IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-CA-00045-SCT DALTON TRIGG AND DR. STEPHEN D. TRIGG

v. STEV EN FARESE, SR. AND FARESE, FARESE & FARESE, P.A.

DATE OF JUDGMENT: 08/20/2014 TRIAL JUDGE: HON. L. BRELAND HILBURN TRIAL COURT ATTORNEYS: MATTHEW W ADE GILMER H. SCOT SPRAGINS COURT FROM W HICH APPEALED: LAFAYETTE COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: MATTHEW W ADE GILMER BARRY W

. GILMER JONATHAN DAVID NUESCH JOSEPH AARON CRONE RICHARD COLEMAN W I LLIAMS ATTORNEYS FOR APPELLEES: LAW RENCE JOHN TUCKER, JR. H. SCOTT SPRAGINS RALPH EDW I N 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. D a lton T rigg and his f a ther, Dr. Stephen Trigg, sued Dalton’s f o rm er c r i m i n a l

- d e f

e n s e attorney , Steven Farese Sr., a lleging p rof essional m alpractice. The L af ay ette County Circuit
Court h eld that the claim s were prem ature because Dalton h ad not y et s ecured p ostconviction relief f rom the underly ing conviction, and it dism issed the com plaint without prejudice.¶2. This case presents t he question of whether a convicted crim inal m a y sue his f orm er def ense attorney f

or negligently causing him to b e convicted wh i l e that conviction still stands. W e join the substantial m ajority of courts in holding that, because these allegations would e n title the plaintif

f to relief f

rom his u nderly ing conviction, he m ust f irst p ursue t hem through the crim inal-justice p rocess. In other words, a c onvict m ust “exonerate” him self by ob t a i n i n g relief f

rom his conviction or sentence bef ore he m ay pursue a claim against his def ense attorney f

or causing him to be convicted or sentenced m ore harshly than he should have been. To the extent prior decisions of this C o u r t o r t h e C ourt of Appeals suggest otherwise, they are overruled. ¶3. B u t t h i s holding e xtends only to claim s that stem f rom allegations of prof

essiona l

m alpractice. The T riggs’ claim f or an accounting of the substantial retainer paid to Dalton’s attorney , to the extent it is j ust a f ee dispute a n d does not depend on t h e q u ality of legal services r endered, should not have been dism issed. Finally , Dr. Trigg had standing to pursue the accounting c laim because he claim s he paid t he retainer and is entitled to a ref und of the unearned portion.
FACTS AND PROCEDURAL HISTORY ¶4. The f

ollowing f

a cts are drawn f

rom the allegations i n the T riggs’ com plaint, which, because of the p rocedural posture of this case, are taken as t rue. On Se p t e mb e r 1 0, 2011, Dalton drove his vehicle af ter d rinking alco h o l and collided with another v ehicle. A f ourteen-y ear-old passenger in the other vehicle suf f ered injuries to h er l ower e x tre m i t i es and

2a laceration to her ey ebrow. She f ully recovered, allegedly f ree o f any perm anent injuries or restrictions. Dalton, however, received lif e - threatening injuries. He suf f ered brain dam age and was incapacitated f

o r s om e period of tim e a f ter the accident. W hen Dr. Trigg learned
D a l t on had been drinking bef ore the accident, h e approached Farese to discuss l e g a l representation f

o r his son. Farese dem anded an up-f r ont retainer of

$50,000. ¶5. The Triggs f

urther allege Fa r e s e w a r r a n t e d t h a t D a l t o n w o u l d i n c u r o nly a

m isdem eanor charge a nd would not be sentenced to any jail tim e. D r. Trigg paid t he retainer in reliance on this guarantee, and h e b e l i e v ed t he pay m e nt created an attorney -client relationship between him a nd Farese. But Dalton was eventually indicted f or aggravated DUI, a f elony punishable b y up to twenty -f i ve y ears’ im

prisonm ent. 1 Farese then allegedly advised that if Dalton pled g uilty t o t h e f elony charge, it w ould s om ehow be reduced to a

m isdem eanor and he would receive no jail tim e. Following this advice, Dalton pled guilty

to the f elony —but he ultim ately received a ten-y ear sentence, w ith six y ears suspended and
f our y e ars to s erve. The f

our y ears to serve would be reduced to f ive y ears’ probation af

ter Dalton com

pleted a long-term

drug and alcohol treatm ent program

. ¶6. D a l t o n f

i n i s hed the t reatm ent program and was released f rom prison in Feb r u a r y 2014—he spent roughly n i ne m o nths incarcerated. He claim s that during his tim e in prison, he was beaten by other i n mates and suf f ered serious injuries. Unsatisf ied with Farese’s representation, Dalton and Dr. Trigg f iled suit against Farese and his f irm on April 1, 2014.

1 See Miss. Code Ann. § 63-11-30(5) (Rev. 2013). 3The Triggs alleged a variety of claim s, all of w hich stem m ed f rom Farese’s representation of Dalton. S pecif

ically , the Triggs sty led their causes of action f rau d , b r e a c h o f contract, legal m alpractice ( negligence), a ccounting f o r m oney p aid, and negligent inf liction of

em otional distress. B ec a u s e of c ertain allegations i n t he com p laint, Farese successf

ully

m oved to have the f

ile tem porarily sealed. That seal rem ains intact to the present day

. ¶7. On April 14, 2014, the circuit-court judges f or t he 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 f

iled his answer, w h i c h a l s o c o n tained a m o tion to dism iss or, in the alternative, f

o r sum m ary judgm ent. Fa r e s e a r g u ed the com plaint should be dism issed because Dr. Trigg lacked standing and Dalton had f ailed t o f irst seek postconviction relief

. On August 25, 2014, the circuit court dism issed the T riggs’ com plaint pursuant to “Rule 12 and/or Rule 56 o f [ t h e ] M i ssissippi Rules of Civil Procedure” af ter reviewing “ all of the pleadings, responses, af

f idavits[ ,] and authorities of law f i led by the parties.” In response, the Triggs f

iled a posttrial m otion seeking to vaca t e t h e o r d e r of dism issal and to reinstate their claim s. At t he hearing on t he m otion to v a c a t e , t h e c ircuit judge explained that his intent w as to dism iss the com plaint under Rule 12(b). And on Decem ber 11, 2 014, the circuit

court entered an order deny ing the Triggs’ m otion t o vacate, reaf f irm ing i ts dism issal of their

com plaint without prejudice and deny ing all ot h e r p ending m otions. The Triggs tim ely perf ected this appeal.

