Buck v. Berlin ( 2016 )

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LAWRENCE H. BUCK ET AL. v. TOWN
OF BERLIN ET AL.
(AC 37209)
DiPentima, C. J., and Beach and Sheldon, Js.
Submitted on briefs October 9, 2015—officially released February 23, 2016
(Appeal from Superior Court, judicial district of New
Britain, Swienton, J.)
Melinda A. Powell and Cindy A. Miller filed a brief
for the appellant (named defendant).
Michael F. Dowley and Melissa S. Harris filed a brief
for the appellees (named plaintiff et al.).
Opinion
BEACH, J. The defendant town of Berlin appeals from
the decision of the trial court denying its motion for
summary judgment.1 On appeal, the defendant claims
that the court improperly denied its motion for sum-
mary judgment because (1) the plaintiffs’ claim is barred
by res judicata, in that (a) the claim arises from the
same cause of action that was litigated in a prior action,
and (b) the plaintiffs had an adequate opportunity to
litigate the cause of action in that action; and (2) the
court erred by concluding that a genuine issue of mate-
rial fact, requiring the denial of the motion for summary
judgment, existed. We agree with the defendant and
reverse the judgment of the trial court.
The following facts, as recounted by the trial court,
are relevant to our review of the defendant’s claim.
‘‘On August 31, 2012, the plaintiffs, Lawrence Buck and
Christopher Buck, filed the operative seven count com-
plaint against the defendants, [the] town of Berlin, Paul
Prior, Sally Prior, Kevin Budney, and Lisa Budney. On
January 2, 2013, the plaintiffs withdrew counts two
through seven of the complaint and withdrew the action
against the defendants Paul Prior, Sally Prior, Kevin
Budney, and Lisa Budney. The plaintiffs allege the fol-
lowing relevant facts in the remaining count, count one,2
against the remaining defendant, the defendant Ber-
lin. . . .
‘‘The plaintiffs accessed their property by utilizing
. . . Lamentation Mountain Pass Road3 and Middle
Road, which are known as Quincy Trail Road. The
defendant authorized the Lamentation Mountain
Estates Subdivision Section XIII, which approved a road
being partially built over part of Quincy Trail Road and
an easement for the defendant . . . . The defendant
later placed gates and concrete blocks at the ends of
Quincy Trail Road, eliminating the plaintiffs’ sole means
of vehicular access to their property. The defendant
stated in a memorandum from . . . [the] town man-
ager that ‘if someone can prove ownership . . . of [or]
the need for access to this land between the fences,
we will give them a key.’ This statement was reinforced
by Mayor Ida Ragazzi at a town council meeting, held
on March 18, 1997, when she stated, ‘upon proof of
ownership to property on Lamentation Mountain, the
owners will be given a key to the fences.’ . . .
‘‘The plaintiffs were also two of the plaintiffs involved
in prior litigation, titled Tighe v. Berlin, [Superior Court,
judicial district of Hartford, Docket No. CV-97-0575028-
S (August 9, 2000), aff’d, 259 Conn. 83, 788 A.2d 40(2002)] which was initiated on October 28, 1997. The
four count complaint was brought by numerous individ-
uals who owned land affected by the project, but the
plaintiffs were only part of [the] third and fourth counts.
Put simply, the plaintiffs alleged in the third count of
that complaint that the subdivision approval granted
by the defendant [to the buyers] resulted in the installa-
tion of a locked gate and cement blocks on the road
the plaintiffs use to access their properties, denying
the plaintiffs access to their properties. Similarly, the
plaintiffs alleged in the fourth count of that complaint
that the defendant . . . had not formally abandoned
the road and that the placement of the fences and
cement blocks denied the plaintiffs access to their prop-
erties. . . .
