Berka v. Middletown ( 2021 )

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GEORGE BERKA v. CITY OF
MIDDLETOWN ET AL.
(AC 43853)
Alvord, Elgo and Albis, Js.
Syllabus
The plaintiff appealed to the Superior Court from the decision of the defen-
dant citation hearing officer for the defendant city of Middletown uphold-
ing a citation assessed against him for violating the city’s anti-blight
ordinance. The court upheld six of the seven blight violations alleged
against the plaintiff and calculated a resulting fine, from which the
plaintiff appealed to this court. Held:
1. The trial court properly granted the defendants’ motion to strike the
plaintiff’s request for a jury trial; the plaintiff cited no authority that
would support his challenge to the plain language of the rule of practice
(§ 23-51) that governs petitions to reopen citation assessments and pro-
vides that there is no right to a hearing before a jury in such circum-
stances.
2. The plaintiff could not prevail on his claim that the citation hearing officer
had a conflict of interest: the plaintiff never raised this issue before the
citation hearing officer, which precluded him from raising the issue on
appeal; moreover, even if the citation hearing officer had a conflict of
interest, the hearing on appeal before the trial court was a de novo
proceeding, and any possible prejudice would have been cured because
the decision of the trial court, not that of the citation hearing officer,
was on appeal.
3. This court declined to address the merits of the plaintiff’s constitutional
claims as they were not properly before the trial court, which never
ruled on them, and could not be reviewed for the first time on appeal:
the plaintiff filed a request to amend his complaint that included constitu-
tional claims three days prior to the de novo hearing, and his attempted
amendment failed to comport with the requirements of the rules of
practice (§§ 10-1 and 10-60) regarding the amendment of pleadings,
such that the court sustained the defendants’ objection to the plaintiff’s
request to amend; accordingly, the court did not abuse its discretion in
refusing to permit the plaintiff to amend his petition or to argue those
constitutional issues at the de novo hearing.
4. The trial court’s factual findings challenged by the plaintiff on appeal
were not clearly erroneous; the findings were supported by evidence
in the record, and this court was not left with a definite and firm
conviction that any mistake had been committed.
Argued February 3—officially released June 8, 2021
Procedural History
Petition to reopen a citation assessment issued by
the named defendant, brought to the Superior Court
in the judicial district of Middlesex, where the court,
Domnarski, J., granted the defendants’ motion to strike
the plaintiff’s claim for a jury trial; thereafter, the court,
Hon. Edward S. Domnarski, judge trial referee, ren-
dered judgment denying the petition, from which the
plaintiff appealed to this court. Affirmed.
George Berka, self-represented, the appellant (plain-
tiff).
Brig Smith, general counsel, for the appellees (defen-
dants).
Opinion
ALBIS, J. The plaintiff, George Berka, appeals from
the judgment of the trial court denying his petition
to reopen a municipal blight citation assessment and
upholding a failure to pay fines notice issued by the
defendant city of Middletown (city), with respect to six
blight violations that existed on the plaintiff’s rental
property located at 5 Maple Place in Middletown (prop-
erty). Specifically, the plaintiff claims that (1) he should
have been granted a jury trial, (2) he should have been
allowed to raise constitutional issues related to the
blight ordinance at his appeal hearing, (3) the blight
citation violated his constitutional rights, (4) boarded
windows should not constitute blight, (5) it was neither
fair nor reasonable to expect him to pour concrete and
to paint in the winter, (6) the blight enforcement officer
was not qualified to make structural assessments about
the property, (7) the siding on his home was not ‘‘seri-
ously damaged,’’ (8) the outside structural walls of his
home were watertight, (9) there was no garbage, rub-
bish, or refuse being stored or accumulated in public
view, and (10) the hearing officer, defendant Sylvia K.
Rutkowska,1 had a conflict of interest. We disagree,
and, accordingly, affirm the judgment of the trial court.
The following chronology is drawn from the trial
court’s memorandum of decision. ‘‘By letter dated Janu-
ary 10, 2018, the [city] gave the plaintiff a notice of
blight for [the property] . . . . The notice referred to
seven blight conditions.2 . . . The [city] issued the
plaintiff a blight citation on February 14, 2018, for the
seven separate violations of the blight ordinance and
imposed a $100 per day civil fine for each violation.
. . . On March 28, 2018, the [city] issued a failure to
pay fines notice for blight violations. . . . The failure
to pay fines notice stated that accumulated fines totaled
$29,400 (42 days x $700). The notice also advised the
plaintiff of his right to appeal. An appeal hearing was
conducted by a citation hearing officer on May 2, 2018.
