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*********************************************** 
U.S. BANK NATIONAL ASSN. v. EICHTEN—CONCURRENCE

ALVORD, J., concurring in part and dissenting in part.

I join part II of the majority opinion. With respect to

part I, I agree with the majority that the trial court

improperly rendered summary judgment against the

defendant Karin C. Eichten as to liability on the foreclosure complaint. I write separately, however, because I

disagree with the majority’s analysis and conclusions

regarding the defendant’s fifth and sixth special

defenses, asserting unclean hands and breach of contract, respectively.1

I would conclude that the defendant

has demonstrated a genuine issue of material fact with

respect to her breach of contract special defense, but

has failed to demonstrate a genuine issue of material

fact with respect to her unclean hands special defense.

I

With respect to the defendant’s special defense of

unclean hands, I disagree with the majority that the

trial ‘‘court erred in concluding that there was no genuine issue of material fact as to whether the defendant

can prevail on her special defense of unclean hands.’’

The principle on which the case is decided is important,

and will operate widely, so I feel that it is my duty to

show the grounds upon which I differ. I would conclude

that the defendant failed to meet her evidentiary burden

to demonstrate a genuine issue of material fact that the

doctrine of unclean hands should be invoked.

I first note that ‘‘[a]pplication of the doctrine of

unclean hands rests within the sound discretion of the

trial court. . . . The exercise of [such] equitable

authority . . . is subject only to limited review on

appeal. . . . The only issue on appeal is whether the

trial court has acted unreasonably and in clear abuse

of its discretion. . . . In determining whether the trial

court abused its discretion, this court must make every

reasonable presumption in favor of [the trial court’s]

action. . . . Whether the trial court properly interpreted the doctrine of unclean hands, however, is a legal

question distinct from the trial court’s discretionary

decision whether to apply it.’’ (Internal quotation marks

omitted.) Ulster Savings Bank v. 28 Brynwood Lane,

Ltd., 134 Conn. App. 699, 711, 41 A.3d 1077 (2012); see

also American Heritage Agency, Inc. v. Gelinas, 62

Conn. App. 711, 722, 774 A.2d 220 (‘‘[t]he trial court

enjoys broad discretion in determining whether the promotion of public policy and the preservation of the

courts’ integrity dictate that the clean hands doctrine

be invoked’’ [internal quotation marks omitted]), cert.

denied, 257 Conn. 903, 777 A.2d 192 (2001).

As the majority sets forth, it is the party seeking to

invoke the doctrine of unclean hands who has the burden of demonstrating that ‘‘his opponent engaged in
wilful misconduct with regard to the matter in litigation.’’ (Internal quotation marks omitted.) American

Heritage Agency, Inc. v. Gelinas, supra, 62 Conn. App.

722. The majority further acknowledges that ‘‘[w]ilful

misconduct has been defined as intentional conduct

designed to injure for which there is no just cause or

excuse. . . . [Its] characteristic element is the design

to injure either actually entertained or to be implied

from the conduct and circumstances. . . . Not only the

action producing the injury but the resulting injury also

must be intentional.’’ (Internal quotation marks omitted.) 19 Perry Street, LLC v. Unionville Water Co.,

294 Conn. 611, 630–31 n.10, 987 A.3d 1009 (2010). Our

appellate courts previously have recognized that ‘‘as a

general matter, summary judgment is considered inappropriate when an individual’s intent and state of mind

are implicated. . . . At the same time, even with

respect to questions of . . . intent . . . the party

opposing summary judgment must present a factual

predicate for his argument in order to raise a genuine

issue of fact. . . . When a party opposing a motion for

summary judgment has failed to provide an evidentiary

foundation to demonstrate the existence of a genuine

issue of material fact concerning intent, summary judgment is appropriate.’’ (Citations omitted; internal quotation marks omitted.) Tuccio Development, Inc. v.

Neumann, 114 Conn. App. 123, 130, 968 A.2d 956 (2009);

see also Wadia Enterprises, Inc. v. Hirschfeld, 224

Conn. 240, 250, 618 A.2d 506 (1992). ‘‘The summary

judgment rule would be rendered sterile . . . if the

mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion.’’

(Internal quotation marks omitted.) Voris v. Middlesex

Mutual Assurance Co., 297 Conn. 589, 603, 999 A.2d

741 (2010).

