SILVER v. HOLTMAN

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Appellate Court of Connecticut.

Charles S. SILVER, et al. v. Donald R. HOLTMAN, et al.

No. 35427.

Decided: April 8, 2014

LAVINE, ALVORD and SCHALLER, Js. Ralph G. Eddy, for the appellants (defendants). Edward W. Gasser, with whom, on the brief, was Amanda J. Morris, for the appellees (named plaintiff).

The defendants, Donald R. Holtman, Elizabeth W. Birmingham, and Sheila M. Bailey,1 appeal from the judgment of the trial court, issuing a writ of mandamus and a declaratory judgment in favor of the plaintiff Charles S. Silver.2 The lengthy litigation among the parties centers on whether a July 20, 2005 affidavit of facts (affidavit) attested to by Silver is a document that must be recorded on the land records of the town of East Granby (town). On appeal, the defendants claim that the court improperly concluded that the affidavit should be recorded on the land records pursuant to General Statutes (Rev. to 2005) §§ 7–24(d) and 47–12a.3 We affirm the judgment of the trial court.

In its February 13, 2013 memorandum of decision, the court, Vacchelli, J., found the following facts. On July 28, 2005, Attorney William T. Barrante went to the town clerk's office to record a two page document on the land records. The first page of the document was an affidavit concerning property located in the town (property) and the second page contained a description of the property.4 Barrante presented the document to Assistant Town Clerk, Karen Oliver. Oliver machine-stamped the first page of the document with the volume and page number of the land records and the time it was received. Oliver hand wrote the volume and page number beneath the date stamp and added her initials to Birmingham's stamped signature. Oliver also collected an $18 recording fee from Barrante.

When Birmingham returned to the clerk's office, Oliver showed her the affidavit because it contained the names of the plaintiff and Walter McCue, who, in the past, had been involved in litigation with the town over recording issues regarding the property. Birmingham thought that the affidavit was unusual and sought advice from Holtman by reading the affidavit to him over the telephone. As the town attorney, Holtman was familiar with the plaintiff and McCue due to their litigation history with the town and elsewhere. He also was familiar with recent litigation in which the town's refusal to record certain documents submitted by the plaintiff had been upheld by the Superior Court, Hon. Richard M. Rittenband, judge trial referee. Holtman concluded that the affidavit was not a document required or authorized by law to be recorded on the land records and that its purpose was to impede the collection of municipal taxes. He advised Birmingham to return the affidavit to whomever presented it, together with the recording fee paid.

Birmingham then crossed off the volume and page numbers and date stamp on the affidavit without entering the information in the day book. She returned the affidavit along with the recording fee and a cover letter to Barrante.5 Thereafter, in September, 2005, the plaintiff commenced the present action.

The operative complaint is the amended complaint filed on April 14, 2011. The plaintiff alleged that he was a trustee of the P.A.T. Trust, also known as the P.A.T. Irrevocable Trust (trust), which was recorded on the town land records on or about March 22, 1995. The trust included real estate located at 6 Herman Drive in the town. The plaintiff further alleged that on July 20, 2005, in his capacity as a trustee, he executed an affidavit in accordance with § 47–12a. On July 28, 2005, Barrante presented the affidavit pursuant to the statute for record on the town land records, and, on that date, the affidavit was recorded in volume 158 at pages 130 and 131 of the land records. The plaintiff also alleged that the affidavit complied with § 47–12a and, as such, was a document required to be recorded on the land records when received by the town clerk. The plaintiff further alleged that at a time subsequent to July 28, 2005, Holtman instructed Birmingham to remove the affidavit from the land records. On July 29, 2005, Birmingham returned the affidavit to Barrante after removing the affidavit from the land records and crossing off the volume and page numbers that had been assigned to the affidavit. The plaintiff alleged that Birmingham's conduct constituted the unlawful removal of a public record in violation of General Statutes § 53–153. He also alleged that Birmingham, through Holtman, informed Barrante that Birmingham would not accept the affidavit for record, even though it had been received and accepted for same.

Moreover, the plaintiff alleged that in returning the affidavit to Barrante, Birmingham violated the duty she owed the plaintiff, which duty can be enforced only by a writ of mandamus. The plaintiff alleged that subsequent to Birmingham's resignation, Bailey became the town clerk, and he sought a writ of mandamus requiring Bailey to record the affidavit, and a declaratory judgment that Birmingham did not have the power to keep the affidavit out of the land records. The plaintiff sought exemplary damages, including attorney's fees, for wilful, wanton, and malicious conduct in violation of his statutory rights.

On June 3, 2011, the defendants filed an answer to the amended complaint in which they denied the material allegations of the complaint and alleged eleven special defenses, including that a writ of mandamus should not issue because the plaintiff had unclean hands. Thereafter, the plaintiff filed a motion for partial summary judgment as to liability. The defendants opposed the motion for partial summary judgment.

