THE SUPREME COURT, STATE OF WYOMING
2023 WY 71
APRIL TERM, A.D. 2023
July 18, 2023
STEVEN JOHNSON; NOBLE K
INVESTMENTS, LLC;
PARTNER2SUCCEED, INC.; and BEST
VALUE RENTALS, LLC.,
Appellants
(Plaintiffs),
S-22-0243
v.
DANIELLE M. MATHEY and MATHEY
LAW OFFICE, P.C.,
Appellees
(Defendants).
Appeal from the District Court of Sweetwater County
The Honorable Dawnessa A. Snyder, Judge
Representing Appellants:
Michael Hawkins O’Brien, St. Peter Law Offices, P.C., Missoula, Montana.
Representing Appellee Danielle M. Mathey:
Alaina M. Stedillie, Crowley Fleck PLLP, Casper, Wyoming.
Representing Appellee Mathey Law Office, P.C.:
Anna M. Reeves Olson, Long Reimer Winegar, LLP, Casper, Wyoming.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY and FENN, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are
requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of
any typographical or other formal errors so that correction may be made before final publication in the
permanent volume.
FENN, Justice.
[¶1] Steven Johnson and his legal entities (Appellants) appeal from the district court’s
grant of summary judgment on his legal malpractice claims against Danielle M. Mathey
and Mathey Law Office, P.C. (Appellees). The district court found Appellees were entitled
to judgment as a matter of law because Appellants failed to demonstrate, through expert
testimony or other competent evidence, Ms. Mathey’s conduct violated a standard of care
or proximately caused Appellants any damage. We affirm.
ISSUES
[¶2] The issues on appeal are:
I. Were Appellees entitled to judgment as a matter of law
when Appellants failed to present expert testimony or
other competent evidence establishing Ms. Mathey
proximately caused Appellants’ damages by failing to
file a lawsuit against the City of Rock Springs?
II. Were Appellees entitled to judgment as a matter of law
when Appellants failed to present expert testimony or
other competent evidence establishing Ms. Mathey
violated her standard of care and proximately caused
damages in her representation of Mr. Johnson against
Factory Homes Outlet?
FACTS
[¶3] Steven Johnson owns and operates Noble K. Investments, LLC; Best Value Rentals,
LLC; Real N Vest, Inc.; and Partner2Succeed, Inc. These entities are used by Mr. Johnson
to handle his business and employment affairs. In 2017, Mr. Johnson retained Ms. Mathey
to represent him and his entities in various matters, including (1) litigation against the City
of Rock Springs, and (2) litigation against Factory Homes Outlet.
City of Rock Springs Matter
[¶4] In July 2015, the City of Rock Springs experienced heavy rainfall, and one of Noble
K. Investments’ storage facilities flooded with sewer water. The flooding damaged some
of Noble K Investments’ tools and equipment. Mr. Johnson used another one of his
companies, Real N Vest, Inc., to remediate the damage from the flooding. Real N Vest
submitted an invoice in the amount of $5,031.81 to Noble K. Investments for the cost of
the remediation.
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[¶5] Mr. Johnson personally believed the cause of the flood was due to the City’s lift
pumps shutting down. He sent a demand letter to the City seeking reimbursement for the
damage in the amount of $7,145.66 ($5,031.81 for the remediation owed to Real N Vest
and $2,113.85 for the cost to replace the damaged tools). The City’s insurance company
denied Mr. Johnson’s claim and contended the flood was the result of a natural disaster.
Mr. Johnson retained Ms. Mathey. She agreed to seek recovery of the damages from the
City on Mr. Johnson’s and Noble K. Investments’ behalf.
[¶6] Ms. Mathey billed Mr. Johnson and Noble K. Investments for conversations with
the City Attorney on June 7, 2017, November 15, 2018, and November 29, 2018. Ms.
Mathey informed Mr. Johnson the City denied liability, so she agreed to file a lawsuit
against the City on behalf of Mr. Johnson and his entity. Ms. Mathey never filed the
lawsuit.
