This opinion is subject to revision before final

publication in the Pacific Reporter

2019 UT 46

IN THE

SUPREME COURT OF THE STATE OF UTAH

MONTY MOSHIER 

and KELLY MOSHIER,

Petitioners,

v.

DARWIN C. FISHER,

Respondent.

No. 20180623

Filed August 13, 2019

On Certiorari to the Utah Court of Appeals

Fifth District, St. George

The Honorable G. Michael Westfall

No. 150500584

Attorneys:

Russell S. Walker, Salt Lake City, for petitioners

Michael F. Skolnick, Salt Lake City, for respondent 

CHIEF JUSTICE DURRANT authored the opinion of the Court, in 

which ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS,

JUSTICE PEARCE, and JUSTICE PETERSEN joined.

CHIEF JUSTICE DURRANT, opinion of the Court:

Introduction

¶1 Kelly and Monty Moshier lost their opportunity to collect 

$874,805.68 owed to them in a bankruptcy proceeding when their 

attorney, Darwin C. Fisher, failed to file their nondischargeability 

claim before the statute of limitations expired. Several years later, the 

Moshiers sued Mr. Fisher for malpractice. The district court 

dismissed their malpractice claim as untimely. Because we find that 

the malpractice claim did not accrue until the bankruptcy court 
MOSHIER v. FISHER

Opinion of the Court

2

confirmed the final distribution plan, the Moshiers’ claim was 

timely. Accordingly, we reverse. 

Background

¶2 Kelly and Monty Moshier hired Darwin Fisher to represent 

them in a lawsuit against Allen and Laura Cottam, involving claims 

of fraud, misrepresentation, and breach of warranty. The Moshiers 

obtained a judgment against the Cottams in the amount of 

$785,710.88. The judgment included findings of fraud, 

misrepresentation, and punitive damages.

¶3 In September 2010, the Cottams filed for bankruptcy. The 

Moshiers again hired Mr. Fisher to represent them in the bankruptcy 

proceedings. He timely filed the Moshiers’ proof of claim.1 Because 

the Moshiers’ claim was based on a judgment for money obtained by 

fraud, their claim was exempt from discharge under section 523 of 

the Bankruptcy Code.2 Creditors claiming this exemption from 

discharge must commence an independent action by filing a 

complaint alleging nondischargeability.3 But Mr. Fisher failed to file 

the Moshiers’ claim for nondischargeability by the deadline, 

December 29, 2010.4 Instead, he filed the claim almost a year after the 

deadline, which the bankruptcy court dismissed as untimely. On 

January 31, 2012, the bankruptcy court confirmed the Cottams’ 

bankruptcy plan for distribution.5

 

1 In bankruptcy, a “proof of claim” is a “creditor’s written 

statement that is submitted to show the basis and amount of the 

creditor’s claim.” Proof of claim, BLACK’S LAW DICTIONARY (11th ed. 

2019); see also FED. R. BANKR. P. 3001 & 3002.

2 11 U.S.C. § 523(a) (“A discharge under section 727, 1141, 1228(a), 

1228(b), or 1328(b) of this title does not discharge an individual 

debtor from any debt . . . for money . . . to the extent obtained 

by . . . false pretenses, a false representation, or actual fraud . . . .”).

3 FED. R. BANKR. P. 4007; see also 11 U.S.C. § 523(c).

4 This was the deadline pursuant to Rule 4007(c) of the Federal 

Rules of Bankruptcy Procedure. 

5 A “bankruptcy plan” is a “detailed program of action 

formulated by a debtor, or its creditors in certain circumstances, to 

govern the debtor’s rehabilitation, continued operation or 

liquidation, and payment of debts. The bankruptcy court must 

(Continued)
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Opinion for Voting

3

¶4 In March 2012, Mr. Fisher informed the Moshiers that he 

missed the deadline for filing their nondischargeability claim and 

that their claim had been dismissed. He told them he had filed a 

claim with his malpractice insurance company and suggested that 

they retain new counsel for the bankruptcy proceedings. The 

Moshiers assert they did not believe they needed to initiate any legal 

action against Mr. Fisher, because they believed his claim with his 

malpractice insurer was the equivalent of them initiating a legal 

proceeding. They also argue that they believed their claim was fully 

secured and that they would still receive the full value of their 

claim.6 By 2013, the bankruptcy trustee informed the Moshiers they 

would not receive payment of their full claim. To date, the Moshiers 

 

approve the plan before it is implemented.” Bankruptcy plan, BLACK’S 

LAW DICTIONARY (11th ed. 2019). 

