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### STATE OF MICHIGAN

COURT OF APPEALS

HANNA 1 H. YOUSIF and BENHAM SHAMOON,

Plaintiffs-Appellants/CrossAppellees, UNPUBLISHED February 18, 2016

v No. 324097 Wayne Circuit Court ROBERT M. BIRACH, ROBERT M. BIRACH, P.C., and CHARFOOS GIOVAN & BIRACH, LC No. 12-010855-NM

Defendants-Appellees/CrossAppellants.

Before: C AVANAGH , P.J., and R IORDAN and G ADOLA , JJ.

P ER C URIAM

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Plaintiffs Hanna H. Yousif and Benham Shamoon appeal as of rig ht the trial court’s order granting summary disposition in favor of defendants pursuant to MCR 2.116(C)(10) in this legal malpractice action. We affirm.

I. FACTUAL BACKGROUND

Plaintiffs are naturalized Canadian citizens who were born in Iraq. In 2002, Shamoon consulted defendant Robert Birach , an attorney specializing in immigration, regarding visas to reside in the United States. According to plaintiffs, Birach w as aware that they were living in Michigan and that their children were attending school there de spite their Canadian citizenship. Birach advised Shamoon that he and his family could qualify for E-2 treaty investor visas if he made a substantial investment in an American business employing at least two full-time employees who were American citizens or permanent residents. S hamoon did not request further

1 There is a discrepancy in the spelling of plaintiff Hanna Yous if’s first name in both the lower court record and the record on appeal. In this opinion, we wil l spell her name i n accordance with the spelling used in the transcripts and orders in the lower co urt file, which is consistent with spelling utilized in plaintiffs’ cl aim of appeal and plaintiffs ’ brief on appeal.-2- services from Birach at that time. In 2004 or 2005, Shamoon an d Yousif purchased a restaurant in Detroit, Michigan. They ent ered the trans action without cal ling or consulting with Birach.

In 2006, plaintiffs again contacte d Birach about visa applicati ons. Birach provided them with a list of documents that they needed to provide in order t o establish eligibility for the E-2 visas, including, inter alia , financial records and document s verifying that the business e mployed at least two full-time employees. Between 2006 and 2009, Birac h made at least five written requests for these documents, during which he periodically aske d for confirmation that Shamoon still wished, and had the means, to utilize Birach’s legal serv ices for filing the visa applications. Plaintiffs never provided all of the requested documents.

In September 2010, a fire destroyed the restaurant. Subsequent ly, plaintiffs’ insurance claim for the fire loss was denied. 2 Then, on December 29, 2010, Shamoon was detained when he attempted to reenter the United States from Niagara Falls, C anada. With his brother, he initially lied about his reasons for entering the United States , claiming that he was entering the country to do some shopping. Howev er, U.S. Customs and Border Protection offici als ultimately determined that Shamoon was an undocumented alien illegally res iding in the United States. He was excluded from entering the U nited States and barred from re entering for five years.

Plaintiffs brought this legal malpractice action against defen dants, alleging that Birach was negligent in failing to advise them that they could not leg ally reside in the United States before their visa applications were approved. They attributed their financial losses to Birach’s advice to invest in a business in the United States, even thoug h they could not qualify for E-2 visas as long as they resided in the United States and were sub ject to immediate removal due to their unlawful status. Likewise, they ascribed their noneconom ic losses arising from Shamoon’s removal from the United States to Birach’s failure to advise th em of the potential consequences for continuing to reside unlawfully in the United States and cr ossing the Canada-United States border. The trial court granted defendants’ motion for summary disposition pursuant to MCR 2.116(C)(10), and denied plaintiff’ s cross-motion for summary d isposition pursuant to MCR 2.116(I)(2), on the ground that Birach’s alleged professional n egligence was not the proximate cause of plaintiffs’ losses.

II. STANDARD OF REVIEW

This Court reviews de novo a trial court’s decision on a motion for summary disposition. MEEMIC Ins Co v DTE Energy Co , 292 Mich App 278, 280; 807 NW2d 407 (2011). “[ A] motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint . . . .” Joseph v Auto Club Ins Ass’n , 491 Mich 200, 206; 815 NW2d 412 (2012) . In deciding the motion, the trial court “must consider the affidavits, pleadings, depositio ns, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5) , in the light most favorable to the party opposing the motion.” Id

. “[T] he court’s task is to review the record evidence, and all reaso nable inferences therefrom, and decide whether a genuine issue of any material f act exists to warrant a trial.”

