text:
    DeMilo and Company, Inc. v. Commissioner of Motor Vehicles
    (15135)
    Peters, C. J., and Callahan, Borden, Norcott and Katz, Js.

      Argued February 8
    decision released May 23, 1995

      Daniel Shepro, for the appellant (plaintiff).

      Lawrence G. Widem, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Callahan, J.

The sole issue in this appeal is whether an unreviewed judgment should be given preclusive effect in a subsequent action between the same parties. The plaintiff, DeMilo and Company, Inc. (DeMilo), appeals from the judgment of the trial court, Susco, J., claiming that the court improperly determined that it was collaterally estopped from litigating, in this action, issues decided in favor of the defendant, the commissioner of motor vehicles (commissioner), in a separate action before the trial corut, Ripley, J., because the appeal from that judgment had been dismissed as moot. We affirm the trial court’s judgment of dismissal on alternative grounds.

The facts of this case are identical to those in Commissioner of Motor Vehicles v. DeMilo & Co., 233 Conn. 254, 659 A.2d 148 (1995), decided this same date. Only the rather convoluted procedural history underlying this appeal requires recitation here.

Since 1975, DeMilo has owned and operated a motor vehicle junkyard and parts business in Hartford. In August, 1986, inspectors from the department of motor vehicles (motor vehicles) visited DeMilo’s property in Hartford and found numerous violations of motor vehicles regulations. After an administrative hearing, a motor vehicles adjudicator concluded that DeMilo was in violation of General Statutes § 14-67r and §§ 14-67q-4,14-67q-6,14-67q-7,14-67q-8 and 14-67q-10 of the Regulations of Connecticut State Agencies regarding motor vehicle junkyards. The adjudicator suspended DeMilo’s junkyard license and imposed a civil penalty of $1000. The junkyard license could be reinstated only upon a satisfactory reinspection and receipt by motor vehicles of the civil penalty.

On February 17, 1987, DeMilo appealed from the adjudicator’s 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 its regulations thereby violating DeMilo’s right to equal protection; (2) § 14-67r had been illegally applied to DeMilo; (3) the statute empowering the commissioner to promulgate regulations was unconstitutionally vague; (4) the commissioner had exceeded his authority in promulgating the 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.

Subsequently, on February 26, 1987, the commissioner brought a separate action, pursuant to General Statutes § 14-67v, to enjoin DeMilo from operating or maintaining a motor vehicle junkyard in violation of motor vehicles regulations. 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-in motor vehicle junkyard location. . . .” The court also scheduled further hearings to be held on the commissioner’s application for an injunction.

DeMilo made the same claims as special defenses to the commissioner’s application for an injunction as those it had advanced in the administrative appeal to the Superior Court, 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 estop-pel. After a plenary hearing on the commissioner’s application for an injunction, Judge Ripley concluded that DeMilo had created a public nuisance in violation of § 14-67v, and rendered a judgment ordering injunc-tive relief. In arriving at its conclusion, the court rejected each of DeMilo's special defenses.

On June 10, 1987, DeMilo appealed from the judgment rendered by Judge Ripley (Ripley judgment) to the Appellate Court, claiming that the trial court improperly had: (1) concluded that DeMilo had maintained 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 § 14-67Í; and (4) concluded that violations existed on areas not licensed by motor vehicles for the junkyard business. After a hearing, on February 4, 1988, the Appellate Court, sua sponte, dismissed DeMilo’s 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).

On January 19, 1989, the commissioner brought a separate action in the Superior Court to enforce the Ripley judgment. The complaint alleged that the commissioner had complied with the Ripley judgment by having a contractor dispose of the junked vehicles and other debris from the unlicensed property. In count one of the complaint, the commissioner requested monetary damages because, as ordered by Judge Ripley, DeMilo had not reimbursed the commissioner for the expense of abating the public nuisance. In count two of the complaint, the commissioner requested that he be allowed to foreclose his mortgage on DeMilo’s property, obtained when DeMilo, in compliance with the Ripley judgment, had posted a bond that was secured by a mortgage deed on its real estate.

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; (3) from areas not anticipated in the Ripley judgment; and (4) in violation of an automatic stay of proceedings resulting from the appeal of the Ripley judgment. The fourth special defense also included an allegation that the Ripley judgment was “erroneous.” The trial court, Hon. David M. Shea, state trial referee, rejected each of DeMilo’s defenses, and rendered judgment for the commissioner on both counts of his complaint. That judgment is the subject of another appeal in this court decided this same date. See Commissioner of Motor Vehicles v. DeMilo & Co., supra, 233 Conn. 254.

