text:
    2002 WY 144
    Theresa McCalla RINO, Appellant (Plaintiff), v. Katherine L. MEAD, Mead & Mead, Attorneys at Law; and James T. Sorensen, Appellees (Defendants). Theresa McCalla Rino, Appellant (Plaintiff), v. Katherine L. Mead, Mead & Mead, Attorneys at Law, and James T. Sorensen, Appellees (Defendants).
    Nos. 01-108, 01-165.
    Supreme Court of Wyoming.
    Sept. 27, 2002.

      C.M. Aron of Aron and Hennig, LLP, Laramie, Wyoming, Representing Appellant.
    Richard E. Day and Susan Chapin Stubson of Williams, Porter, Day & Neville, P.C., Casper, Wyoming, Representing Appellee Katherine L. Mead and Mead & Mead, Attorneys at Law.
    Mark W. Gifford, Casper, Wyoming, Representing Appellee James T. Sorensen.
    Before HILL, C.J., and GOLDEN, LEHMAN, and VOIGT, JJ., and DONNELL, D.J.

       Chief Justice at time of oral argument.

   VOIGT, Justice.

[11] These consolidated appeals are challenges to the district court's grant of summary judgment to an attorney and an accountant in a professional malpractice case and the district court's further denial by inaction of a subsequent motion to reconsider. We affirm the summary judgment in favor of the accountant because there are no genuine issues of material fact as to whether he made any professional representations that were relied upon by the appellant, and he is entitled to a judgment as a matter of law. However, we reverse the summary judgment granted to the attorney because she did not establish a prima facie case entitling her to summary judgment.

FACTS

[12] In October 1996, J. Douglas McCalla (MecCalla) filed for divorce from Theresa McCalla, now Theresa Rino (Rino) McCalla was represented by attorney John Stark (Stark). Rino hired Katherine L. Mead (Mead) to represent her. With the assistance of a mediator, McCalla and Rino settled child custody and support issues, leaving for trial only the issue of property and debt division.

[13] Shortly before the date set for trial, McCalla, Rino, Stark, and Mead met to attempt to work out the property and debt issues. Also in attendance was appellee James T. Sorensen (Sorensen), who had acted as the McCallas' accountant during their marriage. Sorensen brought with him to the meeting a compiled financial statement he recently had prepared for the McCallas to enable them to extend a bank credit line. That compiled financial statement was used at the meeting as the basis for a division of the marital assets and debts between McCal-la and Rino. A settlement was reached and Stark advised the district court to cancel the trial.

[14] After the settlement meeting, a written settlement agreement was prepared. Rino refused to sign the agreement, terminated Mead's employment, and obtained new counsel. McCalla then filed a motion to enforce the agreement. After a hearing, an order was entered enforcing the settlement. The terms of the agreement were incorporated into the Decree of Divorce filed May 1, 1998.

[15] On September 23, 1999, Rino filed a professional malpractice complaint against Mead and Sorensen. Specifically, the complaint alleged that Mead had violated the following professional duties owed to Rino:

1. A duty of loyalty to her interests.

2, A duty to be truthful to her, and to honestly and in good faith keep her fully advised of the facts and law applicable to her legal situation in the divorce case, and of the preparations the attorneys had made for the trial set to commence on September 29, 1997.

3. A duty to investigate the applicable facts, particularly the valuation of the husband's interest in his law firm, and to evaluate the effect of those facts on the legal proceedings.

4. A duty to prepare for the trial set to commence on September 29, 1997, including but not limited to the duty to prepare the expert witnesses she allegedly had retained.

5. A duty to prepare for, advise Rino with regard to, and participate in, the mediation conducted on September 24, 1997, including but not limited to the duty to be conversant with the relevant financial facts which were in dispute between the parties, and a duty to negotiate zealously on behalf of Rino.

[16] The complaint alleged that Sorensen had violated the following professional duties owed to Rino:

1. A duty of loyalty to her interests when he purported to act on her behalf.

2. A duty to be truthful and unbiased with respect to the valuation of the husband's interest in his law firm.

3. A duty to provide accounting information that was truthful and represented accurately what it purported to show about the parties' assets and liabilities.

[T7] Finally, Rino's complaint alleged that, as a result of the malpractice of Mead and Sorensen, Rino received more than $400,000.00 less than she should have received in the property division.

[18] Sorensen and Mead separately filed motions for summary judgment. Mead argued that the district court's enforcement of the settlement agreement collaterally es-topped Rino from later contending that she had not agreed to the settlement. Soren-sen's primary argument was that Rino knew the compiled financial statement was never intended by Sorensen as a representation of the value of the properties listed. The district court granted both motions and these appeals followed.

ISSUES

[19] The parties do not agree as to what issues are before this Court. To more fully present the parties' viewpoints, we will set forth the issues as they have been stated by them. Rino lists the issues as follows:

1. Whether it is error to grant summary judgment in favor of a lawyer sued for malpractice when there is [a] dispute of fact as to the following errors by the attorney:
a. Failure to hire an expert accountant for trial as promised.
b. Failure to provide advice or explanation of misleading financial documents with regard to the client's husband's law firm, showing the husband's interest in the law firm to have virtually zero value.
c. Failure to hire an attorney expert for trial to testify to the value of the husband's work in progress, as the attorney had promised.
d. Failure to obtain information about the client's husband's law firm financials and work in progress.
Failure to assert a claim for alimony as promised.
Failure to be prepared to try the case.
Settlement of the case without the client's authority.
Incorrect legal advice concerning the client's right to a share of her husband's retirement account accumulated during the marriage.
2. Whether the court can disregard the opinions of the client's expert because they are based on assuming the hypothetical facts of the client's allegations of malpractice.
3. Whether the court can disregard the deposition testimony of the client's experts because the transcripts were filed of record by the opposing parties rather than the client.
4. Whether a court can rely on an expert opinion that there was no legal malpractice in a divorce case, when the expert considered only material from the divorce case while failing to consider any of the disputed facts in the malpractice claim itself,
5. Whether a client has to offer contradictory expert testimony when the lawyer's expert has given no opinion that there was an absence of malpractice.
seo ok
6. Where both parties' experts agree it is accountant malpractice to present and use false and misleading financial information, whether the court can grant summary [Judgment] on the factual issue of whether the financial information was misleading.
7. Whether it is error for the trial court to deny [W.R.C.P.] 60 relief when the court was incorrect with regard to the timely filing of the plaintiff's expert information in opposition to summary judgment.

[110] Mead contends that the sole issue before this Court is whether the district court properly entered summary judgment in favor of Mead when Rino failed to submit appropriate expert affidavits or other testimony to establish a genuine issue of material fact to counter the affidavit of Mead's expert that Mead acted in a reasonable, careful and prudent manner with respect to her representation of Rino and did not fall below the applicable standard of care.

[111] Sorensen presents the accountant malpractice issue as being whether summary judgment was appropriate where Rino failed to submit expert testimony to counter the testimony of Sorensen's expert that Sorensen complied in all respects with the applicable standard of care, where there was uncontro-verted evidence that Sorensen effectively disclaimed any representation regarding the accuracy of the information presented in the compiled financial statement, and where Rino admitted that she did not rely upon the financial statement compiled by Sorensen.

