Gartrell v. City of Hartford, 190 A.3d 904, 182 Conn. App. 526 (2018)

June 12, 2018 · Connecticut Appellate Court · AC 39687
190 A.3d 904, 182 Conn. App. 526

Joseph GARTRELL, et al.
v.
CITY OF HARTFORD, et al.

AC 39687

Appellate Court of Connecticut.

Argued January 25, 2018
Officially released June 12, 2018

*905John R. Williams, for the appellants (plaintiffs).

Demar G. Osbourne, assistant corporation counsel, for the appellee (named defendant).

Alvord, Keller and Bright, Js.

ALVORD, J.

*528The plaintiffs, Joseph Gartrell, 481 Albany Avenue, and Wonder Package, LLC, appeal from the judgment of the trial court granting the motion for a directed verdict in favor of the defendant city of Hartford (city).1 The plaintiffs claim that the trial court erred in directing a verdict for the city on the basis of the jury's answer to a single interrogatory. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The plaintiffs owned a mixed-use commercial and residential building located at 481 Albany Avenue in Hartford (building). The first floor of the building was occupied by a liquor store, which was owned by Gartrell, and a delicatessen, and the second and third floors consisted of two units each of residential apartments.

On Saturday, February 12, 2011, at 6:15 a.m., a nonresident who was present in the building started a fire on the third floor, using gasoline as an accelerant. The Hartford Fire Department (department) responded, and Gregory Simon, an officer with the department, authorized firefighters to enter the building. Firefighters had been alerted that a person was unaccounted for and that he was suspected to be in the third floor "left-hand apartment."2 Firefighters attempted to reach the third floor but were forced back by "heavy fire" they encountered in the stairwell leading to the third floor. The fire *529engulfed structural members supporting the roof, which caused Simon concern that the roof was compromised. Simon also was aware that the building had heavy snow on the roof, which, combined with "the deteriorating roof members," caused "concern for imminent collapse." The third floor of the building became "fully involved," and the fire also started to envelop the second floor. One side of the building began to *906bow outward. As a result of the heavy fire, the department's safety officer, after consulting with the chief, ordered Simon's team to withdraw from the building, and a second team extinguished the fire from another location. Michael Fuschi, the Hartford building official, inspected the building on the day of the fire and determined that the roof rafters could "no longer support the original load by design." Temporary shoring was installed in order to permit officials to conduct their investigation.

Gartrell's commercial tenant called him on the morning of the fire and told him that the building was burning. Gartrell lived in Bloomfield and was ill at the time. He was not able to drive and did not go to the building until two days after he learned of the fire.

Also on the day of the fire, the city issued to Gartrell a notice of violation stating that the building had been deemed unsafe due to fire. The notice stated that the city's inspector would hire a contractor to board up the building, and a bill would follow. It directed Gartrell to "make building safe or demolish building." Gartrell received and counter-signed the notice on February 14, 2011, the same day that Gartrell first went to the building after the fire. Gartrell had gone to the building to meet with a representative from his insurance company. The police initially did not permit Gartrell to enter the building but he later entered the building and looked up the stairs. While Gartrell was at the building, a representative of the city told him that they would board up the *530building. At some point after the fire and before the demolition, Gartrell spoke with a carpenter named Benjamin Brown about fixing the building, but Gartrell needed time for his insurance company to estimate the job, and neither Brown nor Gartrell had made any preparations or requested any permits to repair the building.

On the basis of his investigation, Fuschi had concluded by February 18, 2011, that under § 116.4 of the State Building Code,3 imminent danger requiring immediate action existed, and he ordered the building to be demolished. On February 18, 2011, the city issued a second notice, signed by Fuschi, which stated: "[B]uilding to be demolished. Building poses imminent danger to public." Gartrell did not receive or counter-sign the second notice. The city retained Environmental Services, Inc., to demolish the building. Demolition began on February 19, 2011, and was completed on March 3, 2011.

