Freeman v. Law Office of J. Xavier Pryor, LLC

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Freeman v. Law Office of J. Xavier Pryor, LLC

JUSTIN FREEMAN v. LAW OFFICE OF
J. XAVIER PRYOR, LLC, ET AL.
(AC 48163)
Cradle, C. J., and Suarez and Clark, Js.

Syllabus

The defendants appealed from the trial court’s judgment for the plaintiff’s
limited liability company, F Co., following the court’s denial of their pretrial
motion to dismiss, which asserted that the plaintiff F lacked standing to
bring a direct action against them to recover damages allegedly suffered by
F Co. The court granted F’s posttrial motion to add F Co. as a party plain-
tiff. The defendants claimed that the court improperly applied the narrow
exception created by our Supreme Court in Saunders v. Briner (334 Conn.
135) to the general rule that a member of a limited liability company lacks
standing to bring a direct action to recover for injuries allegedly suffered
by the company. Held:

The trial court improperly denied the defendants’ motion to dismiss, as
F lacked standing in his individual capacity because his claim sought to
recover for an injury to F Co., and F failed to demonstrate that allowing him
to proceed with a direct action would not prejudice F Co.’s creditors, thus
rendering the exception in Saunders inapplicable.

The trial court’s order granting F’s posttrial motion to amend the complaint
to add F Co. as a plaintiff did not cure F’s lack of standing, as the court lacked
subject matter jurisdiction over the entire trial, and there was nothing in
the record to indicate that the court made the findings necessary to permit
F to add F Co. as a proper party pursuant to statute (§ 52-109) because F
did not claim, and the court did not find, that the action was commenced in
the name of the wrong person as plaintiff through mistake as is required
under § 52-109.

Argued October 20, 2025—officially released April 14, 2026

Procedural History

Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Hartford, where the
court, Sheridan, J., denied the defendants’ motion to
dismiss; thereafter, the case was tried to the court, Klau,
J.; subsequently, the court, Klau, J., granted the plain-
tiff’s motion to amend the complaint to add Law Office
of Justin C. Freeman, LLC, as an additional plaintiff;
thereafter, the court, Klau, J., rendered judgment in
part for the plaintiff Law Office of Justin C. Freeman,
Freeman v. Law Office of J. Xavier Pryor, LLC

LLC, and the defendants appealed to this court. Reversed;
judgment directed.
J. Xavier Pryor, self-represented, for the appellants
(defendants).
Richard E. Joaquin, for the appellees (plaintiffs).

Opinion

CLARK, J. In Saunders v. Briner, 334 Conn. 135, 221
A.3d 1 (2019), our Supreme Court carved out a narrow
exception to the general rule that a member of a limited
liability company lacks standing to bring a direct action
to recover for injuries allegedly suffered by the company.
See id., 176. In the present appeal, the defendants, the
Law Office of J. Xavier Pryor, LLC (Pryor office), and
J. Xavier Pryor, claim that the trial court improperly
applied the narrow exception created under Saunders,
when it denied their motion to dismiss asserting that
the plaintiff Justin Freeman lacked standing to bring a
direct action against them to recover damages allegedly
suffered by the Law Office of Justin C. Freeman, LLC
(Freeman office).1 The plaintiffs dispute that claim and
further argue that, even if the court erred in denying
the pretrial motion to dismiss because Freeman lacked
standing to bring a direct action, any standing defect
was cured when the trial court granted his posttrial
motion to amend the complaint to add the Freeman office
1
Following the close of evidence, the trial court granted Freeman’s
posttrial motion to add the Freeman office as a party to conform to the
proof. We refer to Freeman and the Freeman office collectively as the
plaintiffs and individually by name.
The defendants also claim that (1) the court violated their right to
due process by allowing Freeman to amend his complaint and, posttrial,
change his theory of the case, (2) the court erred in rendering judg-
ment for the Freeman office on the plaintiffs’ breach of contract claim
notwithstanding its conclusion that the defendants did not breach the
contract, (3) the court erred in rendering judgment for the Freeman
office because, due to the Freeman office’s failure to file an appearance,
it was not a party to the case, and (4) the court erred in awarding costs
to the Freeman office. Because we conclude that the court should have
granted the defendants’ motion to dismiss, we need not address the
defendants’ remaining claims.
Freeman v. Law Office of J. Xavier Pryor, LLC

as a plaintiff.2 We conclude that the court improperly
denied the motion to dismiss and that Freeman’s lack of
standing was not cured by the court’s order granting his
posttrial motion to amend the complaint. Accordingly,
we reverse the judgment of the trial court.
The following facts, as alleged in the complaint or as
established by uncontested evidence submitted in con-
junction with the motion to dismiss,3 and procedural
history are relevant to this appeal. At the times relevant
to the dispute in this matter, Freeman was an attorney
licensed to practice law in this state. Prior to September
16, 2015, Freeman practiced law as a sole proprietor
under the name Law Office of Justin C. Freeman. On that
date, Freeman formed the Freeman office as a single-
member limited liability company.
On January 20, 2015, Freeman agreed to represent
Chanda Gonzalez in a personal injury action (Gonzalez
matter) and assigned Pryor, who was then employed by
Freeman as an associate attorney, to work on the case.
On or around March 25, 2016, Pryor resigned from the
Freeman office to open his own law firm, the Pryor office.
In early June, 2016, after it became apparent to Freeman
that the Gonzalez matter likely would proceed to trial,
Freeman asked Pryor to continue working on the mat-
ter. Pryor agreed and, on June 6, 2016, the Pryor office
filed an appearance in the Gonzalez matter in addition
2
Although the plaintiffs did not raise this argument in a statement
of alternative grounds to affirm the trial court’s decision pursuant to
Practice Book § 63-4, we address the issue because it implicates the trial
court’s subject matter jurisdiction and both parties had the opportunity
to brief the issue. See, e.g., Housing Authority v. Cyr, 234 Conn. App.
527, 529 n.2, 344 A.3d 527 (2025) (“[d]espite the defendant’s noncompli-
ance with our rules of practice, we will review his alternative ground for
affirmance because it implicates the subject matter jurisdiction of the
trial court and, therefore, may be raised at any time”); see also Gerardi
v. Bridgeport, 294 Conn. 461, 466, 985 A.2d 328 (2010) (addressing
alternative ground to affirm despite failure to file § 63-4 statement
because claim implicated trial court’s subject matter jurisdiction and
both parties had opportunity to brief issue).
3
See Derblom v. Archdiocese of Hartford, 203 Conn. App. 197, 200,
247 A.3d 600 (2021), aff’d, 346 Conn. 333, 289 A.3d 1187 (2023).
Freeman v. Law Office of J. Xavier Pryor, LLC

to the appearance previously filed by the Freeman office.
The complaint alleges that Freeman and the Pryor office
reached an oral agreement that they would split the attor-
ney’s fees equally if the Pryor office tried the Gonzalez
matter to verdict but that, if the matter settled before
trial, the Pryor office would be paid a reasonable fee for
its work on the case.
On October 17, 2016, Pryor attended a mediation in
the Gonzalez matter, at which the parties agreed to settle
the case for $750,000. At Pryor’s request, the insurer for
the defendant in the Gonzalez matter issued a check in
the amount of $750,000 payable to the Pryor office and
Gonzalez. After deducting costs and attorney’s fees owed
to Gonzalez’ prior counsel, attorney’s fees in the amount
of $165,000 remained to be split between the Freeman
office and the Pryor office. Freeman and Pryor disagreed
as to the division of the attorney’s fees. On February 15,
2017, the Pryor office issued a check to Freeman in the
amount of $82,500, representing one half of the total
fee to be split between the two firms. Freeman declined
to cash the check.
On February 16, 2021, Freeman commenced this action
in his individual capacity against Pryor and the Pryor
office, alleging, against each defendant, claims sounding
in breach of contract, conversion, unjust enrichment,
and quantum meruit, and seeking an accounting of the
settlement proceeds. The complaint does not allege that
Freeman registered the Freeman office as a limited liabil-
ity company in September, 2015. Rather, it alleges that,
“[a]t all times relevant to this matter, [Freeman] was
the owner, manger and principal of the business of the
[Freeman office], as a sole proprietor . . . .”
On October 29, 2021, the defendants filed a motion
to dismiss and an accompanying memorandum of law,
claiming that Freeman lacked standing to pursue this
action in his individual capacity. As an exhibit to their
memorandum of law, the defendants attached docu-
mentation from the Office of the Secretary of the State
indicating that the Freeman office registered as a limited
Freeman v. Law Office of J. Xavier Pryor, LLC

liability company on September 16, 2015, and that it had
since dissolved. The defendants argued that, because
Gonzalez was a client of the Freeman office, any harm
resulting from the fee dispute would have been suffered
by the Freeman office and not Freeman individually.
The defendants argued, therefore, that Freeman lacked
standing to bring this action in his individual capacity.
On November 23, 2021, Freeman filed an objection
to the motion to dismiss, an accompanying memoran-
dum of law, and an affidavit in support of his objection.
In the affidavit, Freeman attested that he had formed
the Freeman office as a single-member limited liability
company on September 16, 2015, while the Gonzalez
matter was still ongoing. In his memorandum of law,
Freeman argued, inter alia, that he had standing as the
sole member of the Freeman office to bring this action in
his individual capacity pursuant to our Supreme Court’s
decision in Saunders v. Briner, supra, 334 Conn. 135.4
Specifically, he argued that, “[a]lthough generally a
member or manager of a limited liability company may
not sue in an individual capacity to recover for an injury
to the limited liability company . . . Saunders created an
exception for single member limited liability companies
which applies here.”
The court, Sheridan, J., held a hearing on the defen-
dants’ motion to dismiss on May 2, 2022. At the hear-
ing, the defendants argued that the general rule in
4
Freeman also argued that he had standing in his individual capac-
ity because he had retained Gonzalez as a client prior to forming the
Freeman office as a limited liability company and had performed work
on the matter while he was operating his firm as a sole proprietorship.
The trial court, however, did not address that argument. Instead, it
denied the motion to dismiss on the ground that, pursuant to Saun-
ders, Freeman had standing as the sole member of the Freeman office
to bring a direct action for harms suffered by the company. On appeal,
the plaintiffs argue only that Freeman had standing to bring a direct
action pursuant to Saunders. Because the plaintiffs do not argue that
we should affirm the court’s judgment on the alternative ground that
Freeman performed work on the Gonzalez matter prior to forming the
Freeman office as a limited liability company, we need not address that
argument in this opinion.
Freeman v. Law Office of J. Xavier Pryor, LLC

