Edgewood Street Garden Apartments, LLC v. Hartford ( 2016 )

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EDGEWOOD STREET GARDEN APARTMENTS, LLC
v. CITY OF HARTFORD
(AC 36946)
DiPentima, C. J., and Sheldon and Mullins, Js.
Submitted on briefs September 14, 2015—officially released
February 23, 2016
(Appeal from Superior Court, judicial district of New
Britain, Swienton, J.)
Clifford S. Thier filed a brief for the appellant
(plaintiff).
Jonathan H. Beamon, senior assistant corporation
counsel, filed a brief for the appellee (defendant).
Opinion
MULLINS, J. The plaintiff, Edgewood Street Garden
Apartments, LLC, appeals from the judgment of the trial
court rendered in favor of the defendant, the city of
Hartford, on the plaintiff’s complaint. On appeal, the
plaintiff claims that the court erred when it (1) made
various findings of fact that were unsupported by the
evidence introduced at trial, (2) did not find that provi-
sions of the municipal and state building codes that the
defendant violated constituted a ‘‘policy’’ supporting a
claim of municipal liability1 under 42 U.S.C. § 1983,2 (3)
concluded that the defendant’s actions did not consti-
tute a taking of property for which the plaintiff was
entitled to just compensation, (4) placed the burden of
proof on the plaintiff, and (5) did not draw an inference
in the plaintiff’s favor on account of the defendant’s
failure to preserve evidence critical to the plaintiff’s
case. We disagree and affirm the judgment of the
trial court.
The following facts, as found by the trial court, inform
our consideration of the plaintiff’s claims on appeal.
‘‘On February 6, 2011, the plaintiff owned the land and
building at 270–272 Edgewood Street (subject property)
in the city of Hartford, which was purchased in August,
2009, for $65,000. The building on the property was built
in 1925. The plaintiff planned on performing massive
renovations to the building with the intent of renting
out its apartments.
‘‘On February 6, the fire department for the city was
dispatched to the subject property after it received a
report that the roof had collapsed. David Viens, a state
of Connecticut certified building inspector who worked
in the city’s department of licenses and inspection, was
called to go to the subject property. Upon his arrival,
he saw cracks at some areas in the sidewalls of the
subject property and above two windows. He deter-
mined that the roof had collapsed, which was causing
the cracks in the side walls as well as bowing of the
walls, and he was concerned that due to the snow load
on the roof, the building could come down at any
minute, endangering the adjoining property. He spoke
with Allen Gaudet, the general contractor on the con-
struction of the building, and Gaudet informed Viens
that there was a temporary pitched roof on the building
and that the roof pitch had changed.
‘‘Viens made a determination that the building was
to be demolished. He spoke with Louis Lawson, Jr., the
[plaintiff’s] vice president . . . and informed him that
he had ordered the building to be taken down. After
Viens spoke with Lawson [Jr.’s] father, Louis Lawson,
Sr., Lawson, Jr., asked Viens if he could call his struc-
tural engineer as well as his insurance adjuster. Neither
one was available to come out that day (which was a
Sunday), but Viens stated he would not wait until the
next day to have the building demolished.
‘‘Neither Lawson, Jr., nor Lawson, Sr., is an engineer
or a licensed building inspector with the state of Con-
necticut. After discussion with his supervisor, Viens
made the decision to begin the demolition that day, and
ordered the city’s subcontractor to begin.3 The con-
struction company tore down 75 percent of the building
on Sunday, and completed the demolition of the build-
ing the next day.
‘‘No licensed engineer examined the building prior
to the demolition. George Torello, a structural engineer
and forensic investigator with an impressive back-
ground, testified on behalf of the plaintiff. However,
his examination was done based upon the photos which
were taken that day. Based on his examination, he
opined that there was not enough information to con-
clude that the building would collapse.
‘‘There was a dearth of evidence as to damages
. . . .’’ (Footnote in original.)