STANDARD OF REVIEW

[T12] Rulings on summary judgment motions are governed by the following language found in W.R.C.P. 56(c):

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Our standard for the appellate review of a summary judgment was recently reiterated in Hasvold v. Park County School Dist. No. 6, 2002 WY 65, 111, 45 P.3d 635, 637-38 (Wyo.2002) (quoting Unicorn Drilling, Inc. v. Heart Mountain Irr. Dist., 3 P.3d 857, 860 (Wyo.2000)):

"Summary judgment is proper only when there are no genuine issues of material fact and the prevailing party is entitled to judgment as a matter of law.... We review a summary judgment in the same light as the district court, using the same materials and following the same standards. 'We examine the record from the vantage point most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences which may fairly be drawn from the record." ... Summary judgment serves the purpose of eliminating formal trials where only questions of law are involved.... We review a grant of summary judgment by deciding a question of law de novo and afford no deference to the district court's ruling on that question....
... A material fact is any fact that, if proved, would have the effect of establishing or refuting an essential element of a claim or defense asserted by a party...."

Summary judgment is a drastic remedy because it denies a trial to the non-moving party. Coones v. F.D.I.C., 848 P.2d 788, 795 (Wyo.1993). The initial burden is on the movant to make a prima facie showing that there are no genuine issues as to any material fact and that he is entitled to a judgment as a matter of law. Hozian v. Weathermon, 821 P.2d 1297, 1298 (Wyo.1991) (quoting Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 710 (Wyo.1987)). If the movant makes such a showing, the burden then shifts to the party opposing the motion to present specific facts showing the existence of genuine issues of material fact. Hozion, 821 P.2d at 1298 (quoting Boehm, 748 P.2d at 710).

[113] Over the years, this Court has repeatedly stated that summary judgments are not favored, especially in negli-genee actions. See, for example, Roitz v. Kidman, 913 P.2d 431, 432 (Wyo.1996); Hozian, 821 P.2d at 1298; and Dubus v. Dresser Industries, 649 P.2d 198, 201 (Wyo.1982). This rule is particularly true in malpractice actions. DeHerrera v. Memorial Hospital of Carbon County, 590 P.2d 1342, 1345 (Wyo.1979) (quoting Holl v. Talcott, 191 So.2d 40, 46 (Fla.1966), cert. denied, 232 So.2d 181 (Fla.1969)). The mixed questions of law and fact usually involved in a negligence action concerning the existence of a duty, the standard of care and proximate cause " 'are ordinarily not susceptible to summary adjudication" Hozian, 821 P.2d at 1298 (quoting Kobielusz v. Wilson, 701 P.2d 559, 560 (Wyo.1985)). Whether a particular defendant's actions have violated the required duty is generally a question for the jury. Bancroft v. Jagusch, 611 P.2d 819, 821 (Wyo.1980). The existence of a duty is, however, a question of law, " 'making an absence of duty the surest route to summary judgment in negligence actions. " Schuler v. Community First Nat. Bank, 999 P.2d 1303, 1306 (Wyo.2000) (quoting Daily v. Bone, 906 P.2d 1039, 1043 (Wyo.1995)); Krier v. Safeway Stores 46, Inc., 943 P.2d 405, 408 (Wyo.1997). One consequence of the fact that summary judgments are not favored in negligence actions is that, once granted, they are subject to "more exacting serutiny" on appeal. Woodard v. Cook Ford Sales, Inc., 927 P.2d 1168, 1169 (Wyo.1996).

[¥14] Expert opinion evidence is not usually sufficient to support a motion for summary judgment because the weight to be given such testimony is generally an issue for the trier of fact. Western Sur. Co. v. Town of Evansville, 675 P.2d 258, 262 (Wyo.1984) (quoting Castleberry v. Collierville Medical Associates, Inc., 92 F.R.D. 492, 4983 (W.D.Tenn.1981)). That is especially true of an affidavit that contains opinions and conclusions. Western Sur. Co., 675 P.2d at 262. The movant cannot prevail "merely by asserting a position on an ultimate fact in the supporting affidavit." Greenwood v. Wierdsma, 741 P.2d 1079, 1087 (Wyo.1987). On the other hand, a summary judgment based upon expert opinion affidavits may be appropriate "when the showing made by the movant is sufficient and uncontroverted." Conway v. Guernsey Cable TV, 713 P.2d 786, 788 (Wyo.1986) (quoting Mealey v. City of Laramie, 472 P.2d 787 (Wyo.1970)). The most likely scenario for that to occur is where the only issue is one requiring expert opinion because the case is of a highly technical nature, such that laypersons could not understand it. Western Sur. Co., 675 P.2d at 268. In such case, if the expert opinion testimony is not controverted, summary judgment may be appropriate. Id. While it is true that in a malpractice case the standard of care and any violation thereof generally must be established through expert testimony, "the nonmoving plaintiff has no obligation to present expert testimony at the pretrial stage, unless the movant establishes that no material questions of fact exist with respect to the allegations in the complaint." Metzger v. Kalke, 709 P.2d 414, 422 (Wyo.1985).

PROFESSIONAL MALPRACTICE

[115] Much of Wyoming's professional malpractice law has developed in the arena of medical malpractice.

{§{16] This Court has imported that law into the field of legal malpractice:

After establishing a duty, the plaintiff in a medical malpractice case
"** "has the obligation to establish (1) the accepted standard of medical care or practice, (2) that the doctor's conduct departed from the standard, and (8) that his conduct was the legal cause of the injuries suffered." ...'
... We conclude that the test applicable in our medical malpractice cases should also apply in the analogous situation of a legal malpractice claim."

Moore v. Lubnau, 855 P.2d 1245, 1248 (Wyo.1993) (quoting Metzger, 709 P.2d at 421 and Harris v. Grizzle, 625 P.2d 747, 751 (Wyo.1981)).

[T17] The general standard of care for lawyers 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." Moore, 855 P.2d at 1248. As with medical malpractice, establishment of the actual standard adhered to by a "reasonable, careful and prudent" lawyer must typically be accomplished through expert testimony. Peterson v. Scorsine, 898 P.2d 382, 388 (Wyo.1995); Moore, 855 P.2d at 1249. However, expert testimony is not required where the common sense and experience of a layperson are sufficient to establish the standard of care. Meyer v. Mulligan, 889 P.2d 509, 516 (Wyo.1995) (quoting Moore, 855 P.2d at 1248).

[118] This Court has not previously been called upon to say whether these same principles apply to allegations of accountant malpractices. We cannot see why they should not.

As in the case of lawyers, doctors, architects, engineers, and others engaged in rendering professional services for compensation, it is implied in all contracts for the employment of public accountants that they will render their services with that degree of skill, care, knowledge, and judgment usually possessed and exercised by members of that profession in the particular locality, in accordance with accepted professional standards and in good faith without fraud or collusion. While not insurers against damage, it is generally ree-ognized that accountants may be held liable to clients for damages resulting from fraud, misconduct, or negligence in their professional undertaking.

1 Am.Jur.2d Accountants § 19 at 548 (1994) (footnote omitted); see also Hydroculture, Inc. v. Coopers & Lybrand, 174 Ariz. 277, 848 P.2d 856, 860 (1992).

[§¥19] Just as with other professionals, a question has been raised as to whether an allegation of accountant malpractice sounds in tort or in contract.

