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No. 00-784
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 116
HUA FANG, M.D.,
Plaintiff and Appellant,
v.
PHYLLIS BOCK, ASSOCIATED STUDENTS
LEGAL SERVICES MONTANA STATE
UNIVERSITY, and JULIA RICE,
Defendants and Respondents.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Jeffrey Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Alan F. Blakley, Blakley & Velk, Missoula, Montana
For Respondents:
Sam E. Haddon, Boone, Karlberg & Haddon, Missoula, Montana
Ann Brodsky, Department of Administration, Helena, Montana
Submitted on Briefs: March 15, 2001
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Decided: July 2, 2001
Filed:
_________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
¶1 Plaintiff, Hua Fang, M.D., brought this action for professional negligence and negligent
supervision against Defendants, Phyllis Bock and the Associated Students Legal Services
of Montana State University, in the District Court for the Eighteenth Judicial District in
Gallatin County. The defendants moved for summary judgment and that motion was
granted. Fang appeals the District Court's order dismissing his complaint by summary
judgment. We affirm the judgment of the District Court.
¶2 Fang has raised several issues on appeal. However, all of his claims depend on his
assertion that he was damaged by Bock's conduct. Since we conclude that he was not, the
following issue is dispositive:
¶3 Did the District Court err when it held that the plaintiff's claim for damages based on
the defendant's alleged professional negligence should be dismissed as a matter of law?
FACTUAL BACKGROUND
¶4 Appellant, Hua Fang, M.D., is a citizen of China and was a lawful permanent resident
of the United States. He was granted resident status on June 18, 1996, and was employed
by Montana State University as an HIV researcher. His wife, Chiun Liu, attended classes
at the University.
¶5 On November 21, 1997, Fang and his wife were involved in a domestic dispute and
Chiun Liu called the police. Chiun Liu stated in her affidavit that she did not realize when
she called the police that her husband would be arrested. However, Fang was arrested and
charged with "knowingly and purposefully causing bodily injury by striking his wife with
closed fist to the face" in violation of §45-5-206, MCA (1999). He was taken to the
Gallatin County Detention Center where he was shown a video by which he was advised
that a guilty plea could lead to deportation. On December 11, 1997, he and Chiun Liu
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went to the Associated Students Legal Services on campus for advice. There they met with
Phyllis Bock and asked her about the possibility of deportation.
¶6 Phyllis Bock contacted Julia Rice, an attorney employed by the University of Illinois at
Chicago who made a presentation regarding immigration law at a continuing legal
education seminar that Bock had attended. Bock told Rice that she was representing a
client charged with domestic abuse, a misdemeanor. Bock asked Rice if this was grounds
for deportation. Rice informed Bock that the INS would not initiate deportation
proceedings until the commission of two misdemeanors. Bock relayed that information to
Fang. Based at least in part on Bock's erroneous advice, Fang pled guilty to Family
Member Assault in violation of §45-5-206, MCA, on February 9, 1998.
¶7 However, in 1996, Congress amended the Immigration and Nationality Act at 8 U.S.C.
§1227(a)(2)(E)(i). The new law provides that domestic violence convictions are
deportable offenses. Deportation can occur if the violence was directed at "a current or
former spouse of the person. . . ." These provisions became effective with enactment of the
Illegal Immigrant Reform Act on September 30, 1996.
¶8 Several weeks after he pled guilty, Fang received a "Notice to Appear" from the INS
informing him that he was subject to deportation from this country. He hired new counsel
and moved the district court to set aside his guilty plea. On June 26, 1998, the district
court granted Fang's motion to withdraw his plea, stating that the failure of Bock to inform
Fang of the possibility of removal to China constituted ineffective assistance of counsel.
The INS then agreed to suspend further proceedings until the resolution of the charges
against Fang.
¶9 On October 5, 1998, based on the advice of his new immigration attorney, Deborah
Smith, Fang reached another plea agreement with the Gallatin County Attorney's office
and pled guilty to an amended charge of assault in violation of §45-5-201, MCA (1999).
Approximately two weeks later, Smith informed the INS of the disposition of Fang's case.