After DeMilo’s appeal from the Ripley judgment had been dismissed, but before judgment had been rendered in the enforcement action before Judge Shea, the trial court in this action, Susco, J., concluded that the Ripley judgment had collateral estoppel effect on the issues raised in DeMilo’s administrative appeal and dismissed the appeal. The court found that “[t]he fact that the issues were decided in an action in equity after a full and fair opportunity to litigate them does not allow them to be relitigated in this administrative appeal.” On appeal, DeMilo argues that the trial court improperly determined that collateral estoppel applied, and requests a new hearing.

The result in this appeal is governed by our decision in Commissioner of Motor Vehicles v. DeMilo & Co., supra, 233 Conn. 254, in which we adopted the rule in 1 Restatement (Second), Judgments § 28 (1) (1982). Section 28 (1) provides: “Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances: (1) The party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action . . . .’’“In other words, we will not apply collateral estoppel, where it would otherwise be applicable, if the party who was unsuccessful in the initial action is barred, as a matter of law, from obtaining appellate review of the initial action. ‘Such cases can arise, for example, because the controversy has become moot. . . .’Id., comment a.” Commissioner of Motor Vehicles v. DeMilo & Co., supra, 254.

DeMilo, as a matter of law, was unable to obtain review of the Ripley judgment because the appeal had been dismissed as moot. The Ripley judgment, consequently, did not have collateral estoppel effect on the merits of the administrative appeal before the trial court. Id. The trial court, therefore, improperly dismissed the appeal on the basis of its determination that the Ripley judgment had collateral estoppel effect on the issues raised in this administrative appeal.

Our analysis, however, does not end there. “The legal doctrines of res judicata and collateral estoppel are designed to ‘promote judicial economy by preventing relitigation of issues or claims previously resolved.’ Scalzo v. Danbury, 224 Conn. 124, 127, 617 A.2d 440 (1992).” Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 484, 628 A.2d 946 (1993). Because there was another proceeding that addressed or could have addressed DeMilo’s claims raised in this administrative appeal, that being the proceeding to enforce the Ripley judgment heard before Judge Shea, we must decide if the disposition of that case has res judicata effect on the claims raised in the present appeal. In other words, because DeMilo has requested a new hearing, we must determine if, after our affirmation of the judgment of Judge Shea on appeal, there is anything left to be litigated in this administrative appeal. We conclude that there is not, because DeMilo either advanced, or could have advanced, every claim or defense to the merits of the Ripley judgment in the enforcement action before Judge Shea, including those raised in this appeal.

“ ‘Under the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose. Cromwell v. County of Sac, 94 U.S. 351, 352-53, 24 L. Ed. 195 (1876); 1 Restatement (Second), [supra] §§ 19, 25; James & Hazard, Civil Procedure (2d Ed.) § 11.3.’ State v. Aillon, 189 Conn. 416, 423-24,456 A.2d 279, cert. denied, 464 U.S. 837, 104 S. Ct. 124, 78 L. Ed. 2d 122 (1983).” (Emphasis added.) New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care, 226 Conn. 105, 128, 627 A.2d 1257 (1993); see Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., 227 Conn. 175,188, 629 A.2d 1116 (1993) (“[m]oreover, claim preclusion prevents the pursuit of any claims relating to the cause of action which were actually made or might have been made”); Scalzo v. Danbury, supra, 224 Conn. 127-28 (same); see also DeLaurentis v. New Haven, 220 Conn. 225, 239, 597 A.2d 807 (1991); Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 43, 526 A.2d 1329 (1987). The doctrine of res judicata, therefore, applies not only to claims actually made and litigated; see 1 Restatement (Second), supra, § 27 (regarding collateral estop-pel); but also to claims that a party could have made in the initial action.

In Commissioner of Motor Vehicles v. DeMilo & Co., supra, 233 Conn. 254, we concluded that DeMilo had had the opportunity in the enforcement action before Judge Shea to present any and all defenses not only to the enforcement of the Ripley judgment, but to the merits of that judgment. DeMilo failed, however, to raise all of those possible defenses in the enforcement action before Judge Shea. In particular, it did not bring to the attention of the trial court all the claims that it previously had pleaded in the administrative appeals or all the defenses that it previously had pleaded in the injunctive action before Judge Ripley.

