Samuel v. Hartford ( 2014 )

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AUGUSTUS E. SAMUEL, JR., ET AL. v. CITY OF
HARTFORD ET AL.
(AC 36121)
DiPentima, C. J., and Gruendel and Prescott, Js.
Submitted on briefs September 25—officially released December 9, 2014
(Appeal from Superior Court, judicial district of
Hartford, Schuman, J.)
Augustus E. Samuel, Jr., self-represented, the appel-
lant (named plaintiff) filed a brief.
Nathalie Feola-Guerrieri, senior assistant corpora-
tion counsel, filed a brief for the appellees (defendants).
Opinion
GRUENDEL, J. The self-represented plaintiff,
Augustus E. Samuel, Jr.,1 appeals from the judgment of
the trial court in favor of the defendants, the city of
Hartford, Daryl K. Roberts and Neil Dryfe.2 He claims
that the court improperly dismissed two counts alleging
defamation of character and an action for what his
complaint termed ‘‘deliberate indifference.’’ We dis-
agree and, accordingly, affirm the judgment of the
trial court.
The relevant facts are as follows. On May 19, 2010,
the plaintiff filed a motion in the Superior Court to
waive the entry fee and to pay the costs of service of
process, which the court granted. He then commenced
a civil action against the defendants on June 17, 2010.
His handwritten complaint consisted of four counts that
alleged defamation of character, false imprisonment,
malicious prosecution and an action for ‘‘deliberate
indifference.’’ Prior to trial, the court rendered summary
judgment in favor of the defendants on the third count
alleging malicious prosecution. At the court trial, the
plaintiff withdrew the second count alleging false
imprisonment. Accordingly, the only counts that
remained for the court’s consideration were those alleg-
ing defamation of character and deliberate indifference.
This appeal likewise pertains only to those counts.
Prior to trial, the defendants filed a request for leave
to amend their answer and special defenses. In that
motion, the defendants sought to allege, as a special
defense, that the plaintiff’s action was barred by the
statute of limitations set forth in General Statutes § 52-
597. After hearing argument, the court granted that
motion and permitted the defendants to so amend
their pleadings.
At trial, the defendants introduced into evidence a
general release signed by the plaintiff on December 18,
2012, approximately one and one half years after the
civil action was commenced. That release provides in
relevant part: ‘‘Know all Men by these Presents that I,
Augustus Samuel, hereinafter referred to as the Relea-
sor, for the sole consideration of Three Thousand Five
Hundred Dollars ($3,500.00), to me in hand paid by the
City of Hartford, hereinafter referred to as the Releasee,
the receipt of which is acknowledged, has released,
remised and forever discharged, and by these presents
do for myself and my heirs, executors, administrators
and assigns, release, remise and forever discharge the
said City of Hartford, its employees and personnel and
its successors and assigns, of and from all debts, obliga-
tions, promises, covenants, agreements, claims,
demands, damages, actions, or causes of action, which
against the Releasee, the Releasor ever had, now has
or hereafter can, shall or may have, for, upon, or by
reason of any matter, cause or thing whatsoever, from
the beginning of the world to the date of these presents,
and particularly in connection with the 2002 City of
Hartford Grand List Tax Deed Sale of 205 Laurel
Street . . . .’’
When the plaintiff concluded his case-in-chief, the
defendants immediately made an oral motion to dismiss
the action. After affording the parties ample argument
on the motion, the court delivered its decision from
the bench. As to count one, the court found that the
defamation action was barred by § 52-597. The court
further found that the general release precluded recov-
ery thereon. With respect to count four alleging deliber-
ate indifference, the court again found that the general
release ‘‘applies to that count as it does to the entire
lawsuit.’’ The court also found that count four failed
to state a claim upon which relief could be granted.
Accordingly, the court granted the defendants’ motion
and rendered a judgment of dismissal. From that judg-
ment, the plaintiff now appeals.
I
The plaintiff first claims that the court improperly
determined that the defamation count was time barred.
We disagree.
‘‘Whether a particular action is barred by the statute
of limitations is a question of law to which we apply a
plenary standard of review.’’ (Internal quotation marks
omitted.) Florian v. Lenge, 91 Conn. App. 268, 279, 880
A.2d 985 (2005). The pertinent statute of limitations is
contained in § 52-597, which provides that ‘‘[n]o action
for libel or slander shall be brought but within two
years from the date of the act complained of.’’
