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Torts — legal malpractice

By: WISCONSIN LAW JOURNAL STAFF//June 19, 2014//

Torts — legal malpractice

By: WISCONSIN LAW JOURNAL STAFF//June 19, 2014//

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Wisconsin Court of Appeals

Civil

Torts — legal malpractice

This is a negligence action filed by Cheryl Schmidt p/k/a Cheryl Sellers-Bruring (Schmidt) against her former attorneys, Brian Tillman and Lee Fehr, the Fehr Law Office, and Minnesota Lawyers Mutual Insurance Company, the attorneys’ malpractice liability insurer (collectively, the “defendants”). The attorneys represented Schmidt in connection with the proposed sale of her salon. Schmidt was convicted in a prior criminal action of multiple crimes after she removed and retained property from the salon that belonged to others, allegedly acting on Tillman’s advice. A jury trial was held in this action on whether the attorneys were negligent in their representation of Schmidt. The jury found Tillman and Fehr negligent, and Schmidt contributorily negligent, and that each party’s negligence was a cause of damages suffered by Schmidt. The jury apportioned negligence among the parties and awarded damages.

The defendants argue on appeal that they are entitled to judgment notwithstanding the verdict (JNOV) because the facts as found by the jury do not permit recovery as a matter of law. In support, the defendants rely on: (1) the holding in Fleming v. Threshermen’s Mutual Insurance Co., 131 Wis. 2d 123, 130, 388 N.W.2d 908 (1986), that a negligent tortfeasor is entitled to indemnification from an intentional joint tortfeasor; and (2) public policy considerations. We reject these arguments. Schmidt argues on cross-appeal that the circuit court erred in denying her motion for judgment on the verdict, arguing that, under the doctrine of respondeat superior, Fehr should be liable for his own negligence as well as the negligence attributed to Tillman because Tillman was Fehr’s employee. We agree. Accordingly, we affirm the appeal, reverse the cross-appeal, and remand for further proceedings consistent with this opinion. Not recommended for publication in the official reports.

2011AP1443 Schmidt v. Fehr et al.

Dist IV, La Crosse County, Bjerke, J., Higginbotham, J.

Attorneys: For Appellant: Steffes, Ryan, Eau Claire; For Respondent: Steans, Phillip M., Menomonie; Biegert, Matthew A., New Richmond

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