Peterson v. iCare Management, LLC ( 2021 )

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JON PETERSON ET AL. v. ICARE
MANAGEMENT, LLC, ET AL.
(AC 42885)
KAREN MUNDLE ET AL. v. ICARE
MANAGEMENT, LLC, ET AL.
(AC 42886)
Bright, C. J., and Cradle and Bear, Js.
Syllabus
The plaintiff property owners in Rocky Hill sought to recover damages from
the defendants for, inter alia, alleged private nuisance, in connection
with the defendants’ operation of a nursing home facility for prison
inmates on a neighboring property. The town of Rocky Hill had brought
several prior related actions against the defendants based on their pro-
posed use of the property as a nursing care facility for prison inmates,
seeking declaratory and injunctive relief and alleging violations of the
town’s zoning regulations. Those actions were consolidated and tried
to the court, which rendered judgment in favor of the defendants, holding
that the defendants’ use of the property was a preexisting, nonconform-
ing use and was not in violation of the zoning regulations. The plaintiffs
thereafter commenced the underlying actions, seeking damages and a
declaration from the court that the defendant could not operate the
nursing home facility at the property. The defendants moved for sum-
mary judgment, claiming that the plaintiffs’ claims were barred by the
principles of res judicata and/or collateral estoppel based on the court’s
prior judgment rendered in the litigation involving the town. The trial
court denied the defendants’ motions for summary judgment, holding
that neither res judicata nor collateral estoppel applied because the
claims and issues previously litigated were not sufficiently identical to
those presented in the underlying actions. From the judgments rendered
thereon, the defendants appealed to this court. Held:
1. The defendants could not prevail on their claim that the trial court erred
in denying their motions for summary judgment because the plaintiffs’
claims were barred by res judicata: the trial court aptly rejected the
defendants’ argument that the court’s conclusion in the prior litigation
that the defendants did not violate the town’s zoning regulations bars
the plaintiffs’ claims in the underlying actions, because, as that court
stated, the claims are fundamentally different; in the present cases,
the plaintiffs asserted tort claims arising not out of an alleged zoning
violation, but, rather, from the alleged loss of value, use and enjoyment
of their real properties, and the plaintiffs also alleged recklessness and
intentional conduct, which require an analysis of the defendants’ mental
states, as well as causation and damages, and these elements were not
discussed or determined in the prior litigation; because these tort claims
have fundamentally different legal elements from the previously litigated
zoning violation claim, they are not sufficiently identical to the claims
that were previously litigated; accordingly, the trial court correctly con-
cluded that the elements and analysis of the tort claims differ from the
elements and analysis at issue in the prior litigation, and, therefore, res
judicata did not bar the plaintiffs’ claims.
2. The trial court correctly concluded that collateral estoppel did not pre-
clude the plaintiffs from litigating the issue of whether the defendants’
use of the property negatively impacted the plaintiffs: the town did not
allege a nuisance claim in the prior litigation nor could it have asserted
the rights the plaintiffs seek to protect in the underlying actions, and
the court in the prior litigation was not asked to resolve the question
of whether the defendants’ operation of the nursing home facility consti-
tuted a nuisance for which the plaintiffs in the present cases would be
entitled to damages; moreover, the court’s comment in the prior litigation
regarding whether there was any substantial difference in effect on the
neighborhood resulting from the activities at the defendants’ property
was not necessary to its resolution of the zoning issue before it, and,
therefore, the trial court correctly concluded that the court’s comment
in the prior litigation was dictum because it was not essential to that
court’s conclusion.
Argued October 14, 2020—officially released April 13, 2021
Procedural History
Action, in each case, for a declaratory judgment
regarding the operation of a nursing home facility and
to recover damages for, inter alia, private nuisance, and
for other relief, brought to the Superior Court in the
judicial district of New Britain and transferred to the
judicial district of Hartford, where the court, Wahla, J.,
granted the plaintiffs’ motions to consolidate the cases;
thereafter, the court, Noble, J., denied the defendants’
motion for summary judgment in each case and ren-
dered judgments thereon, from which the defendants
appealed to this court; subsequently, this court granted
in part the plaintiffs’ motion to dismiss the appeals.
Affirmed.
Jonathan M. Starble, for the appellants (defendants
in each case).
Kevin P. Walsh, for the appellees (plaintiffs in
each case).
