author: PER CURIAM.

text:
    CHARLES D. GIANETTI v. JOSEPH LUCIAN GERARDI
    (AC 30628)
    Harper, Beach and Robinson, Js.
    Argued January 15
    officially released June 22, 2010

      Charles D. Gianetti, pro se, the appellant (plaintiff).

      Joseph L. Gerardi, pro se, the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Charles D. Gianetti, appeals from the judgment of the trial court rendered in accordance with a report filed by an attorney trial referee (referee) in favor of the defendant, Joseph Lucian Gerardi. The plaintiff claims that the court improperly denied his motion to reargue his objection to the referee’s report. We agree with the plaintiff and reverse the judgment of the trial court.

The following facts and procedural history appear in the record. In 2001, the plaintiff commenced this action against the defendant. The dispute involved the alleged nonpayment of medical expenses to the plaintiff for services rendered to a client who the defendant had represented in a personal injury matter. In a substitute complaint filed in March, 2002, the plaintiff included three counts alleging breach of implied contract, unjust enrichment and quantum meruit. The defendant filed an answer and special defenses. Subsequently, the matter was referred to the referee, who filed a report with the court on September 29, 2003. The referee set forth his findings of fact, legal conclusions and recommendation that judgment enter in the defendant’s favor.

On October 17,2003, the plaintiff filed a motion pursuant to Practice Book § 19-18, requesting an extension of time to file an objection to the referee’s report. The motion provided in relevant part that “[the] plaintiff respectfully requests an extension of time to [thirty] days after the transcript of the trial is received to file objections to the report of the . . . [r]eferee. The transcript of the trial has been ordered.” On November 4, 2003, the court clerk sent notice to the parties that the court, Thim, J., had granted the plaintiffs motion. On February 27, 2004, the defendant filed a motion for judgment on the report.

On March 9, 2004, the plaintiff filed an objection to the referee’s report. On June 23,2008, the court, Arnold, J., “denied” the objection, stating only that it had been filed in an untimely manner. On March 15, 2004, the plaintiff filed an objection to the defendant’s motion for judgment on the report. The plaintiff represented in this motion that he had received the trial transcript from the court monitor on or about February 26, 2004. On June 23, 2008, the court, Arnold, J., overruled the objection on the ground that it was untimely as it had been “made more than [thirty] days after notification that transcript was ready.” In ruling on the plaintiffs objection to the referee’s report, the court expressly referred to its ruling on the plaintiffs objection to the defendant’s motion for judgment on the report.

On July 11,2008, the plaintiff filed a motion to reargue the court’s rulings of June 23, 2008. The plaintiff represented that the court improperly had deemed his filings to be untimely when, in fact, he had filed them well within thirty days of his having received the trial transcript. The plaintiff relied on the court’s order of November 3,2003, granting his request for an extension of time in which to file an objection to the referee’s report until thirty days after he had received the trial transcript. The court, Arnold, J., heard argument on the plaintiffs motion to reargue on December 1, 2008. On that same date, the court clerk issued notice of the following ruling on the plaintiffs motion to reargue: “The court reaffirms its earlier decision overruling [the] objection to the report of the attorney trial referee. The objection was untimely filed. Judgment on the report of the attorney trial referee was granted ... on June 28, 2008.” On December 18, 2008, the plaintiff timely appealed from the court’s judgment on the report.

The plaintiff claims that the court improperly denied his motion to reargue his objection to the referee’s report. “[I]n reviewing a court’s ruling on a motion to open, reargue, vacate or reconsider, we ask only whether the court acted unreasonably or in clear abuse of its discretion. . . . When reviewing a decision for an abuse of discretion, every reasonable presumption should be given in favor of its correctness. ... As with any discretionary action of the trial court . . . the ultimate [question for appellate review] is whether the trial court could have reasonably concluded as it did.” (Citations omitted; internal quotation marks omitted.) Valentine v. LaBow, 95 Conn. App. 436, 451-52, 897 A,2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006). “[T]he purpose of a reargument is ... to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts. ... It also may be used to address . . . claims of law that the [movant] claimed were not addressed by the court. ... [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple . . . .” (Citations omitted; internal quotation marks omitted.) Opoku v. Grant, 63 Conn. App. 686, 692-93, 778 A.2d 981 (2001).

In ruling on the plaintiffs motion to reargue, the court reaffirmed its earlier decision to deny the plaintiffs objection to the report on timeliness grounds. The gist of the court’s decision was that the plaintiff had filed the objection more than thirty days after he had received notice from the court monitor that the trial transcript was ready. At the hearing on the motion to reargue, the plaintiff represented that he had filed his objection to the referee’s report within thirty days of his receipt of the trial transcript. During argument on the plaintiff’s motion to reargue, the defendant did not challenge the accuracy of this factual representation but argued that the objection was untimely because the plaintiff had not filed his objection within thirty days after he had notice that the trial transcript was ready. Likewise, in denying the motion to reargue, the court did not state that the plaintiffs factual representation, that he had filed his objection to the referee’s report within thirty days of his receipt of the trial transcript, was untrue. In any event, the record reflects that, in granting the plaintiff s motion for an extension of time in which to file his objection to the report, the court, in plain language, afforded the plaintiff thirty days from his receipt of the trial transcript, not from the date on which the plaintiff had notice that the transcript was ready. The construction of an order is a question of law over which we exercise plenary review. See State v. Denya, 294 Conn. 516, 529, 986 A.2d 260 (2010). It readily appears from the record that the court, in denying the motion to reargue, based its ruling on a flawed interpretation of the order granting the plaintiff an extension of time in which to file an objection to the report. Accordingly, we conclude that the court’s denial of the plaintiffs motion to reargue reflects an abuse of discretion and reverse the court’s judgment. Before the court may render judgment on the report, it must determine, in conformity with the ruling on the motion for an extension of time, whether the plaintiff had filed his objection to the report within thirty days of his receipt of the trial transcript, and, if he did so, the plaintiff must be afforded an opportunity to be heard concerning his objections to the report.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

       Both parties appeared pro se before the trial court and before this court. The defendant is a Connecticut attorney.

       The court file reflects that the court granted the defendant’s motion for judgment on the referee’s report on June 23, 2008. The court file does not reflect that the court sent notice of its judgment to the parties, and the plaintiff represents that he did not receive notice of the court’s judgment until December 1,2008, when he received written notice of the court’s ruling denying his motion to reargue. Because “an appeal must be filed within twenty days of the date notice of the judgment or decision is given”; Practice Book § 63-1 (a); the present appeal from the judgment on the report is timely.

