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Matos v. Ortiz

Court of Appeals of Connecticut

July 12, 2016

SAMUEL DA SILVA MATOS
v.
ANA ORTIZ ET AL.

          Argued September 24, 2015

         Appeal from Superior Court, judicial district of judicial district of Windham at Putnam, Boland, J. [motions to cite in, to dismiss]; Riley, J. [motion to enforce; judgment].

          Samuel da Silva Matos, self-represented, the appellant (plaintiff).

          Johanna G. Zelman, with whom, on the brief, was Michael J. Rose, for the appellee (named defendant).

          DiPentima, C. J., and Gruendel and Sheldon, Js. [*]

          OPINION

          GRUENDEL, J.

         It is well established that a court may summarily enforce-within the framework of existing litigation-a clear and unambiguous settlement agreement reached during that litigation. Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 812, 626 A.2d 729 (1993) (Audubon). We are now called upon to decide whether that power extends to the summary enforcement of agreements reached both outside the framework of and before the start of the litigation in which enforcement is sought.

         The self-represented plaintiff, former teacher Samuel da Silva Matos, appeals from the judgment of the trial court summarily enforcing the Release and Separation Agreement he signed in 2012, [1] upon resigning his position with the defendant Board of Education of the Town of Windham (board). As part of the Release and Separation Agreement, the plaintiff waived his right to sue the defendant board and its superintendent, defendant Ana Ortiz.[2] When the plaintiff sued the defendants two years later, the court treated that contract, for Audubon purposes, as an agreement to settle pending litigation. The court therefore held a hearing, found that the contract was unambiguous and enforceable, and rendered judgment against the plaintiff, ending the litigation while it was still at the pleading stage. We conclude that Audubon does not countenance such a result. Rather, a settlement agreement is summarily enforceable under Audubon as an agreement to settle litigation only if the parties reached the agreement after commencing the relevant litigation. Because the Release and Separation Agreement here fails that test, we reverse the judgment of the trial court and remand the case for further proceedings according to law.

         The following facts, as found by the court or otherwise undisputed, are relevant here. The defendants hired the plaintiff in September, 2001, and assigned him teaching duties at the Windham Middle School. During the plaintiff's time at the middle school, he was a member of the local teachers union, the Windham Federation of Teachers.

         On November 11, 2011, the defendants received a report from the assistant principal of the middle school that the plaintiff had touched a student on the face, making her uncomfortable. The matter was referred to the Department of Children and Families (department) for investigation, and the defendants simultaneously conducted an internal investigation.

         On January 10, 2012, a department worker filed a report substantiating the allegations against the plaintiff for emotional neglect and recommending that he be placed on the department's child abuse and neglect central registry. Ultimately, more than one year later on March 12, 2013, a department hearing officer rejected that finding and recommendation. The hearing officer determined that the student had not been credible, that the evidence had not supported a finding that the plaintiff had touched her inappropriately, and that any possible violation by the plaintiff of the principal's directive not to touch students at all was a matter for the plaintiff's employer, not the department.

         On February 28, 2012, on the basis of the initial, January, 2012 report substantiating the allegations against the plaintiff and on the defendants' internal investigation into the plaintiff's alleged violation of the principal's directive that he not touch students at all, the defendants notified the plaintiff that they were commencing termination proceedings against him under General Statutes § 10-151 (d), the Teacher Tenure Act. On March 2, the plaintiff's union appointed attorney, Brian A. Doyle, asked the defendants for a statement of reasons why they had commenced termination proceedings against the plaintiff. The defendants sent such a statement to Doyle on March 12, 2012. In response to the statement of reasons, on March 15, 2012, the plaintiff requested a formal hearing before an impartial hearing officer, pursuant to § 10-151 (d).

