Wheeler v. Beachcroft ( 2016 )

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CELIA W. WHEELER ET AL. v.
BEACHCROFT, LLC, ET AL.
(SC 19355)
(SC 19356)
(SC 19357)
Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.
Argued September 11, 2015—officially released January 12, 2016
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.).
Opinion
ROBINSON, J. These consolidated appeals arise from
a nearly century old dispute among neighbors in a hous-
ing 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
res judicata, two claims in the plaintiffs’1 consolidated
quiet title actions, namely: (1) that they have prescrip-
tive easements over certain property adjacent to the
sound; and (2) that the same property constitutes a
public way. The defendants2 appeal from the judgment
of the trial court denying in part their motions for sum-
mary judgment as to those claims pursuant to the doc-
trines of res judicata.3 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
served the purpose of the privity requirement and,
therefore, privity should not be required for the applica-
tion of res judicata. We disagree, and affirm the judg-
ment of the trial court.
The record, including our previous opinions, reveals
the following facts and procedural history. The plain-
tiffs and the defendants own lots in a housing develop-
ment (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 develop-
ment 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
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.4 Id., 786. The defendants in the McBur-
ney 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 injunc-
tive relief and damages in connection with the same
facts.5 Id., 795 and n.17. All lot owners in the develop-
ment were notified of the pendency of the first Verder-
ame 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
actions first and discharged the jury in the first Verder-
ame 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.6 Id., 786. With regard to the
counterclaims in the McBurney actions, the court held
that the interior lot owners had both implied and pre-
scriptive 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’ collec-
tive 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 undis-
puted that notice of the proceeding on remand was
given to all lot owners in March, 2006.7
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] conve-
nience,’’ an injunction preventing interference with the
implied easement declared in McBurney I, damages,
and certification of a class action.8 Notice of the com-
plaint in the second Verderame action was sent to all
lot owners.
In March, 2008, in accordance with our McBurney
I remand order, the trial court, Shortall, J., held an
evidentiary hearing to determine the scope of the inte-
rior lot owners’ implied easement over the lawn.
McBurney II, supra, 302 Conn. 365. Beachcroft, two
waterfront lot owners, and one interior lot owner inter-
vened.9 Id., 362 n.1 and 363 n.3. The trial court deter-
mined that the implied easement included the right to
pass and repass over the lawn to access the beach
during certain hours, but not the right to socialize and
recreate on the lawn. Id., 365.
The trial court in McBurney II withheld final judg-
ment and ordered a posttrial hearing to address several
questions, including, in relevant part, which lot owners
should be bound by the judgment. Id., 366. After that
hearing, the trial court held that its orders were binding
on all lot owners. McBurney v. Paquin, Superior Court,
judicial district of Hartford, Complex Litigation Docket,
Docket No. X09-CV-01-4027736-S (September 17, 2008).
Copies of the trial court’s decision on the scope of the
implied easement and its binding effect were sent to
all lot owners. The interior lot owners appealed and
the waterfront lot owners cross appealed. McBurney
II, supra, 302 Conn. 362–63.
On November 26, 2008, while the appeal in McBurney
II was pending, the trial court, Shortall, J., rendered
partial summary judgment in the second Verderame
action in favor of the defendants.10 Approximately one
year later, in September, 2009, the plaintiffs filed the
action giving rise to the present appeals. Shortly there-
after, the plaintiffs in the first Verderame action with-
drew all counts of their complaint except for a single
claim under the Connecticut Unfair Trade Practices
Act. The defendants in that case moved to strike this
claim. The trial court, Shapiro, J., granted the motion
to strike and rendered judgment for those defendants
in 2010. On April 19, 2011, the plaintiffs in the second
Verderame action withdrew the remainder of their
claims. On October 4, 2011, we affirmed nearly all
aspects of the trial court’s 2008 judgment regarding the
scope of the interior lot owners’ implied easement over
the lawn.11 McBurney II, supra, 302 Conn. 384. On
December 14, 2011, the defendants in the present case
filed motions for summary judgment on the ground of
res judicata.
In seeking summary judgment in the present case,
the defendants argued that a number of the plaintiffs’
claims are barred by res judicata because the plaintiffs
are in privity with the lot owners involved in the prior
cases and were given repeated notices and opportuni-
ties to intervene in those cases. The trial court, Bright,
J., agreed with the defendants with respect to most
of the plaintiffs’ claims, but not with respect to the
prescriptive easement and public way claims. The court
reasoned that those claims were not barred because
they were beyond the scope of the McBurney I remand
hearing and the plaintiffs were not in privity with the
other lot owners with respect to those claims. The court
stated that the plaintiffs’ prescriptive easement claims
are fact specific and based on their individual uses of
the lawn. The court also noted that the avenue was
never at issue in the McBurney I or McBurney II litiga-
tion and, thus, the plaintiffs’ claim that the lawn consti-
tutes a public way as an extension of the avenue should
not be barred. Accordingly, the trial court granted the
defendants’ motions for summary judgment in part. This
appeal followed. See footnote 3 of this opinion.
On appeal, the defendants contend that the trial court
improperly held that the plaintiffs’ prescriptive ease-
ment and public way claims are not barred by res judi-
cata because they constitute the ‘‘ ‘same claim’ ’’ as the
easement claims raised in the prior actions and, thus,
should have been raised in those actions. The defen-
dants also assert that the plaintiffs are in privity with
the other lot owners with regards to those claims. Alter-
natively, the defendants argue that even if the lot own-
ers are not in privity, the purpose of the privity
requirement is met by the repeated notices and opportu-
nities to intervene provided to the plaintiffs in the
prior actions.
In response, the plaintiffs argue that their prescriptive
easement and public way claims are not barred because
they are factually and legally distinct from those pre-
viously asserted, and the plaintiffs are not in privity
with the other lot owners with respect to those claims.
Additionally, the plaintiffs contend that the notices
informing them of the prior litigation are insufficient to
overcome the privity requirement because those notices
did not inform them that they had to raise their claims
in those actions, rendering it inequitable to bar them
now. After examining the facts and weighing the appli-
cable policy concerns, we agree with the plaintiffs that
their public way and prescriptive easement claims are
not barred by res judicata.12
The applicability of the doctrine of res judicata pre-
sents a question of law that we review de novo. Cumber-
land Farms, Inc. v. Groton, 262 Conn. 45, 57–58, 808
A.2d 1107 (2002). Res judicata, or claim preclusion,
‘‘express[es] no more than the fundamental principle
that once a matter has been fully and fairly litigated,
and finally decided, it comes to rest.’’ (Internal quota-
tion marks omitted.) Carol Management Corp. v. Board
of Tax Review, 228 Conn. 23, 32, 633 A.2d 1368 (1993).