‘‘On May 19, 2014, the defendant filed a motion for
summary judgment on the ground that ‘there are no
genuine issues of material fact for a jury to decide
because [the] plaintiffs’ inverse condemnation claim is
barred by res judicata, because the instant claims were
raised or could have been raised in previous litigation
between these parties.’ . . . In response, on June 19,
2014, pursuant to Practice Book § 17-45, the plaintiffs
filed a memorandum of law in opposition . . . . The
defendant subsequently filed a reply on July 9, 2014
. . . . The matter was heard at the short calendar on
July 14, 2014.’’ (Footnotes altered.)
The court denied the defendant’s motion for summary
judgment because ‘‘there remain[ed] a genuine issue of
material fact as to whether the claim is barred by res
judicata.’’ The court implicitly held that the prior action
had been brought pursuant to General Statutes § 13a-
49 and, thus, a subsequent claim for money damages
was not necessarily barred. The defendant disagreed,
and this appeal followed.
We begin by setting forth our standard of review.
‘‘Practice Book § 17-49 provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits and any other proof submitted show that there is
no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
In deciding a motion for summary judgment, the trial
court must view the evidence in the light most favorable
to the nonmoving party. . . . The party moving for
summary judgment has the burden of showing the
absence of any genuine issue of material fact and that
the party is, therefore, entitled to judgment as a matter
of law. . . . On appeal, we must determine whether
the legal conclusions reached by the trial court are
legally and logically correct and whether they find sup-
port in the facts set out in the memorandum of decision
of the trial court. . . . Our review of the trial court’s
decision to deny the defendant’s motion for summary
judgment is plenary. (Citation omitted; internal quota-
tion marks omitted.) Savvidis v. Norwalk, 129 Conn.
App. 406, 409–10, 21 A.3d 842, cert. denied, 302 Conn.
913, 27 A.3d 372 (2011).
‘‘[T]he applicability of res judicata . . . presents a
question of law over which we employ plenary review.
. . . The principles that govern res judicata are
described in Restatement (Second) of Judgments
. . . . The basic rule is that of § 18, which [provides]
in relevant part: When a valid and final personal judg-
ment is rendered in favor of the plaintiff . . . [t]he
plaintiff cannot thereafter maintain an action on the
original claim or any part thereof, although he may be
able to maintain an action upon the judgment. . . .
As comment (a) to § 18 explains, [w]hen the plaintiff
recovers a valid and final personal judgment, his origi-
nal claim is extinguished and rights upon the judgment
are substituted for it. The plaintiff’s original claim is
said to be merged in the judgment. Our . . . case law
has uniformly approved and applied the principle of
claim preclusion or merger.’’ (Internal quotation marks
omitted.) Id., 410.
We consider the policies underlying res judicata in
our determination of whether to apply the doctrine
in a particular case. ‘‘These [underlying] purposes are
generally identified as being (1) to promote judicial
economy by minimizing repetitive litigation; (2) to pre-
vent inconsistent judgments which undermine the integ-
rity of the judicial system; and (3) to provide repose by
preventing a person from being harassed by vexatious
litigation.’’ (Internal quotation marks omitted.) Isaac v.
Truck Service, Inc., 253 Conn. 416, 422, 752 A.2d 509(2000). ‘‘[W]e have recognized that the application of
res judicata can yield harsh results . . . and, as a
result, have stated that 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.) Savvidis v. Norwalk, supra,129 Conn. App. 412.
The court concluded that there was a genuine issue
of fact as to whether the case was barred by res judicata
because the plaintiffs never were provided a key with
which to unlock the gate and access their land. The
defendant contends that the court ‘‘mistakenly found
a factual dispute where there is none.’’ Accordingly, we
shall address the defendant’s two res judicata argu-
ments before turning to the defendant’s claim that the
court should not have found the existence of a genuine
issue of material fact.
I
The defendant claims that the present action is barred
by res judicata because the claim arises from the same
transaction that was litigated in the 1997 action, and
because the plaintiffs had an adequate opportunity to
litigate this claim in the 1997 action. We agree.
