Opinion
NNHCV176074630
01-29-2019
Robert G. WHEELER et al. v. James COSGROVE, Selectman et al.
UNPUBLISHED OPINION
OZALIS, J.
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On June 4, 2018, pursuant to General Statutes § 13a-63, the plaintiffs, Robert Wheeler, Celia Wheeler, Charles Dimmler, III, Angela Rossetti, Dean Leone, Tina Mannarino, and Antoinette Verderame, filed an amended application (application), with supporting documents attached, to lay out Crescent Bluff Avenue (Avenue) as a highway. In the application, the plaintiffs allege the following facts. On January 11, 2016, the plaintiffs, among others, submitted a petition to the Board of Selectmen of the Town of Branford, Connecticut (selectmen), to formally establish the Avenue as a town road of the town of Branford (town), pursuant to General Statutes § 13a-61 (petition). To date, the defendants James Cosgrove, Joseph Higgins, Jr., and Jack Ahern, as selectmen, have failed, neglected, and/or refused to lay out the Avenue as a town road. The defendant Beachcroft, LLC (Beachcroft) claims to own the premises known as 1A Crescent Bluff Avenue, which consists of the Avenue. The defendants Barbara Saggese, Roger Lowlicht, and Kay Haedicke are each owners of properties that abut the Avenue. The plaintiffs request that the selectmen, who have refused to lay out the Avenue as a highway, as well as Beachcroft, Saggese, Lowlicht, and Haedicke, be ordered to appear before a committee of three disinterested persons to show cause why the application should not be granted.
Specifically, the court "heard testimony from a number of witnesses who currently live or formerly lived on the Avenue or in the area around the Avenue, including some of the parties. It also heard from current and former employees from the Town of Branford, including a town engineer, the assessor, a former director of public works, and the first selectman, who also worked as a private contractor in Pine Orchard and on the Avenue. The court also heard the testimony of Jane Bouley, the Town Historian since 1985, David Johnson, an employee of the South Central Regional Water Authority, and Jennifer Aniskovich, a member of the [Pine Orchard Association] board since 2003. The court also received numerous exhibits, including deeds relating to the properties along the Avenue, the plan by which the Crescent Bluff development was established and various historical documents that discussed or showed how the Avenue was used and maintained." Wheeler v. Beachcroft, supra, Superior Court, Docket No. X04-CV-09-5034089-S.
On November 9, 2018, Saggese and Beachcroft filed a motion for summary judgment on the plaintiffs’ application, as well as a supporting memorandum and exhibits. On that same date, Lowlicht and Haedicke also filed a motion for summary judgment and a supporting memorandum, joining in the motion for summary judgment filed by Saggese and Beachcroft, and incorporating the arguments set forth therein. In their motions and supporting memoranda, the defendants argue that the plaintiffs’ claims are barred by res judicata and collateral estoppel. On November 26, 2018, the plaintiffs filed a memorandum in opposition to the defendants’ motions for summary judgment. The court heard oral argument on the matter on December 17, 2018.
II.
DISCUSSION
"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." (Internal quotation marks omitted.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). "Because res judicata or collateral estoppel, if raised, may be dispositive of a claim, summary judgment [is] the appropriate method for resolving a claim of res judicata." Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 712, 627 A.2d 374 (1993).
In support of their motions for summary judgment, the defendants argue that they are entitled to judgment as a matter of law because there is no dispute that the plaintiffs’ claims are barred by res judicata and collateral estoppel. Specifically, the defendants make the following arguments. The claim being made in this case is the same as the claim that was decided in Wheeler v. Beachcroft, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X04-CV-09-5034089-S (November 4, 2013, Bright, J.) (Beachcroft). Even though the plaintiffs now rely on a theory pursuant to § 13a-63, as opposed to a theory of private dedication as asserted in Beachcroft, the doctrine of res judicata prevents the present claim because it could have been made in Beachcroft. The plaintiffs could have asserted the present claims in Beachcroft because evidence that was presented in support of the Beachcroft claims could also have been used to support the present claim that the street should become public under § 13a-63.