Generally, for res judicata to apply, four elements must
be met: (1) the judgment must have been rendered on
the merits by a court of competent jurisdiction; (2) the
parties to the prior and subsequent actions must be the
same or in privity; (3) there must have been an adequate
opportunity to litigate the matter fully; and (4) the same
underlying claim must be at issue. See, e.g., Tirozzi v.
Shelby Ins. Co., 50 Conn. App. 680, 686–87, 719 A.2d
62, cert. denied, 247 Conn. 945, 723 A.2d 323 (1998).
Res judicata bars the relitigation of claims actually
made in the prior action as well as any claims that
might have been made there.13 Powell v. Infinity Ins.
Co., 282 Conn. 594, 607–608, 922 A.2d 1073 (2007). Pub-
lic policy supports the principle that ‘‘a party should
not be allowed to relitigate a matter which it already
has had an opportunity to litigate.’’ (Internal quotation
marks omitted.) Duhaime v. American Reserve Life
Ins. Co., 200 Conn. 360, 363–64, 511 A.2d 333 (1986).
Thus, res judicata prevents reassertion of the same
claim ‘‘regardless of what additional or different evi-
dence or legal theories might be advanced in support
of it.’’ Delahunty v. Massachusetts Mutual Life Ins.
Co., 236 Conn. 582, 589, 647 A.2d 1290 (1996).
We recognize, however, that application of the doc-
trine can yield harsh results, especially in the context
of claims that were not actually litigated and parties
that were not actually involved in the prior action. See
Weiss v. Weiss, 297 Conn. 446, 465–66, 998 A.2d 766(2010). The decision of whether res judicata should bar
such claims should be based upon ‘‘a consideration of
the doctrine’s underlying policies, namely, the interests
of the defendant and of the courts in bringing litigation
to a close . . . and the competing interest of the plain-
tiff in the vindication of a just claim.’’ (Citation omitted.)
Delahunty v. Massachusetts Mutual Life Ins. Co.,
supra, 236 Conn. 591; see also 1 Restatement (Second),
Judgments § 24 (1982). The doctrine should be flexible
and ‘‘must give way when [its] mechanical application
would frustrate other social policies based on values
equally or more important than the convenience
afforded by finality in legal controversies.’’ (Internal
quotation marks omitted.) Isaac v. Truck Service, Inc.,
253 Conn. 416, 423, 752 A.2d 509 (2000).
In the present case, we conclude that policy consider-
ations do not support the application of res judicata
to the plaintiffs’ claims for three reasons. First, the
character of the lawn as a public way was never raised
in the prior actions, and it is not similar enough to the
interior lot owners’ easement claims to say that they
had to be raised in the same action. Second, with respect
to the plaintiffs’ prescriptive easement claims, the plain-
tiffs are not in privity with the other lot owners because
their rights stem from their own distinct uses of the
lawn. Third, the notices and opportunities to intervene
provided to the plaintiffs in the prior actions cannot
overcome the lack of privity because the notices did
not sufficiently inform the plaintiffs that they could—
let alone should or must—bring their prescriptive ease-
ment claims or risk them being barred by res judicata.
I
First, the plaintiffs’ public way claim is not barred
because it does not constitute the same claim as the
easement claims made in prior actions, such that the
plaintiffs were required to join in those actions and
assert the claim therein.14 Although res judicata bars
claims that were not actually litigated in a prior action,
the previous and subsequent claims must be considered
the same for res judicata to apply. See Powell v. Infinity
Ins. Co., supra, 282 Conn. 607–608. ‘‘[T]he critical ques-
tion is how broad a definition to give to the term ‘same
claim’ or ‘cause of action.’ The broader the definition,
the broader the scope of preclusion.’’ F. James & G.
Hazard, Civil Procedure (2d Ed. 1965) § 11.7, p. 540;
see also State v. Ellis, 197 Conn. 436, 464, 497 A.2d
974 (1985).
To determine whether claims are the ‘‘same’’ for res
judicata purposes, this court has adopted the transac-
tional test. Weiss v. Weiss, supra, 297 Conn. 461. Under
the transactional test, res judicata extinguishes ‘‘all
rights of the plaintiff to remedies against the defendant
with respect to all or any part of the transaction, or
series of connected transactions, out of which the
action arose.’’ (Internal quotation marks omitted.)
Duhaime v. American Reserve Life Ins. Co., supra, 200
Conn. 364, quoting 1 Restatement (Second), supra, § 24
(1). ‘‘What factual grouping constitutes a transaction,
and what groupings constitute a series, are to be deter-
mined pragmatically, giving weight to such considera-
tions as whether the facts are related in time, space,
origin, or motivation, whether they form a convenient
trial unit, and whether their treatment as a unit con-
forms to the parties’ expectations or business under-
standing or usage.’’ (Internal quotation marks omitted.)
Orselet v. DeMatteo, 206 Conn. 542, 545–46, 539 A.2d
95 (1988). ‘‘[E]ven though a single group of facts may
give rise to rights for several different kinds of relief,
it is still a single cause of action.’’ (Internal quotation
marks omitted.) Lighthouse Landings, Inc. v. Connect-
icut Light & Power Co., 300 Conn. 325, 349, 15 A.3d
601 (2011). ‘‘In applying the transactional test, we com-
pare the complaint in the [present] action with the
pleadings and the judgment in the earlier action.’’ Com-
missioner of Environmental Protection v. Connecticut
Building Wrecking Co., 227 Conn. 175, 190, 629 A.2d
1116 (1993).
