Terronez v. Davis, Hatley

2022 MT 85N, 508 P.3d 409

Opinion

04/26/2022

DA 21-0330 Case Number: DA 21-0330

IN THE SUPREME COURT OF THE STATE OF MONTANA 2022 MT 85N

JASON TERRONEZ,

Plaintiff and Appellant,

v.

DAVIS, HATLEY, HAFFEMAN & TIGHE, P.C.,

Defendant and Appellee.

APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. BDV-18-0393 Honorable Elizabeth A. Best, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Adam H. Owens, Gregory G. Costanza, Granite Peak Law, PLLC, Belgrade, Montana

For Appellee:

Mikel L. Moore, Eric Brooks, Moore, Cockrell, Goicoechea & Johnson, P.C., Kalispell, Montana

Submitted on Briefs: April 13, 2022

Decided: April 26, 2022

Filed:

c ir-641.—if __________________________________________ Clerk Justice Beth Baker delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2 Jason Terronez, represented by an attorney with the law firm Davis, Hatley,

Haffeman & Tighe, P.C. (DHHT), pleaded guilty to sexual assault mid-trial in

September 2015. Early the next morning, Terronez’s attorney tragically died by suicide.

Represented by new counsel, Terronez withdrew his guilty plea and filed a civil claim for

legal malpractice against DHHT. While his civil suit was pending, Terronez entered an

Alford plea1 in his criminal matter. The District Court granted summary judgment to

DHHT, concluding that Terronez was collaterally estopped from asserting legal

malpractice because his previous claim of ineffective assistance of counsel (IAC) against

DHHT was unsuccessful. Terronez now appeals. We affirm for the alternative reason that

Terronez’s subsequent Alford plea prevents him from showing that DHHT’s malpractice

was the cause-in-fact of his original plea agreement.

¶3 In 2015, the State charged Terronez with one count of sexual intercourse without

consent after a family friend’s five-year-old daughter, L.W., reported that Terronez

assaulted her during a sleepover with Terronez’s children in Lewistown, Montana. We

1 Section 46-12-212, MCA; North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970). 2 summarized the facts of Terronez’s criminal matter in State v. Terronez, of which we take

judicial notice. 2017 MT 296, 389 Mont. 421, 406 P.3d 947. Attorney Jeffry Foster, who

worked for DHHT, represented Terronez in the criminal matter.

¶4 Due to the nature of the crime and the relationship between Terronez and L.W.’s

family, the atmosphere surrounding Terronez’s criminal proceeding was tense. Early in

the case, several unusual incidents occurred involving L.W.’s parents, David and

Sunnshine Welton, which ultimately resulted in their exclusion from the courthouse during

trial. Just days after the State charged Terronez, David confronted the presiding judge at a

restaurant, causing the judge to recuse himself. During the first week of trial, Sunnshine

rebuked Foster and accosted a potential juror in the restroom, and David made threats

regarding the outcome of the trial to the investigating officer, Officer Jenness. Additional

safety concerns arose on the fifth day of trial, after someone threw a concrete block through

the windshield of Foster’s vehicle while it was parked outside the Terronez residence.

Foster then rented a car and moved to a different hotel to avoid detection from the Weltons,

but the Weltons encountered him in the new hotel’s restaurant later that evening. Though

the court denied Terronez’s motions for a change of venue and a mistrial, it implemented

security measures at the courthouse and at Terronez’s residence, and it held daily

in-chambers security conferences with the parties and law enforcement. We noted in

Terronez that these events created “a pervasive air of fear in the proceedings.”

Terronez, ¶ 31 (quotation marks omitted).

3 ¶5 On the seventh day of trial, the parties reached a plea agreement. Terronez pleaded

guilty to the lesser-included offense of felony sexual assault, § 45-5-502, MCA. Foster

was found dead in his hotel room the following morning from an apparent suicide.

¶6 Represented by new counsel, Terronez moved to withdraw his guilty plea and to

rescind the plea agreement. The district court granted his motion, concluding that Terronez

established “good cause” under § 46-16-105(2), MCA, because Foster had rendered

ineffective assistance of counsel. On appeal, we determined that we could not conclude

from the record that Foster’s representation was deficient or that Terronez was prejudiced.