[¶7] In July 2019, Mr. Johnson requested copies of all documents and filings related to
the lawsuit against the City. When Ms. Mathey did not respond, Mr. Johnson sent her a
certified letter stating:
[I]t has been a long time [since] I received any update from you
on the case we filed against the City of Rock Springs for
flooding my shop with raw sewage back in 2016. I know when
we spoke in March nothing had changed since the complaint
was sent to the judge to sign off on a Summary [Judgment],
which was over 2 years ago if I recall correctly. I never
received copies of any documents, filings, pleadings, etc[.] on
this case. Please prepare copies of all filings and pleadings
along with a summary of what has been done to date and
current status of the case and forward them to me.
One month later, Ms. Mathey responded and indicated a default judgment was entered in
favor of Mr. Johnson for $400.00 more than the initial demand. Ms. Mathey stated:
The good news is that, what with judicial retirements, orders
are getting signed. We finally got your judgment for Rock
Springs yesterday. You get the $7,545.66 that we claimed, but
it’s a tort and a governmental entity, so only post-judgment
interest. I should get the check from [the City’s insurance
company] by the end of the month. I’m not complaining. If
they had actually opposed the complaint, you would have had
more legal fees plus they would have whittled down those
damages.
[¶8] Ms. Mathey informed Mr. Johnson the City’s insurance company paid promptly and
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stated: “Given [the insurance company’s] silence and the existence of a default, I suspect
they never told Rock Springs that suit was filed. Better to quietly pay and make it go away
after that kind of error.” Ms. Mathey’s statements that she obtained a default judgment
against the City and their insurance company made payment were dishonest and deceitful.
Ms. Mathey admittedly never filed the lawsuit and instead she fabricated a default
judgment against the City and forged a judge’s signature to the fictitious document. Ms.
Mathey did pay Mr. Johnson and his entities $7,545.66, but the funds were from attorney
fees relating to a settlement Mr. Johnson and his co-plaintiff received in the litigation
against Factory Homes Outlet.
Factory Homes Outlet Litigation
[¶9] Beginning in October 2010, Mr. Johnson worked as a sales associate for Factory
Homes Outlet, a company from Idaho that constructs modular/manufactured homes. Mr.
Johnson billed Factory Homes Outlet for his work through his company Partner2Succeed,
Inc. Factory Homes Outlet paid Mr. Johnson a sales commission based on his sales of
modular/manufactured homes. After a year of working for Factory Homes Outlet, Mr.
Johnson discovered Factory Homes Outlet might be shorting him on his sales commissions.
However, Mr. Johnson is unable to attest to the amount he believes Factory Homes Outlet
owes him.
[¶10] Mr. Johnson and a co-plaintiff retained Ms. Mathey in August 2017 to file a
complaint against Factory Homes Outlet for unpaid sales commissions. Ms. Mathey was
admitted pro hac vice in Idaho and worked with an Idaho attorney on the lawsuit. During
the litigation, Mr. Johnson informed Ms. Mathey that a co-worker agreed to sign an
affidavit attesting Factory Homes Outlet kept a collection of records in an offsite storage
facility. Ms. Mathey drafted an affidavit for the co-worker to sign based on a conversation
she had with him. The draft affidavit alleged the co-worker “once heard one of the owners
of the Factory Homes companies say they kept offsite storage for other records[,]” but the
co-worker was unable to provide any information about the records.
[¶11] By the time Ms. Mathey and Mr. Johnson were preparing to attend mediation, the
co-worker still had not signed and returned the affidavit. The co-worker informed Mr.
Johnson he could not sign the affidavit prior to mediation because he had an unexpected
death in the family and was in “no position to get [the affidavit] to Mr. Johnson.” Mr.
Johnson and Ms. Mathey attended the mediation without the affidavit and settled the matter
for $47,500.00. The settlement proceeds were deposited in Ms. Mathey’s trust account on
June 17, 2019.