The plaintiff’s complaint alleges that Roberts made
certain defamatory remarks about the plaintiff during
a television broadcast, which aired on multiple occa-
sions in early 2008, the last occurring on March 8, 2008.
The plaintiff commenced this action on June 17, 2010,
more than two years after the last alleged publication
thereof. On that basis, the court concluded that the
defamation of character count was barred by § 52-597.
On appeal, the plaintiff argues that the defendants
waived any statute of limitations defense. His claim is
belied by the fact the court granted permission to the
defendants to amend their answer and special defenses
prior to the commencement of trial. In so doing, the
court reasoned: ‘‘I see no prejudice to the plaintiff if
the defendants amend their answer at this point because
this issue is primarily a question of law and will not
require much, if any, testimony to . . . establish an
actual basis for the decision. This is an important issue
that I believe should be resolved . . . .’’
Although the plaintiff in his appellate brief states that
‘‘the court clearly abused its discretion’’ in granting the
defendants leave to amend their pleadings, he has not
further briefed that contention in any manner. Apart
from the inadequacy of that bald assertion; see, e.g.,
Russell v. Russell, 91 Conn. App. 619, 634–35, 882 A.2d
98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005);
the record reveals that the plaintiff did not raise any
objection before the trial court, as required by Practice
Book §§ 5-2 and 60-5, rendering that contention unpre-
served.3
The plaintiff also argues that the statute of limitations
was equitably tolled by the federal prison mailbox rule.
He claims that he ‘‘placed the complaint in the prison
mailbox’’ on January 26, 2010. The only evidence sub-
mitted at trial to support that assertion was the plain-
tiff’s own testimony that he dated and mailed his
complaint on that date, which the court, as sole arbiter
of credibility, was free to reject. See Jay v. A & A
Ventures, LLC, 118 Conn. App. 506, 514, 984 A.2d 784(2009).
Beyond the paucity of evidence underlying that con-
tention, the plaintiff’s claim founders on the fact that
this court, as recently as this past April, has declined
to adopt that federal rule. As we stated: ‘‘The plaintiff
also claims that the court erred in declining to apply
the federal prison mailbox rule. See Houston v. Lack,
487 U.S. 266, 270, 108 S. Ct. 2379, 101 L. Ed. 2d 245(1988) (notice of appeal deemed filed when prisoner
delivers it to prison authorities for forwarding to court).
In Hastings v. Commissioner of Correction, 82 Conn.
App. 600, 604, 847 A.2d 1009 (2004), appeal dismissed,
274 Conn. 555, 876 A.2d 1196 (2005), this court expressly
declined to adopt such a rule. We are bound by that
precedent, as it is axiomatic that one panel of this court
cannot overrule the precedent established by a previous
panel’s holding. See, e.g., First Connecticut Capital,
LLC v. Homes of Westport, LLC, 112 Conn. App. 750,
759, 966 A.2d 239 (2009) (this court’s policy dictates
that one panel should not, on its own, reverse the ruling
of a previous panel . . .).’’ (Internal quotation marks
omitted.) Connelly v. Commissioner of Correction, 149
Conn. App. 808, 815, 89 A.3d 468 (2014). This court
likewise is bound by that precedent. Accordingly, we
conclude that the court properly determined that the
defamation count was barred by § 52-597.
II
The plaintiff next claims that the court improperly
determined that the general release warranted the dis-
missal of his defamation and deliberate indifference
counts, which arose from the alleged conduct of
Roberts and Dryfe in early 2008. That general release
provides in relevant part that the plaintiff, in exchange
for the payment of $3500, did ‘‘release, remise and for-
ever discharge the said City of Hartford, its employees
and personnel and its successors and assigns, of and
from all debts, obligations, promises, covenants,
agreements, claims, demands, damages, actions, or
causes of action, which against the Releasee, the Relea-
sor ever had, now has or hereafter can, shall or may
have, for, upon, or by reason of any matter, cause or
thing whatsoever, from the beginning of the world to
the date of these presents . . . .’’ (Emphasis added.)
