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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 foreclo-
sure 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 con-
tract, 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 genu-
ine 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 interpre-
ted 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 pro-
motion 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 bur-
den of demonstrating that ‘‘his opponent engaged in
wilful misconduct with regard to the matter in litiga-
tion.’’ (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 omit-
ted.) 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 inap-
propriate 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 judg-
ment is appropriate.’’ (Citations omitted; internal quota-
tion 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 oper-
ate 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 foun-
dation 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 Heri-
tage Agency, Inc. v. Gelinas, supra, 62 Conn. App. 722;
such that ‘‘the promotion of public policy and the pres-
ervation 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 defen-
dant’s breach of contract special defense is legally insuf-
ficient. The majority rests this conclusion on its
determination that the defendant failed to allege that
she maintained her financial eligibility for a loan modifi-
cation 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 suffi-
ciency of the defendant’s pleading for the first time on
appeal because the parties have not briefed the suffi-
ciency 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 defen-
dant’s breach of contract special defense, including the
defendant’s continued eligibility for HAMP. ‘‘The funda-
mental purpose of a special defense, like other plead-
ings, is to apprise the court and opposing counsel of
the issues to be tried, so that basic issues are not con-
cealed . . . .’’ (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 defen-
dant’s failure to maintain her eligibility for HAMP
‘‘resulted in the nonissuance of a permanent modifica-
tion.’’ 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 spe-
cial defense.
Moreover, the plaintiff, briefing the breach of con-
tract special defense together with the breach of con-
tract counterclaim, does not argue that the special
defense is legally insufficient in contrast to the counter-
claim. The majority sua sponte conducts an indepen-
dent review of the sufficiency of the allegations
contained in her special defense and finds such allega-
tions 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 deci-
sion, 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 pro-
vided no consideration to the plaintiff in exchange for the alleged modifica-
tion agreement.