COURT OF APPEALS
DATED AND FILED
January 5, 2010
David R. Schanker
Clerk of Court of Appeals
This opinion is subject to further editing.† If published, the official version will appear in the bound volume of the Official Reports.†
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.† See Wis. Stat. ß 808.10 and Rule 809.62.†
STATE OF WISCONSIN†††
IN COURT OF APPEALS
Michael D. Bartz,
Michael J. Edmonds,
from a judgment of the circuit court for
∂1††††††† BRENNAN, J. Michael D. Bartz,
proceeding pro se, filed a complaint
against his former attorney, Michael J. Edmonds, for legal malpractice,
fraudulent misrepresentation, and breach of fiduciary duty.† All of Bartzís claims relate to
∂2††††††† Bartz was convicted in
∂3††††††† Bartz appealed his conviction; we affirmed the conviction,
and the supreme court denied his petition for review.† In April 1999, proceeding pro se,
Bartz filed a petition for habeas corpus relief in federal district court.† A federal judge granted Bartzís request for appointment of counsel and appointed
∂4††††††† The federal district court denied Bartzís habeas petition in September 2001, and
mailed copies of its decision and judgment dismissing the action to
∂5††††††† Bartz claims that neither
∂6††††††† When Bartz notified
∂7††††††† In December 2006, Bartz brought this civil suit against
∂8††††††† Bartz filed a motion to amend the complaint in November 2007,
realleging the legal malpractice and fraudulent misrepresentation claims and
adding what he characterized as an additional claim for litigation
expenses.† He sought no motion hearing
date, and the circuit court did not immediately rule upon the motion.† Nevertheless,
∂9††††††† In May 2008, Bartz filed a second motion to amend the
complaint, again without any request for a hearing.† In the proposed second amended complaint,
Bartz repeated his past claims and added a new claim for intentional breach of
fiduciary duty. †
∂11††††† Bartz challenges the circuit courtís order granting
I.††††††††† Legal Malpractice
∂12††††† Bartz bases his legal malpractice claim on his assertion that
Bartz; and (4) the nature and extent of the injury.† See Hicks v. Nunnery, 2002 WI App 87, ∂33, 253
∂13††††† In addition to those elements, we concluded in Hicks
that ďas a matter of public policy, persons who actually commit the
criminal offenses for which they are convicted should not be permitted to
recover damages for legal malpractice from their former defense
∂15††††† Bartz concedes in his appellate brief that he cannot meet the Hicks
has not alleged that he was not criminally culpable for
the 1993 shooting death of his friend Ö.†
Rather, [he] has merely maintained that the killing was the product of
recklessness, and that, had he been afforded a full and fair
trial with the benefit of effective representation, he would have probably obtained a verdict of guilt on the lesser charge of first-degree reckless homicide.
Because Bartz admitted at trial
and in his brief that he actually shot the victim, he cannot demonstrate that
he is actually innocent; consequently, his legal malpractice claim against
II.††††††† Fraudulent Misrepresentation
∂16††††† Bartzís fraudulent misrepresentation claim was based on his
argument that Edmonds told Hensley in August 2004 that the habeas case was still pending, when actually it had been dismissed
in September 2001.† To succeed on a
fraudulent misrepresentation claim, a plaintiff must show: †(1) a false representation of fact; (2) made
with intent to defraud and for the purpose of inducing another to act upon it;
and (3) actual inducement of another to rely and act upon that representation,
causing injury or damage.† Lundin
v. Shimanski, 124
∂17††††† The parties dispute whether
III.†††††† Breach of Fiduciary Duty
∂18††††† Bartz next asserts that the circuit court erred in dismissing
his claim for intentional breach of fiduciary duty. †The circuit court, in granting summary
judgment against Bartz, characterized his evidence of the conversation between Hensley
∂19††††† To prevail on an intentional breach of fiduciary duty claim,
Bartz must demonstrate that: †(1)
∂20††††† Bartz argues that
Bartz acknowledges that under Zastrow v. Journal Communications, 2006 WI 72, ∂38, 291
∂21††††† Pursuant to Wis. Stat. ß 802.08, a party seeking to resist summary judgment must respond to the movantís affidavits showing that a genuine material factual dispute exists.† ďIf the adverse party does not so respond, summary judgment, if appropriate, shall be entered against such party.Ē† Sec. 802.08(3).
∂22††††† In the course of discovery, Bartz claimed that
∂23††††† Edmonds filed a summary judgment motion with supporting evidence by way of affidavits and an expertís report showing that Hensley could not possibly have spoken to Edmonds at phone number (414) 271-1440 because it belonged to the Gimbel, Reilly, Guerin & Brown law firm which Edmonds never belonged to and had no access to on the day of the alleged call. †Additionally, Edmonds supplied an affidavit from a computer forensic expert who had evaluated the email document and determined that the email offered by Hensley was ďcreated by a word processing software to give the impression that this was an Email sent from a Email client softwareĒ and that the email was a fabricated document.
∂24††††† In his ďBrief in Opposition to Summary Judgment,Ē Bartz filed
only one document of proof of the existence of the Edmonds/Hensley phone call,
namely, the email copy which he had supplied before summary judgment and which
∂25††††† And finally, Bartz fails to demonstrate any causal link between his claimed breach of fiduciary duty and any harm to himself. †His claimed harm is that he ďwould have probably prevailed, both on appeal and upon any retrial of his case.Ē †There is no basis in this record for Bartzís claim that he would have prevailed, either on appeal or retrial. †As we noted in Section I above, he admitted shooting the victim in the face and only hoped to be convicted of a lesser form of homicide. †He never had any hope of an acquittal, and does not now.
IV.†††††† Monetary Relief
∂26††††† Finally, in his second amended complaint, Bartz asserts a claim for litigation expenses that he incurred as a result of Edmondsís failure to notify.† Though titled ďsecond cause of action,Ē this is nothing more than a claim for monetary relief arising out of the malpractice and breach of fiduciary duty claims and was properly dismissed by summary judgment.
††††††††††† By the Court.óJudgment affirmed.
††††††††††† Not recommended for publication in the official reports.
 The facts were compiled based upon the partiesí briefs and the courtís review of the record.† While both parties failed to adequately support all of their facts with accurate citations to the record in all instances, to the extent those unsupported facts appear uncontested and are necessary to the disposition of this case, the court accepts them at face value.
 Federal Rule of Appellate Procedure 4(a)(1)(A) (2009) requires a notice of appeal be filed with the district clerk thirty days after the judgment appealed from is entered.† When Bartz moved the district court to extend the appeals period, the court denied his motion because Fed. R. App. P. 4(a)(6)(B) only permits the court to reopen the time to file an appeal when a motion to do so is filed within 180 days after judgment is entered.† Bartz did not file his motion until several years after judgment was entered.
also appears to appeal the denial of his numerous pretrial and discovery
motions.† However, he presents no legal
arguments relating specifically to the denial of these motions, although he
couches some discussion of them in his argument for breach of fiduciary
duty.† Because Bartz fails to develop
these arguments on appeal, and because we affirm the circuit courtís decision
dismissing all of his claims, we also affirm the circuit courtís denial of
Bartzís pretrial and discovery motions.†
 All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
 The circuit court stated:
Accordingly, I can find under no reasonable view of the facts, even those, as I say, viewed in the light most favorable to the nonmovant, Mr. Bartz, that that conversation took place as Mr. Hensley has asserted.
The evidence against it is overwhelming, and accordingly, I grant summary judgment on the second cause of action against Mr. Bartz and in favor of Mr. Edmonds.