D2E Holdings, LLC v. Corp. for Urban Home Ownership of New Haven ( 2022 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears 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 reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
D2E HOLDINGS, LLC v. CORPORATION FOR URBAN
HOME OWNERSHIP OF NEW HAVEN
(AC 44218)
(AC 44656)
Alvord, Suarez and Bishop, Js.
Syllabus
The plaintiff sought to recover damages from the defendant for breach of
contract in connection with a real estate contract in which the plaintiff
agreed to purchase from the defendant certain residential units. The
real estate contract required the plaintiff to obtain mortgage financing
by a certain date and mandated that the defendant provide to the plaintiff
various documents, to the extent such documents were existing and
available. The defendant did not supply all of the documents requested
by the plaintiff because certain documents did not yet exist. The closing
date expired and the plaintiff never obtained mortgage financing. The
plaintiff commenced this action alleging that the defendant breached
the implied covenant of good faith and fair dealing by failing to provide
it with the necessary documents for it to obtain mortgage financing and
by retaining the plaintiff’s deposit without intent to transfer title to the
units. The defendant impleaded B Co. into the action by way of a third-
party complaint. B Co. and the defendant had attempted to enter into
a property management agreement. B Co., however, did not exist as a
corporate entity on the date that the agreement was executed. P, a
manager of B Co., signed the agreement, despite the fact that P was
not a party to the agreement. B Co. filed a third-party counterclaim
against the defendant alleging that the defendant breached the manage-
ment agreement and was unjustly enriched when it failed to pay B Co.
for all of its services. After a trial to the court, the trial court found in
favor of the defendant as to the plaintiff’s claim alleging breach of the
implied covenant of good faith and fair dealing, concluding that the
defendant had no obligation to provide the plaintiff with documents
that did not exist. The court rendered judgment in favor of the defendant
as to B Co.’s breach of contract claim on the ground that the management
agreement was a ‘‘nullity’’ because B Co. did not exist when the manage-
ment agreement was executed. The plaintiff and B Co. appealed from
the trial court’s judgment, and, while that appeal was pending, the
plaintiff filed a motion to open the trial court’s judgment on the ground
that the defendant engaged in fraud by concealing that it had sold the
residential units to another entity for a higher price. The court denied
the motion, reasoning that, even if the plaintiff’s contentions were true,
this would not have affected its determination that the defendant per-
formed its obligations under the contract, and the plaintiff filed a sepa-
rate appeal to this court, which consolidated the appeals. Held:
1. The plaintiff could not prevail on its claim that the trial court improperly
rendered judgment in favor of the defendant on the plaintiff’s claim
alleging that the defendant breached the implied covenant of good faith
and fair dealing, which was based on its claim that the court incorrectly
determined that the defendant did not act in bad faith by failing to
provide to the plaintiff the documents necessary for it to obtain mortgage
financing and by accepting the plaintiff’s deposit without the intent to
transfer title to the residential units: the court determined that the
defendant did not act in bad faith by failing to provide the plaintiff with
documents to secure financing that did not exist, the agreement does
not mandate that the defendant create nonexistent documents, rather,
the agreement mandates the opposite, namely, that the defendant must
provide the plaintiff with documents that are existing and available;
moreover, the defendant did not act in bad faith by retaining the plain-
tiff’s deposit because the agreement permitted the defendant to retain
the deposit in the event that the plaintiff defaulted, and it was undisputed
that the plaintiff defaulted on its obligations because it did not obtain
mortgage financing to comply with the agreement.
2. This court declined to review B Co.’s claim that the trial court improperly
rendered judgment in favor of the defendant on B Co.’s breach of con-
tract counterclaim, which was based on its claim that the court incor-
rectly determined that the management agreement between B Co. and
the defendant was a nullity: the trial court did not review any of the
fact bound arguments made by B Co. in support of its claim that it was
able to enforce the agreement against the defendant, and, therefore, the
record was inadequate for this court to consider B Co.’s arguments
because the court never made the requisite determination as to the
issues of P’s capacity, as to P’s assignment of the agreement and the
defendant’s ratification of the agreement, and B Co. failed to seek reargu-
ment or an articulation as to any of these grounds; moreover, although
B Co. lacked the capacity to enter into the management agreement
because it did not exist as a corporate entity at the time the agreement
was executed, B Co.’s lack of capacity did not, by itself, render the
agreement a nullity, as the management agreement may have been
enforceable between P and the defendant if P had the capacity to execute
the agreement on behalf B Co., however, the issue of P’s capacity was
not determined by the court, which determined only that the agreement
was a nullity because B Co. was not yet legally formed.
3. The plaintiff’s claim that the trial court incorrectly determined that it
failed to make a threshold showing of fraud in order to warrant limited
discovery and an evidentiary hearing on its motion to open was unavail-
ing: the trial court did not abuse its discretion in denying the plaintiff’s
motion to open because the plaintiff failed to make a threshold showing
of substance warranting the opening of the judgment, that court having
correctly determined that, even if the defendant sold the residential
units to another entity, this would have had no impact on its judgment
rendered in favor of the defendant, as the court determined that the
defendant complied with the real estate agreement, and the defendant’s
interactions with a separate buyer were immaterial to the plaintiff’s
claims.
Argued March 8—officially released May 31, 2022
Procedural History
Action to recover damages for breach of contract,
and for other relief, brought to the Superior Court in
the judicial district of New Haven, where the defendant
filed a counterclaim and a third-party complaint; there-
after, the third-party defendants filed a third-party coun-
terclaim; subsequently, the matter was tried to the
court, Hon. Jon C. Blue, judge trial referee; judgment
for the defendant on the complaint, for the plaintiff on
the counterclaim, for the third-party defendants on the
third-party complaint, and for the third-party defendant
Dragon Bridge Management, LLC, in part on its third-
party counterclaim, from which the plaintiff and the
third-party counterclaim plaintiffs appealed to this
court; thereafter, the court, Hon. Jon C. Blue, judge
trial referee, denied the plaintiff’s motion to open the
judgment, and the plaintiff filed a separate appeal to
this court; subsequently, the third-party counterclaim
plaintiff Eduardo Perez withdrew his appeal; thereafter,
this court consolidated the appeals. Affirmed.
Danielle J. B. Edwards, for the appellant in Docket
Nos. 44218 and 44656 (plaintiff).
Peter V. Lathouris, with whom, on the brief, was
Victor Andreou, for the appellant in Docket No. 44218
(third-party defendant Dragon Bridge Management,
LLC).
Scott E. Jackson, for the appellee in Docket Nos.
44218 and 44656 (defendant).
