*1 by burdened a that mortgage plaintiff cannot fore- close, and the who defendants,1 property, own the can- not get released without some farther action of the Bankruptcy Court or its trustee. Thus, property essentially not saleable. Our decision makes clear that cannot foreclose on the And the mortgage. defendants way have no to clear property the title to the of the mortgage own, claims to because either the is still mortgage owned the trustee in bankruptcy subject or is to being abandoned that trustee.
Thus, it behooves all of parties to hie themselves Bankruptcy they Court. There should implore reopen the court to bankruptcy case so as either to lodge ownership of the mortgage in the trustee (or duly appointed a successor trustee), permit or to that trustee to any abandon interest in the mortgage, should have the ownership effect of lodging of the mort- plaintiff. in the gage Otherwise, property in question indefinitely will remain piece of real estate without capability liquidation. hardly This is a state of affairs respect. commands v. DONALD R.
CHARLES S. ET AL. SILVER HOLTMAN ET AL.
(AC 35427) Lavine, Schaller, Alvord and Js. majority opinion. See footnote 1 of the *2 officially released April 8,
Argued November Ralph Eddy, G. for the appellants (defendants). *3 Edward W. Gasser, whom, on brief, was Morris, Amanda J. appellee (named plaintiff).
Opinion LAVINE,J. defendants, Donald R. Holtman, Eliza- beth W. Birmingham, and Sheila M. Bailey,1 appeal from of the trial judgment court, a writ issuing of manda- mus and a judgment plaintiff favor of the Charles S. Silver.2 The lengthy litigation par- among ties centers on July 20, whether a 2005 affidavit of facts attested (affidavit) to Silver is a document that must be recorded on the land records of the town of East Granby (town). appeal, On the defendants claim that improperly the court concluded that the affidavit should be pursuant recorded on the land records to General Statutes 7-24 (Rev. 2005) (d) and 47-12a.3We affirm §§ of the trial court. February 13, its decision, 2013 memorandum of the court, Vacchelli, J., found the following facts. On July 28, 2005, attorney As of Holtman was the town for the town of East Granby, Birmingham Bailey Birmingham was the town clerk. succeeded Granby as the clerk for the town of East and thereafter was cited in as a party defendant. McCue, McCue, Gail executrix of the estate of Walter T. Jr., party appeal. opinion, is not a to this In this we refer to Silver as plaintiff. 3Hereinafter, indicated, unless otherwise all §§ references to 7-24and 47- 12a are to the 2005 revision of the statute. William T. Barrante went to the July 2005, Attorney page a two document clerk’s office to record town was The first of the document page the land records. in the town property located concerning an affidavit description page and the second contained (property) the document property.4 presented Barrante Oliver machine- Clerk, Town Karen Oliver. Assistant with the volume first of the document stamped page the time it of the land records and page number and page received. Oliver hand wrote the volume her initials stamp beneath the date and added number stamped Oliver also col- signature. to Birmingham’s $18 an fee from Barrante. recording lected office, returned to the clerk’s Oli- Birmingham When her the affidavit because it contained the ver showed McCue, in the who, names of the and Walter 4The affidavit stated:
“AFFIDAVIT OF FACTS 47-12a “Under Conn. Gen. Stat. Sec. AFFECTED: 6 Herman Drive
“PREMISES Granby, Connecticut East (See A) Schedule McCue, OWNER: Charles S. Silver and Walter Trustees “RECORD P.A.T. Trust Irrevocable Lane, Simsbury, CT 06070 67 Laurel *4 duly sworn, herby depose say: “I, Silver, being Charles S. first personal knowledge in “1. I have of the facts stated this affidavit. Trust, “2.1 am of the trustees of the P.A.T. Irrevocable hereafter ‘the one accepted Trust,’ the trust and have trustee, McCue, 30, August 2004. “3. The other Walter died on “4. Trust is the record owner of the real estate located at 6 Herman Granby, Connecticut, fully as more described in Drive in the Town of East Schedule A attached to this affidavit. respect in “5. A Notice of trust with to the Trust was recorded the East Granby Records, Page in Volume 106 at 495. Land 7,1998 conveying the aforesaid “6. On December the Trust executed deed estate, undersigned’s knowledge that deed has not been real but to recorded.
