Cooke v. Williams ( 2021 )

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IAN T. COOKE v. JOHN R. WILLIAMS ET AL.
(AC 43641)
Bright, C. J., and Suarez and DiPentima, Js.
Syllabus
The plaintiff, who was incarcerated following his conviction of various
criminal charges, including murder, sought damages for, inter alia,
alleged legal malpractice and fraud by the defendants, an attorney and
his law firm, who had previously represented the plaintiff in a habeas
action concerning his criminal conviction. The plaintiff alleged that the
defendants provided deficient representation in the habeas action by
failing to prosecute fully and properly his action and by engaging in
fraudulent billing practices. The trial court granted the defendants’
motion to dismiss and rendered a judgment of dismissal, concluding
that the plaintiff’s claims against the defendants were not ripe for adjudi-
cation because his underlying criminal conviction had not been invali-
dated. On the plaintiff’s appeal to this court, held:
1. The trial court properly dismissed the plaintiff’s legal malpractice claim
for lack of subject matter jurisdiction because it was not ripe for adjudi-
cation; this court, in Taylor v. Wallace (184 Conn. App. 43), held that
a tort action is not ripe for adjudication when success in that action
would necessarily imply the invalidity of a conviction and that the action
must be dismissed unless the underlying conviction has been invalidated,
and, because the plaintiff had been convicted and that conviction had
not been invalidated on direct appeal or through a habeas action, his
claim was a collateral attack on his underlying conviction, his claim for
legal malpractice was not ripe, and the trial court lacked subject matter
jurisdiction.
2. The trial court improperly dismissed the plaintiff’s claim of fraud as not
ripe to the extent the allegations of fraud did not implicate the validity
of his conviction; the plaintiff’s allegations in support of his fraud claim,
that the retainer contract was misrepresented, he was billed for work
the defendants did not do, and the defendants inflated or padded the
hours they worked, simply alleged a fee dispute, and a judgment for
the plaintiff in the fee dispute would not imply the invalidity of his
conviction, and, therefore, Taylor v. Wallace (184 Conn. App. 43) was
inapplicable and dismissal of the plaintiff’s fraud claim was unwarranted.
Argued March 11—officially released July 27, 2021
Procedural History
Action to recover damages for, inter alia, legal mal-
practice, and for other relief, brought to the Superior
Court in the judicial district of New Haven, where the
court, Markle, J.; granted in part the defendants’ motion
to dismiss and rendered judgment thereon; thereafter,
the plaintiff withdrew the remaining counts of his com-
plaint and appealed to this court. Reversed in part;
judgment directed.
Ian T. Cooke, self-represented, the appellant (plain-
tiff).
John R. Williams, self-represented, the appellee
(named defendant).
John R. Williams, for the appellee (defendant John
R. Williams and Associates, LLC).
Opinion
DiPENTIMA, J. In this appeal, we address the applica-
bility of Taylor v. Wallace, 184 Conn. App. 43, 194 A.3d
343 (2018), to an action alleging fraudulent and
improper fee practices brought by a criminally con-
victed plaintiff against his former habeas attorney. The
self-represented plaintiff, Ian T. Cooke, appeals from
the judgment of the trial court granting the motion to
dismiss filed by the defendants, John R. Williams and
John R. Williams and Associates, LLC,1 for lack of sub-
ject matter jurisdiction. On appeal, the plaintiff argues
that the court erred by dismissing as unripe (1) his legal
malpractice claim by misapplying the justiciability bar
articulated in Heck v. Humphrey, 512 U.S. 477, 114 S.
Ct. 2364, 129 L. Ed. 2d 383 (1994), and (2) his fraud
claim pursuant to Heck for the same reasons. We agree
with the plaintiff in part and accordingly reverse in part
the judgment of the trial court.
The following facts, as alleged in the amended com-
plaint or as otherwise undisputed in the record, and
procedural history are relevant to this appeal. In 2010,
after a jury trial, the plaintiff was convicted of, inter
alia, two counts of murder and was sentenced to a term
of life imprisonment without the possibility of release.
See State v. Cooke, 134 Conn. App. 573, 576–77, 39 A.3d
1178, cert. denied, 305 Conn. 903, 43 A.3d 662 (2012).
The plaintiff appealed his conviction, which this court
affirmed. Id., 581. In August, 2011, the plaintiff filed a
pro se petition for a writ of habeas corpus alleging
ineffective assistance of trial counsel. In May, 2012, the
plaintiff retained the defendants to represent him in the
habeas proceedings. Around the same time, the plaintiff
also commenced a federal civil rights action alleging
numerous constitutional and tort claims stemming from
his pretrial incarceration. In August, 2012, the defen-
dants offered to take over the prosecution of the federal
civil rights action, and the plaintiff accepted. The federal
civil rights action was settled in November, 2014.
Trial on the plaintiff’s habeas petition was held over
the course of five days in March, May, July, and Septem-
ber, 2014. On July 8, 2015, the habeas court denied the
plaintiff’s petition for a writ of habeas corpus.
On January 2, 2018, the plaintiff commenced an action
against the defendants based on their representation of
him in both the federal civil rights action and the habeas
proceedings. In his amended complaint, the plaintiff
alleged claims for legal malpractice, negligence, fraud,
breach of the covenant of good faith and fair dealing,
and breach of contract. The gravamen of these claims
was that the defendants neglected to prosecute his
actions fully and properly and that they fraudulently
billed him for the work performed.
On March 7, 2018, the defendants filed a motion to dis-
miss the plaintiff’s action on the ground that the court
lacked subject matter jurisdiction. Specifically, the defen-
dants argued that the plaintiff’s claims relating to the
habeas proceedings were not justiciable because his
underlying criminal conviction had not been vacated
through either a direct appeal or a successful petition for
a writ of habeas corpus. The defendants also argued
that the plaintiff’s claims relating to the federal civil rights
action were subject to dismissal because the statute of
limitations had run.