The court, Domnarski, J., ruled on the motion for partial summary judgment in a memorandum of decision dated August 3, 2011. The court found that the essential facts were not in dispute: the plaintiff presented the affidavit to the clerk's office for record and paid the required fee, the affidavit was recorded in volume 158 at page 130 of the land records, and then “unrecorded” after Birmingham discussed the matter with Holtman. The court identified the issue as whether the plaintiff is lawfully entitled to record the affidavit and concluded that the issue is governed by §§ 7–24 and 47–12a.6 The plaintiff maintained that the affidavit should be recorded as it complies with the requirements of § 47–12a. The defendants contended that Birmingham was not required to record the affidavit as it did not contain the name of the current owner of the property and therefore did not comply with § 7–24(d). In support of their position, the defendants relied on McCue v. Birmingham, 88 Conn.App. 630, 870 A.2d 1126, cert. denied, 274 Conn. 905, 876 A.2d 14 (2005). The court, however, concluded that McCue did not help the defendants for two reasons: (1) the documents at issue in McCue are different from the affidavit, and (2) McCue was decided on the basis of res judicata, and not pursuant to an analysis of the subject documents and relevant statutes.

Judge Domnarski found that an affidavit relating to the title of real property is authorized by § 47–12a to be recorded on the land records. The court recited the contents of the plaintiff's affidavit and concluded that it complied with the requirements of § 47–12a (b) in that it related to the death of a trustee, which is an event that may terminate an estate or interest, specifically the conveyance of the property. The court concluded that the affidavit also complies with § 47–12a (c) in that it contained a description of the affected real property and stated that the name of the person appearing by record to be the owner of the land at the time of the recording.

In addition, the court found that § 47–12a does not require the affidavit to name owners who do not appear on the land records. The statute only requires the affidavit to “state the name of the person appearing by the record to be the owner of the land at the time of the recording of the affidavit.” General Statutes (Rev. to 2005) § 47–12a (c). Section 47–12a (c) provides that “[t]he town clerk shall index the affidavit in the name of that record owner.” Moreover, the court found that Birmingham had testified at a deposition that the affidavit contained all of the information she needed to index it. The court determined that the town clerk is not responsible for assessing the possibility of future confusion or even the accuracy of the statements contained in the affidavit. The court, therefore, found that the affidavit complies with § 47–12a and is required to be recorded.7

The court also concluded that the plaintiff met the requirements for a writ of mandamus to issue. “The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy.” (Internal quotation marks omitted.) Miles v. Foley, 253 Conn. 381, 391, 752 A.2d 503 (2000). The court therefore granted the plaintiff's motion for partial summary judgment and issued a writ of mandamus ordering Bailey to record the affidavit on the town land records.

The parties tried counts two, three, and four of the amended complaint before Judge Vacchelli, who issued a memorandum of decision on February 13, 2013. The court construed count two of the amended complaint to be seeking a declaratory judgment that Birmingham did not have the legal power to keep the affidavit out of the land records without the plaintiff's permission. Judge Vacchelli found that Judge Domnarski decided that exact issue when he ruled on the motion for partial summary judgment and adopted Judge Domnarski's ruling as the law of the case. See Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982) (court may treat prior interlocutory ruling as law of the case). Judge Vacchelli found that Judge Domnarski's decision was not clearly erroneous and concluded that no manifest injustice would result from following it. (Emphasis added.) Judge Vacchelli therefore issued a declaratory judgment in favor of the plaintiff and against Birmingham on count two of the amended complaint.

The court, however, found in favor of the defendants on counts three and four of the amended complaint. The court construed count three as a request for a declaratory judgment that Holtman did not have the legal power to order or authorize Birmingham to keep the affidavit out of the land records without the plaintiff's permission. The court found no evidence that Holtman was acting in a supervisory capacity and the plaintiff cited no authority for the proposition that a town attorney cannot give advice to his client regarding the recording of documents on the land records. The court found that count four alleged that Birmingham and Holtman acted wilfully, wantonly, maliciously, and in total disregard of the plaintiff's rights and sought exemplary damages, including attorney's fees. The court found no evidence of any design on the part of the defendants to injure the plaintiff and, therefore, there were no grounds on which to award punitive damages under the circumstances of this case. The court also found that there was no basis to award the plaintiff attorney's fees as it found no wilful or corrupt intent on the part of the defendants. In summary, the court issued a declaratory judgment in favor of the plaintiff on count two of the amended complaint and rendered judgment for the defendants on counts three and four thereof. Thereafter the defendants appealed.

On appeal, the defendants claim that the affidavit is not a document suitable for recording pursuant to either § 7–24(d) or § 47–12a. More specifically, the defendants claim that Judge Domnarski improperly issued a writ of mandamus because (1) the affidavit does not identify the present grantee in violation of § 7–24(d); (2) the affidavit does not comply with § 47–12a as its ostensible purpose is to obfuscate, rather than to clarify, title to the property, and to avoid the payment of taxes; and (3) there is a question of fact as to whether the plaintiff was proceeding with unclean hands.8 We disagree with each of the defendants' claims.

We agree with Judge Domnarski that the question of whether the affidavit should be filed on the land records is controlled by §§ 7–24 and 47–12a. Our resolution of the claims on appeal turns on our construction of the applicable statutes.