The following procedural history also informs our
review. The plaintiff filed a six count complaint alleging
the following: (1) denial of equal protection under
§ 1983; (2) denial of substantive due process under
§ 1983; (3) denial of procedural due process under
§ 1983; (4) inverse condemnation under § 1983; (5)
inverse condemnation under the fifth amendment to
the United States constitution; and (6) inverse condem-
nation under article first, § 11, of the Connecticut con-
stitution. After a bench trial, the court issued a
memorandum of decision in which it found in favor of
the defendant on all six counts of the complaint. The
court concluded that (1) with respect to counts one
through four, there were no causes of action under
§ 1983 because the plaintiff did not submit evidence of
a policy that directed Viens to demolish the building,
and (2) with respect to counts five and six, ‘‘there was
no taking of the property, but a demolition of a building
evaluated to be unsafe.’’ The court then found that even
if it had found in favor of the plaintiff on any count of
the complaint, the plaintiff would not have prevailed
because of its failure to establish actual damages.4
Accordingly, the court rendered judgment in favor of
the defendant. This appeal followed. Additional facts
will be set forth as necessary.
I
The plaintiff first claims that the trial court made
various findings of fact that were ‘‘unsupported, or even
contradicted, by the evidence presented at trial.’’ The
plaintiff challenges factual findings by the court regard-
ing (1) the extent to which the plaintiff had completed
renovations to the building on the day it was demol-
ished, (2) Viens’ credentials, and (3) Viens’ various
determinations concerning the building that led to his
conclusion that it should be demolished. On the basis
of our review of the record, we conclude that none of
these findings was clearly erroneous.
We first set forth the standard of review. ‘‘Because
a trial court is afforded broad discretion in making its
factual findings, those findings will not be disturbed by
a reviewing court unless they are 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 . . . . In applying the clearly erroneous
standard of review, [a]ppellate courts do not examine
the record to determine whether the trier of fact could
have reached a different conclusion. Instead, we exam-
ine the trial court’s conclusion in order to determine
whether it was legally correct and factually supported.
. . . This distinction accords with our duty as an appel-
late tribunal to review, and not to retry, the proceedings
of the trial court.’’ (Citation omitted; emphasis omitted;
internal quotation marks omitted.) O’Connor v. Lar-
ocque, 302 Conn. 562, 574–75, 31 A.3d 1 (2011). ‘‘[I]n a
case tried before a court, the trial judge is the sole
arbiter of the credibility of the witnesses and the weight
to be given specific testimony. . . . On appeal, we do
not retry the facts or pass on the credibility of wit-
nesses.’’ (Internal quotation marks omitted.) Bristol v.
Tilcon Minerals, Inc., 284 Conn. 55, 65, 931 A.2d 237(2007).
A
The plaintiff first challenges the court’s finding as to
the extent to which the plaintiff had completed renova-
tions to the building as of the day it was demolished.
The plaintiff argues that the court’s finding that on
February 6, 2011, the plaintiff ‘‘planned on performing
massive renovations to the building’’ was erroneous
because the plaintiff in fact already had completed most
of its renovations, including structural reinforcements.
We are not persuaded.
To be sure, the record does contain testimony regard-
ing work that already had been performed on the build-
ing as of February 6, 2011. Nevertheless, there was also
testimony that on that date, significant improvements
had yet to be performed. In particular, Gaudet, the plain-
tiff’s general contractor, testified that the building still
lacked a permanent roof, which could not be installed
until other work had been performed. In light of this
testimony, the court’s characterization of renovations
as ‘‘planned’’ was not clearly erroneous.
B
The plaintiff next challenges the court’s findings
regarding Viens’ credentials. The plaintiff argues that
the court’s finding that Viens was a ‘‘certified building
inspector’’ was in error. We disagree. In support of its
argument, the plaintiff relies on copies of e-mails
entered into evidence in which Viens’ signature indi-
cates that he was a heating inspector. There is neverthe-
less evidence in the record to support the court’s finding
that Viens was a certified building inspector. At trial,
Viens testified on cross-examination that he was a certi-
fied building inspector and/or a certified building offi-
cial with the state. That Viens’ e-mail signature indicates
his title is heating inspector does not lead us to conclude
that the court’s finding was clearly erroneous. The court
was entitled to credit Viens’ testimony regarding his
credentials.5 Accordingly, we conclude that the court’s
finding that Viens was a certified building inspector
was not clearly erroneous.
C
Finally, the plaintiff challenges the court’s findings
regarding Viens’ various determinations concerning the
building that led to his conclusion that it should be
demolished—specifically, that ‘‘[Viens] determined that
the roof had collapsed, which was causing the cracks
in the side walls as well as bowing of the walls, and he
was concerned that due to the snow load on the roof,
the building could come down at any minute, endanger-
ing the adjoining property.’’ The plaintiff divides this
challenge into three arguments.