In the circumstances of this case, we are persuaded that, pursuant to principles of res judicata, DeMilo’s failure to present relevant issues as special defenses in the enforcement action before Judge Shea bars it from raising those same issues as affirmative claims here. We acknowledge that, pursuant to the Restatement (Second) of Judgments, DeMilo’s failure to allege particular issues as special defenses to a previous action by the commissioner would “not normally preclude him from relying on those [issues] in an action subsequently brought by him against” the commissioner. See 1 Restatement (Second), supra, § 22, comment (b). This case, however, is one in which “the relationship between the [defenses that could have been raised] and the plaintiffs claim [here] is such that successful prosecution of [this] action would nullify the initial judgment or would impair rights established in the initial action.” Id., § 22 (2) (b), and comment (f) and illustrations 9 and 10. Thus, DeMilo’s failure to raise the relevant defenses in the action before Judge Shea bars it from litigating those issues as affirmative claims here.

All that is left to determine, then, is whether the enforcement action and this appeal involve all the same claims. “We have adopted a transactional test as a guide to determining whether an action involves the same claim as an earlier action so as to trigger operation of the doctrine of res judicata. [T]he claim [that is] extinguished [by the judgment in the first action] includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. What factual grouping constitutes a ‘transaction,’ and what groupings constitute a ‘series,’ are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage. . . . Orselet v. DeMatteo, 206 Conn. 542, 545-46, 539 A.2d 95 (1988); see Duhaime v. American Reserve Life Ins. Co., 200 Conn. 360, 364-65, 511 A.2d 333 (1986); see also Nevada v. United States, 463 U.S. 110, 130-31 n.12, 103 S. Ct. 2906, 77 L. Ed. 2d 509 (1983); 1 Restatement (Second), [supra, § 24]. In applying the transactional test, we compare the complaint in the second action with the pleadings and the judgment in the earlier action. See, e.g., Nevada v. United States, supra, 131-34; Capraro v. Tilcon Gammino, Inc., 751 F.2d 56, 57 (1st Cir. 1985).” (Emphasis added; internal quotation marks omitted.) Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., supra, 227 Conn. 189-90.

We must compare the factual background and the claims raised in this appeal to the pleadings and the judgment in the proceedings brought to enforce the Ripley judgment before Judge Shea. The Ripley judgment, the commissioner’s action to enforce the Ripley judgment and this administrative appeal all have identical factual underpinnings—they all arose from the same series of transactions regarding violations of the junkyard statutes and regulations on DeMilo’s property and the abatement of those violations. DeMilo did not claim in this administrative appeal that, for example, the civil penalty or the thirty day license suspension was excessive. Rather, DeMilo’s only claims in this appeal are identical to those it had raised before Judge Ripley.

In the enforcement action, Judge Shea considered the merits of the Ripley judgment and concluded that DeMilo “was operating its motor vehicle junkyard in violation of the regulatory statutes.” The court, therefore, determined that the Ripley judgment was valid and that the commissioner could enforce it. Because the same claims raised by DeMilo in this administrative appeal could have been raised by DeMilo in that action before Judge Shea when that court considered the merits of the Ripley judgment, we conclude that the doctrine of res judicata applies, and, consequently, the order of Judge Shea has res judicata effect on all of DeMilo’s claims raised in this administrative appeal.

“[T]his court is authorized to rely upon alternative grounds supported by the record to sustain a judgment. . . . The . . . judgment will be affirmed, though based on erroneous grounds, if the same result is required by law. Henderson v. Department of Motor Vehicles, 202 Conn. 453, 461, 521 A.2d 1040 (1987); Ivey, Barnum & O'Mara v. Indian Harbor Properties, Inc., 190 Conn. 528, 532, 461 A.2d 1369 (1983); A & H Corporation v. Bridgeport, 180 Conn. 435, 443, 430 A.2d 25 (1980); Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 301, 429 A.2d 883 (1980); C. Tait, Connecticut Appellate Practice and Procedure (1991) § 7.14.” (Internal quotation marks omitted.) Smith v. Zoning Board of Appeals, 227 Conn. 71, 88-89, 629 A.2d 1089 (1993), cert. denied, U.S. ,114 S. Ct. 1190, 127 L. Ed. 2d 540 (1994).

The judgment is affirmed.

In this opinion the other justices concurred.

