Wheeler v. Beachcroft, LLC

• Decision Date: 12 January 2016
• Docket Number: 19357.,19356,Nos. 19355,s. 19355
• Citation: 129 A.3d 677,320 Conn. 146
• Court: Connecticut Supreme Court
• Parties: Celia W. WHEELER et al. v. BEACHCROFT, LLC, et al.

320 Conn. 146

129 A.3d 677

Celia W. WHEELER et al.

v.BEACHCROFT, LLC, et al.

Nos. 19355

19356

19357.

Supreme Court of Connecticut.

Argued Sept. 11, 2015.

Decided Jan. 12, 2016.

Gerald L. Garlick, with whom were Daniel J. Klau, Hartford, and William H. Clendenen, Jr., New Haven, for the appellants (named defendant et al.).

Linda Pesce Laske, with whom, on the brief, was Joel Z. Green, Bridgeport, for the appellees (named plaintiff et al.).

PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.

ROBINSON, J.

These consolidated appeals arise from a nearly century old dispute among neighbors in a housing development along the Long Island Sound (sound) over access to the shore. This dispute has given rise to numerous actions, two of which have reached this court over the past ten years. See McBurney v. Cirillo, 276 Conn. 782, 889 A.2d 759 (2006) ( McBurney I ), overruled in part by Batte–Holmgren v. Commissioner of Public Health, 281 Conn. 277, 914 A.2d 996 (2007) ; McBurney v. Paquin, 302 Conn. 359, 28 A.3d 272 (2011) (McBurney II ). The present appeals require us to determine whether certain prior actions bar, via the doctrine of res judicata, two claims in the plaintiffs'¹ consolidated quiet title actions, namely: (1) that they have prescriptive easements over certain property adjacent to the sound; and (2) that the same property constitutes a public way. The defendants² appeal from the judgment of the trial court denying in part their motions for summary judgment as to those claims pursuant to the doctrines of res judicata.³ On appeal, the defendants claim that the trial court improperly denied their motions for summary judgment because: (1) the plaintiffs' claims are sufficiently similar to those asserted in the prior actions, such that they should have been brought in the same action; and (2) the plaintiffs are in privity with the lot owners party to the prior actions, and even if they are not in privity, the notices and opportunities to intervene provided to the plaintiffs in the prior actions served the purpose of the privity requirement and, therefore, privity should not be required for the application of res judicata. We disagree, and affirm the judgment of the trial court.

The record, including our previous opinions, reveals the following facts and procedural history. The plaintiffs and the defendants own lots in a housing development (development) that is located adjacent to the sound on Crescent Bluff Avenue (avenue) in the town of Branford. See McBurney I, supra, 276 Conn. at 787, 889 A.2d 759. The development consists of thirty-five lots in a long and narrow five acre tract of land. The narrow end of the development borders the sound to the south, with the avenue running north to south through the development and perpendicular to the sound. Thirty-one lots line the avenue in the interior of the development. The avenue runs between the four waterfront lots, with two lots on each side. The avenue ends at a small strip of land (lawn) directly abutting the sound, which is the subject of the dispute in the present case. The plaintiffs own interior lots in the development. The defendants own waterfront lots and portions of the lawn. Beachcroft, LLC (Beachcroft), owns the avenue. The plaintiffs allege that, over the years, they and other interior lot owners have crossed the lawn to go down to the sound.

In 2009, the plaintiffs filed a quiet title action pursuant to General Statutes § 47–31, asserting that they and other interior lot owners, as well as members of the public, have acquired various rights to use the avenue and lawn. The complaint alleges that the plaintiffs have acquired an express easement, implied easement, prescriptive easement, covenant appurtenant, and easement by necessity over the lawn, and that the lawn constitutes a public way as an extension of the avenue, which they also claim is a public way. The defendants moved for summary judgment only on the counts pertaining to the lawn, arguing that they are barred by res judicata.

In order to place the defendants' argument and the trial court's decision in full context, we briefly recount the relevant portions of the prior litigation surrounding the lawn. We note at the outset of this discussion that the plaintiffs were not a party to any of these prior actions.