First, the plaintiff argues that the court erroneously
‘‘accepted that there had been a roof on the building
at the time of the snowfall . . . .’’ This was error, the
plaintiff argues, because although Viens believed the
building had a roof just prior to the snowfall, the roof
previously had been removed during renovations. We
disagree.
Viens testified repeatedly that he determined that
the roof had collapsed. Thus, the record supports the
court’s finding that Viens had made a determination
that there had been a roof and that the roof had col-
lapsed prior to ordering demolition of the building.6
Accordingly, the court’s finding was not clearly
erroneous.
Second, the plaintiff argues that the court errone-
ously concluded that a roof collapse caused cracks
and bowing in the building’s walls. This was error, the
plaintiff argues, because no evidence corroborated
Viens’ determination to that effect. Again, we disagree.
Viens testified that there were cracks and a bow on
the building’s left side. In response to a question posed
by the plaintiff’s counsel as to what distinguished the
plaintiff’s building from other buildings exhibiting bow-
ing and cracking that he had not ordered demolished,
Viens responded: ‘‘One thing was, this building, the roof
caved in.’’7 Thus, the record supports the court’s finding
that Viens made the determination that the collapse of
the roof caused the cracks and bowing. The court’s
finding, therefore, was not clearly erroneous.
Finally, the plaintiff argues that there is no evidence
in the record to support the court’s finding that Viens
was concerned that snow on the roof could bring the
building down. We disagree. The record contains ample
support for this finding. On February 6, 2011, at 10:30
a.m., Viens completed a ‘‘Notice Violation/Emergency
and Order to Abate.’’ On that form, Viens described the
condition warranting emergency action as ‘‘snow load
has [a]ffected the stability of the structure.’’ At trial,
Viens testified that ‘‘[s]now load was a concern’’ in
determining whether the building was unsafe and
needed to be torn down.
The presence in the record of conflicting testimony is
insufficient to undermine the court’s finding that Viens
believed the snow’s weight could cause the building’s
collapse. Although Viens did testify that ‘‘[i]f snow went
into the building, no, the building would not collapse,’’
the court, as the trier of fact, was free to resolve this
conflicting testimony as it saw fit. Clennon v. Home-
town Buffet, Inc., 84 Conn. App. 182, 187–88, 852 A.2d
836 (2004). Because it was supported by evidence in
the record, the court’s finding that Viens was concerned
that snow load on the building’s roof could cause the
building to collapse was not clearly erroneous.
II
Next, the plaintiff claims that the court erred when
it did not find that provisions of the municipal and state
building codes that the defendant violated constituted a
‘‘policy’’ supporting a claim of municipal liability under
§ 1983. Specifically, it claims that the court erred in
concluding that provisions vesting an official with the
discretion to determine whether to order a building’s
demolition did not constitute ‘‘a policy of demolishing
properties.’’ We conclude that the court properly deter-
mined that the plaintiff failed to establish a cause of
action under § 1983.8
The following portions of the court’s memorandum
of decision inform our review of this claim. In conclud-
ing that the plaintiff did not prove a cause of action
under § 1983, the court found that ‘‘[n]o evidence was
introduced by the plaintiff to indicate that the demoli-
tion of the building on the subject property was pursu-
ant to any type of city of Hartford policy. There was
no official policy of demolishing properties. The city
inspector, Viens, believed that the property was unsafe,
and he made the discretionary decision based upon
his experience to have the property demolished. In so
doing, he followed the city’s ordinance and the State
Building [C]ode.’’ After quoting § 9-54 of the Hartford
Municipal Code9 (municipal code) and § 116.4 of the
State Building Code,10 (building code) the court stated
that both provisions ‘‘indicate that the decision to
demolish a property which is determined to be unsafe
is left to the discretion of the building official. There
was no evidence submitted of any policy which directed
Viens to take action for demolition, but rather he was
directed to evaluate the condition of the property and
make a determination of its safety.’’
We set forth the legal principles applicable to a claim
of municipal liability pursuant to § 1983 for the depriva-
tion of a constitutional right. ‘‘A municipality or other
local government may be liable under [§ 1983] if the
governmental body itself subjects a person to a depriva-
tion of rights or causes a person to be subjected to
such deprivation. See Monell v. New York City Dept.
of Social [Services], 436 U.S. 658, 692 [98 S. Ct. 2018,
56 L. Ed. 2d 611] (1978) [quoting 42 U.S.C. § 1983]. But,
under § 1983, local governments are responsible only
for their own illegal acts. . . . They are not vicariously
liable under § 1983 for their employees’ actions. . . .
