COMMISSIONER OF MOTOR VEHICLES v. DEMILO & CO.

15136

233 Conn. 254 (1995) | Cited 25 times | Supreme Court of Connecticut | May 23, 1995

The principal question in this appealis the extent to which a trial court judgment, the appealfrom which was dismissed as moot, can later beenforced by the party that initially had prevailed. Thedefendant, DeMilo and Company, Inc. (DeMilo), appealsfrom the judgment of the trial court, Hon. David M.Shea, state trial referee,1 which concluded that: (1) theplaintiff, the commissioner of motor vehicles (commissioner),could recover from DeMilo, pursuant to GeneralStatutes § 14-67v,2 the cost of remediating the

[233 Conn. 257]

     conditions that a previous court had found constituteda public nuisance on DeMilo's property; and (2) the commissionerwas entitled to foreclose on a mortgage onits real estate that had been given by DeMilo to securea bond to cover the cost of the abatement of the publicnuisance. We affirm the judgment of the trial court.

The relevant facts essentially are undisputed. Since1975, DeMilo has owned and operated a motor vehiclejunkyard and parts business in Hartford. On August 1,1985, the department of transportation (transportation)acquired, by eminent domain, a portion of DeMilo'sland. That land consisted of the southeasterly cornerof DeMilo's rectangularly shaped parcel, as well assome adjoining land leased by DeMilo from the Barillafamily, on which DeMilo had stored some of its junkedvehicles. The land had been acquired by transportationin order to construct a new service road, now knownas Liebert Road, in connection with the transportation'sreconstruction of Interstate 91. Because the propertyacquired by transportation contained many junked vehiclesand automobile parts, transportation was inhibitedfrom going forward with its construction plans.

In connection with its acquisition of DeMilo's land,transportation requested that the commissioner ofmotor vehicles investigate whether DeMilo was in compliancewith the department of motor vehicle's (motorvehicles) regulations regarding automobile junkyards.In August, 1986, inspectors from motor vehicles visitedthe property and found numerous violations of the

[233 Conn. 258]

     motor vehicle regulations. After an administrativehearing, an adjudicator for motor vehicles concludedthat DeMilo was in violation of General Statutes§ 14-67r, and the Regulations of Connecticut StateAgencies regarding motor vehicle junkyards, §§ 14-67q-4,14-67q-6, 14-67q-7, 14-67q-8 and 14-67q-10.3 The violationsincluded: the lack of proper fencing around thelicensed junkyard area; the stacking of motor vehicles

[233 Conn. 259]

     at a height greater than allowed; a licensed junkyardarea filled beyond the 80 percent maximum; and thelocation of salvage motor vehicles outside the licensedjunkyard area. The adjudicator suspended DeMilo'sjunkyard license and imposed a civil penalty of $1000on DeMilo.

On February 17, 1987, DeMilo appealed from theadministrative decision to the Superior Court. DeMiloclaimed that the decision was arbitrary, unreasonableand an abuse of discretion in that: (1) the commissionerhad selectively enforced motor vehicles' regulationsthereby violating DeMilo's right to equal protection;(2) § 14-67r had been illegally applied; (3) the statuteempowering the commissioner to promulgate regulationswas unconstitutionally vague; (4) the commissionerhad exceeded his authority in promulgatingregulations; and (5) the commissioner was estoppedfrom enforcing the regulations because he had knownabout the violations for some time before institutingan action. The dismissal of DeMilo's appeal by the trialcourt, Susco, J., is the subject of another case decidedthis same date. See DeMilo & Co. v. Commissioner ofMotor Vehicles, 233 Conn. 281, ___ A.2d ___ (1995).

Subsequently, on February 26, 1987, the commissionerbrought an action, pursuant to § 14-67v,4 toenjoin DeMilo from operating or maintaining a motorvehicle junkyard in violation of motor vehicles regulations.5After a hearing held that same day, a temporaryinjunction was issued by the court, Aronson, J., orderingDeMilo immediately to "take steps to remove allunregistered motor vehicles, used parts, tires and othermaterials . . . from the property outside its fenced-in

[233 Conn. 260]

     motor vehicle junkyard location . . . ." The courtalso scheduled further hearings to be held on the application.

DeMilo made the same claims as special defenses tothe commissioner's application for an injunction asthose it had advanced in its appeal in the administrativeaction before Judge Susco, i.e., selective enforcementof the regulations, illegal application of § 14-67r,vagueness of the regulations, the commissioner'sexceeding his authority in promulgating the regulationsand estoppel. DeMilo stipulated, however, that not allof the violations that had existed at the time of theadministrative hearing before the motor vehicles adjudicatorhad been abated. After a plenary hearing onmotor vehicles' application for an injunction, the court,Ripley, J., concluded that DeMilo had violated variousstatutes and regulations and had created a public nuisancein violation of § 14-67v. The court found, amongother things, that DeMilo was conducting motor vehiclejunkyard operations outside the area licensed bymotor vehicles for such use. The court also rejectedeach of DeMilo's special defenses.

As a result, the court rendered a judgment orderingthat the commissioner be "authorized to immediatelyenter the unlicensed areas . . . to immediately eliminate,at the expense of the defendant, the conditionswhich constitute the violation . . . ." The court furtherordered that DeMilo "immediately post a bond withthe Court in the amount of One Hundred Thousand Dollars($100,000.00) to cover the cost of immediatelyeliminating the conditions which constitute the violation. . . ."

On June 10, 1987, two days after the court's judgmenthad been rendered, transportation, acting as theagent of the commissioner of motor vehicles, began theremoval of junked vehicles and other debris from the

[233 Conn. 261]

     unlicensed areas of DeMilo's land pursuant to thecourt's order. By June 18, 1987, two large piles of theremoved material had been accumulated on a temporarynearby site owned by the city of Hartford.Transportation then resumed work on its originalproject of reconstructing Interstate 91, and, with thepermission of the city, left the accumulated piles ofdebris on the city's property. DeMilo complied with theprovision of the court order requiring it to post a bondof $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 payto the state "the just and full sum to comply with thereferenced court order."

On March 30, 1988, the commissioner contracted withEssex Auto Salvage, Inc., to remove the piles of junkedvehicles and debris from the city's property. The workwas completed between April 11 and 28, 1988. The commissionerbilled DeMilo for the cost of the April, 1988removal. DeMilo has refused to compensate the statefor that cost.

Before the April, 1988 removal work had commenced,DeMilo appealed from the judgment renderedby Judge Ripley to the Appellate Court, claiming thatthe trial court improperly had: (1) concluded that thecondition 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

[233 Conn. 262]

     on areas unlicensed by motor vehicles for a motor vehiclejunkyard business. After a hearing, on February4, 1988, the Appellate Court, sua sponte, dismissed theappeal as moot. We denied DeMilo's petition for certificationfor review of the Appellate Court's dismissal.Commissioner of Motor Vehicles v. DeMilo & Co.,207 Conn. 809, 541 A.2d 1238 (1988). Our denial occurredafter the commissioner had represented to this court,in its opposition to the petition for certification, thatthe order contained in the judgment on appeal had been

[233 Conn. 263]

     almost completely executed, in that the junked vehiclesand other debris had been removed from theunlicensed areas. Further, the commissioner representedthat DeMilo had not requested any practicalrelief from the order, nor could the court furnish any.

On January 19, 1989, the commissioner brought thisaction in the Superior Court to enforce Judge Ripley'sorder. The complaint alleged that the commissioner hadcomplied with the order by having a contractor disposeof the junked vehicles and other debris on theunlicensed property. In count one of the complaint, thecommissioner requested monetary damages becauseDeMilo had failed to reimburse him for the expense ofabating the public nuisance, as ordered by Judge Ripley.In count two of the complaint, the commissioner soughtto foreclose his mortgage on DeMilo's property,obtained when DeMilo, in compliance with the Ripleyorder, had posted the bond that was secured by a mortgagedeed on its remaining real estate in Hartford.

DeMilo filed four special defenses to the commissioner'scomplaint, claiming that it should not have topay the costs of removal because the commissioner hadremoved materials from the property: (1) in violationof the laws and regulations governing both motor vehiclesand the department of environmental protection;(2) without competitive bidding as required by GeneralStatutes (Rev. to 1993) § 4a-57;7 (3) from areas not

[233 Conn. 264]

     covered by the judgment; and (4) in violation of an automatic

[233 Conn. 265]

     stay of proceedings8 resulting from the appealto the Appellate Court of the judgment. The fourth specialdefense included an allegation that the Ripley orderwas "erroneous."9 Judge Shea rejected each ofDeMilo's defenses, and rendered judgment for the commissioneron both counts of his complaint.

[233 Conn. 266]

DeMilo's seven claims on appeal can be encapsulatedinto four. First, DeMilo questions the validity of thejudgment of Judge Ripley as the basis of the commissioner'sclaims in the action that is the subject of thisappeal, because the appeal from that judgment hadbeen dismissed as moot by the Appellate Court. Second,DeMilo claims that the trial court improperlyallowed the commissioner to recover under a theorythat he had not pleaded. Third, DeMilo claims that thetrial court improperly concluded that the amountclaimed by the commissioner for the cost of removalwas reasonable, when the commissioner had not compliedwith competitive bidding procedures, purportedlyrequired by § 4a-57.10 See footnote 7. Finally, DeMiloclaims that the trial court improperly ratified the commissioner'sremoval of materials from areas not anticipatedin the order.

I

DeMilo first claims that the commissioner should beequitably estopped from enforcing Judge Ripley's judgmentbecause the commissioner had been successful inhis arguments both to the Appellate Court and to thiscourt, which resulted in the dismissal as moot ofDeMilo's appeal from that judgment and a denial ofcertification.11 DeMilo argues that it was prejudiced

[233 Conn. 267]

     because it could not challenge Judge Ripley's order onappeal, and, therefore, the order is unenforceable.DeMilo also claims that the Ripley judgment wasineffectual once the appeal had been dismissed as moot.We are not persuaded.

A

"Claim preclusion, sometimes referred to as resjudicata, and issue preclusion, sometimes referred toas collateral estoppel, are first cousins. Both legal doctrinespromote judicial economy by preventing relitigationof issues or claims previously resolved. State v.Ellis, 197 Conn. 436, 466, 497 A.2d 974 (1985)." Scalzov. Danbury, 224 Conn. 124, 127, 617 A.2d 440 (1992)."Under Connecticut law, `[c]ollateral estoppel, or issuepreclusion, prohibits the relitigation of an issue whenthat issue was actually litigated and necessarily determinedin a prior action. . . . For an issue to be subjectto collateral estoppel, it must have been fully andfairly litigated in the first action. It also must have beenactually decided and the decision must have been necessaryto the judgment. . . . The doctrine of collateralestoppel is based on the public policy that a party shouldnot be able to relitigate a matter which it already hashad an opportunity to litigate.' (Citations omitted; internalquotation marks omitted.) Aetna Casualty & SuretyCo. v. Jones, 220 Conn. 285, 296, 596 A.2d 414(1991)." (Emphasis added.) Mulligan v. Rioux,229 Conn. 716, 751, 643 A.2d 1226 (1994).