Connecticut is that an individual member of a limited
liability company cannot bring a direct action to recover
for an injury suffered by the company but, instead, must
bring a derivative action on behalf of the company. The
defendants further argued that the exception recognized
in Saunders was inapplicable because Freeman failed to
satisfy the test set forth by our Supreme Court in that
case. Specifically, the defendants noted that Saunders
allowed the member of a single-member limited liability
company to bring a direct action to recover for an injury
suffered by the company only if doing so would not expose
the company to a multiplicity of actions, would not mate-
rially prejudice the interest of creditors, and would not
interfere with the fair distribution of recovery among
all interested parties. See Saunders v. Briner, supra,
334 Conn. 176. The defendants argued that Freeman
did not submit evidence relevant to any of those three
factors and, more specifically, that “Freeman has not
offered any proof which this court can rely on [to show]
that the interest of creditors of [the Freeman office]
would not be materially prejudiced.” In addition, the
defendants informed the court that, in fact, the Pryor
office itself was one such creditor, as it was the plain-
tiff in Law Office of J. Xavier Pryor, LLC v. Law Office
of Justin C. Freeman, LLC, Superior Court, judicial
district of Hartford, Docket No. CV-XX-XXXXXXX-S, an
action against the Freeman office arising from a sepa-
rate dispute over attorney’s fees, of which it asked the
court to take judicial notice.5 The defendants argued
that, if Freeman prevailed in the instant action, “none
5
Although the trial court did not rule on the defendants’ request to
take judicial notice of Law Office of J. Xavier Pryor, LLC v. Law Office
of Justin C. Freeman, LLC, supra, Superior Court, Docket No. CV-
XX-XXXXXXX-S, the plaintiffs—who were defendants in that action—do
not dispute the defendants’ claim that the action was pending at the
time the motion to dismiss was adjudicated. Moreover, we may, and do,
take judicial notice of the court file in that action. See Village Mortgage
Co. v. Veneziano, 203 Conn. App. 154, 162 n.3, 247 A.3d 588 (2021)
(Appellate Court may take judicial notice of records of Superior Court);
see also Derderian v. Derderian, 3 Conn. App. 522, 524 n.4, 490 A.2d
1008 (same), cert. denied, 196 Conn. 811, 495 A.2d 279 (1985), and
cert. denied, 196 Conn. 810, 495 A.2d 279 (1985).
Freeman v. Law Office of J. Xavier Pryor, LLC

of the proceeds from this action would go to [the Free-
man office], the dissolved company. They would go to
[Freeman individually] . . . [thereby] [f]orcing creditors,
including [the Pryor office], to undertake a heightened
burden of proof to demonstrate that they can collect
against [Freeman] personally.”
In response, Freeman primarily argued that he had
standing because he retained Gonzalez as a client prior to
forming the Freeman office as a limited liability company
and performed work on the matter while he operated
as a sole proprietorship. See footnote 4 of this opinion.
With respect to the applicability of Saunders, Freeman
acknowledged that the Freeman office had dissolved
prior to the commencement of this action and did not
dispute that the Pryor office was a creditor of the Free-
man office, but argued that “the language of [Saunders]
. . . [d]oesn’t say there can’t be any prejudice to creditors.
It says material prejudice.” Freeman did not present
any further evidence or argument to support his sug-
gestion that allowing him to recover individually on a
claim belonging to the company—and thereby retain
funds that otherwise would be available to creditors of
the Freeman office—would not materially prejudice the
ability of creditors to recover from the Freeman office.
In their rebuttal argument, the defendants argued
that, in light of the Freeman office’s dissolved status,
allowing Freeman to recover individually would materi-
ally prejudice creditors by reducing the amount available
to satisfy the company’s debts. Specifically, the defen-
dants argued that “an inability to collect from [a limited
liability company] that’s been defunct [would result] in
a necessity of doing some form of piercing of a corporate
veil” in order to recover against Freeman individually.
On August 23, 2022, the court, Sheridan, J., issued
an order denying the motion to dismiss. The court noted
that the general rule in Connecticut is that a member of
a limited liability company may not bring a direct action
in his or her individual capacity to recover for an injury
to the company. The court further noted, however, that
Freeman v. Law Office of J. Xavier Pryor, LLC

the court in Saunders held that “ ‘the trial court may
permit the member of a single-member limited liability
company to bring an action raising derivative claims as
a direct action and may order an individual recovery if it
finds that to do so will not (1) unfairly expose the company
or defendants to a multiplicity of actions, (2) materially
prejudice the interests of creditors of the company, or
(3) negatively impact other owners or creditors of the
company by interfering with a fair distribution of the
recovery among all interested parties.’ . . . [Saunders v.
Briner, supra, 334 Conn.] 176.” The court recognized
that “[t]his is a very narrow exception that the Supreme
Court has indicated ‘would apply in rare circumstances,
under which the plaintiff would have been entitled to
the same relief by a simple amendment to the form of
the pleading.’ Id., 175 n.39.” The court further noted
that “[t]his exception was particularly appropriate under
the circumstances in Saunders, ‘in which both the par-
ties and the court system expended time and resources
to litigate these matters and the concept of a corporate
injury that is distinct from any injury to [its sole member]
approaches the fictional . . . .’ Id., 174.”
The court then concluded that “[t]he circumstances of
the present case fit within the contours of this narrow
exception. If [Freeman] [were] to amend his pleadings
to add [the Freeman office] as a party plaintiff, there
would be no question as to continuation of this law-
suit. Furthermore, as in Saunders, significant time and
resources have been spent litigating this matter, and
the distinction between [Freeman’s] alleged economic
loss as opposed to any economic loss to [the Freeman
office] ‘approaches the fictional.’ [Saunders v. Briner,
supra, 334 Conn.] 174 . . . . Accordingly, [Freeman] has
standing to bring a direct action for damages based on
alleged wrongs to the single-member limited liability
company.”6 (Citation omitted.)
6
On September 8, 2022, the defendants appealed from the trial court’s
denial of their motion to dismiss, but this court dismissed that appeal
for lack of a final judgment.
Freeman v. Law Office of J. Xavier Pryor, LLC

Freeman did not move to substitute or add the Freeman
office as a plaintiff at any point prior to trial.7 The case
was tried before the court, Klau, J., on November 8 and
9, 2023. After Freeman rested his case, the defendants
renewed their claim that the action should be dismissed
on the basis that Freeman lacked standing to bring a
direct action to recover for an injury allegedly suffered
by the Freeman office. Judge Klau denied the defendants’
motion on the ground that Judge Sheridan’s previous
conclusion that Freeman had standing was the law of the
case. Thereafter, the defendants presented their case and
the parties presented closing argument.
After the close of evidence and the presentation of
closing arguments, on November 13, 2023, Freeman
filed a “motion for permission to amend the complaint
to conform to the evidence,” in which he sought to add
new counts to the complaint asserted by the Freeman
office as a plaintiff. In that motion, Freeman noted that
the defendants had entered into evidence during trial
the Freeman office’s Articles of Organization, dated
September 16, 2015, and Certificate of Dissolution,
dated January 11, 2019, and argued that he should be
permitted to amend the complaint “to add [the Freeman
office as] an additional plaintiff . . . consistent with the
testimony and evidence provided.” Freeman further
argued that the Freeman office, which he referred to in
the motion as his “alter ego,” was “in the process of wind-
ing up pursuant to . . . General Statutes § 34-267a,”8 and
7
On July 18, 2023, Freeman moved for permission to amend the com-
plaint to add breach of fiduciary duty counts against both defendants
but did not request permission to add the Freeman office as a plaintiff.
The court allowed Freeman’s amendment over the defendants’ objec-
tion but later granted the defendants’ motion to strike the breach of
fiduciary duty counts on the ground that Freeman failed to allege facts
to support that there was a fiduciary relationship between Freeman
and the defendants. Subsequently, Freeman filed a second amended
complaint containing additional factual allegations pertaining to the
breach of fiduciary duty claims. On October 23, 2023, the defendants
again moved to strike the breach of fiduciary duty counts, but the court
never ruled on that motion.
8
General Statutes § 34-267a provides in relevant part: “(a) A dissolved
limited liability company shall wind up its activities and affairs and
Freeman v. Law Office of J. Xavier Pryor, LLC

that “this lawsuit is a part of that statutorily mandated
activity.”9 On November 17, 2023, the defendants filed
an objection to the plaintiff’s motion for permission to
amend the complaint, in which they argued that it was
improper to add a party by way of an amendment to the
complaint, and that no evidence had been introduced
during trial to support Freeman’s contentions that the
Freeman office was his alter ego or that the Freeman
office was still in the process of winding up its affairs. On
November 21, 2023, Freeman filed a reply to the defen-
dants’ objection, arguing that “Freeman individually and
[the Freeman office] are for purposes of this litigation one
[and] the same.” Freeman further argued that allowing
the amendment would not result in any prejudice because
the defendants were aware of the Freeman office’s exis-
tence and involvement in the Gonzalez matter prior to
trial and the amendment would not change the nature
. . . the company continues after dissolution only for the purpose of
winding up.
“(b) In winding up its activities and affairs, a limited liability company:
(1) Shall: (A) Promptly after the dissolution, deliver to the Secretary
of the State for filing a certificate of dissolution stating the name of
the company and that the company is dissolved; and (B) discharge the
company’s debts, obligations and other liabilities, settle and close
the company’s activities and affairs, and marshal and distribute the
assets of the company; and (2) may: (A) Preserve the company activi-
ties, affairs and property as a going concern for a reasonable time; (B)
prosecute and defend actions and proceedings, whether civil, criminal or
administrative; (C) transfer the company’s property; (D) settle disputes
by mediation or arbitration; and (E) perform other acts necessary or
appropriate to the winding up. . . .”
9
On November 15, 2023, two days after Freeman moved for permission
to amend his complaint, Judge Klau ordered the parties to submit simul-
taneous briefs addressing, inter alia, “[w]hether [Freeman] acquired
ownership of the assets of [the Freeman office] after [the Freeman office]
was dissolved and, if so, whether those assets included the choses in
action [that] [Freeman] has asserted in this case.” Before the parties
filed their briefs, the court granted Freeman’s motion to amend the
complaint to add the Freeman office as a plaintiff. The plaintiffs argued
in their brief that, pursuant to General Statutes § 34-267f, Freeman
was entitled to any assets of the Freeman office, including any damages
recovered in this action, after it completed the winding up process. The
defendants did not expressly address the question posed in the court’s
order, but argued that there was no evidence that the Freeman office
was still in the process of winding up its affairs.
Freeman v. Law Office of J. Xavier Pryor, LLC

of the claims at issue. Judge Klau granted the motion to
amend by summary order dated December 4, 2023. The
defendants filed a motion for reconsideration of the order
granting the motion to amend, which the court denied
on January 8, 2024.
The court issued a memorandum of decision on May 20,
2024. In its decision, the court found that the Freeman
office and the Pryor office had entered an oral contract
to split the attorney’s fees from the Gonzalez matter
equally and that the defendants, therefore, did not breach
that contract when the Pryor office issued a check to
Freeman for $82,500. Rather than rendering judgment
for the defendants, however, the court went on to state
that its “findings concerning the terms of the parties’
oral contract give rise to a minor quirk.” Specifically, the
court noted that, although “the plaintiffs have failed to
prove the specific breach of contract claims they actually
asserted . . . the court has found that a contract existed . .
. [and] [u]nder the contract terms as found, the [plaintiffs
are] entitled to $82,500 in attorney’s fees.” The court
went on to conclude that, notwithstanding its determi-
nation that the defendants did not breach the contract
because they actually had tendered the contractually
agreed upon amount to Freeman, “the appropriate relief
in this situation is to render judgment for [the Freeman
office] on its breach of contract claim and award dam-
ages of $82,500.” In a footnote, the court stated that,
“[a]lthough Judge Sheridan previously determined that
Freeman had standing to sue on behalf of [the Freeman
office] for the purpose of winding up its affairs, because
[the Freeman office] is a named plaintiff, any judgment
to which Freeman would have been entitled will enter in
favor of [the Freeman office], not Freeman personally.”
The defendants moved for reconsideration, and the court
denied the defendants’ motion on October 29, 2024. This
appeal followed.
On appeal, the defendants claim that Judge Sheri-
dan improperly denied their pretrial motion to dismiss
because Freeman lacked standing to bring a direct action
Freeman v. Law Office of J. Xavier Pryor, LLC

to recover for an injury suffered by the Freeman office.
The plaintiffs contend that Judge Sheridan properly
concluded that, pursuant to Saunders, Freeman had
standing to pursue a direct action. The plaintiffs fur-
ther argue that, even if Freeman lacked standing in his
individual capacity, his lack of standing was a “techni-
cal defect” that was cured when Judge Klau granted
the posttrial motion to amend the complaint to add the
Freeman office as a plaintiff.
We begin by setting forth the standard of review and
legal principles applicable to a motion to dismiss for lack
of standing. “A motion to dismiss . . . properly attacks
the jurisdiction of the court, essentially asserting that
the plaintiff cannot as a matter of law and fact state a
cause of action that should be heard by the court. . . . A
motion to dismiss tests, inter alia, whether, on the face
of the record, the court is without jurisdiction.” (Internal
quotation marks omitted.) Centrix Management Co.,
LLC v. Valencia, 132 Conn. App. 582, 586, 33 A.3d 802
(2011). “The issue of standing implicates subject matter
jurisdiction and is therefore a basis for granting a motion
to dismiss. . . . [I]t is the burden of the party who seeks the
exercise of jurisdiction in his favor . . . clearly to allege
facts demonstrating that he is a proper party to invoke
judicial resolution of the dispute.” (Internal quotation
marks omitted.) Rubin v. Brodie, 228 Conn. App. 617,
630–31, 325 A.3d 1096 (2024). Although the general
rule is that a trial court’s decision to deny a motion to
dismiss is subject to de novo review; see Centrix Man-
agement Co., LLC v. Valencia, supra, 586; our Supreme
Court has instructed that appellate courts are to apply
the abuse of discretion standard when reviewing a trial
court’s application of the exception to the derivative
action requirement adopted in Saunders. See Saunders
v. Briner, supra, 334 Conn. 176 n.40.
“Standing is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless he [or she] has, in an individual or
representative capacity, some real interest in the cause
Freeman v. Law Office of J. Xavier Pryor, LLC