¶10 Based on the new conviction, INS counsel moved the immigration court of the United
States Department of Justice to deport Fang. On March 31, 1999, an INS judge granted
their motion and ordered that Fang be removed to China. The judge held that the assault
that Fang pled guilty to on October 5, 1998, also constituted a crime of violence against a
protected person for purposes of the federal immigration statutes.
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¶11 Fang filed his complaint against Phyllis Bock and the Associated Students Legal
Services of Montana State University, seeking damages for professional negligence and
negligent supervision. He also sought treble damages pursuant to §37-61-406, MCA. All
three claims were dismissed by summary judgment. On appeal, Fang seeks reinstatement
of these three claims.
DISCUSSION
¶12 Did the District Court err when it held that the plaintiff's claim for damages based on
the defendant's alleged professional negligence should be dismissed as a matter of law?
¶13 This court reviews a district court's order granting summary judgment de novo based
on the same criteria found at Mont.R.Civ.P 56(c) that must be considered by the district
court. Bruner v. Yellowstone County (1993), 272 Mont. 261, 264, 900 P.2d 901, 903. The
movant must demonstrate that no genuine issue of material fact exists. The burden then
shifts to the party opposing the motion to prove, by more than mere denial and
speculation, that there is a genuine issue of fact. If no genuine issue of fact exists, the court
must determine whether the movant is entitled to judgment as a matter of law. Bruner, 272
Mont. at 264-265, 900 P.2d at 903.
¶14 The facts in this case are not in dispute. Bock admits giving erroneous advice to Fang.
Fang pled guilty to family member assault based on that advice. Fang learned that Bock's
advice was incorrect and because of his reliance on that advice was allowed to withdraw
his plea. As a result, deportation proceedings were suspended. However, after getting
independent advice, he then pled guilty to assaulting the same member of his family.
Deportation proceedings were resumed and he was ordered removed from the country
because of his second conviction. The real issue as recognized by the District Court is
whether Fang's legal expenses and current predicament are a result of Bock's error or the
inevitable consequences of conduct that he has now admitted on two separate occasions.
¶15 The District Court concluded that Fang failed to prove all the elements of a prima
facie case of professional negligence. It relied on Lorash v. Epstein (1989), 236 Mont. 21,
767 P.2d 1335, in which this Court held that:
In pursuing a negligence or breach of contract action against an attorney, the
plaintiff must initially establish the existence of an attorney-client relationship. The
plaintiff must then establish that the acts constituting the negligence or breach of
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contract occurred, proximately causing damages to the plaintiff. The final
requirement for the plaintiff is the need to establish that 'but for' such negligence or
breach of contract, the client would have been successful in the prosecution or
defense of the action.
Lorash, 236 Mont. at 24, 767 P.2d at 1337 (citations omitted).
¶16 The District Court concluded that Fang could not satisfy the last element. He could
not show that but for Bock's negligence, he would have successfully defended the charge
against him. Furthermore, the District Court also held that once the first guilty plea was
vacated, any adverse effect from Bock's advice was erased.
¶17 Fang contends, however, that because of Bock's advice, he was exposed to the
possibility of removal from this country and had to expend substantial sums of money to
avoid that exposure. The Lorash test, in the context of the undisputed facts before us,
require that we determine whether Fang would have been exposed to removal from the
country based on his conduct with or without Bock's advice.
¶18 To answer that question we must necessarily review the offenses to which he pled
guilty, the statutory basis for his deportation and the Immigration Judge's explanation for
her order.
¶19 Section 45-5-206, MCA (1999), which penalizes assault on a family member and is
the crime to which Fang originally pled guilty, provides in relevant part:
(1) A person commits the offense of partner or family member assault if the person:
(a) purposely or knowingly causes bodily injury to a partner or family member;
(b) negligently causes bodily injury to a partner or family member with a weapon; or
(c) purposely or knowingly causes reasonable apprehension of bodily injury in a
partner or family member.
¶20 Section 45-5-201, MCA, which describes misdemeanor assault, the crime to
which Fang pled guilty based on the advice of a second attorney after being
informed of the 1996 amendment to the Immigration Act, provides in relevant part:
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(1) A person commits the offense of assault if the person:
(a) purposely or knowingly commits bodily injury to another,
...