The plaintiffs commenced the present action in February, 2013. In their operative complaint, the plaintiffs alleged in two counts against the city that, inter alia, the city violated §§ 115.3 and 116 of the State Building Code and General Statutes §§ 49-73b and 49-34, in that it failed to provide the plaintiffs with notice describing the conditions deemed unsafe, failed to specify the required repairs, and failed to provide adequate notice that the building would be demolished within a stipulated time. The plaintiffs further alleged that the city *531deprived them of due process of law by preventing them from accessing the building and retrieving its contents.4 *907At trial, the plaintiffs presented the testimony of Gartrell and Debra Nails, a tenant of the building. After the plaintiffs rested, the city moved for a directed verdict, arguing that the plaintiffs had not "carried the burden of proof with respect to showing that the city did not act under an emergency," and that the plaintiffs "offered no evidence whatsoever as to whether the plaintiff[s] [were] going to expeditiously render the premises safe." The plaintiffs' counsel objected, arguing that there were "substantial issues of negligence" and that the city officials needed to testify as to the issue of whether the city was justified in making the decision to demolish the building so quickly.5 The court reserved decision *532on the motion. The city then presented the testimony of Simon and Fuschi, and the plaintiffs recalled Gartrell in rebuttal. After the close of evidence, the city renewed its motion for a directed verdict, arguing that the plaintiffs had presented no evidence to challenge the city's evidence of an emergency. The plaintiffs' counsel objected, arguing that there was sufficient evidence, in the form of Gartrell's testimony that the building *908was not badly damaged, to present the issue to the jury. The court again reserved decision, and then stated: "All right. I'm going to follow the procedure that I discussed with you folks. Which means we will ask-provide the jury with this one interrogatory. And so we will have closing arguments and then charges on this issue." The city's counsel inquired of the court whether the jury would see the interrogatory before or after closing arguments, and the following exchange occurred:

"The Court: They will go in with an instruction from me.

"[The City 's Counsel]: Before or-*533"The Court: You're allowed to say to them-you're allowed to argue that to them.... And I will help you out-both out by telling the jury that I am going to ask this question of them first. And then you'll be able to start your very short, abbreviated closing argument on this issue. And then back to [the city's counsel], and then back to [the plaintiffs' counsel], just as if we were doing a regular closing argument. I will give them a short charge on this. And give them that instruction. Okay?

"[The City's Counsel]: And the defendant first? And plaintiff last? I believe that's the order, unless I'm mistaken.

"The Court: It's plaintiff, defendant, plaintiff. Okay?

"[The City's Counsel]: Yes, sir.

"The Court: And one issue.

"[The City's Counsel]: Yes, sir.

"The Court: And we all understand. It's what we discussed earlier. Okay?

"[The City's Counsel]: Yes, sir."

The court then directed the clerk to bring the jury into the courtroom and addressed the jury as follows: "All right. So sometimes cases don't go exactly the way they do on television. This case has sort of been like that. There's been some delays. We're also going to do something different on this case. Normally at this point in time we would have closing arguments, I would charge you, you would make a decision. We're not going to do that. We're going to do something different. And that is, we are going to have abbreviated closing arguments and an abbreviated charge. And I'm going to send in an interrogatory that will ask you to answer one question. So you will, like any other jury, you will pick your foreperson. And you will look at the exhibits. You will have deliberations. And you will sign and answer the interrogatory, which will require you to answer a *534question, yes or no. Okay? And because of certain laws in the state of Connecticut, I will then make some decisions. It is possible that there will be more work for you. It is possible that there will not be more work for you. I can't tell you that at the moment. But I need for you to answer questions for me as the fact finders. Okay. So that's what we're going to do. A little bit different than other cases. But that's okay. You are performing the role as the fact finder. Okay. I'm going to tell you what the question is. They're going to argue to you evidence based upon that and how they believe you should rule. But I'm going to tell you right now, so there's going to be no mystery here. Here's the question: Do you find that the evidence in this case-I'm sorry, let me restart. Do you find pursuant to the evidence in this case that the city and its agents and officials could believe that an imminent danger or emergency existed, allowing it to demolish the plaintiffs' building? That's the question. And you're going to have this in there with you. So, knowing the question, we're going to have closing arguments, and then I'm going to give you some instructions that I would give to any jury. Unfortunately, you may say, Judge Berger, I don't need all of your instructions to answer this question, but I feel like I should at least give you most of those instructions. *909So that will take a little bit of time. But we're going to start with plaintiffs' counsel on argument of evidence as to this question." The plaintiffs' counsel then replied: "Thank you, Your Honor." The court responded: "You bet."

