******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
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, Eliza-
beth W. Birmingham, and Sheila M. Bailey,1 appeal from
the judgment of the trial court, issuing a writ of manda-
mus and a declaratory judgment in favor of the plaintiff
Charles S. Silver.2 The lengthy litigation among the par-
ties 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 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 col-
lected an $18 recording fee from Barrante.
When Birmingham returned to the clerk’s office, Oli-
ver 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 his-
tory 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 enter-
ing 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 affida-
vit 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 affida-
vit 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 subse-
quent 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 judg-
ment 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 wil-
ful, 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. There-
after, 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 deci-
sion dated August 3, 2011. The court found that the
essential facts were not in dispute: the plaintiff pre-
sented 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 defen-
dants 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 pursu-
ant to an analysis of the subject documents and rele-
vant 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 affida-
vit 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 affida-
vit 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 confu-
sion 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 rul-
ing 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 Bir-
mingham 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 plain-
tiff’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 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 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.8 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 § 1-2z directs this court
to first consider the text of the statute and its relation-
ship to other statutes to determine its meaning. If, after
such consideration the meaning is plain and unambigu-
ous and does not yield absurd or unworkable results,
we shall not consider extratexual evidence of the mean-
ing 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 provi-
sions. . . . [S]tatutes must be construed, if possible,
such that no clause, sentence or word shall be superflu-
ous, void or insignificant . . . .’’ (Internal quotations
marks omitted.) Housatonic Railroad Co. v. Commis-
sioner of Revenue Services, 301 Conn. 268, 303, 21 A.3d
759 (2011). ‘‘[I]t is an elementary rule of statutory con-
struction 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 gen-
eral 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.9 We disagree that § 7-24 (d) is control-
ling 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 Stat-
utes (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.
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 descrip-
tion 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 depo-
sition 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 chronologi-
cal order according to the time of its receipt . . . .’’
(Emphasis added.) ‘‘Absent an indication to the con-
trary, 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 defen-
dants’ 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 instru-
ment 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 construc-
tion, 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 prop-
erty, 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 conse-
quences 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. More-
over, 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 Gen-
eral 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 appel-
late 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 affida-
vit, 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 defen-
dant[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 improp-
erly 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 acknowl-
edged that the parties had a lengthy history of litigation.
Neither judge, however, found that that history of litiga-
tion 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 plaintiff’s motion for partial
summary judgment. Summary ‘‘judgment shall be ren-
dered 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 princi-
ple that where a plaintiff seeks equitable relief, he must
show that his conduct has been fair, equitable and hon-
est 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 seek-
ing 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 exer-
cised 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 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, 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 pro-
priety 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 balanc-
ing 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 pre-
sumption 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 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 Bai-
ley 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 plaintiff’s motion for partial summary judg-
ment 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 demon-
strate 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 your two-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 instru-
ments; 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 com-
plaint, Judge Vacchelli adopted Judge Domnarski’s reasoning on the plain-
tiff’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 com-
plaint 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 consid-
ered 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 chal-
lenge the imposition of real property taxes constitutes unclean hands. A
party has a legal right to seek redress.