Trigg v. Steven Farese, Sr. & Farese, Farese & Farese, P.A.

ISHEE, JUSTICE, FOR THE COURT

DATE OF JUDGMENT: 08/20/2014 TRIAL JUDGE: HON. L. BRELAND HILBURN TRIAL COURT ATTORNEYS: MATTHEW WADE GILMER H. SCOT SPRAGINS COURT FROM WHICH APPEALED: LAFAYETTE COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: MATTHEW WADE GILMER BARRY W. GILMER JONATHAN DAVID NUESCH JOSEPH AARON CRONE RICHARD COLEMAN WILLIAMS ATTORNEYS FOR APPELLEES: LAWRENCE JOHN TUCKER, JR. H. SCOTT SPRAGINS RALPH EDWIN CHAPMAN NATURE OF THE CASE: CIVIL - LEGAL MALPRACTICE DISPOSITION: AFFIRMED IN PART AND REVERSED AND REMANDED IN PART - 11/29/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE RANDOLPH, P.J., KING AND ISHEE, JJ. ISHEE, JUSTICE, FOR THE COURT : ¶1. Dalton Trigg and his father, Dr. Stephen Trigg, sued Dalton's former criminal-defense attorney, Steven Farese Sr., alleging professional malpractice. The Lafayette County Circuit Court held that the claims were premature because Dalton had not yet secured postconviction relief from the underlying conviction, and it dismissed the complaint without prejudice. ¶2. This case presents the question of whether a convicted criminal may sue his former defense attorney for negligently causing him to be convicted while that conviction still stands. We join the substantial majority of courts in holding that, because these allegations would entitle the plaintiff to relief from his underlying conviction, he must first pursue them through the criminal-justice process. In other words, a convict must "exonerate" himself by obtaining relief from his conviction or sentence before he may pursue a claim against his defense attorney for causing him to be convicted or sentenced more harshly than he should have been. To the extent prior decisions of this Court or the Court of Appeals suggest otherwise, they are overruled. ¶3. But this holding extends only to claims that stem from allegations of professional malpractice. The Triggs' claim for an accounting of the substantial retainer paid to Dalton's attorney, to the extent it is just a fee dispute and does not depend on the quality of legal services rendered, should not have been dismissed. Finally, Dr. Trigg had standing to pursue the accounting claim because he claims he paid the retainer and is entitled to a refund of the unearned portion.

FACTS AND PROCEDURAL HISTORY

¶4. The following facts are drawn from the allegations in the Triggs' complaint, which, because of the procedural posture of this case, are taken as true. On September 10, 2011, Dalton drove his vehicle after drinking alcohol and collided with another vehicle. A fourteen-year-old passenger in the other vehicle suffered injuries to her lower extremities and The Triggs alleged a variety of claims, all of which stemmed from Farese's representation of Dalton. Specifically, the Triggs styled their causes of action fraud, breach of contract, legal malpractice (negligence), accounting for money paid, and negligent infliction of emotional distress. Because of certain allegations in the complaint, Farese successfully moved to have the file temporarily sealed. That seal remains intact to the present day. ¶7. On April 14, 2014, the circuit-court judges for the Third Judicial District entered a sua sponte order of recusal. This Court then appointed Judge L. Breland Hilburn to preside as a special judge. ¶8. Farese then filed his answer, which also contained a motion to dismiss or, in the alternative, for summary judgment. Farese argued the complaint should be dismissed because Dr. Trigg lacked standing and Dalton had failed to first seek postconviction relief. On August 25, 2014, the circuit court dismissed the Triggs' complaint pursuant to "Rule 12 and/or Rule 56 of [the] Mississippi Rules of Civil Procedure" after reviewing "all of the pleadings, responses, affidavits[,] and authorities of law filed by the parties." In response, the Triggs filed a posttrial motion seeking to vacate the order of dismissal and to reinstate their claims. At the hearing on the motion to vacate, the circuit judge explained that his intent was to dismiss the complaint under Rule 12(b). And on December 11, 2014, the circuit court entered an order denying the Triggs' motion to vacate, reaffirming its dismissal of their complaint without prejudice and denying all other pending motions. The Triggs timely perfected this appeal.

See Miss. Code Ann. § 63-11-30(5) (Rev. 2013).

STANDARD OF REVIEW

¶9. "The standard of review for a trial court's grant or denial of a motion to dismiss is de novo." Long v. Vitkauskas , 228 So. 3d 302, 304 (Miss. 2017). This Court likewise reviews a circuit court's grant of summary judgment de novo. Daniels v. Crocker , 235 So. 3d 1, 6 (Miss. 2017). As to standing, which raises jurisdictional issues, the standard of review is also de novo. Hotboxxx , LLC v. City of Gulfport , 154 So. 3d 21, 27 (Miss. 2015).