[233 Conn. 268]

Judge Shea concluded that "[b]ecause the defendant'sappeal from [Judge Ripley's judgment] was dismissedfor mootness by the Appellate Court without a reviewof the merits . . . the commissioner cannot simplyrely on that judgment as precluding by way of collateralestoppel the relitigation of issues relevant to this suitto recover the expenses of eliminating the violationsof the junkyard statutes and regulations that hadresulted in the issuance of the injunction." For thisproposition, the court adopted § 28(1) of the Restatement(Second) of Judgments, which provides: "Althoughan issue is actually litigated and determined by a validand final judgment, and the determination is essentialto the judgment, relitigation of the issue in a subsequentaction between the parties is not precluded inthe following circumstances: (1) The party againstwhom preclusion is sought could not, as a matter oflaw, have obtained review of the judgment in the initialaction . . . ." In other words, we will not applycollateral estoppel, where it would otherwise be applicable,if the party who was unsuccessful in the initialaction is barred, as a matter of law, from obtainingappellate review of the initial action. "Such cases canarise, for example, because the controversy has becomemoot . . . ." Id., § 28, comment (a).

While § 28(1) of the Restatement previously has notbeen adopted expressly by this court, it was cited withapproval in Convalescent Center of Bloomfield, Inc. v.Dept. of Income Maintenance, 208 Conn. 187, 197,544 A.2d 604 (1988). In Convalescent Center Bloomfield,Inc., we considered whether access to judicial reviewwas a necessary precondition to permit an administrativedecision to command collateral estoppel effect. Weconcluded that "without the availability of judicialreview, neither the decision of an administrative agencynor that of a court is ordinarily entitled to be accordedpreclusive effect in further litigation." (Emphasis

[233 Conn. 269]

     added.) Id., 201. We are persuaded that the same logic,embodied in § 28(1) of the Restatement, should applyto the case before us. See also Sena v. Commonwealth,417 Mass. 250, 260, 629 N.E.2d 986 (1994) ("[w]e nowstate conclusively that for collateral estoppel to precludelitigation of an issue, there must have been availablesome avenue for review of the prior ruling on theissue"); Murray International v. Graham, 315 Md. 543,552-54, 555 A.2d 502 (1989) (adopting Restatement[Second], Judgments § 28). Because DeMilo was unableto obtain review of Judge Ripley's judgment, fromwhich the appeal was dismissed as moot, it should notbe barred from relitigating the factual and legal issuesdecided in rendering that judgment. DeMilo, therefore,was not precluded from relitigating, in a subsequentaction, the same issues that had been raised beforeJudge Ripley.

B

The question remains, however, as to what legaleffect, if any, Judge Ripley's judgment should haveafter the dismissal of DeMilo's appeal from that judgment.This is an issue of first impression in Connecticut.As a matter of federal law, federal courts> havedeveloped a principle of vacatur under which the preclusiveeffect of a judgment the appeal from which hasbeen dismissed as moot depends on whether that judgmenthas been dismissed or vacated expressly. SeeUnited States Bancorp Mortgage Co. v. Bonner MallPartnership, ___ U.S. ___, 115 S.Ct. 386, 130 L.Ed.2d233 (1994); United States v. Munsingwear, 340 U.S. 36,71 S.Ct. 104, 95 L.Ed. 36 (1950); 13A C. Wright,A. Miller & E. Cooper, Federal Practice and Procedure(2d Ed. 1984 and Sup. 1995) § 3533.10. The rationaleof the federal rule of vacatur is that it would be inequitableto impose on a party the adverse res judicataeffects of a district court judgment when that partywas denied the opportunity for appellate review

[233 Conn. 270]

     through no fault of its own. Associated General Contractorsof Connecticut, Inc. v. New Haven, 41 F.3d 62,67 (2d Cir. 1994). The federal courts>, however, requirethe unsuccessful party to make a motion to vacate theadverse judgment. United States v. Munsingwear,supra, 41. It is assumed under the federal rule that,absent vacatur, the judgment the appeal from whichwas dismissed as moot, would have a collateral effectwith respect to the issues decided by that judgment.

The rationale that it would be inequitable to imposeon a party the adverse collateral effects of a judgmentwhen that party was denied the opportunity for appellatereview is inapplicable, however, if, as we conclude,a judgment the appeal from which was dismissed asmoot has no collateral estoppel effect as to the issuesdecided by that judgment. 1 Restatement (Second),Judgments § 28(1) (1982). While the federal procedureis only parallel to the Restatement approach, the federalprocedure and § 28(1) of the Restatement (Second)merge at the same point. That point involves thequestion presented in this appeal, i.e., what is the effectof a trial court judgment, the appeal from which hasbeen dismissed as moot, if the unsuccessful party inthe trial court has failed to move to vacate the trialcourt judgment, and the party who was successful inthe trial court has brought an action to enforce thejudgment.

The approach taken by the Restatement (Second) ofJudgments postulates that the judgment carries no collateralestoppel effect if the appeal was dismissed asmoot. It does not, however, state that the judgmentis void. Moreover, because the federal practice requiresa motion to vacate a trial court judgment after theappeal was dismissed as moot, it follows that a trialcourt judgment is not void once an appeal from thejudgment has been dismissed as moot. If the judgmentwere deemed to be void mechanically, there would be

[233 Conn. 271]

     no need to require a party to move for vacatur. We conclude,therefore, that a trial court judgment the appealfrom which subsequently is dismissed as moot is notvoid, but is voidable.12

Once the appeal from a trial court judgment has beendismissed as moot, one of two things could happen ifthe parties chose to continue litigation. The unsuccessfulparty in the initial action could bring a direct attackon the judgment by a motion to set it aside. Rather thanautomatic vacatur in that instance, however, we willadopt the balancing approach employed by the UnitedStates Supreme Court in United States Bancorp MortgageCo. v. Bonner Mall Partnership, supra, 115 S.Ct.386, as well as by the Ninth Circuit Court of Appealsin Ringsby Truck Lines, Inc. v. Western Conference ofTeamsters, 686 F.2d 720, 722 (1982). Under RingsbyTruck Lines, Inc., upon motion of a party, an appellatecourt must remand the question of vacatur to thelower court to "balance . . . the consequences andattendant hardships . . . between the competingvalues of finality of judgment and right to relitigationof unreviewed disputes . . . ." Id. A court consideringa motion to set aside a judgment, the appeal fromwhich has been dismissed as moot, must determine ifthe remedy of setting the judgment aside is warranted.

Alternatively, the prevailing party in the initial actionmay bring an action to enforce the judgment, once theappeal from that judgment has been dismissed by an

[233 Conn. 272]

     appellate court as moot. That is the present case. Here,the commissioner brought suit against DeMilo toenforce Judge Ripley's order after the appeal fromJudge Ripley's judgment had been dismissed as moot.The basis of the commissioner's two count complaint —seeking damages for removal of the public nuisance ofthe junked vehicles and the foreclosure on the securityfor the removal bond — was the Ripley judgment,which ordered that DeMilo be liable for the costs ofabating the public nuisance and be required to post abond to ensure payment. DeMilo filed several specialdefenses to this action. See footnote 9. Only its fourthspecial defense, however, is relevant to our discussion.In its fourth special defense, DeMilo alleged that thecommissioner should be equitably estopped fromenforcing the Ripley judgment because the commissionerhad removed DeMilo's inventory in violation ofan automatic stay of proceedings13 and, as a result ofthe removal, the appeal from the judgment was heldto be moot. DeMilo further alleged that "[t]he orderwas erroneous." Since the Ripley judgment, as a resultof the dismissal of the appeal, had no preclusive effect,DeMilo not only could have, but should have, advancedany and all collateral attacks on the merits of the ordercontained in the Ripley judgment in its special defensesto the commissioner's complaint. Furthermore, bypleading in its fourth special defense that the Ripleyorder "was erroneous," DeMilo properly alleged anattack on the merits of the order.

Trial court orders arising from a judgment the appealfrom which was dismissed as moot carry a rebuttablepresumption of validity. "`Judicial precedents arepresumptively correct, and valuable to the legal communityas a whole. They are not merely the propertyof private litigants and should stand unless a court concludes

[233 Conn. 273]

     that the public interest would be served by avacatur.' Izumi Seimitsu Kogyo Kabushiki Kaisha v.United States Phillips Corp., 510 U.S. ___, 114 S.Ct.425, 428, 126 L.Ed.2d 396 (1993) (Stevens, J., dissenting)."United States Bancorp Mortgage Co. v. Bonner MallPartnership, supra, 115 S.Ct. 392. The partywho has suffered an adverse ruling in the trial court,therefore, has the burden to prove that the initial judgmentis invalid. Unless that party satisfies that burden,the initial judgment should remain viable. "It isthe petitioner's burden, as the party seeking relief fromthe status quo of the appellate judgment, to demonstrate. . . equitable entitlement to the extraordinaryremedy of vacatur." Id.

Judge Shea found that "the commissioner . . . presentedtestimony and other evidence to prove that thedefendant was violating the statutes and regulationsconcerning junkyards." After considering the meritsof the Ripley judgment, Judge Shea concluded that"[t]he evidence is overwhelming that the defendant wasoperating a motor vehicle junkyard on unlicensed property"in violation of § 14-67v, and enforced the judgment.DeMilo's attack on the merits of the ordercontained in the Ripley judgment in its fourth specialdefense, therefore, failed because DeMilo failed in itsburden to satisfy the court that "the order was erroneous."We conclude, consequently, that the trial courtproperly found that the Ripley judgment remained viableand that the commissioner could enforce that judgmentin the subsequent action which is the subject ofthis appeal.

II

DeMilo next claims that the commissioner wasallowed to recover on a theory that he had not pleaded.In the first count of his complaint, the commissioneralleged that he had paid the cost of the removal of the

[233 Conn. 274]

     junked vehicles and auto parts, the presence of whichconstituted the violation of § 14-67v, and that DeMilohad failed to reimburse him for his expenditures asrequired by the Ripley judgment. DeMilo argues thatbecause Judge Shea found that the commissioner "wasentitled to reimbursement regardless of Judge Ripley'sdecision," DeMilo was prejudiced because under thecomplaint it should not have to "counter nonexistentallegations that it was violating General Statutes§ 14-67v." We disagree with DeMilo's contention fortwo reasons.

First, the trial court did not find that the commissionerwas entitled to reimbursement "regardless of"the Ripley judgment. Although the commissioner incorrectlyclaimed at trial that the Ripley judgment had collateralestoppel effect, the trial court found that "thecommissioner did not rely wholly upon the doctrine ofcollateral estoppel, but presented testimony and otherevidence to prove that the defendant was violating thestatutes and regulations concerning junkyards." As discussedin part I of this opinion, the Ripley judgmentwas presumptively valid, subject to a showing of invalidityby DeMilo. Because DeMilo pleaded in its fourthspecial defense that the Ripley order was erroneous,it put the merits of that order in issue. The judgmentof Judge Shea enforced the Ripley judgment, basedupon the court's independent conclusion that DeMilo"was operating its motor vehicle junkyard in violationof the regulatory statutes . . . ." Thus, instead of concluding,as DeMilo contends, that the commissioner wasentitled to reimbursement regardless of the Ripley judgment,the trial court determined that the commissionerwas entitled to reimbursement because of that judgment,since it was based on correct factual findings andremained viable.

Second, we disagree with DeMilo's claim that therewere no allegations before the trial court in this case

[233 Conn. 275]

     that it was violating § 14-67v. DeMilo mounted a collateralattack on the merits of the Ripley judgment byalleging in its fourth special defense that the judgmentwas erroneous and DeMilo admits that "[b]oth partiesaddressed the issue in testimony . . . ." See footnote9. The fact that DeMilo was unable to persuade the trialcourt on the merits of its fourth special defense doesnot mean that the violations underlying the Ripley judgmentwere not in issue before the trial court. Indeed,quite the opposite is true. Because the merits of theRipley order were considered in this case at the requestof DeMilo, the allegations underlying that order clearlywere in issue at trial.

