Brown v. Hartford

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DERMOTH H. BROWN v. CITY OF HARTFORD
(AC 36360)
DiPentima, C. J., and Lavine and Mullins, Js.
Argued May 18—officially released October 27, 2015
(Appeal from Superior Court, judicial district of
Hartford, Robaina, J. [motion to disqualify]; Hon.
Richard M. Rittenband, judge trial referee [judgment].)
S. Zaid Hassan, for the appellant (plaintiff).
Jonathan H. Beamon, senior assistant corporation
counsel, for the appellee (defendant).
Opinion
LAVINE, J. This case pits two important legal princi-
ples against one another: the right of property owners
to notice prior to the taking of their property and the
imperative of protecting the public from dangerous con-
ditions posed by decrepit structures. The principal issue
in this appeal is whether the defendant, the city of
Hartford (city), violated the due process rights of the
plaintiff, Dermoth H. Brown, when, without a predepri-
vation hearing, it demolished certain improvements to
his real property that a city building inspector deter-
mined were in immediate danger of falling so as to
endanger life. The United States Supreme Court has
‘‘recognized, on many occasions, that where a State
must act quickly, or where it would be impractical to
provide predeprivation process, postdeprivation pro-
cess satisfies the requirements of the Due Process
Clause.’’ Gilbert v. Homar, 520 U.S. 924, 930, 117 S. Ct.
1807, 138 L. Ed. 2d 120 (1997). Under the circumstances
of this case, we conclude that the city’s actions were
constitutional given the threat of imminent harm to
persons posed by the plaintiff’s property. We therefore
affirm the judgment of the trial court.
The plaintiff appeals from the judgment rendered in
favor of the city, following a trial to the court. On appeal,
the plaintiff claims that the court improperly (1) con-
cluded that § 9-54 of the Hartford Municipal Code is
constitutional, (2) denied his motion to disqualify the
city’s legal counsel, (3) denied him a jury trial, (4) con-
cluded that his due process rights were not violated,
(5) afforded improper deference to certain testimony,
and (6) found that he had suffered no pecuniary dam-
ages. We disagree.
The following procedural history is relevant to our
resolution of the plaintiff’s claims. The plaintiff, acting
on his own behalf, commenced the present action in
May, 2011, and through counsel filed an eight count,
second amended complaint on February 28, 2013.1 The
plaintiff alleged that on May 22, 2009, without giving
him actual or constructive notice, the city entered prop-
erty he owned at 3372-3374 Main Street and 3364-3366
Main Street (collectively, premises) in Hartford and
demolished porches and a stairway that were appurte-
nant to the main structures.2 He also alleged that he
operated businesses from the premises and that the
demolition rendered the premises unusable. He further
alleged that the demolition violated § 9-52 (a) of the
Hartford Municipal Code (city code), which required
that the city notify him of the dangerous condition on
his property prior to demolition, and, therefore, he was
denied his right to due process. Moreover, the plaintiff
alleged that the premises were not in a dangerous or
unsafe condition and that as a result of the demolition,
he suffered pecuniary damages.
The court, Hon. Richard M. Rittenband, judge trial
referee, tried the case on five days in June and July,
2013. The parties agreed that the court should bifurcate
the claims alleged in the second amended complaint
by determining first whether § 9-54 of the city code was
constitutional before adjudicating the plaintiff’s other
claims. In a memorandum of decision issued on August
16, 2013, the court concluded that § 9-54 was constitu-
tional and, consequently, rendered judgment in favor
of the city on count eight. The parties then submitted
posttrial briefs. The court rendered judgment in favor
of the city on the remaining counts in a memorandum
of decision issued on November 12, 2013. The plaintiff
appealed to this court.
The court made the following findings of fact and
conclusions of law in its memorandum of decision. On
May 22, 2009, the plaintiff was the owner of 3364-3366
Main Street (3364-3366) and 3372-3374 Main Street
(3372-3374). The court found that the first floor of 3364-
3366 contained an office for a liquor import business
owned by the plaintiff, while the second and third floors
each housed an unoccupied residential tenement. The
first floor of 3372-3374 contained a florist shop owned
and operated by the plaintiff, the second floor housed
a hairdresser, and the third floor a residential tenement.
At approximately 10 a.m. on the day in question,
Adrien Shepard, a field supervisor for Connecticut Nat-
ural Gas went to the premises and observed that gas
service was ‘‘going from one building to another.’’ Mar-
tin Jones, a lieutenant in the Hartford Fire Department
who conducts investigations for city code enforcement,
was called to the premises. Jones observed that gas
and electric services were ‘‘going from one building to
another.’’ He took numerous photographs of the prem-
ises that were admitted into evidence.
Michael Gompper, a city assistant building inspector
licensed by the state, inspected the premises on May
22, 2009.3 Prior to joining the city building department
in June, 2008, he had been a building inspector in Vernon
for twenty-eight years. He had never previously been
to the premises and was directed to go there by his
supervisor. When he arrived at the premises, he found
them in a dilapidated condition. He walked on the rear
porch of 3364-3366 and 3372-3374 and noticed vibra-
tions in the floorboards, guardrails, posts, and stair
treads. The roof posts were spongy and not straight.
Gompper felt nervous about walking on the back stairs
as the stairway and railings were rotted. The roof on
the back porch had collapsed and the porch floorboards
went down when he walked on them. Gompper did
not walk on the front porch of 3364-3366 because he
believed that it was too dangerous to do so. On the
basis of their testimony, the court found that Gompper
and Jones had experience inspecting properties, includ-
ing buildings that had to be demolished. They observed
rotted columns and other parts of the porches and the
stairway that made them unsafe. The court concluded
that the city had demolished the porches and stairway
in good faith and that those structures were unsafe for
human use.
The plaintiff claimed that the premises were safe.
Although the court found the plaintiff to be credible as
to how ‘‘he saw things,’’ the plaintiff’s view of the facts
did not conform to ‘‘the reality of the facts.’’ The court
also found that the plaintiff failed to prove that he had
suffered any damages as a result of the demolition. The
plaintiff had failed to prove the value of the porches
and stairway or the value of the premises before and
after the demolition. The plaintiff also failed to sustain
his burden as to the loss of income via rental of the
premises, the construction of new porches, or the loss
of income from the florist business. The court, there-
fore, found in favor of the city on the counts alleging
negligence and nuisance. See footnote 1 of this opinion.
