I respectfully dissent.
I. DISCUSSION
A. Summary Judgment
As to Coinco’s '719 clams, the majority concludes that summary judgment was proper because Mr. Browne’s expert testimony was purely speculative and insufficient to create a triable issue on the element of causation. It is important to emphasize that a defendant’s negligence is a question of fact for the jury to decide, not a question of law for the court’s determination. Roberts v. Sokol 330 S.W.3d 576, 581 (Mo.App. S.D.2011). Moreover, Missouri law holds that, except in clear and palpable eases, expert testimony is required to show legal malpractice. Id. As the majority notes, Mr. Browne opined that Respondents’ failure to explain the proper application of the law and cite specific evidence in support of Coinco’s position caused Judge Lifland to rule against Coinco on the 719 patent infringement claims. I find that Mr. Browne’s opinion created a triable issue of fact precluding summary judgment and would reverse the trial court’s grant of summary judgment in favor of Respondents.1
B. Dismissal
As to Coinco’s '137 claims, the majority, relying on the test set forth in Powel v. Chaminade College Preparatory, Inc., 197 S.W.3d 576 (Mo. banc 2006), concludes that Coinco’s claims are barred by the five-year statute of limitations under section 516.120(4) RSMo 2000. As stated by the Supreme Court in Powel, Missouri Courts apply the “capable of ascertainment test” to determine when a cause of action accrues:
The issue is not when the injury occurred, or when plaintiff subjectively learned of the wrongful conduct and that it caused his or her injury, but when a reasonable person would have been put on notice that an injury and substantial damages may have occurred and would have undertaken to ascertain the extent of the damages. At that point, the damages would be sustained and capable of ascertainment as an objective matter.
Id. at 584-85. Relying on the “capable of ascertainment” test, the majority finds that the statute of limitations accrued when Judge Lifland issued the 1999 opinion finding patent infringement. The majority concludes that at the time the 1999 opinion was issued, “the fact of Coinco’s damages from Respondents’ advice was known and ascertainable” and “[o]nly the extent of its damage” was unknown, (emphasis in majority opinion). I decline to follow the majority’s approach because I fear that it will leave similar plaintiffs without a remedy for their claims.
*30Coinco’s cause of action alleged that Respondents provided negligent advice concerning Coinco’s possible infringement of Mars’s '137 patent. Although Judge Lif-land’s 1999 opinion finding patent infringement of Mars’s '137 patent gave Coinco notice of Respondents’ negligent advice, that negligent advice did not result in any damages until final judgment was entered on Mars’s patent infringement suit in 2007.
Under the majority’s analysis, Coinco was required to file its legal malpractice claims within five years of the 1999 opinion, well before Coinco knew that Respondents’ actions in fact resulted in substantial damages. This approach raises several issues for plaintiffs in Coinco’s position. If the cause is called for trial, how will the plaintiff prove its damages? Does the trial court have to stay the proceedings until damages are awarded in the underlying suit, if any are indeed awarded? Only at that point could the level of injury from the alleged negligence be known. How long is the trial court required to keep the cause on its docket? Is eight years (as was possible in this case) too long? Does the trial court have to assume that damages will in fact be awarded in the underlying case? Would plaintiffs in Coinco’s position be subject to an order of dismissal for failing to state a claim upon which relief can be granted? Any competent defense counsel would file a motion to dismiss as the elements of any negligence action, including legal malpractice, require an allegation that the plaintiff sustained damages. Selimanovic v. Finney, 337 S.W.3d 30, 35 (Mo.App. E.D.2011); Missouri Approved Instruction 31.00 (7th ed.2012). The obvious way to avoid these issues is to pursue a second course of action, the one chosen by Coinco in the present case, and wait until damages are in fact awarded in the underlying suit before filing a claim. However, under the majority’s holding, plaintiffs choosing this course of action risk their claims being dismissed if damages are not awarded in the underlying case in a timely manner. Powel could not have intended to place plaintiffs in such an untenable position.
Under the circumstances of this case, I would find that Coinco’s cause of action did not accrue until damages in the underlying suit were awarded in 2007. Only then were the damages from the alleged negligence truly capable of ascertainment. At that point, a reasonable person would be put on notice that “substantial damages may have occurred and would have undertaken to ascertain the extent of the damages.” Powel, 197 S.W.3d at 585. Accordingly, I would hold that Coinco’s suit, filed in 2008, was not barred by the five-year statute of limitations.
II. CONCLUSION
Because I find a genuine issue of material fact as to the issue of causation on Coinco’s '719 claims, I would reverse the trial court’s grant of summary judgment. Furthermore, because I find that Coinco’s '137 claims were not barred by the statute of limitations, I would also reverse the trial court’s dismissal of those claims.
. The majority also concludes that Judge Lif-land's legal analysis constituted an independent intervening act precluding a finding that Respondents’ actions were the proximate cause of Coinco's injury. However, "[t]he mere existence of an intervening cause or causes does not necessarily absolve the original negligent actor from responsibility.” Tompkins v. Cervantes, 917 S.W.2d 186, 190 (Mo.App. E.D. 1996). “An intervening cause will not break the chain of causation when it is merely a natural progression of events that were set in motion by the original negligent act.” English v. Empire Dist. Elec. Co., Inc., 220 S.W.3d 849, 857 (Mo.App. S.D.2007). It must be "of a wholly independent, distinct, successive, [and] unrelated” character. Jordan v. General Growth Development Corp., 675 S.W.2d 901, 903 (Mo.App. W.D.1984). Because Mr. Browne opined that Respondents’ negligence caused Judge Lifland to issue the ruling against Coinco, I also find that there is an issue of fact as to whether Judge Lifland's analysis was "wholly independent, distinct, successive, and unrelated” to Respondents’ alleged negligence.