A
We first examine the claim presented in the 1997
action because ‘‘the scope of matters precluded [in the
present action] necessarily depends on what has
occurred in the former adjudication.’’ (Internal quota-
tion marks omitted.) Joe’s Pizza, Inc. v. Aetna Life &
Casualty Co., 236 Conn. 863, 873, 675 A.2d 441 (1996).
We then compare the complaint in the present action
with the pleadings and judgment in the 1997 action.
See id.‘‘[T]he interpretation of pleadings is always a question
of law for the court . . . .’’ (Internal quotation marks
omitted.) Russo Roofing, Inc. v. Rottman, 86 Conn. App.
767, 772, 863 A.2d 713 (2005). Therefore, our review of
the court’s interpretation of the pleadings is plenary.
See id.The third and fourth counts of the complaint in the
1997 action are at issue because the town of Berlin
was a defendant and the Bucks were plaintiffs in those
counts. The third count of the complaint in the 1997
action, in relevant part, stated: ‘‘For many years a road-
way system known as Lamentation Mountain Pass Road
. . . provided access to property on Lamentation
Mountain . . . . During the past several years, [the
defendant] has granted subdivision approval . . . to
construct single-family homes in an area known as Lam-
entation Mountain Estates, which is located on the
southerly side of Spruce Brook Road where Lamenta-
tion Mountain Pass Road and Spruce Brook Road inter-
sect. . . . As a result of the aforesaid development,
Lamentation Mountain Pass Road no longer intersects
with Spruce Brook Road, but rather, it now intersects
with Quincy Trail, a public highway in [the defendant
town] created as a result of the aforesaid develop-
ment. . . .
‘‘[The defendant] has recently installed a locked gate
and cement blocks to prevent any vehicular access to
Lamentation Mountain Pass Road from the [defendant
town’s] public highway system. . . . The plaintiffs own
various parcels of land on Lamentation Mountain to
which access is provided by Lamentation Mountain
Pass Road. Action taken by [the defendant] in blocking
said roadway has denied [the] plaintiffs access to their
land. . . . For many years, the plaintiffs, and/or their
predecessors in title, have used the Lamentation Moun-
tain Pass Road system to access their lands and, as
such, [the] plaintiffs have a prescriptive right to use
said roadway to access their lands, including vehicu-
lar access.’’
The fourth count of the complaint, in relevant part,
further claimed: ‘‘[The defendant] has not formally
abandoned Lamentation Mountain Pass Road as a pub-
lic highway, and the plaintiffs, together with the general
public, have a right to use said road for all purposes
for which a highway may be used in [Connecticut],
including vehicular use.’’
In their prayer for relief in the 1997 complaint, the
plaintiffs requested that the court order the defendant
to remove the locked gate from the road and that the
court issue an injunction against the defendant’s inter-
ference with the plaintiffs’ right to use the road. The
plaintiffs also claimed attorney’s fees and costs from
the defendant.
The only relevant portion of the plaintiffs’ complaint
in the present action is the first count, which states:
‘‘Since January 8, 1982, [the] plaintiffs have accessed
the lower portion of [their lot] through [the defendant
town] via [Lamentation Pass Mountain Road] . . . an
unimproved road beginning at the Quincy Trail turn-
around in [the defendant town] and continuing into and
through [Middletown] . . . . For many years prior to
January 8, 1982, [p]laintiffs’ predecessors in title and
predecessors in title of surrounding properties accessed
their properties by utilizing [Lamentation Mountain
Pass Road] as a means of access to [their lot] and
surrounding properties. . . .
‘‘[Lamentation Mountain Pass Road] provide[s] the
plaintiffs with their only access to the entire [lot]. . . .
At [the defendant’s] executive board meeting on Janu-
ary 24, 1995, discussing the acceptance of two areas of
open space in the Lamentation Estates Subdivision . . .
the minutes indicate that [the] plaintiff L. Buck and a
Mr. James Tighe brought to the [defendant’s] attention
their right to use [Lamentation Mountain Pass Road]
as access to their properties. . . .