       The defendant argues that the record is inadequate to review the court’s denial of the plaintiffs motion to reargue. As our analysis reflects, the record of the court’s rulings adequately sets forth the basis for the court’s ruling on this motion.


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ANTHONY EDWARD STRONG, JR.
    (AC 31087)
    Flynn, C. J., and Alvord and Hennessy, Js.

      Argued March 8
    officially released June 22, 2010

      Raymond L. Durelli, special public defender, for the appellant (defendant).

      Paul J. Narducci, Jr., senior assistant state’s attorney, with whom, on the brief, was Michael L. Regan, state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

FLYNN, C. J.

The defendant, Anthony Edward Strong, Jr., appeals from the judgments of conviction, following a jury trial, of criminal mischief in the first degree in violation of General Statutes § 53a-115 (a) (1), reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a), two counts of threatening in the second degree in violation of General Statutes § 53a-62 (a) (1), threatening in the second degree in violation of General Statutes § 53a-62 (a) (2), assault in the third degree in violation of General Statutes § 53a-61 (a) (1) and kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (C). On appeal, the defendant claims that the trial court improperly (1) failed to instruct the jury on the intent and conduct necessary to find him guilty of kidnapping in accordance with State v. Salamon, 287 Conn. 509, 550, 949 A.2d 1092 (2008) (en banc), (2) instructed the jury that it could use evidence without restriction despite admitting such evidence for a specific limited purpose and (3) failed to instruct the jury regarding the proper use of evidence that had been admitted for only a limited purpose. We affirm the judgments of the trial court.

The defendant and the victim were married in 2005. The marriage, however, was plagued by violence; the defendant yelled at the victim, called her names, hit her, kicked her and gave her black eyes. After having been married for less than two years, the victim and the defendant separated and were no longer living together. On February 8, 2007, the defendant asked the victim to meet him at BJ’s Wholesale Club (BJ’s) in Waterford because he had some things to give her. The defendant and the victim met at BJ’s, and the defendant accompanied the victim while she shopped. After walking with the victim to her car, the defendant went to his car and retrieved a black bag. The defendant and the victim then sat in the victim’s car. The victim testified that the defendant removed a silver and black handgun from the black bag and pressed it to her side. He was yelling at her and told her to drive. He ordered: “I want you to do what I tell you to do, and if you don’t, I’ll just cap you right where you are.” The victim stated that she understood that to mean that the defendant would shoot her. The victim was crying and very upset. Initially, the defendant instructed the victim to drive down a particular road, which led to a desolate area. The victim feared that the defendant was going to kill her and, instead, drove onto Interstate 95. The defendant instructed the victim to drive to the home of his friend, Timothy Bryant, which is located in Niantic. The victim parked in Bryant’s driveway and did not feel free to leave; the defendant continued to hold the handgun, or he had it in his lap. The defendant told her that his friends were going to rape her. Several of the defendant’s friends, as they were heading into Bryant’s house, passed the victim and the defendant as they sat in the car. The defendant asked one of his friends, Jay Floyd, what he wanted him to do with the victim, saying that her life was in Floyd’s hands. Floyd responded that she was the defendant’s wife and that they needed to work this out. He then walked away, while the victim was crying.

After being held for more than one hour, the victim, who has a heart condition, began wheezing and holding her chest. The defendant told the victim that he was sorry and that he only wanted to scare her. The defendant called Jermaine Floyd, another of his friends who was inside the Biyant house, and asked that some water and tissue be brought out to the car for the victim, which Jermaine Floyd did. Shortly thereafter, the victim told the defendant that she wanted to go home and that she needed to use the restroom. The defendant told her that she could not go home, but he did telephone Bryant and told him that he and the victim were entering the house so that she could use the restroom. The defendant accompanied the victim into the house and permitted her to use the restroom. They returned to the victim’s car. The victim was able to convince the defendant that she would not tell anyone about this incident and that she would go away with him the following weekend. The defendant permitted the victim to drive him back to his car, which remained at BJ’s. After arriving at BJ’s, the defendant asked the victim if he could stay at her house, but the victim declined, assuring the defendant that she would go away with him, however.

As the victim drove home to Groton, she noticed that the defendant was following her in his vehicle. Once she arrived at home, the victim entered the garage and locked all the doors. The victim’s friend happened to stop by and, upon his arrival, she told him what had happened. The defendant returned to the victim’s home later that night and began banging on the door. He continued banging for fifteen to twenty minutes. The victim told the defendant through the locked front door that she did not want to talk to him. The defendant continued to telephone the victim all through the night on both her home telephone and on her cellular telephone, more than forty times.

The following morning, February 9, 2007, the victim was driving south on Interstate 95, heading to work, when she passed the defendant’s vehicle. The defendant followed the victim onto Route 9, where he tried to get her to pull over. When the victim would not pull over, the defendant slammed his vehicle into the victim’s vehicle two times, causing her to lose control of the car. His third attempt to slam into her vehicle failed. After the defendant ran the victim’s car off of the road, the victim was unable to open her door, and she gestured to a truck driver, Walter Labrie, to telephone the police. The defendant went to the victim’s car and tried to open the driver’s side door, which would not open. He jumped onto the hood of the victim’s car, kicked the windshield several times and proceeded to smash the rear passenger’s side window, which gave him access to the inside of the car. After getting into the car, the defendant began scolding the victim for what she had “made [him] do.” Labrie saw “hands flying” and knew that the defendant and the victim were having a heated discussion. A man driving a sport utility vehicle stopped and assisted the victim in getting out of the car. Once she was out, he drove her a short way down the street after she explained to him that this was a domestic violence incident. The defendant soon got out of the victim’s car and initially started following the victim but soon left the area on foot.

The victim was veiy upset and was crying. Labrie, who had witnessed much of the incident, testified that the defendant’s acts appeared to be deliberate. The state police responded to the scene after having been alerted by several calls of erratic operation on Interstate 95 and on Route 9 and about a crash with someone standing on top of one of the cars. The police reported that the victim appeared “really shaken up . . . like someone who had been through a traumatic experience.” While the police still were on the scene and the victim was seated in one of the police cruisers, the defendant repeatedly telephoned her on her cellular telephone. During one of these conversations, one of the police officers spoke with the defendant and encouraged him to flag down a police cruiser, but the defendant refused. After a search, the police were unable to locate the defendant, who turned himself in to the police four days later.