The court also found in favor of the city on the plain-
tiff’s 42 U.S.C. § 1983 due process claims.4 The court
found that the circumstances at the premises were
determined to be unsafe and to present a danger to
human life pursuant to Gompper’s observations and
discretion. Section 9-54 of the city code and § 116.4 of
the State Building Code granted Gompper such author-
ity, and, therefore, his decision did not constitute a city
policy constituting a due process violation pursuant to
Monell v. New York City Dept. of Social Services, 436
U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). See
footnotes 4, 6 and 7 of this opinion. The court stated
that in emergency circumstances it is not necessary for
government to hold a predeprivation hearing, but that
the property owner is entitled to a postdeprivation hear-
ing.5 The court concluded that the present action pro-
vided the plaintiff the requisite postdeprivation hearing.
See Danziger v. Demolition Board, 18 Conn. App. 40,
46, 556 A.2d 625 (person claiming harm under municipal
order may seek redress by commencing plenary action),
cert. denied, 211 Conn. 805, 559 A.2d 1139 (1989). The
court also concluded that the plaintiff suffered no pecu-
niary loss as a consequence of the demolition. Addi-
tional facts will be included as necessary.
We now turn to the plaintiff’s claims on appeal.
I
The plaintiff first claims that the court improperly
concluded that § 9-54 of the city code is constitutional.6
The plaintiff claims that § 9-54 and the city code are
unconstitutional because they do not provide for a post-
deprivation hearing or other avenue to challenge the
demolition of his property. We disagree.
The standard of review of a challenge to the constitu-
tionality of a legislative enactment is well-known. ‘‘[A]
party attacking the constitutionality of a validly enacted
[ordinance] bears the heavy burden of proving its
unconstitutionality beyond a reasonable doubt. . . .
We will indulge in every presumption in favor of the
[ordinance’s] constitutionality . . . and, when called
upon to interpret [an ordinance], we will search for an
effective and constitutional construction that reason-
ably accords with the [town council’s] underlying
intent.’’ (Citations omitted; internal quotation marks
omitted.) Ramos v. Vernon, 254 Conn. 799, 814, 761
A.2d 705 (2000). ‘‘[I]n passing upon the constitutionality
of a legislative act, we will make every presumption
and intendment in favor of its validity . . . .’’ (Internal
quotation marks omitted.) Bottone v. Westport, 209
Conn. 652, 657, 553 A.2d 576 (1989).
‘‘[A] plaintiff claiming due process protection under
the Fourteenth Amendment must possess a property
or liberty interest that is somehow jeopardized by gov-
ernmental action, necessitating a pre- or post-depriva-
tion hearing as a safeguard.’’ (Emphasis added; internal
quotation marks omitted.) Hunt v. Prior, 236 Conn.
421, 436, 673 A.2d 514 (1996).
In count eight of the second amended complaint, the
plaintiff sought a declaratory judgment that § 9-54 of
the city code and § 116.4 of the State Building Code
(state code)7 were unconstitutional under the federal
constitution as applied to the states through the due
process clause of the fourteenth amendment.8 In ruling
on the constitutionality of § 9-54 of the city code, the
court found that the ordinance ‘‘bestows emergency
powers to the city director of licenses and inspections
to ‘order such structure or part thereof to be torn down
. . . to render the structure safe until the proper pro-
ceedings can be taken as provided’ ’’ in § 9-51 of the
city code. Section 116.4 of the state code was adopted by
the city pursuant to General Statutes § 29-253. Section
116.4 of the state code provides that when an unsafe
condition exists, the building official may employ the
labor necessary to render the premises safe ‘‘up to and
including demolition.’’ (Emphasis added.)
The court found that Gompper and Jones concluded
that the porches and stairway were unsafe for human
use. The court concluded, given the dangerous condi-
tion of the premises and Gompper’s concern for human
safety, that it was proper for the city to demolish the
porches and stairway at the premises without holding
a predeprivation hearing. In reaching its conclusion,
the court recognized that due process is not fixed in
form but noted its root requirement ‘‘that an individual
be given an opportunity for a hearing before he is
deprived of any significant property interest, except for
extraordinary situations where some valid govern-
mental interest is at stake that justifies postponing the
hearing until after the event.’’ (Emphasis altered; foot-
note omitted.) Boddie v. Connecticut, 401 U.S. 371, 379,
91 S. Ct. 780, 28 L. Ed. 2d 113 (1971). The United States
Supreme Court has stated that ‘‘the necessity of quick
action by the State or the impracticality of providing
any meaningful predeprivation process, when coupled
with the availability of some meaningful means by
which to assess the propriety of the State’s action at
some time after the initial taking can satisfy the require-
ments of procedural due process.’’ Parratt v. Taylor,
supra, 451 U.S. 539.
The court in the present case found that efforts were
made to notify the plaintiff of the impending demolition,
but he could not be reached even at the telephone
number ‘‘listed’’ on the property itself. The court found
that due to safety concerns, it was proper for the city
to proceed with the demolition and that it was impracti-
cal to provide any meaningful predeprivation process
to the plaintiff, but there was available a meaningful
means by which to assess the propriety of the city’s
action at some time after the initial taking. In reaching
its conclusion, the court relied on Danziger v. Demoli-
tion Board, supra, 18 Conn. App. 40, which held that
a postdeprivation hearing meets the constitutional
requirements of due process. ‘‘It is not constitutionally
necessary that a statute authorizing a local administra-
tive board to make orders contain a provision for an
appeal, in the technical sense, from the board’s action.
If any person claims to be harmed by such an order,
his constitutional right to due process is protected by
the privilege to apply to a court. . . . This means that
in such a case the aggrieved person may bring a plenary
action, rather than an administrative appeal, against the
appropriate officials or municipality in order to obtain
judicial review of their actions.’’ (Citation omitted; inter-
nal quotation marks omitted.) Id., 46. The court con-
cluded that the present action provided the plaintiff
with a postdeprivation hearing.