“[I]ssues of statutory construction raise questions of law over which we exercise plenary review․ When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply․ General Statutes § 1–2z directs this court to first consider the text of the statute and its relationship to other statutes to determine its meaning. If, after such consideration the meaning is plain and unambiguous and does not yield absurd or unworkable results, we shall not consider extratexual evidence of the meaning of the statute.” (Citations omitted; footnote omitted; internal quotation marks omitted.) Marchesi v. Board of Selectmen, 309 Conn. 608, 614–15, 72 A.3d 394 (2013).

In construing a statute, a court presumes “that the legislature did not intend to enact meaningless provisions․ [S]tatutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant․” (Internal quotations marks omitted.) Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 303, 21 A.3d 759 (2011). “[I]t is an elementary rule of statutory construction that we must read the legislative scheme as a whole in order to give effect to and harmonize all of the parts․ When statutes relate to the same subject matter, they must be read together and specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling.” (Citation omitted; internal quotation marks omitted.) Coregis Ins. Co. v. Fleet National Bank, 68 Conn.App. 716, 720, 793 A.2d 254 (2002).

On the basis of our reading and construction of the two statutes at issue, we conclude that the plain and unambiguous terms of § 47–12a pertain to the contents of an affidavit of facts relating to title or interest in real estate, and that § 7–24 pertains to the duties and responsibilities of the town clerk to record and keep public records.

I

The defendants first claim that Judge Domnarski improperly issued a writ of mandamus ordering the town clerk to record the affidavit because the affidavit did not identify the current owner of the property. We disagree, as an affidavit of fact relating to an interest in real estate does not require that it state the name of the property owner. Such an affidavit is required to state the name of the owner of record at the time the affidavit is filed. See General Statutes (Rev. to 2005) § 47–12a.

The parties agree that the affidavit was presented to Oliver for record and the recording fee was paid in advance; the affidavit was stamped as to the day and time it was received and the page and volume number in accordance with § 7–24(c). The defendants claim, however, that the affidavit is not a document that should have been recorded as it does not comply with § 7–24(d) for want of the name of the present owner or grantee of the property.9 We disagree that § 7–24(d) is controlling of the question as to whether the affidavit is a document that must be recorded on the land records.

The defendants' claim is governed by General Statutes (Rev. to 2005) § 47–12a, which provides in relevant part: “(a) An affidavit, which states facts relating to the matters named in subsection (b) and which may affect the title to or any interest in real estate in this state, and which is made by any person having knowledge of the facts or competent to testify concerning them in open court, may be recorded in the land records of the town in which the real estate is situated․

“(b) The affidavit provided for in this section may relate to the following matters: Age, sex, birth, death, capacity, relationship, family history, heirship, names, identity of parties, marital status, possession or adverse possession, adverse use, residence, service in the armed forces, conflicts and ambiguities in description of land in recorded instruments, and the happening of any condition or event which may terminate an estate or interest.

(c) Every affidavit provided for in this section shall include a description of the land, title to which may be affected by facts stated in the affidavit, and shall state the name of the person appearing by the record to be the owner of the land at the time of the recording of the affidavit. The town clerk shall index the affidavit in the name of that record owner.” (Emphasis added.)

In the subject affidavit, the plaintiff attested that McCue was a trustee of the trust, and that McCue had died, among other things. See footnote 4 of this opinion. Judge Domnarski concluded that the affidavit complied with the requirements of § 47–12a in that it related to the death of a trustee and an event that may terminate an estate or interest, specifically the conveyance of the property.10 Moreover, the court found that the affidavit complied with § 47–12a (c) in that it contained a description of the property affected and stated the names of the persons appearing by record to be the owners of the land at the time of the recording. The court also found that § 47–12a does not require the affidavit to identify the grantee or owners of the property whose names do not appear on the land records. Moreover, the court found that Birmingham had testified at a deposition that the affidavit contained all of the information she needed to index it. The record supports the court's findings and we agree with the court's construction of § 47–12a and application to the facts of this case.

Although § 7–24 does not denominate the contents of an affidavit of facts, it is relevant because it directs the town clerk to record a document that is presented for record on the town land records. General Statutes (Rev. to 2005) § 7–24(d) provides in relevant part: “Each town clerk shall also, within twenty-four hours of the receipt for record of any such instrument, enter in chronological order according to the time of its receipt․” (Emphasis added.) “Absent an indication to the contrary, the legislature's choice of the mandatory term ‘shall’ rather than the permissive term ‘may’ indicates that the legislative directive is mandatory.” Bailey v. State, 65 Conn.App. 592, 604, 783 A.2d 491(2001). Judge Domnarski concluded that the affidavit complied with § 47–12a and Birmingham was required by law to record it. We agree with Judge Domnarski.

Further, the text of § 7–24 does not support the defendants' position that the name of the present owner of the property must be included in the affidavit. General Statutes (Rev. to 2005) § 7–24 provides in relevant part: “(b) There shall be kept in each town proper books ․ in which all instruments required by law to be recorded shall be recorded at length by the town clerk within thirty days from the time they are left for record.