The defendants also make the following arguments. In Beachcroft, the plaintiffs already raised the issue that is at the heart of this case, i.e., whether common convenience and necessity requires the Avenue and the lawn to be public. More specifically, one of the claims raised by the plaintiffs in Beachcroft was that the Avenue had been dedicated by acquiescence, and in order to prove that claim, the plaintiffs were required to establish that the Avenue was of convenience to the public, which is the very issue that the plaintiffs are asking this court to decide again. Thus, collateral estoppel bars the plaintiffs’ claims because in Beachcroft, the court determined that the public’s use of the Avenue is "infrequent and irregular." As a result, there could be no finding in this case that the Avenue needs to become public for reasons of "common convenience and necessity."
Finally, the defendants argue that the privity requirement of the doctrines of res judicata and collateral estoppel has been satisfied as to all of the present plaintiffs because, with the exception of Robert Wheeler, they were all plaintiffs or intervening plaintiffs in Beachcroft . According to the defendants, although Robert Wheeler was not a plaintiff in the prior action, his interests were well-represented by his wife Celia Wheeler, who was a plaintiff in Beachcroft and is a plaintiff in this action.
In response, the plaintiffs make the following arguments. First, the defendants’ motions should be denied because res judicata and collateral estoppel are special defenses, but the defendants have not pleaded them as such. Further, res judicata does not bar their present claims because the set of facts that give rise to the present action had not yet occurred when Beachcroft was brought. This is because the present action arises from the refusal of the selectmen to lay out a public highway following the petition of the plaintiffs, which happened after Beachcroft was brought.
The plaintiffs further argue the following. Collateral estoppel similarly does not bar the present claims because the issue in this case— whether the subject property should be laid out as a public highway in order to serve the common convenience and necessity— was not determined in Beachcroft, nor was the determination of that issue necessary to the rendering of the judgment in Beachcroft . To the extent that the Beachcroft court may have opined on the scope of past use of the street by the public, such findings cannot have preclusive effect because they were not relevant or necessary to that court’s determination that there was insufficient evidence that an owner of the Avenue had manifested an intent to dedicate it to the public, which was dispositive of the Beachcroft action.
A. SPECIAL DEFENSES
As a threshold matter, the plaintiffs’ argument that the defendants’ motions should be denied because they failed to assert res judicata and collateral estoppel as special defenses prior to asserting the same in the present motions must fail, in light of our Supreme Court’s rejection of a similar argument made in Joe’s Pizza, Inc. v. Aetna Life & Casualty Co., 236 Conn. 863, 867 n.8, 675 A.2d 441 (1996). In that case, the court set forth the following: "Joe’s Pizza ... asserts that the trial court should not have entertained Aetna’s claim of res judicata because Aetna failed to plead that doctrine as a special defense ... electing instead to seek summary judgment before it filed an answer or any special defenses. Joe’s Pizza, however, did not raise this issue in the trial court, and it has not demonstrated any prejudice flowing from Aetna’s failure to plead res judicata as a special defense. Moreover, summary judgment is an appropriate vehicle for raising a claim of res judicata ... and, under Practice Book § 379 [now Practice Book § 17-44], a party may move for summary judgment at any time. Aetna, therefore, was not barred from raising the claim of res judicata in its motion for summary judgment." (Citations omitted.) Id.
Unlike the plaintiff in Joe’s Pizza, Inc., the plaintiffs in the present matter have objected to the defendants’ assertion of res judicata and collateral estoppel arguments prior to the same being affirmatively pleaded. In their opposition memorandum, however, the plaintiffs do not demonstrate, or even assert, that they have been prejudiced by the defendants’ failure to file special defenses prior to filing the present motions. Moreover, Practice Book § 17-44 allows parties to move for summary judgment at any time. See Joe’s Pizza, Inc. v. Aetna Life & Casualty Co., supra, 236 Conn. 867 n.8. Accordingly, the court will consider the merits of the res judicata and collateral estoppel arguments presently raised by the defendants.
B. RES JUDICATA
"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." Wheeler v. Beachcroft, 320 Conn. 146, 156-57, 129 A.3d 677 (2016). "Res judicata bars the relitigation of claims actually made in the prior action as well as any claims that might have been made there ... Thus, res judicata prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., 157-58. "[T]he previous and subsequent claims must be considered the same for res judicata to apply ... [T]he critical question is how broad a definition to give to the term ‘same claim’ or ‘cause of action.’ The broader the definition, the broader the scope of preclusion." (Citation omitted; internal quotation marks omitted.) Id., 159.