On appeal, the plaintiff claims that the court improp-
erly relied on Danziger because it is factually distin-
guishable. We disagree that the due process principle
for which Danziger stands does not apply to the present
case, but we recognize that Danziger is distinguishable
on its procedural posture. Danziger concerned an
impermissible administrative appeal from the Stamford
Demolition Board, which had ordered the plaintiff’s
property demolished on health and safety grounds. Id.,
41–42. This court held that although there was no statu-
tory basis for the Danziger plaintiff to appeal from the
municipal board, the plaintiff was not prohibited from
bringing a plenary action, rather than an administrative
appeal. Id., 46. The plaintiff in the present case was not
prohibited from bringing an action against the city. We,
therefore, cannot conclude that the court improperly
relied on Danziger.
Moreover, Danziger is not the only case in our juris-
prudence holding that in emergent circumstances a
municipal building inspector may in his or her discre-
tion declare premises unsafe for human occupancy
without prior notice and a hearing. In Gorra Realty,
Inc. v. Jetmore, 200 Conn. 151, 510 A.2d 440 (1986), the
plaintiff commenced an action against the New London
building inspector who, pursuant to the state building
code, had declared the interior stairs and ceilings of an
apartment building owned by the plaintiff to be in dan-
ger of collapse and posted a notice that the premises
were unsafe for residential occupancy. Id., 152. On
appeal to our Supreme Court, the plaintiff claimed that
‘‘even under the emergency provisions of . . . the state
building code, it had a due process right to prior notice,
hearing and an opportunity to respond to claimed viola-
tions, in advance of the posting of its property.’’ Id.,
162. Our Supreme Court disagreed, holding that the
due process claim foundered ‘‘on the well established
constitutional principle permitting summary adminis-
trative action in situations of emergency’’; id.; and that
the plaintiff’s due process rights were protected by its
access to judicial relief. Id.
In his appellate brief, the plaintiff in the present case
has directed our attention to Catanzaro v. Weiden, 188
F.3d 56 (2d Cir. 1999), which provides a useful analysis
of due process considerations raised by municipal ordi-
nances that provide for the demolition of property
under emergent circumstances.9 In its analysis, the
United States Court of Appeals for the Second Circuit
relied on the United States Supreme Court case of Hodel
v. Virginia Surface Mining & Reclamation Assn., 452
U.S. 264, 101 S. Ct. 2352, 69 L. Ed. 2d 1 (1981), in which
the Supreme Court considered ‘‘the constitutionality of
an emergency procedure which allowed the Secretary
of the Interior, acting through government inspectors,
to order the immediate cessation of mining activities
when an inspector perceived an immediate danger to
public safety. The Court held that [t]he relevant inquiry
is not whether a cessation order should have been
issued in a particular case, but whether the statutory
procedure itself is incapable of affording due process.’’
(Internal quotation marks omitted.) Catanzaro v.
Weiden, supra, 188 F.3d 62.
In upholding the constitutionality of the inspection
procedures, the Supreme Court stated that ‘‘the proce-
dure afforded the inspectors discretion to determine
whether or not there was an emergency, and that this
discretion, even coupled with the inherent possibility
of its misapplication, did not offend due process: [t]he
possibility of administrative effort inheres in any regula-
tory program; statutory programs authorizing emer-
gency administrative action prior to a hearing are no
exception. . . .
‘‘Discretion of any official may be abused. Yet it is
not a requirement of due process that there be judicial
inquiry before discretion can be exercised. It is suffi-
cient, where only property rights are concerned, that
there is at some state an opportunity for a hearing and
a judicial determination. . . .
‘‘[T]his discretion is not absolute, and . . . if a pat-
tern of abuse and arbitrary action were discernible from
review of an agency’s administration of a summary pro-
cedure the application of the procedure may be uncon-
stitutional.’’ (Citations omitted; internal quotation
marks omitted.) Id.
Moreover, Hodel directs that a municipality’s deci-
sion that a structure constitutes a danger to the public
is to be accorded ‘‘some deference, and not to engage
in a hindsight analysis of whether the damage to the
buildings actually created an immediate danger to the
public. Under Hodel, the due process guarantee is
offended only when a emergency procedure is invoked
in an abusive and arbitrary manner; therefore, there is
no constitutional violation unless the decision to invoke
the emergency procedure amounts to an abuse of the
constitutionally afforded discretion.’’ Id.
Hodel does not suggest that ‘‘government may simply
avoid affording due process to citizens by arbitrarily
invoking emergency procedures . . . [it] clearly
declares such actions unconstitutional. However,
where there is competent evidence allowing the official
to reasonably believe that an emergency does in fact
exist, or that affording predeprivation process would
be otherwise impractical, the discretionary invocation
of an emergency procedure results in a constitutional
violation only where such invocation is arbitrary or
amounts to an abuse of discretion.’’ Id., 63.
The Second Circuit Court of Appeals reasoned that
Hodel’s deferential standard ‘‘finds strong support in
policy considerations. The law should not discourage
officials from taking prompt action to insure the public
safety. By subjecting a decision to invoke an emergency
procedure to an exacting hindsight analysis, where
every mistake, even if made in good faith, becomes a
constitutional violation, we encourage delay and
thereby potentially increase the public’s exposure to
dangerous conditions. This quandary is exactly what
these emergency procedures are designed to prevent,
and is the primary reason they are constitutionally
acceptable.
‘‘If an official believes that the public is in immediate
danger, he or she should not hesitate to invoke an emer-
gency procedure for fear of being sued, and being liable
for damages should his or her decision turn out to be
incorrect in hindsight.’’ Id., 63.
On the basis of our review of the record, which con-
tains competent evidence by which the court could
conclude that an emergency existed, and the applicable
law; see, e.g., Parratt v. Taylor, supra, 451 U.S. 527, and
its progeny; we conclude that the trial court properly
determined that § 9-54 of the city code is not unconstitu-
tional because it does not contain an appeal provision.
As the court found in this case, which concerns property
rights, the plaintiff was afforded postdeprivation due
process by means of the present action. The court,
therefore, properly rendered judgment in favor of the
city on count eight.
II
The plaintiff next claims that it was improper for the
court to deny his motion to disqualify the city’s office
of corporation counsel given an imputed conflict of
interest. We disagree.
