COURT OF APPEALS DECISION DATED AND FILED January 4, 2011 A.
John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT III |
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Bert Roehl,
Plaintiff-Appellant, v. Sharon Gisselman,
Defendant-Respondent. |
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APPEAL
from an order of the circuit court for
Before
¶1 PER CURIAM. Bert Roehl appeals an order dismissing his legal malpractice claim against Sharon Gisselman. Roehl’s complaint alleged that Gisselman negligently represented him in a fifth-offense OWI case by failing to collaterally attack one of his previous OWI convictions. The circuit court granted Gisselman’s motion to dismiss, concluding Roehl’s complaint did not state a claim for legal malpractice.
¶2 A defendant may collaterally attack a prior conviction in an
enhanced sentence proceeding only on the ground that the defendant was denied
the constitutional right to counsel. State
v. Hahn, 2000 WI 118, ¶25, 238
BACKGROUND
¶3 Roehl’s complaint alleged Gisselman was his attorney in
¶4 Roehl’s 1998 conviction was based on default judgments that the Shawano County Municipal Court entered against him in case Nos. 1998TR6526 (OWI, first offense) and 1998TR6527 (operating with a prohibited blood alcohol concentration).[1] Roehl’s complaint alleged the municipal court did not have subject matter jurisdiction to enter these judgments because Roehl was erroneously charged with first-offense OWI, which is a civil matter, rather than second-offense OWI, which is a criminal offense. The complaint also alleged that, because second-offense OWI is a criminal offense, Roehl had a constitutional right to be present in court for the adjudication of his guilt, making the default judgments entered against him improper. Accordingly, the complaint alleged that Gisselman should have collaterally attacked Roehl’s 1998 conviction and that her failure to do so was negligent.
¶5 Roehl’s complaint further alleged that, had Gisselman
successfully challenged the 1998 conviction, he would have been charged with
fourth-offense OWI instead of fifth-offense OWI in
¶6 Gisselman moved for summary judgment, which the circuit court granted. On appeal, we reversed the summary judgment and remanded for further proceedings. See Roehl v. Gisselman, No. 2008AP7891-FT, unpublished slip op. (WI App Dec. 4, 2008). Gisselman then filed a motion to dismiss, alleging Roehl’s complaint failed to state a claim upon which relief could be granted. The circuit court agreed and dismissed Roehl’s complaint. Roehl now appeals.
DISCUSSION
¶7 “A motion to dismiss a complaint for failure to state a claim
tests the legal sufficiency of the complaint.”
Watts v. Watts, 137
¶8 Roehl’s complaint alleges Gisselman committed legal
malpractice. To prevail in a legal
malpractice suit, a plaintiff must prove:
(1) that a lawyer-client relationship existed; (2) that the defendant
committed acts or omissions constituting negligence; (3) that the defendant’s
negligence caused the plaintiff’s injury; and (4) the nature and extent of the
injury. Hicks v. Nunnery, 2002 WI
App 87, ¶33, 253
¶9 We disagree. Roehl’s complaint alleges Gisselman was negligent by failing to collaterally attack his 1998 OWI conviction. Thus, Roehl’s malpractice claim depends upon the premise that his 1998 conviction was subject to collateral attack. If a collateral attack on Roehl’s conviction would not have been possible, then Gisselman was not negligent for failing to challenge that conviction as a matter of law.
¶10 Based on the allegations in the complaint, Roehl’s 1998
conviction was not subject to collateral attack. A defendant may collaterally attack a prior
conviction in an enhanced sentence proceeding only on the ground that the
defendant was denied the constitutional right to counsel in the earlier case. Hahn, 238
¶11 Thus, even accepting the allegations in Roehl’s complaint as
true, Roehl cannot establish that Gisselman’s failure to collaterally attack
the 1998 conviction was negligent. Without
establishing that the defendant attorney was negligent, a plaintiff cannot
prevail on a claim for legal malpractice.
See Hicks, 253
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2007-08).
[1] Because the charges in these cases stemmed from the same incident, the two judgments only counted as one conviction for purposes of calculating Roehl’s previous OWI-related convictions. See Wis. Stat. § 346.63(1)(c) (2007-08).
[2] To
the extent Roehl’s complaint alleges the 1998 conviction was subject to
collateral attack, this is a legal conclusion, not a factual allegation. We are not required to accept as true legal
conclusions in a plaintiff’s complaint. Larson
v. Burmaster, 2006 WI App 142, ¶3 n.2, 295