Helmbrecht v. St. Paul Ins. Co., 82-1894

• Decision Date: 27 December 1983
• Docket Number: No. 82-1894,82-1894
• Citation: 343 N.W.2d 132,117 Wis.2d 74
• Parties: Jeanette HELMBRECHT, Plaintiff-Appellant, v. ST. PAUL INSURANCE COMPANY and Raymond Colwin, Defendants-Respondents. *
• Court: Wisconsin Court of Appeals

Page 132

343 N.W.2d 132

117 Wis.2d 74

Jeanette HELMBRECHT, Plaintiff-Appellant, v. ST. PAUL INSURANCE COMPANY and Raymond Colwin Defendants-Respondents. ^*

No. 82-1894.

Court of Appeals of Wisconsin.

Submitted on Briefs July 26, 1983.

Opinion Released Dec. 27, 1983.

Opinion Filed Dec. 27, 1983.

John H. Correll, Milwaukee, for plaintiff-appellant.

Menn, Nelson, Sharratt, Teetaert & Beisenstein, Ltd., Appleton, for defendants-respondents.

Before FOLEY, P.J., and DEAN and CANE, JJ.

FOLEY, Presiding Judge.

Jeanette Helmbrecht appeals the trial court's dismissal of her malpractice claim against Raymond Colwin, her former attorney. Although a jury found that Colwin was negligent in representing Helmbrecht in her divorce action, the trial court rejected the verdict, concluding that the evidence did not prove either negligence or damage. Because the evidence proved both negligence and damage, we reverse the trial court's dismissal of Helmbrecht's complaint. We cannot, however, affirm the jury's damage award, and a new jury cannot retry only the damage question. We therefore remand this matter to the circuit court for a new trial on all issues.

Whether the evidence proved negligence and damage is a question of law. See Thorp Sales Corp. v. Gyuro Grading Co., 107 Wis.2d 141, 153, 319 N.W.2d 879, 884 (Ct.App.1982). In deciding this question, we look only for evidence to support the verdict; and we consider the evidence, along with all reasonable inferences, in the light most favorable to the verdict. See Herbst v. Wuennenberg, 83 Wis.2d 768, 780, 266 N.W.2d 391, 397 (1978).

From the evidence in this case, the jury could reasonably find that Colwin was negligent. Jeanette and Thomas Helmbrecht were divorced in 1977 after nearly twenty-four years of marriage. They had seven children, two of whom were still in Jeanette's custody. Jeanette was almost fifty years old and, although she had been trained as a nurse, she had not been regularly employed outside the home for about twenty years. Along with other property, Thomas had trust and pension interests and a dental practice, and he netted approximately $62,000 per year from his practice.

Three experienced divorce attorneys testified that Colwin was negligent in failing to have the marital assets valued before trial. They also testified that Colwin was negligent in recommending that Jeanette accept limited maintenance and less than an equal division of the marital property. The jury was entitled to accept this testimony and reject the opinion of the divorce judge that Colwin acted as a "fine craftsman" and negotiated a "favorable and good" settlement for his client. Given the length of the marriage, the ages of the parties, marital assets of up to $263,000 and a single income of $62,000, we have no reservation in upholding the jury's determination that Colwin was negligent in recommending a $25,000 property award, $1,000 per month limited maintenance for three and one-half years, and $400 per month child support for two children.

Considering what Jeanette received in the divorce compared to what she should have been awarded, the jury could reasonably find that Colwin's negligence damaged Jeanette. Because of Colwin's negligence, the divorce judge thought the marital assets totaled only about $80,000. He thus approved a totally inadequate property division. Additionally, had Jeanette not agreed to the limited maintenance award, she would have been a good candidate for more maintenance. See sec. 767.26, Stats.

The trial court incorrectly concluded that Jeanette was not damaged because the divorce judge testified that even in light of the additional evidence, he would not have awarded Jeanette anything more. The jury did not have to decide what the divorce judge in this case would have done; it had to decide what a reasonable judge would have done had Colwin made a proper presentation of Jeanette's case. See Chocktoot v. Smith, 280 Or. 567, 571 P.2d 1255, 1257 (1977). Malpractice is negligence, and negligence is determined objectively.

Because this case must be retried, and because the divorce judge may again be asked to testify, we direct the trial court's attention to Merritt v. Reserve Insurance Co., 34 Cal.App.3d 858, 110 Cal.Rptr. 511, 527-28 (1973), and Aetna Casualty & Surety Co. v. Price, 206 Va. 749, 146 S.E.2d 220, 227 (1966). In objectively determining negligence, the testimony of the divorce judge as to what he would have done is, at best, of questionable relevance. Additionally, although the jury obviously disregarded the testimony of the divorce judge in this case, there was the danger that the jury would give his testimony undue weight. Section 904.03, Stats., may therefore require that he not be allowed to testify. We believe there are also policy reasons for not permitting judges to testify as expert witnesses. Judges are supposed to be impartial, and it is our experience that expert witnesses are often advocates and frequently do not appear impartial. Also, further demands on the time of judges should not be made when attorneys are perfectly capable of providing the needed testimony.

Finally, even...