DeMilo cites only Willametz v. Guida-Seibert DairyCo., 157 Conn. 295, 254 A.2d 473 (1968), as authorityfor the proposition that the commissioner recoveredon a theory that he had not pleaded. In Willametz, westated that "`[i]t is fundamental in our law that theright of a plaintiff to recover is limited to the allegationsof his complaint. . . .'" Id., 302. We do not disagreewith this statement; it does not, however, affordDeMilo its requested relief.

"`A variance is a departure of the proof from thefacts as alleged. Not every variance, however, is a fatalone since immaterial variances are disregarded underour practice. Practice Book § [178] . . . . Only materialvariances, those which disclose a departure fromthe allegations in some matter essential to the chargeor claim, warrant the reversal of a judgment. . . .'Strimiska v. Yates, 158 Conn. 179, 183, 257 A.2d 814(1969); Web Press Services Corporation v. New LondonMotors, Inc., 203 Conn. 342, 359-60, 525 A.2d 57(1987) . . . O'Connor v. Dory Corporation, 174 Conn. 65,68, 381 A.2d 559 (1977)." Tedesco v. Stamford,215 Conn. 450, 461, 576 A.2d 1273 (1990), remanded,

[233 Conn. 276]

     24 Conn. App. 377, 588 A.2d 656 (1991), rev'd, 222 Conn. 233,610 A.2d 574 (1992).14

A variance is material only if the defendant is prejudicedby it. "We cannot say that the defendant wasprejudiced in maintaining his defense on the merits,or that he was surprised by the plaintiff's proof, or thathe was misled by the allegations in the complaint. Forthese reasons, the variance was not a material one."Strimiska v. Yates, supra, 158 Conn. 184. This is particularlytrue in the present case, where DeMilo's fourthspecial defense invited the commissioner to present evidenceregarding the merits of the Ripley judgment.DeMilo could not have been surprised or misled by thepresentation of evidence by the commissioner to rebutDeMilo's fourth special defense, since that evidence wasprecipitated by DeMilo's own allegation that the Ripleyjudgment was erroneous. We conclude, therefore, thatDeMilo was not prejudiced by the trial court's considerationof evidence of DeMilo's statutory and regulatoryviolations, since that evidence was proper to rebutDeMilo's fourth special defense.

III

DeMilo's third claim is that the trial court improperlyconcluded that the amount claimed by the commissionerfor the cost of removal of DeMilo's inventorywas reasonable, when the commissioner had not compliedwith competitive bidding procedures required by

[233 Conn. 277]

     § 4a-57. See footnotes 7 and 10. The trial court foundthat the commissioner did not comply with the requirementsof § 4a-57 in obtaining bids for the removal ofmaterials in compliance with the Ripley judgment. Thecommissioner "did obtain three competitive bids, butdid not fulfill the statutory requirements for `notice toprospective suppliers,' posting such notice, sealed bids,public opening, and advertising when the amount ofthe purchase exceeds $10,000." See General Statutes§ 4a-57. Because the commissioner did not proceedaccording to the statute, DeMilo argues that the commissionershould not be allowed to recover on his complaint.We disagree.

The trial court acknowledged that the competitivebidding statutes are mandatory and that they areintended to protect the public purse. See Kelley v. Torrington,80 Conn. 378, 382, 68 A. 855 (1908). DeMiloagrees that the statute's "purpose is essential to protectthe public." It contends, however, that by notallowing the commissioner to recover, the court wouldencourage compliance with the statute in the future,and would "protect [DeMilo] who is a member of thepublic." DeMilo has focused on itself, and not on thepublic, as the intended beneficiary of the statute.

The obvious purpose of § 4a-57 is to protect the publicfrom collusive contracts that may result in the overpaymentof public funds. A violation of the statute,however, does not result in a forfeiture of the commissioner'sright, pursuant to the Ripley judgment, torecover the reasonable cost of removal of the conditionsconstituting a public nuisance on DeMilo's property.15To construe the violation of a statute intended

[233 Conn. 278]

     to conserve public funds to result in the loss of reimbursementof those funds would be, as the trial courtfound, "nonsensical."

The court properly considered a violation of § 4a-57to be of some relevance to the determination of reasonablecost, but determined that it was not dispositive.There was evidence presented upon which thecourt could have relied to conclude that the cost ofremoval was reasonable. Although the bids receivedwere not in compliance with § 4a-57, the fact that thecommissioner did contract with the contractor who hadsubmitted the lowest of three bids is some evidence ofreasonableness.16 Moreover, payments actually madefor work performed "is ordinarily some evidence of itsvalue." Devine Hallenbeck Co. v. Autoyre Co., 113 Conn. 97,101, 154 A. 170 (1931). "[P]roof of the expensespaid . . . affords some evidence of the value of theservices, and if unreasonableness in amount does notappear from other evidence or through application ofthe trier's general knowledge of the subject-matter, itsreasonableness will be presumed." (Internal quotationmarks omitted.) Fuessenich v. DiNardo, 195 Conn. 144,156, 487 A.2d 514 (1985). DeMilo has failed to presentcredible evidence to rebut that presumption.

"On appeal, it is the function of this court to determinewhether the decision of the trial court is clearlyerroneous. . . . This involves a two part function:where the legal conclusions of the court are challenged,we must determine whether they are legally and logically

[233 Conn. 279]

     correct and whether they find support in the factsset out in the memorandum of decision; where the factualbasis of the court's decision is challenged we mustdetermine whether the facts set out in the memorandumof decision are supported by the evidence orwhether, in light of the evidence and the pleadings inthe whole record, those facts are clearly erroneous."(Citation omitted.) Pandolphe's Auto Parts, Inc. v. Manchester,181 Conn. 217, 221-22, 435 A.2d 24 (1980).DeMilo, therefore, had the burden to demonstrate thatthe trial court's factual finding of the reasonablenessof the cost of removal was clearly erroneous. On thebasis of our review of the record, we conclude thatDeMilo has failed to do so.

IV

Finally, DeMilo claims that the trial court improperlyratified the commissioner's removal of materialsfrom areas not anticipated in the Ripley judgment. Thisclaim is encompassed by the third special defense raisedby DeMilo before the trial court. See footnote 9. DeMilodoes not dispute that, according to the Ripley judgment,the commissioner could have moved the materials thathad been removed from DeMilo's property in June,1987, to property owned by the city of Hartford, butargues that the April, 1988 removal of vehicles anddebris from the city's property to another destinationwas beyond the scope of the Ripley judgment. Thisargument is without merit.

DeMilo bases its argument on the language of theorder in the Ripley judgment, which provides that thecommissioner or its agents are authorized "to immediatelyenter the unlicensed areas . . . to immediatelyeliminate, at the expense of the Defendant, the conditionswhich constitute the violation . . . ." (Emphasisadded.) Because the April, 1988 removal project wasnot immediate, DeMilo contends that it should not be

[233 Conn. 280]

     liable for the costs of removal. The commissioner didnot claim reimbursement from DeMilo for the expenseof moving the junked vehicles to the temporary storagelocation in June, 1987. As the trial court found,DeMilo seeks to isolate the work performed in April,1988, for which it was assessed, from the circumstancesthat made such work necessary. Such an interpretationwould eviscerate the Ripley judgment. The trialcourt properly concluded that the "removal and dispositionof the defendant's junk that had been storedtemporarily on city property was an integral part ofthe operation authorized by the court . . . ."

DeMilo also contends that the commissioner did notprove that the material that had been stored on thecity's property ever had been owned by DeMilo. DeMiloconcedes that the commissioner removed its materialin June, 1987, from the unlicensed areas covered in theRipley order and placed it in piles on the city's property.DeMilo argues, however, that the commissionerfailed to prove that the material that was removed tenmonths later, in April, 1988, from the city's propertycontained the same items placed on the city's propertyin June, 1987. This argument is implausible.

Photographs of the junk both before and after theinitial move were admitted as full exhibits before thetrial court. Additionally, Howard Koenig, an inspectorfor the dealers and repairers division of motor vehicles,testified that he had supervised the removal ofvehicles from the unlicensed area to the city's propertyin compliance with the Ripley order. There is no evidenceon the record that the piles removed from thecity's property in April, 1988, did not contain the sameitems placed there by transportation in June, 1987.Instead of meeting its burden of proving that the trialcourt's finding was clearly erroneous; Pandolphe's AutoParts, Inc. v. Manchester, supra, 181 Conn. 221-22;DeMilo simply has stated that the finding was made

[233 Conn. 281]

     "in relevant part without evidence." We are not persuadedthat DeMilo has demonstrated that the trialcourt's finding that there was "ample evidence that allof the items removed were situated on the unlicensedportions of the property owned or leased by the defendant,"was clearly erroneous.

The judgment is affirmed, and the case is remandedto the trial court to set new law days.

In this opinion the other justices concurred.

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

2. General Statutes § 14-67v provides: "PENALTY.INJUNCTION TO RESTRAIN VIOLATION. Any person, or any officer oragent of any firm or corporation, who establishes, operates ormaintains a motor vehicle junk yard or motor vehicle junkbusiness in any location within a restricted district createdunder the provisions of this subdivision (H), or establishes,operates or maintains such junk yard or business withoutprocuring such certificate of approval from the local authorityor establishes, operates or maintains an intermediate processorin violation of any provision of this subdivision (H), ortransports or hauls any motor vehicle or used parts of a motorvehicle in violation of any provision of this subdivision (H) orviolates any provision of this subdivision (H), shall be finednot more than one hundred dollars or imprisoned not more thanninety days or both. Each day of such establishment, operation ormaintenance in violation hereof shall constitute a separateoffense. The commissioner of motor vehicles may, after notice andhearing, impose a civil penalty of not more than two thousanddollars on any person, firm or corporation who establishes,operates or maintains such junkyard or business without alicense. In addition to the penalties herein prescribed, thecommissioner of motor vehicles or the local authority, upon aviolation of any of the provisions of this subdivision (H), maybring an application to the superior court for the judicialdistrict where such yard or business is located to enjoin afurther operation or maintenance of such yard or business and toabate the same as a public nuisance. Said court may, upon findingsuch yard or business has been established, operated ormaintained in violation of the provisions of this subdivision(H), issue such injunction as it deems equitable and make suchorder for the discontinuance or abatement of such yard orbusiness as a nuisance as it finds to be necessary, includingauthorization to the commissioner of motor vehicles to enter suchyard or business to eliminate, at the expense of the defendant,the conditions which constitute the violation of any provision ofthis subdivision (H)." Unless otherwise noted, we use the current statutes throughoutthis opinion because there are no relevant differences betweenthese statutes and those in effect at the time of the underlyingcontroversy.