[¶12] Mr. Johnson and his co-plaintiff made multiple inquiries to Ms. Mathey asking
when they would receive their settlement funds. Ms. Mathey did not return their phone
calls and emails. Three months later, Mr. Johnson told Ms. Mathey he was going to notify
the Wyoming State Bar Office of Bar Counsel if the settlement checks were not received
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the following week. Ms. Mathey responded that she previously issued checks distributing
the funds but was canceling those checks and issuing new ones. Again, Ms. Mathey’s
statements were dishonest and deceitful. Ms. Mathey had never issued or voided checks
which distributed the settlement funds prior to her response to Mr. Johnson or his co-
plaintiff. However, the same day as her response, Ms. Mathey issued two checks
distributing the settlement funds to Mr. Johnson and his co-plaintiff in the total amount of
$33,782.93.
[¶13] While Ms. Mathey issued $33,782.93 of the gross settlement amount ($47,500.00),
she retained $13,717.07 from the gross settlement for her attorney fees. Ms. Mathey’s final
invoice contained 18 months of time entries and stated the balance remaining in the trust
account after payment of Ms. Mathey’s attorney fees was the amount distributed to Mr.
Johnson and his co-plaintiff, $33,782.93. After deducting her attorney fees from the
settlement, Ms. Mathey issued a third check to Mr. Johnson in the amount of $7,545.66.
Ms. Mathey represented to Mr. Johnson the $7,545.66 was from the City of Rocks Springs’
insurance company for payment of the default judgment. Ms. Mathey retained the
remaining $6,171.41 of the $13,717.07 as payment for her attorney fees in the Factory
Homes Outlet litigation.
Wyoming State Bar Disciplinary Proceedings
[¶14] Mr. Johnson filed a complaint with the Wyoming State Bar regarding Ms. Mathey’s
representation of him in various matters, including the City of Rock Springs matter and the
Factory Homes Outlet litigation. The Wyoming State Bar and Ms. Mathey entered into a
stipulation agreeing to a sanction of disbarment for her acts and omissions in her
representation of Mr. Johnson and his entities. The Board of Professional Responsibility
(BPR) filed its Report and Recommendation for Disbarment with this Court on February
9, 2021.1 This Court entered its Order of Disbarment, disbarring Ms. Mathey from the
practice of law in Wyoming, effective immediately.
[¶15] As part of our order, we approved, confirmed, and adopted the BPR’s report and
recommendation. Our order included findings of misconduct by Ms. Mathey for her acts
and omissions in the matter against the City of Rock Springs and the litigation against
Factory Homes Outlet. Regarding the City of Rock Springs matter, we found Ms. Mathey
violated: (1) Wyoming Rules of Professional Conduct for Attorneys at Law (Rule or Rules)
1.3 and 3.2 by failing to file the lawsuit against the City; (2) Rule 1.4 by affirmatively
misleading Mr. Johnson into believing Ms. Mathey filed the lawsuit and obtained a default
judgment, and by failing to provide documents when requested by Mr. Johnson; (3) Rule
8.4(b) by fabricating a default judgment; (4) Rule 8.4(c) by repeatedly lying to Mr. Johnson
about the status of his case and by fabricating the default judgment; and (5) Rule 8.4(d) by
falsifying a default judgment and falsely blaming the court system for the delay in
1
Board of Professional Responsibility, Wyoming State Bar v. Mathey, D-21-0001 (order of disbarment).
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litigation. Regarding the Factory Homes Outlet litigation, we found Ms. Mathey violated:
(1) Rule 1.4 by lying to Mr. Johnson and his co-plaintiff about the status of their settlement
funds; and (2) Rule 8.4(c) by falsely stating to Mr. Johnson and his co-plaintiff the
settlement checks had been issued. We made no findings as to whether Ms. Mathey was
entitled to the $13,717.07 for attorneys’ fees in the Factory Homes Outlet litigation.
Current Proceedings
[¶16] On April 12, 2021, Appellants filed a complaint against Appellees alleging Ms.
Mathey committed legal malpractice by failing to file the lawsuit against the City of Rock
Springs. Appellants further alleged Ms. Mathey committed legal malpractice by
misappropriating the settlement funds from the Factory Homes Outlet litigation and by
failing to obtain the signed affidavit from Mr. Johnson’s co-worker.
