Summary
holding that the issues of deficient performance in habeas cases asserting ineffective assistance and negligent representation in legal malpractice cases “are functionally identical”
Summary of this case from Willey v. BugdenOpinion
No. (X02) CV 01-0175974-S
December 22, 2004
SUPPLEMENTAL RULING ON MOTION FOR SUMMARY JUDGMENT
In this motion for summary judgment, the court must decide the extent to which collateral estoppel, stemming from the denial of habeas corpus relief sought by a prisoner on the ground of ineffective assistance of counsel, bars the prisoner's legal malpractice suit against the same attorney.
I
The undisputed facts are as follows. The plaintiff, Bennie Gray, Jr., was charged with the murder of DeJohn Strong and several related charges in November 1997. Soon thereafter, the plaintiff retained defendant Burton Weinstein ("the defendant") as his attorney. On September 10, 1998, the plaintiff pleaded nolo contendere to first degree manslaughter with a firearm. See General Statutes § 53a-55a. On November 17, 1998, the court sentenced the plaintiff to twenty years in prison consecutive to the three-year sentence that he was then serving. The defendant's representation of the plaintiff clearly ended after the sentencing.
In October 1999, the plaintiff filed a pro se petition for a writ of habeas corpus, alleging that his conviction was illegal due to the ineffective assistance of the defendant as counsel as well as judicial and prosecutorial misconduct. The ineffective assistance claim focused on the defendant's concurrent representation of the mother of the plaintiff's co-defendant in her efforts to be appointed the administratrix of the estate of the plaintiff's mother. In an August 1, 2000 memorandum of decision, the habeas court, Downey, J., found that the plaintiff had failed to establish that the defendant had actively represented conflicting interests at the time of the plaintiff's plea or sentencing or that the defendant's involvement in the legal affairs of the estate affected his performance as plaintiff's counsel. Judge Downey also rejected the plaintiff's other claims and accordingly dismissed the habeas petition.
On or about November 14, 2001, almost three years after sentencing, the plaintiff filed the present lawsuit against the defendant attorney and his law firm, Weinstein, Weiner, Ignal, Napolitano Shapiro, P.C. The operative second amended complaint, dated May 26, 2003, contains five counts against the defendant alleging, respectively, breach of contract, legal malpractice, intentional misrepresentation, breach of fiduciary duty, and breach of the implied covenant of good faith and fair dealing, and a sixth count alleging legal malpractice against the defendant law firm. Collectively, these counts alleged that the defendant made inaccurate statements to the plaintiff and the plaintiff's family concerning the sentence the plaintiff would receive if he pleaded nolo contendere, that the defendant had a conflict of interest based on his representation of the co-defendant's mother, and that the defendant failed in a variety of other ways to represent the plaintiff adequately at the time of the plea and sentencing.
In March 2002, the plaintiff filed a second petition for a writ of habeas corpus. As amended, the petition pleaded five counts: actual innocence; insufficient evidence at a second probable cause hearing; ineffective assistance of the defendant, including the conflict of interest claim; intentional misconduct by the defendant due to the alleged conflict of interest; and involuntary plea due to the defendant's ineffective assistance and other grounds. The court, Rittenband, J., conducted a twenty-nine day trial at which the plaintiff was represented by his current counsel. On July 23, 2004, the court issued a thirty-five-page decision denying all relief. In particular, Judge Rittenband rejected claims that the defendant had a conflict of interest (Exhibit A to Defendant's Supplemental Memorandum of Law ("Habeas decision", pp. 22-28.), that the defendant intentionally tried to force a plea for his own financial benefit or because he was not prepared to try the case (Habeas decision, p. 33), and that the defendant or the court had an obligation to inform the plaintiff that the state would seek reimbursement of the costs of incarceration from his inherited share of his mother's estate. (Habeas decision, pp. 33-34.) The court did find, however, that the defendant used improper tactics to pressure the plaintiff into pleading nolo contendere and accepting a plea bargain. (Habeas decision, pp. 28-32.) As to that claim, and essentially as an alternative basis on the other ineffective assistance claims, Judge Rittenband found that:
the Petitioner has failed to sustain his burden of proving the second prong of Strickland v. Washington, [ 466 U.S. 668 (1984)], namely that if it were not for the ineffectiveness of Petitioner's counsel in the criminal matter, there is a reasonable probability that if the Petitioner had gone to trial, the result would have been different. On this basis alone, the Court must deny the petition for habeas corpus.
