Tracey v. Miami Beach Assn.

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TRACEY v. MIAMI BEACH ASSOCIATION—CONCURRENCE

MOLL, J., concurring in the judgment. I agree with
parts I, II, and IV of the majority opinion and, on the
basis of the analysis set forth therein, concur that the
trial court properly concluded that the 1953 judgment
precludes the defendant, Miami Beach Association,
from restricting public access and use of the property
at issue. I disagree with the analysis set forth in part
III of the majority opinion, however, because, having
agreed with the majority that offensive res judicata, in
its specific sense as the majority describes it, is not
available under Connecticut law, I do not agree with
the majority’s implicit endorsement in part III of its
opinion that there remains a privity requirement that
the plaintiffs must satisfy under the circumstances of
this case, i.e., where the beneficiaries of the 1953 judg-
ment are members of the unorganized public. And
although the majority claims to disavow the require-
ment of a privity showing; see footnote 22 of the major-
ity opinion; the majority nonetheless requires one inso-
far as it addresses, and rejects on the merits, the
defendant’s claim in part III of its opinion.
In contrast, I consider the defendant’s claim that the
plaintiffs are not in privity with the plaintiffs in the
1952 action to be based on the faulty premise that the
offensive use of res judicata is available under Connecti-
cut law—a premise that the majority properly rejects
in part I of its opinion. In my view, the defendant’s
challenge, when properly framed, instead implicates
the distinct question of whether the plaintiffs have
standing to bring this enforcement action. Here, the
requirement that a party must have standing is readily
satisfied by virtue of the fact that the plaintiffs are
members of the unorganized public protected by the
1953 judgment. See Connecticut Podiatric Medical
Assn. v. Health Net of Connecticut, Inc., 302 Conn. 464,
469, 28 A.3d 958 (2011) (‘‘[i]t is axiomatic that a party
must have standing to assert a claim in order for the
court to have subject matter jurisdiction over the claim’’
(internal quotation marks omitted)). Accordingly, with
respect to part III of the majority opinion, I concur in
the judgment only.