Since a client's malpractice action against an accountant is necessarily based to some degree on a violation of the parties' contract, either by malfeasance or nonfeasance, some jurisdictions adhere to the view that an action for accountant malpractice is maintainable only on a breach of contract theory. However, the courts have more frequently recognized that accountants may be held liable to clients for malpractice in actions founded both on contract and tort.

1 Am.Jur.2d Accountants, supra, § 20 (footnote omitted). Some courts consider the action to be one in contract if the allegation is a violation of a specific contract term, but in tort if the allegation is a violation of a duty imposed by law as a result of the contractual relationship. See for example, Thomas v. Cleary, 768 P.2d 1090, 1092 n. 6 (Alaska 1989); Billings Clinic v. Peat Marwick Main & Co., 244 Mont. 324, 797 P.2d 899, 908 (1990); and DOIT, Inc. v. Touche, Ross & Co., 926 P.2d 835, 841-42 (Utah 1996). When the cause of action for professional negligence sounds in tort, the elements are "(1) the duty of the professional to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of that duty; (8) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence." Linck v. Barokas & Martin, 667 P.2d 171, 178 n. 4 (Alaska 1983).

[120] We conclude that the standards as to professional malpractice that we have formerly adopted for medical malpractice, and have extended to legal malpractice, should apply equally in regard to allegations of accountant malpractice. Nothing has been shown to this Court to suggest that the practice of accounting, or the relationship between accountant and client, requires a different standard. After establishing a duty based on the accountant-client contract, the plaintiff in an accounting malpractice case has the obligation to establish (1) the accepted standard of accounting care or practice, (2) that the accountant's conduct departed from that standard, and (8) that the accountant's conduct was the legal cause of the injuries suffered.

DISCUSSION

LEGAL MALPRACTICE

{[§21] In its decision letter, the district court concluded that summary judgment in Mead's favor was appropriate because (1) Mead's submittals established a prima facie case that she was not negligent; (2) the issues were such that expert testimony was required to establish the standard of care and any violation thereof; and (8) Rino had not countered Mead's expert's testimony. We reverse because we find that Mead's submittals, including the affidavit of Mead's expert, did not establish that there were no genuine issues of material fact, and, thus, the burden did not shift to Rino to produce expert testimony. Havens v. Hoffman, 902 P.2d 219, 222-23 (Wyo.1995) (quoting Roybal v. Bell, 778 P.2d 108, 112-14 (Wyo.1989)).

[122] The affidavit of Mead's expert does contain some facts in substantiation of its conclusion that Mead's conduct did not fall below the standard of care. For instance, the affidavit cites to correspondence that shows Mead had considered the value of McCalla's law practice, as well as the issue of alimony. Beyond that, however, the affidavit does not counter Rino's other factual allegations that Mead failed to hire accountant and attorney experts as promised, failed to prepare for the mediation session, failed to prepare for the trial, and failed to give correct advice as to the treatment of McCalla's retirement account in the property division. With these issues of material fact remaining, Mead's expert's opinion that Mead "acted in a reasonable, careful and prudent manner with respect to her representation of" Rino is simply premature.

[T23] The first rule for the entry of a summary judgment is that there must not remain any genuine issues as to any material facts. Indeed, the non-moving party's obligation to counter a motion for summary judgment with materials beyond the pleadings does not arise until the movant has made a prima facie showing that there are no such issues. Hozian, 821 P.2d at 1298 (quoting Boehm, 748 P.2d at 710). That showing was not made in this case. It cannot be said, as a matter of law, that Mead's conduct did not violate the standard of care when what Mead may or may not have done remains controverted.

[12%] Before advancing to the malpractice allegations against Sorensen, we must address another substantial issue that was raised in Mead's summary judgment motion, was ruled upon in the district court's decision letter, was mentioned in the final order, but has not been addressed in this appeal. Mead contended in her motion that, under the doctrine of collateral estoppel, Rino was barred from relitigating issues in this case that had been decided when the district court enforced the settlement agreement. The collateral estoppel doctrine prohibits the relitigation of issues that were actually and necessarily involved in a prior action between the same parties. Kahrs v. Board of Trustees for Platte County School Dist. No. 1, 901 P.2d 404, 406 (Wyo.1995). Courts are to consider four factors in deciding whether the doctrine applies:

"(1) whether the issue decided in the prior adjudication was identical with the issue presented in the present action; (2) whether the prior adjudication resulted in a judgment on the merits; (8) whether the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication; and (4) whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the pri- or proceeding."

Id. (quoting Slavens v. Board of County Com'rs for Uinta County, 854 P.2d 683, 686 (Wyo.1993)) (emphasis in original).

[4125] In its decision letter, the district court concluded that collateral estoppel applied as to some issues, but not others:

Collateral estoppel, then, precludes [Rino's] claims that Mead agreed to the settlement without Rino's consent, and that she entered into the settlement under duress because Rino was unprepared for trial. Collateral estoppel does not pre[vlent Rino from claiming that Mead gave her bad advice about alimony, property values and retirement because those claims made no difference at the settlement enforcement hearing.

[126] The decision letter was dated De- - cember 7, 2000, and was filed on December 11, 2000. Some wrangling over the form of the order followed. On February 20, 2001, the district court judge signed the Order Granting Defendant Mead's Motion for Summary Judgment. That order contains the following "finding and conclusion:"

4. Judge Guthrie of the Ninth Judicial District heard the motion to enforce settlement and found that a settlement was reached on September 24, 1997, that the settlement terms were "inherently fair and equitable," that there was no evidence of fraud or undue influence in reaching the settlement, and that [Rino] assented to the settlement. [Rino] did not appeal Judge Cuthrie's decision.

The order then granted summary judgment to Mead "as to all claims."

[127] We presume that the intent of the cited portion of the order was to grant summary judgment to Mead on the issue of collateral estoppel as outlined in the decision letter. Inasmuch as Judge Guthrie's decision was not appealed, and inasmuch as neither Mead nor Rino have in this appeal presented argument for or against the district court's application of collateral estoppel, the district court's ruling on that issue remains the law of the case.

[128] Reversal of the summary judgment granted to Mead on the grounds set forth above forecloses any need to discuss Rino's appeal of the denial by inaction of her W.R.C.P. 60(b) motion raised as her seventh issue on appeal.

Accountant ManpracticE

[¥29] In response to interrogatories propounded by Sorensen, Rino identified Sorensen's alleged acts of professional negligence as:

(1) At the settlement conference he presented a financial statement of ... McCal-la's purported net worth that was knowingly false, or which he should have known was false. Among other things it reflected a net negative value of [MeCalla's] partnership interest in his law firm, and generally misrepresented [MeCalla's] assets and liabilities. (2) He had a conflict of interest in that he purported to act in [Rino's] interest as his client, when he apparently was acting in [MeCalla's] interest and the interest of [McCalla's] law firm. (8) He misrepresented values of assets and the tax effects and valuations for divoree property division purposes, and in doing so he gave legal advice for which he was not qualified. ©

[180] The undisputed facts developed in the material supporting and opposing Soren-sen's motion for summary judgment include the following:

1. During September 1997, Sorensen prepared a compiled financial statement for the McCallas' use in extending a bank credit line.