(c) purposely or knowingly makes physical contact of an insulting or provoking
nature with any individual; or
(d) purposely or knowingly causes reasonable apprehension of bodily injury in
another.
¶21 8 USC §1227 (a)(2)(E)(i), pursuant to which Fang's removal from this country was
sought by Immigration officials, provides as follows:
Any alien who at any time after admission is convicted of a crime of domestic
violence, a crime of stalking, or a crime of child abuse, child neglect or child
abandonment is deportable. For purposes of this clause, the term "crime of domestic
violence" means any crime of violence . . . against a person committed by a current
or former spouse of the person, by an individual with whom the person shares a
child in common, by an individual who is cohabitating with or has cohabitated with
the person as a spouse . . . .
¶22 18 USC §16 defines "crime of violence" as:
(a) an offense that has as an element the use, the attempted use or threatened use of
physical force against the person or property of another, or
(b) any other offense that is a felony and by its nature, involves a substantial risk
that physical force against the person or property of another may be used in the
course of committing the offense.
¶23 Anne Ho, the Immigration Judge who ordered Fang's removal to China on March 31,
1999, concluded that the second offense to which Fang pled guilty was just as much a
crime of violence against his spouse as the first. She noted that in support of his second
plea, he stated that he "was having a heated argument with Chun Liu [his wife]. At one
point [he] became very angry, threw a shirt at Chun, and otherwise made threatening
gestures directed at her."
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¶24 Pointing out that the title of the offense is irrelevant for purposes of Immigration law,
she stated:
[T]he respondent need not be convicted of a specifically classified state "domestic
violence" law in order to be convicted of a "crime of domestic violence" as defined
by the Act. As the Service correctly stated in their request for an order of removal,
INA §237(a)(2)(E)(i) has two elements that transform a conviction for a particular
offense into a "crime of domestic violence": first, the offense must be a crime of
violence as defined; second, the offense must be committed against a "Protected
Person." See INA §237(a)(2)(E)(i). When the Board determines whether an offense,
as defined by a state statute, constitutes a ground of deportability, they do not rely
on the state's definition of the type of crime covered as a matter of state law, but rely
on the elements of the offense. Matter of Punu, Int. Dec. 3364 (BIA 1998); Matter
of Teixiera, Int. Dec. 3275 (BIA 1996). Moreover, there is nothing in INA §237(a)
(2)(E)(i) that requires than an alien be convicted of a specifically designated
"domestic violence law" in order to be rendered removable. Rather, one need only
be convicted of a "crime of violence" committed against a "protected person." A
spouse is one such person. Therefore, the respondent's second argument is
completely meritless.
¶25 Ho also addressed Fang's argument on appeal that a different result is compelled by
the fact that Fang's assault conviction has since been expunged based on a deferred
prosecution. Footnote 1 of her decision points out that:
In Matter of Roldan, Int. Dec. 3377 (BIA 1999), the Board held, in pertinent part,
that under the statutory definition of "conviction" provided at INA §101(a)(48)(A),
"no effect is to be given in immigration proceedings to a state action which purports
to expunge, dismiss, cancel, vacate, discharge or otherwise remove a guilty plea or
other record of guilt or conviction by operation of a state rehabilitative statute."
¶26 Although Bock misinformed Fang, her advice did not lead to his current predicament
nor has the money he spent to have his first conviction set aside changed the result. The
conduct which he admitted was in violation of both statutes to which he pled guilty.
Violation of either statute was grounds for deportation so long as the victim was his wife.
Fang's situation regarding deportation is a result of the conduct he has admitted, and is the
same following correct legal advice as it was following Bock's advice.
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¶27 Therefore, Fang cannot prove that "but for" negligent legal advice he could have
avoided deportation and based on our decision in Lorash, Bock was entitled to judgment
as a matter of law. Because we conclude as a matter of law that Fang was not damaged by
Bock's conduct, his other claims which are directly or indirectly predicated on that conduct
must also fail.
¶28 For these reasons, we affirm the judgment of the District Court.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
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