“(c) The town clerk shall, on receipt of any instrument for record, write thereon the day, month, year and time of day when [the town clerk] received it and the record shall bear the date and time of day; but he shall not be required to receive any instrument for record unless the fee for recording it is paid to him in advance ․ and, when he has received it for record, he shall not deliver it up to the parties or either of them until it has been recorded․

(d) Each town clerk shall also, within twenty-four hours of the receipt for record of any such instrument, enter in chronological order according to the time of its receipt as endorsed thereon, (1) the names of sufficient parties thereto to enable reasonable identification of the instrument, (2) the nature of the instrument, and (3) the time of its receipt.” (Emphasis added.)

Section 7–24 clearly and unambiguously addresses the responsibilities of the town clerk and the manner in which he or she records an instrument presented for record. Even if § 7–24(d) set forth the requirements for an affidavit of facts, which it does not, that subsection does not provide that the present owner of the property be stated on the affidavit. “When language used in a statute is clear and unambiguous, its meaning is not subject to modification or construction․ Absent ambiguity, courts cannot read into statutes by construction, provision that are not clearly stated.” (Citation omitted; internal quotation marks omitted.) Battersby v. Battersby, 218 Conn. 467, 470, 590 A.2d 427 (1991). For the foregoing reasons, the defendants' first claim fails.

II

The defendants' second claim is that affidavit does not comply with § 47–12a because its ostensible purpose is to obfuscate, rather than to clarify, title to the property, and to avoid the payment of taxes. We decline to review this claim as it was not decided by the trial court. Judge Domnarski clearly stated in his memorandum of decision that he was “not ruling on the legal consequences of the affidavit upon the title to the subject land. The court only determines here that the affidavit complies with § [47]–12a and that it is required by law to be recorded. The effect, if any, of the affidavit upon any future proceedings must be determined in those proceedings.” We agree with the trial court that the plaintiff's purpose in filing the affidavit, beyond the dictates of § 47–12a, did not have to be decided. Moreover, we are loathe to interpret the law to saddle town clerks with the impossible task of determining the intent or motive of a party filing an affidavit of fact. See General Statutes (Rev. to 2005) § 7–24.

“The theory upon which a case is tried in the trial court cannot be changed on review, and an issue not presented to or considered by the trial court cannot be raised for the first time on review.” Richter v. Childers, 2 Conn.App. 315, 318, 478 A.2d 613 (1984). When an issue has not been ruled on by the trial court, an appellate court may not review the issue for the first time on appeal. See Miskimen v. Biber, 85 Conn.App. 615, 626, 858 A.2d 806 (2004), cert. denied, 272 Conn. 916, 866 A.2d 1287 (2005). We therefore decline to review this claim.

The dissent claims that the “defendants were not given the opportunity to present evidence on their claim that the plaintiff came to court with unclean hands.” We respectfully disagree. Although Judge Domnarski did not make an explicit finding with regard to the plaintiff's claimed ostensible purpose in filing the affidavit, he implicitly considered the defendants' claim. He found that “[t]hese parties have had a long history of litigation. The defendants used a considerable portion of their briefs informing the court of the difficulties that the town ․ and other towns, have encountered in prosecuting tax lien foreclosures against individuals or entities connected to the plaintiff. They claim that the plaintiff's attempt to record this document is part of a plan to avoid the payment of taxes.”11

The court further found the “thrust of the defendant[s'] objection to the recording of the affidavit is that it will create confusion since the identity of the actual, present, owner of the land is not stated in the affidavit. The defendants misread the requirements of the statute. The affidavit need only state the person ‘appearing by the record to be the owner of the land.’ The statute does not require that the affidavit name owners who do not appear on the land records. It is not the responsibility of the town clerk to assess the possibility of future confusion or even the accuracy of the statements contained in the affidavit. The only responsibility of the town clerk is clearly stated in § 47–12a (c): ‘The town clerk shall index the affidavit in the name of that record owner.’ The town clerk who received the affidavit on July 28, 2005, testified at a later deposition that the affidavit contained all of the information that she needed in order to properly index the document.” (Emphasis in original.)

We agree with the trial court that the intent of a party filing an affidavit of facts is not relevant to whether the affidavit complies with § 47–12a and that it is not the clerk's responsibility to determine the filer's intent. For this reason, we conclude that the defendants' claim with respect to the ostensible purpose of the affidavit is not reviewable.

III

The defendants' third claim is that the court improperly issued a writ of mandamus to record the affidavit on the land records because there was a question of fact as to whether the ostensible purpose of filing the affidavit was to avoid the payment of taxes and thus the plaintiff was proceeding with unclean hands. We disagree.

The basis of the defendants' claim appears to be that both Judge Domnarski and Judge Vacchelli acknowledged that the parties had a lengthy history of litigation. Neither judge, however, found that that history of litigation and the intent of filing the affidavit was relevant to the question of whether the affidavit was a document that should be recorded on the town land records, and neither do we. See part II of this opinion.

The law of this case was determined by Judge Domnarski when he ruled on the plaintiff's motion for partial summary judgment. 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.” Practice Book § 17–49. In this case the defendants asserted the special defense of unclean hands to the plaintiff's petition for a writ of mandamus. We conclude that the doctrine of unclean hands is not applicable to this case.