[¶17] The district court issued its scheduling order requiring Appellants to designate
expert witnesses by February 1, 2022, and Appellees to designate their expert witnesses by
March 1, 2022. Appellants never designated an expert witness. Appellees timely
designated Sage Hilstad, a shareholder and managing partner of Mathey Law Office, and
Ms. Mathey as their expert witnesses. Appellees filed for summary judgment with
supporting affidavits and evidence claiming they were entitled to judgment as a matter of
law because Appellants had not designated an expert witness or presented any competent
evidence establishing the legal elements of their legal malpractice claim. Appellants
argued expert testimony was not necessary because the BPR found Ms. Mathey violated
several Rules through her acts and omissions in the City of Rock Springs matter and in the
Factory Homes Outlet litigation. The district court granted summary judgment in favor of
Appellees finding Appellants failed to establish through expert testimony or other
competent evidence a genuine issue of material fact on the elements of their legal
malpractice claims. Appellants timely appealed.
STANDARD OF REVIEW
[¶18] “We review a district court’s order granting summary judgment de novo and afford
no deference to the district court’s ruling.” Scranton v. Woodhouse, 2020 WY 63, ¶ 22,
463 P.3d 785, 790 (Wyo. 2020) (quoting Estate of Weeks by and through Rehm v. Weeks-
Rohner, 2018 WY 112, ¶ 15, 427 P.3d 729, 734 (Wyo. 2018)). “Summary judgment is
proper ‘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.’” Id. at ¶ 23, 463 P.3d at 790 (quoting
W.R.C.P 56(a)). When reviewing an order granting summary judgment, “[t]his Court must
use the same materials and follow the same legal standards as the district court.” Id. (citing
Tozzi v. Moffett, 2018 WY 133, ¶ 11, 430 P.3d 754, 759 (Wyo. 2018)). We view the record
“from the vantage point most favorable to the party opposing the motion [for summary
judgment], and we give [that] party . . . the benefit of all favorable inferences that may
fairly be drawn from the record.” Id. at ¶ 22, 463 P.3d at 790 (quoting Estate of Weeks,
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¶ 15, 427 P.3d at 734). “A material fact is one that would have the effect of establishing
or refuting an essential element of the cause of action or defense asserted by the parties.”
Id. (quoting Estate of Weeks, ¶ 15, 427 P.3d at 734).
[¶19] “The party requesting a summary judgment bears the initial burden of establishing
a prima facie case for summary judgment.” Matter of Phyllis V. McDill Revocable Tr.,
2022 WY 40, ¶ 18, 506 P.3d 753, 760 (Wyo. 2022) (quoting Gowdy v. Cook, 2020 WY 3,
¶ 22, 455 P.3d 1201, 1207 (Wyo. 2020)). “When the moving party does not have the
ultimate burden of persuasion, it establishes a prima facie case for summary judgment by
showing a lack of evidence on an essential element of the opposing party’s claim.” Statzer
v. Statzer, 2022 WY 117, ¶ 11, 517 P.3d 574, 579 (Wyo. 2022) (quoting Spence v. Sloan,
2022 WY 96, ¶ 23, 515 P.3d 572, 579 (Wyo. 2022)). “Once the movant meets the initial
burden, the opposing party must establish ‘a genuine issue of material fact exists’ to defeat
the motion.” Scranton, 2020 WY 63, ¶ 23, 463 P.3d at 790 (citing Halling v. Yovanovich,
2017 WY 28, ¶ 21, 391 P.3d 611, 619 (Wyo. 2017)). “When deciding if a genuine issue
of material fact exists, we must keep in mind ‘the actual quantum and quality of proof
necessary to support liability.’” Id. (quoting Lee v. LPP Mortg. Ltd., 2003 WY 92, ¶ 12, 74
P.3d 152, 158 (Wyo. 2003)). “The party opposing the motion must present specific facts;
relying on conclusory statements or mere opinion will not satisfy that burden, nor will
relying solely upon allegations and pleadings.” Varela v. Goshen Cnty. Fairgrounds, 2020
WY 124, ¶ 11, 472 P.3d 1047, 1052 (Wyo. 2020) (quoting Kaufman v. Rural Health Dev.,
Inc., 2019 WY 62, ¶ 14, 442 P.3d 303, 307–08 (Wyo. 2019)). “No genuine issue exists if
the evidence presented . . . ‘is of insufficient caliber or quantity to allow a rational finder
of fact’ to find for the nonmoving party applying the applicable quantum of proof.”