Terronez, ¶ 30. We nonetheless affirmed the district court’s decision permitting Terronez

to withdraw his guilty plea “based on the extreme events that occurred during the

proceeding.” Terronez, ¶ 30. The case was remanded, and, in November 2020, Terronez

entered an Alford plea to felony sexual assault. The district court sentenced Terronez to

the Department of Corrections for ten years.

¶7 While his criminal matter was pending on remand, Terronez filed this civil suit for

professional negligence against DHHT, alleging that Foster committed legal malpractice,

resulting from DHHT’s negligent supervision. The complaint alleged that, but for Foster’s

deficient representation, Terronez would not have suffered the cost of obtaining a

withdrawal of his guilty plea, the cost of a second trial, a loss of liberty, or the emotional

distress of pleading guilty to sexual assault. The complaint raised by and large the same

issues considered in Terronez’s criminal appeal.

¶8 In April 2021, DHHT moved for summary judgment on the grounds that Terronez

was collaterally estopped from asserting legal malpractice and that Terronez’s subsequent

4 Alford plea precluded him from establishing the causation and damages elements of legal

malpractice. The District Court granted DHHT’s motion on the first ground—that

collateral estoppel barred Terronez’s civil action.

¶9 We review a district court’s grant of summary judgment de novo, applying

“the same evaluation, based on Rule 56, M. R. Civ. P., as the district court.” Rafanelli v.

Dale, 1998 MT 331, ¶ 8, 292 Mont. 277, 971 P.2d 371 (citation omitted).

¶10 Terronez argues that the District Court erred by concluding that collateral estoppel

bars his legal malpractice claim because his burden in an IAC claim is different from his

burden in a civil action for legal malpractice. DHHT raises two arguments in

opposition: (1) the District Court correctly concluded that the doctrine of collateral estoppel

precludes Terronez from asserting legal malpractice because this Court rejected his IAC

claim in his criminal appeal; and (2) Terronez’s subsequent Alford plea bars Terronez from

establishing the causation and damages elements of malpractice because Terronez cannot

demonstrate that DHHT’s negligence was the cause-in-fact of his original plea agreement.

Because DHHT’s second argument resolves this dispute, we do not consider whether

Terronez’s malpractice claim is barred by the doctrine of collateral estoppel.

¶11 Legal malpractice is a type of professional negligence, to which we apply the

“four requisite elements of a common negligence action: (1) duty; (2) breach; (3) causation;

and (4) damages.” Labair v. Carey, 2012 MT 312, ¶ 17, 367 Mont. 453, 291 P.3d 1160

(citation omitted). The existence of a client-lawyer relationship establishes the “duty”

element in a legal malpractice action. Lorash v. Epstein, 236 Mont. 21, 24-25,

767 P.2d 1335, 1337 (1989). An attorney breaches the duties that flow from the

5 attorney-client relationship when his or her actions fall below the acceptable standards of

care, which are determined by “the skill and care ordinarily exercised by attorneys[.]”

Carlson v. Morton, 229 Mont. 234, 240, 745 P.2d 1133, 1136 (1987). The causation

element is satisfied “if there is an uninterrupted chain of events from the negligent act to

the injury,” such that “the attorney’s negligent conduct was a cause-in-fact of the damage

alleged.” Labair, ¶ 24. An attorney’s negligent conduct is considered the cause-in-fact if

“the injury would not have occurred ‘but for’ that conduct.” Labair, ¶ 24.

¶12 To prevail in this matter, Terronez must establish that Foster’s performance fell

below “the skill and care ordinarily exercised by attorneys” and that, but for Foster’s

deficient performance, Terronez would not have suffered the alleged economic and

noneconomic damages that flowed from his guilty plea. See Carlson, 229 Mont. at 240,

745 P.2d at 1136; Labair, ¶ 24.

¶13 In Fang v. Bock, 2001 MT 116, 305 Mont. 322, 28 P.3d 456, a foreign citizen and

lawful permanent resident of the United States pleaded guilty to family member assault

based on incorrect legal advice from his attorney, Phyllis Bock. Fang, ¶ 14. Following

Fang’s guilty plea, the Immigration and Naturalization Service summoned him for

deportation. Fang, ¶ 8. Represented by new counsel, Fang moved to withdraw his guilty

plea, and the district court granted his motion on the ground that Bock rendered ineffective

assistance of counsel. Fang, ¶ 8. Based on the advice of his new immigration attorney,

Fang pleaded guilty to misdemeanor assault against the same member of his family.