       DeMilo appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       General Statutes § 14-67r provides: “fencing. Each new location of a motor vehicle junk yard shall be completely surrounded with a solid fence at least eight feet high with a suitable gate which shall be closed and locked except during the working hours of such junk yard. All unregistered motor vehicles, used parts, old iron, metal, glass, paper, and any other material which may have been parts of such vehicles shall be enclosed within this location. Any dismantling of material or cutting up of parts of such vehicles must be carried on within this enclosure.”
      Unless otherwise noted, we use the current statutes throughout this opinion because there are no relevant differences between these statutes and those in effect at the time of the underlying controversy.
      The relevant Regulations of Connecticut State Agencies regarding motor vehicle junkyards provide: “Sec. 14-67q-4. AREA REQUIRED FOR STORAGE OF SALVAGE MOTOR VEHICLES
      “Each licensed motor vehicle junkyard shall maintain a separate and distinct area for the storage of salvage motor vehicles, and such area shall in no case exceed eighty per cent of the licensed and usable area of such yard. . . .
      “Sec. 14-67q-6. location of stored vehicles
      “Each salvage or scrap motor vehicle stored or deposited within a motor vehicle junkyard shall be so located as to be within one hundred feet of an accessible roadway or driveway with a minimum width of twelve feet, such driveway or roadway being connected to a public road or highway.
      “Sec. 14-67q-7. proximity to other vehicles
      “With the exception of a motor vehicle placed or stored on top of another, no scrap or salvage motor vehicle shall be located closer than one foot to an adjacent vehicle, provided when scrap or salvage motor vehicles are deposited or stored in a continuous line not to exceed four passenger motor vehicles in length, it shall be necessary only to maintain the one-foot separation between the sides of such vehicles.
      “Sec. 14-67q-8. location of vehicles purchased for scrap “Each motor vehicle purchased or obtained for scrap shall be deposited or stored in the portion of the yard reserved for the processing of vehicles. . . .
      “Sec. 14-67q-10. stacking of other motor vehicles “Stacking of motor vehicles, other than processed motor vehicles, at a height greater than two vehicles is prohibited.”

       General Statutes § 14-67v provides: “penalty, injunction to restrain violation. Any person, or any officer or agent of any firm or corporation, who establishes, operates or maintains a motor vehicle junk yard or motor vehicle junk business in any location within a restricted district created under the provisions of this subdivision (H), or establishes, operates or maintains such junk yard or business without procuring such certificate of approval from the local authority or establishes, operates or maintains an intermediate processor in violation of any provision of this subdivision (H), or transports or hauls any motor vehicle or used parts of a motor vehicle in violation of any provision of this subdivision (H) or violates any provision of this subdivision (H), shall be fined not more than one hundred dollars or imprisoned not more than ninety days or both. Each day of such establishment, operation or maintenance in violation hereof shall constitute a separate offense. The commissioner of motor vehicles may, after notice and hearing, impose a civil penalty of not more than two thousand dollars on any person, firm or corporation who establishes, operates or maintains such junk yard or business without a license. In addition to the penalties herein prescribed, the commissioner of motor vehicles or the local authority, upon a violation of any of the provisions of this subdivision (H), may bring an application to the superior court for the judicial district where such yard or business is located to enjoin a further operation or maintenance of such yard or business and to abate the same as a public nuisance. Said court may, upon finding such yard or business has been established, operated or maintained in violation of the provisions of this subdivision (H), issue such injunction as it deems equitable and make such order for the discontinuance or abatement of such yard or business as a nuisance as it finds to be necessary, including authorization to the commissioner of motor vehicles to enter such yard or business to eliminate, at the expense of the defendant, the conditions which constitute the violation of any provision of this subdivision (H).”

       The regulations cited by motor vehicles were the same regulations at issue in the administrative proceeding. See footnote 2.

       General Statutes § 14-67Í provides: “certificate of approval of location; license required, exceptions, (a) No person, firm or corporation shall establish, operate or maintain a motor vehicle junk yard or motor vehicle junk business unless a certificate of approval of the location to be used therefor has been procured from the selectmen of the town, the mayor of the city or the warden of the borough wherein such yard or business is located or is proposed to be located, except that, in any city or town having a zoning commission, such certificate shall be procured from the zoning commission, certifying that such location is suitable for the proposed use, consideration being given to the factors specified in section 14-67k, nor unless a license to establish or maintain such a yard or such a business has been obtained from the commissioner of motor vehicles as provided in section 14-671.
      “(b) The provisions of this section shall not apply to: (1) Any public agency, as defined in section 7-339a, which acquires, collects, dismantles or disposes of junk or abandoned motor vehicles pursuant to a program of solid waste disposal, in accordance with the provisions of chapter 446d and the regulations of Connecticut state agencies, concerning the operation of motor vehicle junk yards, provided this exemption shall not apply to any public agency which sells or distributes or exchanges for profit motor vehicle parts for reuse as such, and provided further, such public agency shall designate an employee to maintain accurate records of all motor vehicles received and processed. Such records shall include the make, year, serial number and, if available, the name and address of the person from whom each vehicle was received. A list containing the make, year and serial number of each such motor vehicle shall be sent to the commissioner of motor vehicles on or before the last day of the month following the month during which such disposal occurred; or (2) any intermediate processor operating at a licensed facility, pursuant to subsection (a) of this section. ‘Intermediate processor’ means any person, firm or corporation which dismantles, crushes or otherwise conditions junk or abandoned motor vehicles or parts thereof for delivery to a scrap metal processor as defined in section 14-67w, or for disposal in any other manner permitted by law, and which does not sell automobile parts for reuse as parts; provided all such junk or abandoned motor vehicles or parts thereof shall, at the time of such dismantling, crushing or conditioning, be owned by or in the custody of, and located on premises of or maintained by the holder of a motor vehicle junk yard license issued pursuant to section 14-671, or by a public agency exempted under this subsection.”