In the context of private easement and public way
claims, we find instructive one recent case from another
state that has adopted the transactional test. In Gillmor
v. Family Link, LLC, 284 P.3d 622, 626–27 (Utah 2012),
the Supreme Court of Utah held that a property owner’s
public way claims15 were not barred by res judicata,
despite the fact that the same property owner had pre-
viously asserted private easement claims over the same
roads owned by her neighbors. Although her public way
claims were ‘‘factually available’’ at the time of the prior
action and involved the same roads, the court held
that the claims were not barred because they did not
originate from the same facts. Id., 630. The court
explained that the easement claims arose from the prop-
erty owner’s use of the roads, a property agreement,
and the landlocked nature of the property. In contrast,
the public way claims arose from the public’s use of
the roads dating back to the 1800s. Id., 628–29. Because
‘‘there [was] no significant overlap in the facts, wit-
nesses, or evidence necessary to establish [the claims],’’
the public way claims were ‘‘legally and factually dis-
tinct . . . .’’ Id., 629. The court concluded that,
although the property owner could have brought her
public way claims in the prior action, she was not
required to assert them therein.16 Id., 626–27. Addition-
ally, the court observed that the motivations underlying
the claims were distinct; the motive for the easement
claim was ‘‘a desire for private, exclusive access to a
private road’’ and, in contrast, the motive for the public
way claims was ‘‘a public right-of-way that is accessible
to all members of the public with no right of exclusion.’’
Id., 629. Therefore, the property owner’s neighbors
‘‘could not have reasonably expected that they would
be immune from all public claims regarding these
roads’’ and, similarly, ‘‘could not have reasonably
believed that all members of the general public, includ-
ing the [property owner], would be precluded from mak-
ing a public claim to these roads.’’17 Id.
In the present case, as in Gillmor, the distinct nature
of the plaintiffs’ public way claim, and the evidence
required to prove it, leads us to the conclusion that the
plaintiffs were not required to join in the prior actions
in order to assert their claim. To determine whether
an implied easement exists, courts consider: (1) the
intention of the parties; and (2) whether the easement
is ‘‘reasonably necessary for the use and normal enjoy-
ment of the dominant estate.’’ (Emphasis omitted; inter-
nal quotation marks omitted.) McBurney I, supra, 276
Conn. 800. To establish a prescriptive easement claim,
a plaintiff must prove an open, visible, continuous, and
uninterrupted use of the property for fifteen years under
a claim of right. General Statutes § 47-37. In McBurney
I, the trial court, in reaching its conclusions as to the
interior lot owners’ implied easement and prescriptive
easement claims reviewed ‘‘numerous title investigation
records, deed copies, photographs, maps and witness
testimony, including the testimony of [a land surveyor
and historian]’’ as well as Fisk v. Ley, 76 Conn. 295, 56
A. 559 (1903), a 1903 decision by this court interpreting
the lot owners’ rights to the lawn. McBurney v. Cirillo,
Superior Court, judicial district of New Haven, Docket
Nos. CV-98-0414820-S, CV-99-0422102-S, CV-99-0422100-
S, CV-01-0455411-S (September 17, 2003). In contrast,
to prove that the lawn is a public way as an extension
of the avenue in the present case, the plaintiffs must
demonstrate that the grantor impliedly dedicated the
avenue to the public and that the public has accepted
the avenue for that purpose. See Montanaro v. Aspetuck
Land Trust, Inc., 137 Conn. App. 1, 9, 48 A.3d 107(2012); see also DiCioccio v. Wethersfield, 146 Conn.
474, 479, 152 A.2d 308 (1959). The plaintiffs would rely
on evidence of the grantor’s intent to dedicate the lawn
and avenue to the public and the public’s use and main-
tenance of the lawn since the development’s inception.
See DiCioccio v. Wethersfield, supra, 479; Montanaro
v. Aspetuck Land Trust, Inc., supra, 9. Such evidence
might well include some evidence offered in the prior
actions, such as the lot owners’ deeds, photographs,
and the testimony of a historian, especially with regard
to the grantor’s intent.18 That evidence, however, would
necessarily also include documents and testimony from
the public about its acceptance and maintenance of the
lawn and avenue, as well as the public’s use of the lawn
since the establishment of the development in the early
1900s.19 Although there is some overlap in this evidence,
there is not a significant overlap rendering the public
way, implied easement, and prescriptive easement
claims the ‘‘same’’ for res judicata purposes and justi-
fying a complete bar of the plaintiffs’ claim, especially
since the plaintiffs were not a party to the prior actions.
See Weiss v. Weiss, supra, 297 Conn. 463 (dissolution
action determining equitable distribution of marital
assets barred ‘‘more specific’’ claim that plaintiff was
entitled to proceeds from defendant’s workers’ compen-
sation cases); Commissioner of Environmental Protec-
tion v. Connecticut Building Wrecking Co., supra, 227
Conn. 189–92 (claim alleging that company committed
solid waste violations, water pollution violations, and
unreasonable pollution identical to claim alleging that
company’s officers illegally operated solid waste facility
and polluted natural resources); cf. Bruno v. Geller, 136
Conn. App. 707, 729–30, 46 A.3d 974 (barring plaintiff’s
third attempt to prove previously rejected fraud claims
to ‘‘get around’’ New York judgment; plaintiff could not
‘‘simply cite in a new defendant and put new labels on
her causes of action’’), cert. denied, 306 Conn. 905, 52
A.3d 732 (2012).
Moreover, the plaintiffs’ claim that the lawn is a pub-
lic way as an extension of the avenue necessarily
requires a determination that the avenue itself consti-
tutes a public way, and the avenue was never examined
in the prior actions. ‘‘[T]he scope of [the] matters pre-
cluded necessarily depends on what has occurred in
the former adjudication.’’ State v. Ellis, supra, 197 Conn.
467; see also Twenty-Four Merrill Street Condomin-
ium Assn., Inc. v. Murray, 96 Conn. App. 616, 620, 902
A.2d 24 (2006) (condominium association not required
to assert statutory lien claims pertaining to tenant’s
failure to pay common charges and failure to pay fines
and repair charges in same action; failure to pay fines
and repair charges due to faulty plumbing ‘‘was not a
subject of the prior action’’). As the trial court observed,
‘‘[a]ll of the litigation [since 1903] . . . has focused pri-
marily on disputes over property rights to the lawn.’’
(Citation omitted.) Although we noted in McBurney I
that ‘‘the most reasonable way to view the two, the
avenue and the lawn, is as part and parcel of one com-
mon area,’’ that observation was in reference to our
holding that the lawn and avenue were both intended
for shared use among the lot owners, such that the
implied easement extended to the avenue for access to
the highway. McBurney I, supra, 276 Conn. 805. We did
not suggest that the previous litigation concerning the
lawn fully encompassed the lot owners’ rights with
regards to the avenue. The avenue was neither part of
our remand order in McBurney I nor part of the trial
court’s subsequent determination on the scope of the
implied easement over the lawn. See id., 823–24. Most
significantly, the lot owners’ rights to use the lawn or
avenue as members of the public were never raised in
the prior actions. Accordingly, we conclude that the
plaintiffs’ public way claim is not barred by res judicata.
