Moshier v. Fisher

This opinion is subject to revision before final
publication in the Pacific Reporter
2019 UT 46IN 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
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).
4This 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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¶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.
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MOSHIER v. FISHER
Opinion of the Court
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.
13See 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)
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MOSHIER v. FISHER
Opinion of the Court
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.”).
15Christensen & 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.6
Cite as: 2019 UT 46Opinion for Voting
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
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.
29Importantly, the Moshiers did not appeal the final bankruptcy
plan. Had they appealed, their claim would have accrued upon
conclusion of that appeal.
8