“7. On that date the Trust was terminated. day July, 2005. “Dated this 20th “ n / Charles S. Silver Silver, S. Affiant’
‘Charles past, had been involved with litigation the town over recording issues property. regarding Birmingham thought that the affidavit was unusual and sought advice from Holtman reading the affidavit to him over the telephone. As the town attorney, Holtman was familiar plaintiff and McCue due to litigation their his- tory with the town and He elsewhere. also was familiar with recent litigation which the town’s refusal record certain documents submitted plaintiff had been upheld by the Superior Court, Hon. Richard M. Rittenband, trial judge referee. Holtman concluded that the affidavit was not a required document or authorized by law to be recorded on the land records and that its purpose impede was to the collection municipal taxes. He advised Birmingham to return the affidavit presented whomever it, together with the recording paid. fee
Birmingham then crossed off the volume and page numbers stamp and date on the affidavit without enter- ing day information in the book. She returned the affidavit along with the recording fee and a cover letter to Barrante.5 Thereafter, in September, 2005, plain- tiff commenced the action. operative complaint complaint is the amended April
filed on 14, 2011. The that he was alleged a trustee of the P.A.T. Trust, also known as P.A.T. Irrevocable Trust (trust), which was recorded on the town land records on or 22, about March 1995. The trust included real estate located at 6 Herman Drive in the town. The further alleged July 20, that on 2005, capacity his trustee, as a he executed an affida- vit in accordance with July 28, 47-12a. On Bar- presented rante pursuant the affidavit to the statute for 5Birmingham part: Attorney stated in the letter in “On advice of *5 Donald Holtman, Attorney Granby, R. returning the Town for the Town of East I am your currency $18.00 your two-page Attorney as well as ‘Affidavit of Facts.’ Holtman has told me not to record this document.” and, date, the records, the town land on that record on 130 and pages was in volume at affidavit recorded that plaintiff alleged land also 131 of the records. and, such, with 47-12a as complied the affidavit required to be recorded on the land records a document further plaintiff when received the town clerk. The to Holt- subsequent July 28, 2005, that at a time alleged affidavit man instructed to remove the Birmingham July 29, 2005, Birmingham the land On from records. the removing the to Barrante after returned affidavit from records and off the crossing the land that had to page assigned volume and numbers been plaintiff alleged Birmingham’s the affidavit. The that public the unlawful removal of a conduct constituted He also record in violation of General Statutes 53-153. informed through Holtman, that alleged Birmingham, accept that would not the affida- Birmingham Barrante it had and record, vit for even been received though accepted for same.
Moreover, plaintiff alleged returning that in duty Barrante, Birmingham affidavit to violated the she duty only can be plaintiff, owed the which enforced plaintiff a writ of mandamus. The that subse- alleged quent resignation, Bailey became Birmingham’s clerk, requiring town he a writ of mandamus sought Bailey and a affidavit, judg- to record the power keep not have Birmingham ment did plaintiff sought affidavit out the land records. The wil- exemplary including attorney’s fees, for damages, wanton, conduct of his ful, and malicious violation statutory rights. June filed answer to the 3,2011,
On the defendants an complaint they the material amended denied complaint alleged special eleven allegations defenses, that a writ of mandamus should not including because had unclean hands. There- issue summary partial filed a motion for after, *6 judgment liability. as to opposed defendants partial summary motion for judgment.
The court, Domnarski,
J., ruled on the motion for
partial summary
in a
memorandum of deci
sion dated August 3, 2011. The court found that the
essential facts were not in dispute:
pre
sented the affidavit to the clerk’s office for
record
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
lawfully
entitled to record the affidavit
and concluded that the issue is governed by
7-24
§§
and 47-12a.6The
maintained that the affidavit
should be
complies
recorded as it
with
requirements
of 47-12a. The
§
defendants contended that Birmingham
required
was not
to record the affidavit as it did not
contain the name of the current
property
owner of the
and therefore
comply
did not
support
7-24
(d).
§
of their position,
the defendants relied on McCue v.
Birmingham,
App. 630,
1126,
870 A.2d
cert.
denied, 274
Conn.
Judge Domnarski found that an affidavit relating to property the title of real is authorized 47-12a to be § recorded on the land records. The court recited the contents of affidavit and concluded that it complied requirements with the of 47-12a in that (b) § (Rev. 2005) “Recording General Statutes § 7-24 is entitled: of instru ments; safekeeping records; recording illegible instruments.” (Rev. 2005) General Statutes 47-12a is entitled: “Affidavit of facts relating to title or interest in real estate.” is an event trustee, to the death of it related interest, specifically an estate or may terminate that concluded property. The court conveyance of with 47-12a complies (c) also that the affidavit *7 property real the affected description a of it contained person appearing the that the name of and stated the time of the of the land at to be the owner record recording. 47-12a does not court found that addition, §
In the appear not name owners who do the affidavit to require only requires the affida- The statute on the land records. by the person appearing the “state the name of vit to land at the time of the the owner of the record to be Statutes to (Rev. the affidavit.” General recording of provides 47-12a that (c) 47-12a Section 2005) (c). in the name index the affidavit town clerk shall “[t]he that Moreover, the court found that record owner.” of that the affida- deposition had testified at a Birmingham she needed to index all of the information vit contained not that the town clerk is it. The court determined future confu- possibility the responsible assessing for accuracy the statements contained or even the sion therefore, found that the court, affidavit. The the required and is to be complies with 47-12a affidavit recorded.7 that the met the
The court also concluded to issue. “The for a writ of mandamus requirements imposes law on the only when proper (1) writ is duty perfor- writ would run a party whom the against mandatory discretionary; which is and mance of a legal right for the writ has clear party applying (2) duty and there is no other performed; (3) have the marks remedy.” quotation specific adequate (Internal 7 right determining legal affidavit had the to have the ruling legal recorded, effect of the stated that it was not on the the court subject affidavit on the title to the land. 391, A.2d omitted.) Foley, 381, v. Miles granted The court therefore (2000). summary and a writ partial motion issued judgment ordering Bailey of mandamus to record the town land records. parties two, three, tried counts four of complaint Vacchelh,
amended
before
who issued
Judge
February
a
of decision on
2013.
