IN THE SUPREME COURT OF THE STATE OF IDAHO
                               Docket No. 43755


MICHAEL SCOTT MOLEN,                    )
                                        )             Boise, December 2016 Term
      Plaintiff-Appellant,              )
                                        )             2017 Opinion No. 6
 v.                                     )
                                        )             Filed: January 24, 2017
 RONALD D. CHRISTIAN,                   )
                                        )             Stephen W. Kenyon, Clerk
      Defendant-Respondent.             )
                                        )
_________________________________________


       Appeal from the District Court of the Fourth Judicial District of the
       State of Idaho, Ada County. Hon. Lynn G. Norton, District Judge.

       The district court’s summary judgment order is vacated and this matter
       is remanded for further proceedings consistent with this Opinion.
       Costs on appeal are awarded to appellant.

       Dartanyon Burrows, Payette, attorney for appellant.

       Points Law, PLLC, Boise, attorneys for respondent. Michelle R.
       Points argued.
                            ____________________________

W. JONES, Justice
                                    I. NATURE OF THE CASE
       Appellant, Michael Scott Molen (“Molen”), appeals the district court’s summary
judgment dismissal of his legal malpractice action. The malpractice action stems from
Respondent, Ronald Christian’s (“Christian”), representation of Molen in a criminal case. The
crux of this appeal is whether the statute of limitations on Molen’s malpractice cause of action
accrued upon Molen’s initial criminal conviction or when Molen was later exonerated.
                        II. FACTUAL AND PROCEDURAL BACKGROUND
       On September 19, 2005, Molen was charged with lewd conduct with a minor child, S.Z.
Molen pleaded not guilty at his arraignment. On the morning of trial, Christian arrived at the
courthouse under the influence of alcohol. His blood alcohol content was measured at .329 and

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.344. The trial was vacated. An amended information was filed on May 11, 2007, and the case
proceeded to jury trial on June 18, 2007.
           At trial, S.Z. testified as to Molen’s sexual contact with her during the summers of 2004
and 2005. Alisa Ortega, a pediatric nurse practitioner employed by St. Luke’s Regional Medical
Center CARES1 unit, testified that her examination of S.Z. was consistent with the sexual abuse
disclosed by S.Z. On cross-examination, Nurse Ortega disclosed for the first time that there were
photographs of a colposcopic genital examination of S.Z. that had not been previously provided
to either the State or the defense. Doctor Edward Robert Friedlander was the defense’s medical
expert. Consulting on sex abuse cases was not a major part of his practice. He did not see the
photographs disclosed by Nurse Ortega until about 90 minutes before he testified. He testified
that the photographs from the colposcopic genital examination did not support a finding of
sexual abuse.
           On June 22, 2007, the jury returned a guilty verdict. Molen moved for a new trial arguing
that the disclosure of the photographs of the colposcopic examination was unfair. The district
court denied Molen’s motion. On June 4, 2008, Molen was sentenced to twenty years consisting
of eight years fixed and twelve years indeterminate. Molen appealed his conviction, but the
conviction was affirmed by the Idaho Court of Appeals.
           On May 23, 2011, Molen filed a pro se petition for post-conviction relief asserting that
his trial and appellate counsel were ineffective and that prosecutorial misconduct denied him a
fair trial. On January 23, 2012, the State filed a motion for summary dismissal of the amended
petition. On April 1, 2013, Molen, through court appointed counsel, filed a second amended
petition for post-conviction relief, which alleged ineffective assistance of counsel.
           On December 26, 2013, Molen and the State filed a statement of stipulated reasons to
resolve the post-conviction case. Therein, the parties agreed that post-conviction relief was
warranted. In a chambers conference with counsel, the district court advised that it would not
grant the stipulated resolution; however, it scheduled an evidentiary hearing to be held on April
28 and 29, 2014. Around April 7, 2014, at a status conference, counsel disclosed that they had
recently learned of an additional CARES interview of S.Z., which would require granting post-
conviction relief. According to counsel, S.Z. made statements to Nurse Ortega that contradicted
S.Z.’s previous statements. Counsel asserted that those statements were subject to Brady v.