4STANDARD OF REVIEW

¶9. “The standard of review f or a t rial court’s grant or denial o f a m otion to dism iss is de
novo.” Long v. V

itkauskas , 228 So. 3d 302, 3 04 ( Miss. 2017). This Court likewise reviews a circuit court’s grant of

sum m a ry judgm ent de novo. Daniels v. C rocker , 235 So. 3d 1, 6 (Miss. 2017). A s 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 Dism iss ¶10. As a threshold issue, the Triggs com plain t he c i rcuit court erroneously dism issed their

com plaint because it f

ailed to explicitly exclude two af f idavits which the Triggs them selves attached to their responses to the m otion to d ism iss. The Triggs also rely o n t he circuit
court’s original order of dism i ssal, which was som ewhat u nclear a s to whether the com plaint

was dism issed under Rul e 1 2 o f the Mississippi Rules of Civil Procedure or whether

sum m ary judgm ent was granted under Rule 56. The order states that dism issal was under “Rule 12 and/or Rule 56 of [ the] Mississippi Rules of Civil P rocedure” and that the circuit

court “considered all of the pleadings, responses, af f idavits[ ,] and authorities of law f iled by the parties.” At the hearing o n the “m otion to vacate,” the circuit judge clarif ied his ruling: [ I]t’s obvious that I m ay have generated som e m i sconception about the order [ of dism issal]

. . . . It was the intent of the [ c]ourt to enter an o rder of dism issal under Rule 12. That order obviously sits. There [ were] undisputed f acts s et out in the pleadings as to whethe r o r not a post-conviction relief had been sought by [ Dalton]. I t was also m entioned a s b eing a R ule 56 s um m ary judgm ent ruling by the [ c]ourt. The [ c]ourt will a m end the order to ref lect at
5this point in tim e it is a R ule 12 dism issal, and that there’s really not a need f or the [ c ]ourt to reach sum m ary judgm ent at this point. The circuit court then e ntered an order deny ing the m otion to vacate which r eturned to the

m erits of t h e mo t i o n to dism iss and om itted any m ention of the af f i davits or sum m ary judgm ent. ¶11. The Triggs argue that since the f irst order reci t e s t h a t t h e circuit c ourt reviewed af f idavits, the court was required t o convert the m otion to dism iss into a m otion f or sum m ary judgm ent. F arese responds by pointing out that the circuit court had to review a f f idavits in order to determ ine one of t he asserted bases f or d ism issal, w hether Dr. Trigg had standing. ¶12. W e a gree t hat the circuit court was e n t i t l e d t o r e v i ew Dr. T rigg’s af f idavit as it pertained to standing. The challenge was based on Rule 1 2(b)(1) o f the Mississippi Rules of Civil Procedure. I n Schm i dt v . Catholic Diocese of Biloxi , 18 S o. 3d 814, 822 (Miss. 2009), t his Co urt explained the dif f erence between f

a cial attacks on subject-m atter jurisdiction versus f

actual attacks. F acial a ttacks a llege the c ourt lacks jurisdiction as a

m atter of law, while a f

actual attack “requires resolution by the t r i a l c o u r t of one or m ore f a c t ual disputes in order to determ ine subject m atter jurisdiction.” Id. (quoting Rom a n Catholic Diocese v. M

o r r i s o n , 905 So. 2d 1 213, 1220 ( Miss. 2005)). “In a f a c tual attack,

m atters outside the pleadings, such as t estim ony a nd a f f idavits, are considered.” Id. Because

t h e c i r c uit court was f

aced with a f

actual a t tack as to Dr. T rigg’s standing, it proper l y considered the af

f idavit subm itted by Dr. Trigg on that point. ¶13. There is a second af f idavit, however, which was also f iled b y t h e T r i g g s . It was
6addressed to the underly i ng m erits of the m alpractice claim and clearly should have been

excluded f

rom consideration under Rule 12(b)(6)

. The Triggs contend that it was not

e x c l u d ed and t hat the circuit court was theref ore required to c onvert the m otion to on e f o r

sum m ary judgm ent. They cite Rule 12(b), which provides that “[ i ]f

. . . m atters outside the pleading are presented to and not excluded by the court, the m o tion shall be treated as one f or sum m ary judgm ent and disposed o f as p rovided in Rule 56.” M.R.C.P. 12(b). Since the circuit court here w a s p r e s e n t ed with a n af f idavit, w hich it did not expressly exclude, the Triggs argue it was error not to convert the m otion to one f or sum m ary

judgm ent. ¶14. T h e T r i g g s m isunderstand what it m eans f or the circ u i t c o u r t t o e x c l u d e t h e af f idav i t

— t h e c i r cuit c ourt is required only t o e xclude the af f idavit f rom controlling its resolution of the 12(b)(6) m otion. As this Court held in Delta MK, LLC v. Mississippi Transportation Com m ission , 57 So. 3d 1284, 1290 (Miss. 2011), conversion of the m otion

to dism iss into a m o tion f or sum m ary judgm ent is required when the circuit court considers

m atters o utside t he pleadings. And considered, a s it used h ere, m ust m ean m ore than sim

ply reviewed or contem

plated—f o r there to be any e rror i n considering af f idavits, t he c i rcuit
court’s judgm ent m

u s t depend on those af

f i davits. Or, as the U nited States Court of Appeals
f or the Tenth Circuit, c onstruing the parallel f ederal r ules, p ut it: any error in f ailing to
convert t he m otion “is harm less if the dism i ssal can b e justif ied under [ Rule] 12(b)(6)

s t a ndards without c onsideration of the m atters outside the p leadings.” Lowe v. To w n o f
Fairland , 143 F.3d 1378, 1381 (10th Cir. 1998).