The state charged the defendant in two informations. In docket number CR-07-291325, the state charged the defendant with kidnapping in the first degree with a firearm in violation of § 53a-92a, kidnapping in the first degree in violation of § 53a-92 (a) (2) (C), criminal possession of a pistol in violation of General Statutes § 53a-217c (a) (1), threatening in the second degree in violation of § 53a-62 (a) (1) and threatening in the second degree in violation of § 53a-62 (a) (2) for the incidents occurring on February 8, 2007. In docket number CR-07-179263, the state charged the defendant with attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1), criminal mischief in the first degree in violation of § 53a-115 (a) (1), attempt to commit assault in the second degree in violation of §§ 53a-49 (a) (2) and 53a-60 (a) (1), reckless endangerment in the first degree in violation of § 53a-63 (a) and threatening in the second degree in violation of § 53a-62 (a) (1) for the incident that occurred on February 9, 2007. The state requested that the cases be joined for trial before the jury, and the defendant did not object.

The jury returned a verdict of guilty in docket number CR-07-291325 on the charges of kidnapping in the first degree and two counts of threatening in the second degree. The jury found the defendant not guilty of kidnapping in the first degree with a firearm and criminal possession of a pistol. The court sentenced the defendant to a twenty year term of imprisonment on the charge of kidnapping in the first degree and to a concurrent one year term of imprisonment on each of the threatening charges.

In docket number CR-07-179263, the jury returned a verdict of guilty on the charges of criminal mischief in the first degree, assault in the third degree, as a lesser included offense of the charge of attempt to commit assault in the second degree, reckless endangerment in the first degree and threatening in the second degree. The court declared a mistrial on the charge of attempt to commit assault in the first degree because the jury was unable to reach a verdict. The court sentenced the defendant to a five year term of imprisonment on the criminal mischief count and to a one year concurrent sentence on each of the remaining three counts. The defendant’s total effective sentence on both dockets was twenty years imprisonment. This appeal followed.

I

On appeal, the defendant first claims that our Supreme Court’s “decision in State v. Salamon [supra, 287 Conn. 509] requires reversal of the defendant’s conviction for kidnapping because the jury was not properly instructed on the intent and conduct necessary to find the defendant guilty of that crime.” The defendant argues that although the court instructed the jury “in accordance with [the] then applicable precedent governing the interpretation of the kidnapping statutes,” the court’s instructions were improper under Salamon, and he is entitled to a new trial. We conclude that although the court’s instructions were improper, the impropriety was harmless beyond a reasonable doubt.

The defendant acknowledges that he did not challenge the court’s kidnapping instruction at trial and that this claim is raised for the first time on appeal. The defendant’s claim is based on our Supreme Court’s decision in State v. Salamon, supra, 287 Conn. 509, which officially was released after the defendant’s convictions in this case. The defendant requests review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). A defendant can prevail on an unpreserved constitutional claim under Golding “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id. We conclude that the claim is reviewable because the record is adequate for review and the claim is of constitutional magnitude. See State v. DeJesus, 260 Conn. 466, 472-73, 797 A.2d 1101 (2002) (“[a]n improper instruction on an element of an offense ... is of constitutional dimension” [internal quotation marks omitted]). We further conclude, however, that the state has met its burden of proof that the instructional impropriety was harmless beyond a reasonable doubt, and, therefore, the defendant’s claims fail under Golding's fourth prong.

“The standard of review for claims of instructional impropriety is well established. [Individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. ... In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury.” (Internal quotation marks omitted.) State v. Nelson, 118 Conn. App. 831, 858, 986 A.2d 311, cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010).

“In Salamon, our Supreme Court reconsidered its interpretation of Connecticut’s kidnapping statutes. . . . Ultimately, the court concluded that [o]ur legislature . . . intended to exclude from the scope of the more serious crime of kidnapping and its accompanying severe penalties those confinements or movements of a victim that are merely incidental to and necessary for the commission of another crime against that victim. Stated otherwise, to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim’s liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime. . . . The court stated that [the] holding [in Salomon was] relatively narrow and [that it] directly affects only those cases in which the state cannot establish that the restraint involved had independent significance as the predicate conduct for a kidnapping. . . . Additionally, the court stated: [A] defendant may be convicted of both kidnapping and another substantive crime if, at anytime prior to, during or after the commission of that other crime, the victim is moved or confined in a way that has independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime. Whether the movement or confinement of the victim is merely incidental to and necessary for another crime will depend on the particular facts and circumstances of each case. Consequently, when the evidence reasonably supports a finding that the restraint was not merely incidental to the commission of some other, separate crime, the ultimate factual determination must be made by the jury. For purposes of making that determination, the jury should be instructed to consider the various relevant factors, including the nature and duration of the victim’s movement or confinement by the defendant, whether that movement or confinement occurred during the commission of the separate offense, whether the restraint was inherent in the nature of the separate offense, whether the restraint prevented the victim from summoning assistance, whether the restraint reduced the defendant’s risk of detection and whether the restraint created a significant danger or increased the victim’s risk of harm independent of that posed by the separate offense.” (Citations omitted; internal quotation marks omitted.) Id., 858-59.

The defendant claims that, although the court’s charge was proper under then existing law, because the court did not instruct the jury in accordance with the new principles set forth in Salomon, he is entitled to a new trial. The state argues that to the extent that we conclude that there was instructional impropriety by the court, any such impropriety was harmless beyond a reasonable doubt because it is clear that the jury’s verdict would have been the same in the absence of the alleged impropriety. Although we agree with the defendant that the court’s instructions were not consistent with the new principles enunciated in Salomon, we agree with the state that this impropriety was harmless beyond a reasonable doubt under the factual circumstances of this case.

The defendant argues that the new principles set forth in Salomon are relevant to this case because the kidnapping of the victim merely was incidental to the threatening charges. We do not agree. Section 53a-92 (a) provides in relevant part: “A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to . . . (C) terrorize him or a third person . . . .” Section 53a-62 (a) provides in relevant part: “A person is guilty of threatening in the second degree when: (1) By physical threat, such person intentionally places or attempts to place another person in fear of imminent serious physical injury, (2) such person threatens to commit any crime of violence with the intent to terrorize another person . . . .”