The following facts are relevant to this claim. Prior
to commencing the present action, the plaintiff had
been represented by Attorney Saundra Kee Borges.
Borges, in fact, had written letters on his behalf in an
effort to settle the plaintiff’s claim against the city. In
July, 2010, Borges was appointed to the position of city
corporation counsel. In May, 2011, the plaintiff com-
menced the present action as a self-represented party.
One month later, Attorney Jonathan Hayes Beamon,
senior assistant corporation counsel, filed an appear-
ance on behalf of the city. The city filed its answer and
special defenses on December 20, 2011.
On December 21, 2011, the plaintiff filed a motion to
disqualify the city’s office of corporation counsel on the
ground that Borges had represented him with respect
to his claim against the city prior to being appointed
corporation counsel, and Borges’ disqualification was
imputed to the office of corporation counsel. The plain-
tiff did not request oral argument or a hearing on his
motion to disqualify. The city objected to the motion
to disqualify and attached an affidavit from Borges.10
The court, Robaina, J., sustained the defendant’s objec-
tion to the motion to disqualify. On March 14, 2012, the
plaintiff filed a motion for articulation, asking Judge
Robaina to state the basis of his ruling sustaining the
city’s objection to the motion to disqualify. On Septem-
ber 30, 2014, Judge Robaina issued an order on the
motion for articulation stating ‘‘NO ACTION NECES-
SARY appeal pending.’’ The plaintiff did not file a
motion for review. See Practice Book §§ 66-5 and 66-7.11
On appeal, the plaintiff claims that Borges’ disqualifi-
cation as his prior counsel should have been imputed
to all of the lawyers in the city’s office of corporation
counsel pursuant to rule 1.9 of the Rules of Professional
Conduct. In his brief, the plaintiff cites numerous cases
pertaining to the disqualification of a private law firm
when one of its lawyers previously had represented a
client. We disagree with the plaintiff’s position because
rule 1.11 is the governing Rule of Professional Conduct.
‘‘The standard of review for determining whether the
court properly denied a motion to disqualify counsel is
an abuse of discretion standard. The Superior Court
has inherent and statutory authority to regulate the
conduct of attorneys who are officers of the court. . . .
In its execution of this duty, the Superior Court has
broad discretionary power to determine whether an
attorney should be disqualified for an alleged breach
of confidentiality or conflict of interest. . . . In
determining whether the Superior Court has abused its
discretion in denying a motion to disqualify, this court
must accord every reasonable presumption in favor of
its decision. Reversal is required only where an abuse
of discretion is manifest or where injustice appears to
have been done.’’ (Internal quotation marks omitted.)
Smigelski v. Kosiorek, 138 Conn. App. 728, 739–40, 54
A.3d 584 (2012), cert. denied, 308 Conn. 901, 60 A.3d
287 (2013).
The plaintiff claims that rule 1.9 of the Rules of Pro-
fessional Conduct controls this claim. Rule 1.9 (a) pro-
vides: ‘‘A lawyer who has formerly represented a client
in a matter shall not thereafter represent another person
in the same or a substantially related matter in which
that person’s interests are materially adverse to the
interests of the former client unless the former client
gives informed consent, confirmed in writing.’’ Rule
1.10 of the Rules of Professional Conduct concerns the
‘‘Imputation of Conflicts of Interest: General Rule.’’ Rule
1.10 provides in relevant part: ‘‘(a) While lawyers are
associated in a firm, none of them shall knowingly rep-
resent a client when any one of them practicing alone
would be prohibited from doing so by Rules 1.7 or 1.9
. . . . (d) The disqualification of lawyers associated in
a firm with former or current government lawyers is
governed by Rule 1.11.’’
Rule 1.11 (d) of the Rules of Professional Conduct
provides in relevant part: ‘‘Except as law may otherwise
expressly permit, a lawyer currently serving as a public
officer or employee: (1) Is subject to Rules 1.7 and 1.9;
and (2) Shall not: (i) Participate in a matter in which
the lawyer participated personally and substantially
while in private practice or nongovernmental employ-
ment, unless the appropriate government agency gives
its informed consent, confirmed in writing . . . .’’
The commentary to rule 1.11 of the Rules of Profes-
sional Conduct states that ‘‘subsection (d) does not
impute the conflicts of a lawyer currently serving as an
officer or employee of the government to other associ-
ated government officers or employees, although ordi-
narily it will be prudent to screen such lawyers.’’ Rule
1.11 represents a balancing of interests. ‘‘The govern-
ment has a legitimate need to attract qualified lawyers
as well as to maintain high ethical standards. . . . The
limitation of disqualification in subsections . . . (d)
(2) to matters involving a specific party or parties,
rather than extending disqualification to all substantive
issues on which the lawyer worked, serves a similar
function.’’ Rules of Professional Conduct 1.11, com-
mentary.
In the present case, Borges attested that she repre-
sented the plaintiff with respect to the demolition of
the premises in 2009. She became corporation counsel
in July, 2010, and the plaintiff commenced the present
litigation in May, 2011. Borges also attested that she
had not participated in the present litigation being
defended by the office of corporation counsel and that
she has not divulged confidences of the plaintiff. Bea-
mon represented the city throughout the litigation. Pur-
suant to rules 1.10 (d) and 1.11 (d) of the Rules of
Professional Conduct, under the circumstances of this
case, Borges’ disqualification as the plaintiff’s prior
counsel need not be imputed to Beamon. The plaintiff
provided no evidence to Judge Robaina to contradict
Borges’ affidavit. We, therefore, conclude that the court
did not abuse its discretion by denying the plaintiff’s
motion to disqualify.
III
The plaintiff next claims that the court improperly
denied his claim for a jury trial after he filed an amended
complaint that alleged new facts, a new claim, and a
new time line. He asks this court to reverse the judgment
and to remand the case for a jury trial. We decline the
plaintiff’s request as he waived his right to a jury trial.
The following procedural history is relevant to this
claim. The plaintiff commenced this action in May, 2011,
amended his complaint in September, 2011, and filed
a certificate of closed pleadings and a claim for the
trial list on March 8, 2012. On February 28, 2013, the
plaintiff filed a request to amend his complaint along
with a second amended complaint. The city filed its
answer and special defense on April 5, 2013. On April
12, 2013, the plaintiff filed a claim for a jury trial. The
parties appeared before Judge Rittenband on June 25,
2013, to begin what the court understood to be a trial
to the court.
