                 This opinion is subject to revision before final
                        publication in the Pacific Reporter

                                 2019 UT 29


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

                       MATTHEW ROSS THOMAS,
                            Appellant,
                                       v.
      LYLE HILLYARD and HILLYARD, ANDERSON & OLSEN, P.C.,
                           Appellees.

                               No. 20170914
                             Filed July 2, 2019

                            On Direct Appeal

                    First District, Cache County
                  The Honorable Michael D. Lyon
                           No. 170100149

                                 Attorneys:
  Troy L. Booher, Beth E. Kennedy, Jeffrey R. Oritt, Salt Lake City,
                           for appellant
      Michael F. Skolnick, Jeremy R. Speckhals, Salt Lake City,
                            for appellees

    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 Matthew Ross Thomas claims he was convicted of two
felonies because of malpractice by his trial counsel, Lyle Hillyard.
Following his trial, Mr. Thomas hired new counsel and was able to
secure a new trial. He then accepted a plea deal in which he achieved
a better result than he had received at trial—replacing two felony
convictions with three misdemeanor convictions. We must
determine when his malpractice cause of action accrued.
                         THOMAS v. HILLYARD
                         Opinion of the Court

    ¶ 2 The district court granted summary judgment in favor of
Mr. Hillyard, concluding that Mr. Thomas’s malpractice action was
barred by the statute of limitations. He now appeals. Mr. Hillyard
argues that the elements of a legal malpractice claim were all
provable at the time the jury first returned its guilty verdict. He
asserts that Mr. Thomas’s claim for legal malpractice therefore
accrued on that date, and the statute of limitations began to run.
Because Mr. Thomas filed his claim after the four-year statute of
limitations had run, he claims it was untimely. Mr. Thomas, on the
other hand, argues that the element of causation could not be proven
until he received a more favorable result, which happened when he
accepted the plea deal. Alternatively, he asserts that his claim
accrued when he was granted a new trial. The date of both of these
events would place the filing of Mr. Thomas’s malpractice action
within the statute of limitations. We conclude that Mr. Thomas’s
claim accrued at the conclusion of his criminal case—when he pled
guilty to three misdemeanors. Because we find that Mr. Thomas’s
claim was timely filed, we reverse.
                             Background1
    ¶ 3 Mr. Thomas was charged and convicted of two counts of
aggravated sexual abuse. He hired Mr. Hillyard as his attorney. On
October 26, 2012, a jury found him guilty of both felony counts.
Mr. Thomas contends that Mr. Hillyard’s representation at trial was
deficient in several respects. Specifically, he argues that Mr. Hillyard
failed to object to inadmissible testimony from Mr. Thomas’s
daughter and her counselor, failed to object to inadmissible
other-acts evidence presented in his ex-wife’s testimony, failed to
request key jury instructions, and failed to object to prejudicial
statements in the prosecutor’s closing argument.
    ¶ 4 Mr. Thomas hired new attorneys, and on January 7, 2013,
they filed a motion to arrest judgment, claiming ineffective
assistance of counsel based on Mr. Hillyard’s alleged errors. This
motion was granted on May 24, 2013, and Mr. Thomas was granted a
new trial. On October 24, 2014, Mr. Thomas pled guilty to three
misdemeanor charges and was released from custody.

_____________________________________________________________
   1  “When reviewing an order granting summary judgment, the
facts and all reasonable inferences that can be drawn from the facts
are viewed in a light most favorable to the party opposing the
motion.” Johnson v. Morton Thiokol, Inc., 818 P.2d 997, 998 (Utah
1991). We recite the facts accordingly.


