Dockter v. Lozano

Decision Date11 September 2020
Docket NumberS-20-0028
Citation2020 WY 119
PartiesCHAD DOCKTER, Appellant (Plaintiff), v. DIANE LOZANO, as an individual and in her official capacity; ERIC ALDEN, as an individual and in his official capacity; DONALD MILLER, as an individual and in his official capacity; ROBIN COOPER, as an individual and in her official capacity; and the OFFICE OF THE STATE PUBLIC DEFENDER, Appellees (Defendants).
CourtWyoming Supreme Court

Appeal from the District Court of Laramie County

The Honorable Catherine R. Rogers, Judge

Representing Appellant:

Chad Dockter, pro se.

Representing Appellees:

Bridget L. Hill, Attorney General; Ewa C. Dawson, Senior Assistant Attorney General; Maddisen L. Gorman, Assistant Attorney General.


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.

FOX, Justice.

[¶1] Chad Dockter filed a legal malpractice suit against the Office of the State Public Defender, the State Public Defender, and the individual public defenders who represented him in his criminal case. The district court found none of the exceptions to governmental immunity in the Wyoming Governmental Claims Act (WGCA) applied and the exoneration rule made his claim premature, and it dismissed Mr. Dockter's complaint with prejudice. Mr. Dockter appeals, and we reverse and remand.


[¶2] We address the following issues:

1. Does Mr. Dockter's malpractice claim fall within the WGCA contract exception?
2. Did the district court properly dismiss Mr. Dockter's malpractice suit when his complaint alleged the Public Defenders had insurance coverage?
3. Is Mr. Dockter's malpractice action barred by the exoneration rule?

[¶3] In 2016, public defenders Donald Miller and Robin Cooper represented Mr. Dockter in his criminal trial. The jury convicted Mr. Dockter of kidnapping, unlawful entry, misdemeanor theft, property destruction, interference with an emergency call, and domestic battery. Dockter v. State, 2017 WY 63, ¶ 8, 396 P.3d 405, 407 (Wyo. 2017) (Dockter I). Mr. Dockter appealed his kidnapping and misdemeanor theft convictions and Eric Alden, an attorney with the appellate division of the Wyoming Office of the State Public Defender, represented him. Before this Court issued its decision on the appeal, Mr. Dockter filed pro se motions for a new trial pursuant to Wyoming Rule of Criminal Procedure 33. Dockter v. State, 2019 WY 31, ¶ 5, 436 P.3d 890, 892-93 (Wyo. 2019) (Dockter II). The district court appointed the Public Defender's Office to represent Mr. Dockter on his Rule 33 motions and scheduled a hearing for June 16, 2017. Id. at ¶ 7, 436 P.3d at 893. On June 1, 2017, this Court affirmed Mr. Dockter's convictions. Dockter I, 2017 WY 63, 396 P.3d 405. The Rule 33 hearing proceeded as scheduled, but the State Public Defender, Diane Lozano, appeared instead of Mr. Alden. She objected to any public defender representing Mr. Dockter on his Rule 33 motions because the Public Defender's Office was not statutorily required to represent him once his appeal had been decided. Dockter II, 2019 WY 31, ¶ 7, 436 P.3dat 893. The district court agreed. Id. Mr. Dockter appealed that decision to this Court in Dockter II, and we affirmed. Id. at ¶ 12, 436 P.3d at 894.

[¶4] Mr. Dockter filed his notice of governmental claims pursuant to the WGCA and then sued Ms. Cooper and Mr. Miller for negligence and/or malpractice and Mr. Alden for malpractice, negligence, and abandonment. He sued Ms. Lozano for abandonment; failure to properly supervise and train Mr. Miller, Ms. Cooper, and Mr. Alden; negligence; and malpractice. Mr. Dockter amended his complaint to add the Office of the State Public Defender as a party, and to add causes of action for conspiracy to abandon between Mr. Alden and Ms. Lozano, and breach of contract. We refer to the Appellees collectively as the Public Defenders.

[¶5] The Public Defenders filed a motion to dismiss under Wyoming Rule of Civil Procedure 12(b)(6), arguing Mr. Dockter's claims did not fall under any of the WGCA exceptions to sovereign immunity. In the alternative, they argued that Wyoming should adopt the exoneration rule, which requires a criminal defendant to receive post-conviction relief prior to bringing a malpractice suit against his former defense attorneys. The district court concluded that none of the exceptions to immunity in the WGCA applied to Mr. Dockter's claims and they were therefore barred by sovereign immunity, and it held that the exoneration rule rendered Mr. Dockter's lawsuit premature, and dismissed his case with prejudice. Mr. Dockter appealed.