II
We next consider whether the plaintiffs’ prescriptive
easement claims are barred by res judicata. Although
some prescriptive easement claims were raised in the
prior actions, we conclude that these plaintiffs’ individ-
ual claims are not barred because the plaintiffs are not
in privity with the other lot owners with respect to
those claims.20 The lot owners involved in the prior
actions could not know the details of, and adequately
litigate, the plaintiffs’ claims, which depend on their
individual uses of the lawn over a fifteen year period
under § 47-37. Thus, the lot owners do not share the
same prescriptive rights, and we cannot say that the
plaintiffs’ rights were adequately protected by the par-
ties in the prior actions such that privity may be found.
Moreover, we disagree with the defendants’ contention
that privity is not required because the notices and
opportunities to intervene in the prior actions suffi-
ciently informed the plaintiffs that they had to raise
their claims in those prior actions or risk subsequent
preclusion.
A
When res judicata is asserted against a nonparty to
a prior action, privity must be established to ensure
that the nonparty’s rights were sufficiently protected
in the action. The privity requirement exists ‘‘to ensure
that the interests of the party against whom [res judi-
cata] is being asserted have been adequately repre-
sented . . . .’’ (Internal quotation marks omitted.)
Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285,
304, 596 A.2d 414 (1991). ‘‘In determining whether priv-
ity exists, we employ an analysis that focuses on the
functional relationships of the parties. Privity is not
established by the mere fact that persons may be inter-
ested in the same question or in proving or disproving
the same set of facts. Rather, it is, in essence, a short-
hand statement for the principle that [res judicata]
should be applied only when there exists such an identi-
fication in interest of one person with another as to
represent the same legal rights so as to justify preclu-
sion.’’ Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 814,
695 A.2d 1010 (1997). ‘‘[T]he crowning consideration
. . . [is] that the interest of the party to be precluded
must have been sufficiently represented in the prior
action so that the application of [res judicata] is not
inequitable.’’ (Internal quotation marks omitted.) Id.,
818. Thus, ‘‘[a] key consideration . . . is the sharing of
the same legal right . . . .’’ (Internal quotation marks
omitted.) Aetna Casualty & Surety Co. v. Jones,
supra, 304.
Because parties may share some legal rights and not
others, parties may be in privity with respect to some
claims, but not others, for res judicata purposes. See
Martinez v. Texaco Trading & Transportation, Inc.,
353 F.3d 758, 763 (9th Cir. 2003) (although plaintiff’s
‘‘public’’ claims were barred, plaintiff was not in privity
with party to prior action ‘‘with regards to the easement
claim’’); JPMorgan Chase Bank, N.A. v. KB Home, 740
F. Supp. 2d 1192, 1206 (D. Nev. 2010) (‘‘privity may exist
for some claims or issues and not others’’); Smigelski v.
Kosiorek, 138 Conn. App. 728, 736, 54 A.3d 584 (2012)
(noting that ‘‘privity exists between the parties as to the
claims and issues being raised’’ such that res judicata
barred action [emphasis added; internal quotation
marks omitted]), cert. denied, 308 Conn. 901, 60 A.3d
287 (2013). As the Supreme Court of South Carolina
has observed, ‘‘ ‘[p]rivity’ as used in the context of res
judicata or collateral estoppel, does not embrace rela-
tionships between persons or entities, but rather it deals
with a person’s relationship to the subject matter of
the litigation.’’ Richburg v. Baughman, 290 S.C. 431,
434, 351 S.E.2d 164 (1986). The trial court in the present
case held as much, concluding that the plaintiffs are in
privity with the other lot owners with regards to their
implied easement, express easement, and covenant
appurtenant claims but not their prescriptive easement
and public way claims. Thus, a conclusion that the
plaintiffs are in privity with regards to their implied
easement, express easement, and covenant appurtenant
claims, but not their prescriptive easement claims,
could be logically sound if supported by the record.21
Accordingly, we conclude that the plaintiffs are not
in privity with the other lot owners with regard to their
prescriptive easement claims, even if they are with
regards to their other claims, because each lot owner’s
claim is factually distinct and based on their individual
uses of the lawn. Because some lot owners may be able
to satisfy the elements of a prescriptive easement claim
and others may not, depending on each lot owner’s use
of the lawn over a fifteen year period, all of the lot
owners in the subdivision cannot be said to share the
same prescriptive rights. Although the lot owners in
the previous cases could litigate their own prescriptive
easement claims, they could not be expected to know
the details of and adequately litigate the plaintiffs’
claims, such that the application of res judicata to them
would not be unfair.22 As one court noted, ‘‘[e]ven if
[the parties] share interests in some respect, if they are
not in privity in all respects necessary to satisfy the
court of the fairness of applying the estoppel doctrine,
the court will not give res judicata effect . . . .’’
(Emphasis added.) Kreisberg v. Scheyer, 11 Misc. 3d
818, 823, 808 N.Y.S.2d 889 (2006); see also id., 819–24
(property owners’ variance claim not barred by previ-
ous denial of previous owners’ variance claim; owners
not in privity because facts not identical and subsequent
claim presented significant changes in plans and new
evidence); Cianciola v. Johnson’s Island Property
Owners’ Assn., 981 N.E.2d 311, 315 (Ohio App. 2012)
(lot owners in subdivision not in privity with other lot
owners involved in prior cases against homeowner’s
association; lots had different characteristics and
chains of title and lot owners had no relationship with
one another other than owning property in same subdi-
vision); cf. Tahoe-Sierra Preservation Council, Inc. v.
Tahoe Regional Planning Agency, 322 F.3d 1064,
1082–83 (9th Cir. 2003) (property owners’ membership
in and close relationship with property owners’ associa-
tion rendered them in privity, given that individual own-
ers ‘‘clearly hitched their fortunes’’ to association’s
leadership and alleged similar wrongs arising from same
set of facts).
Our holding in McBurney I that the lot owners are
not in privity for ‘‘tacking’’ purposes in establishing their
prescriptive easement claims supports this conclusion.
