                                                          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                                      (2016 – Unpublished)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).


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                                                                        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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