Wellswood Columbia, LLC v. Town of Hebron

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WELLSWOOD COLUMBIA, LLC, ET AL.
v. TOWN OF HEBRON
(SC 19693)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.*
Syllabus
The plaintiffs, who owned property in a town adjoining the defendant town,
commenced the present action seeking to recover damages for, inter
alia, a temporary taking, temporary nuisance, and tortious interference
with business expectancies after the defendant’s Board of Selectmen
closed the road that provided the only access to the plaintiffs’ property.
The plaintiffs previously commenced an action seeking a temporary and
permanent injunction, and the trial court rendered judgment in favor
of the defendant. The plaintiffs appealed from that judgment to this
court, which concluded that the defendant had exceeded its authority
in closing the road and remanded the case to the trial court with direction
to render judgment in favor of the plaintiffs. In the present action, the
defendant moved for summary judgment on the basis of res judicata.
The trial court granted the motion, concluding that the damages claims
arose out of the same operative facts as the claim for injunctive relief
in the first action. The plaintiffs appealed, claiming that the trial court
incorrectly determined that their damages claims in the present action
were barred by the principles of res judicata. Held:
1. The plaintiffs’ argument that their takings claim did not accrue and thus
could not have been brought until after the injunction had been issued
in the first action was unavailing; a temporary takings claim accrues
when the regulatory action that is alleged to have effected the taking
becomes final, and the accrual of the plaintiffs’ takings claim was not
postponed for res judicata purposes by virtue of the fact that the extent
of their damages was uncertain because the permanent or temporary
nature of the taking was unknown, as it was clear at the time the road
was closed that the plaintiffs had sustained some damages.
2. The road closure did not constitute a temporary nuisance or continuing
wrong such that the plaintiff’s damages claim fell within the exception
to res judicata for continuing or recurrent wrongs: the plaintiffs did not
allege that the defendant committed additional, wrongful acts during
or subsequent to the injunction action but, rather, claimed that they
were entitled to recover damages on the basis of the defendant’s single,
wrongful act of closing the road; moreover, even if the road closure
was properly characterized as a nuisance, because it was the sort of
harm that the plaintiffs were required to presume would continue indefi-
nitely, it would have been a permanent nuisance for which the cause
of action would have accrued upon the closure of the road.
3. The trial court properly granted the defendant’s motion for summary
judgment with respect to the plaintiffs’ claim for tortious interference
with business expectancies, there having been no genuine issue of mate-
rial fact as to whether the plaintiffs sustained losses prior to the com-
mencement of the first action; the plaintiffs having lost access to their
property and having presented expert testimony in the first action regard-
ing the diminution in value of that property, it was apparent that the
plaintiffs had suffered immediate and cognizable losses resulting from
the closure of the road, and, therefore, the trial court properly concluded
that the claim for tortious interference with business expectancies could
have been brought in the prior action.
4. The policies underlying res judicata strongly supported the doctrine’s
application in the present case, as allowing this case to proceed would
run counter to the minimization of repetitive litigation, the promotion
of judicial economy, and repose to the parties: although further proceed-
ings as to the damages claims would have been required following this
court’s reversal of the trial court’s judgment in the first action, those
proceedings would have concluded several years ago and would have
conserved the considerable resources expended by the parties and the
court in that time; moreover, the plaintiffs would have been aggrieved
for purposes of an appeal even if they had requested both injunctive
relief and damages in the first action and the trial court denied their
request for an injunction but awarded damages.
Argued January 25—officially released November 7, 2017
Procedural History
Action to recover damages for the defendant’s alleg-
edly improper temporary closure of a public road, and
for other relief, brought to the Superior Court in the
judicial district of Hartford, where the case was
removed to the United States District Court for the
District of Connecticut, which retained jurisdiction over
certain of the plaintiffs’ claims and remanded certain
of the plaintiffs’ claims to the Superior Court in the
judicial district of Hartford; thereafter, the court, Elgo,
J., granted the defendant’s motion for summary judg-
ment and rendered judgment thereon, from which the
plaintiffs appealed. Affirmed.
Kerry M. Wisser, with whom, on the brief, was Sarah
Black Lingenheld, for the appellants (plaintiffs).
Thomas R. Gerarde, with whom, on the brief, was
Emily E. Holland, for the appellee (defendant).
Opinion
PALMER, J. In Wellswood Columbia, LLC v. Hebron,
295 Conn. 802, 804–805, 825, 992 A.2d 1120 (2010)
(Wellswood I), this court reversed the judgment of the
trial court, which denied the application of the plaintiffs,
Wellswood Columbia, LLC (Wellswood), and its manag-
ing partner, Ronald Jacques, for a permanent injunction
barring the defendant, the town of Hebron (town),1 from
closing a road that provided the sole existing access to
a property that Wellswood owned in the adjoining town
of Columbia. Shortly after the trial court issued the
injunction upon remand from this court, the plaintiffs
commenced the present action against the town seeking
damages for, inter alia, a temporary taking, temporary
nuisance and tortious interference with the plaintiffs’
business expectancies. The trial court, Elgo, J., granted
the town’s motion for summary judgment on the ground
that the plaintiffs’ claims were barred by the doctrine
of res judicata because they arose out of the same
operative facts as the plaintiffs’ claim for injunctive
relief and, therefore, should have been brought in Wells-
wood I. On appeal,2 the plaintiffs claim that the trial
court incorrectly determined that their claims in the
present action are barred by the principles of res judi-
cata. We disagree and, accordingly, affirm the judgment
of the trial court.3
I
FACTS AND PROCEDURAL HISTORY
This court’s opinion in Wellswood I sets forth the
following relevant facts and procedural history. ‘‘In
early 2004, the plaintiffs were considering the purchase
of the property, which consisted of approximately 188
acres of land in the town of Columbia, for purposes of
constructing a six phase residential retirement commu-
nity. The only . . . existing access to the property
[was] Wellswood Road in Hebron,4 which runs from
Route 66 to the town line between Hebron and Colum-
bia. At that point, Wellswood Road becomes Zola Road,
which continues into the property and terminates in a
dead end. . . .
‘‘Because the only access to the property was by way
of Wellswood Road, the plaintiffs requested a meeting
with Hebron town officials to discuss the proposed
development. During a meeting on April 21, 2004,
Hebron town officials expressed several concerns
about the proposed development, including concerns
about storm water runoff from Wellswood Road, the
adequacy of the water supply and the feasibility of sep-
tic services. The parties also discussed whether access
to the property would be through private or public
roads. . . . Hebron town officials indicated that,
because the sole access to the development, at least
initially, would be Wellswood Road, the development
did not comply with that town’s subdivision regulations.
‘‘After several additional meetings with the Hebron
town officials to discuss the development, Wellswood
purchased the property in August, 2004, and decided
to go forward with its development plans despite know-
ing of [those] concerns. In October, 2004, the plaintiffs
began the subdivision approval process in Columbia.
On December 9, 2004, Paul Mazzaccaro, then the town
manager for Hebron, sent a letter to the Columbia
[P]lanning and [Z]oning [C]ommission in which he
raised several concerns regarding the proposed devel-
opment. Mazzaccaro stated that, as depicted in the plans
that the plaintiffs had submitted, the proposed develop-
ment ‘never could have access to other . . . develop-
ment [in Columbia] or be connected to the present
Columbia street system.’ He requested that future plans
provide for such connection. Thereafter, the plaintiffs
met separately with officials of both towns and it was
determined that Mazzaccaro’s letter had been based on
outdated plans. Later subdivision plans showed several
proposed new streets running from Zola Road to the
property line. None of these streets, however, con-
nected with existing roads in Columbia.
‘‘Over the next several months, the plaintiffs contin-
ued the subdivision approval process in Columbia. On
September 13, 2005, the Columbia [P]lanning and [Z]on-
ing [C]ommission conducted a public hearing on the
proposed subdivision. Several town officials from
Hebron attended the hearing and voiced concerns over
the remote location of the subdivision, the difficulty of
responding to emergencies at that location, the effect
of additional traffic on the safety of Wellswood Road
and the increased cost to Hebron of maintaining the
road and providing emergency services.
