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.