McBurney I, supra, 276 Conn. 813–14; accord Kornbluth
v. Kalur, 577 A.2d 1194, 1195–96 (Me. 1990) (property
owners cannot combine uses of land to establish pre-
scriptive easement claims). Because we have already
held that the lot owners do not have a sufficiently close
relationship to be in privity for tacking purposes, it
easily follows that they are not in privity for res judicata
purposes, especially when the latter conclusion would
bar the plaintiffs’ claims altogether.
The defendants ask us to draw a distinction between
privity in the context of tacking and res judicata, arguing
that, because privity of estate is required for the former
and not the latter, privity for res judicata purposes may
still be found. It is true that strict privity of estate, or
‘‘mutual or successive relationships to the same rights
of property,’’ is not required for res judicata. Mazziotti
v. Allstate Ins. Co., supra, 240 Conn. 813 n.12. Rather,
we have recognized that ‘‘[t]here is no prevailing defini-
tion of privity to be followed automatically in every
case. . . . It is not a matter of form or rigid labels;
rather it is a matter of substance.’’ Id., 813–14. At the
very least, however, privity ‘‘signifies a relationship
between one who is a party of record and another who
is a nonparty, but is sufficiently close to mandate the
application of res judicata . . . .’’ Id., 813 n.12.
We do not agree with the defendants that this case
presents the requisite closeness. The lot owners not
only do not share ‘‘mutual or successive’’ prescriptive
easement rights, but they do not share the same rights
at all because their rights depend on their differing uses
of the lawn. Furthermore, when the result is not that
the plaintiffs have failed to establish a prescriptive ease-
ment claim, but that they are barred from raising the
claim at all, the privity showing must be particularly
strong. We conclude that the defendants have not met
their burden in this case.
B
The defendants alternatively contend that the
repeated notices and opportunities to intervene pro-
vided to the plaintiffs in the prior actions satisfy the
concerns of the privity requirement and, thus, privity
should not be required for the application of res judi-
cata. The defendants cite no authority in support of
this argument. The defendants suggest that because
the plaintiffs declined the opportunity to protect their
interests in the prior actions, the purpose of the privity
requirement—to ensure that a party’s interests were
adequately protected in the previous action—is inappli-
cable. Even if we were to agree with the defendants’
view of the law, we disagree that the notices provided
to the plaintiffs adequately informed them of the preclu-
sive effect of their failure to join and assert their claims
in the prior actions, and ultimately cannot bar their
claims.
Generally, notice alone has been insufficient to bind
nonparties to a prior action and compel the harsh
results of res judicata.23 See, e.g., Richards v. Jefferson
County, 517 U.S. 793, 800–801, 116 S. Ct. 1761, 135 L. Ed.
2d 76 (1996) (noting that, while adequate representation
might cure lack of notice, prior action would at least
have to be ‘‘so devised and applied as to [e]nsure that
those present are of the same class as those absent and
that the litigation is so conducted as to [e]nsure the
full and fair consideration of the common issue’’); Head-
waters, Inc. v. United States Forest Service, 399 F.3d
1047, 1055 n.7 (9th Cir. 2005) (‘‘[w]e do not suggest
that notice alone would be sufficient to demonstrate
adequate representation’’). Courts more commonly
hold that notice of and an opportunity to intervene in
the prior action support their privity findings, but do
not replace the requirement that the parties share the
same legal rights. See, e.g., Regions Bank v. J.R. Oil
Co., LLC, 387 F.3d 721, 731 (8th Cir. 2004) (claims not
barred ‘‘even though [the subsequent party] clearly had
notice of the [prior litigation], and failed to intervene,
because a party is not . . . required to intervene volun-
tarily in a separate pending suit merely because it is
permissible to do so’’ [internal quotation marks omit-
ted]); Loveridge v. Fred Meyer, Inc., 72 Wn. App. 720,
731, 864 P.2d 417 (1993) (‘‘we do not agree that the
privity inquiry turns on notice . . . instead, our focus
is on the relationship between the [party to the prior
action] and the nonparty’’), aff’d, 125 Wn. 2d 759, 887
P.2d 898 (1995); see also Windsor Locks Associates v.
Planning & Zoning Commission, 90 Conn. App. 242,
253, 876 A.2d 614 (2005) (addressing argument that
property owner had notice of and opportunity to inter-
vene in prior proceeding and noting that ‘‘an unexer-
cised right to participate does not result in preclusion’’);
Young v. Metropolitan Property & Casualty Ins. Co.,
60 Conn. App. 107, 115, 758 A.2d 452 (insurer’s declina-
tion to participate in prior proceedings did not over-
come finding that ‘‘there can be no privity because the
same legal rights are not involved’’), cert. denied, 255
Conn. 906, 762 A.2d 912 (2000).
Regardless, even if we were to assume without decid-
ing that notice may serve as a substitute for privity, the
notices provided to the plaintiffs did not sufficiently
inform the plaintiffs that they should, let alone must,
raise their claims or risk them being barred by res
judicata. The defendants point to: (1) notice of the first
Verderame action; (2) the 2006 notice of the McBurney
I remand hearing to determine the scope of the implied
easement; (3) notice of the second Verderame action;
and (4) notice of the trial court’s decision in 2008 regard-
ing the scope of the implied easement and its binding
effect on all lot owners. We address each notice in turn.
First, the complaint in the first Verderame action,
which was mailed and delivered to the lot owners in
2001,24 made no reference to any opportunity or obliga-
tion on the part of the lot owners to join and assert
their claims.25 There is no language in that complaint
suggesting that the plaintiffs must raise their own
claims. Additionally, four of the six plaintiffs had not
yet acquired their interests in their lots and may not
have received this notice.26
Second, the notice given to all lot owners pursuant
to our McBurney I remand order did not indicate that
the plaintiffs could bring additional and different claims
to the court’s attention at the remand hearing on the
implied easement. Instead, that notice, sent in March,
2006, reiterates our order that the case be remanded
‘‘for further proceedings to determine the scope of the
implied easement . . . .’’ (Emphasis added.) McBur-
ney I, supra, 276 Conn. 823. This sentence specifically
defines the purpose of the remand hearing to determin-
ing the extent of the implied easement already estab-
lished by the interior lot owners.27 Although the notice
included a copy of our McBurney I decision, it is not
at all clear from our decision that the plaintiffs could
try to establish their own prescriptive easement claims
at the remand hearing.28
Third, the notice given in the second Verderame
action specifically referenced the implied easement
declared in McBurney I and, again, did not suggest that
the plaintiffs join and assert their claims. Only a copy
of the complaint was sent to the plaintiffs, which essen-
tially asks the court to ensure that the defendants did
not interfere with the implied easement declared in
McBurney I while the trial court’s determination on the
scope of that easement was pending.