On September 17, 2018, the court issued its memoran-
dum of decision on the motion to dismiss. The court
denied the motion to dismiss the plaintiff’s claims relat-
ing to the federal civil rights action on the ground that
a statute of limitations special defense must be specially
pleaded and cannot be raised by a motion to dismiss.2
The court granted the motion to dismiss as to the plain-
tiff’s claims relating to the habeas proceedings for lack
of subject matter jurisdiction.3 Citing Taylor v. Wallace,
supra, 184 Conn. App. 51, the court concluded that the
plaintiff’s claims against the defendants for legal malprac-
tice and fraud were not ripe for adjudication because
his underlying criminal conviction had not been invali-
dated.
The plaintiff filed a number of motions following the
court’s dismissal of his claims relating to the defen-
dants’ representation of him in the habeas proceedings,
which the court denied.4 On November 27, 2019, the
plaintiff withdrew the counts of his complaint relating
to the federal civil rights action that had not been dis-
missed.5 This appeal followed. Additional facts will be
set forth as necessary.
Before we address the plaintiff’s claims on appeal, we
set forth the applicable standard of review of a trial
court’s granting a motion to dismiss. ‘‘[In reviewing]
the trial court’s decision to grant a motion to dismiss,
we take the facts to be those alleged in the complaint,
including those facts necessarily implied from the alle-
gations, construing them in a manner most favorable
to the pleader. . . . [A] motion to dismiss admits all
facts well pleaded and invokes any record that accom-
panies the motion, including supporting affidavits that
contain undisputed facts. . . .
‘‘A determination regarding a trial court’s subject mat-
ter jurisdiction is a question of law. When . . . the trial
court draws conclusions of law, our review is plenary
and we must decide whether its conclusions are legally
and logically correct and find support in the facts that
appear in the record. . . .
‘‘Subject matter jurisdiction [implicates] the authority
of the court to adjudicate the type of controversy pre-
sented by the action before it. . . . [A] court lacks dis-
cretion to consider the merits of a case over which it
is without jurisdiction . . . . The objection of want of
jurisdiction may be made at any time . . . [a]nd the
court or tribunal may act on its own motion, and should
do so when the lack of jurisdiction is called to its atten-
tion. . . . The requirement of subject matter jurisdic-
tion cannot be waived by any party and can be raised
at any stage in the proceedings.’’ (Citation omitted;
internal quotation marks omitted.) Id., 46–47.
I
The plaintiff’s first claim on appeal is that the court
erred in dismissing his legal malpractice claim against
the defendants as unripe. Specifically, he argues that
the court improperly relied on the federal justiciability
bar enunciated in Heck v. Humphrey, supra, 512 U.S.
477. In response, the defendants contend that the plain-
tiff’s legal malpractice claim fails because he has not
proven that his underlying criminal conviction was
invalidated. We agree with the defendants.
The following additional facts, as alleged in the amended
complaint, and procedural history are relevant to our
resolution of this claim. In May, 2012, the plaintiff
retained the defendants to represent him in the habeas
proceedings, and the defendants filed an appearance
on his behalf. At the time the plaintiff retained the defen-
dants, the plaintiff had filed a pro se petition for a writ
of habeas corpus alleging ineffective assistance of trial
counsel. The plaintiff had alleged that his trial counsel
was ineffective for his failures to investigate and to present
a defense, to use expert witnesses, particularly experts
in forensic science, and to ensure the plaintiff’s compe-
tency to stand trial. The defendants neither filed an
amended petition nor discussed with the plaintiff how
these issues would be presented and supported dur-
ing trial.
In support of his position during the habeas trial,
the plaintiff intended to have expert witnesses analyze
evidence of a third-party perpetrator and ballistics sug-
gesting that another firearm was the murder weapon.
As a result of the defendants’ failure to request the
necessary testing, this analysis never materialized.
These and other investigatory issues stemmed from ‘‘(1)
the [defendants’] unwillingness to pay for the expert’s
services, (2) the [defendants’] failure to comprehend
the case, and (3) the [defendants’] indifference toward
the legal requirements imposed by the standard of
proof, i.e., the threshold required to prove these issues.’’
During the habeas trial, no evidence was presented
concerning the third-party perpetrator or ballistics that
the plaintiff desired to include as part of his case. The
only expert testimony during trial consisted of testi-
mony concerning the presence of fingerprints in a
blood-like substance found at the crime scene that was
determined not to be the plaintiff’s. On July 8, 2015,
the habeas court denied the plaintiff’s petition. Follow-
ing the habeas court’s decision, and after advising the
defendants that he no longer would be using their ser-
vices, the plaintiff requested that the court appoint a
public defender to represent him. The defendants filed
a petition for certification to appeal without consulting
the plaintiff. This petition was denied, but a pro se
petition for certification filed separately by the plaintiff
was granted. The habeas court’s denial of the plaintiff’s
petition was upheld on appeal. See Cooke v. Commis-
sioner of Correction, 194 Conn. App. 807, 810, 222 A.3d
1000 (2019), cert. denied, 335 Conn. 911, 228 A.3d
1041 (2020).
On January 2, 2018, the plaintiff brought the subject
action against the defendants. He alleged that the defen-
dants, in violation of their duties, neglected to prosecute
his habeas petition fully and properly. Specifically, the
plaintiff alleged that the defendants’ failures ‘‘in investi-
gation and comprehension of the facts of the case
yielded a failure to present and prove prejudice’’ pursu-
ant to Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984). He further alleged
that the defendants failed to prosecute his habeas peti-
tion fully and properly because the ‘‘aspects of the case
that were investigated were misused by the defendants
due to failures to comprehend the requisite law, facts
and issues, and to have any coherent trial strategy,’’ the
‘‘defendants failed to adequately prepare the plaintiff
for trial,’’ the ‘‘defendants failed to develop evidence in
support of the habeas case,’’ and the ‘‘defendants failed
to properly prepare and present court documents, to
include: motions, posttrial briefs, and postjudgment
remedies.’’ As a result of these alleged failures, the
plaintiff claims that he lost a substantial amount of
money that was paid to the defendants in the course
of the action for services, costs, and disbursements
incident to his habeas petition.