Opinion
CRADLE, J. These two appeals arise from consoli-
dated cases.1 The defendants in both actions, iCare Man-
agement, LLC, SecureCare Realty, LLC, and SecureCare
Options, LLC (defendants), appeal from the judgments
of the trial court denying their motions for summary
judgment, in which they argued that the plaintiffs’
claims were barred by res judicata and/or collateral
estoppel.2 On appeal, the defendants claim that the trial
court erred in denying their motions because the plain-
tiffs’ claims were previously litigated in an earlier
action.3 We affirm the judgments of the trial court.
The following undisputed facts are relevant to this
appeal. The plaintiffs own residential properties neigh-
boring the property owned by SecureCare Realty, LLC,
located at 60 West Street in Rocky Hill (60 West).4 From
2012 through 2015, the town of Rocky Hill (town)
brought several related actions against the defendants
based on their proposed use of 60 West as a nursing
care facility for prison inmates. On December 21, 2012,
the town brought an action against SecureCare Realty,
LLC, and iCare Management, LLC, seeking a declaratory
judgment and injunctive relief. See Rocky Hill v.
SecureCare Realty, LLC, Superior Court, judicial dis-
trict of Hartford, Land Use Litigation Docket, Docket
No. CV-XX-XXXXXXX-S (SecureCare I). In SecureCare I,
the town asserted that the defendants’ proposed use of
60 West, to house prison inmates in a residential zone,
violates the town’s zoning regulations. The defendants
in SecureCare I moved to dismiss that action. On April
23, 2013, the court, Robaina, J., dismissed SecureCare I,
reasoning that ‘‘the defendants are entitled to sovereign
immunity . . . [because they] . . . are engaging in
government functions on behalf of the state.’’
In February, 2013, the plaintiffs in Peterson, Docket
No. AC 42885; see footnote 1 of this opinion; brought the
first underlying action against the defendants alleging
private nuisance and recklessness, and seeking a decla-
ration from the court that the defendants ‘‘cannot . . .
operate a nursing home facility at 60 West . . . .’’ On
June 15, 2015, the plaintiffs amended their complaint
to include an allegation of intentional conduct in con-
nection with the defendants’ proposed use of 60 West.
The plaintiffs alleged that the defendants’ intended use
of the property, to house inmates who have been con-
victed of felonies, violates the town’s zoning regulations
and amounts to a private nuisance negatively impacting
their real property values and their use and enjoyment
of their properties. The plaintiffs sought a judgment
declaring that the defendants cannot operate a nursing
care facility for inmates at 60 West, as well as damages
for the diminution of their property values. On Septem-
ber 25, 2014, the plaintiffs in Mundle, Docket No. AC
42886; see footnote 1 of this opinion; commenced the
second underlying action, which contained allegations
identical to those in the February, 2013 action brought
by the Peterson plaintiffs.
On January 6, 2015, our Supreme Court reversed the
trial court’s judgment in SecureCare I, and remanded
that case to the trial court for a determination of
whether the use proposed by the defendants complied
with the town’s zoning regulations. See Rocky Hill v.
SecureCare Realty, LLC, 315 Conn. 265, 267, 299, 105
A.3d 857 (2015). On January 21, 2015, after the defen-
dants began operating the facility, the town5 brought
a second action against SecureCare Realty, LLC, and
SecureCare Options, LLC, alleging that the use of 60
West violates the town’s zoning regulations. Rocky Hill
v. SecureCare Realty, LLC, Superior Court, judicial dis-
trict of Hartford, Land Use Litigation Docket, Docket
No. CV-XX-XXXXXXX-S (SecureCare II). That complaint
sought an injunction ordering the defendants to cease
and desist from using 60 West ‘‘as a prison/penitentiary,
nursing home and/or as an assisting living facility.’’ The
defendants in SecureCare II moved to dismiss the
action based on the pending action in SecureCare I. On
March 12, 2015, the court, Hon. Joseph Shortall, judge
trial referee, denied the defendants’ motion to dismiss
SecureCare II, and consolidated the two cases. The
town withdrew its complaint in SecureCare I on March
17, 2015, and all issues therein were subsumed in
SecureCare II.
In August, 2015, the defendants filed two administra-
tive appeals in connection with decisions of the Zoning
Board of Appeals of the Town of Rocky Hill (board).6
SecureCare Realty, LLC v. Zoning Board of Appeals,
Superior Court, judicial district of Hartford, Land Use
Litigation Docket, Docket No. CV-XX-XXXXXXX-S;
SecureCare Options, LLC v. Zoning Board of Appeals,
Superior Court, judicial district of Hartford, Land Use
Litigation Docket, Docket No. CV-XX-XXXXXXX-S.