Lastly, the mailing of copies of the trial court’s 2008
decision regarding the scope of the implied easement
cannot serve as the basis for barring the plaintiffs’
claims, given the absence of the other elements of res
judicata. We cannot say that the burden was on the
plaintiffs to appeal from these decisions, or that the
decisions should have prompted the plaintiffs to raise
their prescriptive easement and public way claims
sooner. Moreover, although the defendants continu-
ously blame the plaintiffs for failing to intervene in the
prior actions, we note that in none of those actions did
the defendants serve the plaintiffs with process and
summon them to appear pursuant to § 47-31.
The trial court’s holding that its decision on the scope
of the implied easement is binding on all lot owners
because they were provided notice and an opportunity
to intervene does not undermine this result. The court’s
notion holds true with respect to the scope of the
implied easement, but not necessarily any other claims
that the plaintiffs had. The trial court aptly indicated
as such by stating that it was not ‘‘unfair for the court
to bind them to its determination of the scope of the
easement . . . .’’ (Emphasis added.)
We acknowledge that the competing concerns of judi-
cial efficiency and repose for the defendants weigh
heavily in this case. At first glance, the procedural his-
tory of the case seems to favor the application of res
judicata. It is evident from a closer examination of the
case, however, that barring the plaintiffs’ public way
and prescriptive easement claims would not actually
save considerable judicial resources. Judicial resources
have already been conserved by the proper application
of res judicata to the plaintiffs’ express easement,
implied easement, and covenant appurtenant claims.
Furthermore, the plaintiffs’ remaining claims with
respect to the avenue will move forward regardless of
our decision in this appeal. See footnote 19 of this
opinion. Thus, our efficiency concerns do not outweigh
the unfairness of barring the plaintiffs’ distinct claims.
As tempting as it is to put an end to at least part of
this litigation, we cannot condone a result that would
be ‘‘manifestly unfair . . . .’’ Weiss v. Weiss, supra, 297
Conn. 473 (Palmer, J., dissenting); see also Gladysz v.
Planning & Zoning Commission, 256 Conn. 249, 261,
773 A.2d 300 (2001) (courts must ‘‘be careful that the
effect of the doctrine does not work an injustice’’). Our
analysis of res judicata claims must be informed by the
‘‘deep-rooted fundamental doctrine of the law that a
party to be affected by a personal judgment must have
a day in court and an opportunity to be heard on the
matter.’’ 47 Am. Jur. 2d 42, Judgments § 641 (1995); see
also Windsor Locks Associates v. Planning & Zoning
Commission, supra, 90 Conn. App. 254. We must be
fully comfortable with depriving the plaintiffs of their
day in court on these claims, and for the reasons dis-
cussed in this opinion, we cannot say as such in this
case.
The judgment is affirmed.
In this opinion the other justices concurred.
1
The original plaintiffs in the present case are: Lori P. Callahan, Charles
L. Dimmler III, Dean Leone, Tina Mannarino, Angela Rossetti, Harold D.
Sessa, Sheryl Lee Sessa, and Celia W. Wheeler. The following parties subse-
quently intervened as plaintiffs: James Baldwin, Joann Baldwin, Leslie Caro-
thers, Frank Cirillo, Susan Cirillo, Ann Harrison, Peter Paquin, Suzanne
Paquin, and Antoinette Verderame. We note that, while the present appeals
were pending, Callahan withdrew her claims. For the sake of simplicity, we
refer to all of the plaintiffs individually by name. Because the claims raised
by the intervening plaintiffs are not at issue in the present appeals, references
to the plaintiffs hereinafter collectively include Dimmler, Leone, Mannarino,
Rossetti, Harold D. Sessa, Sheryl Lee Sessa, and Wheeler.
2
The defendant in SC 19355 is Beachcroft, LLC. The defendants in SC
19356 are Erin E. McBurney and James R. McBurney. The defendants in SC
19357 are Kay A. Haedicke and Roger A. Lowlicht. Although the town of
Branford and the Pine Orchard Association, Inc., were also named as defen-
dants in the underlying action, they are not parties to the present appeals.
For the sake of simplicity, we refer to all of the defendants individually by
name. References to the defendants in this opinion collectively include
Beachcroft, LLC, Erin McBurney, James McBurney, Haedicke, and Lowlicht.
3
We transferred the appeal in SC 19356 to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1. We transferred the appeals
in SC 19355 and SC 19357 to this court pursuant to § 51-199 (c) and Practice
Book § 65-2. A denial of a motion for summary judgment constitutes a final
judgment for the purposes of appeal if the motion was based on a claim of
res judicata. See, e.g., Santorso v. Bristol Hospital, 308 Conn. 338, 344, 63
A.3d 940 (2013).
4
‘‘The[se] four . . . actions . . . were McBurney v. Cirillo, Superior
Court, judicial district of New Haven, Docket No. CV980414820; McBurney
v. Verderame, Superior Court, judicial district of New Haven, Docket No.
CV990422102; McBurney v. Baldwin, Superior Court, judicial district of New
Haven, Docket No. CV990422100; and McBurney v. Paquin, Superior Court,
supra, 276 Conn. 786 n.3.
5
In McBurney I, supra, 276 Conn. 795, we noted that this ‘‘companion
case . . . Verderame v. McBurney, Superior Court, judicial district of New
Haven, Docket No. CV010453999 [involved] many of the same parties [in
the McBurney actions].’’ See also id., 795 n.17.
6
The trial court found in favor of James McBurney and Erin McBurney
on the trespass counts only with respect to the defendants Frank Cirillo,
Susan Cirillo, James Baldwin, and Joann Baldwin. McBurney I, supra, 276
Conn. 786.
7
The first Verderame action was not part of the appeal and remained
pending. See McBurney I, supra, 276 Conn. 786 n.4.
8
The plaintiffs in that case were Salvatore Verderame, Antoinette Verder-
ame, Wayne Cooper, Julia Cooper, and Leslie Carothers. The defendants
were Barbara Saggese and Beachcroft.
9
The sole interior lot owner to intervene in McBurney I on remand was
Leslie Carothers. McBurney II, supra, 302 Conn. 362 n.1. The waterfront
lot owners who intervened in those actions were Kay A. Haedicke and Roger
A. Lowlicht. Id., 363 n.3.
10
The court granted summary judgment on the issue of Beachcroft’s own-
ership of the avenue and lawn, holding that it been conclusively established.
