427 P.3d 486
Utah Ct. App.2018Background
- Monty and Kelly Moshier obtained an $874,805.68 judgment against third parties (the Cottams); the Cottams filed bankruptcy in Sept. 2010.
- The Moshiers hired attorney Darwin C. Fisher to pursue a nondischargeability complaint; the statutory deadline to file was December 29, 2010, but Fisher missed it and filed in November 2011, so the bankruptcy court dismissed the claim as untimely.
- Fisher informed the Moshiers by March 2012 that he had missed the deadline, had submitted an insurance claim on their behalf, and suggested new counsel; the Moshiers received only $197,660.36 in the bankruptcy proceeding.
- The Moshiers retained new counsel on June 17, 2014, but did not file a legal malpractice suit against Fisher until October 6, 2015.
- The district court granted Fisher’s motion for dismissal or summary judgment on statute-of-limitations grounds; the Moshiers appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicable limitations period | Six-year contract limitations applies to breach-of-contract claim | Legal malpractice is governed by the four-year statute | Four-year malpractice statute applies; substance is professional negligence, not a contract claim |
| Accrual trigger for limitations | Limitations didn’t run until damages certain (when proof of claim failed) | Accrual occurred when attorney missed the filing deadline (Dec. 29, 2010) | Accrual triggered when attorney missed deadline; injury occurred then |
| Discovery rule application | Discovery rule delays accrual because injury wasn’t known/was uncertain | Moshiers knew of malpractice by March 2012 and had new counsel by June 2014; no concealment or exceptional circumstances | Discovery rule does not apply; Moshiers were aware of the malpractice before limitations expired |
| Timeliness of complaint | Complaint filed Oct. 6, 2015 was timely under plaintiff’s theories | Complaint was filed more than four years after accrual | Complaint barred: filed after the four-year limitation had run |
Key Cases Cited
- Jensen v. Young, 245 P.3d 731 (Utah 2010) (malpractice accrues when attorney misses client's claim deadline; discovery rule analysis)
- DOIT, Inc. v. Touche, Ross & Co., 926 P.2d 835 (Utah 1996) (plaintiff cannot recast tort as contract to evade statute of limitations)
- Agricredit Corp. v. Harrison (In re Harrison), 987 F.2d 677 (10th Cir. 1993) (distinction between proof of claim and burden to prove amount/validity in bankruptcy)
- Wagner v. Sellinger, 847 A.2d 1151 (D.C. 2004) (discusses uncertainty of damages and when injury is considered inchoate)