IN THE SUPREME COURT, STATE OF WYOMING

2024 WY 63 

APRIL TERM, A.D. 2024

 June 12, 2024 

VICTORIA LOEPP,

Appellant 

(Plaintiff), 

v. 

RYAN L. FORD; SCOTT C. MURRAY; and 

WILLIAMS, PORTER, DAY & NEVILLE, 

P.C., 

Appellees 

(Defendants).

S-23-0248 

Appeal from the District Court of Natrona County 

The Honorable Kerri M. Johnson, Judge

Representing Appellant:

Donna D. Domonkos, Domonkos & Thorpe, LLC, Cheyenne, Wyoming. 

Representing Appellee:

Anna M. Reeves Olson, Long Reimer Winegar, LLP, Casper, Wyoming. 

Before FOX, C.J., and *KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ. 

* Justice Kautz retired from judicial office effective March 26, 2024, and, pursuant to 

Article 5, § 5 of the Wyoming Constitution and Wyo. Stat. Ann. § 5-1-106(f) (2023), he 

was reassigned to act on this matter on March 27, 2024. 
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. 
1

BOOMGAARDEN, Justice.

[¶1] Victoria Loepp appeals the district court’s summary judgment order that dismissed

her legal malpractice claims and all other claims she brought against her former counsel

(Appellees). The district court’s summary judgment decision was based on its concurrent 

order striking her malpractice expert. Because the district court did not fully analyze the 

proffered expert’s reliability and fitness under W.R.E 702, and because we find no other 

basis on which to affirm the court’s summary judgment order, we reverse and remand.

ISSUE

[¶2] The issue presented is whether an out-of-state expert may provide opinion testimony 

about the standard of care in legal malpractice actions in Wyoming. 

FACTS

[¶3] This case originated with an inheritance dispute. Angela Gothberg had several 

children, including the two daughters central to this appeal: Ms. Loepp and Ms. Scott. Ms. 

Gothberg died in 2012. As part of the settlement of her estate, Ms. Loepp received a certain 

house in Casper. At the time of that transfer, the house was occupied by Ms. Scott who

had been using it rent-free to operate a business. Ms. Loepp and Ms. Scott orally agreed

Ms. Loepp would sell the house to Ms. Scott for $75,000, with Ms. Scott making full 

payment by the end of 2013. The money was not paid, and for several years the sisters

periodically made new agreements, some of which were in writing. However, Ms. Scott 

never came through with the funds to buy the house. In 2018, Ms. Loepp engaged a real 

estate agent to help sell the property. Ms. Scott responded by filing one of their prior 

written agreements in the Natrona County real property records which, according to Ms. 

Loepp, created a cloud on title. Ms. Scott also did not cooperate with the realtor’s efforts 

to show the property to potential buyers.

[¶4] Ms. Loepp hired attorney Ryan Ford of Williams, Porter, Day & Neville, P.C. to 

help. Mr. Ford sent Ms. Scott a demand letter. He also initiated an eviction by serving a 

Notice to Quit. He ultimately negotiated with Ms. Scott’s attorney to settle the dispute by 

Ms. Loepp selling the house to Ms. Scott for $90,000. On March 22, 2019, the title 

company managing the closing of the transaction received the funds from Ms. Scott. The 

next day, Ms. Loepp notified Mr. Ford that she would not accept the money or settlement 

terms. Ms. Loepp declined Mr. Ford’s advice to abide by the settlement agreement, and 

Mr. Ford withdrew from representation.

[¶5] Scott Murray replaced Mr. Ford as Ms. Loepp’s counsel. He prepared a complaint 

to file against Ms. Scott for a declaratory judgment and to quiet title. However, before that 

complaint was filed, Ms. Scott sued Ms. Loepp for breach of contract and related claims, 

seeking specific performance of the agreement to sell her the house. In April 2020, the 
2

district court entered summary judgment in favor of Ms. Scott. The remainder of Ms. 