The city’s assistant corporation counsel addressed
the court stating that the case had been on the trial list
until the plaintiff recently filed an amended complaint
and jury trial claim. The plaintiff’s counsel stated that
the plaintiff had not filed a claim for a jury trial with
respect to his § 1983 claims in 2012, but his second
amended complaint alleged an equal protection class
of one claim that raised new questions of fact. He argued
that, pursuant to General Statutes § 52-215, the plaintiff
was entitled to file a jury claim within ten days of the
factual issues being joined. He also argued that the city
had not filed a motion to strike the jury claim. The city’s
counsel responded that the case had never been moved
from the court trial list to the jury docket and that
it was his understanding, given the trial management
schedule, that the case was to be tried to the court.
Judge Rittenband stated that § 52-215 provides that
when the issue is joined, or the pleadings are closed,
a jury claim must be filed within ten days; the issue in
the present case was joined; and the plaintiff could not
revive a dispute by filing an amended complaint. Judge
Rittenband denied the plaintiff’s request for a jury trial,
stating that the case had been set down for a court
trial. Judge Robaina12 had instructed Judge Rittenband
that if Judge Rittenband denied the request for a jury
trial, evidence was to begin that day. Moreover, speak-
ing to the plaintiff’s counsel, Judge Rittenband stated
‘‘if you don’t agree with that, and you want a postpone-
ment, then you have to see Judge Robaina. That’s up
to you, or we can start evidence now.’’13 Without inter-
ruption and without seeing Judge Robaina, the plain-
tiff’s counsel commenced to present evidence by calling
the plaintiff to testify.
Section 52-215 provides in relevant part: ‘‘When . . .
an issue of fact is joined, the case may, within ten days
after such issue of fact is joined, be entered in the
docket as a jury case upon the request of either party
. . . .’’ (Emphasis added.) Therefore, ‘‘[w]hen an
amended complaint raises a new issue of fact, a new
ten day period arises within which to claim the matter
to the jury.’’ Flint v. National Railroad Passenger
Corp., 37 Conn. App. 162, 164–65, 655 A.2d 266 (1995),
aff’d, 238 Conn. 282, 679 A.2d 352 (1996).
On appeal, the plaintiff claims that the court should
have permitted the case to be tried to a jury because
the second amended complaint enlarged the factual
issues to be tried.14 Although we agree that count seven
of the second amended complaint alleged facts beyond
those alleged in the plaintiff’s 42 U.S.C. § 1983 due pro-
cess claims, we conclude that the plaintiff waived his
right to a jury trial.
This court addressed the issue of waiver of the right
to a jury trial quite recently in the case of Delahunty
v. Targonski, 158 Conn. App. 741, A.3d (2015).
‘‘Waiver is the intentional relinquishment or abandon-
ment of a known right or privilege.’’ (Internal quotation
marks omitted.) MSO, LLC v. DeSimone, 313 Conn. 54,
64, 94 A.3d 1189 (2014).
‘‘[W]aiver may be effected by action of counsel. . . .
When a party consents to or expresses satisfaction with
an issue at trial, claims arising from that issue are
deemed waived and may not be reviewed on appeal.
. . . Thus, [w]aiver . . . involves the idea of assent,
and assent is an act of understanding. . . .
‘‘It is well established that implied waiver . . . arises
from an inference that [a party] knowingly and volunta-
rily relinquished the right in question. . . . Waiver does
not have to be express . . . but may consist of acts or
conduct from which waiver may be implied. . . . In
other words, waiver may be inferred from the circum-
stances if it is reasonable to do so. . . . It also is well
established than any such inference must be based on
a course of conduct.’’ (Emphasis in original; internal
quotation marks omitted.) Delahunty v. Targonski,
supra, 158 Conn. App. 748; see also Rosado v. Bridge-
port Roman Catholic Diocesan Corp., 292 Conn. 1, 58,
970 A.2d 656, cert. denied sub nom. Bridgeport Roman
Catholic Diocesan Corp. v. New York Times Co., 558
U.S. 991, 130 S. Ct. 500, 175 L. Ed. 2d 348 (2009).
‘‘A party may forfeit the right to a jury trial in a civil
case if the right is not asserted in a timely manner, may
abandon the right to a jury trial if he or she chooses a
forum that does not afford the right to a jury trial,
or may waive the right to a jury trial.’’ Delahunty v.
Targonski, supra, 158 Conn. App. 749; see also L & R
Realty v. Connecticut National Bank, 246 Conn. 1, 14,
715 A.2d 748 (1998) (distinguishing standards of waiver
in criminal and civil proceedings).
Given the circumstances in the present case, we con-
clude that the plaintiff, through counsel, waived his
right to a jury trial when counsel declined Judge Ritten-
band’s invitation to consult Judge Robaina, acquiesced
in Judge Rittenband’s proposal that he commence evi-
dence that day and schedule his remaining witnesses
for the following week, failed to object to trying the
case before Judge Rittenband the day the case was
called for trial, and called the plaintiff to testify on
his own behalf. The plaintiff, therefore, by implication,
waived his right to a jury trial.
IV
The plaintiff’s fourth claim is that the court erred by
concluding that his right to due process was not violated
by the city’s failure to provide notice and a hearing
before it demolished the porches and stairway at the
premises and that the present action met due process
requirements by providing a postdeprivation hearing.
We disagree.
On appeal, the plaintiff argues that his right to notice
and a predeprivation hearing should be determined pur-
suant to the test established in Mathews v. Eldridge,
424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
‘‘Procedural due process imposes constraints on gov-
ernmental decisions which deprive individuals of ‘lib-
erty’ or ‘property’ interests within the meaning of the
Due Process Clause of the . . . Fourteenth Amend-
ment.’’ Id., 332. Under Mathews, a reviewing court
‘‘applies a three part test that requires consideration of
the private interest that will be affected by the official
action, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safe-
guards . . . and . . . the [g]overnment’s interest,
including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail.’’ (Internal quota-
tion marks omitted.) Greater New Haven Property
Owners Assn. v. New Haven, 288 Conn. 181, 198, 951
A.2d 551 (2008).