7¶15. Here, t he circuit c ourt ’ s r e a s o n f o r dism issing the com

p laint w as Dalton Trigg’s
f ailure to allege he had secu r ed postconviction relief —the circuit court accepted the allegations in the com

plaint as true. And the cour t d i sm issed the com plaint without prejudice, as it should have u nder Rule 12(b)(6) f or f ailure to state a c l aim ; if the court had taken the m o tion as one f

or sum m ary judgm ent, the decision would have b een on the m erits and the “ dism issal” would have been a f inal judgm ent w ith prejudice. See M.R.C.P. 56(c). Despite the rote r e c i t a t i o n s i n the circuit court’s f irst order, it is apparent to us that the af f idavit had nothing to do with the court’s decision. Thus, it was n ot r eally considered, and the circuit court was under no o bligation to c o nvert the 12(b)(6) m otion to dism iss f or f ailure to state a claim

into a m otion f

or sum m ary judgm ent. See Delta MK , 57 So. 3d at 1290. ¶16. Even if the circuit court h ad been required t o convert the m otion t o one f or sum m ary judgm ent, it still could have dism i ssed the com plaint f or f ailure to state a claim

. U nder Rule 12(h)(2), the def

endants were entitled to raise t he d ef ense o f f ailure to state a c laim upon which relief can be granted, not only in their r esponsive pleading, but also “ by m otion f or judgm ent on the pleadings, or a t the trial on the m erits.” And under Rule 12(b)(6) itself , trial

courts possess the authority to dism iss com plaints which f

ail t o state a claim

—on the court’s

own m otion. See, e.g. , Sparling v . Hoffm a n C

onst. Co. , 864 F.2d 635, 638 (9th Cir. 1988);

see also 5B Charles Alan W right & Arthur R. Miller et al., Federal Practice and Procedure § 1 357 (3d ed.), W estlaw (database updated S ept. 2 018). The only lim itation i s that the court

m ust proceed i n a way that is f air to the parties. See 5B W right & M iller § 1357. Since the

8Triggs were on notice that the legal suf f iciency of their com

plaint had been challenged and were given num erous opportunities to respond, we can f ind no unf

airness in the dism issal. ¶17. Finally , we r e i t e r a t e t h a t o u r standard of review is de novo. The record gives no

reason to suspect the circuit court based its decision on any t hing other than a caref

ul study of the pleadings and the l aw. But under our standard of review it does not ma t t e r why the circuit court reached the result it d i d ; w e consider the legal suf f iciency of t he com

plaint

anew. See Triplett v. S. Hens, I nc. , 238 So. 3 d 1128, 1130 (Miss. 2018); s ee also M.R.C.P. 12(b) ( 6 )

. If the circuit c ourt reached the right result f or the wrong reason, its j udgm ent would be af

f irm ed; if it reached the wrong result , t h e j udgm e nt 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 m otion to dism i ss. As the C o u r t o f A p peals has observed, t he c ircuit court’s explanation “m ay be helpf ul

. . . 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 sum m a ry , the issue of the legal suf f iciency of the com

plaint is squarely bef

ore us on appeal. As we shall explain in due course, the trial court erred in dism issing one of the

counts asserted in t he com plaint

. B u t s o f

ar a s the record reveals, any e rror in the circuit court’s consideration of the af f idavits was harm less. 2. Dr. Trigg’s Standing ¶19. As to Dr. T r i g g , t h e c i r c u i t c o u r t h eld t hat “[ Dr.] T rigg’s dissatisf action in the perf orm ance of Farese [ did] not c reate an attorney /client relationship.” T he circuit court

9f

urther held that “[ Dr. Trigg] occupies n o better position than his son, Dalton; a successf ul result of a [ p]ost [ c]onviction [ r]elief petition m ust be obtained bef

o r e [ D r . T r i gg’s] claim
f or legal m alpractice against Farese will be actionable.” ¶20. “Standing is a jurisdictional issue.” Hotboxx x , L L C , 1 5 4 S o. 3d at 27. Standing depends on “whether the p la i n t i f f a sserts a ‘colorable interest in the subject-m atter of the lit i g a t i on or experience[ s] an a dverse ef f ect f rom the conduct o f the def endant, or as otherwise provided by law.’” Id. So, “while standing i n f ederal court r equires a n ‘injury in
f act,’ standing in Mississippi courts is m ore liberal and requires a ‘colorable interest in the subject m a tter.’” Id. This Court has def ined a colorable interest as “whether t he particular plaintif f had a right to judicial e nf orcem ent of a legal d u t y o f the def e ndant or whether a party plaintif

f can show in him s elf a p r e s e nt, existent actionable title or interest, and dem onstrate that this right was com plete at the tim e of

the institution of

the action.” Id. ¶21. The com

plaint alleged f

ive causes of action

— f

r a u d , b r e a c h o f c o n t r a c t , l e g a l

m alpractice (negligence), a ccounting f o r m o ney paid, and n egligent i nf liction o f em otional distress. 2 As f