       General Statutes (Rev. to 1993) § 4a-57 provides: “competitive bids FOE PURCHASES AND CONTRACTS. SALES. WAIVER. COMPETITIVE NEGOTIATIONS. (a) All purchases of, and contracts for, supplies, materials, equipment and contractual services, except gas, water and electric light and power services, and purchases and contracts made pursuant to the provisions of subsection (c) of this section shall be based, when possible, on competitive bids. Any personal property which has become obsolete, unserviceable or unusable may be sold (1) on the basis of competitive bids, (2) at public auction or (3) at a retail store owned by the state and open to the public. The commissioner shall solicit competitive bids by sending notice to prospective suppliers and by posting notice on a public bulletin board in his office. Such notice shall contain a notice of state contract requirements pursuant to section 4a-60. Each bid shall be kept sealed until opened publicly at the time stated in the notice soliciting such bid. If the amount of the expenditure or sale is estimated to exceed ten thousand dollars, competitive bids shall be solicited by public notice inserted at least once in not fewer than three daily newspapers published in the state, and at least five calendar days before the final date of submitting bids. All purchases or sales of ten thousand dollars or less in amount shall be made in the open market, but shall, when possible, be based on at least three competitive quotations.
      “(b) (1) Any personal property to be sold under section 4a-52 and subsection (a) of this section on the basis of competitive bids shall be offered for sale to municipalities, transit districts and the public at the same time, provided the commissioner of administrative services shall sell the property to the municipality or transit district which submits the highest bid. If no municipality or transit district submits a bid the commissioner shall sell the property to the highest public bidder. Any personal property to be sold under said section and subsection at a public auction shall be offered first to municipalities and transit districts and sold to the municipality or transit district which makes the highest bid, provided the commissioner may order that any or all bids may be rejected when, in his opinion, the best interest of the state would be served thereby. If no municipality or transit district makes a bid, or if all bids are rejected, the commissioner shall solicit bids from the public at the same public auction and shall sell the property to the highest public bidder. (2) If the commissioner is unable to sell any property to the highest public bidder pursuant to subdivision (1) of this subsection, the commissioner shall offer the property for sale to the public at a retail store owned by the state. If the commissioner is unable to sell any property at such store, he shall donate the property to a charitable or other nonprofit organization. If the commissioner is unable to donate the property to such an organization, he shall dispose of the property.
      “(c) The commissioner may, at his discretion, waive the requirement of competitive bidding in the case of minor nonrecurring and emergency purchases of six hundred dollars or less in amount. The commissioner may use competitive negotiation to purchase or contract for data processing equipment, programs or services having a cost of twenty thousand dollars or less or advertising space or time after making a written determination, including the reasons therefor, that such action is in the best interest of the state. The commissioner shall adopt regulations, in accordance with the provisions of chapter 54, establishing (1) objective standards for determining when such competitive negotiation may be used instead of competitive bidding, including whether the character of such data processing equipment, programs or services or advertising space or time is more important than their relative cost, (2) procedures to be followed in making purchases, contracts or sales not subject to the competitive bid requirements of this section, including but not limited to, criteria which shall be considered in making purchases by competitive negotiation and the weight which shall be assigned to each such criterion and (3) standards and procedures under which additional purchases may be made on a limited basis under existing contracts.”

       On appeal, DeMilo does not challenge the trial court’s finding that there was no automatic stay of proceedings in place. General Statutes § 52-477 provides that an application for such a stay is necessary in the case of an appeal from a judgment for a permanent injunction, such as in this case. The Ripley judgment was rendered pursuant to § 14-67v, which provides for injunctive relief. DeMilo had applied for a stay of proceedings, but that application was denied on June 10, 1987.