‘‘Despite being made aware of [the] plaintiffs’ prede-
cessors’ use, [the] plaintiffs’ use and [the] plaintiffs’
right to use [Lamentation Mountain Pass Road], [the
defendant] approved the . . . subdivision . . . . [O]n
or about October, 1995 . . . [the defendant] placed
some concrete blocks at the south end of Quincy Trail
in an unsuccessful attempt to prevent [the] plaintiffs’
vehicular access to [the road]. . . . [In a memoran-
dum] dated March 17, 1997, [the defendant] then
decided to replace the concrete blocks with fences
. . . .
‘‘On or about June 9, 1997, being made aware of [the]
plaintiffs’ continued use of the road, [the defendant]
placed a large concrete block at each side of the gate
at the south end of Quincy Trail, thereby completely
blocking all vehicle access to and from [the plaintiff’s
lot] via [Lamentation Mountain Pass Road]. . . . [The
defendant] then also placed a gate approximately six
hundred (600) feet past the gate . . . thereby blocking
further vehicular access in either direction. . . . [The
defendant] then also placed cement blockades at the
town boundary of [Lamentation Mountain Pass Road],
preventing further vehicular access via [the road] into
[Middletown] and into and onto [the plaintiffs’ lot]. . . .
‘‘[The defendant] has refused to provide [the] plain-
tiffs with a key or with access to [their lot]. . . . Such
road closure and subsequent deprivation amounts to
inverse condemnation . . . .’’ (Citation omitted.)
In their prayer for relief, the plaintiffs requested com-
pensation for the alleged taking, a permanent injunc-
tion, exemplary or punitive damages, prejudgment
interest, litigation fees and costs, consequential losses,
and enforcement of the promise.
The complaint in the 1997 action and the complaint in
the present action are premised on the same underlying
transaction. The Restatement (Second) of Judgments
guides our analysis of the two complaints. ‘‘Because
the operative effect of the principle of claim preclusion
or merger is to preclude relitigation of the original
claim, it is crucial to define the dimensions of that
original claim. The Restatement . . . provides, in § 24,
that the claim [that is] extinguished includes 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.
What factual grouping constitutes a transaction, and
what groupings constitute a series, are to be determined
pragmatically, giving weight to such considerations 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 conforms to the
parties’ expectations or business understanding or
usage. . . .
‘‘The transactional test of the Restatement [(Second)
of Judgments] provides a standard by which to measure
the preclusive effect of a prior judgment, which we
have held to include any claims relating to the cause
of action which were actually made or might have been
made. . . . In determining the nature of a cause of
action for these purposes, we have long looked to the
group of facts which is claimed to have brought about
an unlawful injury to the plaintiff . . . and have noted
that [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. . . .
‘‘The Restatement (Second) of Judgments further
explains, with respect to how far the witnesses or proof
in the second action would tend to overlap the wit-
nesses or proof relevant to the first, [i]f there is a sub-
stantial overlap, the second action should ordinarily be
held precluded. But the opposite does not hold true;
even when there is not a substantial overlap, the second
action may be precluded if it stems from the same
transaction or series. 1 Restatement (Second), Judg-
ments § 24, comment (b) (1982). Similarly, [w]hen a
defendant is accused of successive but nearly simulta-
neous acts, or acts which though occurring over a
period of time were substantially of the same sort and
similarly motivated, fairness to the defendant as well
as the public convenience may require that they be dealt
with in the same action. Id., comment (d).’’ (Internal
quotation marks omitted.) Savvidis v. Norwalk, supra,129 Conn. App. 410–12.
