DALTON TRIGG AND DR. STEPHEN D. TRIGG
STEVEN FARESE, SR. AND FARESE, FARESE & FARESE, P.A.
OF JUDGMENT: 08/20/2014
LAFAYETTE COUNTY CIRCUIT COURT HON. L. BRELAND HILBURN JUDGE
COURT ATTORNEYS: MATTHEW WADE GILMER H. SCOT SPRAGINS
ATTORNEYS FOR APPELLANTS: MATTHEW WADE GILMER BARRY W. GILMER
JONATHAN DAVID NUESCH JOSEPH AARON CRONE RICHARD COLEMAN
ATTORNEYS FOR APPELLEES: LAWRENCE JOHN TUCKER, JR. H. SCOTT
SPRAGINS RALPH EDWIN CHAPMAN
RANDOLPH, P.J., KING AND ISHEE, JJ.
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
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.
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
AND PROCEDURAL HISTORY
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.
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. 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.
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
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
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.
"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).
Affidavits on Motion to Dismiss
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 ...