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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

(Appeal from Superior Court, judicial district of

Hartford, Domnarski, J. [motion for summary
judgment]; Vacchelli, J. [judgment].)

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

Edward W. Gasser, with whom, on the brief, was

Amanda J. Morris, for the appellees (named plaintiff).
Opinion

LAVINE, J. The defendants, Donald R. Holtman, Elizabeth W. Birmingham, and Sheila M. Bailey,1 appeal from

the judgment of the trial court, issuing a writ of mandamus and a declaratory judgment in favor of the plaintiff

Charles S. Silver.2 The lengthy litigation among the parties centers on whether a July 20, 2005 affidavit of facts

(affidavit) attested to by Silver is a document that must

be recorded on the land records of the town of East

Granby (town). On appeal, the defendants claim that

the court improperly concluded that the affidavit should

be recorded on the land records pursuant to General

Statutes (Rev.to 2005) §§ 7-24 (d) and 47-12a.3 We affirm

the judgment of the trial court.

In its February 13, 2013 memorandum of decision,

the court, Vacchelli, J., found the following facts. On

July 28, 2005, Attorney William T. Barrante went to the

town clerk’s office to record a two page document on

the land records. The first page of the document was

an affidavit concerning property located in the town

(property) and the second page contained a description

of the property.4 Barrante presented the document to

Assistant Town Clerk, Karen Oliver. Oliver machinestamped 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

thoughtthatthe 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 trialreferee. Holtman concluded that

the affidavit was not a document required or authorized

by law to be recorded on the land records and that its

purpose was to impede the collection of municipal

taxes. He advised Birmingham to return the affidavit

to whomever presented it, together with the recording

fee paid.

Birmingham then crossed off the volume and page

numbers and date stamp on the affidavit without entering the information in the day book. She returned the

affidavit along with the recording fee and a cover letter

to Barrante.5 Thereafter, in September, 2005, the plain-
tiff commenced the present action.

The operative complaint is the amended complaint

filed on April 14, 2011. The plaintiff alleged that he was

a trustee of the P.A.T. Trust, also known as the P.A.T.

Irrevocable Trust (trust), which was recorded on the

town land records on or about March 22, 1995. The

trust included real estate located at 6 Herman Drive in

the town. The plaintiff further alleged that on July 20,

2005, in his capacity as a trustee, he executed an affidavit in accordance with § 47-12a. On July 28, 2005, Barrante presented the affidavit pursuant to the statute for

record on the town land records, and, on that date, the

affidavit was recorded in volume 158 at pages 130 and

131 of the land records. The plaintiff also alleged that

the affidavit complied with § 47-12a and, as such, was

a document required to be recorded on the land records

when received by the town clerk. The plaintiff further

alleged that at a time subsequent to July 28, 2005, Holtman instructed Birmingham to remove the affidavit

from the land records. On July 29, 2005, Birmingham

returned the affidavit to Barrante after removing the

affidavit from the land records and crossing off the

volume and page numbers that had been assigned to

the affidavit. The plaintiff alleged that Birmingham’s

conduct constituted the unlawful removal of a public

record in violation of General Statutes § 53-153. He also

alleged that Birmingham, through Holtman, informed

Barrante that Birmingham would not accept the affidavit for record, even though it had been received and

accepted for same.

Moreover, the plaintiff alleged that in returning the

affidavit to Barrante, Birmingham violated the duty she

owed the plaintiff, which duty can be enforced only by

a writ of mandamus. The plaintiff alleged that subsequent to Birmingham’s resignation, Bailey became the

town clerk, and he sought a writ of mandamus requiring

Bailey to record the affidavit, and a declaratory judgment that Birmingham did not have the power to keep

the affidavit out of the land records. The plaintiff sought

exemplary damages, including attorney’s fees, for wilful, wanton, and malicious conduct in violation of his

statutory rights.

On June 3, 2011, the defendants filed an answer to the

amended complaint in which they denied the material

allegations of the complaint and alleged eleven special

defenses, including that a writ of mandamus should not

issue because the plaintiff had unclean hands. Thereafter, the plaintiff filed a motion for partial summary

judgment as to liability. The defendants opposed the

motion for partial summary judgment.

