Youngman v. Schiavone ( 2015 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and 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 repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
CARL YOUNGMAN ET AL. v. JOEL
SCHIAVONE ET AL.
(AC 36207)
Gruendel, Lavine and Mullins, Js.
Argued December 8, 2014—officially released May 5, 2015
(Appeal from Superior Court, judicial district of New
Haven, A. Robinson, J.)
Irving H. Perlmutter, with whom, on the brief, was
Andrew M. Ullman, for the appellants (plaintiffs).
Stephen P. Wright, with whom, on the brief, was
Nicole L. Barber, for the appellees (named defendant
et al.).
Opinion
MULLINS, J. In this case, the plaintiffs, Carl Young-
man and Leslie Charm, doing business as Restoration
Associates (Restoration),1 initiated this action in their
individual capacities rather than in the name of the
proper party, Quinnipiac Riverview Properties, LLC
(Riverview), a limited liability company in which they
and the defendant Joel Schiavone2 are members. That
mistake was deemed by the trial court to be a mistake
that precluded the plaintiffs from substituting the
proper party as the plaintiff and, consequently, deprived
the court of subject matter jurisdiction. As a result,
the court denied the plaintiffs’ motion to substitute
Riverview as the proper plaintiff and dismissed this
action for lack of subject matter jurisdiction on the
ground that the plaintiffs lacked standing. On appeal,
the plaintiffs claim that the court abused its discretion
in denying their motion to substitute and in granting the
defendants’ motion to dismiss. In light of our Supreme
Court’s controlling interpretation of the word ‘‘mistake’’
in DiLieto v. County Obstetrics & Gynecology Group,
P.C., 297 Conn. 105, 151, 998 A.2d 730 (2010), we affirm
the judgment of the trial court.
The following facts and procedural history inform
our review. On December 14, 2010, the plaintiffs filed
a complaint against Schiavone, Gary Bello and Fair
Haven Heights Realty, LLC (Fair Haven). On May 6,
2011, the defendant Fair Haven filed a notice of bank-
ruptcy, and the plaintiffs, in turn, withdrew the com-
plaint as to Fair Haven.
On February 7, 2013, the plaintiffs filed an amended
complaint, alleging, in relevant part, the following:3
Youngman and Charm are partners doing business
under the trade name of Restoration Associates. ‘‘On
or about August 30, 2010, and for more than five years
prior thereto, the plaintiffs, as copartners doing busi-
ness as Restoration, were the owners of a 66 2/3 percent
ownership in [Riverview], a Connecticut limited liability
company formerly known as the Missy 2, LLC (‘Missy
2’) the name of which was changed on December 14,
2006. . . . Throughout that period . . . Schiavone
was the owner of the remaining 33 1/3 [percent] owner-
ship interest in Missy 2 . . . . Between April 17, 2002,
and August 22, 2005 . . . Schiavone represented to the
plaintiffs that he owned or controlled the ownership of
[five] properites in New Haven . . . [to wit] 22 Front
Street, 621 Quinnipiac Avenue, 710 Quinnipiac Avenue,
714 Quinnipiac Avenue, and 715 Quinnipiac Avenue.
. . .
‘‘Between April 17, 2002, and November 28, 2005 . . .
Schiavone offered to the plaintiffs a 50 percent owner-
ship interest in Missy 2 for the sum of $250,000. . . .
At the time of the offer, the other 50 percent ownership
interest in Missy 2 was [held] by Alyxx Schiavone and
Josie Schiavone, the daughters of . . . Schiavone. . . .
The plaintiffs accepted the offer4 . . . and paid to
Missy 2 the sums of money required to receive owner-
ship of the 50 percent [interest] . . . from Schiavone.
. . . [After] Schiavone had a disagreement with his
daughters . . . the plaintiffs acquired, for consider-
ation, an additional 16 2/3 percent ownership of Missy
2, [giving] the plaintiffs [an ownership interest of] 66
2/3 percent of Missy 25 . . . .