The plaintiffs' counsel then began the plaintiffs' closing argument. She addressed the jury by stating: "As the judge instructs you, we are going to argue in the closing arguments about a limited issue of whether you feel that the city acted under emergency circumstances and whether those, that emergency imminent danger, justified the decision to demolish the building." After closing arguments, the court instructed the jury, in part:

*535"My task is only to apply the rules of evidence and to instruct you on the law. It is for you to decide the question that we will be giving you. Again, it's your duty to follow those instructions and to conscientiously apply the law as I give it to you, so that you can decide that question."6 At the end of its charge, the court stated: "Okay. So what will happen now? I will go over this interrogatory again. We call it a question to the jury, an interrogatory to the jury, and as I've indicated, I need you to answer this question for me: Do you find pursuant to the evidence in this case that the city and its agents and officials could believe that an imminent danger or emergency existed, allowing it to demolish the plaintiffs' building? Either yes or no, and the foreperson would sign it."

The court inquired of counsel whether they had any exceptions to its charge, and both counsel responded that they did not. The jury then retired for deliberations. After further deliberations the next morning, the jury answered the interrogatory in the affirmative. After accepting and recording the jury's answer, the court addressed counsel and stated that it would return to the city's motion for a directed verdict. The court asked counsel whether there was "anything you would like to say in furtherance of that," to which both the plaintiffs' counsel and the city's counsel responded: "No, Your Honor." The court then issued the following oral ruling: "All right. In light of both the decision in Brown v. Hartford , 160 Conn. App. 677, [127 A.3d 278, cert. denied, 320 Conn. 911, 128 A.3d 954 (2015) ], and in *536light of our governmental immunity [statute], [ General Statutes §] 52-557n, the verdict is directed in this case, which means that the city defendant has won this case. There is nothing more to deliberate in this case because of that finding, because, as I say, the Appellate Court's recent decision in 2015 and, of course, in light of § 52-557n, which was the hurdle I had spoken to you all about before. So with that, I'm going to bring the jury out, discharge them, and this case is over. Okay? Thank you."7 This appeal followed. *910The plaintiffs' sole claim on appeal is that the trial court erred in directing a verdict in favor of the city "after the jury answered the single interrogatory submitted to it." Specifically, the plaintiffs claim that "[t]he court's direction of a verdict in this case was plainly erroneous because the jury interrogatory did not permit such a ruling. Had the jury concluded that the defendant had proved that the city of Hartford, through its agents, actually did believe that an imminent danger or emergency existed, the court would have been correct in directing a verdict." (Emphasis in original.) In other words, the plaintiffs' only contention on appeal is that in order to permit the court to render a directed verdict in this action on the basis of a jury interrogatory, the interrogatory would have been required to ask the jury to find "whether the defendant had proved that it actually did believe that an imminent danger or emergency existed," not "whether it was a belief that could have *537been held."8 (Emphasis in original.) We conclude that the plaintiffs' claim was not properly preserved for appellate review, and, accordingly, we decline to address it.

"Our appellate courts, as a general practice, will not review claims made for the first time on appeal.... [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." (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). "The purpose of our preservation requirements is to ensure fair notice of a party's claims to both the trial court and opposing parties." White v. Mazda Motor of America, Inc. , 313 Conn. 610, 620, 99 A.3d 1079 (2014). "These requirements are not simply formalities. They serve to alert the trial court to potential error while there is still time for the court to act." (Internal quotation marks omitted.) Great Country Bank v. Ogalin , 168 Conn. App. 783, 802, 148 A.3d 218 (2016). "The reason for the rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial-after it is too late for the trial court or the opposing party to address the claim-would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party." (Internal quotation marks omitted.) McMahon v. Middletown , 181 Conn. App. 68, 76, 186 A.3d 58 (2018).