SecureCare II and the two administrative appeals were
consolidated and tried to the court, Hon. Marshall
Berger, judge trial referee, from August 29 through Sep-
tember 1, 2017. In a memorandum of decision dated
March 14, 2018, the court held that the defendants’ use
of the property was a preexisting, nonconforming use
and was not in violation of the local zoning regulations.7
Therefore, the court rendered judgment for the defen-
dants in SecureCare II. The town did not file an appeal.
On June 22, 2018, the defendants in the present cases
moved for summary judgment, claiming that the plain-
tiffs’ claims were now barred by the principles of res
judicata or collateral estoppel, based on the court’s
March 14, 2018 decision in SecureCare II. The defen-
dants argued that the plaintiffs were in privity with the
town for purposes of res judicata and that the plaintiffs’
claims were the same as those brought in SecureCare
II. In addition, the defendants argued that, even if the
plaintiffs’ claims were not precluded by res judicata,
their nuisance, recklessness, and intentional tort claims
were barred by collateral estoppel because those claims
rely on the defendants’ use of the property being in
violation of local zoning regulations, which already had
been litigated in SecureCare II. The plaintiffs objected
to the motions for summary judgment, arguing that res
judicata and collateral estoppel did not bar their claims
because they are not in privity with the town and their
legal claims are different from those litigated in
SecureCare II.
In a memorandum of decision dated April 12, 2019,
the trial court, Noble, J., denied the defendants’ motions
for summary judgment, holding that neither res judicata
nor collateral estoppel applied because the claims and
issues litigated in SecureCare II were not ‘‘sufficiently
identical to those presented’’ in the underlying actions.
The trial court stated that the ‘‘sole question before the
court in [SecureCare II] was whether the defendants’
use of 60 West was a violation of Rocky Hill zoning
regulations. . . . [T]he trial court was tasked with
making a determination of whether the facility complied
with the zoning regulations. . . . This in turn involved
the determination of whether the property was in use
as a nursing home . . . and whether the use of the
property by the defendants was an illegal expansion of
a prior nonconforming use. . . . Judge Berger found
that the defendants were using the property as a nursing
home and that this use was not an illegal expansion
of the prior nonconforming use. The latter conclusion
requires the consideration of three factors: (1) the
extent to which the current use reflects the nature and
purpose of the original use; (2) any differences in the
character, nature and kind of use involved; and (3) any
substantial difference in effect upon the neighborhood
resulting from differences in the activities conducted
on the property. . . . The court found consideration of
the first two factors militated in favor of a determination
that the defendants’ use of the property was not an
illegal expansion of a nonconforming use. . . . As a
consequence, the court held that it did not need to
address whether there was a substantial difference in
effect upon the neighborhood resulting from differ-
ences in the activities conducted at the property.’’ (Cita-
tions omitted; emphasis in original; footnote omitted;
internal quotation marks omitted.)
The court differentiated the claims in the present
cases from the claims litigated in SecureCare II by
observing that the ‘‘present claims are not that the
defendants violated zoning regulations, but that the
defendants are liable for nuisance, recklessness and
intentional conduct. These claims differ from a pure
consideration of whether the use of the property vio-
lates zoning regulations in that a common-law private
nuisance is a nontrespassory invasion of another’s inter-
est in the private use and enjoyment of land. . . . More-
over, there can be no doubt that a use which does not
violate zoning restrictions may nonetheless create a
common-law nuisance.’’ (Citations omitted; internal
quotation marks omitted.)
Because the underlying claims were not the same in
both actions, the court concluded that the judgment in
SecureCare II ‘‘cannot serve as the basis for res judi-
cata’’ and that there ‘‘is nothing in [the SecureCare II]
decision that dispositively addresses the plaintiffs’ use
and enjoyment of their properties, a necessary element
of a nuisance claim.’’ Accordingly, the court held that
the plaintiffs’ claims were not barred by res judicata
or collateral estoppel. These appeals followed.
On appeal, the defendants claim that the trial court
erred in failing to grant their motions for summary
judgment on the grounds of res judicata or collateral
estoppel because the plaintiffs are in privity with the
town, the underlying claims are the same as the claims
in SecureCare II, and an essential element of the plain-
tiffs’ claims was decided by the trial court in that case.