‘‘On October 6, 2005, the Hebron [P]lanning and [Z]on-
ing [C]ommission held a special meeting and recom-
mended closing and barricading Wellswood Road at the
town line. The Hebron [B]oard of [S]electmen adopted
the recommendation that night. Thereafter, the plain-
tiffs brought [an] action seeking a temporary and perma-
nent injunction to prevent [Hebron] from closing
Wellswood Road. After the plaintiffs filed the action,
[Hebron] . . . posted a ‘road closed’ sign at the end of
Wellswood Road. [Hebron] then filed a motion to dis-
miss the action for lack of subject matter jurisdiction,
claiming, inter alia, that the plaintiffs’ lacked standing,
which the trial court, Peck, J., denied.
‘‘In April, 2006, the town of Columbia approved the
plaintiffs’ subdivision application. The parties subse-
quently entered into a stipulation for a temporary
injunction pursuant to which the town of Hebron was
enjoined from obstructing the plaintiffs’ use of Wells-
wood Road for access to their property pending resolu-
tion of the action. Thereafter, the action was tried to
the court, Hon. Lawrence C. Klaczak, judge trial referee
. . . .’’ (Footnotes altered.) Wellswood Columbia, LLC
v. Hebron, supra, 295 Conn. 805–808.
On July 21, 2008, the trial court issued a memorandum
of decision in which it concluded, inter alia, that the
plaintiffs were not entitled to a permanent injunction
because they had failed to demonstrate that they were
without an adequate remedy at law or that they would
suffer irreparable harm in the absence of an injunction.5
Wellswood Columbia, LLC v. Hebron, Superior Court,
judicial district of Tolland, Docket No. TTD-CV-05-
4003914-S (July 21, 2008) (46 Conn. L. Rptr. 69, 76),
rev’d, 295 Conn. 802, 992 A.2d 1120 (2010). In reaching
its determination, the trial court noted that ‘‘the plain-
tiffs have argued that they have suffered irreparable
harm because [the town’s] actions have injured them
in such a way that money damages cannot compensate
them. However, the plaintiffs have contradicted this
position through the evidence they provided at trial,
namely, the expert testimony of their appraiser. While
this fact may preclude them from seeking injunctive
relief, it does not prevent them from seeking money
damages. Yet, in order to recover such money damages
. . . the plaintiffs must show a total and permanent
loss of the right of access to public roads, and presently
the plaintiffs have failed to prove such a loss based on
the evidence presented at trial.’’ (Emphasis omitted;
internal quotation marks omitted.) Id., 74.6
‘‘Furthermore, the plaintiffs have not demonstrated
that they are without an adequate remedy at law. [On
the basis of] their allegations, the plaintiffs could have
sought damages based on a taking[s] theory of recovery,
yet they chose not to seek such a remedy in their prayer
for relief or otherwise during the course of this litiga-
tion. While both parties provided expert appraisal testi-
mony at trial, each [appraiser] provided significantly
different opinions regarding the diminution of value
resulting from the closure of Wellswood Road, such
evidence was presented with respect to the issue of
irreparable harm, not money damages. This court dis-
agrees with the plaintiffs’ assertion that the availability
of money damages is not relevant to determining
whether an adequate remedy at law exists. . . . Based
on the expert appraisal testimony of the parties, the
legal remedy of money damages would be available to
the plaintiffs . . . as each appraiser testified to specific
estimates of economic loss that would result from the
closure of Wellswood Road. Because both parties pro-
vided expert testimony that offered specific amounts
of compensable injury, the court finds that the plaintiffs
have not sufficiently demonstrated that they are without
an adequate remedy at law, and as such, an injunction
should not issue in the present action.’’ Id.
Finally, the trial court observed that ‘‘the plaintiffs
argue in their [post trial] brief that, should the court
find [that] injunctive relief is not the proper remedy
. . . they are entitled to money damages and a tempo-
rary injunction until such damages are paid . . . .’’ Id.,
76 n.2. The court explained, however, that ‘‘the plaintiffs
have not provided sufficient evidence on this issue.
In fact, this alternative theory of recovery was never
brought up in any of the plaintiffs’ pleadings, nor in
their prayer for relief. Because they have failed to prop-
erly bring this issue before the court, the issue of money
damages will not be addressed; the only issue presently
before the court is whether the plaintiffs are entitled
to injunctive relief.’’ Id.
On appeal to this court in Wellswood I, the plaintiffs
challenged the trial court’s denial of their request for
a permanent injunction but not the court’s denial of
their request for damages. Specifically, the plaintiffs
argued that the trial court ‘‘improperly denied their
request for a permanent injunction barring the [town]
from closing Wellswood Road because: (1) barring the
road was an unreasonable and arbitrary exercise of
police power; (2) equitable relief is an appropriate rem-
edy for the destruction of access even without a show-
ing of irreparable harm; (3) even if a showing of
irreparable harm is required, the plaintiffs were irrepa-
rably harmed by the road closure because there is no
other access to the property; (4) the road closure was
inconsistent with the public policy underlying General
Statutes § 13a-55; and [5] contrary to the trial court’s
finding, the plaintiffs cannot use the property for pur-
poses other than the subdivision if the road is closed.’’
(Footnote omitted.) Wellswood Columbia, LLC v.
Hebron, supra, 295 Conn. 808–809. We agreed with the
plaintiffs’ first contention, concluding that the town had
exceeded its authority in closing Wellswood Road; id.,
809; and, therefore, that ‘‘the resolution of the [town’s]
[B]oard of [S]electmen to close and barricade Wells-
wood Road was void ab initio . . . .’’ Id., 824. Accord-
ingly, we remanded the case to the trial court with
direction to ‘‘render judgment in favor of the plaintiffs
. . . voiding the . . . action of the [town’s] [B]oard
of [S]electmen adopting the recommendation of the
[town’s] [P]lanning and [Z]oning [C]ommission to close
and barricade Wellswood Road.’’ Id., 824–25.
In reaching our determination, we rejected the town’s
contention that the plaintiffs were not aggrieved by its
decision to close the road, and, therefore, the plaintiffs
lacked standing to bring the injunction action. Id., 809,
813. We concluded that the plaintiffs were classically
aggrieved by the town’s decision because they had
established a specific personal and legal interest that
had been injuriously affected by the town’s actions.
In particular, we explained that, ‘‘[i]n the course of
exercising the powers expressly granted to it, such as
the power to discontinue a road and to lay out a new
road, a municipality may deprive a landowner of an
access easement’’; (footnotes omitted) id., 815; but, ‘‘in
such cases, the elimination of the access easement con-
stitutes a constitutional taking entitling the landowner
to compensation.’’ Id., 815 n.16.
Shortly after the trial court issued the injunction, as
directed by this court on remand, the plaintiffs brought
the present action seeking damages for, inter alia, a
temporary taking. In their complaint, the plaintiffs
alleged that, as a result of the temporary closure of
Wellswood Road, ‘‘[they] were prevented from devel-
oping the property and deprived of the economic value
and income to be derived from the property and from
[the] development. When the . . . [t]own . . . posted
and maintained the ‘road closed’ sign, it knew or should
have known that any potential buyer with respect to
[the residential retirement community] would become
aware of the ‘road closed’ sign, and that [the] sign would
have the effect of driving away potential buyers with
respect to [the residential retirement community].’’
Thereafter, the town removed the case to the United
States District Court for the District of Connecticut,
and that court, Bryant, J., subsequently dismissed two
of the plaintiffs’ federal claims, retained jurisdiction
over a bad faith takings claim, and remanded the plain-
tiffs’ temporary takings, temporary nuisance and tor-
tious interference with business expectancies claims
to the Superior Court.
Following remand to the Superior Court, the town
moved for summary judgment, arguing, inter alia, that
the plaintiffs’ claims were barred by the doctrine of res
judicata and the applicable statutes of limitations. The
trial court, Elgo, J., granted the town’s motion, conclud-
ing that all of the plaintiffs’ claims arose out of the
same operative facts as the plaintiffs’ claim for injunc-
tive relief, and, therefore, the plaintiffs’ claims should
have been brought in Wellswood I. After oral argument
in this court, the District Court reached a similar conclu-
sion with respect to the plaintiffs’ bad faith takings
claim and granted summary judgment in favor of the
town with respect to that claim. See Wellswood Colum-
bia, LLC v. Hebron, United States District Court,
Docket No. 3:10-CV-1467 (VLB) (D. Conn. March 28,
2017).