3. General Statutes § 14-67r provides: "FENCING. Each newlocation of a motor vehicle junk yard shall be completelysurrounded with a solid fence at least eight feet high with asuitable gate which shall be closed and locked except during theworking hours of such junk yard. All unregistered motor vehicles,used parts, old iron, metal, glass, paper, and any other materialwhich may have been parts of such vehicles shall be enclosedwithin this location. Any dismantling of material or cutting upof parts of such vehicles must be carried on within thisenclosure." The relevant Regulations of Connecticut State Agenciesregarding motor vehicle junkyards provide: Sec. 14-67q-4. AREA REQUIRED FOR STORAGE OF SALVAGE MOTORVEHICLES "Each licensed motor vehicle junkyard shall maintain a separateand distinct area for the storage of salvage motor vehicles, andsuch area shall in no case exceed eighty per cent of the licensedand usable area of such yard. . . . "Sec. 14-67q-6. LOCATION OF STORED VEHICLES "Each salvage or scrap motor vehicle stored or deposited withina motor vehicle junkyard shall be so located as to be within onehundred feet of an accessible roadway or driveway with a minimumwidth of twelve feet, such driveway or roadway being connected toa public road or highway. "Sec. 14-67q-7. PROXIMITY TO OTHER VEHICLES "With the exception of a motor vehicle placed or stored on topof another, no scrap or salvage motor vehicle shall be locatedcloser than one foot to an adjacent vehicle, provided when scrapor salvage motor vehicles are deposited or stored in a continuousline not to exceed four passenger motor vehicles in length, itshall be necessary only to maintain the one-foot separationbetween the sides of such vehicles. "Sec. 14-67q-8. LOCATION OF VEHICLES PURCHASED FOR SCRAP "Each motor vehicle purchased or obtained for scrap shall bedeposited or stored in the portion of the yard reserved for theprocessing of vehicles. . . . "Sec. 14-67q-10. STACKING OF OTHER MOTOR VEHICLES "Stacking of motor vehicles, other than processed motorvehicles, at a height greater than two vehicles is prohibited."

4. See footnote 2.

5. The regulations cited by motor vehicles were the sameregulations at issue in the administrative proceeding. Seefootnote 3.

6. General Statutes § 14-67i provides: CERTIFICATE OFAPPROVAL OF LOCATION; LICENSE REQUIRED. EXCEPTIONS. (a) Noperson, firm or corporation shall establish, operate or maintaina motor vehicle junk yard or motor vehicle junk business unless acertificate of approval of the location to be used therefor hasbeen procured from the selectmen of the town, the mayor of thecity or the warden of the borough wherein such yard or businessis located or is proposed to be located, except that, in any cityor town having a zoning commission, such certificate shall beprocured from the zoning commission, certifying that suchlocation is suitable for the proposed use, consideration beinggiven to the factors specified in section 14-67k, nor unless alicense to establish or maintain such a yard or such a businesshas been obtained from the commissioner of motor vehicles asprovided in section 14-67l]. "(b) The provisions of this section shall not apply to: (1) Anypublic agency, as defined in section 7-339a, which acquires,collects, dismantles or disposes of junk or abandoned motorvehicles pursuant to a program of solid waste disposal, inaccordance with the provisions of chapter 446d and theregulations of Connecticut state agencies, concerning theoperation of motor vehicle junk yards, provided this exemptionshall not apply to any public agency which sells or distributesor exchanges for profit motor vehicle parts for reuse as such,and provided further, such public agency shall designate anemployee to maintain accurate records of all motor vehiclesreceived and processed. Such records shall include the make,year, serial number and, if available, the name and address ofthe person from whom each vehicle was received. A list containingthe make, year and serial number of each such motor vehicle shallbe sent to the commissioner of motor vehicles on or before thelast day of the month following the month during which suchdisposal occurred; or (2) any intermediate processor, operatingat a licensed facility, pursuant to subsection (a) of thissection. `Intermediate processor' means any person, firm orcorporation which dismantles, crushes or otherwise conditionsjunk or abandoned motor vehicles or parts thereof for delivery toa scrap metal processor as defined in section 14-67w, or fordisposal in any other manner permitted by law, and which does notsell automobile parts for reuse as parts; provided all such junkor abandoned motor vehicles or parts thereof shall, at the timeof such dismantling, crushing or conditioning, be owned by or inthe custody of, and located on premises of or maintained by theholder of a motor vehicle junk yard license issued pursuant tosection 14-67l, or by a public agency exempted underthis subsection."

7. General Statutes (Rev. to 1993) § 4a-57 provides inrelevant part: "COMPETITIVE BIDS FOR PURCHASES AND CONTRACTS.SALES. WAIVER. COMPETITIVE NEGOTIATIONS. (a) All purchases of,and contracts for, supplies, materials, equipment and contractualservices, except gas, water and electric light and powerservices, and purchases and contracts made pursuant to theprovisions of subsection (c) of this section shall be based, whenpossible, on competitive bids. Any personal property which hasbecome obsolete, unserviceable or unusable may be sold (1) on thebasis of competitive bids, (2) at public auction or (3) at aretail store owned by the state and open to the public. Thecommissioner shall solicit competitive bids by sending notice toprospective suppliers and by posting notice on a public bulletinboard in his office. Such notice shall contain a notice of statecontract requirements pursuant to section 4a-60. Each bid shallbe kept sealed until opened publicly at the time stated in thenotice soliciting such bid. If the amount of the expenditure orsale is estimated to exceed ten thousand dollars, competitivebids shall be solicited by public notice inserted at least oncein not fewer than three daily newspapers published in the state,and at least five calendar days before the final date ofsubmitting bids. All purchases or sales of ten thousand dollarsor 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-52and subsection (a) of this section on the basis of competitivebids shall be offered for sale to municipalities, transitdistricts and the public at the same time, provided thecommissioner of administrative services shall sell the propertyto the municipality or transit district which submits the highestbid. If no municipality or transit district submits a bid thecommissioner shall sell the property to the highest publicbidder. Any personal property to be sold under said section andsubsection at a public auction shall be offered first tomunicipalities and transit districts and sold to the municipalityor transit district which makes the highest bid, provided thecommissioner may order that any or all bids may be rejected when,in his opinion, the best interest of the state would be servedthereby. If no municipality or transit district makes a bid, orif all bids are rejected, the commissioner shall solicit bidsfrom the public at the same public auction and shall sell theproperty to the highest public bidder. (2) If the commissioner isunable to sell any property to the highest public bidder pursuantto subdivision (1) of this subsection, the commissioner shalloffer the property for sale to the public at a retail store ownedby the state. If the commissioner is unable to sell any propertyat such store, he shall donate the property to a charitable orother nonprofit organization. If the commissioner is unable todonate the property to such an organization, he shall dispose ofthe property. "(c) The commissioner may, at his discretion,waive the requirement of competitive bidding in the case of minornonrecurring and emergency purchases of six hundred dollars orless in amount. The commissioner may use competitive negotiationto purchase or contract for data processing equipment, programsor services having a cost of twenty thousand dollars or less oradvertising space or time after making a written determination,including the reasons therefor, that such action is in the bestinterest of the state. The commissioner shall adopt regulations,in accordance with the provisions of chapter 54, establishing (1)objective standards for determining when such competitivenegotiation may be used instead of competitive bidding, includingwhether the character of such data processing equipment, programsor services or advertising space or time is more importantthan their relative cost, (2) procedures to be followed in makingpurchases, contracts or sales not subject to the competitive bidrequirements of this section, including but not limited to,criteria which shall be considered in making purchases bycompetitive negotiation and the weight which shall be assigned toeach such criterion and (3) standards and procedures under whichadditional purchases may be made on a limited basis underexisting contracts."

8. On appeal, DeMilo does not challenge the finding of JudgeShea that there had been no automatic stay of the judgmentrendered by Judge Ripley. General Statutes § 52-477 providesthat an application for such a stay is necessary in the case ofan appeal from a judgment for a permanent injunction, such as inthis case. The judgment had been rendered pursuant to § 14-67v,which provides for injunctive relief. DeMilo had applied fora stay of the judgment, but that application was denied by JudgeRipley on June 10, 1987.

9. The special defenses provide in relevant part: FIRST SPECIAL DEFENSE: "1. The moving of materials by the plaintiff or for theplaintiff was performed without compliance with the Department ofMotor Vehicles and Department of Environmental ProtectionLaws . . . . "2. As a result, the defendant should not be charged with thecost of removal. SECOND SPECIAL DEFENSE: "1. The costs of the move secured by the mortgage [were]incurred without competitive bidding and were not reasonable orjust. "2. As a result, the defendant should not be responsible to paythe costs claimed. "THIRD SPECIAL DEFENSE: "1. The plaintiff moved the materials from areas not covered bythe court order referred to in the complaint. "2. As a result, the defendant should not be held responsiblefor the costs claimed. FOURTH SPECIAL DEFENSE: "1. The plaintiff moved the property in violation of theautomatic stay [of] proceedings. "2. As a result, the defendant's appeal from the order was heldto be moot. "3. The order was erroneous. "4. As a result, the defendant should not have to pay the costsof removal and should be equitably [e]stopped to make the claim."

10. In its brief, DeMilo separated its third claim into fourseparate claims of error. Each claim, however, is an aspect ofthe same argument — that the trial court improperlyconcluded that the commissioner's damages were reasonable. We,therefore, will address these contentions as a single claim.

11. In its opposition to DeMilo's petition for certificationto this court, the commissioner stated: "In this Appeal, theInjunctive Order has been almost completely executed, thepersonal property of DeMilo has been removed and disposedof . . . . DeMilo testified it would not remove the personaltyfrom the unlicensed areas and therefore effectively abandoned anyclaim to that personal property, and a major portion of therealty involved is now a roadway." DeMilo argues that thisstatement caused the appeal to be dismissed as moot. There isnothing in the record to indicate why the Appellate Court haddismissed the appeal as moot, except its one sentence order,stating: "After hearing on the question whether the appeal shouldbe dismissed as moot, the Appellate Court, suo motu, finds thatthe appeal should be, and hereby is, dismissed." It appears that,although DeMilo had an opportunity to argue to the AppellateCourt how it could be afforded practical relief in order to avoida dismissal, it failed to do so. Without deciding whether it wasmisleading to indicate to this court in March, 1988, that theproperty had been "removed and disposed of" when the finalremoval occurred in April, 1988, we note that the statement madeto this court could not have been the reason for the AppellateCourt's dismissal. The issue here must focus on the fact that theappeal was dismissed as moot, not on the reasoning of theAppellate Court when it dismissed the appeal as moot.

12. We have stated that "[v]oidable judgments are not subjectto collateral attack." D'Occhio v. Connecticut Real EstateCommission, 189 Conn. 162, 173, 455 A.2d 833 (1983); see alsoMeinket v. Levinson, 193 Conn. 110, 113-14, 474 A.2d 454 (1984);Jensen v. Nationwide Mutual Ins. Co., 158 Conn. 251, 260,259 A.2d 598 (1969); Holly v. McDonald, 154 Conn. 228, 234,224 A.2d 727 (1966); Rathkopf v. Pearson, 148 Conn. 260, 265, 170 A.2d 135(1961). This statement, however, has not been made in the contextof a collateral attack on a judgment that could not be reviewedbecause it was dismissed on appeal as moot. Sound jurisprudentialpolicy requires an exception in such a case.

13. See footnote 8.

14. Practice Book § 178 provides: "In all cases of anymaterial variance between allegation and proof, an amendment maybe permitted at any stage of the trial. If such allegation wasmade without reasonable excuse, or if the adverse party wasactually misled thereby to his prejudice in maintaining hisaction or defense upon the merits, or if such amendment requirespostponement of the trial or additional expense to the adverseparty and this is shown to the satisfaction of the court, suchamendment shall be made only upon payment of costs or upon suchterms as the

15. The proper statutory remedy for a violation of § 4a-57is found in General Statutes § 4a-65, which provides:"UNLAWFUL PURCHASES. When any state agency purchases or contractsfor any supplies, materials, equipment or contractual servicescontrary to the provisions of this chapter or the regulationspromulgated in pursuance thereof, such order or contract shall bevoid and of no effect. The administrative head of such agencyshall be personally liable for the costs of such order orcontract and, if already paid for out of state funds, the amountthereof may be recovered from such administrative head by thestate in a civil action." Because the issue of § 4a-65 is nothere presented, we decline to address its possible implicationsin this case.

16. The bids received were for $585,000, $230,000 and$224,900. The commissioner contracted with Essex Auto Salvage,Inc., which had bid $224,900.

