Miranda v. Said, No. 11-0552

CourtUnited States State Supreme Court of Iowa
Writing for the CourtCADY
PartiesKLEVER BELISARIO MIRANDA, NANCY CLOTILDE CAMPOVERDE, and CESAR MIRANDA, Appellants, v. MICHAEL H. SAID and LAW OFFICE OF MICHAEL H. SAID, P.C., Appellees.
Decision Date19 July 2013
Docket NumberNo. 11-0552

KLEVER BELISARIO MIRANDA, NANCY CLOTILDE CAMPOVERDE,
and CESAR MIRANDA, Appellants,
v.
MICHAEL H. SAID and LAW OFFICE OF MICHAEL H. SAID, P.C., Appellees.

No. 11-0552

SUPREME COURT OF IOWA

Filed July 19, 2013


On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.

Plaintiffs appeal a ruling of the district court granting defendants' motion for directed verdict regarding plaintiffs' claims for emotional distress damages and punitive damages. DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT DECISION REVERSED; CASE REMANDED FOR NEW TRIAL.

Angela L. Campbell of Dickey & Campbell Law Firm, PLC, Des Moines, for appellants.

Eric G. Hoch and Kevin J. Driscoll of Finley, Alt, Smith, Scharnberg, Craig, Hilmes & Gaffney, P.C., Des Moines, for appellees.

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CADY, Chief Justice.

In this appeal from a judgment entered for the plaintiffs in a legal malpractice action, we must determine if the district court erred in concluding the plaintiffs failed to state a claim for emotional distress and punitive damages as a matter of law. On our review, we affirm the decision of the court of appeals, reverse the decision of the district court, and remand for a new trial on damages.

I. Background Facts and Prior Proceedings.

Klever Miranda and Nancy Campoverde are Ecuadorian citizens who emigrated to the United States. Their children, including Cesar, joined them in 1995. Cesar was fourteen years old at the time. In 1998, Klever and Nancy gave birth to another son, Ronaldo, in the United States.

Klever and Nancy entered the United States without documentation. Klever initially obtained employment under a pseudonym, but eventually began to take action to obtain legal immigration status with the aid of an attorney. At some point in the late 1990s, Klever obtained legal authorization to work in the United States, but later lost that status. Klever also filed an asylum application.

In 2005, Klever received notice of a removal order. He was represented by attorney Michael Said. Klever wanted to remain in the United States and obtain citizenship. Said advised Klever that the best plan of action would be for him to return to Ecuador and have Cesar sponsor him and Nancy for citizenship once Cesar obtained citizenship. He advised Klever that Cesar could file a document called Form I-130, which permits a citizen to sponsor a relative's application for citizenship. According to Said, Klever and Nancy could then each file a document called Form I-601 waiver, which permits an applicant who is otherwise

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ineligible, to be admitted into the country based on "extreme hardship" to a qualifying relative. See 8 U.S.C. § 1182(i) (2006).1

Said allegedly told Klever and Nancy his plan contained no risks and had a ninety-nine percent chance of success. Said allegedly explained the plan would only fail if Cesar was not related to Klever and Nancy or had committed a crime in the United States or Ecuador. Said did not advise Klever and Nancy of any other options to consider because he did not believe any other options existed.

Pursuant to the plan conceived by Said, Klever left for Ecuador in 2005. Before Nancy left in 2007, Said completed the Form I-601 waiver documents so she could have them in her possession to file with the Ecuadorian consulate once Cesar became a citizen. Said also prepared a memorandum for each waiver application. The memorandums detailed the extreme hardship that would befall Klever and Nancy if their applications were denied. Said wrote in Klever's memorandum:

[B]oth the Petitioner's family as well as the Petitioner would suffer extreme hardship if his request for a waiver is not granted. The Petitioner's family consists of two United States Citizen children, one of whom is under the age of 18, and two United States Citizen grandchildren. It is the separation of the Petitioner from his young son that is most troublesome. The Petitioner's child is a United States Citizen and having been born in the United States does not know of any life outside of his current situation. He does not speak fluent Spanish nor will he be able to maintain his current health and educational [level] in Ecuador. Moreover, the