On appeal, the plaintiffs argue that their takings and
tortious interference with business expectancies claims
are not barred by res judicata because they did not
accrue until the town reopened the road following this
court’s decision in Wellswood I. In support of this claim,
the plaintiffs maintain that, until the reopening of the
road, the full extent of their damages could not be
established with reasonable certainty. The plaintiffs fur-
ther argue that the road closure constituted a private
temporary or ‘‘continuing’’ nuisance,7 and, as such, their
damages claim falls within the exception to res judicata
for ‘‘continuing or recurrent wrong[s].’’ 1 Restatement
(Second), Judgments § 26 (1) (e), p. 234 (1982).8 In
the alternative, the plaintiffs argue that the policies
underlying the doctrine of res judicata, in particular,
the policy of judicial economy, are not furthered by the
doctrine’s application in the present case. The plaintiffs’
claim, among other reasons, that damages could not
have been assessed in Wellswood I until this court ruled,
in 2010, on the propriety of the town’s conduct and,
therefore, even if the plaintiffs had brought all of their
claims in the earlier action, ‘‘[t]he remand order from
this court would have been . . . for a hearing in dam-
ages for the temporary taking.’’ Thus, according to the
plaintiffs, because further proceedings would have been
required, even if they had brought all of their claims in
Wellswood I, allowing the present case to proceed
would work no real violence on the doctrine of res
judicata.
We conclude that the plaintiffs’ claims are foreclosed
by principles of res judicata that are well established
in Connecticut law, and that the out-of-state cases on
which the plaintiffs rely provide no compelling reason
to deviate from those principles so as to exempt their
claims from the preclusive effect of res judicata. To
the contrary, as we explain more fully hereinafter, the
present case falls squarely within the parameters of
that doctrine and its jurisprudential underpinnings.
II
GOVERNING LEGAL PRINCIPLES
It has long been an ‘‘established principle in our law
of civil procedure that two [actions] shall not be brought
for the determination of matters in controversy between
the same parties, whether relating to legal or equitable
rights, or to both, when such determination can be had
as effectually and properly in one [action]. . . . To this
end the law provides that all courts having jurisdiction
at law and in equity, may administer legal and equitable
rights, and apply legal and equitable remedies in favor
of either party, in one and the same [action], so that
legal and equitable rights of the parties may be enforced
and protected in one action.’’ (Internal quotation marks
omitted.) Beach v. Beach Hotel Corp., 117 Conn. 445,
452–53, 168 A. 785 (1933).
‘‘The doctrine of res judicata holds that an existing
final judgment rendered [on] the merits without fraud
or collusion, by a court of competent jurisdiction, is
conclusive of causes of action and of facts or issues
thereby litigated as to the parties and their privies in
all other actions in the same or any other judicial tribu-
nal of concurrent jurisdiction. . . . If the same cause
of action is again sued on, the judgment is a bar with
respect to any claims relating to the cause of action
[that] were actually made or [that] might have been
made. . . .
‘‘The applicability of the [doctrine] of . . . res judi-
cata presents a question of law that we review de novo.
. . . Because [the doctrine is a] judicially created [rule]
of reason that [is] enforced on public policy grounds;
Stratford v. International Assn. of Firefighters, AFL-
CIO, Local 998, 248 Conn. 108, 127, 728 A.2d 1063
(1999); we have observed that whether to apply [the]
doctrine in any particular case should be made based
[on] a consideration of the doctrine’s underlying poli-
cies, namely, the interests of the defendant and of the
courts in bringing litigation to a close . . . and the
competing interest of the plaintiff in the vindication of
a just claim. . . . These [underlying] purposes are gen-
erally identified as being (1) to promote judicial econ-
omy by minimizing repetitive litigation; (2) to prevent
inconsistent judgments [that] undermine the integrity
of the judicial system; and (3) to provide repose by
preventing a person from being harassed by vexatious
litigation. . . . The judicial [doctrine] of res judicata
. . . [is] based on the public policy that a party should
not be able to relitigate a matter [that] it already has
had an opportunity to litigate. . . . Stability in judg-
ments grants to parties and others the certainty in the
management of their affairs [that] results when a con-
troversy is finally laid to rest. . . .
‘‘We also have recognized, however, that the applica-
tion of [the] doctrine has dramatic consequences for
the party against whom it is applied, and that we should
be careful that the effect of the doctrine does not work
an injustice. . . . Thus, [t]he [doctrine] . . . should be
flexible and must give way when [its] mechanical appli-
cation would frustrate other social policies based on
values equally or more important than the convenience
afforded by finality in legal controversies.’’ (Citations
omitted; internal quotation marks omitted.) Powell v.
Infinity Ins. Co., 282 Conn. 594, 600–602, 922 A.2d
1073 (2007).
‘‘Because the operative effect of the principle of [res
judicata] is to preclude relitigation of the original claim,
it is crucial to define the dimensions of that original
claim. The Restatement (Second) [of Judgments] pro-
vides, 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 consti-
tutes 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’ expecta-
tions or business understanding or usage. In amplifica-
tion of this definition of original claim, § 25 of the
Restatement (Second) [of Judgments provides] that
[t]he rule of § 24 applies to extinguish a claim by the
plaintiff against the defendant even though the plaintiff
is prepared in the second action (1) [t]o present evi-
dence or grounds or theories of the case not presented
in the first action, or (2) [t]o seek remedies or forms
of relief not demanded in the first action.
‘‘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 [that] 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 [that] 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), [supra]
§ 24, comment (b) . . . .’’9 (Internal quotation marks
omitted.) Lighthouse Landings, Inc. v. Connecticut
Light & Power Co., 300 Conn. 325, 348–49, 15 A.3d
601 (2011).
III
THE PLAINTIFFS’ CLAIMS
With these principles in mind, we turn to the merits
of the plaintiffs’ claims. Specifically, they contend that
their damages claims—for a temporary taking, tempo-
rary nuisance and tortious interference with the plain-
tiffs’ business expectancies—do not fall within the
purview of the doctrine of res judicata. The plaintiffs’
further contend that, even if principles of res judicata
are generally applicable to their claims, we should
exempt them from the preclusive effect of that doctrine
because its underlying policies would not be served in
the present case. We reject these contentions.
A
Temporary Taking
The plaintiffs first argue that res judicata does not
apply to their temporary takings claim because it did
not accrue, and, therefore, could not have been brought,
until this court issued its opinion in Wellswood I. They
claim that, until then, neither the extent of their dam-
ages nor the nature of the taking—whether temporary
or permanent—was known. At oral argument before
this court, however, counsel for the plaintiffs conceded
that this contention is contrary to this court’s decision
in Cumberland Farms, Inc. v. Groton, 247 Conn. 196,
210–13, 719 A.2d 465 (1998), which held that a tempo-
rary takings claim accrues and is capable of resolution
on the merits when the regulatory action that is alleged
to have effectuated a taking becomes final. In Chapman
Lumber, Inc. v. Tager, 288 Conn. 69, 952 A.2d 1 (2008),
this court explained the holding in Cumberland Farms,
Inc., as follows: ‘‘In Cumberland Farms, Inc. v. Groton,
supra, 198–99, a plaintiff landowner brought an inverse
condemnation action against a municipality, arguing
that the municipality’s denial of a variance had
destroyed the value of the plaintiff’s real property and,
therefore, that the plaintiff was entitled to just compen-
sation for the regulatory taking of that property. The
Appellate Court concluded that the inverse condemna-
tion action had been brought prematurely because the
plaintiff’s administrative appeal from the denial of its
variance request remained pending, and, consequently,
the extent of its damages was unknown. . . . We dis-
agreed and reversed the decision of the Appellate Court.