2 Although unclear from the record, it appears that the City of Detroit may have foreclosed on the property for unpaid property t axes following the fire.-3- Skinner v Square D Co , 445 Mich 153, 161; 516 NW2d 475 (1994), overruled in part on other grounds by Smith v Globe Life Ins Co , 460 Mich 446, 455 n 2 (1999). All reasonable inferences are to be drawn in favor of the nonmovant. Dextrom v Wexford County, 287 Mich App 406, 415; 789 NW2d 211 (2010).

S ummary disposition is warranted when “there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter o f law.” Greene v AP Prod, Ltd

, 475 Mich 502, 507; 717 NW2d 855 (2006) (quotation marks and citation omitted). “There is a genuine issue of material fact when reasonable minds could diff er on an issue after viewing the record in the light most favorable to the nonmoving party,” Allison v AEW Capital Mgt, LLP

, 481 Mich 419, 425; 751 NW2d 8 (2008) , or if “the evidence submitted might permit inferences contrary to the facts as asserted by the movant,” Dillard v Schlussel , 308 Mich App 429, 445; 865 NW2d 648 (2014) , quoting Opdyke Investment Co v Norris Grain Co , 413 Mich 354, 360, 320 NW2d 836 (1982) (quotation marks omitted).

“Generally, proximate cause is a factual issue to be decided by the trier of fact. However, if reasonable minds could not di ffer regarding the proximate ca use of the plaintiff’s injury, the court should decide the issu e as a matter of law.” Nichols v Dobler , 253 Mich App 530, 532; 655 NW2d 787 (2002)

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III. APPLICABLE LAW

“The elements of legal malpractice are: (1) the existence of an attorney-client relationship; (2) negligence in t he legal representation of the plaintiff; (3) that the negligence was the proximate cause of an injury; and (4) the fact and extent o f the injury alleged.” Manzo v Petrella , 261 Mich App 705, 712; 683 NW2d 699 (2004). To establish pro ximate cause, two elements must be proven: cause in fact and legal cause. Skinner , 445 Mich at 162-163. In general, to prove cause in fact, a plaintiff must “show[] that ‘but for’ the defendant’s actions, the plaintiff’s injury woul d not have occurred.” Id. at 163. If cause in fact is established, the issue becomes whether the defendant’s actions were the legal cause of the injury. Id.

To establish that defendant’s act ions were the le gal cause of the injury, “the pl aintiff must show that it was foreseeable that the defendant’s conduct may c reate a risk of harm to the victim, and . . . [that] the result of that conduct and intervening cau ses were foreseeable.” Weymers v Khera, 454 Mich 639, 648; 563 NW2d 647 (1997) (quotation marks and ci tation omitted; alterations in original). As such, “[l]egal cause or ‘proximat e cause’ normally involves examining the foreseeability of consequences, and whether a def endant should be held legally responsible for such consequences.” Skinner , 445 Mich at 163. “Forese eable intervening forces [include those] within the scope of the original risk, and henc e of the defendant’s negligence.” Moning v Alfono , 400 Mich 425, 441; 254 NW2d 759 (1977) (quotation marks and c itation omitted). “Proximate cause draws the line of liability at the probable and natural results of a defendant’s negligent act.” Adas v Ames Color-File , 160 Mich App 297, 303; 407 NW2d 640 (1987); see also O’Neal v St John Hosp & Med Ctr , 487 Mich 485, 496; 791 NW2d 853, 858 (2010) (“In order to be a proximate cause, the negligent conduc t must have been a cause of the plaintiff’s injury and the plaintiff’s injury must have been a natural and probable result of the negligent conduct.”).-4- As explained in Auto Owners Ins Co v Seils , 310 Mich App 132, 157-158; 871 NW2d 530 (2015):

[T]he chain of causation between the defendant’s conduct and th e plaintiff’s injuries may be broken by an in tervening or a superseding cause . An “intervening cause” is “ ‘one which actively operates in producing harm to a nother after the actor’s negligent act or omission has been committed.’ ” McMillian [ v Vliet ], [422 Mich 570, 576; 374 NW2d 679 (1985)] (citation omitted). “ An intervening cause breaks the chain of causation and constitutes a supersedi ng cause which relieves the original actor of liability, unless it is found th at the intervening act was ‘reasonably foreseeable.’ ” Id. Thus, the issue of proximate causation requires focusing on “w hether the result of conduct that create d a risk of harm and any intervening causes were foreseeable.” Jones v Detroit Med Ctr, 490 Mich 960, 960 (2011).

