2017 WI 91



# S UPREME 

# C OURT OF 

# W ISCONSIN

C ASE N O .: 2015AP1904

C OMPLETE T ITLE : 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– Unpublished)

O PINION F ILED : October 12, 2017
S UBMITTED ON B RIEFS :
O RAL A RGUMENT : September 12, 2017

S OURCE OF A PPEAL :
C OURT : Circuit
C OUNTY : Milwaukee

J UDGE : Dennis P. Moroney

J USTICES :
C ONCURRED : ABRAHAMSON, J. concurs, joined by A.W. BRADLEY,

J.
D ISSENTED :
N OT P ARTICIPATING :

A TTORNEYS :

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,

v.
Mitchell J. Barrock D/B/A Barrock & Barrock,

Defendant

- Respondent. 

## FILED

OCT 12, 2017

Diane M. Fremgen 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No. 2015AP1904, unpublished slip op.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 caus e 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 dism issed as improvidently granted.No. 2015AP1904

2 ¶ 2 By the Court.

— The review of the decision of the court

of appeals is dismissed as improvidently granted.No. 2015AP1904.ssa

1 ¶ 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 dec ided 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 improvident ly

granted. 2

1 For a published explanation by this court of its dismissal of a matter as improvidently granted, s ee, 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, incl uding 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)No. 2015AP1904.ssa

2 ¶ 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 defend ant'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 a nd 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 t he 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 dismis sal 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).No. 2015AP1904.ssa

3 discussion with members of the court, I conclude that this

matter should be dismissed as improvid ently 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, fai led 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.No. 2015AP1904.ssa

1