‘‘On November 28, 2005, Missy 2 . . . purchased the
real property located at . . . 740 Quinnipiac Avenue
. . . with funds received from the plaintiffs and Missy
2, with title being taken in the name of Missy 2 . . . .
[It was discovered, however, that] Schiavone, instead
of taking title to the [other five properties] . . . in the
name of Missy 2, took title to [those] properties in
his own name and, until August 30, 2010, held [those]
properties in his own name.’’ (Footnotes added.) On
December 14, 2006, Missy 2 changed its name to Riv-
erview.
‘‘Until August 30, 2010, despite representing to the
plaintiffs that the properties would be transferred and
conveyed to Missy 2 or [Riverview], [Schiavone] failed,
refused and neglected to transfer the properties to
Missy 2 or its successor [Riverview]. . . . From 2002
through 2006, the properties were always reported to
the Internal Revenue Service . . . as being owned by
Missy 2. . . . At all times from and after 2007, the prop-
erties were always reported to the Internal Revenue
Service . . . as being owned by [Riverview]. . . . The
operating agreement of Missy 2 [and, subsequently, Riv-
erview] provided that no properties owned by the lim-
ited liability company could be sold or transferred in
the absence of approval by a ‘super majority’ of the
members of the limited liability company, as defined
in the operating agreement, or in breach of the
agreement of the plaintiffs and . . . Schiavone or in
violation of the operating agreement of Missy 2 . . . .
The plaintiffs owned 66 2/3 percent of the ownership
of [Riverview], and this percentage constituted a ‘super
majority’ of the ownership . . . as defined in the
operating agreement.
‘‘On August 30, 2010 . . . Schiavone transferred and
conveyed, for no consideration, the properties at 22
Front Street, 621 Quinnipiac Avenue, 710 Quinnipiac
Avenue, 714 Quinnipiac Avenue, 715 Quinnipiac Avenue
and 740 Quinnipiac Avenue to [Fair Haven] . . .
[whose members include] Schiavone . . . Bello . . .
and James Byrne, the attorney for . . . Schiavone
(who has since resigned from membership in [Fair
Haven]). . . . [Also] on August 30, 2010 . . . Bello
communicated with all of the tenants of the properties
described . . . alleging that he was ‘the manager-
owner of [Fair Haven], the new owner of the . . .
apartment,’ making demand upon each of the tenants
to send him their monthly rent checks, directing them
not to send the rent checks to the building manager
employed by [Riverview], thereby disrupting the contin-
ued operation of the residential properties. . . . Schia-
vone and Bello continue to deny that the plaintiffs and
[Riverview] have any interest in the properties.’’
On the basis of these facts, as alleged in their
amended complaint, the plaintiffs, in their individual
capacities, alleged against the defendants causes of
action for breach of contract, conspiracy, unjust enrich-
ment, breach of the covenant of good faith and fair
dealing, a violation of the Connecticut Unfair Trade
Practices Act, General Statutes § 42-110a et seq., and a
count entitled ‘‘damages for transfer of property with-
out consideration.’’
On March 14, 2013, the defendants filed an answer,
special defenses, and a two count counterclaim to the
plaintiffs’ amended complaint. One of their special
defenses alleged that the plaintiffs did not have standing
on the ground that ‘‘[t]he claims they are making belong
to Restoration . . . which is a general partnership by
the plaintiffs’ admission, or [Riverview], which is a lim-
ited liability company. Either and both entities have
their own legal existence.’’6
On May 30, 2013, counsel for the plaintiffs filed a
motion to substitute party plaintiff, explaining that the
plaintiffs mistakenly had believed that they were the
proper parties to institute the present action but that,
following the release of Padawer v. Yur, 142 Conn. App.
812, 818, 66 A.3d 931 (trial court improperly denied
motion to dismiss because individual plaintiff lacked
standing when injury was to limited liability company),
cert. denied, 310 Conn. 927, 78 A.3d 145 (2013), they
became convinced that Riverview was the proper party
to have instituted the case.