Application of the transactional test leads us to the
conclusion that the plaintiff’s claim in the present action
is the same, for preclusion purposes, as their claim in
the 1997 action. In the 1997 complaint, the plaintiffs
alleged that, due to the defendant’s interference in the
form of a locked gate and cement blocks, they could not
access their property by way of Lamentation Mountain
Pass Road. The plaintiffs further alleged that the defen-
dant had not formally abandoned Lamentation Moun-
tain Pass Road, and that, as a result, the plaintiffs had
a right to continue to use the road. In the present com-
plaint, the plaintiffs essentially claim, albeit in more
detail, the same transaction as in the 1997 action—that
the defendant’s interference in the form of a locked
gate and large concrete blocks prevented the plaintiffs
from accessing their property by means of Lamentation
Mountain Pass Road, which constituted a taking.
The factual bases underlying these distinct legal theo-
ries not only are ‘‘ ‘related in time, space, origin, or
motivation’ ’’; id., 411; they are virtually indistinguish-
able; indeed, the complaint in the present action does
not allege any relevant wrongdoing by the defendant
since June 9, 1997, months before they served their
complaint in the 1997 action, on October 28, 1997. In
both the 1997 action and the present action, the defen-
dant is alleged to have committed not only ‘‘successive
but nearly simultaneous acts, or acts which though
occurring over a period of time were substantially of the
same sort and similarly motivated’’; (internal quotation
marks omitted) id., 412; the defendant is alleged to have
committed the very same act—blocking the plaintiffs’
access to their property—in the present action as in
the 1997 action.
The plaintiffs argue that the present action is not
based upon the same transaction as that asserted in
the 1997 action, because in the 1997 action, they had
claimed a prescriptive right over Lamentation Mountain
Pass Road (count three), and they had claimed that
Lamentation Mountain Pass Road had not been aban-
doned as a public highway (count four). The plaintiffs
assert that their claim in the present action, on the
other hand, is based on the defendant’s discontinuance
or abandonment of Lamentation Mountain Pass Road
through the use of barriers, which they believe entitles
them to compensation. Although the legal theories of
recovery may differ somewhat in the two complaints,
both could have been advanced in the first; Athena
Holdings, LLC v. Marcus, 160 Conn. App. 470, 477, 125
A.3d 290 (‘‘it is permissible under our rules of practice
to advance alternative and even inconsistent theories
of liability in a single complaint’’), cert. denied, 320
Conn. 908, A.3d (2015); and the Restatement
itself. 1 Restatement (Second), supra, § 25 (res judicata
may ‘‘extinguish a claim by the plaintiff against the
defendant even though the plaintiff is prepared in the
second action . . . [t]o seek remedies or forms of relief
not demanded in the first action’’).
We are not persuaded by the plaintiffs’ argument that
their claim in the present action is distinct from the
claims in the 1997 action because they differ in legal
theories espoused and relief sought, and therefore are
not subject to preclusion. We conclude that the 1997
and present actions are based upon the same underlying
transaction for the purpose of preclusion.
B
Next, we determine whether the plaintiffs had an
opportunity to litigate their present claim in the 1997
action. ‘‘In considering a defense of res judicata, our
Supreme Court has stated that [t]he appropriate inquiry
. . . is whether the party had an adequate opportunity
to litigate the matter in the earlier proceeding . . . .’’
(Emphasis omitted; internal quotation marks omitted.)
Cayer Enterprises, Inc. v. DiMasi, 84 Conn. App. 190,
194, 852 A.2d 758 (2004). The court concluded that
the prior action was premised upon § 13a-49, which
provides in effect for an appeal from a town’s decision
to abandon a road and does not provide for the award
of damages in the same action. The defendant maintains
that the prior action simply was not brought pursuant
to § 13a-49. We agree with the defendant.
Section 13a-49 provides a procedure by which a
town’s selectmen may abandon roads. Anyone
aggrieved by the town’s decision may appeal to the
Superior Court pursuant to General Statutes § 13a-62.
