Prokop v. Hockhalter

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 25, 2006
• Docket: 04-8086
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS July 25, 2006 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

ROBERT J. PROKOP, M .D.,

Plaintiff-Appellant,

v. No. 04-8086 (D.C. No. 03-CV-202-D) TIM HOCKH ALTER; GERI (D . W yo.) H O CK H ALTER ; TO M M cJU N KIN; TIM BERC REEK OUTFITTERS,

Defendants-Appellees.

OR D ER AND JUDGM ENT *

Before H E N RY, BR ISC OE, and M U RPH Y, Circuit Judges.

Plaintiff Robert J. Prokop, M .D., brought this pro se diversity action for

breach of contract, negligence, and intentional infliction of em otional distress

after an unsatisfactory hunting experience provided by defendant Timbercreek

Outfitters, which is a licensed outfitter under W yo. Stat. Ann. § 23-2-407, and

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. individual licensed professional hunting guides. He appeals the district court’s

entry of summary judgment in favor of defendants, which was based on its

determination that the action is barred by the two-year W yoming statute of

limitations applicable to professional services, W yo. Stat. Ann. § 1-3-107(a).

The district court’s order raised two questions of W yoming law which

appeared to be determinative of Dr. Prokop’s case: whether the two-year statute

of limitations applies to actions against outfitters and professional hunting

guides and, if the two-year period does apply, does it apply to both contract and

tort claims. See Prokop v. Hockhalter, No. 05-170, 2006 W L 1756031, at *1

(Wyo. June 28, 2006). There was no controlling W yoming precedent on these

issues, so this court asked the Wyoming Supreme Court to answer the two

questions pursuant to W yo. R. App. P. 11.

That court agreed to answer the questions and has now issued its decision,

holding that “the two-year statute of limitations set forth in W yo. Stat. Ann.

§ 1-3-107(a) applies to actions against licensed outfitters and professional guides”

and that if the “cause of action . . . arises from an act, error or omission in the

rendering of licensed or certified professional services, the two-year statute of

limitations . . . applies regardless of whether the claim is pled in tort or contract.”

Prokop, 2006 W L 1756031, at *5-*6. This ruling is dispositive of the case.

Dr. Prokop’s hunting outing ended on September 26, 2001, when he

decided that a combination of factors made the hunt too difficult for him to

-2- continue. At that time, he knew that he had not harvested a big horn sheep and

that he w as dissatisfied with the professional guide’s services. He w as also aware

that the professional guide had led him over difficult terrain, allegedly resulting

in re-injury to his knee and severe pain on his way back to base camp.

“W yoming is a discovery state in which the statute of limitations is triggered

when the plaintiff knows or has reason to know of the existence of a cause of

action . . . . Under the discovery rule as adopted in W yoming, the statute of

limitations will typically run from the date of the incident.” Reed v. Cloninger,

131 P.3d 359, 365-66 (W yo. 2006) (quotation and citations omitted). The

limitations period begins to run when a “plaintiff knows or has reason to know

that []he has suffered damage due to another’s wrongful act,” even though “the

consequences . . . are not fully known until later.” James v. M ontoya, 963 P.2d

993, 995 (W yo. 1998).

Under W yoming law , Dr. Prokop was required to commence his lawsuit

within two years of September 26, 2001, the date he ended the hunt. On that date,

he knew or had reason to know of the existence of his causes of action. He did

not file his complaint, however, until October 1, 2003. W e therefore AFFIRM the

district court’s entry of summary judgment in favor of defendants. Dr. Prokop’s

-3- “Request for Reconsideration of Oral Argument” is denied. The panel’s order to

show cause, arising from Dr. Prokop’s delayed filing of his W yoming Supreme

Court brief, is discharged.

Entered for the Court

Robert H. Henry Circuit Judge

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