The court, Domnarski, J., ruled on the motion for

partial summary judgment in a memorandum of decision dated August 3, 2011. The court found that the

essential facts were not in dispute: the plaintiff presented the affidavit to the clerk’s office for record and
paid the required fee, the affidavit was recorded in

volume 158 at page 130 of the land records, and then

‘‘unrecorded’’ after Birmingham discussed the matter

with Holtman. The court identified the issue as whether

the plaintiff is lawfully entitled to record the affidavit

and concluded that the issue is governed by §§ 7-24

and 47-12a.6 The plaintiff maintained that the affidavit

should be recorded as it complies with the requirements

of § 47-12a. The defendants contended that Birmingham

was not required to record the affidavit as it did not

contain the name of the current owner of the property

and therefore did not comply with § 7-24 (d). In support

of their position, the defendants relied on McCue v.

Birmingham, 88 Conn. App. 630, 870 A.2d 1126, cert.

denied, 274 Conn. 905, 876 A.2d 14 (2005). The court,

however, concluded that McCue did not help the defendants for two reasons: (1) the documents at issue in

McCue are different from the affidavit, and (2) McCue

was decided on the basis of res judicata, and not pursuant to an analysis of the subject documents and relevant statutes.

Judge Domnarski found that an affidavit relating to

the title of real property is authorized by § 47-12a to be

recorded on the land records. The court recited the

contents of the plaintiff’s affidavit and concluded that

it complied with the requirements of § 47-12a (b) in that

it related to the death of a trustee, which is an event

that may terminate an estate or interest, specifically

the conveyance of the property. The court concluded

that the affidavit also complies with § 47-12a (c) in that

it contained a description of the affected real property

and stated that the name of the person appearing by

record to be the owner of the land at the time of the

recording.

In addition, the court found that § 47-12a does not

require the affidavit to name owners who do not appear

on the land records. The statute only requires the affidavit to ‘‘state the name of the person appearing by the

record to be the owner of the land at the time of the

recording of the affidavit.’’ General Statutes (Rev. to

2005) § 47-12a (c). Section 47-12a (c) provides that

‘‘[t]he town clerk shall index the affidavit in the name

of that record owner.’’ Moreover, the court found that

Birmingham had testified at a deposition that the affidavit contained all of the information she needed to index

it. The court determined that the town clerk is not

responsible for assessing the possibility of future confusion or even the accuracy of the statements contained

in the affidavit. The court, therefore, found that the

affidavit complies with § 47-12a and is required to be

recorded.7

The court also concluded that the plaintiff met the

requirements for a writ of mandamus to issue. ‘‘The

writ is proper only when (1) the law imposes on the

party against whom the writ would run a duty the perfor-
mance of which is mandatory and not discretionary;

(2) the party applying for the writ has a clear legal right

to have the duty performed; and (3) there is no other

specific adequate remedy.’’ (Internal quotation marks

omitted.) Miles v. Foley, 253 Conn. 381, 391, 752 A.2d

503 (2000). The court therefore granted the plaintiff’s

motion for partial summary judgment and issued a writ

of mandamus ordering Bailey to record the affidavit on

the town land records.

The parties tried counts two, three, and four of the

amended complaint before Judge Vacchelli, who issued

a memorandum of decision on February 13, 2013. The

court construed count two of the amended complaint

to be seeking a declaratory judgment that Birmingham

did not have the legal power to keep the affidavit out

of the land records without the plaintiff’s permission.

Judge Vacchelli found that Judge Domnarski decided

that exact issue when he ruled on the motion for partial

summary judgment and adopted Judge Domnarski’s ruling as the law of the case. See Breen v. Phelps, 186

Conn. 86, 99, 439 A.2d 1066 (1982) (court may treat

prior interlocutory ruling as law of the case). Judge

Vacchelli found that Judge Domnarski’s decision was

not clearly erroneous and concluded that no manifest

injustice would result from following it. (Emphasis

added.) Judge Vacchelli therefore issued a declaratory

judgment in favor of the plaintiff and against Birmingham on count two of the amended complaint.

The court, however, found in favor of the defendants

on counts three and four of the amended complaint.

