Lucky 13 Indus., LLC v. Comm'r of Motor Vehicles

• Citation: 210 Conn.App. 558,270 A.3d 188
• Decision Date: 08 February 2022
• Docket Number: AC 43317
• Parties: LUCKY 13 INDUSTRIES, LLC v. COMMISSIONER OF MOTOR VEHICLES
• Court: Connecticut Court of Appeals

210 Conn.App. 558

270 A.3d 188

LUCKY 13 INDUSTRIES, LLC

v.COMMISSIONER OF MOTOR VEHICLES

AC 43317

Appellate Court of Connecticut.

Argued November 16, 2021

Officially released February 8, 2022

Thomas J. Weihing, Bridgeport, with whom, on the brief, was John T. Bochanis, for the appellant (plaintiff).

Anthony C. Famiglietti, assistant attorney general, with whom, on the brief, was William Tong, attorney general, for the appellee (defendant).

Cradle, Clark and Flynn, Js.

CLARK, J.

This administrative appeal arises from a complaint filed with the Department of Motor Vehicles (department), alleging that the plaintiff, Lucky 13 Industries, LLC, doing business as Midnight Auto, charged an illegal "gate fee" for the release of a vehicle following a nonconsensual tow to its place of business.¹ The plaintiff appeals from the judgment of the trial court dismissing its appeal from the decision of the defendant, the Commissioner of Motor Vehicles (commissioner), concluding that the plaintiff had charged an unlawful gate fee and ordering the plaintiff to make restitution to the complainant, Amica Insurance Company (Amica), and to pay a civil penalty to the department. On appeal to this court, the plaintiff claims that federal law preempts state regulation of gate fees charged pursuant to a voluntary agreement. The plaintiff additionally claims that the trial court improperly concluded that (1) the tow at issue was nonconsensual notwithstanding that the plaintiff and Amica's subcontractor executed a contract providing that the plaintiff would perform an "expedited service" when retrieving the vehicle for release and (2) the contract was void as against public policy. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the plaintiff's claims. The plaintiff is a licensed used car dealer and repairer. On February 16, 2017, at the request of the Stratford Police Department, the plaintiff towed a vehicle that had been involved in a motor vehicle accident to its place of business. The vehicle was insured by Amica. Thereafter, Amica hired Copart Auto Auctions (Copart), a salvage company, to retrieve the vehicle from the plaintiff's storage yard. On February 23, 2017, Copart contacted the plaintiff to make arrangements to retrieve the vehicle. The plaintiff informed Copart that the towing and storage charges totaled $765.72.² The billed amount included a $93.59 fee, which was described in a work order as follows: "Driver could not maneuver truck in yard, request vehicle to be moved out of storage yard so vehicle could be loaded onto truck. Hook-up to vehicle—move out of storage yard—position for loading." The plaintiff charged this fee before Copart had dispatched a driver to retrieve the vehicle. Copart directed Anthony's High Tech (Tech), a tow operator and repair shop, to retrieve the vehicle on its behalf the following day.

On February 24, 2017, a Tech driver arrived at the plaintiff's place of business. The plaintiff provided the driver with a form titled "Consensual Tow Form" (contract), which stated in relevant part that "[Tech], as a [r]epresentative of Copart is hereby advised that [it] can obtain the subject motor vehicle ... without paying any fee or charge provided all documentation and authorization [are] in order. [Tech] agrees to wait for said vehicle for a reasonable time after the request for release of the subject vehicle. Notwithstanding the foregoing, [Tech] hereby request[s] that [the plaintiff] immediately provide an employee to assist in the removal, towing and securing of the subject vehicle for transportation ...."³ The Tech driver signed the form, and the plaintiff subsequently retrieved the vehicle from its storage area and released the vehicle to the Tech driver.

