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                SILVER v. HOLTMAN—DISSENT

  ALVORD, J., dissenting. I agree with the majority’s
statutory interpretation of General Statutes (Rev. to
2005) §§ 7-24 (d) and 47-12a.1 I disagree, however, with
the majority’s conclusion that the partial summary judg-
ment rendered by Judge Domnarski and the declaratory
judgment rendered by Judge Vacchelli on the second
count of the complaint should be affirmed. I dissent
because the defendants2 raised special defenses to the
plaintiff’s mandamus action that were not addressed
by the trial court, and, accordingly, I would reverse the
judgments in part and remand the case to the trial court
for further proceedings.
   The plaintiff filed his motion for partial summary
judgment on March 11, 2011, claiming that the court
needed only to determine that the affidavit at issue
complied with the provisions of §§ 7-24 (d) and 47-12a
in order to grant the mandamus relief requested in his
complaint. During the hearing before Judge Domnarski
on June 6, 2011, the plaintiff argued that the extensive
litigation history between the parties and the defen-
dants’ allegations with respect to the plaintiff’s
improper motive for filing the affidavit were irrelevant
to his request that the court order the town clerk to
record the affidavit. The plaintiff’s counsel stated: ‘‘It’s
simply a matter of law . . . whether or not the docu-
ment has a right to be recorded as a matter of law.
There’s no question of fact, it’s a question of law.’’
   The defendants, who had filed eleven special
defenses to the plaintiff’s complaint,3 disagreed and
responded that it was the plaintiff’s burden to show
that he was entitled to the extraordinary remedy of
mandamus. The defendants’ counsel argued: ‘‘I think
the scope of the inquiry goes beyond just looking at
the statutes that [the plaintiff’s] counsel has mentioned,
[§§] 47-12a and 7-24, because, again, there’s a history
here. Also, as Your Honor has pointed out, the remedy
that he has requested at this point is an extraordinary
remedy, that’s the remedy of mandamus. . . . This
remedy invokes the equitable powers of the court. And
Your Honor’s already observed that [the plaintiff’s]
counsel is unable to give you a case that says that it
is appropriate to decide a request for such an extraor-
dinary remedy by way of a summary judgment
motion.
  ‘‘Because by invoking the equitable power of the
court, among other things, the court has to look at
whether or not the plaintiff comes into the court with
clean hands. Hence, those materials that I delivered to
you this morning and have already given to plaintiff’s
counsel. They relate to tactics that were utilized by
the same two parties in interest4 with respect to their
properties in Simsbury that involved tax avoidance
motives and . . . the reason we’re giving them to the
court is to show that the plaintiffs are not, in fact,
coming into this court with clean hands, and that there’s
the same ulterior motive here which is a tax avoidance
plot.’’ (Emphasis added.)
  The court responded: ‘‘All right, so you’re talking
about clean hands, but in the back of my mind, manda-
mus is to compel a ministerial act. How do clean hands
get involved with: You got to do your job?’’ At the
conclusion of the hearing, the court indicated that it
would research the matter.
   On August 3, 2011, Judge Domnarski filed a memoran-
dum of decision in which the court granted the plain-
tiff’s motion for partial summary judgment (first and
second counts) and issued a writ of mandamus ordering
the town clerk to record the original affidavit in the East
Granby land records. In that decision, Judge Domnarski
stated: ‘‘To be clear, this is not a ruling on the legal
consequences of the affidavit upon the title to the sub-
ject land. The court only determines here that the affi-
davit complies with § 47-12a and that it is required
by law to be recorded. The effect, if any, of the affidavit
upon any future proceedings must be determined in
those proceedings.’’ (Emphasis added.) The defendants
moved for reargument, claiming that the court over-
looked the doctrine that a plaintiff must come into
court with clean hands in order to invoke the equitable
powers of the court. Judge Domnarski denied the
motion to reargue on August 26, 2011, and the defen-
dants filed a notice of their intent to appeal pursuant
to Practice Book § 61-5.
   Judge Vacchelli tried the remaining issues on Novem-
ber 6, 7 and December 18, 2012. In the second count
of the complaint, the plaintiff, in addition to his request
for a writ of mandamus, sought a declaratory judgment
that the former town clerk violated the provisions of
§ 7-24 by refusing to record the affidavit at issue. In the
third count, the plaintiff sought a declaratory judgment
that the town attorney did not have the authority to
order the town clerk to violate § 7-24. Finally, in the
fourth count, the plaintiff sought exemplary damages
against the former town clerk and the town attorney
for ‘‘wilful, wanton and malicious conduct’’ in ‘‘denying
plaintiff his rights to have the affidavit recorded.’’ Judge
Vacchelli applied the ‘‘law of the case’’ with respect to
the second count, finding that Judge Domnarski had
decided that exact issue when he had rendered the
partial summary judgment. Accordingly, Judge Vac-
chelli rendered judgment in favor of the plaintiff on
the second count. With respect to the third and fourth
counts of the plaintiff’s complaint, Judge Vacchelli ren-
dered judgment in favor of the defendants. In the court’s
memorandum of decision, the court expressly stated:
‘‘Having found for the defendants on the issues not
controlled by previous rulings in the case, it is unneces-
sary to address the defendants’ specific special
defenses or any other defense pleaded or argued.’’