The court construed count three as a request for a

declaratory judgment that Holtman did not have the

legal power to order or authorize Birmingham to keep

the affidavit out of the land records without the plaintiff’s permission. The court found no evidence that Holtman was acting in a supervisory capacity and the

plaintiff cited no authority for the proposition that a

town attorney cannot give advice to his client regarding

the recording of documents on the land records. The

court found that count four alleged that Birmingham

and Holtman acted wilfully, wantonly, maliciously, and

in total disregard of the plaintiff’s rights and sought

exemplary damages, including attorney’s fees. The

court found no evidence of any design on the part of

the defendants to injure the plaintiff and, therefore,

there were no grounds on which to award punitive

damages under the circumstances of this case. The

court also found that there was no basis to award the

plaintiff attorney’s fees as it found no wilful or corrupt

intent on the part of the defendants. In summary, the

court issued a declaratory judgment in favor of the

plaintiff on count two of the amended complaint and

rendered judgment for the defendants on counts three

and four thereof. Thereafter the defendants appealed.

On appeal, the defendants claim that the affidavit is
not a document suitable forrecording pursuant to either

§ 7-24 (d) or § 47-12a. More specifically, the defendants

claim that Judge Domnarski improperly issued a writ

of mandamus because (1) the affidavit does not identify

the present grantee in violation of § 7-24 (d); (2) the

affidavit does not comply with § 47-12a as its ostensible

purpose is to obfuscate, rather than to clarify, title to

the property, and to avoid the payment of taxes; and

(3) there is a question of fact as to whether the plaintiff

was proceeding with unclean hands.8 We disagree with

each of the defendants’ claims.

We agree with Judge Domnarski that the question of

whetherthe affidavit should be filed on the land records

is controlled by §§ 7-24 and 47-12a. Our resolution of

the claims on appeal turns on our construction of the

applicable statutes.

‘‘[I]ssues of statutory construction raise questions of

law over which we exercise plenary review. . . . When

construing a statute, [o]ur fundamental objective is to

ascertain and give effect to the apparent intent of the

legislature. . . . In other words, we seek to determine,

in a reasoned manner, the meaning of the statutory

language as applied to the facts of [the] case, including

the question of whether the language actually does

apply. . . . General Statutes § 1-2z directs this court

to first consider the text of the statute and its relationship to other statutes to determine its meaning. If, after

such consideration the meaning is plain and unambiguous and does not yield absurd or unworkable results,

we shall not consider extratexual evidence of the meaning of the statute.’’(Citations omitted; footnote omitted;

internal quotation marks omitted.) Marchesi v. Board

of Selectmen, 309 Conn. 608, 614–15, 72 A.3d 394 (2013).

In construing a statute, a court presumes ‘‘that the

legislature did not intend to enact meaningless provisions. . . . [S]tatutes must be construed, if possible,

such that no clause, sentence or word shall be superfluous, void or insignificant . . . .’’ (Internal quotations

marks omitted.) Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 303, 21 A.3d

759 (2011). ‘‘[I]t is an elementary rule of statutory construction that we must read the legislative scheme as

a whole in order to give effect to and harmonize all of

the parts. . . . When statutes relate to the same subject

matter, they must be read together and specific terms

covering the given subject matter will prevail over general language of the same or another statute which

might otherwise prove controlling.’’ (Citation omitted;

internal quotation marks omitted.) Coregis Ins. Co. v.

Fleet National Bank, 68 Conn. App. 716, 720, 793 A.2d

254 (2002).

On the basis of our reading and construction of the

two statutes at issue, we conclude that the plain and

unambiguous terms of § 47-12a pertain to the contents

of an affidavit of facts relating to title or interest in
real estate, and that § 7-24 pertains to the duties and

responsibilities of the town clerk to record and keep

public records.

I

The defendants first claim that Judge Domnarski

improperly issued a writ of mandamus ordering the

town clerk to record the affidavit because the affidavit

did not identify the current owner of the property. We

disagree, as an affidavit of fact relating to an interest

in real estate does not require that it state the name of

the property owner. Such an affidavit is required to

state the name of the owner of record at the time the

affidavit is filed. See General Statutes (Rev. to 2005)

§ 47-12a.

The parties agree that the affidavit was presented to

Oliver for record and the recording fee was paid in

advance; the affidavit was stamped as to the day and

time it was received and the page and volume number

in accordance with § 7-24 (c). The defendants claim,

however, thatthe affidavitis not a document that should

have been recorded as it does not comply with § 7-24

(d)for want of the name of the present owner or grantee

of the property.9 We disagree that § 7-24 (d) is controlling of the question as to whether the affidavit is a

document that must be recorded on the land records.