"To determine whether claims are the ‘same’ for res judicata purposes, this court has adopted the transactional test ... Under the transactional test, res judicata extinguishes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose ... What factual grouping constitutes a transaction, and what groupings constitute a series, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage ... [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 ... In applying the transactional test, we compare the complaint in the [present] action with the pleadings and the judgment in the earlier action." (Citations omitted; internal quotation marks omitted.) Id., 159-60.
"Because [res judicata and collateral estoppel] are judicially created rules of reason that are enforced on public policy grounds ... [our Supreme Court has] observed that whether to apply either doctrine in any particular case should be made based upon a consideration of the doctrine’s underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close ... and the competing interest of the plaintiff in the vindication of a just claim ... These [underlying] purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation." (Citation omitted; internal quotation marks omitted.) Weiss v. Weiss, 297 Conn. 446, 460, 998 A.2d 766 (2010). "But by the same token, the internal needs of the judicial system do not outweigh its essential function in providing litigants a legal forum to redress their grievances. Courts exist for the purpose of trying lawsuits. If the courts are too busy to decide cases fairly and on the merits, something is wrong." (Internal quotation marks omitted.) Bruno v. Geller, 136 Conn.App. 707, 722, 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 732 (2012). "[T]he application of res judicata can yield harsh results, and, as a result ... the doctrine should be flexible and must give way when [its] mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies." (Internal quotation marks omitted.) Weiss v. Weiss, supra, 297 Conn. 465-66.
1. Beachcroft Action
In the present matter, to determine the transaction that gave rise to the Beachcroft action, the court looks to the pleadings and the judgment in that action. The eleven-count complaint in that action alleged various claims concerning the property status of the Avenue and a common area known as the "lawn." Wheeler v. Beachcroft, supra, Superior Court, Docket No. X04-CV-09-5034089-S. Pursuant to the parties’ request, a trial took place concerning count one of the plaintiffs’ complaint, which alleged that the Avenue has been dedicated and accepted as a highway, before the court addressed the plaintiffs’ other claims. Id. Although there are four methods by which public highways may be created, ’ dedication to the public was the only method at issue in Beachcroft . Id.
The trial court in Beachcroft set forth that: "It is essential to a valid dedication that there be a manifested intent by the owner to dedicate the land in question for use by the public, and an acceptance by the proper authorities or by the general public ... Both the intent to dedicate and the acceptance can be either expressed or implied." (Internal quotation marks omitted.) Id. Because there had never been an express dedication or acceptance of the Avenue, the plaintiffs had to "prove a dedication by implication. With respect to an owner’s intent to dedicate, [t]he acts and conduct of an owner of land may be such that the law will imply from them an intent to devote it to the public use ... What is important is not what the owner actually intended, but what his actions conveyed. It is the purpose as manifested by his acts, rather than the intention actually existing in his mind, which the law regards as essential to an implied dedication ... Such acts must be such that his intention [to dedicate his land] is clearly manifest ... No presumption of an intent to dedicate arises unless it is clearly shown by the owner’s acts and declarations, or by a line of conduct the only reasonable explanation of which is that a dedication was intended." (Citations omitted; internal quotation marks omitted.) Id.
During trial, the court heard testimony from various witnesses and received various exhibits.[1] Id. Such evidence centered on whether the acts of owners of property adjacent to the Avenue demonstrated an intent to devote it to public use, and whether the town’s or the general public’s actions implied an intent to accept the Avenue as a public road. Much of the evidence considered by the court in that action concerned the original development plan for the Avenue filed in the town’s land records in 1885 by Ellis Baker, and deeds evidencing subsequent transfers of the various lots within that plan. Id. Other relevant evidence concerned records of the Pine Orchard Association (POA), which is "a body corporate and politic established by the General Assembly in 1903 by virtue of a Special Act and [which] has rights to maintain certain portions of the Town of Branford and collect revenue from residents in the POA area to fund such maintenance." Id. The court further considered evidence regarding the town’s involvement with the Avenue, such as its extension of a sewer system, and heard testimony that the town handled requests for utility work on the Avenue and that the town paved, repaired, and plowed the Avenue. Id. The defendants introduced evidence that the town’s treatment of the Avenue was consistent with how other private roads in the town are treated, and that the town took inconsistent positions regarding whether the Avenue is a public road. Id.