Black’s Law Dictionary (10th ed) defines “foreseeability” as “[t]he quality of being reasonably anticipatable.”

Based on these principles, in the context of a “bad advice” leg al malpractice claim, the plaintiff must establish that “ but for” the erroneous advice, t he plaintiff would not have undertaken the action that led to the adverse outcome, and that the resulting harm was the foreseeable, probable, and natural result of the plaintiff’s re liance on the erroneous advice.

IV. APPLICATION

Here, plaintiffs assert two adverse outcomes allegedly caused b y Birach’s faulty advice: (1) the loss of their investment i n the restaurant; and (2) Sha moon’s removal from the United States. The trial court conclude d that the fire was an interve ning cause that precluded plaintiffs’ legal malpractice action, and that Shamoon’s removal was the re sult of his own misrepresentation of his status and reasons for entering the co untry “because he knew [that] he could be removed, which had nothing to do with Birach’s represe ntation of [p]laintiffs.” Thus, the court concluded that plaintiffs failed to establish that Bi rach’s alleged malpractice was the proximate cause of their injuries. We agree.

A. LOSS OF INVESTMENT

Plaintiffs first argue that Birach’s negligent advice caused t hem to lose their investment in the restaurant. They contend that they would not have made the investment but for Birach’s recommendation that they would qu alify for E-2 visas by investi ng in an American business and employing two full-time employees. However, there is no causal nexus between Birach’s alleged recommendation and the fi re that caused plaintiffs’ fin ancial loss. As a result, despite plaintiffs’ framing of their a rgument, their claim actually is based purely on but-for causation, without consideration of whether a business loss caused by fire was a natural and probable result of Birach’s allegedl y erroneous advice. See O’Neal , 487 Mich at 496.

The proper focus here is whether plaintiffs’ loss of investment , which occurred due to the fire that destroyed the restaura nt and the subsequent denial of plaintiffs’ insurance claim, was the result of Birach’s conduct and other intervening causes that were foreseeable and within t he-5- scope of original risk involved in legal malpractice. See Weymers , 454 Mich at 648; Moning
, 400 Mich at 441. Birach played no role in causing the fire tha t destroyed the restaurant, and he had no involvement in the denial of plaintiffs’ insurance claim . Rather, plaintiffs’ loss of investment was the result of a n independent intervening cause t hat Birach did not participate in, and which he could not reasonably foresee occurring under the c ircumstances. Cf. Moning , 400 Mich at 441 (“If the intervening cause is one which in ordinaryhuman experience is reasonably to be anticipated, or one which the defendant has reason to ant icipate under the particular circumstances, he may be negligent, among other reasons, becaus e he has failed to guard against it; or he may be negligent only for that reason.” [Quotation m arks and citation omitted.]). Likewise, the destruction of the restaurant by fire was complet ely outside the scope of risks arising from legal malpractice. Moning , 400 Mich at 441. Therefore, the loss of an investment in a restaurant due to a fire was not a foreseeable, natural, a nd probable result of his alleged malpractice, see O’Neal , 487 Mich at 496, and it would be unreasonable to hold defenda nts responsible for the consequen ces of the intervening fire, see Skinner , 445 Mich at 163.

It is significant to note that plaintiffs’ reasoning would hold defendants liable for any adverse outcome that may result from investing in a business, i ncluding financial failure and physical proper damage, because “opening a business always crea tes a risk that the owner may lose what he or she invested,” regardless of the investors’ pur pose in investing or the investors’ residency status. However, contrary to plaintiffs’ claims, the se adverse events are not the probable and naturalresults of investing in a business, based on an attorney’s adv ice, for the purpose of obtaining visas . See O’Neal , 487 Mich at 496. Again, losing an investment in a business due to fire loss was not the probable and natural result of Birach’s act of advising plaintiffs to invest in a business for visa-related purposes. See id . Stated differently, plaintiffs’ status as illegal residents, and related investment in the rest aurant for the sole purpose of obtaining visas, did not make it any more likely that their res taurant would burn or sustain any other type of loss than if they were legal residents, or if the y had invested in the restaurant for another purpose. As defendants note on appeal, but for the fir e, plaintiffs could have recouped their investment in a variety of ways, such that losing their i nvestment was not the natural and probable result of Birach’s allegedly negl igent advice related to their ability to apply for E-2 visas.

