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 DREW FRIEDMAN ET AL. v. MARIA MARGARITA
             GOMEZ ET AL.
               (AC 37930)
                 Lavine, Alvord and Beach, Js.
       Argued January 18—officially released April 11, 2017

   (Appeal from Superior Court, judicial district of
 Stamford-Norwalk, Housing Session, Rodriguez, J.)
  Frederic S. Brody, with whom was Anne Louise
Blanchard, for the appellants (defendants).
 Hale C. Sargent, for the appellee (substitute plaintiff).
                         Opinion

   ALVORD, J. The defendants, Maria Margarita Gomez,
Guillermo Sanchez, Jr. (Sanchez Jr.), and Eric Sanchez,
appeal from the judgment of the trial court, rendered
after a trial to the court, in favor of the plaintiff Drew
Friedman1 on his summary process complaint and
against the defendants on their special defenses and
counterclaims. On appeal, the defendants claim that
the court (1) improperly limited its jurisdiction when it
concluded that it did not have the authority to determine
title to the subject property, (2) improperly determined
that Guillermo Sanchez, Sr. (Sanchez Sr.), was no longer
a party to this action, and (3) abused its discretion in
finding that the defendants failed to prove that they
had an equitable interest in the subject property. The
plaintiff claims that the defendants’ appeal is moot and
must be dismissed because they voluntarily vacated the
premises after the appeal was filed. We conclude that
the appeal is not moot, and we affirm the judgment of
the trial court.
   The court, as fact finder, reasonably could have found
the following facts. The plaintiff2 owned and managed
commercial and residential real estate properties in
Westport and Norwalk. Sanchez Sr. was employed by
the plaintiff and was well liked by him. Gomez and
Sanchez Sr. were married, and they lived with their two
children, Sanchez Jr. and Eric Sanchez, in an apartment
in Norwalk. Sanchez Sr. and Gomez wanted to purchase
a home, and they began to save money for that purpose.
The plaintiff, desirous of keeping Sanchez Sr. as an
employee and having available financial resources,
offered to assist by purchasing a two-family dwelling
located on Godfrey Street in Norwalk. The purchase
price was $250,000, and was paid in cash. The plaintiff
took title to the property in his name by warranty deed
recorded in the Norwalk land records on March 13,
2002.
  Sanchez Sr. contributed $7700 toward the $25,000
down payment and an additional $4009.55 in closing
costs. The plaintiff’s total contribution to the purchase
of the two-family dwelling totaled $243,785.60. Sanchez
Sr. and the plaintiff had an understanding that $240,000
of the amount paid constituted a loan from the plaintiff
to Sanchez Sr., which was to be repaid in 180 payments
at 7.5 percent interest. The first payment of principal
and interest was due May 1, 2002, and the final payment
was due April 1, 2017. The plaintiff provided Sanchez
Sr. with an amortization schedule with respect to the
loan payments. Sanchez Sr. and the plaintiff further
agreed that if Sanchez Sr. made all of the required pay-
ments, the plaintiff would convey title to the subject
property to him upon receipt of the final payment.
   Sanchez Sr. and the defendants occupied the second
floor of the two-family dwelling beginning in March or
April of 2002. Sanchez Sr., acting as the plaintiff’s agent,
rented the first floor to various tenants, collected the
rent, and maintained the property. He kept the rent and
paid the bills related to the subject property, including
the real estate taxes. Sanchez Sr. began to make the
required payments to the plaintiff, as set forth in the
amortization schedule, but subsequently fell behind and
eventually ceased making any payments. At the time of
trial, the plaintiff’s records indicated that the amount
due from Sanchez Sr. was $165,077.67 in principal and
$44,512.24 in interest. Sanchez Sr. vacated the property
in 2010, but the defendants continued to reside on the
second floor. The defendants made no payments pursu-
ant to the amortization schedule, nor did they pay the
plaintiff for use and occupancy of the property.
