CELIA W. WHEELER ET AL.
BEACHCROFT, LLC, ET AL
Argued September 11, 2015.
[Copyrighted Material Omitted]
Action seeking, inter alia, judgment declaring that certain real property is a public way, and for other relief, brought to the Superior Court in the judicial district of New Haven and transferred to the judicial district of Hartford, Complex Litigation Docket, where the court, Bright, J., granted the motions by James R. McBurney et al. to intervene as party defendants; thereafter, the court, Shapiro, J., granted the motion of Peter Paquin et al. to intervene as party plaintiffs and to file an intervening complaint; subsequently, count one of the plaintiffs' and the intervening plaintiffs' complaints were tried to the court, Bright, J.; judgment for the named defendant on count one of the plaintiffs' and intervening plaintiffs' amended complaints; thereafter, the court, Bright, J., granted in part the motions for summary judgment filed by the named defendant and the intervening defendants on the remaining counts of the plaintiffs' amended complaint and rendered partial judgment thereon, from which the named defendant and the intervening defendants filed separate appeals.
The plaintiffs, the owners of certain interior lots in a residential housing development adjacent to Long Island Sound, brought the present action seeking to quiet title to a parcel of real property owned by the defendants, the owners of certain waterfront lots. The defendants filed a motion for summary judgment, claiming that the counts of the plaintiffs' complaint alleging the creation of a public right of way and a prescriptive easement were barred, under the doctrine of res judicata, by certain previous actions pertaining to the same property involving other interior lot owners. In four previous actions, certain waterfront lot owners asserted claims of trespass and adverse possession against certain interior lot owners. The interior lot owners in those cases filed counterclaims alleging the creation of implied and prescriptive easements over the property. Some of the interior lot owners then filed a fifth action against certain waterfront lot owners seeking, inter alia, declaratory relief in connection with the same facts. After these five previous actions were consolidated, the trial court rendered a judgment establishing, inter alia, implied and prescriptive easements over the property in favor of the interior lot owners. On appeal from that judgment, this court concluded that, although the interior lot owners had not acquired prescriptive easements, they had acquired implied easements over the property. This court then remanded the case to the trial court with direction to conduct further proceedings regarding the scope of the implied easement and to provide all lot owners with notice and a chance to intervene. Thereafter, certain interior lot owners filed another action seeking, inter alia, an injunction preventing interference with the implied easement and mailed notice of the complaint to all lot owners. On remand in the fifth action, the trial court concluded that the implied easement included the right to pass over the property during certain hours, but not the right to recreate on the property. After a posttrial hearing, the trial court determined that its judgment was binding on all lot owners. Subsequently, the plaintiffs here, who were not a party to any of the six previous actions, filed the present action. Thereafter, the remaining claims in fifth and sixth actions were either withdrawn or struck by the trial court. In a second appeal, this court affirmed nearly all aspects of the trial court's judgment regarding the scope of the interior lot owners' implied easement over the property. In their motion for summary judgment in the present case, the defendants claimed that the doctrine of res judicata barred litigation of several of the plaintiffs' claims because the plaintiffs were in privity with the interior lot owners in the six previous actions and were given repeated notices and opportunities to intervene therein. The trial court denied the defendants' motion with respect to the prescriptive easement and public way claims, concluding, inter alia, that those claims were not barred because they were beyond the scope of the previous remand, the plaintiffs were not in privity with the parties to the previous actions because the prescriptive easement claims in the present case were fact specific and based on the plaintiffs' individual uses of the property, and that the public right of way claim was not at issue in the previous actions. On the defendants' subsequent appeal, held :
1. The trial court properly concluded that the plaintiffs' public way claim was not barred by res judicata, this court having concluded that that claim could not be considered the same as the easement claims made in the previous actions; because the distinct nature of the plaintiffs' public way claim and the evidence required to prove it, the plaintiffs were not required to join in the prior actions to prove their claim, and although there was some overlap between the evidence required to prove the plaintiffs' public way claim and the evidence in the previous actions, there was not a significant overlap that would render those claims the same for the purpose of res judicata.
2. The defendants could not prevail on their claim that the plaintiffs' prescriptive easement claim was barred by res judicata: although some prescriptive easement claims were raised in the previous actions, the defendants failed to meet the burden of demonstrating that the plaintiffs here were in privity with respect to those claims because the plaintiffs' claims were factually distinct and depended on their own individual uses of the property; furthermore, even if notice and opportunity to intervene in a prior action could serve as a substitute for privity, the notices provided to the plaintiffs did not sufficiently inform them that they should, let alone were required to, join in the previous actions and raise their claims or risk them being barred by res judicata, and, given the absence of the other elements of res judicata, the mailing of copies of the trial court's previous decision regarding the scope of the implied easement could not serve as the basis for barring the plaintiffs' claims.
Gerald L. Garlick, with whom were Daniel J. Klau and William H. Clendenen, Jr., for the appellants (named defendant et al.).
Linda Pesce Laske, with whom, on the brief, was Joel Z. Green, for the appellees (named plaintiff et al.).
Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js. ROBINSON, J. In this opinion the other justices concurred.