       The special defenses provide in relevant part:
      “fibst special defense:
      “1. The moving of materials by the plaintiff or for the plaintiff was performed without compliance with the Department of Motor Vehicles and Department of Environmental Protection Laws ....
      “2. As a result, the defendant should not be charged with the cost of removal.
      “second special defense:
      “1. The costs of the move secured by the mortgage [were] incurred without competitive bidding and were not reasonable or just.

        “2. As a result, the defendant should not be responsible to pay the costs claimed.
      “third special defense:
      “1. The plaintiff moved the materials from areas not covered by the court order referred to in the complaint.
      “2. As a result, the defendant should not be held responsible for the costs claimed.
      “fourth special defense:
      “1. The plaintiff moved the property in violation of the automatic stay [of] proceedings.
      “2. As a result, the defendant’s appeal from the order was held to be moot.
      “3. The order was erroneous.
      “4. As a result, the defendant should not have to pay the costs of removal and should be equitably [e]stopped to make the claim.”

       The trial court noted that the Ripley judgment was pending on appeal at the time of its memorandum of decision. In fact, the appeal from the Ripley judgment had been dismissed as moot more than five years before the trial court issued its memorandum of decision. The record does not reflect whether the parties had made the court aware of the dismissal. For purposes of this appeal, we take judicial notice of the Appellate Court’s dismissal as moot of the appeal from the Ripley judgment.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    DeMilo and Company, Inc. v. Department of Transportation et al.
    (15137)
    Peters, C. J., and Callahan, Borden, Norcott and Katz, Js.
    Argued February 8
    decision released May 23, 1995

      Daniel Shepro, for the appellant (plaintiff).

      Lawrence G. Widem, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellees (defendants).
   Per Curiam.

The plaintiff, DeMilo and Company, Inc. (DeMilo), appealed to the Superior Court from a decision of the defendant commissioner of the department of transportation (commissioner), in which the commissioner determined the amount of relocation assistance to which DeMilo was entitled under the Uniform Relocation Assistance Act, General Statutes § 8-266 et seq., and the applicable regulations. The court affirmed the commissioner’s decision, and DeMilo appealed from the judgment of the trial court to the Appellate Court. We transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

The facts of this case are undisputed and are related to the facts of two other cases decided this same date. See Commissioner of Motor Vehicles v. DeMilo & Co., 233 Conn. 254, 659 A.2d 148 (1995); DeMilo & Co. v. Commissioner of Motor Vehicles, 233 Conn. 281, 659 A.2d 162 (1995). 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. The acquired land consisted of the southeasterly corner of DeMilo’s rec-tangularly shaped parcel, as well as some adjoining land leased by DeMilo from the Barilla family, on which it 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 transportation’s reconstruction of Interstate 91. The acquired land contained many junked vehicles and automobile parts, which inhibited transportation from going forward with its construction plans.

In June, 1986, the commissioner informed DeMilo that it would be paid the sum of $58,500 as a relocation allowance for the junked vehicles that had to be removed from the acquired land and relocated. DeMilo appealed to the relocation advisory assistance appeals board (board) pursuant to General Statutes § 8-271 and § 8-273-1 of the Regulations of Connecticut State Agencies governing relocation assistance promulgated by the commissioner of transportation. A panel, consisting of three board members, held a hearing, as required by General Statutes § 4-179 and § 8-273-1 of the regulations, which extended, in ten sessions, from February through April, 1988. Following the hearing, the panel submitted its proposed decision to the parties, who were then given an opportunity to submit briefs regarding the proposed decision. Both parties took advantage of that opportunity.

The panel’s proposed decision set forth findings of fact and conclusions of law. The panel found that the subject of the relocation allowance consisted of 1000 junked vehicles, which were best characterized as “low value, high bulk personal property.” The panel further found that the replacement cost of the vehicles was $35. each, so that the total relocation allowance payable to DeMilo was $35,000. After reviewing the panel’s proposed decision and the briefs submitted by the parties, the commissioner adopted the proposed decision and issued a final decision that DeMilo was entitled to $35,000 as its relocation allowance.

DeMilo appealed from the commissioner’s decision to the Superior Court claiming that: (1) it was a denial of its due process rights for the commissioner and the board to act as “prosecutor, judge and jury” in the administrative procedure; (2) the relocation allowance was unreasonable; (3) the board’s proposed decision was invalid because only one member signed it; and (4) the commissioner’s decision was untimely filed in violation of General Statutes § 4-180. The trial court affirmed the commissioner’s decision and dismissed the appeal. On appeal to this court, DeMilo pursues only its first two claims.