urther explained below, f

our of these causes a r e essentially legal-m a lpractice

2 T h e T rig g s s u b m i t ted an am en d ed co m p lain t ad d in g a six th cau se o f actio n f o r b reach o f f

id u ciary d u ty

. In t h e ir b rief s o n ap p eal, th e T rig g s assu m e th e am en d ed c o m p lain t is th e relev an t d o cu m en t; b u t it w as f iled af ter th e an sw er an d th e reco rd co n t ain s n o o rd er p e rm ittin g t h e a m e n d m en t. T h e am en d ed co m p lain t is th eref

o re n o t p ro p erly b ef

o r e u s b ecau se “[ i] t is th e resp o n sib ility o f th e m o v an t to o b t ain a ru lin g f ro m th e co u rt o n m o tio n s f iled b y h i m an d f

ailu re to d o so co n stitu tes a w a i v e r o f sam e.” M a r tin v. S ta te , 3 5 4 S o . 2 d 1 1 1 4 , 1 1 1 9 (M iss. 1 9 7 8 ). A t an y rate, th e resu lt w o u ld b e th e sam e u n d er th e am en d ed co m p lain t b ecau se th e b reach o f f id u ciary d u ty c laim j u st restates t h e o th er cau ses o f actio n u n d er a n ew lab el. 1 0allegations and were properly dism issed because D alton f a iled to f irst s ecure p ostconviction relief

. T hese c ounts were properly dism issed regardless of whether Dalton’s f ather also had standing to pursue them , and thus the issue of his standing is m oot. Any f urther discussion would be purely academ ic. But t he request f or an a c counting—which is e s s e n t ially a f ee dispute—survives. ¶22. Dr. Trigg alleges he p aid Farese’s retainer and Farese f ailed to p rovide an accounting

or ref und the unearned portion of the f ees. As explained below, a c laim based on the quality of the representation is barred, but the a ccounting claim survives to the extent it alleges the Triggs paid f

or w ork that was j ust not done. No contract a ppears in the record, b ut Dr. Trigg alleges he paid the retainer a nd is entitled to a r ef und o f t h e u n e a r n ed portion. He has a colorable i nterest in the subject m atter of the accounting claim , and h e theref ore has standing to pursue it. See H

o t boxxx, LLC

, 154 So. 3d at 27. 3. The Malpractice Claim s ¶23. The Triggs a s s e r t ed various causes of action in the com p laint, b ut the circuit court
f ocused on the legal m alpractice allegation, which it saw as the f ountainhead f

rom which all the other counts derived. The c ircuit court dism issed the com plaint b y holding that a crim inal def endant m ust secure p ostconviction relief bef ore p ursuing a crim inal-def ense m a lpractice claim . For authority , the circuit court relied on a case f rom another jurisdiction, G ibson v.
Trant , 5 8 S.W .3d 103 (Tenn. 2001). W e are not aware of any prior d ecisions of this Court

or the C ourt of Appeals discussing whether a convicted crim inal mu s t f irst “exonerate”

1 1him self

bef o re pursuing a m alpractice claim against his def

e n se attorney . In f

act, reported crim inal-m alpractice decisions appear to have been rare at com m on l aw. See Wiley v. City of San D iego , 966 P.2d 983, 9 85 (Cal. 1998) ( noting prom inent s cholars had f ound only a handf ul of reported crim inal m alpractice cases nationwide as of 1 974). But m a lpractice suits again s t crim inal-def

ense attorney s have exploded in recent y ears, and m ost s t ates have responded by adopting som e f orm of the exoneration rule. S ee id. Thus, we take this as an issue of f irst im pression i n Mississippi, and af ter d ue consideration, we f

ind the reasons f

or adopting an exoneration rule persuasive. ¶24. W e begin our discussion with th e traditional elem ents of a l egal-m alpractice claim : “a plaintif

f m ust prove by a preponderance of t he evidence t he existence o f a lawy er-client relationship, n egligence on the part of the lawy er in handling his client’s af f airs entrusted to him , a nd som e injury proxim ately caused by t he lawy e r’s negligence.” Estate of St. Martin
v. Hixson , 145 So. 3d 1124, 1128 (Miss. 2014). ¶25. The exoneration rule f inds i ts justif

ication m ostly in that f

inal elem ent: the client m

ust show that his attorney ’ s n e g ligence proxim ately caused his i njuries. Id. Proxim ate cause requires that the a ttorney ’s negligence be both the c ause in f act and t he legal cau s e o f the clien t ’ s d a ma ges. Glenn v. Peoples , 1 85 So. 3d 981, 986 (Miss. 2015). In the specif ic

context of a legal-m a lpractice a ction, the p l a i n t i f f “ m ust show t hat, but f

or his attorney ’s negligence, he would have been successf ul in the prosecution or def ense of the underly ing

act i o n . ” Id. (citation om itted). T his “ensures that attorney s are only held prof essionally

1 2liable where their f a ilures to adhere to the standard of care a ctually i m p acted the plaintif

f ’s interests in the case.” Id. at 843. The f orm er client “ m

ust establish proxim ate cause by the so-called ‘trial-within-a-trial’ test.” Crist v. Loyacono , 65 So. 3d 837, 842 (Miss. 2011). ¶26. Im m e diately resorting to the trial-within-a-trial test m akes sense in an ordinary civilm alpractice allegation because there are generally no “ do overs” f or a client w ho has suf

f ered a loss as a result of

his own attorney ’s prof

essional negligence. Crim inal law, on the other hand, provides both a substantive r em edy f or inef f e ctive assistance o f c o u n sel and a procedural m eans to get it, the appellate and postconviction-relief processes. ¶27. C r i mi n a l d e f

e n d a n t s have a constitutional right to counsel—and, as a necess a r y
consequ e n c e , a constitutional r ight to ef f e ctive assistance o f counsel. See Strickland v. Washington , 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). One convicted of a crim e or punished m o re se v e r e l y than he should have b een because of his attorney ’s negligence can raise t he i nef f e ctiveness of his counsel as substantive grounds f or relief f rom his c o n v i c t i o n o r sentence; a petitioner is entitled to have his conviction s et aside f or inef f ective assistance o f counsel i f he can show that “counsel’s representation f ell below an objective standard o f r e asonableness” “ u nder prevailing prof e ssional norm s” and that counsel’s negligence “was prejudicial to the def ense.” Strickland , 466 U.S. at 688, 691-92.