The court held that the plaintiffs failed to prove that the owners of the Avenue intended to dedicate it to public use, which was dispositive of the plaintiffs’ claim. Id.
2. Present Action
To determine the transaction that gave rise to the present action, the court looks to the complaint in this action. Wheeler v. Beachcroft, supra, 320 Conn. 160. The complaint in the present action alleges that the plaintiffs submitted a petition to the selectmen to establish the Avenue as a town road, but the selectmen have failed, neglected, and/or refused to do so. Pursuant to General Statutes § 13a-63, the plaintiffs request that the defendants be ordered to appear before a committee of three disinterested persons to show cause why the application should not be granted.
In the petition attached to the plaintiffs’ complaint, the plaintiffs further allege that laying out the Avenue as a public highway would serve the public convenience and necessity, as it has long been regarded and treated as public by the town and the general public, and classifying it as a private road would have various detrimental effects. Specifically, the petition avers in relevant part that the Avenue "has been regarded and used as a public highway for as long as anyone can recall. Throughout the years, public access was never restricted by any private owner, and no private owner ever gave any indication it was permitting the public use of private property. Public money was regularly expended on repair and maintenance of the Avenue ... without objection of any private owner. Nevertheless, in a recent decision, the Superior Court held that Crescent Bluff Avenue is not a public highway. On January 27, 2014, the Town of Branford filed a Notice of Intent to Appeal that decision." Pls.’ Petition, 1. "Before, the Avenue provided a significant public recreational resource as well as public access between Pine Orchard Road and the shore of Long Island Sound." Pls.’ Petition, 3.
"The residents of Crescent Bluff Avenue, as well as the general public ... have a reasonable expectation that the Town will ensure continued public access, and continued maintenance and repair of the Avenue as a public highway. Any classification of Crescent Bluff Avenue as a private road would have a significant negative impact on the public health, safety and welfare and on property values in the immediate vicinity and beyond. For example, Beachcroft, LLC has now posted private road signs at both ends of the street, issuing verbal threats to passersby and complaining to police about alleged trespassers. Barbara Saggese and Beachcroft, LLC routinely make video recordings of people, including children, who pass by on their way to the beach and seawall. Beachcroft, LLC also threatens to prevent the Town and public utilities companies from performing needed repairs and maintenance along the road. Beachcroft recently filed a motion seeking a court order of contempt against the Town for having issued permits to a public utility and its contractor for the performance of utility services, repair and maintenance and for the Town’s alleged removal of a private road sign. Further, subsequent to acquiring its alleged ownership interest in the Avenue, Beachcroft hired a surveyor who placed stakes along the boundary lines of the Avenue, located approximately ten feet from the edge of the pavement on each side, well inside the small front lawns of the residents whose homes line the Avenue. Threats were made by Beachcroft regarding the possible paving of those lawn areas." Pls.’ Petition, 4. "Beachcroft, LLC’s efforts to exercise sole control over access to Crescent Bluff Avenue poses a substantial risk to the many residents of Crescent Bluff Avenue and constitutes a substantial loss to the public of a necessary and convenient way of travel and a valuable recreational resource." Pls.’ Petition, 5.
3. Res Judicata Analysis
As an initial matter, the court must address the plaintiffs’ argument that res judicata cannot apply because the present claim arises from the refusal of the selectmen to lay out the Avenue as a public highway, which happened after Beachcroft was brought. In making this argument, the plaintiffs too narrowly define the transaction giving rise to the present action. Although it is true that the refusal of the selectmen is one of the facts giving rise to the present action, for res judicata purposes, the court must consider all of the facts giving rise to the plaintiffs’ claim in the present action, i.e., that the Avenue should be a public road because it will be of common convenience and necessity. See Webb v. Rocky Hill, 21 Conn. 468, 474-76 (1852) (considering entirety of facts alleged as forming transaction giving rise to second petition requesting formation of highway committee rather than just filing of second petition).