The defendants’ claim is governed by General Statutes (Rev. to 2005) § 47-12a, which provides in relevant

part: ‘‘(a) An affidavit, which states facts relating to the

matters named in subsection (b) and which may affect

the title to or any interest in real estate in this state,

and which is made by any person having knowledge

of the facts or competent to testify concerning them in

open court, may be recorded in the land records of the

town in which the real estate is situated. . . .

‘‘(b) The affidavit provided for in this section may

relate to the following matters: Age, sex, birth, death,

capacity, relationship, family history, heirship, names,

identity of parties, marital status, possession or adverse

possession, adverse use,residence, service in the armed

forces, conflicts and ambiguities in description of land

in recorded instruments, and the happening of any

condition or event which may terminate an estate

or interest.

‘‘(c) Every affidavit provided for in this section shall

include a description of the land, title to which may

be affected by facts stated in the affidavit, and shall

state the name of the person appearing by the record

to be the owner of the land at the time of the recording

of the affidavit. The town clerk shall index the affidavit

in the name of that record owner.’’ (Emphasis added.)

In the subject affidavit, the plaintiff attested that

McCue was a trustee of the trust, and that McCue had

died, among other things. See footnote 4 of this opinion.

Judge Domnarski concluded that the affidavit complied
with the requirements of § 47-12a in that it related to

the death of a trustee and an event that may terminate

an estate or interest, specifically the conveyance of the

property.10 Moreover, the court found that the affidavit

complied with § 47-12a (c)in that it contained a description of the property affected and stated the names of

the persons appearing by record to be the owners of

the land at the time of the recording. The court also

found that § 47-12a does not require the affidavit to

identify the grantee or owners of the property whose

names do not appear on the land records. Moreover,

the court found that Birmingham had testified at a deposition that the affidavit contained all of the information

she needed to index it. The record supports the court’s

findings and we agree with the court’s construction of

§ 47-12a and application to the facts of this case.

Although § 7-24 does not denominate the contents of

an affidavit of facts, it is relevant because it directs the

town clerk to record a document that is presented for

record on the town land records. General Statutes (Rev.

to 2005) § 7-24 (d) provides in relevant part: ‘‘Each town

clerk shall also, within twenty-four hours of the receipt

for record of any such instrument, enter in chronological order according to the time of its receipt . . . .’’

(Emphasis added.) ‘‘Absent an indication to the contrary, the legislature’s choice of the mandatory term

‘shall’ rather than the permissive term ‘may’ indicates

that the legislative directive is mandatory.’’ Bailey v.

State, 65 Conn. App. 592, 604, 783 A.2d 491 (2001). Judge

Domnarski concluded that the affidavit complied with

§ 47-12a and Birmingham was required by law to record

it. We agree with Judge Domnarski.

Further, the text of § 7-24 does not support the defendants’ position that the name of the present owner of

the property must be included in the affidavit. General

Statutes (Rev. to 2005) § 7-24 provides in relevant part:

‘‘(b) There shall be kept in each town proper books

. . . in which all instruments required by law to be

recorded shall be recorded at length by the town clerk

within thirty days from the time they are left for record.

‘‘(c) The town clerk shall, on receipt of any instrument for record, write thereon the day, month, year

and time of day when [the town clerk] received it and

the record shall bear the date and time of day; but he

shall not be required to receive any instrument for

record unless the fee for recording it is paid to him in

advance . . . and, when he has received it for record,

he shall not deliver it up to the parties or either of them

until it has been recorded. . . .

‘‘(d) Each town clerk shall also, within twenty-four

hours of the receipt for record of any such instrument,

enter in chronological order according to the time of its

receipt as endorsed thereon, (1) the names of sufficient

parties thereto to enable reasonable identification of

the instrument, (2) the nature of the instrument, and
(3) the time of its receipt.’’ (Emphasis added.)

Section 7-24 clearly and unambiguously addresses

the responsibilities of the town clerk and the manner

in which he or she records an instrument presented for

record. Even if § 7-24 (d) set forth the requirements for

an affidavit of facts, which it does not, that subsection

does not provide that the present owner of the property

be stated on the affidavit. ‘‘When language used in a

statute is clear and unambiguous, its meaning is not

subject to modification or construction. . . . Absent

ambiguity, courts cannotread into statutes by construction, provision that are not clearly stated.’’ (Citation

omitted; internal quotation marks omitted.) Battersby

v. Battersby, 218 Conn. 467, 470, 590 A.2d 427 (1991).