The principal question in this appealis the extent to which a trial court judgment, the appealfrom which was dismissed as moot, can later beenforced by the party that initially had prevailed. Thedefendant, DeMilo and Company, Inc. (DeMilo), appealsfrom the judgment of the trial court, Hon. David M.Shea, state trial referee,1 which concluded that: (1) theplaintiff, the commissioner of motor vehicles (commissioner),could recover from DeMilo, pursuant to GeneralStatutes § 14-67v,2 the cost of remediating the

[233 Conn. 257]

     conditions that a previous court had found constituteda public nuisance on DeMilo's property; and (2) the commissionerwas entitled to foreclose on a mortgage onits real estate that had been given by DeMilo to securea bond to cover the cost of the abatement of the publicnuisance. We affirm the judgment of the trial court.

The relevant facts essentially are undisputed. Since1975, DeMilo has owned and operated a motor vehiclejunkyard and parts business in Hartford. On August 1,1985, the department of transportation (transportation)acquired, by eminent domain, a portion of DeMilo'sland. That land consisted of the southeasterly cornerof DeMilo's rectangularly shaped parcel, as well assome adjoining land leased by DeMilo from the Barillafamily, on which DeMilo had stored some of its junkedvehicles. The land had been acquired by transportationin order to construct a new service road, now knownas Liebert Road, in connection with the transportation'sreconstruction of Interstate 91. Because the propertyacquired by transportation contained many junked vehiclesand automobile parts, transportation was inhibitedfrom going forward with its construction plans.

In connection with its acquisition of DeMilo's land,transportation requested that the commissioner ofmotor vehicles investigate whether DeMilo was in compliancewith the department of motor vehicle's (motorvehicles) regulations regarding automobile junkyards.In August, 1986, inspectors from motor vehicles visitedthe property and found numerous violations of the

[233 Conn. 258]

     motor vehicle regulations. After an administrativehearing, an adjudicator for motor vehicles concludedthat DeMilo was in violation of General Statutes§ 14-67r, and the Regulations of Connecticut StateAgencies regarding motor vehicle junkyards, §§ 14-67q-4,14-67q-6, 14-67q-7, 14-67q-8 and 14-67q-10.3 The violationsincluded: the lack of proper fencing around thelicensed junkyard area; the stacking of motor vehicles

[233 Conn. 259]

     at a height greater than allowed; a licensed junkyardarea filled beyond the 80 percent maximum; and thelocation of salvage motor vehicles outside the licensedjunkyard area. The adjudicator suspended DeMilo'sjunkyard license and imposed a civil penalty of $1000on DeMilo.

On February 17, 1987, DeMilo appealed from theadministrative decision to the Superior Court. DeMiloclaimed that the decision was arbitrary, unreasonableand an abuse of discretion in that: (1) the commissionerhad selectively enforced motor vehicles' regulationsthereby violating DeMilo's right to equal protection;(2) § 14-67r had been illegally applied; (3) the statuteempowering the commissioner to promulgate regulationswas unconstitutionally vague; (4) the commissionerhad exceeded his authority in promulgatingregulations; and (5) the commissioner was estoppedfrom enforcing the regulations because he had knownabout the violations for some time before institutingan action. The dismissal of DeMilo's appeal by the trialcourt, Susco, J., is the subject of another case decidedthis same date. See DeMilo & Co. v. Commissioner ofMotor Vehicles, 233 Conn. 281, ___ A.2d ___ (1995).

Subsequently, on February 26, 1987, the commissionerbrought an action, pursuant to § 14-67v,4 toenjoin DeMilo from operating or maintaining a motorvehicle junkyard in violation of motor vehicles regulations.5After a hearing held that same day, a temporaryinjunction was issued by the court, Aronson, J., orderingDeMilo immediately to "take steps to remove allunregistered motor vehicles, used parts, tires and othermaterials . . . from the property outside its fenced-in

[233 Conn. 260]

     motor vehicle junkyard location . . . ." The courtalso scheduled further hearings to be held on the application.

DeMilo made the same claims as special defenses tothe commissioner's application for an injunction asthose it had advanced in its appeal in the administrativeaction before Judge Susco, i.e., selective enforcementof the regulations, illegal application of § 14-67r,vagueness of the regulations, the commissioner'sexceeding his authority in promulgating the regulationsand estoppel. DeMilo stipulated, however, that not allof the violations that had existed at the time of theadministrative hearing before the motor vehicles adjudicatorhad been abated. After a plenary hearing onmotor vehicles' application for an injunction, the court,Ripley, J., concluded that DeMilo had violated variousstatutes and regulations and had created a public nuisancein violation of § 14-67v. The court found, amongother things, that DeMilo was conducting motor vehiclejunkyard operations outside the area licensed bymotor vehicles for such use. The court also rejectedeach of DeMilo's special defenses.

As a result, the court rendered a judgment orderingthat the commissioner be "authorized to immediatelyenter the unlicensed areas . . . to immediately eliminate,at the expense of the defendant, the conditionswhich constitute the violation . . . ." The court furtherordered that DeMilo "immediately post a bond withthe Court in the amount of One Hundred Thousand Dollars($100,000.00) to cover the cost of immediatelyeliminating the conditions which constitute the violation. . . ."

On June 10, 1987, two days after the court's judgmenthad been rendered, transportation, acting as theagent of the commissioner of motor vehicles, began theremoval of junked vehicles and other debris from the

[233 Conn. 261]

     unlicensed areas of DeMilo's land pursuant to thecourt's order. By June 18, 1987, two large piles of theremoved material had been accumulated on a temporarynearby site owned by the city of Hartford.Transportation then resumed work on its originalproject of reconstructing Interstate 91, and, with thepermission of the city, left the accumulated piles ofdebris on the city's property. DeMilo complied with theprovision of the court order requiring it to post a bondof $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 payto the state "the just and full sum to comply with thereferenced court order."

On March 30, 1988, the commissioner contracted withEssex Auto Salvage, Inc., to remove the piles of junkedvehicles and debris from the city's property. The workwas completed between April 11 and 28, 1988. The commissionerbilled DeMilo for the cost of the April, 1988removal. DeMilo has refused to compensate the statefor that cost.

Before the April, 1988 removal work had commenced,DeMilo appealed from the judgment renderedby Judge Ripley to the Appellate Court, claiming thatthe trial court improperly had: (1) concluded that thecondition 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

[233 Conn. 262]

     on areas unlicensed by motor vehicles for a motor vehiclejunkyard business. After a hearing, on February4, 1988, the Appellate Court, sua sponte, dismissed theappeal as moot. We denied DeMilo's petition for certificationfor review of the Appellate Court's dismissal.Commissioner of Motor Vehicles v. DeMilo & Co.,207 Conn. 809, 541 A.2d 1238 (1988). Our denial occurredafter the commissioner had represented to this court,in its opposition to the petition for certification, thatthe order contained in the judgment on appeal had been

[233 Conn. 263]

     almost completely executed, in that the junked vehiclesand other debris had been removed from theunlicensed areas. Further, the commissioner representedthat DeMilo had not requested any practicalrelief from the order, nor could the court furnish any.

On January 19, 1989, the commissioner brought thisaction in the Superior Court to enforce Judge Ripley'sorder. The complaint alleged that the commissioner hadcomplied with the order by having a contractor disposeof the junked vehicles and other debris on theunlicensed property. In count one of the complaint, thecommissioner requested monetary damages becauseDeMilo had failed to reimburse him for the expense ofabating the public nuisance, as ordered by Judge Ripley.In count two of the complaint, the commissioner soughtto foreclose his mortgage on DeMilo's property,obtained when DeMilo, in compliance with the Ripleyorder, had posted the bond that was secured by a mortgagedeed on its remaining real estate in Hartford.

DeMilo filed four special defenses to the commissioner'scomplaint, claiming that it should not have topay the costs of removal because the commissioner hadremoved materials from the property: (1) in violationof the laws and regulations governing both motor vehiclesand the department of environmental protection;(2) without competitive bidding as required by GeneralStatutes (Rev. to 1993) § 4a-57;7 (3) from areas not

[233 Conn. 264]

     covered by the judgment; and (4) in violation of an automatic

[233 Conn. 265]

     stay of proceedings8 resulting from the appealto the Appellate Court of the judgment. The fourth specialdefense included an allegation that the Ripley orderwas "erroneous."9 Judge Shea rejected each ofDeMilo's defenses, and rendered judgment for the commissioneron both counts of his complaint.

[233 Conn. 266]

DeMilo's seven claims on appeal can be encapsulatedinto four. First, DeMilo questions the validity of thejudgment of Judge Ripley as the basis of the commissioner'sclaims in the action that is the subject of thisappeal, because the appeal from that judgment hadbeen dismissed as moot by the Appellate Court. Second,DeMilo claims that the trial court improperlyallowed the commissioner to recover under a theorythat he had not pleaded. Third, DeMilo claims that thetrial court improperly concluded that the amountclaimed by the commissioner for the cost of removalwas reasonable, when the commissioner had not compliedwith competitive bidding procedures, purportedlyrequired by § 4a-57.10 See footnote 7. Finally, DeMiloclaims that the trial court improperly ratified the commissioner'sremoval of materials from areas not anticipatedin the order.

I

DeMilo first claims that the commissioner should beequitably estopped from enforcing Judge Ripley's judgmentbecause the commissioner had been successful inhis arguments both to the Appellate Court and to thiscourt, which resulted in the dismissal as moot ofDeMilo's appeal from that judgment and a denial ofcertification.11 DeMilo argues that it was prejudiced

[233 Conn. 267]

     because it could not challenge Judge Ripley's order onappeal, and, therefore, the order is unenforceable.DeMilo also claims that the Ripley judgment wasineffectual once the appeal had been dismissed as moot.We are not persuaded.

A

"Claim preclusion, sometimes referred to as resjudicata, and issue preclusion, sometimes referred toas collateral estoppel, are first cousins. Both legal doctrinespromote judicial economy by preventing relitigationof issues or claims previously resolved. State v.Ellis, 197 Conn. 436, 466, 497 A.2d 974 (1985)." Scalzov. Danbury, 224 Conn. 124, 127, 617 A.2d 440 (1992)."Under Connecticut law, `[c]ollateral estoppel, or issuepreclusion, prohibits the relitigation of an issue whenthat issue was actually litigated and necessarily determinedin a prior action. . . . For an issue to be subjectto collateral estoppel, it must have been fully andfairly litigated in the first action. It also must have beenactually decided and the decision must have been necessaryto the judgment. . . . The doctrine of collateralestoppel is based on the public policy that a party shouldnot be able to relitigate a matter which it already hashad an opportunity to litigate.' (Citations omitted; internalquotation marks omitted.) Aetna Casualty & SuretyCo. v. Jones, 220 Conn. 285, 296, 596 A.2d 414(1991)." (Emphasis added.) Mulligan v. Rioux,229 Conn. 716, 751, 643 A.2d 1226 (1994).

[233 Conn. 268]

Judge Shea concluded that "[b]ecause the defendant'sappeal from [Judge Ripley's judgment] was dismissedfor mootness by the Appellate Court without a reviewof the merits . . . the commissioner cannot simplyrely on that judgment as precluding by way of collateralestoppel the relitigation of issues relevant to this suitto recover the expenses of eliminating the violationsof the junkyard statutes and regulations that hadresulted in the issuance of the injunction." For thisproposition, the court adopted § 28(1) of the Restatement(Second) of Judgments, which provides: "Althoughan issue is actually litigated and determined by a validand final judgment, and the determination is essentialto the judgment, relitigation of the issue in a subsequentaction between the parties is not precluded inthe following circumstances: (1) The party againstwhom preclusion is sought could not, as a matter oflaw, have obtained review of the judgment in the initialaction . . . ." In other words, we will not applycollateral estoppel, where it would otherwise be applicable,if the party who was unsuccessful in the initialaction is barred, as a matter of law, from obtainingappellate review of the initial action. "Such cases canarise, for example, because the controversy has becomemoot . . . ." Id., § 28, comment (a).