The next day, the defendants filed a motion to dismiss
for lack of subject matter jurisdiction on the ground
that the plaintiffs lacked standing to institute this case
in their individual capacities. The court heard argument
on the motion, wherein Youngman testified that he had
instructed counsel to institute this action in the names
of the individual plaintiffs because he thought they had
suffered injury in their individual capacities. Following
the hearing, on October 9, 2013, the court rendered
judgment denying the plaintiffs’ motion to substitute
and granting the defendants’ motion to dismiss in two
separate orders.
In the first order, the court granted the defendants’
motion to dismiss. The court ruled: ‘‘The named plain-
tiffs lacked standing to bring this action as individuals.
That right belongs to the [limited liability company]
under long-standing Connecticut law. Notwithstanding
the fact that the individual plaintiffs might have errone-
ously believed that they possessed the legal right to
pursue this action, the law is clear and settled. They
do not. Therefore, this court lacks subject matter juris-
diction and this action must be dismissed. Procedur-
ally, the court addressed the motion to dismiss first
and will address the motion to substitute second.’’
(Emphasis added.)
In the second order, the court denied the plaintiffs’
motion to substitute. The court ruled: ‘‘Notwithstanding
the argument made by the plaintiffs’ counsel, the law
regarding who has the right to bring this action has
been long established and is not new.’’
The plaintiffs thereafter filed a motion for articulation
of the trial court’s orders, and the court issued a memo-
randum of decision further articulating its rulings. The
court explained that, despite the plaintiffs’ contention
that they only became aware that they should have
brought their complaint in the name of their limited
liability company, Riverview, after the Appellate Court
issued its opinion in Padawer, ‘‘the law regarding this
matter was not changed by Padawer. . . . Because the
plaintiffs did not have standing to bring this action, this
court was deprived of subject matter jurisdiction to
hear the claims or any motions, including the motion to
substitute, of the plaintiffs. Had the action been validly
brought by the plaintiffs, reasonably believing, based
on the law, that they had standing, and then the law
changed during the pendency of the matter, depriving
the plaintiffs of standing, then the court would have
entertained the motion to substitute. But, the law
regarding the rights of a limited liability company has
not changed. For that reason, the motion was denied.’’
Accordingly, the court ruled that the plaintiffs should
have known that the limited liability company was the
proper party because it was the long-standing law in
Connecticut. This appeal followed.
On appeal, the plaintiffs claim that the court abused
its discretion in denying their motion to substitute Riv-
erview as the party plaintiff and that it improperly
granted the defendants’ motion to dismiss. A careful
review of the court’s order, granting the defendants’
motion to dismiss, and its articulation leads us to two
conclusions. First, we conclude that the court incor-
rectly determined that it should rule on the motion
to dismiss before considering the plaintiffs’ motion to
substitute. Second, on the basis of language contained
in our Supreme Court’s decision in DiLieto v. County
Obstetrics & Gynecology Group, P.C., supra, 297 Conn.
151, we conclude that the court did not abuse its discre-
tion in denying the plaintiffs’ motion to substitute after
determining that the plaintiffs had failed to establish
that the law had changed such that they would not have
known that the limited liability company was the proper
party at the time they commenced this action.
Finally, we conclude, on the basis of the court’s denial
of the motion to substitute and the plaintiffs’ admission
that they were the wrong party to institute this action,
that the court properly found they lacked standing in
this case. Accordingly, the court was without subject
matter jurisdiction, and the motion to dismiss properly
was granted.
‘‘A determination regarding a trial court’s subject mat-
ter jurisdiction is a question of law. . . . When the trial
court draws conclusions of law, appellate review is
plenary, and the reviewing court must decide whether
the trial court’s conclusions are legally and logically
correct. . . . We further recognize that [t]he decision
whether to grant a motion for the addition or substitu-
tion of a party to legal proceedings rests in the sound
discretion of the trial court. . . . In reviewing the trial
court’s exercise of that discretion, every reasonable
presumption should be indulged in favor of its correct-
ness . . . and only if its action discloses a clear abuse
of discretion is our interference warranted.’’ (Citation
omitted; internal quotation marks omitted.) Rana v.