The plaintiffs argue that they are not in privity with the
town and that they are asserting fundamentally different
claims from those litigated in SecureCare II. We agree
with the plaintiffs and affirm the judgments of the
trial court.
The standard of review of a trial court’s decision on
a motion for summary judgment is well established.
‘‘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 courts are in entire
agreement that the moving party . . . has the burden
of showing the absence of any genuine issue as to all
the material facts . . . . When documents submitted
in support of a motion for summary judgment fail to
establish that there is no genuine issue of material fact,
the nonmoving party has no obligation to submit docu-
ments establishing the existence of such an issue. . . .
Once the moving party has met its burden, however,
the [nonmoving] party must present evidence that dem-
onstrates the existence of some disputed factual issue.
. . . Our review of the trial court’s decision to grant
the defendant’s motion for summary judgment is ple-
nary. . . . On appeal, we must determine whether the
legal conclusions reached by the trial court are legally
and logically correct and whether they find support in
the facts set out in the memorandum of decision of
the trial court.’’ (Citations omitted; internal quotation
marks omitted.) Lucenti v. Laviero, 327 Conn. 764,
772–73, 176 A.3d 1 (2018).
I
The defendants first claim that the trial court erred
in denying their motions for summary judgment
because the plaintiffs’ claims, as a matter of law, were
barred by res judicata. We disagree.
‘‘The applicability of the doctrine of res judicata pre-
sents a question of law that we review de novo. . . .
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. . . . 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. . . .
‘‘Res judicata bars the relitigation of claims actually
made in the prior action as well as any claims that might
have been made there. . . . Public policy supports the
principle that a party should not be allowed to relitigate
a matter which it already has had an opportunity to
litigate.’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) Wheeler v. Beachcroft, LLC,
320 Conn. 146, 156–57, 129 A.3d 677 (2016).
‘‘To determine whether claims are the same for res
judicata purposes, this court has adopted the transac-
tional test. . . . Under the transactional test, res judi-
cata 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. . . . What factual grouping
constitutes a transaction, and what groupings consti-
tute 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’ expecta-
tions or business understanding or usage. . . . In
applying the transactional test, we compare the com-
plaint in the [present] action with the pleadings and
the judgment in the earlier action.’’ (Citations omitted;
internal quotation marks omitted). Id., 159–60.
Although the defendants raise arguments in support
of both the second and fourth elements, it is the fourth
element—that the same underlying claim must be at
issue—that is central to our discussion. The defendants
argue, as they did before the trial court, that the court’s
conclusion in SecureCare II that the defendants did not
violate the town’s zoning regulations bars the plaintiffs
from pursuing their claims in the present cases because
the allegation of a zoning violation is essential to the
plaintiffs’ claims.8 Consequently, they contend that the
plaintiffs’ tort claims are functionally the same as the
claims asserted by the town in SecureCare II. The trial
court aptly rejected this argument, stating that the
claims are fundamentally different.
In SecureCare II, the town alleged that the defen-
dants’ operation at 60 West violated two provisions
of the zoning regulations and sought declaratory and
injunctive relief to prohibit the defendants from
operating the facility. In order to prevail, the town had
to prove that the defendants’ activities were an illegal
extension or change of the nonconforming use. In
determining whether the town met this burden, the
court in SecureCare II focused on ‘‘the use [of 60 West
as a convalescent home and hospital] and any expan-
sion or intensification of that use.’’ The court performed
an extensive analysis of the language of the zoning
regulations, as well as the defendants’ particular opera-
tion, to conclude that the use was a legal continuation
of a prior nonconforming use.
By contrast, the plaintiffs in the present cases assert
tort claims, including a claim of private nuisance, arising
not out of an alleged zoning violation but, rather, from
the alleged loss of value, use and enjoyment of their
real property. As the trial court aptly noted, Connecticut
courts have long held that ‘‘a use which does not violate
zoning restrictions may nonetheless create a common-
law nuisance.’’ Herbert v. Smyth, 155 Conn. 78, 83, 230
A.2d 235 (1967). ‘‘The essence of a private nuisance is
an interference with the use and enjoyment of land.’’
(Internal quotation marks omitted.) Wellswood Colum-
bia, LLC v. Hebron, 327 Conn. 53, 80, 171 A.3d 409(2017). In order to succeed on a claim of private nui-
sance, the plaintiff ‘‘must prove that: (1) there was an
invasion of the plaintiff’s use and enjoyment of his or
her property; (2) the defendant’s conduct was the proxi-
mate cause of the invasion; and (3) the invasion was
either intentional and unreasonable, or unintentional
and the defendant’s conduct was negligent or reckless.