[320 Conn. 148] These consolidated appeals arise from a nearly century old dispute among neighbors in a housing development along the Long Island Sound (sound) over access to the shore. This dispute has given rise to numerous actions, two of which have reached this court over the past ten years. See McBurney v. Cirillo, 276 Conn. 782, 889 A.2d 759 (2006) ( McBurney I ), overruled in part by Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 914 A.2d 996 (2007); McBurney v. Paquin, 302 Conn. 359, 28 A.3d 272 (2011) ( McBurney II ). The present appeals require us to determine whether certain prior actions bar, via the doctrine of [320 Conn. 149] res judicata, two claims in the plaintiffs' consolidated quiet title actions, namely: (1) that they have prescriptive easements over certain property adjacent to the sound; and (2) that the same property constitutes a public way. The defendants appeal from the judgment of the trial court denying in part their motions for summary judgment as to those claims pursuant to the doctrines of res judicata. On appeal, the defendants
claim that the trial court improperly denied their motions for summary judgment because: (1) the plaintiffs' claims are sufficiently similar to those asserted in the prior actions, such that they should have been brought in the same action; and (2) the plaintiffs are in privity with the lot owners party to the prior actions, and even if they are not in privity, the notices and opportunities to intervene provided to the plaintiffs in the prior actions [320 Conn. 150] served the purpose of the privity requirement and, therefore, privity should not be required for the application of res judicata. We disagree, and affirm the judgment of the trial court.
The record, including our previous opinions, reveals the following facts and procedural history. The plaintiffs and the defendants own lots in a housing development (development) that is located adjacent to the sound on Crescent Bluff Avenue (avenue) in the town of Branford. See McBurney I,
supra, 276 Conn. 787. The development consists of thirty-five lots in a long and narrow five acre tract of land. The narrow end of the development borders the sound to the south, with the avenue running north to south through the development and perpendicular to the sound. Thirty-one lots line the avenue in the interior of the development. The avenue runs between the four waterfront lots, with two lots on each side. The avenue ends at a small strip of land (lawn) directly abutting the sound, which is the subject of the dispute in the present case. The plaintiffs own interior lots in the development. The defendants own waterfront lots and portions of the lawn. Beachcroft, LLC (Beachcroft), owns the avenue. The plaintiffs allege that, over the years, they and other interior lot owners have crossed the lawn to go down to the sound.
In 2009, the plaintiffs filed a quiet title action pursuant to General Statutes § 47-31, asserting that they and other interior lot owners, as well as members of the public, have acquired various rights to use the avenue and lawn. The complaint alleges that the plaintiffs have acquired an express easement, implied easement, prescriptive easement, covenant appurtenant, and easement by necessity over the lawn, and that the lawn constitutes a public way as an extension of the avenue, which they also claim is a public way. The defendants moved for [320 Conn. 151] summary judgment only on the counts pertaining to the lawn, arguing that they are barred by res judicata.
In order to place the defendants' argument and the trial court's decision in full context, we briefly recount the relevant portions of the prior litigation surrounding the lawn. We note at the outset of this discussion that the plaintiffs were not a party to any of these prior actions.
Between 1998 and 2001, James R. McBurney and Erin E. McBurney, who own a waterfront lot and part of the lawn, brought four quiet title actions (McBurney actions) for trespass and adverse possession against several interior lot owners seeking declaratory and injunctive relief.
Id., 786. The defendants in the McBurney actions, who owned interior lots, counterclaimed that they had acquired prescriptive easements over the lawn. Id. In 2001, several interior lot owners, including Salvatore Verderame and Antoinette Verderame, filed a separate action (first Verderame action) against several waterfront lot owners seeking declaratory and injunctive relief and damages in connection with the same facts. Id., 795 and n.17. All lot owners in the development were notified of the pendency of the first Verderame action, but not of the McBurney actions. Id., 795. The McBurney actions and the first Verderame action were subsequently consolidated for trial. Id. The court decided to try the nonjury claims in the McBurney [320 Conn. 152] actions first and discharged the jury in the first Verderame action. Id. After a bench trial, the trial court, Arnold, J., found against James McBurney and Erin McBurney on their adverse possession claims and most of their trespass claims. Id., 786. With regard to the counterclaims in the McBurney actions, the court held that the interior lot owners had both implied and prescriptive easements over the lawn. Id., 786-87. Both interior and waterfront lot owners appealed. Id., 785.
On appeal, we reversed the trial court's judgment in part, concluding that although the interior lot owners had an implied easement over the lawn, they had not acquired a prescriptive easement because the trial court had improperly aggregated all of the lot owners' collective uses of the lawn to satisfy the fifteen year statutory period. Id., 813-14. We upheld the existence of the implied easement and remanded the case for further proceedings to determine the scope of that easement. Id., 823. We also ordered that notice of the remand action be provided to all lot owners and that they be given an opportunity to join as parties. Id. It is undisputed that notice of the proceeding on remand was given to all lot owners in March, 2006.
Three months later, several interior lot owners filed another action, Verderame v. Saggese, Superior Court, judicial district of New Haven, Docket No. CV-06-4027737-S (second Verderame action). That action sought, inter alia, a declaratory judgment that those interior lot owners " enjoy[ed] an easement . . . for all purposes as might reasonably serve [their] convenience," an injunction preventing interference with the [320 Conn. 153] implied easement declared in McBurney I, damages, and ...