source: Caselaw Access Project

author: KELLER, J. BORDEN, J.,

license: Public Domain

text:
    SIDNEY F. MANNING v. JEFFREY L. FELTMAN ET AL.
    (AC 35482)
    DiPentima, C. J., and Keller and Borden, Js.

      Argued December 4, 2013
    officially released April 8, 2014

      Scott M. Schwartz, for the appellant (jplaintiff).

      Robert J. Piscitelli, for the appellees (defendant George El-Achkar et al.).
   Opinion

KELLER, J.

The plaintiff in this foreclosure action, Sidney F. Manning, appeals from the judgment of dismissal rendered by the trial court in favor of the defendants Georges El-Achkar and Homeowners Finance Company (Homeowners). The court concluded that it lacked subject matter jurisdiction over the foreclosure action after determining that the plaintiff lacked standing because he failed to list the note and mortgage deed at issue in his foreclosure complaint as an asset in his 1995 bankruptcy petition. The court ruled that the note and mortgage remain the property of the bankruptcy estate, not the plaintiff. On appeal, the plaintiff claims that the court erred in granting the defendants’ motion to dismiss because (1) the court should have abstained from deciding bankruptcy law issues, stayed the case, and referred such issues to the Bankruptcy Court; (2) the defendants lacked standing to raise bankruptcy issues; and (3) the court should have substituted the bankruptcy trustee as a party plaintiff. We affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to this appeal. On January 31, 2012, the plaintiff filed this foreclosure action. In his complaint, he alleged that by a mortgage note dated January 9, 1987, Jeffrey L. Feltman, Gary Bengston, Ricky L. Bengston, Ronald O. Price, and Theresa A. Price promised to pay him the principal sum of $35,000. By mortgage deed of that same date, Feltman, to secure repayment of the note, mortgaged to the plaintiff a certain piece or parcel of land owned by Feltman known as 221 Phoenix Street in Vernon. This mortgage was recorded on January 21,1987, in the town land records. The plaintiff further alleged that the parties at issue had defaulted on the payments on the note and he was exercising his option to accelerate the entire balance due, to declare the note to be immediately due and payable with interest accrued from January 9, 1987, plus attorney’s fees and costs of collection, all as provided for in the note, and to foreclose on the mortgage securing the note. The plaintiff also alleged that Homeowners had an interest in the proceedings as the holder of two mortgages on the property, one in the amount of $39,000, dated April 27, 2011, and the other in the amount of $39,900, dated June 27,2011. Both mortgages are recorded in the town land records. The current owner of the property is alleged to be El-Achkar.

On May 9, 2012, El-Achkar filed an answer, five special defenses, and a counterclaim to the plaintiffs complaint. The counterclaim sought to quiet title to the property at 221 Phoenix Street in Vernon. On August 21, 2012, the plaintiff filed an answer and special defenses to El-Achkar’s counterclaim and a reply to his special defenses. El-Achkar filed a reply to the plaintiffs special defenses on October 1,2012. Homeowners filed an answer and five special defenses identical to those of El-Achkar on October 24, 2012.

On January 29, 2013, the defendants jointly filed a motion to dismiss. Their motion claimed that the court lacked subject matter jurisdiction due to the plaintiffs lack of standing because the mortgage and note remain assets of the plaintiffs chapter 7 bankruptcy estate as a result of the plaintiffs failure to list the note and mortgage as an asset in his bankruptcy petition. The plaintiff filed an objection to the motion on February 19, 2013. In his objection, the plaintiff stated: “In 1995, the plaintiff filed a petition for relief in bankruptcy under chapter 7 [of the United States Bankruptcy Code]. At the time, he was represented [by counsel]. Attorney Barbara Hankin was appointed trustee and presided over the bankruptcy case. The case was closed as a no asset case in 1997.” The plaintiff further asserted: “[A]t the time of [his bankruptcy] filing, his business bankruptcy counsel advised him that he did not have to list assets such as this mortgage that had no value at the time of filing [bankruptcy]. In the case of the instant mortgage deed, there were numerous hens ahead of the plaintiffs mortgage on the property, and consequently there was no equity for the position of the mortgage. ... At the time that the mortgage was made, there were [fifteen] encumbrances on the property ahead of the subject mortgage. Eventually over almost two decades, these prior hens were paid off, and now there is equity in the premises for this mortgage. At the time of the bankruptcy case, there was no equity for the estate. Assumedly, the reason for the advice of bankruptcy counsel was that the trustee would have abandoned the property for lack of equity for creditors. The value of bankruptcy claims and assets is done as of the date of filing.” (Citations omitted.) The plaintiff also argued that the motion to dismiss was a delay tactic on the part of the defendants, and that he should be considered the record owner, notwithstanding that the defendants sought to force him to reopen a long closed bankruptcy case. He further suggested that “in the event that the court believes that the plaintiff does not presently have standing, both the equities and judicial economy compel holding this action in abeyance until the plaintiff can reopen the 1995 bankruptcy case and obtain a waiver of the then worthless asset.”