Opinion
BISHOP, J. These consolidated appeals arise from a
dispute among the plaintiff, D2E Holdings, LLC (D2E
Holdings), the defendant, third-party plaintiff, and third-
party counterclaim defendant, Corporation for Urban
Home Ownership of New Haven (CUHO), and the third-
party defendant and third-party counterclaim plaintiff,
Dragon Bridge Management, LLC (Dragon Bridge).1 In
Docket No. AC 44218, D2E Holdings and Dragon Bridge
appeal from the judgment of the trial court, rendered
after a trial to the court, in favor of CUHO. In Docket
No. AC 44656, D2E Holdings appeals from the judgment
of the trial court denying its motion to open the judg-
ment in favor of CUHO.2 The parties advance three
claims in their appeals. In AC 44218, D2E Holdings
claims that the court improperly rendered judgment in
favor of CUHO on D2E Holdings’ breach of the implied
covenant of good faith and fair dealing claim; in the
same docket, Dragon Bridge claims that the court
improperly rendered judgment in favor of CUHO on
Dragon Bridge’s breach of contract counterclaim. In AC
44656, D2E Holdings claims that the court incorrectly
determined that it failed to make a threshold showing
of fraud in order to warrant limited discovery and an
evidentiary hearing on its motion to open. We affirm
the judgments of the court.
The following factual findings of the court and proce-
dural history are relevant to the issues raised in this
appeal. The present dispute stems from two separate
but related contracts: a property management agree-
ment between CUHO and Dragon Bridge, and a real
estate contract between CUHO and D2E Holdings.
On March 7, 2017, CUHO and Dragon Bridge attempted
to enter into an exclusive property management agree-
ment. In the management agreement, Dragon Bridge, des-
ignated in the agreement as the ‘‘MANAGER,’’ agreed
to be CUHO’s ‘‘exclusive managing agent to rent, lease,
operate, maintain, manage, and supervise and coordi-
nate the rental, leasing, operation, and maintenance’’
of specified properties owned by CUHO in exchange for
a payment of $7000 per month. The management agree-
ment also contained a liquidated damages provision
in which CUHO agreed to pay Dragon Bridge twelve
months of management fees in the event that CUHO
prematurely terminated the management agreement.
Dragon Bridge, however, did not exist as a corporate
entity on the date that the management agreement was
executed, March 7, 2017, because it was not incorpo-
rated until March 14, 2017. Eduardo Perez was
‘‘employ[ed] . . . as a manager’’ of Dragon Bridge.
Perez signed the management agreement, despite the
fact that Perez was not individually named as a party
to the management agreement.3 Nevertheless, between
April, 2017, and October, 2017, Dragon Bridge provided
services to CUHO pursuant to the management agree-
ment, and CUHO paid Dragon Bridge for a majority of
its services. In October, 2017, or November, 2017, CUHO
asked Dragon Bridge not to return to its property.
On October 3, 2017, D2E Holdings and CUHO entered
into a real estate contract, through which D2E Holdings
agreed to purchase from CUHO seventy-three residen-
tial units in New Haven in exchange for $2,900,000. The
real estate contract contained a financial contingency
provision in § 3.3 (a) that required D2E Holdings to
obtain ‘‘a commitment from a recognized lending insti-
tution to provide purchase money mortgage financing’’
on or before October 31, 2017. Section 3.1 of the real
estate contract mandated that CUHO provide to D2E
Holdings sixteen types of statements, including those
regarding income and expenses, ‘‘[t]o the extent such
documents are existing and available . . . .’’ Sections
2.2 (a) and 6.1 of the real estate contract required D2E
Holdings to provide CUHO with an initial deposit of
$100,000, which could be retained by CUHO if D2E
Holdings defaulted on any of its obligations.
In accordance with these provisions in the real estate
contract, D2E Holdings provided CUHO’s attorney with
$100,000 as an initial deposit. D2E Holdings also
requested that CUHO provide it with certain documents
so that it could obtain financing from Liberty Bank.
CUHO supplied D2E Holdings with all of the documents
that were required pursuant to the real estate contract,
but did not provide all of the documents requested by
D2E Holdings because those documents ‘‘did not yet
exist’’ and could not be created by the closing date.
Consequently, D2E Holdings never submitted a full
mortgage loan application, never obtained mortgage
financing, and the November 30, 2017 closing date
expired without a closing.
The parties thereafter engaged in the underlying liti-
gation stemming from the management agreement and
the real estate contract. D2E Holdings instituted an
action by way of a complaint against CUHO, alleging
that CUHO breached the covenant of good faith and
fair dealing implied in the real estate contract by failing
to provide D2E Holdings with the necessary documents
for it to secure mortgage financing and by retaining
D2E Holdings’ initial deposit without actual intent to
transfer title to the subject units. In that action, D2E
Holdings sought specific performance of conveyance
of title and ‘‘[a]ctual damages . . . .’’ After being
impleaded by way of a third-party complaint filed by
CUHO, Dragon Bridge filed a counterclaim against
CUHO, alleging that CUHO breached the management
agreement and was unjustly enriched when it failed to
pay Dragon Bridge all of the fees for its services. In its
counterclaim, Dragon Bridge claimed that it suffered
damages in the amount of $96,200, on the basis of the
liquidated damages provision in the management agree-
ment.
On March 3 and 5, 2020, all of the parties’ claims
were tried to the court, and the court issued a memoran-
dum of decision on August 6, 2020. Through its memo-
randum of decision, the court found in favor of CUHO
as to D2E Holdings’ breach of the implied covenant of
good faith and fair dealing claim because it concluded
that CUHO had no obligation to provide D2E Holdings
with financial documents that did not exist at the time
the real estate contract was executed. The court also
found in favor of CUHO as to Dragon Bridge’s breach
of contract claim on the ground that the management
agreement was a ‘‘nullity’’ because Dragon Bridge was
a nonexistent entity on the date that the management
agreement was executed. The court, nevertheless, ren-
dered judgment in the amount of $7000 against CUHO
on Dragon Bridge’s unjust enrichment claim for the
services provided by Dragon Bridge for one month,
which represented the unpaid services that Dragon
Bridge provided. D2E Holdings and Dragon Bridge then
filed this appeal.
During the pendency of this appeal, D2E Holdings,
on March 11, 2021, filed a motion to open seeking to
vacate the trial court’s judgment in favor of CUHO. In
support of its motion, D2E Holdings contended that
CUHO engaged in fraud by concealing in discovery that
it had sold the subject rental units to another entity for
a higher price. On April 6, 2021, the court issued a
memorandum of decision denying D2E Holdings’ motion
to open. The court concluded that CUHO’s ‘‘allegedly
impure motives and the existence or nonexistence of
any side deals are legally irrelevant’’ because the court
specifically found in its memorandum of decision that
CUHO had complied with the real estate contract. D2E
Holdings filed a separate appeal from the trial court’s
denial of its motion to open, and this court consolidated
both appeals. Additional facts will be set forth as neces-
sary.
I
D2E Holdings claims on appeal that the court improp-
erly rendered judgment for CUHO on D2E Holdings’
breach of the implied covenant of good faith and fair
dealing claim. Specifically, D2E Holdings argues that
the court incorrectly determined that CUHO did not
act in bad faith by failing to create and provide to D2E
Holdings the documents necessary for D2E Holdings
to obtain mortgage financing, and by accepting D2E
Holdings’ initial deposit without the intent to transfer
title to the subject units. We are not persuaded.