of action, or a legal or equitable right, title or inter-
est in the subject matter of the controversy.” (Internal
quotation marks omitted.) Kloiber v. Jellen, 207 Conn.
App. 616, 621–22, 263 A.3d 952 (2021). “[A]s a general
rule, a plaintiff lacks standing unless the harm alleged
is direct rather than derivative or indirect. . . . [I]f the
injuries claimed by the plaintiff are remote, indirect or
derivative with respect to the defendant’s conduct, the
plaintiff is not the proper party to assert them and lacks
standing to do so. [If], for example, the harms asserted
to have been suffered directly by a plaintiff are in reality
derivative of injuries to a third party, the injuries are not
direct but are indirect, and the plaintiff has no standing
to assert them.” (Emphasis omitted; internal quotation
marks omitted.) Bernblum v. Grove Collaborative, LLC,
211 Conn. App. 742, 756, 274 A.3d 165, cert. denied,
343 Conn. 925, 275 A.3d 626 (2022).
“Our Supreme Court has explained that [d]ifferent
rules and procedures will apply, depending on the state
of the record at the time the motion [to dismiss] is filed. .
. . More specifically, a court may be called on to determine
whether subject matter jurisdiction is lacking on the
basis of (1) the complaint alone; (2) the complaint supple-
mented by undisputed facts evidenced in the record; or
(3) the complaint supplemented by undisputed facts plus
the court’s resolution of disputed facts.” (Internal quota-
tion marks omitted.) Rubin v. Brodie, supra, 228 Conn.
App. 631. “When [deciding] a jurisdictional question
raised by a pretrial motion to dismiss on the basis of the
complaint alone, [a court] must consider the allegations
of the complaint in their most favorable light. . . . In this
regard, a court must take the facts to be those alleged in
the complaint, including those facts necessarily implied
from the allegations, construing them in a manner most
favorable to the pleader. . . .
“In contrast, if the complaint is supplemented by undis-
puted facts established by [1] affidavits submitted in
support of the motion to dismiss . . . [2] other types of
undisputed evidence . . . and/or [3] public records of
Freeman v. Law Office of J. Xavier Pryor, LLC

which judicial notice may be taken . . . the trial court,
in determining the jurisdictional issue, may consider
these supplementary undisputed facts and need not con-
clusively presume the validity of the allegations of the
complaint. . . . Rather, those allegations are tempered
by the light shed on them by the [supplementary undis-
puted facts]. . . . If affidavits and/or other evidence
submitted in support of a defendant’s motion to dismiss
conclusively establish that jurisdiction is lacking, and
the plaintiff fails to undermine this conclusion with
counteraffidavits . . . or other evidence, the trial court
may dismiss the action without further proceedings.”
(Internal quotation marks omitted.) Norris v. Trumbull,
187 Conn. App. 201, 209–10, 201 A.3d 1137 (2019). In
the present case, the allegations in the complaint were
supplemented by documents submitted by the defendants
in support of their motion to dismiss and the affidavit
submitted by Freeman in support of his objection to the
motion. “Thus, in conducting our . . . review, we limit
ourselves to the factual record as it existed before the
trial court, supplemented by any additional records of
which we may take judicial notice.” Id., 211.
I
We first address the defendants’ claim that Judge
Sheridan erred in denying their motion to dismiss. The
defendants argue that Freeman lacked standing in his
individual capacity because the claims sought to recover
for an injury to the Freeman office, and the court improp-
erly concluded that the exception established by our
Supreme Court in Saunders applies to this case. We
agree.
The general rule in this state is that a member of a
limited liability company “may not sue in an individual
capacity to recover for an injury based on a wrong to the
limited liability company.” (Internal quotation marks
omitted.) Channing Real Estate, LLC v. Gates, 326
Conn. 123, 138, 161 A.3d 1227 (2017). “The distinc-
tion between a direct and derivative action turns on
whether the alleged injury sustained . . . is peculiar to
Freeman v. Law Office of J. Xavier Pryor, LLC

[the member] alone or whether, by virtue of harm suf-
fered by the company, it affects all of the [members] col-
lectively. . . . In the latter situation, the plaintiff must
proceed secondarily, deriving his rights from the [com-
pany] which is alleged to have been wronged.” (Citation
omitted; internal quotation marks omitted.) Saunders
v. Briner, supra, 334 Conn. 168–69.
In Saunders, however, our Supreme Court recognized
an exception to that general rule. Id., 174. In Saunders,
the plaintiff brought claims in his individual capacity
alleging that the defendants failed to repay a loan. Id.,
165. The plaintiff funded the loan entirely with personal
funds but provided the loan through a limited liability
company of which he was the sole member. Id., 177. The
defendants did not challenge the plaintiff’s standing
to pursue his claims as a direct action until their post-
trial brief, and the trial court, without addressing the
defendants’ standing argument, found in favor of the
plaintiff. Id., 166.
On appeal, the defendants in Saunders claimed that the
plaintiff lacked standing to pursue a direct action because
the company had provided the loan and the only injury
to the plaintiff was derivative of the injury suffered by
the company. Id., 165. The court framed the question
on appeal as “whether to exempt single-member limited
liability companies from the direct and separate injury
requirements necessary to bring a direct action.” Id., 167.
In addressing that question, the court began by explain-
ing that “the rule prohibiting shareholders from bring-
ing a direct action to recover for a harm suffered by the
corporation addresses the following policy rationales: (1)
the protection of other shareholders and creditors of the
company; (2) the avoidance of multitudinous litigation;
and (3) the equal distribution of recovery to injured par-
ties.” Id., 169. As the court further explained, however,
“in some circumstances, the policy reasons for requiring
shareholders to bring an action on behalf of the corpora-
tion may not be present even though the action alleges
in substance a corporate injury.” Id., 170. Relying on §
Freeman v. Law Office of J. Xavier Pryor, LLC

7.01 (d) of the American Law Institute’s Principles of
Corporate Governance,10 the court concluded that, “when
the unique circumstance arises in which the sole member
of a limited liability company seeks to remedy a harm suf-
fered by [the company], a trial court may permit such a
member to bring his claims in a direct action, as long as
doing so does not implicate the policy justifications that
underlie the distinct and separate injury requirement.”
(Emphasis added.) Id., 167. Adopting the formulation
set forth in § 7.01 (d) of the Principles of Corporate Gov-
ernance, the court held “that the trial court may permit
the member of a single-member limited liability company
to bring an action raising derivative claims as a direct
action and may order an individual recovery if it finds
that to do so will not (1) unfairly expose the company or
defendants to a multiplicity of actions, (2) materially
prejudice the interests of creditors of the company, or
(3) negatively impact other owners or creditors of the
company by interfering with a fair distribution of the
recovery among all interested parties.” Id., 176.
Applying the newly enunciated standard, the court con-
cluded that the plaintiff had standing to pursue a direct
action. The court noted that, although the trial court
had not expressly addressed the defendants’ standing
claim, “the trial court’s exercise of jurisdiction implicitly
relie[d] on and [was] supported by the three factors set
forth by the American Law Institute.” Id., 176–77. As
the court explained, it was undisputed that the plaintiff
was the sole member of the limited liability company that
provided the loan and that he funded the loan with his
personal funds. Id., 177. The court further explained
10
Section 7.01 (d) provides in relevant part: “In the case of a closely
held corporation . . . the court in its discretion may treat an action rais-
ing derivative claims as a direct action, exempt it from those restric-
tions and defenses applicable only to derivative actions, and order an
individual recovery, if it finds that to do so will not (i) unfairly expose
the corporation or the defendants to a multiplicity of actions, (ii) mate-
rially prejudice the interests of creditors of the corporation, or (iii)
interfere with a fair distribution of the recovery among all interested
persons.” 2 A.L.I., Principles of Corporate Governance: Analysis and
Recommendations (1994) § 7.01 (d), p. 17.
Freeman v. Law Office of J. Xavier Pryor, LLC

that, because there was no claim “that any creditors
of [the limited liability company] exist and would be
prejudiced by the plaintiff’s recovery . . . the trial court’s
decision to permit the plaintiff to recover directly will
not lead to a multiplicity of actions or interfere with a
fair distribution of recovery with respect to other mem-
bers or creditors.” Id. The court therefore concluded
that “prohibiting the plaintiff, the sole member of [the
company], from bringing a direct action would exalt
form over substance [because] . . . none of the reasons
underlying the [distinct and separate injury] require-
ment [is] present.” (Emphasis added; internal quotation
marks omitted.) Id.
Neither the Supreme Court nor this court have had
occasion to address what is required in order for a plain-
tiff to establish that allowing a direct action will not
“materially prejudice the interests of creditors” for pur-
poses of the second Saunders factor. Id., 176. Courts in
other jurisdictions that have adopted § 7.01 (d) of the
Principles of Corporate Governance have observed that,
in the case of a dissolved limited liability company with
existing creditors, allowing a member of the company
to recover individually risks causing prejudice to such
creditors by diverting assets that should be available to
pay creditor claims, in contravention of statutory disso-
lution and winding up procedures. As part of the winding
up process after a limited liability company dissolves,
the company is required to use its assets to pay creditors
before distributing the remaining assets to its members.
See General Statutes § 34-267f.11 Thus, and as one court
11
General Statutes § 34-267f provides in relevant part: “(a) In wind-
ing up its activities and affairs, a limited liability company shall apply
its assets to discharge its obligations to creditors, including members
that are creditors.
“(b) After a limited liability company complies with subsection (a) of
this section, any surplus must be distributed in the following order,
subject to any charging order in effect under section 34-259b: (1) To
members and persons dissociated as members, an amount equal to the
respective values of the contributions received by the limited liability
company and not returned to each such member and dissociated mem-
ber; and (2) to members and dissociated members, in shares which are
Freeman v. Law Office of J. Xavier Pryor, LLC

explained, allowing a member of a dissolved limited
liability company with existing creditors to recover indi-
vidually would “[allow the member] to circumvent the
statutory distribution scheme and obtain a distribution
[of company assets] before creditor claims are paid.”
In re Patel, 536 B.R. 1, 19–20 (Bankr. D.N.M. 2015)
(concluding that exception to separate and direct injury
requirement did not apply when company was dissolved
because permitting individual recovery would circum-
vent statutory windup procedures); see also, e.g., Miller
v. Up In Smoke, Inc., 738 F. Supp. 2d 878, 884 (N.D. Ind.
2010) (declining to allow direct action in case brought
by shareholder of close corporation asserting individual
claims and seeking judicial dissolution, concluding that,
“[w]ere [plaintiffs] to recover directly, they would in
effect jump to the front of the collection line and displace
existing creditors for whom priority has already been
established and recovery is uncertain”); Barth v. Barth,
693 N.E.2d 954, 958–59 (Ind. App. 1998) (allowing
shareholder of close corporation to recover individu-
ally “would be inherently prejudicial to creditors of the
corporation should the corporation be dissolved as a
result of the lawsuit” because “[a] direct action would
circumvent the rights of creditors to the extent that the
damages awarded inured solely to [the shareholder], and
not to the corporation”).
In the present case, Freeman failed to demonstrate that
allowing him to proceed with a direct action would not
materially prejudice the Freeman office’s creditors. As
the party seeking to invoke the jurisdiction of the court,
Freeman had the burden to establish that he had stand-
ing. See Rubin v. Brodie, supra, 228 Conn. App. 630–31.
This means that, to assert a direct action under Saunders,
it was Freeman’s burden to present sufficient evidence
at the motion to dismiss stage to support the conclusion
that the three Saunders factors applied, including that
allowing him to recover individually would not materially
proportionate to their respective transferable interests, except to the
extent necessary to comply with any transfer effective under section
34-259a. . . .”
Freeman v. Law Office of J. Xavier Pryor, LLC

