                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         JUL 27 2001
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk


 ROBERT AUSTIN BARTLETT,
                                                        No. 00-8075
               Plaintiff-Appellant,
          v.                                           (D. Wyoming)
 KENNETH S. COHEN,                               (D.C. No. 00-CV-0028-J)

               Defendant-Appellee.




                           ORDER AND JUDGMENT           *




Before HENRY , BRISCOE , and MURPHY , Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without

oral argument.

      On February 10, 2000, Robert Austin Bartlett filed this diversity action

against his former attorney, Kenneth S. Cohen. He alleged that Mr. Cohen was


      *
        This order and judgment is not binding precedent, except under the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.
negligent in representing him in divorce proceedings in Teton County, Wyoming.

He further asserted that Mr. Cohen engaged in fraudulent conduct and wrongfully

abandoned him. Mr. Bartlett’s complaint asserted claims for breach of contract,

breach of fiduciary duty, fraud, and negligent misrepresentation. As this is a

diversity case, we must apply the substantive law of Wyoming.         See Marathon

Ashland Pipe Line LLC v. Maryland Cas. Co.         , 243 F.3d 1232, 1236 (10th Cir.

2001).

         The district court granted the defendant Mr. Cohen’s motion for summary

judgment. It reasoned that Mr. Bartlett’s claims were barred by the two-year

statute of limitations set forth in Wyo. Stat. § 1-3-107(a) for “cause[s] of action

arising from an act, error[,] or omission in the rendering of licensed or certified

professional or health care services.” Wyo. Stat. § 1-3-107(a). The court stated:

“Whether plaintiff’s claims are cast in terms of negligence or breach of contract,

they still involve acts or omissions alleged to have occurred as a part of the

attorney-client relationship between the parties.” Rec. vol. I, doc. 27, at 15

(Order, filed Sept. 18, 2000).

         In support of its conclusion, the district court noted that, in pro se

communications to the trial judge in the Wyoming divorce proceedings in

November and December 1997, Mr. Bartlett accused Mr. Cohen of

“incompetency and malpractice.”       See id. at 16. Thus, Mr. Bartlett “knew or had


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reason to know of the cause[s] of action he had against [Mr.] Cohen as early as

November, 1997[,] and unquestionably, [o]n December 15, 1997.”         Id. Because

Mr. Bartlett did not file the instant action until more than two years later, the

district court concluded that all of his claims were time barred.

      On appeal, Mr. Bartlett argues that Mr. Cohen’s wrongful conduct

continued until February 11, 1998, the date on which the Wyoming state court

judge entered an order allowing Mr. Cohen to withdraw from the divorce

proceedings. According to Mr. Bartlett, Mr. Cohen breached his representation

agreement with Mr. Bartlett on that date. Because he filed the instant action

within two years of that date, he maintains that his action is timely. In support of

this contention, Mr. Bartlett points to sections of his complaint alleging that Mr.

Cohen “failed to honor his original contract commitment regarding withdrawal.”

See Aplt’s Br. at 4-5 (citing Complaint ¶ 31, 46, 60, 76).

      Mr. Bartlett’s argument is not supported by the record or the applicable

Wyoming law. In particular, his complaint, his response to Mr. Cohen’s motion

for summary judgment, and his appellate brief do not indicate that he has

challenged conduct that he could not have discovered until February 11, 1998. As

the district court observed, under Wyoming law the statute of limitations begins to

run when the plaintiff knew or had reason to know of the existence of a cause of

action. See Hiltz v. Horn , 910 P.2d 566, 570 (Wyo. 1996). The fact that the


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Wyoming state court judge granted Mr. Cohen’s motion to withdraw on February

10, 1998, does not undermine the district court’s conclusion that Mr. Bartlett

knew of Mr. Cohen’s alleged misconduct by December 15, 1997, more than two

years before the filing of this action.   See Rawlinson v. Cheyenne Bd. of Pub.

Util. ,17 P.3d 13, 17 (Wyo. 2001) (stating that “[a] cause of action accrues when a

claimant is chargeable with knowledge of an act, error, or omission”) (internal

quotation marks omitted);     Ryel v. Anderies , 4 P.3d 193, 195 (Wyo. 2000) (stating

that a cause of action accrues “when the plaintiff knows or has reason to know

that [he] has suffered damage due to another’s wrongful act . . . even when the

consequences of the wrongful act are not fully known until later”).

Accordingly, under Wyoming law we must AFFIRM the district court’s grant of

summary judgment in favor of Mr. Cohen for substantially the same reasons as set

forth in its September 18, 2000, order.



                                          Entered for the Court,



                                          Robert H. Henry
                                          Circuit Judge




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