Mark Halbman v. Mitchell J. Barrock , 378 Wis. 2d 17 ( 2017 )

2017 WI 91
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP1904
COMPLETE TITLE: Mark Halbman,
Plaintiff-Appellant-Petitioner,
v.
Mitchell J. Barrock D/B/A Barrock & Barrock,
Defendant-Respondent.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 372 Wis. 2d 458, 888 N.W.2d 247
(2016 – Unpublished)
OPINION FILED: October 12, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 12, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Dennis P. Moroney
JUSTICES:
CONCURRED: ABRAHAMSON, J. concurs, joined by A.W. BRADLEY,
J.
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-appellant-petitioner, there were briefs
filed by Robert A. Levine, Jonathan J. Cattey, and Law Offices
of Robert A. Levine, Milwaukee. There was an oral argument by
Robert A. Levine.
For the defendant-respondent, there was a brief filed by
Mitchell Barrock and Barrock & Barrock, Brookfield. There was an
oral argument by Mitchell Barrock.
2017 WI 91
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP1904
(L.C. No. 2011CV4993)
STATE OF WISCONSIN : IN SUPREME COURT
Mark Halbman,
Plaintiff-Appellant-Petitioner,
FILED
v.
OCT 12, 2017
Mitchell J. Barrock D/B/A Barrock & Barrock,
Diane M. Fremgen
Defendant-Respondent. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Dismissed as
improvidently granted.
¶1 PER CURIAM. Mark Halbman petitioned for review of the
decision of the court of appeals, Halbman v. Barrock,
No. 2015AP1904, unpublished slip op. (Wis. Ct. App. Oct. 12,
2016), affirming the circuit court's order dismissing Halbman's
legal malpractice cause of action against Attorney Mitchell J.
Barrock for failure to satisfy his prima facie burden of proof
as to damages. After reviewing the record and the briefs of
both parties, and after hearing oral arguments, we conclude that
this matter should be dismissed as improvidently granted.
No. 2015AP1904
¶2 By the Court.—The review of the decision of the court
of appeals is dismissed as improvidently granted.
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No. 2015AP1904.ssa
¶3 SHIRLEY S. ABRAHAMSON, J. (concurring). I agree
that review was improvidently granted and should be dismissed.
¶4 I do not join the per curiam opinion. I write
separately because I believe the court should explain its
dismissal to the litigants and to the public.
¶5 The parties have, at this court's request, expended
significant time, effort, and money in submitting briefs and
participating in oral argument in this court on the assumption
that the case would be heard and decided on the merits. The
parties and the public, in my opinion, are owed an explanation
of the court's dismissal at this stage of the appellate
proceedings without a decision on the merits.
¶6 In recent years this court has often offered an
explanation of a dismissal of a matter as improvidently granted;
this practice has not been entirely consistent.1 The United
States Supreme Court also has not been consistent in explaining
its reasons for dismissing a writ of certiorari as improvidently
granted.2
1
For a published explanation by this court of its dismissal
of a matter as improvidently granted, see, for example, Nedvidek
v. Kuipers, 2009 WI 44, 317 Wis. 2d 340, 766 N.W.2d 205; State
v. Welda, 2009 WI 35, 317 Wis. 2d 87, 765 N.W.2d 555; State v.
Gajewski, 2009 WI 22, 316 Wis. 2d 1, 762 N.W.2d 104; State v.
Townsend, 2007 WI 31, 299 Wis. 2d 672, 728 N.W.2d 342.
2
For an explanation of the practice of the United States
Supreme Court in dismissal of a writ of certiorari as
improvidently granted, including a list of reasons given in
various cases for dismissing previously granted petitions, see
Stephan M. Shapiro et al., Supreme Court Practice § 5.15 at 358-
363, 368, 511 (10th ed. 2013).
(continued)
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No. 2015AP1904.ssa
¶7 I shall explain the background of the case and my
reasons for concurring in the dismissal as improvidently
granted.
¶8 Mark Halbman's petition for review (which at least
three members of the court voted to grant) relates to Halbman's
claim of legal malpractice against his former attorney, Mitchell
J. Barrock, and presented the following two issues for this
court's review:
1. Whether the court of appeals erred in affirming the
circuit court's grant of the defendant's Motion to
Dismiss on the basis that the plaintiff had failed
to establish a prima facie case as to damages.
2. Whether the circuit court erred in ruling that the
value of the plaintiff's underlying case was
conclusively established at the second trial and
therefore, precluding the plaintiff from introducing
evidence of the first jury verdict of $182,250.00.
¶9 Attorney Barrock responded to the petition for review
by letter as follows:
[T]he only issues of malpractice are those caused by
attorney Levine [representing Halbman] in his
negligently failing to subpoena necessary witnesses to
prove his case in chief . . . . [T]he Court of Appeals
properly denied [Halbman's] appeal and Motion for
Reconsideration and there are no new issues for the
Supreme Court to review.
¶10 After reviewing the record and briefs of both parties,
having heard oral argument, and having participated in
For an explanation by the United States Supreme Court in
dismissal of a writ of certiorari as improvidently granted, see,
for example, Adarand Constructors, Inc. v. Mineta, 534 U.S. 103
(2001); Izumi v. U.S. Phillips Corp., 510 U.S. 27 (1993); New
York v. Uplinger, 467 U.S. 246 (1984).
2
No. 2015AP1904.ssa
discussion with members of the court, I conclude that this
matter should be dismissed as improvidently granted.
¶11 The basic issue for this court is whether Halbman
failed to present the requisite evidence to support a damage
award in his favor. The court of appeals examined the record
and concluded that Halbman, the plaintiff, failed to carry his
burden of proving damages and that the circuit court did not err
in dismissing the case at the close of Halbman's case-in-chief.
¶12 The review should be dismissed as improvidently
granted because the issues for which we took the case do not
present any real or significant questions of federal or state
law or lead to developing, clarifying, or harmonizing the law.
Cf. Wis. Stat. § 809.62(1r) (Criteria for granting review).
Further review by this court and publication of an opinion by
this court would not serve any purpose.
¶13 For the reasons set forth I write separately,
concurring in the dismissal.
¶14 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
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No. 2015AP1904.ssa
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