2. Prior to issuing the compiled financial statement, Sorensen delivered to Rino a client representation letter that indicated in part that the MeCallas were "responsible for the fair presentation of the statements of financial condition...." McCalla signed the letter, but Rino refused.

3. Prior to issuing the compiled financial statement, Sorensen delivered to Rino an engagement letter that provided, in part, as follows:

We will perform the following service(s):
1. We will compile, from information you provide, the statement of financial condition of J. Douglas & Theresa McCal-la as of September 5, 1997 in accordance with Statements on Standards for Accounting and Review Services issued by the American Institute of Certified Public Accountants. We will not audit or review such financial statements. Our report on the financial statements is presently expected to read as follows:
We have compiled the accompanying statement of financial condition of J. Douglas & Theresa McCalla as of September 5, 1997, in accordance with Statements on Standards for Accounting - and Review Services issued by the American Institute of Certified Public Accountants.
A compilation is limited to presenting in the form of financial statements information that is the representation of the individuals whose financial statements are presented. We have not audited or reviewed the accompanying statement of financial condition and, accordingly, do not express an opinion or any other form of assurance omit.

Our engagement cannot be relied upon to disclose errors, irregularities, or illegal acts, including fraud or defaleations, that might exist. However, we will inform you of any such matters that come to our attention unless they are clearly inconsequential.

4. Rino signed the engagement letter, acknowledging that it was in accordance with her understanding.

5. During the mediation session, Soren-sen reminded McCalla and Rino that they each had their own valuation expert.

6. In her deposition testimony, Rino admitted that, at the mediation session, she did not rely on the valuation of McCalla's interest in his law firm contained in the compiled financial statement because she believed it to be "very inaccurate."

7. Rino was aware that she needed her own valuation expert and had designated such an expert as a witness.

8. Rino was aware that, after her separation from MecCalla, Sorensen had continued to act as MceCalla's accountant.

[1381] It is clear that Rino knew that Sorensen had prepared the compiled financial statement in the limited fashion described in the disclaimers. Sorensen's expert established that, in doing so, Sorensen had not violated the professional standard of care. Rino did not counter that opinion with an expert opinion to the contrary. In fact, Rino's expert testified during his deposition that he had not formed an opinion as to whether or not Sorensen had complied with the applicable standard of care.

[432] The compiled financial statement plus the accompanying client representation letter and engagement letter effectively disclaimed any representation by Sorensen as to the accuracy of the values contained therein. Any reliance by Rino on the values set forth in the compiled financial statement would have been unreasonable. Davis v. Wyoming Medical Center, Inc., 934 P.2d 1246, 1251 (Wyo.1997) (quoting Lincoln v. Wackenhut Corp., 867 P.2d 701, 703 (Wyo.1994)). Further, Rino admitted in her deposition testimony that she did not rely on those values. At the mediation session, Sorensen reminded both McCalla and Rino that each needed his or her own valuation expert. Rino testified that she knew she needed her own valuation expert and that she believed the value of MceCalla's interest in his law firm to be much more than the value shown in the compiled financial statement. Indeed, Rino had designated an expert to testify as to the value of the marital estate.

[133] In her appellate brief, Rino contends that, by granting summary judgment to Sorensen, the district court was, in effect, deciding the fact question of whether the information in the compiled financial statement was misleading. That is not the case. Whether or not that information was misleading does not matter; the undisputed facts show that Rino knew that Sorensen was not representing the information as being accurate, and Rino did not rely on its accuracy. In other words, the accuracy of the information was not a material fact as it relates to the summary judgment motion.

[134] The district court was correct in granting Sorensen's motion for summary judgment. There are no genuine issues of material fact and Sorensen is entitled to judgment as a matter of law. Sorensen's expert established the professional standard of care and gave an opinion based on the undisputed facts that Sorensen did not breach that standard. Rino did not counter those opinions with a contrary expert opinion.

CONCLUSION

[185] Summary judgment should not have been granted to attorney Mead because there remain genuine issues of material fact as to Mead's conduct. Because those issues of material fact remain, the burden did not shift to Rino to produce expert testimony to counter Mead's expert. Summary judgment was, however, properly granted to accountant Sorensen because no genuine issues of material fact remain, Sorensen established through expert opinion testimony that he did not breach the professional standard of care, and Rino presented no expert evidence to the contrary.

[T 36] The summary judgment in favor of Mead is reversed, the summary judgment in favor of Sorensen is affirmed, and the case is remanded to the district court. Such remand does not include those issues determined by the district court to be barred by the doctrine of collateral estoppel.

      . This focus on the tort principles of negligence should not detract from the continued recognition that the attorney-client relationship is a contractual one. In Jackson State Bank v. King, 844 P.2d 1093, 1095-96 (Wyo.1993), we declined to extend the comparative negligence statute to a legal malpractice claim because such a claim is based on contract. Similarly, in Long Russell v. Hampe, 2002 WY 16 T11, 39 P.3d 1015, 1020 (Wyo.2002), we held that a plaintiff in a legal malpractice case based on allegations of negligence is not entitled to present a claim for emotional distress damages, which is a tort remedy. In addition, a cause of action against an attorney may sound in contract where the allegation is the violation of a specific contract term, rather than the violation of a professional duty imposed by law. See the related discussion as to accountant malpractice.

      . By quoting this source, we are not adopting a locality rule for testing accountant malpractice.

      . "Under the 'law of the case' doctrine, a court's decision on an issue of law made at one stage of a case becomes a binding precedent to be followed in successive stages of the same litigation." Triton Coal Co. v. Husman, Inc., 846 P.2d 664, 667 (Wyo.1993).


source: Caselaw Access Project

author: LEHMAN, Justice.

license: Public Domain

text:
    2002 WY 145
    Debra BAILEY, Appellant (Petitioner), v. STATE of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division, Appellee (Respondent).
    No. 01-248.
    Supreme Court of Wyoming.
    Sept. 30, 2002.

      Robert Anderson of Robert O. Anderson, P.C., Riverton, WY, Representing Appellant.
    Hoke MacMillan, Attorney General; Gerald L. Laska, Senior Assistant Attorney General; and David L. Delicath, Assistant Attorney General, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of expedited case conference.

   LEHMAN, Justice.

[T1] This is an appeal from a determination of the State of Wyoming, Office of Administrative Hearings (OAH) denying neck and left knee related worker's compensation benefits. We affirm.

ISSUES

[42] Appellant, Debra Bailey (Bailey), sets forth the following issues:

Was the decision of the Administrative Hearings Office arbitrary, capricious, or otherwise unlawful within the meaning of W.S. § 16-3-114(c)@ii)(A) in ruling that Appellant was not eligible for a Temporary Total Disability award?
Was the Office of Administrative Hearings' decision unsupported by substantial evidence in light of the fact that substantial expert evidence existed to support a contrary ruling as required by W.S. § 16-3-114(c)@)(E)?

Appellee, State of Wyoming ex rel. Wyoming Worker's Compensation Division (Division), phrases the issue on appeal as:

Whether the Hearing Examiner erred in determining that Appellant failed to prove every element of her claim for benefits for her alleged neck and knee injuries.