(Footnote omitted.) (Habeas decision, pp. 21-22.) The plaintiff has appealed this decision.
On or about August 9, 2004, the defendant moved for summary judgment in this case. On or about September 14, 2004, the defendant moved for permission, which the court later granted, to amend the motion for summary judgment in light of Judge Rittenband's decision and to argue that the collateral estoppel effect of that decision prevented the plaintiff from relitigating his claims in this legal malpractice suit. The court heard oral argument on the summary judgment issues on October 25, 2004. The plaintiff's counsel failed to appear for oral argument. At the conclusion of argument by the defendant's counsel, the court entered an oral decision granting summary judgment in part. In particular, the court ruled that the applicable three-year statutes of limitations (General Statutes §§ 52-577, 52-581) barred litigation of all claims (specifically paragraphs 3b, 3d, and 3f of counts one, two, four, five and six, and paragraphs 3b and 3c of count three) that clearly arose before the limitation period began on November 14, 1998. In addition, the court ruled that the collateral estoppel effect of both Judge Downey's and Judge Rittenband's rejection of the plaintiff's conflict of interest claim on the merits, as well as Judge Rittenband's finding that the defendant owed no duty to advise the plaintiff concerning possible imposition of the costs of incarceration, precluded relitigation of those claims (paragraph 3f of counts one, two, four, five, and six; paragraph 7 of count two) in this case.
The court's endorsement of the motion erroneously identified the date as October 22, 2004, instead of October 25, 2004. The complete October 25 decision stated in court has now been transcribed.
The court expressed uncertainty about the collateral estoppel effect of Judge Rittenband's finding that any ineffective assistance by the defendant did not cause a different outcome in the criminal case. At the request of the court, the parties have submitted supplemental briefs on this issue. The court heard additional argument from both counsel on December 7, 2004. Because of the absence of Connecticut appellate authority in this precise context, the court will review the collateral estoppel findings discussed in its oral decision, as well as address the outstanding portions of the defendant's summary judgment motion.
II
Summary judgment shall enter if "the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Practice Book § 17-49. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. See Doty v. Shawmut Bank, 58 Conn.App. 427, 431, 755 A.2d 219 (2000). Because the only relevant facts are Judge Rittenband's decision and the allegations of the complaint, the contents of which are undisputed for purposes of this motion, and because summary judgment is an appropriate means of resolving collateral estoppel issues, Bouchard v. Sundberg, 80 Conn.App. 180, 186, 834 A.2d 744 (2003), the court can adjudicate this matter on summary judgment. See also Caffery v. Stillman, 79 Conn.App. 192, 197, 829 A.2d 881 (2003) (the interpretation of pleadings is a question of law).
III
The courts have described claim preclusion — or res judicata — and issue preclusion — or collateral estoppel — as "related ideas on a continuum." (Internal quotation marks omitted.) Bouchard v. Sundberg, supra, 80 Conn.App. 186.
Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment . . . Furthermore, [t]o invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding.
(Internal quotation marks omitted.) Alexandru v. Strong, 81 Conn.App. 68, 76, 837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.2d 406 (2004). The doctrine of res judicata applies to criminal, civil, and habeas corpus proceedings. See Fernandez v. Warden, 86 Conn.App. 42, 45, 859 A.2d 948 (2004). The purpose of the doctrine is to prevent repetitive litigation, to promote stability in judgments, and to conserve judicial resources. See Tirozzi v. Shelby Insurance Co., 50 Conn.App. 680, 685-66, 719 A.2d 62, cert. denied, 247 Conn. 945, 723 A.2d 323 (1998).