Scott’s suit settled when Ms. Loepp agreed to transfer the property to Ms. Scott in exchange 

for the $90,000.

[¶6] Two years later, Ms. Loepp filed this legal malpractice action against Mr. Ford, Mr. 

Murray, and their firm. She alleged multiple instances of malpractice. She also asserted 

claims for breach of contract, breach of fiduciary duty, and gross negligence.

[¶7] Ms. Loepp represented herself before the district court. She hired Michael Watters, 

an attorney from California, as her expert witness. His expert report identified the 

applicable standard of care as that recited in the Wyoming Civil Pattern Jury Instruction,

1

and described more than a dozen instances and categories of conduct that breached that 

standard of care.

2

 Mr. Watters based his opinions on his knowledge and experience as a

trial attorney, as a practice group leader and managing partner in his firm, as a torts 

professor, and as a frequent expert witness in fee disputes. To support his assertions that 

the Appellees misapplied contract law, Mr. Watters included a legal memo which cited

Wyoming case law and referenced the Restatement of Contracts.

[¶8] Appellees moved to strike Mr. Watters, asserting he was not a qualified expert 

because he was not familiar with legal practice in Wyoming. They concurrently moved 

for summary judgment on several grounds independent of their motion to strike. 

Responding to Appellees’ motion to strike, Ms. Loepp pointed to the requirement that the 

Court consider the reliability and fitness of her expert pursuant to W.R.E. 702. She then 

pointed to her expert’s knowledge and extensive experience, as reflected in his report; the 

similarities between certain legal rules across jurisdictions; and his supplemental research 

about Wyoming’s practice of law, supported by an affidavit from Mr. Watters about the 

similarities between states. She also pointed to the important distinction between 

admissibility and the weight of the evidence.

1 “It is a lawyer’s duty to possess and exercise that degree of care, skill, diligence, and knowledge commonly 

possessed and exercised by a reasonable, careful, and prudent lawyer in the practice of law in Wyoming.” 

Wyo. Civ. Pattern Jury Instruction 14.16 (2024).

2 The alleged instances of malpractice included: the decision to begin an eviction against Ms. Scott; the use 

of an unreasonably short time for compliance in the demand letter sent to Ms. Scott; concessions about the 

Loepp–Scott contract that limited Ms. Loepp’s ability to contest the enforceability of that contract; failure 

to file the breach of contract action first, leaving Ms. Loepp in a defensive position in the litigation; failing 

to make adequate objections during a deposition; working too long on a motion for summary judgment; 

moving for summary judgment when there were disputed issues of material fact; misleading Ms. Loepp 

about the status of the case including the timeframe for the summary judgment motion; concessions and 

misrepresentation of facts during the summary judgment proceedings; not advising Ms. Loepp of her appeal 

rights after the summary judgment; a potential conflict of interest by the firm representing a real estate 

broker involved in the sale of the property; overbilling; and misapplying certain legal principles in 

Wyoming contract law related to ambiguous language, parole evidence, and the statute of frauds. 
3 

[¶9] After hearing argument on both motions, the district court acknowledged that Mr. 

Watters brought experience, finding it “nothing short of impressive,” but found Mr. 

Watters did not speak with any Wyoming attorneys and that his research of legal standards 

consisted only of comparing some rules between states. Accordingly, the court granted the 

motion to strike, concluding there was an insufficient showing that Mr. Watters had 

knowledge of “what a prudent Wyoming lawyer would have done.” Having stricken Ms. 

Loepp’s expert, the court then granted summary judgment on all claims. Ms. Loepp timely 

appealed. 

DISCUSSION 

[¶10] The district court’s summary judgment order hinged on its concurrent, interlocutory 

order granting the motion to strike. We therefore review the order to strike first. 