(Emphasis added.)
   In this appeal from the partial summary judgment
rendered by Judge Domnarski and the declaratory judg-
ment in favor of the plaintiff on the second count ren-
dered by Judge Vacchelli, the defendants claim, inter
alia, that the trial court improperly rendered the judg-
ments because there was ‘‘an issue of fact as to whether
. . . the plaintiff was proceeding with clean hands and
accordingly entitled to the equitable relief requested.’’
I agree. The defendants never were given the opportu-
nity to present evidence on their claim that the plaintiff
came to court with unclean hands, as alleged in their
tenth special defense and as argued at the time of oral
argument on the plaintiff’s motion for partial summary
judgment.5 When Judge Vacchelli tried the remaining
issues, he applied the law of the case and rendered a
declaratory judgment in favor of the plaintiff on the
second count because Judge Domnarski had deter-
mined that the affidavit was entitled to be recorded in
the land records as a matter of law. The defendants
again were denied the opportunity to prove their special
defenses to the first and second counts of the complaint
at the subsequent trial before Judge Vacchelli.
   The standard of review with respect to the issuance
of a writ of mandamus is well settled. ‘‘In deciding
the propriety of a writ of mandamus, the trial court
exercises discretion rooted in the principles of equity.
. . . In determining whether the trial court abused its
discretion, this court must make every reasonable pre-
sumption in favor of its action. . . . Nevertheless, this
court will overturn a lower court’s judgment if it has
committed a clear error or if it has misconceived the
law. . . .
   ‘‘A writ of mandamus is an extraordinary remedy,
available in limited circumstances for limited purposes.
. . . [The court’s discretion] will be exercised in favor
of issuing the writ only where the plaintiff has a clear
legal right to have done that which he seeks. . . . The
writ is proper only when (1) the law imposes on the
party against whom the writ would run a duty the 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.’’ (Citations omitted; internal
quotation marks omitted.) Jalowiec Realty Associates,
L.P. v. Planning & Zoning Commission, 278 Conn.
408, 412, 898 A.2d 157 (2006).
   ‘‘There is authority for the proposition that, even
when a plaintiff has a clear legal right to the writ, princi-
ples of equity and justice may militate against its issu-
ance. Courts have discretion to consider equitable
principles when deciding whether to issue the writ.
. . . The writ [of mandamus] will be granted to prevent
a failure of justice, but never to promote manifest injus-
tice. It is a remedial process and may be issued to
remedy a wrong, not to promote one, to compel the
discharge of a duty which ought to be performed, but
not to compel the performance of an act which will
work a public and private mischief, or to compel a
compliance with the strict letter of the law in disregard
of its spirit or in aid of a palpable fraud. The relator
must come into court with clean hands. . . . This equi-
table discretion is exercised in instances wherein the
party seeking the writ has engaged in improper conduct
or otherwise has violated equitable principles.’’ (Cita-
tions omitted; emphasis added; internal quotation
marks omitted.) Id., 418–19.
   The defendants in the present case alleged, although
they have never been afforded the opportunity to pre-
sent evidence to prove, that the plaintiff’s motive for
filing the affidavit was to impede or delay the payment
of municipal taxes on the subject real estate and per-
sonal property. The plaintiff, as the affiant, averred that
he and Walter McCue were the trustees of the trust that
held title to the subject real estate in East Granby. The
plaintiff further averred that McCue died and the trust
was terminated. The defendants have conceded that
the foregoing information is appropriate in an affidavit
filed pursuant to § 47-12a. It is paragraph six of the
affidavit, however, that the defendants claim is meant
to obfuscate title and thwart efforts by East Granby to
collect taxes. In paragraph six of his affidavit, the plain-
tiff averred that ‘‘[o]n December 7, 1998, the Trust exe-
cuted a deed conveying the aforesaid real estate, but
to the undersigned’s knowledge that deed has not been
recorded.’’ The plaintiff, who was the sole remaining
trustee of the trust that allegedly conveyed the property,
would not disclose who the grantee was, thereby leav-
ing unknown the identity of the current title holder of
the property. What is the purpose for including para-
graph six in the affidavit? What legitimate reason could
the plaintiff possibly have for attesting that he, as the
trustee, conveyed the property, followed by his refusal
to identify the person to whom he conveyed the
property?
