Commissioner of Motor Vehicles v. DeMilo and Co., Inc.

• Decision Date: 23 May 1995
• Docket Number: No. 15136,15136
• Citation: 233 Conn. 254,659 A.2d 148
• Court: Connecticut Supreme Court
• Parties: COMMISSIONER OF MOTOR VEHICLES v. DeMILO AND COMPANY, INC.

Page 148

659 A.2d 148

233 Conn. 254

COMMISSIONER OF MOTOR VEHICLES v. DeMILO AND COMPANY, INC.

No. 15136.

Supreme Court of Connecticut.

Argued Feb. 8, 1995.

Decided May 23, 1995.

Daniel Shepro, Bridgeport, for appellant (defendant).

Lawrence G. Widem, Asst. Atty. Gen., with whom, on the brief, was Richard Blumenthal, Atty. Gen., for appellee (plaintiff).

Before PETERS, C.J., and CALLAHAN, BORDEN, NORCOTT and KATZ, JJ.

CALLAHAN, Associate Justice.

The principal question in this appeal is the extent to which a trial court judgment, the appeal from which was dismissed as moot, can later be enforced by the party that initially had prevailed. The defendant, DeMilo and Company, Inc. (DeMilo), appeals from the judgment of the trial court, Hon. David M. Shea, state trial referee, ¹ which concluded that: (1) the plaintiff, the commissioner of motor vehicles (commissioner), could recover from DeMilo, pursuant to General Statutes § 14-67v, ² the cost of remediating the conditions that a previous court had found constituted a public nuisance on DeMilo's property; and (2) the commissioner was entitled to foreclose on a mortgage on its real estate that had been given by DeMilo to secure a bond to cover the cost of the abatement of the public nuisance. We affirm the judgment of the trial court.

The relevant facts essentially are undisputed. Since 1975, DeMilo has owned and operated a motor vehicle junkyard and parts business in Hartford. On August 1, 1985, the department of transportation (transportation) acquired, by eminent domain, a portion of DeMilo's land. That land consisted of the southeasterly corner of DeMilo's rectangularly shaped parcel, as well as some adjoining land leased by DeMilo from the Barilla family, on which DeMilo had stored some of its junked vehicles. The land had been acquired by transportation in order to construct a new service road, now known as Liebert Road, in connection with the transportation's reconstruction of Interstate 91. Because the property acquired by transportation contained many junked vehicles and automobile parts, transportation was inhibited from going forward with its construction plans.

In connection with its acquisition of DeMilo's land, transportation requested that the commissioner of motor vehicles investigate whether DeMilo was in compliance with the department of motor vehicle's (motor vehicles) regulations regarding automobile junkyards. In August, 1986, inspectors from motor vehicles visited the property and found numerous violations of the motor vehicle regulations. After an administrative hearing, an adjudicator for motor vehicles concluded that DeMilo was in violation of General Statutes § 14-67r, and the Regulations of Connecticut State Agencies regarding motor vehicle junkyards, §§ 14-67q-4, 14-67q-6, 14-67q-7, 14-67q-8 and 14-67q-10. ³ The violations included: the lack of proper fencing around the licensed junkyard area; the stacking of motor vehicles at a height greater than allowed; a licensed junkyard area filled beyond the 80 percent maximum; and the location of salvage motor vehicles outside the licensed junkyard area. The adjudicator suspended DeMilo's junkyard license and imposed a civil penalty of $1000 on DeMilo.

On February 17, 1987, DeMilo appealed from the administrative decision to the Superior Court. DeMilo claimed that the decision was arbitrary, unreasonable and an abuse of discretion in that: (1) the commissioner had selectively enforced motor vehicles' regulations thereby violating DeMilo's right to equal protection; (2) § 14-67r had been illegally applied; (3) the statute empowering the commissioner to promulgate regulations was unconstitutionally vague; (4) the commissioner had exceeded his authority in promulgating regulations; and (5) the commissioner was estopped from enforcing the regulations because he had known about the violations for some time before instituting an action. The dismissal of DeMilo's appeal by the trial court, Susco, J., is the subject of another case decided this same date. See DeMilo & Co. v. Commissioner of Motor Vehicles, 233 Conn. 281, 659 A.2d 162 (1995).

Subsequently, on February 26, 1987, the commissioner brought an action, pursuant to § 14-67v, ⁴ to enjoin DeMilo from operating or maintaining a motor vehicle junkyard in violation of motor vehicles regulations. ⁵ After a hearing held that same day, a temporary injunction was issued by the court, Aronson, J., ordering DeMilo immediately to "take steps to remove all unregistered motor vehicles, used parts, tires and other materials ... from the property outside its fenced- motor vehicle junkyard location...." The court also scheduled further hearings to be held on the application.