. . . [S]howing unreasonableness is an essential ele-
ment of a private nuisance cause of action based on
. . . recklessness.’’ (Citation omitted.) Pestey v. Cush-
man, 259 Conn. 345, 358, 788 A.2d 496 (2002). A use
which is in accordance with zoning regulations can,
nonetheless, be unreasonable. See Maykut v. Plasko,
170 Conn. 310, 317, 365 A.2d 1114 (1976).
The plaintiffs also allege recklessness and intentional
conduct, which require an analysis of the defendants’
mental states, as well as causation and damages. These
elements were not discussed in SecureCare II because
the town was solely seeking injunctive relief and a
declaratory judgment as a result of the alleged zoning
violations. The court in SecureCare II neither discussed
nor determined whether any of the elements of private
nuisance, recklessness, or intentional conduct were
met. Because these tort claims have fundamentally dif-
ferent legal elements from the previously litigated zon-
ing violation claim, they are not sufficiently identical
to the claims that were litigated in SecureCare II. The
plaintiffs’ claims are not predicated on the existence
of a zoning violation but, rather, on alleged tortious
conduct. The plaintiffs seek relief, including compensa-
tory and punitive damages,9 that is materially different
from the relief sought in SecureCare II. Accordingly,
we agree with the trial court’s conclusion that the ele-
ments and the analysis of the tort claims differ from
the elements and analysis litigated in SecureCare II,
and, therefore, res judicata does not bar the plain-
tiffs’ claims.
II
The defendants also argue that, even if the plaintiffs’
claims are not precluded by res judicata, collateral
estoppel precludes the plaintiffs from relitigating the
issue of whether the defendants’ use of 60 West nega-
tively impacts the plaintiffs.
‘‘Collateral estoppel, or issue preclusion, is that
aspect of res judicata which prohibits the relitigation
of an issue when that issue was actually litigated and
necessarily determined in a prior action between the
same parties upon a different claim. . . . For an issue
to be subject to collateral estoppel, it must have been
fully and fairly litigated in the first action. It also must
have been actually decided and the decision must have
been necessary to the judgment. . . .
‘‘An issue is actually litigated if it is properly raised
in the pleadings or otherwise, submitted for determina-
tion, and in fact determined. . . . An issue is necessar-
ily determined if, in the absence of a determination of
the issue, the judgment could not have been validly
rendered. . . . If an issue has been determined, but the
judgment is not dependent [on] the determination of the
issue, the parties may relitigate the issue in a subsequent
action. . . . Before collateral estoppel applies [how-
ever] there must be an identity of issues between the
prior and subsequent proceedings. To invoke collateral
estoppel the issues sought to be litigated in the new
proceeding must be identical to those considered in the
prior proceeding. . . . In other words, collateral estop-
pel has no application in the absence of an identical
issue. . . . Further, an overlap in issues does not
necessitate a finding of identity of issues for the pur-
poses of collateral estoppel.’’ (Emphasis in original;
internal quotation marks omitted.) Independent Party
of CT–State Central v. Merrill, 330 Conn. 681, 7114, 200
A.3d 1118 (2019).
In their motions for summary judgment, the defen-
dants asserted that the plaintiffs were precluded from
relitigating whether the defendants’ use of the property
violates local zoning regulations and whether the opera-
tion of 60 West had an impact on the plaintiffs’ proper-
ties. The defendants argue on appeal that the court in
SecureCare II already determined that the operation at
60 West did not negatively affect the plaintiffs’ proper-
ties and, as a result, the plaintiffs are precluded by
collateral estoppel from raising this issue again in their
nuisance claims. The plaintiffs argue that the trial
court’s discussion regarding the impact to the neighbor-
hood was dictum because it was a ‘‘[f]inding on [a]
nonessential [issue],’’ and, therefore, the trial court did
not make any conclusive determination as to the
impact, if any, of the defendants’ conduct on the plain-
tiffs’ properties for purposes of collateral estoppel.
The court in SecureCare II, in concluding that the
defendants’ use of the property was not in violation of
the zoning regulations, found that the defendants’ use
of 60 West was not an illegal expansion of the prior
nonconforming use. In reaching its conclusion, that
court found that a consideration of the first two factors,
‘‘(1) the extent to which the current use reflects the
nature and purpose of the original use . . . and (2) any
differences in the character, nature and kind of use
involved,’’ supported the determination that the use
was not an illegal expansion of a nonconforming use.