The hearing officer issued a revised notice of decision/
assessment on May 7, 2018, assessing fines through the
date of the appeal, which resulted in a total of $53,900
(77 days x $700).’’ (Citations omitted; footnote added.)
The plaintiff appealed that decision to the Superior
Court by filing a petition to reopen a municipal blight
citation assessment pursuant to General Statutes § 7-
152c (g) and Practice Book § 23-51,3 and the court held
a de novo hearing on the petition on November 7, 2019.4
At that hearing, the court heard testimony from Michelle
Ford, the blight enforcement officer for the city at the
time of the May 2, 2018 hearing. Ford testified that she
had inspected the subject property on February 13,
2018, and March 27, 2018, that she took photographs
of the alleged blight conditions on both occasions, and
that she issued the blight citation and failure to pay
fines notices. In its January 16, 2020 memorandum of
decision, the court upheld six of the seven blight viola-
tions.5 The court explained that it had ‘‘carefully consid-
ered Ford’s testimony and thoroughly reviewed the
[inspection] photographs,’’ and that it found that six
violations existed on, and the fines accrued from, Febru-
ary 14, 2018, through March 27, 2018. The court calcu-
lated the resulting fine as $25,200 (42 days x $600). This
appeal followed. Additional facts will be set forth as
necessary.
I
The plaintiff claims that he was entitled to a jury trial
in his appeal of the blight citation. We disagree.
The following additional facts are relevant to our
resolution of this claim. On November 13, 2018, the
plaintiff requested a jury trial of his appeal. On October
30, 2019, the defendants filed a motion to strike the
plaintiff’s request for a jury trial on the ground that
there is no right to a jury trial in citation assessment
appeals pursuant to Practice Book § 23-51 (c). On
November 6, 2019, the court granted the defendants’
motion.
The plaintiff’s claim is governed by Practice Book
§ 23-51, which is titled ‘‘Petition To Open Parking or
Citation Assessment,’’ and provides in subsection (c)
that ‘‘[t]he hearing on the petition shall be de novo.
There shall be no right to a hearing before a jury.’’
Nevertheless, the plaintiff argues that ‘‘blight citations
are grouped together with parking tickets, which are
generally around $20 . . . . Perhaps the authors here
had these types of ‘small’ citations in mind when writing
this section, and it is understandable that they likely
saw these small citations as ‘too trivial’ to warrant a
jury trial. However, a $53,900 blight fine is a ‘far cry’
from a $20 parking ticket! Doesn’t a case in which a
person’s home is on the line deserve a hearing before
a jury?’’ The plaintiff cites no authority that would sup-
port his challenge to the plain language of § 23-51. We
are not persuaded, and, accordingly, the trial court
properly granted the defendants’ motion to strike the
plaintiff’s request for a jury trial.
II
The plaintiff next claims that Rutkowska ‘‘may have
had a conflict of interest.’’ He claims that ‘‘[p]rior to
being permitted to appeal his blight citation to the Supe-
rior Court, [he was required to] attend a hearing on the
matter before the city officials and a ‘citation hearing
officer,’ whom the city designates. Th[e] hearing officer
who presided over this hearing . . . Rutkowska, is
actually a local attorney, who has business dealings and
an attorney-client relationship with the city.’’ (Emphasis
omitted.) The plaintiff, therefore, claims that Rutkow-
ska was unlikely to be objective and that her potential
conflict of interest ‘‘may have caused the plaintiff to be
prejudiced . . . .’’
At oral argument before this court, the plaintiff con-
ceded that he never raised this issue at the hearing
before Rutkowska. The failure to raise the claim of bias
of the administrative hearing officer at the time of the
hearing precludes the plaintiff from raising the issue
on appeal. See Moraski v. Connecticut Board of Exam-
iners of Embalmers & Funeral Directors, 291 Conn.
242, 261–62, 967 A.2d 1199 (2009). Moreover, even if
Rutkowska did have a conflict of interest, as the plaintiff
claimed, the hearing on appeal before the trial court
was a de novo proceeding, and, therefore, any possible
prejudice would be cured. Because the decision of the
trial court, and not that of Rutkowska, is currently on
appeal, we agree with the court that the de novo hearing
on appeal before the trial court cured any possible
prejudice to the plaintiff.
