concurring.
Although I agree that the dismissal of Costa’s Petition should be affirmed, I do not find it necessary to address the issue of first impression decided by the majority: namely, whether a plaintiff alleging attorney malpractice in connection with a post-conviction relief proceeding can proceed without alleging his actual innocence, and in the face of a subsisting criminal conviction. Instead, I believe Costa’s Petition suffers from defects more mundane, but nonetheless dispositive: first, the Petition fails to adequately allege that Costa would have obtained post-conviction relief but for Allen’s claimed malpractice; and second, it fails to allege damages proximately caused by Allen’s alleged malpractice, because Costa does not allege that he would have been acquitted (or received any other more favorable outcome) at the new trial he claims Allen negligently failed to secure. I accordingly concur in the result.
1. As an initial matter, Costa’s Petition fails to adequately allege that he would have achieved post-conviction relief but for Allen’s purported negligence. At the outset of his Petition, Costa alleges that the grounds on which he sought post-conviction relief were “that the prosecution knew or should have known that [testimony it presented at his trial] was false, and failed to correct it,” and that his trial counsel failed to present “exculpatory materials in the form of documents which were or should have been in his file before and at the time of trial.” Beyond these general allegations describing Costa’s underlying post-conviction relief claims, the Petition fails to plead any facts suggesting that the evidence Allen negligently failed to present would have proven that either the prosecution or defense counsel knew, or should have discovered, the alleged falsity of the testimony presented at Costa’s criminal trial. Instead, his Petition contains detailed allegations that the evidence omitted from his post-conviction proceeding would have established that the testimony presented in his criminal trial was false, and that the witnesses acted deliberately, either to aid the prosecution or from other ulterior motives.
Given the grounds on which Costa sought post-conviction relief as described in his Petition, he needed to show either that the prosecution knowingly presented false, material testimony;2 or that his defense counsel failed to present exculpatory evidence which either was known to defense counsel, or was discoverable through reasonable investigation.3 Yet Costa’s Petition does not allege that Allen failed to present evidence which would have proven either of these linchpin issues. This ground, alone, justifies dismissal.
2. Costa’s Petition suffers from another, equally fundamental defect: it fails to allege that he would have been acquitted (or received some other disposition more favorable than in his original trial) at the new trial he claims that Allen negligently failed to secure. Instead, Costa’s Petition merely alleges that he would have been awarded post-conviction relief (in these circumstances, a new trial) if Allen had acted more competently. That is not enough.
*389Prior Missouri decisions have recognized that, in order to establish damages proximately caused by an attorney’s negligent handling of litigation, a malpractice plaintiff must prove “that it would have prevailed in the underlying case but for [the attorney’s] actions.” Day Advertising, Inc. v. Devries & Assocs., P.C., 217 S.W.3d 362, 367 (Mo.App. W.D.2007).
The plaintiff [in a legal malpractice suit] has the burden to establish the defendant’s negligence proximately resulted in damages to the plaintiff. Because the alleged damages are based on the resolution of the underlying action ..., the plaintiff must prove a “case within a case.” The plaintiff must prove that it had a valid claim or defense.
Id. (citations and internal quotation marks omitted); see also, e.g., Stockmann v. Frank, 239 S.W.3d 650, 657 (Mo.App. E.D.2007).
While not in these precise circumstances, other litigants have made essentially the same malpractice claim as Costa does here: that their attorney negligently forfeited their right to a trial, or to a new trial, or to a trial before a particular fact-finder. As a natural outgrowth of the “case within a case” principle, courts addressing such claims have held that the forfeiture of a litigant’s procedural rights — even if caused by an attorney’s negligence — is not enough to establish a viable malpractice claim, without evidence that the proceeding the litigant wanted would have resulted in a more favorable outcome. Thus, in Kilmer v. Carter, 274 Cal.App.2d 81, 78 Cal.Rptr. 800 (1969), a malpractice plaintiff alleged that his attorney negligently failed to file an opening brief in the appeal of an adverse judgment, thereby costing the malpractice plaintiff his right to a new trial. The California Court of Appeal held that the malpractice plaintiff had failed to prove his claim because, among other things, he had failed to show that he would have achieved a more favorable outcome at the new trial to which he alleged he was entitled:
We could dispose of the claim that there would have been a reversal of the [underlying judgment], by simply pointing out that plaintiff offered no evidence of the amount of damages he would have suffered at a retrial, had there been such a reversal. We do not believe that it was defendants’ burden to go forward on that point. Plaintiff was attempting to prove damages. Mere proof of negligent failure to secure a reversal of the [underlying] judgment simply left plaintiff’s case hanging in midair, since the [underlying] case would have had to be retried on the damage issue. The fact that at such a hypothetical retrial it would have been [the underlying plaintiffs] burden to prove the amount of his damages is no reason for relieving this [malpractice] plaintiff of his duty to plead and prove the damages resulting from defendants’ neglect.