For the foregoing reasons, the defendants’ first claim

fails.

II

The defendants’ second claim is that affidavit does

not comply with § 47-12a because its ostensible purpose

is to obfuscate, rather than to clarify, title to the property, and to avoid the payment of taxes. We decline to

review this claim as it was not decided by the trial court.

Judge Domnarski clearly stated in his memorandum of

decision that he was ‘‘not ruling on the legal consequences of the affidavit upon the title to the subject

land. The court only determines here that the affidavit

complies with § [47]-12a and that it is required by law

to be recorded. The effect, if any, of the affidavit upon

any future proceedings must be determined in those

proceedings.’’ We agree with the trial court that the

plaintiff’s purpose in filing the affidavit, beyond the

dictates of § 47-12a, did not have to be decided. Moreover, we are loathe to interpret the law to saddle town

clerks with the impossible task of determining the intent

or motive of a party filing an affidavit of fact. See General Statutes (Rev. to 2005) § 7-24.

‘‘The theory upon which a case is tried in the trial

court cannot be changed on review, and an issue not

presented to or considered by the trial court cannot be

raised for the first time on review.’’ Richter v. Childers,

2 Conn. App. 315, 318, 478 A.2d 613 (1984). When an

issue has not been ruled on by the trial court, an appellate court may not review the issue for the first time

on appeal. See Miskimen v. Biber, 85 Conn. App. 615,

626, 858 A.2d 806 (2004), cert. denied, 272 Conn. 916,

866 A.2d 1287 (2005). We therefore decline to review

this claim.

The dissent claims that the ‘‘defendants were not

given the opportunity to present evidence on their claim

that the plaintiff came to court with unclean hands.’’

We respectfully disagree. Although Judge Domnarski

did not make an explicit finding with regard to the

plaintiff’s claimed ostensible purpose in filing the affidavit, he implicitly considered the defendants’ claim. He
found that ‘‘[t]hese parties have had a long history of

litigation. The defendants used a considerable portion

of their briefs informing the court of the difficulties

that the town . . . and other towns, have encountered

in prosecuting tax lien foreclosures against individuals

or entities connected to the plaintiff. They claim that

the plaintiff’s attempt to record this document is part

of a plan to avoid the payment of taxes.’’11

The court further found the ‘‘thrust of the defendant[s’] objection to the recording of the affidavit is

that it will create confusion since the identity of the

actual, present, owner of the land is not stated in the

affidavit. The defendants misread the requirements of

the statute. The affidavit need only state the person

‘appearing by the record to be the owner of the land.’

The statute does not require that the affidavit name

owners who do not appear on the land records. It is

not the responsibility of the town clerk to assess the

possibility of future confusion or even the accuracy

of the statements contained in the affidavit. The only

responsibility of the town clerk is clearly stated in § 47-

12a (c): ‘The town clerk shall index the affidavit in

the name of that record owner.’ The town clerk who

received the affidavit on July 28, 2005, testified at a

later deposition that the affidavit contained all of the

information that she needed in order to properly index

the document.’’ (Emphasis in original.)

We agree with the trial court that the intent of a party

filing an affidavit of facts is not relevant to whether the

affidavit complies with § 47-12a and that it is not the

clerk’s responsibility to determine the filer’s intent. For

this reason, we conclude that the defendants’ claim

with respect to the ostensible purpose of the affidavit

is not reviewable.

III

The defendants’ third claim is that the court improperly issued a writ of mandamus to record the affidavit

on the land records because there was a question of

fact as to whether the ostensible purpose of filing the

affidavit was to avoid the payment of taxes and thus

the plaintiff was proceeding with unclean hands. We

disagree.

The basis of the defendants’ claim appears to be that

both Judge Domnarski and Judge Vacchelli acknowledged that the parties had a lengthy history of litigation.

Neither judge, however, found that that history of litigation and the intent of filing the affidavit was relevant

to the question of whether the affidavit was a document

that should be recorded on the town land records, and

neither do we. See part II of this opinion.