memorandum
complaint
count two
the amended
court construed
to be
that
seeking
judgment
Birmingham
power
keep
did not
the affidavit out
legal
have the
plaintiff’s permission.
land records without
that
Domnarski decided
Judge
Vacchelli found
partial
when he
the motion for
exact issue
ruled on
summary
Domnarski’s rul-
adopted Judge
*8
v. Phelps,
as
law of the case.
Breen
ing
the
See
may
Conn.
We agree Judge Domnarski that the of whether the affidavit should be filed on the land records is controlled 7-24 and 47-12a. Our §§ resolution of on appeal the claims on our turns construction of the applicable statutes. 8 issuing In a on count amended two of the com
plaint, adopted Judge Judge reasoning plain Vacchelli Domnarski’s on the partial summary judgment tiffs motion for as the case. law of the To the pertain declaratory judgment extent that the defendants’ to claims the issued Vacchelli, applies our resolution of the mandamus claims to the declaratory judgment as well.
249 questions raise of statutory of construction “[I]ssues . . plenary we . When law over which exercise review. objective is to statute, a fundamental construing [o]ur intent of the apparent ascertain and effect to the give determine, In to words, ... other we seek legislature. statutory the manner, in a the of meaning reasoned applied case, including facts of as language [the] actually question of the does language the whether this apply. . . . General l-2z directs court Statutes its of the statute and relation- first consider text If, ship meaning. statutes to determine its after to other meaning plain unambigu- such and consideration yield results, or ous does not absurd unworkable and of the mean- we not consider extratexual evidence shall omitted; (Citations omitted; of the statute.” footnote ing v. Board Marchesi quotation omitted.) internal marks Selectmen, A.3d 394 608, 614-15, (2013). 309 Conn. a court “that the construing statute, presumes provi- enact meaningless did intend to legislature if construed, possible, be must sions.[Statutes superflu- clause, or shall be such no sentence word quotation . . . .” ous, insignificant or (Internal void v. Co. Commis- omitted.) Housatonic Railroad marks Services, sioner Revenue 268, 303, 21 A.3d 301 Conn. statutory elementary con- is an rule of (2011). “[I]t scheme as legislative that we must read struction effect to and harmonize all a whole in order give subject . relate to the same parts. . . When statutes specific terms they together must be read matter, over subject prevail gen- matter will given covering same or another statute eral language omitted; prove controlling.” (Citation might otherwise Ins. Co. v. omitted.) Coregis marks quotation internal A.2d Bank, Fleet 716, 720, National App. 254 (2002). and construction of the reading
On basis of our plain at we conclude that issue, two statutes *10 pertain of 47-12a unambiguous § terms contents title in relating of an affidavit of facts to or interest estate, pertains 7-24 to and § real and that the duties responsibilities keep of the town clerk to record and public records.
I claim Judge The defendants first that Domnarski improperly issued a writ of mandamus the ordering town clerk to the affidavit because record the affidavit identify current property. did not owner the We an as affidavit of fact to an interest disagree, relating require it real estate does not that state the name of Such an property required owner. affidavit is to state the name of the owner of at record the time is General (Rev. filed. See Statutes to 2005) 47-12a. § parties that agree presented the affidavit was
Oliver for record and the fee recording paid was advance; stamped day the affidavit was as to the and time it was and the page received volume number in accordance with 7-24 (c). claim, § defendants however, that the affidavit is not a document that should have been as it comply recorded does not with 7-24 for want of the of the (d) name owner or grantee property.9 of the 7-24 disagree We (d) control- ling question as to whether the affidavit is a be document that must recorded on the land records. rely Birmingham, supra, App. v. The defendants on McCue support position. agree then We Domnarski's conclusion help Although that the McCue case does not defendants. involved McCue parties property, the same and the same it concerned different documents Id., and two different lawsuits. 636-37. action, sought judgment following In the first Birmingham’s record, presented refusal to record a document entitled “notice of sale” “notice of termination of P.A.T.irrevocable Id., corut, Rittenband, judge trust.” 632. The trial Hon. M. Richard trial referee, Birmingham, concluding rendered favor of comply (c) document at issue did with § 47-12a as it did not “state person appearing by name record to be the owner of at the land *11 by General Stat- claim is governed
The defendants’ in relevant 47-12a, provides which 2005) utes (Rev. relating An which states facts part: affidavit, “(a) may and (b) matters named subsection affect any state, this in real estate in title to or interest the knowledge person having by any which is made the them in testify concerning competent or facts of may the in the land records be recorded open court, of . . . is situated. town in which the real estate may section provided for this The affidavit “(b) birth, death, sex, matters: following Age, relate to the heirship, names, family history, capacity, relationship, or adverse identity status, possession marital parties, of in the armed residence, service possession, use, adverse description conflicts of land forces, ambiguities happening any instruments, and the in recorded of may terminate an estate or event which condition interest. or shall for in this section Every provided