III
We next turn to the plaintiff’s two constitutional argu-
ments. The plaintiff claims that (1) he should have been
permitted to raise constitutional issues with respect to
his blight citation during the appeal hearing, and (2)
the blight citation violated the first, fourth, fifth, and
eighth amendments to the United States constitution.
We conclude that the trial court did not abuse its discre-
tion in denying the plaintiff’s requests to raise those
constitutional claims, and, consequently, we decline to
address them on their merits.
The following additional facts are relevant to our
resolution of these claims. On November 4, 2019, the
plaintiff filed a request to amend the complaint and an
amended complaint6 that included his constitutional
claims. The defendants objected to that request on
November 5, 2019, and the court sustained their objec-
tion on December 5, 2019. Nevertheless, the plaintiff
notes in his appellate brief that, ‘‘during the hearing, the
plaintiff had again asked the judge if he could present
testimony as to why he believed this entire blight cita-
tion to be unconstitutional in the first place, and, again,
the judge denied the plaintiff’s request.’’
Practice Book § 10-60 provides in relevant part: ‘‘(a)
. . . [A] party may amend his or her pleadings . . . at
any time . . . in the following manner: (1) By order
of judicial authority; or (2) By written consent of the
adverse party; or (3) By filing a request for leave to
file an amendment together with . . . (B) an additional
document showing the portion or portions of the origi-
nal pleading or other parts of the record or proceedings
with the added language underlined and the deleted
language stricken through or bracketed. . . .
‘‘(b) The judicial authority may restrain such amend-
ments so far as may be necessary to compel the parties
to join issue in a reasonable time for trial. . . .’’
‘‘Whether to allow an amendment is a matter left to the
sound discretion of the trial court. [An appellate] court
will not disturb a trial court’s ruling on a proposed
amendment unless there has been a clear abuse of that
discretion. . . . It is the [amending party’s] burden
. . . to demonstrate that the trial court clearly abused
its discretion.’’ (Internal quotation marks omitted.)
GMAC Mortgage, LLC v. Ford, 144 Conn. App. 165, 184,
73 A.3d 742 (2013).
Practice Book § 23-51 provides in relevant part: ‘‘(a)
Any aggrieved person who wishes to appeal a parking
or citation assessment issued by a town, city, borough
or other municipality shall file with the clerk of the
court within the time limited by statute a petition to
open assessment with a copy of the notice of assess-
ment annexed thereto. . . .
‘‘(b) Upon receipt of the petition, the clerk of the
court . . . shall set a hearing date on the petition and
shall notify the parties thereof. There shall be no plead-
ings subsequent to the petition.’’
The record reveals that the plaintiff filed his request
to amend on November 4, 2019, merely three days prior
to the de novo hearing that was held on November
7, 2019, and that his attempted amendment failed to
comport with the requirements of Practice Book §§ 10-
1 and 10-60 (a) (3). Accordingly, we conclude that the
trial court did not abuse its discretion in refusing to
permit the plaintiff to amend his petition or to argue
those constitutional issues at the de novo hearing.
Consequently, because the plaintiff’s constitutional
arguments were not properly before the trial court,
which, therefore, never ruled on them, we cannot
review them for the first time on appeal. ‘‘Our appellate
courts, as a general practice, will not review claims
made for the first time on appeal.’’ (Internal quotation
marks omitted.) Guzman v. Yeroz, 167 Conn. App. 420,
426, 143 A.3d 661, cert. denied, 323 Conn. 923, 150 A.3d
1152 (2016). ‘‘It is well established that [a] party cannot
present a case to the trial court on one theory and then
seek appellate relief on a different one . . . .’’ (Internal
quotation marks omitted.) Council v. Commissioner of
Correction, 286 Conn. 477, 498, 944 A.2d 340 (2008).
‘‘[A]n appellate court is under no obligation to consider
a claim that is not distinctly raised at the trial level.
. . . [B]ecause our review is limited to matters in the
record, we [also] will not address issues not decided
by the trial court.’’ (Citations omitted; internal quotation
marks omitted.) Burnham v. Karl & Gelb, P.C., 252
Conn. 153, 170–71, 745 A.2d 178 (2000); see also Practice
Book § 60-5. Accordingly, we decline to address the
merits of the plaintiff’s constitutional claims.