Because the Superior Court action is analogous to an
administrative appeal, money damages may not be
awarded in the Superior Court action. See Cone v.
Waterford, 158 Conn. 276, 279, 259 A.2d 615 (1969).
Whether the 1997 action properly can be character-
ized as being brought pursuant to § 13a-49 guides our
resolution of the question whether the plaintiffs had an
opportunity to litigate their claim in the prior adjudica-
tion. In Cone, our Supreme Court concluded that the
plaintiffs, who had instituted a prior action to appeal
the discontinuance of a road, properly instituted a later,
separate action for damages arising from the same dis-
continuance. Id., 277–78. The defendant in Cone argued
that the second claim was barred by res judicata. The
court disagreed, and held that it was proper to bring a
later, separate civil action for money damages after
bringing a § 13a-49 action. ‘‘In the first place . . . the
statute . . . § 13a-49, authorizing a discontinuance
(unlike [General Statutes] §§ 13a-52, 13a-54, and 13a-
63, for example) makes no provision for the assessment
of damages. Furthermore, the right to damages for a
discontinuance . . . applies only where, as here, there
is practically a total and permanent destruction of the
abutter’s right of access to any public highway . . . .’’
(Citations omitted) Id., 280.
On the basis of its reading of Cone, the court in the
present matter concluded that the plaintiffs ‘‘would not
have been able to seek money damages in the prior
action.’’ In support of this conclusion, the court referred
to Jurczak v. Durham, Superior Court, judicial district
of Middlesex, Docket No. 67480 (April 2, 1993) (1993
WL 119660, *3), which held that, pursuant to Cone, ‘‘an
aggrieved landowner may be able to recover damages
in a separate civil action, apart from the application
under General Statutes § 13a-49, if there is practically
a total and permanent destruction of the abutter’s right
of access to any public highway . . . .’’ (Internal quota-
tion marks omitted.) Relying on Cone and Jurczak, the
court ultimately determined that the plaintiffs were pre-
cluded from bringing an inverse condemnation claim
in the 1997 action; thus the claim was not barred by
res judicata.
The defendant claims that the court improperly char-
acterized the plaintiffs’ complaint in the 1997 action as
one brought pursuant to § 13a-49, hence, Cone did not
preclude the plaintiffs from litigating their inverse con-
demnation claims in the 1997 action. Section 13a-49 (a)
provides the mechanism for a town’s abandonment or
discontinuance of a road, and it also provides, in perti-
nent part, the remedy of appeal: ‘‘(4) (A) . . . any per-
son aggrieved by a discontinuance or partial
discontinuance [of a highway or private way] under this
subsection may . . . apply to the superior court for
the judicial district in which such town is located, in
the manner prescribed in section 13a-62.’’4 Section 13a-
62 provides the following procedure, in pertinent part,
for seeking relief pursuant to § 13a-49: ‘‘Any person
aggrieved by the doings of the selectmen in laying out
a highway5 may . . . apply to the superior court . . .
for relief, causing such selectmen to be cited to show
cause why such relief should not be granted. Such appli-
cation shall be heard and determined by a committee
of three disinterested persons to be appointed by the
court. If such committee finds that such highway is not
of common convenience and necessity, said court shall
set aside such layout . . . but, if such committee finds
that such highway is of common convenience and
necessity, the application shall be dismissed . . . .
The report of such committee may be set aside by the
court for any irregularity or improper conduct on its
part. . . .’’ (Footnote added.) General Statutes § 13a-
62.6
Our review of the record does not support the court’s
conclusion or the plaintiffs’ contention on appeal that
the 1997 action was brought pursuant to § 13a-49 and
§ 13a-62. Section 13a-49 governs the discontinuance of
a highway or private way.7 The complaint did not allege
that Lamentation Mountain Pass Road was discon-
tinued or abandoned—neither of the two counts involv-
ing the plaintiffs alleged that Lamentation Mountain
Pass Road was discontinued. Indeed, the fourth count
claimed the opposite: ‘‘[The defendant] has not formally
abandoned Lamentation Mountain Pass Road as a pub-
lic highway . . . .’’ (Emphasis added.) As such, the
complaint, on its face, does not support the argument
that the plaintiffs had brought the action as a § 13a-
49 claim.