DeMilo made the same claims as special defenses to the commissioner's application for an injunction as those it had advanced in its appeal in the administrative action before Judge Susco, i.e., selective enforcement of the regulations, illegal application of § 14-67r, vagueness of the regulations, the commissioner's exceeding his authority in promulgating the regulations and estoppel. DeMilo stipulated, however, that not all of the violations that had existed at the time of the administrative hearing before the motor vehicles adjudicator had been abated. After a plenary hearing on motor vehicles' application for an injunction, the court, Ripley, J., concluded that DeMilo had violated various statutes and regulations and had created a public nuisance in violation of § 14-67v. The court found, among other things, that DeMilo was conducting motor vehicle junkyard operations outside the area licensed by motor vehicles for such use. The court also rejected each of DeMilo's special defenses.

As a result, the court rendered a judgment ordering that the commissioner be "authorized to immediately enter the unlicensed areas ... to immediately eliminate, at the expense of the defendant, the conditions which constitute the violation...." The court further ordered that DeMilo "immediately post a bond with the Court in the amount of One Hundred Thousand Dollars ($100,000.00) to cover the cost of immediately eliminating the conditions which constitute the violation...."

On June 10, 1987, two days after the court's judgment had been rendered, transportation, acting as the agent of the commissioner of motor vehicles, began the removal of junked vehicles and other debris from the unlicensed areas of DeMilo's land pursuant to the court's order. By June 18, 1987, two large piles of the removed material had been accumulated on a temporary nearby site owned by the city of Hartford. Transportation then resumed work on its original project of reconstructing Interstate 91, and, with the permission of the city, left the accumulated piles of debris on the city's property. DeMilo complied with the provision of the court order requiring it to post a bond of $100,000 to cover the cost of remedying the violations. On September 9, 1987, DeMilo posted the bond, secured by a mortgage on its remaining Hartford property. The condition of the bond was that DeMilo pay to the state "the just and full sum to comply with the referenced court order."

On March 30, 1988, the commissioner contracted with Essex Auto Salvage, Inc., to remove the piles of junked vehicles and debris from the city's property. The work was completed between April 11 and 28, 1988. The commissioner billed DeMilo for the cost of the April, 1988 removal. DeMilo has refused to compensate the state for that cost.

Before the April, 1988 removal work had commenced, DeMilo appealed from the judgment rendered by Judge Ripley to the Appellate Court, claiming that the trial court improperly had: (1) concluded that the condition of its property constituted a public nuisance; (2) authorized the commissioner to "crush and destroy" the junked vehicles rather than simply remove them; (3) concluded that DeMilo had violated General Statutes § 14-67i; ⁶ and (4) concluded that violations existed on areas unlicensed by motor vehicles for a motor vehicle junkyard business. After a hearing, on February 4, 1988, the Appellate Court, sua sponte, dismissed the appeal as moot. We denied DeMilo's petition for certification for review of the Appellate Court's dismissal. Commissioner of Motor Vehicles v. DeMilo & Co., 207 Conn. 809, 541 A.2d 1238 (1988). Our denial occurred after the commissioner had represented to this court, in its opposition to the petition for certification, that the order contained in the judgment on appeal had been almost completely executed, in that the junked vehicles and other debris had been removed from the unlicensed areas. Further, the commissioner represented that DeMilo had not requested any practical relief from the order, nor could the court furnish any.

On January 19, 1989, the commissioner brought this action in the Superior Court to enforce Judge Ripley's order. The complaint alleged that the commissioner had complied with the order by having a contractor dispose of the junked vehicles and other debris on the unlicensed property. In count one of the complaint, the commissioner requested monetary damages because DeMilo had failed to reimburse him for the expense of abating the public nuisance, as ordered by Judge Ripley. In count two of the complaint, the commissioner sought to foreclose his mortgage on DeMilo's property, obtained when DeMilo, in compliance with the Ripley order, had posted the bond that was secured by a mortgage deed on its remaining real estate in Hartford.

DeMilo filed four special defenses to the commissioner's complaint, claiming that it should not have to pay the costs of removal because the commissioner had removed materials from the property: (1) in violation of the laws and regulations governing both motor vehicles and the department of environmental protection; (2) without competitive bidding as required by General Statutes (Rev. to 1993) § 4a-57; ⁷ (3) from areas not covered by the...