“The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue․ For a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with clean hands․ The clean hands doctrine is applied not for the protection of the parties but for the protection of the court․ It is applied ․ for the advancement of right and justice․ The party seeking to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in wilful misconduct with regard to the matter in litigation .” (Emphasis added; internal quotation marks omitted.) Emigrant Mortgage Co. v. D'Agostino, 94 Conn.App. 793, 804, 896 A.2d 814, cert. denied, 278 Conn. 919, 901 A.2d 43 (2006).12 The litigation on which the defendants rely to demonstrate the plaintiff has come into court with unclean hands is not the present litigation, but litigation concerning taxes due and owing, not in the town, but in Simsbury.13

“Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes․ It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised in accordance with recognized principles of law․ That discretion will be exercised in favor of issue the writ only where the plaintiff has a clear legal right to have done that which he seeks․ The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy.” (Internal quotation marks omitted.) Miles v. Foley, supra, 253 Conn. at 391.

“Even satisfaction of this demanding test does not, however, automatically compel issuance of the requested writ of mandamus․ In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity.” (Citation omitted.) Hennessey v. Bridgeport, 213 Conn. 656, 659, 569 A.2d 1122 (1990). “In an equitable proceeding, the trial court may examine all relevant factors to ensure that complete justice is done․ The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.” (Internal quotation marks omitted.) North-east Savings, F.A. v. Hintlian, 241 Conn. 269, 275, 696 A.2d 315 (1997).

“In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its actions.” (Internal quotation marks omitted.) Yanow v. Teal Industries, Inc., 196 Conn. 579, 583, 494 A.2d 573 (1985). Here, Judge Vacchelli found that Judge Domnarski's ruling on the motion for partial summary judgment was not clearly erroneous and would not work a manifest injustice if followed. Both of the judges concluded that the legal effect of the affidavit could be determined in another proceeding. As we concluded in part I of this opinion, the affidavit complies with § 47–12a and pursuant to § 7–24 the town clerk had a duty to record the affidavit if presented for record. Birmingham was, and now Bailey is, required by law to record the affidavit, regardless of the litigation history of the parties. As Judge Domnarski stated, his issuing a writ of mandamus to record the affidavit on the town land records was not a ruling on the affidavit's effect on the title to the property. Any issues regarding title to the property must be decided in a separate proceeding.

We therefore conclude that that the court property granted the plaintiff's motion for partial summary judgment as there is no genuine issue of material fact, as a matter of law. The facts on which the defendants asserted their unclean hands special defense do not implicate the present litigation. We also conclude that the trial court did not abuse its discretion in weighing the equities in this matter. The statutes at issue demonstrate that the plaintiff was entitled to have his affidavit recorded on the land records and the clerk was required to do so.

The judgment is affirmed.

“AFFIDAVIT OF FACTS

“Under Conn. Gen.Stat. Sec. 47–12a

I agree with the majority's statutory interpretation of General Statutes (Rev. to 2005) §§ 7–24(d) and 47–12a.1 I disagree, however, with the majority's conclusion that the partial summary judgment rendered by Judge Domnarski and the declaratory judgment rendered by Judge Vacchelli on the second count of the complaint should be affirmed. I dissent because the defendants2 raised special defenses to the plaintiff's mandamus action that were not addressed by the trial court, and, accordingly, I would reverse the judgments in part and remand the case to the trial court for further proceedings.

The plaintiff filed his motion for partial summary judgment on March 11, 2011, claiming that the court needed only to determine that the affidavit at issue complied with the provisions of §§ 7–24(d) and 47–12a in order to grant the mandamus relief requested in his complaint. During the hearing before Judge Domnarski on June 6, 2011, the plaintiff argued that the extensive litigation history between the parties and the defendants' allegations with respect to the plaintiff's improper motive for filing the affidavit were irrelevant to his request that the court order the town clerk to record the affidavit. The plaintiff's counsel stated: “It's simply a matter of law ․ whether or not the document has a right to be recorded as a matter of law. There's no question of fact, it's a question of law.”

The defendants, who had filed eleven special defenses to the plaintiff's complaint,3 disagreed and responded that it was the plaintiff's burden to show that he was entitled to the extraordinary remedy of mandamus. The defendants' counsel argued: “I think the scope of the inquiry goes beyond just looking at the statutes that [the plaintiff's] counsel has mentioned, [§§ ] 47–12a and 7–24, because, again, there's a history here. Also, as Your Honor has pointed out, the remedy that he has requested at this point is an extraordinary remedy, that's the remedy of mandamus․ This remedy invokes the equitable powers of the court. And Your Honor's already observed that [the plaintiff's] counsel is unable to give you a case that says that it is appropriate to decide a request for such an extraordinary remedy by way of a summary judgment motion.

“Because by invoking the equitable power of the court, among other things, the court has to look at whether or not the plaintiff comes into the court with clean hands. Hence, those materials that I delivered to you this morning and have already given to plaintiff's counsel. They relate to tactics that were utilized by the same two parties in interest4 with respect to their properties in Simsbury that involved tax avoidance motives and ․ the reason we're giving them to the court is to show that the plaintiffs are not, in fact, coming into this court with clean hands, and that there's the same ulterior motive here which is a tax avoidance plot.” (Emphasis added.)

