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
9