Between 1998 and 2001, James R. McBurney and Erin E. McBurney, who own a waterfront lot and part of the lawn, brought four quiet title actions (McBurney actions) for trespass and adverse possession against several interior lot owners seeking declaratory and injunctive relief.⁴

Id., at 786, 889 A.2d 759. The defendants in the McBurney actions, who owned interior lots, counterclaimed that they had acquired prescriptive easements over the lawn. Id. In 2001, several interior lot owners, including Salvatore Verderame and Antoinette Verderame, filed a separate action (first Verderame action) against several waterfront lot owners seeking declaratory and injunctive relief and damages in connection with the same facts.⁵ Id., at 795 and n. 17, 889 A.2d 759. All lot owners in the development were notified of the pendency of the first Verderame action, but not of the McBurney actions. Id., at 795, 889 A.2d 759. The McBurney actions and the first Verderame action were subsequently consolidated for trial. Id. The court decided to try the nonjury claims in the McBurney actions first and discharged the jury in the first Verderame action. Id. After a bench trial, the trial court, Arnold, J., found against James McBurney and Erin McBurney on their adverse possession claims and most of their trespass claims.⁶ Id., at 786, 889 A.2d 759. With regard to the counterclaims in the McBurney actions, the court held that the interior lot owners had both implied and prescriptive easements over the lawn. id., at 786–87, 889 A.2d 759. Both interior and waterfront lot owners appealed. id., at 785, 889 A.2d 759.

On appeal, we reversed the trial court's judgment in part, concluding that although the interior lot owners had an implied easement over the lawn, they had not acquired a prescriptive easement because the trial court had improperly aggregated all of the lot owners' collective uses of the lawn to satisfy the fifteen year statutory period. id., at 813–14, 889 A.2d 759. We upheld the existence of the implied easement and remanded the case for further proceedings to determine the scope of that easement. id., at 823, 889 A.2d 759. We also ordered that notice of the remand action be provided to all lot owners and that they be given an opportunity to join as parties. Id. It is undisputed that notice of the proceeding on remand was given to all lot owners in March, 2006.⁷

Three months later, several interior lot owners filed another action, Verderame v. Saggese, Superior Court, judicial district of New Haven, Docket No. CV–06–4027737–S (second Verderame action). That action sought, inter alia, a declaratory judgment that those interior lot owners "enjoy[ed] an easement ... for all purposes as might reasonably serve [their] convenience," an injunction preventing interference with the implied easement declared in McBurney I, damages, and certification of a class action.⁸ Notice of the complaint in the second Verderame action was sent to all lot owners.

In March, 2008, in accordance with our McBurney I remand order, the trial court, Shortall, J., held an evidentiary hearing to determine the scope of the interior lot owners' implied easement over the lawn. McBurney II , supra, 302 Conn. at 365, 28 A.3d 272. Beachcroft, two waterfront lot owners, and one interior lot owner intervened.⁹ id., at 362 n. 1 and 363 n. 3, 28 A.3d 272. The trial court determined that the implied easement included the right to pass and repass over the lawn to access the beach during certain hours, but not the right to socialize and recreate on the lawn. id., at 365, 28 A.3d 272.

The trial court in McBurney II withheld final judgment and ordered a posttrial hearing to address several questions, including, in relevant part, which lot owners should be bound by the judgment. id., at 366, 28 A.3d 272. After that hearing, the trial court held that its orders were binding on all lot owners. McBurney v. Paquin, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X09–CV–01–4027736–S (September 17, 2008). Copies of the trial court's decision on the scope of the implied easement and its binding effect were sent to all lot owners. The interior lot owners appealed and the waterfront lot owners cross appealed. McBurney II, supra, 302 Conn. at 362–63, 28 A.3d 272.

On November 26, 2008, while the appeal in McBurney II was pending, the trial court, Shortall, J., rendered partial summary judgment in the second Verderame action in favor of the defendants.¹⁰ Approximately one year later, in September, 2009, the plaintiffs filed the action giving rise to the present appeals. Shortly thereafter, the plaintiffs in the first Verderame action withdrew all counts of their complaint except for a single claim under the Connecticut Unfair Trade Practices Act. The defendants in that case moved to strike this claim. The trial court, Shapiro, J., granted the motion to strike and rendered judgment for those defendants in 2010. On April 19, 2011, the plaintiffs in the second Verderame action withdrew the remainder of their claims. On October 4, 2011, we affirmed nearly all aspects of the trial court's 2008 judgment regarding the scope of the interior lot owners' implied easement over the lawn.¹¹ McBurney II, supra, 302 Conn. at 384, 28 A.3d 272. On December 14, 2011, the defendants in the present case filed motions for summary judgment on the ground of res judicata.

In seeking summary judgment in the present case, the defendants argued that a number of the plaintiffs' claims are barred by res judicata because the plaintiffs are in privity with the lot owners involved in the prior cases and were given repeated notices and opportunities to intervene in ...