. . . Specifically, we disagreed that the fact that the
plaintiff potentially could prevail in the administrative
appeal, thereby eliminating its right to damages, ren-
dered the plaintiff’s takings claim speculative. . . . We
reasoned that, even if the plaintiff’s administrative
appeal ultimately was successful, the plaintiff still
would be entitled to some compensation for the tempo-
rary taking it had suffered during the pendency of that
appeal.10 . . . In other words, even though it was
unclear at the outset of the inverse condemnation action
whether the plaintiff’s damages claim was for a tempo-
rary or complete taking, the claim nevertheless was
ripe and capable of resolution on the merits.’’ (Citations
omitted; footnote added.) Chapman Lumber, Inc. v.
Tager, supra, 88; see also Miller v. Westport, 268 Conn.
207, 216, 842 A.2d 558 (2004) (explaining that, under
Cumberland Farms, Inc., ‘‘the denial of a variance by
a zoning board of appeals is considered a final decision
by an initial decision maker, which is all that is required
to establish finality in order to bring a takings claim,
and that once the zoning board of appeals makes its
decision, the regulatory activity is final for purposes of
an inverse condemnation claim’’).
Thus, under controlling case law, the mere fact that
the extent of the plaintiffs’ damages was not immedi-
ately known at the time of the taking—because the
plaintiffs did not know whether the taking would be
temporary or permanent—does not operate to postpone
the accrual of the plaintiffs’ takings claim for res judi-
cata purposes. This is so because, ‘‘[a]lthough the exact
amount of the [plaintiffs’] damages might have
remained uncertain when [they] commenced [the first]
action, it nevertheless was abundantly clear that the
plaintiff[s] had sustained some damages . . . . Pursu-
ant to Connecticut’s ripeness jurisprudence, as long as
it is clear that [the plaintiffs have] suffered an injury
sufficient to give rise to the cause of action alleged, a
lack of certainty as to the precise scope of damages
will not prevent the claim from being justiciable.’’
(Emphasis omitted; footnote added.) Chapman Lum-
ber, Inc. v. Tager, supra, 288 Conn. 87–88. As far as we
are aware, this is the law throughout the country. See,
e.g., Navajo Nation v. United States, 631 F.3d 1268,
1278 (Fed. Cir. 2011) (‘‘[t]his court has previously
rejected the notion that the cessation of [a] regulation
is a necessary condition to liability of the United States
for a temporary regulatory takings claim’’ [internal quo-
tation marks omitted]); Bass Enterprises Production
Co. v. United States, 133 F.3d 893, 896 (Fed. Cir. 1998)
(‘‘[t]he fact that regulation has not ceased may compli-
cate a determination of just compensation but does not
justify a bright-line rule against liability’’); Kuhnle Bros.,
Inc. v. Geauga, 103 F.3d 516, 521 (6th Cir. 1997) (‘‘In
the takings context, the basis of a facial challenge is
that the very enactment of the statute has reduced the
value of the property or has effected a transfer of a
property interest. This is a single harm, measurable
and compensable when the statute is passed.’’ [Internal
quotation marks omitted.]); Scott v. Sioux City, 432
N.W.2d 144, 147–48 (Iowa 1988) (inverse condemnation
resulting from zoning ordinance restricting develop-
ment is not continuing injury but is single injury com-
pensable at time of ordinance’s passage); Chesterfield
Village, Inc. v. Chesterfield, 64 S.W.3d 315, 320–21 (Mo.
2002) (second action by plaintiff for temporary taking
and damages after prevailing in first action for injunc-
tive relief was barred by res judicata, as ‘‘[t]he fact that
[the plaintiff] did not know at [time of the first action]
precisely what its damages would be is of little impor-
tance’’); Raab v. Avalon, 392 N.J. Super. 499, 513, 921
A.2d 470 (App. Div.) (concluding that taking was com-
plete when defendant town took possession of shore-
line property after storm and built dunes by passing
various ordinances, and that there was no basis in fact
for applying continual wrong doctrine ‘‘to rescue plain-
tiffs from the legal consequences of their deliberate
inactions’’), cert. denied, 192 N.J. 475, 932 A.2d 26
(2007).
Consistent with the foregoing principles, the Appel-
late Court, in Buck v. Berlin, 163 Conn. App. 282, 293,
135 A.3d 1237, cert. denied, 321 Conn. 922, 138 A.3d
283 (2016), concluded that a takings claim predicated
on the defendant town’s placement of a gate across a
road that provided the sole access to the land of the
plaintiff property owners was barred by res judicata
because the property owners, in an earlier injunction
action, had sought to enjoin the town from blocking
the road. In C & H Management, LLC v. Shelton, 140
Conn. App. 608, 615–16, 59 A.3d 851 (2013), the Appel-
late Court similarly concluded that a temporary takings
claim was barred by res judicata when the plaintiff
management company previously had brought a suc-
cessful mandamus action to compel the defendant city
to issue a building permit on a particular parcel of
land. The Appellate Court concluded that, because the
damages action arose out of the same operative facts
as the mandamus action—the city’s refusal to issue
the building permit—the management company should
have brought its takings claim in the prior action. Id.,
617 (‘‘[w]e are aware of no case law in this state that
allows a subsequent action for damages to be main-
tained, despite the doctrine of res judicata, simply
because the first action sought only a writ of manda-
mus’’); see also Creek v. Westhaven, 80 F.3d 186, 190
(7th Cir.) (‘‘You cannot split a claim into a request for
damages and a request for injunction and litigate each
in a separate [action]. . . . [1 Restatement (Second),
supra, § 24 (1) and comment (a), p. 197]. To divide a
claim in that way is precisely the vice against which
the doctrine of res judicata . . . is directed.’’ [Citations
omitted.]), cert. denied, 519 U.S. 868, 117 S. Ct. 180, 136
L. Ed. 2d 120 (1996).
In arguing to the contrary, the plaintiffs rely on two
federal circuit court cases, Corn v. Lauderdale Lakes,
904 F.2d 585, 587–88 (11th Cir. 1990), and Creppel v.
United States, 41 F.3d 627, 632 (Fed. Cir. 1994), both
of which concluded that a temporary takings claim did
not accrue until there was a final judicial determination
of the validity of the regulatory action alleged to have
effectuated the taking. Neither of these cases consti-
tutes persuasive precedent.
In Corn v. Lauderdale Lakes, supra, 904 F.2d 585,
the United States Court of Appeals for the Eleventh
Circuit determined that, for purposes of res judicata, a
temporary takings claim ‘‘is not mature until the propri-
ety or impropriety of the zoning regulation has been
finally determined [by the courts].’’ Id., 587. Subse-
quently, however, in New Port Largo, Inc. v. Monroe
County, 985 F.2d 1488, 1497, 1499 (11th Cir.), cert.
denied, 510 U.S. 964, 114 S. Ct. 439, 126 L. Ed. 2d 373
(1993), Chief Judge Gerald Tjoflat and Judge James
Edmondson acknowledged that Corn was flawed to the
extent that it purported to hold that a temporary takings
claim does not accrue until the propriety of the regula-
tory action has been adjudicated.11 In a concurring opin-
ion, Chief Judge Tjoflat explained that the court in Corn
had misinterpreted language in Williamson County
Regional Planning Commission v. Hamilton Bank, 473
U.S. 172, 186, 105 S. Ct. 3108, 87 L. Ed. 2d 126 (1985)
(Williamson), that a temporary takings claim accrues
when the decision maker ‘‘charged with implementing
the regulations has reached a final decision regarding
the application of the regulations to the property at
issue . . . .’’ (Internal quotation marks omitted.) New
Port Largo, Inc. v. Monroe County, supra, 1495 (Tjoflat,
C. J., concurring). As Chief Judge Tjoflat explained,
‘‘[t]he [court in] Corn . . . erred by improperly
expanding Williamson’s final decision requirement so
that accrual is postponed until ‘state review entities’—
rather [than] the initial [decision makers]—‘have made
a final determination on the status of the subject prop-
erty.’ . . . Hence, under Williamson, a federal takings
claim ripens as soon as the initial [decision maker]
renders a final decision. . . . Indeed, Williamson spe-
cifically rejected the notion that plaintiffs must exhaust
state review procedures before their takings claims
ripen.’’ (Citations omitted; footnotes omitted.) Id., 1497
(Tjoflat, C. J., concurring).
