Russell v. City of New Bedford, 08-P-441.

Decision Date29 July 2009
Docket NumberNo. 08-P-441.,08-P-441.
CourtAppeals Court of Massachusetts



The defendant, the city of New Bedford (city), appeals from a judgment in favor of the plaintiff on his claims, brought under the provisions of G.L. c. 258, § 2, and 42 U.S.C. § 1983 (1994 & Supp. III 1997), that the city unlawfully demolished two buildings he owned.1 In particular, the city claims that there was insufficient evidence to support verdicts of negligence and civil rights violations. The city next claims that the trial judge abused his discretion by allowing opinion testimony about the future value of the property. The city also claims error in the calculation of prejudgment interest.2 For the reasons that follow, we affirm the judgment as to liability on the negligence claims, vacate the judgment as to damages on the negligence claims, and order a remand for the reassessment of damages on those claims, and we reverse the judgment as to the civil rights claims.

Background. At the time the buildings were demolished in December, 1998, Mark Andrews was the record owner at the registry of deeds and on the city tax rolls. Andrews bought the property at 9-11 Penniman Street in 1996 with financing secured by a mortgage to the plaintiff. In 1997, Andrews delivered a deed in lieu of foreclosure to the plaintiff, but the plaintiff did not record the deed. The city targeted the buildings for demolition3 and, on April 13, 1998, sent a notice, by certified mail, to Andrews at the address on file at the city assessor's office, stating that the buildings were a hazard and could be removed if he did not make the structures safe by noon the day following receipt of the letter.4 The letter was returned stamped, "attempted, not known." On June 30, 1998, notice was given by the city to the New Bedford Historical Commission (historical commission) that one of the two buildings was slated for demolition.5 Another notice from the city's survey board was sent to Andrews regarding the potential demolition of both buildings on July 28 1998.6 On a list of several buildings proposed for demolition, one of the buildings in question, number nine, appeared; this list was first approved by the historical commission, then approved by the city council and mayor in August and September, 1998, respectively.7

In October, 1998, Judith McMullen, a real estate broker and the plaintiff's daughter, gave to the city's building commissioner (commissioner) a letter, signed by Andrews and the plaintiff, authorizing the city to communicate with McMullen about the properties and stating that she was acting on their behalf. McMullen sent a letter to the commissioner describing the plaintiff's intent to rehabilitate the buildings and requesting that they not be demolished. The commissioner informed McMullen that her submission was insufficient and that a report from a structural engineer was required. McMullen obtained such a report and hand-delivered it to the building department on December 8, 1998. The buildings were demolished on December 31, 1998.

The plaintiff filed a two-count complaint against the city alleging negligence and due process violations under 42 U.S.C. § 1983. On special questions, the jury found for the plaintiff on both counts.

Discussion. a. Negligence. There was sufficient evidence that the city negligently demolished the plaintiff's two buildings8; the city all but conceded this at oral argument here.9 Even apart from rather glaring omissions in the demolition approval process,10 the city's negligence can be inferred from the facts that it had actual notice of the plaintiff's interest as true owner prior to demolition and of efforts being taken to satisfy the commissioner's requirements in order to delay or remove the property from the demolition list until the owner had a chance to rehabilitate it. In addition, the statutory provision giving the city the right to demolish a building after notice and the completion of the survey board's report11 provides, "[i]f such report declares such structure to be dangerous ... and if the owner ... continues such refusal or neglect, the local inspector shall cause it to be made safe or taken down." G.L. c. 143, § 9, as amended through St.1972, c. 802, § 25. There is ample evidence in the record that the commissioner had actual notice that the owner was not continuing to refuse to repair the property, but was in the repair process when the buildings were demolished. Lastly, it is worth noting that the commissioner conceded in his testimony that the plaintiff's authorized agent, McMullen, submitted the report from a structural engineer that the commissioner had requested. He also conceded that this report was likely sufficient to take the buildings off the demolition list and he could not explain why they were demolished just weeks later b. Civil rights. The second count of the plaintiff's complaint against the city was brought, pursuant to the provisions of 42 U.S.C. § 1983, for deprivation of his civil rights.12 The plaintiff does not argue that it was wrong initially to have targeted these buildings for demolition. Rather, he contends that, once the city decided to tear down the buildings, the commissioner failed not only to follow State law in providing adequate notice, but that he failed also to provide and follow due process to allow a building to be removed from that list.13

The city argues that the verdict cannot stand14 because there was insufficient evidence to support the plaintiff's civil rights count, specifically contending that the evidence was insufficient to support the judge's preliminary ruling that the commissioner was an official with final decision or policy-making authority for whose unconstitutional acts and decisions the city would be liable. This ruling, which the city claims as error, served as the linchpin to the judge's denial of the city's motion for directed verdict and the jury instruction on municipal civil rights liability.

In denying the city's motion for directed verdict, and then in his instructions to the jury, the judge relied on Pembaur v. Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), and St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). The judge made a threshold ruling that, as matter of law, the commissioner is the final decision maker, for whose actions the city is responsible. It seems that the judge based his decision solely upon a letter from another city department. The city complains that the evidence upon which the judge made this ruling was inadequate, as matter of law. We agree.

The city relies upon Monell v. Department of Social Servs. of the City of N.Y., 436 U.S. 658, 691-692, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), for support. In Monell, the United States Supreme Court first held that, under § 1983, local government units were "persons" and that a municipality could be sued based on wrongs caused through "a policy statement, ordinance, regulation, or decision officially adopted and promulgated" by that municipality. Id. at 690. Monell, however, "unquestionably involve[d] official policy," id. at 694, 98 S.Ct. 2018, and "the full contours of municipal liability" remained largely untouched. Id. at 695, 98 S.Ct. 2018. The Monell Court did state, however, that a municipality could be held liable when its "lawmakers or ... those whose edicts or acts may fairly be said to represent official policy" cause constitutional harm. Id. at 694, 98 S.Ct. 2018.

To be clear, the plaintiff recognizes that municipal liability cannot be based upon a theory of respondeat superior, and he concedes that his case is not based upon an official policy, custom, or practice; rather, he contends that the commissioner was high enough in the city's administration to be considered a final decision or policy maker whose decisions and actions would bind the city under § 1983.15 The plaintiff relies, as did the trial judge in making his rulings, on this theory of liability, foreshadowed by Monell and as interpreted by Pembaur and St. Louis.

St. Louis further defined the contours of municipal liability stating, "an unconstitutional governmental policy could be inferred from a single decision taken by the highest officials responsible for setting policy in that area of the government's business." St. Louis, supra at 123, 108 S.Ct. 915. See Pembaur, supra at 480, 106 S.Ct. 1292 ("municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances"). One of the appropriate circumstances is where "the decision maker possesses final authority to establish municipal policy with respect to the action ordered," id. at 481, 106 S.Ct. 1292, which "may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority, and of course, whether an official had final policymaking authority is a question of state law." Id. at 483, 106 S.Ct. 1292. However, as the Supreme Court identified the sources where a judge should look to determine the sufficiency of this theory of liability, it becomes clear that the plaintiff failed to produce adequate evidence for the judge to make this ruling.

First, according to St. Louis, State law could "include valid local ordinances and regulations" that "will always direct a court to some official or body that has the responsibility for making law or setting policy in any given area of a local government's business." St. Louis, 485 U.S. at 125, 108 S.Ct. 915. Critically, for the instant plaintiff, the Court said that "a federal court would not be justified in assuming that municipal policymaking authority lies somewhere other than where the...

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