(Internal quotation marks omitted.) The court in
SecureCare II did not reach the third factor, whether
the use resulted in ‘‘any substantial difference in effect
upon the neighborhood resulting from differences in
the activities conducted on the property,’’ because the
first two factors supported a conclusion that the defen-
dants’ use was a legal expansion of a prior nonconform-
ing use. (Internal quotation marks omitted.) That court
merely noted that the town presented evidence regard-
ing some neighbors’ fears of the ‘‘individuals [housed
at 60 West] and the impact of the fear on their families’
lives.’’ The court then stated, in a footnote, that ‘‘any
evidence presented on the negative effects on the neigh-
borhood [was] based on speculation and the perceived
change in the patient population not upon the activities
on the property.’’
In rejecting the defendants’ collateral estoppel argu-
ment in the present cases, the trial court held that the
comment made by the court in SecureCare II in a foot-
note regarding the negative effects on the neighborhood
was ‘‘clearly dict[um]’’ and that that there was ‘‘nothing
in [the court’s] decision that dispositively addresses
the plaintiffs’ use and enjoyment of their properties, a
necessary element of a nuisance claim.’’
On appeal, the defendants argue that the plaintiffs’
claims are premised on the alleged zoning violations
and the alleged negative impact that these violations
have had on the plaintiffs. The defendants argue that
SecureCare II established that the defendants’ use of
60 West did not violate zoning regulations, did not nega-
tively impact the plaintiffs’ lives or properties, and that
Judge Berger’s comment was not dictum, but, rather,
a statement that the plaintiffs in that case ‘‘had so clearly
failed to prove negative effects, that the issue could be
disposed of summarily without significant additional
discussion.’’ We disagree with the defendants.
The town neither alleged a nuisance claim in
SecureCare II nor could it have asserted the rights that
the plaintiffs seek to protect in the present action. Con-
sequently, the court in that case was not asked to
resolve, and did not resolve, the question of whether
the defendants’ operation at 60 West constituted a nui-
sance for which the plaintiffs in the present cases would
be entitled to damages. Furthermore, the court’s com-
ment in SecureCare II regarding whether there was any
substantial difference in effect on the neighborhood
resulting from the activities at 60 West was not neces-
sary to its resolution of the zoning issue before it.
Rather, the court in SecureCare II adjudicated the zon-
ing issue without determining whether the defendants’
activities had a negative impact on the plaintiffs’ proper-
ties and lives, because, as the trial court in the present
cases stated, ‘‘consideration of the first two factors
militated in favor of a determination that the defen-
dants’ use of the property was not an illegal expansion
of a nonconforming use.’’ Because the first two ele-
ments supported that conclusion without a consider-
ation of the third element of whether the change in
operations had a negative impact on the surrounding
neighborhood, the court did not need to reach that
issue. We therefore agree with Judge Noble’s character-
ization of the court’s statement in the footnote as dictum
because it was not essential to the court’s conclusion.
See Board of Police Commissioners v. Stanley, 92
Conn. App. 723, 736, 887 A.2d 394 (2005) (‘‘[d]ictum
includes those discussions that are merely passing com-
mentary . . . those that go beyond the facts at issue
. . . and those that are unnecessary to the holding in
the case’’ (internal quotation marks omitted)).10
The judgments are affirmed.
In this opinion the other judges concurred.
1
In Peterson v. iCare Management, LLC, Docket No. AC 42885, the plain-
tiffs are Antonio Fabi, Katherine Fabi, Joshua Egan, Lauren Egan, Anthony
Coco and Tonilynn Coco. Jon Peterson, Amber Peterson, Brian Crawford
and Nicole Crawford were named as plaintiffs, but they subsequently with-
drew their claims in June, 2017. In Mundle v. iCare Management, LLC,
Docket No. AC 42886, the plaintiffs are Karen Mundle, Raymond Prevedini
and Judith Prevedini. The underlying actions in each appeal were brought
against the same three defendants, iCare Management, LLC, SecureCare
Realty, LLC, and SecureCare Options, LLC. The cases were consolidated in
October, 2016.
