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McDonald v. McDonald

Court of Appeals of Connecticut

March 14, 2017

PAUL T. MCDONALD
v.
FRANCISM. MCDONALD ET AL.

          Argued November 16, 2016

         (Appeal from Superior Court, judicial district of Waterbury, Shapiro, J.)

          Paul T. McDonald, self-represented, the appellant (plaintiff).

          John K. McDonald, with whom, on the brief, were Hugh D. Hughes and Paul Pollock, for the appellees (named defendant et al.).

          David J. McDonald, for the appellee (defendant David J. McDonald, LLC).

          Alvord, Sheldon and Norcott, Js.

          OPINION

          SHELDON, J.

         The 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 court.

         The 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.

         ‘‘The 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.

         ‘‘In 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.

         ‘‘The 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, [1] in the presence of the parties, on December 4, 2012.

         ‘‘After 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 altered.)

         On 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 ...


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