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                          Opinion of the Court
    ¶ 5 On May 23, 2017, Mr. Thomas sued Mr. Hillyard for
malpractice.    The     complaint    alleged    that   Mr. Hillyard’s
representation fell below a reasonable standard of care, proximately
causing economic and noneconomic damages. Mr. Hillyard filed a
motion for summary judgment, arguing that the malpractice action
was time-barred under the four-year statute of limitations applicable
to legal malpractice actions. He grounded this motion on a theory
that the claim accrued on the date the jury returned a guilty verdict,
October 26, 2012.
    ¶ 6 Mr. Thomas opposed the motion, arguing that the
malpractice action did not accrue until he obtained relief from his
felony convictions on October 24, 2014. Since he filed his complaint
two and a half years after that, he asserted that he filed within the
statute of limitations. Alternatively, he claimed that, at the earliest,
the action accrued when he was granted a new trial, which
happened three years and 364 days prior to his filing, also within the
statute of limitations. So either way, he asserts, he was still within
the statute of limitations.
   ¶ 7 The district court granted summary judgment in favor of
Mr. Hillyard. It ruled that the malpractice action accrued when
Mr. Thomas was convicted on the felony charges. The court
concluded that, at the latest, his cause of action accrued when he
incurred legal fees for the post-trial motion he filed on January 7,
2013.
    ¶ 8 Mr. Thomas timely appealed the district court’s ruling to
this court, and we have jurisdiction pursuant to Utah Code
section 78A-3-102(3)(j).
                          Standard of Review
   ¶ 9 A district court’s application of a statute of limitations and
grant of summary judgment are both questions of law, which we
review for correctness.2 But application of a statute of limitations
may also involve “subsidiary factual determination[s,]” which we
review “in the light most favorable to the non-moving party.”3
                                Analysis
   ¶ 10 Mr. Thomas argues that his legal malpractice claim did not
accrue until he received a result more favorable than he had received
_____________________________________________________________
   2 Colosimo v. Roman Catholic Bishop of Salt Lake City, 2007 UT 25,

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


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                          Opinion of the Court

at trial—pleading to misdemeanor charges rather than felony
charges. Mr. Hillyard, on the other hand, asserts that the claim
accrued, at the latest, when Mr. Thomas moved to arrest judgment.
We hold that a legal malpractice claim based on alleged malpractice
committed in the course of a criminal proceeding does not accrue
until the underlying action has concluded and there is no appeal of
right available. Additionally, we hold that if a defendant chooses to
pursue a claim under the Post-Conviction Remedies Act (PCRA), the
statute of limitations will be tolled throughout the pendency of the
claim. Under this framework, Mr. Thomas’s claim was timely. So we
reverse and remand to the district court.
              I. A Malpractice Cause of Action Accrues
             When the Underlying Criminal Action is Final
    ¶ 11 Under Utah law, a malpractice action must be brought
within a four-year limitation period.4 A statute of limitations “begins
to run when the last event necessary to complete the cause of action
occurs.”5 The elements of a legal malpractice cause of action 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.”6 But “the
law does not recognize an inchoate wrong.”7 A plaintiff “must wait




_____________________________________________________________
    4 See UTAH CODE § 78B-2-307(3); see also Jensen v. Young, 2010 UT

67, ¶ 15, 245 P.3d 731 (“The limitations period for a legal malpractice
claim is four years.”).
   5 Sevy v. Sec. Title Co. of S. Utah, 902 P.2d 629, 634 (Utah 1995); see
also Ash v. 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.”); Young Res. Ltd. P’ship v. Promontory Landfill LLC, 2018 UT
App 99, ¶ 20, 427 P.3d 457 (stating that “a cause of action accrues
when a plaintiff could have first filed and prosecuted an action to
successful completion” (internal quotation marks omitted)).
   6 Christensen & Jensen, P.C. v. Barrett & Daines, 2008 UT 64, ¶ 22,
194 P.3d 931.
   7   Seale v. Gowans, 923 P.2d 1361, 1364 (Utah 1996).