Terdjanian, 136 Conn. App. 99, 107–108, 46 A.3d 175,
cert. denied, 305 Conn. 926, 47 A.3d 886 (2012).
‘‘[When] a motion to dismiss is filed on the ground
that the plaintiff lacks standing, and the plaintiff quickly
follows by filing a motion to substitute the correct party,
the motion to substitute may be heard while the motion
to dismiss is pending, notwithstanding the general rule
that the subject matter jurisdictional issues raised by
a motion to dismiss must be dealt with prior to other
motions.’’ J. Kaye & W. Effron, 2 Connecticut Practice
Series: Civil Practice Forms (4th Ed. 2004) § 106.5, p.
213; see also Rana v. Terdjanian, supra, 136 Conn.
App. 111.
In the present case, the trial court determined that,
procedurally, it was considering the motion to dismiss
for lack of standing before considering the motion to
substitute. We conclude, however, that the trial court
was not required to address the motion to dismiss
before addressing the motion to substitute. Indeed, as
we explained in Rana: ‘‘[I]t is well within the authority
of a court to permit a substitution of plaintiffs in lieu of
dismissing an action provided that the court determines
that the conditions set forth in [General Statutes] § 52-
109 have been met. We also agree with the reasoning
of a number of trial court decisions that . . . ‘if § 52-
109 is to have the ameliorative purpose for which it
was intended, then even assuming that the specter of
subject matter jurisdiction rears its head, the statute is
meant to give the trial courts jurisdiction for the limited
purpose of determining if the action should be saved
from dismissal by the substitution of plaintiffs.’ . . .
Wilson v. Zemba, 49 Conn. Sup. 542, 553, 896 A.2d 862(2004), citing DiLieto v. County Obstetrics & Gynecol-
ogy Group, P.C., Superior Court, judicial district of
Waterbury, Complex Litigation Docket, Docket No.
X02-CV-97-0150435-S (January 31, 2000) (26 Conn. L.
Rptr. 345), rev’d on other grounds, 265 Conn. 79, 828
A.2d 31 (2003). As the trial court in DiLieto aptly stated
in its decision: ‘The legislature’s provision of this statu-
tory remedy would be completely undermined by any
rule requiring the immediate dismissal for lack of sub-
ject-matter jurisdiction of any action commenced in the
name of the wrong person as plaintiff. The statute, as
an exercise of the legislature’s constitutional authority
to determine [our court’s] jurisdiction; [Conn. Const.,
art. V, § 1]; must be seen as an extension of that jurisdic-
tion for the limited purpose of deciding a proper motion
to substitute.’ DiLieto v. County Obstetrics & Gynecol-
ogy Group, P.C., supra, 26 Conn. L. Rptr. 348.’’ Rana
v. Terdjanian, supra, 136 Conn. App. 111–12. Despite
the court’s procedural statement, however, it did con-
sider the plaintiffs’ motion to substitute after granting
the motion to dismiss.7
Thus, we next determine whether the court properly
denied the plaintiffs’ motion to substitute Riverview as
the proper plaintiff in this action. On the basis of DiLieto
v. County Obstetrics & Gynecology Group, P.C., supra,
297 Conn. 151, we conclude that the court did not abuse
its discretion in denying the motion in this case, the
court having concluded that counsel should have
known the law when he commenced this action on
behalf of the plaintiffs.
‘‘The decision whether to grant a motion for the addi-
tion or substitution of a party to legal proceedings rests
in the sound discretion of the trial court. . . . In
reviewing the trial court’s exercise of that discretion,
every reasonable presumption should be indulged in
favor of its correctness . . . and only if its action dis-
closes a clear abuse of discretion is our interference
warranted.’’ (Citations omitted.) Poly-Pak Corp. of
America v. Barrett, 1 Conn. App. 99, 102, 468 A.2d
1260 (1983).
Pursuant to § 52-109, ‘‘[w]hen any action has been
commenced in the name of the wrong person as plain-
tiff, the court may, if satisfied that it was so commenced
through mistake, and that it is necessary for the determi-
nation of the real matter in dispute so to do, allow any
other person to be substituted or added as plaintiff.’’