1
    Children at Risk Evaluation Services.

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Maryland, even if unknown to the State, because of the role the CARES unit has in criminal
investigations of child sexual abuse. 373 U.S. 83 (1963) (holding that the prosecution must
disclose to the defense all exculpatory evidence known to the state or in its possession).
        On April 23, 2014, Molen and the State filed a joint stipulation of facts and points of
authority related to the Brady material and a joint motion for summary judgment in favor of
Molen. The parties jointly stipulated that Molen was entitled to post-conviction relief due to the
contents of the newly discovered CARES interview.
        On June 17, 2014, the district court granted the petition for post-conviction relief, but
denied the stipulated motion for summary judgment.2 The district court’s grant of post-
conviction relief was premised on the conclusion that Molen’s trial counsel’s performance fell
below an objective standard of reasonableness in: (1) failing to consult with and/or retain an
expert in pediatric sexual abuse; (2) failing to discover the existence of the colposcopic
photographs prior to trial; and (3) failing to request either a continuance of the trial or a mistrial
so that the new evidence could be reviewed by an expert in pediatric sexual abuse. The district
court vacated the judgment of conviction entered on January 7, 2008, granted Molen a new trial,
and ordered the Idaho Department of Corrections to release Molen from custody. In a hearing on
July 10, 2014, the district court granted the State’s motion to dismiss the case.
        On February 17, 2015, Molen filed suit against Christian asserting legal malpractice and
breach of contract arising from the criminal lawsuit in which Christian represented Molen. On
March 10, 2015, Christian filed a motion to dismiss wherein he argued that Molen’s cause of
action was barred by the two year statute of limitations. Molen filed responsive briefing on April
2, 2015. Therein, he argued that his claims were not barred by the statute of limitations because
his cause of action against Christian did not accrue until June 17, 2014, when he was granted
post-conviction relief. The district court denied Christian’s motion to dismiss because there were
questions of fact as to when there was objective proof of damages. On August 7, 2015, Christian
filed a motion for summary judgment, which again asserted that Molen’s claim was barred by the
statute of limitations.



2
  The stipulated motion for summary judgment was denied because the late disclosed Nurse Ortega conversation
was not a Brady violation. The district court reasoned that the Nurse Ortega conversation was not a Brady violation
because there was no reasonable probability of a different result solely due to the delayed disclosure of the
conversation.

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         On October 23, 2015, the district court granted Christian’s motion for summary
judgment. In its memorandum decision and order granting summary judgment, the district court
analyzed two issues: (1) when the cause of action for the criminal legal malpractice claim
accrued; and (2) whether actual innocence is an element of a criminal legal malpractice claim.
The district court expressed concern regarding the fact that Idaho does not have substantive
caselaw discussing either issue.
         After introducing the basic elements of a malpractice action, the district court noted that
the parties were in agreement regarding the facts. The parties disagreed, however, as to how the
facts applied under the law. The district court indicated that it was inclined to adopt the
exoneration rule3 because it aligned with Idaho’s public policy based on civil malpractice cases.
Ultimately, though, the district court refrained from doing so, noting that such a decision “must
come through the Idaho Supreme Court.” The district court felt “constrained to conclude” that
Molen’s cause of action against Christian accrued in 2007, at the time the actions constituting
malpractice occurred. Specifically, the district court held that Christian’s conduct related to
Molen’s criminal trial was “sufficiently bad” that regardless of whether Molen was convicted or
not, there was an “objectively ascertainable occurrence of some damage” and related causation in
2007. The district court noted that it did not find the result particularly equitable because it
“seems unfair to deny [Molen] his right to pursue and prove damages against [Christian].”
         As to the second issue—whether actual innocence is an element of a legal malpractice
claim arising from a criminal conviction—the district court concluded that it would only be an
issue if this Court adopts the exoneration rule.
                                             III. ISSUES ON APPEAL
1.       Whether the district court erred in granting summary judgment in favor of Christian.
2.       Whether actual innocence is an element of a malpractice action arising from a criminal
         conviction.
3.       Whether Christian is entitled to attorney’s fees on appeal.
                                           IV. STANDARD OF REVIEW
                On appeal from the grant of a motion for summary judgment, we
         review that decision de novo but apply the same standard used by the district
         court in ruling on the motion. As a general rule, this Court will affirm the
         judgment if the pleadings, depositions, and admissions on file, together with the

3
 Generally, the exoneration rule requires successful direct or collateral relief prior to filing suit against a criminal
defense attorney for legal malpractice.