A
At the outset, the court must determine the propriety, for purposes of the collateral estoppel analysis, of considering the complaint as essentially a legal malpractice action. Counts two and six, as stated, expressly proclaim to allege legal malpractice. Count one alleges breach of contract. Although count one alleges that the plaintiff employed the defendant as his attorney, it does not allege that the purpose of the employment agreement was to obtain a specific result in the criminal case. (Complaint, count one, ¶ 2). Rather, the critical allegation in count one is that "[t]he defendant had a duty to provide services to the plaintiff in a competent manner." (Complaint, count one, ¶ 4.) Under our law, "a claim that a defendant promised to work diligently or in accordance with professional standards is not made a contract claim simply because it is couched in the contract language of promise or breach. [Such a case] is distinguishable from a true contract claim in which a plaintiff asserts that a defendant who is a professional breached an agreement to obtain a specific result." Caffery v. Stillman, supra, 79 Conn.App. 197. "[W]here the plaintiff alleges that the defendant negligently performed legal services and failed to use due diligence the complaint sounds in negligence, even though he also alleges that he retained him or engaged his services." (Internal quotation marks omitted.) Alexandru v. Strong, supra, 81 Conn.App. 79-80. Under these standards, the plaintiff's first count, in reality, sounds in negligence or legal malpractice.
The same analysis applies to counts three, four, and five. For the most part, these counts merely incorporate the factual allegations about the defendant's performance from the first two counts. The plaintiff then provides a summary statement couched in terms of the cause of action in question. Finally, these counts make the same causation allegations as in counts one and two. (Complaint, count one, ¶¶ 5-9; count two, ¶¶ 9-13; count three ¶¶ 8-12; count four ¶ 12; count five, ¶ 15.) The plaintiff's brief provides no analysis of why the court should treat these counts separately for collateral estoppel purposes. Accordingly, the court considers the gravamen of the complaint to be legal malpractice. See Purdy v. Zeldes, 337 F.3d 253, 257 n. 4 (2d Cir. 2003).
"The defendant knew that these statements [to the plaintiff and his family about his sentence] were untrue when made and were made to accomplish his objective of securing a plea from the plaintiff." (Complaint, count three (intentional misrepresentation), ¶ 4.) "The defendant engaged in the foregoing dishonest actions in violation of his responsibility of loyalty and honesty. As his attorney, he owed the plaintiff a fiduciary duty to be trustworthy." (Complaint, count four (breach of fiduciary duty), ¶ 8.) "The defendant engaged in the foregoing dishonest actions in violation of his duty of good faith and fair dealing to the plaintiff and his actions injured the plaintiff [sic] right to receive the benefit of the relationship. As his attorney, he owed the plaintiff a fiduciary duty to be trustworthy." (Complaint, count five (breach of implied covenant of good faith and fair dealing), ¶ 8.)
B
In applying collateral estoppel in this case, the first issue concerns the identity of the parties. In the usual habeas corpus action, including both filed by the plaintiff here, the defendant is the prisoner's custodian, or the commissioner of correction. In a legal malpractice action, such as this one, the defendant is the allegedly deficient attorney. Thus, while the plaintiffs are the same in both actions, the defendants are not. Notwithstanding this lack of complete mutuality, courts have approved the use of collateral estoppel as a defense in this precise context. See Zeidwig v. Ward, 548 So.2d 209 (Fla. 1989); Schiff v. Williams, Superior Court, judicial district of New Haven, Docket No. 267512 (February 7, 1991, D. Dorsey, J.) ( 3 Conn. L. Rptr. 252). In Aetna Casualty Surety Co. v. Jones, 220 Conn. 285, 299-303, 596 A.2d 414 (1991), our Supreme Court similarly held that mutuality of parties is no longer required to invoke collateral estoppel. Although the Aetna Court left open a limited exception for cases in which "a lack of mutuality would render the use of collateral estoppel patently unfair," id., 303, that exception does not apply here in light of the case law just cited. See Torres v. Waterbury, 249 Conn. 110, 135-37, 733 A.2d 817 (1999). As the United States Supreme Court has stated: "Permitting repeated litigation of the same issues as long as the supply of unrelated defendants holds out reflects either the aura of the gaming table or a lack of discipline and of disinterestedness on the part of the lower courts, hardly a worthy or wise basis for fashioning rules of procedure." (Internal quotation marks omitted.) Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 329 (1971). Accordingly, the court will apply collateral estoppel principles notwithstanding the lack of complete mutuality.