IV
Finally, the plaintiff challenges six of the trial court’s
findings of fact. Specifically, he claims that boarded
windows should not constitute blight, that it was neither
fair nor reasonable to expect him to pour concrete and
to paint in the winter, that the blight enforcement officer
was not qualified to make structural assessments about
the property, that the siding on his home was not ‘‘seri-
ously damaged,’’ that the outside structural walls of his
home were watertight, and that there was no garbage,
rubbish, or refuse being stored or accumulated in public
view. We conclude that the court’s factual findings are
not clearly erroneous.
‘‘The trier of facts is the judge of the credibility of
the testimony and of the weight to be accorded it. . . .
[A finding of fact] will not be reversed or modified
unless it is clearly erroneous in light of the evidence
and the pleadings in the record as a whole. . . . A
finding of fact is clearly erroneous 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.
. . . The weight to be given to the evidence and to the
credibility of witnesses is solely within the determina-
tion of the trier of fact. . . . In reviewing factual find-
ings, [w]e do not examine the record to determine
whether the [court] could have reached a conclusion
other than the one reached. . . . Instead, we make
every reasonable presumption . . . in favor of the trial
court’s ruling.’’ (Citation omitted; footnote omitted;
internal quotation marks omitted.) Cohen v. Roll-A-
Cover, LLC, 131 Conn. App. 443, 450–51, 27 A.3d 1, cert.
denied, 303 Conn. 915, 33 A.3d 739 (2011).
The factual findings challenged by the plaintiff on
appeal were supported by evidence in the record, and
we are not left with a definite and firm conviction that
any mistake has been committed. With respect to the
plaintiff’s claim that he should not have been required
to paint and pour concrete in the winter, we further
note that the plaintiff conceded at oral argument before
this court that he did not request additional time from
the city to comply with those requirements in warmer
weather. Additionally, we need not reach the issue of
the blight enforcement officer’s qualifications, because
the trial court determined independently, after
reviewing the photographs of the property, that the
structural blight conditions existed. The trial court’s
findings are not clearly erroneous.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In this opinion we refer to the city and Rutkowska individually by name
where necessary and collectively as the defendants.
2
In its decision, the court noted the blight conditions referenced in the
notice of blight as follows: ‘‘(1) missing, broken or boarded windows or
doors, if the building is not vacant or abandoned . . . (2) broken glass,
crumbling stone or other conditions reflective of deterioration or inadequate
maintenance . . . (3) a collapsing or missing exterior wall, roof, floor, stairs,
porch, railings, basement hatchways, chimneys, gutters, awnings or other
features . . . (4) siding or roofing that is seriously damaged, missing, faded
or peeling; (5) the outside structure walls are not weather[tight] [or] water-
tight, that is evidenced by having any holes, loose boards, or any broken,
cracked or damaged siding that admits rain, cold air, dampness, rodents,
insects or vermin . . . (6) garbage, rubbish, refuse, accumulating refuse,
putrescible items, trash or other accumulated debris that is being stored or
accumulated in public view . . . [and] (7) abandoned or inoperable vehicles
are improperly stored on the premises . . . .’’ (Citations omitted.)
3
General Statutes § 7-152c (g) provides: ‘‘A person against whom an
assessment has been entered pursuant to this section is entitled to judicial
review by way of appeal. An appeal shall be instituted within thirty days of
the mailing of notice of such assessment by filing a petition to reopen
assessment, together with an entry fee in an amount equal to the entry fee
for a small claims case pursuant to section 52-259, at a superior court facility
designated by the Chief Court Administrator, which shall entitle such person
to a hearing in accordance with the rules of the judges of the Superior Court.’’
Practice Book § 23-51 provides: ‘‘(a) Any aggrieved person who wishes
to appeal a parking or citation assessment issued by a town, city, borough
or other municipality shall file with the clerk of the court within the time
limited by statute a petition to open assessment with a copy of the notice
of assessment annexed thereto. A copy of the petition with the notice of
assessment annexed shall be sent by the petitioner by certified mail to the
town, city, borough or municipality involved.
‘‘(b) Upon receipt of the petition, the clerk of the court, after consultation
with the presiding judge, shall set a hearing date on the petition and shall
notify the parties thereof. There shall be no pleadings subsequent to the peti-
tion.
‘‘(c) The hearing on the petition shall be de novo. There shall be no right
to a hearing before a jury.’’
4
The parties refer to the petition as a ‘‘complaint.’’
5
With respect to the seventh alleged violation, the court found that there
was no evidence to establish that the trailer stored on the plaintiff’s property
was mechanically inoperable.
6
See footnote 4 of this opinion.