On February 19, 2013, the court, Sferrazza, J., issued a decision granting the defendants’ motion to dismiss. The court, noting its familiarity with the issue of standing raised by the defendants, ruled: “There is no issue that there was a chapter 7 bankruptcy filed. There is no issue that [the mortgage] wasn’t listed or . . . abandoned by the bankruptcy trustee so that the plaintiff could bring this action.

“When the plaintiff went into bankruptcy, all of [his] assets, including a property interest in a [chose in] action became the property of the bankruptcy [estate] .... And if a debtor fails to list a claim including a [chose in] action, as an asset when he files [for] bankruptcy relief, that asset remains a part of the bankruptcy estate when the case is closed by virtue of [11 U.S.C. § 554 (d) (2012)]. And a debtor who fails to list a claim cannot pursue the claim for his own benefit unless the trustee has abandoned it. . . . So, consequently, the plaintiff in this case lacks standing to [foreclose] this mortgage.” (Citation omitted; footnote added.) This appeal followed.

“The standard of review for a court’s decision on a motion to dismiss [under Practice Book § 10-31 (a) (1)] is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [O]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. ... In undertaking this review, we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Citations omitted; internal quotation marks omitted.) Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011). “A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.” (Internal quotation marks omitted.) Stevenson v. Peerless Industries, Inc., 72 Conn. App. 601, 606, 806 A.2d 567 (2002).

“A motion to dismiss tests . . . whether, on the face of the record, the court is without jurisdiction.” (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006). “A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.” (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008).

“The issue of standing implicates [the] court’s subject matter jurisdiction. . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue . . . . ” (Citations omitted; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Orange, 256 Conn. 557, 567-68, 775 A.2d 284 (2001).

“Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action.” Practice Book § 10-33. Once the issue of subject matter jurisdiction has been raised, the court must resolve it prior to proceeding further with the case. See Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996). “Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction.” (Internal quotation marks omitted.) Baldwin Piano & Organ Co. v. Blake, 186 Conn. 295, 297, 441 A.2d 183 (1982).

“If a party is found to lack standing, the court is without subject matter jurisdiction to hear the cause. . . . Because standing implicates the court’s subject matter jurisdiction, the plaintiff ultimately bears the burden of establishing standing. . . . Furthermore, [a] trial court’s determination that it lacks subject matter jurisdiction because of a plaintiffs lack of standing is a conclusion of law that is subject to plenary review on appeal. . . . We conduct that plenary review, however, in light of the trial court’s findings of fact, which we will not overturn unless they are clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Seymour v. Region One Board of Education, 274 Conn. 92, 104, 874 A.2d 742, cert. denied, 546 U.S. 1016, 126 S. Ct. 659, 163 L. Ed. 2d 526 (2005).

I

The plaintiffs first claim is that the court, rather than dismissing his foreclosure complaint, should have “abstained” from deciding federal bankruptcy law issues and referred such issues to the Bankruptcy Court where the plaintiffs case was pending in 1995. The plaintiff does not dispute that when he filed for chapter 7 bankruptcy in 1995, on the advice of his bankruptcy counsel, he never listed the note or mortgage as assets. It is the plaintiffs undisputed failure to schedule the mortgage as an asset when he filed for bankruptcy that is the crux of the standing issue, because the failure of the plaintiff to list the note and mortgage on his bankruptcy schedules resulted in the subject property remaining the property of the bankruptcy estate rather than the plaintiff.

