Barbara Simonson v. Thomas M. Olejniczak

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 11, 2025
Decided October 10, 2025
Before
F RANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON , Circuit Judge
NANCY L. M ALDONADO, Circuit Judge
No. 25-1417
BARBARA S IMONSON ,
Plaintiff-Appellant,
v.
THOMAS M. O LEJNICZAK, et al.,
Defendants-Appellees.
Appeal from the United States
District Court for the Eastern
District of Wisconsin.
No. 23-C-526
William C. Griesbach,
Judge.
O R D E R
John Hohler died in 2013. The assets in his estate and living trust were to be dis-
tributed to three sub-trusts: one for each of his daughters (Barbara Simonson and Mary
Vaira) and one for his only grandchild. Simonson was named as trustee and personal
representative of the estate.
In June 2014 Simonson retained Thomas Olejniczak and his law firm (Conway,
Olejniczak & Jerry, S.C.) to represent her, the estate, and the trusts. Olejniczak and the
firm did so until August 2015, when Simonson was about $80,000 behind in paying for
the firm’s services. Simonson disputed some of the bills but never provided details of
her objections, and after repeatedly demanding payment without much success the firm
decided that it would no longer handle her affairs on credit.

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No. 25-1417 Page 2
The retention contract authorized the law firm to withdraw if Simonson failed to
pay fees on time. At the end of July 2015 Olejniczak wrote to Simonson: “[W]e believe
our representation is concluded.” Simonson disagreed with this stance, which led the
law firm to ask the state’s probate court for permission to withdraw. The motion to
withdraw, coupled with the email the previous month, provided Simonson with the no-
tice required by the retention contract. The court granted the law firm’s motion on Au-
gust 26, 2015, and it did nothing further on Simonson’s behalf.
Early in August 2015 Simonson or her counsel should have filed papers to close
the estate. Olejniczak and his firm did not file those papers. On August 31 Simonson
sought an extension of time. The court granted that request, giving her until October 30
to file the necessary papers. In September she filed a “Personal Representative’s State-
ment to Close Estate”, which the probate court deemed insufficient. By letter of Septem-
ber 18 the court identified several additional documents that it needed and set a new
closing date of October 5. When Simonson neither tendered the documents nor re-
quested extra time, Vaira filed a motion to hold her in contempt. The court set a hearing
for November 9. Simonson sent an email to Vaira’s attorney stating that she was not
available on November 9 and that someone would need to ask the court for a different
date, but neither she nor anyone else did that. When Simonson did not appear, the pro-
bate court removed her as trustee and personal representative, and the court later im-
posed surcharges that reduced the assets distributed to Simonson’s sub-trust. Simon-
son’s appeals within the state system were unsuccessful.
In this suit under the diversity jurisdiction, Simonson accuses Olejniczak and his
firm of breaching the retention contract. She seeks to collect damages at least equal to
the amount her sub-trust lost because of the probate court’s sanction. After the district
court granted summary judgment for the defendants, 2024 U.S. Dist. LEXIS 148456 (E.D.
Wis. Aug. 20, 2024), Simonson appealed.
Wisconsin requires contracting parties to keep their promises. That’s the princi-
ple underlying Simonson’s claim: the law firm promised to represent her but failed to
close the estate. The need to keep promises likewise is the principle underlying the de-
fense: Simonson promised to pay but did not, and she agreed that nonpayment would
justify withdrawal. Once the arrearages were enough to be a material breach, defend-
ants maintain, they were entitled to lay down their pens and unplug their word proces-
sors. Although Simonson insists that she would have paid eventually (the estate had
enough assets), defendants took her foot-dragging as a sign that they were in for a fight
and elected to cut their losses. The contract, after all, required monthly payment; the law
firm did not agree to work indefinitely on long-term credit.