prejudice any creditors of the Freeman office. The record
before the trial court at the time of the motion to dismiss
indicated that the Freeman office had at least one credi-
tor with outstanding claims—namely, the Pryor office,
which had a separate action pending against the Free-
man office for unpaid attorney’s fees. Consequently, it
was Freeman’s burden to present evidence that allowing
individual recovery would not prejudice the Pryor office.
See Wells Fargo Bank, N.A. v. Melahn, 222 Conn. App.
828, 837, 307 A.3d 911 (2023) (“[i]f affidavits [or] other
evidence submitted in support of a defendant’s motion to
dismiss conclusively establish that jurisdiction is lack-
ing, and the plaintiff fails to undermine this conclusion
with counteraffidavits . . . or other evidence, the trial
court may dismiss the action without further proceed-
ings” (citation omitted)), cert. denied, 348 Conn. 951,
308 A.3d 1038 (2024). Freeman could have met his bur-
den through the submission of evidence demonstrating
that the Freeman office had sufficient assets to pay any
outstanding claims, such that allowing him to retain the
proceeds of any damages awarded in this action would not
prejudice its creditors. See J. R. Burkhard, “LLC Member
and Limited Partner Breach of Fiduciary Duty Claims:
Direct or Derivative Actions?,” 7 J. Small & Emerg-
ing Bus. L. 19, 57–58 (2003) (“[t]ypically, [the second
American Law Institute factor is met] by a pleading that
there are no existing creditors in need of protection or
that the existing assets of the business are sufficient to
protect the creditors’ interests”). Freeman, however,
did not present any such evidence in connection with his
opposition to the motion to dismiss. Thus, the record does
not support the conclusion that the Saunders exception
applied in this case.
In its order denying the motion to dismiss, the trial
court did not address the potential prejudice to the Free-
man office’s creditors that would result from allowing
Freeman to proceed individually. Instead, the court
concluded that this case fit within the Saunders excep-
tion because, “[i]f the plaintiff [were] to amend his plead-
ings to add [the Freeman office] as a party plaintiff,
Freeman v. Law Office of J. Xavier Pryor, LLC

there would be no question as to the continuation of
this lawsuit,” and, “as in Saunders, significant time and
resources have been spent litigating this matter, and
the distinction between the plaintiff’s alleged economic
loss as opposed to any economic loss to [the Freeman
office] approaches the fictional.” (Internal quotation
marks omitted.) Neither of those factors, however, are
by themselves sufficient to support the conclusion that
Freeman had standing to pursue a direct action under
the Saunders exception.
The court in Saunders expressly held that “a trial
court may permit [the member of a single-member lim-
ited liability company] to bring his claims in a direct
action, as long as doing so does not implicate the policy
justifications that underlie the distinct and separate
injury requirement.” (Emphasis added.) Saunders v.
Briner, supra, 334 Conn. 167. The court went on to
explain that the three factor test it adopted is geared
toward ensuring that those policy justifications are not
implicated by allowing a direct action. See id., 170–71.
The court instructed that “the trial court may . . . order
an individual recovery if it finds that to do so will not (1)
unfairly expose the company or defendants to a multiplic-
ity of actions, (2) materially prejudice the interests of
creditors of the company, or (3) negatively impact other
owners or creditors of the company by interfering with
a fair distribution of the recovery among all interested
parties.” (Emphasis added.) Id., 176. Thus, Saunders
makes clear that a trial court may not permit the member
of a single-member limited liability company to pursue
derivative claims by way of a direct action unless the
court determines that all three factors apply.
Although the court in Saunders noted in a footnote
that the “limited exception would apply in rare circum-
stances, under which the plaintiff would have been
entitled to the same relief by a simple amendment to
the form of the pleading”; id., 175 n.39; and further
noted that it was particularly appropriate to permit the
plaintiff in Saunders to pursue a direct action because
Freeman v. Law Office of J. Xavier Pryor, LLC

“the parties and the court system expended time and
resource to litigate these matters”; id., 174; the court
did not indicate that those factors alone were sufficient
to justify applying the exception. Rather, we construe
those statements as additional considerations that may
persuade a court to exercise its discretion to permit a
direct action, but only if it first determines that allowing
individual recovery would not expose the company to a
multiplicity of actions, materially prejudice the inter-
est of creditors, or interfere with the fair distribution
of recovery among all interested parties. See id., 176.
Because there was no basis in the record to conclude
that allowing Freeman to assert direct claims would not
materially prejudice the interests of the Freeman office’s
creditors, we conclude that the court abused its discre-
tion in determining that the plaintiff was permitted to
bring a direct action pursuant to the Saunders exception.
We further conclude, therefore, that the court erred in
denying the motion to dismiss.
II
We next address the plaintiffs’ argument that Free-
man’s lack of standing was “cured” when the court
granted his posttrial motion to amend the complaint. The
plaintiffs argue that the court had discretion to permit
an amendment to the complaint as long as it “[did] not
change the cause of action or disadvantage the opposing
party,” and that “any alleged standing deficiency was pro-
cedural, not jurisdictional, and was properly resolved by
the trial court’s discretionary authority.” We disagree.
Our resolution of the plaintiffs’ claim is guided by our
Supreme Court’s decision in Connecticut Coalition for
Justice in Education Funding, Inc. v. Rell, 327 Conn.
650, 176 A.3d 28 (2018). In that case, after the trial
court had dismissed the claims of the plaintiff associa-
tion for lack of standing, but not the claims brought by
individual plaintiffs, the plaintiffs amended the com-
plaint to cure the association’s standing defect, and the
trial court subsequently denied the defendants’ motion
to dismiss the association’s amended claims for lack of
Freeman v. Law Office of J. Xavier Pryor, LLC

standing. Id., 683. On appeal, the defendants, relying
on Connecticut Associated Builders & Contractors v.
Hartford, 251 Conn. 169, 186, 740 A.2d 813 (1999),
and Fairchild Heights Residents Assn., Inc. v. Fairchild
Heights, Inc., 131 Conn. App. 567, 575, 27 A.3d 467
(2011), rev’d in part on other grounds, 310 Conn. 797,
82 A.3d 602 (2014), claimed that the court improperly
denied their motion to dismiss. In both of those cases,
the reviewing court addressed the issue of whether the
trial court had subject matter jurisdiction on the basis
of the original complaint. See Connecticut Associated
Builders & Contractors v. Hartford, supra, 186 (associa-
tion lacked standing to challenge bidding procedures on
municipal construction contract because, “[a]t the time
of the filing of the complaint, the membership of the asso-
ciation included no project bidder”); Fairchild Heights
Residents Assn., Inc. v. Fairchild Heights, Inc., supra,
574 n.8 (“[t]he operative complaint for jurisdictional
purposes is that included with the writ of summons .
. . [because] [t]he lack of subject matter jurisdiction to
render a final judgment cannot be cured retrospectively”)
(internal quotation marks omitted)). The defendants in
Rell argued that the trial court “improperly denied their
motion to dismiss the [association’s] claims because,
at the time that the original complaint was filed, the
[association] had no parent members who would have
had standing to bring this action in their own right, and
a jurisdictional defect cannot be cured retroactively.”
Connecticut Coalition for Justice in Education Funding,
Inc. v. Rell, supra, 683–84.
In affirming the trial court’s denial of the motion to
dismiss in Rell, the court explained that Connecticut
Associated Builders & Contractors and Fairchild Heights
Residents Assn., Inc., were “distinguishable . . . because,
in both of those cases, the original complaint should have
been dismissed because no plaintiff had standing. If the
trial court had rendered a judgment of dismissal in those
cases, the plaintiffs would not have been permitted to
cure the jurisdictional defects with subsequent pleadings
because there no longer would have been any pending
Freeman v. Law Office of J. Xavier Pryor, LLC

action in which to file them. In contrast, the original
complaint in [Rell] was not dismissed when the trial
court initially determined that the [association] lacked
standing because the individual plaintiffs named in the
original complaint still had standing . . . . Accordingly,
the sole effect of dismissing the [association’s] claims
was to remove the [association] as a plaintiff. When the
[association] subsequently gained associational standing
to raise the claims, however, we can perceive no reason
why it would not have been permitted to join the action
as a plaintiff . . . .” (Emphasis in original.) Id., 685.
As we concluded in part I of this opinion, in the pres-
ent case, the court lacked subject matter jurisdiction on
the ground that the original complaint was insufficient
because Freeman did not meet his burden to establish
that he had standing to bring a direct action to recover
for injuries to the Freeman office. Thus, at the time the
court ruled on the motion to dismiss, there was no basis
in the record to conclude that Freeman had standing,
and the court should have dismissed the complaint at
that point. As the court explained in Rell, “[i]f the trial
court had rendered a judgment of dismissal [at that time],
the plaintiffs would not have been permitted to cure the
jurisdictional [defect] with subsequent pleadings because
there no longer would have been any pending action in
which to file them.” Id.
We further note that, although the plaintiffs do not
raise the issue, pursuant to General Statutes § 52-109,
Freeman could have moved to add the Freeman office as
a plaintiff to cure the standing defect before the court
ruled on the motion to dismiss. Section 52-109 provides:
“When 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 it
is necessary for the determination of the real matter in
dispute so to do, allow any other person to be substituted
or added as plaintiff.” Our courts have recognized that
§ 52-109 provides a limited exception to the general
rule that, once the issue of a trial court’s subject matter
jurisdiction is raised, the court must rule on the motion
Freeman v. Law Office of J. Xavier Pryor, LLC

on the basis of the existing complaint and cannot permit
an amendment aimed at curing the jurisdictional defect
because “any movement is necessarily the exercise of
jurisdiction.” (Internal quotation marks omitted.) Fed-
eral Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn.
93, 99, 680 A.2d 1321 (1996); see also, e.g., Bruno v.
Travelers Cos., 172 Conn. App. 717, 729, 161 A.3d 630
(2017) (“[t]he plaintiff should not have been given the
opportunity to replead because the court was without
jurisdiction to permit a repleading”). As this court has
explained, § 52-109, “as an exercise of the legislature’s
constitutional authority to determine [our court’s] juris-
diction; [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.” (Internal quo-
tation marks omitted.) Rana v. Terdjanian, 136 Conn.
App. 99, 112, 46 A.3d 175, cert. denied, 305 Conn. 926,
47 A.3d 886 (2012).
In the present case, however, Freeman did not take
any action to add the Freeman office as a plaintiff until
after the trial was completed, and even then did not
move to add the Freeman office in accordance with §
52-109. Although this court and our Supreme Court
have interpreted § 52-109 liberally in accordance with
its “ ‘ameliorative purpose’ ” to give trial courts, faced
with a proper request, the authority to “ ‘determin[e] if
[an] action should be saved from dismissal by the substi-
tution of plaintiffs’ ”; Freese v. Dept. of Social Services,
176 Conn. App. 64, 85, 169 A.3d 237 (2017); nothing in
the language of § 52-109 or the case law interpreting it
support the conclusion that a trial court, after improperly
denying a motion to dismiss, may nevertheless preside
over an entire trial over which it lacks subject matter
jurisdiction and then allow a plaintiff to retroactively
“cure” a standing defect by way of a motion to amend
the complaint.12
12
We note that, in Kortner v. Martise, 312 Conn. 1, 91 A.3d 412
(2014), our Supreme Court concluded that a potential standing defect
was cured by the trial court’s granting of a posttrial motion to substi-
tute in a case where the defendant never moved to dismiss the action
and the issue of the trial court’s jurisdiction was never brought to the
Freeman v. Law Office of J. Xavier Pryor, LLC