Scranton, ¶ 23, 463 P.3d at 791 (quoting Lee, ¶ 12, 74 P.3d at 158).
DISCUSSION
[¶20] The district court granted summary judgment in favor of Appellees. It found
Appellants “completely failed to carry their burden and have presented no evidence that
even alleges [Appellees’] conduct . . . cause[d] . . . [Appellants’] claimed damages.” It
further found Appellants “have not provided expert testimony to demonstrate [Appellees’]
conduct did not meet the required standards of care for all their claims.” Appellants
contend the district court erred and expert testimony is not required to meet the elements
of their cause of action because the common-sense exception applies.
[¶21] To prevail on their legal malpractice claim, Appellants 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, 2020 WY 63, ¶ 25, 463 P.3d at 791 (quoting Tozzi, 2018 WY 133, ¶ 36, 430 P.3d
at 764). In a legal malpractice claim, expert testimony is necessary to demonstrate the
standard of care and causation elements. Id.; Tozzi, ¶ 36 n.1, 430 P.3d at 764 n.1. “Expert
testimony is necessary because most lay people are not competent to pass judgment on
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legal questions.” Scranton, ¶ 25, 463 P.3d at 791 (quoting Tozzi, ¶ 36, 430 P.3d at 764).
“We have recognized that expert testimony may not be necessary only ‘when a lay person’s
common sense and experience are sufficient to establish the standard of care.’” Id. (quoting
Tozzi, ¶ 36, 430 P.3d at 764).
I. City of Rock Springs Matter
[¶22] This Court approved, confirmed, and adopted the BPR’s finding that Ms. Mathey
violated Rule 1.3 by failing to file the lawsuit against the City of Rock Springs for property
damage allegedly caused by a city sewer backup. This Court further approved, confirmed,
and adopted the BPR’s finding Ms. Mathey violated Rules 8.4(b), (c) and (d) by fabricating
a default judgment and blaming the court for the delay when the delay was in fact caused
by Ms. Mathey’s failure to file the lawsuit. Appellees concede Ms. Mathey’s conduct in
the City of Rock Springs matter departed from the accepted standard of care in the legal
profession. While Appellees concede an expert is not necessary to establish the first two
elements of Appellants’ legal malpractice claim, they contend Appellants’ failure to
designate an expert witness establishing Ms. Mathey’s conduct proximately caused
Appellants any damage mandated dismissal. We agree.
[¶23] “[A] plaintiff in a legal malpractice action must prove that the breach of the standard
of care was both the cause in fact and the proximate cause of the injury.” Rivers v. Moore,
Myers & Garland, LLC, 2010 WY 102, ¶ 13, 236 P.3d 284, 291 (Wyo. 2010) (citing Meyer
v. Mulligan, 889 P.2d 509, 516 (Wyo. 1995)). Generally, “expert testimony is necessary
to demonstrate the causation element” of a legal malpractice claim. Scranton, 2020 WY
63, ¶ 25, 463 P.3d at 791. Expert testimony is necessary because “[t]o prevail . . . the
‘[plaintiff] must employ another attorney to prove the underlying action would have been
successful’” but for the attorney’s misconduct. Id. (quoting Horn v. Wooster, 2007 WY
120, ¶ 9, 165 P.3d 69, 72 (Wyo. 2007)); see also 4A Stuart M. Speiser et al., American Law
of Torts § 15:87 (March 2023 Update) (“The malpractice plaintiff who alleges that the
negligence of the attorney has caused the loss of a cause of action . . . can succeed in the
suit against the attorney only by proving that the action . . . would have been successful but
for the attorney’s misconduct.”).