Interlocutory orders merge into final orders, and a notice of appeal that names the final 

judgment is sufficient to support review of earlier orders. In re RR, 2021 WY 85, ¶ 66, 

492 P.3d 246, 264 (Wyo. 2021) (citations omitted); Kruckenberg v. Ding Masters, Inc., 

2008 WY 40, ¶ 11, 180 P.3d 895, 899 (Wyo. 2008) (citations omitted). 

I. W.R.E. 702 Governs the Admissibility of Expert Opinion in Legal Malpractice 

Cases. 

[¶11] W.R.E. 702 governs the admission of expert opinion testimony.

3

 Such testimony 

must meet the criteria of reliability and fitness. Bunting v. Jamieson, 984 P.2d 467, 471 

(Wyo. 1999) (“We now expressly adopt the analysis provided by Daubert [v. Merrell Dow 

Pharmaceuticals, Inc., 509 U.S. 579 (1993)] and its progeny as guidance for the Wyoming 

courts’ determination whether to admit or exclude expert testimony.”). The court acts as a 

gatekeeper for opinion testimony, and it must evaluate whether the expert’s opinion is 

sufficiently reliable such that it could assist the trier of fact. Id. (citation omitted). There 

are a variety of factors for courts to consider, depending on the type of expert and the 

3

 Wyoming Rule of Evidence 702 provides: 

A witness who is qualified as an expert by knowledge, skill, experience, training, or education 

may testify in the form of an opinion or otherwise if: 

(a) the expert’s scientific, technical, or other specialized 

knowledge will help the trier of fact to understand the evidence or 

to determine a fact in issue;

(b) the testimony is based on sufficient facts or data; 

(c) the testimony is the product of reliable principles and methods; 

and 

(d) the expert has reliably applied the principles and methods to 

the facts of the case.
4 

circumstances of the case. Seivewright v. State, 7 P.3d 24, 29–30 (Wyo. 2000) (citations 

omitted); Bunting, 984 P.2d at 471. In non-scientific cases, “the relevant reliability 

concerns may focus upon personal knowledge or experience.” Kumho Tire Co., Ltd. v. 

Carmichael, 526 U.S. 137, 150, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999); Hoy v. DRM, 

Inc., 2005 WY 76, ¶ 23, 114 P.3d 1268, 1280–81 (Wyo. 2005). The second criteria—

fitness—is one of relevance, requiring “the trial court to determine whether the testimony 

‘fits’ the disputed issues of fact.” Bunting, 984 P.2d at 472 (citation omitted). 

[¶12] Having an expert in a legal malpractice case is important because the plaintiff must 

prove: (1) the applicable standard of care; (2) the attorney’s conduct departed from that 

standard; which (3) was the legal cause of (4) the plaintiff’s injuries. E.g., Tozzi v. Moffett, 

2018 WY 133, ¶ 36, 430 P.3d 754, 764 (Wyo. 2018) (citing Moore v. Lubnau, 855 P.2d

1245, 1248 (Wyo. 1993)). Expert testimony is generally required to establish the standard 

of care, a breach of that standard, and whether that breach was a proximate cause of the 

plaintiff’s injuries. Id. (citations omitted). The expert is needed because “most lay people 

are not competent to pass judgment on legal questions.” Id. (citations omitted); Bevan v.

Fix, 2002 WY 43, ¶ 40, 42 P.3d 1013, 1026 (Wyo. 2002). 

[¶13] This case involves the admissibility of an out-of-state expert’s opinion about 

Wyoming legal practice. Appellees’ motion to strike Mr. Watters, and the district court’s 

order granting the motion, did not rely on W.R.E. 702’s two-part reliability and fitness 

analysis, but instead relied on Moore, 855 P.2d at 1248–51. Moore did not address the 

admissibility of expert opinion, but rather defined the applicable standard of care in legal 

malpractice cases, stating attorneys’ conduct should be based on the standard of care 

exercised by similar professionals in the jurisdiction. Id. at 1248–49 (“A lawyer is held to 

‘that degree of care, skill, diligence and knowledge commonly possessed and exercised by 

a reasonable, careful and prudent lawyer in the practice of law in this jurisdiction.’”