We begin with the applicable standard of review and
relevant legal principles that govern the resolution of
this claim. Although D2E Holdings frames its claim as
challenging the legal standard used by the court, the
whole of its argument reveals that its claim challenges
the court’s application of the standard to the evidence
presented at trial. See, e.g., State v. Acker, 160 Conn.
App. 734, 741–42, 125 A.3d 1057 (2015) (reframing claim
on appeal on basis of content of appellant’s brief, despite
title of claim, stated standard of review, and character-
ization of claim used by appellant), cert. denied, 320
Conn. 915, 131 A.3d 750 (2016). We apply plenary review
to this claim because the issue of whether undisputed
facts meet a particular legal standard is a question of
law.4 Burns v. Adler, 325 Conn. 14, 33, 155 A.3d 1223(2017). Likewise, to the extent we are required to inter-
pret the real estate contract, the language of which is
plain and unambiguous, our review also is plenary. See
Gallagher v. Fairfield, 339 Conn. 801, 807, 262 A.3d
742 (2021).
‘‘[I]t is axiomatic that the . . . duty of good faith and
fair dealing is a covenant implied into a contract or a
contractual relationship. . . . In other words, every
contract carries an implied duty requiring that neither
party do anything that will injure the right of the other
to receive the benefits of the agreement. . . . The cove-
nant of good faith and fair dealing presupposes that the
terms and purpose of the contract are agreed upon
by the parties and that what is in dispute is a party’s
discretionary application or interpretation of a contract
term.’’ (Internal quotation marks omitted.) Geysen v.
Securitas Security Services USA, Inc., 322 Conn. 385,
399, 142 A.3d 227 (2016). ‘‘Essentially [the implied cove-
nant of good faith and fair dealing] is a rule of construc-
tion designed to fulfill the reasonable expectations of
the contracting parties as they presumably intended.
The principle, therefore, cannot be applied to achieve
a result contrary to the clearly expressed terms of a
contract, unless, possibly, those terms are contrary to
public policy.’’ (Internal quotation marks omitted.) Id.,399 n.11. ‘‘[S]tated otherwise, the claim [that the implied
covenant has been breached] must be tied to an alleged
breach of a specific contract term, often one that allows
for discretion on the part of the party alleged to have
violated the duty . . . .’’ (Internal quotation marks
omitted.) Id., 399.
‘‘To constitute a breach of [the implied covenant of
good faith and fair dealing], the acts by which a defen-
dant allegedly impedes the plaintiff’s right to receive
benefits that he or she reasonably expected to receive
under the contract must have been taken in bad faith.’’
(Internal quotation marks omitted.) Dorfman v. Smith,
342 Conn. 582, 597, 271 A.3d 53 (2022). ‘‘Bad faith in
general implies . . . actual or constructive fraud, or a
design to mislead or deceive another, or a neglect or
refusal to fulfill some duty or some contractual obliga-
tion, not prompted by an honest mistake as to one’s
rights or duties, but by some interested or sinister
motive. . . . Bad faith means more than mere negli-
gence; it involves a dishonest purpose. . . . [B]ad faith
may be overt or may consist of inaction, and it may
include evasion of the spirit of the bargain . . . .’’ (Cita-
tion omitted; internal quotation marks omitted.) Geysen
v. Securitas Security Services USA, Inc., supra, 322
Conn. 399–400; see also Magnan v. Anaconda Indus-
tries, Inc., 193 Conn. 558, 567, 479 A.2d 781 (1984)
(party does not act in bad faith by complying with ‘‘the
clearly expressed terms of a contract’’).
In Financial Freedom Acquisition, LLC v. Griffin,
176 Conn. App. 314, 341, 170 A.3d 41, cert. denied, 327
Conn. 931, 171 A.3d 454 (2017), this court held that a
party’s implied covenant claim fails when it is contin-
gent on a misinterpretation of a contractual provision.
In Griffin, the defendants’ implied covenant claim was
predicated on a provision in a ‘‘note prescribing the
date on which repayment of the loan was due.’’ Id. The
defendants construed the ‘‘provision as granting the
executrix a right to unilaterally extend the repayment
deadline and as imposing upon the named plaintiff an
obligation to honor the executrix’s unilateral decision
to extend the deadline.’’ Id. This court rejected the
defendants’ construction and held that the plaintiff did
not breach the implied covenant of good faith and fair
dealing because ‘‘the unambiguous language of the pro-
vision permits, but does not require, the parties to
extend the repayment deadline by entering into a sepa-
rate written agreement.’’ (Emphasis omitted.) Id. This
court reasoned that ‘‘[t]he defendants mistakenly con-
strue the provision as granting the executrix a right
to unilaterally extend the repayment deadline and as
imposing upon the named plaintiff an obligation to
honor the executrix’s unilateral decision to extend the
deadline. The provision guarantees no such right to the
executrix and imposes no such obligation on the named
plaintiff.’’ Id., 341–42. Accordingly, this court concluded
that the defendants’ implied covenant claim failed
because it was ‘‘not predicated on a breach of an express
term in the note . . . and the named plaintiff’s conduct
did not impair any contractual right of the decedent or
her estate. . . . That is, the note guaranteed no con-
tractual right to an extension to sell the property, and,
consequently, the named plaintiff did not breach the
terms of the note by never agreeing to such an exten-
sion.’’ (Citations omitted.) Id., 342–43.
The court in the present case determined that CUHO
did not breach the implied covenant of good faith and
fair dealing on the ground that it did not act in bad
faith by failing to provide D2E Holdings with documents
to secure financing that did not exist at the time the
parties entered into the real estate contract. The court
set forth the standard for implied covenant claims pre-
scribed by Geysen, and reasoned that, ‘‘[u]nder the
express terms of the [real estate] contract, CUHO had
no obligation to provide D2E [Holdings] with docu-
ments that did not exist. If D2E [Holdings] had wanted
to require CUHO to create hitherto nonexistent docu-
ments, it could have placed such an obligation in the
[real estate] contract. It did not. There is no evidence
that CUHO accepted the deposit without actual intent
to transfer title to the [subject units].’’ The court further
held that ‘‘CUHO’s retention of the deposit during the
course of this litigation violates neither the express
terms of the [real estate] contract nor the implied cove-
nant of good faith and fair dealing. That sum was depos-
ited ‘as an initial deposit . . . to be applied to the [p]ur-
chase [p]rice, concurrently with the execution of this
[real estate] [c]ontract.’ Section 2.2 (a). It is also ‘to be
credited against [any] liquidated damages sum.’ Section
6.1. Under these circumstances, judgment on the sec-
ond count must enter for [CUHO].’’