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separation of the child from his father would further broaden the symptoms of the disorder such as, increasing his level of low self-esteem, furthering his fearfulness of risks, and promoting poor concentration.
The son and grandchildren of the Petitioner would also suffer detriment if they followed their father and grandfather to live in Ecuador because the children were all born here in the U.S. and do not speak the language fluently. Likewise, if the children remained in the U.S. without the presence of their father and grandfather, their emotional well-being would be substantially at risk. Numerous studies have demonstrated that extreme hardship occurs to children when parents are separated. . . . The study notes that children who were unable to adjust to the separation of their parents often had problems such as expulsion from school, juvenile delinquency with the law, and emotional outbreaks.
Moreover, the Petitioner is diabetic and is unable to obtain the necessary care in Ecuador. He and his family worry that his health is rapidly declining and that he will be unable to pay for any medical necessities that he may have with regard to his current health condition. The Petitioner and his family are extremely anxious as to what could happen if his condition does worsen and he is without proper medical care and the care of his immediate family to help care for him.
. . . .
The impact of separation is not exaggerated especially when factors such as the remoteness of the border from Iowa which limits frequent visitation and the exorbitant telephone rates which restricts communication between the family members further. These barriers alone can lead to depression, grief, and impoverishment to any or all family members.

The memorandums were substantially similar. Klever and Nancy paid Said $11,000 for his legal services.

Before Nancy left for Ecuador, she asked Said if the applications would be successful, stating she would prefer to remain in the United States if the applications would not be successful. Said reiterated his belief that the plan had a ninety-nine percent likelihood of success. Nancy left the United States, knowing Cesar was very close to obtaining his citizenship. Believing she would be returning to the United States within a short period of time, she only packed one suitcase.

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Cesar became a citizen a short time later. He promptly filed the Form I-130 documents Said had prepared in advance. Klever and Nancy then each filed the Form I-601 with the Ecuadorian consulate. However, their applications were denied. The Ecuadorian consulate also informed Klever and Nancy that they were subject to a ten-year bar to readmission because they had left the United States voluntarily. See id. § 1182(a)(9)(B)(i).2 Klever, Nancy, and Cesar were distraught.

Klever and Nancy later learned that Form I-601 waivers are only available when the qualifying relative is the spouse or parent of the applicant. Id. § 1182(i)(l). The Form I-601 applications prepared by Said listed Cesar and Ronaldo—their children—as qualifying relatives. In truth, Klever and Nancy had no qualifying relatives.

Klever, Nancy, and Cesar brought a legal malpractice action against Said. The action included a claim for emotional distress damages, as well as punitive damages. The case ultimately proceeded to trial. As a part of their case, Klever and Nancy called an expert witness who opined that the strategy pursued by Said likely had no chance of success.

Said admitted at trial he knew Cesar and Ronaldo were not qualifying relatives. He also stipulated that no reasonable attorney would have attempted to use a Form I-601 to obtain lawful residency for Klever and Nancy. Nevertheless, Said maintained that he had been

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successful ten to fifteen times in the past using children as qualifying relatives. Said testified that, in his experience, consular officials used discretion to grant Form I-601 waivers when a child of the applicant was the sponsor.

Klever and Nancy's expert testified that the immigration statute only grants consular officials discretion to reject the application of an applicant who meets the statutory minimum requirements but is undesirable for other reasons. Klever and Nancy's expert further testified that officials had no discretion to grant applications of individuals who do not meet the minimum requirements. Moreover, Klever and Nancy's expert testified that even if a consular agent had granted the waivers in contravention of the statute, the error would have been noticed when they applied for citizenship. In turn, the error would have foreclosed the opportunity for Klever and Nancy to become citizens. Instead of obtaining citizenship, Klever and Nancy would have been deported.

Although Said claimed previous success in using children as qualifying relatives, he failed to produce any documentation of this success, despite his claim that such records existed and despite a court order to produce the records.3

Prior to submitting the case to the jury, the district court granted Said's motion for directed verdict on the claims for emotional distress and punitive damages. It held that past and future...

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