The court responded: “All right, so you're talking about clean hands, but in the back of my mind, mandamus is to compel a ministerial act. How do clean hands get involved with: You got to do your job?” At the conclusion of the hearing, the court indicated that it would research the matter.

On August 3, 2011, Judge Domnarski filed a memorandum of decision in which the court granted the plaintiff's motion for partial summary judgment (first and second counts) and issued a writ of mandamus ordering the town clerk to record the original affidavit in the East Granby land records. In that decision, Judge Domnarski stated: “To be clear, this is not a ruling on the legal consequences of the affidavit upon the title to the subject land. The court only determines here that the affidavit complies with § 47–12a and that it is required by law to be recorded. The effect, if any, of the affidavit upon any future proceedings must be determined in those proceedings.” (Emphasis added.) The defendants moved for reargument, claiming that the court overlooked the doctrine that a plaintiff must come into court with clean hands in order to invoke the equitable powers of the court. Judge Domnarski denied the motion to reargue on August 26, 2011, and the defendants filed a notice of their intent to appeal pursuant to Practice Book § 61–5.

Judge Vacchelli tried the remaining issues on November 6, 7 and December 18, 2012. In the second count of the complaint, the plaintiff, in addition to his request for a writ of mandamus, sought a declaratory judgment that the former town clerk violated the provisions of § 7–24 by refusing to record the affidavit at issue. In the third count, the plaintiff sought a declaratory judgment that the town attorney did not have the authority to order the town clerk to violate § 7–24. Finally, in the fourth count, the plaintiff sought exemplary damages against the former town clerk and the town attorney for “wilful, wanton and malicious conduct” in “denying plaintiff his rights to have the affidavit recorded.” Judge Vacchelli applied the “law of the case” with respect to the second count, finding that Judge Domnarski had decided that exact issue when he had rendered the partial summary judgment. Accordingly, Judge Vacchelli rendered judgment in favor of the plaintiff on the second count. With respect to the third and fourth counts of the plaintiff's complaint, Judge Vacchelli rendered judgment in favor of the defendants. In the court's memorandum of decision, the court expressly stated: “Having found for the defendants on the issues not controlled by previous rulings in the case, it is unnecessary to address the defendants' specific special defenses or any other defense pleaded or argued.” (Emphasis added.)

In this appeal from the partial summary judgment rendered by Judge Domnarski and the declaratory judgment in favor of the plaintiff on the second count rendered by Judge Vacchelli, the defendants claim, inter alia, that the trial court improperly rendered the judgments because there was “an issue of fact as to whether ․ the plaintiff was proceeding with clean hands and accordingly entitled to the equitable relief requested.” I agree. The defendants never were given the opportunity to present evidence on their claim that the plaintiff came to court with unclean hands, as alleged in their tenth special defense and as argued at the time of oral argument on the plaintiff's motion for partial summary judgment.5 When Judge Vacchelli tried the remaining issues, he applied the law of the case and rendered a declaratory judgment in favor of the plaintiff on the second count because Judge Domnarski had determined that the affidavit was entitled to be recorded in the land records as a matter of law. The defendants again were denied the opportunity to prove their special defenses to the first and second counts of the complaint at the subsequent trial before Judge Vacchelli.

The standard of review with respect to the issuance of a writ of mandamus is well settled. “In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity․ In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action․ Nevertheless, this court will overturn a lower court's judgment if it has committed a clear error or if it has misconceived the law․

“A writ of mandamus is an extraordinary remedy, available in limited circumstances for limited purposes․ [The court's discretion] will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks․ The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy.” (Citations omitted; internal quotation marks omitted.) Jalowiec Realty Associates, L.P. v. Planning & Zoning Commission, 278 Conn. 408, 412, 898 A.2d 157 (2006).

“There is authority for the proposition that, even when a plaintiff has a clear legal right to the writ, principles of equity and justice may militate against its issuance. Courts have discretion to consider equitable principles when deciding whether to issue the writ․ The writ [of mandamus] will be granted to prevent a failure of justice, but never to promote manifest injustice. It is a remedial process and may be issued to remedy a wrong, not to promote one, to compel the discharge of a duty which ought to be performed, but not to compel the performance of an act which will work a public and private mischief, or to compel a compliance with the strict letter of the law in disregard of its spirit or in aid of a palpable fraud. The relator must come into court with clean hands ․ This equitable discretion is exercised in instances wherein the party seeking the writ has engaged in improper conduct or otherwise has violated equitable principles.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., at 418–19.

The defendants in the present case alleged, although they have never been afforded the opportunity to present evidence to prove, that the plaintiff's motive for filing the affidavit was to impede or delay the payment of municipal taxes on the subject real estate and personal property. The plaintiff, as the affiant, averred that he and Walter McCue were the trustees of the trust that held title to the subject real estate in East Granby. The plaintiff further averred that McCue died and the trust was terminated. The defendants have conceded that the foregoing information is appropriate in an affidavit filed pursuant to § 47–12a. It is paragraph six of the affidavit, however, that the defendants claim is meant to obfuscate title and thwart efforts by East Granby to collect taxes. In paragraph six of his affidavit, the plaintiff averred that “[o]n December 7, 1998, the Trust executed a deed conveying the aforesaid real estate, but to the undersigned's knowledge that deed has not been recorded.” The plaintiff, who was the sole remaining trustee of the trust that allegedly conveyed the property, would not disclose who the grantee was, thereby leaving unknown the identity of the current title holder of the property. What is the purpose for including paragraph six in the affidavit? What legitimate reason could the plaintiff possibly have for attesting that he, as the trustee, conveyed the property, followed by his refusal to identify the person to whom he conveyed the property?