On March 7, 2018, the defendants filed a motion to dis-
miss the plaintiff’s action on the ground that the court
lacked subject matter jurisdiction. On September 17,
2018, the court issued its memorandum of decision,
granting the motion as to claims arising out of the
habeas proceedings.6 The court concluded that the
‘‘plaintiff’s underlying criminal conviction has not been
invalidated through an appeal or a petition for writ
of habeas corpus and, therefore, the plaintiff’s claims
relating to [the defendants’] representation in the
habeas petition are not ripe. Recovery under his
amended complaint would undermine the validity of
his conviction and cannot be maintained.’’ The court
further concluded that, as long as the plaintiff’s convic-
tion stands, his claims ‘‘based on [the defendants’] rep-
resentation in the habeas petition are hypothetical and
the court lacks subject matter jurisdiction over these
claims.’’ Accordingly, the court granted the motion to dis-
miss the plaintiff’s legal malpractice claim.
On appeal, the plaintiff contends that the trial court
erred by dismissing his legal malpractice claim as unripe
by relying on the federal justiciability bar enumerated
in Heck v. Humphrey, supra, 512 U.S. 477. Specifically,
the plaintiff argues that Heck is distinguishable because
no aspect of his amended complaint alleges damages for
wrongful incarceration and that his damages, namely,
moneys that the plaintiff paid to the defendants for
their representation in the habeas proceedings, are
actual rather than abstract or hypothetical. We disagree
with the plaintiff.
The following legal principles guide our analysis. ‘‘[J]us-
ticiability comprises several related doctrines . . .
[including ripeness]. . . . A case that is nonjusticiable
must be dismissed for lack of subject matter jurisdic-
tion. . . . [B]ecause an issue regarding justiciability
raises a question of law, our appellate review [of the
ripeness of a claim] is plenary. . . . [T]he rationale
behind the ripeness requirement is to prevent the
courts, through avoidance of premature adjudication,
from entangling themselves in abstract disagreements
. . . . Accordingly, in determining whether a case is
ripe, a trial court must be satisfied that the case before
[it] does not present a hypothetical injury or a claim
contingent [on] some event that has not and indeed may
never transpire.’’ (Internal quotation marks omitted.)
Taylor v. Wallace, supra, 184 Conn. App. 47–48.
‘‘In general, the plaintiff in an attorney malpractice
action must establish: (1) the existence of an attorney-
client relationship; (2) the attorney’s wrongful act or
omission; (3) causation; and (4) damages. . . . [T]he
plaintiff typically proves that the defendant attorney’s
professional negligence caused injury to the plaintiff
by presenting evidence of what would have happened
in the underlying action had the defendant not been
negligent.’’ (Internal quotation marked omitted.) Id., 48.
In Heck, a prisoner brought an action pursuant to 42
U.S.C. § 1983 alleging that unlawful procedures had led
to his arrest, that exculpatory evidence had knowingly
been destroyed, and that unlawful identification proce-
dures had been used at his trial. Heck v. Humphrey,
supra, 512 U.S. 478–79. His complaint sought, among
other things, compensatory and punitive monetary dam-
ages. Id., 479. He did not seek, however, release from
custody. Id. Because his conviction had been affirmed
and a federal habeas petition had been denied, the
United States Court of Appeals for the Seventh Circuit
affirmed the District Court’s dismissal of his action. Id.,
479–80. The plaintiff filed a petition for certiorari, which
the United States Supreme Court granted. Id., 480.
The United States Supreme Court affirmed the judg-
ment of dismissal. Id., 490. The court concluded that, ‘‘in
order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused
by actions whose unlawfulness would render a convic-
tion or sentence invalid, a § 1983 plaintiff must prove
that the conviction or sentence has been reversed on
direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such
determination, or called into question by a federal
court’s issuance of a writ of habeas corpus . . . . A
claim for damages bearing that relationship to a convic-
tion or sentence that has not been so invalidated is not
cognizable under § 1983. Thus, when a state prisoner
seeks damages in a § 1983 suit, the [D]istrict [C]ourt
must consider whether a judgment in favor of the plain-
tiff would necessarily imply the invalidity of his convic-
tion or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated.
But if the [D]istrict [C]ourt determines that the plain-
tiff’s action, even if successful, will not demonstrate
the invalidity of any outstanding criminal judgment
against the plaintiff, the action should be allowed to
proceed, in the absence of some other bar to the suit.’’
(Citation omitted; emphasis in original; footnotes omit-
ted.) Id., 486–87.
In Taylor v. Wallace, supra, 184 Conn. App. 45–51,
this court adopted the reasoning in Heck and affirmed
the dismissal of the plaintiff’s legal malpractice action.
In Taylor, the plaintiff brought an action against the
attorney who had been appointed to represent him dur-
ing one of his habeas proceedings. Id., 45–46. In his
complaint, the plaintiff alleged that the defendant pro-
vided deficient representation and used the plaintiff’s
name and circumstance to commit fraud against the
state. Id., 46. The trial court dismissed the plaintiff’s
complaint on the grounds that the defendant was enti-
tled to statutory immunity and that the plaintiff lacked
standing. Id.On appeal, this court affirmed the judgment of dis-
missal on the ground that the controversy was not ripe
for adjudication. Id., 47. Citing the policy considerations
as articulated in Heck, this court agreed that ‘‘if success
in a tort action would necessarily imply the invalidity
of a conviction, the action is to be dismissed unless the
underlying conviction has been invalidated.’’ Id., 51.