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No. 25-1417 Page 3
Simonson proceeds as if a federal judge (and perhaps a federal jury) should de-
cide whether nonpayment justified the law firm’s withdrawal. But that subject has been
decided by the state’s probate court, which gave an affirmative answer. Principles of is-
sue preclusion do not allow Simonson to relitigate the propriety of withdrawal. The
state judge granted leave to withdraw “based on the motion”—and nonpayment was
the only reason given in the motion. The propriety of withdrawal for nonpayment
therefore was litigated and resolved in state court. (Defendants suggest that there is a
jurisdictional problem under the Rooker-Feldman doctrine, but there is not. Simonson
wants damages for events that preceded the state court’s decision, so preclusion rather
than the Rooker-Feldman doctrine supplies the appropriate analysis. See Gilbank v. Wood
County Department of Human Services, 111 F.4th 754 (7th Cir. 2024) (en banc).)
Simonson could have appealed the probate judge’s order within Wisconsin’s ju-
dicial system but didn’t. She asserts that she did not receive notice of the probate
judge’s decision, but she concedes receiving a copy of defendants’ motion to withdraw
and could have inquired to see what the state judge had done. She also could have
sought more time to respond to the law firm’s motion or appeal the judge’s decision,
but she did not do either of those things. By the end of August Simonson had begun to
file papers on her own behalf; she evidently knew that she was unrepresented.
To the extent that there is room for an independent federal decision, we agree
with the district court that a reasonable jury could not find that Simonson kept her part
of the bargain. Her material breach allowed the law firm to withdraw.
Still, she observes, the time to close the estate was early August 2015—after de-
fendants said that they deemed the representation concluded but before the state judge
allowed them to withdraw. If the defendants had done the job in early August, Simon-
son asserts, she would not have been hit with a surcharge.
That may be so, but she had an obligation to mitigate damages. Kuhlman, Inc. v.
G. Heileman Brewing Co., 83 Wis. 2d 749, 752 (1978). The court granted her more time to
close the estate, and when her filing in September proved to be inadequate the court
told her what more was needed. She did not hire a new lawyer yet chose not to comply
with the court’s instructions (saying in an affidavit in the federal litigation that she was
sure that she had done enough). Then she did not appear at the hearing set for Novem-
ber 9. She asserts in this suit that she was unavailable and anyway thought the date ten-
tative, but the right time to make such assertions was before the scheduled date, and the
right place was state rather than federal court.
A FFIRMED

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M ALDONADO, Circuit Judge, concurring in the judgment. I agree with the majority
that Simonson failed to mitigate her damages after the law firm’s withdrawal, and that
her failure to do so forecloses her breach of contract claims. But I disagree with the
majority’s determination that there is no genuine dispute of material fact that Simonson
materially breached the Legal Services Agreement, excusing the law firm from its
obligation to close the estate on time. I see the facts presented by the parties somewhat
differently, even though I reach the same result.
To start, the record contains evidence from which a reasonable jury could find
that Simonson’s nonpayment was not material and did not “destroy the essential object
of the [Agreement].” See Ranes v. Am. Fam. Mut. Ins. Co., 219 Wis. 2d 49, 57 (1998) (citing
Appleton State Bank v. Lee, 33 Wis. 2d 690, 692–93 (1967)). As trustee, Simonson was
obligated under Wisconsin law to “incur only costs that are reasonable” “[i]n
administering [the] trust.” Wis. Stat. § 701.0805. Indeed, the probate court stated in its
June 5, 2015 order, when the firm was still counsel of record, that Simonson “shall be
given the opportunity to review [attorney’s] fees consistent with Wis. Stat. §§ 701.1004
and 701.0805 and the terms of the Trust.” And the firm knew that it would ultimately be
paid, with 5% interest, from the trust, which indisputably had ample funds to cover
attorney’s fees. Wis. Stat. § 701.1004. Simonson also paid the first six invoices (which
totaled more than $60,000) on time and in full, and she made an additional $27,000
worth of good faith, partial progress payments after the fee dispute began, including a
$12,000 payment on July 30, 2015, less than a month before the firm’s withdrawal on
August 26, 2015. Lastly, Simonson questioned whether the invoices had charged
excessive fees for inaccurate work product, and when Simonson made these concerns
known to the firm, it took them seriously enough to offer Simonson a series of
substantial discounts. Thus, while Simonson may not have been a dream client, in my
view, she has introduced sufficient evidence to create a triable issue as to whether her
imperfect payments were a material breach of the Agreement. See Ash Park, LLC v.
Alexander & Bishop, Ltd., 317 Wis. 2d 772, 785 (Wis. Ct. App. 2009), aff'd, 324 Wis. 2d 703,
783 (2010) (“Whether a breach is material is, except in clear cases, a question for the
jury.”).
Further, even if Simonson’s breach was material, evidence in the record suggests
that the firm waived its claim of materiality by sending Simonson mixed messages
about its willingness to perform legal work on her behalf and by failing to enforce its
rights under the Agreement. Mgmt. Comput. Servs., Inc. v. Hawkins, Ash, Baptie & Co., 206
Wis. 2d 158, 184 (1996) (“Moreover, even where such a material breach has occurred, the