In the documents submitted with the defendants' opposition to the plaintiff's motion for partial summary judgment, there are copies of pleadings from a tax foreclosure action involving property in Simsbury. The defendants claimed that the plaintiff and McCue were trustees of a trust owning the Simsbury property, that the plaintiff claimed that the trust conveyed the property and was terminated, and that the plaintiff failed to disclose in the Simsbury land records the grantee of that conveyance. The plaintiff then filed a notice of defense in the Simsbury action claiming that he had no interest in the property and was not liable for the taxes. According to the defendants, the pleadings filed by the plaintiff in the Simsbury action, and in a prior tax foreclosure action involving the subject property in East Granby, evidenced a pattern of ongoing attempts to evade or delay the payment of taxes. To be sure, it would be the defendants' burden to prove that the plaintiff's request for mandamus in the present case should be denied because he did not have clean hands when he came into court. Judge Domnarski, however, in rendering the partial summary judgment, precluded that opportunity and simply concluded that the affidavit met the statutory requirements and had to be accepted for recording in the land records.

It is axiomatic that summary judgment shall be rendered only “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.” Practice Book § 17–49. Simply put, there was a material issue of fact as to whether the plaintiff had clean hands to seek the extraordinary remedy of mandamus.6 Although I do not disagree that, strictly speaking, the affidavit conforms to the provisions of §§ 7–24 and 47–12a, I do not believe that mandamus would be an appropriate remedy if the defendants prove that the plaintiff's purpose in filing the affidavit was to further a scheme of tax avoidance. A writ of mandamus “may be issued to remedy a wrong, not to promote one, to compel the discharge of a duty which ought to be performed, but not to compel the performance of an act which will work a public and private mischief․” (Internal quotation marks omitted.) Jalowiec Realty Associates, L.P. v. Planning & Zoning Commission, supra, 278 Conn. at 419.

For these reasons, I would reverse the partial summary judgment rendered by Judge Domnarski and the declaratory judgment in favor of the plaintiff on the second count rendered by Judge Vacchelli7 and remand the case to the trial court for further proceedings. Accordingly, I respectfully dissent.

FOOTNOTES

1.  As of July 28, 2005, Holtman was the town attorney for the town of East Granby, and Birmingham was the town clerk. Bailey succeeded Birmingham as the clerk for the town of East Granby and thereafter was cited in as a party defendant.

2.  The plaintiff Gail McCue, executrix of the estate of Walter T. McCue, Jr., is not a party to this appeal. In this opinion, we refer to Silver as the plaintiff.

3.  Hereinafter, unless otherwise indicated, all references to §§ 7–24 and 47–12a are to the 2005 revision of the statute.

4.  The affidavit stated:“PREMISES AFFECTED: 6 Herman Drive East Granby, Connecticut (See Schedule A)“RECORD OWNER: Charles S. Silver and Walter McCue, Trustees P.A .T. Irrevocable Trust 67 Laurel Lane, Simsbury, CT 06070“I, Charles S. Silver, being first duly sworn, herby depose and say:“1. I have personal knowledge of the facts stated in this affidavit.“2. I am one of the trustees of the P.A.T. Irrevocable Trust, hereafter ‘the Trust,’ and have accepted the trust“3. The other trustee, Walter McCue, died on August 30, 2004.“4. The Trust is the record owner of the real estate located at 6 Herman Drive in the Town of East Granby, Connecticut, as more fully described in Schedule A attached to this affidavit.“5. A Notice of trust with respect to the Trust was recorded in the East Granby Land Records, in Volume 106 at Page 495.“6. On December 7, 1998 the Trust executed a deed conveying the aforesaid real estate, but to the undersigned's knowledge that deed has not been recorded.“7. On that date the Trust was terminated.“Dated this 20th day of July, 2005.“/s/ Charles S. Silver“Charles S. Silver, Affiant”

5.  Birmingham stated in the letter in part: “On advice of Attorney Donald R. Holtman, the Town Attorney for the Town of East Granby, I am returning your $18.00 in currency as well as your two-page ‘Affidavit of Facts.’ Attorney Holtman has told me not to record this document.”

6.  General Statutes (Rev. to 2005) § 7–24 is entitled: “Recording of instruments; safekeeping of records; recording of illegible instruments.”General Statutes (Rev. to 2005) § 47–12a is entitled: “Affidavit of facts relating to title or interest in real estate.”

7.  In determining that the plaintiff had the legal right to have the affidavit recorded, the court stated that it was not ruling on the legal effect of the affidavit on the title to the subject land.

8.  In issuing a declaratory judgment on count two of the amended complaint, Judge Vacchelli adopted Judge Domnarski's reasoning on the plaintiff's motion for partial summary judgment as the law of the case. To the extent that the defendants' claims pertain to the declaratory judgment issued by Judge Vacchelli, our resolution of the mandamus claims applies to the declaratory judgment as well.

