Court declines to weigh in on case involving legal malpractice

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The Wisconsin Supreme Court decided on Thursday not to weigh in on an appeal of a dismissal of a legal-malpractice case filed against a Brookfield lawyer by the owner of a landscaping company whom he had represented in a personal-injury case.

Mark Halbman, a Menomonee Falls man who owns Halbman Landscape Supply, had hired Mitchell Barrock of Barrock & Barrock in 2000 to represent him in a personal-injury lawsuit stemming from injuries from a vehicle crash in Minocqua.

In 2004, a jury returned a verdict of more than $182,000 in favor of Halbman. However, after post-verdict motions, Milwaukee County Circuit Court Judge Francis Wasielewski declared a mistrial in 2005 and ordered a new trial, finding that Barrock had made improper comments in his closing arguments. The judge found the comments might have influenced the jury verdict. Barrock, for instance, was alleged to have made disparaging remarks about insurance companies and referred to an exhibit that had never been admitted into evidence at trial.

Halbman appealed the court’s declaration, but the state Court of Appeals later affirmed it. In the second trial, held in 2006, the jury returned a $36,000 verdict in favor of Halbman. The insurer for the defendant, Farmers Insurance Group, issued a check to Barrock’s firm for $29,653. But Halban received nothing because he still owed costs and expenses from the two trials.

Halbman sued Barrock for legal malpractice in 2011 because of the improper comments Barrock had made in closing arguments in the first trial.

At trial, Halbman presented evidence including an insurer’s check and his retainer agreement with Barrock. The agreement provided that Barrock’s fee would be equal to 33 and one-third percent of the amount recovered, plus costs and expenses incurred, regardless of the outcome.

After Halbman had rested his case, Barrock moved for dismissal, arguing Halbman had not presented prima facie evidence of damages. Milwaukee County Circuit Court Judge Dennis Moroney agreed, noting that Halbman had not offered up enough evidence for a reasonable jury to make a calculation of damages.

“I’m not saying he didn’t cause damage, he probably did,” said Moroney according to a transcript of the oral ruling. “I just can’t determine how much. But that’s not my job, that’s your job.”

Halbman appealed, contending that there was credible evidence to support his claim and that the court had not viewed the evidence in the light most favorable to Halbman. He argued that he was owed $19,768.76, which was the total of the verdict minus the 33 and one-third percent fee Barrock was owed according to the retainer agreement.

However, a three-judge panel of the District One Court of Appeals disagreed and affirmed Moroney in October 2016. The appeals court found that Halbman had failed to cite evidence from the trial showing what costs and expenses the agreement retainer should cause to be deducted from the verdict.

The panel noted that there was some testimony suggesting that Halbman had made payments to cover costs. There was testimony, for instance, that Halbman had paid $10,000 to $15,000 towards the trial, that “there was cash involved, too” and that he had spent $30,000 to $40,000 on landscaping work he had done for Barrock to cover what Barrock had not paid. Halbman had met Barrock while doing work at Barrock’s home and office.

However, that testimony was too vague and provided the jury with no reason to compute a damage award “other than guesswork and speculation,” the appeals court wrote.

Halbman appealed the decision two months later, asking the Wisconsin Supreme Court to review two issues: 1) whether the court of appeals had erred in affirming Moroney on the basis that Halbman had failed to establish prima facie evidence of damages and 2) whether Moroney had erred both in ruling that the value of the personal-injury case should be based on the verdict from the second trial and in preventing the verdict from the first trial from being admitted into evidence.

The Wisconsin Supreme Court voted to take the case in February. The court heard oral arguments on Sept. 12.

The justices’ per curiam decision on Thursday to dismiss Halbman’s appeal as “improvidently granted” lets the circuit court’s dismissal of the legal-malpractice case stand.

Justice Shirley Abrahamson, joined by Justice Ann Walsh Bradley, wrote a three-page concurring opinion stating that she agreed that the appeal should be dismissed for being improvidently granted. However, she disagreed that the court had not given an explanation as to why, noting that both parties had expended resources to present the case to the court.

Abrahamson wrote that the case presented no significant issues related to federal or state law. Nor, she argued, would a decision in the case develop or clarify the law. Both of those considerations are criteria the court uses to decide which cases are worthy of review. Further review and an opinion by the court would serve no purpose, Abrahamson wrote.

Barrock represented himself in the case. Halbman was represented by Robert Levine and Jonathan Cattey of Law Offices of Robert A. Levine, Milwaukee. Follow @erikastrebel