In its oral decision, the court emphasized that ‘‘the
critical language of the release states that [the plaintiff]
releases the city, its employees and personnel from all
causes of action that he has or . . . hereafter can bring
from the beginning of time to the present. And, particu-
larly, in connection with the tax deed rebate claim that
[the plaintiff] filed. But the . . . plain language of the
release makes it clear that the tax case was not the
only matter released. It applies to all causes of action,
and particularly, the tax rebate case. The use of the
word particularly means including, but [not] limited to.
So I find that the plain language of the release encom-
passes this action, which did exist at the time [that the
plaintiff signed the release in] December of 2012 . . . .’’
The plaintiff contests that determination on two
fronts. First, he claims that the general release was
not properly authenticated. That claim requires little
discussion. The general release was introduced into
evidence at trial as exhibit A. During cross-examination
of the plaintiff at trial, defense counsel presented that
exhibit to the plaintiff, who testified that he recognized
the document as a release that contained his signature
‘‘[o]n the second page at the right side,’’ that he had
the opportunity to review and read the document prior
to signing it, and that the present action was pending
at that time. That testimony properly authenticated the
general release. See American Heritage Agency, Inc.
v. Gelinas, 62 Conn. App. 711, 720, 774 A.2d 220 (writing
may be authenticated by number of methods, including
direct testimony), cert. denied, 257 Conn. 903, 777 A.2d
192 (2001).
The plaintiff also argues that the general release vio-
lates the statute of frauds. The plaintiff did not raise
this claim in any manner before the trial court. Our
rules of practice require a party, as a prerequisite to
appellate review, to distinctly raise its claim before
the trial court. See Practice Book § 5-2 (‘‘[a]ny party
intending to raise any question of law which may be
the subject of an appeal must . . . state the question
distinctly to the judicial authority’’); Practice Book § 60-
5 (‘‘[t]he [reviewing] court shall not be bound to con-
sider a claim unless it was distinctly raised at trial or
arose subsequent to trial’’). For that reason, we repeat-
edly have held that ‘‘we will not decide an issue that
was not presented to the trial court. To review claims
articulated for the first time on appeal and not raised
before the trial court would be nothing more than a
trial by ambuscade of the trial judge.’’ (Internal quota-
tion marks omitted.) State v. Martin, 110 Conn. App.
171, 180, 954 A.2d 256 (2008), appeal dismissed, 295
Conn. 192, 989 A.2d 1072 (2010). We therefore decline
to further consider the plaintiff’s claim, and conclude
that the court properly determined that the general
release barred the present action.4
The judgment is affirmed.
In this opinion the other judges concurred.
1
Also named as a plaintiff in the operative complaint was Augustus E.
Samuel III. He has not filed an appearance in this appeal, and it is axiomatic
that his father, Augustus E. Samuel, Jr., cannot do so on his behalf, as he
is not an attorney licensed to practice law in this state. ‘‘As a self-represented
party, [the plaintiff] cannot represent the interests of another party. A pro
se party may not appear on behalf of another pro se party. . . . To do so
would be to engage in the unauthorized practice of law. See General Statutes
§ 51-88.’’ (Internal quotation marks omitted.) Zenon v. Mossy, 114 Conn.
App. 734, 734 n.1, 970 A.2d 814 (2009). We therefore refer to Augustus E.
Samuel, Jr., as the plaintiff in this opinion.
2
At all relevant times, Roberts was the Chief of Police and Dryfe was the
Assistant Chief of Police for the Hartford Police Department.
3
Prior to ruling on the defendants’ request for leave to amend their plead-
ings, the following colloquy transpired between the court and the plaintiff:
‘‘The Court: Sir, at this point I am not deciding the special defense, I’m
only deciding whether they can amend their answer to include the special
defense. So while I understand you disagree with the special defense on
the merits.
‘‘[The Plaintiff]: I disagree, Your Honor.
‘‘The Court: The only question is whether they can raise the issue at this
point, and then I can decide it later after—probably after your case is heard.
So what is your position on that, on whether they can raise the issue?
‘‘[The Plaintiff]: I don’t see where they have grounds to actually raise it,
Your Honor. But if the Court deems for them to raise it, then that’s the
Court’s decision on that.
‘‘The Court: Okay.’’
4
In his appellate brief, the plaintiff also alleges a violation of his right to
substantive due process. He raised no such claim before the trial court. In
light of our conclusion that the general release barred this action, we need
not address that constitutional claim. We nonetheless note that the plaintiff
has not demonstrated, on the record before us, that a violation of his right
to substantive due process clearly exists.