Having thoroughly reviewed the transcripts,9 we conclude that the plaintiffs failed to preserve their argument that the jury interrogatory, as written, did not permit the court to render a directed verdict because *538they failed to raise the issue to the trial court on the record, either before or after the jury was charged, or as a basis for denying the city's motion for a directed verdict. See Mokonnen v. Pro Park, Inc. , 113 Conn. App. 765, 770-71, 968 A.2d 916 (2009) ("[w]e may presume from the plaintiff's repeated failure to object to the interrogatories that he agreed to their content and their submission to the jury"). The plaintiffs conceded at oral argument before this court that the record reveals that the trial court had met with counsel in chambers and explained the procedure it planned to follow, and that the trial court, *911in fact, did follow the procedure discussed. The court referenced that conversation on the record but outside the presence of the jury on September 22, 2016, when it stated: "I'm going to follow the procedure that I discussed with you folks. Which means we will ask-provide the jury with this one interrogatory." Neither the parties nor the court described with any detail the conversation that occurred off the record. Thus, the record is silent, and this court is left to speculate, as to who might have proposed and drafted the interrogatory and whether any party had expressed during that conversation any disagreement either with the interrogatory or the court's procedure.

Over the course of two days, the plaintiffs' counsel had ample opportunity to object to the court's procedure, and, rather than object, the plaintiffs' counsel acquiesced in that procedure. First, after the jury returned to the courtroom on September 22, the court began its instruction by informing the jury that they were "going to do something different on this case" and that the jury would be asked to answer one question. It then explained that "because of certain laws in the state of Connecticut, I will then make some decisions. It is possible that there will be more work for you. It is possible that there will not be more work for you." After reading the interrogatory to the jury, the court told the jury that closing arguments "as to this question"

*539would begin with the plaintiffs' counsel, who responded by thanking the court rather than objecting.

Second, the plaintiffs' counsel not only referenced the interrogatory in her closing argument, but also failed to articulate the question properly herself, stating that counsel would be arguing the "limited issue of whether you feel that the city acted under emergency circumstances and whether those, that emergency imminent danger, justified the decision to demolish the building." (Emphasis added.) Later in her argument, she used similar language to that now challenged on appeal, arguing: "We did not hear enough information that justified that there was an emergency that would cause them to bypass all of the due process, all of the statutes, all of the different-safeguards that are there to protect someone's property. There's no evidence showing that they could-could have exercised that discretion without the abuse of power. And I would like you to consider that when you answer that question as to whether it was imminent, whether the city had authority to justify the degradation of property." (Emphasis added.)

Third, after closing arguments, the court further instructed the jury, referencing the interrogatory throughout. Upon completion of its instruction, the court specifically asked whether counsel had any exceptions to its charge, and the plaintiffs' counsel replied: "No, Your Honor." See West Haven Sound Development Corp. v. West Haven , 207 Conn. 308, 317, 541 A.2d 858 (1988) (declining to review unpreserved claim of allegedly erroneous jury interrogatories where interrogatories were read to jury during court's charge, trial court invited exceptions, and "[a]gain, the plaintiff allowed an opportunity for preserving this alleged claim of error to pass"); Mokonnen v. Pro Park, Inc. , supra, 113 Conn. App. at 770, 968 A.2d 916 (holding that claim that jury interrogatories were erroneous was not preserved for appeal, in part, where despite trial court reading interrogatories to jury during its charge and inviting exceptions *540from parties, neither party took exception).10 Finally, the next morning, *912after the jury had answered the interrogatory in the affirmative and the court had indicated its intention to return to the city's motion for a directed verdict, the court asked counsel whether there was "anything you would like to say in furtherance of that," to which both the plaintiffs' counsel and the city's counsel responded: "No, Your Honor."

Because the plaintiffs concededly were aware of the procedure the court planned to, and did, follow, and the record reveals that the plaintiffs made no claim before the trial court that the jury's answer to the interrogatory, as written, did not permit the court to render a directed verdict, we conclude that the plaintiffs failed to preserve their claim for our review.11

*913For these reasons, we decline to review the plaintiffs' claim.

The judgment is affirmed.

In this opinion the other judges concurred.