In a separate concurring opinion, Judge Edmondson,
the author of the opinion in Corn, similarly acknowl-
edged that Chief Judge Tjoflat’s criticisms of Corn were
valid but maintained that the decision was nevertheless
correct on its facts and in light of the issue presented
therein, which did not require a determination of when
a claim accrues but, rather, when the applicable statute
of limitations began to run. Id., 1499 (Edmondson, J.,
concurring) (‘‘Most important, Corn . . . did not
decide [because it was unnecessary to decide] when
[the plaintiff’s] taking claim first became ripe or mature
for federal adjudication. Anything the language of the
Corn . . . [decision] may imply about maturity or ripe-
ness [the Williamson kind of issue] for [that] claim is
[dictum].’’ [Footnote omitted.]); see also id., 1501–1502
(Edmondson, J., concurring) (‘‘As a jurisprudential mat-
ter, the doctrine of ripeness rests on different considera-
tions than do statutes of limitation[s]. . . . And it is
not strange that a matter may become ripe and yet the
statute does not start to run.’’).
The plaintiffs also rely on Creppel v. United States,
supra, 41 F.3d 627, in which the United States Court of
Appeals for the Federal Circuit stated that ‘‘property
owners cannot [commence an action] for a temporary
taking until the regulatory process that began it has
ended. This is because they would not know the extent
of their damages until the [g]overnment completes the
‘temporary’ taking. Only then may property owners seek
compensation.’’ Id., 632. It is impossible to square this
language—which some courts have dismissed as dic-
tum12—with later cases from the Federal Circuit, which
uniformly hold that a regulatory takings claim is ripe
for adjudication upon a final decision of the regulatory
authority.13 See, e.g., Navajo Nation v. United States,
supra, 631 F.3d 1278 (‘‘[The] court has previously
rejected the notion ‘that the cessation of [a] regulation is
a necessary condition to liability’ . . . for a temporary
regulatory takings claim. [Bass Enterprises Production
Co. v. United States, supra, 133 F.3d 896 (Fed. Cir.
1998)]; see also First English Evangelical Lutheran
Church v. Los Angeles, 482 U.S. 304, 320, 107 S. Ct. 2378,
96 L. Ed. 2d 250 [1987] [‘It would require a considerable
extension of [earlier Supreme Court] decisions to say
that no compensable regulatory taking may occur until
a challenged ordinance has ultimately been held
invalid.’ . . . ]. In Bass [Enterprises Production Co.],
for example, [the court] explicitly rejected the argument
that a plaintiff was required to wait until a regulation
was no longer in effect before bringing a temporary
regulatory takings claim.’’); Caldwell v. United States,
391 F.3d 1226, 1234 (Fed. Cir. 2004) (‘‘[i]t is not unusual
that the precise nature of the takings claim, whether
permanent or temporary, will not be clear at the time
it accrues’’), cert. denied, 546 U.S. 826, 126 S. Ct. 366,
163 L. Ed. 2d 72 (2005); see also Kemp v. United States,
65 Fed. Cl. 818, 824 (2005) (rejecting plaintiff’s claim
that statute of limitations for taking was tolled because,
‘‘until the property was sold, she had no way of knowing
when the period as to which she was entitled to compen-
sation would end’’); Kemp v. United States, supra, 823
(‘‘Plaintiff [property owner] argues that the temporary
taking must end before an owner can seek compensa-
tion, but that theory has been held invalid: even if the
claim were properly viewed as a regulatory taking, the
regulation that results in a taking does not have to
cease for a finding of a temporary taking’’). Accordingly,
insofar as the plaintiffs contend that their temporary
takings claim could not have been brought with their
claim for injunctive relief because it had not yet
accrued, Connecticut law belies that contention, and
we find unpersuasive the out-of-state authority on
which the plaintiffs rely.
B
Temporary Nuisance
We also do not agree with the plaintiffs that the road
closure constituted a temporary private nuisance—or
any other type of continuing or recurrent wrong—such
that their damages claim falls within the exception to
res judicata for continuing or recurrent wrongs, as set
forth in § 26 (1) (e) of the Restatement (Second) of
Judgments. Pursuant to that exception, in cases of ‘‘con-
tinuing or recurrent wrong[s],’’ a plaintiff may com-
mence an action ‘‘from time to time for the damages
incurred to the date of [that action]’’ without running
afoul of res judicata’s prohibition against seeking addi-
tional damages after the original action. 1 Restatement
(Second), supra, § 26 (1) (e), p. 234. The continuing or
recurrent wrongs exception accords with the principle
that ‘‘[m]aterial operative facts occurring after the deci-
sion of an action with respect to the same subject matter
may in themselves, or taken in conjunction with the
antecedent facts, comprise a transaction which may be
made the basis of a second action not precluded by the
first.’’ 1 Restatement (Second), supra, § 24, comment
(f), p. 203; see also Marone v. Waterbury, 244 Conn. 1,
15 n.14, 707 A.2d 725 (1998).
The plaintiffs cite two cases for the proposition that
the road closure constituted a continuing wrong such
that every day that the road remained closed constituted
a new injury. They first cite Gordon v. Warren, 579 F.2d
386 (6th Cir. 1978), in which the United States Court
of Appeals for the Sixth Circuit applied the continuing
violations doctrine14 in concluding that a temporary tak-
ings claim was not time barred because the alleged
wrong—a city ordinance that prevented a developer
from completing construction of an apartment com-
plex—was a ‘‘continuing course of action [that] made
it impossible for the plaintiffs to enjoy the full use of
their property . . . .’’ Id., 387, 391. As the United States
Court of Appeals for the Third Circuit later explained,
however, the Sixth Circuit has not followed Gordon;
see Cowell v. Palmer, 263 F.3d 286, 293 (3d Cir. 2001);
see also Kuhnle Bros., Inc. v. Geauga, supra, 103 F.3d
521 n.4; and other federal circuit courts of appeals have
also declined to adhere to Gordon’s holding. See, e.g.,
Ocean Acres Ltd. Partnership v. Board of Health, 707
F.2d 103, 106 (4th Cir. 1983).
Courts have not adopted the approach utilized in
Gordon because that methodology conflates the contin-
uation of unlawful acts with the continued ill effects
of a single unlawful act, for example, the passage of
an ordinance halting construction of an apartment com-
plex. See, e.g., Trzebuckowski v. Cleveland, 319 F.3d
853, 858 (6th Cir. 2003) (explaining distinction between
continuing violation and continuing effect of prior viola-
tion that was alleged to have effected taking); Cowell
v. Palmer, supra, 263 F.3d 293 (‘‘[t]he focus of the con-
tinuing violations doctrine is on affirmative acts of the
[defendant municipality],’’ which do not include the
‘‘mere existence of [municipal] liens’’ or the refusal to
remove them); Kuhnle Bros., Inc. v. Geauga, supra, 103
F.3d 521 (‘‘In the takings context, the basis of a facial
challenge is that the very enactment of the statute has
reduced the value of the property or has effected a
transfer of a property interest. This is a single harm,
measurable and compensable when the statute is
passed.’’ [Internal quotation marks omitted.]); Ocean
Acres Ltd. Partnership v. Board of Health, supra, 707
F.2d 106 (adoption of septic tank ban was not continu-
ing violation); Gallegos v. Battle Creek, Docket No. 1:10-
CV-448, 2012 WL 1033693, *15 (W.D. Mich. March 1,
2012) (noting criticism of Gordon and emphasizing ‘‘the
subtle difference between a continuing violation and a
continuing effect of a prior violation’’ [internal quota-
tion marks omitted]); Bettendorf v. St. Croix, 679 F.
Supp. 2d 974, 978 (W.D. Wis. 2010) (‘‘the adoption of
an ordinance has immediate economic consequences
for a land owner; the time for challenging it was within
the state period of limitations’’), aff’d, 631 F.3d 421
(7th Cir. 2011); see also Wellswood Columbia, LLC v.
Hebron, supra, United States District Court, Docket No.