[¶24] Appellees designated Sage Hilstad and Ms. Mathey as expert witnesses. Ms. Hilstad
and Ms. Mathey attested in affidavits to a reasonable degree of certainty that Appellants
would be unable to establish Ms. Mathey’s failure to file suit against the City caused
Appellants any damage. Ms. Hilstad opined “[t]here is a dispute about the cause of the
flood and whether the City failed to maintain its infrastructure.” Mr. Johnson claimed the
sewer backup occurred when “[t]here was a heavy rainfall [and] the runoff from the streets
had overwhelmed the sewer system, and the [City’s lift] pump[s] shut down[,]” causing
raw sewage to back up into his shop.
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[¶25] The Wyoming Governmental Claims Act “bars any claim against [a city] or its
employees unless [the claim] falls within one of the statutory exceptions” under the Act.
Cornella v. City of Lander, 2022 WY 9, ¶ 17, 502 P.3d 381, 385 (Wyo. 2022); Wyo. Stat.
Ann. § 1-39-103(a)(i), (ii) (LexisNexis 2021); Wyo. Stat. Ann. § 1-39-104 (LexisNexis
2021). The statutory exception found under Wyoming Statute § 1-39-108 applies to public
utilities and services involving solid or liquid waste collection or disposal, and it waives
immunity for a city’s negligence in keeping the public utility operable or functional. City
of Torrington v. Cottier, 2006 WY 145, ¶ 14, 145 P.3d 1274, 1280 (Wyo. 2006). However,
we have found the statutory exception under Wyoming Statute Ҥ 1-39-108 does not extend
to systems intended to remove storm or runoff water[.]” DiFelici v. City of Lander, 2013
WY 141, ¶ 32, 312 P.3d 816, 824 (Wyo. 2013). The City’s insurance company investigated
the sewer backup and determined it was the result of a natural disaster. The City therefore
denied liability for any claim by Mr. Johnson. Mr. Johnson presented no evidence or expert
opinion that his claim against the City fell within the exception to governmental immunity
found under Wyoming Statute § 1-39-108, and his claim against the City would have been
successful but for Ms. Mathey’s misconduct in failing to file the suit.
[¶26] Under our case law, a legal malpractice claim fails as a matter of law if the plaintiff
presents no evidence establishing the loss suffered was in fact caused by the lawyer’s
alleged malpractice. In Rivers v. Moore, Myers & Garland, LLC, the claimant brought a
legal malpractice claim against a law firm arguing if the firm had fulfilled its duty by
adequately representing the claimant, without delay, the claimant would have been able to
build his desired 10,000 square foot building on a lot he purchased. 2010 WY 102, ¶ 14,
236 P.3d at 291. The claimant’s own expert witness opined the restrictive covenants
limited the size of the building he could construct on the purchased lot. Id. at ¶ 15, 236
P.3d at 291. Without setting forth any evidentiary support, the claimant’s expert witness
opined the economic loss the claimant presumably suffered from only being allowed to
build a 5,000-square-foot building versus a 10,000-square-foot building was proximately
caused by the attorney not properly counseling the claimant on the nature and effect of the
covenants. Id. at ¶ 21, 236 P.3d at 292. We rejected the expert’s opinion and found it was
a conclusory opinion that made a bald assertion unsupported by foundational facts. Id. at
¶ 23, 236 P.3d at 293. We held the expert’s conclusory opinion impermissibly attempted
to shift any loss the claimant suffered to the firm without showing that the loss suffered
was in fact caused by the firm’s alleged malpractice. Id. at ¶ 24, 236 P.3d at 293. Based
on the lack of evidence in the record establishing the firm’s conduct was a substantial factor
in the claimant’s inability to build his desired 10,000-square-foot building, we upheld the
district court’s grant of summary judgment and found it properly concluded the legal
malpractice claim failed as a matter of law. Id. at ¶¶ 12–24, 236 P.3d at 290–93.
[¶27] Appellees established Appellants failed to designate any expert witness or present
any evidence establishing Ms. Mathey’s malpractice proximately caused Appellants’
damages. They further established Appellants had not provided any evidence other than
mere conclusory statements supporting the cause of the sewer backup was related to the
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City’s negligence. Appellees met their prima facie case for summary judgment. The
burden, therefore, shifted to Appellants to present specific facts supporting the action
against the City would have been successful but for Ms. Mathey’s failure to file the lawsuit.