The Mathews balancing test that the plaintiff asks us
to utilize in the present case essentially was used by
the United States Supreme Court in Parrat v. Taylor,
supra, 451 U.S. 527, Hodel v. Virginia Surface Mining &
Reclamation Assn., supra, 452 U.S. 299–301, and other
progeny. See part I of this opinion. There is a ‘‘well
established constitutional principle permitting sum-
mary administrative action in situations of emergency.’’
Gorra Realty, Inc. v. Jetmore, supra, 200 Conn. 162,
citing Hodel v. Virginia Surface Mining & Reclamation
Assn., supra, 299–301. ‘‘It is by now well established that
due process, unlike some legal rules, is not a technical
concept with a fixed content unrelated to time, place
and circumstances. . . . [D]ue process is flexible and
calls for such procedural protections as the particular
situation demands. . . . This Court has recognized, on
many occasions, that where a State must act quickly, or
where it would be impractical to provide predeprivation
process, postdeprivation process satisfies the require-
ments of the Due Process Clause. . . . Indeed in Par-
ratt . . . we specifically noted we have rejected the
proposition that [due process] always requires the State
to provide a hearing prior to the initial deprivation of
property.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) Gilbert v. Homar,
supra, 520 U.S 929.
As our Supreme Court stated in Gorra, when an emer-
gency exists and it is impractical to provide notice and
a predeprivation hearing, none is required.15 We, there-
fore, decline to undertake a Mathews analysis in the
present case, as we are constrained to follow the prece-
dent of the United States Supreme Court and our own
Supreme Court.
V
The plaintiff next claims that the court failed to give
the proper deference to the testimony of certain wit-
nesses. Specifically, the plaintiff claims that the court
(1) failed to defer to the testimony of Edward Perez,
who was mayor of the city at the time of the demolition,
but (2) gave deference to the testimony of lay witnesses
that was akin to expert testimony. The plaintiff, there-
fore, implies that the court’s finding that the porches
and stairway were unsafe for human use was clearly
erroneous. We disagree that the court’s finding was
clearly erroneous.
‘‘To the extent that the trial court has made findings
of fact, our review is limited to deciding whether such
findings were clearly erroneous.’’ (Internal quotation
marks omitted.) Beeman v. Stratford, 157 Conn. App.
528, 533, A.3d (2015). As the finder of fact, the
court is responsible for weighing the evidence. ‘‘It is
the [fact finder’s] right to accept some, none or all of
the evidence presented. . . . Moreover, [e]vidence is
not insufficient . . . because it is conflicting or incon-
sistent. [The court] is free to juxtapose conflicting ver-
sions of events and determine which is more credible.
. . . It is the [finder of fact’s] exclusive province to
weigh the conflicting evidence and to determine the
credibility of witnesses.’’ (Internal quotation marks
omitted.) State v. Marcisz, 99 Conn. App. 31, 36, 913
A.2d 436, cert. denied, 281 Conn. 922, 918 A.2d 273
(2007).
A
The plaintiff claims that the court failed to give defer-
ence to the testimony of Perez, who was the mayor of
Hartford in May, 2009. Specifically, the plaintiff claims
that because Perez was the mayor of the city at the
time of the demolition, he was familiar with the proce-
dures the city used when demolishing property and that
the court should have construed his testimony that the
plaintiff’s right to due process had been violated as a
judicial admission against the city. We disagree with the
argument that Perez’ testimony constituted a judicial
admission and that the court was required to accept
his testimony.
The court found that Perez was a credible witness
but that he had no knowledge of the condition of the
porches and stairway on the day Gompper inspected
the premises. Perez, instead, opined that the city vio-
lated the plaintiff’s right to due process by moving too
fast to demolish the porches and stairway. Perez
believed that the city should have entered into negotia-
tions with the plaintiff before the demolition occurred.
But see footnote 15 of this opinion.
‘‘A judicial admission dispenses with the production
of evidence by the opposing party as to the fact admit-
ted, and is conclusive upon the party making it.’’
(Emphasis added; internal quotation marks omitted.)
Birchard v. New Britain, 103 Conn. App. 79, 85, 927
A.2d 985, cert. denied, 284 Conn. 920, 933 A.2d 721
(2007). ‘‘Judicial admissions are voluntary and knowing
concessions of fact by a party or a party’s attorney
occurring during judicial proceedings. . . . They
excuse the other party from the necessity of presenting
evidence on the fact admitted and are conclusive on the
party making them. . . . Whether a party’s statement is
a judicial admission or an evidentiary admission is a
factual determination to be made by the trial court.
. . . The distinction between judicial admissions and
mere evidentiary admissions is a significant one that
should not be blurred by imprecise usage. . . . While
both types are admissible, their legal effect is markedly
different; judicial admissions are conclusive on the trier
of fact, whereas evidentiary admissions are only evi-
dence to be accepted or rejected by the trier . . . .
‘‘In contrast with a judicial admission, which prohib-
its any further dispute of a party’s factual allegation
contained in its pleadings on which the case is tried,
[a]n evidential admission is subject to explanation by
the party making it so that the trier may properly evalu-
ate it. . . . Thus, an evidential admission, while rele-
vant as proof of the matter stated . . . [is] not
conclusive. . . . Because the probative value of an
admission depends on the surrounding circumstances,
it raises a question for the trier of fact. . . . The trier
of fact is free to give as much weight to such an admis-
sion as, in the trier’s judgment, it merits, and need not
believe the arguments made regarding the statement
by one side or the other.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) O & G Indus-
tries, Inc. v. All Phase Enterprises, Inc., 112 Conn. App.
511, 523 n.5, 963 A.2d 676 (2009).
Perez is not a party to this action. Moreover, whether
the city violated the plaintiff’s right to due process by
demolishing the porches and stairway without giving
him notice and a predeprivation hearing is a question of
law to be decided by the court. See Beeman v. Stratford,
supra, 157 Conn. App. 534 (whether proper notice given
is question of law). In any event, the court was not
bound to accept Perez’ testimony. The court found that
Perez did not see the condition of the porches and
stairway on May 22, 2009, and, therefore, he was in
no position to determine whether the structures were
unsafe for human use. There also is no evidence in
the record that Perez is a licensed building inspector
capable of determining whether the porches and stair-
way were safe for human use. For the foregoing reasons,
we conclude that the court did not err by failing to give
preclusive effect to Perez’ testimony.