Although the plaintiff in Taylor argued that he was
not attacking his conviction and simply was seeking
monetary damages, this court reasoned that ‘‘[o]ne diffi-
culty with his position is that the injury, a necessary
element in a tort action, is the conviction. To prove his
malpractice action, he presumably would have to prove
that he would not have sustained the injury had profes-
sional negligence not occurred. Thus, a successful
result in this case would necessarily imply that the
conviction was improper. Inconsistency of judgments
is avoided by the requirement that the conviction first
be vacated.’’ Id., 52 n.5; see also Dressler v. Riccio, 205
Conn. App. 533, 551–52, A.3d (2021) (concluding
plaintiff’s legal malpractice and breach of fiduciary duty
claims against former criminal defense attorney were
not ripe for adjudication when success on claims neces-
sarily would undermine validity of his sentence); Tieri-
nni v. Coffin, Superior Court, judicial district of Tol-
land, Docket No. CV-XX-XXXXXXX-S (May 21, 2015) (60
Conn. L. Rptr. 450, 453) (reasoning that if court were
‘‘to adjudicate the plaintiff’s claim during the pendency
of the plaintiff’s habeas petition, there is a risk that [the]
court could determine the defendant’s performance was
insufficient while the habeas court determines it was
sufficient, or vice versa’’). Accordingly, we concluded,
in Taylor v. Wallace, supra, 184 Conn. App. 52, that for
‘‘so long as the conviction stands, an action collaterally
attacking the conviction may not be maintained.’’ (Foot-
note omitted.)
In the present case, the plaintiff’s legal malpractice
claim is a collateral attack on his underlying conviction
that has not been invalidated either on direct appeal;
see State v. Cooke, supra, 134 Conn. App. 581; or through
habeas proceedings. See Cooke v. Commissioner of
Correction, supra, 194 Conn. App. 810. In his amended
complaint, the plaintiff alleges that the defendants, in
violation of their duties, neglected to prosecute his
habeas petition fully and properly because the ‘‘aspects
of the case that were investigated were misused by the
defendants due to failures to comprehend the requisite
law, facts and issues, and to have any coherent trial
strategy,’’ the ‘‘defendants failed to adequately prepare
the plaintiff for trial,’’ the ‘‘defendants failed to develop
evidence in support of the habeas case,’’ and the ‘‘defen-
dants failed to properly prepare and present court docu-
ments, to include: motions, posttrial briefs, and post-
judgment remedies.’’ He further alleges that the defen-
dants’ failures ‘‘in investigation and comprehension
of the facts of the case yielded a failure to present and
prove prejudice’’ pursuant to Strickland v. Washington,
supra, 466 U.S. 668. These allegations clearly implicate
the sufficiency of the defendants’ representation in the
habeas proceedings and, to prove these allegations, the
plaintiff presumably would have to demonstrate that
he would not have sustained an injury of continued
incarceration had professional negligence not occurred.
See Taylor v. Wallace, supra, 184 Conn. App. 52 n.5.
The allegations in the plaintiff’s legal malpractice claim
thus necessarily imply the invalidity of the plaintiff’s
conviction.
Moreover, allowing the plaintiff to proceed with his
legal malpractice claim would create the risk of incon-
sistent judgments. The plaintiff has filed another peti-
tion for a writ of habeas corpus in which he alleges
that the defendants rendered ineffective assistance of
counsel during his previous habeas proceedings. See
Cooke v. Commissioner of Correction, Superior Court,
judicial district of Tolland, Docket No. CV-XX-XXXXXXX-
S. As a result, if the plaintiff were allowed to continue
prosecuting his legal malpractice claim against the
defendants, the trial court in this case and the habeas
court conceivably could render inconsistent judgments
in which one court determines that the defendants’
performance was deficient while the other court deter-
mines it was not deficient. See Tierinni v. Coffin, supra,
60 Conn. L. Rptr. 453. Accordingly, for as long as the
plaintiff’s conviction stands, his civil legal malpractice
action against the defendants is not ripe for adjudication
and may not be maintained. See Taylor v. Wallace,
supra, 184 Conn. App. 52.
The plaintiff makes two overarching arguments in
support of his contention that his legal malpractice
claim is not unripe. First, he argues that the trial court
erred in applying Heck to dismiss his claim as unripe
because he does not seek damages for wrongful incar-
ceration in his complaint. Second, he contends that the
court should not have dismissed his legal malpractice
claim because the Heck bar does not implicate the
court’s subject matter jurisdiction and, in any event,
a ripeness determination should be determined under
Connecticut common law and not under Heck. Neither
of the plaintiff’s arguments is persuasive.
As to the plaintiff’s first argument, we first note that
the court relied on Taylor to dismiss his legal malprac-
tice claim rather than on Heck. Second, although the
plaintiff claims that he is not seeking damages for
wrongful incarceration and that, as a result, his com-
plaint does not imply the invalidity of his conviction, a
fair reading of his complaint indicates otherwise.7 In
his complaint, the plaintiff alleges that the defendants
neglected to prosecute his habeas claims fully and prop-
erly by failing, inter alia (1) to comprehend the requisite
law, facts, and issues and to have any coherent trial
strategy, (2) to adequately prepare the plaintiff for trial,
(3) to develop evidence in support of the plaintiff’s
habeas case, and (4) to properly prepare and present
court documents such as motions, posttrial briefs, and
postjudgment remedies. These allegations, if success-
fully proven, necessarily imply the invalidity of the
plaintiff’s conviction, and, thus, constitute an impermis-
sible collateral attack on his conviction. See Taylor v.
Wallace, supra, 184 Conn. App. 52. Consequently, the
plaintiff’s first argument fails.
The plaintiff’s jurisdictional argument also is unper-
suasive. Regardless of whether Heck implicates a
court’s subject matter jurisdiction, it is clear from the
court’s memorandum of decision that it based its juris-
dictional determination on Taylor rather than on Heck.
Citing Taylor, the court noted that ‘‘[u]ntil an underlying
conviction has been invalidated, either through an
appeal or a petition for writ of habeas corpus, a plain-
tiff’s claim for legal malpractice against his criminal
trial or habeas lawyer is not ripe for adjudication.’’
Contrary to the plaintiff’s claim, the trial court, there-
fore, did in fact rely on Connecticut common law when
determining that it lacked subject matter jurisdiction
over the plaintiff’s legal malpractice claim. This court’s
decision in Taylor clearly held that failure to invalidate
an underlying criminal conviction implicates ripeness
and, therefore, the court’s subject matter jurisdiction.