Fang, ¶ 9. Even though Fang pleaded guilty to a different offense, an immigration judge

concluded that it too was a deportable offense under federal immigration statutes.

6 Fang, ¶ 10. On appeal, we rejected Fang’s professional negligence and negligent

supervision claims against Bock and her law firm. We held that because Fang’s situation

resulted in the same outcome following both correct legal advice and incorrect legal advice,

Fang could not prove that, but for Bock’s negligence, he could have avoided deportation.

Fang, ¶ 27.

¶14 Terronez’s situation is substantially similar to Fang’s. Terronez’s negligent

supervision claim against DHHT would require a finding that, but for DHHT’s negligence,

Terronez would not have pleaded guilty during his September 2015 criminal trial and

would more likely than not have prevailed on the criminal charges against him. Terronez,

however, pleaded guilty to the same criminal offense a second time, relying on independent

legal advice. It is immaterial that he did so through an Alford plea. An Alford plea allows

a criminal defendant to “plead guilty without actually admitting to the charge if he has

reviewed the evidence against him, if he is capable of making a voluntary, knowing, and

intelligent choice, and if the record contains strong evidence of guilt.” Commission

Comments to § 46-12-212(2), MCA. An Alford plea is, nonetheless, still a guilty plea.

Lawrence v. Guyer, 2019 MT 74, ¶ 8, 395 Mont. 222, 440 P.3d 1.

¶15 The “real issue” in Fang was whether Fang’s damages and “current predicament”

were a result of Bock’s error or “the inevitable consequences of conduct” to which Fang

admitted on two separate occasions. Fang, ¶ 14. In like fashion, the real issue here is

whether Terronez’s damages are the result of Foster’s allegedly deficient representation or

inevitable consequences of Terronez’s sequential pleas of guilty.

7 ¶16 Terronez pleaded guilty to sexual assault due to Foster’s allegedly ineffective

assistance of counsel, and the trial court granted his request to withdraw his guilty plea on

that basis. These facts are substantially similar to the facts of Fang. Terronez subsequently

retained new counsel and accepted an Alford plea, which is a guilty plea. Terronez cannot

establish, therefore, that the damages he allegedly suffered as a result of his guilty plea

were caused by Foster’s and DHHT’s negligence because he acknowledged guilt to the

same offense after he withdrew his guilty plea. We conclude, as in Fang, that Terronez

cannot prove the causation and damages elements of a legal malpractice claim against

Foster or his negligent supervision claim against DHHT.

¶17 Terronez cites Clark v. Baines, 84 P.3d 245 (Wash. 2004) for the proposition that

his Alford plea does not sever the chain of causation here. Clark, however, is not on point.

Clark, the survivor of a sexual assault, brought a civil suit against her assailant, Baines,

after he entered an Alford plea in the related criminal matter. Clark, 84 P.3d at 246. The

trial court granted partial summary judgment to Clark on Baines’s counterclaim for

malicious prosecution because Baines’s Alford plea established that Clark had probable

cause to file a civil suit against him, and Baines’s counterclaim therefore was collaterally

estopped. Clark, 84 P.3d at 247-48. The Washington Supreme Court reversed because it

determined that an Alford plea does not provide a criminal defendant a “full and fair

opportunity” to litigate, and therefore the elements of collateral estoppel could not be met.

Clark, 84 P.3d at 251. Our analysis here, however, is not premised on the doctrine of

collateral estoppel but on the severance of causation by Terronez’s later plea. Because

Terronez entered an Alford plea after his initial plea was withdrawn, he cannot establish

8 that, but for Foster’s negligence or DHHT’s negligent supervision, he would not have

pleaded guilty and would not have suffered the damages that he alleges flowed from his

guilty plea. His legal malpractice claim, therefore, fails as a matter of law.

¶18 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. We may affirm a trial

court on any ground supported by the record, regardless of its reasoning. State v. Wilson,

2022 MT 11, ¶ 34, 407 Mont. 225, ___ P.3d ___ (citations omitted). This appeal presents

no constitutional issues or issues of first impression and does not establish new precedent

or modify existing precedent. Because Terronez cannot establish all the elements of legal

malpractice, the District Court correctly granted summary judgment to DHHT. We

therefore affirm the District Court’s June 3, 2021 Order Granting Defendant’s Motion for

Summary Judgment.

/S/ BETH BAKER

We Concur:

/S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ JIM RICE /S/ INGRID GUSTAFSON