See Scranton, 2020 WY 63, ¶ 32, 463 P.3d at 793. Mr. Johnson presented no evidence or
expert opinion, other than his own conclusory statements, that the cause of the sewer
backup was due to the City’s negligence in keeping the public utility operable or functional.
His legal malpractice claim against Appellees fails as a matter of law because he presented
no evidence his lawsuit against the City would have been successful but for Ms. Mathey’s
misconduct in failing to file the lawsuit. See, e.g., Scranton, 2020 WY 63, ¶¶ 33–37, 463
P.3d at 793–95 (finding summary judgment was properly granted when the plaintiff
presented no evidence showing but for the attorney’s conduct in failing to timely request a
hearing the claimant would have been successful); Tozzi, 2018 WY 133, ¶¶ 36–46, 430
P.3d at 764–66 (finding the claimant’s failure to provide expert testimony and competent
evidence demonstrating the lawyer’s actions caused the claimant damages in a legal
malpractice action entitled the defendant to judgment as a matter of law).
II. Factory Homes Outlet Litigation
[¶28] In a separate claim for legal malpractice, Appellants argue Ms. Mathey committed
legal malpractice in her representation of Mr. Johnson and his entity in litigation against
Factory Homes Outlet. Appellants allege Ms. Mathey committed legal malpractice by
“misappropriate[ing] settlement funds to which [Mr. Johnson was] entitled” and by failing
to obtain the affidavit from his co-worker, which resulted in Mr. Johnson settling his case
against “Factory Homes Outlet for an estimated $200,000 less than the value of [his]
claims.”
[¶29] As the moving party, Appellees “through expert testimony or affidavit, [are]
required to demonstrate that [Ms. Mathey’s] conduct [in the Factory Homes Outlet
litigation] conformed to the accepted standard of care.” Tozzi, 2018 WY 133, ¶ 37, 430
P.3d at 764 (quoting Gayhart v. Goody, 2004 WY 112, ¶ 17, 98 P.3d 164, 169 (Wyo.
2004)). Appellees designated Sage Hilstad and Danielle Mathey as expert witnesses. Ms.
Hilstad opined Ms. Mathey investigated the Factory Homes Outlet case, discovered the
affidavit from the co-worker would not make a material difference in the matter, and
properly advised Mr. Johnson about whether to accept the settlement offer. Ms. Hilstad
opined Ms. Mathey’s conduct did not fall below the standard of care. She further opined
to a reasonable degree of certainty that Mr. Johnson and his entities would be unable to
establish whether Ms. Mathey’s failure to obtain the signed affidavit caused Mr. Johnson
any damages.
[¶30] Ms. Mathey opined the $7,545.66 payment to Mr. Johnson “came from attorney’s
fees that [she] earned in the case against Factory Homes Outlet.” She further opined she
“actively worked on the case for roughly 18 months [and her] work is accurately reflected
in the invoices [she] sent to Mr. Johnson and his entities.” Ms. Mathey contends the BPR
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and this Court never found she “did not perform [the] work, that [her] work on [the] matter
violated any Rules of Professional Conduct, or that [she] charged an unreasonable fee for
the work performed.” Ms. Mathey further attests that while she did draft an affidavit for
Mr. Johnson’s co-worker, the co-worker did not have any information about the records at
an offsite storage facility that would support Mr. Johnson’s claims for unpaid sales
commissions. Ms. Mathey attested she advised Mr. Johnson and his entities during
mediation of the risks and costs inherent in litigation, made counteroffers to Factory Homes
Outlet on behalf of Mr. Johnson and his entities, and after counseling Mr. Johnson on the
pros and cons of litigation, Mr. Johnson ultimately agreed “to accept what was represented
to be Factory Homes Outlet’s best and final offer.” Ms. Mathey opined “there is no way
[to determine if] Factory Homes Outlet would have agreed to settle for a greater amount at
mediation” had the co-worker returned the affidavit. She attested “to a reasonable degree
of certainty, Mr. Johnson and his entities w[ould] be unable to establish [the co-worker’s]
failure to sign and return the affidavit [she] sent him caused [Appellants] any damages.”