While § 28(1) of the Restatement previously has notbeen adopted expressly by this court, it was cited withapproval in Convalescent Center of Bloomfield, Inc. v.Dept. of Income Maintenance, 208 Conn. 187, 197,544 A.2d 604 (1988). In Convalescent Center Bloomfield,Inc., we considered whether access to judicial reviewwas a necessary precondition to permit an administrativedecision to command collateral estoppel effect. Weconcluded that "without the availability of judicialreview, neither the decision of an administrative agencynor that of a court is ordinarily entitled to be accordedpreclusive effect in further litigation." (Emphasis

[233 Conn. 269]

     added.) Id., 201. We are persuaded that the same logic,embodied in § 28(1) of the Restatement, should applyto the case before us. See also Sena v. Commonwealth,417 Mass. 250, 260, 629 N.E.2d 986 (1994) ("[w]e nowstate conclusively that for collateral estoppel to precludelitigation of an issue, there must have been availablesome avenue for review of the prior ruling on theissue"); Murray International v. Graham, 315 Md. 543,552-54, 555 A.2d 502 (1989) (adopting Restatement[Second], Judgments § 28). Because DeMilo was unableto obtain review of Judge Ripley's judgment, fromwhich the appeal was dismissed as moot, it should notbe barred from relitigating the factual and legal issuesdecided in rendering that judgment. DeMilo, therefore,was not precluded from relitigating, in a subsequentaction, the same issues that had been raised beforeJudge Ripley.

B

The question remains, however, as to what legaleffect, if any, Judge Ripley's judgment should haveafter the dismissal of DeMilo's appeal from that judgment.This is an issue of first impression in Connecticut.As a matter of federal law, federal courts> havedeveloped a principle of vacatur under which the preclusiveeffect of a judgment the appeal from which hasbeen dismissed as moot depends on whether that judgmenthas been dismissed or vacated expressly. SeeUnited States Bancorp Mortgage Co. v. Bonner MallPartnership, ___ U.S. ___, 115 S.Ct. 386, 130 L.Ed.2d233 (1994); United States v. Munsingwear, 340 U.S. 36,71 S.Ct. 104, 95 L.Ed. 36 (1950); 13A C. Wright,A. Miller & E. Cooper, Federal Practice and Procedure(2d Ed. 1984 and Sup. 1995) § 3533.10. The rationaleof the federal rule of vacatur is that it would be inequitableto impose on a party the adverse res judicataeffects of a district court judgment when that partywas denied the opportunity for appellate review

[233 Conn. 270]

     through no fault of its own. Associated General Contractorsof Connecticut, Inc. v. New Haven, 41 F.3d 62,67 (2d Cir. 1994). The federal courts>, however, requirethe unsuccessful party to make a motion to vacate theadverse judgment. United States v. Munsingwear,supra, 41. It is assumed under the federal rule that,absent vacatur, the judgment the appeal from whichwas dismissed as moot, would have a collateral effectwith respect to the issues decided by that judgment.

The rationale that it would be inequitable to imposeon a party the adverse collateral effects of a judgmentwhen that party was denied the opportunity for appellatereview is inapplicable, however, if, as we conclude,a judgment the appeal from which was dismissed asmoot has no collateral estoppel effect as to the issuesdecided by that judgment. 1 Restatement (Second),Judgments § 28(1) (1982). While the federal procedureis only parallel to the Restatement approach, the federalprocedure and § 28(1) of the Restatement (Second)merge at the same point. That point involves thequestion presented in this appeal, i.e., what is the effectof a trial court judgment, the appeal from which hasbeen dismissed as moot, if the unsuccessful party inthe trial court has failed to move to vacate the trialcourt judgment, and the party who was successful inthe trial court has brought an action to enforce thejudgment.

The approach taken by the Restatement (Second) ofJudgments postulates that the judgment carries no collateralestoppel effect if the appeal was dismissed asmoot. It does not, however, state that the judgmentis void. Moreover, because the federal practice requiresa motion to vacate a trial court judgment after theappeal was dismissed as moot, it follows that a trialcourt judgment is not void once an appeal from thejudgment has been dismissed as moot. If the judgmentwere deemed to be void mechanically, there would be

[233 Conn. 271]

     no need to require a party to move for vacatur. We conclude,therefore, that a trial court judgment the appealfrom which subsequently is dismissed as moot is notvoid, but is voidable.12

Once the appeal from a trial court judgment has beendismissed as moot, one of two things could happen ifthe parties chose to continue litigation. The unsuccessfulparty in the initial action could bring a direct attackon the judgment by a motion to set it aside. Rather thanautomatic vacatur in that instance, however, we willadopt the balancing approach employed by the UnitedStates Supreme Court in United States Bancorp MortgageCo. v. Bonner Mall Partnership, supra, 115 S.Ct.386, as well as by the Ninth Circuit Court of Appealsin Ringsby Truck Lines, Inc. v. Western Conference ofTeamsters, 686 F.2d 720, 722 (1982). Under RingsbyTruck Lines, Inc., upon motion of a party, an appellatecourt must remand the question of vacatur to thelower court to "balance . . . the consequences andattendant hardships . . . between the competingvalues of finality of judgment and right to relitigationof unreviewed disputes . . . ." Id. A court consideringa motion to set aside a judgment, the appeal fromwhich has been dismissed as moot, must determine ifthe remedy of setting the judgment aside is warranted.

Alternatively, the prevailing party in the initial actionmay bring an action to enforce the judgment, once theappeal from that judgment has been dismissed by an

[233 Conn. 272]

     appellate court as moot. That is the present case. Here,the commissioner brought suit against DeMilo toenforce Judge Ripley's order after the appeal fromJudge Ripley's judgment had been dismissed as moot.The basis of the commissioner's two count complaint —seeking damages for removal of the public nuisance ofthe junked vehicles and the foreclosure on the securityfor the removal bond — was the Ripley judgment,which ordered that DeMilo be liable for the costs ofabating the public nuisance and be required to post abond to ensure payment. DeMilo filed several specialdefenses to this action. See footnote 9. Only its fourthspecial defense, however, is relevant to our discussion.In its fourth special defense, DeMilo alleged that thecommissioner should be equitably estopped fromenforcing the Ripley judgment because the commissionerhad removed DeMilo's inventory in violation ofan automatic stay of proceedings13 and, as a result ofthe removal, the appeal from the judgment was heldto be moot. DeMilo further alleged that "[t]he orderwas erroneous." Since the Ripley judgment, as a resultof the dismissal of the appeal, had no preclusive effect,DeMilo not only could have, but should have, advancedany and all collateral attacks on the merits of the ordercontained in the Ripley judgment in its special defensesto the commissioner's complaint. Furthermore, bypleading in its fourth special defense that the Ripleyorder "was erroneous," DeMilo properly alleged anattack on the merits of the order.

Trial court orders arising from a judgment the appealfrom which was dismissed as moot carry a rebuttablepresumption of validity. "`Judicial precedents arepresumptively correct, and valuable to the legal communityas a whole. They are not merely the propertyof private litigants and should stand unless a court concludes

[233 Conn. 273]

     that the public interest would be served by avacatur.' Izumi Seimitsu Kogyo Kabushiki Kaisha v.United States Phillips Corp., 510 U.S. ___, 114 S.Ct.425, 428, 126 L.Ed.2d 396 (1993) (Stevens, J., dissenting)."United States Bancorp Mortgage Co. v. Bonner MallPartnership, supra, 115 S.Ct. 392. The partywho has suffered an adverse ruling in the trial court,therefore, has the burden to prove that the initial judgmentis invalid. Unless that party satisfies that burden,the initial judgment should remain viable. "It isthe petitioner's burden, as the party seeking relief fromthe status quo of the appellate judgment, to demonstrate. . . equitable entitlement to the extraordinaryremedy of vacatur." Id.

Judge Shea found that "the commissioner . . . presentedtestimony and other evidence to prove that thedefendant was violating the statutes and regulationsconcerning junkyards." After considering the meritsof the Ripley judgment, Judge Shea concluded that"[t]he evidence is overwhelming that the defendant wasoperating a motor vehicle junkyard on unlicensed property"in violation of § 14-67v, and enforced the judgment.DeMilo's attack on the merits of the ordercontained in the Ripley judgment in its fourth specialdefense, therefore, failed because DeMilo failed in itsburden to satisfy the court that "the order was erroneous."We conclude, consequently, that the trial courtproperly found that the Ripley judgment remained viableand that the commissioner could enforce that judgmentin the subsequent action which is the subject ofthis appeal.

II

DeMilo next claims that the commissioner wasallowed to recover on a theory that he had not pleaded.In the first count of his complaint, the commissioneralleged that he had paid the cost of the removal of the

[233 Conn. 274]

     junked vehicles and auto parts, the presence of whichconstituted the violation of § 14-67v, and that DeMilohad failed to reimburse him for his expenditures asrequired by the Ripley judgment. DeMilo argues thatbecause Judge Shea found that the commissioner "wasentitled to reimbursement regardless of Judge Ripley'sdecision," DeMilo was prejudiced because under thecomplaint it should not have to "counter nonexistentallegations that it was violating General Statutes§ 14-67v." We disagree with DeMilo's contention fortwo reasons.

First, the trial court did not find that the commissionerwas entitled to reimbursement "regardless of"the Ripley judgment. Although the commissioner incorrectlyclaimed at trial that the Ripley judgment had collateralestoppel effect, the trial court found that "thecommissioner did not rely wholly upon the doctrine ofcollateral estoppel, but presented testimony and otherevidence to prove that the defendant was violating thestatutes and regulations concerning junkyards." As discussedin part I of this opinion, the Ripley judgmentwas presumptively valid, subject to a showing of invalidityby DeMilo. Because DeMilo pleaded in its fourthspecial defense that the Ripley order was erroneous,it put the merits of that order in issue. The judgmentof Judge Shea enforced the Ripley judgment, basedupon the court's independent conclusion that DeMilo"was operating its motor vehicle junkyard in violationof the regulatory statutes . . . ." Thus, instead of concluding,as DeMilo contends, that the commissioner wasentitled to reimbursement regardless of the Ripley judgment,the trial court determined that the commissionerwas entitled to reimbursement because of that judgment,since it was based on correct factual findings andremained viable.

Second, we disagree with DeMilo's claim that therewere no allegations before the trial court in this case

[233 Conn. 275]

     that it was violating § 14-67v. DeMilo mounted a collateralattack on the merits of the Ripley judgment byalleging in its fourth special defense that the judgmentwas erroneous and DeMilo admits that "[b]oth partiesaddressed the issue in testimony . . . ." See footnote9. The fact that DeMilo was unable to persuade the trialcourt on the merits of its fourth special defense doesnot mean that the violations underlying the Ripley judgmentwere not in issue before the trial court. Indeed,quite the opposite is true. Because the merits of theRipley order were considered in this case at the requestof DeMilo, the allegations underlying that order clearlywere in issue at trial.