(citation omitted)). In Moore, we adopted a principle already applied in medical 

malpractice cases to hold that the standard of care in legal malpractice actions was not that 

of a local jurisdiction, meaning the community or county, but instead that of the entire State 

of Wyoming. Id. at 1249–50. We adopted a statewide standard based largely on licensing 

requirements. Id. at 1249 (“All attorneys must satisfy certain minimum requirements 

before being allowed to practice law in Wyoming. The level of knowledge required for 

admission to the bar does not vary from community to community.”). 

[¶14] Appellees’ motion to strike relied on the following excerpt from Mr. Watters’s 

deposition: 

Q: Thank you. Have you ever tried a case in Wyoming? 

A: No. 

Q: Have you ever litigated a case in Wyoming? 

A: No. 

Q: Where are you licensed to practice law? 
5 

A: Only in California. 

Q: Have you ever been admitted pro hac vice in any case in

Wyoming? 

A: No. 

. . . . 

Q: And so I assume you’ve never had a client in Wyoming? 

A: That is correct. 

At the motions hearing, Appellees asserted Mr. Watters could not opine on the standard of 

care, and that simply repeating the standard of care from the jury instruction was inadequate 

to demonstrate familiarity with that standard. The district court applied the so-called 

“locality rule” pertaining to the standard of care defined in Moore to conclude that Mr. 

Watters must necessarily have Wyoming expertise, if not licensure and admission. See 

e.g., Moore, 855 P.2d at 1249–50 (“The state is the more logical and generally accepted 

territorial limitation on the standard of care. . . . Accordingly, we hold that an attorney is 

held to that degree of care, skill, diligence, and knowledge commonly possessed and 

exercised by a reasonable, careful, and prudent lawyer in Wyoming.”); Tozzi, 2018 WY 

133, ¶ 36, 430 P.3d at 764; Scranton v. Woodhouse, 2020 WY 63, ¶ 25, 463 P.3d 785, 791 

(Wyo. 2020) (citation omitted). 

[¶15] We have had no occasion since Moore to evaluate whether or how that “locality 

rule” might interface with W.R.E. 702’s reliability and fitness analysis for the admissibility 

of expert opinions. Other jurisdictions have, concluding that local standard of care 

considerations do not alone constitute grounds to strike an expert. Courts instead employ 

the reliability and fitness analysis of Daubert and their respective W.R.E. 702 counterparts 

when considering whether to admit expert legal malpractice opinions. 

[¶16] The South Dakota Supreme Court, for example, considers the locality of an expert’s 

practice as one factor in its reliability and fitness analysis, but recognizes that in some cases

out-of-state attorneys can opine as to the standard of care particular to the alleged 

malpractice. Hamilton v. Sommers, 855 N.W.2d 855, 864–65 (S.D. 2014). Because a 

lawyer must exercise the competence and diligence normally exercised by a lawyer in 

“similar circumstances,” the finder of fact “must consider locality, custom, and special 

skills” in determining whether the standard of care was breached “where local rules, 

practices or customs are relevant to claimed breach.” Id. at 865 (citing 2 Ronald E. Mallen 

& Jeffrey M. Smith, Legal Malpractice § 20:2 (2014 ed.)). However, “in many cases 

locality is not relevant to the application of the standard of care.” Id. Furthermore, “in 

some areas of law, all the lawyers in a given state may lack the necessary skill, knowledge, 

and experience to handle a case properly.” Id. (quoting Dwain E. Fagerlund, Legal 

Malpractice: The Locality Rule and Other Limitations of the Standard of Care: Should 

Rural and Metropolitan Lawyers Be Held to the Same Standard of Care?, 64 N.D. L. Rev. 

661, 686–87 (1988)). In such cases, limiting testimony to in-state lawyers about the 
6 

standard of care “would serve to perpetuate an unacceptably low level of legal service.” 

Id. (quoting Fagerlund, supra ¶ 17, at 686–87). 