In DiLieto, our Supreme Court explained that, ‘‘[u]nder
§ 52-109, substitution is permitted only when the trial
court determines that the action was commenced in
the name of the wrong plaintiff ‘through mistake,’ which
properly has been interpreted to mean ‘an honest con-
viction, entertained in good faith and not resulting
from the plaintiff’s own negligence that she is the
proper person to commence the [action].’ [Wilson v.
Zemba, supra, 49 Conn. Supp. 549].’’ (Emphasis added.)
DiLieto v. County Obstetrics & Gynecology Group,
P.C., supra, 297 Conn. 151–52.8
Here, it is undisputed that the plaintiffs commenced
this action in the name of the wrong party and that
they now admit that the proper party plaintiff is Riv-
erview. Aside from merely stating that they believed
they were the proper parties to have commenced this
action, the plaintiffs did not explain to the court why
Riverview was not named as a plaintiff despite all of
the allegations in the complaint concerning the harm
allegedly caused to Riverview. Instead, they simply
argued before the trial court that our 2013 decision in
Padawer v. Yur, supra, 142 Conn. App. 812, made coun-
sel aware that this case should have been commenced
by Riverview and not by the plaintiffs in their individual
capacities. Thus, the mistake in this case was, as the
court determined, the result of the plaintiffs’ and of
counsel’s belief that the law up until 2013 had permitted
them to commence this action in their individual capa-
cities.
As the trial court correctly noted in its articulation,
however, Padawer did not change the established law.
See General Statutes § 34-134 (‘‘[a] member or manager
of a limited liability company is not a proper party to
a proceeding by or against a limited liability company
solely by reason of being a member or manager of the
limited liability company, except where the object of
the proceeding is to enforce a member’s or manager’s
right against or liability to the limited liability company
or as otherwise provided in an operating agreement’’).
The dictates of § 34-134 have been the law at least since
the statute’s inception in 1993. Public Acts 1993, No.
93-267, § 20. Padawer simply restated this settled princi-
ple of law.
The plaintiffs do not contend that the law had
changed, and they acknowledge that, at the time they
commenced this action in 2010, the law commanded
that the action be initiated in the name of Riverview,
the limited liability company in which the plaintiffs are
members. They did not argue otherwise before the trial
court. In other words, the plaintiffs could not, and per-
haps more specifically, did not, demonstrate to the trial
court that their belief that they were the proper parties
was a reasonable one, held in good faith, and not the
result of their own negligence in failing to name the
proper party. Consequently, under the circumstances
in this case, we cannot conclude that the court abused
its discretion in denying the plaintiffs’ motion to sub-
stitute.9
Finally, having concluded that the court did not abuse
its discretion in denying the plaintiffs’ motion to substi-
tute, we also conclude that the court properly deter-
mined that the plaintiffs lacked standing in this case.
Indeed, given that the court denied the plaintiffs’ motion
to substitute and the plaintiffs admitted that they were
the wrong parties to have commenced this action, the
court properly found that they did not have standing to
proceed with this matter in their individual capacities.
Accordingly, the court was without subject matter juris-
diction, and the action properly was dismissed.
The judgment is affirmed.
In this opinion LAVINE, J., concurred.
1
‘‘[T]he use of a fictitious or assumed business name does not create a
separate legal entity . . . [and] [t]he designation [doing business as] . . .
is merely descriptive of the person or corporation who does business under
some other name . . . . [I]t signifies that the individual is the owner and
operator of the business whose trade name follows his . . . .’’ (Internal
quotation marks omitted.) Monti v. Wenkert, 287 Conn. 101, 135, 947 A.2d
261 (2008).
2
Gary Bello and Fair Haven Heights Realty, LLC, were also named as
defendants. The action was withdrawn as to Fair Haven Heights Realty,
LLC. In this opinion, we refer to Schiavone and Bello collectively as the
defendants and individually by name where appropriate.
