Anderson v. Ocean State Job Lot

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MICHAEL ANDERSON v. OCEAN STATE
JOB LOT ET AL.
(AC 40240)
DiPentima, C. J., and Bright and Flynn, Js.

Syllabus

The plaintiff sought to recover damages from the defendants for false arrest
and malicious prosecution in connection with their alleged conduct in
furnishing false information against him. The defendants filed a motion
to dismiss the action on the ground that the plaintiff failed to appear
for a court-ordered deposition. The trial court granted the motion and
rendered a judgment of dismissal. Thereafter, the plaintiff filed a motion
to open the judgment on the ground that he was incarcerated at the
time of the deposition and, thereby, was prevented from attending it
through no fault of his own. The trial court denied the motion to open,
and the plaintiff appealed to this court raising claims of fraud. Held that
the plaintiff’s fraud claims were not reviewable on their merits; the
plaintiff did not raise those claims before the trial court in his motion
to open but, rather, predicated his failure to appear for his deposition
solely on his incarceration, and the plaintiff failed to have his motion
to open verified by oath as required by the applicable statute (§ 52-212),
which was fatal to his claims.
Argued March 5—officially released April 24, 2018

Procedural History

Action to recover damages for, inter alia, false arrest,
brought to the Superior Court in the judicial district of
New Britain, where the court, Swienton, J., granted the
defendants’ motion to dismiss and rendered judgment
thereon; thereafter, the court denied the plaintiff’s
motion to open the judgment, and the plaintiff appealed
to this court. Affirmed.
Michael Anderson, self-represented, the appellant
(plaintiff).
Evan K. Buchberger, for the appellees (defendants).
Opinion

PER CURIAM. The self-represented plaintiff, Michael
Anderson, brought this action alleging that the defen-
dants, Ocean State Job Lot, William Lapore, Tiffany
Canon and Robin Givens, furnished false information,
causing his false arrest and malicious prosecution.
Before trial, the defendants moved to dismiss the action
on the ground that the plaintiff failed to appear for a
court-ordered deposition on November 18, 2016, which
the court granted on December 12, 2016. The plaintiff
then moved to open the judgment on the basis that he
was incarcerated at the time of the deposition and was
prevented from attending through no fault of his own,
which the court denied on January 9, 2017. This
appeal followed.
On appeal, the plaintiff claims that the defendants’
attorney (1) ‘‘influenced the court . . . to grant the
dismissal using lies, misrepresentations and deceptions
to prevail on his motions and ignored the plaintiff’s
handwritten change of address notice that the plaintiff
mailed to him on November 3, 2016,’’ and (2) ‘‘thereafter
sought to produce false documents and take certain
action to deceive the court and deprive the plaintiff of
his right of action and remedy by fraud.’’ We affirm the
judgment of the court.
There are two reasons we are unable to entertain the
plaintiff’s claims on the merits. First, in his motion to
open, the plaintiff does not once mention the fraud that
he now claims. ‘‘To allow the [plaintiff] to argue one
theory . . . [before the trial court] and then press a
distinctly different theory on appeal would amount to
an ambuscade of the trial court.’’ (Internal quotation
marks omitted.) Jahn v. Board of Education, 152 Conn.
App. 652, 665, 99 A.3d 1230 (2014). We review a trial
court’s ruling on a motion to open for an abuse of
discretion. Questell v. Farogh, 175 Conn. App. 262, 267,
167 A.3d 492 (2017). The trial court in this case cannot
be said to have abused its discretion as to a theory never
presented to it. Because the plaintiff only predicated
his failure to appear for his deposition on his incarcera-
tion, he cannot prevail on his claims of fraud.
Second, the plaintiff failed to have his motion to open
verified by oath. A motion to open a judgment upon
default of some order of the court is governed by Gen-
eral Statutes § 52-212, which provides in pertinent part
that ‘‘[t]he complaint or written motion shall be verified
by the oath of the complainant or his attorney . . . .’’
Although we are solicitous of self-represented litigants
and allow them some latitude, ‘‘the right of self-repre-
sentation provides no attendant license not to comply
with relevant rules of procedural and substantive law.’’
(Internal quotation marks omitted.) Questell v. Farogh,
supra, 175 Conn. App. 271. This noncompliance is fatal
to his claims.
The judgment is affirmed.