On the basis of the foregoing, we conclude that the
court correctly determined that CUHO did not breach
the implied covenant of good faith and fair dealing. As
the court aptly held, the plain language of the real estate
contract belies D2E Holdings’ claim because it does not
mandate that CUHO create nonexistent documents. The
real estate contract unambiguously provides in § 3.1
that, ‘‘[t]o the extent such documents are existing and
available to [CUHO] and to the extent such information
has not been previously provided, [CUHO] shall provide
copies of [certain] documents to [D2E Holdings] within
five (5) days after the date that a full and complete
executed original of this [real estate] [c]ontract is
received by [D2E Holdings] . . . unless such docu-
ments have been previously delivered to [D2E Holdings]
. . . .’’ There is no language in this provision, or other-
wise in the real estate contract, mandating that CUHO
create nonexistent documents and provide them to D2E
Holdings. Rather, § 3.1 mandates the precise opposite:
that CUHO must provide D2E Holdings with documents
that ‘‘are existing and available . . . .’’ (Emphasis
added.) Just as in Griffin, CUHO’s ‘‘conduct did not
impair any contractual right’’ because the real estate
contract did not obligate CUHO to create nonexistent
documents. Financial Freedom Acquisition, LLC v.
Griffin, supra, 342.
Accordingly, D2E Holdings’ implied covenant claim
contradicts § 3.1 of the real estate contract because it
seeks to mandate that CUHO create and provide docu-
ments that are not existing and not available. Our
Supreme Court has made clear that the implied cove-
nant of good faith and fair dealing cannot be applied
to achieve a ‘‘result contrary to the clearly expressed
terms of a contract . . . .’’ (Internal quotation marks
omitted.) Geysen v. Securitas Security Services USA,
Inc., supra, 322 Conn. 399 n.11.5 If D2E Holdings wanted
to ensure that CUHO create all documents required for
it to obtain financing, including those that did not exist,
it could have included that language in the real estate
contract. In the absence of such a mandate, CUHO did
not breach the implied covenant of good faith and fair
dealing, as it could not have engaged in ‘‘actual or con-
structive fraud, or a design to mislead or deceive
another, or a neglect or refusal to fulfill some duty
or some contractual obligation’’ because there was no
contractual obligation mandating that it create docu-
ments for D2E Holdings. (Internal quotation marks
omitted.) Id., 399–400; Financial Freedom Acquisition,
LLC v. Griffin, supra, 176 Conn. App. 341–43.
We reach the same conclusion as to CUHO’s retention
of D2E Holdings’ initial deposit. CUHO did not act in
bad faith by retaining D2E Holdings’ deposit because
the express terms of §§ 2.2 (a) and 6.1 of the real estate
contract permitted CUHO to retain the initial deposit
in the event that D2E Holdings defaulted. In the present
case, it is undisputed that D2E Holdings was unable to
obtain mortgage financing to comply with § 3.3 (a) of
the real estate contract and, thus, D2E Holdings defaulted
on its contractual obligations. CUHO’s retention of that
initial deposit cannot be the basis for D2E Holdings’
implied covenant claim because the real estate contract
expressly permitted CUHO to do so. See Geysen v.
Securitas Security Services USA, Inc., supra, 322 Conn.
399. Therefore, we conclude that the court correctly
determined that D2E Holdings failed to prevail on its
implied covenant claim against CUHO.
II
Dragon Bridge claims on appeal that the court improp-
erly rendered judgment for CUHO on Dragon Bridge’s
breach of contract third-party counterclaim. Particu-
larly, Dragon Bridge argues that the court incorrectly
determined that the management agreement between
Dragon Bridge and CUHO was a ‘‘ ‘nullity . . . .’ ’’ For
the reasons set forth below, we are unable to review
Dragon Bridge’s claim.
The court determined that Dragon Bridge failed to
prevail on its breach of contract counterclaim against
CUHO on the ground that the management agreement
was a nullity because Dragon Bridge did not yet exist
at the time of its execution. The court found: ‘‘The
first count of the counterclaim in the third-party action
alleges breach of contract. It specifically alleges that
CUHO breached the [management] agreement in that
it: (a) failed to pay Dragon Bridge the management fee
for the month of October, 2017, (b) failed to pay Dragon
Bridge ‘the early termination fee,’ and (c) failed to pro-
vide ‘the required information and documents.’ The sec-
ond special defense alleges that Dragon Bridge did not
exist on March 7, 2017, when the [management] agree-
ment was signed. The evidence establishes that Dragon
Bridge was incorporated on March 14, 2017, the date its
articles of incorporation were filed with the Secretary
of the State. . . . A corporation begins ‘its corporate
existence’ on the day that its certificate of incorporation
is filed with the Secretary of the State. DiFrancesco v.
Kennedy, 114 Conn. 681, 687, 160 A. 72 (1932). ‘[I]t then
became at least a de facto corporation.’ Id. Prior to
that time, it had no corporate existence. Under these
circumstances, the [management] agreement was a nul-
lity. [Dragon Bridge] may nevertheless be entitled for
compensation for work that it actually performed, but
that entitlement is addressed with respect to the second
count [alleging unjust enrichment]. Under these circum-
stances, judgment must enter for [CUHO] on the first
count.’’ (Citation omitted.)
On appeal, Dragon Bridge does not contest the court’s
determination that it was not in existence at the time the
management agreement was executed. Rather, Dragon
Bridge makes three principal arguments6 to support its
ability to enforce the management agreement against
CUHO. First, Dragon Bridge argues that, pursuant to
BRJM, LLC v. Output Systems, Inc., 100 Conn. App.
143, 152, 917 A.2d 605, cert. denied, 282 Conn. 917, 925
A.2d 1099 (2007) (BRJM), the management agreement
was not a ‘‘nullity’’ because Perez had the capacity to
enter into the management agreement on behalf of Dragon
Bridge. Second, Dragon Bridge argues that it had the
authority to enforce the management agreement against
CUHO because Perez assigned the agreement to Dragon
Bridge after it was legally formed. Third, Dragon Bridge
argues that CUHO effectively ratified the management
agreement when it accepted the services of Dragon
Bridge for seven months. The trial court did not review
or assess any of these fact bound arguments. Accord-
ingly, we conclude that the record is inadequate to con-
sider all three of Dragon Bridge’s arguments because
the trial court never made the requisite determination
as to the issues of Perez’ capacity, never made the requi-
site findings and determinations as to Perez’ assignment
and CUHO’s ratification, and because Dragon Bridge
failed to seek reargument or an articulation as to any
of these grounds.
Turning to the basis on which the court made its
findings, we note first that the standard of review appli-
cable to the court’s ultimate legal conclusion as to the
capacity of an individual or entity to enter into a con-
tract is a question of law subject to plenary review. See
BRJM, LLC v. Output Systems, Inc., supra, 100 Conn.
App. 152.