“(c) may description land, title to which include a of by affidavit, in the stated be and shall facts affected omitted.) quotation (Internal recording marks of the affidavit.” time of the Id., judgment. Id., appeal 633. was from that 632-33. No taken regarding plaintiffs’ sought action, mandamus a writ of In the McCue accepted Birmingham for record and had of documents that another set summary filed a motion Id. The defendants then had “unrecorded.” plaintiffs’ com- claiming multicount judgment the issue raised that by Judge previously judicata plaint had been decided in that it was res summary judgment was Id. The motion for in the first action. Rittenband agreed Judge with the McCue defendants who decided Rittenband estoppel judicata McCue barred the and that collateral the issue was res court, appealed Id., which consid- to this action. 633-34. only. Id., Although judicata recited this court of res 635. ered the issue cases, underlying analysis concerning it in the two the issue Rittenband’s alleged purposes determining in the McCue whether the issues did so for of analyze (d) judicata. § 7-24 nor consider This court did not action were res identity grantee in documents needed to be included of the whether reasons, v. presented pursuant McCue §to 47-12a. For these for record controlling App. 630, issues Birmingham, supra, in the case. before us person state the name appearing by the record to be the owner the land at recording the time The town clerk shall index the affidavit affidavit. in the name of that record owner.” (Emphasis added.) subject
In the affidavit, attested that trust, McCue was a trustee of the and that McCue had *12 died, among other See things. opinion. footnote of this Judge Domnarski concluded that the complied with the requirements of 47-12a in § that it related to the death of a trustee and an may event that terminate specifically an estate or interest, conveyance property.10 Moreover, the court found that the affidavit complied with 47-12a in (c) that it contained a descrip- § tion of the property affected and stated the names of persons appearing record to be the owners of the land at the time of the recording. The court also found that 47-12a require does not § the affidavit to identify grantee or property owners of the whose appear names do not on the land records. Moreover, the court found that had Birmingham depo- testified at a sition that the affidavit contained all of the information she needed to index it. The supports record the court’s and we findings agree with the court’s construction of 47-12a application to § the facts of this case. 7-24
Although
does not
§
denominate the contents of
an affidavit
facts,
it is relevant because it directs the
town clerk to record a
presented
document
that is
record on the town land records. General Statutes (Rev.
to
provides
7-24
2005)
(d)
part:
relevant
“Each town
clerk
also,
twenty-four
shall
within
hours of
receipt
any
for record of
such
instrument, enter
chronologi-
cal order
according
receipt
the time of its
. . . .”
(Emphasis
“Absent an
added.)
indication to the con-
trary, the legislature’s choice of
mandatory
term
argument
court,
At oral
in this
the defendants conceded that McCue’s
appropriate
death was
to record on the land records because it affected
property.
title to or interest in the
‘may’ indicates
permissive term
‘shall’ rather than the
v.
mandatory.” Bailey
directive is
that the legislative
592, 604, 783
(2001). Judge
A.2d 491
State,
App.
complied with
that the affidavit
Domnarski concluded
by law to record
required
Birmingham
47-12a and
Domnarski.
it. We
agree
the defen-
support
7-24 does not
Further, the text of §
owner of
name of the
position that the
dants’
General
in the affidavit.
property must be included
part:
in relevant
provides
7-24
(Rev.
2005) §
Statutes
proper
town
books
kept
shall be
each
There
“(b)
be
required by law to
all instruments
...
in which
clerk
by the town
length
be recorded at
recorded shall
record.
they are left for
thirty days from the time
within
any
instru-
shall,
receipt
The town clerk
“(c)
year
day, month,
write thereon the
record,
ment for
*13
it and
received
day when
town
and time of
clerk]
[the
but he
day;
and time of
shall bear the date
the record
for
any instrument
required to receive
shall not be
him in
paid
it is
recording
fee for
record unless the
record,
it for
.
when he has received
and,
advance . .
either of them
up
parties
to the
or
shall not deliver it
he
. . .
has been recorded.
until it
twenty-four
within
also,
shall
Each town clerk
“(d)
instrument,
any
such
receipt for record
hours of the
its
the time of
according to
in
order
chronological
enter
names of sufficient
thereon,
receipt
(1)
as endorsed
identification
to enable reasonable
parties thereto
instrument,
nature of the
instrument,
(2)
added.)
receipt.” (Emphasis
the time of its
(3)
addresses
clearly
unambiguously
Section 7-24
manner
and the
the town clerk
responsibilities of
presented
instrument
records an
in which he or she
requirements for
forth the
if 7-24
set
(d)
record. Even
§
that subsection
not,
it does
facts,
an affidavit
property
owner
provide
does not
be stated on the affidavit. “When
language used
a
statute is clear and
its
unambiguous,
meaning is not
subject to modification or
. . .
construction.