         Ten days later, on March 25, 2012, the defendants' attorney sent Doyle a document entitled ‘‘RELEASE AND SEPARATION AGREEMENT.'' The Release and Separation Agreement proposed a settlement of the defendants' termination proceeding against the plaintiff on the following terms: the plaintiff would resign immediately from his teaching position, effective June 30, 2012; he would have no teaching duties for the remainder of the school year; and he would never seek to work for the defendants again. The Release and Separation Agreement also included a lengthy release, providing that the plaintiff would ‘‘voluntarily [release] and forever [discharge] the Board, all of the Board's past, present and future members, employees, agents, attorneys, insurers, representatives, and any person acting on behalf of or in concert with any of them (collectively, Releasees), from any and all claims, demands, obligations, liabilities, causes of action, known or unknown, asserted and unasserted, and any claim for costs, attorney's fees, expenses or any form of damages whatsoever (including but not limited to liquidated and/or punitive damages, compensatory damages and/or damages for emotional distress) which [the plaintiff] has or may have against the Releasees arising out of or in any way connected with [the plaintiff's] employment or separation from employment . . . .'' The preface similarly stated that the plaintiff and the defendants ‘‘wish[ed] to resolve, compromise and finally settle . . . any and all claims and potential claims [the plaintiff] may have related to his employment with the Board or separation from that employment . . . .'' A separate clause provided that the plaintiff would retain his right to file a complaint with the federal Equal Employment Opportunity Commission or the Connecticut Commission on Human Rights and Opportunities, but he would waive ‘‘the right to recover any damages or other relief in any claim or suit brought by or through'' those agencies. Nowhere did the document specify any pending lawsuit that the plaintiff was withdrawing.[3]

         In exchange, the Release and Separation Agreement provided that the defendants would put the plaintiff on a paid leave of absence for the last three months of the 2011-2012 school year, until June 30, 2012; would remove all documents referencing the plaintiff's proposed termination from his personnel file; and would not discuss the circumstances of the plaintiff's departure with prospective employers, if the plaintiff sought work elsewhere. On March 30, 2012, during a one-on-one meeting with Doyle at his law firm office, and after being advised to do so, the plaintiff signed the Release and Separation Agreement. It is unclear from the record if the plaintiff ever personally met with the defendants to discuss the Release and Separation Agreement before signing it.

         It is undisputed that the plaintiff had no claims pending against the defendants in any court when he signed the Release and Separation Agreement. Nor is there any evidence that he had commenced any administrative actions against the defendants. The evidence before the court contained no indication that, when the plaintiff signed the Release and Separation Agreement, he was considering filing such claims, had investigated the facts underlying such claims, or had consulted with an attorney as to the legal merit of such claims.

         Two years later, on January 22, 2014, the plaintiff filed the present action[4] against the defendants, alleging that the defendants had forced him to resign from his job as a teacher through a four year campaign of harassment. The defendants filed two motions in response: (1) a motion to dismiss three of the five counts of the complaint for failure to exhaust administrative remedies;[5] and (2) the ‘‘Motion to Enforce the Settlement Agreement'' that is the subject of this appeal.

         The second motion asked the court to enforce summarily the provision of the Release and Separation Agreement in which the plaintiff had agreed to release the defendants from any liability for the events surrounding his resignation. As authority for their motion, the defendants relied on Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., supra, 225 Conn. 812, in which our Supreme Court held that, where a party conceded that it had entered into an unambiguous, enforceable agreement to settle a pending case, but then reneged on that settlement agreement, the court could summarily enforce the agreement by rendering judgment upon it in the settled case in accordance with the settlement terms. The defendants here asked the trial court to hold an evidentiary ‘‘Audubon hearing'' to decide whether summary enforcement of the Release and Separation Agreement was appropriate.

         Soon after the defendants filed these motions, the court scheduled a hearing for March 31, 2014. One week before the hearing, the defendants moved to continue the ‘‘[e]videntiary [h]earing'' on their motion to enforce the Release and Separation Agreement because two witnesses would not be available to testify. The court granted that motion on the day it was filed and set a new hearing date of April 14, 2014, ordering that: ‘‘All matters scheduled for March 31 are continued to short calendar of April 14, 2014.''

         A few days after the court postponed the hearing, the plaintiff filed a ‘‘Motion in Limine'' seeking to preclude any evidence of the Release and Separation Agreement and asking the court to ‘‘assist the plaintiff in his endeavor to get at all the material facts [of] this case via the discovery proceedings of the trial.'' The plaintiff noted that the contract posed a potential ‘‘impasse'' for his lawsuit against the defendants, and that he ‘‘d[id] not wish to be outmaneuvered by the defendant and her counsel until he ha[d] been given a full opportunity to present his case before the court.'' The plaintiff also filed numerous objections to the defendants' motion to enforce the contract, alleging that there had been bad faith, undue influence, duress, misrepresentation, unconscionability, and a lack of meeting of the minds. The court did not rule on the plaintiff's motion in limine or any other objections before the hearing.