Moreover, even assuming arguendo that § 52-109
permitted the trial court, having previously denied a
motion to dismiss, to cure a standing defect by granting
a motion to substitute a proper party, it would not alter
the outcome of the present case. Here, the plaintiffs did
not claim—and the trial court did not find—that the
action was “commenced in the name of the wrong person
as plaintiff . . . through mistake,” as is required under §
52-109. See, e.g., Fairfield Merritview Ltd. Partnership
v. Norwalk, 320 Conn. 535, 554–55, 133 A.3d 140 (2016)
(construing motion to amend complaint as motion to
add party plaintiff pursuant to § 52-109 where plaintiff
moved to amend approximately one month after filing
complaint, defendants did not object to motion, and
“under the undisputed facts and circumstances . . . there
[was] no question that the . . . requirements [of § 52-109]
trial court’s attention. In Kortner, the plaintiff commenced the action
in her capacity as her daughter’s conservator and, when her daughter
died after trial but before judgment entered, moved to substitute herself
in her capacity as administratrix of her daughter’s estate. Id., 11. The
defendant never challenged the plaintiff’s standing before the trial court
or on appeal but, after oral argument, our Supreme Court, sua sponte,
ordered the parties to file supplemental briefs addressing (1) whether
the plaintiff had standing to commence the action in her capacity as
conservator, and (2) if not, whether the standing defect was cured when
the trial court granted the posttrial motion to substitute the mother
in her capacity as administratrix. Id., 9 n.7. The court did not address
whether the plaintiff had standing to commence the action in her capac-
ity as conservator, concluding “that even assuming, arguendo, that the
plaintiff did not have standing to bring the claim when she commenced
the action in 2006, any defect was cured when she, as administratrix of
[the daughter’s] estate, was substituted as the plaintiff in 2010 and that
substitution related back to the commencement of the action.” Id., 14.
Because the potential standing issue in Kortner was never raised
before the trial court, the court was never alerted to that issue, and the
plaintiff had no occasion to attempt to cure it pursuant to § 52-109.
In contrast, the defendants in the present case did move to dismiss the
action, and Freeman did not move pursuant to § 52-109 to cure the
standing defect by adding the Freeman office prior to the court ruling
on the defendants’ motion. Thus, if the court had granted the motion
to dismiss—as we concluded in part I that it should have—it would
have been required to dismiss the action, and “the plaintiffs would not
have been permitted to cure the jurisdictional [defect] with subsequent
pleadings because there no longer would have been any pending action
in which to file them.” Connecticut Coalition for Justice in Education
Funding, Inc. v. Rell, supra, 327 Conn. 685.
Freeman v. Law Office of J. Xavier Pryor, LLC

were met”); Rana v. Terdjanian, supra, 136 Conn. App.
111 (court properly granted motion to substitute limited
liability company as plaintiff before ruling on standing
issue because “it is well within the authority of a court
to permit a substitution of plaintiffs in lieu of dismiss-
ing an action provided that the court determines that the
conditions set forth in § 52-109 have been met” (emphasis
added)); cf. Ion Bank v. J.C.C. Custom Homes, LLC, 189
Conn. App. 30, 45, 206 A.3d 208 (2019) (plaintiff could
not cure standing defect by filing amended complaint as
of right pursuant to Practice Book § 10-59 because trial
court “never considered or made a finding of whether the
action was initiated by ‘mistake,’ a finding essential to
evoking its discretionary authority to allow a substitu-
tion [or addition]”). As discussed previously, in his post-
trial motion to amend,13 Freeman did not assert that he
commenced the action in his own name through mistake.
Rather, Freeman claimed that the Freeman office was
his “alter ego,” and that he should be allowed to add
the Freeman office as a plaintiff because the company
was winding up its affairs and this action was part of
that winding up process. Indeed, Freeman maintained
throughout the trial—and the plaintiffs still maintain
on appeal—that he had standing to bring a direct action,
and the plaintiffs have never argued that this action was
commenced in the name of the wrong plaintiff through
mistake. In light of the basis for the motion to amend
and Freeman’s position throughout trial and the plain-
tiffs’ position on appeal, there is nothing in the record
to indicate that the court made the findings necessary
to permit Freeman to add the Freeman office as a proper
party pursuant to § 52-109. Accordingly, we conclude
that Freeman’s lack of standing was not cured by the
13
Although the proper mechanism by which to cure a standing defect
is a motion to add or substitute pursuant to § 52-109, our Supreme
Court has treated a motion “captioned . . . as a request for permission
to amend” as a motion to add pursuant to § 52-109 where it “clearly
was, in its substance, a motion to add or substitute a party plaintiff.”
Fairfield Merritview Ltd. Partnership v. Norwalk, supra, 320 Conn. 554.
Thus, the fact that Freeman captioned his motion as one for permission
to amend is not controlling.
Freeman v. Law Office of J. Xavier Pryor, LLC

court’s order granting his posttrial motion to amend
the complaint.
The judgment is reversed and the case is remanded with
direction to grant the defendants’ motion to dismiss and
to render judgment accordingly.
In this opinion the other judges concurred.

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Freeman v. Law Office of J. Xavier Pryor, LLC

JUSTIN FREEMAN v. LAW OFFICE OF
J. XAVIER PRYOR, LLC, ET AL.
(AC 48163)
Cradle, C. J., and Suarez and Clark, Js.

Syllabus

The defendants appealed from the trial court’s judgment for the plaintiff’s
limited liability company, F Co., following the court’s denial of their pretrial
motion to dismiss, which asserted that the plaintiff F lacked standing to
bring a direct action against them to recover damages allegedly suffered by
F Co. The court granted F’s posttrial motion to add F Co. as a party plain-
tiff. The defendants claimed that the court improperly applied the narrow
exception created by our Supreme Court in Saunders v. Briner (334 Conn.
135) to the general rule that a member of a limited liability company lacks
standing to bring a direct action to recover for injuries allegedly suffered
by the company. Held:

The trial court improperly denied the defendants’ motion to dismiss, as
F lacked standing in his individual capacity because his claim sought to
recover for an injury to F Co., and F failed to demonstrate that allowing him
to proceed with a direct action would not prejudice F Co.’s creditors, thus
rendering the exception in Saunders inapplicable.

The trial court’s order granting F’s posttrial motion to amend the complaint
to add F Co. as a plaintiff did not cure F’s lack of standing, as the court lacked
subject matter jurisdiction over the entire trial, and there was nothing in
the record to indicate that the court made the findings necessary to permit
F to add F Co. as a proper party pursuant to statute (§ 52-109) because F
did not claim, and the court did not find, that the action was commenced in
the name of the wrong person as plaintiff through mistake as is required
under § 52-109.

Argued October 20, 2025—officially released April 14, 2026

Procedural History

Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Hartford, where the
court, Sheridan, J., denied the defendants’ motion to
dismiss; thereafter the case was tried to the court, Klau,
J.; subsequently, the court, Klau, J., granted the plain-
tiff’s motion to amend the complaint to add Law Office
of Justin C. Freeman, LLC, as an additional plaintiff;
thereafter, the court, Klau, J., rendered judgment in
part for the plaintiff Law Office of Justin C. Freeman,
Freeman v. Law Office of J. Xavier Pryor, LLC

LLC, and the defendants appealed to this court. Reversed;
judgment directed.
J. Xavier Pryor, self-represented, for the appellants
(defendants).
Richard E. Joaquin, for the appellees (plaintiffs).

Opinion

CLARK, J. In Saunders v. Briner, 334 Conn. 135, 221
A.3d 1 (2019), our Supreme Court carved out a narrow
exception to the general rule that a member of a limited
liability company lacks standing to bring a direct action
to recover for injuries allegedly suffered by the company.
See id., 176. In the present appeal, the defendants, the
Law Office of J. Xavier Pryor, LLC (Pryor office), and
J. Xavier Pryor, claim that the trial court improperly
applied the narrow exception created under Saunders,
when it denied their motion to dismiss asserting that
the plaintiff Justin Freeman lacked standing to bring a
direct action against them to recover damages allegedly
suffered by the Law Office of Justin C. Freeman, LLC
(Freeman office).1 The plaintiffs dispute that claim and
further argue that, even if the court erred in denying
the pretrial motion to dismiss because Freeman lacked
standing to bring a direct action, any standing defect
was cured when the trial court granted his posttrial
motion to amend the complaint to add the Freeman office
1
Following the close of evidence, the trial court granted Freeman’s
posttrial motion to add the Freeman office as a party to conform to the
proof. We refer to Freeman and the Freeman office collectively as the
plaintiffs and individually by name.
The defendants also claim that (1) the court violated their right to
due process by allowing Freeman to amend his complaint and, posttrial,
change his theory of the case, (2) the court erred in rendering judg-
ment for the Freeman office on the plaintiffs’ breach of contract claim
notwithstanding its conclusion that the defendants did not breach the
contract, (3) the court erred in rendering judgment for the Freeman
office because, due to the Freeman office’s failure to file an appearance,
it was not a party to the case, and (4) the court erred in awarding costs
to the Freeman office. Because we conclude that the court should have
granted the defendants’ motion to dismiss, we need not address the
defendants’ remaining claims.
Freeman v. Law Office of J. Xavier Pryor, LLC

as a plaintiff.2 We conclude that the court improperly
denied the motion to dismiss and that Freeman’s lack of
standing was not cured by the court’s order granting his
posttrial motion to amend the complaint. Accordingly,
we reverse the judgment of the trial court.
The following facts, as alleged in the complaint or as
established by uncontested evidence submitted in con-
junction with the motion to dismiss,3 and procedural
history are relevant to this appeal. At the times relevant
to the dispute in this matter, Freeman was an attorney
licensed to practice law in this state. Prior to September
16, 2015, Freeman practiced law as a sole proprietor
under the name Law Office of Justin C. Freeman. On
that date, Freeman formed the Freeman office as a single-
member limited liability company.
On January 20, 2015, Freeman agreed to represent
Chanda Gonzalez in a personal injury action (Gonzalez
matter) and assigned Pryor, who was then employed by
Freeman as an associate attorney, to work on the case.
On or around March 25, 2016, Pryor resigned from the
Freeman office to open his own law firm, the Pryor office.
In early June, 2016, after it became apparent to Freeman
that the Gonzalez matter likely would proceed to trial,
Freeman asked Pryor to continue working on the mat-
ter. Pryor agreed and, on June 6, 2016, the Pryor office
filed an appearance in the Gonzalez matter in addition to
2
Although the plaintiffs did not raise this argument in a statement
of alternative grounds to affirm the trial court’s decision pursuant to
Practice Book § 63-4, we address the issue because it implicates the trial
court’s subject matter jurisdiction and both parties had the opportunity
to brief the issue. See, e.g., Housing Authority v. Cyr, 234 Conn. App.
527, 529 n.2, 344 A.3d 527 (2025) (“[d]espite the defendant’s noncompli-
ance with our rules of practice, we will review his alternative ground for
affirmance because it implicates the subject matter jurisdiction of the
trial court and, therefore, may be raised at any time”); see also Gerardi
v. Bridgeport, 294 Conn. 461, 466, 985 A.2d 328 (2010) (addressing
alternative ground to affirm despite failure to file § 63-4 statement
because claim implicated trial court’s subject matter jurisdiction and
both parties had opportunity to brief issue).
3
See Derblom v. Archdiocese of Hartford, 203 Conn. App. 197, 200,
247 A.3d 600 (2021), aff’d, 346 Conn. 333, 289 A.3d 1187 (2023).
Freeman v. Law Office of J. Xavier Pryor, LLC

the appearance previously filed by the Freeman office.
The complaint alleges that Freeman and the Pryor office
reached an oral agreement that they would split the attor-
ney’s fees equally if the Pryor office tried the Gonzalez
matter to verdict but that, if the matter settled before
trial, the Pryor office would be paid a reasonable fee for
its work on the case.
On October 17, 2016, Pryor attended a mediation in
the Gonzalez matter, at which the parties agreed to settle
the case for $750,000. At Pryor’s request, the insurer
for the defendant in the Gonzalez matter issued a check
in the amount of $750,000 payable to the Pryor office
and Gonzalez. After deducting costs and attorney’s
fees owed to Gonzalez’ prior counsel, attorney’s fees in
the amount of $165,000 remained to be split between
the Freeman office and the Pryor office. Freeman and
Pryor disagreed as to the division of the attorney’s fees.
On February 15, 2017, the Pryor office issued a check to
Freeman in the amount of $82,500, representing one
half of the total fee to be split between the two firms.
Freeman declined to cash the check.
On February 16, 2021, Freeman commenced this action
in his individual capacity against Pryor and the Pryor
office, alleging, against each defendant, claims sounding
in breach of contract, conversion, unjust enrichment,
and quantum meruit, and seeking an accounting of the
settlement proceeds. The complaint does not allege that
Freeman registered the Freeman office as a limited liabil-
ity company in September, 2015. Rather, it alleges that,
“[a]t all times relevant to this matter, [Freeman] was
the owner, manger and principal of the business of the
[Freeman office], as a sole proprietor . . . .”
On October 29, 2021, the defendants filed a motion
to dismiss and an accompanying memorandum of law,
claiming that Freeman lacked standing to pursue this
action in his individual capacity. As an exhibit to their
memorandum of law, the defendants attached docu-
mentation from the Office of the Secretary of the State
indicating that the Freeman office registered as a limited
Freeman v. Law Office of J. Xavier Pryor, LLC