   The plaintiff served the defendants with a notice to
quit on June 6, 2014. The stated reason for the eviction
was as follows: ‘‘No right or privilege of possession by
one who formerly had such a right.’’ The defendants
continued to reside at the subject property, and the
plaintiff commenced this summary process action on
August 22, 2014. A trial was held in the Housing Session
at Norwalk on April 28, 2015. At that time, the plaintiff,
Gomez and Sanchez Jr. testified, and the plaintiff sub-
mitted five exhibits. Although the court ruled at the
beginning of the trial that Sanchez Sr. was no longer a
party to the action, the transcript of the trial reflects
that he was in the courtroom. Further, the plaintiff’s
counsel stated that Sanchez Sr. was available to testify
if the defendants chose to call him to the witness stand.
Sanchez Sr. was not called to testify as a witness by
either the plaintiff or the defendants.
   The court issued its notice of judgment on April 30,
2015. The decision provides as follows: ‘‘Judgment for
Plaintiff for Immediate Possession—After Trial. The
plaintiff has proven all of the allegations in [his] com-
plaint dated October 8, 2014. The defendants have failed
to prove [their] counterclaims of constructive trust in
[the] first count, resulting trust in the second count,
promissory estoppel in the third count, equitable estop-
pel in the fourth count and unjust enrichment in the
fifth count. Also there is insufficient evidence to support
the special defenses of estoppel, unclean hands, and
ownership by Maria Gomez, as defined in [General Stat-
utes §] 47a-1 (e).’’ On May 26, 2015, the court issued
the following addendum to its judgment: ‘‘The basis for
the court finding after trial, the defendant failed to prove
[the] counterclaims and special defenses, is the testi-
mony of Maria Gomez is discredited with regard to her
claims.’’ This appeal followed.3
                             I
  Before reaching the merits of the defendants’ claims
on appeal, we first must address the plaintiff’s claim
that the entire appeal is moot because the defendants
voluntarily vacated the subject premises on May 8, 2015.
‘‘Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
[a] court’s subject matter jurisdiction . . . . Because
courts are established to resolve actual controversies,
before a claimed controversy is entitled to a resolution
on the merits it must be justiciable. Justiciability
requires (1) that there be an actual controversy between
or among the parties to the dispute . . . (2) that the
interests of the parties be adverse . . . (3) that the
matter in controversy be capable of being adjudicated
by judicial power . . . and (4) that the determination
of the controversy will result in practical relief to the
complainant.’’ (Internal quotation marks omitted.)
Reveron v. Board of Firearms Permit Examiners, 123
Conn. App. 475, 477–78, 1 A.3d 1272 (2010).
   In their initial preliminary statement of issues filed
pursuant to Practice Book § 63-4 (a) (1), the defendants
claimed, inter alia, that the ‘‘trial court abused [its]
discretion in finding that the plaintiff proved all of the
allegations in the complaint.’’ After the defendants
vacated the property, they amended their statement of
issues and omitted any claims arising from the court’s
judgment for immediate possession on the plaintiff’s
summary process complaint. The issues remaining on
appeal all relate to the defendants’ counterclaims.4 Nev-
ertheless, the plaintiff argues that ‘‘[o]nce the issue of
possession becomes moot, the rationale for permitting
a counterclaim in a summary process action is lost.’’
We disagree.
   This court has ‘‘consistently held that an appeal from
a summary process judgment becomes moot where, at
the time of the appeal, the defendant is no longer in
possession of the premises.’’ (Internal quotation marks
omitted.) Cheshire v. Lewis, 75 Conn. App. 892, 893,
817 A.2d 1277, cert. denied, 264 Conn. 905, 826 A.2d 177
(2003). Here, the defendants concede that any claims
concerning the summary process judgment are now
moot and that, as a result, they are pursuing the appeal
only insofar as it challenges the judgment rendered
against them on the counterclaims. The counterclaims
in this action concern ownership, rather than posses-
sion, of the property. If this court should decide in favor
of the defendants with respect to their claims on appeal,
the defendants may be afforded practical relief with
respect to their entitlement to ownership rights in the
property or monetary compensation. Accordingly, we
conclude that the claims in the present appeal are
not moot.