In Salomon, our Supreme Court specifically stated: “[A] defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that has independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime.” State v. Salamon, supra, 287 Conn. 547. Although the defendant argues that the kidnapping merely was incidental to the threatening charges, we simply find no support for such a contention in the record of this case. The restraint necessary, if any, for the defendant to have threatened and terrorized the victim in this case was minimal in comparison to the amount of time that he held her against her will in the car, ordering her to drive and then holding her while at Bryant’s house. Certainly, the restraint exceeded “that which was necessary to accomplish or complete the other crimefs].” Id.

The state presented overwhelming evidence that the defendant had committed kidnapping in the first degree by ordering the victim to drive from Waterford to Niantic and by holding her in the car for more than one hour against her will with the intent to terrorize her. The state also presented evidence to support the two charges of threatening in the second degree, namely, that the defendant had threatened to “cap” the victim before ordering her to drive to Bryant’s house, repeatedly had yelled at her and repeatedly had told her that his friends were going to rape her. The defendant’s prolonged restraint of the victim in her car while forcing her to drive from Waterford to Niantic and while forcing her to remain in the car reasonably could not be considered merely incidental to either of the threatening charges.

After reviewing the record, we conclude that the improper instruction did not contribute to the jury’s verdict, and, therefore, the impropriety was harmless beyond a reasonable doubt. The record contains no evidence that rationally could have led the jury to find that the defendant’s restraint of the victim had been inherent in, or merely incidental to, the threatening crimes. See State v. Hampton, 293 Conn. 435, 463, 978 A.2d 1089 (2009). Accordingly, we conclude that the court’s failure to instruct the jury in accordance with the principles enunciated in Salomon was harmless beyond a reasonable doubt.

II

The defendant next claims that the court’s instructions to the jury impermissibly misled the jury into thinking that it could use evidence without restriction in the consolidated cases despite the admittance of the evidence for the limited purposes of “intent, motive, absence of accident and as a continuing course of conduct.” More specifically, he claims that “[t]he trial court’s jury instructions consolidated two cases joined for trial into a single case where the trial court admitted evidence for specific limited purposes, but then instructed the jurors that they could use that evidence without restriction.” The defendant made no request to charge the jury, and he did not take an exception to the charge as given. Accordingly, his claim is unpre-served, and he contends that he is entitled to a new trial under the plain error doctrine. See Practice Book § 60-5.

“[T]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. ... In addition, the plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. . . .

“[W]e recently clarified the two step framework under which [an appellate court] review[s] claims of plain error. First, we must determine whether the trial court in fact committed an error and, if it did, whether that error was indeed plain in the sense that it is patent [or] readily discemable on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable. . . . We made clear . . . that this inquiry entails a relatively high standard, under which it is not enough for the defendant simply to demonstrate that his position is correct. Rather, the party seeking plain error review must demonstrate that the claimed impropriety was so clear, obvious and indisputable as to warrant the extraordinary remedy of reversal. . . .

“In addition, although a clear and obvious mistake on the part of the trial court is a prerequisite for reversal under the plain error doctrine, such a finding is not, without more, sufficient to warrant the application of the doctrine. Because [a] party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice . . . under the second prong of the analysis we must determine whether the consequences of the error are so grievous as to be fundamentally unfair or manifestly unjust. . . . Only if both prongs of the analysis are satisfied can the appealing party obtain relief.” (Citation omitted; internal quotation marks omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 204—205, 982 A.2d 620 (2009).

The defendant argues that “[although no authority exists for the proposition that the trial court must give a limiting instruction, sua sponte, when two cases have been joined for trial and the evidence is cross admissible, no authority exists that permits a trial court to explicitly instruct the jurors that the use of the evidence in the two cases is unrestricted.” He argues that the court, having explicitly given such an instruction in this case, committed plain error, thereby requiring reversal of the defendant’s convictions. We disagree.

The defendant cites in his brief the following language from the court’s charge: “ ‘Your verdict on any one count does not control your verdict on any other count in either information. Each charge against the defendant requires an independent determination of whether he is guilty or not guilty considering only that evidence which applies to that particular charge. There can be no spillover of evidence; that is, each count in each information must be judged solely on the strength of the evidence that applies to it without regard to the evidence in any other count. Your finding in any one count does not in and of itself establish a basis for similar findings in the other count. For all the practical purposes, the defendant is to be considered on trial separately in each information and in each count. It is solely for you to determine whether or not evidence presented applies to a count or counts in one information or to a count or counts in both informations’ ” (Emphasis in original.)

Even if we were to agree with the defendant that the last sentence in this portion of the court’s charge was improper, nonetheless, because the charge in its entirety fairly and accurately instructed the jury on the proper use of the evidence, we conclude that the defendant cannot demonstrate that our declining to grant relief under the facts of this case will result in manifest injustice. The court properly instructed the jury that the cases were joined for reasons of judicial economy and that the consolidation had no bearing on the defendant’s guilt or innocence in either case. The court told the jury that each information and each charge must be viewed separately and that the evidence cannot spill over but that “each information must be judged solely on the strength of the evidence that applies to it without regard to the evidence in any other count.” Accordingly, the defendant has failed to establish that our declining to grant relief will result in manifest injustice. We conclude, therefore, that the court did not commit plain error.

Ill

The defendant also claims that “[t]he trial court failed to instruct the jurors regarding the proper use of evidence admitted for a limited [purpose, thereby] depriving the defendant of a fair trial.” The defendant neither requested a limiting instruction nor took an exception to the charge as given. He explains that he “recognizes that there is no authority for the proposition that the trial court must give a limiting instruction when two or more cases have been joined for trial and the evidence is cross admissible.” He asks, however, that we invoke our supervisory powers in reviewing his claim and that we adopt a per se rule that “when two or more cases have been joined for trial, and the trial court determines that the evidence is cross admissible, the trial court must instruct the jurors that the proper use of that evidence is limited to the purpose for which the evidence was admitted.” We decline the defendant’s request.

“Although [a]ppellate courts possess an inherent supervisory authority over the administration of justice . . . [that] authority ... is not a form of free-floating justice, untethered to legal principle. . . . Our supervisory powers are not a last bastion of hope for every untenable appeal. They are an extraordinary remedy to be invoked only when circumstances are such that the issue at hand, while not rising to the level of a constitutional violation, is nonetheless of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole. . . . Constitutional, statutory and procedural limitations are generally adequate to protect the rights of the defendant and the integrity of the judicial system. Our supervisory powers are invoked only in the rare circumstance where these traditional protections are inadequate to ensure the fair and just administration of the courts.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Coward, 292 Conn. 296, 315, 972 A.2d 691 (2009).