DeMilo cites only Willametz v. Guida-Seibert DairyCo., 157 Conn. 295, 254 A.2d 473 (1968), as authorityfor the proposition that the commissioner recoveredon a theory that he had not pleaded. In Willametz, westated that "`[i]t is fundamental in our law that theright of a plaintiff to recover is limited to the allegationsof his complaint. . . .'" Id., 302. We do not disagreewith this statement; it does not, however, affordDeMilo its requested relief.

"`A variance is a departure of the proof from thefacts as alleged. Not every variance, however, is a fatalone since immaterial variances are disregarded underour practice. Practice Book § [178] . . . . Only materialvariances, those which disclose a departure fromthe allegations in some matter essential to the chargeor claim, warrant the reversal of a judgment. . . .'Strimiska v. Yates, 158 Conn. 179, 183, 257 A.2d 814(1969); Web Press Services Corporation v. New LondonMotors, Inc., 203 Conn. 342, 359-60, 525 A.2d 57(1987) . . . O'Connor v. Dory Corporation, 174 Conn. 65,68, 381 A.2d 559 (1977)." Tedesco v. Stamford,215 Conn. 450, 461, 576 A.2d 1273 (1990), remanded,

[233 Conn. 276]

     24 Conn. App. 377, 588 A.2d 656 (1991), rev'd, 222 Conn. 233,610 A.2d 574 (1992).14

A variance is material only if the defendant is prejudicedby it. "We cannot say that the defendant wasprejudiced in maintaining his defense on the merits,or that he was surprised by the plaintiff's proof, or thathe was misled by the allegations in the complaint. Forthese reasons, the variance was not a material one."Strimiska v. Yates, supra, 158 Conn. 184. This is particularlytrue in the present case, where DeMilo's fourthspecial defense invited the commissioner to present evidenceregarding the merits of the Ripley judgment.DeMilo could not have been surprised or misled by thepresentation of evidence by the commissioner to rebutDeMilo's fourth special defense, since that evidence wasprecipitated by DeMilo's own allegation that the Ripleyjudgment was erroneous. We conclude, therefore, thatDeMilo was not prejudiced by the trial court's considerationof evidence of DeMilo's statutory and regulatoryviolations, since that evidence was proper to rebutDeMilo's fourth special defense.

III

DeMilo's third claim is that the trial court improperlyconcluded that the amount claimed by the commissionerfor the cost of removal of DeMilo's inventorywas reasonable, when the commissioner had not compliedwith competitive bidding procedures required by

[233 Conn. 277]

     § 4a-57. See footnotes 7 and 10. The trial court foundthat the commissioner did not comply with the requirementsof § 4a-57 in obtaining bids for the removal ofmaterials in compliance with the Ripley judgment. Thecommissioner "did obtain three competitive bids, butdid not fulfill the statutory requirements for `notice toprospective suppliers,' posting such notice, sealed bids,public opening, and advertising when the amount ofthe purchase exceeds $10,000." See General Statutes§ 4a-57. Because the commissioner did not proceedaccording to the statute, DeMilo argues that the commissionershould not be allowed to recover on his complaint.We disagree.

The trial court acknowledged that the competitivebidding statutes are mandatory and that they areintended to protect the public purse. See Kelley v. Torrington,80 Conn. 378, 382, 68 A. 855 (1908). DeMiloagrees that the statute's "purpose is essential to protectthe public." It contends, however, that by notallowing the commissioner to recover, the court wouldencourage compliance with the statute in the future,and would "protect [DeMilo] who is a member of thepublic." DeMilo has focused on itself, and not on thepublic, as the intended beneficiary of the statute.

The obvious purpose of § 4a-57 is to protect the publicfrom collusive contracts that may result in the overpaymentof public funds. A violation of the statute,however, does not result in a forfeiture of the commissioner'sright, pursuant to the Ripley judgment, torecover the reasonable cost of removal of the conditionsconstituting a public nuisance on DeMilo's property.15To construe the violation of a statute intended

[233 Conn. 278]

     to conserve public funds to result in the loss of reimbursementof those funds would be, as the trial courtfound, "nonsensical."

The court properly considered a violation of § 4a-57to be of some relevance to the determination of reasonablecost, but determined that it was not dispositive.There was evidence presented upon which thecourt could have relied to conclude that the cost ofremoval was reasonable. Although the bids receivedwere not in compliance with § 4a-57, the fact that thecommissioner did contract with the contractor who hadsubmitted the lowest of three bids is some evidence ofreasonableness.16 Moreover, payments actually madefor work performed "is ordinarily some evidence of itsvalue." Devine Hallenbeck Co. v. Autoyre Co., 113 Conn. 97,101, 154 A. 170 (1931). "[P]roof of the expensespaid . . . affords some evidence of the value of theservices, and if unreasonableness in amount does notappear from other evidence or through application ofthe trier's general knowledge of the subject-matter, itsreasonableness will be presumed." (Internal quotationmarks omitted.) Fuessenich v. DiNardo, 195 Conn. 144,156, 487 A.2d 514 (1985). DeMilo has failed to presentcredible evidence to rebut that presumption.

"On appeal, it is the function of this court to determinewhether the decision of the trial court is clearlyerroneous. . . . This involves a two part function:where the legal conclusions of the court are challenged,we must determine whether they are legally and logically

[233 Conn. 279]

     correct and whether they find support in the factsset out in the memorandum of decision; where the factualbasis of the court's decision is challenged we mustdetermine whether the facts set out in the memorandumof decision are supported by the evidence orwhether, in light of the evidence and the pleadings inthe whole record, those facts are clearly erroneous."(Citation omitted.) Pandolphe's Auto Parts, Inc. v. Manchester,181 Conn. 217, 221-22, 435 A.2d 24 (1980).DeMilo, therefore, had the burden to demonstrate thatthe trial court's factual finding of the reasonablenessof the cost of removal was clearly erroneous. On thebasis of our review of the record, we conclude thatDeMilo has failed to do so.

IV

Finally, DeMilo claims that the trial court improperlyratified the commissioner's removal of materialsfrom areas not anticipated in the Ripley judgment. Thisclaim is encompassed by the third special defense raisedby DeMilo before the trial court. See footnote 9. DeMilodoes not dispute that, according to the Ripley judgment,the commissioner could have moved the materials thathad been removed from DeMilo's property in June,1987, to property owned by the city of Hartford, butargues that the April, 1988 removal of vehicles anddebris from the city's property to another destinationwas beyond the scope of the Ripley judgment. Thisargument is without merit.

DeMilo bases its argument on the language of theorder in the Ripley judgment, which provides that thecommissioner or its agents are authorized "to immediatelyenter the unlicensed areas . . . to immediatelyeliminate, at the expense of the Defendant, the conditionswhich constitute the violation . . . ." (Emphasisadded.) Because the April, 1988 removal project wasnot immediate, DeMilo contends that it should not be

[233 Conn. 280]

     liable for the costs of removal. The commissioner didnot claim reimbursement from DeMilo for the expenseof moving the junked vehicles to the temporary storagelocation in June, 1987. As the trial court found,DeMilo seeks to isolate the work performed in April,1988, for which it was assessed, from the circumstancesthat made such work necessary. Such an interpretationwould eviscerate the Ripley judgment. The trialcourt properly concluded that the "removal and dispositionof the defendant's junk that had been storedtemporarily on city property was an integral part ofthe operation authorized by the court . . . ."

DeMilo also contends that the commissioner did notprove that the material that had been stored on thecity's property ever had been owned by DeMilo. DeMiloconcedes that the commissioner removed its materialin June, 1987, from the unlicensed areas covered in theRipley order and placed it in piles on the city's property.DeMilo argues, however, that the commissionerfailed to prove that the material that was removed tenmonths later, in April, 1988, from the city's propertycontained the same items placed on the city's propertyin June, 1987. This argument is implausible.

Photographs of the junk both before and after theinitial move were admitted as full exhibits before thetrial court. Additionally, Howard Koenig, an inspectorfor the dealers and repairers division of motor vehicles,testified that he had supervised the removal ofvehicles from the unlicensed area to the city's propertyin compliance with the Ripley order. There is no evidenceon the record that the piles removed from thecity's property in April, 1988, did not contain the sameitems placed there by transportation in June, 1987.Instead of meeting its burden of proving that the trialcourt's finding was clearly erroneous; Pandolphe's AutoParts, Inc. v. Manchester, supra, 181 Conn. 221-22;DeMilo simply has stated that the finding was made

[233 Conn. 281]

     "in relevant part without evidence." We are not persuadedthat DeMilo has demonstrated that the trialcourt's finding that there was "ample evidence that allof the items removed were situated on the unlicensedportions of the property owned or leased by the defendant,"was clearly erroneous.

The judgment is affirmed, and the case is remandedto the trial court to set new law days.

In this opinion the other justices concurred.

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

2. General Statutes § 14-67v provides: "PENALTY.INJUNCTION TO RESTRAIN VIOLATION. Any person, or any officer oragent of any firm or corporation, who establishes, operates ormaintains a motor vehicle junk yard or motor vehicle junkbusiness in any location within a restricted district createdunder the provisions of this subdivision (H), or establishes,operates or maintains such junk yard or business withoutprocuring such certificate of approval from the local authorityor establishes, operates or maintains an intermediate processorin violation of any provision of this subdivision (H), ortransports or hauls any motor vehicle or used parts of a motorvehicle in violation of any provision of this subdivision (H) orviolates any provision of this subdivision (H), shall be finednot more than one hundred dollars or imprisoned not more thanninety days or both. Each day of such establishment, operation ormaintenance in violation hereof shall constitute a separateoffense. The commissioner of motor vehicles may, after notice andhearing, impose a civil penalty of not more than two thousanddollars on any person, firm or corporation who establishes,operates or maintains such junkyard or business without alicense. In addition to the penalties herein prescribed, thecommissioner of motor vehicles or the local authority, upon aviolation of any of the provisions of this subdivision (H), maybring an application to the superior court for the judicialdistrict where such yard or business is located to enjoin afurther operation or maintenance of such yard or business and toabate the same as a public nuisance. Said court may, upon findingsuch yard or business has been established, operated ormaintained in violation of the provisions of this subdivision(H), issue such injunction as it deems equitable and make suchorder for the discontinuance or abatement of such yard orbusiness as a nuisance as it finds to be necessary, includingauthorization to the commissioner of motor vehicles to enter suchyard or business to eliminate, at the expense of the defendant,the conditions which constitute the violation of any provision ofthis subdivision (H)." Unless otherwise noted, we use the current statutes throughoutthis opinion because there are no relevant differences betweenthese statutes and those in effect at the time of the underlyingcontroversy.

3. General Statutes § 14-67r provides: "FENCING. Each newlocation of a motor vehicle junk yard shall be completelysurrounded with a solid fence at least eight feet high with asuitable gate which shall be closed and locked except during theworking hours of such junk yard. All unregistered motor vehicles,used parts, old iron, metal, glass, paper, and any other materialwhich may have been parts of such vehicles shall be enclosedwithin this location. Any dismantling of material or cutting upof parts of such vehicles must be carried on within thisenclosure." The relevant Regulations of Connecticut State Agenciesregarding motor vehicle junkyards provide: Sec. 14-67q-4. AREA REQUIRED FOR STORAGE OF SALVAGE MOTORVEHICLES "Each licensed motor vehicle junkyard shall maintain a separateand distinct area for the storage of salvage motor vehicles, andsuch area shall in no case exceed eighty per cent of the licensedand usable area of such yard. . . . "Sec. 14-67q-6. LOCATION OF STORED VEHICLES "Each salvage or scrap motor vehicle stored or deposited withina motor vehicle junkyard shall be so located as to be within onehundred feet of an accessible roadway or driveway with a minimumwidth of twelve feet, such driveway or roadway being connected toa public road or highway. "Sec. 14-67q-7. PROXIMITY TO OTHER VEHICLES "With the exception of a motor vehicle placed or stored on topof another, no scrap or salvage motor vehicle shall be locatedcloser than one foot to an adjacent vehicle, provided when scrapor salvage motor vehicles are deposited or stored in a continuousline not to exceed four passenger motor vehicles in length, itshall be necessary only to maintain the one-foot separationbetween the sides of such vehicles. "Sec. 14-67q-8. LOCATION OF VEHICLES PURCHASED FOR SCRAP "Each motor vehicle purchased or obtained for scrap shall bedeposited or stored in the portion of the yard reserved for theprocessing of vehicles. . . . "Sec. 14-67q-10. STACKING OF OTHER MOTOR VEHICLES "Stacking of motor vehicles, other than processed motorvehicles, at a height greater than two vehicles is prohibited."