                             II
    The defendants’ first claim is that the court improp-
erly limited its jurisdiction when it concluded that it
did not have the authority to determine title to the
subject property. Specifically, the defendants argue that
‘‘[t]he trial court stated that while it was a court of
equity, it did not have the authority to determine title.’’5
The defendants claim that the ‘‘court’s belief that it
could not make equitable determinations prejudiced
[the] defendants.’’ No less than four times in the defen-
dants’ appellate brief, in addressing this claim, they
argue that the court either predetermined or was predis-
posed to the conclusion that it lacked jurisdiction to
entertain the defendants’ equitable defenses and coun-
terclaims.
    The defendants have focused on an isolated state-
ment of the court in support of this claim. Immediately
following the challenged remark, the court stated: ‘‘Title
. . . to the property can be considered in terms of the
claims of equity, but I don’t hear you coming up with
anything other than testimonial evidence that there’s a
belief that [Gomez has an] ownership [interest] in this
property . . . .’’ Further, when the defendants’ counsel
offered to provide citations to cases that hold that coun-
terclaims relating to the ownership of the property can
be raised in the Housing Session,6 the court responded:
‘‘I don’t need citations. . . . I need competent evidence
to support that claim, and I don’t—I don’t hear you
offering anything yet . . . .’’ Shortly thereafter, which
was immediately before the defendants began their
case-in- chief, the court commented to the defendants’
counsel: ‘‘I’m not going to foreclose you from close—
from presenting what you think is relevant and admissi-
ble. It may not be admissible, but you go ahead.’’ At no
point did the court indicate that it lacked jurisdiction
to hear and rule on the defendants’ equitable defenses
and counterclaims.
  Moreover, in the notice of judgment, the court
expressly ruled on each of the defendants’ counter-
claims. The court ‘‘discredited’’ the testimony of Gomez
and concluded that ‘‘[t]he defendants have failed to
prove [their] counterclaims . . . .’’ By rendering judg-
ment against the defendants on their counterclaims, the
court clearly exercised its authority in determining the
defendants’ equitable claims. Accordingly, this claim is
without merit.
                            III
   The defendants next claim that the court improperly
determined that Sanchez Sr. was no longer a party to
this action. They argue that because Sanchez Sr. was
a plaintiff in the initial complaint, he could not be ‘‘uni-
laterally removed’’ as a party. According to the defen-
dants, Sanchez Sr. ‘‘was misjoined as a party to this
action,’’ and ‘‘[t]he exclusive remedy for misjoinder of
parties is by motion to strike.’’ Because the plaintiff did
not file a motion to strike Sanchez Sr. as a misjoined
party, the defendants claim that the trial court improp-
erly determined that the operative revised complaint
pertained to the named plaintiff only.
  The cases cited by the defendants in support of this
claim are not applicable to the present situation.
Motions to strike misjoined parties are filed by opposing
parties. In this action, Sanchez Sr., as a plaintiff, simply
could withdraw his complaint against the defendants.
The trial court ruled that, by filing a revised complaint
that eliminated all allegations by Sanchez Sr. against
the defendants, the matter had to proceed with only
the named plaintiff as the party plaintiff.
   General Statutes § 52-80 provides in relevant part:
‘‘The plaintiff may withdraw any action . . . before the
commencement of a hearing on the merits thereof. After
the commencement of a hearing on an issue of fact in
any such action, the plaintiff may withdraw such action
. . . only by leave of court for cause shown.’’ ‘‘If the
requisite hearing has not commenced, then the plain-
tiff’s right to withdraw is ‘absolute and unconditional.’ ’’
Melendez v. Commissioner of Correction, 141 Conn.
App. 836, 843, 62 A.3d 629, cert. denied, 310 Conn. 921,
77 A.3d 143 (2013); see also Daigneault v. Consolidated
Controls Corp./Eaton Corp., 89 Conn. App. 712, 714,
875 A.2d 46, cert. denied, 276 Conn. 913, 888 A.2d 83
(2005), cert. denied, 546 U.S. 1217, 126 S. Ct. 1434, 164
L. Ed. 2d 137 (2006).
  Furthermore, Sanchez Sr. was present in the court-
room at the time of trial and could have been called to
testify as a witness by the plaintiff or the defendants.