Absent
ambiguity, courts cannot read into
statutes
construc-
tion, provision
clearly
that are not
stated.” (Citation
omitted;
quotation
internal
Battersby
marks omitted.)
v. Battersby,
467, 470,
II The defendants’ second claim is that the affidavit does not comply with 47-12a because its ostensible purpose is to rather obfuscate, 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 the trial court. Judge clearly Domnarski stated in his memorandum of decision that he was “not ruling the legal consequences of upon the affidavit the title subject land. The only court determines here complies the affidavit with § and that it is [47]-12a required by law to be recorded. The effect, if any, of upon any future proceedings must be deter- mined those We proceedings.” agree with the trial court that the purpose filing affidavit, beyond the dictates 47-12a, did not have to be decided. Moreover, we are interpret loathe to the law to saddle town impossible clerks with the task of determining the intent or motive of party an filing *14 affidavit of fact. See General Statutes (Rev. 2005) 7-24. theory
“The
upon which a case is tried in the trial
court cannot be changed
review,
on
and an issue not
presented to
or considered
the trial court cannot be
raised for the first time on review.” Richter v. Childers,
2
App.
Conn.
315, 318,
The dissent claims that the “defendants were not opportunity evidence on their claim given came with unclean hands.” to court respectfully We Domnarski disagree. Although Judge did not make an explicit finding regard purpose claimed ostensible in the affida- filing vit, implicitly he considered the defendants’ claim. He parties history found that have had a of long “[t]hese portion The defendants used a considerable litigation. of their briefs the court of the difficulties informing towns, that the town . . . and other have encountered tax lien foreclosures individuals prosecuting against plaintiff. They or entities connected to the claim that plaintiffs attempt part to record this document a plan payment of to avoid the of taxes.”11 further the “thrust court found of defen- objection to the of the affidavit is recording dant[s’] identity that it will create confusion since the actual, present, owner of the land is not stated requirements affidavit. The defendants misread the only person the statute. The affidavit need state the ‘appearing by the record to be the ovmer the land.’ require The statute does not that the affidavit name appear owners who do not on the land records. It is responsibility not the of the town clerk to assess the possibility accuracy of future confusion or even the only statements contained the affidavit. The appendix appellate The defendants’ to their brief contains more than pages ongoing litigation 200 hundred documents related to the issue of parties. Judge between the Vacchelli in his stated memorandum of decision adopted Judge that he also reviewed those documents. He Domnarski’s ruling following Judge as the law of the case and concluded that Domnarski’s injustice. decision would not work a manifest *15 clearly
responsibility of the town clerk is stated 47- 12a (c): 'The town clerk shall index affidavit the name that record owner.’ The town clerk who July 28, 2005, received the affidavit on testified at a deposition later that the affidavit contained all of the properly information that she needed in order to index the document.” (Emphasis original.) trial agree party
We with the court that the intent of a an affidavit of facts is not relevant to whether filing complies with 47-12a and that it is not the responsibility clerk’s to determine the filer’s intent. For reason, this we conclude that the defendants’ claim respect purpose ostensible of the affidavit is not reviewable.
m The defendants’ third claim improp- is that the court erly issued a writ of mandamus to record the affidavit question on the land records because there was a purpose fact as to whether the ostensible filing payment affidavit was to avoid the of taxes and thus with unclean proceeding hands. We disagree.
The basis of the appears defendants’ claim to be that both Domnarski and Judge Judge Vacchelli acknowl- parties history had a edged lengthy litigation. Neither judge, however, history found that that of litiga- tion and the intent of the affidavit filing was relevant question of whether the affidavit was a document records, should be recorded on the town land part neither do we. See II opinion. of this The law of this case was determined Domn- arski when he ruled on the partial motion for summary judgment. Summary shall “judgment be ren- dered if any forthwith affidavits and other pleadings, proof submitted show that there is no genuine issue as
257 is entitled any moving party material fact and that the law.” Practice Book 17- as a matter of special the defendants asserted the 49. this case plaintiff’s petition hands to the for defense unclean We that the doctrine of a writ of mandamus. conclude to this case. applicable unclean hands is not expresses princi unclean hands “The doctrine of equitable relief, he must ple that where a seeks and hon fair, equitable show that his conduct has been controversy in . . . For particular est as to the issue. entitled to the benefit complainant a to show that he is he comes into court equity he must establish that . . . clean hands doctrine is with clean hands. parties but for the applied protection not for the applied ... It is . . . for the protection of the court. party . . . The seek justice. advancement of right equitable doctrine to bar to invoke the clean hands ing in opponent engaged must that his relief show wilful regard litigation.” with to the matter in misconduct quotation omitted.) internal marks added; (Emphasis App. Conn. D’Agostino, Co. v. 94 Emigrant Mortgage denied, 919, 901 793, 804, 896 A.2d cert. which the defendants A.2d 43 (2006).12 litigation plaintiff has come into court rely to demonstrate the but litigation, with unclean hands is not the due and concerning owing, taxes litigation Simsbury.13 town, but extraordinary remedy, available
“Mandamus is an ... purposes. limited It is limited circumstances 12 dirty, that he hands are but “What is material is not that the acquiring right .... A variation on this them in he now asserts dirties plaintiff is hands defense to cases in which the formula limits the clean inequitable.” very conduct, seeking from the to secure benefit Dobbs, quotation omitted.) omitted; D. Law of (Footnote marks internal p. (2d 1993) (2), § 2.4 95. Remedies Ed. legal to chal action We cannot conclude the mere commencement imposition property A lenge unclean hands. of real taxes constitutes party legal right to seek redress. has a
fundamental
that the issuance of the writ rests in the
discretion of the court
. . . exercised in accordance
principles
law. . .