In this case, the defendant could have filed a written request to charge, and he could have taken an exception to the charge as given. Although “it is the better practice for the trial court to instruct the jury whenever evidence is admitted for a limited purpose even when not requested to do so”; (internal quotation marks omitted) State v. Atkins, 118 Conn. App. 520, 535 n.13, 984 A.2d 1088 (2009), cert. denied, 295 Conn. 906, 989 A.2d 119 (2010); “[i]t is well established in Connecticut . . . that the trial court generally is not obligated, sua sponte, to give a limiting instruction.” (Internal quotation marks omitted.) Id., 535; see also Conn. Code Evid. § 1-4 (“court may, and upon request shall, restrict the evidence to its proper scope”). “The failure by the court to give, sua sponte, an instruction that the defendant did not request, that is not of constitutional dimension and that is not specifically mandated by statute or rule of practice is not so egregious that it affects fundamental fairness or the integrity of and public confidence in the judicial proceedings.” State v. Atkins, supra, 535-36. Our supervisory powers are reserved for extraordinary circumstances that simply are not implicated by the present case.

The judgments are affirmed.

In this opinion the other judges concurred.

       The defendant was found not guilty of kidnapping in the first degree with a firearm in violation of § 53a-92a (a) (2) (C) and criminal possession of a pistol in violation of General Statutes § 53a-217c (a) (1), and the court declared a mistrial on the charge on attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1).

       We decline to identify the victim by name in the interest of protecting her privacy. See State v. Ramirez, 292 Conn. 586, 588 n.2, 973 A.2d 1251 (2009).


author: GRUENDEL, J. DUPONT, J.,

text:
    DAVID CARON CHRYSLER MOTORS, LLC, ET AL. v. GOODHALL’S, INC., ET AL.
    (AC 30232)
    Gruendel, Beach and Dupont, Js.
    Argued December 8, 2009
    officially released June 29, 2010

      Walter A. Twachtman, Jr., for the appellants (plaintiffs).

      Edward Muska, with whom was F. Joseph Paradiso, for the appellees (defendants).
   Opinion

GRUENDEL, J.

The plaintiffs, David Caron Chrysler Motors, LLC, and David A. Caron, appeal from the judgment of the trial court in favor of the defendants, Good-hall’s, Inc., Goodhall’s Garage, Inc., and Lucille Goodhall, administratrix of the estate of Wallace Good-hall, Jr. On appeal, the plaintiffs claim that the court improperly found that there was no enforceable lease between the plaintiffs and the defendants, and, therefore, the defendants could not be hable for any damages arising out of various claimed breaches of the lease. We affirm the judgment of the trial court.

The following facts found by the court are relevant to our discussion. In the mid-1950s, Wallace Goodhall, Jr., opened a service station located at 2 Mashapaug Road in Union. Thereafter, Wallace Goodhall, Jr., secured a Chrysler franchise, and that business became known as Goodhall’s Chrysler-Plymouth-Dodge-Jeep-Eagle, LLC. Wallace Goodhall, Jr., maintained ownership of the land through his corporation, Goodhall’s Garage, Inc. In 1996, he sold the business to Jerry L. Yost and leased the land and building to Yost with an option to purchase. The lease provided that there will be no assignment of the lease “without the prior written consent of the landlord.” It further provided that a transfer of a majority interest in the limited liability company would constitute an assignment of the lease. In 1998, without obtaining the consent of Goodhall’s, Inc., David Caron purchased the business from Yost. The business became David Caron Chrysler Motors, LLC, and occupied the property on which it was located. A dispute resulted, and the plaintiffs brought this action for damages. In its memorandum of decision, filed August 18, 2008, the court found that there was no contract between “Caron and Goodhalls . . . .”

In our view, the court must be credited with finding what it stated it found, not what we want to impute from its words. Thus, in analyzing the procedural history and factual background of this case, we also are compelled to look to what the court did not find. In its memorandum of decision, the court defined “Caron” as “David Caron.” It wrote: “In 1997, David Caron (Caron) was told by his attorney . . . that he might want to look into the Yost owned dealership . . . .” Nowhere in the decision did the court indicate that it intended to refer to Caron as anyone or anything other than David Caron. Specifically, the court never used the term Caron as a shorthand way to denominate the entity David Caron Chrysler Motors, LLC. That entity is mentioned in the memorandum of decision but not in connection with the court’s determination that there was no contract between “Caron and Goodhalls . . . .” Put simply, the court made no finding that there was or was not a contract between the two corporate parties, David Caron Chrysler Motors, LLC, and Goodhail’s, Inc.

At best, the court’s finding is ambiguous. It is axiomatic that “[a]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification.” (Internal quotation marks omitted.) Nicefaro v. New Haven, 116 Conn. App. 610, 617, 976 A.2d 75, cert. denied, 293 Conn. 937, 981 A.2d 1079 (2009). Moreover, “[w]here the trial court’s decision is ambiguous, unclear or incomplete, an appellant must seek an articulation ... or this court will not review the claim.” (Internal quotation marks omitted.) Testone v. C. R. Gibson Co., 114 Conn. App. 210, 223, 969 A.2d 179, cert. denied, 292 Conn. 914, 973 A.2d 663 (2009); see also Narumanchi v. DeStefano, 89 Conn. App. 807, 815, 875 A.2d 71 (2005) (“[^peculation and conjecture have no place in appellate review”); Cianbro Corp. v. National Eastern Corp., 102 Conn. App. 61, 71-72, 924 A.2d 160 (2007) (incumbent on appellant to provide adequate record for review). “In the absence of a motion for articulation, we read an ambiguous trial record to support, rather than to undermine, the judgment.” (Internal quotation marks omitted.) Perez v. D & L Tractor Trailer School, 117 Conn. App. 680, 707, 981 A.2d 497 (2009), cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010); Zabaneh v. Dan Beard Associates, LLC, 105 Conn. App. 134, 142, 937 A.2d 706 (same), cert. denied, 286 Conn. 916, 945 A.2d 979 (2008). Here, the court found that there was no enforceable contract. Notably, the plaintiffs failed to seek an articulation, as permitted by Practice Book § 66-5. Because the plaintiffs failed to seek an articulation, we must read the court’s memorandum of decision to support, rather than undermine, its judgment that no contract existed between “Caron and Goodhalls . . . .”

The judgment is affirmed.