The law of this case was determined by Judge Domnarski when he ruled on the plaintiff’s motion for partial

summary judgment. Summary ‘‘judgment shall be rendered forthwith if the pleadings, affidavits and any other
proof submitted show that there is no genuine issue as

to any material fact and that the moving party is entitled

to judgment as a matter of law.’’ Practice Book § 17-

49. In this case the defendants asserted the special

defense of unclean hands to the plaintiff’s petition for

a writ of mandamus. We conclude that the doctrine of

unclean hands is not applicable to this case.

‘‘The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must

show that his conduct has been fair, equitable and honest as to the particular controversy in issue. . . . For

a complainant to show that he is entitled to the benefit

of equity he must establish that he comes into court

with clean hands. . . . The clean hands doctrine is

applied not for the protection of the parties but for the

protection of the court. . . . It is applied . . . for the

advancement of right and justice. . . . The party seeking to invoke the clean hands doctrine to bar equitable

relief must show that his opponent engaged in wilful

misconduct with regard to the matter in litigation.’’

(Emphasis added; internal quotation marks omitted.)

Emigrant Mortgage Co. v. D’Agostino, 94 Conn. App.

793, 804, 896 A.2d 814, cert. denied, 278 Conn. 919, 901

A.2d 43 (2006).12 The litigation on which the defendants

rely to demonstrate the plaintiff has come into court

with unclean hands is not the present litigation, but

litigation concerning taxes due and owing, not in the

town, but in Simsbury.13

‘‘Mandamus is an extraordinary remedy, available in

limited circumstances for limited purposes. . . . It is

fundamental that the issuance of the writ rests in the

discretion of the court, not an arbitrary discretion exercised in accordance with recognized principles of law.

. . . That discretion will be exercised in favor of issue

the writ only where the plaintiff has a clear legal right

to have done that which he seeks. . . . The writ is

proper only when (1) the law imposes on the party

against whom the writ would run a duty the performance of which is mandatory and not discretionary;

(2) the party applying for the writ has a clear legal right

to have the duty performed; and (3) there is no other

specific adequate remedy.’’ (Internal quotation marks

omitted.) Miles v. Foley, supra, 253 Conn. 391.

‘‘Even satisfaction of this demanding test does not,

however, automatically compel issuance of the

requested writ of mandamus. . . . In deciding the propriety of a writ of mandamus, the trial court exercises

discretion rooted in the principles of equity.’’ (Citation

omitted.) Hennessey v. Bridgeport, 213 Conn. 656, 659,

569 A.2d 1122 (1990). ‘‘In an equitable proceeding, the

trial court may examine all relevant factors to ensure

that complete justice is done. . . . The determination

of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the

trial court.’’ (Internal quotation marks omitted.) North-
east Savings, F.A. v. Hintlian, 241 Conn. 269, 275, 696

A.2d 315 (1997).

‘‘In determining whether the trial court abused its

discretion, this court must make every reasonable presumption in favor of its actions.’’ (Internal quotation

marks omitted.) Yanow v. Teal Industries, Inc., 196

Conn. 579, 583, 494 A.2d 573 (1985). Here, Judge Vacchelli found that Judge Domnarski’s ruling on the

motion for partial summary judgment was not clearly

erroneous and would not work a manifest injustice if

followed. Both of the judges concluded that the legal

effect of the affidavit could be determined in another

proceeding. As we concluded in part I of this opinion,

the affidavit complies with § 47-12a and pursuant to

§ 7-24 the town clerk had a duty to record the affidavit

if presented for record. Birmingham was, and now Bailey is, required by law to record the affidavit, regardless

of the litigation history of the parties. As Judge Domnarski stated, his issuing a writ of mandamus to record

the affidavit on the town land records was not a ruling

on the affidavit’s effect on the title to the property. Any

issues regarding title to the property must be decided

in a separate proceeding.

We therefore conclude that that the court property

granted the plaintiff’s motion for partial summary judgment as there is no genuine issue of material fact, as

a matter of law. The facts on which the defendants

asserted their unclean hands special defense do not

implicate the present litigation. We also conclude that

the trial court did not abuse its discretion in weighing

the equities in this matter. The statutes at issue demonstrate that the plaintiff was entitled to have his affidavit

recorded on the land records and the clerk was required

to do so.

The judgment is affirmed.