B
The plaintiff also claims that the court improperly
considered the testimony of Gompper and Jones
because they had not been disclosed as expert wit-
nesses. We disagree that they testified as expert wit-
nesses.
When the court found that the porches and stairway
at the premises were unsafe for human use, it stated
that it was more impressed with the testimony of Gomp-
per and Jones, who pointed out the rotted columns and
other parts of the porches and stairway that made them
unsafe. Gompper testified to the sensory observations
he made while he was walking on the porches and
stairway, including that the floorboards of the porches,
the guardrails, posts, and stair treads vibrated when he
stepped on them. He also testified that the posts were
not straight. Gompper used photographic evidence to
point out that the stairway was rotted, and that the
floorboards of the porches, which were covered in ply-
wood, gave way ‘‘more than a little bit.’’ Gompper
observed that the second floor porch at 3372-3374 was
demolished because it was supported by the first floor
porch and was in similar condition to the first floor
porch. Gompper did not walk on the front porch of 3364-
3366 because he believed that it was too dangerous.
Gompper had inspected porches for demolition in
the past.
Jones had seen many buildings that were in ‘‘insuffi-
cient shape so they had to be demolished.’’ Although
Jones’ observations may have been made after a fire, he
nonetheless had made frequent observations of porches
and other parts of buildings.
The court stated that it had given preference to the
observations of witnesses who had experience in
inspecting properties. Although Gompper and Jones
had not been disclosed as experts, their observations
were sufficiently accurate to allow the court, on the
basis of their factual observations, to conclude that the
city demolished the porches and stairway because it
had a good faith belief that the structures were unsafe
for human use.
On the basis of our review of the record, including
the photographs of the porches and stairway in evi-
dence, we conclude that the court did not abuse its
discretion by permitting Gompper and Jones, who were
building inspectors, to testify as to their observations of
the premises. Section 116.4 of the state code specifically
empowers a building inspector to demolish property
that in his sole opinion is in immediate danger of falling
so as to endanger life or property. Moreover, pursuant
to Hodel, it is not the role of the court to engage in a
hindsight analysis of the condition of the porches and
stairway to determine whether they actually created an
immediate danger to the public. See Hodel v. Virginia
Surface Mining & Reclamation Assn., supra, 452 U.S.
302–303. We conclude, therefore, that the court’s find-
ing that the porches and stairway were unsafe for
human use was not clearly erroneous.
VI
The plaintiff’s final claim is that the court’s finding
that he failed to prove pecuniary damages was clearly
erroneous. We do not agree.
In its memorandum of decision, the court concluded
that there was no credible evidence before it as to the
value of the porches and stairway or the premises
before demolition and after demolition. Also, the plain-
tiff failed to sustain his burden of proof as to the loss
of income via rental of the premises, the cost of con-
structing new porches and a stairway, or the loss of
business income from the florist business. The plaintiff
offered an estimate of the cost of new porches prepared
by a contractor who did not testify. The estimated cost
of the new porches was $99,000, which the court found
was not far from the present value of the premises.
Moreover, the plaintiff was entitled to the cost of the
porches and stairway that were demolished, not new
porches.
‘‘[W]e review [a] trial court’s damages award under
the clearly erroneous standard, under which we over-
turn a finding of fact when there is no evidence in the
record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed.’’ (Internal quotation
marks omitted.) Naples v. Keystone Building & Devel-
opment Corp., 295 Conn. 214, 225, 990 A.2d 326 (2010).
The essence of the plaintiff’s claim is that the court
did not find his testimony or the testimony of his wit-
nesses credible. He acknowledges, however, that ‘‘the
trial court is privileged to adopt whatever testimony [it]
reasonably believes to be credible.’’ (Internal quotation
marks omitted.) Bristol v. Tilcon Minerals, Inc., 284
Conn. 55, 65, 931 A.2d 237 (2007). Specifically, the plain-
tiff claims that the court should have credited the
uncontradicted testimony of his expert witness, Chris-
topher Zajda, a structural engineer.
With respect to Zajada’s testimony, the court found
that he never saw the premises until 2012, three years
after the demolition had taken place. Zajada testified
that the porches should not have been demolished
because the top of the porches where they were
attached to the building were structurally sound. The
court found this testimony problematic because it did
not focus on the safety of the floors of the porches and
the columns holding them up. It is well-known that the
finder of fact may believe some, none, or all of an
expert’s testimony. See Silva v. Walgreen Co., 120 Conn.
App. 544, 557–58, 992 A.2d 1190 (2010). Following our
review of the record and the court’s memorandum of
decision, we are not left with a firm conviction that a
mistake has been made.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The first two counts of the second amended complaint sound in statutory
negligence pursuant to General Statutes § 52-557n (a) and (b) (8), respec-
tively. Count three alleged nuisance pursuant to General Statutes § 52-557n
(a) (1) (C); counts four, five, and six alleged claims pursuant to 42 U.S.C.
§ 1983 for procedural due process, substantive due process, and loss of
property violations, respectively; count seven alleged a class of one equal
protection violation; and count eight sought a declaratory judgment that
§ 9-54 of the Hartford Municipal Code and § 116.4 of the State Building Code
are unconstitutional.
The city denied the material allegations of the operative complaint and
alleged two special defenses: as to the negligence alleged in counts one and
two, the plaintiff’s injuries were proximately caused by his own negligence;
and as to counts one through three, the claims were barred by governmental
immunity pursuant to General Statutes § 52-557n.
2
The plaintiff alleged that he resides in Manchester, not at the premises.
3
The city did not disclose Gompper as an expert witness. The court
permitted him to testify only as to his observations of the premises.
4
Title 42 of the United States Code, § 1983, provides in relevant part:
‘‘Every person who, under color of any statute, ordinance, regulation, cus-
tom, or usage, of any State . . . subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress . . . .’’