In this opinion BEACH, J., concurred.

DUPONT, J.,

dissenting. I respectfully dissent from the majority’s conclusion that the judgment of the trial court in favor of the defendants, Goodhall’s, Inc., Good-hall’s Garage, Inc., and Lucille Goodhall, administratrix of the estate of Wallace Goodhall, Jr., should be affirmed. The majority reasons that because the plaintiffs, David Caron Chrysler Motors, LLC, and David A. Caron, failed to provide an adequate record for review by not seeking a necessary articulation of the trial court’s memorandum of decision, there is a presumption that the court properly determined that no lease existed between the parties.

I do not agree that the plaintiffs needed to seek an articulation and, therefore, I do not presume that the judgment of the court that no enforceable lease between the parties existed should be affirmed for failure of the plaintiffs to seek articulation. I would conclude that the court clearly found that there was no lease between David Caron Chrysler Motors, LLC, and Goodhall’s, Inc. Furthermore, I would conclude that this finding is clearly erroneous, because a change in the name of the limited liability company, particularly, Goodhall’s Chrysler-Plymouth-Dodge-Jeep-Eagle, LLC, to David Caron Chrysler Motors, LLC, did not affect the latter’s entitlement to claim under a lease that was entered into by its predecessor. I would, therefore, reverse the judgment in favor of the defendants and remand the case to the trial court to determine the rights and liabilities of the parties pursuant to the lease.

I

In resolving whether a motion for articulation was necessaiy, we must refer to the court’s memorandum of decision. I would conclude, for the reasons, hereinafter discussed, that a motion for articulation of the court’s memorandum was not needed.

The court made two statements in its memorandum that relate to whether there was or was not a lease between Goodhall’s, Inc., and David Caron Chrysler Motors, LLC. The first statement was, “[t]he fact is, there was never any contract between the parties to this action,” and the second was, “[t]here was no contract between Caron and Goodhalls, explicit or implied.” The question is whether a plain reading of those statements is the equivalent of a finding that there was or was not a lease between David Caron Chrysler Motors, LLC, and Goodhall’s, Inc. As to the first statement, it is clear that the parties in this case are the plaintiffs, David Caron and David Caron Chrysler Motors, LLC, and all of the Goodhall defendants. This statement could only mean that there was no lease between either of the two plaintiffs and any one of the defendants. The second statement is not contradictory of the first statement because it would be included in the court’s first statement that there was no contract between either one of the plaintiffs, David Caron or David Caron Chrysler Motors, LLC, and any one of the Goodhall defendants. On the basis of a plain reading of the memorandum of decision, I believe the court found that there was no contract between David Caron, individually, and any of the defendants and also found that there was no contract between David Caron Chrysler Motors, LLC, and any of the defendants.

David Caron, individually, did not allege in his complaint that he had a lease with any of the defendants. The corporate entity, David Caron Chrysler Motors, LLC, did allege that it had a lease with Goodhall’s, Inc. On the basis of the allegations in the complaint, the court’s finding that “there was never any contract between the parties” makes it clear that the term parties included David Caron Chrysler Motors, LLC. See Stein v. Tong, 117 Conn. App. 19, 26, 979 A.2d 494 (2009) (“The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent suiprise. ... A complaint should fairly put the defendant on notice of the claims against him. . . . Thus, a plaintiff during trial cannot vary the factual aspect of his case in such a way that it alters the basic nature of the cause of action alleged in his complaint. ... In other words, [a] plaintiff may not allege one cause of action and recover upon another.” [Internal quotation marks omitted.]). Thus, I would conclude that it is clear from the memorandum of decision that the court found that there was no lease between David Caron Chrysler Motors, LLC, and any one of the defendants.

The majority bases the need for the articulation on the conclusion that the use of the word “Caron” excludes David Caron Chrysler Motors, LLC, because the court’s memorandum states that David Caron in 1997 “was told by his attorney . . . that he might want to look into the Yost owned dealership,” which Jerry L. Yost had purchased from Wallace Goodhall in 1996. In 1997, David Caron Chrysler Motors, LLC, did not yet exist, and, therefore, the statement could not be analyzed to conclude that whenever “Caron” was used in the memorandum, it meant David Caron individually and not the limited liability company. I agree that whenever the name “Caron” is used in the decision, it refers to David Caron individually because the statements refer to events occurring before May 24, 1999, the date Jerry Yost’s Chrysler Motors, LLC, became David Caron Chrysler Motors, LLC. Therefore, I do not believe that the limited liability company was excluded from such statements for any reason other than the fact that the limited liability company did not yet exist in the context of the statements.

Furthermore, the court made other findings of fact in its memorandum of decision that make it clear that it found that there was no lease between David Caron Chrysler Motors, LLC, and Goodhall’s, Inc. Specifically, the court in its memorandum of decision noted that there were negotiations between the parties, namely, Goodhall’s, Inc., and David Caron or David Caron Chrysler Motors, LLC, and went on to conclude that there was no contract between Caron and Goodhall’s, Inc. The fact that the negotiations were on behalf of both the plaintiffs would indicate that the conclusion that there was no contract between the parties included both David Caron and David Caron Chrysler Motors, LLC. On the basis of the foregoing, I would conclude that the court’s memorandum of decision makes clear that it found that there was no lease between David Caron Chrysler Motors, LLC, and Goodhall’s, Inc.

II

Having determined that the court found that there was no lease between David Caron Chrysler Motors, LLC, and Goodhall’s, Inc., I can review this finding on appeal. The scope of appellate review depends on the characterization of the rulings made by the trial court. “To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” Morton Buildings, Inc. v. Bannon, 222 Conn. 49, 53, 607 A.2d 424 (1992). “A lease is a contract and questions concerning it are determined in accordance with usual contract law. . . . Whether a contract exists is a question of fact or a mixed question of fact and law for the court to determine.” (Citation omitted; internal quotation marks omitted.) Amwax Corp. v. Chadwick, 28 Conn. App. 739, 741, 612 A.2d 127 (1992). In the present case, the question of whether a contract existed did not depend on the credibility of the parties but, rather, on the record, and raises a question of law for which our review is plenary. See Morton Buildings, Inc. v. Bannon, supra, 53-54.

