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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 Youngman and Leslie Charm, doing business as Restoration

Associates (Restoration),1initiated 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 bankruptcy, and the plaintiffs, in turn, withdrew the complaint 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 business 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] ownership 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 ownership 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 ownership of the 50 percent [interest] . . . from Schiavone.

. . . [After] Schiavone had a disagreement with his

daughters . . . the plaintiffs acquired, for consideration, an additional 16 2/3 percent ownership of Missy

2, [giving] the plaintiffs [an ownership interest of] 66

2/3 percent of Missy 2

5

. . . .

‘‘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 Riverview.

‘‘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 properties were always reported to the Internal Revenue

Service . . . as being owned by [Riverview]. . . . The

operating agreement of Missy 2 [and, subsequently, Riverview] provided that no properties owned by the limited 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 managerowner 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 continued operation of the residential properties. . . . Schiavone 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 enrichment, 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 without 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 limited 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 plaintiffs 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 erroneously 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 jurisdiction and this action must be dismissed. Procedurally, 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 thereafterfiled a motion for articulation

of the trial court’s orders, and the court issued a memorandum 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 Riverview 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 incorrectly 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 discretion 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.

‘‘Adetermination regarding a trial court’s subject matter 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 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 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 & Gynecology 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 statutory remedy would be completely undermined by any

rule requiring the immediate dismissal for lack of subject-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 jurisdiction for the limited purpose of deciding a proper motion

to substitute.’ DiLieto v. County Obstetrics & Gynecology 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 consider 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 plaintiffin 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 addition 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 discloses 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 plaintiff, the court may, if satisfied that it was so commenced

through mistake, and that itis necessary forthe determination 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 conviction, 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 Riverview. 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 counsel 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 capacities.

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 principle 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 perhaps 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 substitute.9

Finally, having concluded that the court did not abuse

its discretion in denying the plaintiffs’ motion to substitute, we also conclude that the court properly determined 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 matterjuris-
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 ownership 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 mistake; 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 Obstetrics & 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 misunderstanding; 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 misunderstanding. . . .’’

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 Obstetrics & 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, notwithstanding the well established law that actions brought on behalf of a bankruptcy 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 whetherthe plaintiff had standing

to pursue the case. Id., 104–105. The plaintiffresponded 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.