The defendants did not avail themselves of that opportu-
nity and cannot now claim to be prejudiced when it is
not known what the testimony of Sanchez Sr. would
have been.
                            IV
   The defendants’ final claim is that the court abused
its discretion in finding that they failed to prove that
they had an equitable interest in the subject property.
Specifically, the defendants argue that ‘‘the trial court’s
discrediting of [Gomez’] testimony is clearly erroneous
and without support in the record.’’ Further, they claim
that ‘‘the substance of [the plaintiff’s] testimony clearly
shows that [Sanchez Sr.] acted in the role of owner.’’
The defendants’ argument is not persuasive.
   We first set forth the principles governing the imposi-
tion of a constructive trust or a resulting trust upon
property. ‘‘A constructive trust arises contrary to inten-
tion and in invitum, against one who, by fraud, actual
or constructive, by duress or abuse of confidence, by
commission of wrong, or by any form of unconscionable
conduct, artifice, concealment, or questionable means,
or who in any way against equity and good conscience,
either has obtained or holds the legal right to property
which he ought not, in equity and good conscience,
hold and enjoy. . . . A constructive trust arises . . .
when a person who holds title to property is subject
to an equitable duty to convey it to another on the
ground that he would be unjustly enriched if he were
permitted to retain it. . . . The issue raised by a claim
for a constructive trust is, in essence, whether a party
has committed actual or constructive fraud or whether
he or she has been unjustly enriched.’’ (Internal quota-
tion marks omitted.) Mitchell v. Redvers, 130 Conn.
App. 100, 112–13, 22 A.3d 659 (2011).
   ‘‘A resulting trust arises by operation of law at the
time of a conveyance when the purchase money for
property is paid by one party and the legal title is taken
in the name of another. . . . The presumption of the
existence of such a trust, however, is one of fact rather
than law and may be rebutted by proof of contrary
intent. . . . The existence of a resulting trust is an issue
of fact. . . . If it can be proved that the intention of
the parties was otherwise, there is no resulting trust.
. . . In deciding . . . what the intent of the parties was
at the time of the conveyance, the court [must] rely
upon its impression of the credibility of the witnesses.
Intent is a question of fact, the determination of which
is not reviewable unless the conclusion drawn by the
trier is one which could not reasonably be drawn.’’
(Internal quotation marks omitted.) Levinson v. Law-
rence, 162 Conn. App. 548, 554, 133 A.3d 468 (2016).
  The record in this case amply supports the trial
court’s determination that the defendants failed to
prove their entitlement to a constructive trust or a
resulting trust on the subject property. First, it is
important to note that the court ‘‘discredited’’ the testi-
mony of Gomez. Because intent is a significant issue
in actions claiming such equitable remedies, it was
within the province of the trial court to credit or to
discredit testimony as it deemed fit. The court was not
required to believe Gomez as to her version of the facts
relating to intent at the time the plaintiff took title to
the property. See Cadle Co. v. D’Addario, 268 Conn.
441, 462, 844 A.2d 836 (2004); Walter v. Home National
Bank & Trust Co., 148 Conn. 635, 639, 173 A.2d 503
(1961).
   The evidence presented, which reasonably could
have been credited by the trial court, was that the plain-
tiff contributed $243,785.60 and Sanchez Sr. contributed
$11,709.55 to purchase the property. Sanchez Sr. and
the plaintiff considered $240,000 of the plaintiff’s contri-
bution to be a loan to Sanchez Sr., to be paid back in
180 payments at 7.5 percent interest. If Sanchez Sr.
made all of the required payments pursuant to the plain-
tiff’s amortization schedule, the plaintiff would then
convey title to Sanchez Sr. Sanchez Sr. made some
payments but then defaulted. At the time of the trial,
Sanchez Sr. owed $165,077.67 in principal and
$44,512.24 in interest. All of the payments made toward
the repayment of the loan were paid by Sanchez Sr.; the
defendants made no payments.7 No use and occupancy
payments were ever made by Sanchez Sr. or the defen-
dants during the thirteen year period of time that they
resided at the property. No documentation was submit-
ted to show that Sanchez Sr. or the defendants acquired
an ownership interest in the property at the time of the
March 13, 2002 closing.