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                            Cite as: 2019 UT 29
                           Opinion of the Court
until some harm manifests itself,” so a claim does not accrue until “a
plaintiff suffers actual harm or damages.”8
    ¶ 12 In the case at hand, the parties disagree as to “the last event
necessary to complete the cause of action.” 9 Mr. Hillyard argues that
a claim accrues as soon as the client knows of the attorney’s alleged
negligence. Mr. Thomas counters that the element of causation
cannot be satisfied, and the malpractice claim cannot accrue, unless
and until the client successfully challenges the conviction.
    ¶ 13 To prove causation, a plaintiff generally must demonstrate
that “he or she would have been better off if the attorney’s alleged
malpractice had never occurred.”10 We have never explicitly
articulated the elements for legal malpractice, or the requirements
for proving causation, when the underlying case is criminal.11 Some
jurisdictions “require a criminal defendant to obtain post conviction
relief, prove actual innocence, or both, before maintaining a legal
malpractice action against the former criminal defense attorney.”12
_____________________________________________________________
    8 Id.; 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).
   9   Sevy, 902 P.2d at 634.
   10   USA Power, LLC v. PacifiCorp, 2016 UT 20, ¶ 115, 372 P.3d 629.
   11  Mr. Hillyard cites to Willey v. Bugden to suggest that the
requirements are the same for criminal malpractice as for civil
malpractice. 2013 UT App 297, ¶ 23, 318 P.3d 757. Criminal cases are
distinct from civil cases in many respects. But most significantly
here, criminal defendants are constitutionally entitled to effective
representation under the Sixth Amendment to the United States
Constitution. Strickland v. Washington, 466 U.S. 668, 686–87 (1984). So
criminal defendants have the additional post-trial remedy of
pursuing claims for ineffective assistance of counsel, a claim not
afforded in civil cases. See id. By contrast, civil clients do not have a
Sixth Amendment right to effective assistance of counsel, so they
cannot rely on claims of ineffective assistance of counsel. Malpractice
actions provide the sole remedy for civil clients against their counsel.
And in a civil malpractice action, clients prove causation through a
“trial-within-a-trial” to demonstrate that they would have been in a
better position, absent the attorney’s malpractice. Harline v. Barker,
912 P.2d 433, 439–40 (Utah 1996).
   12 Willey, 2013 UT App 297, ¶ 10 n.5 (citing Wiley v. Cty. of San
Diego, 966 P.2d 983, 985 (Cal. 1998); Canaan v. Bartee, 72 P.3d 911,
                                                        (Continued)
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                           THOMAS v. HILLYARD
                           Opinion of the Court

These jurisdictions generally do so upon the ground that “the
adjudication of the plaintiff’s guilt precludes him from proving
proximate cause.”13 We disagree.
    ¶ 14 This is a question of first impression in this court. But our
court of appeals has considered this issue and has not imposed any
requirements for a criminal malpractice claim beyond those required
in a civil malpractice claim.14 And we also decline to do so here.
Success in a postconviction proceeding or evidence of actual
innocence certainly may aid plaintiffs in proving causation or harm.
But neither will always be necessary. There may be scenarios in
which a plaintiff would not be entitled to postconviction relief but
could still demonstrate proximate cause in a legal malpractice
action.15 So while there are obvious differences between civil and
criminal settings, none of them suggests that additional burdens
should be imposed on criminal defendants who assert malpractice,
especially when those burdens may leave some defendants without
a remedy. This also maintains uniformity in how we handle
malpractice actions. We therefore turn to our existing malpractice
caselaw to determine when Mr. Thomas’s claim accrued.


915–16 (Kan. 2003)); see also Rosenberg v. Shostak, 405 S.W.3d 8, 14
(Mo. Ct. App. 2013).
   13  Rosenberg, 405 S.W.3d at 13; see also Wiley, 966 P.2d at 987
(“Only an innocent person wrongly convicted due to inadequate
representation has suffered a compensable injury because in that
situation the nexus between the malpractice and palpable harm is
sufficient to warrant a civil action . . . .”).
   14   Willey, 2013 UT App 297, ¶ 10 n.5 (citations omitted).
   15 See, e.g., Krahn v. Kinney, 538 N.E.2d 1058 (Ohio 1989). In Krahn,
defense counsel failed to communicate an offer to Krahn in which
the prosecutor offered to dismiss the charges against her in return
for her testimony against another party. Id. at 1059. Counsel also
cancelled Krahn’s request for a trial by jury, without her
authorization. Id. Krahn entered a guilty plea without knowledge of
her counsel’s malpractice. Id. at 1060. She later hired counsel who
filed a motion to vacate the judgment, which the court denied. Id.; see
also Fischer v. Longest, 637 A.2d 517, 522–23 (Md. Ct. Spec. App. 1994)
(finding that defendant could sue defense counsel for legal
malpractice, without challenging the ultimate outcome of the
criminal proceeding, where he alleged that counsel’s lack of
diligence led to an extended pretrial detention).


