COURT OF
APPEALS DECISION DATED AND
RELEASED September
26, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-3379
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
ALFRED
SEALS,
Plaintiff-Appellant,
v.
DAVID
MANDELL,
Defendant-Respondent.
APPEAL
from an order of the circuit court for Dane County: WILLIAM D.
JOHNSTON, Judge. Affirmed.
Before
Dykman, P.J., Vergeront, J., and Paul C. Gartzke, Reserve Judge.
PER
CURIAM. Alfred Seals appeals from an order dismissing his
legal malpractice claim against attorney David L. Mandell for failure to state
a claim upon which relief could be granted.
The issue is whether Seals established facts showing he suffered damages
as a result of Mandell's alleged negligence.
Because Seals failed to establish that he suffered damages, we conclude
that the circuit court properly dismissed the action and affirm.
BACKGROUND
After
Seals allegedly injured himself by slipping and falling on a wet floor at the
Dean Health Care Center in Madison, he contacted Mandell about commencing a
civil suit against the center. Mandell
undertook an investigation of the matter at no expense to Seals. The center denied any liability for the
accident.
After
his investigation, Mandell informed Seals that he would not be willing to
represent Seals on a contingent fee basis.
Mandell said he would initiate a suit against the center if Seals
advanced all costs, including the initial filing fee, before the statute of
limitations expired in approximately five months. According to Mandell, Seals did not contact him again prior to
the expiration of the statute of limitations.
However, after the time for filing suit had expired, Mandell received a
check for $100 from Seals' chiropractor, apparently to cover the initial filing
fee for Seals' suit. Mandell returned
the check and informed the chiropractor that the statute of limitations had
lapsed and that he was not going to commence a suit to recover costs for Seals'
treatment.
Seals
commenced legal malpractice and constitutional claims against Mandell. Mandell filed a motion to dismiss based on
Seals' failure to state a claim. The
circuit court treated the motion to dismiss as a motion for summary judgment
because it considered affidavits filed by Mandell. After a hearing, the circuit
court granted Mandell's motion for summary judgment. Seals appeals.
STANDARD OF REVIEW
In reviewing summary
judgment decisions, we independently examine the record to determine whether
any genuine issue of material fact exists.
Backhaus v. Krueger, 126 Wis.2d 178, 180, 376 N.W.2d 377,
378 (Ct. App. 1985). To be entitled to
summary judgment, a moving defendant must show a defense that would defeat the
plaintiff as a matter of law. Grams v. Boss, 97 Wis.2d 332, 338,
294 N.W.2d 473, 477 (1980).
The
initial question of whether a claim has been stated is the same for summary
judgment as for a motion to dismiss a complaint. Prah v. Moretti, 108 Wis.2d 223, 228, 321 N.W.2d
182, 185 (1982). In reviewing a
complaint, all facts pleaded by the plaintiff and all reasonable inferences
therefrom are accepted as true. Id. at 229, 321 N.W.2d at
186. We will reverse when the trial
court has incorrectly decided a legal issue.
Rodey v. Stoner, 180 Wis.2d 309, 312, 509 N.W.2d 316, 317
(Ct. App. 1993).
DISCUSSION
Seals
appeals only the dismissal of his legal malpractice claim. He argues that the record in its entirety
establishes a cause of action for legal malpractice against Mandell. Seals relies on a letter sent to him by
Mandell, an evaluation and bill from his chiropractor, and his complaint to
establish the necessary facts for his malpractice claim. Seals maintains that the circuit court erred
when it refused to consider the documents he submitted to supplement his
complaint and accuses the circuit court of failing to "put him in
tune" with its affidavit policy.
He seeks an opportunity on remand to conform his materials so they may
be considered by the circuit court.
To
state a tort action for legal malpractice, a plaintiff must allege facts which
indicate the existence of an attorney-client relationship, acts or omissions
constituting negligence, causation and damages. Cook v. Continental Casualty Co., 180 Wis.2d 237,
245 n.2, 509 N.W.2d 100, 103 (Ct. App. 1993).
A complaint that does not allege any one of these elements fails to state
a claim upon which relief may be granted.
See Rendler v. Markos, 154 Wis.2d 420, 426, 453 N.W.2d
202, 204 (Ct. App. 1990).
Seals'
complaint does not assert that he was damaged by Mandell's alleged
malpractice. Seals argues that he
submitted a chiropractor's evaluation which shows that he was injured in a slip
and fall accident at the center. He
asserts that Mandell sent him a letter which reads: "The only way to obtain any compensation for your injuries
would be to commence a lawsuit against them and either prevail at trial or
settle the case prior to trial."
He concludes that this is evidence that he would have won his suit
against the center, and therefore was damaged by Mandell's negligence.
Setting
aside the fact that Seals provided the trial court with no affidavits in
opposition to Mandell's motion for summary judgment, we still conclude that
Seals has not alleged that he was damaged.
What Seals has alleged is that he has lost his opportunity to litigate. His complaint reads: "Defendant then
allowed the statutes of limitation to run out by not filing the civil suit and
denying plaintiff any and all remedies at law to bring this civil suit."
In
a malpractice case, the plaintiff cannot establish damages by showing only that
litigation was prevented or impaired, since the loss of the ability to litigate
is not itself worth anything. Estate
of Campbell v. Chaney, 169 Wis.2d 399, 405, 485 N.W.2d 421, 423 (Ct.
App. 1992). And a plaintiff must plead
facts to show each element of a legal malpractice claim, including
damages. See Acharya v.
Carroll, 152 Wis.2d 330, 339, 448 N.W.2d 275, 279 (Ct. App. 1989). Seals recognizes this because he asserts
that Mandell's letter is proof that he would have won his lawsuit against the
center.
We
disagree. All Mandell's letter shows is
Mandell believed that it was not possible to settle Seals' claim without
commencing a lawsuit, and if that were done, then the only way to be
compensated would be to win the lawsuit or settle it. Mandell's letter does not in any way give his opinion as to the
chance of success of such a lawsuit.
Starting a lawsuit is no guarantee of success. Many lawsuits are started and then lost. The most we can infer from Mandell's letter
is that he was willing to invest some time in the lawsuit but was not confident
enough in the outcome to invest the costs of commencing it. This is insufficient to allege a successful
result, and therefore is insufficient to show that Seals was damaged by Mandell's
alleged negligence.
Seals
has failed to pass the first test in summary judgment methodology: his complaint fails to state a claim. Accordingly, we conclude that the trial
court correctly dismissed his complaint.
We therefore affirm its order doing so.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.