Additionally, the plaintiffs did not sufficiently plead
any facts that indicated that the action was a § 13a-49
claim. The complaint and the record as a whole do not
support the proposition that the plaintiffs in any way
adhered to the procedural requirements for bringing a
§ 13a-49 action as prescribed in § 13a-62. For instance,
there is no allegation that the plaintiffs presented an
application to a committee of three people appointed
by the court. See General Statutes § 13a-62. Without
any indication that this requirement or any of the other
steps outlined in § 13a-62 were followed, coupled with
a complaint that alleged that Lamentation Mountain
Pass Road had not been abandoned or formally discon-
tinued, but rather that the town had wrongfully blocked
the road and prevented the plaintiffs from using their
easement, we conclude that the plaintiffs simply did not
bring the 1997 action pursuant to § 13a-49, the statute
governing discontinued highways.
We return to Cone v. Waterford, supra, 158 Conn.
276. In their brief, the plaintiffs argue that, pursuant
to Cone, ‘‘the first step for someone aggrieved by the
discontinuance of a road is to bring a lawsuit against
the town regarding the legality of the discontinuance.
It is not until there is a judgment in favor of the town
that a determination as to the permanent destruction
of the right of access can be made . . . .’’ Were we to
adopt the plaintiff’s interpretation—that Cone allows
plaintiffs to pursue money damages in a separate civil
action only after losing a case presented to a committee,
brought according to § 13a-62—we still would decline
to hold that the application of Cone to the present
matter avoids preclusion because the record does not
show that the plaintiffs followed the procedure outlined
in § 13a-62 in the prior case.8 Cone’s holding is based
upon the rationale that it is inappropriate to bring a
claim for monetary damages in the same Superior Court
proceeding as an administrative type appeal from a
decision made by the committee appointed pursuant
to § 13a-62, which does not provide for damages.
Because the plaintiffs here did not appeal from such a
decision in the 1997 action, the rationale of Cone does
not apply.
The plaintiffs point to Jurczak v. Durham, supra,
1993 WL 119660,9 in support of their position. Like Cone,
Jurczak is not to the point, however, because, in con-
trast to the plaintiffs in the present matter, the plaintiffs
in Jurczak clearly brought their initial claim pursuant to
§§ 13a-49 and 13a-62: ‘‘[T]he plaintiffs filed the present
three count application seeking review of the defen-
dants’ decision to discontinue the public road with the
superior court, pursuant to General Statutes § 13a-49.’’
Id., *1. Thus, the court’s conclusion that the plaintiffs
in that case could bring a separate civil action for money
damages has no authoritative value for the resolution
of this case on our present set of facts.
The plaintiffs, then, were not precluded by Cone v.
Waterford, supra, 158 Conn. 276, from bringing their
inverse condemnation claim in the 1997 action. Res
judicata, according to our Supreme Court, extinguishes
a plaintiff’s claim against a defendant even when the
plaintiff ‘‘is prepared in the second action . . . [t]o pre-
sent . . . theories of the case not presented in the first
action . . . .’’ (Internal quotation marks omitted.)
Weiss v. Weiss, 297 Conn. 446, 461, 998 A.2d 766 (2010).
The plaintiffs had the opportunity to litigate the inverse
condemnation claim in the 1997 action. Res judicata
bars the claim in the present action because the same
underlying transaction is at issue in both the 1997 and
present actions, and because the plaintiffs had adequate
opportunity to litigate the cause of action alleged in the
present case in the 1997 action.
II
The defendant also claims that the court erred in
concluding that a genuine issue of material fact existed.
