29 Conn. App. 105 | Conn. App. Ct. | 1992
The defendants Milivoje Kovac and Sylvester Beserminje appeal from the trial court’s order requiring them to perform substantial restorative acts on their property. They present two issues on appeal: “(1) Is the trial court’s ‘order granting preliminary injunction’ dated April 1,1991, a ‘permanent’ order, a final judgment, which is immediately appealable? (2) Does the trial court’s order granting ‘preliminary’ injunction dated April 1,1991, violate the due process clauses of the constitution[s] of the United States and state of Connecticut?” We reverse the order of the trial court.
The following facts are pertinent to this appeal. 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 the real estate closing. On August 21,1990, the plaintiff brought this action alleging that Kovac 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.
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 to stabilize the ground and to prevent runoff. If the work was not done to the satisfaction of the plaintiff
It is undisputed that the matter came before the trial court on an order to show cause why a temporary injunction should not issue. Under appropriate circumstances,
As a threshold matter, we must determine whether the order, labeled as a temporary injunction, is appeal-able. The general rule is that an order granting a temporary injunction is an interlocutory order and, thus, not appealable because it is not a final judgment.
The principal purpose of a temporary injunction is to preserve the status quo until the rights of the parties can be finally determined after a full hearing on the merits. Olcott v. Pendleton, supra. Mandatory injunctive relief is not appropriate at the temporary stage of injunction proceedings. Tyson v. Norton, 390 F. Sup. 545, 550 (D. Conn. 1975). The trial court’s order in the present case did not merely order Kovac and Beserminje to cease and desist from specific activity in order to preserve the status quo. To the contrary,
Despite the caption on the order, it is readily apparent that the effect of the order was to grant the plaintiff essentially the same relief that it would receive if it prevailed after a final hearing on the merits. Calling a pig a swan will not make it one. The trial court’s order is final in its nature and concept and consequently could be lawfully rendered only after a trial on the merits. “A trial court may not sua sponte transform applications that request temporary injunctions into proceedings on the merits of issuance or denial of permanent injunctions.” Doublewal Corporation v. Toffolon, supra, 393.
The plaintiff cites numerous federal cases for its claim that courts have authority to issue mandatory restorative orders in cases involving violation of environmental protection laws. Upon review of these cases, we find no authority which supports the use of a preliminary or temporary injunction to order mandatory restoration of wetlands subject to civil penalties for noncompliance. Although the federal courts have awarded mandatory restorative injunctions in several cases, in each case the injunction was a permanent final order. United States v. Cumberland Farms of Connecticut, Inc., 647 F. Sup. 1166 (D. Mass. 1986), aff’d, 826 F.2d 1151 (1st Cir. 1987); United States v. Ciampitti, 615 F. Sup. 116 (D.N.J. 1984), aff’d, 772 F.2d 893 (3d Cir. 1985); Parkview Corporation v. Department of Army Corps of Engineers, 490 F. Sup. 1278 (E.D. Wis. 1980); United States v. Weisman, 489 F. Sup. 1331 (M.D. Fla. 1980); but see United States v. Malibu Beach, Inc., 711 F. Sup. 1301 (D.N.J. 1989).
A review of our law likewise fails to support the use of a temporary injunction to require extensive restora
We conclude that the use of a temporary injunction in the case before us to mandate broad restorative goals is unsupported in law.
Because our discussion on the first issue requires vacating the trial court’s order we do not reach the second issue.
The order of the trial court is vacated and the case is remanded for further proceedings.
In this opinion the other judges concurred.
We recognize that the plaintiff was not required to prove irreparable harm and the lack of any adequate remedy at law when it alleges that a
The parties use the terms “preliminary injunction” and “temporary injunction” interchangeably. This is incorrect. “Temporary injunction” is the term used in our state law; see General Statutes §§ 52-472 through 52-476; and “preliminary injunction” is the term used by the federal courts. See Fed. R. Civ. P. 65.
In order to transform a temporary injunction hearing into proceedings for a permanent injunction, the pleadings must be closed. Doublewal Corporation v. Toffolon, 195 Conn. 384, 392, 488 A.2d 444 (1985); Ebenstein & Ebenstein, P.C. v. Smith Thibault Corporation, 20 Conn. App. 23, 26, 563 A.2d 1044 (1989).
Immediate review of temporary injunctions is authorized for appeals arising out of labor disputes; General Statutes § 31-118; French v. Amalgamated Local Union 376, 203 Conn. 624, 628 n.6, 526 A.2d 861 (1987); or for appeals involving matters of substantial public interest. General Statutes § 52-265a; Laurel Park, Inc. v. Pac, 194 Conn. 677, 678 n.1, 485 A.2d 1272 (1984). The defendants do not claim review of the present case under either of these exceptions.
In so holding, we do not imply that a temporary injunction could not require restorative measures in an emergency situation to protect the public health. That issue is not before us in this case because the record does not clearly indicate that such an emergency was present nor does the trial court find an emergency situation dangerous to the public health.