The plaintiff alleged, pursuant to Monell v. New York City Dept. of Social
Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), that his rights
to due process were violated. In Monell, ‘‘the United States Supreme Court
. . . held that [l]ocal governing bodies . . . can be sued directly under [42
U.S.C.] § 1983 for monetary, declaratory, or injunctive relief where . . . the
action that is alleged to be unconstitutional implements or executes a policy
statement, ordinance, regulation, or decision officially adopted and promul-
gated by that body’s officers. [I]t is when execution of a government’s policy
or custom, whether made by its lawmakers or by those whose edicts or
acts may fairly be said to represent official policy, inflicts injury that the
government as an entity is responsible under § 1983.’’ (Internal quotation
marks omitted.) Pane v. Danbury, 267 Conn. 669, 681–82, 841 A.2d 684
(2004).
5
The court cited Parratt v. Taylor, 451 U.S. 527, 539, 101 S. Ct. 1908, 68
L. Ed. 2d 420 (1981) (necessity of quick state action coupled with meaningful
postdeprivation means to assess propriety of state action satisfies require-
ments of procedural due process), overruled in part on other grounds by
Daniel v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986).
6
Section 9-54 of the Hartford Municipal Code provides in relevant part:
‘‘If, in the opinion of the Director of Licenses and Inspections, there exists
actual and immediate danger of the failing of any structure or part thereof,
so as to endanger life or property, he shall order such structure or part
thereof to be torn down or shall cause the work to be done which is necessary
to render the structure temporarily safe until the proper proceedings can
be taken as provided in section 9-51. He may in such cases and in any case
where any building or part thereof has fallen and life is endangered by the
occupation thereof, order the inmates and occupants of such building or
part thereof to vacate forthwith. . . .’’ (Emphasis added.)
7
Section 116.4 of the State Building Code provides: ‘‘Emergency work.
When imminent danger or an unsafe condition requiring immediate action
exists and the owner of the building or structure cannot be located, or
refuses or is unable to expeditiously render the premises safe, the building
official shall order the employment of the necessary labor and materials to
perform the required work as expeditiously as possible. Such work shall
include that required, in the building official’s sole opinion, to make the
premises temporarily safe, up to and including demolition.’’
8
Although the plaintiff alleged in his complaint that § 116.4 of the state
code is unconstitutional, he has not challenged the trial court’s determination
that that section of the state code is constitutional.
9
The factual circumstances of Catanzaro are somewhat analogous to the
circumstances in this case as the conditions of the premises were brought
to the attention of the cities by third parties. In that case, an automobile
was accidentally driven into the front of a multistory building and severely
compromised the front wall of the building, which could have fallen into
the street. Catanzaro v. Weiden, supra, 188 F.3d 58. The city officials deter-
mined that for public safety, the building had to be demolished. Id. Although
the owner of the premises was called to the scene, there was disagreement
as to whether he acquiesced in the demolition. Id. Subsequently, the owner
brought an action alleging violations of 42 U.S.C. § 1983, claiming a violation
of his right to due process; id., 61; that the building was not in danger of
falling, and that the city had an ulterior motive to demolish the building.
Id., 59. The owner claimed that he should have been provided a predemolition
hearing to demonstrate that the building was not in danger of falling. The
District Court granted the city’s motion for summary judgment, which was
affirmed by the United States Court of Appeals for the Second Circuit, which
identified the question as ‘‘whether the Parratt exception applies, and is thus
whether there was an emergency and whether adequate postdeprevation
remedies were available.’’ Id., 62.
10
In the affidavit, Borges attested that as a private attorney she had
represented the plaintiff with regard to the demolition of the premises
starting in 2009, she did not commence any legal action on behalf of the
plaintiff with respect to the premises, she has not represented the plaintiff
since 2009, she became corporation counsel in July, 2010, since becoming
corporation counsel, she has taken no role in the present litigation com-
menced by the plaintiff in May, 2011, and she has not discussed any confi-
dences the plaintiff gave to her regarding the premises.
11
In his appellate brief, the plaintiff claims that he raised the issue of
disqualifying the corporation counsel’s office during trial. He did not, how-
ever, identify where in the record or transcript we could find the incident
to which he refers. We therefore decline to review any claim related thereto.
12
At the time of trial, Judge Robaina was the presiding judge for civil
matters in the judicial district of Hartford.
13
In pursuit of his request for a jury trial, the plaintiff’s counsel represented
that he did not have witnesses available that day because he believed that
he would have two or three days to line up his witnesses while he picked
a jury. The court offered to postpone the court trial to permit the plaintiff
to organize his witnesses; the city had no objection to the court’s proposal.
The court further stated that it did not know how long the plaintiff’s case
was expected to take, but that the court was scheduled to start a jury trial
the following day. Due to the court’s scheduled jury trial, the court offered
to let the plaintiff begin his evidence that day and schedule the remaining
witnesses to testify the following week.
14
The plaintiff agrees that count eight of the second amended complaint
concerning the constitutionality of § 9-54 of the city code and § 116.4 of the
state code are legal questions that may only be tried to the court.
15
The plaintiff complains that the city did not make a greater effort to
locate him before it demolished the porches. Perhaps the city could have
done more to locate the plaintiff, but that question is not determinative of
our analysis. There are public policy considerations that come into play.
‘‘The law should not discourage officials from taking prompt action to insure
the public safety. By subjecting a decision to invoke an emergency procedure
to an exacting hindsight analysis, where every mistake, even if made in
good faith, becomes a constitutional violation, we encourage delay and
thereby potentially increase the public’s exposure to dangerous conditions.
This quandary is exactly what these emergency procedures are designed
to prevent, and is the primary reason they are constitutional acceptable.’’
Catanzaro v. Weiden, supra, 188 F.3d 63.
In the present case, the court found that the city officials believed in good
faith belief that an emergency endangering public safety existed. The record
contains competent evidence in the form of photographs of the premises
that supports the court’s good faith determination. Moreover, as Hodel
establishes, in cases of emergency, municipal authorities are endowed with
discretion, and it is not the role of the court to second guess the authorities’
evaluation of the situation. See Hodel v. Virginia Surface Mining & Recla-
mation Assn., supra, 452 U.S. 302.