“ T h e d ef e ndant m ust s how that there is a r easonable p robability t hat, but f or counsel’s unprof essional e rrors, the r esult of the proceeding would have been d if f erent. A r easonable probability is a p robability suf f icient to underm i ne conf

idence in the o utcom e.” Id. at 694.

1 3¶28. T h e c r i mi n a l p r o c e s s i s “a m ore appropriate f o rum to present [ these] cl a i ms . ” Morgano v. Sm ith , 879 P.2d 735, 739 n.3 (Nev. 1994). And

a convicted def

end a n t w h o c a nnot m eet the standard of p roving that there is a reasonab le probability t hat, but f or c ounsel’s unprof

essional errors, there would not have b een a convic t i on, also cannot m eet the higher burden of proving by

a f a ir preponderance of

the evidence in a later m a lpractice action that b u t f

o r c ounsel’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. Furtherm ore, bef

o re accepting a g uilty plea, the circuit court is required to undertake

an extensive colloquy with the def endant, f ace-to-f ace and in open court. See, e.g. , Hannah

v. State , 943 So. 2d 20, 25 ( Miss. 2 006). One of the questions circuit courts routinely ask of the def endant is whether he i s satisf ied with his attorney ’s r epresentation, and the court will generally ref

use to accept a guilty plea if the answer is n o. S ee, e.g. , Wilson v. State , 81 So. 3d 1067, 1082-83 (Miss. 2012). Bef ore accepting the guilty plea, the c i rcuit court m ust f ind that it i s o f

f e r e d k nowingly , intelligently , and v oluntarily

. Hannah , 943 So. 2d at 25.
Because of these (and othe r ) saf eguards, d ef

ense counsel is “strongly presum ed to have rendered adequate assistance and m ade all s ignif icant decisions in t he e xercise of r easonable prof essional judgm ent.” Strickland , 466 U.S. at 690. ¶30. The principle of collateral estoppel provides that “[ w]here a question of f act essential

to a j udgm ent is a c t u a lly litigated and determ ined by a valid a nd f inal judgm ent, that determ ination is conclusive against the p arty against whom it was m ade in a subsequent suit

on a dif f erent cause of action.” Jordan v. McKenna , 573 So. 2d 1371, 1375 (Miss. 1990)
1 4(citation om itted). One scholar called the a t tem pted repudiation of a guilty plea f or the
purposes of civil l itigation “the clearest case f or such an estoppel.” S

ee G i bson , 58 S.W .3d

at 114 ( quoting Ray v

. Stone , 9 5 2 S.W .2d 220, 224 (Ky

. Ct. A pp. 1 997) (quoting Geof f rey C. Hazard, Revisiting the Second Restatement of Judgments; Issue Preclusion and Related Problems , 66 Cornell L. Rev. 564, 578 (1981))). “Particularly galling is the situation where

a c rim i nal convicted on his own guilty plea seeks as plaintif f in a s ubsequent civil action to claim redress based on a repudiation o f the conf ession. The ef

f r ontery or, as som e m ight say it, chutzpah , is t oo m

uch to take.” Id. Thus, m ost other courts hav e c o n cluded that “by operation of the d octrine of collateral estoppel, a valid cri mi n a l c onviction acts a s a bar to overturning that conviction i n a civil dam ages suit.” Levine v. Kling , 123 F.3d 580, 583 (7th Cir. 1997). This result has been r e a c h e d b y a substantial m ajority o f courts that have considered the issue; “only a f ew courts have held to the contrary .” See R os e n b e rg v. Shostak , 405 S.W .3d 8, 13-14 n.5 (Mo. Ct. App. 2013) (collecting authorities). ¶31. W e note a lso that our Legislature has created a com prehensive s chem e f

or a convicted crim inal def

endant to challenge t hat conviction on appeal or through postconviction relief

. As the Legisl a t

u r e i t s e l f p u t i t , t he M ississippi Unif orm P ost-Conviction Collateral Relief Act is intended “ to provide the courts of this state with an e xclusive and unif o rm p rocedure f

or the collateral review o f convictions and s entences.” See Miss. Code Ann. § 99-39-3(1) (Rev. 2015). Perm itting collateral relitigation of the validity of c rim i nal convictions outside that
f ram ework “would underm ine the ef f ective adm i nistration of t he judicial sy stem .”

1 5Rosenberg , 405 S.W .3d at 15. Courts f rom other states with sim ilar statutory schem es have gone so f ar as to say it would “shock the public conscience, engender disrespect f or courts and generally discredit the adm inistration of justice.” I d . As the Oregon Suprem e Court has observed,
In our society , n o other legal outcom e of the t rial process is s o d i f f i c u l t to obtain [ as a c rim inal conviction]. Yet, to a llow a pe r s on convicted of a cri m i nal of

f e nse to sue that person’s l awy er without having f irst overturned the conviction w o u l d mean that the courts would be perm itting relitigation of a m atter that is s upposed to be settled: The com plaining party is d eem ed by the law t o be guilty