Plaintiffs who seek to impose liability on local govern-
ments under § 1983 must prove that action pursuant to
official municipal policy caused their injury.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) Connick v. Thompson, 563 U.S. 51, 60, 131 S.
Ct. 1350, 179 L. Ed. 2d 417 (2011).
‘‘[I]t is not enough for a § 1983 plaintiff merely to
identify conduct properly attributable to the municipal-
ity. The plaintiff must also demonstrate that, through
its deliberate conduct, the municipality was the moving
force behind the injury alleged. That is, a plaintiff must
show that the municipal action was taken with the
requisite degree of culpability and must demonstrate a
direct causal link between the municipal action and the
deprivation of federal rights. Where a plaintiff claims
that a particular municipal action itself violates federal
law, or directs an employee to do so, resolving these
issues of fault and causation is straightforward. . . .
Where [however] a plaintiff claims that the municipality
has not directly inflicted an injury, but nonetheless has
caused an employee to do so, rigorous standards of
culpability and causation must be applied to ensure
that the municipality is not held liable solely for the
actions of its employee.’’ (Citation omitted; emphasis
omitted; internal quotation marks omitted.) Board of
County Commissioners v. Brown, 520 U.S. 397, 404–
405, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997). ‘‘[W]here
the policy relied upon is not itself unconstitutional,
considerably more proof than [a] single incident [of
unconstitutional activity] will be necessary in every
case to establish both the requisite fault on the part of
the municipality, and the causal connection between
the ‘policy’ and the constitutional deprivation.’’ (Foot-
note omitted.) Oklahoma City v. Tuttle, 471 U.S. 808,
824, 105 S. Ct. 2427, 85 L. Ed. 2d 791 (1985).
Against the backdrop of these principles, we place
our discussion of the court’s claimed error within the
proper frame. We disagree with the plaintiff’s con-
tention that the court found that the provisions of the
municipal and building codes were not policies. The
court acknowledged the existence of § 9-54 of the
municipal code and § 116.4 of the building code and,
accordingly, the existence of a municipal policy. See
Monell v. New York City Dept. of Social Services, supra,
436 U.S. 660–61.
The court implicitly concluded, however, that the
identified municipal policy was not the ‘‘moving force’’
behind the constitutional violations the plaintiff claimed
arose from Viens’ order to demolish the building.11 In
finding that the municipal and building code provisions
did not mandate Viens to demolish the plaintiff’s build-
ing, ‘‘but rather . . . directed [him] to evaluate the con-
dition of the property and make a determination of its
safety,’’ and, therefore, left the decision to demolish to
his discretion, the court concluded that there was sim-
ply no policy or custom directing building officials to
demolish buildings. Thus, our resolution of the plain-
tiff’s claim turns on the propriety of the court’s conclu-
sion concerning causation. See Board of County
Commissioners v. Brown, supra, 520 U.S. 404.
We conclude, on the basis of the record and the
relevant case law, that the court properly found that
the plaintiff did not establish a cause of action under
§ 1983 because it did not prove the required causal link
between the defendant’s policy and the constitutional
violations the plaintiff claims to have suffered. Although
the plaintiff went to some lengths to present evidence
that Viens was mistaken in determining that the plain-
tiff’s building posed an imminent danger to adjoining
properties, Viens’ error, if any,12 fell well short of estab-
lishing the requisite causal link. Id., 406–407 (‘‘[t]hat a
plaintiff has suffered a deprivation of federal rights at
the hands of a municipal employee will not alone permit
an inference of municipal culpability and causation; the
plaintiff will simply have shown that the employee acted
culpably’’ [emphasis in original]). Because the identified
municipal policy itself is not unconstitutional,13 the
plaintiff was required to prove more than a single exer-
cise of Viens’ discretion to impose liability on the defen-
dant. See Oklahoma City v. Tuttle, supra, 471 U.S. 823(‘‘[I]f one retreats far enough from a constitutional viola-
tion some municipal policy can be identified behind
almost any such harm inflicted by a municipal official
. . . . At the very least there must be an affirmative
link between the policy and the particular constitutional
violation alleged.’’ [Internal quotation marks omitted.]).
For the foregoing reasons, the court properly deter-
mined that the plaintiff failed to establish a basis for
the municipal defendant’s liability on any of its
§ 1983 claims.
