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       PAUL T. MCDONALD v. FRANCIS
           M. MCDONALD ET AL.
                (AC 38289)
              Alvord, Sheldon and Norcott, Js.
 Argued November 16, 2016—officially released March 14, 2017

 (Appeal from Superior Court, judicial district of
            Waterbury, Shapiro, J.)
Paul T. McDonald, self-represented, the appellant
(plaintiff).
  John K. McDonald, with whom, on the brief, were
Hugh D. Hughes and Paul Pollock, for the appellees
(named defendant et al.).
  David J. McDonald, for the appellee (defendant
David J. McDonald, LLC).
                         Opinion

   SHELDON, J. The plaintiff, Paul T. McDonald,
appeals from the summary judgment rendered in favor
of the defendants, Francis M. McDonald, James E.
McDonald, John J. McDonald and Vincent J. McDonald,
all of whom are his brothers, and David J. McDonald,
LLC, a limited liability company organized by his
nephew. On appeal, he claims that the trial court
improperly concluded that his claim for partition of
certain real property jointly owned by all of the parties
was barred by res judicata because (1) the previous
judgment that was relied upon by the trial court as
having said preclusive effect was not a final judgment
and (2) his right to partition is absolute. We affirm the
judgment of the trial court.
   The trial court set forth the following relevant proce-
dural history in its memorandum of decision granting
the defendants’ motion for summary judgment. ‘‘In his
complaint [in this action], the plaintiff, Paul T. McDon-
ald, alleges that he and the defendants . . . own, as
tenants in common, real property located in Mid-
dlebury, Connecticut, on the north side of Route 64,
known as 2328 Middlebury Road, consisting of an
unsubdivided, irregularly shaped 17.35 acre parcel of
residentially zoned land. He alleges that the parcel con-
tains an older house in poor condition, that a portion
of the parcel is leased to a swim club, and that that
portion produces income to pay the taxes and other
expenses of the property.
   ‘‘The plaintiff alleges that he holds a 3/21 or one-
seventh interest therein, and that the defendants own
the balance of the interests therein, in either 3/21, 4/
21, or 1/10 interests. The complaint is pleaded in three
counts, in which the plaintiff seeks, respectively, parti-
tion in kind, partition by sale, and partition by equita-
ble distribution.
  ‘‘In support of the[ir] motion [for summary judgment],
the defendants argue that the plaintiff’s three counts
are barred by res judicata. This argument is premised
on a previous partition action brought in this court by
the plaintiff, McDonald v. McDonald, Docket No. UWY-
CV-11-6011618 (first action). In the first action, the
plaintiff sought only a partition by sale. He did not seek
partition in kind.
  ‘‘The first action was tried before this court in Novem-
ber, 2012. At trial, the plaintiff and another witness
testified and exhibits were presented. The court viewed
the property at issue in that action, including the prop-
erty which is the subject of the current complaint,1 in
the presence of the parties, on December 4, 2012.
   ‘‘After review of the parties’ posttrial briefs in the
first action, the court issued a memorandum of decision,
dated January 28, 2013 (decision), finding that the plain-
tiff had not met his burden of proof. [The court found
that the plaintiff failed to present any evidence that a
physical division of the property was impractical or
inequitable, or that a partition by sale would better
promote the owners’ interests than a partition in kind.
The court thus declined the plaintiff’s request for a
partition by sale and judgment] was entered for the
defendants. The plaintiff did not appeal the court’s deci-
sion.’’ (Footnotes altered.)
   On September 17, 2013, the plaintiff filed this action
seeking partition of 2328 Middlebury Road. In his three
count complaint, he asked that the property be parti-
tioned, in kind, by sale or by equitable distribution. He
essentially reiterated in this complaint the allegations
from his complaint in the first action, but asserted three
causes of action purporting to seek three possible alter-
native modes of partition.
   The defendants moved for summary judgment2 on
the ground that the plaintiff’s action was barred by the
doctrine of res judicata because the claims asserted
herein were litigated, or could have been litigated, in
the first action. In response, the plaintiff argued that
the doctrine of res judicata did not apply because his
right to partition is absolute, the first action did not
result in a final judgment that had any preclusive effect
on this action, and the doctrine of res judicata is ‘‘not
a hard and fast doctrine but one which must give way
when the mechanical application would frustrate other
social policies.’’
   On August 18, 2015, the court granted summary judg-
ment in favor of the defendants, finding that the plain-
tiff’s action was barred by the doctrine of res judicata.
