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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).

HaleC. Sargent,forthe 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 thatit 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 payments, 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 pursuant 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 submitted 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] complaint 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 estoppel 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 Statutes §] 47a-1 (e).’’ On May 26, 2015, the court issued

the following addendum to its judgment: ‘‘The basis for

the courtfinding aftertrial, the defendant failed to prove

[the] counterclaims and special defenses, is the testimony 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 Nevertheless, 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 possession, 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 improperly 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 defendants’ appellate brief, in addressing this claim, they

argue that the court either predetermined or was predisposed to the conclusion that it lacked jurisdiction to

entertain the defendants’ equitable defenses and counterclaims.

The defendants have focused on an isolated statement 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 counterclaims 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 admissible. 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’ counterclaims. The court ‘‘discredited’’ the testimony of Gomez

and concluded that ‘‘[t]he defendants have failed to

prove [their] counterclaims . . . .’’ By rendering judgment 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 ‘‘unilaterally removed’’ as a party. According to the defendants, 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 improperly 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 plaintiff’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 courtroom 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 availthemselves of that opportunity 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 imposition of a constructive trust or a resulting trust upon

property. ‘‘A constructive trust arises contrary to intention 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 quotation 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. Lawrence, 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 testimony 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 plaintiff 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 contribution 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 plaintiff’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 defendants 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 constructive 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 ofthe temporary administrator

of his estate, Thomas C. C. Sargent, to be substituted as the plaintiff. Nevertheless, 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, equitable 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 forthe old prohibition against the application of equitable principles 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.