Taylor v. Wallace, supra, 184 Conn. App. 47–52. Accord-
ingly, the trial court properly dismissed the plaintiff’s
legal malpractice claim for lack of subject matter juris-
diction.
II
The plaintiff next claims that the court erred by dis-
missing as unripe his fraud claim for the same reasons
that it dismissed his legal malpractice claim. Specifi-
cally, the plaintiff argues that his fraud allegations and
the evidence necessary to prove them are completely
independent from his legal malpractice allegations. We
conclude that some of the allegations made in support
of his fraud claim are significantly distinct from his
legal malpractice claim allegations because, if success-
ful, they would not demonstrate the invalidity of his
underlying conviction.
The following additional facts, as alleged in the
amended complaint, are relevant to our resolution of
this claim. When the plaintiff retained the defendants,
he paid them an initial retainer of $15,000. The retainer
contract between the plaintiff and the defendants stated
that the defendants would represent the plaintiff ‘‘in
connection with any and all actions necessary to set
aside his criminal conviction and obtain his vindica-
tion.’’ The retainer contract further stated that Attorney
Williams would bill at the rate of $500 per hour and
that the associates at his firm would bill at a rate of
$350 per hour. Attorney Williams represented to the
plaintiff that this rate was standard and normal for his
work in habeas cases. The plaintiff later discovered that
Attorney Williams bills for habeas work based on a
flat rate for services rendered, with the majority of his
criminal and habeas clients paying a $5000 retainer for
the prosecution of their whole case. The plaintiff further
alleged that Attorney Williams was not forthcoming
when asked about his other criminal cases, and the
billing rate disparity was discovered only upon investi-
gation by the plaintiff.
As the defendants’ representation continued, they
requested additional and larger payments. By the
end of the defendants’ representation, fees totaling
$258,442.65 were incurred, including $169,121.44 that
went toward investigation costs. Despite the sum spent
on investigation costs, the expert investigation lagged
behind as a result of the defendants’ reluctance to pay
the experts from the client trust fund. Moreover,
because of an apparent fee dispute, evidence that was
supposed to be analyzed by one or more of the habeas
experts never occurred, including testing on third-party
DNA and ballistics. The plaintiff did not discover the
disparity in the expert investigation until the defen-
dants’ billing records were disclosed in September,
2015.
During the defendants’ representation of the plaintiff,
the plaintiff assisted with his case by preparing a draft
pretrial brief for the habeas proceedings. He provided
this brief to the defendants in November, 2014. The defen-
dants used the majority of the plaintiff’s draft pretrial
brief in the final draft that was filed in the habeas court.
The final draft of the pretrial brief was sixty-nine pages,
and 72.62 percent of it was a direct cut and paste copy
from the plaintiff’s own draft pretrial brief. The plaintiff
determined this through a line-by-line count of the two
briefs. In total, 968 of the 1333 lines in the final pretrial
brief were copied. The final draft of the pretrial brief
contained errors that the plaintiff had made in his brief
including typographical and citation errors, incomplete
and missing arguments, and the failure to argue against
the state’s position. Even though the defendants copied
a significant majority of the plaintiff’s draft pretrial
brief, they billed the plaintiff for 29.3 hours of work
totaling $14,650. The plaintiff did not discover the hours
that the defendants billed for the preparation of the
final pretrial brief until September, 2015. As a result of
the defendants’ misrepresentation of information, the
plaintiff incurred damages.
On March 7, 2018, the defendants moved to dismiss
the fraud claim on the ground that all claims related to
the habeas proceedings were not justiciable because
the plaintiff’s underlying criminal conviction had not
been invalidated. The court granted the motion to dis-
miss the fraud claim, observing that, ‘‘[a]lthough the
plaintiff seeks compensatory damages in the amount he
alleges was improperly billed, it is clear that the crux
of his claims is that his petition for a writ of habeas
corpus was denied because of [the defendants’] acts and
omissions in handling the habeas proceedings. Even the
plaintiff’s allegations regarding the billing circle back
around to the habeas trial and its outcome–he alleges
that [the defendants] [were] reticent about paying
experts, which delayed investigation of the evidence,
and declined to pay for or request the analysis of various
evidence, evidence which was required to prove the plain-
tiff’s innocence.’’
On appeal, the plaintiff argues that Heck v. Humphrey,
supra, 512 U.S. 477, does not apply to his fraud claim
because the allegations relating to his fraud claim and
the evidence required to prove it are completely self-
contained and limited to billing irregularities. In other
words, the plaintiff argues that his fraud claim has no
effect on the validity of his underlying criminal convic-
tion. In response, the defendants contend that the plain-
tiff’s fraud claim merely repeats the legal malpractice
claim and attempts ‘‘to cloak that in the garb of an action
for fraud.’’ As a result, in the defendants’ view, the same
reasoning that compelled the dismissal of the legal mal-
practice claim also compels the dismissal of the plain-
tiff’s fraud claim. Although we agree with the defen-
dants that some of the allegations that the plaintiff
makes in support of his fraud claim properly were dis-
missed, we disagree with the defendants that all of them
necessarily imply the invalidity of the plaintiff’s convic-
tion.
‘‘Fraud consists [of] deception practiced in order to
induce another to part with property or surrender some
legal right, and which accomplishes the end designed.
. . . The elements of a fraud action are: (1) a false
representation was made as a statement of fact; (2) the
statement was untrue and known to be so by its maker;
(3) the statement was made with the intent of inducing
reliance thereon; and (4) the other party relied on the
statement to his detriment.’’ (Internal quotation marks
omitted.) Reid v. Landsberger, 123 Conn. App. 260, 281,
1 A.3d 1149, cert. denied, 298 Conn. 933, 10 A.3d 517(2010). There is no Connecticut authority that addresses
a claim of fraudulent billing in the context of a dispute
between an incarcerated individual and his or her crimi-
nal or habeas counsel. Authority from other jurisdic-
tions, however, provides guidance for our resolution of
this matter.