4. See footnote 2.

5. The regulations cited by motor vehicles were the sameregulations at issue in the administrative proceeding. Seefootnote 3.

6. General Statutes § 14-67i provides: CERTIFICATE OFAPPROVAL OF LOCATION; LICENSE REQUIRED. EXCEPTIONS. (a) Noperson, firm or corporation shall establish, operate or maintaina motor vehicle junk yard or motor vehicle junk business unless acertificate of approval of the location to be used therefor hasbeen procured from the selectmen of the town, the mayor of thecity or the warden of the borough wherein such yard or businessis located or is proposed to be located, except that, in any cityor town having a zoning commission, such certificate shall beprocured from the zoning commission, certifying that suchlocation is suitable for the proposed use, consideration beinggiven to the factors specified in section 14-67k, nor unless alicense to establish or maintain such a yard or such a businesshas been obtained from the commissioner of motor vehicles asprovided in section 14-67l]. "(b) The provisions of this section shall not apply to: (1) Anypublic agency, as defined in section 7-339a, which acquires,collects, dismantles or disposes of junk or abandoned motorvehicles pursuant to a program of solid waste disposal, inaccordance with the provisions of chapter 446d and theregulations of Connecticut state agencies, concerning theoperation of motor vehicle junk yards, provided this exemptionshall not apply to any public agency which sells or distributesor exchanges for profit motor vehicle parts for reuse as such,and provided further, such public agency shall designate anemployee to maintain accurate records of all motor vehiclesreceived and processed. Such records shall include the make,year, serial number and, if available, the name and address ofthe person from whom each vehicle was received. A list containingthe make, year and serial number of each such motor vehicle shallbe sent to the commissioner of motor vehicles on or before thelast day of the month following the month during which suchdisposal occurred; or (2) any intermediate processor, operatingat a licensed facility, pursuant to subsection (a) of thissection. `Intermediate processor' means any person, firm orcorporation which dismantles, crushes or otherwise conditionsjunk or abandoned motor vehicles or parts thereof for delivery toa scrap metal processor as defined in section 14-67w, or fordisposal in any other manner permitted by law, and which does notsell automobile parts for reuse as parts; provided all such junkor abandoned motor vehicles or parts thereof shall, at the timeof such dismantling, crushing or conditioning, be owned by or inthe custody of, and located on premises of or maintained by theholder of a motor vehicle junk yard license issued pursuant tosection 14-67l, or by a public agency exempted underthis subsection."

7. General Statutes (Rev. to 1993) § 4a-57 provides inrelevant part: "COMPETITIVE BIDS FOR PURCHASES AND CONTRACTS.SALES. WAIVER. COMPETITIVE NEGOTIATIONS. (a) All purchases of,and contracts for, supplies, materials, equipment and contractualservices, except gas, water and electric light and powerservices, and purchases and contracts made pursuant to theprovisions of subsection (c) of this section shall be based, whenpossible, on competitive bids. Any personal property which hasbecome obsolete, unserviceable or unusable may be sold (1) on thebasis of competitive bids, (2) at public auction or (3) at aretail store owned by the state and open to the public. Thecommissioner shall solicit competitive bids by sending notice toprospective suppliers and by posting notice on a public bulletinboard in his office. Such notice shall contain a notice of statecontract requirements pursuant to section 4a-60. Each bid shallbe kept sealed until opened publicly at the time stated in thenotice soliciting such bid. If the amount of the expenditure orsale is estimated to exceed ten thousand dollars, competitivebids shall be solicited by public notice inserted at least oncein not fewer than three daily newspapers published in the state,and at least five calendar days before the final date ofsubmitting bids. All purchases or sales of ten thousand dollarsor 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-52and subsection (a) of this section on the basis of competitivebids shall be offered for sale to municipalities, transitdistricts and the public at the same time, provided thecommissioner of administrative services shall sell the propertyto the municipality or transit district which submits the highestbid. If no municipality or transit district submits a bid thecommissioner shall sell the property to the highest publicbidder. Any personal property to be sold under said section andsubsection at a public auction shall be offered first tomunicipalities and transit districts and sold to the municipalityor transit district which makes the highest bid, provided thecommissioner may order that any or all bids may be rejected when,in his opinion, the best interest of the state would be servedthereby. If no municipality or transit district makes a bid, orif all bids are rejected, the commissioner shall solicit bidsfrom the public at the same public auction and shall sell theproperty to the highest public bidder. (2) If the commissioner isunable to sell any property to the highest public bidder pursuantto subdivision (1) of this subsection, the commissioner shalloffer the property for sale to the public at a retail store ownedby the state. If the commissioner is unable to sell any propertyat such store, he shall donate the property to a charitable orother nonprofit organization. If the commissioner is unable todonate the property to such an organization, he shall dispose ofthe property. "(c) The commissioner may, at his discretion,waive the requirement of competitive bidding in the case of minornonrecurring and emergency purchases of six hundred dollars orless in amount. The commissioner may use competitive negotiationto purchase or contract for data processing equipment, programsor services having a cost of twenty thousand dollars or less oradvertising space or time after making a written determination,including the reasons therefor, that such action is in the bestinterest of the state. The commissioner shall adopt regulations,in accordance with the provisions of chapter 54, establishing (1)objective standards for determining when such competitivenegotiation may be used instead of competitive bidding, includingwhether the character of such data processing equipment, programsor services or advertising space or time is more importantthan their relative cost, (2) procedures to be followed in makingpurchases, contracts or sales not subject to the competitive bidrequirements of this section, including but not limited to,criteria which shall be considered in making purchases bycompetitive negotiation and the weight which shall be assigned toeach such criterion and (3) standards and procedures under whichadditional purchases may be made on a limited basis underexisting contracts."

8. On appeal, DeMilo does not challenge the finding of JudgeShea that there had been no automatic stay of the judgmentrendered by Judge Ripley. General Statutes § 52-477 providesthat an application for such a stay is necessary in the case ofan appeal from a judgment for a permanent injunction, such as inthis case. The judgment had been rendered pursuant to § 14-67v,which provides for injunctive relief. DeMilo had applied fora stay of the judgment, but that application was denied by JudgeRipley on June 10, 1987.

9. The special defenses provide in relevant part: FIRST SPECIAL DEFENSE: "1. The moving of materials by the plaintiff or for theplaintiff was performed without compliance with the Department ofMotor Vehicles and Department of Environmental ProtectionLaws . . . . "2. As a result, the defendant should not be charged with thecost of removal. SECOND SPECIAL DEFENSE: "1. The costs of the move secured by the mortgage [were]incurred without competitive bidding and were not reasonable orjust. "2. As a result, the defendant should not be responsible to paythe costs claimed. "THIRD SPECIAL DEFENSE: "1. The plaintiff moved the materials from areas not covered bythe court order referred to in the complaint. "2. As a result, the defendant should not be held responsiblefor the costs claimed. FOURTH SPECIAL DEFENSE: "1. The plaintiff moved the property in violation of theautomatic stay [of] proceedings. "2. As a result, the defendant's appeal from the order was heldto be moot. "3. The order was erroneous. "4. As a result, the defendant should not have to pay the costsof removal and should be equitably [e]stopped to make the claim."

10. In its brief, DeMilo separated its third claim into fourseparate claims of error. Each claim, however, is an aspect ofthe same argument — that the trial court improperlyconcluded that the commissioner's damages were reasonable. We,therefore, will address these contentions as a single claim.

11. In its opposition to DeMilo's petition for certificationto this court, the commissioner stated: "In this Appeal, theInjunctive Order has been almost completely executed, thepersonal property of DeMilo has been removed and disposedof . . . . DeMilo testified it would not remove the personaltyfrom the unlicensed areas and therefore effectively abandoned anyclaim to that personal property, and a major portion of therealty involved is now a roadway." DeMilo argues that thisstatement caused the appeal to be dismissed as moot. There isnothing in the record to indicate why the Appellate Court haddismissed the appeal as moot, except its one sentence order,stating: "After hearing on the question whether the appeal shouldbe dismissed as moot, the Appellate Court, suo motu, finds thatthe appeal should be, and hereby is, dismissed." It appears that,although DeMilo had an opportunity to argue to the AppellateCourt how it could be afforded practical relief in order to avoida dismissal, it failed to do so. Without deciding whether it wasmisleading to indicate to this court in March, 1988, that theproperty had been "removed and disposed of" when the finalremoval occurred in April, 1988, we note that the statement madeto this court could not have been the reason for the AppellateCourt's dismissal. The issue here must focus on the fact that theappeal was dismissed as moot, not on the reasoning of theAppellate Court when it dismissed the appeal as moot.

12. We have stated that "[v]oidable judgments are not subjectto collateral attack." D'Occhio v. Connecticut Real EstateCommission, 189 Conn. 162, 173, 455 A.2d 833 (1983); see alsoMeinket v. Levinson, 193 Conn. 110, 113-14, 474 A.2d 454 (1984);Jensen v. Nationwide Mutual Ins. Co., 158 Conn. 251, 260,259 A.2d 598 (1969); Holly v. McDonald, 154 Conn. 228, 234,224 A.2d 727 (1966); Rathkopf v. Pearson, 148 Conn. 260, 265, 170 A.2d 135(1961). This statement, however, has not been made in the contextof a collateral attack on a judgment that could not be reviewedbecause it was dismissed on appeal as moot. Sound jurisprudentialpolicy requires an exception in such a case.

13. See footnote 8.

14. Practice Book § 178 provides: "In all cases of anymaterial variance between allegation and proof, an amendment maybe permitted at any stage of the trial. If such allegation wasmade without reasonable excuse, or if the adverse party wasactually misled thereby to his prejudice in maintaining hisaction or defense upon the merits, or if such amendment requirespostponement of the trial or additional expense to the adverseparty and this is shown to the satisfaction of the court, suchamendment shall be made only upon payment of costs or upon suchterms as the

15. The proper statutory remedy for a violation of § 4a-57is found in General Statutes § 4a-65, which provides:"UNLAWFUL PURCHASES. When any state agency purchases or contractsfor any supplies, materials, equipment or contractual servicescontrary to the provisions of this chapter or the regulationspromulgated in pursuance thereof, such order or contract shall bevoid and of no effect. The administrative head of such agencyshall be personally liable for the costs of such order orcontract and, if already paid for out of state funds, the amountthereof may be recovered from such administrative head by thestate in a civil action." Because the issue of § 4a-65 is nothere presented, we decline to address its possible implicationsin this case.

16. The bids received were for $585,000, $230,000 and$224,900. The commissioner contracted with Essex Auto Salvage,Inc., which had bid $224,900.

Case Summary:
To generate a summary for COMMISSIONER OF MOTOR VEHICLES v. DEMILO & CO. click here.
Back to top