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(2016 – Unpublished)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,

 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No. 2015AP1904, unpublished slip op.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 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

¶2 By the Court.—The review of the decision of the court 

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

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¶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)
No. 2015AP1904.ssa

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¶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).
No. 2015AP1904.ssa

3

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.
No. 2015AP1904.ssa

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