Helmbrecht v. St. Paul Ins. Co.

Decision Date31 January 1985
Docket NumberNo. 82-1894,82-1894
Citation122 Wis.2d 94,362 N.W.2d 118
PartiesJeanette HELMBRECHT, Plaintiff-Appellant-Cross-Petitioner, v. ST. PAUL INSURANCE COMPANY and Raymond Colwin, Defendants-Respondents-Petitioners.
CourtWisconsin Supreme Court

John R. Teetaert (argued), Appleton, for defendants-respondents-petitioners; Menn, Nelson, Sharratt, Teetaert & Beisenstein, Ltd., Appleton, on brief.

John H. Correll (argued), Milwaukee, for plaintiff-appellant-cross-petitioner; and Correll Law Office, Ltd., Milwaukee, on brief.

CECI, Justice.

This is a review of a decision of the court of appeals 1 reversing the judgment of the circuit court for Fond du Lac county, William E. Crane, presiding judge, and remanding the case for a new trial. We affirm the court of appeals' holding that the trial court erred in granting the petitioners' motion to dismiss the action and direct a verdict in their favor. We reverse that portion of the court of appeals decision remanding the matter for a new trial on all issues.

This is a legal malpractice action which arose out of Attorney Colwin's representation of Jeanette Helmbrecht in a 1977 divorce action. At the time of the divorce, Jeanette Helmbrecht had been married to Thomas Helmbrecht for nearly twenty-four years, and they had six living children. Mrs. Helmbrecht, forty-nine years old at that time, was a registered nurse but, except for a few months in 1971, had not worked since their marriage in 1953. Thomas Helmbrecht, fifty years of age at that time, was a dentist by profession and was in partnership with his brother in Mayville, Wisconsin. By means of his dental practice, Dr. Helmbrecht grossed approximately $112,000 per year, netting him over $62,000 per year before taxes.

A summons was filed by Mrs. Helmbrecht in September, 1976, but was not followed by a complaint. It is clear that she wanted a legal separation but was opposed to a divorce. Subsequently, in March, 1977, Attorney Colwin was retained by Mrs. Helmbrecht, and Dr. Helmbrecht filed a counterclaim, asking for a divorce.

Prior to the scheduled divorce trial date, Colwin met with Jeanette Helmbrecht to discuss what items were to be included in the marital estate and the possibility of a maintenance award for Mrs. Helmbrecht. Jeanette testified that she met with Colwin on four occasions, and Colwin testified that they met on thirteen occasions. Prior to trial, Jeanette expressed a desire to enroll in a refresher course so that she could return to work as a registered nurse.

Mr. Storck, the attorney for Dr. Helmbrecht, submitted to Colwin a proposed stipulation agreement, which included the following assets: 1976 Buick automobile, 1976 International Scout, the marital residence, furniture, Airstream trailer, four life insurance policies, retirement fund, Clifford trust, and a remainder interest in the Helmbrecht trust. In an attempt to further ascertain the extent and valuation of the marital estate, Colwin deposed Dr. Helmbrecht, visited Dr. Helmbrecht's dental office, examined probate records with respect to a remainder interest in the Helmbrecht trust, and obtained Dr. Helmbrecht's tax forms.

The divorce trial was scheduled for August 23, 1977, the major issues being property division and maintenance to be awarded Mrs. Helmbrecht. Colwin appeared with his client, Jeanette Helmbrecht, but had no other witnesses scheduled to testify regarding the value of the marital assets or Mrs. Helmbrecht's need for maintenance. After Dr. Helmbrecht's attorney stated that he was ready to proceed with the trial, Colwin requested a recess. The two attorneys then negotiated a stipulation whereunder Mrs. Helmbrecht was to receive a $25,000 cash award as property division to be paid following the sale of their home, limited alimony payments of $1,000 per month for forty-two months, custody of their two minor children, $200 per month per child in child support, the 1976 Buick, some items of furniture, and an insurance policy on her life. The balance of the marital estate, including the remaining proceeds from the sale of the house, the 1976 Scout, furniture, three life insurance policies on the life of Dr. Helmbrecht, Airstream trailer, retirement fund, Clifford trust, and remainder interest in the Helmbrecht trust were all awarded to Dr. Helmbrecht. No mention was made of Dr. Helmbrecht's interest in his dental practice.