In this opinion SCHALLER, J. concurred.

1 As of July 28, 2005, Holtman was the town attorney for the town of East

Granby, and Birmingham was the town clerk. Bailey succeeded Birmingham

as the clerk for the town of East Granby and thereafter was cited in as a

party defendant.

2 The plaintiff Gail McCue, executrix of the estate of Walter T. McCue,

Jr., is not a party to this appeal. In this opinion, we refer to Silver as

the plaintiff.

3 Hereinafter, unless otherwise indicated, all references to §§ 7-24 and 47-

12a are to the 2005 revision of the statute.

4 The affidavit stated:

‘‘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. I am one of the trustees of the P.A.T. Irrevocable Trust, hereafter ‘the

Trust,’ and have accepted the trust

‘‘3. The other trustee, Walter McCue, died on August 30, 2004.

‘‘4. The Trust is the record owner of the real estate located at 6 Herman
Drive in the Town of East Granby, Connecticut, as more fully described in

Schedule A attached to this affidavit.

‘‘5. A Notice of trust with respect to the Trust was recorded in the East

Granby Land Records, in Volume 106 at Page 495.

‘‘6. On December 7, 1998 the Trust executed a deed conveying the aforesaid

real estate, but to the undersigned’s knowledge that deed has not been

recorded.

‘‘7. On that date the Trust was terminated.

‘‘Dated this 20th day of July, 2005.

‘‘/s/ Charles S. Silver

‘‘Charles S. Silver, Affiant’’

5 Birmingham stated in the letter in part: ‘‘On advice of Attorney Donald

R. Holtman, the Town Attorney for the Town of East Granby, I am returning

your $18.00 in currency as well as yourtwo-page ‘Affidavit of Facts.’ Attorney

Holtman has told me not to record this document.’’

6 General Statutes (Rev. to 2005) § 7-24 is entitled: ‘‘Recording of instruments; safekeeping of records; recording of illegible instruments.’’

General Statutes (Rev. to 2005) § 47-12a is entitled: ‘‘Affidavit of facts

relating to title or interest in real estate.’’

7

In determining that the plaintiff had the legal right to have the affidavit

recorded, the court stated that it was not ruling on the legal effect of the

affidavit on the title to the subject land.

8

In issuing a declaratory judgment on count two of the amended complaint, Judge Vacchelli adopted Judge Domnarski’s reasoning on the plaintiff’s motion for partial summary judgment as the law of the case. To the

extent that the defendants’ claims pertain to the declaratory judgment issued

by Judge Vacchelli, our resolution of the mandamus claims applies to the

declaratory judgment as well.

9 The defendants rely on McCue v. Birmingham, supra, 88 Conn. App.

630 to support their position. We agree with Judge Domnarski’s conclusion

that the McCue case does not help the defendants. Although McCue involved

the same parties and the same property, it concerned different documents

and two different lawsuits. Id., 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 court, Hon. Richard M. Rittenband, judge trial

referee, rendered judgment in favor of Birmingham, concluding that the

document at issue did not comply with § 47-12a (c) as it did not ‘‘state the

name of the person appearing by record to be the owner of the land at the

time of the recording of the affidavit.’’ (Internal quotation marks omitted.)

Id., 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.

10 At oral argument in this court, the defendants conceded that McCue’s

death was appropriate to record on the land records because it affected

title to or interest in the property.

11 The defendants’ appendix to their appellate brief contains more than

200 hundred pages of documents related to the issue of ongoing litigation

between the parties. Judge Vacchelli stated in his memorandum of decision

that he also reviewed those documents. He adopted Judge Domnarski’s

ruling as the law of the case and concluded that following Judge Domnarski’s

decision would not work a manifest injustice.

12 ‘‘What is material is not that the plaintiff’s hands are dirty, but that he

dirties them in acquiring the right he now asserts . . . . A variation on this
formula limits the clean hands defense to cases in which the plaintiff is

seeking to secure a benefit from the very conduct, which is inequitable.’’

(Footnote omitted; internal quotation marks omitted.) 1 D. Dobbs, Law of

Remedies, (2d Ed. 1993) § 2.4 (2), p. 95.

13 We cannot conclude the mere commencement of legal action to challenge the imposition of real property taxes constitutes unclean hands. A

party has a legal right to seek redress.