recognized
. That discretion
will
only
be exercised in favor of
writ
issuing the
where
has a clear
to have
legal right
done that
which he seeks.
. . . The
proper only
writ is
when (1)
imposes
party
the law
on the
whom the
against
writ
duty
performance
would run a
of which is manda-
tory and not discretionary;
party
(2)
applying for
*17
the writ has a clear legal right
duty per-
to have the
formed; and
there is no
(3)
specific adequate
other
remedy.” (Internal quotation marks
omitted.) Miles
v.
Foley, supra,
“Even satisfaction of this
test
demanding
not,
does
however,
automatically
compel
issuance
requested writ of
...
pro-
mandamus.
deciding
priety of a
mandamus,
writ of
the trial court exercises
principles
discretion rooted in the
equity.”
(Citation
omitted.) Hennessey Bridgeport,
v.
Conn. 656, 659,
equitable
“In
whether the trial
determining
court abused its
discretion,
every
this court must make
pre-
reasonable
sumption
favor of its actions.” (Internal quotation
Industries,
Yanow Teal
marks
v.
Inc., omitted.)
579, 583,
Conn.
We therefore conclude that that the court partial summary motion for granted judg- fact, ment as there is no issue of material as genuine a matter of law. The facts on which the defendants special asserted their unclean hands defense do not implicate We also conclude that litigation. the trial court did not abuse its discretion in weighing equities in this matter. The statutes at issue demon- *18 have strate that the was entitled to his affidavit required recorded on the land records and clerk was to do so.
The is affirmed. judgment opinion SCHALLER, J., this concurred. majority’s I with the ALVORD, J., dissenting. agree General Statutes statutory interpretation (Rev. of with disagree, however, 7-24 and 47-12a.11 2005) (d) §§ summary majority’s partial judg- conclusion that the by Domnarski and the Judge ment rendered rendered Vacchelli on the second judgment Judge I complaint count of the should be affirmed. dissent 1Hereinafter, §§ all references to 7-24 and 47-12a are to the 2005 revision of the statutes. special defenses to the
because the defendants2raised plaintiffs mandamus action that were not addressed accordingly, I court, and, the trial would reverse the part judgments in the case to the trial court and remand proceedings. for further partial summary filed his motion for claiming that 11, 2011, on March the court only
needed to determine that the affidavit at issue complied provisions (d) §§ 7-24 with the and 47-12a grant requested in order to the mandamus relief in his complaint. During hearing before Domnarski plaintiff argued 6, 2011, on June that the extensive history parties litigation and the between defen- respect plaintiffs allegations dants’ improper filing motive for the affidavit were irrelevant request to his that the court order the town clerk to plaintiffs record the affidavit. The counsel stated: “It’s simply a matter of law . . . whether or not the docu- right ment has a to be recorded as a matter law. question question fact, There’s no it’s a of law.” special defendants, who had filed eleven plaintiffs complaint,3 disagreed defenses to the responded that it was the burden to show extraordinary remedy that he was entitled to argued: mandamus. The “I defendants’ counsel think scope inquiry beyond just goes looking at plaintiffs] [the the statutes that mentioned, counsel has history again, [§§] 7-24,because, 47-12a and there’s a attorney The defendant Donald R. Holtman was the town for the town Granby plaintiff, Silver, attempted of East when the Charles S. to record *19 appeal. Birmingham the affidavit at issue in this W. The defendant Elizabeth time, by was the town clerk at the and was succeeded the defendant Sheila Bailey. M. 3 special defenses, particularly Of the eleven two are relevant to the defen appeal. plaintiffs alleged purpose dants’ claims on The defendants clarify filing for the affidavit was “to obfuscate rather than title” and that “precluded seeking the from a writ of mandamus because of equitable doctrine of unclean hands.” remedy Also, pointed out, here. as Your Honor has extraordinary requested point that he has at this is an . . . remedy, remedy that’s the of mandamus. This remedy equitable powers invokes the of the court. And already plaintiffs] Your Honor’s observed that [the give you says counsel is unable to a case that that it appropriate request to decide a such an extraor- dinary remedy by way summary judgment aof motion. equitable power of the invoking
“Because other the court has to look at court, among things, comes into the court with whether or not the I Hence, clean hands. those materials that delivered to you already plaintiffs this and have morning given They relate to tactics that were utilized counsel. respect in interest4 with to their parties the same two Simsbury involved tax avoidance properties that . . we’re them to the giving motives and . the reason not, fact, are court is to show that hands, court with clean and that there’s coming into this avoidance the same ulterior motive here which is a tax plot.” (Emphasis added.) you’re “All so responded: right, talking
The court my hands, mind, clean but in the back of manda- about hands compel mus is to a ministerial act. How do clean your job?” with: You to do At the got involved get the court indicated that it hearing, conclusion of the would research the matter. filed a memoran- 3,2011, Judge
