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Andersen v. Vavreck

United States District Court, E.D. Wisconsin

February 21, 2017

DEAN A. ANDERSEN, Plaintiff,


          HON. PAMELA PEPPER United States District Judge.


         Plaintiff Dean Anderson filed a malpractice claim against attorney Mark Vavreck, whom Andersen retained to sue a debt collection agency. On June 2, 2015, the plaintiff filed a complaint against defendant Vavreck and his law firm, Gonko & Vavreck PLLC, alleging legal malpractice, breach of fiduciary duty, and fraudulent misrepresentation. Dkt. No. 1.[1] The parties have filed cross-motions for summary judgment. The court finds that there are no genuine disputes of material fact, and that the defendants are entitled to judgment as a matter of law.

         II. FACTS

         A. The Initial Debt-Collection Suit

         On June 20, 2013, the plaintiff retained Vavreck, a principal of Gonko & Vavreck PLLC, to sue debt collector Harris & Harris LTD (“H&H”) for calling his cell phone several times without his prior consent. Dkt. No. 55-2 at 4. H&H was acting as a third party collector on WE Energies' behalf. Andersen v. Harris & Harris, 13-cv-867, dkt. no. 57 at 18.[2] The plaintiff alleges that while he wanted to sue H&H for violation of the Fair Debt Collection Practices Act (“FDCPA”), the Wisconsin Consumer Act, and the Illinois Collection Agency Act, Vavreck would agree only to pursue a Telephone Consumer Protection Act (“TCPA”) claim. Dkt. No. 53 at ¶¶3, 5; Dkt. No. 66 at ¶5. Still, the plaintiff alleges, he contacted Vavreck several times to try to convince him to pursue the FDCPA claim. Dkt. No. 53 at ¶¶39, 41, 43; Dkt. No. 55-15 at 1-3. Every time, Vavreck responded that the claim did not have merit, and asked if the plaintiff wished to proceed on his TCPA claim. Dkt. No. 53 at ¶¶41, 43; Dkt. No. 55-16 at 1. The plaintiff eventually decided to proceed on the TCPA claim, and abandoned the FDCPA claim. Dkt. No. 55-17 at 1. Vavreck filed the complaint on July 30, 2013. H&H, dkt. no. 1.

         Throughout the course of the H&H litigation, Vavreck and the plaintiff discussed the possibility of settlement with H&H. Initially, H&H offered $3, 500, the plaintiff countered at $75, 000, and H&H counter-offered at $5, 000. Dkt. No. 69, Pl. Ex. 33.[3] H&H's counsel, however, “made it abundantly clear that his client did not want to settle.” Id., Pl. Ex. 23. Following some discovery disputes, the plaintiff became concerned about Judge Stadtmueller and Judge Stadtmueller's view of the plaintiff, and indicated that he wanted to make a settlement offer to show that he was not the “unreasonable” party, even though he knew opposing counsel would not accept the offer. Id., Pl. Ex. 24. Vavreck stated that he did not think a counter offer would influence the court, but suggested $70, 000 if the plaintiff decided to go through with the offer. Id. Then, prior to responding to H&H's summary judgment motion, Vavreck suggested a settlement offer of $9, 000. Id., Pl. Ex. 35. After the plaintiff said “[n]o [w]ay, ” Vavreck continued to brief the summary judgment motion. Id.

         Judge Stadtmueller granted H&H's summary judgment motion, finding that the plaintiff had consented to H&H's debt collection phone calls despite the fact that the plaintiff had a voicemail message on his cell phone which he indicated was designed to revoke consent. H&H, dkt. no. 57 at 19-21. Because he found that the plaintiff had consented, Judge Stadtmueller also found that the plaintiff could not recover from H&H under the TCPA. Id. Judge Stadtmueller also discussed what he viewed as Vavreck's failing as the plaintiff's lawyer. Id. at 1, 13. Judge Stadtmueller found that Vavreck failed to properly respond to H&H's proposed findings of fact, per the court's local rules, and that Vavreck stipulated that the plaintiff lacked standing. Id. at 1-2, 13-14. Although both of these mistakes could have resulted in dismissal of the plaintiff's complaint, Judge Stadtmueller's decision stated that he decided the motion on the merits. Id. at 4, 16.

         The defendants withdrew as the plaintiff's trial counsel shortly after the summary judgment decision. H&H, dkt. no. 59. The plaintiff then filed a pro se motion for reconsideration, detailing the defendants' failures and providing additional legal justification for his claim. H&H, dkt. no. 62. Judge Stadtmueller denied the motion, concluding that the plaintiff did not present sufficient legal authority to cause the court to question its prior order. H&H, dkt. no. 66 at 2. He also noted that, “to the extent that [the plaintiff] believes that his attorneys should be liable to him, that is a separate matter between him and the attorneys.” Id. at 4.

         B. The Instant Malpractice Suit.

         Instead of appealing Judge Stadtmueller's legal determinations, the plaintiff filed this complaint against the defendants. Dkt. No. 1. On March 7, 2016, the defendants filed a motion for summary judgment. Dkt. No. 51. Two months later, the plaintiff filed a cross-motion for summary judgment. Dkt. No. 61. Because the plaintiff has failed to demonstrate a causal link between his failure to recover from H&H and the defendants' conduct, the court must grant summary judgment in favor of the defendants (dkt. No. 51), and deny the plaintiff's summary judgment motion (dkt. no. 61).


         Jurisdiction under 28 U.S.C. §1332 requires diversity of citizenship and an amount in controversy exceeding $75, 000. The plaintiff seeks damages in excess of $75, 000, and resides in Wisconsin. Dkt. No. 1 at ¶¶3, 6. Vavreck lives in Minnesota. Id. at ¶4. Gonko & Vavreck PLLC has its principal place of business in Minnesota. Id. at ¶5. Accordingly, the court has jurisdiction over these claims pursuant to 28 U.S.C. §1332.

         When a federal court has diversity jurisdiction, it must follow the choice of law rules of the forum state to determine the applicable substantive law. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496 (1941). Here, neither party appears to dispute that Wisconsin law applies. See Wood v. Mid-Valley Inc., 942 F.2d 425, 427 (7th Cir. 1991) (“Courts do not worry about conflict of laws unless the parties disagree on which state's law applies.”); ECHO, Inc. v. Whitson Co. Inc., 52 F.3d 702, 707 (7th Cir.1995) (noting that the court should apply the forum state's law in the absence of any argument to the contrary) (citing Checkers, Simon & Rosner v. Lurie Corp., 864 F.2d 1338, 1345 (7th Cir. 1988).


         The plaintiff alleges that the defendants prevented him from obtaining a recovery in the H&H case as a result of their (1) legal malpractice; (2) breaches of fiduciary duty; and (3) fraudulent misrepresentations in violation of Wis.Stat. §100.18. Dkt No. 1 at ¶¶1, 158-59, 176, 182. The defendants respond that the plaintiff's claims lack merit and supporting facts. Dkt. No. 52 at 1. The court agrees.

         A. Summary Judgment Standard.

         A court must grant summary judgment when “there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Material facts are those “facts that might affect the outcome of the suit under the governing law, ” and a dispute about a material fact is genuine if a reasonable jury ...

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