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*********************************************** 
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 thirdparty 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 management 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 management 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 performed its obligations under the contract, and the plaintiff filed a separate 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 plaintiff’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 contract counterclaim, which was based on its claim that the court incorrectly 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 reargument 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 unavailing: 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; thereafter, the third-party defendants filed a third-party counterclaim; 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 thirdparty 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 thirdparty counterclaim defendant, Corporation for Urban

Home Ownership of New Haven (CUHO), and the thirdparty 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 judgment 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 procedural history are relevant to the issues raised in this

appeal. The present dispute stems from two separate

but related contracts: a property management agreement 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 agreement. In the management agreement, Dragon Bridge, designated in the agreement as the ‘‘MANAGER,’’ agreed

to be CUHO’s ‘‘exclusive managing agent to rent, lease,

operate, maintain, manage, and supervise and coordinate the rental, leasing, operation, and maintenance’’

of specified properties owned by CUHO in exchange for

a payment of $7000 per month. The management agreement 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 incorporated 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 residential 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 institution 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 litigation 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 agreement.
On March 3 and 5, 2020, all of the parties’ claims

were tried to the court, and the court issued a memorandum of decision on August 6, 2020. Through its memorandum 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, rendered 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 necessary.

I

D2E Holdings claims on appeal that the court improperly 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 characterization 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 interpret 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 covenant 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 covenant of good faith and fair dealing] is a rule of construction 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 defendant 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 obligation, 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 negligence; 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 Industries, 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 contingent 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 provision permits, but does not require, the parties to

extend the repayment deadline by entering into a separate written agreement.’’ (Emphasis omitted.) Id. This

court reasoned that ‘‘[t]he defendants mistakenly construe 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 contractual 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 extension.’’ (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 prescribed by Geysen, and reasoned that, ‘‘[u]nder the

express terms of the [real estate] contract, CUHO had

no obligation to provide D2E [Holdings] with documents that did not exist. If D2E [Holdings] had wanted

to require CUHO to create hitherto nonexistent documents, 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 covenant of good faith and fair dealing. That sum was deposited ‘as an initial deposit . . . to be applied to the [p]urchase [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 second 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 documents have been previously delivered to [D2E Holdings]

. . . .’’ There is no language in this provision, or otherwise 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 documents that are not existing and not available. Our

Supreme Court has made clear that the implied covenant 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 constructive 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 documents 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 improperly rendered judgment for CUHO on Dragon Bridge’s

breach of contract third-party counterclaim. Particularly, 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 provide ‘the required information and documents.’ The second special defense alleges that Dragon Bridge did not

exist on March 7, 2017, when the [management] agreement 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 circumstances, 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. Accordingly, we conclude that the record is inadequate to consider 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 requisite 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 applicable to the court’s ultimate legal conclusion as to the

capacity of an individual or entity to enter into a contract 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, purportedly 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 performance of the land purchase agreement and money damages. Id., 147. After trial, the trial court held that M &
K Realty, LLC, despite its nonexistence, had the capacity 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 formation 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 individual 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 individual 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 agreement 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 conclude that Dragon Bridge’s lack of capacity does not,

by itself, render the management agreement a ‘‘nullity.’’

Instead, the management agreement may be enforceable between Perez and CUHO if Perez had the ‘‘requisite 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 preincorporation rights is capacity of individual signee to contract, 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 assignment and ratification.

It is well established that a party cannot obtain appellate review of a claim challenging a finding or determination that the court did not make. ‘‘It is the responsibility 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 ambiguity 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 rendered 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.) Acadia 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 quotation marks omitted)). ‘‘It is, therefore, the responsibility

of the appellant to move for an articulation or rectification 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 treatment of these specific claims’’ because ‘‘the trial court

did not discuss the statute of limitations issues in rendering its . . . decision.’’ Id., 232–33. Our Supreme

Court declined to review the plaintiffs’ statute of limitations arguments on appeal because ‘‘the plaintiffs never
remedied this defect in the record by moving for articulation or rectification of the trial court’s decision’’ and,

thus, ‘‘leaves us with the inappropriate task of speculating 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 memorandum 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]atification 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 Holdings 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 memorandum 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 threshold standard pursuant to Tager.

On April 6, 2021, the court, without holding oral argument,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 reasoned 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 regarding [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 obligations pursuant to the terms of the contract. The court

has specifically found that [CUHO] did not fail to perform its obligations pursuant to the terms of the contract in question. Under these circumstances, [CUHO’s]

allegedly impure motives and the existence or nonexistence 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 discretion, 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 quotation 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 Superior 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.) Chapman 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 cumulative, or which impeaches the . . . credibility of a witness, 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 discretion 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] during its own financing process?’’ None of this new information 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 Holdings’ 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 thirdparty 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 defendants,’’ and CUHO never disputed the existence of the management agreement. 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 discussBRJM 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 ‘‘Manager[’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 company, 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 management 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 memorandum 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 withinfourmonthssucceeding 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 precedent 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.