United States District Court, E.D. Wisconsin
DEAN A. ANDERSEN, Plaintiff,
MARK VAVRECK and GONKO & VAVRECK PLLC, Defendants.
ORDER GRANTING THE DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 51) AND DENYING THE PLAINTIFF'S MOTION
FOR SUMMARY JUDGMENT (DKT. NO. 61)
PAMELA PEPPER United States District Judge.
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.
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.
The Initial Debt-Collection Suit
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. 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.
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. 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.
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.
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.
The Instant Malpractice Suit.
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 AND CHOICE OF LAW
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.
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.
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
Summary Judgment Standard.
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 ...