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       affidavits, if any, show that there is no genuine issue as to any material fact and
       that the moving party is entitled to a judgment as a matter of law. When making
       its determination, the Court construes all facts in the light most favorable to the
       nonmoving party.
Parks v. Safeco Insurance Company of Illinois, 160 Idaho 556, 560–61, 376 P.3d 760, 764–65
(2016) (internal quotations and citations omitted).
               The time when a cause of action accrues may be a question of law or a
       question of fact, depending upon whether any disputed issues of material fact
       exist. Where there is no dispute over any issue of material fact regarding when the
       cause of action accrues, the question is one of law for determination by the court.
Nerco Minerals Co. v. Morrison Knudsen Corp., 140 Idaho 144, 148, 90 P.3d 894, 898 (2004).
(internal quotations and citations omitted).
                                           V. ANALYSIS
A.     The district court erred by granting summary judgment.
       We hold that the statute of limitations for a legal malpractice action does not begin to run
until the plaintiff has been exonerated of the underlying criminal conviction. Accordingly, we
vacate the district court’s summary judgment order.
       Idaho Code section 5-219(4) provides that a two year statute of limitations applies to
actions to recover damages for professional malpractice. I.C. § 5-219(4). Further, the statute
provides:
       [T]he cause of action shall be deemed to have accrued as of the time of the
       occurrence, act or omission complained of, and the limitation period shall not be
       extended by reason of any continuing consequences or damages resulting
       therefrom or any continuing professional or commercial relationship between the
       injured party and the alleged wrongdoer . . . .
Id.
       While the plain language of Idaho Code section 5-219(4) provides that the cause of action
accrues “as of the time of the occurrence, act or omission complained of,” this Court has applied
the completed tort theory to delay the accrual of statutes of limitations to “avoid absurd results.”
Davis v. Moran, 112 Idaho 703, 708, 735 P.2d 1014, 1019 (1987). In Minnick v. Hawley Troxell
Ennis and Hawley, LLP, this Court explained the completed tort theory as it applies to
professional negligence claims:
       The statute’s accrual standard operates under a completed tort theory in that the
       cause of action accrues when the tort is completed, an event that corresponds with
       the first objectively ascertainable occurrence of some damage. See, e.g., Streib v.
       Veigel, 109 Idaho 174, 178–80, 706 P.2d 63, 67–69 (1985). What constitutes

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          some damage turns on the facts and circumstances of each case. Bonz v.
          Sudweeks, 119 Idaho 539, 543, 808 P.2d 876, 880 (1991).
157 Idaho 863, 866–67, 341 P.3d 580, 583–84 (2015). “Likewise, what constitutes ‘objective
proof’ of the existence of some damage suffered by the client also must be decided on the
circumstances of each case.” City of McCall v. Buxton, 146 Idaho 656, 662, 201 P.3d 629, 635
(2009).
          The rationale behind the completed tort theory was illustrated in Buxton, where this Court
held that “the existence or effect of any alleged negligence on the part of the City’s Attorneys . . .
depended upon the outcome of the litigation” because until the outcome was determined, there
would not be objective proof of actual damage. Id. at 663, 201 P.3d at 636.
          To hold otherwise in this case “would foment future litigation initiated on sheer
          surmise of potential damages in order to avoid the likely consequence of seeing
          actions barred by limitations.” Mack Financial Corp. v. Smith, 111 Idaho 8, 12,
          720 P.2d 191, 195 (1986). Clients involved in lengthy litigation would have to file
          protective lawsuits against their attorneys when following their advice and
          strategy, without yet having any objective proof of actual damage or being able to
          prove a cause of action for professional malpractice.
Id. In other words, it makes little sense for a plaintiff, on one hand, to rely on their attorney, but
on the other hand, file a protective malpractice action to prevent the claim from being later
barred by the statute of limitations. Applying the completed tort theory resolves the conflict.
          Despite the significant precedent in respect to the accrual of malpractice causes of action
in tort cases, this Court has not addressed the issue in the criminal context. Other jurisdictions
have resolved the cause of action accrual issue in one of two ways: (1) holding that a cause of
action for criminal legal malpractice accrues when the criminal defendant obtains direct or
collateral relief from the underlying criminal conviction—known as an exoneration rule4; or (2)
rejecting an exoneration rule5, and instead requiring the convicted party to pursue post-