III
Next, the plaintiff claims that the court improperly
concluded that the defendant’s actions did not consti-
tute a taking of property for which the plaintiff was
entitled to just compensation. In counts five and six of
its complaint, the plaintiff asserted inverse condemna-
tion claims under the federal and state constitutions,14
alleging that the defendant’s demolition of its building
constituted a taking of property for which it was entitled
to just compensation. The court, in ruling in the defen-
dant’s favor, concluded that ‘‘there was no taking of
the property, but a demolition of a building evaluated
to be unsafe.’’ On appeal, the plaintiff contends that the
demolition was a taking because it deprived the plaintiff
of the opportunity to resell the building or rent the
apartments therein, and, therefore, ‘‘the execution of
[the] defendant’s regulations has interfered with [the]
plaintiff’s reasonable investment-backed expectations.’’
(Internal quotation marks omitted.) We disagree.
‘‘[F]or this constitutional claim, we review the trial
court’s factual findings under a clearly erroneous stan-
dard and its conclusions of law de novo.’’ Rural Water
Co. v. Zoning Board of Appeals, 287 Conn. 282, 298,
947 A.2d 944 (2008). The plaintiff’s claim implicates a
long-standing tension between two important princi-
ples: the right of a property owner to be free from
an uncompensated government encroachment on its
property interest and ‘‘the imperative of protecting the
public from dangerous conditions posed by decrepit
structures.’’ Brown v. Hartford, 160 Conn. App. 677,
680, A.3d , cert. denied, 320 Conn. 911, A.3d
(2015). Although both the federal and state constitu-
tions provide for just compensation when property is
taken, ‘‘[n]either the constitution of the United States
. . . nor the constitution of Connecticut . . . den[ies]
the state the power to regulate the uses to which an
owner may devote his property.
‘‘All property is held subject to the right of govern-
ment to regulate its use in the exercise of the police
power, so that it shall not be injurious to the rights of
the community, or so that it may promote its health,
morals, safety and welfare. The power of regulation by
government is not unlimited; it cannot . . . be imposed
unless it bears a rational relation to the subjects which
fall fairly within the police power and unless the means
used are not within constitutional inhibitions. The
means used will fall within these inhibitions whenever
they are destructive, confiscatory, or so unreasonable
as to be arbitrary. . . . Regulations may result to some
extent, practically in the taking of property, or the
restricting its uses, and yet not be deemed confiscatory
or unreasonable. . . . When . . . a legislative enact-
ment is challenged in its application as beyond the
scope or as an abuse of the state’s police power, two
issues are raised: first, whether the object of the legisla-
tion falls within the police power; and second, whether
the means by which the legislation attempts to reach
that object are reasonable.’’ (Citations omitted; internal
quotation marks omitted.) Figarsky v. Historic District
Commission, 171 Conn. 198, 206–207, 368 A.2d 163(1976).
In the present case, our resolution of the plaintiff’s
challenge turns on the second of these two issues:15
‘‘whether the application of [the challenged] ordinance
to the plaintiffs’ property amounts to an unconstitu-
tional deprivation of their property without compensa-
tion. In this context, it has often been noted that the
police power, which regulates for the public good the
uses to which private property may be put and requires
no compensation, must be distinguished from the
power of eminent domain, which takes private property
for a public use and requires compensation to the
owner. . . . The difference is primarily one of degree,
and the amount of the owner’s loss is the basic criterion
for determining whether a purported exercise of the
police power is valid, or whether it amounts to a taking
necessitating the use of the power of eminent domain.
. . . A regulation which otherwise constitutes a valid
exercise of the police power may, as applied to a partic-
ular parcel of property, be confiscatory in that no rea-
sonable use may be made of the property and it becomes
of little or no value to the owner.’’ (Citations omitted;
internal quotation marks omitted.) Id., 210–11.
Whether the demolition of the plaintiff’s building in
this case was confiscatory ‘‘must be determined in the
light of [its] particular circumstances as they have been
shown to exist. . . . In regulating the use of land under
the police power, the maximum possible enrichment
of a particular landowner is not a controlling purpose.
. . . It is only when the regulation practically destroys
or greatly decreases the value of a specific piece of
property that relief may be granted, provided it pro-
motes substantial justice. . . . The extent of that depri-
vation must be considered in light of the evils which the
regulation is designed to prevent.’’ (Citations omitted;
internal quotation marks omitted.) Id., 211–12.
On the basis of our review of the record, we conclude
that the court properly determined, in light of the cir-
cumstances shown by the evidence presented at trial,
that demolition of the plaintiff’s building pursuant to
the defendant’s police power did not amount to a taking.