11
We did not affirm the portion of the trial court’s judgment permitting
access to areas other than the shoreline. McBurney II, supra, 302 Conn.
383–84.
12
The defendants alternatively contend that even if the plaintiffs’ public
way and prescriptive easement claims are not barred by res judicata, they
fail as a matter of law based on principles of stare decisis. See, e.g., Batte-
Holmgren v. Commissioner of Public Health, supra, 281 Conn. 291. The
character of the lawn as a public way and the lot owners’ rights to use the
lawn as members of the public, however, were never raised in the prior
actions. Additionally, our conclusion in McBurney I that the lot owners
have an implied easement over the lawn, and the trial court’s determination
that the easement does not include the right to socialize and recreate on
the lawn, do not cause the lot owners’ prescriptive easement claims to fail
on the merits because of the absence of an adverse use. See General Statutes
§ 47-37. The plaintiffs’ socialization and recreation on the lawn may still
constitute an adverse use of the lawn, and the plaintiffs could conceivably
obtain the right to socialize and recreate on the lawn by prescription. The
plaintiffs’ prescriptive rights depend on their uses of the lawn over a fifteen
year period. See General Statutes § 47-37. In contrast, the plaintiffs’ implied
rights depend on which uses of the lawn are considered ‘‘reasonably neces-
sary for the use and normal enjoyment of the [lots]’’ and the grantor’s intent.
(Emphasis omitted; internal quotation marks omitted.) McBurney I, supra,
276 Conn. 800. Thus, the plaintiffs could acquire the right to socialize and
recreate on the lawn if they have adversely used the lawn in this way for
fifteen years, even if such use is not ‘‘reasonably necessary’’ for the enjoy-
ment of the lots and contrary to the grantor’s intent. Accordingly, our previ-
ous decisions with respect to the plaintiffs’ implied easement have no bearing
on the plaintiffs’ prescriptive easement claims.
13
Res judicata, rather than collateral estoppel, governs the present case
because the issues underlying the plaintiffs’ claims, namely, whether the
plaintiffs have acquired prescriptive easements through their uses of the
lawn and whether the lawn has been dedicated to and accepted for public
use, were not previously litigated. The ‘‘closely related’’ doctrine of collateral
estoppel only bars issues that were actually litigated. Cumberland Farms,
Inc. v. Groton, supra, 262 Conn. 57–58; see also Powell v. Infinity Ins. Co.,
282 Conn. 594, 600–601, 922 A.2d 1073 (2007) (‘‘[Collateral estoppel] prohibits
the relitigation of an issue when that issue was actually litigated and neces-
sarily determined in a prior action between the same parties or those in
privity with them upon a different claim. . . . An issue is actually litigated
if it is properly raised in the pleadings or otherwise, submitted for determina-
tion, and in fact determined.’’ [Citations omitted; internal quotation marks
omitted.]). Even if the issues underlying the plaintiffs’ claims are similar to
those examined in the prior actions, ‘‘[i]n order for collateral estoppel to
apply . . . there must be an identity of issues, that is, the prior litigation
must have resolved the same legal or factual issue that is present in the
second litigation.’’ Upjohn Co. v. Planning & Zoning Commission, 244
Conn. 82, 93–94, 616 A.2d 786 (1992), citing P. X. Restaurant, Inc. v. Windsor,
189 Conn. 153, 161, 454 A.2d 1258 (1983); see also Trinity United Methodist
Church of Springfield, Massachusetts v. Levesque, 88 Conn. App. 661, 671,
870 A.2d 1116 (collateral estoppel unavailable in action because ‘‘the issues
litigated in [the] action are not identical to those actually litigated in the
prior action’’), cert. denied, 274 Conn. 907, 908, 876 A.2d 1200 (2005). The
parties primarily briefed the res judicata issue, and we decide this appeal
accordingly.
14
We note that the plaintiffs did not raise the declaratory judgment excep-
tion to the doctrine of res judicata, which provides that ‘‘a declaratory
judgment action does not have a claim preclusive effect beyond what actually
was decided in that action.’’ Lighthouse Landings, Inc. v. Connecticut
Light & Power Co., 300 Conn. 325, 347, 15 A.3d 601 (2011).
15
Specifically, the plaintiff in Gillmor alleged that certain property was
‘‘subject to condemnation for a public access easement’’ and ‘‘had been
continuously used as public thoroughfares for a period of ten years, and
were thus dedicated to public use as a ‘highway by use’ . . . .’’ Gillmor v.
Family Link, LLC, supra, 284 P.3d 625.
16
Additionally, the court observed that the motivations underlying the
claims were distinct; the motive for the easement claim was ‘‘a desire for
private, exclusive access to a private road’’ and, in contrast, the motive for
the public way claims was ‘‘a public right-of-way that is accessible to all
members of the public with no right of exclusion.’’ Gillmor v. Family Link,
LLC, supra, 284 P.3d 629.
17
But cf. Hatton v. Grigar, 258 Fed. Appx. 706, 707 (5th Cir. 2007) (prior
public way and private easement claims barred subsequent trespass action
to try title to strip because ‘‘[a]t their core,’’ both suits involved same issue
of whether road was public or private); Currier v. Cyr, 570 A.2d 1205, 1209
(Me. 1990) (predecessors’ claims to public way and private easement in
prior action, and subsequent dispute over rights to disputed strip of land,
both relied upon facts ‘‘that are sufficiently related in time, space [and]
origin that their treatment as a unit conforms to the parties’ expectations,’’
thus barring subsequent claim [internal quotation marks omitted]); Carlson
v. Clark, 185 Vt. 324, 328–29, 970 A.2d 1269 (2009) (property owner’s ease-
ment by necessity claim barred by prior action determining that property
owner had acquired prescriptive easement over shoreline; in prior action,
property owner alleged easement by necessity claim in complaint and trial
court referenced easement by necessity claim in judgment).
18
Although both the implied easement and public way claims require
consideration of the grantor’s intent—in either giving an implied easement
to the lot owners or dedicating the lawn to public use—the different intents
render the claims factually and legally dissimilar enough to preclude their
presentation to a jury in a logically succinct way. See Orselet v. DeMatteo,
supra, 206 Conn. 545–46. In separating the McBurney actions from the first
Verderame action in 2002, the trial court noted that ‘‘the posture of the case
made it nearly impossible to submit the issues in an orderly fashion to a jury.’’