On May 19, 2017, the department received a complaint filed by Amica, alleging that the plaintiff had charged a $93.59 gate fee for the release of a disabled vehicle belonging to its insured. On January 15, 2019, following a three day evidentiary hearing, the hearing officer issued a memorandum of decision, finding that the tow at issue was a nonconsensual tow because it was performed at the request of the police⁴ and that the fee was therefore charged in violation of General Statutes § 14-66 (a) (3) and § 14-63 -36c (a) of the Regulations of Connecticut State Agencies.⁵ The plaintiff was ordered to pay $93.59 in restitution to Amica and a $1000 civil penalty to the department.

The plaintiff appealed to the trial court, which also concluded that the tow at issue was a nonconsensual tow and that, in accordance with our Supreme Court's holding in Connecticut Motor Cars v. Commissioner of Motor Vehicles , 300 Conn. 617, 15 A.3d 1063 (2011), the department's hearing officer correctly determined that the plaintiff had charged an illegal gate fee for the release of a vehicle following a nonconsensual tow. The court also rejected the plaintiff's claim that the plaintiff and Amica's agent, Tech, had executed a valid and enforceable contract to perform a consensual tow because the contract violated state law and was therefore void as against public policy. Accordingly, the court dismissed the plaintiff's appeal. This appeal followed.

We begin by setting forth the standard of review and legal principles that govern our resolution of the plaintiff's claims. "[J]udicial review of the commissioner's action is governed by the Uniform Administrative Procedure Act [(UAPA), General Statutes §§ 4-166 through 4-189 ], and the scope of that review is very restricted. ... [R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable. ... Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. ... Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Citation omitted; internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles , 254 Conn. 333, 343, 757 A.2d 561 (2000).

"The substantial evidence rule governs judicial review of administrative fact-finding under the UAPA. [See] General Statutes § 4-183 (j) (5) and (6). An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. ... The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency .... It is fundamental that a plaintiff has the burden of proving that the commissioner, on the facts before [the commissioner], acted contrary to law and in abuse of [the commissioner's] discretion ...." (Internal quotation marks omitted.) Jim's Auto Body v. Commissioner of Motor Vehicles , 285 Conn. 794, 817, 942 A.2d 305 (2008).

"Even for conclusions of law, [t]he court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. ... [Thus] [c]onclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. ... [Similarly], this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes. ... Cases that present pure questions of law, however, invoke a broader standard of review than is ... involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission , 310 Conn. 276, 281–82, 77 A.3d 121 (2013).

I

The plaintiff first claims that federal law preempts any state regulations purporting to prohibit the fee it charged in this case because that fee was paid pursuant to a voluntary agreement for an "expedited service," which constituted a consensual tow for purposes of federal law. For the reasons that follow, we decline to review this claim because the plaintiff failed to preserve it.

"It is well known that an appellate court is under no obligation to consider a claim that is not distinctly raised at the trial level." (Internal quotation marks omitted.) Towbin v. Board of Examiners of Psychologists , 71 Conn. App. 153, 175, 801 A.2d 851, cert. denied, 262 Conn. 908, 810 A.2d 277 (2002) ; see also Practice Book § 60-5 ("court shall not be bound to consider a claim unless it was distinctly raised at the trial"). "For us [t]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge. ... We have repeatedly indicated our disfavor with the failure, whether because of a mistake of law, inattention or design, to object to errors occurring in the course of a trial until it is too late for them to be corrected, and thereafter, if the outcome of the trial proves unsatisfactory, with the assignment of such errors as grounds of appeal. ... This rule applies to appeals from administrative proceedings as well." (Citation omitted; internal quotation marks omitted.)

Ferraro v. Ridgefield European Motors, Inc. , 313 Conn. 735, 759, 99 A.3d 1114 (2014). "A party to an administrative proceeding cannot be allowed to participate fully at hearings and then, on appeal, raise claims that were not asserted before the [agency]."

Dragan v. Connecticut Medical Examining Board , 223 Conn. 618, 632, 613 A.2d 739 (1992).

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