   Under these circumstances, there is no evidence to
suggest that the plaintiff committed actual or construc-
tive fraud or that he was unjustly enriched by taking
and retaining title to the property. Further, the intent
was that the plaintiff would convey title to Sanchez Sr.
only after he fully repaid the loan, which he never did.
Accordingly, the trial court did not abuse its discretion
in determining that the defendants failed to prove that
they had an equitable interest in the property.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
     A notice to quit was served on June 6, 2014, and a summary process
complaint was filed on August 26, 2014, by Friedman and Guillermo Sanchez,
Sr., against the three defendants. The complaint was revised on October 8,
2014. The revised complaint deleted all references to Guillermo Sanchez,
Sr., and contained allegations by Friedman only as the named plaintiff. The
trial court ruled that Guillermo Sanchez, Sr., was no longer a party to the
summary process action.
   2
     The plaintiff died on February 27, 2016, after this appeal was filed by
the defendants. This court granted the motion of the temporary administrator
of his estate, Thomas C. C. Sargent, to be substituted as the plaintiff. Never-
theless, for the sake of convenience, we refer to Friedman as the plaintiff
in this opinion.
   3
     On June 8, 2015, the defendants filed a motion for articulation, requesting
the trial court to set forth ‘‘the specific facts and law upon which [it] relied
. . . in finding the defendants failed to prove their counterclaims.’’ The trial
court responded to the motion as follows: ‘‘See notices sent on 4/30/15 [and]
5/26/15 enclosed.’’ The defendants timely filed a motion for review with this
court requesting further explanation from the trial court. On September 24,
2015, notice was sent of an order issued by this court that granted the
motion for review but denied the relief requested.
   4
     In their counterclaims, the defendants alleged promissory estoppel, equi-
table estoppel, and unjust enrichment. In the relief requested, the court was
asked to order the conveyance of a one-half interest in the property to
Gomez and to impose a constructive trust or a resulting trust on the property.
   5
     The defendants reference the following exchange between the court and
the defendants’ counsel:
   ‘‘The Court: And remember that this is a housing court. This is a Superior
Court Housing Session. I know it’s a court of equity.
   ‘‘[The Defendants’ Counsel]: Yes, Your Honor.
   ‘‘The Court: But it’s not a court where title is quieted or anything like that.’’
   6
     It is well settled that ‘‘[e]quitable defenses and counterclaims implicating
the right to possession are available in a summary process proceeding.’’
(Internal quotation marks omitted.) Cumberland Farms, Inc. v. Dairy Mart,
Inc., 225 Conn. 771, 777, 627 A.2d 386 (1993). ‘‘[T]here is no longer sufficient
justification for the old prohibition against the application of equitable princi-
ples barring forfeitures to summary process . . . the prohibition, arising
from an obsolete system, is itself obsolete . . . and . . . equitable defenses
and counterclaims implicating the right to possession are available in a
summary process proceeding.’’ Fellows v. Martin, 217 Conn. 57, 62, 584
A.2d 458 (1991). ‘‘[T]he scope of allowable issues in a summary process
action has been broadened to include complex equitable issues to be filed
as special defenses. . . . Such issues had previously been unavailable in
summary process actions. . . . Since the defendants’ claims could have
been asserted as special defenses, judicial economy dictates that they may
also be asserted as the basis of a counterclaim.’’ (Citations omitted.) Filosi
v. Hawkins, 1 Conn. App. 634, 635 n.1, 474 A.2d 1261 (1984).
   7
     At trial, Gomez confirmed that all of the payments made to the plaintiff
were made by Sanchez Sr. She also testified that she never made any use
and occupancy payments to the plaintiff.
   The defendants also claim that they made improvements to the property,
but no evidence was submitted as to the value of those improvements, nor
was evidence submitted to substantiate that claim.