   In the documents submitted with the defendants’
opposition to the plaintiff’s motion for partial summary
judgment, there are copies of pleadings from a tax fore-
closure action involving property in Simsbury. The
defendants claimed that the plaintiff and McCue were
trustees of a trust owning the Simsbury property, that
the plaintiff claimed that the trust conveyed the prop-
erty and was terminated, and that the plaintiff failed to
disclose in the Simsbury land records the grantee of
that conveyance. The plaintiff then filed a notice of
defense in the Simsbury action claiming that he had no
interest in the property and was not liable for the taxes.
According to the defendants, the pleadings filed by the
plaintiff in the Simsbury action, and in a prior tax fore-
closure action involving the subject property in East
Granby, evidenced a pattern of ongoing attempts to
evade or delay the payment of taxes. To be sure, it would
be the defendants’ burden to prove that the plaintiff’s
request for mandamus in the present case should be
denied because he did not have clean hands when he
came into court. Judge Domnarski, however, in render-
ing the partial summary judgment, precluded that
opportunity and simply concluded that the affidavit met
the statutory requirements and had to be accepted for
recording in the land records.
   It is axiomatic that summary judgment shall be ren-
dered only ‘‘if the pleadings, affidavits and any other
proof submitted show that there is no genuine issue as
to any material fact and that the moving party is entitled
to judgment as a matter of law.’’ Practice Book § 17-
49. Simply put, there was a material issue of fact as
to whether the plaintiff had clean hands to seek the
extraordinary remedy of mandamus.6 Although I do not
disagree that, strictly speaking, the affidavit conforms
to the provisions of §§ 7-24 and 47-12a, I do not believe
that mandamus would be an appropriate remedy if the
defendants prove that the plaintiff’s purpose in filing
the affidavit was to further a scheme of tax avoidance.
A writ of mandamus ‘‘may be issued to remedy a wrong,
not to promote one, to compel the discharge of a duty
which ought to be performed, but not to compel the
performance of an act which will work a public and
private mischief . . . .’’ (Internal quotation marks
omitted.) Jalowiec Realty Associates, L.P. v. Plan-
ning & Zoning Commission, supra, 278 Conn. 419.
  For these reasons, I would reverse the partial sum-
mary judgment rendered by Judge Domnarski and the
declaratory judgment in favor of the plaintiff on the
second count rendered by Judge Vacchelli7 and remand
the case to the trial court for further proceedings.
Accordingly, I respectfully dissent.
   1
     Hereinafter, all references to §§ 7-24 and 47-12a are to the 2005 revision
of the statute.
   2
      The defendant Donald R. Holtman was the town attorney for the town
of East Granby when the plaintiff, Charles S. Silver, attempted to record
the affidavit at issue in this appeal. The defendant Elizabeth W. Birmingham
was the town clerk at the time, and was succeeded by the defendant Sheila
M. Bailey..
   3
     Of the eleven special defenses, two are particularly relevant to the defen-
dants’ claims on appeal. The defendants alleged that the plaintiff’s purpose
for filing the affidavit was ‘‘to obfuscate rather than clarify title’’ and that
the plaintiff was ‘‘precluded from seeking a writ of mandamus because of
the equitable doctrine of unclean hands.’’
   4
     See footnote 2 of the majority opinion.
   5
     The majority states that the trial court received evidence in the form of
attachments to the defendants’ opposition to the plaintiff’s motion for partial
summary judgment. There was no evidentiary hearing at the time the motion
for partial summary judgment was argued by counsel. The defendants did
not have a full and fair opportunity to present testimony and documentary
evidence to prove their special defense of unclean hands. Judge Vacchelli
simply adopted Judge Domnarski’s ruling as the law of the case, even though
there had been no evidentiary hearing on the defendants’ claim of unclean
hands, thereby perpetuating the error.
   The majority agrees with the trial court that the legal effect of the § 47-
12a affidavit could be determined in another proceeding. This mandamus
action, however, is an equitable proceeding in which the special defense of
unclean hands should have been addressed. There is no need for yet another
proceeding between these parties.
   6
     The majority ‘‘conclude[s] that the doctrine of unclean hands is not
applicable to this case.’’ It is my position that the applicability of the doctrine
of unclean hands is a factual determination to be reached by the trial court
after evidence is presented at trial, and that the defendants should not have
been foreclosed from presenting such evidence to prove their special
defense.
   7
     Judge Vacchelli should not have applied the law of the case doctrine in
this case because the rendering of the partial summary judgment by Judge
Domnarski was ‘‘clearly erroneous and would work a manifest injustice if
followed . . . .’’ (Internal quotation marks omitted.) Lewis v. Gaming Pol-
icy Board, 224 Conn. 693, 697, 620 A.2d 780 (1993).