In Bird, Marella, Boxer & Wolpert v. Superior Court,
106 Cal. App. 4th 419, 421,130 Cal. Rptr. 2d 782 (2003)
(Bird), the California Court of Appeal considered
whether a convicted criminal defendant must allege
actual innocence in order to state a cause of action
against former defense counsel for breach of contract
and related torts arising from a fee dispute between
the parties. In Bird, the plaintiff had retained the defen-
dants by written contract to represent him in a criminal
matter. Id. The defendants represented him from April
to December, 2000, after which the plaintiff discharged
them and retained a different firm. Id. In April, 2001,
the plaintiff was convicted of various criminal offenses.
Id. Following his conviction, the plaintiff brought an
action against his former attorneys and their firm alleg-
ing breach of contract, breach of fiduciary duty, fraud,
and money had and received. Id. In his complaint, he
did not allege that he was innocent of the charges of
which he was convicted and he specifically renounced
any claim that the defendants were negligent in their
representation. Id. Instead, the plaintiff alleged that the
defendants breached a provision of the retainer agree-
ment providing that the defendants would charge him
only for ‘‘ ‘services reasonably required’ ’’ and charged
him an unconscionable fee by, among other things, (1)
charging him for work the defendants did not perform,
(2) grossly overcharging him for work they did perform,
(3) inflating/padding the time charged to him, (4) manu-
facturing work not to advance his cause but instead
solely to increase their fees, (5) over-charging and dou-
ble charging for costs, and (6) charging for costs not
incurred on his behalf. Id., 422. The plaintiff also alleged
that the defendants breached specific provisions of the
contract, including provisions (1) to bill him in minimal
units of a tenth of an hour, (2) to use paralegals for
tasks which did not require attorneys, (3) to bill him
only for costs incurred in performing legal services
under the agreement, and (4) to bill travel costs only for
out of town travel. Id.The defendants demurred8 on each cause of action
on the ground that the plaintiff did not allege that he
was actually innocent of the crimes for which he was
convicted. Id., 423. The trial court overruled the demur-
rers on the ground that the plaintiff’s action was not a
malpractice action and that the requirement as articu-
lated in Wiley v. County of San Diego, 19 Cal. 4th 532,
966 P.2d 983, 79 Cal. Rptr. 2d 672 (1998), that a convicted
criminal defendant must prove actual innocence in
order to state a cause of action for legal malpractice
against former defense counsel, was inapposite. Bird,
Marella, Boxer & Wolpert v. Superior Court, supra,106 Cal. App. 4th 424. The defendants then brought a
petition for a writ of mandate ordering the trial court
to vacate its ruling and to issue a new ruling sustaining
their demurrers without leave to amend. Id. The Califor-
nia Court of Appeal issued an order to show cause and
stayed further proceedings in the trial court. Id.The court in Bird upheld the overruling of the defen-
dants’ demurrer. Id., 432. In so holding, the court first
distinguished the plaintiff’s claims from other California
cases in which the courts had held that a convicted
criminal defendant must establish actual innocence to
state a claim for legal malpractice against former
defense counsel. The court noted that the actual inno-
cence and postconviction exoneration requirements
were based principally on public policy considerations.
Id., 424. Specifically, the ‘‘requirement of actual inno-
cence prevents those convicted of crime from taking
advantage of their own wrongdoing and shift[ing] much,
if not all, of the punishment . . . for their criminal acts
to their former attorneys. Requiring actual innocence
and postconviction exoneration also recognizes the fact
that [i]n the criminal malpractice context . . . a defen-
dant’s own criminal act remains the ultimate source of
his predicament irrespective of counsel’s subsequent
negligence. In sum . . . the notion of paying damages
to a plaintiff who actually committed the criminal
offense solely because a lawyer negligently failed to
secure an acquittal is of questionable public policy and
is contrary to the intuitive response that damages
should only be awarded to a person who is truly free
from any criminal involvement.’’ (Footnotes omitted;
internal quotation marks omitted.) Id., 424–25.
The court in Bird further noted that practical consid-
erations and ‘‘ ‘pragmatic difficulties’ ’’ supported a
requirement of actual innocence and postconviction
exoneration. Id., 425. ‘‘[A] civil matter lost through an
attorney’s negligence is lost forever . . . . In contrast,
a criminal defense lost through an attorney’s negligence
can be corrected by postconviction relief in the form
of an appeal or writ relief. Pragmatic difficulties include
the difficulty in quantifying damages as, for example, in
the case of a defendant whose counsel’s incompetence
results in a longer sentence and the confusion which
would arise when a jury has to decide by a preponder-
ance of the evidence whether, but for the negligence
of his attorney, another jury could not have found the
client guilty beyond a reasonable doubt. Finally, the
requirement for postconviction exoneration protects
against inconsistent verdicts and promotes judicial
economy by collaterally estopping frivolous malprac-
tice claims in cases where the defendant has already
been denied postconviction relief on the basis of inef-
fective assistance of counsel.’’ (Footnotes omitted;
internal quotation marks omitted.) Id.The court then concluded that a fee dispute between
a convicted criminal defendant client and his former
counsel does not invoke the policy and practical consid-
erations that arise from a malpractice action. Id., 428.
In a fee dispute, the ‘‘client does not seek to shift the
punishment for his criminal acts to his former counsel
nor is the client’s own criminal act the ultimate source
of his predicament as evidenced by the fact a client
acquitted of the criminal charges against him could have
suffered the same unlawful billing practices as [the
plaintiff]. Furthermore a fee dispute between client and
counsel does not give rise to the practical problems and
pragmatic difficulties inherent in a malpractice action
brought by a convicted criminal defendant client. In
litigation over a fee dispute there is no difficulty in quanti-
fying damages for a wrongful conviction or a longer prison
sentence and there is no problem of applying a standard
of proof within a standard of proof. A judgment for the
client in a fee dispute is not inconsistent with a judg-
ment for the [p]eople in the criminal case. And, there
is no duplication of effort since a fee dispute obviously
cannot be resolved through postconviction relief.’’
