266 So. 3d 611
Miss.2018Background
- In 2011 Dalton Trigg was charged with aggravated DUI after a serious crash; his father Dr. Stephen Trigg paid attorney Steven Farese a $50,000 retainer and alleges Farese promised only a misdemeanor and no jail time.
- Dalton pled guilty to the felony on counsel’s advice and received a ten-year sentence (six suspended); he served ~9 months and claims injuries in custody.
- Dalton and Dr. Trigg sued Farese (fraud, breach of contract, legal malpractice, accounting, negligent infliction of emotional distress), and the circuit court dismissed the complaint without prejudice for failure to seek postconviction relief first and questioned Dr. Trigg’s standing.
- The dismissal was entered under Rule 12(b)(6) after the court clarified it had not relied on extrinsic affidavits to convert to summary judgment; the Triggs appealed.
- The Mississippi Supreme Court addressed whether a convicted criminal must obtain exoneration (appeal/postconviction relief) before suing his defense lawyer for malpractice and whether Dr. Trigg had standing to pursue an accounting claim.
- Court held malpractice-based claims premised on causing conviction/sentence require exoneration before suit; however, fee/accounting disputes (refund of unearned retainer) survive and Dr. Trigg has standing as the payor.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether affidavits attached to opposition required conversion of Rule 12 motion to summary judgment | Triggs: court considered affidavits so must convert to Rule 56 | Farese: court only considered affidavit relevant to standing (12(b)(1) factual attack) | Court: No reversible error; affidavit on standing properly considered; other affidavit irrelevant to dismissal under 12(b)(6) and conversion not required |
| Whether Dr. Trigg has standing to sue over fee/accounting | Dr. Trigg: paid retainer and seeks refund of unearned portion, giving him a colorable interest | Farese: no attorney-client relationship with Dr. Trigg; thus no standing | Court: Dr. Trigg has standing to pursue accounting/fee dispute as payor; other claims moot as malpractice-based |
| Whether a convicted defendant may sue counsel for malpractice before obtaining postconviction relief | Trigg: may sue now for counsel negligence that caused conviction/sentence | Farese: suit is premature; must first obtain relief in criminal process | Court: Adopts majority exoneration rule — plaintiff must obtain a more favorable disposition (reversal/vacation via appeal, PCR, habeas) before malpractice suit accrues |
| When malpractice cause of action accrues and statutes of limitation run | Triggs: accrual may occur at conviction; earlier cases suggested accrual upon discovery of negligence | Farese: suit is premature until exoneration; accrual should follow exoneration | Court: accrual occurs at exoneration; overrules prior decisions to the extent inconsistent and rejects two-track approach |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (constitutional ineffective-assistance standard)
- Heck v. Humphrey, 512 U.S. 477 (civil claims challenging conviction accrue upon favorable termination)
- Jordan v. McKenna, 573 So. 2d 1371 (Miss.) (issue preclusion/collateral estoppel principles)
- Stevens v. Bispham, 851 P.2d 556 (Or. 1993) (policy reasons for requiring exoneration before malpractice suit)
- Gibson v. Trant, 58 S.W.3d 103 (Tenn. 2001) (adopting exoneration requirement)
- Noske v. Friedberg, 656 N.W.2d 409 (Minn. Ct. App. 2003) (discussing accrual and unfairness of two-track approach)