In so doing, the court explained: ‘‘[I]n the first action,
the plaintiff litigated to conclusion his claims about
several parcels, including that at issue here, resulting
in a final judgment, from which the plaintiff took no
appeal. No further determination of the matter litigated
was required in connection with the first action.’’ On
that basis, the court rejected the plaintiff’s claim that
the first action had not concluded with a final judgment.
   The court further reasoned: ‘‘Comparison of the oper-
ative complaint and the judgment in the first action to
the plaintiff’s three count complaint in this action
clearly shows that the transactional test for the applica-
tion of res judicata has been met. The factual underpin-
nings of the current claims and those that were actually
litigated in the first action are the same, in that the
plaintiff brought and litigated through trial and judg-
ment a prior partition action concerning the same prop-
erty. It is apparent that the plaintiff’s claims, all of which
relate to the same group of facts comprising the ‘trans-
action,’ i.e., the parties’ ownership of the property at
issue, actually were or could have been brought in the
first action. . . . While the plaintiff could have sought
partition in kind in the first action, he expressly pleaded
that it would be impractical or inequitable. In this
action, he again seeks partition by sale, which he sought
in the first action. . . .
  ‘‘On balance, the fact that the plaintiff had a complete
opportunity, in the first action, to vindicate his right to
partition, must be taken into account. In the first action,
he intentionally adopted a restricted strategy concern-
ing partition, both in terms of the relief he sought, and
the evidence he chose to present. The defendants went
to trial and judgment was rendered in their favor. The
fact that the plaintiff did not emerge from the first action
with a judgment of partition was entirely as a result of
his own voluntarily undertaken approach.’’ (Citations
omitted; footnote omitted.) This appeal followed.
  Although the plaintiff does not challenge the trial
court’s determination that he litigated or had the oppor-
tunity to litigate his claims for partition in the first
action, he argues that the judgment rendered in that
action was not a final judgment that precludes him from
raising his claims for partition again. He also claims
that the trial court in the first action improperly
deprived him of his absolute right to partition and that
the absolute nature of that right prevents the application
of res judicata to this action. We disagree.
  We first set forth the applicable standard of review
and governing legal principles. ‘‘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 evi-
dence 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 defen-
dant’s motion for summary judgment is plenary. . . .
   ‘‘The doctrine of res judicata holds that an existing
final judgment rendered upon 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
which were actually made or which might have been
made. . . . Claim preclusion (res judicata) and issue
preclusion (collateral estoppel) have been described as
related ideas on a continuum. . . . More specifically,
collateral estoppel, or issue preclusion . . . prohibits
the relitigation of an issue when that issue was actually
litigated and necessarily determined in a prior action
between the same parties or those in privity with them
upon a different claim. . . . An issue is actually liti-
gated if it is properly raised in the pleadings or other-
wise, 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. . . .
   ‘‘The applicability of the doctrines of collateral estop-
pel or res judicata presents a question of law that we
review de novo. . . . Because these doctrines are judi-
cially created rules of reason that are enforced on public
policy grounds . . . we have 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 defen-
dant 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] pur-
poses 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. . . . The judicial doctrines of res
judicata and collateral estoppel are based on the public
policy that a party should not be able to relitigate a
matter which it already has had an opportunity to liti-
gate. . . . Stability in judgments grants to parties and
others the certainty in the management of their affairs
which results when a controversy is finally laid to rest.’’
(Citations omitted; internal quotation marks omitted.)
Powell v. Infinity Ins. Co., 282 Conn. 594, 599–602, 922
A.2d 1073 (2007).
   ‘‘The right to partition is founded on the principle
that no person can be compelled to remain the owner
with another of real property, even if the party seeking
partition willingly entered into the joint ownership.
. . . General Statutes § 52-495 confers an absolute right
of partition upon any person holding real property as
a tenant in common with others. . . . In those cases
where the court finds that a sale of the property would
better promote the interests of the owners, the court
may order such a sale. General Statutes § 52-500 . . . .
This jurisdiction has long favored partition in kind, or
physical division, over partition by sale. . . . Because
we presume that partition in kind is in the best interests
of the owners, the burden of proof rests on the party
seeking a sale to demonstrate that it is the better rem-
edy. . . . This burden may be carried by satisfying two
conditions: (1) the physical attributes of the property
make partition in kind impracticable or inequitable; and
(2) the interests of the owners would better be pro-
moted by partition by sale. . . . A plaintiff in an action
for partition seeks to sever or dissolve involuntary joint
ownership in real property. In furtherance of that objec-
tive, a court is limited to rendering a judgment of either
partition in kind or by sale of the real property . . .
thus terminating the ownership relationship between
the parties.’’ (Citations omitted; footnotes omitted.)
Wilcox v. Willard Shopping Center Associates, 208
Conn. 318, 325–26, 544 A.2d 1207 (1988). With these
principles in mind, we address the plaintiff’s claims
in turn.
