430 P.3d 754
Wyo.2018Background
- In 2011 Mrs. Tozzi filed for divorce and sought appointment of a conservator for John Tozzi; the court appointed Jeff Wilkinson (conservator) and J. Denny Moffett (counsel for conservator); Richard Mulligan was retained to represent Mr. Tozzi in the divorce.
- Default in the divorce was set aside, a trial occurred, and the court entered a divorce decree dividing the marital estate (Tozzi received ≈ $75M).
- The conservatorship was converted to permanent status, later terminated in 2013 after the court approved the conservator’s final report and accounting (which approved the conservator’s and conservator-attorney’s fees); no appeal was taken from that approval.
- In 2015 Tozzi sued Wilkinson, Moffett, and Mulligan for conversion (excessive fees), professional malpractice, and breach of fiduciary duty; defendants moved for summary judgment asserting, inter alia, collateral estoppel/res judicata and that plaintiffs lacked expert proof of causation and damages.
- Tozzi designated expert Henry Bailey but Bailey disclaimed causation opinions at deposition; Tozzi later filed an affidavit from Bailey asserting causation that was struck under Rule 37(c) as untimely; defendants’ experts opined defendants met the standard of care and caused no damages.
- The district court granted summary judgment for defendants on conversion (barred by collateral estoppel) and on malpractice/breach claims (plaintiff failed to produce admissible expert proof of causation/damages); the Wyoming Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conversion claim challenging conservatorship fees could proceed | Tozzi: fees were excessive/unauthorized; conversion claim allowed despite prior conservatorship order | Defendants: conservatorship court approved fees; collateral estoppel/res judicata bars relitigation | Held: Collateral estoppel bars relitigation; conversion claim precluded because fees were adjudicated and Tozzi had opportunity to litigate/appeal |
| Whether district court abused discretion by striking expert affidavit (Henry Bailey) | Tozzi: affidavit filled gaps on causation and should be considered; common-sense exception to expert requirement | Defendants: affidavit advanced new, undisclosed causation opinions; Rule 37(c) sanction appropriate | Held: Strike affirmed — affidavit contained untimely undisclosed opinions; sanction proper; common-sense exception not shown |
| Whether malpractice/breach claims survive summary judgment without causation/damage proof | Tozzi: factual disputes and expert evidence create triable issues; Bailey’s opinions suffice | Defendants: they presented prima facie expert proof of proper care; Tozzi offered no admissible expert causation/damage evidence | Held: Defendants met burden; Tozzi failed to present admissible expert proof of causation/damages; summary judgment proper |
| Whether an attorney retained by a conservator is a third-party claimant requiring statutory claims process | Tozzi: Mulligan’s fees should have been submitted via conservatorship claims statute | Defendants: approval of conservator accounting included those fees; issue already adjudicated | Held: Issue is a collateral attack on the approved conservatorship accounting and is precluded by collateral estoppel |
Key Cases Cited
- Moore v. Lubnau, 855 P.2d 1245 (Wy. 1993) (elements and expert-proof requirements for attorney malpractice)
- Slavens v. Bd. of County Comm'rs for Uinta County, 854 P.2d 683 (Wyo. 1993) (standards for res judicata and collateral estoppel)
- Bear Peak Res., LLC v. Peak Powder River Res., LLC, 403 P.3d 1033 (Wyo. 2017) (summary judgment standard; appellate de novo review)
- Moore v. Moore, 835 P.2d 1148 (Wyo. 1992) (claim-preclusion factors)
- Gayhart v. Goody, 98 P.3d 164 (Wyo. 2004) (plaintiff must counter movant’s expert proof in malpractice cases)
- Bevan v. Fix, 42 P.3d 1013 (Wyo. 2002) (limited common-sense exception to expert testimony)