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COURT OF APPEALS DECISION DATED AND RELEASED November 12, 1996 |
NOTICE |
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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. 95-1992
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
Anthony Pratt,
Plaintiff-Appellant,
v.
Frank M. Cappozzo,
Defendant-Respondent.
APPEAL from an order of
the circuit court for Milwaukee County:
FRANK T. CRIVELLO, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. Anthony Pratt appeals pro se from an
order dismissing the legal malpractice complaint he filed against Frank M.
Cappozzo. Pratt claims the trial court
erred in dismissing the complaint because the defect in the summons was not
fundamental and because the complaint states a claim upon which relief may be
granted. Because the complaint fails to
state a claim for legal malpractice, we affirm the dismissal.[1]
I. BACKGROUND
On March 21, 1995, Pratt
filed a summons and complaint, pro se, alleging that Cappozzo was
negligent in representing him regarding his March 1993 arrest for federal
criminal bank fraud charges and the subsequent proceedings at the trial and
appellate court levels.
Cappozzo filed a motion
to dismiss alleging both that the summons and complaint served on him were
defective because neither was signed, and that the complaint failed to state a
claim. Pratt filed a response opposing
the motion. The trial court granted the
motion, ruling both that the summons was defective and the complaint failed to
state a claim. Pratt now appeals.
II. DISCUSSION
Whether a complaint
states a cause of action for which relief can be granted is a question of law
that we decide de novo. Blue
Cross v. Fireman's Fund Ins. Co., 132 Wis.2d 62, 64-65, 390 N.W.2d
79, 80 (Ct. App. 1986), aff'd, 140 Wis.2d 544, 411 N.W.2d 133
(1987). From our review of Pratt's
complaint, we conclude that he has failed to state a claim for legal
malpractice.
Section 802.02(1)(a), Stats., requires a complaint to have a
“short and plain statement of the claim, identifying the transaction or
occurrence ... out of which the claim arises and showing that the pleader is
entitled to relief.”
To show that he is
entitled to relief, Pratt must show: (1) the existence of a lawyer-client
relationship; (2) that the acts Cappozzo committed or failed to commit
constituted negligence; (3) that the negligent acts were a substantial
factor in causing injury; and (4) the extent of injury. Lewandowski v. Continental Cas.
Co., 88 Wis.2d 271, 277, 276 N.W.2d 284, 287 (1979). Pratt must show that but for the negligence
of Cappozzo, he would have been successful in the defense of his case. Id.
Although the complaint
does allege the other required factors, it does not allege in any manner that,
but for Cappozzo's negligence, Pratt would have won his federal criminal case
or appeal. Accordingly, the complaint
fails to state a claim for legal malpractice and was properly dismissed by the
trial court.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.