We begin our analysis with a review of this court’s
decision in BRJM. In that case, Nicholas Kepple, pur-
portedly acting on behalf of M & K Realty, LLC, executed
a land purchase agreement with the individual seller,
Howard Engelsen. Id., 145. Although Kepple intended
to form M & K Realty, LLC, at the time of the transaction,
that entity was never formed and it never had a legal
existence. Id., 146. Kepple accordingly assigned the land
purchase agreement to another one of his corporate
entities, BRJM, LLC. Id., 146 and n.3. Engelsen later
withdrew from the land purchase agreement due to
appraisal issues. Id., 146–47. BRJM, LLC, consequently
filed an action against Engelsen seeking specific perfor-
mance of the land purchase agreement and money dam-
ages. Id., 147. After trial, the trial court held that M &
K Realty, LLC, despite its nonexistence, had the capac-
ity to enter into the land purchase agreement. Id.
Engelsen appealed from the trial court’s judgment,
arguing that M & K Realty, LLC, lacked capacity to
enter into the land purchase agreement because it never
existed as a legal entity and, thus, the assignment to
BRJM, LLC, was void. Id.
This court held on appeal in BRJM, as a matter of
first impression, that ‘‘an entity does not have the legal
capacity to contract prior to its legal existence,’’ and
that ‘‘a contract entered into prior to an entity’s forma-
tion is not void ab initio due to lack of capacity because
the individual entering into the contract on behalf of
the unformed entity has the requisite capacity. It follows
that, in the situation of an unformed entity, the individ-
ual serves as the party to the contract although the
contract is entered into in the entity’s name.’’ Id., 152.
Applying this rule, this court in BRJM reasoned that,
‘‘[a]lthough . . . the entity designated as M & K Realty,
LLC, did not legally exist and, therefore, lacked the
capacity to enter into the agreement, Kepple, acting as
an individual on behalf of M & K Realty, LLC, did have
capacity to contract with the defendant.’’ Id., 151–52.
The court concluded that ‘‘Kepple, acting in his individ-
ual capacity and as a party to the agreement, made a
valid assignment of the agreement to [BRJM, LLC], an
existing entity.’’ Id., 154–55.7
Applying BRJM, we conclude that Dragon Bridge
lacked capacity to enter into the management agree-
ment because it is undisputed that it did not exist as a
corporate entity at the time the management agreement
was executed. Unlike the trial court, however, we con-
clude that Dragon Bridge’s lack of capacity does not,
by itself, render the management agreement a ‘‘nullity.’’
Instead, the management agreement may be enforce-
able between Perez and CUHO if Perez had the ‘‘requi-
site capacity’’ to execute the management agreement
acting as an individual on behalf of the named but
nonexistent entity, Dragon Bridge. See, e.g., id., 153–54
(holding that ‘‘prerequisite’’ to acquisition of preincor-
poration rights is capacity of individual signee to con-
tract, and that individual had capacity to enter into
land purchase agreement as ‘‘member’’ of nonexistent
limited liability company). Accordingly, the threshold
issue is whether Perez had the requisite capacity to
enter into the management agreement on behalf of
Dragon Bridge.8
However, the issue of Perez’ capacity to enter into
the management agreement on behalf of Dragon Bridge
was not determined by the court. The court’s factual
findings as to Perez were limited to the following: Perez
signed the management agreement, Perez was not
named as a party to the management agreement, and
Dragon Bridge ‘‘employs Perez as a manager.’’ The court
did not make a determination as to whether these facts
were sufficient to provide Perez with the capacity to
enter into the management agreement on behalf of
Dragon Bridge. As noted, even assuming that Perez had
capacity to enter into the management agreement on
behalf of Dragon Bridge, the court did not make any
findings or determinations as to Dragon Bridge’s second
and third arguments with respect to the issues of assign-
ment and ratification.
It is well established that a party cannot obtain appel-
late review of a claim challenging a finding or determi-
nation that the court did not make. ‘‘It is the responsibil-
ity of the appellant to provide an adequate record for
review.’’ (Internal quotation marks omitted.) State v.
Walker, 319 Conn. 668, 678, 126 A.3d 1087 (2015). ‘‘It
is well established that [a]n articulation is appropriate
where the trial court’s decision contains some ambigu-
ity or deficiency reasonably susceptible of clarification.
. . . [P]roper utilization of the motion for articulation
serves to dispel any . . . ambiguity by clarifying the
factual and legal basis upon which the trial court ren-
dered its decision, thereby sharpening the issues on
appeal.’’ (Internal quotation marks omitted.) Id., 680;
see also Practice Book § 66-5. ‘‘Our role is not to guess
at possibilities . . . but to review claims based on a
complete factual record developed by a trial court. . . .
Without the necessary factual and legal conclusions
furnished by the trial court . . . any decision made by
us respecting [the appellant’s claims] would be entirely
speculative.’’ (Internal quotation marks omitted.) Aca-
dia Ins. Co. v. O’Reilly, 138 Conn. App. 413, 418, 53
A.3d 1026 (2012), cert. denied, 308 Conn. 904, 61 A.3d
1097 (2013); see id., 419 (holding that this court does
not ‘‘presume error on the part of the trial court; error
must be demonstrated by an appellant’’ (internal quota-
tion marks omitted)). ‘‘It is, therefore, the responsibility
of the appellant to move for an articulation or rectifica-
tion of the record where the trial court has failed to
state the basis of a decision . . . to clarify the legal
basis of a ruling . . . or to ask the trial judge to rule
on an overlooked matter. . . . In the absence of any
such attempts, we decline to review this issue.’’
(Emphasis added; internal quotation marks omitted.)
Brennan v. Brennan Associates, 316 Conn. 677, 705,
113 A.3d 957 (2015).
In Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn.
210, 231–32, 828 A.2d 64 (2003),9 the plaintiffs argued
on appeal that the trial court incorrectly determined
the date on which certain actions accrued for purposes
of the statute of limitations. The plaintiffs raised the
same arguments before the trial court, however, ‘‘the
record [was] silent with respect to the trial court’s treat-
ment of these specific claims’’ because ‘‘the trial court
did not discuss the statute of limitations issues in ren-
dering its . . . decision.’’ Id., 232–33. Our Supreme
Court declined to review the plaintiffs’ statute of limita-
tions arguments on appeal because ‘‘the plaintiffs never
remedied this defect in the record by moving for articu-
lation or rectification of the trial court’s decision’’ and,
thus, ‘‘leaves us with the inappropriate task of speculat-
ing about the trial court’s reasoning . . . .’’ Id., 233;
see also, e.g., Stiffler v. Continental Ins. Co., 288 Conn.
38, 52–53, 950 A.2d 1270 (2008) (declining to review
claim on appeal in absence of articulation when trial
court’s decision entirely failed to address party’s claim);
Ravetto v. Triton Thalassic Technologies, Inc., 285
Conn. 716, 731, 941 A.2d 309 (2008) (declining to review
claim on appeal in absence of articulation when trial
court’s decision failed to address claim).