McBurney v. Cirillo, supra, Superior Court, Docket Nos. CV-98-0414820-S,
CV-99-0422102-S, CV-99-0422100-S, CV-01-0455411-S. Those cases involved
trespass, adverse possession, and easement claims between neighbors, and
not any public way claims. Id.
19
We note that the trial went forward on count one of the plaintiffs’
complaint in the present case, which alleges that the avenue is a public
way. At the trial, the court heard testimony from: (1) several interior lot
owners regarding the public’s use of the avenue; (2) employees from the
town of Branford, including a town engineer, assessor, former director of
public works, and the first selectman who worked as a private contractor
for the Pine Orchard Association, Inc.; (3) a town historian; (4) an employee
of the South Central Regional Water Authority; and (5) a member of the
Pine Orchard Association, Inc. The court also reviewed the deeds conveying
lots in the development, the development plan, and historical documents
showing how the avenue has been used and maintained over the years and
by whom. The trial court ultimately concluded that the avenue is not a
public way. The plaintiffs’ claim that the avenue is a public way is contained
in a separate count and, therefore, distinct from their claim that the lawn
is a public way as an extension of the avenue.
20
We could also hold that the plaintiffs’ prescriptive easement claims are
not barred because they do not constitute the ‘‘same claims’’ as those of
the other lot owners. The plaintiffs, in proving their claims, would offer
evidence of their specific uses of the lawn over a fifteen year period, which
would involve facts distinct from those underlying the other lot owners’
claims. The plaintiffs simply could not rely on evidence of the other lot
owners’ uses, as we stated expressly in McBurney I. McBurney I, supra,
276 Conn. 813–14. Although we elect to address the parties’ privity argument
and hold that the plaintiffs’ prescriptive easement claims are not barred
on that basis, our inquiry is essentially the same; whether the plaintiffs’
prescriptive rights were adequately protected in the prior actions. Addition-
ally, in this context, the elements are linked, insofar as the distinct nature
of each lot owner’s prescriptive easement claim necessarily means that they
do not share the same rights and, hence, are not in privity. See Smigelski
v. Kosiorek, 138 Conn. App. 728, 735–36, 54 A.3d 584 (2012) (‘‘The claims
being raised in this action are essentially the same claims that were raised
and adjudicated in the prior action. Furthermore, privity exists between the
parties as to the claims and issues being raised so that the doctrine of res
judicata bars this action.’’ [Internal quotation marks omitted.]), cert. denied,
308 Conn. 901, 60 A.3d 287 (2013).
21
The defendants cite no authority to support their contentions otherwise.
22
Cf. Henderson v. Scott, 418 So. 2d 840, 842 (Ala. 1982) (property owner
barred from relitigating easement claim established in prior action brought
by predecessor in interest); McClaran v. Traw, 382 S.W.3d 705, 710 (Ark.
App. 2011) (property owners barred from reasserting prescriptive easement
claims after action establishing extent of prescriptive easements held by
same property owners and public; two property owners were party to original
action and one was successor in interest).
23
A notable exception is in the context of uninsured motorist litigation.
See, e.g., Lenzi v. Redland Ins. Co., 140 Wn. 2d 267, 269, 996 P.2d 603 (2000)
(insurer bound by prior judgment ‘‘where it had timely notice . . . and
ample opportunity to intervene in the lawsuit to protect its interests, but
declined to do so’’); see also Zirger v. General Accident Ins. Co., 144 N.J.
327, 342, 676 A.2d 1065 (1996) (‘‘[w]e recognize that our holding on this point
subverts the requirement of privity normally present with an application of
the doctrines of res judicata’’ [internal quotation marks omitted]); Allstate
Ins. Co. v. Pietrosh, 85 Nev. 310, 316–17, 454 P.2d 106 (1969) (same). Other
courts have appeared to condone notice as a substitute for privity in the
context of suretyships. See, e.g., Swayne v. Capitol Indemnity Corp., Docket
No. C2-09-CV-0341, 2010 WL 2663209, *3 (S.D. Ohio July 1, 2010) (‘‘[The
surety] made no effort to involve itself in the [prior] suit, despite notice
. . . . Therefore, privity does apply in this case and [the surety] is bound
by res judicata.’’).
24
The complaint states that that ‘‘[a]ll lot owners . . . have been given
notice of the pendency of this case by delivery of a copy of this complaint,
with exhibits, and orders, on each of them by first class mail . . . and by
abode service at their respective addresses . . . .’’ It is unclear from the
record which exhibits, orders, or other information were provided to the
plaintiffs along with the complaint. Because the action sought a declaratory
judgment, the notice was presumably provided to comply with Practice
Book § 17-56 (b), which mandates in relevant part that ‘‘[a]ll persons who
have an interest in the subject matter of the requested declaratory judgment
. . . be made parties to the action or . . . be given reasonable notice
thereof. . . .’’
25
The complaint simply alleges that the lot owners have ‘‘a private right
or easement appurtenant’’ for ‘‘all purposes as might reasonably serve the
convenience of the lot owners . . . .’’ The interior lot owners eventually
asserted by counterclaim that they had acquired prescriptive easements,
but these counterclaims are not evident on the face of the complaint.
26
Celia W. Wheeler, Harold D. Sessa, and Sheryl Lee Sessa acquired their
interests in 1966 and 2000, respectively. These plaintiffs presumably received
the notice sent in 2001. Dean Leone and Tina Mannarino, however, did not
acquire their interests until 2002, and Charles L. Dimmler III and Angela
Rossetti did not acquire their interests until 2004. We cannot assume that
these plaintiffs’ predecessors in interest passed on notice of the pending
case and impute such notice to them.
27
Even if the plaintiffs technically could have brought their claims at the
remand hearing; see Higgins v. Karp, 243 Conn. 495, 502–503, 706 A.2d 1(1998) (remand hearing not limited to record and evidence presented at
original hearing); we cannot impute such legal knowledge to the plaintiffs
without more information.
28
It is arguable that one sentence in the notice—’’[i]n the event there are
no intervenors, the court will proceed in accordance with the Supreme
Court’s remand orders’’—gives some indication that the lot owners could
bring their own distinct claims, and if no one did, the court would simply
determine the scope of the implied easement as directed. Without any other
information about the case, however, we cannot impute this understanding
to the lot owners, especially when doing so would preclude their day in court.