(Emphasis in original; internal quotation marks omit-
ted.) Id.Moreover, the court in Bird explained that, ‘‘just as
there are important public policy reasons for applying
the actual innocence rule to cases involving negligent
criminal representation, there are important public pol-
icy reasons for not applying the rule to bar cases involv-
ing fee disputes between criminal defendant clients and
their attorneys.’’ Id., 430. ‘‘An attorney owes the client
a fiduciary duty of the very highest character. This fidu-
ciary duty requires fee agreements and billings must be
fair, reasonable and fully explained to the client. No
fee agreement is valid and enforceable without regard
to considerations of good conscience, fair dealing, and
. . . the eventual effect on the cost to the client.’’ (Foot-
notes omitted; internal quotation marks omitted.) Id.,
430–31. The fiduciary duty to charge only fair, reason-
able, and conscionable fees applies to all members of
the bar, including criminal defense attorneys. Id., 431.
As a result, the court concluded that if ‘‘only actually
innocent clients can challenge their defense counsel’s
excessive or unlawful fees then actually guilty clients
could never seek redress against even the most unscru-
pulous attorneys. Moreover, even clients acquitted of
the charges against them could not seek redress unless
they could prove they were actually innocent of the
charges. We can find no rational basis for affording crim-
inal defense attorneys a virtually impregnable shield
against suits to recover excessive or unlawful fees. Nor
can we find any rational basis for affording civil liti-
gants, no matter how morally blameworthy they may be,
a remedy for exactly the same unlawful conduct, dou-
ble-billing, inflating hours, etc., for which most criminal
litigants are denied a remedy.’’ (Footnote omitted; inter-
nal quotation marks omitted.) Id.In light of these policy considerations, the court in
Bird concluded that ‘‘in a suit by a convicted criminal
defendant client against his or her attorney to enforce
the primary rights to be billed in accordance with the
retainer agreement and to be free from unethical or
fraudulent billing practices on the part of defense coun-
sel the client is not required to allege and prove actual
innocence of the charged crimes or postconviction
exoneration.’’ Id., 432. Although some of the plaintiff’s
allegations implicated the quality of the legal services
provided,9 the court found that others were not directed
at the quality of the work performed but rather at its
quantity.10 Accordingly, the court discharged the order
to show cause and directed the trial court to strike from
the complaint only the allegations that implicated the
quality of the defendants’ work. Id.Similar to Bird, courts in other jurisdictions have
permitted a criminally convicted plaintiff to pursue an
action against his or her former defense counsel in
certain circumstances. In Labovitz v. Feinberg, 47 Mass.
App. 306, 314, 713 N.E.2d 379 (1999), the Massachusetts
Appeals Court held that portions of a criminally con-
victed plaintiff’s breach of contract claim against his
former counsel could survive a motion for summary
judgment. Although the majority of his breach of con-
tract claim failed because the plaintiff’s underlying con-
viction had not been invalidated, the plaintiff’s affidavit
submitted in opposition to the defendants’ motion for
summary judgment contained assertions that his fee
arrangement with the defendants ‘‘ ‘would cover all mat-
ters up to an appeal’ ’’ but that he was told to secure
new counsel to file a motion to withdraw his plea and
for the sentencing phase. Id. The court held that this
uncontroverted assertion, ‘‘viewed in the light of the
defendants’ evidence that they would represent him in
all proceedings in the [f]ederal District Court, except
trial . . . creates a genuine issue of material fact
whether [the plaintiff] was harmed by the defendants
when they did not file and pursue a motion to withdraw
his guilty plea, thereby causing him to incur successor
attorney’s fees of $15,000 with respect to that motion.’’
(Citation omitted.) Id. Accordingly, the court reversed
the trial court’s granting of summary judgment as to
the portion of the plaintiff’s breach of contract claim
that specifically related to the defendants’ failure to file
and argue a motion to withdraw the guilty plea and to
represent him at sentencing. Id.; see also Winniczek v.
Nagelberg, 394 F.3d 505, 509 (7th Cir. 2005) (rule requir-
ing convicted plaintiff to prove actual innocence as
part of legal malpractice claim does not bar breach of
contract action when wrong alleged is overcharging
rather than conviction); Fuller v. Partee, 540 S.W.3d
864, 872 (Mo. App. 2018) (concluding trial court erred
in dismissing breach of contract claim when plaintiff’s
claim did not allege actual innocence or unsatisfactory
representation and instead alleged that plaintiff had
contract clearly listing certain legal services that would
be provided but that ultimately were not); Gonyea v.
Scott, 541 S.W.3d 238, 247–48 (Tex. App. 2017) (conclud-
ing rule requiring convicted criminal to prove exonera-
tion prior to bringing legal malpractice claim does not
extend to circumstances where criminal client sues for-
mer counsel for recovery of restitution damages when
he contracts with counsel to perform specific work and
attorney fails to provide that representation).
In the present case, some of the allegations that the
plaintiff makes in support of his fraud claim do address
the quality and effectiveness of the defendants’ repre-
sentation. Specifically, the plaintiff’s allegations that the
expert investigation lagged behind as a result of the
defendants’ reluctance to pay the experts from the cli-
ent trust fund and that, because of an apparent fee
dispute, evidence that was supposed to be analyzed by
one or more of the habeas experts never occurred,
including testing on third-party DNA and ballistics,
address the quality of the defendants’ performance.
These allegations, although framed in the billing con-
text, ultimately would require the plaintiff to prove that
the defendants’ representation was deficient. Conse-
quently, these allegations are controlled by Taylor, and
the trial court properly dismissed them because they
implicate the validity of the plaintiff’s conviction and
his conviction has not been invalidated. See Taylor v.
Wallace, supra, 184 Conn. App. 51.