3
We take the facts to be those alleged in the complaint, construed in the
light most favorable to the plaintiffs. See Gold v. Rowland, 296 Conn. 186,
200–201, 994 A.2d 106 (2010).
4
The complaint contains no allegation as to the date this offer was
accepted.
5
The complaint contains no allegation as to the date this additional owner-
ship interest was acquired.
6
The defendants did not set forth this special defense in response to the
plaintiffs’ earlier complaint.
7
The trial court did not explain how it could grant the motion to dismiss
and then consider and deny the motion to substitute, after having already
dismissed the action. Nevertheless, it is clear that the court ruled on
both motions.
8
Although the Supreme Court cited Wilson for this interpretation of mis-
take; see DiLieto v. County Obstetrics & Gynecology Group, P.C., supra,
297 Conn. 151–52; this interpretation originally was set forth by the trial
court in DiLieto in 2000 and was disavowed by the court in Wilson in 2004.
See Wilson v. Zemba, supra, 49 Conn. Supp. 549–50 (concluding that trial
court’s definition of mistake in DiLieto was ‘‘too limiting’’ and ‘‘too difficult
to apply,’’ and holding that legislature meant nothing more than ‘‘the lawyer
named the wrong plaintiff’’); DiLieto v. County Obstetrics & Gynecology
Group, P.C., supra, 26 Conn. L. Rptr. 351 (defining mistake as ‘‘an honest
conviction, entertained in good faith and not resulting from the plaintiff’s
own negligence that she is the proper person to commence the lawsuit’’).
In seeking to ascertain the meaning of the term ‘‘mistake’’ as used in the
statute, the trial judge in DiLieto noted that there was no legislative history
and then proceeded to analyze what the word was taken to mean in the
common law and analogous statutory provisions. DiLieto v. County Obstet-
rics & Gynecology Group, P.C., supra, 26 Conn. L. Rptr. 350–51. Reviewing
the history of the decision in DiLieto, it is clear that, at the time of that
trial court’s decision in 2000—when the definition of mistake as ‘‘an honest
conviction, entertained in good faith and not resulting from the plaintiff’s
own negligence that she is the proper person to commence the action’’ first
was set forth—General Statutes § 1-2z had not yet been enacted by our
legislature. See Public Acts 2003, No. 03-154, § 1 (enacting § 1-2z). When
the Supreme Court issued its decision in DiLieto in 2010, however, and
adopted the same definition that the trial court had set forth, § 1-2z was
well established. See, e.g., Board of Selectman v. Freedom of Information
Commission, 294 Conn. 438, 449, 984 A.2d 748 (2010). Nevertheless, our
Supreme Court did not conduct an analysis of the plain language of § 52-
109 before stating that this interpretation was the proper interpretation of
that term.
The dictionary definition of mistake, however, is more expansive and,
thus, seems more congruent with the remedial purpose of § 52-109. ‘‘If a
statute or regulation does not sufficiently define a term, it is appropriate to
look to the common understanding of the term as expressed in a dictionary.’’
(Internal quotation marks omitted.) Marchesi v. Board of Selectmen, 309
Conn. 608, 616, 72 A.3d 394 (2013). Black’s Law Dictionary (9th Ed. 2009)
defines mistake, in relevant part, as: ‘‘An error, misconception, or misunder-
standing; an erroneous belief.’’ Merriam-Webster’s Collegiate Dictionary
(10th Ed. 1993) defines mistake as: ‘‘1: [A] misunderstanding of the meaning
or implication of something. 2: [A] wrong action or statement proceeding
from faulty judgment, inadequate knowledge, or inattention . . . .’’ The
American Heritage Dictionary (2nd College Ed. 1985) defines mistake, in
relevant part, as: ‘‘1. An error or fault. 2. A misconception or misunder-
standing. . . .’’
None of these definitions defines ‘‘mistake’’ as an absence of negligence.