[¶17] A key tenet from the South Dakota opinion, and similar precedent around the 

country, is that courts should evaluate the admissibility of out-of-state malpractice experts 

in relation to the particular instance(s) of alleged malpractice. For example, in Walker v.

Bangs, 601 P.2d 1279, 1282 (Wash. 1979), the alleged malpractice arose from a personal 

injury case that involved a maritime claim. The Washington Supreme Court determined 

the out-of-state lawyer proffered as an expert was qualified based on his experience as a 

personal injury lawyer in maritime cases in federal court. Id. at 1282 (citation omitted). 

Less-specialized cases similarly illustrate the role that particular instances of alleged 

malpractice play in evaluating an expert’s reliability. In Biltmore Associates, L.L.C. v. 

Thimmesch, a California lawyer was retained as a legal malpractice expert in Louisiana, 

and he opined on 16 bases for legal malpractice. No. 2:02-cv-2405-HRH, 2007 WL 

5662124, at *2 (D. Ariz. Oct. 15, 2007). The opposing party moved to strike the expert. 

Id. at *1. The court evaluated the expert’s reliability for each basis of alleged malpractice 

before determining whether to grant the motion, leaving the possibility that the expert 

might be qualified to opine on some but not all of the malpractice theories. Id. at *2–4. 

[¶18] Other courts provide less comprehensive discussions than Biltmore Associates but 

nevertheless situate their analysis to the specific instances of alleged malpractice. In 

Hamilton v. Silven, Schmeits & Vaughan, an attorney’s review of the relevant rules and 

substantive law, and his corresponding conclusion that the applicable law was consistent 

between states, was sufficient to establish reliability in a malpractice action related to a 

personal injury action. No. 2:09-CV-1094-SI, 2013 WL 2318809, at *3 (D. Or. May 28, 

2013). Similarly, two ethics attorneys in Southern Gardens Citrus Processing Corp. v.

Barnes Richardson & Colburn, were qualified as experts to opine in a case involving 

international trade even though they were not in-state attorneys or international trade 

practitioners. No. 2:11-CV-377-38UAM, 2013 WL 5928676, at *2–3 (M.D. Fla. Nov. 1, 

2013). They were qualified based on their knowledge of the rules of professional 

responsibility where the alleged malpractice was related to notice to a client at a particular 

point in the representation. Id. 

[¶19] Where an expert is licensed or has practiced goes more to the weight than the 

admissibility of that expert’s opinion. S. Gardens Citrus Processing Corp., No. 2:11-CV377-38UAM, 2013 WL 5928676, at *3 (concluding a challenge to an out-of-state expert’s 

unfamiliarity with a particular subject matter “would be properly made through ‘[v]igorous 

cross-examination, presentation of contrary evidence, and careful instruction on the burden 

of proof,’ but not wholesale exclusion of their testimony.” (citing Daubert, 509 U.S. at 

596)); Sloan v. Urban Title Servs., Inc., 770 F. Supp. 2d 227, 237–38 (D. D.C. 2011) 

(recognizing knowledge and experience as expert qualifications and that the lack of in-state 

licensing rendered the “testimony [] less forceful and less compelling” but not, at that stage 

of the proceeding, “entirely unsupported or unreliable.”); Smith v. Haynsworth, Marion, 
7 

McKay & Geurard, 472 S.E.2d 612, 614 (S.C. 1996) (holding “the fact that [the expert] is 

not licensed to practice law in this state does not disqualify him as an expert” and citing 

precedent that defects in qualification go to weight rather than admissibility (citations 

omitted)); Walker, 601 P.2d at 1282 (“[A] lawyer not admitted to the Washington bar 

is not, per se, unqualified as an expert witness in a legal malpractice action in this state. . . . 

