Breen v. Pruter
679 F. App'x 713
| 10th Cir. | 2017Background
- Breen, ordered by Wyoming court to take a parenting class designed by Pruter, later hired Pruter (a nonlawyer/nonpsychologist) for coaching and to organize custody-evidence; paid $3,500 and later signed a Consulting Agreement giving Pruter 20% of any custody-related recovery and broad rights to Breen’s life story.
- Breen sued Pruter and Dorcy, Inc. in federal court (20 claims) including CLRA, negligence per se (unauthorized practice of law/psychology), fraud, intentional infliction of emotional distress; Pruter counterclaimed for breach of contract (later withdrawn).
- Breen sent a CLRA §1782(a) notice on April 15, 2014 and filed suit two days later; Pruter produced the requested evidence within 30 days; Breen later sent a second CLRA demand seeking $3.5M.
- District court converted a Rule 12(c) motion to summary judgment, dismissed the CLRA claim with prejudice for failure to comply with the CLRA notice rule, granted summary judgment on most claims (including negligence per se), denied Breen leave to amend to add a simple negligence count as untimely and prejudicial, and excluded/limited several trial exhibits and testimony; jury returned defense verdict on remaining claims.
- Breen appealed four rulings; the Tenth Circuit affirmed in all respects.
Issues
| Issue | Breen's Argument | Pruter's Argument | Held |
|---|---|---|---|
| Whether district court erred dismissing CLRA claim with prejudice for violating §1782 notice | Breen: she provided notice and reserved right to amend under §1782(d); any deficiency should not warrant dismissal with prejudice | Pruter: Breen sought damages prematurely; notice was inadequate and remediation occurred within 30 days | Affirmed: complaint improperly sought relief beyond injunctive relief before notice; Pruter remediated within 30 days, so dismissal with prejudice proper under §1782(b) |
| Whether Breen’s request for restitution equated to a claim for "damages" requiring pre-suit notice | Breen: restitution/non-monetary return of evidence is injunctive and exempt from §1782(a) | Pruter: restitution is a form of damages and requires pre-suit notice | Court: interprets §1782(a) broadly—only pure injunctive relief (order enjoining practices) is exempt; restitution counts as relief requiring notice |
| Whether negligence-per-se claims (unauthorized practice of law/psychology) create private tort duties under Wyoming law | Breen: statutes and standards impose duty; Pruter should be held to professional standards | Pruter: Wyoming statutes do not create a private cause of action; no common-law duty pleaded | Affirmed: statutes do not plainly create private tort duties; Breen waived any common-law duty argument and cannot invoke negligence per se absent a recognized duty |
| Whether district court abused discretion by denying leave to amend to add simple negligence | Breen: negligence claim was always implicated and amendment should be allowed | Pruter: amendment was delayed until after discovery and summary judgment, prejudicial and would require new defense preparation | Affirmed: denial upheld for undue delay and unfair prejudice to defendant |
| Whether district court abused discretion in denying new trial based on evidentiary rulings (books/summary, Dr. Childress testimony, Breen’s lost-commission testimony, long email/text exhibit) | Breen: exclusion/admission errors and exclusion of messages/prejudiced her case | Pruter: evidentiary rulings were within court’s discretion; many objections were forfeited or not preserved | Affirmed: appellate review finds no plain error or prejudice; many objections forfeited; rulings discretionary and harmless given jury verdict on liability |
Key Cases Cited
- Christy v. Travelers Indem. Co. of Am., 810 F.3d 1220 (10th Cir. 2016) (standard of review for summary judgment)
- City of Wichita v. Sw. Bell Tel. Co., 24 F.3d 1282 (10th Cir. 1994) (federal court may affirm on any correct ground supported by record)
- United States v. DeGasso, 369 F.3d 1139 (10th Cir. 2004) (state-law interpretation principles for federal courts)
- Meyer v. Sprint Spectrum L.P., 200 P.3d 295 (Cal. 2009) (interpretation of CLRA remedies and standing; distinction between "any damage" and "actual damages")
- Outboard Marine Corp. v. Superior Court, 124 Cal. Rptr. 852 (Cal. Ct. App.) (CLRA notice should be applied literally; failure can merit dismissal with prejudice)
- Sorensen v. State Farm Auto. Ins. Co., 234 P.3d 1233 (Wyo. 2010) (refusing to recognize private cause of action where legislature did not plainly create tort duty)
- Gates v. Richardson, 719 P.2d 193 (Wyo. 1986) (factors for recognizing or limiting common-law duties)