PAUL T. MCDONALD
FRANCISM. MCDONALD ET AL.
November 16, 2016
from Superior Court, judicial district of Waterbury, Shapiro,
T. McDonald, self-represented, the appellant (plaintiff).
K. McDonald, with whom, on the brief, were Hugh D. Hughes and
Paul Pollock, for the appellees (named defendant et al.).
J. McDonald, for the appellee (defendant David J. McDonald,
Alvord, Sheldon and Norcott, Js.
plaintiff, Paul T. McDonald, appeals from the summary
judgment rendered in favor of the defendants, Francis M.
McDonald, James E. McDonald, John J. McDonald and Vincent J.
McDonald, all of whom are his brothers, and David J.
McDonald, LLC, a limited liability company organized by his
nephew. On appeal, he claims that the trial court improperly
concluded that his claim for partition of certain real
property jointly owned by all of the parties was barred by
res judicata because (1) the previous judgment that was
relied upon by the trial court as having said preclusive
effect was not a final judgment and (2) his right to
partition is absolute. We affirm the judgment of the trial
trial court set forth the following relevant procedural
history in its memorandum of decision granting the
defendants' motion for summary judgment. ‘‘In
his complaint [in this action], the plaintiff, Paul T.
McDonald, alleges that he and the defendants . . . own, as
tenants in common, real property located in Mid-dlebury,
Connecticut, on the north side of Route 64, known as 2328
Middlebury Road, consisting of an unsubdivided, irregularly
shaped 17.35 acre parcel of residentially zoned land. He
alleges that the parcel contains an older house in poor
condition, that a portion of the parcel is leased to a swim
club, and that that portion produces income to pay the taxes
and other expenses of the property.
plaintiff alleges that he holds a 3/21 or one-seventh
interest therein, and that the defendants own the balance of
the interests therein, in either 3/21, 4/ 21, or 1/10
interests. The complaint is pleaded in three counts, in which
the plaintiff seeks, respectively, partition in kind,
partition by sale, and partition by equitable distribution.
support of the[ir] motion [for summary judgment], the
defendants argue that the plaintiff's three counts are
barred by res judicata. This argument is premised on a
previous partition action brought in this court by the
plaintiff, McDonald v. McDonald, Docket No.
UWY-CV-11-6011618 (first action). In the first action, the
plaintiff sought only a partition by sale. He did not seek
partition in kind.
first action was tried before this court in November, 2012.
At trial, the plaintiff and another witness testified and
exhibits were presented. The court viewed the property at
issue in that action, including the property which is the
subject of the current complaint,  in the presence of the
parties, on December 4, 2012.
review of the parties' posttrial briefs in the first
action, the court issueda memorandum of decision, dated
January 28, 2013 (decision), finding that the plaintiff had
not met his burden of proof. [The court found that the
plaintiff failed to present any evidence that a physical
division of the property was impractical or inequitable, or
that a partition by sale would better promote the owners'
interests than a partition in kind. The court thus declined
the plaintiff's request for a partition by sale and
judgment] was entered for the defendants. The plaintiff did
not appeal the court's decision.'' (Footnotes
September 17, 2013, the plaintiff filed this action seeking
partition of 2328 Middlebury Road. In his three count
complaint, he asked that the property be partitioned, in
kind, by sale or by equitable distribution. He essentially
reiterated in this complaint the allegations from his
complaint in the first action, but ...