C CT Page 19442
The other, and more complex, issue in determining the applicability of collateral estoppel in the present context is whether the issues are identical. See generally Corcoran v. Department of Social Services, 271 Conn. 679, 689-90, 859 A.2d 533 (2004). Broadly stated, in a habeas corpus action alleging ineffective assistance of counsel, the petitioner must meet the two-pronged standard derived from Strickland v. Washington, 466 U.S. 668, 687-88 (1984): "(1) that counsel's representation fell below an objective standard of reasonableness . . . and (2) that defense counsel's deficient performance prejudiced the defense." Copas v. Commissioner, 234 Conn. 139, 154, 662 A.2d 718 (1995). In general, the elements of a legal malpractice action are: "(1) the existence of an attorney-client relationship; (2) the attorneys wrongful act or omission; (3) causation; and (4) damages . . ." Alexandru v. Strong, supra, 81 Conn.App. 75.
The first question that arises from this general formulation is whether the standards addressing the attorneys deficient performance are identical. Although Judge Rittenband relied on the more general Strickland habeas corpus standard quoted above (Habeas decision, p. 10), our courts have also stated in habeas cases that a petitioner must prove "that his counsel's performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law . . ." (Internal quotation marks omitted.) Carey v. Commissioner, 86 Conn.App. 180, 183, 860 A.2d 776 (2004). In legal malpractice cases, our courts have defined the malpractice standard as "the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession . . ." (Internal quotation marks omitted.) Davis v. Margolis, 215 Conn. 408, 415, 576 A.2d 489 (1990).
These standards of care are functionally identical. In both cases the inquiry is to determine whether the lawyer's work fell below a level of reasonableness maintained by the average or ordinary practitioner in the community. Several courts in other jurisdictions, applying their own law, have found a similar identity between the applicable performance standards. See McCord v. Bailey, 636 F.2d 606, 609 (D.C. Cir. 1980) (standards are "equivalent"); Johnson v. Raban, 702 S.W.2d 134, 137 (Mo.App. 1985) ("virtually identical"). See also Krahn v. Kinney, 43 Ohio St.3d 193, 538 N.E.2d 1058, 1062 n. 8 (1989) ("though not identical, these elements are similar").
It was because of this identity between the performance standards in the two types of cases that the court concluded at oral argument that collateral estoppel barred relitigation of Judge Downey's and Judge Rittenband's rejection of the plaintiff's conflict of interest claim, as well as Judge Rittenband's finding that the defendant owed no duty to advise the plaintiff concerning possible imposition of the costs of incarceration. The court adds that, to the extent that counts three, four, and five allege standards other than negligence, such as "intentional misrepresentation" (Complaint, count three, ¶ 9), "wanton or willful malicious misconduct" (Complaint, count four, ¶ 11), and "bad faith" (Complaint, count five, ¶ 14), collateral estoppel would apply even more forcefully. If the plaintiff could not prove negligence in the habeas action, then he should not have a second opportunity to attempt to meet the more difficult burden of proving an aggravated state of mind. See, e.g., Alexandru v. Strong, supra, 81 Conn.App. 81 (Internal quotation marks omitted) ("Bad faith means more than mere negligence . . .")
The other question in determining whether the elements of the two causes of action are identical focuses on the requirements for proof of causation. Judge Rittenband relied on the modification of the Strickland prejudice standard set out in Hill v. Lockhardt, 474 U.S. 52 (1985), and Copas v. Commissioner, supra, 234 Conn. 139, for guilty plea cases. (Habeas decision, pp. 10, 21-22.) Under this authority, a habeas petitioner who pleaded guilty has to prove "not only that he would have insisted on going to trial but that there is a reasonable probability that the outcome of the trial would have been more favorable to him." (Habeas decision, p. 10.) See Hill v. Lockhardt, supra, 57-59; Copas v. Commissioner, supra, 156-57, 162. In legal malpractice cases, the standard has not been refined beyond general statements that the plaintiff must "establish that [he] would have been successful in pursuing [his] claim but for the defendant's omission," Alexandru v. Strong, supra, 81 Conn.App. 76, or that the plaintiff must prove that "the breach was the proximate cause of the injuries suffered by the plaintiff." Somma v. Gracey, 15 Conn.App. 371, 374-75, 544 A.2d 668 (1988).