Lawson, Sr., testified that he purchased the subject
property for $65,000 in August, 2009, with a goal of
renting out eighteen apartment units. At the time of
trial, the plaintiff still owned the subject property.16
There was no testimony or other evidence indicating
that ‘‘no reasonable use may be made of the [subject]
property’’; (internal quotation marks omitted) id., 211;
such as evidence that the plaintiff was prevented from
rebuilding. In light of the dearth of evidence tending to
show that the defendant’s exercise of its police power
was unreasonable or confiscatory, the trial court prop-
erly concluded that there was no taking when it ruled
in the defendant’s favor on the plaintiff’s inverse con-
demnation claims in counts five and six.
IV
Next, the plaintiff claims that the court improperly
assigned it the burden of proof. In support of this claim,
the plaintiff argues that the burden of proof at an admin-
istrative hearing—of which the plaintiff was deprived
because of the emergent nature of the demolition—is
on the agency seeking to act. Because, the plaintiff
argues, the present action is a ‘‘substitute’’ for the
administrative hearing it should have received, the
defendant should have borne the burden of proof at
trial. Alleging various evidentiary shortcomings, the
plaintiff argues that the defendant did not carry its
burden. We conclude that the court properly assigned
the plaintiff the burden of proof.
‘‘When a party contests the burden of proof applied
by the trial court, the standard of review is de novo
because the matter is a question of law.’’ (Internal quota-
tion marks omitted.) Zabaneh v. Dan Beard Associates,
LLC, 105 Conn. App. 134, 142, 937 A.2d 706, cert. denied,
286 Conn. 916, 945 A.2d 979 (2008). ‘‘The general burden
of proof rests upon the plaintiff in civil actions. . . .
The defendant’s failure to present any evidence in con-
tradiction of that offered by the plaintiff gives no sup-
port to the claim that the truth of all the essential
allegations of the complaint was established. A plaintiff
prevails not by reason of the weakness of the defen-
dant’s case but because of the strength of his own.’’
(Internal quotation marks omitted.) Suresky v.
Sweedler, 140 Conn. App. 800, 807, 60 A.3d 358 (2013).
The plaintiff cites no supporting authority for its argu-
ment that the present action is a ‘‘substitute’’ adminis-
trative hearing rather than a plenary civil action. Cf.
Brown v. Hartford, supra, 160 Conn. App. 692 (§ 9-54
not unconstitutional despite its lack of administrative
appeal provision; aggrieved party may bring postdepri-
vation civil action). Accordingly, the cases cited by the
plaintiff noting that the burden of proof is on an agency
in an administrative action; e.g., Wisniowski v. Plan-
ning Commission, 37 Conn. App. 303, 655 A.2d 1146,
cert. denied, 233 Conn. 909, 658 A.2d 981 (1995); are
inapposite. We conclude that the court did not err when
it required the plaintiff to bear the burden of proof.
V
Finally, the plaintiff claims that the court erred when
it did not draw an inference in the plaintiff’s favor on
account of the defendant’s failure to preserve evidence
critical to the plaintiff’s case—namely, the defendant’s
demolition of the building without taking any measure-
ments or detailed photographs. We disagree.
‘‘In Beers v. Bayliner Marine Corp., 236 Conn. 769,
775, 675 A.2d 829 (1996), our Supreme Court adopt[ed]
the rule of the majority of the jurisdictions that have
addressed the issue [of spoliation of evidence] in a civil
context, which is that the trier of fact may draw an
inference from the intentional spoliation of evidence
that the destroyed evidence would have been unfavor-
able to the party that destroyed it. . . . To be entitled
to this inference, the victim of spoliation must prove
that: (1) the spoliation was intentional, in the sense that
it was purposeful, and not inadvertent; (2) the destroyed
evidence was relevant to the issue or matter for which
the party seeks the inference; and (3) he or she acted
with due diligence with respect to the spoliated evi-
dence. . . . [The court] emphasized that the adverse
inference is permissive, and not mandatory . . . .’’
(Emphasis in original; internal quotation marks omit-
ted.) Williams v. State, 124 Conn. App. 759, 767, 7 A.3d
385 (2010).