FACTS

[13] On July 18, 1999, Bailey leaped into the back end of a company pickup truck while working as a flagger/maintainer for S & L Industrial within a construction zone near Marbleton, Wyoming due to an oncoming vehicle. Immediately after this work accident, Bailey felt pain "all over" but most significantly in her right hand. Later that evening and into early the next morning, Bailey felt pain in her neck and experienced a headache. A few days after this incident, Bailey also began feeling pain in her left knee. Subsequently, Bailey received medical care for these injuries and was taken off work. Ultimately, Bailey was required to undergo surgery on the little finger on her right hand and her left knee. Bailey was also scheduled to have surgery on her neck, but this surgery did not then occur because Bailey declined at the last moment. Later, this surgical procedure was completed.

[T4] Prior to the work accident, Bailey had injured her left knee in 1992 requiring surgery. Hardware, which was placed in her knee during this surgery, was never subsequently removed contrary to medical advice. In addition, eighteen years earlier, Bailey injured her neck in Tampa, Florida when the car in which she was riding was rear-ended by another vehicle. Bailey experienced episodic neck pain from 1995 through 1999. In 1995, Bailey had an MRI performed on her neck. Finally, Bailey was involved in another automobile accident in May of 1999. Bailey's employer was notified prior to her employment that she had pre-existing back and neck problems and had been recently involved in an automobile accident.

[15] After hearing, the OAH found that Bailey's little finger injury was a compensa-ble injury. However, the OAH determined that Bailey's neck and left knee injuries were not compensable and denied coverage for those two claims. Bailey sought review of this decision in the district court, which affirmed the decision of the OAH. This appeal followed.

STANDARD OF REVIEW

[16] Our standard of review when reviewing administrative agency action was recently clarified in the case of Newman v. State ex rel. Workers' Safety and Compensation Div., 2002 WY 91, 49 P.3d 163 (Wyo.2002). In that case, we reiterated that when considering an appeal from a district court's review of agency action, we accord no special deference to the district court's conclusions and review the case as if it had come directly before this court from the administrative agency. Newman, at 17 (citing French v. Amax Coal West, 960 P.2d 1023, 1027 (Wyo.1998)). We further recognized the applicability of Wyo. Stat. Aun. § 16-8-114(e) which provides:

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
(i) Compel agency action unlawfully withheld or unreasonably delayed; and
i) Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
(B) Contrary to constitutional right, power, privilege or immunity;
(C) In exeess of statutory jurisdiction, authority or limitations or lacking statutory right;
(D) Without observance of procedure required by law; or
(E) Unsupported by substantial evi-denee in a case reviewed on the record of an agency hearing provided by statute.

Newman, at 19. In addition, we held that this court is required to review the entire record in making its ultimate determination on appeal. Newman, at 119 and 1% 24-26.

[17] Moreover, this court provided clarification in Newman of the applicable standard of review for the benefit of litigants, counsel, and district courts. After thorough consideration, this court adopted the reasoning utilized in Russell v. Workmen's Compensation Appeal Board (Volkswagen of America), 121 Pa.Cmwlth 436, 550 A.2d 1364, 1365 (1988), in instances where both parties submit evidence at the hearing below. Specifically, this court stated:

On this reasoning, we hold the substantial evidence test is the appropriate standard of review in appeals from WAPA contested case proceedings when factual findings are involved and both parties submit evidence. We further hold, when only the party with the burden of proof submits evidence in the contested case proceeding and that party does not ultimately prevail, the arbitrary or capricious standard governs the judicial review of that agency decision.

Newman, at 122. This standard must be applied regardless of which party appeals from the agency decision.

[T8] Additionally, we indicated in Newman, at 112 (quoting State ex rel. Workers' Safety and Compensation Div. v. Jensen, 2001 WY 51, 110, 24 P.3d 1183, T10 (Wyo.2001)), that the substantial evidence test to be applied is as follows:

In reviewing findings of fact, we examine the entire record to determine whether there is substantial evidence to support an agency's findings. If the ageney's decision is supported by substantial evidence, we cannot properly substitute our judgment for that of the ageney and must uphold the findings on appeal. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions. It is more than a scintilla of evidence.

[19] In State ex rel. Workers' Safety and Compensation Div. v. Garl, 2001 WY 59, 19, 26 P.3d 1029, 19 (Wyo.2001), we further recognized that:

The interpretation and correct application of the provisions of the Wyoming Worker's Compensation Act are questions of law over which our review authority is plenary. Collicott [v. State ex rel. Workers' Safety and Compensation Div., 2001 WY 35], 1 4 [20 P.3d 1077, « 4 (Wyo.2001)]. Conclusions of law made by an administrative agency are affirmed only if they are in accord with the law. Id. We do not afford any deference to the agency's determination, and we will correct any error made by the agency in either interpreting or applying the law. Id.

[4 10] The de novo review by this court of the application of law made by the administrative agency is not to be confused with the arbitrary-and-capricious standard of review also enumerated in Newman. Newman contemplates that even when the factual findings are found to be sufficient under the substantial evidence test, this court may be required to apply the arbitrary-and-capricious standard as a "safety net" to catch other agency action which prejudiced a party's substantial right to the administrative proceeding or which might be contrary to the other WAPA review standards. A purely demonstrative listing is provided of situations which could warrant the consideration of the arbitrary-and-capricious standard in addition to the substantial evidence test Newman, at 1283. However, this appeal presents no such unique cireum-stances. In accord, see Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998).

DISCUSSION

[111] Bailey argues that the decision of the OAH is not supported by substantial evidence and that the OAH erred as a matter of law in rendering its determination. Specifically, Bailey asserts that given the testimony of Dr. Hume and evidence that prior to the work accident she was able to perform her work responsibilities, substantial evi-denee exists to support a ruling that Bailey's knee and neck injuries were compensable under the Wyoming workers' compensation system. Bailey contends that she submitted adequate evidence to meet her burden of proof that the work accident materially aggravated her admitted pre-existing conditions to her knee and neck and that she should have been awarded worker's compensation benefits concerning these injuries.

[112] In making our review, we apply the substantial evidence test as required by our recent opinion in Newnan detailed above. This review criteria is applicable in this case because the OAH was required to make factual findings in this instance and both Bailey and the Division submitted evidence at the time of the administrative hearing held before the OAH.

[113] Review of the entire record discloses that Bailey was injured on July 18, 1999 while working in a construction zone when she was forced to jump into the bed of a company pickup truck by an oncoming vehicle. Immediately after this event, Bailey felt pain "all over" but most particularly in her right hand. Bailey testified that she felt pain in her neck and experienced a headache that evening and into early the next morning. However, Shannon Garrett, one of Bailey's friends and co-workers with whom Bailey had spent the evening of the work accident, testified that the only complaint made by Bailey concerned her right hand and right arm from the bicep to the wrist. Ms. Garrett further testified that she only recognized that Bailey's hand was "very swollen" during this evening.

[114] The following morning when she went to work, Bailey reported the work accident to her employer by informing her supervisor, Charlotte Brinkerhoff. Ms. Brink erhoff testified that, at that time, Bailey only complained about injury to her right hand and that she personally recognized only that Bailey's right hand was swollen. Ms. Brink erhoff then took Bailey to the local medical clinic to receive medical care.