There is other language in Copas stating that, in a guilty plea case, a petitioner must prove that "but for defense counsel's deficient performance, there is a reasonable likelihood that [the petitioner] would have pleaded not guilty and proceeded to trial on the basis of the likelihood that his defenses would succeed in providing a more favorable outcome." Copas, supra, 157 n. 10. If anything, this causation standard is lower than the malpractice standard. Based on this language in Copas, a habeas petitioner need only prove that he would have pleaded not guilty and prudently proceeded to trial. In contrast, a legal malpractice plaintiff has to prove that he "would have been successful in pursuing [his] claim . . ." Alexandru v. Strong, supra, 81 Conn.App. 76, which, in this case, means proof that there would have been a verdict (not just a plea) of not guilty. If, in fact, the causation standard in the habeas case is lower than the standard in the malpractice case, collateral estoppel would clearly apply. See Purdy v. Zeldes, supra, 337 F.3d at 260.
Assuming that the plaintiff's claim of injury in the malpractice case is his conviction, the causation standards in both types of cases are identical. In both types of cases, a plaintiff must prove that his attorneys deficient representation caused that conviction. Accordingly, several courts, including the United States Court of Appeals for the Second Circuit, have applied collateral estoppel principles in this situation, based on the causation standards in their jurisdiction, on the theory that if a plaintiff cannot meet the prejudice prong in habeas court, then he cannot prove causation in malpractice court. See Purdy v. Zeldes, 337 F.3d 253, 258-60 (2d Cir. 2003); Brewer v. Hagemann, 771 A.2d 1030 (Me. 2001). Thus, there is complete identity of the issues for collateral estoppel purposes.
The plaintiff suggests that the habeas court should have relied on Saunders v. Commissioner, 83 Conn.App. 543, 552-53, 851 A.2d 313, cert. denied, 271 Conn. 914, 859 A.2d 569 (2004), for the proposition that, in a guilty plea case, the prejudice standard should focus on whether the petitioner would have accepted a different offer from the state had defense counsel properly conveyed the offer to him. The Saunders court specified that this variant of the prejudice standard applied "under the circumstances of this case . . ." Id., 552. The Saunders standard would not apply here because there is no evidence of a different offer from the state that counsel failed to convey to the plaintiff. In any event, this argument, like much in the plaintiff's supplemental brief, consists of an improper collateral attack on Judge Rittenband's decision. The court will not entertain that attack because the court presumes the correctness of the habeas court's decision. See discussion infra.
III
The next task is to compare the finding of Judge Rittenband that the plaintiff could not prove the probability of an acquittal with the specific causation allegations in the complaint. The plaintiff alleges that the defendant's deficient representation caused the following: 1) the plaintiff's incarceration for a sentence of twenty years (Complaint, count one, ¶ 5); 2) "further damage in the form of legal fees to defend successfully a wrongful death case brought against him [and not the co defendant, Tavorus Fluker] . . ." (Complaint, count one, ¶ 6); 3) damage to reputation based on his serious felony conviction (Complaint, count one, ¶ 7); 4) an obligation to reimburse the state for the cost of incarceration (Complaint, count one, ¶ 8); and 5) mental distress from his incarceration. (Complaint, count one, ¶ 9). All but the second item stem either directly from the plaintiff's conviction or from his incarceration, which in turn stems directly from his conviction. Because Judge Rittenband found, after a twenty-nine day trial, that the plaintiff could not prove that there was a reasonable probability of an acquittal even if the defendant had met the standard of care, the plaintiff may not relitigate that issue here and attempt to obtain the damages that flow from his conviction and incarceration. See Brewer v. Hagemann, supra, 771 A.2d 1033. If the court were to allow a claim in this instance, it would:
The plaintiff argues that the court should not apply collateral estoppel to some of the specific claims that Judge Rittenband did not have occasion to address, such as the claim that counsel should have asked the sentencing court to allow the plaintiff to withdraw his plea. All of these claims, however, consist of reasons why the plaintiff should not have pleaded nolo contendere and instead should have gone to trial. These claims are thus indistinguishable from the claims that Judge Rittenband did address. Both groups of claims fail because 1) in order to prevail, the plaintiff must prove that the result would have been different had the plaintiff gone to trial and 2), as decided herein, the plaintiff is collaterally estopped from making such proof.