9.  The defendants rely on McCue v. Birmingham, supra, 88 Conn.App. at 630 to support their position. We agree with Judge Domnarski's conclusion that the McCue case does not help the defendants. Although McCue involved the same parties and the same property, it concerned different documents and two different lawsuits. Id., at 636–37.In the first action, the plaintiff sought a declaratory judgment following Birmingham's refusal to record a document presented for record, which was entitled “notice of sale” and “notice of termination of P.A.T. irrevocable trust.” Id., at 632. The trial court, Hon. Richard M. Rittenband, judge trial referee, rendered judgment in favor of Birmingham, concluding that the document at issue did not comply with § 47–12a (c) as it did not “state the name of the person appearing by record to be the owner of the land at the time of the recording of the affidavit.” (Internal quotation marks omitted.) Id., at 632–33. No appeal was taken from that judgment. Id., at 633.In the McCue action, the plaintiffs' sought a writ of mandamus regarding another set of documents that Birmingham had accepted for record and then had “unrecorded.” Id. The defendants filed a motion for summary judgment claiming that the issue raised by the plaintiffs' multicount complaint was res judicata in that it previously had been decided by Judge Rittenband in the first action. Id. The motion for summary judgment was decided by Judge Rittenband who agreed with the McCue defendants that the issue was res judicata and that collateral estoppel barred the McCue action. Id., at 633–34. The judgment was appealed to this court, which considered the issue of res judicata only. Id., at 635. Although this court recited Judge Rittenband's analysis concerning the issue in the two underlying cases, it did so for purposes of determining whether the issues alleged in the McCue action were res judicata. This court did not analyze § 7–24(d) nor consider whether the identity of the grantee needed to be included in documents presented for record pursuant to § 47–12a. For these reasons, McCue v. Birmingham, supra, 88 Conn.App. at 630, is not controlling of the issues before us in the present case.

10.  At oral argument in this court, the defendants conceded that McCue's death was appropriate to record on the land records because it affected title to or interest in the property.

11.  The defendants' appendix to their appellate brief contains more than 200 hundred pages of documents related to the issue of ongoing litigation between the parties. Judge Vacchelli stated in his memorandum of decision that he also reviewed those documents. He adopted Judge Domnarski's ruling as the law of the case and concluded that following Judge Domnarski's decision would not work a manifest injustice.

12.  “What is material is not that the plaintiff's hands are dirty, but that he dirties them in acquiring the right he now asserts․ A variation on this formula limits the clean hands defense to cases in which the plaintiff is seeking to secure a benefit from the very conduct, which is inequitable.” (Footnote omitted; internal quotation marks omitted.) 1 D. Dobbs, Law of Remedies, (2d Ed.1993) § 2.4(2), p. 95.

13.  We cannot conclude the mere commencement of legal action to challenge the imposition of real property taxes constitutes unclean hands. A party has a legal right to seek redress.

1.  Hereinafter, all references to §§ 7–24 and 47–12a are to the 2005 revision of the statute.

2.  The defendant Donald R. Holtman was the town attorney for the town of East Granby when the plaintiff, Charles S. Silver, attempted to record the affidavit at issue in this appeal. The defendant Elizabeth W. Birmingham was the town clerk at the time, and was succeeded by the defendant Sheila M. Bailey..

3.  Of the eleven special defenses, two are particularly relevant to the defendants' claims on appeal. The defendants alleged that the plaintiff's purpose for filing the affidavit was “to obfuscate rather than clarify title” and that the plaintiff was “precluded from seeking a writ of mandamus because of the equitable doctrine of unclean hands.”

4.  See footnote 2 of the majority opinion.

5.  The majority states that the trial court received evidence in the form of attachments to the defendants' opposition to the plaintiff's motion for partial summary judgment. There was no evidentiary hearing at the time the motion for partial summary judgment was argued by counsel. The defendants did not have a full and fair opportunity to present testimony and documentary evidence to prove their special defense of unclean hands. Judge Vacchelli simply adopted Judge Domnarski's ruling as the law of the case, even though there had been no evidentiary hearing on the defendants' claim of unclean hands, thereby perpetuating the error.The majority agrees with the trial court that the legal effect of the § 47–12a affidavit could be determined in another proceeding. This mandamus action, however, is an equitable proceeding in which the special defense of unclean hands should have been addressed. There is no need for yet another proceeding between these parties.

6.  The majority “conclude[s] that the doctrine of unclean hands is not applicable to this case.” It is my position that the applicability of the doctrine of unclean hands is a factual determination to be reached by the trial court after evidence is presented at trial, and that the defendants should not have been foreclosed from presenting such evidence to prove their special defense.

7.  Judge Vacchelli should not have applied the law of the case doctrine in this case because the rendering of the partial summary judgment by Judge Domnarski was “clearly erroneous and would work a manifest injustice if followed․” (Internal quotation marks omitted.) Lewis v. Gaming Pol icy Board, 224 Conn. 693, 697, 620 A.2d 780 (1993).

ALVORD, J., dissenting.

In this opinion SCHALLER, J. concurred.

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