In addressing the due process claim, the trial court concluded that the procedure employed by the commissioner was in accordance with the statutes and regulations governing administrative appeals and that many other administrative agencies follow the same basic procedure. The gravamen of DeMilo’s claim is that those statutes and regulations are unconstitutional. The court determined, however., that DeMilo’s claim was not supported by authority. The court concluded, therefore, that DeMilo had failed to overcome the presumption in favor of the constitutionality of the statutory scheme. Zapata v. Burns, 207 Conn. 496, 507-508, 542 A.2d 700 (1988).

With respect to DeMilo’s claim of unreasonable replacement cost, the trial court found that the board had considered “abundant evidence” regarding the relocation allowance. DeMilo’s owner, Frank DeMilo, and DeMilo’s expert, Stanley J. Lesnewsky, testified before the board that there were 1000 junked vehicles that had to be relocated. Sol W. Toder, the owner of an automobile salvage business who testified as an expert for transportation, testified that he had visited DeMilo’s Hartford site at least eight times and found that the subject vehicles could not be used for parts. Rather, he opined, the vehicles could best be used as scrap. Finally, Frank DeMilo testified that, at the relevant time, he could receive $20 or $22 per gross ton for such vehicles as scrap, and that the average vehicle weighed 1500 pounds, while heavy vehicles like ambulances or hearses may weigh up to 4000 pounds. The trial court concluded that DeMilo was unable to demonstrate that the relocation allowance awarded by the commissioner was unreasonable.

Our examination of the record and the briefs and arguments of the parties on appeal persuades us that the judgment of the trial court should be affirmed. The issues raised on appeal were resolved properly in the court’s thoughtful and comprehensive memorandum of decision. DeMilo & Co. v. Dept. of Transportation, 43 Conn. Sup. 441, 658 A.2d 986 (1995). Because that memorandum of decision fully addresses the arguments raised in the present appeal, we adopt the trial court’s well reasoned decision as a statement of the facts and the applicable law on those issues. It would serve no useful purpose for us to repeat the discussion contained therein. Greater Bridgeport Transit District v. State Board of Labor Relations, 232 Conn. 57, 64, 653 A.2d 151 (1995); Advanced Business Systems, Inc. v. Crystal, 231 Conn. 378, 380-81, 650 A.2d 540 (1994); Van Dyck Printing Co. v. DiNicola, 231 Conn. 272, 274, 648 A.2d 877 (1994).

The judgment is affirmed.

       The defendants are the state of Connecticut, the department of transportation and J. William Bums, commissioner of transportation. For purposes of this appeal, we will refer to the defendants collectively as the commissioner.

       General Statutes § 8-271 provides: “relocation assistance advisory program, (a) Whenever a program or project undertaken by a state agency or under the supervision of a state agency will result in the displacement of any person on or after July 6, 1971, such agency shall provide a relocation assistance advisory program for displaced persons which shall offer the services described herein. If the state agency determines that any person occupying property immediately adjacent to any real property acquired is caused substantial economic injury because of such acquisition, it may offer such person relocation advisory services under such program.
      “(b) Each relocation advisory assistance program required by subsection (a) shall include such measures, facilities, or services as may be necessary or appropriate in order (1) to determine the needs, if any, of displaced persons for relocation assistance; (2) to provide current and continuing information on the availability, prices and rentals, of comparable decent, safe and sanitary sales and rental housing, and of comparable commercial properties and locations for displaced businesses; (3) to assure that, within a reasonable period of time, prior to displacement there will be available in areas not generally less desirable in regard to public utilities and public and commercial facilities and at rents or prices -within the financial means of the families and individuals displaced, decent, safe and sanitary dwellings, as defined by the commissioner of transportation for transportation projects and by the commissioner of housing for all other state agency programs and projects, equal in number to the number of and available to such displaced persons who require such dwellings and reasonably accessible to their places of employment, except that the commissioner of transportation for transportation projects and the commissioner of housing for all other state agency programs and projects may prescribe by regulation situations when such assurances may be waived; (4) to assist a displaced person displaced from his business or farm operation in obtaining and becoming established in a suitable replacement location; (5) to supply information concerning federal and state housing programs, disaster loan programs and other federal and state programs offering assistance to displaced persons; (6) to provide other advisory assistance services to displaced persons in order to minimize hardship to such persons in adjusting to relocation.
      “(c) The heads of state agencies shall coordinate relocation activities with project work, and other planned or proposed governmental actions in the community or nearby areas which may affect the carrying out of the relocation assistance programs.”
      Section 8-273-1 of the Regulations of Connecticut State Agencies provides: “relocation assistance appeal