“The debtor must file a formal statement with the Bankruptcy Court including a schedule of his or her assets and liabilities. See 11 U.S.C. § 521 (a) (1) (B) (i). . . . Property that is scheduled pursuant to 11 U.S.C. § 521 (1), but not administered by the plan, is abandoned to the debtor by operation of law at the close of the bankruptcy case. See 11 U.S.C § 544 (c). By contrast, property that is not formally scheduled is not abandoned and therefore remains part of the estate. See 11 U.S.C. § 554 (d) .... Courts have held that because an unscheduled claim remains the property of the bankruptcy estate, the debtor lacks standing to pursue the claim after emerging from bankruptcy, and the claims must be dismissed.” (Citations omitted; internal quotation marks omitted.) Assn. Resources, Inc. v. Wall, 298 Conn. 145, 165, 2 A.3d 873 (2010).

Bankruptcy courts have held that unscheduled notes or mortgages remain the property of the bankruptcy estate even after the case is closed. See In re Kane, United States Bankruptcy Court, Docket No. 09-12470, (Bankr. N.D. Cal. July 12,2010) (rejecting debtor’s argument that estate had abandoned note by operation of law when note never properly scheduled so trustee could make knowing and intelligent decision as to whether to administer it); In re Orth, 251 B.R. 333, 334-35 (Bankr. W.D. Mich. 2000) (bankruptcy trustee entitled to proceeds toward satisfaction of note and mortgage granted to debtors upon sale of property when debtors failed to list note and mortgage as assets in their bankruptcy filing); In re Harris, 32 B.R. 125, 126-27 (Bankr. S.D. Fla. 1983) (debtors who filed for bankruptcy but failed to schedule their interest in two mortgages upon belief they lacked appreciable value not entitled to proceeds upon discharge of two mortgages after bankruptcy case concluded; court awarded proceeds to bankruptcy estate).

The plaintiff also does not have standing to pursue causes of action that are the rightful property of a bankruptcy estate. See Channer v. Loan Care Servicing Center, Inc., United States District Court, Docket No. 3:11-cv-135 (SRU) (D. Conn. November 1, 2011) (debtor or former debtor does not have standing to pursue claims that constitute property of bankruptcy estate); Tilley v. Anixter, Inc., supra, 332 B.R. 507-511 (plaintiff lacked standing to pursue intentional infliction emotional distress claim because he failed to schedule it in bankruptcy and claim remained estate property).

If the plaintiff lacks standing, the court must dismiss the action; it has no jurisdiction to take any further action, such as ordering a stay of the foreclosure proceeding to seek the advice of the federal bankruptcy court, a procedure for which the plaintiff presents no authority given the fact that his bankruptcy case was closed years ago. The case he does cite, In re Crocker, 362 B.R. 49 (B.A.P. 1st Cir. 2007), is distinguishable from the present case in that it involved a debtor who did file a motion to reopen his bankruptcy case after it had been closed to resolve a question of dischargeability. In his appellate brief, the plaintiff spends considerable time speculating as to the possible consequences of pursuing a motion to reopen his bankruptcy case. He admits in his brief the following: “It is apparent from review of the relevant bankruptcy law concerning motions to reopen a case based upon omitted . . . assets that the bankruptcy court could take, in its discretion, various actions concerning the motion, and different results could obtain, based upon the position of the [bankruptcy] court and the trustee.” Thus, he concedes that the determination must occur in the bankruptcy court venue, but never explains why he has failed to pursue such a remedy, despite having had ample time in which to do so. “[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.” (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213-14, 982 A.2d 1053 (2009). Because the plaintiff bears the burden of establishing standing, the burden is on him to move to reopen the bankruptcy case to resolve the impasse created by § 554 (d) of the Bankruptcy Code. Unless the Bankruptcy Court orders otherwise, property of the estate that is not abandoned and not administered in a case remains the property of the estate.