. The panoply of protections a ccorded t o the crim inally a c cused (including direct appeal and post-conviction relief ) is so inclusi v e , a

n d the signif icance of a conviction so im portant to vindication o f the rule of law, t h a t i t w o u ld appear m ost unusual to p erm i t a person to prosecute a legal m alpractice action prem ised on som e f law i n the process that led to t hat person’s conviction at the sam e t im e t hat the person’s conv i c t i o n r em ained valid f or a ll other p u rposes. In other w ords, while the conviction and sentence rem ain valid f

o r all other purposes, it is inappropriat e t o t r e a t a com plaining convicted of

f ender as having b een “harm ed” in a l egally c o gnizable w ay 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 crim inal of f ense a s validly convicted unless and until the person’s conviction h as been reversed, whether on appeal or through post-conviction relief , or the person otherwise has been exonerated.” Id. at 561. ¶32. Another p u b l i c - p o l i c y i n t e r e s t i s i n f a c i l i t a t i n g t h e p r a c t i c a l and ef f ective adm inistration of the court sy s tem and the crim i nal justice process. Requiring exoneration “prom otes judicial econom y because m any i ssues litigated in the quest f or post-conviction relief will be duplicated in the l egal m alpractice c laim

. ” Gibson , 58 S.W .3d at 114. It also

1 6helps “preven t a f lood of nuisance litigation” and “ encourag[ es] the representation of crim inal def

endants,” since crim inal d ef endants are of

ten indigent and representing them is rarely lucrative. Barker v. Capotosto , 875 N

. W .2d 157, 163 (Iowa 2016). M o r e o v e r , t h e exoneration rule “encourag[ es] t h e thorough representation of crim inal def endants” by reducing “the practice of def ensive law, in which lawy ers spend tim e and energy attem pting

to insulate their trial court decisions f rom a t tack in a later m alpracti c e c a s e . ” Gibson , 58
S

. W.3d at 115 (citation om itted). And since a m alpractice suit waives attorney -client privilege, the exoneration rule helps avoid t he specter of a f orm er def ense attorney revealing “pr ivileged or other evidence in h is or h er def ense” t o t he m alpractice suit that m ight later be u sed against the f

orm er client in subsequent crim i nal proceedings. See S haw v. State , 816 P.2d 1358, 1361 ( Alaska 1991). It is also desirable to allow “ a c rim i nal def endant w ith a valid post-conviction relief claim t o pursue that rem e d y w ithout t he distraction of also f iling a legal m a lpractice claim .” See id. ¶33. As the Oregon Suprem e Court noted in Stevens v. Bispham , 851 P.2d 556, 560 (Or. 1993), “[ l]egal m alpractice is a com m on-law tor t c l a i m .” Thus, “[ i ]n the absence of any pertinent legislation, it is f o r this court t o def

ine w hat constitutes legally cognizable harm in

a tort case.” Id. And “the choice of what c onstitutes legally cognizable harm is a policy choice.” Id. W e a gree , and we hereby adopt the m ajority rule in o ther s tates requiring exoneration as a prerequisite to a crim inal m alpractice action. ¶34. To be c lear, when we say a def endant m ust be “exonerated,” we m e an he m ust obtain

1 7a m ore f

a v o r a b le disposition o f his conviction or sentence t hrough direct appeal, postconviction r elief

, habeas corpus, or sim ilar m eans within the crim i nal justice process. 3
At that point, the m alpractice suit m ay be i nitiated even if the underly ing crim inal case has

not y e t been f

inally resolved. W e choose rever s a l o r vacation r ather than f inal disposition because m any crim inal charges, when r em anded f or a new trial, are not actually retried—and there is no statute of lim itations f o r ma n y s erious of

f enses in Mississippi, and thus those charges m ay never be f

inally resolved. See Miss. Code A n n . § 9 9

- 1

- 5 (Rev. 2015). This would ef f ectively deny m alpractice suits to m any o f those convicted of serious of f enses. See
Silver v. Brodeur , 682 N.E.2d 811, 818 (Ind. Ct. App. 1997). Our def inition of exoneration

as r eversal establishes a bright-line rule that is not “ contingent on whether the State decides

to continue or revive prosecution of the def endant, a decision that m ay be m ade prom ptly or never, depending on whether there is pressure f rom a statute of

lim i tations.” Mashaney v. Bd. of Indigents’ Def. Servs. , 355 P.3d 667, 677 (Kan. 2015). ¶35. But if the p rosecution is resum ed af ter a m alpractice suit h as been f iled, the trial court should stay the m alpractice action until t he u nderly ing crim inal p roceedings are resolved.
If t he def endant is ultim ately convicted of t he s am e of f e nse on rem a nd, h e obviously cannot show t hat his f

irst attorney ’s negligence proxim ately caused h is f irst conviction, because of collateral e stoppel. See Jordan v. McKenna , 573 S o. 2d 1371, 1375 (Miss. 1990). It f ollows

3 O n e co u r

t su g g e sted a b etter n am e f o r th e relief req u ired w o u ld b e “v in d icatio n ,” b u t w e u se ex o n eratio n b ec a u s e m an y o th er co u rts h av e u sed it. S ee M a sh a n ey v. B d

. o f In d ig en ts’ D ef. S e rvs. , 3 5 5 P .3 d 6 6 7 , 6 7 3 -7 4 (K an . 2 0 1 5 ). 1 8t h a t if h e is convicted of a l esser of f ense, he can only show dam ages stem m ing f rom t h e original pu n i s hm ent if h e has a lready suf f ered punishm ent in excess of the sentence he receives on rem a nd. And if he is sentenced on rem and to tim e served, he has no dam ages. ¶36. Som e courts, a m ajority even, go f urther than exoneration in the crim inal proceedings and r equire a m a lpractice claim ant prove he is actually innocent of the charges, som etim es including lesser-included of f e nses or other of

f enses that m ight have been c harged f rom the transaction at issue. See Barker , 875 N.W .2d at 161-62 (survey i ng cases). At least one court has adopted a s im i lar rule but put the b urden on the def endant by holding that the plaintif f ’s guilt i s an af

f irm ative def

ense barring the guilty plaintif f f rom collecting any dam ages

r e s u l t i ng f

rom his conviction. See Shaw v. State , 861 P.2d 566, 571-73 (Alaska 1 9 9 3 )