The stipulation was read into the record and approved by Joseph E. Schultz, county judge for Dodge county. When asked if she agreed with the stipulation, Mrs. Helmbrecht answered, "Basically it's the same as what we discussed before, right. Yes, I do, your honor." Jeanette Helmbrecht, in the instant action, testified that Colwin told her that Judge Schultz had insisted on a fifty percent split of the marital estate and that the stipulation was a fifty percent split. The divorce was subsequently granted by Judge Schultz.

Following the divorce, Mrs. Helmbrecht moved to Bedford, New Hampshire, to live with her brother. The two minor children had previously moved there and were already attending school. Jeanette did take a course to refresh her skills as a registered nurse but, because of a back injury and her outdated skills, job opportunities as a registered nurse did not materialize. At the time of the malpractice trial, she was working nights at Cedar Lake Home Campus in West Bend, Wisconsin.

Within a year of the divorce, Mrs. Helmbrecht realized that she and her children could not live on the maintenance award and child support she was receiving. She contacted Colwin concerning the possibility of an increase in child support, but was told by Colwin's associate that an increase was unreasonable. After her maintenance payments expired in 1981, Mrs. Helmbrecht returned to Wisconsin and attempted to get an adjustment on the divorce judgment. When all attempts failed, she commenced this legal malpractice action against Attorney Colwin and his insurer, seeking to recover as damages the difference between what she actually received in the divorce proceedings and what she would have received if her case had been competently and reasonably prepared and presented.

A trial to a jury of twelve was held on July 27-30, 1982, Judge William E. Crane, presiding. Mrs. Helmbrecht, the plaintiff therein, relied primarily on the testimony of a certified public accountant and three attorneys admitted to practice law in Wisconsin. They testified largely with respect to specific acts of negligence on the part of Colwin and the valuation of the marital estate in 1977. At the close of the plaintiff's case, the defendants made a motion to dismiss the case, asserting that there was no evidence regarding the issue of damages that could go to the jury. The defendants argued that Judge Schultz approved the stipulation and that there was no evidence to indicate that he would have ruled differently if the case had gone to trial. Judge Crane took the motion under advisement.

The defendants relied primarily on the testimony of Judge Schultz, the trial judge in the original divorce action, and one attorney admitted to practice law in Wisconsin. Judge Schultz testified as to what he would have done had the divorce case gone to trial. He concluded that Colwin had negotiated a fair settlement for his client and one which had been "hammered out" by "two fine craftsmen."

At the close of the parties' cases, the trial judge submitted both the negligence and damage questions to the jury. As to damages, the trial judge instructed the jury,

"In this case the pecuniary loss, if any, would be the difference between the value of the pecuniary benefits as awarded by the trial court based upon the stipulated agreement of the parties to the divorce action and the amount of pecuniary benefits that would have been awarded by the trial court except for the defendant's negligence.

"I caution you jurors that you are not to decide the divorce case. That is not the matter that is presented to you. You are not to decide the other issues as to the property division or the temporary alimony as your own decision. Your decision must be as to what the judge did based on the stipulation and what the judge would have done based on the information before him on August 23, 1977, at the time that the judgment in this case was entered based upon ... the agreed stipulation of the parties."

The jury returned a verdict finding Colwin seventy-five percent causally negligent and Jeanette Helmbrecht twenty-five percent contributorily negligent. With one dissent, the jury set damages at $250,000.

Following motions after verdict, the trial judge, Judge Crane, granted the defendants' motion to dismiss and directed the verdict in favor of the defendants. He claimed that the jury's verdict shocked the conscience of the trial court in that it was not supported by sufficient evidence. The trial court reasoned that the verdict,

".... totally disregarded the Court's instructions, totally disregarded the jury's duty, and the damage award as found by them is perverse and extremely prejudicial...."

The court's finding was based largely on the fact that the jury's decision conflicted with the testimony of a single witness, the trial judge in the divorce action. The jury had been instructed to determine what the particular judge in the original divorce action would have awarded the plaintiff had her case been properly presented at trial. However, damages were set by the jury at $250,000, even though at the legal malpractice trial Judge Schultz gave little or no indication that he would have awarded anything more than the plaintiff received from the stipulation.

The issues presented on appeal are:

1. Whether the standard used in determining damages in a legal malpractice case is subjective (what a particular judge would have awarded) or objective (what a reasonable judge would have awarded).

2. Whether the trial judge erred in dismissing the...

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