Here, the court determined only that the management
agreement was a nullity because Dragon Bridge was
not yet legally formed.10 If the court had considered
arguments relating to assignment and/or ratification
and rejected them, we cannot locate in the court’s mem-
orandum of decision any factual findings that, if found,
could be subject to review. This is particularly true in
the present case because assignment and ratification
primarily are factual issues.11 See Sunset Gold Realty,
LLC v. Premier Building & Development, Inc., 133
Conn. App. 445, 452, 36 A.3d 243 (validity of assignment
of contract generally is question of fact), cert. denied,
304 Conn. 912, 40 A.3d 319 (2012); Bank of Montreal
v. Gallo, 3 Conn. App. 268, 276, 487 A.2d 1101 (‘‘[r]atifica-
tion is a question of fact’’), cert. denied, 195 Conn. 803,
491 A.2d 1103 (1985).
To the extent the court’s decision was ambiguous or
deficient in any regard, a determination we do not make,
Dragon Bridge failed to file a motion to reargue, a
motion for clarification, or a motion for articulation
seeking to have the trial court make any of the requisite
findings or determinations.12 See Von Kohorn v. Von
Kohorn, 132 Conn. App. 709, 714–15, 33 A.3d 809 (2011)
(outlining procedural mechanisms for modifying trial
court judgment, including motions for clarification,
reargument, and to open); see also, e.g., Schoonmaker
v. Lawrence Brunoli, Inc., supra, 265 Conn. 232–33.
Accordingly, we decline to review Dragon Bridge’s claim
on appeal.
III
D2E Holdings finally claims on appeal that the court
incorrectly concluded that it failed to make a threshold
showing of fraud in order to warrant limited discovery
and an evidentiary hearing on its motion to open. D2E
Holdings argues that the court’s decision denying D2E
Holdings’ motion to open improperly applied an ‘‘illegal
standard . . . .’’ We disagree.
The following additional facts are relevant to the
resolution of this claim. On March 11, 2021, D2E Hold-
ings filed a motion to open and vacate the trial court’s
judgment, rendered after a trial to the court, in favor
of CUHO, on the ground that CUHO engaged in fraud.
In support of this motion, D2E Holdings filed a memo-
randum of law as well as several hundred pages of
exhibits purporting to show that CUHO engaged in
fraud by concealing in discovery that it had sold the
subject rental units to another entity for a higher price.
D2E Holdings claimed that it recently discovered, on
the basis of land records recorded several years prior
to trial, that CUHO and its agents concealed in discovery
that it sold the subject units for approximately $100,000
more than it was offered to D2E Holdings. D2E Holdings
argued that this ‘‘new’’ evidence warranted the opening
of the judgment and that ‘‘[t]his cure is appropriate here
and now because D2E [Holdings] satisfies the standard
for doing so set forth in Chapman Lumber, Inc. v.
Tager, [288 Conn. 69, 106–107, 952 A.2d 1 (2008)]. In
opposition, CUHO argued that this evidence was not
‘‘new’’ because it was publically recorded on the land
records long before trial, this evidence would not affect
the court’s judgment, and D2E Holdings failed to make
a sufficient threshold showing pursuant to Tager. D2E
Holdings replied that CUHO’s motive in voiding the
real estate contract was directly relevant to its implied
covenant claim, and that its evidence satisfies the thresh-
old standard pursuant to Tager.
On April 6, 2021, the court, without holding oral argu-
ment,13 issued a memorandum of decision denying D2E
Holdings’ motion to open, primarily on the ground that
the fraud D2E Holdings attempted to establish was
‘‘legally irrelevant’’ to its claims at trial. The court rea-
soned that, even if D2E Holdings’ contentions were true
and CUHO concealed an agreement to sell the property
to another buyer, this point ‘‘would not affect the court’s
decision’’ rendering judgment for CUHO. The court held
that D2E Holdings ‘‘essentially seeks discovery regard-
ing [CUHO’s] underlying motives in its dealings with
[D2E Holdings]. In a breach of contract claim, however,
the issue is whether [CUHO] failed to perform its obliga-
tions pursuant to the terms of the contract. The court
has specifically found that [CUHO] did not fail to per-
form its obligations pursuant to the terms of the con-
tract in question. Under these circumstances, [CUHO’s]
allegedly impure motives and the existence or nonexis-
tence of any side deals are legally irrelevant.’’ This
amended appeal followed.
We next set forth the applicable standard of review
and relevant legal principles for this claim. Once again,
D2E Holdings advocates that it is challenging only the
court’s use of an improper legal standard in deciding
its motion, and, thus, it claims that plenary review
applies. We disagree and, instead, apply an abuse of
discretion standard because the gist of D2E Holdings’
argument is that the court incorrectly determined that
D2E Holdings failed to make a threshold showing to
warrant opening the judgment. See Benjamin v. Island
Management, LLC, 341 Conn. 189, 223, 267 A.3d 19(2021) (disagreeing with appellant’s contention that ple-
nary review applied because its arguments ‘‘effectively
challenge[d]’’ propriety of court’s decision and, thus,
‘‘abuse of discretion standard [was] more apt’’). ‘‘We
do not undertake a plenary review of the merits of a
decision of the trial court to grant or to deny a motion
to open a judgment. The only issue on appeal is whether
the trial court has acted unreasonably and in clear abuse
of its discretion.’’ (Internal quotation marks omitted.)
U.S. Bank National Assn. v. Rothermel, 339 Conn. 366,
382, 260 A.3d 1187 (2021). ‘‘A motion to open and vacate
a judgment . . . is addressed to the [trial] court’s dis-
cretion, and the action of the trial court will not be
disturbed on appeal unless it 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
its action. . . . The manner in which [this] discretion
is exercised will not be disturbed so long as the court
could reasonably conclude as it did.’’ (Internal quota-
tion marks omitted.) Stanley v. Woodard, 211 Conn.
App. 127, 129–30, 271 A.3d 1137 (2022).
‘‘Courts have an inherent power to open, correct and
modify judgments. . . . A civil judgment of the Supe-
rior Court may be opened if a motion to open or set
aside is filed within four months of the issuance of
judgment.’’ (Internal quotation marks omitted.) Chap-
man Lumber, Inc. v. Tager, supra, 288 Conn. 106; see
also General Statutes § 52-212a;14 Practice Book § 17-4
(a).15 ‘‘A motion to open in order to permit a party to
present further evidence need not be granted where
the evidence offered is not likely to affect the verdict.
. . . Newly-discovered evidence which is merely cumu-
lative, or which impeaches the . . . credibility of a wit-
ness, will not suffice ordinarily to grant a new trial, and
never unless it appears reasonably certain that injustice
has been done in the judgment rendered, and that the
result of a new trial will probably be different. . . .
When a party seeks to open and vacate a judgment
based on new evidence allegedly showing the judgment
is tainted by fraud, he must show, inter alia, that he
was diligent during trial in trying to discover and expose
the fraud, and that there is clear proof of that fraud.’’
(Citations omitted; internal quotation marks omitted.)
Chapman Lumber, Inc. v. Tager, supra, 106–107; see
also Reville v. Reville, 312 Conn. 428, 441, 93 A.3d 1076(2014) (explaining standards for fraud). ‘‘These rules
are motivated by the policy that [o]nce a judgment [is]
rendered it is to be considered final and it should be
left undisturbed by [posttrial] motions except for a good
and compelling reason. . . . Otherwise, there might
never be an end to litigation. (Citation omitted; internal
quotation marks omitted.) Chapman Lumber, Inc. v.
