Trigg v. Farese

• Decision Date: 29 November 2018
• Docket Number: NO. 2015-CA-00045-SCT,2015-CA-00045-SCT
• Citation: 266 So.3d 611
• Parties: Dalton TRIGG and Dr. Stephen D. Trigg v. Steven FARESE, Sr. and Farese, Farese & Farese, P.A.
• Court: Mississippi Supreme Court

266 So.3d 611

Dalton TRIGG and Dr. Stephen D. Trigg

v.Steven FARESE, Sr. and Farese, Farese & Farese, P.A.

NO. 2015-CA-00045-SCT

Supreme Court of Mississippi.

November 29, 2018

Rehearing Denied April 4, 2019

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

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 a laceration to her eyebrow. She fully recovered, allegedly free of any permanent injuries or restrictions. Dalton, however, received life-threatening injuries. He suffered brain damage and was incapacitated for some period of time after the accident. When Dr. Trigg learned Dalton had been drinking before the accident, he approached Farese to discuss legal representation for his son. Farese demanded an up-front retainer of $50,000.

¶ 5. The Triggs further allege Farese warranted that Dalton would incur only a misdemeanor charge and would not be sentenced to any jail time. Dr. Trigg paid the retainer in reliance on this guarantee, and he believed the payment created an attorney-client relationship between him and Farese. But Dalton was eventually indicted for aggravated DUI, a felony punishable by up to twenty-five years' imprisonment.¹ Farese then allegedly advised that if Dalton pled guilty to the felony charge, it would somehow be reduced to a misdemeanor and he would receive no jail time. Following this advice, Dalton pled guilty to the felony—but he ultimately received a ten-year sentence, with six years suspended and four years to serve. The four years to serve would be reduced to five years' probation after Dalton completed a long-term drug and alcohol treatment program.

¶ 6. Dalton finished the treatment program and was released from prison in February 2014—he spent roughly nine months incarcerated. He claims that during his time in prison, he was beaten by other inmates and suffered serious injuries. Unsatisfied with Farese's representation, Dalton and Dr. Trigg filed suit against Farese and his firm on April 1, 2014. 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.

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 addressed to the underlying merits of the malpractice claim and clearly should have been excluded from consideration under Rule 12(b)(6). The Triggs contend that it was not excluded and that the circuit court was therefore required to convert the motion to one for summary judgment. They cite Rule 12(b), which provides that "[i]f ... matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." M.R.C.P. 12(b). Since the circuit court here was presented with an affidavit, which it did not expressly exclude, the Triggs argue it was error not to...