[¶31] Appellees established a prima facie case, through the use of affidavits and expert
opinion, demonstrating Ms. Mathey’s conduct conformed to the accepted standard of legal
care and Appellants lack any evidence on the standard of care and causation elements of
their legal malpractice claims involving the Factory Homes Outlet litigation. See generally
Scranton, 2020 WY 63, ¶ 32, 463 P.3d at 793 (finding a movant establishes a prima facie
case by demonstrating there is a lack of evidence on the essential element of causation, and
an affiant with personal knowledge opines to a reasonable degree of certainty the attorney
did not violate a standard of care or proximately cause damages). The burden, therefore,
shifted to Appellants to demonstrate through expert testimony that Ms. Mathey’s conduct
did not meet the required standard of care and proximately caused Appellants’ damages.
Id.; Tozzi, 2018 WY 133, ¶ 37, 430 P.3d at 764 (citing Gayhart, 2004 WY 112, ¶ 17, 98
P.3d at 169). If Appellants fail to provide expert testimony or admissible evidence making
this showing, the Appellees are entitled to judgment as a matter of law because Appellants
have failed to establish a genuine issue of material fact concerning the standard of care and
causation elements of their legal malpractice claim. Scranton, ¶ 33, 463 P.3d at 793; Tozzi,
¶ 37, 430 P.3d at 764 (citing Moore v. Lubnau, 855 P.2d 1245, 1251 (Wyo. 1993)).
[¶32] Appellants have provided no countervailing expert testimony to dispute Ms. Mathey
and Ms. Hilstad’s opinions, nor have they provided any evidentiary support to establish
Ms. Mathey misappropriated the settlement funds, or that Factory Homes Outlet would
have settled for a greater amount had Ms. Mathey obtained a signed copy of the co-
worker’s affidavit. Instead, Appellants merely contend that because the BPR found Ms.
Mathey lied about the status of the settlement funds this satisfies their burden and creates
a genuine issue of material fact. We disagree and find the district court properly entered
summary judgment in favor of the Appellees. The BPR never made any findings as to
whether Ms. Mathey was entitled to the $13,717.07 in attorneys’ fees, and Appellants have
presented no evidence establishing Ms. Mathey was not entitled to the fees. Further, the
BPR made no findings as to Ms. Mathey’s conduct with respect to the co-worker’s
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affidavit, and Appellants failed to establish through expert testimony or competent
evidence that Mr. Johnson would have received a greater settlement from Factory Homes
Outlet but for Ms. Mathey’s failure to obtain a signed affidavit from the co-worker.
Appellants, therefore, failed to establish a genuine issue of material fact on the standard of
care and causation elements of their legal malpractice claim, and Appellees were entitled
to judgment as a matter of law. See, e.g., Scranton, 2020 WY 63, ¶¶ 33–37, 463 P.3d at
793–95 (finding summary judgment proper when an expert opinion for a legal malpractice
claim fails to establish the claimant would have successfully recovered the requested
damages but for the attorney’s misconduct); Moore, 855 P.2d at 1251 (holding the
plaintiff’s failure to “submit countervailing expert testimony” demonstrating the attorney’s
conduct did not conform to that of a reasonable Wyoming attorney “established that no
genuine issue of material fact existed and that summary judgment was appropriate.”).
CONCLUSION
[¶33] The Appellees met their prima facie case for summary judgment by showing a lack
of evidence on the proximate cause element of Appellants’ legal malpractice claim in the
City of Rock Springs matter and by showing Ms. Mathey met her standard of care and did
not proximately cause Appellants any damage in the Factory Homes Outlet litigation. In
response, Appellants presented no competent evidence or expert testimony to show Ms.
Mathey’s acts or omissions proximately caused Appellants’ damages in the City of Rock
Springs matter. Appellants further presented no evidence to support Ms. Mathey breached
a standard of care or proximately caused Appellants any damages in the Factory Homes
Outlet litigation. The district court properly granted summary judgment in favor of the
Appellees. Affirmed.
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