The following facts were either admitted by the defendants in their answer to the plaintiffs’ complaint or found by the court in its memorandum of decision. A five year lease, dated June 20, 1996, was entered into by Goodhail’s, Inc., and Goodhall’s Chrysler-Plymouth-Dodge-Jeep-Eagle, LLC, a predecessor of the plaintiffs limited liability company, for the premises at 2 Masha-paug Road, Union. Wallace Goodhall signed the lease as the president of Goodhall’s, Inc., the landlord. Yost signed the lease as a member of Goodhall’s Chrysler-Plymouth-Dodge-Jeep-Eagle, LLC, the tenant. On July 14, 1997, Yost changed the name of the business from Goodhall’s Chrysler-Plymouth-Dodge-Jeep-Eagle LLC, to Jerry Yost’s Chrysler Motors, LLC. The court found that in October, 1998, Caron purchased a majority interest in Jerry Yost’s Chrysler Motors, LLC, without obtaining the permission of the landlord, Goodhall’s, Inc., as required by the terms of the lease.

On May 24, 1999, Caron changed the name of the business from Jerry Yost’s Chrysler Motors, LLC, to David Caron’s Chrysler Motors, LLC. Goodhall’s, Inc., instituted a summary process action, returnable on March 27, 2000, against David Caron Chrysler Motors, LLC, for nonpayment of rent. On June 20,2000, a stipulation was entered into between Goodhall’s, Inc., and David Caron Chrysler Motors, LLC, which provided that the lease, dated June 20,1996, be terminated by mutual agreement and that the mutual agreement to terminate the lease “shall not terminate, release, and/or discharge any claims or causes of action which either of the parties to said agreement have against the other as a result of actions or inaction which occurred prior to the termination of said [l]ease.” The parties agree in their respective briefs that the lease, dated June 20,1996, between Goodhall’s, Inc., and Goodhall’s Chrysler-Plymouth-Dodge-Jeep-Eagle, LLC, governs the parties to this action and the use of the premises owned by Good-hall’s, Inc.

I would conclude, for the following reasons, that the court’s finding that there was no lease agreement between Goodhail’s, Inc., and David Caron’s Chrysler Motors, LLC, was not legally and logically correct. The defendants admitted in their answer that David Caron Chrysler Motors, LLC, is the same legal entity as Good-hall’s Chrysler-Plymouth-Dodge-Jeep-Eagle, LLC, the name that appears on the lease. The defendants also admitted in their answer that the entity, Goodhall’s Chrysler-Plymouth-Dodge-Jeep-Eagle, LLC, has changed its name twice since the signing of the lease, to Jerry Yost’s Chrysler Motors, LLC, on July 14, 1997, and then to David Caron Chrysler Motors, LLC, on May 24, 1999.

As a preliminary matter, a review of some general principles governing limited liability companies is warranted. “[Limited liability companies] are hybrid entities that combine desirable characteristics of corporations, limited partnerships, and general partnerships. [They] are entitled to partnership status for federal income tax purposes under certain circumstances, which permits [limited liability company] members to avoid double taxation, i.e., taxation of the entity as well as taxation of the members’ incomes. . . . Moreover . . . members, unlike partners in general partnerships, may have limited liability, such that . . . members who are involved in managing the [limited liability company] may avoid becoming personally liable for its debts and obligations.” (Internal quotation marks omitted.) Weber v. U.S. Sterling Securities, Inc., 282 Conn. 722, 729, 924 A.2d 816 (2007). “A limited liability company is a distinct legal entity whose existence is separate from its members. ... A limited liability company has the power to sue or be sued in its own name; see General Statutes §§ 34-124 (b) and 34-186; or may be a party to an action through a suit brought in its name by a member. See General Statutes § 34-187.” (Citation omitted.) Wasko v. Farley, 108 Conn. App. 156, 170, 947 A.2d 978 (2008). A limited liability company may amend its name at any time. See General Statutes §§ 34-121 and 34-122 (b).

It is well established in corporate law that a change in name does not affect the identity, rights, or liabilities of the corporation. See Trinity Church v. Hall, 22 Conn. 125, 132 (1852) (“[n]ames, in such case, are arbitrary, and do not at all affect the identity of the corporation”). That principle is also applicable to limited liability companies. A review of the law concerning change of name of a corporation is instructive. “An authorized change in the name of a corporation has no more effect on its identity as a corporation than a change of name of a natural person has upon his identity; the corporation’s identity remains unchanged. A corporate name change does not make a new corporation, but only gives the corporation a new name. A change of name in no way affects the corporation’s nature or legal existence; a corporation’s legal existence commences upon the filing of articles of incorporation, and amendment of the articles merely to change the corporation’s name does not affect its perpetual existence.

“A corporation name change does not affect the rights of the corporation or lessen or add to its obligations, and has no effect on the corporation’s property. Thus, a corporate name change does not affect the liability of the corporation, including contractual liability. Moreover, there is no need for a formal assignment of trademark rights from a corporation under an old name to a corporation under a new name.” 18A Am. Jur. 2d, Corporations § 240 (2004); see also 18 C.J.S. 438-39, Corporations § 140 (2007) (“The change of a corporation’s name is not a change of its identity and has no effect on the corporation’s property, rights, or liabilities .... The change does not affect the title of the corporation to property or choses in action, or require any conveyance or assignment to the corporation in the new name. The corporation continues, as before, responsible in its new name for all debts or other liabilities which it had previously contracted or incurred. It is also entitled to enforce contracts made or other liabilities incurred to it before the change . . . Coken Co. v. Dept. of Public Works, 9 Mass. App. 586, 590, 402 N.E.2d 1110 (1980) (“[A] change of name by a corporation has no more effect upon the identity of the corporation than a change of name by a natural person has upon the identity of such person. The corporation, upon such change in its name, is in no sense a new corporation, nor the successor of the original one, but remains and continues to be the original corporation. It is the same corporation with a different name, and its character is in no respect changed.” [Internal quotation marks omitted.]).