Rather, there is a clear commonality to each of these definitions, which
includes error, misunderstanding, and misconception. Although these more
expansive dictionary definitions appear to be more in line with the remedial
purpose of the statute, it is not the interpretation that the court in DiLieto
instructed is the proper interpretation of the term mistake as used in § 52-
109. Because we are ‘‘an intermediate appellate court . . . we are not at
liberty to overrule, reevaluate or reexamine controlling precedent of our
Supreme Court.’’ Pite v. Pite, 135 Conn. App. 819, 826, 43 A.3d 229, cert.
denied, 306 Conn. 901, 52 A.3d 728 (2012).
9
We are mindful, however, that the same sort of mistake at issue here,
namely, a mistake of law, has been considered a good faith, nonnegligent
mistake by our courts in other cases. For instance, in DiLieto, the plaintiff
erroneously believed her bankruptcy proceeding had ended so that the
debtor, not the trustee, could sue in malpractice. DiLieto v. County Obstet-
rics & Gynecology Group, P.C., supra, 297 Conn. 147. The trial court found
this to be a nonnegligent mistake, based on the facts presented regarding
the plaintiff’s reasons for believing that she was the proper party, notwith-
standing the well established law that actions brought on behalf of a bank-
ruptcy estate must be brought in the name of the trustee as the real party
in interest. See id.; see also Manning v. Feltman, 149 Conn. App. 224, 233–34,
91 A.3d 466 (2014).
Additionally, in Rana v. Terdjanian, supra, 136 Conn. App. 112–13, this
court found that the trial court had not abused its discretion in granting a
motion to substitute after concluding that the mistake in commencing the
action in the name of the wrong plaintiff was not the result of negligence.
In that case, the self-represented plaintiff initiated his action in small claims
court in his individual capacity. Id., 112. He was suing on behalf of a limited
liability company, in which his wife was the sole member, to recover a debt
owed by the defendant to the limited liability company. Id., 103–104. The
plaintiff was not a member of the limited liability company, but his name
appeared on the credit card and bank statements of the limited liability
company. Id., 105. Just four months after the action was commenced, the
defendant removed the case to the Superior Court, and the plaintiff retained
counsel. Id., 103–104. Counsel filed an amended complaint, but did not
correct the fact that the wrong plaintiff had commenced the action, and the
defendant then filed a special defense alleging that Rana had no standing.
Id., 104, 105 n.6. The issue of standing, however, was not raised again until
the court, during trial, sua sponte, inquired whether the plaintiff had standing
to pursue the case. Id., 104–105. The plaintiff responded to the court’s inquiry
by filing a motion to substitute the limited liability company as the proper
plaintiff. Id., 105. After hearing argument on the motion, the court concluded
that, at the time he commenced this action, the self-represented party had
an honest conviction, entertained in good faith and not resulting from his
own negligence that he was the proper party because (1) he was not aware
of General Statutes §§ 34-134, 34-186 and 34-187; and (2) the evidence of
his extensive role in operating the business owned by the limited liability
company led to his belief that he was the proper party to commence the
action. Id., 112. We concluded that the trial court properly allowed the
substitution. Id., 112–13.
In both DiLieto and Rana, the trial court determined, based on the facts
presented to it, that the original plaintiffs in those cases were not negligent
in commencing their actions in their individual names, the court having
been satisfied that there was a reasonable basis for the plaintiffs’ belief that
they were the proper parties.
In the present case, the plaintiffs contended that a recent case from the
Appellate Court made counsel realize that Riverview was the proper party,
rather than the individual plaintiffs. Although the dissent presents a well
written opinion, the plaintiffs in this case presented nothing more than an
argument that the law had changed when in fact it had not. On the basis
of such an argument, what was the trial court to do? After hearing testimony
and considering the argument of counsel, the trial court here concluded
that the law had not changed and that, therefore, the plaintiffs, who were
represented by counsel at the time this action was commenced, should have
known that Riverview was the proper party. The plaintiffs offered very little
in the way of explanation, both before the trial court and on appeal, as to
why they were unaware of the established law and as to why the case was
not commenced in the name of Riverview. Thus, here, we are unable to
conclude that the court abused its discretion in denying the motion to
substitute based on what was presented to it.