Tager, supra, 107.
To be entitled to a hearing on a motion to open, a
party needs ‘‘to make some threshold showing that his
claims had substance . . . .’’ Id., 108. This court has
stated that this ‘‘threshold showing of substance’’
requires that a party make a showing of ‘‘probable
cause’’ to open the judgment.16 Veneziano v. Veneziano,
205 Conn. App. 718, 730, 259 A.3d 28 (2021). ‘‘Probable
cause is a flexible common sense standard. It does not
demand that a belief be correct or more likely true than
false.’’ (Internal quotation marks omitted.) Malave v.
Ortiz, 114 Conn. App. 414, 426, 970 A.2d 743 (2009).
We conclude that the court did not abuse its discre-
tion in denying D2E Holdings’ motion to open because
D2E Holdings failed to make a threshold showing of
substance warranting the opening of the judgment.
Although the court did not expressly cite to Tager to
set forth the standard for a threshold showing required
to open a judgment,17 its decision was not a ‘‘ ‘clear
abuse of its discretion.’ ’’ Stanley v. Woodard, supra, 211
Conn. App. 129. Stated simply, we find no disagreement
with the court’s conclusion, specifically, the fact that
D2E Holdings discovered that CUHO sold the subject
units to another entity would have had no impact on
the court’s earlier judgment in favor of CUHO. All of
D2E Holdings’ claims against CUHO were founded on
the real estate contract. The court rendered judgment
after trial in favor of CUHO, and expressly held that
CUHO complied with the real estate contract provisions
and the covenant of good faith and fair dealing implied
therein. CUHO’s interactions with a separate buyer, as
to a distinct contract, and a dissimilar financing process
are immaterial to D2E Holdings’ claims at trial. This
‘‘new’’ submission does not ‘‘affect the [judgment]’’
because it has no relation to the claims decided at trial.18
(Internal quotation marks omitted.) Chapman Lumber,
Inc. v. Tager, supra, 288 Conn. 106–107.
D2E Holdings’ assertions on appeal as to why the
judgment needs to be opened undermine its position.
D2E Holdings contends that ‘‘[o]ne question of critical
relevance that remains unknown is whether CUHO
treated the new buyer differently than D2E [Holdings].
Specifically, did CUHO [produce] documents to the new
buyer that it refused to produce to D2E [Holdings] dur-
ing its own financing process?’’ None of this new infor-
mation warrants opening the judgment because the
manner in which CUHO engaged with a separate buyer,
after D2E Holdings failed to obtain financing for the
same units, ‘‘ ‘is not likely to affect the [judgment].’ ’’
Chapman Lumber, Inc. v. Tager, supra, 288 Conn. 106.
Likewise, whether and how CUHO’s agents disclosed
in discovery that CUHO sold the subject units to another
buyer when D2E Holdings failed to obtain financing
only goes to impeach the credibility of those witnesses,
which does not ‘‘suffice . . . to grant a new trial
. . . .’’ (Internal quotation marks omitted.) Id., 107.
Therefore, indulging every reasonable presumption in
favor of the court’s decision, we conclude that the court
did not clearly abuse its discretion in denying D2E Hold-
ings’ motion to open.
The judgments are affirmed.
In this opinion the other judges concurred.
1
A manager of Dragon Bridge, Eduardo Perez, was named as a third-
party defendant and third-party counterclaim plaintiff, and filed this joint
appeal with Dragon Bridge. Eduardo Perez, however, later withdrew from
this appeal.
2
D2E Holdings filed a motion to consolidate the appeals in Docket No.
AC 44218 and Docket No. AC 44656, which was granted by this court.
3
It is not clear from the face of the management agreement whether Perez
signed on behalf of Dragon Bridge as the party to the agreement designated
as ‘‘MANAGER,’’ or as the manager of Dragon Bridge.
4
Although generally ‘‘[t]he question of whether certain conduct breached
the duty of good faith and fair dealing is a question of fact subject to the
clearly erroneous standard of review,’’ D2E Holdings does not contest on
appeal the court’s factual findings. Alpha Beta Capital Partners, L.P. v.
Pursuit Investment Management, LLC, 193 Conn. App. 381, 416, 219 A.3d
801 (2019), cert. denied, 334 Conn. 911, 221 A.3d 446 (2020), and cert. denied,
334 Conn. 911, 221 A.3d 446 (2020).
5
D2E Holdings also argues on appeal that the trial court’s application of
Geysen is in contrast with our Supreme Court’s previous recitations of a
more ‘‘flexible’’ and ‘‘nuanced’’ implied covenant standard in Warner v.
Konover, 210 Conn. 150, 156, 553 A.2d 1138 (1989), and Central New Haven
Development Corp. v. La Crepe, Inc., 177 Conn. 212, 216, 413 A.2d 840(1979). We disagree because neither Warner nor La Crepe, Inc., involved
the application of express contract language. See Warner v. Konover, supra,
153 (implied covenant claim contingent on ‘‘absence of a clause in the
lease’’); Central New Haven Development Corp. v. La Crepe, Inc., supra,
216 (implied covenant claim contingent on silence of lease as to time within
which lessee may cancel). In the present case, unlike Warner and La Crepe,
Inc., D2E Holdings’ implied covenant claim is in direct contravention of the
express terms of the real estate contract.
6
Dragon Bridge makes a fourth argument that warrants little discussion.
Dragon Bridge contends that its capacity to enter into the management
agreement was not an issue at trial because CUHO made a judicial admission
in its answer to Dragon Bridge’s counterclaim by stating that CUHO ‘‘entered
into [the] management agreement with one or both of the third-party defen-
dants,’’ and CUHO never disputed the existence of the management agree-
ment. This argument fails because CUHO explicitly asserted in its second
special defense to Dragon Bridge’s counterclaim that ‘‘Dragon Bridge . . .
did not exist as an entity on March 7, 2017, and thus was unable to execute
a contract or agreement.’’ Furthermore, CUHO’s statement that it entered
into the management agreement with ‘‘one or both’’ of Perez and Dragon
Bridge is not so ‘‘clear, deliberate and unequivocal’’ as to constitute a judicial
admission that Dragon Bridge was in existence and had the capacity to
enter into the management agreement. See O & G Industries, Inc. v. All
Phase Enterprises, Inc., 112 Conn. App. 511, 523–24, 963 A.2d 676 (2009)
(explaining standards for judicial admissions). CUHO additionally raised
the issue of Dragon Bridge’s capacity in its written closing argument, in its
posttrial brief, and its posttrial reply brief. We therefore summarily reject
Dragon Bridge’s argument as to CUHO’s purported judicial admission.
7
See Bernblum v. Grove Collaborative, LLC, 211 Conn. App. 746 n.4,
A.3d (2022) (noting that BRJM ‘‘is limited to the issue of whether a
contract fails due to the lack of capacity of one of the contracting parties
if, at the time the contract is executed, one of the parties to the contract
is an unformed limited liability company’’), petition for cert. filed (Conn.