Because a change in name to David Caron’s Chrysler Motors, LLC, from the original name of Goodhall’s Chrysler-Plymouth-Dodge-Jeep-Eagle, LLC, does not affect the entity’s ability to enforce contracts made in its previous name, the court’s finding that “there was never any contract between the parties to this action” is not legally and logically correct. The tenant, David Caron Chrysler Motors, LLC, under the lease, dated June 20, 1996, was entitled to bring an action against the landlord, Goodhall’s, Inc., pursuant to the lease. The court found that Caron’s purchase of a majority interest of the business was without the landlord’s permission and would constitute a breach of the terms of the lease. Nevertheless, according to the terms of the lease, the lease would not automatically terminate. See Rumbin v. Utica Mutual Ins. Co., 254 Conn. 259, 267-78, 757 A.2d 526 (2000); see also Fellows v. Martin, 217 Conn. 57, 68, 584 A.2d 458 (1991) (“as a general rule, covenants in a lease are independent).” Oil the basis of its finding that there was no lease, the court did not make any factual findings concerning the plaintiffs’ complaint for breach of the terms of the lease. See Sproviero v. J.M. Scott Associates, Inc., 108 Conn. App. 454, 469, 948 A.2d 379 (“[wjhether there was a breach of contract is ordinarily a question of fact” [internal quotation marks omitted]), cert. denied, 289 Conn. 906, 957 A.2d 873 (2008). In the absence of any factual finding, I cannot determine whether Goodhall’s, Inc., breached any provisions of the lease entitling David Caron Chrysler Motors, LLC, to damages pursuant to any breach.

I would reverse the judgment in favor of the defendants and remand the case to the trial court to determine the rights and liabilities of the parties pursuant to the lease.

       It is not clear from the pleadings why Caron and Wallace Goodhall, Jr., were .made parties in their individual capacities, but neither party ever sought a ruling from the trial court on that issue, so it is not before us.

       The lease ran from Goodhall’s, Inc., to Goodhall’s Chiysler-PlymouthDodge-Jeep-Eagle, LLC.

       The dissent argues that the court’s use of the term “parties” shows that “the trial court clearly found that there was no lease between David Caron Chrysler Motors, LLC, and Goodhall’s, Inc.” It supports that contention with two findings made by the court: (1) “[t]here were negotiations between the parties (GoodhaH’s, Inc., and David Caron [or] Caron Chrysler Motors, LLC),” and (2) “[t]he fact is, there was never any contract between the parties to this action.” According to the dissent, the two statements, taken together, make clear that the latter statement “could only mean that there was no lease between either of the named defendants.” We do not agree. The court also found that “there was never any contract between the parties to this action. Caron made an unwise business decision to purchase the Yost business in spite of his awareness that Goodhall had to approve any assignment of the lease.” (Emphasis added.) In view of that finding, it is far from clear whether the court’s use of the term parties includes anything more than David Caron and Goodhall. Rather, it is ambiguous.

       In a previous paragraph of the memorandum of decision, before this statement, the court states that “[t]here were negotiations between the parties (Goodhall’s, Inc., and David Caron [or] David Caron Chrysler Motors, LLC) . . . .” Therefore, the court describes the term parties to include Goodhall’s, Inc., David Caron and David Caron Chrysler Motors, LLC.

       Plenary review also would be appropriate if the questions were determined to be a mixed question of fact and law. See Phillips v. Warden, 220 Conn. 112, 131, 595 A.2d 1356 (1991).

       “[T]he admission of the truth of an allegation in a pleading is a judicial admission conclusive on the pleader. ... A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it.” (Internal quotation marks omitted.) Mercer v. Cosley, 110 Conn. App. 283, 301, 955 A.2d 550 (2008).

         Specifically, the record reveals that Caron bought a 75 percent interest in Jerry Yost’s Chrysler Motors, LLC.

       The lease stated: “Except as expressly otherwise provided in this Article, neither this Lease nor any part hereof, nor the interest of Tenant in any sublease or the rentals thereunder, shall, by operation of law or otherwise, be assigned, mortgaged, pledged, encumbered or otherwise transferred by Tenant, Tenant’s legal representatives or successor in interest, and neither the Demised Premises nor any part thereof shall be encumbered in any manner by reason of any act or omission on the part of Tenant, or anyone claiming, under or through, Tenant, or shall be sublet or be used, occupied or utilized for desk space, mailing privileges, or any other purpose for or by any other [principals] or entities other than Tenant, without the prior written consent of Landlord, which consent shall not be unreasonably withheld. If Tenant is other than an individual, a transfer in any single transaction or in a series of transactions of more than forty-nine percent (49%) in interest of Tenant (whether stock, Partnership interest or otherwise) by any party(ies) in interest shall be deemed an assignment of this Lease.”

       General Statutes § 34-121 provides in relevant part: “The articles of organization of a limited liability company . . . shall set forth ... [a] name for the limited liability company that satisfies the requirements of section 34-102
      General Statutes § 34-122 (b) provides: “The articles of organization may be amended in any and as many respects as may be desired, so long as the articles of organization as amended contain only provisions that may be lawfully contained in articles of organization at the time of making the amendment.”

       Pursuant to General Statutes §§ 33-636 and 33-655, the certificate of incorporation shall set forth a corporate name for the corporation, and a corporation may amend the certificate of incorporation at any time. Similarly, in the articles of incorporation, a limited liability company’s name shall be set forth and may be amended at any time. See 1 L. Ribstein & R. Keatinge, Limited Liability Companies (2d Ed. 2007) § 4:19, p. 4-55 (“As with LLCs, the corporate name serves to identify the firm and to notify third parties of the incorporated nature of the firm. Accordingly, rules regarding corporate name are similar to those regarding LLC names.”).

       Pursuant to the terms of the lease, a tenant’s default does not automatically terminate the lease. Section 20.02 of the lease provides that “if Tenant shall (i) do or permit anything to be done, whether by action or inaction contrary to any of Tenant’s obligations hereunder, or (ii) default in the performance of any covenant or condition of this Lease . . . Landlord may (in addition to any and all rights at law or in equity) re-enter and remove all persons and Tenants Property and/or other property from the Demised Premises and such Tenants Property and other property may be removed and stored in a public warehouse or elsewhere at the cost of, and for the account of Tenant, all with service of notice and resort to legal process and without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby.”
      Furthermore, § 20.03 of the lease provides: “Should Landlord elect to reenter, as herein provided, or should he take possession pursuant to legal proceedings or pursuant to any notice provided for by law, Landlord may terminate this Lease, and/or malee such alterations and repairs as may be necessary in order to relet the Demised Premises .... No such re-entry or taking possession of Demised Premises by Landlord shall be construed as an election on its part to terminate this Lease unless written notice of such intention be given to Tenant or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous breach.”
      Last, § 26.01 of the lease requires that “[a]ny notice, statement, demand or other communication required or Permitted to be given, rendered or made by either Party to the other, Pursuant to this Lease . . . shall be in writing, (whether or not so stated elsewhere in this Lease) . . . .” See Robinson v. Weitz, 171 Conn. 545, 551-52, 370 A.2d 1066 (1976).