6 The Moshiers allege that Mr. Fisher told them the secured 

claims would not be discharged, but we note that the proof of claim 

clearly states that only $75,000 is secured. The Moshiers’ briefing 

asserts that “Fisher filed a timely proof of claim in the Cottam 

Bankruptcy as a fully secured claim, which was prima facie evidence 

of the validity and amount of the claim of $874,805.68.” But that is 

not what the proof of claim states. The proof of claim document 

states a claim for $800,000—including $75,000 in secured debt and 

$725,000 in unsecured debt. This is an amended proof of claim, so 

perhaps the Moshiers are referring to the amount in the original 

proof of claim, but that amount would seem to be irrelevant now. 

The amended proof of claim also does not list an annual interest rate. 

This is one of a number of inconsistencies in the Moshiers’ briefing to 

us. 

We are also not certain about the actual value of the Moshiers’ 

claim. They assert they lost out on $874,805.68. This is the amount 

stated by the court of appeals in its decision below. Moshier v. Fisher, 

2018 UT App 104, ¶ 1, 427 P.3d 486. The actual value of the claim is 

unclear from the record. The Moshiers’ briefing states that the 

underlying judgment awarded in the district court case was 

$785,710.88. They state that Mr. Fisher then filed a proof of claim for 

$874,805.68. But the record shows that Mr. Fisher filed a proof of 

claim for $800,000. The Moshiers’ demand letter sent to Mr. Fisher 

asserted that their claim against the Cottams was for $800,000. The 

Moshiers’ complaint against Mr. Fisher then alleges $897,005.93 in 

damages. We assume that this is attributable to interest or additional 

attorney fees, but that is never explained in the briefing.
MOSHIER v. FISHER

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4

have received $58,151.72 of their secured claim and $139,508.64 of 

their unsecured claim, for a total of $197,660.36.7

¶5 In June 2014, Mr. Fisher’s malpractice counsel, Michael 

Skolnick, sent the Moshiers a letter stating that the malpractice 

insurance company saw many “hurdles” that severely reduced the 

value of their claim. At that time or shortly thereafter, the Moshiers 

hired an attorney, Russell Walker, to represent them. He sent a letter 

to Mr. Skolnick on June 17, 2014, outlining the damage done by 

Mr. Fisher’s failure to timely file the Moshiers’ nondischargeability 

claim. The Moshiers filed their malpractice action against Mr. Fisher 

on October 6, 2015. The district court dismissed their claim as 

untimely, finding that the statute of limitations had expired on 

December 29, 2014—four years after Mr. Fisher missed the filing 

deadline for the nondischargeability claim. The Moshiers appealed, 

and the court of appeals affirmed. The Moshiers then petitioned this 

court for certiorari, which we granted. We have jurisdiction pursuant 

to Utah Code section 78A-3-102(3)(a).

Standard of Review

¶6 We must determine when a legal malpractice claim accrues 

and the statute of limitations begins to run where an attorney misses 

the deadline for filing a nondischargeability claim in a bankruptcy 

proceeding. On certiorari, we review “the court of appeals’ decision 

for correctness, without according any deference to its analysis.”8

The application of a statute of limitations and grant of a motion to 

dismiss are both questions of law, which we review for correctness.

9

But application of a statute of limitations may also involve 

 

7 There is another discrepancy here. Monty Moshier’s declaration 

in the malpractice action states that they received $139,508.64 of their 

$741,821.28 unsecured claim. It is unclear where these numbers come

from as the proof of claim lists the unsecured claim at $725,000. 

Again, perhaps the difference is interest or attorney fees, but that is 

never explained. The brief states that they received “$139,508.64 of 

their prorated unsecured claim.”