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non-breaching party may waive the claim of materiality through its actions”);
Entzminger v. Ford Motor Co., 47 Wis. 2d 751, 754–55 (1970) (a party’s delay before it
refuses to perform under the contract waives the materiality of the other party’s breach).
On April 6, 2015, after several months of Simonson’s non-payment, Steve Krueger, an
associate at the law firm, threatened to stop working and send the fee dispute to
arbitration. But in spite of his threats, Krueger made filings in the probate court on April
7, April 27, April 29, June 1, and June 8, 2015, and he appeared at a hearing before the
probate court on May 20, 2015. Then, on June 15, 2015, Krueger emailed Simonson a list
of to-dos stretching out through August 2015. And on July 21, 2015, Krueger emailed
Simonson requesting “payment of our outstanding legal fees as soon as possible,” but
also offering to “assist” Simonson “when and where requested.” Even though
Olejniczak told Simonson later that day: “we believe our representation is concluded,”
and threatened to submit the fee dispute to arbitration, Krueger emailed Simonson the
following day, acknowledging Olejniczak’s ultimatum, but stating, “[i]f there are
additional issues in which you’d like our assistance, please let me know.” A reasonable
jury could find that the law firm waived any claim as to the materiality of Simonson’s
breach by accepting partial payments, continuing to perform some work for Simonson,
and failing to promptly move to withdraw as counsel of record.
On August 3, 2015, the deadline to close the estate—which the probate court had
set at least a year earlier—passed, rendering the estate delinquent. On August 5, 2015,
rather than endeavoring to close the estate, as he and Simonson had purportedly
repeatedly discussed since the outset of the attorney-client relationship, Olejniczak
instead sent Simonson a letter offering to “settle this matter for $65,000”—a $15,000
discount from Simonson’s $80,000 outstanding balance—and again threatened
arbitration. Simonson did not accept the discounted fee offer, and again, the firm did
not file for arbitration or promptly move to withdraw.
It was not until August 24, 2015, after Simonson complained to Olejniczak that
she had learned of the firm’s failure to close the estate, that the firm gave any indication
that it would be moving to withdraw from representation. For nearly five months after
Krueger’s April 6, 2015 warning email, the firm continued to represent Simonson—
making filings, appearing in court, handling trust administration, and speaking with
Vaira’s counsel on Simonson’s behalf—while accepting partial payments on the
outstanding invoices. Importantly, throughout this time, the firm retained its
appearance on file with the probate court, clouding the boundaries of the attorney-client

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relationship, even as it alleged that its representation was over. Thus, even if
Simonson’s delayed, partial payments were a material breach of the Agreement, there
are triable issues of fact as to whether the firm waived the claim of materiality “by
continuing to live with the contract as if it existed.” Mgmt. Comput. Servs., 206 Wis. 2d at
184 n.25.
The majority sees the record as suggesting, indisputably, that the firm withdrew
because Simonson did not pay her bills and was not likely to do so any time soon. But
as I see it, the facts permit an alternative narrative: that the firm, despite having an
appearance on file during and after the August 3, 2015 estate closure deadline, only
sought to withdraw its representation after they blew that long-set deadline and
Simonson complained that the estate had not been closed. Because the purpose of
summary judgment is “not to sift through the evidence, pondering the nuances and
inconsistencies, and decide whom to believe,” Waldridge v. Am. Hoechst Corp., 24 F.3d
918, 920 (7th Cir. 1994), I part ways with the conclusion that there is no genuine dispute
of material fact that Simonson breached the Agreement. But for Simonson’s complete
failure to mitigate damages after the firm’s withdrawal, I would have returned this
dispute to the district court for further factfinding.

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