3:10-CV-1467 (VLB) (plaintiffs ‘‘suffered the continued
ill effects of the single act of closing Wellswood Road’’
rather than continuing unlawful acts necessary to dem-
onstrate a continuing violation); Scott v. Sioux City,
supra, 432 N.W.2d 148 (‘‘[T]he cause of action arises
out of the enactment of a land use regulation, not a
continuing nuisance or trespass. Although damages for
flooding and physical invasion can occur intermittently
over the passage of time, in this case, the passage of the
permanent ordinance had immediate adverse economic
consequences for [the] plaintiffs. The regulation’s
impact on the development potential and market value
of the property was immediate, and constituted a sin-
gle injury.’’).
The plaintiffs also rely on Creek v. Westhaven, supra,
80 F.3d 186, in which the United States Court of Appeals
for the Seventh Circuit held that an earlier injunction
action in state court did not bar a second action in
federal court for damages when the defendant Village
of Westhaven, Illinois (Westhaven), allegedly ‘‘wishing
to keep [Westhaven] white,’’ had denied the plaintiff
developer’s application for a permit to build low income
housing. Id., 188, 191. In the first action, the court
granted the developer’s request for an injunction order-
ing Westhaven to issue the permit. Id., 189. Westhaven,
however, refused to comply with that order and contin-
ued to engage in what the court described as an alleged
racially motivated campaign to defeat the housing
development, which included ‘‘acting in cahoots’’ with
a local homeowners association ‘‘to invalidate [federal]
approval of rent support for [the] development.’’ Id. In
disagreeing with the District Court that the second
action was barred by principles of res judicata, the
Seventh Circuit held that the continuing wrongs excep-
tion to res judicata was applicable. The court reasoned,
inter alia, that res judicata did not foreclose the develop-
er’s claims in the second action because they were
predicated in part on wrongful acts committed after
the final resolution of the injunction action. Id., 191.
The court further reasoned that the second action was
not barred because, at the time of the injunction action,
the developer could not know when, if ever, Westhaven
would relent and issue the permit, such that the devel-
oper also had no way of estimating his full damages.
Id., 190.
The present case is readily distinguishable from Creek
on many levels, most notably, for our purposes, because
the plaintiffs do not allege that the town committed
any additional unlawful acts during or subsequent to
the injunction action. Rather, all of the plaintiffs’ claims
are predicated on a single wrongful act—the closing of
Wellswood Road—that occurred prior to the injunc-
tion action.
Apart from Gordon, the plaintiffs have not identified
a single case in which a regulation that merely restricted
the manner in which land could be developed was
deemed to constitute a continuing or recurrent wrong,
much less a nuisance. We previously have explained
that ‘‘ ‘[a] private nuisance is a nontrespassory invasion
of another’s interest in the private use and enjoyment
of land.’ 4 Restatement (Second), Torts § 821D (1979);
see also Herbert v. Smyth, 155 Conn. 78, 81, 230 A.2d
235 (1967). . . . ‘The essence of a private nuisance is
an interference with the use and enjoyment of land.’
W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 87, p.
619.’’ (Citation omitted.) Pestey v. Cushman, 259 Conn.
345, 352, 788 A.2d 496 (2002). Notwithstanding the use
of such sweeping terms, our cases involving nuisances
almost uniformly have involved physical encroach-
ments or disturbances that were alleged to have inter-
fered with the use and enjoyment of land, such as runoff,
odors, and noise. See, e.g., id., 347–48 (odors emanating
from dairy farm); Walsh v. Stonington Water Pollution
Control Authority, 250 Conn. 443, 445, 736 A.2d 811
(1999) (odors emanating from sewage treatment plant);
Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 35,
404 A.2d 889 (1978) (runoff from town refuse dump);
Maykut v. Plasko, 170 Conn. 310, 311–12, 365 A.2d 1114
(1976) (use of mechanical noise making device known
as a ‘‘ ‘corn cannon’ ’’); Adams v. Vaill, 158 Conn. 478,
480, 262 A.2d 169 (1969) (noise from ‘‘ ‘unmufflered
engines’ ’’); Herbert v. Smyth, 155 Conn. 78, 82–83, 230
A.2d 235 (1967) (operation of commercial dog kennel,
accompanied by incessant barking and howling, as well
as ‘‘obnoxious odors’’); Gregorio v. Naugatuck, 89
Conn. App. 147, 150, 871 A.2d 1087 (2005) (influx of
raw sewage into home).
But, even if the road closure in the present case
was properly characterized as a nuisance, the plaintiffs’
private nuisance claim would still be barred by res
judicata. As the Appellate Court explained in Rickel v.
Komaromi, 144 Conn. App. 775, 73 A.3d 851 (2013), the
date on which a nuisance claim accrues depends on
whether the nuisance is considered temporary (i.e., con-
tinuing) or permanent: ‘‘a permanent nuisance claim
accrues when injury first occurs or is discovered while
a temporary nuisance claim accrues anew upon each
injury.’’ (Internal quotation marks omitted.) Id., 787.
The Appellate Court further explained that, ‘‘[i]f a nui-
sance is not abatable, it is considered permanent, and
a plaintiff is allowed only one cause of action to recover
damages for past and future harm. The statute of limita-
tions begins to run against such a claim upon the cre-
ation of the nuisance once some portion of the harm
becomes observable. . . . A nuisance is deemed not
abatable, even if possible to abate, if it is one whose
character is such that, from its nature and under the
circumstances of its existence, it presumably will con-
tinue indefinitely. . . . However, a nuisance is not con-
sidered permanent if it is one which can and should be
abated. . . . In this situation, every continuance of the
nuisance is a fresh nuisance for which a fresh action
will lie, and the statute of limitation[s] will begin to run
at the time of each continuance of the harm.’’ (Citation
omitted; internal quotation marks omitted.) Id., 788.
In reliance on Rickel, the plaintiffs in the present case
argue that the road closure was a temporary nuisance
because the town could have abated it at any time by
reopening the road. This argument, however, simply
ignores the Appellate Court’s analysis in Rickel and the
readily distinguishable facts of that case. First, as the
Appellate Court explained, not all nuisances that are
technically abatable are considered temporary: ‘‘if [the
nuisance] is one whose character is such that, from its
nature and under the circumstances of its existence, it
presumably will continue indefinitely,’’ it will not be
deemed abatable. (Internal quotation marks omitted.)
Id. The closure of the road in the present case, like the
passage of an ordinance, is precisely the sort of harm
that the plaintiffs were required to presume would ‘‘con-
tinue indefinitely.’’ (Internal quotation marks omitted.)
Id. Unlike the flow of sewage onto one’s property or,
as in Rickel, the repeated incursion of invasive bamboo
shoots from a neighboring property, ordinances and
resolutions are not harms that necessarily should be
abated. To the contrary, we generally presume the pro-
priety of such actions until a requisite showing of impro-
priety. See Greater New Haven Property Owners Assn.
v. New Haven, 288 Conn. 181, 188, 951 A.2d 551 (2008)
(‘‘Every intendment is to be made in favor of the validity
of [an] ordinance and it is the duty of the court to
sustain the ordinance unless its invalidity is established
beyond a reasonable doubt. . . . [T]he court presumes
validity and sustains the legislation unless it clearly
violates constitutional principles. . . . If there is a rea-
sonable ground for upholding it, courts assume that the
legislative body intended to place it [on] that ground
and was not motivated by some improper purpose.’’
[Internal quotation marks omitted.]). Accordingly, even
if the road closure were properly construed as a nui-
sance, it would be a permanent one, and the cause of
action would have accrued upon the closure of the road.
C
Tortious Interference with Business Expectancies
The plaintiffs further claim that the trial court improp-
erly granted the town’s motion for summary judgment
on the ground of res judicata as to the plaintiffs’ tortious
interference with business expectancies claim because
there is a genuine issue of material fact as to when that
claim accrued. Specifically, the plaintiffs argue that,
because an essential element of a claim for tortious
interference is that the plaintiffs suffer an ‘‘actual loss’’;
(internal quotation marks omitted) American Diamond
Exchange, Inc. v. Alpert, 302 Conn. 494, 510, 28 A.3d
976 (2011);15 it was incumbent on the town, for purposes
of its motion for summary judgment, to present evi-
dence demonstrating that the plaintiffs sustained losses
prior to the commencement of the injunction action.
Because the town failed to do so, the plaintiffs argue, the
trial court improperly granted its motion for summary
judgment with respect to the tortious interference
claim. We are not persuaded by the plaintiffs’ claim.