8 State v. Ainsworth, 2017 UT 60, ¶ 13, 423 P.3d 1229. 

9 Thomas v. Hillyard, 2019 UT 29, ¶ 9, --- P.3d ---; Educators Mut. 

Ins. Ass’n v. Allied Prop. & Cas. Ins. Co., 890 P.2d 1029, 1030 (Utah 

1995) (stating that the district court’s ruling on a motion to dismiss is 

reviewed for correctness). 
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“subsidiary factual determination[s,]” which we review “in the light 

most favorable to the non-moving party.”10

Analysis

¶7 The Moshiers argue that their legal malpractice claim did 

not accrue until they learned that the bankruptcy trustee “would not 

pay all of their claims,” on or about July 31, 2014.11 Mr. Fisher asserts 

that the claim accrued when he missed the deadline to file their 

nondischargeability claim—December 29, 2010. We find that the 

Moshiers’ malpractice claim accrued when the bankruptcy court 

confirmed the final bankruptcy plan—January 31, 2012. Based on 

that accrual date, the Moshiers’ malpractice claim was timely filed. 

Accordingly, we reverse.12

¶8 Under Utah law, a malpractice action must be brought 

within a four-year limitation period.13 A statute of limitations 

“begins to run when the last event necessary to complete the cause of 

action occurs.”14 The elements of a legal malpractice cause of action 

 

10 Colosimo v. Roman Catholic Bishop of Salt Lake City, 2007 UT 25, 

¶ 11, 156 P.3d 806 (internal quotation marks omitted). 

11 There is another inconsistency here. The court of appeals 

opinion notes that the “Moshiers’ opening brief identifies both the 

latter part of 2013 and July 14, 2014, as dates at which they first 

learned that they would not receive the full amount of their claim.” 

Moshier v. Fisher, 2018 UT App 104, ¶ 4 n.3, 427 P.3d 486. It is unclear 

on what date the Moshiers believe they had the requisite knowledge. 

But our decision relies on the date that the bankruptcy court 

confirmed the final plan for distribution, and the Moshiers’ claim 

was timely based on that date. So, like the court of appeals, our 

analysis “is unaffected whether we use the earlier or the latter date.” 

Id.

12 The Moshiers also argue for application of the discovery rule to 

toll the statute of limitations. Because we find that their claim was 

timely filed absent application of the discovery rule, we need not 

address that argument. 

13 See UTAH CODE § 78B-2-307(3); see also Thomas v. Hillyard, 2019

UT 29, ¶ 11.

14 Sevy v. Sec. Title Co. of S. Utah, 902 P.2d 629, 634 (Utah 1995); see 

also DOIT, Inc. v. Touche, Ross & Co., 926 P.2d 835, 843 (Utah 1996)

(stating that a “cause of action accrues when a plaintiff could have 

first filed and prosecuted an action to successful completion”); Ash v. 

(Continued)
MOSHIER v. FISHER

Opinion of the Court

6

based on negligence are “(i) an attorney-client relationship; (ii) a 

duty of the attorney to the client arising from their relationship; 

(iii) a breach of that duty; (iv) a causal connection between the 

breach of duty and the resulting injury to the client; and (v) actual 

damages.”15 Because a claim does not accrue until “a plaintiff suffers 

actual harm or damages,” a plaintiff “must wait until some harm 

manifests itself” to file a malpractice claim.16 So “where there is an 

ongoing proceeding, the resolution of which informs the fact of 

malpractice or damages, the claim does not accrue until the 

conclusion of that proceeding.”17

¶9 Here, Mr. Fisher argues that the Moshiers’ malpractice claim 

accrued when he missed the deadline for filing their 

nondischargeability action. He asserts that this case is controlled by 

our decision in Jensen v. Young, which held that a claim for 

malpractice accrued on the date that an attorney missed a statute of 

limitations deadline for filing a claim.18 This was also the basis for 

the court of appeals’ affirmance. But, as we recently articulated in 

Thomas v. Hillyard, our decision in Jensen was inconsistent with our

Clark v. Deloitte & Touche LLP19 opinion.20 So in Hillyard we 

disavowed our holding in Jensen.

21

¶10 The Moshiers, on the other hand, argue that their claim 

accrued when they learned that the bankruptcy trustee would not 

 

State, 572 P.2d 1374, 1379 (Utah 1977) (“A cause of action arises the 

moment an action may be maintained to enforce a legal right.”).