[115] Bailey testified at the hearing that when she was examined at the local medical clinic she was primarily concerned with an injury to her right hand. Rich Anderson, the physician's assistant who treated Bailey, testified via deposition and two separate affidavits. Mr., Anderson stated that Bailey chiefly complained to him about injury to her hand and that he did not have any independent recollection of Bailey complaining of any injury to her head, neck, shoulders, back, or knee. Mr. Anderson's notes also only reflected treatment was received by Bailey for her hand. No other complaints or injuries were indicated in these notes. Ms. Brinker-hoff was present during this examination and confirmed the fact that Bailey only complained about injury to her hand.

[T16]) Bailey freely admits that she had previously injured her left knee and neck. As indicated above, prior to the work accident Bailey had injured her left knee in 1992 when kicked by a horse. This injury required surgery to her knee and the hardware, which was placed in her knee during surgery, was never removed although recommended by a medical professional.

[117] Eighteen years before the work accident, Bailey injured her neck in Tampa, Florida when the car in which she was riding was rear-ended by another vehicle. Bailey had also experienced episodic neck pain from 1995 through 1999. In 1995, Bailey had an MRI performed on her neck. Bailey was involved in another automobile accident in May of 1999. This accident resulted in Bailey's head being thrown against the windshield with such force that the windshield was cracked.

[118] Bailey's medical records admitted at the time of hearing evidence Bailey's previous difficulties with her knee and neck. Treatment notes of Dr. Alvis Forbes concerning his examination of Bailey on August 14, 1995, stated that Bailey complained of pain in her left knee following a tibial plateau fracture of three years ago and experienced catching, grabbing, and pain along the lateral aspect of that knee. These notes also expressed that Bailey had experienced pain in her neck since a car accident several years ago. Dr. Forbes then recommended surgery be performed on the left knee. Dr. Forbes, in an August 28, 1995 treatment notation, also noted that a recent MRI taken of Bailey's neck showed a significant C5-6 dise herniation.

[T 19] Bailey later saw Dr. Forbes in January of 1997, for left knee pain when a bale of hay fell on that knee. He then indicated that Bailey had chronic knee pain with a little bone piece off the lateral edge of the lateral condyle. Bailey again saw Dr. Forbes in July 1997, and January of 1998, for neck pain. On each of these occasions, Dr. Forbes stated that Bailey suffered from recurrent neck pain at the C5-6 location concerning a previously experienced relatively large disc herniation. In 1997, Dr. Forbes prescribed a Medrol dosepak for Bailey's neck and, in 1998, scheduled a series of epidural steroid injections to her neck that were never administered to Bailey. Following Bailey's automobile accident of May 1999, Dr. Forbes wrote that Bailey was seeing him in follow-up of her cervical dise problem with increased symptoms of cervical radiculopathy. Again, Dr. Forbes prescribed a Medrol dosepak. On July 9, 1999, just nine days before the work accident, Dr. Forbes again saw Bailey and prescribed another Medrol dosepak.

[T20] Considerable medical testimony was also presented at the time of the hearing through previously recorded depositions. Dr. Peter Rork of Orthopaedics of Jackson Hole testified that Bailey did not tell him about any recent knee injury but rather related to him that the injury occurred eight years ago. Dr. Rork also indicated that he could not give an opinion about whether the events that occurred during the work accident caused or contributed to the condition of Bailey's knee. However, it was Dr. Rork's impression that the degenerative changes noted during the 1997 surgery to Bailey's knee stemmed from her 1992 fracture of the knee.

[T21] Dr. James Champa of Orthopaed-ics of Jackson Hole testified that Bailey's C5-6 herniation pre-existed the work accident and that he had no opinion about the cause of this herniation. Dr. Geoffrey Skene also of Orthopaedics of Jackson Hole testified that comparison of the MRI reports of 1995 and 1999 showed little difference, if any, in Bailey's neck condition. Dr. Skene could also not offer an opinion about the cause of Bailey's herniated disk. Further, Bailey admitted that in 1994 she had applied for social security disability benefits related to the difficulties she experienced with her knee and neck.

[122] Bailey relies heavily on the testimony of Dr. Mary Hume of Orthopaedics of Jackson Hole in support of her contention that her neck injuries were compensable. However, although Dr. Hume testified that the work accident could have been an event that may have caused a significant inflammatory response wherein Bailey went from sporadic pain to constant pain, she recognized that comparison of the 1995 and 1999 MRIs showed that the herniation in Bailey's neck had not changed and that there were any number of things including, but not limited to, a car accident or any other "jarring activity" that could have also caused such a significant inflammatory response. Dr. Hume was unable to determine between the 1999 automobile accident and the work accident which was the more likely event to have exacerbated Bailey's neck condition. The only thing that Dr. Hume could state with certainty was that Bailey's medical conditions were caused by some sort of trauma with uncertain etiology. Therefore, we do not find Dr. Hume's testimony as conclusive as proffered by Bailey.

[123] The record does reflect evidence contrary to the ultimate decision made by the OAH. For instance, Bailey testified that the symptoms she experienced after the work accident were different than those symptoms that she had experienced previous to that event. She further testified at length that although she experienced difficulty with her knee and neck for an extended period prior to the work accident, she was always able to perform her required work tasks and various other tasks related to her personal life. Bailey's daughter and husband also testified that after the work accident, Bailey was more limited with respect to her normal personal life activities. However, this evidence alone is inadequate to convince us that the determination of the OAH was not supported by sufficient evidence or against the clear weight of the evidence. Given the entirety of the record before us, we conclude that the findings of fact and conclusions of law reached by the OAH were based on substantial evidence and were within established law. None of the evidence presented conclusively shows a causal link between the work accident and Bailey's knee and neck injuries.

[124] We have long recognized that the burden of proof is on the claimant to prove that her work accident, not her preexisting condition, caused an injury. Dan's Supermarket v. Pate, 2001 WY 104, 117, 33 P.3d 1121, 1 17 (Wyo.2001); Corman v. State ex rel. Workers' Compensation Div., 909 P.2d 966, 970 (Wyo.1996). A preexisting condition is noncompensable unless the claimant can prove that the work-related injury materially aggravated the preexisting injury. Dan's Supermarket, at 1 17; Brees v. Gulley Enterprises, Inc., 6 P.3d 128, 132 (Wyo.2000). See also Franks v. State ex rel. Workers' Safety and Compensation Div., 2002 WY 77, 113, 46 P.3d 876, I 13 (Wyo.2002).

[125] The issue of the existence of a preexisting condition is indistinguishable from the central factual issue-did the injury "arise out of and occur in the course of employment?" If the injury resulted from a preexisting condition, rather than from the work-related accident, no compensable injury occurred. Consequently, when there is a conflict in the evidence as to this question, the claimant must prove by a preponderance of the evidence that the injury was work-related and not preexisting., Dan's Supermarket, at 1 19, quoting Corman, 909 P.2d at 969. Simply put, Bailey failed to prove by a preponderance of the evidence that her knee and neck injuries were work related and not preexisting. The medical and other evidence, even when viewed in a light most favorable to Bailey, is inconclusive. Therefore, because the evidence presented does not support Bailey's claim for benefits with respect to her knee and neck injuries, the OAH properly denied those claims.

[T26] Finally upon our de novo review, we hold that the denial of temporary total disability benefits to Bailey by the OAH under the above circumstances was in accord with the law as expressed under the applicable provisions of the Wyoming Worker's Compensation Act.