[T]he fact that [the expert] is not licensed to practice in this state should go to the weight, 

not the admissibility of his testimony, assuming he is otherwise qualified.”). Vigorous 

cross-examination, presentation of contrary evidence, and careful instructions on the 

burden(s) of proof are the traditional and appropriate means of attacking “shaky but 

admissible evidence.” Bunting, 984 P.2d at 471 (quoting Daubert, 509 U.S. at 596); 

Seivewright, 7 P.3d at 31; Wise v. Ludlow, 2015 WY 43, ¶¶ 53–54, 346 P.3d 1, 15 (Wyo. 

2015).

[¶20] Another common criteria for evaluating the reliability of an out-of-state legal 

malpractice expert is the degree to which the expert familiarized themself with pertinent 

state law. Hamilton, 2013 WL 2318809, at *3 (“Both federal and state courts allow outof-state attorneys to testify as experts as long as they familiarize themselves with the 

relevant state law.”). The federal district court for the District of Wyoming explained this 

principle in some depth: 

The Court finds that Mr. Barton and Ms. Dubofsky are well 

qualified and have familiarized themselves sufficiently with 

Wyoming law to testify regarding the legal standard of care in 

similar cases in Wyoming. In general, the courts have allowed 

experts in malpractice cases to become familiar with the 

applicable standard of care through research. See, e.g., Harvey 

v. U.S., 2006 WL 1980623, *4 (D. Colo. 2006) (holding that a 

medical expert may become familiar with the applicable 

standard of care through knowledge, skill, experience, training, 

or education); Brett v. Berkowitz, 706 A.2d 509, 517–18 (Del. 

Supr. 1998) (holding that an out-of-state expert must 

demonstrate that he has familiarized himself with the local 

standard of care); Jeffers, Mangels & Butler v. Glickman, 234 

Cal. App. 3d 1432, 1443 (Cal. App. 2d. 1991) (holding that 

private study and contact with other professionals in a field 

may qualify an attorney as an expert). Although Plaintiff’s 

experts’ limited experience in Wyoming courts may be fertile 

ground for cross-examination, it is not a deficiency that 

prevents them from serving as expert witnesses in this case. 

Hjelle v. Ross, Ross & Santini, Civil Action No. 2:07-cv-00006-WDM-KLM, 2007 WL 

5328994, at *1 (D. Wyo. Dec. 19, 2007). 
8 

[¶21] Building on Moore, the federal district court further reasoned: 

The standard of care for attorneys in Wyoming has been 

developed through rules and decisions rendered by the courts, 

not by immersion in the local legal culture. Moore v. Lubnau,

855 P.2d 1245, 1248–49 (Wyo. 1993) (holding that the 

standard of care in Wyoming is “that degree of care, skill, 

diligence and knowledge commonly possessed and exercised 

by a reasonable, careful and prudent lawyer in the practice of 

law in this jurisdiction”). Indeed, the practice of law in general 

is based on study and comparison of statutes and caselaw, and 

lawyers are trained to—and frequently must—learn the law of 

jurisdictions in which they are not licensed. In a case like this, 

in addition to the fairly ordinary task of studying Wyoming law 

on the standard of care, out-of-state attorneys like Mr. Barton 

and Ms. Dubofsky have an additional task, which is to study 

and understand local practice standards. The Court is satisfied 

that both Mr. Barton and Ms. Dubofsky have the skills and 

experience to undertake the necessary study so as to render 

expert opinions here. 

Id.; see also San Francisco Residence Club, Inc. v. Baswell-Guthrie, 897 F. Supp. 2d 1122, 

1192–93 (N.D. Ala. 2012) (finding that where an out-of-state expert has done little apply 

or learn the standards for practice in a jurisdiction, they may not be qualified to opine); 

Glaser v. Pullman & Comley, LLC, 871 A.2d 392, 401 (Conn. App. Ct. 2005) (finding an 

attorney could offer opinion testimony despite being licensed outside the state but 

excluding him because of an inadequate showing he had more than a casual understanding 

of the standard of care); Mallen & Smith, Legal Malpractice § 37:141 (2022 ed.) 

(evaluating cases qualifying out-of-state attorneys as experts based on study and research).

