City of Stamford v. Kovac

634 A.2d 897, 228 Conn. 95, 1993 Conn. LEXIS 403
Supreme Court of Connecticut·Decided December 7, 1993·No. 14644·Published·Cited by 29 cases

Opinions

Peters, C. J.

The dispositive issue in this appeal is whether a temporary injunction should be deemed a [97] permanent injunction, and hence an appealable order, because the injunction orders restorative work to be performed in order to prevent further environmental degradation. The plaintiff, the city of Stamford, brought an action seeking temporary and permanent injunctive relief against the defendant Milivoje Kovac alleging that he was the owner of property that was subject to a stipulated judgment concerning impairment of a wetlands in violation of General Statutes § 22a-36 et seq. On the motion of the plaintiff, Sylvester Beserminje and Lida Nosik were subsequently added as defendants. After a hearing, the trial court issued a temporary injunction ordering Kovac and Beserminje (defendants) to remove fill and to replace native plants in order to stabilize the wetlands. The defendants appealed to the Appellate Court, which vacated the injunction.Stamfords.Kovac, 29 Conn. App. 105, 111, 612 A.2d 1229 (1992). We granted the plaintiffs petition for certification to appeal, 1 and now reverse.

The opinion of the Appellate Court reports the relevant facts. “Kovac, acting as trustee for Gavra M. Kovac, his brother, purchased a lot on Long Ridge Road, Stamford, on November 5, 1988. On July 7 or 8,1990, approximately 11,000 square feet of wetlands were filled with 800 cubic yards of fill. Testimony indicated that the fill caused siltation of a downstream pond and potential pollution of an underground aquifer and local wells.

“The land was sold to Beserminje on July 16, 1990. Lida Nosik acted as Beserminje’s attorney-in-fact at [98] the real estate closing. On August 21,1990, the plaintiff brought this action alleging that Kovac [had] violated the Inland Wetlands and Watercourses Act, General Statutes § 22a-36 et seq., and seeking both temporary and permanent injunctions. Attached to the pleadings was a verification and certification statement alleging that unless a temporary injunction was granted to correct the illegal filling of the adjoining pond, there would be irreparable harm to the wetlands, pond and environment.

“Hearings regarding a temporary injunction were held on September 10, 11 and 17, 1990. A temporary injunction issued on October 23,1990, ordering removal of the fill was subsequently vacated because it was directed solely against Kovac despite the fact that Beserminje [had become] the owner of the property on July 16, 1990. Neither Beserminje nor Nosik was a party at the time of the September hearings, but both were subsequently added as defendants on October 1, 1990.

“Another hearing regarding the issuance of a temporary injunction was held on April 1,1991. Beserminje was not present, although his attorney-in-fact, Nosik, was and testified as to the circumstances surrounding Beserminje's purchase of the property.

“The trial court issued an ‘Order Granting Preliminary Injunction’ dated April 1, 1991, against Beserminje and Kovac. It was not directed against Nosik. The order, which was essentially the same as the October 23,1990 temporary injunction, required Kovac and Beserminje (1) to remove the fill on lot A-2 and return said property to its condition and grade on the 1987 site plan, (2) to replant native plants to stabilize the disturbed ground after the fill is removed, (3) to regrade the lot to the original contours, and (4) to replant the lot with native species of plants and shrubs in order [99] to stabilize the ground and to prevent runoff. If the work was not done to the satisfaction of the plaintiff within forty-five days, Kovac and Beserminje would [be required to] pay a daily civil penalty of $250 to the plaintiff. The plaintiff was authorized to hire an independent contractor to comply with the order and the cost of the work would become a lien on the lot to be collected as a judgment.” Stamford v. Kovac, supra, 106-108.

The Appellate Court, although it recognized that the trial court and the parties had treated the plaintiffs request for relief as an application for a temporary injunction and not for a permanent injunction, concluded that the terms of the order had converted it into a permanent injunction. Id., 110. Considering the order as a permanent injunction, the Appellate Court determined that its merits were immediately reviewable and that the trial court had exceeded its authority in ordering restoration of the wetlands prior to a final judgment rendered after a full exploration of all of the contentions of the parties. Id., 111. The court did not, therefore, consider the defendants’ alternate claim that the temporary injunction violated their due process rights under the constitutions of the United States and the state of Connecticut. Id.

In the absence of an applicable statutory rule to the contrary, we have consistently held that a temporary injunction is not immediately appealable. See, e.g., Pendiman Corp. v. White Oak Corp., 195 Conn. 393, 396-99, 488 A.2d 449 (1985); Doublewal Corp. v. Toffolon, 195 Conn. 384, 392-93, 488 A.2d 444 (1985); Board of Education v. Shelton Education Assn., 173 Conn. 81, 88, 376 A.2d 1080 (1977); Northeastern Gas Transmission Co. v. Brush, 138 Conn. 370, 374-75, 84 A.2d 681 (1951); Olcott v. Pendleton, 128 Conn. 292, 294-95, 22 A.2d 633 (1941). The wisdom of such a rule is particularly evident in cases ordering the abatement of an [100] environmental hazard, which would otherwise continue unchecked during the pendency of the appeal process. See, e.g., Public Acts 1993, No. 93-244.2 Just as environmental appeals must conform to the rules for the exhaustion of administrative remedies; Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 564-65, 630 A.2d 1304 (1993); so they must conform to the rules that postpone appeals until the trial court has rendered a final judgment.

The defendants claim that these well established principles do not apply in this case because the terms of the preliminary injunction issued by the trial court did more than preserve the status quo. The defendants maintain that, although the trial court might have issued a temporary injunction to enjoin further degradation of the environment in the future, the trial court lacked the authority to issue a temporary injunction that orders restoration of the environment. The defendants therefore contend that the trial court’s mandatory injunction must be considered, despite its contrary denomination, a permanent injunction that is a final order. We disagree.

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City of Stamford v. Kovac, 634 A.2d 897, 228 Conn. 95, 1993 Conn. LEXIS 403 (Colo. 1993).

634 A.2d 897 (City of Stamford v. Kovac) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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