. These courts reason that the true p r o x i ma t e cause o f a crim inal-m alpractice plaintif f ’s dam ages is his own guilt, that a guilty crim inal has no legally protected i nterest in his liberty , and that any negligence by a def ense attorney i s legally s uperseded by the def endant’s own crim inal conduct. S

ee Barker , 875 N.W .2d at 162-163; Shaw , 861 P.2d 566 at 572. ¶37. The procedural p osture of today ’s case does not require this Court to decide whether

or not to adopt a per se actual innocence rule. W e l eave that question f o r another d ay , but

we o bserve, as the Barker cour t d i d , that a m alpractice plaintif f “who was f

actually guilty of t he crim e f

or which he or she was convicted

. . . will likely conf ront signif

icant causation issues” even without a per se rule actual innocence rule. Barker , 875 N.W .2d at 166. ¶38. Next, we a ddress the operation of the statute of lim i tations. In prior decisions, both

1 9this Court and the Court of A ppeals have rejected the cla i ms o f s u c cessf ul p ostconviction relief claim ants that the statute of lim itations f or a m alpractice claim began to r un u pon their achieving postconviction r e lief

. Instead, we adopted t he Court of Appeals’ prior h olding that the statute begins to r

un when the plaintif

f “learns, or through reasonable diligence should have learned o f his counsel’s negligence.” B radley v. Jordan , 182 So. 3d 439, 441 (Miss. 2016) (quo t i n g H

y m e s v . McIlwain , 856 So. 2d 416, 418 (Miss. Ct. App. 2003)). T h is

statem en t w as actu ally m islead in g , b ecau se o u r g e n eral statu te o f lim itatio n s is to lled o n ly

w h en t h e in

ju ry i s laten t, n o t its cau se. S ee A n g le v. K

o p p ers , 4 2 S o . 3 d 1 , 5 -7 (M i ss. 2 0 1 0 ).
T h u s it w o u ld h a v e b een m o re co rrect to h av e said in B ra d ley th a t th e statu t e b eg in s to ru n
at th e tim e o f

co n v i ctio n . B u t

th e d i stin c tio n m ad e n o d if f eren ce in B ra d

ley o r H ym es , as th e real i ssu e i n th o se cases w as w h eth er the statute of lim itations was tolled during appeals or postconviction proceedings; we held that it was not. See Bradley , 182 So. 3d at 441. ¶39. Bradley a nd Hym e s are untenable af

ter today ’s decision because they were prem ised

on the assum

p tion that exo n e r a t i o n was not an elem ent o f a crim inal-def ense m a lpractice claim

. If B radley were paired with the exoneration rule, it would operate as de f acto bar to

m any m eritorious c r i m inal-m alpractice actions, a s successf ul postconviction proceedings of ten t ake m ore t han three y ears to work their w ay to a f inal disposition even if im m ediately pursued af

ter conviction. ¶40. Most other co u r t s w i t h an exoneration r ule have f

ound that exoneration essentially becom es an elem ent of the crim inal-m alpractice c ause o f action and that the cause of action

2 0accrues o nly af t er the m alpractice plaintif f is exonerated of the underly ing crim inal charges.
See Noske v. Friedberg , 656 N.W .2d 409, 414 (Mi n n . Ct. App. 2003) (survey i ng cases). These courts f

ind this result a

ppealing because it establishes a bright-line rule that can easily be applied. See M

a sh a n ey v. B d

. o f In d i g en ts’ D ef. S

e rvs. , 3 5 5 P .3 d 6 6 7 , 6 7 4 ( K an . 2 0 1 5 ) ¶41. The Kansas Suprem e Court, in reaching this result, relied on i t s p r i o r h oldings that “[ a] caus e o f a c t i o n accrues when the right to institute a nd m aintain a suit arises, or when there is a d em and capable of present enf

orcem e nt” and the “true test of accrual determ ines point at which plaintif

f cou ld f i rst have f

iled, prosecuted a c tion to successf ul conclusion.”
See id. (citations and internal quotation m arks om itted). Existing Mississip p i caselaw has held the sam e. A cause of action accrues “when i t c o m es into existence as an enf orceable claim , t hat is, when the right to sue becom es vested.” Weathers v. Metro. Life I ns. Co. , 14
So. 3d 688, 692 (Miss. 2009) (qu o t ing Bullard v. G uardian Life Ins. C o. of A m . , 941 So. 2d 812, 815 (Miss. 2006)). Put another way , “the statute of lim itations begins to run when all the elem ents of a tort, or ca u s e o f a c tion, are present.” Id. (internal quotation m arks

om itted) (quoting Caves v. Y arbrough , 991 So. 2d 142, 147 (Miss. 2008)). ¶42. Courts adopting the accrual rule f urther analogize the c rim inal-m a lpractice claim to

one f or m alicious prosecution, w hich accrues only when the prosecutio n p roceedings are
term inated i n the m alicious-prosecution plaintif f ’s f avor. See, e.g. , Shaw v. State , 816 P.2d 1358, 1362 ( Alaska 1991). Again, the sam e i s true in M ississippi. See Joiner Ins. Agency

v. P rincipal Cas. Ins. , 684 S o . 2 d 1242, 1244 (Miss. 1996). Sim ilarly , t he U nited States

2 1Suprem e Court has held that an exonerated convict’s claim s under § 1983 accrue at the t im e

of exoneration rather than conviction. See Heck v. Hum phrey , 512 U.S. 477, 489-90, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994). ¶43. Still, we a cknowledge that a substantial m inority of courts have taken a dif f erent tack, which i s of

ten called t he “two-track” approach. See Noske , 656 N.W .2d at 414-15 (survey ing cases). U n d e r the two-track approach, the statute of lim i tations on the m a lpractice

c l a im generally begins to run u pon the underly i ng conviction. Since exoneration of ten
cannot be obtained within the statute of l im itations f or the m alpractice claim , the would-be

m alpractice plaintif

f is allowed to f

ile his m alpractice s uit averring that he is in t he process of obtaining postconviction relief