[¶22] W.R.E. 702 governs the admissibility of expert opinion in legal malpractice cases. 

Where a lawyer is licensed or practices is a factor to consider in that analysis. There may 

be instances where an out-of-state lawyer has reliable expertise on matters not unique to 

Wyoming, such as uniform laws, federal matters, and rules that are consistent across 

jurisdictions.4 Hamilton, 2013 WL 2318809, at *3–4; Walker, 601 P.2d at 1282; Russo v.

Griffin, 510 A.2d 436, 439 (Vt. 1986). There also may be instances where the standard of 

4 Secondary authority also recognizes the standard of care is not necessarily limited by state jurisdiction, 

depending on the area of law at issue. Dobbs Law of Torts § 720 (April 2024 update) (“The usual 

geographic scope of a lawyer’s standard of care is the state in which the lawyer practices” but “[i]n many 

areas of practice, a national standard seems entirely appropriate.”); Restatement (Third) of the Law 

Governing Lawyers § 52 cmt. b (March 2024 update) (commenting that the standard of care is that of 

lawyers “undertaking similar matters in the relevant jurisdiction (typically, a state)” but that in some cases 

there is a national standard of care, not limited by state jurisdictions).
9 

care is unique to Wyoming but an out-of-state attorney might nevertheless qualify as an 

expert based on their research into the local standards. Hjelle, 2007 WL 5328994, at *1. 

In all cases, a court should tailor its reliability analysis to the circumstances of the case, 

looking closely at the nature of the alleged malpractice. Generalized or provincial 

conclusions must be avoided. See Biltmore Assocs., 2007 WL 5662124, at * 2. 

[¶23] We therefore instruct the court on remand to analyze the reliability of Mr. Watters’s 

opinion under W.R.E. 702, considering the nature of each of Ms. Loepp’s malpractice 

claims and whether those claims are so state-specific that Mr. Watters could not assist the 

trier of fact. 

II. Summary Judgment Was Dependent on the Order Striking the Expert and No 

Other Basis Appears in the Record to Affirm. 

[¶24] We review a summary judgment de novo, in the same light as the district court, 

using the same materials and following the same standards. W. Am. Ins. Co. v. Black Dog 

Consulting Inc., 2023 WY 109, ¶ 7, 538 P.3d 973, 975–76 (Wyo. 2023) (citations omitted). 

We examine the record from the vantage point most favorable to the non-moving party, 

and we give that party the benefit of all favorable inferences that may fairly be drawn from 

the record. Id. We may affirm a summary judgment order on any basis in the record. Id.

[¶25] The district court granted summary judgment on all claims through a short order 

stating: 

1. Defendants’ Motion for Summary Judgement on Count 1 

legal malpractice was dependent on this Court also granting 

Defendants’ Motion to Strike Plaintiff’s Legal Malpractice 

Expert excluding Michael Watters opinion testimony 

regarding the malpractice claim asserted by Plaintiff. 

Defendants argued that without Michael Watters’s expert 

testimony, Plaintiff could not prove the elements of legal 

malpractice. 

2. By separate order, this Court granted Defendants’ motion. 

Therefore, because Michael Watters’ testimony will be 

excluded, the Plaintiff cannot prove the elements of legal 

malpractice and no disputed issues of material fact concerning 

legal malpractice remain. As such, this motion must be 

granted. 
10 

Because the court’s summary judgment decision was dependent on its order striking Mr. 

Watters, and because we reversed the court’s order to strike, we cannot affirm the summary 

judgment order as presented. 