As noted by our Supreme Court, “the integrity of the bankruptcy system depends on full and honest disclosure by debtors of all their assets. The courts will not permit a debtor to obtain relief from the [BJankruptcy [C]ourt by representing that no claims exist and then subsequently to assert those claims for his own benefit in a separate proceeding. The interests of both the creditors, who plan their action in the bankruptcy proceeding on the basis of information supplied in the disclosure statements, and the [B]ankruptcy [C]ourt, which must decide whether to approve the plan of reorganization on the same basis are impaired when the disclosure provided by the debtor is incomplete.” (Internal quotation marks omitted.) Assn. Resources, Inc. v. Wall, supra, 298 Conn. 170-71.

The undisputed facts before the trial court readily support the court’s determination that the plaintiff lacked standing to bring the present action. Accordingly, we conclude that the court properly determined that it lacked subject matter jurisdiction and dismissed the plaintiffs complaint. The plaintiff is unable to demonstrate, in the absence of jurisdiction, that the immediate dismissal of the action was improper or that any further movement by the court was warranted.

II

In his second claim, the plaintiff argues that the defendants lacked standing to raise any “bankruptcy issues” in their motion to dismiss because “[t]he only interest they have at all is that the property that they have an interest in is subject to [the plaintiffs] preexisting mortgage.” This claim is unsupported by reference to any legal authority and warrants only a brief discussion.

Both defendants are alleged in the plaintiffs complaint to have a title or interest in the property that a foreclosure judgment will affect. Any party, or the court itself, can raise the issue of subject matter jurisdiction at any time. It matters not how or by whom the question of jurisdiction is raised. Woodmont Assn. v. Milford, 85 Conn. 517, 524, 84 A. 307 (1912). Because subject matter jurisdiction cannot be conferred by waiver or consent; Samson v. Bergin, 138 Conn. 306, 309, 84 A.2d 273 (1951); the court must address the question, suo motu if necessary, even in the absence of a motion. Felletter v. Thompson, 133 Conn. 277, 280, 50 A.2d 81 (1946). “When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue and not whether the controversy is otherwise justiciable, or whether, on the merits, the plaintiff has a legally protected interest that the defendant’s actions have invaded.” (Internal quotation marks omitted.) Steeneck v. University of Bridgeport, 235 Conn. 572, 579, 668 A.2d 688 (1995). Thus, we are not persuaded that the defendants lacked the ability to file a motion to dismiss. See, e.g., Channer v. Loan Care Servicing Center, Inc., supra, United States District Court, Docket No. 3:11-cv-135 (SRV).

Ill

In his third claim, the plaintiff challenges the court’s judgment on the ground that, for the defendants, rather than filing a motion to dismiss, “a more appropriate motion would have been a motion to substitute [a] party plaintiff’ that was selected by the Bankruptcy Court. Like the plaintiffs second claim, this claim is summarily briefed, is unsupported by any authority, and warrants only a brief analysis.

Neither the defendants nor the court were obligated to attempt to establish the plaintiffs standing by seeking to move to substitute a more appropriate plaintiff. It was incumbent upon the plaintiff to seek to have a proper party plaintiff substituted for him under General Statutes § 52-109. See DiLieto v. County Obstetrics & Gynecology Group, Superior Court, judicial district of Waterbury, Docket No. X02-CV-97-0150435-S (January 27, 2000) (26 Conn. L. Rptr. 345) (plaintiffs’ and bankruptcy trustee’s pending motion to add or substitute trustee as party plaintiff could be granted under authority of § 52-109, and therefore defendants’ motions to dismiss for lack of subject matter jurisdiction properly were denied). Because the plaintiff made no effort to substitute the bankruptcy trustee prior to the court’s dismissal, he is now obligated to reopen his bankruptcy case to properly administer the note and mortgage as assets, and it will then be up to a trustee whether to abandon these assets. Only if such assets are abandoned can the plaintiff proceed with confidence that the proceeds from any foreclosure he pursues in the future, if successful, are rightfully his.

The judgment is affirmed.

In this opinion DiPENTIMA, C. J., concurred.

BORDEN, J.,

concurring. I agree with the reasoning of the majority opinion and its holding, namely, that the plaintiff, Sidney F. Manning, has not established standing to bring this foreclosure action, and, therefore, the trial court had no subject matter jurisdiction to proceed further in the action, even to order the parties to return to the Bankruptcy Court to resolve the question of the ownership of the mortgage in question. I write briefly and separately, however, to underscore the anomalous and economically wasteful posture in which this leaves the property in question.