On Domnarski August plain- granted dum of decision in which the court summary partial (first tiffs motion for ordering second and issued a writ of mandamus counts) the East original the town clerk to record decision, Domnarski Granby land records. clear, ruling legal be this is not a stated: “To majority opinion. See footnote *20 consequences upon of the affidavit the title to the sub- ject only land. The court determines here that the affi- complies required davit and that it is § 47-12a effect, any, law to be recorded. The if of the upon any future must be determined in proceedings proceedings.” those (Emphasis added.) defendants moved for reargument, claiming that the court over- plaintiff looked the doctrine that a must come into equitable court with clean hands in order to invoke the powers of the court. Domnarski denied Judge motion to on reargue August 26, 2011, and the defen- dants filed a notice of their appeal pursuant intent to to Practice Book 61-6. §
Judge Vacchelli tried the remaining issues on Novem- 18, ber 7 and December 2012. In the second count complaint, in plaintiff, request addition to his mandamus, for a writ of a sought declaratory judgment that the former town provisions clerk violated the 7-24 refusing to record the affidavit at In issue. count, plaintiff third sought judgment attorney that the town authority did not have the order the town clerk to violate 7-24. Finally, count, fourth exemplary sought damages against the former town clerk attorney and the town “wilful, wanton and malicious conduct” in “denying plaintiff his rights to have the affidavit Judge recorded.” applied Vacchelli the “law respect of the case” with count, the second finding that Judge Domnarski had decided that exact issue when he had rendered the partial summary judgment. Accordingly, Judge Vac- chelli rendered judgment favor of the respect second count. With to the third and fourth counts of the complaint, Vacchelli ren- dered favor of the defendants. the court’s memorandum of decision, expressly the court stated: found for the “Having defendants on the issues not *21 by previous controlled in the rulings case, it is unneces- sary to address specific special defendants’ any or other pleaded argued.” or defenses defense (Emphasis added.)
In this appeal from partial summary judgment by rendered Judge Domnarski and the declaratory judg ment in favor of the plaintiff on the second count ren dered Judge VaccheUi, the claim, defendants inter aha, that the trial court improperly rendered the judg ments because there was “an issue of fact as to whether . plaintiff . . the was with proceeding clean hands and entitled accordingly equitable to the requested.” rehef I agree. The defendants never were given opportu nity present to evidence on their claim that came to court with hands, unclean as in their alleged tenth special defense and as argued at the time of oral argument plaintiffs on the motion partial summary for judgment.5 When Judge Vacchelli tried the remaining issues, applied he the law of the case and rendered a judgment favor of on the second count because Judge Domnarski had deter mined that the affidavit was entitled to be recorded in the land records as a matter of law. The defendants again were opportunity denied the prove special their defenses to the first and second counts of complaint subsequent at the trial before Judge VaccheUi. majority states that the trial court received evidence the form of opposition partial attachments to the defendants’ motion for summary judgment. evidentiary hearing There was no at the time the motion partial summary judgment argued counsel. The defendants did opportunity testimony documentary have a full and fair prove special evidence to their defense of unclean hands. Vacchelli simply adopted Judge ruling case, though Domnarski’s as the law of the even evidentiary hearing there had been no on the defendants’ claim of unclean hands, thereby perpetuating the error. majority agrees legal with the trial court that the effect of the 47- 12a proceeding. affidavit could be determined in another This mandamus action, however, equitable proceeding special is an in which the defense of yet unclean hands should have been addressed. There is no need for another proceeding parties. between these respect review to the issuance The standard of “In deciding mandamus well settled. of a writ of mandamus, a writ of trial court propriety principles equity. discretion rooted in the exercises court its determining ... whether the trial abused every pre- must this court make reasonable discretion, . . this sumption Nevertheless, in favor of its action. . if it has court will overturn lower court’s error or if it has misconceived the committed a clear . law. . . extraordinary remedy,
“A mandamus writ of is an *22 limited purposes. in limited circumstances for available . . . will be exercised in favor court’s [The discretion] only a of the writ the has clear issuing where have done that which he seeks. . . . The legal right to only imposes writ is when law the proper the on (1) duty a party against perfor- whom the writ would run the discretionary; mandatory mance of which is and the for has a clear party applying legal right the writ (2) duty there is performed; (3) to have the and no other remedy.” internal specific adequate omitted; (Citations Realty Associates, quotation omitted.) marks Jalowiec Commission, L.P. v. & Planning Zoning 408, A.2d 167 (2006). authority proposition that, even