[¶26] However, the district court dismissed all claims, not just the legal malpractice 

claims, for lack of a malpractice expert. Ms. Loepp also alleged breach of contract, breach 

of fiduciary duty, and gross negligence. Because we may affirm a summary judgment 

order on any basis in the record, W. Am. Ins. Co., 2023 WY 109, ¶ 7, 538 P.3d at 975–76, 

we briefly consider whether summary judgment might be warranted on any other grounds 

Appellees presented to the court. Specifically, Appellees asserted all claims in the matter 

should be dismissed because (1) the statute of limitations barred all claims; (2) the 

summary judgment order in the Loepp–Scott litigation (that preceded settlement of that 

litigation) was not a final appealable order giving rise to damages; and, (3) one component 

of damages, for emotional distress, was not recoverable.5

[¶27] We first consider Appellees’ argument that the two-year statute of limitations for 

the legal malpractice claim, Wyo. Stat. Ann. § 1-3-107(a)(i)(A)–(B), controlled all claims 

in this case pursuant to Prokop v. Hockhalter, 2006 WY 75, ¶¶ 14–15, 137 P.3d 131, 135–

36 (Wyo. 2006), and that for summary judgment purposes, the limitations period began 

April 30, 2020, the date of the summary judgment hearing in the Loepp–Scott litigation. 

Ms. Loepp responded that the district court did not issue a ruling after that April 30 hearing

until June 22, 2020, and that she filed her complaint in this action within two years of that 

date. Moreover, her various alleged instances of malpractice, including billing and postsummary judgment matters, continued until September 22, 2020. Most importantly, Ms. 

Loepp demonstrated that Appellees appeared to expressly withdraw their statute of 

limitations defense during discovery: 

Interrogatory Response No. 1. Please state with specificity any 

evidence you have to support any of the defenses raised in your 

Answer to the Complaint. 

. . . . 

6. [“]Defendants assert that the case is barred by the two-year 

statute of limitations set forth in W.S. §1-3-107.[”] 

Defendants will withdraw this defense. It appears that the case 

has been timely filed. 

5 Appellees also asserted judgment should be granted because Mr. Watters could not opine on causation for 

one of the several alleged bases for legal malpractice—not filing the breach of contract action first. Having 

reversed the district court’s order striking Mr. Watters, we decline to evaluate this portion of the summary 

judgment proceedings further.
11

At minimum, Appellees agreed at the summary judgment hearing there were disputed

issues of material fact regarding the statute of limitations. Construing the facts in favor of 

Ms. Loepp, the statute of limitations provides no basis on which we can affirm summary 

judgment for Appellees.

[¶28] Next, we consider Appellees’ assertion that Ms. Loepp could not have been 

damaged through summary judgment in the Loepp–Scott litigation because that summary 

judgment order was not a final appealable order. Because this narrow argument does not 

apply to the full breadth of Ms. Loepp’s malpractice claims, including overbilling, it also 

does not afford a basis by which we can affirm the summary judgment ruling in Appellees’ 

favor.

[¶29] Appellees also asserted that emotional distress damages are not available in legal 

malpractice cases, pointing to Long-Russell v. Hampe, 2002 WY 16, ¶ 11, 39 P.3d 1015, 

1021 (Wyo. 2002). At the summary judgment hearing, however, Appellees conceded that 

emotional distress damages are recoverable through legal malpractice in certain 

circumstances, such as if the conduct was willful and wanton. Counsel and the court then 

discussed whether Ms. Loepp needed to present evidence of willful and wanton conduct 

before deciding the issue and whether emotional distress damages were also recoverable 

through Ms. Loepp’s claim for gross negligence. Counsel concurred Ms. Loepp could 

present such evidence before deciding the issue, although counsel believed the evidence 

would not show such misconduct. After reviewing the record and construing the facts in 

favor of Ms. Loepp, we cannot affirm summary judgment on this basis either.

CONCLUSION

[¶30] Having determined that W.R.E. 702 governs the admissibility of expert opinion in 

legal malpractice cases and that where a proffered malpractice expert is licensed or 

practices is just one factor to consider in the W.R.E. 702 analysis, we reverse and remand

for further proceedings on the motion to strike. Because we find no other basis on which 

to affirm the related summary judgment decision, we also reverse and remand the court’s 

summary judgment order for further proceedings consistent with this opinion.