liability company on September 16, 2015, and that it had
since dissolved. The defendants argued that, because
Gonzalez was a client of the Freeman office, any harm
resulting from the fee dispute would have been suffered
by the Freeman office and not Freeman individually.
The defendants argued, therefore, that Freeman lacked
standing to bring this action in his individual capacity.
On November 23, 2021, Freeman filed an objection
to the motion to dismiss, an accompanying memoran-
dum of law, and an affidavit in support of his objection.
In the affidavit, Freeman attested that he had formed
the Freeman office as a single-member limited liability
company on September 16, 2015, while the Gonzalez
matter was still ongoing. In his memorandum of law,
Freeman argued, inter alia, that he had standing as the
sole member of the Freeman office to bring this action in
his individual capacity pursuant to our Supreme Court’s
decision in Saunders v. Briner, supra, 334 Conn. 135.4
Specifically, he argued that, “[a]lthough generally a
member or manager of a limited liability company may
not sue in an individual capacity to recover for an injury
to the limited liability company . . . Saunders created an
exception for single member limited liability companies
which applies here.”
The court, Sheridan, J., held a hearing on the defen-
dants’ motion to dismiss on May 2, 2022. At the hear-
ing, the defendants argued that the general rule in
4
Freeman also argued that he had standing in his individual capac-
ity because he had retained Gonzalez as a client prior to forming the
Freeman office as a limited liability company and had performed work
on the matter while he was operating his firm as a sole proprietorship.
The trial court, however, did not address that argument. Instead, it
denied the motion to dismiss on the ground that, pursuant to Saun-
ders, Freeman had standing as the sole member of the Freeman office
to bring a direct action for harms suffered by the company. On appeal,
the plaintiffs argue only that Freeman had standing to bring a direct
action pursuant to Saunders. Because the plaintiffs do not argue that
we should affirm the court’s judgment on the alternative ground that
Freeman performed work on the Gonzalez matter prior to forming the
Freeman office as a limited liability company, we need not address that
argument in this opinion.
Freeman v. Law Office of J. Xavier Pryor, LLC

Connecticut is that an individual member of a limited
liability company cannot bring a direct action to recover
for an injury suffered by the company but, instead, must
bring a derivative action on behalf of the company. The
defendants further argued that the exception recognized
in Saunders was inapplicable because Freeman failed to
satisfy the test set forth by our Supreme Court in that
case. Specifically, the defendants noted that Saunders
allowed the member of a single-member limited liability
company to bring a direct action to recover for an injury
suffered by the company only if doing so would not expose
the company to a multiplicity of actions, would not mate-
rially prejudice the interest of creditors, and would not
interfere with the fair distribution of recovery among
all interested parties. See Saunders v. Briner, supra,
334 Conn. 176. The defendants argued that Freeman
did not submit evidence relevant to any of those three
factors and, more specifically, that “Freeman has not
offered any proof which this court can rely on [to show]
that the interest of creditors of [the Freeman office]
would not be materially prejudiced.” In addition, the
defendants informed the court that, in fact, the Pryor
office itself was one such creditor, as it was the plain-
tiff in Law Office of J. Xavier Pryor, LLC v. Law Office
of Justin C. Freeman, LLC, Superior Court, judicial
district of Hartford, Docket No. CV-XX-XXXXXXX-S, an
action against the Freeman office arising from a sepa-
rate dispute over attorney’s fees, of which it asked the
court to take judicial notice.5 The defendants argued
that, if Freeman prevailed in the instant action, “none
5
Although the trial court did not rule on the defendants’ request to
take judicial notice of Law Office of J. Xavier Pryor, LLC v. Law Office
of Justin C. Freeman, LLC, supra, Superior Court, Docket No. CV-
XX-XXXXXXX-S, the plaintiffs—who were defendants in that action—do
not dispute the defendants’ claim that the action was pending at the
time the motion to dismiss was adjudicated. Moreover, we may, and do,
take judicial notice of the court file in that action. See Village Mortgage
Co. v. Veneziano, 203 Conn. App. 154, 162 n.3, 247 A.3d 588 (2021)
(Appellate Court may take judicial notice of records of Superior Court);
see also Derderian v. Derderian, 3 Conn. App. 522, 524 n.4, 490 A.2d
1008 (same), cert. denied, 196 Conn. 811, 495 A.2d 279 (1985), and
cert. denied, 196 Conn. 810, 495 A.2d 279 (1985).
Freeman v. Law Office of J. Xavier Pryor, LLC

of the proceeds from this action would go to [the Free-
man office], the dissolved company. They would go to
[Freeman individually] . . . [thereby] [f]orcing creditors,
including [the Pryor office], to undertake a heightened
burden of proof to demonstrate that they can collect
against [Freeman] personally.”
In response, Freeman primarily argued that he had
standing because he retained Gonzalez as a client prior to
forming the Freeman office as a limited liability company
and performed work on the matter while he operated as
a sole proprietorship. See footnote 4 of this opinion.
With respect to the applicability of Saunders, Freeman
acknowledged that the Freeman office had dissolved
prior to the commencement of this action and did not
dispute that the Pryor office was a creditor of the Free-
man office, but argued that “the language of [Saunders]
. . . [d]oesn’t say there can’t be any prejudice to creditors.
It says material prejudice.” Freeman did not present
any further evidence or argument to support his sug-
gestion that allowing him to recover individually on a
claim belonging to the company—and thereby retain
funds that otherwise would be available to creditors of
the Freeman office—would not materially prejudice the
ability of creditors to recover from the Freeman office.
In their rebuttal argument, the defendants argued
that, in light of the Freeman office’s dissolved status,
allowing Freeman to recover individually would materi-
ally prejudice creditors by reducing the amount available
to satisfy the company’s debts. Specifically, the defen-
dants argued that “an inability to collect from [a limited
liability company] that’s been defunct [would result] in
a necessity of doing some form of piercing of a corporate
veil” in order to recover against Freeman individually.
On August 23, 2022, the court, Sheridan, J., issued
an order denying the motion to dismiss. The court noted
that the general rule in Connecticut is that a member of
a limited liability company may not bring a direct action
in his or her individual capacity to recover for an injury
to the company. The court further noted, however, that
Freeman v. Law Office of J. Xavier Pryor, LLC

the court in Saunders held that “ ‘the trial court may
permit the member of a single-member limited liability
company to bring an action raising derivative claims as
a direct action and may order an individual recovery if it
finds that to do so will not (1) unfairly expose the company
or defendants to a multiplicity of actions, (2) materially
prejudice the interests of creditors of the company, or
(3) negatively impact other owners or creditors of the
company by interfering with a fair distribution of the
recovery among all interested parties.’ . . . [Saunders v.
Briner, supra, 334 Conn.] 176.” The court recognized
that “[t]his is a very narrow exception that the Supreme
Court has indicated ‘would apply in rare circumstances,
under which the plaintiff would have been entitled to
the same relief by a simple amendment to the form of
the pleading.’ Id., 175 n.39.” The court further noted
that “[t]his exception was particularly appropriate under
the circumstances in Saunders, ‘in which both the par-
ties and the court system expended time and resources
to litigate these matters and the concept of a corporate
injury that is distinct from any injury to [its sole member]
approaches the fictional . . . .’ Id., 174.”
The court then concluded that “[t]he circumstances of
the present case fit within the contours of this narrow
exception. If [Freeman] [were] to amend his pleadings to
add [the Freeman office] as a party plaintiff, there would
be no question as to continuation of this lawsuit. Fur-
thermore, as in Saunders, significant time and resources
have been spent litigating this matter, and the distinction
between [Freeman’s] alleged economic loss as opposed to
any economic loss to [the Freeman office] ‘approaches
the fictional.’ [Saunders v. Briner, supra, 334 Conn.]
174 . . . . Accordingly, [Freeman] has standing to bring
a direct action for damages based on alleged wrongs to
the single-member limited liability company.”6 (Cita-
tion omitted.)
6
On September 8, 2022, the defendants appealed from the trial court’s
denial of their motion to dismiss, but this court dismissed that appeal
for lack of a final judgment.
Freeman v. Law Office of J. Xavier Pryor, LLC

Freeman did not move to substitute or add the Freeman
office as a plaintiff at any point prior to trial.7 The case
was tried before the court, Klau, J., on November 8 and
9, 2023. After Freeman rested his case, the defendants
renewed their claim that the action should be dismissed
on the basis that Freeman lacked standing to bring a
direct action to recover for an injury allegedly suffered
by the Freeman office. Judge Klau denied the defendants’
motion on the ground that Judge Sheridan’s previous
conclusion that Freeman had standing was the law of the
case. Thereafter, the defendants presented their case
and the parties presented closing argument.
After the close of evidence and the presentation of
closing arguments, on November 13, 2023, Freeman
filed a “motion for permission to amend the complaint
to conform to the evidence,” in which he sought to add
new counts to the complaint asserted by the Freeman
office as a plaintiff. In that motion, Freeman noted that
the defendants had entered into evidence during trial
the Freeman office’s Articles of Organization, dated
September 16, 2015, and Certificate of Dissolution,
dated January 11, 2019, and argued that he should be
permitted to amend the complaint “to add [the Freeman
office as] an additional plaintiff . . . consistent with the
testimony and evidence provided.” Freeman further
argued that the Freeman office, which he referred to in
the motion as his “alter ego,” was “in the process of wind-
ing up pursuant to . . . General Statutes § 34-267a,”8 and
7
On July 18, 2023, Freeman moved for permission to amend the com-
plaint to add breach of fiduciary duty counts against both defendants
but did not request permission to add the Freeman office as a plaintiff.
The court allowed Freeman’s amendment over the defendants’ objec-
tion but later granted the defendants’ motion to strike the breach of
fiduciary duty counts on the ground that Freeman failed to allege facts
to support that there was a fiduciary relationship between Freeman
and the defendants. Subsequently, Freeman filed a second amended
complaint containing additional factual allegations pertaining to the
breach of fiduciary duty claims. On October 23, 2023, the defendants
again moved to strike the breach of fiduciary duty counts, but the court
never ruled on that motion.
8
General Statutes § 34-267a provides in relevant part: “(a) A dissolved
limited liability company shall wind up its activities and affairs and
Freeman v. Law Office of J. Xavier Pryor, LLC

that “this lawsuit is a part of that statutorily mandated
activity.”9 On November 17, 2023, the defendants filed
an objection to the plaintiff’s motion for permission to
amend the complaint, in which they argued that it was
improper to add a party by way of an amendment to the
complaint, and that no evidence had been introduced
during trial to support Freeman’s contentions that the
Freeman office was his alter ego or that the Freeman
office was still in the process of winding up its affairs. On
November 21, 2023, Freeman filed a reply to the defen-
dants’ objection, arguing that “Freeman individually and
[the Freeman office] are for purposes of this litigation one
[and] the same.” Freeman further argued that allowing
the amendment would not result in any prejudice because
the defendants were aware of the Freeman office’s exis-
tence and involvement in the Gonzalez matter prior to
trial and the amendment would not change the nature
. . . the company continues after dissolution only for the purpose of
winding up.
“(b) In winding up its activities and affairs, a limited liability company:
(1) Shall: (A) Promptly after the dissolution, deliver to the Secretary
of the State for filing a certificate of dissolution stating the name of
the company and that the company is dissolved; and (B) discharge the
company’s debts, obligations and other liabilities, settle and close
the company’s activities and affairs, and marshal and distribute the
assets of the company; and (2) may: (A) Preserve the company activi-
ties, affairs and property as a going concern for a reasonable time; (B)
prosecute and defend actions and proceedings, whether civil, criminal or
administrative; (C) transfer the company’s property; (D) settle disputes
by mediation or arbitration; and (E) perform other acts necessary or
appropriate to the winding up. . . .”
9
On November 15, 2023, two days after Freeman moved for permission
to amend his complaint, Judge Klau ordered the parties to submit simul-
taneous briefs addressing, inter alia, “[w]hether [Freeman] acquired
ownership of the assets of [the Freeman office] after [the Freeman office]
was dissolved and, if so, whether those assets included the choses in
action [that] [Freeman] has asserted in this case.” Before the parties
filed their briefs, the court granted Freeman’s motion to amend the
complaint to add the Freeman office as a plaintiff. The plaintiffs argued
in their brief that, pursuant to General Statutes § 34-267f, Freeman
was entitled to any assets of the Freeman office, including any damages
recovered in this action, after it completed the winding up process. The
defendants did not expressly address the question posed in the court’s
order, but argued that there was no evidence that the Freeman office
was still in the process of winding up its affairs.
Freeman v. Law Office of J. Xavier Pryor, LLC