[¶6] We review orders granting a motion to dismiss under Rule 12(b)(6) de novo. Craft v. State ex rel. Wyo. Dep't of Health, 2020 WY 70, ¶ 9, 465 P.3d 395, 399 (Wyo. 2020). "[W]e employ the same standards and examine the same materials as the district court: we accept the facts alleged in the complaint . . . as true and view them in the light most favorable to the non-moving party." Id. (quoting Moose Hollow Holdings, LLC v. Teton Cty. Bd. of Cty. Comm'rs, 2017 WY 74, ¶ 20, 396 P.3d 1027, 1033 (Wyo. 2017)). Dismissal is appropriate where it is certain from the face of the complaint that the plaintiff cannot assert any fact that would entitle him to relief. Craft, 2020 WY 70, ¶ 9, 465 P.3d at 399 (citing Dowlin v. Dowlin, 2007 WY 114, ¶ 6, 162 P.3d 1202, 1204 (Wyo. 2007); W.R.C.P. 12(b)(6)).

I. Mr. Dockter's malpractice claim does not fall within the Wyoming Governmental Claims Act's contract exception

[¶7] The legislature enacted the WGCA to address the inherent unfairness that results from the strict application of governmental immunity. Archer v. State ex rel. Wyo. Dep'tof Transp., 2018 WY 28, ¶ 7, 413 P.3d 142, 145-46 (Wyo. 2018). The WGCA seeks to balance the "equities between persons injured by governmental actions and the taxpayers of the state of Wyoming whose revenues are utilized by governmental entities on behalf of those taxpayers." Wyo. Stat. Ann. § 1-39-102(a) (LexisNexis 2019).

[¶8] Mr. Dockter's complaint alleges causes of action against the Public Defenders for negligence, malpractice, failure to supervise, conspiracy to abandon, and abandonment. The Public Defenders are public employees who are immune from suit unless they were acting outside the course and scope of their employment1 or Mr. Dockter's claims fall under one of the statutory exceptions. Veile v. Bd. of Cty. Comm'rs of Washakie Cty., 860 P.2d 1174, 1177 (Wyo. 1993). Mr. Dockter argues that legal malpractice lies in contract and the WGCA waives immunity for suits based in contract. Wyo. Stat. Ann. § 1-39-104(a). His malpractice claim, however, sounds in tort and therefore does not fall under the WGCA contract exception.

[¶9] In Moore v. Lubnau, this Court applied the medical malpractice framework to legal malpractice. 855 P.2d 1245, 1248 (Wyo. 1993) ("We conclude that the test applicable in our medical malpractice cases should also apply in the analogous situation of a legal malpractice claim."). Thus, the elements of a legal malpractice claim are: "1) the existence of a duty; 2) the accepted standard of legal care; 3) that the attorney departed from the accepted standard of care; and 4) that the attorney's conduct was the legal cause of the injuries suffered." Gayhart v. Goody, 2004 WY 112, ¶ 16, 98 P.3d 164, 169 (Wyo. 2004) (citing Moore, 855 P.2d at 1248).

[¶10] Our legal malpractice precedent is somewhat "in conflict" over whether the action sounds in tort or contract. Long-Russell v. Hampe, 2002 WY 16, ¶ 4, 39 P.3d 1015, 1016 (Wyo. 2002). While the standard of care for legal malpractice sounds in tort, the duty element is often based on a contractual agreement between the parties. Horn v. Wooster, 2007 WY 120, ¶ 10, 165 P.3d 69, 72 (Wyo. 2007). As a result, our precedent at times treats legal malpractice as sounding in contract, and at others as sounding in tort. In Jackson State Bank v. King, 844 P.2d 1093, 1095-96 (Wyo. 1993), we held the Wyoming Comparative Negligence Statute did not apply to the malpractice action explaining, "[t]he relationship of attorney and client is contractual in nature." In Kolschefsky v. Harris, 2003 WY 86, ¶ 9, 72 P.3d 1144, 1146 (Wyo. 2003), we used the "hybrid" approach, explaining that "the standard of care sounds in tort" even though the attorney/clientrelationship is contractual. Since Moore, 855 P.2d at 1248, we have applied a tort framework for legal malpractice. Meyer v. Mulligan, 889 P.2d 509 (Wyo. 1995); Bevan v. Fix, 2002 WY 43, ¶ 40, 42 P.3d 1013, 1026 (Wyo. 2002); Rino v. Mead, 2002 WY 144, ¶¶ 15-20, 55 P.3d 13, 18-20 (Wyo. 2002); Rivers v. Moore, Myers & Garland, 2010 WY 102, ¶ 13, 236 P.3d 284, 291 (Wyo. 2010).

[¶11] These cases can be reconciled by examining the elements of legal malpractice. In most cases, a contractual relationship between the attorney and client forms the duty necessary for the first element of legal malpractice. Kolschefsky, 2003 WY 86, ¶ 9, 72 P.3d at 1146; Horn, 2007 WY 120, ¶ 10, 165 P.3d at 72-73. The exception is Jackson State Bank v. King, which we overrule to the extent that it holds legal malpractice always sounds in contract law. 844 P.2d 1093. This approach is supported by a review of secondary sources. 7A C.J.S. Attorney & Client § 385 (June 2020 Update); 1A C.J.S. Actions § 129 (June 2020 Update); see also Restatement (Third) of the Law Governing Lawyers § 48 (2000). Legal malpractice actions are torts whose first element, duty, is often satisfied by establishing a contractual relationship.2

[¶12] We hold that legal malpractice is a tort when the claim is for the breach of a duty imposed by the existence of an attorney/client...

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