This court previously has explained that, with respect
to the ‘‘ascertainable loss’’ requirement of a claim under
the Connecticut Unfair Trade Practices Act, General
Statutes § 42-110a et seq., ‘‘[t]he term loss necessarily
encompasses a broader meaning than the term damage,
and has been held synonymous with deprivation, detri-
ment and injury. . . . To establish an ascertainable
loss, a plaintiff is not required to prove actual damages
of a specific dollar amount. . . . [A] loss is ascertain-
able if it is measurable even though the precise amount
of the loss is not known.’’ (Citations omitted; internal
quotation marks omitted.) Artie’s Auto Body, Inc. v.
Hartford Fire Ins. Co., 287 Conn. 208, 218, 947 A.2d
320 (2008); see also Hinchliffe v. American Motors
Corp., 184 Conn. 607, 613, 440 A.2d 810 (1981) (‘‘ ‘Loss’
has been held synonymous with deprivation, detriment
and injury. . . . It is a generic and relative term. United
States v. City National Bank, 31 F. Supp. 530, 533 [D.
Minn. 1939]. ‘Damage,’ on the other hand, is only a
species of loss. Id., 532. The term ‘loss’ necessarily
encompasses a broader meaning than the term ‘dam-
age.’ ’’ [Citation omitted.]). ‘‘Thus, an award of compen-
satory damages is not necessary to establish a cause
of action for tortious interference as long as there is a
finding of actual loss . . . .’’ Hi-Ho Tower, Inc. v. Com-
Tronics, Inc., 255 Conn. 20, 34, 761 A.2d 1268 (2000);
see also DiNapoli v. Cooke, 43 Conn. App. 419, 428,
682 A.2d 603 (failure to prove money damages did not
preclude judgment in favor of plaintiffs on tortious
interference claim when trial court found that plaintiffs
had proven other losses), cert. denied, 239 Conn. 951,
686 A.2d 124 (1996), cert. denied, 520 U.S. 1213, 117 S.
Ct. 1699, 137 L. Ed. 2d 825 (1997).
Applying this definition of loss to the facts of the
present case, it is readily apparent that the plaintiffs
suffered immediate and cognizable losses as a result
of the closure of Wellswood Road, foremost among
them the loss of access to their property. In support of
their claim for a permanent injunction in Wellswood I,
the plaintiffs presented expert testimony regarding the
diminution in the value of the land that resulted from
the town’s decision to close the road. The trial court
in the present case properly relied on these facts in
concluding that the plaintiffs’ tortious interference
claim could have been brought in Wellswood I and,
accordingly, properly granted the town’s motion for
summary judgment with respect to that claim.
D
Whether the Plaintiffs’ Claims Should Be Exempt
from the Preclusive Effect of Res Judicata
The plaintiffs finally argue that the policies underly-
ing the doctrine of res judicata, namely, judicial econ-
omy, minimization of repetitive litigation, prevention
of inconsistent judgments and repose to parties, will
not be served by the doctrine’s application in the pre-
sent case. In support of this contention, they maintain,
first, that, even if they had brought all of their claims
in Wellswood I, any damages awarded by the trial court
would have been vacated by this court’s reversal of the
trial court’s judgment, resulting in further proceedings
upon remand for a determination of damages for a
temporary taking. Thus, according to the plaintiffs,
because a new hearing on damages would have been
required in Wellswood I in any event, allowing this case
to proceed would not undermine the policy of judicial
economy. The plaintiffs’ argument fails to take into
account the duration of the proceedings that have
occurred in the present case.
To be sure, if the plaintiffs had sought damages in
Wellswood I, further proceedings would have been
required for a determination of just compensation for
the period of time that the plaintiffs were deprived of
the use of their land, namely, from the date of the road’s
closure until the date of its reopening following this
court’s decision in Wellswood I.16 Those proceedings,
however, would have concluded seven years ago, thus
conserving the considerable resources that the parties
and the courts have expended on the present case to
date—with no end in sight, if the case were to proceed—
and providing repose to the town. Furthermore, as we
previously indicated, the issue of damages was exten-
sively litigated in Wellswood I, albeit in relation to the
issue of irreparable harm. In light of this history,
allowing the present case to go forward runs counter
to several of the central tenets of res judicata, namely,
the minimization of repetitive litigation, the promotion
of judicial economy and repose to the parties. We there-
fore believe that the policies undergirding the doctrine
of res judicata strongly support its application in the
present case.
The plaintiffs argue nonetheless that it is ‘‘inequitable
and illogical’’ for this court to conclude that they should
have brought their takings claim in Wellswood I
because, until this court issued its decision in that case,
they had no way of knowing whether the taking would
be temporary or permanent, and, therefore, they had
no way of knowing the full extent of their damages. The
plaintiffs contend, moreover, that applying the doctrine
under the facts of this case ‘‘would in effect punish
[them] for . . . challenging the town’s conduct in
Wellswood I, rather than initially seeking damages.’’
More specifically, the plaintiffs argue that, ‘‘[o]nce it
became clear in 2005 that the town intended to close
Wellswood Road, [they] had two mutually exclusive
remedies . . . concede [their] property rights and seek
damages for a permanent taking or . . . challenge the
town’s actions and seek to have the road closure . . .
reversed. [They] could not be granted both remedies
. . . .’’
We have already explained that any uncertainty as
to the nature of the takings claim—whether it was for
a temporary or permanent taking—did not prevent the
plaintiffs from bringing the claim in Wellswood I. See
part III A of this opinion; see, e.g., Chapman Lumber,
Inc. v. Tager, supra, 288 Conn. 88. It is beyond argument,
moreover, that a plaintiff may request two mutually
exclusive forms of relief in a single action. See, e.g.,
Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164
(1985) (‘‘[u]nder our pleading practice, a plaintiff is
permitted to advance alternative and even inconsistent
theories of liability against one or more defendants in
a single complaint’’); see also Practice Book § 10-25
(‘‘[t]he plaintiff may claim alternative relief, based upon
an alternative construction of the cause of action’’). In
the present case, however, the plaintiffs need not have
done so, as they should have sought injunctive relief
and damages for a taking, explaining that the scope of
those damages would depend on whether the injunction
was granted by the court. See Chapman Lumber, Inc.
v. Tager, supra, 88 (‘‘even though it was unclear at the
outset of the inverse condemnation action whether the
plaintiff’s damages claim was for a temporary or com-
plete taking, the claim nevertheless was ripe and capa-
ble of resolution on the merits’’); see also Caldwell v.
United States, supra, 391 F.3d 1234 (‘‘[i]t is not unusual
that the precise nature of the takings claim, whether
permanent or temporary, will not be clear at the time
it accrues’’). If the plaintiffs had done so, the trial court
might well have bifurcated the trial, addressing the
question of damages—whether for a permanent or tem-
porary taking—after resolving the claim for injunc-
tive relief.
We also disagree with the plaintiffs that, if they had
brought all of their claims in Wellswood I and the trial
court had denied their request for a permanent injunc-
tion but awarded them damages for a permanent taking,
‘‘a substantial question exists as to whether the Con-
necticut courts would have entertained [their] appellate
challenge to the denial of the injunction . . . .’’ The
plaintiffs cite no authority for this proposition, and we
are aware of none. Indeed, it is axiomatic that a party
may appeal from a final adverse determination of the
trial court and that the award of some relief does not
mean that a party is not aggrieved by the trial court’s
decision. See, e.g., In re Allison G., 276 Conn. 146, 158,
883 A.2d 1226 (2005) (‘‘[a] prevailing party . . . can be
aggrieved . . . if the relief awarded to that party falls
short of the relief sought’’ [internal quotation marks
omitted]). Although it is true that, ‘‘as a general proposi-
tion, when a litigant asks for one form of relief or
another, the litigant is not aggrieved by an order provid-
ing at least one of the requested forms of relief’’;
(emphasis altered) Seymour v. Seymour, 262 Conn. 107,
112–13, 809 A.2d 1114 (2002); that does not mean that
a plaintiff is not aggrieved by an order denying relief
that was not requested in the alternative, such as a
request for damages and an injunction. Thus, in the
present case, the plaintiffs should have sought both
injunctive relief and damages in Wellswood I, with the
scope of those damages to be determined upon the
resolution of the claim for injunctive relief.