Accordingly, the trial court did not err in concluding that the fire was an independent and intervening cause of plaintiffs’ loss. Likewise, the trial cou rt properly granted summary disposition in favor of defendants on this ground because reaso nable minds could not differ in finding that Birach’s allegedly negligent advice was not the pr oximate cause of plaintiffs’ loss of investment. See Nichols , 253 Mich App at 532

. Plaintiffs’ argument that Birach caused their financial loss b y not informing them that their efforts to obtain E-2 vi sas were futile because the visas could not be granted to aliens illegally residing in the United States also fails. For the re asons stated supra , plaintiffs’ damages do not arise from denial of visas, but from the fire.

B. SHAMOON’S REMOVAL

Next, plaintiffs identify Birach’s negligence as the proximate cause of Shamoon’s removal from the United States, emphasizing that Shamoon was no t removed for lying to border-6- officials, but because of his illegal residence. They identify as the cause of Shamoon’s removal Birach’s failure to “inform them that they could be immediately removed to Canada, and banned from returning for 5 years, if they were living in the United S tates,” and the drafting of “a letter designed to make it easier for Shamoon to cross the border.” T hus, the gravamen of plaintiffs’ claim is a lack of knowledge reg arding the consequences of thei r ongoing residence in the United States due to Birach’s drafting of the letter and failure to in form them of the specific consequences of living in the United States and entering and ex iting Canada.

However, Shamoon’s own deposition testimony indicates that he n ever used the letter when applying for entry into the United States, including his D ecember 29, 2010 attempt. 3 Further, Shamoon’s statements in the “Record of Sworn Statement in Proceedings under Section 235(b)(1) of the [Immigration and Nationality] Act,” 4 taken on December 29, 2010, expressly acknowledge that (1) he did not h ave any legal status that woul d allow him to live and work in the United States; (2) he “[did not] have any legal papers” ind icating a legal right to hold a permanent residence in the Unite d States, “but [he] ha[d] a law yer that was working on in [sic] it”; and (3) he did not tell the officer his true intent for en tering the United States because “[i]f [he] t[old] them that[,] they would try and return [him] and as k for paper work [sic] and [he] didn’t have paperwork.” Moreover, in response to the question, “Did you willfully with hold [sic] the true intent of your trip to the primary officer in or der for you to gain access to the United States?,” Shamoon replied, “What can I tell you[,] offic er[,] I have no other way. I don[’]t mean to with hold [sic] anything[.] [T]his is the only way I can do it[.] I think there are about 50 million people living in America illegally. We have t he paperwork . . . in the process and we want to stay in America . . . .” He also confirmed that he made a false statement, and

3 In any event, the letter did not advise the plaintiffs to lie about their purpose for entering the United States.

4 “For a document to constitute a ‘valid affidavit,’ it must be: ‘(1) a written or printed declaration or statement of facts, (2) made voluntarily, and (3) confirmed by the oath or affirmation of the party making it, taken before a person having authority to admi nister such oath or affirmation.’ Thus, . . . a document that is no t notarized is not a ‘valid af fidavit.’ ” Detroit Leasing Co v City of Detroit , 269 Mich App 233, 236; 713 NW2d 269 (2005) (citation omitted) . Although the sworn statement was not notariz ed by a notary public, it was sw orn before a Customs and Border Protection officer. Pursu ant to 8 USC 1225(d)(3), any immigration officer shall have power to administer oaths an d to take and consider evidence of or from any person touching the privilege of any alien or person he believes or suspects to be an alien to enter, reenter , transit through, or reside in the United States or concerning any matter which is m aterial and relevant to the enforcement of [the Immigration and Nationality Act] and the administration of the [Immigrati on and Naturalization Service o f the Department of Justice]. Because both parties relied on the sworn statement in making th eir arguments in the trial court, and neither party contended that the sworn statement was inadmi ssible for purposes of MCR 2.116(G)(6), we will likewise consider the statement as admissi ble evidence for purposes of evaluating the trial court’s gr ant of summary disposition pursu ant to MCR 2.116(C)(10).-7- told his brother to make a false statement, to the primary line inspector “because I needed to tell them something to get into the country I make [sic] something u p.”