Contrary to the plaintiff’s argument that the court
‘‘should have drawn an inference that the missing evi-
dence would have disproved [the] defendant’s argu-
ments that the building was in imminent danger of
collapsing,’’ whether to draw an adverse inference was
left to the court’s discretion. The court was not obli-
gated to draw an adverse inference merely on the basis
of the defendant’s failure to take measurements and
photographs that the plaintiff deemed satisfactory. See
Williams v. State, supra, 124 Conn. App. 767 (‘‘even if
we assume, without deciding, that the plaintiff pro-
duced evidence sufficient to permit the [workers’ com-
pensation] commissioner to draw an adverse inference,
the decision as to whether or not to draw such an
inference was within the discretion of the commis-
sioner’’). There was sufficient evidence in the record,
in the form of Viens’ testimony regarding his predemoli-
tion assessment of the building and his determination
that it posed an imminent danger, to support the court’s
decision not to draw an adverse inference. We will not
second-guess the court’s assessment of Viens’ credibil-
ity. Accordingly, we reject the plaintiff’s claim that the
failure to draw an adverse inference was an abuse of dis-
cretion.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Because we conclude that the court properly determined that the plaintiff
did not establish a claim of municipal liability pursuant to 42 U.S.C. § 1983,
we need not consider its related claim on appeal that the court improperly
concluded that the defendant’s actions did not violate the plaintiff’s right
to due process.
2
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 . . . .’’
3
The court noted in its memorandum of decision that the order stated:
‘‘The Notice Violation/Emergency and Order to Abate indicates that ‘unsafe
structures and equipment [exist],’ ‘snow load has [a]ffected the stability of
the structure,’ and under actions necessary to abate violation(s): ‘City has
the permission from . . . owner to hire a demo contractor for emergency
measure—bill will follow after work complete’ . . . .’’
4
As a threshold matter, we consider whether we lack subject matter
jurisdiction over the appeal on the ground that the plaintiff’s claims are
moot because of its failure to challenge the trial court’s damages finding.
Pursuant to this court’s order of September 8, 2015, both parties filed supple-
mental briefs on September 23, 2015, addressing this issue.
‘‘Mootness raises the issue of a court’s subject matter jurisdiction and is
therefore appropriately considered even when not raised by one of the
parties. Mootness is a question of justiciability that must be determined
as a threshold matter because it implicates [this] court’s subject matter
jurisdiction . . . . In determining mootness, the dispositive question is
whether a successful appeal would benefit the plaintiff or defendant in
any way.’’ (Citations omitted; footnote omitted; internal quotation marks
omitted.) Lyon v. Jones, 291 Conn. 384, 392–94, 968 A.2d 416 (2009).
We raised the issue of mootness to consider whether the court’s finding
that the plaintiff failed to prove damages, which the plaintiff does not chal-
lenge, is an independent basis for the judgment, which would prevent this
court from providing practical relief on appeal. ‘‘In In re Jorden R., [293
Conn. 539, 979 A.2d 469 (2009)] our Supreme Court decided that where
alternative grounds found by the reviewing court and unchallenged on appeal
would support the trial court’s judgment, independent of some challenged
ground, the challenged ground that forms the basis of the appeal is moot
because the court on appeal could grant no practical relief to the complain-
ant.’’ (Citations omitted; internal quotation marks omitted.) Green v. Yankee
Gas Corp., 120 Conn. App. 804, 805, 993 A.2d 982 (2010). We conclude that
the court’s finding regarding damages did not independently support the
judgment because proof of actual damages was not a necessary element of
the plaintiff’s causes of action. Notwithstanding its failure to prove actual
damages, the plaintiff could have prevailed and received nominal damages.
‘‘The award of nominal damages is appropriate when there is a clear invasion
of a legal right . . . but no finding of a compensable injury.’’ Lyons v.
Nichols, 63 Conn. App. 761, 769, 778 A.2d 246, cert. denied, 258 Conn. 906,
782 A.2d 1244 (2001); see also D’Addario v. Viera, 8 Conn. App. 152, 152–53,
510 A.2d 1382 (1986) (affirming judgment for plaintiff awarding him one
dollar where plaintiff established defendant’s liability but did not present
sufficient proof of damages). The plaintiff’s claims, therefore, are not moot,
and we have subject matter jurisdiction over the appeal.
5
Relatedly, the plaintiff argues that the court’s erroneous finding that
Viens was a certified building inspector is ‘‘significant’’ in light of its finding
that neither Lawson, Sr., nor Lawson, Jr., was an engineer or a licensed
building inspector. Again, we disagree. Because there was evidence to sup-
port the court’s finding regarding Viens’ credentials, its findings with respect
to other individuals’ qualifications do not undermine that finding.