As a result of this conclusion, the property in question is, insofar as the real estate records are concerned, burdened by a mortgage that the plaintiff cannot foreclose, and the defendants, who own the property, cannot get released without some farther action of the Bankruptcy Court or its trustee. Thus, the property is essentially not saleable. Our decision makes clear that the plaintiff cannot foreclose on the mortgage. And the defendants have no way to clear the title to the property of the mortgage that the plaintiff claims to own, because either the mortgage is still owned by the trustee in bankruptcy or is subject to being abandoned by that trustee.

Thus, it behooves all of the parties to hie themselves to the Bankruptcy Court. There they should implore the court to reopen the bankruptcy case so as either to lodge ownership of the mortgage in the trustee (or a duly appointed successor trustee), or to permit that trustee to abandon any interest in the mortgage, which should have the effect of lodging ownership of the mortgage in the plaintiff. Otherwise, the property in question will remain indefinitely a piece of real estate without capability of liquidation. This is hardly a state of affairs that commands respect.

       El-Achkar is the current owner of the property sought to be foreclosed. Homeowners claims an interest in the property by virtue of two mortgages it holds on the property. The other named defendants are Jeffrey L. Feltman (the former owner of the property), Gary Bengston, Ricky L. Bengston, Town and Country Veterinary Associates, P.C., the Department of Revenue Services, the United States Internal Revenue Service, and Ford Motor Credit Company. Connecticut Attorneys Title Insurance Company filed an appearance as an entity with a legal interest in the cause on appeal. Feltman and the Bengstons were signatories on a note promising to pay the plaintiff the sum of $36,000, which was secured by a mortgage from Feltman to the plaintiff. The complaint alleges that all the other defendants hold subsequent interests in the property being foreclosed. None of these other defendants are involved in this appeal. In this opinion, we refer to El-Achkar and Homeowners collectively as the defendants, and individually by name where appropriate.

       Ronald O. Price and Theresa A. Price, originally named as defendants, were removed as party defendants from the case.

       There is nothing in the record that establishes the plaintiffs assertion that the mortgage had no value at the time he filed for bankruptcy. The record reflects that, at the time of the filing, the plaintiff never presented an accurate determination as to the unpaid balances of the prior liens or the fair market value of the property.

       Although the record does not contain a written memorandum of decision or a signed transcript regarding the court’s decision granting the motion to dismiss, the plaintiff has filed an unsigned transcript of the court’s decision. Although Practice Book § 64-1 (a) provides that a transcript of an oral memorandum of decision “shall be signed by the trial judge,” we have deemed the record adequate for review despite the lack of a signature on the transcript where, as here, the unsigned transcript “contains a sufficiently detailed basis for the trial court’s decision.” Thompson Garden West Condominium Assn., Inc. v. Masto, 140 Conn. App. 271, 274 n.2, 59 A.3d 276 (2013). On the last page of the transcript, the court indicated that its ruling “be transcribed under Practice Book § 64-1 for purposes of appeal,” signaling its intention that the transcript constitutes its oral decision in this matter.

       On appeal, the plaintiff does not dispute these factual findings by the court.

       The plaintiff does not suggest any facts that would excuse his failure to list the note and mortgage on the bankruptcy schedule of assets, such as that his interest in the note and mortgage did not accrue before the close of his bankruptcy estate, that he scheduled the claim on his bankruptcy petition and the trustee failed to administer it before the close of the estate, or that the bankruptcy trustee gave notice to his creditors or held a hearing with regard to the mortgage and the note. See Tilley v. Anixter, Inc., 332 B.R. 501, 507-508 (Bankr. D. Conn. 2005).

         Section 554 (d) of title 11 of the United States Code provides: “Unless the court orders otherwise, property of the estate that is not abandoned under this section and that is not administered in the case remains property of the estate.”