         On the day of the hearing, April 14, 2014, the court turned initially to the defendants' motion to enforce the Release and Separation Agreement. The defendants called two witnesses on that motion, the plaintiff and Doyle. The plaintiff testified that he had signed the Release and Separation Agreement on March 30, 2012, and that the defendants' exhibit one was that contract. The court thus admitted the Release and Separation Agreement into evidence. Doyle testified to the same effect.

         The plaintiff also testified, in response to questioning by the defendants' counsel, that Doyle had not explained the contract to him, that Doyle had showed the contract to him only briefly, and that he did not receive a copy of the contract until two months after he signed it. At the end of direct examination, the court asked the plaintiff if there was ‘‘anything [he] wish[ed] to add'' to the testimony he had already given.

         The plaintiff then gave a synopsis of the testimony he wished to give and the court asked follow-up questions. At one point, the plaintiff began to discuss his underlying claims against the defendants, but the court stopped him, noting that the hearing was only about ‘‘whether or not this separation agreement can be enforced . . . .'' At another point, the plaintiff asked ‘‘to get [his] notes'' on the ‘‘whole subject of contracts'' and began to discuss two legal doctrines-misrepresentation and unconscionability-but was cut off again, the court observing: ‘‘If you had signed [the Release and Separation Agreement] without benefit of counsel, that may be a subject area in which the court would take some testimony or look into. But you signed this with an attorney representing you.'' The court noted, however, that the plaintiff ‘‘ha[d] the right to put on any-any-we're holding an evidentiary hearing-any other documents that you think are relevant.'' The plaintiff did not do so.

         The defendants next called Doyle to the witness stand. Before Doyle testified, the plaintiff raised his motion in limine seeking to preclude evidence of the Release and Separation Agreement. The court stated that the plaintiff's motion seemed ‘‘to be obviated by the fact that we're here today doing an evidentiary hearing.'' The court then told the plaintiff that because he had testified already about Doyle's failure to explain the Release and Separation Agreement to him, the plaintiff ‘‘may in fact have waived some of-some or all of [his] attorney-client privilege . . . .'' The court then asked the plaintiff to clarify if he was waiving his attorney-client privilege. The plaintiff replied, ‘‘Yes, I'll waive [it].''

         On direct examination, Doyle contradicted much of the plaintiff's testimony. He testified that the plaintiff had given him permission to discuss settlement with the defendants; that he had ‘‘gone back and forth'' with the defendants' attorney; that he had discussed each offer with the plaintiff; that he had given the plaintiff a copy of the Release and Separation Agreement at the meeting where the plaintiff signed it; that he had explained each paragraph to the plaintiff, including that one of the provisions was ‘‘a general release and that you can't sue, period''; that the plaintiff had no questions at that time; and that the plaintiff did not ask for any more time to review the Release and Separation Agreement before signing it. Doyle reiterated and expanded on this testimony when the plaintiff cross-examined him.[6]

         After the defendants rested, the court asked the plaintiff if he had any witnesses he wished to call. The plaintiff replied, ‘‘No, I do not, sir.'' The court then advised the parties that, if ‘‘[a]nybody . . . wishes to submit anything further, '' the defendants had until April 24, 2014, and the plaintiff had until May 7, 2014.

         After the hearing, the plaintiff filed numerous additional objections to the defendants' motion to enforce the Release and Separation Agreement. Although the plaintiff conceded that the contract was unambiguous, he argued that when he signed it he did not know what it said and was acting under duress.

         The plaintiff also asked the court to begin subpoenaing witnesses on his underlying claim that the defendants had harassed him into resigning. He argued that the testimony elicited by the defendants at the April 14, 2014 hearing had been ‘‘unreliable and damaging, '' and that the court should ‘‘refrain from ruling on the [defendants' motion] until future testimony [was] presented'' on his underlying claims. ‘‘Otherwise, '' he argued, ‘‘per terms of the Release and Separation [A]greement, the [p]laintiff would be denied his day in court.''

