. at
1, Docket # 48.) Dean alleges that Nanette, in fact, signed his name to the
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Application/Promissory Note and sues her for intentional misrepresentation and fraud.
(Second Am. Compl., Claims Two and Three.) Dean asserts, however, that at this juncture,
he does not request a determination that Nanette signed Dean’s name to the Note,
acknowledging that this issue “would appear to be fact bound and not resolvable on
summary judgment.” (Pl.’s Br. at 4, Docket # 43.) Rather, Dean seeks a judicial
determination that he did not sign the document in question and thus is not legally obligated
to repay the Note. (Second Am. Compl., Claim One.)
Dean argues that all one needs to resolve this issue is to look at his purported
signature on the Application/Promissory Note, and compare it to samples of Dean’s
signature provided to the Court as attachments to his affidavit. (Pl.’s Reply Br. at 1.) He
argues that if one makes that comparison, “any reasonable person must come to the
conclusion that the signature of Plaintiff on the Application/Promissory Note is not Plaintiff’s
signature.” (Id.) Dean argues that any assertions by Nanette to the contrary are self-serving
and unreliable. (Id. at 2.)
But what Dean presents in his motion is a quintessential question of fact that cannot
be resolved on summary judgment. Dean contends that he did not sign the document at
issue; Nanette claims that he did. In support of his motion, Dean presents his own affidavit
in which he avers that he “was in no manner or way involved with said
Application/Promissory Note,” “did not fill in any of the blanks on said Application/Promissory
Note,” and “did not sign said Application/Promissory Note.” (Pl.’s Supp. Aff. ¶¶ 6–8.) Dean
avers that the only “genuine signature” on the document is that of his former wife, Nanette.
(Id. ¶ 9.) In opposition to Dean’s motion, Nanette provides her own affidavit, in which she
avers that she and Dean jointly applied to Sallie Mae to consolidate each of their individual
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student loans, that five of the loans listed on the application were Dean’s (as evidenced by
his social security number), that Dean completed the entire application himself except for
Nanette’s signature, and that she witnessed Dean sign the document. (Def.’s Aff. ¶¶ 4–8.)
While Dean argues that Nanette’s statements are self-serving and unreliable, this is a
determination to be made by the finder of fact at trial, not by the Court on summary
judgment. Dean contends that all one needs to determine whether his signature was in fact a
forgery is the naked eye—just look at them, don’t they look different? But the analysis is not
as simple as Dean contends. To begin, Nanette argues that a determination of forgery is
“impossible” without expert testimony. (Def.’s Br. in Opp. at 6, Docket # 46.) This is
inaccurate. The Federal Rules of Evidence permit lay testimony concerning disputed
handwriting samples. Deputy v. Lehman Bros., 345 F.3d 494, 509 n.6 (7th Cir. 2003).
Specifically Rule 901(b)(2) provides that a “nonexpert” may testify that “handwriting is
genuine, based on a familiarity with it that was not acquired for the current litigation.” Id.
While Dean contends that Rule 901(b)(2) would allow him to identify his own signature
and testify as to whether the signature on the pertinent document is in fact his (Pl.’s Reply
Br. at 5), Rule 901(b)(2) would similarly allow Nanette to testify to the contrary. After all,
she avers that she witnessed Dean sign the document (Def.’s Aff. ¶ 6) and given their former
marital relationship, likely has sufficient familiarity with his signature to properly identify it
under Rule 901(b)(2).
Thus, given the evidence before me, I cannot determine whether Dean’s signature is
a forgery on the document in question by simply eyeballing purported examples of his
signature on various documents. Rather, each party must present their evidence at trial.
Only after hearing all of the evidence can the fact finder properly determine whether Dean’s
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signature on the document in question is, in fact, a forgery. In sum, because disputes of
material fact exist as to whether Dean’s signature on the Application/Promissory Note is a
forgery, the motion for partial summary judgment is denied.
ORDER
NOW, THEREFORE, IT IS HEREBY ORDERED that the plaintiff’s motion for
partial summary judgment (Docket # 42) is DENIED. The Clerk’s Office will contact the
parties for further scheduling in this case. Additionally, prior to the scheduling conference,
the parties must confer about available trial dates.
Dated at Milwaukee, Wisconsin this 6th day of April, 2022.
COURT:
BY THE COURT:
RT
___________________________
NANCY JOSEPH
United States Magistrate Judge
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