In its decision, the court noted that the plaintiffs
claimed that they had never received a key to unlock
the gate that would have enabled them to access their
land, despite the defendant’s promise to provide a key
to anyone who could prove ownership of property
blocked by the gate. The court concluded that, ‘‘[w]hile
the prior action involved the same parties and there
was a judgment entered on the merits, this evidence
that the plaintiffs have not been granted access to their
property shows that there remains a genuine issue of
material fact as to whether the plaintiffs were given the
opportunity to fully litigate their claim.’’ The issue of
whether the plaintiffs had the opportunity to litigate
their claim fully, however, is one of law, and not of
fact. Moreover, the plaintiffs have not alleged, in their
brief on appeal to this court or in their objection to the
motion for summary judgment, that the provision of a
key—or any other fact—is both material and in dispute.
Although the defendant, as the party moving for sum-
mary judgment, had ‘‘the burden of showing . . . that
[it] is . . . entitled to judgment as a matter of law’’;
(internal quotation marks omitted) Powell v. Infinity
Ins. Co., 282 Conn. 594, 600, 922 A.2d 1073 (2007); the
plaintiffs, as the parties opposing summary judgment,
‘‘must substantiate [their] adverse claim by showing
that there is a genuine issue of material fact together
with the evidence disclosing the existence of such an
issue.’’ (Internal quotation marks omitted.) Buell Indus-
tries, Inc. v. Greater New York Mutual Ins. Co., 259
Conn. 527, 550, 791 A.2d 489 (2002). Accordingly, the
defendant is entitled to summary judgment based on
its res judicata claim, and because the plaintiffs did not
show that there was a genuine issue of material fact
with respect to that claim.
The judgment is reversed and the case is remanded
with direction to grant the defendant’s motion for sum-
mary judgment as to count one of the plaintiffs’ second
amended complaint.
In this opinion the other judges concurred.
1
‘‘While a denial of summary judgment generally is not considered a
final judgment for purposes of appellate review, the denial of a motion for
summary judgment based on the doctrine of res judicata is a final judgment
for purposes of an appeal.’’ Himmelstein v. Bernard, 139 Conn. App. 446,
448 n.2, 57 A.3d 384 (2012).
2
In count one, the plaintiffs alleged that the defendant’s actions amounted
to inverse condemnation—a taking of the plaintiffs’ property.
3
The trial court referred to this road as Old Lamentation Mountain Pass
Road, but the parties refer to it as Lamentation Mountain Pass Road in
their briefs. Hereafter, for ease of reference, we shall refer to the road as
Lamentation Mountain Pass Road.
4
Although § 13a-49 has been amended since the events that gave rise to
this appeal, those amendments have no bearing on this appeal. We therefore
refer to the current revision of the statute, as amended by No. 15-147, § 1,
of the 2015 Public Acts.
5
In this case, § 13a-62 would apply to the alleged abandonment or discon-
tinuance of a road, as § 13a-49 so provides.
6
We note that although § 13a-62 has been amended by No. 15-147, § 2, of
the 2015 Public Acts, that amendment has no bearing on the merits of
this appeal.
7
In counts three and four of the complaint in the 1997 action, the plaintiffs
did not specifically identify § 13a-49 or any other statute, although, notably,
in one count of the complaint, which did not involve the plaintiffs, specific
statutes were identified.
8
The plaintiffs and the defendant argue that Luf v. Southbury, 188 Conn.
336, 449 A.2d 1001 (1982), supports each of their respective positions. Luf
is not controlling in the present matter, however, because that case did not
apply principles of res judicata. The defendant argues that Luf overrules
Cone v. Waterford, supra, 158 Conn. 276, and that this court should, therefore,
refuse to apply Cone. We express no opinion as to whether Luf overrules
Cone; as set forth in this opinion, we determine that Cone is inapplicable
in any event.
9
Jurczak, of course, does not bind us in any event.