Prokop v. Hockhalter ( 2006 )

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not binding precedent, except under the doctrines of law of the case, res judicata,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
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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
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“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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