Lead Opinion
Opinion
The defendants, Donald R. Holtman, Elizabeth W. Birmingham, and Sheila M. Bailey,
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.
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
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.
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, Bar-rante 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, Holt-man 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.
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.
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 plaintiffs 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.
The parties tried counts two, three, and four of the amended complaint before Judge Vacchelh, 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,
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 Holt-man 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 plaintiffs 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
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 § l-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,
In construing a statute, a court presumes “that the legislature did not intend to enact meaningless provisions.[Statutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant . . . .” (Internal quotation marks omitted.) Housatonic Railroad Co. v. Commissioner of Revenue Services,
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
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.
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
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.
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,
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)
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,
II
The defendants’ second claim is that the 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 plaintiffs 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,
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 plaintiffs 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 plaintiffs attempt to record this document is part of a plan to avoid the payment of taxes.”
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.
m
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 Domn-arski when he ruled on the plaintiffs 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
“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 . . . exercised in accordance with recognized principles of law. . . . That 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.” (Internal quotation marks omitted.) Miles v. Foley, supra,
“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,
“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.,
The judgment is affirmed.
In this opinion SCHALLER, J., concurred.
Notes
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.
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.
Hereinafter, unless otherwise indicated, all references to §§ 7-24 and 47-12a are to the 2005 revision of the statute.
The affidavit stated:
“AFFIDAVIT OF FACTS
“Under Conn. Gen. Stat. Sec. 47-12a
“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.
“2.1 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.
“⅛/ Charles S. Silver
‘Charles S. Silver, Affiant’
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.”
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.”
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.
In issuing a declaratory judgment on count two of the amended complaint, Judge Vacchelli adopted Judge Domnarski’s reasoning on the plaintiffs 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.
The defendants rely on McCue v. Birmingham, supra,
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., 632. The trial corut, 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., 632-33. No appeal was taken from that judgment. Id., 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., 633-34. The judgment was appealed to this court, which considered the issue of res judicata only. Id., 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,
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.
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.
“What is material is not that the plaintiffs 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.
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.
Dissenting Opinion
dissenting. I agree with the majority’s statutory interpretation of General Statutes (Rev. to 2005) §§ 7-24 (d) and 47-12a.
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 plaintiffs improper motive for filing the affidavit were irrelevant to his request that the court order the town clerk to record the affidavit. The plaintiffs 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 plaintiffs complaint,
“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 plaintiffs counsel. They relate to tactics that were utilized by the same two parties in interest
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 plaintiffs 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 § 61-6.
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 Vac-chelli rendered judgment in favor of the plaintiff on the second count. With respect to the third and fourth counts of the plaintiffs 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.)
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,
“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.
The defendants in the present case alleged, although they have never been afforded the opportunity to present evidence to prove, that the plaintiffs 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 plaintiffs 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. Tobe sure, it would be the defendants’ burden to prove that the plaintiffs 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
For these reasons, I would reverse the partial summary judgment rendered by Judge Domnaxski and the declaratory judgment in favor of the plaintiff on the second count rendered by Judge Vacchelli
Hereinafter, all references to §§ 7-24 and 47-12a are to the 2005 revision of the statutes.
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.
Of the eleven special defenses, two are particularly relevant to the defendants’ claims on appeal. The defendants alleged that the plaintiffs 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.”
See footnote 2 of the majority opinion.
The majority states that the trial court received evidence in the form of attachments to the defendants’ opposition to the plaintiffs 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.
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.
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 Policy Board,