In sum, we are not persuaded that the plaintiffs have
identified a sufficiently compelling reason to exempt
their claims from the preclusive effect of res judicata.
We therefore reject their claim that the trial court
improperly granted the town’s motion for summary
judgment.
The judgment is affirmed.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
1
The town’s Board of Selectmen and Jared Clark, the town manager, were
also defendants in Wellswood I. In the present action, however, the town
is the sole defendant.
2
The plaintiffs appealed to the Appellate Court, and we transferred the
appeal to this court pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1.
3
Because the trial court concluded that the plaintiffs’ claims were barred
by res judicata, it did not reach the town’s claims that they were also barred
by the applicable statutes of limitations or, in the case of the tortious
interference claim, by governmental immunity. Because we also conclude
that the plaintiffs’ claims are barred by res judicata, we also do not reach
the town’s alternative grounds for affirmance.
4
For purposes of clarity, in this portion of the opinion, we refer to the
town by name.
5
As this court repeatedly has stated, ‘‘[a] party seeking injunctive relief
must demonstrate that: (1) it has no adequate remedy at law; (2) it will
suffer irreparable harm absent an injunction; (3) it will likely prevail on the
merits; and (4) the balance of equities tips in its favor.’’ Aqleh v. Cadlerock
Joint Venture II, L.P., 299 Conn. 84, 97, 10 A.3d 498 (2010).
6
In concluding that the plaintiffs had failed to prove a total and permanent
loss of the right of access to public roads, the trial court stated: ‘‘In the
present case, it remains to be seen whether proposals with alternative means
of access would be acceptable to Columbia authorities, but the fact remains
that access through Columbia would be possible in the future and the
plaintiffs themselves embrace that model of planning. Because the plaintiffs
have failed to establish that [the town’s] actions would actually landlock
their proposed development, they have not satisfied their burden of proving
that they would suffer irreparable harm if an injunction is not granted. The
fact that the plaintiffs will have to access their property through more [time
consuming] and expensive means than they would if [the town] was forced
to keep Wellswood Road open to their development does not mean that
irreparable harm will result.’’ Wellswood Columbia, LLC v. Hebron, supra,
46 Conn. L. Rptr. 74.
7
‘‘[I]n order to recover damages in a common-law private nuisance cause
of action, a plaintiff must show that the defendant’s conduct was the proxi-
mate cause of an unreasonable interference with the plaintiff’s use and
enjoyment of his or her property. The interference may be either intentional
. . . or the result of the defendant’s negligence.’’ (Citation omitted.) Pestey
v. Cushman, 259 Conn. 345, 361, 788 A.2d 496 (2002). As we explain more
fully hereinafter, whether the private nuisance is deemed temporary or
permanent determines the point at which the claim accrues. See part III B
of this opinion; see also Rickel v. Komaromi, 144 Conn. App. 775, 788, 73
A.3d 851 (2013).
8
Section 26 (1) (e) of the Restatement (Second) of Judgments provides:
‘‘When any of the following circumstances exists, the general rule of [res
judicata] does not apply to extinguish the claim, and part or all of the claim
subsists as a possible basis for a second action by the plaintiff against the
defendant: . . . For reasons of substantive policy in a case involving a
continuing or recurrent wrong, the plaintiff is given an option to [recover]
once for the total harm, both past and prospective, or to [commence an
action] from time to time for the damages incurred to the date of [the
action], and chooses the latter course . . . .’’ 1 Restatement (Second), supra,
§ 26 (1) (e), p. 234.
9
Because the plaintiffs challenge the trial court’s decision to grant the
town’s motion for summary judgment, our review of that decision is also
guided by the general principles governing such motions. ‘‘Practice Book
§ 17-49 provides that summary judgment shall be rendered forthwith if the
pleadings, affidavits 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 . . . that the party is . . . entitled to judgment as a
matter of law. . . . Our review of the trial court’s decision to grant the
defendant’s motion for summary judgment is plenary.’’ (Internal quotation
marks omitted.) Powell v. Infinity Ins. Co., supra, 282 Conn. 599–600.
10
See, e.g., Miller v. Westport, 268 Conn. 207, 214, 842 A.2d 558 (2004)
(‘‘when municipal land use regulations result in taking, owner [is] entitled
to temporary takings damages for period that use of land was denied until
taking ends’’); see also Whitehead Oil Co. v. Lincoln, 245 Neb. 680, 697, 515
N.W.2d 401 (1994) (upholding trial court’s decision that temporary taking
had occurred but remanding for recalculation of damages to compensate
for additional damages that accrued during pendency of appeal).
11
The court in New Port Largo, Inc., did not overrule Corn, however, as
the concurring opinions explained, inter alia, that only an en banc panel of
that court can overrule a prior panel’s holdings and that, in any event, it
was unnecessary to review Corn en banc because the result would be the
same regardless of what standard the court applied. New Port Largo, Inc.
v. Monroe County, supra, 985 F.2d 1495 n.1 (Tjoflat, C. J., concurring); see
also id., 1501 n.8 (Edmondson, J., concurring) (explaining that rehearing en
banc was not warranted because such rehearings ‘‘are costly, time-consum-
ing affairs for litigants and for the court as an institution’’).
12
See, e.g., Algonquin Heights Associates L.P. v. United States, 100 Fed.
Cl. 792, 797 (2011) (‘‘[T]he Federal Circuit’s discussion [in Creppel] of when
the temporary takings claim accrued was not essential to its disposition of
that claim. It therefore carries no binding effect.’’).
13
We note that the opinion in Creppel cites a single case, namely, First
English Evangelical Lutheran Church v. Los Angeles, 482 U.S. 304, 321–22,
107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987), for the proposition that a temporary
regulatory taking does not accrue until the taking ceases. Nothing that the
United States Supreme Court stated in that case, however, can reasonably
be construed as supporting that proposition. In First English Evangelical
Lutheran Church, the court ‘‘merely [held] that [when] the government’s
activities have already worked a taking of all use of property, no subsequent
action by the government can relieve it of the duty to provide compensation
for the period during which the taking was effective.’’ Id., 321.
14
‘‘The continuing violations doctrine is an equitable exception to a strict
application of a statute of limitations where the conduct complained of
consists of a pattern that has only become cognizable as illegal over time.
. . . [W]hen a defendant’s conduct is part of a continuing practice, an action
is timely [as] long as the last act evidencing the continuing practice falls
within the limitations period; in such an instance, the court will grant relief
for the earlier related acts that would otherwise be time barred.’’ (Citations
omitted; internal quotation marks omitted.) Foster v. Morris, 208 Fed. Appx.
174, 177–78 (3d Cir. 2006).
15
‘‘[T]he elements of a claim for tortious interference with business expec-
tancies are: (1) a business relationship between the plaintiff and another
party; (2) the defendant’s intentional interference with the business relation-
ship while knowing of the relationship; and (3) as a result of the interference,
the plaintiff suffers actual loss.’’ (Internal quotation marks omitted.) Ameri-
can Diamond Exchange, Inc. v. Alpert, supra, 302 Conn. 510.
16
Once a taking has been classified as either temporary or permanent,
the trial court must determine just compensation for the period of the taking.
See, e.g., First English Evangelical Lutheran Church v. Los Angeles, supra,
482 U.S. 322 (in temporary takings case, government must compensate
landowner for effective period of ordinance prior to its invalidation by
courts); Miller v. Westport, supra, 268 Conn. 214 (‘‘when municipal land use
regulations result in [a] taking, [the] owner [is] entitled to temporary takings
damages for [the] period that [the] use of [the] land was denied until [the]
taking ends’’); see also Ladd v. United States, 110 Fed. Cl. 10, 13 (2013)
(‘‘The beginning and ending dates of a temporary taking establish due com-
pensation to the landowners. Compensation is the difference between the
before and after-appraised values . . . applied to the length of time land-
owners were deprived of their reversionary interests.’’). As we noted pre-
viously, the period of an unlawful taking for which compensation must be
paid includes the period of time that the landowner was deprived of his or
her use of the property during the pendency of any appeal. See footnote 10
of this opinion.