May 6, 2022) (No. 210413).
8
Although both Dragon Bridge and CUHO discuss BRJM on appeal, neither
party advances a substantive argument as to Perez’ capacity. CUHO does
not argue that Perez lacked capacity; instead, it affirmatively contends that
the management agreement ‘‘was only enforceable between CUHO and Perez
. . . .’’ Dragon Bridge does not make an express capacity argument, but it
does relatedly contend, as part of its separate assignment argument, that
‘‘[t]he evidence demonstrates that . . . Perez was the manager of Dragon
Bridge.’’
9
Dragon Bridge relies on Schoonmaker in its appellate brief in support
of its assignment argument, but it does not discuss the applicability of
Schoonmaker as to the reviewability of its claims on appeal.
10
To be clear, the finding by the court that Dragon Bridge ‘‘employs Perez
as a manager,’’ does not constitute a determination that such an employment
provides him the capacity to contract on behalf of Dragon Bridge. See,
e.g., BRJM, LLC v. Output Systems, Inc., supra, 100 Conn. App. 145, 154
(determining that individual had capacity to enter into agreement on behalf
of limited liability company because he was ‘‘member’’ of that company);
see also 418 Meadow Street Associates, LLC v. Clean Air Partners, LLC,
304 Conn. 820, 835 n.13, 43 A.3d 607 (2012) (generally delineating difference
in limited liability companies between ‘‘members’’ and ‘‘managers’’ (internal
quotation marks omitted)).
Compounding this deficiency is the unresolved issue of determining in
what capacity Perez signed the management agreement. The management
agreement entered into evidence states that it was entered into in the name
of ‘‘MANAGER, DRAGON BRIDGE MANAGEMENT, a Connecticut LLC,’’
and the management agreement is signed by Perez above the phrase ‘‘Manag-
er[’s] Name.’’ Even if the court’s decision was ambiguous as to this point,
it is the duty of the appellant to rectify this deficiency. See, e.g., Brody v.
Brody, 315 Conn. 300, 310, 105 A.3d 997 (2015) (declining ‘‘invitation to
engage in syntactic exercises’’ in interpreting court’s decision and ‘‘instead,
read [ambiguous language] to support’’ court’s decision); Szekeres v. Miller,
123 Conn. App. 578, 583, 2 A.3d 953 (2010) (declining to review claim on
appeal in absence of articulation when trial court’s ruling ‘‘at no time fleshed
out’’ standard, rendering its ruling ambiguous); see also Molaver v. Thomas,
125 Conn. App. 88, 94, 6 A.3d 232 (2010) (declining to review claim on appeal
in absence of articulation when it was unclear from memorandum of decision
whether trial court made requisite finding).
11
For instance, the parties’ briefs on appeal as to the assignment of the
management agreement disagree as to: (1) the applicable statutory scheme
to determine which individual may act on behalf of a limited liability com-
pany, as Connecticut Limited Liability Company Act, General Statutes (Rev.
to 2017) § 34-100 et seq. was repealed and replaced by the Connecticut
Uniform Limited Liability Company Act, General Statutes § 34-243 et seq.;
(2) whether the terms of the management agreement permitted assignment;
(3) whether Dragon Bridge was member-managed or manager-managed, as
its operating agreement was not entered into evidence; (4) whether the
purported sole member of Dragon Bridge, Danibel Aviles, was the only
individual with the capacity to assign the management agreement; and (5)
whether Perez, as an agent for Dragon Bridge, assigned the management
agreement to Dragon Bridge through the performance of duties for CUHO.
Similar disagreements exist as to CUHO’s alleged ratification of the manage-
ment agreement. The trial court never made any findings or determinations
as to any of these issues and, accordingly, we decline to engage in speculation
to resolve these arguments for the first time on appeal.
12
We note that Dragon Bridge properly preserved its arguments before
the trial court as to the applicability of BRJM, as to assignment, and as to
ratification. On appeal, however, Dragon Bridge failed to comply with its
duty as the appellant to rectify or to otherwise compel the trial court to
address these issues, which were not addressed in the trial court’s memoran-
dum of decision.
13
D2E Holdings filed a request for oral argument on its motion to open,
to which CUHO objected. The court did not explicitly rule on either of these
submissions.
14
General Statutes § 52-212a provides in relevant part: ‘‘Unless otherwise
provided by law and except in such cases in which the court has continuing
jurisdiction, a civil judgment or decree rendered in the Superior Court may
not be opened or set aside unless a motion to open or set aside is filed within
four months following the date on which it was rendered or passed. . . .’’
15
Practice Book § 17-4 (a) provides: ‘‘Unless otherwise provided by law
and except in such cases in which the court has continuing jurisdiction,
any civil judgment or decree rendered in the Superior Court may not be
opened or set aside unless amotiontoopenor set aside is filed withinfour-
monthssucceeding the date on which notice was sent. The parties may waive
the provisions of this subsection or otherwise submit to the jurisdiction of
the court.’’
16
D2E Holdings invites this court to ‘‘clarify’’ the ‘‘proper standard of
review of a motion to open judgment based on allegations of fraud’’ because
it perceives some tension between Tager and this court’s repeated use of
the probable cause standard. (Internal quotation marks omitted.) We decline
D2E Holdings’ invitation because we perceive no ambiguity in the applicable
standards, and it would require us to disregard our Supreme Court’s prece-
dent and to overturn a decision of another panel of this court. See, e.g.,
State v. Bouvier, 209 Conn. App. 9, 43 n.21, 267 A.3d 211 (2021), cert. denied,
341 Conn. 903, 269 A.3d 789 (2022).
17
As fully explained in part II of this opinion, if the legal basis of the
court’s memorandum of decision is absent or unclear, it is the duty of the
appellant to rectify this deficiency. See Deroy v. Estate of Baron, 136 Conn.
App. 123, 129–30, 43 A.3d 759 (2012) (‘‘the failure of an appellant to seek
an articulation requires the presumption that the trial court considered all of
the facts before it and applied the correct legal standard’’ (internal quotation
marks omitted)). As D2E Holdings did not file a motion for articulation or
otherwise attempt to compel the court to identify the legal standard it used,
we presume that the court acted properly.
18
Although not explicitly stated by the trial court, the exercise of its
discretion denying D2E Holdings’ motion to open is further supported on
the ground that D2E Holdings was not ‘‘diligent’’ in discovering the ‘‘new
evidence’’ that formed the basis of its motion to open. Chapman Lumber,
Inc. v. Tager, supra, 288 Conn. 107. The foundation for D2E Holdings’ claim
is CUHO’s public recordation on the land records of the right of first refusal
on December 21, 2017, which was several years prior to trial and only weeks
after the commencement of this action. The discovery of a public land
record does not constitute ‘‘new evidence’’ and D2E Holdings does not
attempt to explain why it first discovered this filing after the trial held in
March, 2020.