CONCLUSION

[127] We affirm the order of the OAH denying benefits to Bailey concerning her knee and neck injury claims.

      . For ease, this event will be hereinafter described as the "work accident."

      . In making this holding, this court, specifically abrogated previous case law which required this court to review the record in an administrative action by examining only that evidence that favors the prevailing party, allowing every favorable inference, while omitting consideration of any conflicting evidence. This previously required type of review was aptly characterized by this court as the "prevailing parties' evidence" concept. Newman, at % 25.

      . "For example, the administrative record may be replete with evidence supporting the decision, and yet the agency may have willfully discounted credible evidence, refused to admit certain testimony or documentary exhibits, or failed to provide findings of fact or conclusions of law." Newman, at 1 23.

      . Bailey explained this fact at hearing by claiming that she had already decided to visit Ortho-paedics of Jackson Hole, where she had previously sought medical care with respect to those complaints unrelated to her hand.


text:
    2002 WY 146
    Jeffrey DOLES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Defendant).
    No. 01-172.
    Supreme Court of Wyoming.
    Oct. 1, 2002.

      James P. Castberg, Sheridan, WY, Representing Appellant.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; and D. Michael Pauling, Senior Assistant Attorney General, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE and VOIGT, JJ.

       Chief Justice at time of expedited case conference.

   LEHMAN, Justice.

[T1] After entering a plea of guilty to conspiring to deliver a controlled substance, pursuant to a plea agreement, appellant took leave of the court's jurisdiction. Upon his apprehension approximately two years later, he was sentenced. Appellant seeks to have the conviction set aside claiming he was denied counsel until he first appeared in the district court; for the court's denial of his request to withdraw his plea; and for a sentence he claims was contrary to the original plea agreement. We affirm.

ISSUES
[¥ 21
1. Is the fact that appellant did not have counsel in the county court where he waived his preliminary hearing reversible error?
2. Did the court err by denying appellant's motion to withdraw his plea of guilty?
3. Was imposition of a consecutive sentence contrary to the plea agreement?

FACTS

[18] In June 1998, appellant was charged with conspiring to deliver methamphetamine. Following his arrest, he appeared in the Circuit Court for Natrona County where he eventually executed a Waiver of Preliminary Hearing. The record provides little information regarding what transpired in the circuit court, however the order binding appellant over to the district court indicates he appeared pro se. At his arraignment in district court, the public defender was appointed to represent appellant. A couple of months after counsel was appointed, appellant filed a pro se Motion to Dismiss the charges based upon the cireuit court's failure to appoint counsel. The record contains no disposition of that motion.

[T4] A jury trial was eventually scheduled for January 4, 1999. On the morning of trial, appellant entered a plea of guilty pursuant to a plea agreement. Appellant was then apparently released on bond and disappeared. The record is silent for some two years until, in March of the year 2001, a Notice of Setting of sentencing was filed. Prior to sentencing, appellant's counsel filed a Motion to Withdraw Plea of Guilty. At the sentencing hearing, after argument, the court denied that motion and proceeded to sentence appellant. The State did recommend a term of months consistent with the original plea agreement and further argued it should be imposed to be served consecutively with another sentence. The court did, in fact, impose the sentence to be served consecutively.

DISCUSSION

Issue 1: Denial of counsel in circuit court

[T5] We find little merit in appellant's argument for two reasons. First, the record does not support his conclusion that he was denied counsel. It is appellant's burden on appeal to make an affirmative showing of error. Gregory v. Sanders, 635 P.2d 795, 801 (Wyo.1981). Here, the only thing we are offered are his claims that he requested counsel. Transcripts from the circuit court are conspicuous in their absence, and this court can decide issues only on the basis of the record presented. Bird v. State, 901 P.2d 1123, 1132 (Wyo.1995).

[16] The second reason is Wyoming law, which clearly indicates a waiver of this issue upon his plea of guilty. In Davila v. State, 831 P.2d 204 (Wyo.1992), the appellant appeared without counsel at his preliminary hearing and was bound over to the district court. In the district court, his retained counsel filed a motion to dismiss the information on the ground that he was denied counsel at his preliminary hearing. The district court denied the motion, and the appellant subsequently entered a no contest plea to a burglary charge. On appeal, this court said:

Davila's claim that he was improperly denied counsel at his preliminary hearing is nonjurisdictional. Denial of the right to representation does not implicate "the very power of the state to bring the defendant into court to answer the charge brought against him," Blackledge [v. Perry ], 417 U.S. [21] at 30, 94 S.Ct. [2098] at 2103, 40 L.Ed.2d [628] at 636 [(1974)], and would not have prevented a trial. The district court had jurisdiction to proceed to trial and, in fact, had it granted Davila's motion to dismiss, the state could have refiled and proceeded with a new preliminary hearing and trial. As a result, Davila's plea of nolo contendere waived his claim that he was denied counsel at his preliminary hearing.

Davila, at 206. See also Duffy v. State, 837 P.2d 1047, 1051 (Wyo.1992). It is apparent that any error regarding denial of counsel that may have occurred in the circuit court was waived by appellant's guilty plea.

[T7] Finally, appellant asserts the court erred by not considering appellant's pro se Motion to Dismiss based upon his denial of counsel. The issues surrounding that motion find a similar fate to the underlying claim upon his plea of guilty.

Issue 2: Did the court err in denying appellant's motion to withdraw plea of guilty

[T8] Appellant's motion alleged his guilty plea was the product of ineffective assistance of counsel. The standard for reviewing a claim of ineffectiveness was recently outlined in Reyna v. State, 2001 WY 105, ¶ 19, 33 P.3d 1129, ¶ 19 (Wyo.2001):

"When reviewing a claim of ineffective assistance of counsel, the paramount determination is whether, in light of all the cireumstances, trial counsel's acts or omissions were outside the wide range of professionally competent assistance. Herdt v. State, 891 P.2d 793, 796 (Wyo.1995); Starr v. State, 888 P.2d 1262, 1266-67 (Wyo.1995); Arner v. State, 872 P.2d 100, 104 (Wyo.1994); Frias v. State, 722 P.2d 135, 145 (Wyo.1986). The reviewing court should indulge a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Herdt, at 796; Starr, at 1266; Arner, at 104; Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984).
Under the two-prong standard articulated in Strickland and Frias, an appellant claiming ineffective assistance of counsel must demonstrate on the record that counsel's performance was deficient and that prejudice resulted. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Starr, at 1266; King v. State, 810 P.2d 119, 125 (Wyo.1991) (Cardine, J., dissenting); Campbell v. State, 728 P.2d 628, 629 (Wyo.1986); Frias, 722 P.2d at 145. In other words, to warrant reversal on a claim of ineffective assistance of counsel, an appellant must demonstrate that his counsel failed to 'render such assistance as would have been offered by a reasonably competent attorney' and that 'counsel's deficiency prejudiced the defense of [the] case" Lower v. State, 786 P.2d 346, 349 (Wyo.1990). 'The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' Strickland, 466 U.S. at 686, 104 S.Ct. at 2064,"

(Quoting Chapman v. State, 2001 WY 25, ¶ 6, 18 P.3d 1164, ¶ 6 (Wyo.2001) and Grainey v. State, 997 P.2d 1085, 1088-39 (Wyo.2000).) "The district court does not abuse its discretion by denying a motion made prior to sentencing to withdraw a guilty plea if the requirements of W.R.Cr.P. 11 are complied with at the time the plea is accepted. We will not disturb the district court's decision so long as it could have reasonably concluded as it did." Stout v. State, 2001 WY 114, ¶ 15, 35 P.3d 1198, ¶ 15 (Wyo.2001) (footnote and citations omitted).