The brackets and the language contained therein are those of the plaintiff, not the court.
The plaintiff restates or incorporates these causation allegations in the other counts.
be approving . . . the imprisonment of a defendant for a criminal offense after a judicial determination that the defendant has failed in attacking his conviction on grounds of ineffective assistance of counsel but [permitting] . . . the same defendant to collect from his counsel damages in a civil suit for ineffective assistance because he was improperly imprisoned.
Zeidwig v. Ward, supra, 548 So.2d 214. "To fail to allow the use of collateral estoppel in these circumstances is neither logical nor reasonable." Id.
The remaining damages are the "legal fees to defend successfully a wrongful death case brought against him [and not the co defendant, Tavorus Fluker] . . ." There is no dispute of the representation made in the plaintiff's summary judgment brief that the estate of the homicide victim sued the plaintiff for wrongful death in the fall of 2001 and that the jury returned a verdict for the plaintiff here. (Plaintiff's October 5, 2004 memorandum in opposition to summary judgment, p. 10.) However, based on Judge Rittenband's finding that the plaintiff could not prove a reasonable probability of acquittal even if there were no ineffective assistance of counsel, there is no basis to say that, if the defendant had performed effectively, the victim would not have sued the plaintiff and the plaintiff would not have incurred the legal fees in question. Logically, if the victim sued the plaintiff in this case for wrongful death when the plaintiff was convicted but represented by ineffective counsel, the victim would have sued after the plaintiff was convicted with proper representation. The plaintiff thus cannot possibly prove that he unnecessarily paid for his civil defense due to the manner in which he was represented in the criminal case. The doctrine of collateral estoppel appropriately bars litigation of this claim.
Page 64 of Exhibit N to the defendant's August 9, 2004 memorandum in support of summary judgment makes clear that the trial was to a jury.
IV
Finally, the plaintiff argues that, in several ways, the habeas decision was erroneous. It is not, however, the proper role of this court to conduct an appellate-type review of the decision of a coordinate court. "Connecticut law provides no exception to res judicata for erroneous decisions." Tirozzi v. Shelby Insurance Co., supra, 50 Conn.App. 687. "[A]n attack on a prior judgment will prevail only if it can be shown that the judgment is void, as for want of jurisdiction; ' mere error' will not suffice." Gennarini Construction Co. v. Messina Painting Decorating Co., 15 Conn.App. 504, 512, 545 A.2d 579 (1988). A judgment rendered by a court of competent jurisdiction is presumed correct. See In re Jonathan M., 255 Conn. 208, 223, 764 A.2d 739 (2001).
The plaintiff's recourse is to appeal the habeas decision and file a parallel appeal of the instant decision. "The general rules of res judicata, although not jurisdictional in nature . . . are applicable to a valid . . . and final . . . judgment, even if it is erroneous and subject to reversal. If the judgment is erroneous, the unsuccessful party's remedy is to have it set aside or reversed in the original proceedings." (Internal quotation marks omitted.) CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 395, 685 A.2d 1108 (1996). Although the habeas decision is in fact now on appeal, it continues in force for collateral estoppel purposes unless and until an appellate court sets it aside. See Salem Park, Inc. v. Salem, 149 Conn. 141, 144, 176 A.2d 571 (1961).
V
The court now grants the motion for summary judgment in its entirety. With regard to those claims on which the court has already granted summary judgment, this ruling constitutes an additional ground for summary judgment for the defendants.
It is so ordered.
Carl J. Schuman Judge, Superior Court