6
The court did not, as the plaintiff suggests, make its own determination
that the roof had collapsed.
7
We do not read the court’s memorandum of decision to indicate that
the court itself found a causal relationship between a roof collapse and
cracks and/or bowing. On the contrary, the court found that Viens, in deciding
to order the building’s demolition, determined that the collapse caused
cracks and bowing.
8
Because we conclude that the court correctly determined that the plain-
tiff failed to establish a basis for municipal liability pursuant to § 1983, we
need not consider the plaintiff’s specific claims of constitutional depriva-
tions. Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 103 L. Ed. 2d
412 (1989) (‘‘our first inquiry in any case alleging municipal liability under
§ 1983 is . . . whether there is a direct causal link between a municipal
policy or custom and the alleged constitutional deprivation’’).
9
Section 9-54 of the Hartford Municipal Code provides: ‘‘If, in the opinion
of the Director of Licenses and Inspections, there exists actual and immedi-
ate danger of the falling 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. He may further, by and with the approval and assistance
of the director of public works, when necessary for the public safety, tempo-
rarily close the sidewalks and streets adjacent to such building or part
thereof. The department of police, when called upon by the director to do
so, shall enforce such orders.’’
10
Section 116.4 of the State Building Code provides: ‘‘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.’’
‘‘The State Building Code . . . shall be the building code for all towns,
cities and boroughs.’’ General Statutes § 29-253 (a).
11
‘‘[T]he construction of a judgment is a question of law for the court
. . . .’’ (Citation omitted; internal quotation marks omitted.) Chapman Lum-
ber, Inc. v. Tager, 288 Conn. 69, 91, 952 A.2d 1 (2008).
12
The court made no findings of fact as to the correctness of Viens’
determination that the building should be demolished because it posed an
immediate danger. In any event, we note that ‘‘to hold [a] municipality liable
[under § 1983], the agent’s actions must implement rather than frustrate the
government’s policy.’’ (Internal quotation marks omitted.) Roe v. Waterbury,
542 F.3d 31, 37 (2d Cir. 2008), cert. denied, 558 U.S. 933, 130 S. Ct. 95, 175
L. Ed. 2d 234 (2009).
13
We recently held that § 9-54 of the municipal code is constitutional.
Brown v. Hartford, 160 Conn. App. 677, 692, A.3d , cert. denied, 320
Conn. 911, A.3d (2015).
14
‘‘Article first, § 11, of the constitution of Connecticut provides: ‘The
property of no person shall be taken for public use, without just compensa-
tion therefor.’ The fifth amendment to the United States constitution provides
in relevant part: ‘[P]rivate property [shall not] be taken for public use,
without just compensation.’ The takings clause of the fifth amendment is
applicable to the states through the due process clause of the fourteenth
amendment. See, e.g., Palazzolo v. Rhode Island, 533 U.S. 606, 617, 121 S.
Ct. 2448, 150 L. Ed. 2d 592 (2001); Darien v. Estate of D’Addario, 258 Conn.
663, 665 n.3, 784 A.2d 337 (2001).’’ Bristol v. Tilcon Minerals, Inc., supra,
284 Conn. 83 n.20. Our Supreme Court has applied the same analysis both
to federal and state claims of inverse condemnation. See Bauer v. Waste
Management of Connecticut, Inc., 234 Conn. 221, 250 n.16, 662 A.2d 1179(1995).
15
The defendant does not challenge whether the object of the legislation
falls within the police power. To fall within the police power the regulation
must have a reasonable relation to the public safety, health, morality, or
welfare. Figarsky v. Historic District Commission, supra, 171 Conn. 206–
207. The provisions at issue in this case, namely, provisions of the municipal
and state building codes addressed to unsafe buildings, clearly are reason-
ably related to public safety, and thus fall within the scope of the police
power. Furthermore, the enabling statute grants municipalities ‘‘the power
to . . . (7) (A) (iii) . . . cause the removal and demolition of unsafe build-
ings and structures . . . .’’ General Statutes § 7-148 (c).
16
Lawson, Jr., testified that the land contained ‘‘grass [and] sawdust.’’ At
the completion of demolition, the construction company hired for the task
had ‘‘sunk a lot of the debris into the basement of the building and [thrown]
a layer of dirt on the top of it’’ instead of clearing the debris from the
property. There was no testimony as to what effect, if any, the buried debris
would have had on the plaintiff’s future use of the property.