                             I
  The plaintiff first claims that the trial court improp-
erly determined that his claims in this action were
barred by the doctrine of res judicata because the first
action did not result in a final judgment that could have
a preclusive effect on his current claims. Specifically,
the plaintiff claims that there was no final judgment in
the first action because the judgment in that action
did not settle the controversy between him and the
defendants in that it did not terminate his joint owner-
ship of the subject property. We are not persuaded.
  Practice Book § 61-2 provides in relevant part: ‘‘When
judgment has been rendered on an entire complaint,
counterclaim or cross complaint . . . such judgment
shall constitute a final judgment. . . .’’
   In the plaintiff’s first action for partition, the court
held that the plaintiff failed to satisfy his burden of
proof for a partition by sale and thus found in favor of
the defendants. Although the court’s judgment did not
sever the plaintiff’s joint tenancy with the defendants,
it fully and finally disposed of the sole claim advanced
by the plaintiff in his complaint, denying the sole rem-
edy that he sought therein. That ruling thus constituted
a final judgment that was immediately appealable.
   In support of his claim that there was no final judg-
ment in the first action, the plaintiff cites the case of
Labow v. Labow, 69 Conn. App. 760, 765, 796 A.2d 592,
cert. denied, 261 Conn. 903, 802 A.2d 853 (2002), for
the proposition that: ‘‘Where the manner of partition
has not been determined, there is no final judgment in
a partition action.’’ In Labow, the court granted the relief
of partition, but had not yet determined the appropriate
mode of partition. Id., 763. This court held that there
was no final judgment on the ground that the rights of
the parties had not been concluded because the manner
of partition had not yet been determined. Id., 766. This
case is distinguishable from Labow in that the plaintiff
here sought only one mode of partition in the first
action—partition by sale—and he failed to meet his
burden of proving that he was entitled to that remedy
under the circumstances presented. In denying the only
relief that the plaintiff sought in the first action, the
trial court concluded the entire controversy, as it had
been pleaded by the plaintiff. The plaintiff’s claim that
there was no final judgment in the first action must
therefore fail.
                             II
  The plaintiff also claims that the trial court erred in
concluding that his action was barred by res judicata
because his right to partition is absolute. The plaintiff’s
claim in this regard is based upon two equally meritless
arguments. First, the plaintiff contends that the trial
court erred in granting summary judgment on the
ground that his claims in this action were precluded by
the judgment in the first action because the judgment
in the first action ‘‘resulted from . . . the failure of the
[trial] court in the prior action (1) to honor the plaintiff’s
absolute right to partition, (2) to award a partition sale
under the pleadings, and (3) to award a partition sale
as consistent with statutes and case law.’’ These argu-
ments constitute an impermissible collateral attack on
the judgment in the first action, from which the plaintiff
failed to appeal. See In re Shamika F., 256 Conn. 383,
407–408, 773 A.2d 347 (2001) (collateral attack on judg-
ment is procedurally impermissible substitute for
appeal). Because the plaintiff failed to appeal from the
judgment in the first action, we can afford him no rem-
edy as to the claims of error that he has advanced
regarding that judgment.
   Second, the plaintiff contends that his right to parti-
tion survives the judgment in the first action because
that judgment did not sever his joint tenancy of the
subject property, the severance of which is his absolute
right. His argument is that because his right to partition
is absolute, he can ask for it at any time, and many
times, in serial actions. Under the plaintiff’s theory, he
would be entitled to bring serial actions for partition,
even absent any intervening change in the nature or
characteristics of the subject property, until he obtains
the relief that he is seeking. In other words, the plaintiff
is claiming that the doctrines of res judicata and collat-
eral estoppel do not apply to partition actions. He has
not, however, provided any legal authority to support
his position. In the absence of any legal authority to
support his claim, we cannot conclude that the
important public policies underlying the doctrines of
preclusion should not apply to partition actions.
   Moreover, although the relief sought in this action is
not pleaded exclusively as a partition by sale, the plain-
tiff stressed in his brief to this court, as well as in his
oral argument, that division of the property remains
impractical, and thus that he is still seeking only a
partition by sale. He has been unwavering in his insis-
tence that a physical division of the property would be
impractical and that a partition by sale is the only way
to terminate the joint tenancy of the parties. Unfortu-
nately for him, he did not prove that claim in his first
partition action, where he had a full and fair opportunity
to do so.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
    In the first action, the plaintiff sought partition of three properties,
including 2328 Middlebury Road.
  2
    Francis M. McDonald filed a motion for summary judgment, with which
the remaining defendants joined.
