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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 defendant citation hearing officer for the defendant city of Middletown upholding 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 provides that there is no right to a hearing before a jury in such circumstances.

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 constitutional 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, rendered judgment denying the petition, from which the

plaintiff appealed to this court. Affirmed.

George Berka, self-represented, the appellant (plaintiff).

Brig Smith, general counsel, for the appellees (defendants).
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 (property). 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 ‘‘seriously damaged,’’ (8) the outside structural walls of his

home were watertight, (9) there was no garbage, rubbish, 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 January 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 violations.5 The court explained that it had ‘‘carefully considered Ford’s testimony and thoroughly reviewed the

[inspection] photographs,’’ and that it found that six

violations existed on, and the fines accrued from, February 14, 2018, through March 27, 2018. The court calculated 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 support 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 Superior 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 Rutkowska 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 conceded 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 Examiners 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 arguments. 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 discretion 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 objection 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 citation 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 original 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 amendments 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 assessment 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 pleadings 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 ‘‘seriously 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 determination of the trier of fact. . . . In reviewing factual findings, [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-ACover, 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] watertight, 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 petition.

‘‘(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.