Appellate Case: 21-8034 Document: 010110630192 Date Filed: 01/11/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 11, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
DENNIS JOY,
Plaintiff - Appellant,
v. No. 21-8034
(D.C. No. 2:20-CV-00112-NDF)
PETER J. YOUNG, and Does 1-100 (D. Wyo.)
inclusive,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, BALDOCK, and PHILLIPS, Circuit Judges.
_________________________________
Dennis Joy brought an action against Peter J. Young alleging legal malpractice
and other claims. The district court granted summary judgment in favor of Young.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
I. Background
Joy retained Young, an attorney, to work on a variety of legal matters from
2009 to 2018. He filed this action against Young in 2020. Young moved for
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
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summary judgment, arguing Joy’s claims were time-barred and otherwise failed
because Joy had not designated an expert witness to testify regarding the standard of
care in the legal profession and causation. Joy conceded Young’s summary judgment
motion on all claims except a legal malpractice claim related to Joy’s retention of
Young in 2009 to represent him in a wrongful termination action against Brandon
Construction. Young did not file suit on that matter until December 2017, by which
time Brandon Construction had dissolved, and no assets or insurance remained to
satisfy a judgment.
The district court granted summary judgment in favor of Young. It first held
there was a factual dispute regarding whether Joy’s remaining malpractice claim was
timely filed. It also held that expert testimony was not required on the standard of
care in the legal profession “because a lay person can easily intuit that waiting more
than nine years to file a complaint, misleading a client for the duration as to the status
of the case, and allowing the defendant company to dissolve in the meantime
amounts to malpractice.” Aplt. App. at 188. But the court held that expert testimony
was required on the question of causation, and because Joy failed to designate such
an expert, his malpractice claim failed as a matter of law.
II. Discussion
There is no dispute that Joy did not designate an expert on causation. On
appeal, he contends that (1) the burden on summary judgment never shifted to Joy
because Young did not retain an expert to affirmatively demonstrate the lack of a
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material factual dispute regarding causation, and (2) the common-sense exception to
the expert-testimony requirement applies to the issue of causation in this case.
We review a summary-judgment ruling de novo and apply the same standards
as the district court. Aguilar v. Mgmt. & Training Corp., 948 F.3d 1270, 1276
(10th Cir. 2020). “The court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Under Wyoming law, a plaintiff asserting a legal malpractice claim must prove
“(1) the accepted standard of care in the legal profession; (2) the attorney’s conduct
departed from that standard; and (3) the attorney’s conduct was the legal cause of the
plaintiff’s injuries.” Scranton v. Woodhouse, 463 P.3d 785, 791 (Wyo. 2020)
(internal quotation marks omitted). “To establish . . . whether the breach was the
proximate cause of the injuries, a party will typically need to present expert
testimony,” which “is necessary because most lay people are not competent to pass
judgment on legal questions.” Id. (internal quotation marks omitted). But expert
testimony may not be required “when a lay person’s common sense and experience
are sufficient to establish” the elements of a legal malpractice action. Id. (internal
quotation marks omitted).
Joy first argues the district court erred in granting Young summary judgment
because, as the movant, Young failed to satisfy his initial burden to come forward
with expert testimony affirmatively demonstrating the lack of a material factual
dispute regarding causation. Absent such expert evidence, Joy maintains that the
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district court erred by shifting the burden on summary judgment to him. For this
proposition Joy cites several Wyoming state-court decisions, including Meyer v.
Mulligan, 889 P.2d 509, 516 (Wyo. 1995), which held that the defendant in a legal
malpractice case “was required to provide expert evidence on the lack of proximate
cause to succeed at summary judgment.”
Young contends we should not consider this argument because Joy raises it for
the first time on appeal. Joy does not provide a citation to the record indicating
where this issue was raised and ruled on in the district court, as required by Tenth
Circuit Rule 28.1(A), and our review of his filings in response to Young’s summary
judgment motion confirms that he did not make this argument in the district court.
The issue is therefore forfeited. See Richison v. Ernest Grp., Inc. 634 F.3d 1123,
1128 (10th Cir. 2011) (“[I]f the theory simply wasn’t raised before the district court,
we usually hold it forfeited.”). “[W]e will reverse a district court’s judgment on the
basis of a forfeited theory only if failing to do so would entrench a plainly erroneous
result.” Id. But Joy “hasn’t even attempted to show how his new legal theory
satisfies the plain error standard.” Id. at 1130-31. And his failure to do so “marks
the end of the road for [his] argument for reversal not first presented to the district
court.” Id. at 1131.
Joy alternatively argues that the district court erred because this case falls
within the common-sense exception to the expert-testimony requirement as to proof
that Young’s conduct proximately caused his damages. To satisfy the causation
element, Joy had to prove that his underlying wrongful-termination action against
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Brandon Construction would have been successful. See Scranton, 463 P.3d at 791.
This is so because “[t]he damages available to an aggrieved client from a negligent
attorney are the amount the client would have expected to recoup if his underlying
action had been successful.” Id.
The district court held that the common-sense exception did not apply to the
causation issue, and Joy’s legal malpractice claim against Young therefore failed as a
matter of law because he presented no expert testimony on that element. It noted that
Joy “only offer[ed] a conclusory statement that the claim is subject to [the]
common-sense exception,” and it rejected his assertion that Young’s filing of a
complaint against Brandon Construction was itself “a reliable indication of the case’s
likelihood of success.” Aplt. App. at 189. Thus, Joy failed to show “how . . . a lay
person could effectively judge the success of the wrongful termination action.” Id.
Joy demonstrates no error in the district court’s grant of summary judgment in
favor of Young. He again points solely to Young’s filing of the complaint against
Brandon Construction, but he cites no authority contrary to the district court’s
conclusion that the filing of a complaint is not sufficient to prove that an action will
ultimately be successful. Rather, it is clear that whether Joy’s claim against Brandon
Construction would have succeeded requires evaluation of questions not within the
competence of lay persons, including the legal effect of Young’s filing of the
complaint in 2017 rather than 2009 and whether Joy was, in fact, wrongfully
terminated. Cf. Scranton, 463 P.3d at 791 n.1 (requiring expert testimony on
causation because evaluation of the likely success of the underlying action before an
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administrative tribunal required an understanding of administrative procedures, rules
of admissibility of evidence, rules of the tribunal, and available legal defenses);
Meyer, 889 P.2d at 516 (requiring expert testimony on causation because question
whether the defendant attorney “could have drafted the documents [in the underlying
matter] differently so that this dispute and its damaging effects would have been
avoided is not a question that lay people could competently determine”). Therefore,
the district court did not err in holding that Joy’s malpractice claim against Young
failed as a matter of law because he could not prove causation in the absence of
expert testimony.
III. Conclusion
We affirm the district court’s judgment.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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