Unless otherwise noted, all references in this opinion to the plaintiffs are
to the plaintiffs in both the Peterson and Mundle actions. Similarly, all
references in this opinion to the defendants are to SecureCare Realty, LLC,
SecureCare Options, LLC, and iCare Management, LLC.
In each appeal, the defendants assert identical underlying facts, legal
claims, and challenges. In addition, the pleadings filed with both the trial
court and this court are identical. Although these appeals have not been
consolidated by this court, we write one opinion for purposes of judicial
economy in which we assess the claims made in both appeals.
2
We note that, although ‘‘[t]he denial of a motion for summary judgment
is not ordinarily appealable because it is not a final judgment . . . an appeal
may be taken from the denial of a motion for summary judgment when such
motion raises the defense of collateral estoppel.’’ (Citations omitted; internal
quotation marks omitted.) Young v. Metropolitan Property & Casualty Ins.
Co., 60 Conn. App. 107, 112, 758 A.2d 452, cert. denied, 255 Conn. 906, 762
A.2d 912 (2000).
3
See Rocky Hill v. SecureCare Realty, LLC, Superior Court, judicial dis-
trict of Hartford, Land Use Litigation Docket, Docket Nos. CV-XX-XXXXXXX,
CV-XX-XXXXXXX-S, CV-XX-XXXXXXX-S, and CV-XX-XXXXXXX-S (March 14, 2018)
(66 Conn. L. Rptr. 437), which involved four consolidated cases all related
to the use of the defendants’ facility.
4
SecureCare Realty, LLC, is the owner of 60 West. SecureCare Options,
LLC, is an entity formed by iCare Management, LLC, to lease 60 West
from SecureCare Realty, LLC, and to operate the nursing home, and iCare
Management, LLC, provides management services to the other defendants.
5
Kimberly Ricci, assistant zoning enforcement officer, was also a
named plaintiff.
6
While SecureCare I was pending before our Supreme Court, the defen-
dants were issued two ‘‘Notice of [V]iolation, Cease and Desist’’ orders on
May 29, 2013, by the town’s zoning enforcement officer. The defendants
responded, in writing, that these orders were in violation of the trial court’s
orders in SecureCare I. On January 23, 2015, seventeen days after our
Supreme Court’s decision remanding SecureCare I and two days after
SecureCare II was filed, the defendants appealed the cease and desist orders
to the board. The board dismissed the appeals on July 15, 2015, stating that
it lacked jurisdiction. The appeals dated August 12, 2015, were filed in
response to the dismissal of the appeals by the board dated January 23, 2015.
7
In reaching this conclusion, Judge Berger acknowledged the history of
the property at 60 West, stating that ‘‘[u]se of the property as a ‘convalescent
home and hospital’ was approved by the Planning and Zoning Commission
of the Town of Rocky Hill on April 12, 1965. . . . It was continuously used
as a licensed chronic and convalescent nursing home . . . from 1967, to
August 24, 2011, when the facility was closed and the license became inactive.
. . . The Connecticut Department of Public Health issued the defendants
a new . . . license for its facility, 60 West, on or around May 2, 2013. . . .
The license was the same type of license that was in effect for the property
continuously from 1967 until 2011, but allowed for 95 beds instead of 120.’’
(Citations omitted; footnote omitted.)
8
The defendants also argue, as they did before the trial court, that the
plaintiffs are in privity with the town. The trial court declined to address
the issue of privity, concluding that ‘‘[t]he court need not address the issue
of privity because it does not find that the claims and issues litigated in
[SecureCare II] are sufficiently identical to those presented in the present
action,’’ and that all four elements of res judicata are essential for the
doctrine to apply. Because we agree with the trial court’s conclusion that
the plaintiffs’ claims are not identical to those already litigated by the town,
we likewise need not address the defendants’ privity argument.
9
Specifically, the plaintiffs claim compensatory damages, punitive dam-
ages, a declaration that the defendants cannot operate a nursing home
facility at 60 West, attorney’s fees and costs.
10
Even if the court in SecureCare II needed to reach, and had definitively
resolved, the third element, any assessment of the adverse impact on the
neighborhood for the purpose of determining whether there was a zoning
violation would not have involved the same analysis of the adverse impact
on the plaintiffs’ lives and values of their properties in the private nuisance
claims. Because an adverse impact to each plaintiff’s property is an essential
element of each plaintiff’s nuisance claim and because such impact clearly
was neither actually litigated nor necessarily determined in SecureCare II,
collateral estoppel would not bar the plaintiffs’ claims.