[¶ 9] Once again we are led to this discussion by conclusions made in appellant's brief and an affidavit of his mother who states that she overheard appellant's attorney tell him that if he did not accept the plea agreement, the judge would be upset. Appellant concludes in his brief that he did not receive effective assistance of counsel because she had refused to file a motion to dismiss the charges based upon the circuit court's refusal to appoint counsel. As a result, appellant had to file the motion pro se, and it was never resolved by the court. Even assuming appellant did request his counsel to file such a motion, it would be difficult to find her ineffective for failing to do so given the dearth of factual or legal bases for such a motion.

[¶10] The second basis is premised upon appellant's counsel telling him that the judge would be upset if he did not accept the proposed plea agreement. From that alleged discussion, appellant claims he was coerced into entering a plea of guilty. Appellant does not contend the court failed to comply with W.R.Cr.P. 11.

[T11] In Frame v. State, 2001 WY 72, 29 P.3d 86 (Wyo.2001), this court discussed a motion to withdraw a guilty plea filed before sentencing, where the defendant alleged that he was forced to plead guilty. As in this case, the claim of coercion in Frame was portrayed on appeal as an issue of ineffective assistance of counsel, and there was no contention that the district court failed to comply with W.R.Cr.P. 11. This court suggested the following analysis:

A motion to withdraw a guilty plea, such as that filed here, is governed by W.R.Cz.P. 32(d) which provides that if a motion for withdrawal of a guilty plea is made before sentence is imposed, the court may permit withdrawal upon a showing by the defendant of any fair and just reason. A defendant has no absolute right to withdraw a plea of guilty before sentence is imposed, and where the strictures of W.R.Cr.P. 11 have been met, and the defendant intelligently, knowingly, and voluntarily entered into his plea of guilty, the district court's decision to deny such a motion is within its sound discretion. Burdine v. State, 974 P.2d 927, 929-30 (Wyo.1999); 3 Charlee Alan Wright, Federal Practice and Procedure: Criminal 2d § 538 (1982 and Supp.2001). Seven factors have been suggested as pertinent to the exercise of the court's discretion: (1) Whether the defendant has asserted his innocence; (2) whether the government would suffer prejudice; (8) whether the defendant has delayed in filing his motion; (4) whether withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was present; (6) whether the original plea was knowing and voluntary; and (7) whether the withdrawal would waste judicial resources. 3 Wright, Federal Practice and Procedure: Criminal 2d § 538 (Supp.2001);, United States v. Black, 201 F.3d 1296, 1299-1300 (10th Cir.2000).

Frame, at ¶ 7.

[¶ 12] Regarding the seven factors guiding the district court's discretion, it may be said from this record: (1) appellant's only assertion of innocence was his original plea of not guilty; he confessed to the crime when interviewed after his arrest; (2) the government would likely suffer prejudice from a plea of withdrawal because the crime involved an informant and occurred three years earlier; (8) appellant delayed filing his motion to withdraw plea of guilty more than two years after his original plea of not guilty; (4) such a long delay would substantially inconvenience the court and would have the effect of rewarding appellant's flight from justice; (5) there is nothing to suggest appointed counsel's assistance was inadequate or unavailable; (6) the original guilty plea was accepted after a thorough colloquy establishing its knowing and voluntary character; and (7) withdrawal of the plea would obviously squander not only judicial resources but the time and efforts of the prosecutor and defense attorney.

[¶ 13] It is evident that appellant failed to supply the district court with any fair and just reason for withdrawing the guilty plea, and the record manifestly demonstrates compliance with Rule 11 in accepting the plea. Denying the motion was a sound exercise of the court's discretion.

Issue 3; Did the court err by imposing a consecutive sentence

[¶ 14] On appeal, this court gives great deference to the district court's findings of fact regarding the existence and terms of a plea agreement:

It is the district court-as the trier of fact-who must assess the credibility of witnesses and the weight to be given their testimony, in deciding whether there existed a valid plea agreement and its terms and conditions. People v. Navarroli, 121 Ill.2d 516, 118 Ill.Dec. 414, 416, 521 N.E.2d 891, 893 (1988). Whether a plea agreement exists dovetails with our own standard of review for questions of fact:
We assume that evidence in favor of the successful party is true, disregarding entirely the evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every favorable inference which may be reasonably and fairly drawn from it. "So long as there exists substantial evidence supporting the trier of fact's determination, we will not second guess it on appeal." Richardson v. Green, 644 P.2d 778, 779 (Wyo.1982). See also Anderson v. Bauer, 681 P.2d 1316, 1319 (Wyo.1984).

Clouse v. State, 809 P.2d 791, 794 (Wyo.1991).

[¶ 15] At the sentencing hearing, the transcript of the change of plea hearing, which included the discussions of the plea agreement, was not in the file. Appellant, pressing the advantage of his two-year hiatus, asserted: "If there's a record of the transcript to be found, the record will reflect that the State of Wyoming agreed not to recommend a consecutive sentence. That was part of the plea agreement. That was the only reason I entered into the agreement." The court, however, was not swayed by appellant's recall, and had a copy of the change of plea transcript prepared. Within that transcript, it became obvious that there was no agreement on the part of the State not to recommend a consecutive sentence. Appellant, therefore, now argues that because the State did not specifically reserve the right to argue for a consecutive sentence, it violated the agreement.

[T16]) In Tilley v. State, 912 P.2d 1140, 1142 (Wyo.1996), this court said:

The sentencing judge has discretion to determine whether sentences shall be served consecutively or concurrently. Loper v. Shillinger, 772 P.2d 552, 553 (Wyo.1989). We have also said that "[sleparate penalties will ordinarily be exacted upon convie-tions for distinct offenses." Kennedy v. State, 595 P.2d 577, 577 (Wyo.1979); see also Pearson v. State, 866 P.2d 1297, 1299 (Wyo.1994).

There was nothing in appellant's plea agreement that purported to alter this principle. The agreement did not require the court to impose a concurrent sentence, nor did it require the prosecutor to refrain from asking for a consecutive sentence.

[117] The district court correctly found that there was no agreement that the sentence was to be concurrent, and the terms of the agreement show that the prosecutor was not required to refrain from asking for a consecutive sentence. Consequently, it was permissible for the prosecutor to argue for a consecutive sentence, and the agreement was not breached by the State in any respect. The district court committed no error in imposing a consecutive sentence.

CONCLUSION

[T18] For the reasons set forth above, appellant's conviction is affirmed in all respects.

      . At the time of appellant's appearance, circuit courts had not been established. The Circuit Court of the Seventh Judicial District, Natrona County, State of Wyoming, succeeded the Natro-na County Court July 1, 2000. 2000 Wyo. Sess. Laws, ch. 24, § 9 provides: "All judicial files, records, and dockets belonging to or appertaining to the office of the county court judges and county courts of the counties shall be filed in the appropriate office of the circuit court and safely kept therein, or may be stored and shall in all respects constitute records of the circuit court."