From a review of the allegations in the plaintiffs’ application and petition, it is apparent that, although the transactions giving rise to both the prior and present actions share overlapping facts, the claims are not the same. It is true that the Beachcroft action and this action both concern the town’s maintenance of the Avenue. In Beachcroft, such maintenance pertained to the town’s acceptance of the Avenue as a public road, and in this action, it relates to whether the Avenue being made public would be of common convenience and necessity. Also, facts relating to the private property owners’ use of the Avenue formed part of the claim in Beachcroft, as they concerned the owners’ intent, or lack thereof, to dedicate the Avenue as a public road. Those owners’ use of the Avenue also relate to whether the Avenue being made public would be of common convenience and necessity.
But there are also facts forming each action that did not similarly give rise to the other. For example, facts relating to the general public’s intent to use the Avenue in the future would not pertain to the claims asserted in Beachcroft, as that action concerned only the past use of the Avenue. Such facts do form part of the transaction giving rise to the present action, however. Further, facts concerning the original development plans for the Avenue, which were of significance in Beachcroft, as they pertained to the owners’ intent to publicly dedicate the Avenue, do not similarly relate to whether the Avenue being made public would serve the common convenience and necessity.
Moreover, and importantly, substantial facts giving rise to the present action had not occurred at the time the prior action was instituted. First, the selectmen’s refusal to lay out the Avenue as a public highway happened after Beachcroft was brought. Before the occurrence of this fact, however, the plaintiffs were unable to bring the present action, as the court would not have had the jurisdiction to decide such a claim. See Fenwick Hall Co. v. Old Saybrook, 69 Conn. 32, 39-40, 36 A. 1068 (1897) (holding that in action requesting committee be formed to lay out highway to serve common convenience and necessity "the only strictly jurisdictional fact ... is the fact that the town through its selectmen has refused to lay out the highway"). Further, the plaintiffs allege in their complaint that various problems and issues that have resulted since the issuance of the Beachcroft decision, which have taken a toll on their community. Such facts were not, and could not have been, part of the transaction giving rise to Beachcroft . They do form part of the present claim, however, as they relate to whether it would be of common convenience and necessity for the Avenue to be made public. Accordingly, because the same underlying claims are not at issue, res judicata does not bar the present claims.
Furthermore, even if the same underlying claims were at issue, applying the doctrine of res judicata to bar the plaintiffs’ present claims would frustrate the purposes and policies underlying the doctrine, such that the doctrine cannot apply. This is because, in consideration of the unique nature of an action brought under § 13a-63, if the plaintiffs had brought a claim under § 13a-63 in conjunction with the Beachcroft action, it would have actually ensured that the parties to that action, while litigating one action before the Superior Court, would also have had to simultaneously litigate their positions in a hearing before a committee formed under § 13a-63, pursuant to the proceedings required by that statute. The resolution of the Beachcroft action, however, could have rendered such a hearing unnecessary, had the court held that the Avenue had become a public road by way of dedication. Thus, it would not have advanced the purpose of res judicata— to promote judicial economy by minimizing repetitive litigation— to require that the plaintiffs assert the present claim brought under § 13a-63 as part of the Beachcroft action.
Here, it cannot be said that "the considerable overlapping nature of the evidence in the present case compels the conclusion that application of the doctrine of res judicata [is] proper." Powell v. Infinity Ins. Co., 282 Conn. 594, 610, 922 A.2d 1073 (2007). This is because, regardless of any overlap of facts forming the transactions giving rise to Beachcroft and the present action, the evidence to demonstrate such overlapping facts would necessarily have had to be presented before two separate tribunals, whether the claim brought under § 13a-63 was raised as part of the Beachcroft action or the present action. Because of the unique nature of the present action, which, by the terms of § 13a-63, requires its own separate hearing, the present claim could not merely have been presented to the court as just another count alleged in the Beachcroft action, amongst the others asserted by the plaintiffs. Simply put, this is not a case in which joining the plaintiffs’ present claim brought under § 13a-63 with the plaintiffs’ claims raised in Beachcroft would have formed a "convenient trial unit." Therefore, the policies underlying the judicial doctrine of res judicata counsel against its application in the present matter.