DISCUSSION

1. Affidavits on Motion to Dismiss ¶10. As a threshold issue, the Triggs complain the circuit court erroneously dismissed their complaint because it failed to explicitly exclude two affidavits which the Triggs themselves attached to their responses to the motion to dismiss. The Triggs also rely on the circuit court's original order of dismissal, which was somewhat unclear as to whether the complaint was dismissed under Rule 12 of the Mississippi Rules of Civil Procedure or whether summary judgment was granted under Rule 56. The order states that dismissal was under "Rule 12 and/or Rule 56 of [the] Mississippi Rules of Civil Procedure" and that the circuit court "considered all of the pleadings, responses, affidavits[,] and authorities of law filed by the parties." At the hearing on the "motion to vacate," the circuit judge clarified his ruling:

[I]t's obvious that I may have generated some misconception about the order [of dismissal] . . . . It was the intent of the [c]ourt to enter an order of dismissal under Rule 12. That order obviously sits. There [were] undisputed facts set out in the pleadings as to whether or not a post-conviction relief had been sought by [Dalton]. It was also mentioned as being a Rule 56 summary judgment ruling by the [c]ourt. The [c]ourt will amend the order to reflect at

this point in time it is a Rule 12 dismissal, and that there's really not a need for the [c]ourt to reach summary judgment at this point.

The circuit court then entered an order denying the motion to vacate which returned to the merits of the motion to dismiss and omitted any mention of the affidavits or summary judgment. ¶11. The Triggs argue that since the first order recites that the circuit court reviewed affidavits, the court was required to convert the motion to dismiss into a motion for summary judgment. Farese responds by pointing out that the circuit court had to review affidavits in order to determine one of the asserted bases for dismissal, whether Dr. Trigg had standing. ¶12. We agree that the circuit court was entitled to review Dr. Trigg's affidavit as it pertained to standing. The challenge was based on Rule 12(b)(1) of the Mississippi Rules of Civil Procedure. In Schmidt v. Catholic Diocese of Biloxi , 18 So. 3d 814, 822 (Miss. 2009), this Court explained the difference between facial attacks on subject-matter jurisdiction versus factual attacks. Facial attacks allege the court lacks jurisdiction as a matter of law, while a factual attack "requires resolution by the trial court of one or more factual disputes in order to determine subject matter jurisdiction." Id. (quoting Roman Catholic Diocese v. Morrison , 905 So. 2d 1213, 1220 (Miss. 2005)). "In a factual attack, matters outside the pleadings, such as testimony and affidavits, are considered." Id. Because the circuit court was faced with a factual attack as to Dr. Trigg's standing, it properly considered the affidavit submitted by Dr. Trigg on that point. ¶13. There is a second affidavit, however, which was also filed by the Triggs. It was Triggs were on notice that the legal sufficiency of their complaint had been challenged and were given numerous opportunities to respond, we can find no unfairness in the dismissal. ¶17. Finally, we reiterate that our standard of review is de novo. The record gives no reason to suspect the circuit court based its decision on anything other than a careful study of the pleadings and the law. But under our standard of review it does not matter why the circuit court reached the result it did; we consider the legal sufficiency of the complaint anew. See Triplett v . S. Hens , Inc., 238 So. 3d 1128, 1130 (Miss. 2018); see also M.R.C.P. 12(b)(6). If the circuit court reached the right result for the wrong reason, its judgment would be affirmed; if it reached the wrong result, the judgment would be reversed. See Triplett , 238 So. 3d at 1130. A circuit court is not even required to explain why it granted or denied a motion to dismiss. As the Court of Appeals has observed, the circuit court's explanation "may be helpful . . . to the parties and [the reviewing court]," but its "rationale is not controlling." Satterfield v. State , 158 So. 3d 380, 382 (Miss. Ct. App. 2015). ¶18. In summary, the issue of the legal sufficiency of the complaint is squarely before us on appeal. As we shall explain in due course, the trial court erred in dismissing one of the counts asserted in the complaint. But so far as the record reveals, any error in the circuit court's consideration of the affidavits was harmless.

2. Dr. Trigg's Standing ¶19. As to Dr. Trigg, the circuit court held that "[Dr.] Trigg's dissatisfaction in the performance of Farese [did] not create an attorney/client relationship." The circuit court allegations and were properly dismissed because Dalton failed to first secure postconviction relief. These counts were properly dismissed regardless of whether Dalton's father also had standing to pursue them, and thus the issue of his standing is moot. Any further discussion would be purely academic. But the request for an accounting—which is essentially a fee dispute—survives. ¶22. Dr. Trigg alleges he paid Farese's retainer and Farese failed to provide an accounting or refund the unearned portion of the fees. As explained below, a claim based on the quality of the representation is barred, but the accounting claim survives to the extent it alleges the Triggs paid for work that was just not done. No contract appears in the record, but Dr. Trigg alleges he paid the retainer and is entitled to a refund of the unearned portion. He has a colorable interest in the subject matter of the accounting claim, and he therefore has standing to pursue it. See Hotboxxx , LLC , 154 So. 3d at 27.

The Triggs submitted an amended complaint adding a sixth cause of action for breach of fiduciary duty. In their briefs on appeal, the Triggs assume the amended complaint is the relevant document; but it was filed after the answer and the record contains no order permitting the amendment. The amended complaint is therefore not properly before us because "[i]t is the responsibility of the movant to obtain a ruling from the court on motions filed by him and failure to do so constitutes a waiver of same." Martin v. State , 354 So. 2d 1114, 1119 (Miss. 1978). At any rate, the result would be the same under the amended complaint because the breach of fiduciary duty claim just restates the other causes of action under a new label.