       Section 350 (a) of title 11 of the United States Code provides: “After an estate is fully administered and the court has discharged the trustee, the court shall close the case.” Rule 5010 of the Federal Rules of Bankruptcy Procedure provides in relevant part: “A case may be reopened on motion of the debtor or other party in interest pursuant to § 360 (b) of the [Bankruptcy] Code. In a chapter 7 . . . case a trustee shall not be appointed by the United States trustee unless the court determines that a trustee is necessary to protect the interests of creditors and the debtor or to insure efficient administration of the case.” Accordingly, because the plaintiffs bankruptcy case is closed, there is no longer a designated trustee who could be substituted as a party plaintiff, and there may not be one appointed even if the case is reopened.

       Whether either of the defendants could move to reopen the bankruptcy case is doubtful. Although 11 U.S.C. § 350 (b) provides that “[a] case may be reopened in the court in which such case was closed to administer assets, to accord relief to the debtor, or for other cause,” and Rule 5010 of the Federal Rules of Bankruptcy Procedure gives the debtor or any other party in interest the right to file a motion to reopen, parties who do not fall into the category of debtor or creditor may not have standing to do so. 3 Collier, Bankruptcy (A. Resnick & H. Sommer eds., 16th Ed. 2011) § 350-03 [8], pp. 350-15 through 350-16; see also In re Alpex Computer Corp., 71 F.3d 353, 356-58 (10th Cir. 1995) (corporation allegedly owing money to debtor did not have standing to reopen case, even if corporation might be affected by how trustee interpreted plan as permitting litigation against it).

       Practice Book § 9-18 provides: “The judicial authority may determine the controversy as between the parties before it, if it can do so without prejudice to the right of others; but, if a complete determination cannot be had without the presence of other parties, the judicial authority may direct that they be brought in. If a person not a party has an interest or title which the judgment will affect, the judicial authority, on its motion, shall direct that person to be made a party.”

       We assume that, in pursuing the motion to dismiss, El-Achkar duly considered the effect, if any, that the lack of a decision from the Bankruptcy Court or trustee may have on the pursuit of his counterclaim to quiet title to the subject property.

       See footnote 1 of the majority opinion.


author: LAVINE, J. ALVORD, J.,

text:
    CHARLES S. SILVER ET AL. v. DONALD R. HOLTMAN ET AL.
    (AC 35427)
    Lavine, Alvord and Schaller, Js.

      Argued November 19, 2013
    officially released April 8, 2014

      Ralph G. Eddy, for the appellants (defendants).

      Edward W. Gasser, with whom, on the brief, was Amanda J. Morris, for the appellee (named plaintiff).
   Opinion

LAVINE, J.

The defendants, Donald R. Holtman, Elizabeth W. Birmingham, and Sheila M. Bailey, 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. 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. 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. 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. 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, 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.

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. 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 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 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 plaintiffs 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 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, 186 Conn. 86, 99, 439 A.2d 1066 (1982) (court may treat prior interlocutory ruling as law of case). Judge Vac-chelh found that Judge Domnarski’s decision was not clearly erroneous and concluded that no manifest injustice would result from following it. Judge Vac-chelh 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 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 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. 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 § 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, 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.[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, 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. 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. 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 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, 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 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.”

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 ovmer 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.

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 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). 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.

“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, 253 Conn. 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.) Northeast 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 Vac-chelli found that Judge Domnarskfis 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 Domnar-ski 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 plaintiffs 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.

In this opinion SCHALLER, J., concurred.

ALVORD, J.,

dissenting. I agree with the majority’s statutory interpretation of General Statutes (Rev. to 2005) §§ 7-24 (d) and 47-12a.1 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 defendants raised special defenses to the plaintiffs 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 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, disagreed and responded that it was the plaintiffs 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 plaintiffs] 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 plaintiffs] 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 plaintiffs counsel. They relate to tactics that were utilized by the same two parties in interest 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 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.)

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 VaccheUi, the defendants claim, inter aha, 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 rehef 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 plaintiffs motion for partial summary judgment. 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 VaccheUi.

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 167 (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., 418-19.

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 whether the plaintiff had clean hands to seek the extraordinary remedy of mandamus. 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 plaintiffs 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. 419.

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 and remand the case to the trial court for further proceedings. Accordingly, I respectfully dissent.

       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, 88 Conn. App. 630, to support then 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., 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., 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, 88 Conn. App. 630, is not controlling of the issues before us in the present case.

       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.

       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, 224 Conn. 693, 697, 620 A.2d 780 (1993).