. The t rial court then stay s the m a lpractice case until the postconviction relief

claim is disposed of

. See id. ¶44. The two-track approach has the advantage of putting the def

ense attorney

on notice of t he claim s against him , but it com es with substa n t i al adm inistrative and practical costs.
It would “ require e very convicted def endant who seeks relief f

rom a conviction

. . . to also
f ile a l egal-m alpractice action o r risk later havin g t h e a c t ion be t im e-barred.” Id. at 416. Considering the volum e of crim inal appeals and postconviction petitions, the burden on trial

courts to adm inister these i nnum erable, speculative m alpractice claim s would obviously be substantial. A n d t he two-track approach f urther creates this “invitation to b ring litigation, including the attendant burden and expense placed on f inite judicial resources as well as on the parties, f

or cases i n which no justiciable controversy currently exists or m ay ever exist.”

2 2Id. (citation om itted).

¶45. W e agree with the N oske court t hat the burdens of the two-track a pproach outweigh the b enef i ts. W e t heref

ore overrule Bradley a n d Hym es and adopt the m a jority rule that the crim inal m alpractice claim accrues and begins to run o n the d ate of exoneration, as def ined above. W e recognize that t his holding creates a som ewhat unique situation in that t he accrual of t he cause of action—and the extent of the dam a ges—depends on the p laintif f ’s diligence in pursuing his postconviction rem edies. But w e think t h e se concerns can adequately be addressed by the application of two f am iliar p rinciples o f law. First, the plaintif f has a duty

to m itigate his d am ages. See Wall v. Swilley , 5 62 So. 2 d 1252, 1258 (Miss. 1990). Any dam ages t hat can be shown by the def e n d a n t t o result f

rom the m alpractice plaintif f ’s unreasonable delay i n pursuing his exoneration f rom the underly ing crim i nal charges cannot be said to have been caused by the def endant a ttorney

. Second, t he doctrine o f laches bars suit when the plaintif

f ’s unreasonable d elay “results i n injustice o r disadvantage to another.”
Bolden v. Gate w o od , 250 M iss. 93, 119, 164 So. 2d 721, 7 32 (1964). W hile we have previously held that laches ordinarily has no application when t he statute of lim itations has

not y et run, Greenlee v

. Mitchell , 607 S o. 2d 97, 111 (Miss. 1992), th a t holding does not extend to the peculiar situation created today

. ¶46. Finally , we turn to the spe c i f i c c a u s e s o f action asserted in the Triggs’ com plaint. Addressing these claim s under R ule 12(b)(6), the question is whether t he c om plaint stated

a claim upon which relief m a y be granted. T o do so, the Triggs w e r e required t o provide (1)

2 3a s hort a nd plain statem ent of the claim f o r r e l i e f ; a nd ( 2) a dem and f

or judgm ent f

or the relief to which t hey claim entitlem ent. M.R.C.P. 8(a). In assessing the legal s uf f iciency of the c om p laint, all f

actual allegations m

ust be taken as true, a n d dism issal is i m proper unless it “appear[ s] to a c ertainty that the plaintif f [ s] [ are] entitled to no relief under a n y s et of f acts that c ould be proved i n support o f the claim .” Crum v. City of Corinth , 183 So. 3d 8 47, 850- 51 (Miss. 2016) (internal quotations om itted). ¶47. The c om

p laint alleged f

ive causes of action, which it l abeled f r aud, b reach o f contract, legal m alpractice ( negligence), a ccounting f o r m oney p aid, and negligent inf liction of

e m o t i o n a l distress. The m alpractice and negligent-inf l iction

- o f- e m o t i o n a l

- d i s t

r e s s c l a i m s a

r e clearly f ounded on allegations of prof essional m alpractice. D espite the label, the breach-of

contract c ount also sounds in the tort of prof essional negligence: it alleges F arese breached the contract by negligently perf o rm ing his duties as a def ense attorney

. Likewise, the claim of f rau d i s a d d ressed to the correctness of Farese’s legal judgm ent and is t heref ore just a

m alpractice claim couched as a n i ntentional tort; t his c laim also requires exoneration bef ore it m ay be pursued. S

ee Greathouse v. McConnell , 982 S.W .2d 1 65, 172 (Tex. App. 1998). All of these claim s are barred by Dalton’s f ailure to secure exoneration prior to f i ling suit. ¶48. But the cause of a ction f or an a ccounting i s dif

f erent. The Triggs allege Farese took

a $ 50,000 retainer to def

end Dalton, but that Farese never accounted f or the m oney and did not actually

earn it. To the extent this claim does not depend on the quality of the services rendered, it is a m ere f

e e dispute and should n ot have been dism issed. See L a bovitz v.

2 4Feinberg , 713 N.E.2d 379, 385 (Mass. App. Ct. 1999).
CONCLUSION ¶49. In sum m ary , we hold that a convicted crim inal m ust f irst “exonerate” him self

through the crim inal-justice process bef ore suing his def

ense attorney f

or prof essional negligence in causing his conviction. Here, Dalton Trigg adm its he did n o t s e c u r e relief f rom his conviction, and thus the m alpractice-based claim s against his a t t o r ney were properly dism issed. But to the extent the Triggs a llege t hey w e r e c h a r ged f or work not actually perf orm ed, the claim should not have been dism issed. Thus, w e af f irm the judgm ent in part, reverse it in part, and rem and the case f or f urther proceedings consistent with this opinion. ¶50. AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.
RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, MAX WELL AND BEAM , J J . , CONCUR. WALLER, C.J., AND CHAMBERLIN, J., NOT PARTICIPATING.

2 5