        “(a) Any person aggrieved as to the provisions of Chapter 135 of the General Statutes of Connecticut, as revised, should first request reconsideration by the State agency of the decision initially received as to relocation assistance. If the person aggrieved is not satisfied by the decision rendered by the State agency upon reconsideration, he then may request a hearing before the Relocation Advisory Assistance Appeals Board.
      “(b) The request must be submitted in writing to the State agency causing the displacement within eighteen months after the date of acquisition of real property by the State agency causing the displacement by land acquisition programs, by building code enforcement activities, or by a program of voluntary rehabilitation of buildings or other improvements conducted pursuant to governmental supervision or the effective date of these regulations whichever is later.
      “(c) A Relocation Advisory Assistance Appeals Board shall be established by the Commissioner of Transportation and another Appeals Board by the Commissioner of Community Affairs. The Board established by the Commissioner of Transportation will hear matters concerning transportation projects and the Board established by the Commissioner of Community Affairs will hear matters concerning all other State agency programs and projects.
      “(d) The Board will review applications of all persons aggrieved, hold hearings thereon, and report its findings within 15 days after the hearing to the Transportation Commissioner on matters concerning transportation projects, and the Community Affairs Commissioner on matters concerning all other State agency programs and projects.
      “(e) The respective Commissioners shall make the final administrative decisions and advise the appellant of his decision in accordance with Section 4-179 of the General Statutes of Connecticut, as revised.”

       General Statutes § 4-179 provides: “agency proceedings, proposed final decision, (a) When, in an agency proceeding, a majority of the members of the agency who are to render the final decision have not heard the matter or read the record, the decision, if adverse to a party, shall not be rendered until a proposed final decision is served upon the parties, and an opportunity is afforded to each party adversely affected to file exceptions and present briefs and oral argument to the members of the agency who are to render the final decision.
      “(b) A proposed final decision made under this section shall be in writing and contain a statement of the reasons for the decision and a finding of facts and conclusion of law on each issue of fact or law necessary to the decision.
      “(c) Except when authorized by law to render a final decision for an agency, a hearing officer shall, after hearing a matter, make a proposed final decision.
      “(d) The parties and the agency conducting the proceeding, by written stipulation, may waive compliance with this section.”

       The relocation allowance cannot exceed the replacement cost. Gee General Statutes § 8-268 (a) (2).

       Frank DeMilo defined a gross ton as 2240 pounds.


text:
    State of Connecticut v. Burton E. Merritt
    (15045)
    Callahan, Berdon, Norcott, Katz and Palmer, Js.
    Argued April 27
    decision released May 30, 1995

      Conrad Ost Seifert, for the appellant (defendant).

      LeonF. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, and Mary Jean Kanabis, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The sole question in this certified appeal is whether the Appellate Court was correct in concluding that the admission of testimony by an East Lyme police officer concerning the administration and results of a horizontal gaze nystagmus (HGN) test in a prosecution for operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) (1) was harmless error. The Appellate Court determined that the trial court had “abused its discretion” by admitting the officer’s testimony because the state had failed to introduce evidence in the trial court establishing the general acceptance of the HGN test in the scientific community pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). State v. Merritt, 36 Conn. App. 76, 91, 647 A.2d 1021 (1994).

The Appellate Court proceeded to review the other evidence presented at trial, however, and stated that it could not conclude that the testimony concerning the HGN test had affected the outcome of the trial and concluded, therefore, that its admission was harmless. Id., 93. We granted the defendant’s petition to appeal the merits of the Appellate Court’s conclusion. After examining the record on appeal and after carefully considering the briefs and arguments of the parties, we have determined that the appeal in this case should be dismissed on the ground that certification was improvidently granted.

The appeal is dismissed.

       The officer explained that the HGN test is administered by placing an object approximately fifteen inches in front of a subject’s nose, moving it from side to side and observing the subject’s eye reaction. State v. Merritt, 36 Conn. App. 76, 80, 647 A.2d 1021 (1994). The theory behind the HGN test is that there is a strong correlation between the amount of alcohol a person consumes and the angle of onset of the nystagmus. “Nystagmus is an abnormal and involuntary movement of the eyeballs from side to side or up and down, but usually from side to side.” (Internal quotation marks omitted.) Id., 84.

       We granted certification to appeal limited to the following issue: “Did the Appellate Court correctly hold that harmless error occurred when the trial court improperly admitted horizontal gaze nystagmus test results and improperly allowed the jury to hear evidence that if eye jerking occurs prior to a forty-five degree angle a subject is more than likely above the legal limit of 0.10 of one percent for intoxication in a trial under General Statutes § 14-227a (a) (1)?” State v. Merritt, 231 Conn. 926, 648 A.2d 165 (1994).