Id. at 804 (emphasis added) (citations omitted).
Another case similarly observes that, in a legal malpractice claim alleging negligence by appellate counsel,
the relevant determinations are whether, had an appeal been timely taken, plaintiff would have prevailed and, on retrial, have obtained a more favorable result. In such a case, the first issue for the trial court is to determine on the record made in the original trial, as though it were a direct appeal, whether plaintiff would have prevailed had the appeal been timely taken. If that is resolved in plaintiffs favor, the second matter before the trial court is to retry the original case on the merits to determine whether, on the facts and law, plaintiff should have prevailed.
*390Universal Ideas Corp. v. Linn County, 64 Or.App. 805, 669 P.2d 1165, 1166 (1983) (involving claim against trial court clerk for failing to send notice of judgment, resulting in forfeiture of appeal rights) (citations omitted); see also 4 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 31:52, at 743 (2010). Other decisions reach the same result in circumstances in which a malpractice plaintiff claims that an attorney’s negligence cost the plaintiff his right to a trial: the denial of the right to trial, even if based on acknowledged negligence, is not enough to state a claim — the malpractice plaintiff must allege and prove what the results of that trial would have been.4 Indeed, this is essentially the result reached by the Eastern District in Stockmann, 239 S.W.3d 650, where a malpractice plaintiff claimed that her attorney’s “failure to timely refile her products liability/personal injury lawsuit ... resulted in the loss of her cause of action.” Id. at 652. In these circumstances (where the attorney had allegedly forfeited the malpractice plaintiffs right to even litigate the merits of her claim), the Court applied the general principle that, “[i]n a legal malpractice lawsuit, a plaintiffs damages are based on what a plaintiff could have recovered in the underlying lawsuit. Thus a plaintiff must prove a ‘case within a case.’ ” Id. at 657.
Here, Costa’s Petition alleges only that Allen’s alleged negligence in his post-conviction relief proceeding cost him his right to a new trial. The Petition contains no allegation that Costa would have been acquitted at such a re-trial, or that he would have received some other, more favorable outcome than in his original trial. This omission likewise justifies affirmance of the dismissal of Costa’s Petition.
Based on the pleading defects described above, I join in the affirmance of the dismissal of Costa’s Petition.
. See, e.g., State v. Albanese, 9 S.W.3d 39, 49-50 (Mo.App. W.D.1999), State v. Arndt, 881 S.W.2d 634, 637 (Mo.App. S.D.1994).
. See, e.g., Fisher v. State, 192 S.W.3d 551, 555 (Mo.App. S.D.2006); Alhamoud v. State, 91 S.W.3d 119, 121 (Mo.App. E.D.2002).
. See, e.g., Jones Motor Comp. v. Holtkamp, Liese, Beckemeier & Childress, P.C., 197 F.3d 1190, 1194 (7th Cir.1999) (Illinois law) (claim that counsel negligently forfeited client’s right to trial by jury, rather than to court, in underlying action; affirming summary judgment for attorney-defendant where "there is no credible evidence of what a jury might have awarded”); Law Practice Mgmt. Consultants, LLC v. M & A Counselors & Fiduciaries, LLC, 599 F.Supp.2d 355, 359 (E.D.N.Y.2009) (granting summary judgment against malpractice plaintiff where plaintiff contended that attorney negligently failed to timely oppose summary judgment motion in underlying case, because malpractice plaintiff made no showing that it would actually have prevailed in underlying case); Allied Prods., Inc. v. Duesterdick, 217 Va. 763, 232 S.E.2d 774, 775 (1977) (" 'If an attorney, in disregard of his duty, neglects to appear in a suit against his client, with the result that a default judgment is taken, it does not follow that the client has suffered damage,’ ” without evidence showing the merit of the malpractice-plaintiff's position in the underlying action), overruled on other grounds, Shipman v. Kruck, 267 Va. 495, 593 S.E.2d 319 (2004); but see Gans v. Gray, 612 F.Supp. 608, 621 n. 12 (E.D.Pa.1985) ("The challenged conduct consists of a post-trial, procedural error. It would be unreasonable under these circumstances to demand proof of success on the merits in the underlying action. The more appropriate standard would be to have the plaintiff present evidence that he would have succeeded on a motion for a new trial. To the extent that a plaintiff is deprived of the right to a trial de novo, he certainly is damaged.”).