Moreover, a determination that res judicata does not bar the plaintiffs’ present claims is consistent with the plain language of § 13a-63. "When construing a statute, we first look to its text, as directed by General Statutes § 1-2z ..." (Internal quotation marks omitted.) Genesky v. East Lyme, 275 Conn. 246, 253, 881 A.2d 114 (2005). Section 1-2z provides that "[t]he meaning of a statute shall, in the first instance, he ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."
The language of § 13a-63 is plain and unambiguous. By its terms, the legislature created a format for the laying out of a public highway if doing so would be of common convenience and necessity. The language of the statute plainly demonstrates that the success of such a cause of action does not depend on any property rights of private property owners, whose interests are transient and ever-changing. Instead, the language of the statute focuses on the necessity and convenience of laying out the highway that is the subject of the petition. To hold that the doctrine of res judicata, based on litigation amongst private property owners, could dispel with the ability of a public highway to be laid out in order to serve the common convenience and necessity would be incongruous with the plain language of the statute. Further, nothing in the terms of § 13a-63 provides that one’s ability to bring a claim under that statute is waived if the person bringing such claim previously litigated the property status of the land that is the subject of the hearing. Accordingly, the plain language of § 13a-63 further demonstrates that applying the doctrine of res judicata to bar the present matter would be improper.[2]
C. COLLATERAL ESTOPPEL
"Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit ... To assert successfully the doctrine of issue preclusion, therefore, a party must establish that the issue sought to be foreclosed actually was litigated and determined in the prior action between the parties or their privies, and that the determination was essential to the decision in the prior case ... An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined ... An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered ... Therefore, a party may assert the doctrine of collateral estoppel successfully when three requirements are met: [1] [t]he issue must have been fully and fairly litigated in the first action, [2] it must have been actually decided, and [3] the decision must have been necessary to the judgment." (Citations omitted; emphasis omitted; footnote omitted; internal quotation marks omitted.) Wiacek Farms, LLC v. Shelton, 132 Conn.App. 163, 168-69, 30 A.3d 27 (2011), cert. denied, 303 Conn. 918, 34 A.3d 394 (2012).
"Before collateral estoppel applies 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 ... [T]he court must determine what facts were necessarily determined in the first trial, and must then assess whether the [party] is attempting to relitigate those facts in the second proceeding ... Simply put, collateral estoppel has no application in the absence of an identical issue ... Further, [t]he [party seeking estoppel] has the burden of showing that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding." (Citations omitted; internal quotation marks omitted.) Id., 169-70.
In the present matter, the doctrine of collateral estoppel does not bar the plaintiffs’ claim because the issue sought to be litigated in this proceeding is not identical to that considered in the Beachcroft action. The issue in Beachcroft concerned whether the Avenue was dedicated as a public way, as demonstrated by a manifested intent of its owners, and whether there was an acceptance of such dedication by the proper authorities or by the general public. In deciding that issue, the court held that the plaintiffs failed to prove that the owners of the Avenue intended to dedicate it to public use, which was dispositive of the plaintiffs’ claim of dedication.
The issue raised in this action, however, is whether laying out the Avenue as a highway will be of common convenience and necessity. This issue was not resolved in the Beachcroft action, as that action involved the adjudication of the parties’ property rights in the Avenue, based on their past use of the same. Contrary to the defendants’ assertion, such adjudication did not require the plaintiffs to prove that the street was of convenience to the public.[3] Thus, because the issue sought to be foreclosed was not actually litigated and determined in Beachcroft, collateral estoppel does not bar the plaintiffs’ claims.
The defendants assert, however, that in Beachcroft, the court determined that the public’s use of the Avenue is "infrequent and irregular," and thus, there could be no finding here that the Avenue must become public for reasons of "common convenience and necessity."