of the claims at issue. Judge Klau granted the motion to
amend by summary order dated December 4, 2023. The
defendants filed a motion for reconsideration of the order
granting the motion to amend, which the court denied
on January 8, 2024.
The court issued a memorandum of decision on May 20,
2024. In its decision, the court found that the Freeman
office and the Pryor office had entered an oral contract to
split the attorney’s fees from the Gonzalez matter equally
and that the defendants, therefore, did not breach that
contract when the Pryor office issued a check to Freeman
for $82,500. Rather than rendering judgment for the
defendants, however, the court went on to state that
its “findings concerning the terms of the parties’ oral
contract give rise to a minor quirk.” Specifically, the
court noted that, although “the plaintiffs have failed to
prove the specific breach of contract claims they actually
asserted . . . the court has found that a contract existed . .
. [and] [u]nder the contract terms as found, the [plaintiffs
are] entitled to $82,500 in attorney’s fees.” The court
went on to conclude that, notwithstanding its determi-
nation that the defendants did not breach the contract
because they actually had tendered the contractually
agreed upon amount to Freeman, “the appropriate relief
in this situation is to render judgment for [the Freeman
office] on its breach of contract claim and award dam-
ages of $82,500.” In a footnote, the court stated that,
“[a]lthough Judge Sheridan previously determined that
Freeman had standing to sue on behalf of [the Freeman
office] for the purpose of winding up its affairs, because
[the Freeman office] is a named plaintiff, any judgment
to which Freeman would have been entitled will enter in
favor of [the Freeman office], not Freeman personally.”
The defendants moved for reconsideration, and the court
denied the defendants’ motion on October 29, 2024. This
appeal followed.
On appeal, the defendants claim that Judge Sheri-
dan improperly denied their pretrial motion to dismiss
because Freeman lacked standing to bring a direct action
Freeman v. Law Office of J. Xavier Pryor, LLC

to recover for an injury suffered by the Freeman office.
The plaintiffs contend that Judge Sheridan properly
concluded that, pursuant to Saunders, Freeman had
standing to pursue a direct action. The plaintiffs fur-
ther argue that, even if Freeman lacked standing in his
individual capacity, his lack of standing was a “techni-
cal defect” that was cured when Judge Klau granted
the posttrial motion to amend the complaint to add the
Freeman office as a plaintiff.
We begin by setting forth the standard of review and
legal principles applicable to a motion to dismiss for lack
of standing. “A motion to dismiss . . . properly attacks
the jurisdiction of the court, essentially asserting that
the plaintiff cannot as a matter of law and fact state a
cause of action that should be heard by the court. . . . A
motion to dismiss tests, inter alia, whether, on the face of
the record, the court is without jurisdiction.” (Internal
quotation marks omitted.) Centrix Management Co.,
LLC v. Valencia, 132 Conn. App. 582, 586, 33 A.3d 802
(2011). “The issue of standing implicates subject matter
jurisdiction and is therefore a basis for granting a motion
to dismiss. . . . [I]t is the burden of the party who seeks
the exercise of jurisdiction in his favor . . . clearly to allege
facts demonstrating that he is a proper party to invoke
judicial resolution of the dispute.” (Internal quotation
marks omitted.) Rubin v. Brodie, 228 Conn. App. 617,
630–31, 325 A.3d 1096 (2024). Although the general
rule is that a trial court’s decision to deny a motion to
dismiss is subject to de novo review; see Centrix Man-
agement Co., LLC v. Valencia, supra, 586; our Supreme
Court has instructed that appellate courts are to apply
the abuse of discretion standard when reviewing a trial
court’s application of the exception to the derivative
action requirement adopted in Saunders. See Saunders
v. Briner, supra, 334 Conn. 176 n.40.
“Standing is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless he [or she] has, in an individual or
representative capacity, some real interest in the cause
Freeman v. Law Office of J. Xavier Pryor, LLC

of action, or a legal or equitable right, title or interest
in the subject matter of the controversy.” (Internal
quotation marks omitted.) Kloiber v. Jellen, 207 Conn.
App. 616, 621–22, 263 A.3d 952 (2021). “[A]s a general
rule, a plaintiff lacks standing unless the harm alleged
is direct rather than derivative or indirect. . . . [I]f the
injuries claimed by the plaintiff are remote, indirect or
derivative with respect to the defendant’s conduct, the
plaintiff is not the proper party to assert them and lacks
standing to do so. [If], for example, the harms asserted
to have been suffered directly by a plaintiff are in reality
derivative of injuries to a third party, the injuries are not
direct but are indirect, and the plaintiff has no standing
to assert them.” (Emphasis omitted; internal quotation
marks omitted.) Bernblum v. Grove Collaborative, LLC,
211 Conn. App. 742, 756, 274 A.3d 165, cert. denied,
343 Conn. 925, 275 A.3d 626 (2022).
“Our Supreme Court has explained that [d]ifferent
rules and procedures will apply, depending on the state of
the record at the time the motion [to dismiss] is filed. . . .
More specifically, a court may be called on to determine
whether subject matter jurisdiction is lacking on the
basis of (1) the complaint alone; (2) the complaint supple-
mented by undisputed facts evidenced in the record; or
(3) the complaint supplemented by undisputed facts plus
the court’s resolution of disputed facts.” (Internal quota-
tion marks omitted.) Rubin v. Brodie, supra, 228 Conn.
App. 631. “When [deciding] a jurisdictional question
raised by a pretrial motion to dismiss on the basis of the
complaint alone, [a court] must consider the allegations
of the complaint in their most favorable light. . . . In this
regard, a court must take the facts to be those alleged in
the complaint, including those facts necessarily implied
from the allegations, construing them in a manner most
favorable to the pleader. . . .
“In contrast, if the complaint is supplemented by undis-
puted facts established by [1] affidavits submitted in
support of the motion to dismiss . . . [2] other types of
undisputed evidence . . . and/or [3] public records of
Freeman v. Law Office of J. Xavier Pryor, LLC

which judicial notice may be taken . . . the trial court,
in determining the jurisdictional issue, may consider
these supplementary undisputed facts and need not con-
clusively presume the validity of the allegations of the
complaint. . . . Rather, those allegations are tempered
by the light shed on them by the [supplementary undis-
puted facts]. . . . If affidavits and/or other evidence
submitted in support of a defendant’s motion to dismiss
conclusively establish that jurisdiction is lacking, and
the plaintiff fails to undermine this conclusion with
counteraffidavits . . . or other evidence, the trial court
may dismiss the action without further proceedings.”
(Internal quotation marks omitted.) Norris v. Trumbull,
187 Conn. App. 201, 209–10, 201 A.3d 1137 (2019). In
the present case, the allegations in the complaint were
supplemented by documents submitted by the defendants
in support of their motion to dismiss and the affidavit
submitted by Freeman in support of his objection to the
motion. “Thus, in conducting our . . . review, we limit
ourselves to the factual record as it existed before the
trial court, supplemented by any additional records of
which we may take judicial notice.” Id., 211.
I
We first address the defendants’ claim that Judge
Sheridan erred in denying their motion to dismiss. The
defendants argue that Freeman lacked standing in his
individual capacity because the claims sought to recover
for an injury to the Freeman office, and the court improp-
erly concluded that the exception established by our
Supreme Court in Saunders applies to this case. We
agree.
The general rule in this state is that a member of a
limited liability company “may not sue in an individual
capacity to recover for an injury based on a wrong to the
limited liability company.” (Internal quotation marks
omitted.) Channing Real Estate, LLC v. Gates, 326
Conn. 123, 138, 161 A.3d 1227 (2017). “The distinc-
tion between a direct and derivative action turns on
whether the alleged injury sustained . . . is peculiar to [the
Freeman v. Law Office of J. Xavier Pryor, LLC

member] alone or whether, by virtue of harm suffered by
the company, it affects all of the [members] collectively.
. . . In the latter situation, the plaintiff must proceed
secondarily, deriving his rights from the [company]
which is alleged to have been wronged.” (Citation omit-
ted; internal quotation marks omitted.) Saunders v.
Briner, supra, 334 Conn. 168–69.
In Saunders, however, our Supreme Court recognized
an exception to that general rule. Id., 174. In Saunders,
the plaintiff brought claims in his individual capacity
alleging that the defendants failed to repay a loan. Id.,
165. The plaintiff funded the loan entirely with personal
funds but provided the loan through a limited liability
company of which he was the sole member. Id., 177. The
defendants did not challenge the plaintiff’s standing
to pursue his claims as a direct action until their post-
trial brief, and the trial court, without addressing the
defendants’ standing argument, found in favor of the
plaintiff. Id., 166.
On appeal, the defendants in Saunders claimed that
the plaintiff lacked standing to pursue a direct action
because the company had provided the loan and the only
injury to the plaintiff was derivative of the injury suf-
fered by the company. Id., 165. The court framed the
question on appeal as “whether to exempt single-member
limited liability companies from the direct and separate
injury requirements necessary to bring a direct action.”
Id., 167. In addressing that question, the court began
by explaining that “the rule prohibiting shareholders
from bringing a direct action to recover for a harm suf-
fered by the corporation addresses the following policy
rationales: (1) the protection of other shareholders and
creditors of the company; (2) the avoidance of multitu-
dinous litigation; and (3) the equal distribution of recov-
ery to injured parties.” Id., 169. As the court further
explained, however, “in some circumstances, the policy
reasons for requiring shareholders to bring an action on
behalf of the corporation may not be present even though
the action alleges in substance a corporate injury.” Id.,
Freeman v. Law Office of J. Xavier Pryor, LLC