In light of this evidence, it is abundantly clear that Shamoon was fully aware that he did not have legal documentation that conferred on him a legal migr ation status to enter the United States. As a result, he initially lied to immigration officers regarding the purpose of his trip. 5 He did this deliberately because he “ha[d] no other way” to gain a dmission to the United States. Accordingly, plaintiffs’ claim that Birach’s alleged negligence , in failing to inform plaintiffs of their illegal status and the cons equences of continuing to resi de and work in the United States, was the cause in fact and the legal cause of Shamoon’s removal from the United States is not supported by the record. See Skinner , 445 Mich at 162-163. Shamoon’s own admissions to the immigration officers, and his misrepresentations, undermine any contention that he believed— based on Birach’s advice and act of drafting a letter eight yea rs previously—that he had legal authorization to enter the Unite d States from Canada without an y concern. Likewise, Shamoon’s admissions and misrepresentations similarly undermine the concl usion that his removal from the county was caused by Birach’s alleged failure to advise plainti ffs of the harsh consequences for illegally residing i n the United States. 6 See id

.

Shamoon’s and Yousif’s self-serv ing deposition testimony that t hey believed that they were legally living in the United States and that Shamoon was l egally entering the country on December 29, 2010, does not establish causation nor create a genuine issue of material fact on this issue. No reasonable jury could believe that Shamoon was unaware of his illegal status in light of his undisputed act of misrepresentation when he attemp ted to enter the United States and his subsequent admissions to the immigration officer. His cond uct revealed unequivocal knowledge of his illegal status and lack of proper documentatio n. See Fuhr v Trinity Health Corp , 495 Mich 869; 837 NW2d 275 (2013) (adopting the reasoning of the dissenting opinion in Fuhr v Trinity Health Corp , unpublished opinion per curiam of the Court of Appeals, issue d April 16, 2013 (Docket No. 309877), which concluded that the “p laintiff failed to demonstrate a genuine issue of material fact because the only direct evidence of [his claim] was plaintiff’s selfserving deposition testimony . . . . This evidence does not cr eate a genuine issue of material fact because it is blatantly contradicted by the record so that no r easonable jury could believe it.”). 7

5 It is significant that plain tiffs expressly acknowledge in the ir brief on appeal that Shamoon lied to Customs and Border Protecti on officers when he attempted to enter the United States.

6 Notably, as plaintiffs recognize in their brief on appeal, Sha moon’s act of lying to the federal officers was punishable by fine or imprisonment. See 8 USC 132 5(a); 18 USC 1001(a). Furthermore, despite plaintiffs’ repeated emphasis that, based on the documentation of the incident, Shamoon was not excluded because he initially misrepr esented his reasons for entering the United States, we find it noteworthy that Shamoon’s willful misrepresentation provided an equally viable basis for excl usion pursuant to 8 USC 1182(a)(6) (C)(i).

7 See DeFrain v State Farm Mut Auto Ins Co , 491 Mich 359, 369-370; 817 NW2d 504 (2012) (explaining that an order issued by the Michigan Supreme Court that adopts the dissenting opinion in the Court of Appeals constitutes binding precedent).-8- Cf. Downer v Detroit Receiving Hosp , 191 Mich App 232, 234; 477 NW2d 146 (1991) (“Parties may not create factual issues by merely asserting the contrary in an affidavit after giving damaging testimony in a deposition.”).

Therefore, the trial court prope rly concluded that there was no genuine issue of material fact as to whether Shamoon’s removal was proximately caused by Birach’s advice. Rather, Shamoon’s exclusion was the r esult of his own actions.

V. CONCLUSION

We agree with the trial court that plaintiffs failed to establ ish the proximate cause element of their legal malpractice claim. Thus, the trial cour t properly granted summary disposition in favor of d efendants on that basis. 8

Affirmed.

/s/ Mark J. Cavanagh /s/ Michael J. Riordan /s/ Michael F. Gadola

8 In light of our decision, it is unnecessary to consider defend ants’ alternative arguments concerning the wrongful conduct rule and whether plaintiffs’ re sidency in the United States actually affected their eligibilit y for E-2 visas, given their Canadian citizenship.