First, the defendants incorrectly characterize the court’s finding. It is true that in Beachcroft, one of the court’s findings of fact was that "while non-residents of the Avenue can and do use the Avenue without interference, such use is infrequent and irregular, occurring mostly in the warmer weather." Such a finding, however, is not tantamount to a finding that the Avenue is not of "common convenience and necessity." Moreover, even if such a finding could be considered to mean as much, it was not essential to the court’s judgment, and thus, does not carry preclusive effect. See Wiacek Farms, LLC v. Shelton, supra, 132 Conn.App. 168-70 (ruling that determination of issue must have been essential to prior decision for doctrine of issue preclusion to apply). This is because any finding in Beachcroft that the Avenue is not of "common convenience and necessity" would not be necessary to the court’s determination that there was insufficient evidence that the owner of the Avenue had manifested an intent to dedicate it to the public, which was dispositive of that action. Accordingly, the defendants’ claim that collateral estoppel bars the plaintiffs’ claims must fail.[4]
III.
CONCLUSION
On the basis of the foregoing, the defendants’ motions for summary judgment (Motion Nos. 140 and 142) are denied.
[1] General Statutes § 13a-63 provides: "Refusal of selectmen to lay out or alter highway. When the selectmen of any town refuse to lay out any necessary highway or to make any necessary alterations in any existing highway, unless such refusal is based on a designation of the existing highway as a scenic road pursuant to section 7-149a, any person may prefer an application therefore to the superior court for the judicial district in which such town is located, accompanied by a summons, signed by proper authority, to be served in the same manner as civil process on one of such selectmen, to appear and be heard thereon; and, unless the parties agree as to the judgment to be rendered, such application shall be heard and decided by a committee of three disinterested persons to be appointed by the court, at such time and place and with such reasonable notice to those interested therein as said court orders. If such committee finds that such highway or alteration will be of common convenience and necessity, it shall survey and lay out the same and estimate the damages sustained by or the special benefits accruing to each person by the layout of a new or the alteration of an existing highway, and report in writing its doings to said court."
[2]General Statutes § 13a-61 provides: "Layout of highways by selectmen. The selectmen of each town may lay out necessary highways therein, not being within a city or within a borough having, by virtue of its charter or by statute, control of and liability for the highways within its limits, first giving reasonable notice in writing to the owners of the land through which the same are to be laid out or leaving copies of such notices at their places of abode, if in this state, to be present at the laying out of any such highway; and the damage done to such owners by such laying out shall be paid by the town. A written survey, signed by the selectmen, particularly describing such highway, with a description of each piece or parcel of land taken from or annexed to the lands of adjoining proprietors, being accepted by the town and recorded in its land records, and satisfaction being made to the persons injured, or the money deposited in the town treasury for their use, according to the agreement or estimate made as hereinafter provided, such highway shall be and remain for the use for which it was laid out."
[3] Saggese, Beachcroft, Lowlicht, and Haedicke will hereafter be referred to collectively as the defendants.
[4] The plaintiffs’ complaint in Beachcroft asserts the following claims: 1) the Avenue and a lawn parcel adjoining it (avenue-lawn parcel) constitute a public way; 2) the plaintiffs have acquired property rights in the avenue-lawn parcel through adverse possession; 3) the plaintiffs possess a prescriptive easement over the avenue-lawn parcel; 4) the plaintiffs have property rights in the avenue-lawn parcel through a covenant appurtenant; 5) the plaintiffs possess an easement by necessity over the avenue-lawn parcel; 6) the lawn is a public way; 7) the plaintiffs possess an express easement over the lawn; 8) the plaintiffs possess an implied easement over the lawn; 9) the plaintiffs possess a prescriptive easement over the lawn; 10) the plaintiffs have property rights in the lawn through a covenant appurtenant; and 11) the plaintiffs possess an easement by necessity over the lawn.
See Montanaro v. Aspetuck Land Trust, Inc., 137 Conn.App. 1, 9, 48 A.3d 107 ("[h]ighways are established by one of the following four methods: (1) through the direct action of the legislature; (2) through authorized proceedings involving an application to a court; (3) through authorized proceedings by agents appointed for that purpose, such as selectmen of towns ... and specified authorities of cities and boroughs ... (4) through private dedication of land for that purpose and its acceptance by the public" [internal quotation marks omitted]), cert. denied, 307 Conn . 932, 56 A.3d 715 (2012).