4
  In Rantz v. Kaufman, 109 P.3d 132, 135 (2005), the Colorado Supreme Court cited the following cases to
demonstrate that “many jurisdictions that have considered [the exoneration rule] have adopted some form of
postconviction [sic] relief as a prerequisite to maintaining the malpractice action”: Shaw v. State, 816 P.2d 1358
(Alaska 1991); Coscia v. McKenna & Cuneo, 25 P.3d 670 (Cal. 2001); Steele v. Kehoe, 747 So. 2d 931 (Fla.
1999); Levine v. Kling, 123 F.3d 580 (7th Cir. 1997) (applying Illinois law); Trobaugh v. Sondag, 668 N.W.2d 577
(Iowa 2003); Canaan v. Bartee, 72 P.3d 911 (Kan. 2003); Noske v. Friedberg, 670 N.W.2d 740 (Minn.
2003); Morgano v. Smith, 879 P.2d 735 (Nev. 1994); Carmel v. Lunney, 511 N.E.2d 1126 (N.Y. 1987); Stevens v.
Bispham, 851 P.2d 556 (Or. 1993); Bailey v. Tucker, 621 A.2d 108 (Pa. 1993); Gibson v. Trant, 58 S.W.3d 103
(Tenn. 2001); Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995); Adkins v. Dixon, 482 S.E.2d 797 (Va. 1997).
5
  The Rantz court also cited the following cases to demonstrate that “[s]everal other jurisdictions have directly or
impliedly declined to make prior postconviction [sic] relief a requirement for suit”: Mylar v. Wilkinson, 435 So. 2d
6
conviction relief and the malpractice action simultaneously, or risk the malpractice action being
later barred by the statute of limitations.
        We hold that Molen’s malpractice cause of action did not accrue until he was exonerated,
which occurred on July 10, 2014. If the exoneration rule is not adopted, then a convicted
defendant will have to file two lawsuits simultaneously: (1) a malpractice claim, and (2) an
appeal and/or post-conviction relief proceeding. The malpractice claim would essentially serve
as a protective lawsuit to prevent the claim from being later barred by the statute of limitations.
The appeal and/or post-conviction proceeding, if successful, would then be the basis for the
malpractice action. Such a result would be contrary to this Court’s holding in Buxton. 146 Idaho
at 663, 201 P.3d at 636. That is, this Court does not favor protective lawsuits that must be filed
only to be stayed. Id. It is a waste of the district court’s resources to deal with such cases, which
may never actually be pursued.
        In sum, we hold that Molen’s malpractice cause of action did not begin to accrue until he
was exonerated on July 10, 2014. Accordingly, the district court erred in holding that his
malpractice cause of action, which was filed on February 17, 2015, was barred by the two year
statute of limitations.
B.      Actual innocence is not an element of a criminal malpractice cause of action.
        This Court has addressed a legal malpractice claim arising from a criminal case only
once, in Lamb v. Manweiler, 129 Idaho 269, 923 P.2d 976 (1996). Lamb did not address the
statute of limitations issue; however, Lamb did address—in dicta—the actual innocence element.
Id. at 272, 923 P.2d at 979. Before the appeal reached this Court, the Idaho Court of Appeals
vacated and remanded the district court’s grant of summary judgment. In doing so, the Idaho
Court of Appeals addressed an issue of first impression in Idaho: where a legal malpractice suit
stems from the representation of a client in a criminal prosecution, must a plaintiff prove actual
innocence? The Idaho Court of Appeals held that a plaintiff must prove that he or she was in fact
innocent of a crime. Manweiler petitioned this Court for review, and this Court affirmed the
district court’s grant of summary judgment. This Court did not expressly require actual


1237 (Ala. 1983); McCord v. Bailey, 636 F.2d 606 (D.C. 1980); Glenn v. Aiken, 569 N.E.2d 783 (Mass.
1991) (former client has burden of proving innocence of underlying charge); Gebhardt v. O'Rourke, 510 N.W.2d
900 (Mich. 1994); Jepson v. Stubbs, 555 S.W.2d 307 (Mo. 1977); Ereth v. Cascade County, 81 P.3d 463 (Mont.
2003); Rodriguez v. Nielsen, 609 N.W.2d 368 (Neb. 2000) (requires establishment of “actual innocence”); Mahoney
v. Shaheen, Cappiello, Stein & Gordon, 727 A.2d 996 (N.H. 1999).

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innocence as an element of the claim; rather, it stated that “Lamb does not dispute the
proposition that in a legal malpractice action arising from representation of a defendant in a
criminal proceeding, the person pursuing the claim must establish the additional element of
actual innocence of the underlying criminal charges.” Id.
         We hold that actual innocence is not an element of a criminal malpractice cause of action.
Requiring a criminal malpractice plaintiff to prove actual innocence is contrary to the
fundamental principle that a person is presumed innocent until proven guilty beyond a
reasonable doubt. Further, a criminal defendant can be harmed separately from the harm he or
she incurs as a result of being guilty of a crime. See Piris v. Kitching, 375 P.3d 627 (Wash.
2016). Additionally, as a practical matter, requiring actual innocence would essentially eliminate
a defense attorney’s duty to provide competent counsel to a client he or she knows to be guilty.
For the foregoing reasons, we hold that actual innocence is not an element of a criminal
malpractice cause of action.
C.       Christian is not entitled to attorney’s fees on appeal.
         We deny Christian’s request for attorney’s fees on appeal because he is not the prevailing
party.
                                         VI. CONCLUSION
         We vacate the district court’s summary judgment order and remand the case for further
proceedings consistent with this opinion. Costs on appeal are awarded to Molen.
         Chief Justice J. JONES, Justices EISMANN, BURDICK and HORTON, CONCUR.




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