15 Christensen & Jensen, P.C. v. Barrett & Daines, 2008 UT 64, ¶ 22, 

194 P.3d 931 (internal quotation marks omitted).

16 Seale v. Gowans, 923 P.2d 1361, 1364 (Utah 1996) (explaining that 

“the law does not recognize an inchoate wrong”); see also Hunsaker v. 

State, 870 P.2d 893, 897 (Utah 1993) (stating that plaintiffs must plead 

actual damages along with breach of duty in order to sustain a cause 

of action for negligence).

17 Hillyard, 2019 UT 29, ¶ 17.

18 2010 UT 67, ¶ 20.

19 2001 UT 90, 34 P.3d 209.

20 Hillyard, 2019 UT 29, ¶¶ 16–18 (“Because Jensen is inconsistent 

with Deloitte, . . . we reaffirm the Deloitte reasoning, and we overrule 

Jensen to the extent it is inconsistent with Deloitte and this opinion.”). 

21 Id.
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7

pay the full value of their claim. They contend that this case is 

analogous to Clark v. Deloitte & Touche LLP, in that the bankruptcy 

proceeding here is the equivalent of the tax court proceeding in that 

case. In Deloitte, the Clarks received incorrect advice from their 

accountant, were audited by the IRS, and appealed the IRS’s 

findings.22 After their appeal was final, the Clarks sued their 

accountant for malpractice.23 We held that the claim for accounting 

malpractice accrued when the underlying action was final and no 

appeal of right was available—when the tax court issued a final 

decision on appeal.24 We also noted that “if the Clarks had received 

erroneous advice from a tax attorney, as opposed to an accountant,” 

the accrual date would have been the same.25 In Boyd v. Jones, the 

Tenth Circuit applied our Deloitte decision to the legal malpractice 

context.26 And in Hillyard, we reaffirmed that where the resolution of 

an ongoing proceeding will inform “the fact of malpractice or 

damages, the claim does not accrue until the conclusion of that 

proceeding.”27 This is so because, at that point, the malpractice 

plaintiff’s harm is sufficiently final. 

¶11 In the case now before us, we conclude that the damages 

and harm were sufficiently final when the bankruptcy court 

confirmed the final bankruptcy plan, and that the claim therefore 

accrued on that date.28 Until that stage of the bankruptcy concluded, 

the Moshiers could not be certain whether Mr. Fisher’s alleged 

malpractice had resulted in damages, or whether they could expect 

to be made whole despite his error. Mr. Fisher missed a filing 

 

22 2001 UT 90, ¶¶ 4–9. 

23 Id. ¶ 10.

24 Id. ¶ 25. 

25 Id. ¶ 31 (citing Amfac Distrib. Corp. v. Miller, 673 P.2d 792, 793 

(Ariz. 1983); Pizel v. Zuspann, 795 P.2d 42, 56 (Kan. 1990)).

26 Boyd v. Jones, 85 F. App’x 77, 81–83 (10th Cir. 2003).

27 2019 UT 29, ¶ 17.

28 We also note that this date has been used by other jurisdictions. 

See, e.g., Treasure Valley Bank v. Killen & Pittenger, P.A., 732 P.2d 326, 

328 (Idaho 1987) (following the damages rule and concluding that 

the malpractice claim accrued when the bankruptcy plan was 

confirmed and the creditor lost its opportunity to secure 

post-confirmation interest on its claim). 
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Opinion of the Court

8

deadline, which precluded the Moshiers from litigating their 

nondischargeability claim. But the harm was not sufficiently final 

until the bankruptcy plan was finalized.29 It was at that point that the 

Moshiers knew, with certainty, that they would not receive the full 

value of their claim, and that Mr. Fisher’s actions had, in fact, 

prejudiced them. And based on that accrual date, the Moshiers’ 

October 6, 2015 malpractice claim was timely. 

Conclusion

¶12 A cause of action for legal malpractice accrues when a 

plaintiff’s harm is sufficiently final. The Moshiers’ claim accrued 

when the bankruptcy court confirmed the Cottams’ final bankruptcy 

plan. Their action was therefore timely when filed. Accordingly, we 

reverse. 

 

29 Importantly, the Moshiers did not appeal the final bankruptcy 

plan. Had they appealed, their claim would have accrued upon 

conclusion of that appeal.