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                            Cite as: 2019 UT 29
                           Opinion of the Court
    ¶ 15 Though the accrual of a criminal malpractice claim is a
question of first impression, we have outlined when malpractice
claims accrue in other contexts. In Clark v. Deloitte & Touche LLP, the
Clarks received incorrect advice from their accountant, were audited
by the IRS, and appealed the IRS’s findings.16 After they prevailed in
their appeal, the Clarks sued their accountant for malpractice.17 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. 18 We also stated
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.19 And in Boyd v. Jones, the Tenth Circuit applied our
Deloitte decision to the legal malpractice context as well.20 Both
Deloitte and Boyd emphasized the need to wait until the damages
“became sufficiently final for the plaintiffs to know that they could
bring a malpractice claim.”21
    ¶ 16 Mr. Hillyard notes that both Deloitte and Boyd were decided
prior to our decision in Jensen v. Young.22 In Jensen, we held that a
claim for malpractice accrued when an attorney missed a statute of
limitations deadline for filing a claim.23 But our decision in Jensen
failed to consider both Deloitte and Boyd, and neither case was
briefed to the court. And we view Jensen’s holding as inconsistent
with our reasoning in Deloitte.
   ¶ 17 Today we hold that 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.
The underlying case in Jensen was relevant to whether Jensen would
actually suffer damages as a result of his attorney’s alleged
malpractice. Jensen filed a complaint with a number of claims, some

_____________________________________________________________
   16 2001 UT 90, ¶¶ 4–9, 34 P.3d 209.

   17   Id. ¶ 10.
   18   Id. ¶ 25.
   19Id. ¶ 31 (citing Pizel v. Zuspann, 795 P.2d 42, 56 (Kan. 1990);
Amfac Distrib. Corp. v. Miller, 673 P.2d 792, 793 (Ariz. 1983) (en banc)).
   20   85 F. App’x 77, 81–83 (10th Cir. 2003).
   21   Id. at 82 (citing Deloitte, 2001 UT 90, ¶¶ 20–21).
   22 2010    UT 67, 245 P.3d 731.
   23 Id.   ¶ 20.


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                         THOMAS v. HILLYARD
                         Opinion of the Court

of which were past the statute of limitations.24 The remaining claims
proceeded to trial on similar facts, but on alternative theories for
relief. Because Jensen’s remaining claims were based on alternative
theories of recovery, he still could have received his full damages
amount, despite the dismissal of the other claims. If he was made
whole through his remaining claims, he likely would not be entitled
to damages for malpractice.25 And if he had not prevailed on the
remaining claims, then he would no longer have a valid malpractice
claim.26 So applying the Deloitte reasoning, Jensen’s malpractice
claim should not have accrued until the underlying case was final—
once his appeal from the judgment was final.
    ¶ 18 Because Jensen is inconsistent with Deloitte, we cannot
decide this case without overruling either Jensen or Deloitte. The
parties have not asked us to overrule Jensen or Deloitte. But where we
have two lines of cases that have taken inconsistent and confusing
paths, we must choose a path going forward. So we take this
opportunity to clarify and reconcile the law. For the reasons we set
forth below, we reaffirm the Deloitte reasoning, and we overrule
Jensen to the extent it is inconsistent with Deloitte and this opinion.27

_____________________________________________________________
   24 Id. ¶¶ 8, 10.

   25  “In most legal malpractice cases, whether brought under
negligence, breach of contract, or breach of fiduciary duty theories, ‘a
plaintiff’s damages . . . are limited to the actual amount the plaintiff
would have recovered had he been successful in the underlying
case.’” Gregory & Swapp, PLLC v. Kranendonk, 2018 UT 36, ¶ 24, 424
P.3d 897 (alteration in original).
   26 “To prove proximate cause in legal malpractice cases . . . the
plaintiff must show that absent the attorney’s negligence, the
underlying suit would have been successful.” Harline, 912 P.2d at
439. Because Jensen’s claims were all based on various theories of
defamation, if the alleged defamatory comments were not capable of
defamatory meaning, he could not have prevailed on any of his
claims. In that case, he would not have been able to demonstrate
proximate cause.
   27  While we have repeatedly emphasized the importance of stare
decisis, and continue to do so, we have also acknowledged that the
“presumption against overruling precedent is not equally strong in
all cases.” Eldridge v. Johndrow, 2015 UT 21, ¶ 22, 345 P.3d 553. In
making such a decision, we consider “(1) the persuasiveness of the
authority and reasoning on which the precedent was originally
                                                        (Continued)
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                          Cite as: 2019 UT 29
                         Opinion of the Court
    ¶ 19 Here, given our limited caselaw on the issue, the parties
each look to other jurisdictions in arguing the proper approach for
accrual. Mr. Thomas argues for adoption of a “one-track” approach,
in which a “malpractice action accrues when the client satisfies the
legal prerequisite for the malpractice claim—successfully proving
ineffective assistance of counsel.” Mr. Hillyard argues for adoption
of a “two-track” approach, in which “a criminal malpractice plaintiff
simultaneously pursues either post-conviction or appellate relief
while also maintaining a malpractice action.” We decline to adopt
either approach.28 Instead, we choose to follow the same approach
that we articulated for accounting malpractice in Deloitte.29 We do so
in an effort to maintain uniformity across various malpractice
settings, to provide plaintiffs flexibility in pursuing their claims, and
to avoid foreclosing avenues of relief for criminal defendants.
   ¶ 20 We hold that a malpractice claim does not accrue until the
underlying direct action has concluded and there is no appeal of
right available. Once there is no appeal of right available, the harm is
sufficiently final. So the cause of action accrues and the statute of
limitations begins to run. Defendants may, of course, decline to bring
a direct appeal, in which case they may bring a malpractice action

