McDonald v. McDonald, 157 A.3d 702

Paul T. McDonald (plaintiff) and several relatives (defendants) own 2328 Middlebury Road as tenants in common; plaintiff claims a 1/7 interest.
Plaintiff previously filed a partition action (first action) seeking only partition by sale; that trial concluded with the court finding he failed to meet his burden and entering judgment for the defendants in January 2013; no appeal was taken.
In 2013 plaintiff filed a new partition lawsuit asserting three counts: partition in kind, partition by sale, and equitable distribution (this action).
Defendants moved for summary judgment in the present action on res judicata grounds, arguing the claims were litigated or could have been litigated in the first action.
Trial court granted summary judgment for defendants, concluding the prior judgment was final and the present claims were barred; plaintiff appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the prior partition judgment was a final judgment for res judicata	The prior judgment was not final because it did not terminate ownership; thus it cannot preclude new partition claims	The prior judgment disposed of the plaintiff’s entire pleaded claim (sale) and was a final, appealable judgment	The prior judgment was final because it resolved the entire complaint in the first action and thus can have preclusive effect
Whether the absolute right to partition prevents preclusion by res judicata	Plaintiff contends partition is an absolute right that may be pursued repeatedly until obtained; res judicata should not apply to partition claims	Defendants contend res judicata applies like to other claims; plaintiff had a full opportunity to litigate in the first action	Court rejected the “absolute, repeatable” theory; res judicata applies to partition actions where plaintiff had a full and fair opportunity to litigate
Whether plaintiff may collaterally attack the prior judgment here	Plaintiff asserts the prior court erred in denying partition sale and improperly refused his absolute right	Defendants argue that any challenge to the prior judgment must be by direct appeal, not collateral attack	Court held such arguments are impermissible collateral attacks because plaintiff did not appeal the prior judgment

Powell v. Infinity Ins. Co., 282 Conn. 594, 922 A.2d 1073 (discussion of res judicata and public policy goals)
Wilcox v. Willard Shopping Center Associates, 208 Conn. 318, 544 A.2d 1207 (explaining partition law and burden for partition by sale)
Labow v. Labow, 69 Conn. App. 760, 796 A.2d 592 (distinguishable precedent on finality where manner of partition had not yet been determined)
In re Shamika F., 256 Conn. 383, 773 A.2d 347 (collateral attack on judgment is procedurally impermissible)