“There is the princi- when a a clear legal right writ, has justice ples equity may against of and militate its issu- equitable ance. have discretion to consider Courts to issue writ. principles deciding when whether the prevent . . . The writ will be granted to [of mandamus] justice, promote injus- a failure but never to manifest of process may It be tice. is a remedial issued to remedy wrong, promote one, compel not to to the a discharge duty ought performed, a to be but of act compel performance not to the an which will of private or to public mischief, compel work a a compliance law in disregard with the strict letter the of spirit its aid palpable or in The relator fraud. must . . . equi- come into court with clean hands. This table discretion is exercised in instances wherein the party improper the writ has seeking engaged conduct or equitable otherwise has violated principles.” (Cita- omitted; emphasis quotation tions internal added; Id., marks 418-19. omitted.) The alleged, defendants case although they have never afforded opportunity pre- been to sent prove, evidence to motive for delay was filing impede payment affidavit to or municipal subject per- taxes real estate and property. sonal The plaintiff, affiant, as the averred that he and were Walter McCue the trustees the trust that subject held title to real East Granby. estate in plaintiff further averred that McCue died and the trust terminated. defendants have conceded that is in an foregoing appropriate information pursuant filed 47-12a. It paragraph six of the affidavit, however, that the claim defendants is meant Granby to obfuscate title and thwart East efforts affidavit, plain- collect taxes. In six of his paragraph *23 tiff 1998, averred that December the Trust exe- “[o]n cuted a real conveying estate, deed the aforesaid but to the that deed has not been undersigned’s knowledge plaintiff, recorded.” The who was the sole remaining conveyed trustee of the that the allegedly property, trust was, thereby would not disclose who the leav- grantee ing identity unknown the of the current title holder of property. purpose para- the What is the including for six in graph the affidavit? What reason could legitimate plaintiff the that possibly attesting he, have for as the conveyed the his trustee, property, followed refusal identify conveyed to to whom he the person the property? the the documents submitted with defendants’
opposition partial summary plaintiffs to the motion for a tax fore- copies there are from judgment, pleadings Simsbury. The property action involving closure plaintiff were and McCue defendants claimed Simsbury property, that owning of a trust the trustees conveyed prop- the trust the plaintiff the claimed that that failed to erty terminated, plaintiff and was and the Simsbury grantee in the land records the disclose notice of conveyance. plaintiff then filed a that had no Simsbury in the action that he claiming defense in the and was not liable for the taxes. property interest defendants, the filed the According pleadings Simsbury action, prior in the and in a tax fore- subject in East property action involving closure to Granby, pattern attempts of ongoing evidenced a delay sure, or of taxes. Tobe it would payment evade prove to be the defendants’ burden that be request for mandamus in the case should he because not have clean hands when denied he did Domnarski, in render- however, came into court. Judge partial summary that judgment, precluded ing and concluded that the affidavit met opportunity simply statutory had requirements accepted to be in the recording land records. summary judgment is axiomatic shall be ren-
It only any “if other pleadings, dered affidavits proof submitted that there is no issue as genuine show any party material fact and that the is entitled moving as a of law.” Practice Book 17- matter Simply put, of fact as 49. there was material issue to whether had clean hands to seek extraordinary I do not remedy Although of mandamus.6 that, strictly speaking, the affidavit conforms disagree majority that the doctrine of unclean hands is “conclude[s] *24 my applicability applicable position to this case.” that the of the doctrine It is by hands is a determination to be reached the trial court of unclean factual presented trial, not have after evidence is at and that defendants should prove special presenting from their been foreclosed such evidence to defense. provisions 7-24 47-12a, I do not §§ believe
that mandamus would
appropriate remedy
be an
if the
prove
defendants
plaintiffs purpose
in filing
the affidavit was to further a scheme of tax avoidance.
A writ of
“may
mandamus
be issued
remedy
a wrong,
promote
not to
one,
compel
duty
of a
discharge
which ought
performed,
to be
but
compel
not to
performance of an act which will work a public and
private mischief
.
.
.
(Internal quotation marks
omitted.) Jalowiec Realty Associates, L.P. v. Plan-
&ning
Zoning Commission, supra,
For these I reasons, partial would reverse the sum- mary by rendered judgment Judge Domnaxski and the judgment favor of the on the second count rendered Judge Vacchelli7 and remand the case to the trial court for further proceedings. I Accordingly, respectfully dissent.
SUNG GAYNOR ET AL. v. HI-TECH HOMES ET AL.
(AC 36302) Beach, Pellegrino, Alvord and Js. 7Judge applied Vacchelli should not have the law of the case doctrine in rendering partial summary
this case because the
“clearly
injustice
Domnarski was
erroneous and would work a manifest
if
quotation
(Internal
omitted.)
Gaming
followed . . .
marks
Lewis v.
Pol
icy Board,
693, 697,
(1993).