         On May 16, 2014, the court granted the defendants' ‘‘Motion to Enforce the Settlement Agreement.'' The court began its memorandum of decision by noting that it had ‘‘conducted an Audubon hearing on the matter on April 14, 2014.'' After setting forth the relevant law, the court then found that ‘‘[i]t is clear from the testimony presented and evidence received that the parties, at the time they entered into the agreement, were in accord with the terms of the settlement as well as with regard to the terms of the agreement. The entire agreement was clear and unambiguous, and was explained in depth and detail to the plaintiff by his attorney.'' The court held that the ‘‘settlement agreement must be enforced, '' and did so by rendering judgment in favor of the defendants. The plaintiff appealed to this court.

         I

         On appeal, the plaintiff argues that our Supreme Court's holding in Audubon does not control this case and that the trial court erred in summarily enforcing the Release and Separation Agreement pursuant to Audubon. We agree. Audubon involved an agreement, reached in the midst of litigation, to settle a pending case. Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., supra, 225 Conn. 806. Here, by contrast, the defendants sought to use that doctrine to enforce summarily a preemptive release signed before the present litigation began. We conclude that Audubon does not extend so far. Rather, it permits summary enforcement only if the settlement agreement at issue was reached after the relevant litigation commenced. Accordingly, we reverse the judgment of the trial court and remand the case for further proceedings according to law.[7]

         A

         At the outset, the defendants argue that the issue of whether Audubon extends to the summary enforcement of agreements reached outside the framework of and before the start of the relevant litigation is not properly before us. The defendants argue that the plaintiff did not raise this issue before the trial court or on appeal, and that no exceptional circumstance exists to justify a departure from the ‘‘general rule that unpreserved claims will not be reviewed.'' See, e.g., Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 161, 84 A.3d 840 (2014). The defendants are correct that the plaintiff did not specifically object to the use of summary enforcement, rather than summary judgment, as the procedural vessel to dispose of his case. His primary and supplemental appellate briefs focus on the substantive issue of whether the Release and Separation Agreement can be enforced at all, not on the procedural issue of how it could be enforced. Accordingly, we agree with the defendants that the issue is unpreserved and was not raised by the plaintiff on appeal.[8]

         In Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra, 311 Conn. 161-64, our Supreme Court laid out sets of circumstances in which an appellate court may reach and decide an unpreserved issue sua sponte: (1) where the issue involves a question of subject matter jurisdiction;[9] (2) where the issue involves a constitutional violation reviewable under State v. Golding, 213 Conn. 233, 239- 40, 567 A.2d 823 (1989), holding modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015); (3) where the issue is subject to reversal under the plain error doctrine; and (4) where review is appropriate in the exercise of the court's supervisory powers. Here, we conclude that the Audubon issue must be reached and decided both under the plain error doctrine and as an exercise of this court's supervisory powers.

         1

         First, this court ‘‘may in the interests of justice notice plain error not brought to the attention of the trial court. . . .'' Practice Book § 60-5. ‘‘[The plain error] doctrine, codified at Practice Book § 60-5, is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine . . . is not . . . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment, for reasons of policy. . . . In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. . . . Implicit in this very demanding standard is the notion . . . that invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review. . . .

         ‘‘An appellate court addressing a claim of plain error first must determine if the error is indeed plain in the sense that it is patent [or] readily discernable on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable. . . . This determination clearly requires a review of the plain error claim presented in light of the record.

         ‘‘Although a complete record and an obvious error are prerequisites for [the] plain error [doctrine], they are not, of themselves, sufficient for its application. . . . [I]n addition to examining the patent nature of the error, the reviewing court must examine that error for the grievousness of its consequences in order to determine whether reversal under the plain error doctrine is appropriate. A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice. . . . In State v. Fagan, [280 Conn. 69, 87, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S.Ct. 1491, 167 L.Ed.2d 236 (2007)], we described the two-pronged nature of the plain error doctrine: [An appellant] cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.'' (Citations omitted; emphasis omitted; internal quotation marks omitted.) Reville v. Reville, 312 Conn. 428, 467-69, 93 A.3d 1076 (2014). In addition, when the court invokes the plain error doctrine sua sponte, it must provide ‘‘an opportunity for the parties to be heard by way of supplemental briefing . . . .'' Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra, 311 Conn. 161-62.

         In sum, then, an appellate court may reach an unpreserved issue sua sponte, pursuant to the plain error doctrine, if: (1) the parties have had a chance to brief the issue; (2) further factual findings are not needed to resolve the issue; (3) the answer to the issue is so obvious as to be not debatable; and (4) leaving the judgment intact would work a manifest ...


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