3. The Malpractice Claims ¶23. The Triggs asserted various causes of action in the complaint, but the circuit court focused on the legal malpractice allegation, which it saw as the fountainhead from which all the other counts derived. The circuit court dismissed the complaint by holding that a criminal defendant must secure postconviction relief before pursuing a criminal-defense malpractice claim. For authority, the circuit court relied on a case from another jurisdiction, Gibson v. Trant , 58 S.W.3d 103 (Tenn. 2001). We are not aware of any prior decisions of this Court or the Court of Appeals discussing whether a convicted criminal must first "exonerate" ¶28. The criminal process is "a more appropriate forum to present [these] claims." Morgano v. Smith , 879 P.2d 735, 739 n.3 (Nev. 1994). And

a convicted defendant who cannot meet the standard of proving that there is a reasonable probability that, but for counsel's unprofessional errors, there would not have been a conviction, also cannot meet the higher burden of proving by a fair preponderance of the evidence in a later malpractice action that but for counsel's negligent conduct, there would not have been a conviction.

Noske v
. Friedberg , 656 N.W.2d 409, 413-14 (Minn. Ct. App. 2003). ¶29. Furthermore, before accepting a guilty plea, the circuit court is required to undertake an extensive colloquy with the defendant, face-to-face and in open court. See, e.g., Hannah v. State , 943 So. 2d 20, 25 (Miss. 2006). One of the questions circuit courts routinely ask of the defendant is whether he is satisfied with his attorney's representation, and the court will generally refuse to accept a guilty plea if the answer is no. See, e.g., Wilson v . State , 81 So. 3d 1067, 1082-83 (Miss. 2012). Before accepting the guilty plea, the circuit court must find that it is offered knowingly, intelligently, and voluntarily. Hannah , 943 So. 2d at 25. Because of these (and other) safeguards, defense counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland , 466 U.S. at 690. ¶30. The principle of collateral estoppel provides that "[w]here a question of fact essential to a judgment is actually litigated and determined by a valid and final judgment, that determination is conclusive against the party against whom it was made in a subsequent suit on a different cause of action." Jordan v. McKenna , 573 So. 2d 1371, 1375 (Miss. 1990) Rosenberg , 405 S.W.3d at 15. Courts from other states with similar statutory schemes have gone so far as to say it would "shock the public conscience, engender disrespect for courts and generally discredit the administration of justice." Id. As the Oregon Supreme Court has observed,

In our society, no other legal outcome of the trial process is so difficult to obtain [as a criminal conviction]. Yet, to allow a person convicted of a criminal offense to sue that person's lawyer without having first overturned the conviction would mean that the courts would be permitting relitigation of a matter that is supposed to be settled: The complaining party is deemed by the law to be guilty. The panoply of protections accorded to the criminally accused (including direct appeal and post-conviction relief) is so inclusive, and the significance of a conviction so important to vindication of the rule of law, that it would appear most unusual to permit a person to prosecute a legal malpractice action premised on some flaw in the process that led to that person's conviction at the same time that the person's conviction remained valid for all other purposes. In other words, while the conviction and sentence remain valid for all other purposes, it is inappropriate to treat a complaining convicted offender as having been "harmed" in a legally cognizable way by that conviction.

Stevens v
. Bispham , 851 P.2d 556, 562 (Or. 1993). Just as it is in Oregon, the public policy of this State is "to treat any person who has been convicted of any criminal offense as validly convicted unless and until the person's conviction has been reversed, whether on appeal or through post-conviction relief, or the person otherwise has been exonerated." Id. at 561. ¶32. Another public-policy interest is in facilitating the practical and effective administration of the court system and the criminal justice process. Requiring exoneration "promotes judicial economy because many issues litigated in the quest for post-conviction relief will be duplicated in the legal malpractice claim." Gibson , 58 S.W.3d at 114. It also Feinberg , 713 N.E.2d 379, 385 (Mass. App. Ct. 1999).

One court suggested a better name for the relief required would be "vindication," but we use exoneration because many other courts have used it. See Mashaney v . Bd. of Indigents' Def. Servs., 355 P.3d 667, 673-74 (Kan. 2015). --------

CONCLUSION

¶49. In summary, we hold that a convicted criminal must first "exonerate" himself through the criminal-justice process before suing his defense attorney for professional negligence in causing his conviction. Here, Dalton Trigg admits he did not secure relief from his conviction, and thus the malpractice-based claims against his attorney were properly dismissed. But to the extent the Triggs allege they were charged for work not actually performed, the claim should not have been dismissed. Thus, we affirm the judgment in part, reverse it in part, and remand the case for further proceedings consistent with this opinion. ¶50. AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, MAXWELL AND BEAM, JJ., CONCUR. WALLER, C.J., AND CHAMBERLIN, J., NOT PARTICIPATING.