Applying these legal principles, I would conclude that

the defendant has failed to provide an evidentiary foundation to demonstrate the existence of a genuine issue

of material fact that the plaintiff, U.S. Bank National

Association, as trustee, ‘‘engaged in willful misconduct

with regard to the matter in litigation’’; American Heritage Agency, Inc. v. Gelinas, supra, 62 Conn. App. 722;

such that ‘‘the promotion of public policy and the preservation of the courts’ integrity dictate that the clean

hands doctrine be invoked.’’ (Internal quotation marks

omitted.) Monetary Funding Group, Inc. v. Pluchino,

87 Conn. App. 401, 407, 867 A.2d 841 (2005). In support

of its conclusion that the defendant raised a genuine

issue of material fact as to whether the plaintiff engaged

in wilful misconduct, the majority relies on (1) the

‘‘plaintiff’s failure to establish that it adhered to the

[United States] Treasury Department’s directives,

which appear to encourage that final determinations

on whether to offer the borrower a loan modification

be made before the end of the [trial period plan (TPP)]’’

and (2) an unexplained notation in the plaintiff’s records
that would appear to show that the defendant’s loan

modification was internally approved. The evidence

submitted, however, is devoid of any basis from which

a fact finder could infer that the plaintiff engaged in

intentional conduct designed to injure the defendant. I

do not believe that the identification of an inconsistent

notation of the status of the defendant’s application is

sufficient to demonstrate a genuine issue of material

fact as to wilful misconduct, particularly where wilful

misconduct requires that the action producing the

injury and the resulting injury be intentional. I would

therefore conclude that the trial court properly rejected

the defendant’s unclean hands special defense.

II

I further disagree with the majority that the defendant’s breach of contract special defense is legally insufficient. The majority rests this conclusion on its

determination that the defendant failed to allege that

she maintained her financial eligibility for a loan modification under the federal Home Affordable Modification

Program (HAMP). Thus, according to the majority, the

defendant failed to allege full performance, rendering

the special defense legally insufficient. I begin by noting

that I do not believe this court should analyze the sufficiency of the defendant’s pleading for the first time on

appeal because the parties have not briefed the sufficiency of the pleadings, but instead argue only as to

whether a genuine issue of material fact exists. I would

decide the defendant’s appellate claim as briefed by

the parties and would conclude that the defendant has

raised a genuine issue of material fact as to her breach

of contract special defense.

A review of the record reveals that the plaintiff was

fully apprised of the issues implicated by the defendant’s breach of contract special defense, including the

defendant’s continued eligibility for HAMP. ‘‘The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of

the issues to be tried, so that basic issues are not concealed . . . .’’ (Internal quotation marks omitted.)

Noonan v. Noonan, 122 Conn. App. 184, 190, 998 A.2d

231, cert. denied, 298 Conn. 928, 5 A.3d 490 (2010).

Indeed, in its memorandum of law in support of its

motion for summary judgment, the plaintiff argued, on

the basis of the documentary evidence before the court,

that the defendant ‘‘did not qualify for the permanent

HAMP modification offered in the trial plan.’’2 The trial

court concluded that the undisputed facts showed that

the defendant was obligated to pay the monthly TPP

amount at a minimum and, consequently, there was no

new consideration to support the modification of an

agreement. We expressly reject that finding in part II of

the majority opinion. In its appellate brief, the plaintiff

argues, as it did before the trial court, that the defendant’s failure to maintain her eligibility for HAMP
‘‘resulted in the nonissuance of a permanent modification.’’ The plaintiff’s arguments before this court and

the trial court demonstrate that it was apprised that

the defendant’s continued eligibility for HAMP was an

issue raised by the defendant’s breach of contract special defense.

Moreover, the plaintiff, briefing the breach of contract special defense together with the breach of contract counterclaim, does not argue that the special

defense is legally insufficient in contrast to the counterclaim. The majority sua sponte conducts an independent review of the sufficiency of the allegations

contained in her special defense and finds such allegations legally insufficient due to a failure to allege ‘‘full

performance . . . .’’ I would address, instead, the issue

as briefed, i.e., whether the defendant has carried her

burden of demonstrating a genuine issue of material fact

as to whether she continued to meet HAMP eligibility

requirements. I would reach the conclusion that we

ultimately reach in part II of the majority opinion, which

is that she has demonstrated such a genuine issue of

material fact.

For these reasons, I respectfully concur in part and

dissent in part.

1 Because we determine that the trial court improperly rendered summary

judgment, I would decline to address the defendant’s claims regarding her

remaining special defenses. See Wykeham Rise, LLC v. Federer, 305 Conn.

448, 479 n.30, 52 A.3d 702 (2012) (reversing summary judgment and declining

to reach defendants’ claim that trial court improperly rejected their special

defenses of waiver and unclean hands, noting that summary judgment decision, having been reversed, ‘‘presents no jurisdictional bar to the defendants’

assertion of these special defenses on remand’’).

2

In its memorandum of law in reply to the defendant’s opposition to

the summary judgment motion, the plaintiff argued, in a combined section

addressing the defendant’s breach of contract special defense and breach

of contract counterclaim, that the defendant’s breach of contract claims

failed on two grounds. First, the plaintiff argued that ‘‘[b]ecause the alleged

final loan modification documents were never offered or delivered to [the]

defendant or mutually assented to, they cannot form the basis of a binding,

enforceable contract.’’ Second, the plaintiff argued that the defendant provided no consideration to the plaintiff in exchange for the alleged modification agreement.