based, and (2) how firmly the precedent has become established in
the law since it was handed down.” Id. In analyzing these factors, we
also consider the precedent’s “consistency with other legal
principles.” Id. Here, the Eldridge test is satisfied because Jensen did
not analyze Deloitte or Boyd, and it is inconsistent with both cases.
And the holding in Jensen is not firmly established in our law. The
only case to cite to Jensen’s formulation for accrual since its
publication is Moshier v. Fisher, which is presently before this court
on certiorari. 2018 UT App 104, 427 P.3d 486, cert. granted, 429 P.3d
460 (Utah Oct. 22, 2018).
   28  Although the parties use the “one-track” and “two-track”
approach labels, it should be noted that there is significant variation
in how each jurisdiction handles the specifics of its accrual and
tolling framework.
   29 2001 UT 90. This approach also largely tracks the approach
articulated for accrual in the PCRA. UTAH CODE § 78B-9-107. And
while many jurisdictions follow some variation of either the one- or
two-track approach as articulated by the parties, our approach is not
novel. See, e.g., Stephens v. Denison, 64 S.W.3d 297, 300 (Ky. Ct. App.
2001) (holding that client’s cause of action for malpractice did not
accrue until the appeal in his criminal case was final).


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                              THOMAS v. HILLYARD
                              Opinion of the Court

following expiration of the time to file an appeal. But if a defendant
chooses to appeal, the statute of limitations will not begin to run
until the appeal is final.
    ¶ 21 In holding that a malpractice plaintiff may file an action
without electing to appeal, we recognize that such a plaintiff may
face significant practical impediments to success. Such plaintiffs may
not be able to prove proximate causation, or may have difficulty
establishing damages. In many cases, criminal malpractice
defendants (defense attorneys) may be able to demonstrate the
plaintiff’s failure to mitigate damages. And we are not foreclosing
collateral estoppel arguments, especially when the claim is based on
a guilty verdict. But ultimately, we leave to malpractice plaintiffs
(criminal defendants) the choice of which procedural path to pursue.
               II. The Statute of Limitations Will Be Tolled
             During the Pendency of Claims Under the PCRA
   ¶ 22 Once criminal defendants have exhausted their appeals of
right, they have the additional remedy of filing an action under the
PCRA.30 The statute of limitations for a claim under the PCRA is one
year.31 In certain circumstances, this period may be extended.32 We
hold that the statute of limitations for a malpractice action based on
conduct occurring in a criminal case is tolled during the pendency of
a PCRA action, provided the PCRA action is filed before the
four-year statute of limitations on the malpractice action has expired.
But the filing of a PCRA claim may not be used to revive claims for
malpractice for which the statute of limitations has expired. Plaintiffs
may rely on tolling while the PCRA claim is pending, but they are
not precluded from filing their malpractice action during that time
and pursuing both claims simultaneously. Again, we leave to
plaintiffs the choice of which procedures to pursue.
                                  Conclusion
   ¶ 23 A cause of action for legal malpractice does not accrue until
the underlying action is final and no appeal of right is available.
Mr. Thomas’s malpractice action did not accrue until the underlying
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    30 UTAH CODE §§ 78B-9-101 to -405. This act is the “sole remedy

for any person who challenges a conviction or sentence for a criminal
offense and who has exhausted all other legal remedies.” Id.
§ 78B-9-102(1)(a).
   31   Id. § 78B-9-107(1).
   32   Id. § 78B-9-107(3).


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                        Opinion of the Court
litigation concluded—when he pled to the misdemeanor charges and
ended the criminal action. His malpractice action was therefore
timely when filed. Accordingly, we reverse the district court’s entry
of summary judgment and remand for adjudication of Mr. Thomas’s
legal malpractice claim.




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