Some of the plaintiff’s other allegations made in sup-
port of his fraud claim, however, do not challenge the
quality of the defendants’ representation. In his
amended complaint, the plaintiff alleges that Attorney
Williams misrepresented that the retainer contract that
he entered into with the plaintiff was standard and
normal for his work in habeas cases. The plaintiff also
alleges that the defendants billed him for 29.3 hours of
work totaling $14,650 for their work on the pretrial brief
despite the fact that 72.62 percent of the brief was a
direct cut and paste copy from the draft pretrial brief
that the plaintiff had prepared himself. These allega-
tions assert that the defendants overcharged for their
work by misrepresenting their standard rate for habeas
clients, inflated or padded the hours worked on matters
in connection with their representation of the plaintiff,
or charged the plaintiff for work they did not perform.
Like the allegations in Bird that the California Court
of Appeal allowed; Bird, Marella, Boxer & Wolpert v.
Superior Court, supra, 106 Cal. App. 4th 429–32; these
allegations assert allegedly fraudulent or improper bill-
ing practices of the defendants here.
We are persuaded that the policy and practical con-
siderations behind the requirement that an action that
necessarily implies the invalidity of a conviction must
be dismissed if the underlying conviction has not been
invalidated do not apply to the fee dispute allegations
in the present case. As the court in Bird noted, in a fee
dispute, the criminally convicted plaintiff is not seeking
to shift the responsibility for and consequences of his
criminal acts to his former counsel, nor is the client’s
own criminal act the ultimate source of his predica-
ment. Id., 428. Moreover, a judgment for a criminally
convicted plaintiff in a fee dispute is not inconsistent
with the judgment of his criminal conviction. Id. If a
criminally convicted plaintiff could challenge defense
counsel’s excessive or unlawful fees only if he or she is
able to prove the invalidity of the underlying conviction,
then ‘‘guilty clients could never seek redress against
even the most unscrupulous attorneys.’’ (Internal quota-
tion marks omitted.) Id., 431. We agree with the court
in Bird that there is ‘‘no rational basis for affording
criminal defense attorneys a virtually impregnable
shield against suits to recover excessive or unlawful
fees. Nor can we find any rational basis for affording
civil litigants, no matter how morally blameworthy they
may be, a remedy for exactly the same unlawful con-
duct, double-billing, inflating hours, etc., for which most
criminal litigants are denied a remedy.’’ Id. Accordingly,
we conclude that the allegations that the plaintiff makes
in support of his fraud claim that merely constitute a
fee dispute and that do not implicate the validity of his
underlying conviction are not controlled by Taylor, and
that dismissal of his fraud claim was unwarranted.
The judgment is reversed with respect to the claim
of fraud relating solely to a fee dispute, and the case
is remanded with direction to deny the motion to dis-
miss that claim and for further proceedings according
to law; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
Attorney Williams is representing himself and his firm in this appeal.
2
The counts for which the court denied the motion to dismiss were counts
one, three, five, and seven. Count eight of the plaintiff’s amended complaint
alleges a claim for breach of contract. The plaintiff’s breach of contract
claim contains allegations relating to the defendants’ representation in both
the federal civil rights action and the habeas proceedings. As a result, the
trial court also denied the motion to dismiss count eight ‘‘to the extent it
is based on the circumstances of the plaintiff’s federal civil rights action.’’
3
The counts of the plaintiff’s amended complaint that related to the defen-
dants’ representation of the plaintiff in the habeas proceedings were counts
two, four, six, and portions of count eight.
4
The plaintiff filed a motion to reargue/reconsider, a motion for permission
to file an interlocutory appeal, a motion to consolidate, and a motion to
modify. These motions do not affect our analysis of the issues that the
plaintiff raises on appeal.
5
In his notice of withdrawal of certain counts of the complaint, the plaintiff
stated that he was withdrawing counts ‘‘one, three, five, seven (all remaining
counts not previously dismissed . . . .’’ The plaintiff did not specify in his
withdrawal form, however, whether he was withdrawing the portion of
count eight that alleged a breach of contract claim against the defendants
based on their representation in the federal civil rights action. As a result,
on September 8, 2020, we ordered the parties to file memoranda addressing
the issue of whether this appeal should be dismissed for lack of a final
judgment. The plaintiff filed his memorandum opposing the dismissal of
the appeal, but the defendants filed no memorandum. After reviewing the
plaintiff’s memorandum, a panel of this court ordered the court’s own motion
to dismiss marked off, concluding that the plaintiff’s withdrawal form encom-
passed the portion of count eight alleging a breach of contract claim with
respect to the defendants’ representation in the federal civil rights action.
6
See footnote 2 of this opinion.
7
We note that the ‘‘interpretation of pleadings is always a question of law
for the court . . . . Our review of the trial court’s interpretation of the
pleadings therefore is plenary. . . . In exercising that review, [w]e take the
facts to be those alleged in the complaint . . . and we construe the com-
plaint in the manner most favorable to sustaining its legal sufficiency. . . .
Moreover, we are mindful that pleadings must be construed broadly and
realistically, rather than narrowly and technically. . . . [I]n determining the
nature of a pleading filed by a party, we are not bound by the label affixed
to that pleading by the party.’’ (Citations omitted; internal quotation marks
omitted.) Manere v. Collins, 200 Conn. App. 356, 366, 241 A.3d 133 (2020).
8
In California, a demurrer is used to test the sufficiency of a pleading as
a matter of law. California Logistics, Inc. v. California, 161 Cal. App. 4th
242, 247, 73 Cal. Rptr. 3d 825 (2008).
9
The court found that the plaintiff’s allegations that the defendants grossly
manufactured work, used higher priced attorneys to perform paralegal work,
and provided services that were not worth what they charged for them
implicated the quality of the legal services provided. Bird, Marella, Boxer &
Wolpert v. Superior Court, supra, 106 Cal. App. 4th 429.
10
The court found that the plaintiff’s allegations that the defendants
charged the plaintiff for work they did not perform, grossly overcharged
the plaintiff for work they did perform, and inflated/padded the time charged
to the plaintiff all implicated the quantity of the work the defendants per-
formed rather than the quality. Bird, Marella, Boxer & Wolpert v. Superior
Court, supra, 106 Cal. App. 4th 429.