170. Relying on § 7.01 (d) of the American Law Insti-
tute’s Principles of Corporate Governance,10 the court
concluded that, “when the unique circumstance arises
in which the sole member of a limited liability company
seeks to remedy a harm suffered by [the company], a trial
court may permit such a member to bring his claims in
a direct action, as long as doing so does not implicate
the policy justifications that underlie the distinct and
separate injury requirement.” (Emphasis added.) Id.,
167. Adopting the formulation set forth in § 7.01 (d)
of the Principles of Corporate Governance, the court
held “that the trial court may permit the member of
a single-member limited liability company to bring an
action raising derivative claims as a direct action and
may order an individual recovery if it finds that to do so
will not (1) unfairly expose the company or defendants
to a multiplicity of actions, (2) materially prejudice the
interests of creditors of the company, or (3) negatively
impact other owners or creditors of the company by inter-
fering with a fair distribution of the recovery among all
interested parties.” Id., 176.
Applying the newly enunciated standard, the court con-
cluded that the plaintiff had standing to pursue a direct
action. The court noted that, although the trial court
had not expressly addressed the defendants’ standing
claim, “the trial court’s exercise of jurisdiction implicitly
relie[d] on and [was] supported by the three factors set
forth by the American Law Institute.” Id., 176–77. As
the court explained, it was undisputed that the plaintiff
was the sole member of the limited liability company that
provided the loan and that he funded the loan with his
10
Section 7.01 (d) provides in relevant part: “In the case of a closely
held corporation . . . the court in its discretion may treat an action
raising derivative claims as a direct action, exempt it from those restric-
tions and defenses applicable only to derivative actions, and order an
individual recovery, if it finds that to do so will not (i) unfairly expose
the corporation or the defendants to a multiplicity of actions, (ii) mate-
rially prejudice the interests of creditors of the corporation, or (iii)
interfere with a fair distribution of the recovery among all interested
persons.” 2 A.L.I., Principles of Corporate Governance: Analysis and
Recommendations (1994) § 7.01 (d), p. 17.
Freeman v. Law Office of J. Xavier Pryor, LLC

personal funds. Id., 177. The court further explained
that, because there was no claim “that any creditors of
[the limited liability company] exist and would be preju-
diced by the plaintiff’s recovery . . . the trial court’s
decision to permit the plaintiff to recover directly will
not lead to a multiplicity of actions or interfere with a
fair distribution of recovery with respect to other mem-
bers or creditors.” Id. The court therefore concluded
that “prohibiting the plaintiff, the sole member of [the
company], from bringing a direct action would exalt
form over substance [because] . . . none of the reasons
underlying the [distinct and separate injury] require-
ment [is] present.” (Emphasis added; internal quotation
marks omitted.) Id.
Neither the Supreme Court nor this court have had
occasion to address what is required in order for a plain-
tiff to establish that allowing a direct action will not
“materially prejudice the interests of creditors” for pur-
poses of the second Saunders factor. Id., 176. Courts
in other jurisdictions that have adopted § 7.01 (d) of the
Principles of Corporate Governance have observed that,
in the case of a dissolved limited liability company with
existing creditors, allowing a member of the company
to recover individually risks causing prejudice to such
creditors by diverting assets that should be available
to pay creditor claims, in contravention of statutory
dissolution and winding up procedures. As part of the
winding up process after a limited liability company
dissolves, the company is required to use its assets to
pay creditors before distributing the remaining assets
to its members. See General Statutes § 34-267f.11 Thus,
11
General Statutes § 34-267f provides in relevant part: “(a) In wind-
ing up its activities and affairs, a limited liability company shall apply
its assets to discharge its obligations to creditors, including members
that are creditors.
“(b) After a limited liability company complies with subsection (a) of
this section, any surplus must be distributed in the following order,
subject to any charging order in effect under section 34-259b: (1) To
members and persons dissociated as members, an amount equal to the
respective values of the contributions received by the limited liabil-
ity company and not returned to each such member and dissociated
Freeman v. Law Office of J. Xavier Pryor, LLC

and as one court explained, allowing a member of a dis-
solved limited liability company with existing creditors
to recover individually would “[allow the member] to
circumvent the statutory distribution scheme and obtain
a distribution [of company assets] before creditor claims
are paid.” In re Patel, 536 B.R. 1, 19–20 (Bankr. D.N.M.
2015) (concluding that exception to separate and direct
injury requirement did not apply when company was
dissolved because permitting individual recovery would
circumvent statutory windup procedures); see also, e.g.,
Miller v. Up In Smoke, Inc., 738 F. Supp. 2d 878, 884
(N.D. Ind. 2010) (declining to allow direct action in case
brought by shareholder of close corporation asserting
individual claims and seeking judicial dissolution, con-
cluding that, “[w]ere [plaintiffs] to recover directly, they
would in effect jump to the front of the collection line and
displace existing creditors for whom priority has already
been established and recovery is uncertain”); Barth v.
Barth, 693 N.E.2d 954, 958–59 (Ind. App. 1998) (allow-
ing shareholder of close corporation to recover individu-
ally “would be inherently prejudicial to creditors of the
corporation should the corporation be dissolved as a
result of the lawsuit” because “[a] direct action would
circumvent the rights of creditors to the extent that the
damages awarded inured solely to [the shareholder], and
not to the corporation”).
In the present case, Freeman failed to demonstrate that
allowing him to proceed with a direct action would not
materially prejudice the Freeman office’s creditors. As
the party seeking to invoke the jurisdiction of the court,
Freeman had the burden to establish that he had stand-
ing. See Rubin v. Brodie, supra, 228 Conn. App. 630–31.
This means that, to assert a direct action under Saunders,
it was Freeman’s burden to present sufficient evidence
at the motion to dismiss stage to support the conclusion
that the three Saunders factors applied, including that
member; and (2) to members and dissociated members, in shares which
are proportionate to their respective transferable interests, except to
the extent necessary to comply with any transfer effective under sec-
tion 34-259a. . . .”
Freeman v. Law Office of J. Xavier Pryor, LLC

allowing him to recover individually would not materi-
ally prejudice any creditors of the Freeman office. The
record before the trial court at the time of the motion
to dismiss indicated that the Freeman office had at least
one creditor with outstanding claims—namely, the Pryor
office, which had a separate action pending against the
Freeman office for unpaid attorney’s fees. Consequently,
it was Freeman’s burden to present evidence that allow-
ing individual recovery would not prejudice the Pryor
office. See Wells Fargo Bank, N.A. v. Melahn, 222 Conn.
App. 828, 837, 307 A.3d 911 (2023) (“[i]f affidavits [or]
other evidence submitted in support of a defendant’s
motion to dismiss conclusively establish that jurisdic-
tion is lacking, and the plaintiff fails to undermine this
conclusion with counteraffidavits . . . or other evidence,
the trial court may dismiss the action without further
proceedings” (citation omitted)), cert. denied, 348 Conn.
951, 308 A.3d 1038 (2024). Freeman could have met his
burden through the submission of evidence demonstrat-
ing that the Freeman office had sufficient assets to pay
any outstanding claims, such that allowing him to retain
the proceeds of any damages awarded in this action would
not prejudice its creditors. See J. R. Burkhard, “LLC
Member and Limited Partner Breach of Fiduciary Duty
Claims: Direct or Derivative Actions?,” 7 J. Small &
Emerging Bus. L. 19, 57–58 (2003) (“[t]ypically, [the sec-
ond American Law Institute factor is met] by a pleading
that there are no existing creditors in need of protection
or that the existing assets of the business are sufficient
to protect the creditors’ interests”). Freeman, however,
did not present any such evidence in connection with his
opposition to the motion to dismiss. Thus, the record does
not support the conclusion that the Saunders exception
applied in this case.
In its order denying the motion to dismiss, the trial
court did not address the potential prejudice to the Free-
man office’s creditors that would result from allowing
Freeman to proceed individually. Instead, the court
concluded that this case fit within the Saunders excep-
tion because, “[i]f the plaintiff [were] to amend his
Freeman v. Law Office of J. Xavier Pryor, LLC

pleadings to add [the Freeman office] as a party plain-
tiff, there would be no question as to the continuation
of this lawsuit,” and, “as in Saunders, significant time
and resources have been spent litigating this matter, and
the distinction between the plaintiff’s alleged economic
loss as opposed to any economic loss to [the Freeman
office] approaches the fictional.” (Internal quotation
marks omitted.) Neither of those factors, however, are
by themselves sufficient to support the conclusion that
Freeman had standing to pursue a direct action under
the Saunders exception.
The court in Saunders expressly held that “a trial
court may permit [the member of a single-member lim-
ited liability company] to bring his claims in a direct
action, as long as doing so does not implicate the policy
justifications that underlie the distinct and separate
injury requirement.” (Emphasis added.) Saunders v.
Briner, supra, 334 Conn. 167. The court went on to
explain that the three factor test it adopted is geared
toward ensuring that those policy justifications are not
implicated by allowing a direct action. See id., 170–71.
The court instructed that “the trial court may . . . order
an individual recovery if it finds that to do so will not (1)
unfairly expose the company or defendants to a multiplic-
ity of actions, (2) materially prejudice the interests of
creditors of the company, or (3) negatively impact other
owners or creditors of the company by interfering with
a fair distribution of the recovery among all interested
parties.” (Emphasis added.) Id., 176. Thus, Saunders
makes clear that a trial court may not permit the member
of a single-member limited liability company to pursue
derivative claims by way of a direct action unless the
court determines that all three factors apply.
Although the court in Saunders noted in a footnote
that the “limited exception would apply in rare circum-
stances, under which the plaintiff would have been enti-
tled to the same relief by a simple amendment to the form
of the pleading”; Saunders v. Briner, supra, 334 Conn.
175 n.39; and further noted that it was particularly
Freeman v. Law Office of J. Xavier Pryor, LLC

appropriate to permit the plaintiff in Saunders to pursue
a direct action because “the parties and the court system
expended time and resource to litigate these matters”;
id., 174; the court did not indicate that those factors
alone were sufficient to justify applying the exception.
Rather, we construe those statements as additional con-
siderations that may persuade a court to exercise its
discretion to permit a direct action, but only if it first
determines that allowing individual recovery would not
expose the company to a multiplicity of actions, materi-
ally prejudice the interest of creditors, or interfere with
the fair distribution of recovery among all interested
parties. See id., 176. Because there was no basis in the
record to conclude that allowing Freeman to assert direct
claims would not materially prejudice the interests of the
Freeman office’s creditors, we conclude that the court
abused its discretion in determining that the plaintiff
was permitted to bring a direct action pursuant to the
Saunders exception. We further conclude, therefore,
that the court erred in denying the motion to dismiss.
II
We next address the plaintiffs’ argument that Free-
man’s lack of standing was “cured” when the court
granted his posttrial motion to amend the complaint. The
plaintiffs argue that the court had discretion to permit
an amendment to the complaint as long as it “[did] not
change the cause of action or disadvantage the oppos-
ing party,” and that “any alleged standing deficiency
was procedural, not jurisdictional, and was properly
resolved by the trial court’s discretionary authority.”
We disagree.
Our resolution of the plaintiffs’ claim is guided by our
Supreme Court’s decision in Connecticut Coalition for
Justice in Education Funding, Inc. v. Rell, 327 Conn.
650, 176 A.3d 28 (2018). In that case, after the trial
court had dismissed the claims of the plaintiff associa-
tion for lack of standing, but not the claims brought by
individual plaintiffs, the plaintiffs amended the com-
plaint to cure the association’s standing defect, and the
Freeman v. Law Office of J. Xavier Pryor, LLC

trial court subsequently denied the defendants’ motion
to dismiss the association’s amended claims for lack of
standing. Id., 683. On appeal, the defendants, relying
on Connecticut Associated Builders & Contractors v.
Hartford, 251 Conn. 169, 186, 740 A.2d 813 (1999),
and Fairchild Heights Residents Assn., Inc. v. Fairchild
Heights, Inc., 131 Conn. App. 567, 575, 27 A.3d 467
(2011), rev’d in part on other grounds, 310 Conn. 797,
82 A.3d 602 (2014), claimed that the court improperly
denied their motion to dismiss. In both of those cases,
the reviewing court addressed the issue of whether the
trial court had subject matter jurisdiction on the basis
of the original complaint. See Connecticut Associated
Builders & Contractors v. Hartford, supra, 186 (associa-
tion lacked standing to challenge bidding procedures on
municipal construction contract because, “[a]t the time
of the filing of the complaint, the membership of the asso-
ciation included no project bidder”); Fairchild Heights
Residents Assn., Inc. v. Fairchild Heights, Inc., supra,
574 n.8 (“[t]he operative complaint for jurisdictional
purposes is that included with the writ of summons .
. . [because] [t]he lack of subject matter jurisdiction to
render a final judgment cannot be cured retrospectively”)
(internal quotation marks omitted)). The defendants in
Rell argued that the trial court “improperly denied their
motion to dismiss the [association’s] claims because,
at the time that the original complaint was filed, the
[association] had no parent members who would have
had standing to bring this action in their own right, and
a jurisdictional defect cannot be cured retroactively.”
Connecticut Coalition for Justice in Education Funding,
Inc. v. Rell, supra, 683–84.
In affirming the trial court’s denial of the motion to
dismiss in Rell, the court explained that Connecticut
Associated Builders & Contractors and Fairchild Heights
Residents Assn., Inc., were “distinguishable . . . because,
in both of those cases, the original complaint should have
been dismissed because no plaintiff had standing. If the
trial court had rendered a judgment of dismissal in those
cases, the plaintiffs would not have been permitted to
Freeman v. Law Office of J. Xavier Pryor, LLC

cure the jurisdictional defects with subsequent pleadings
because there no longer would have been any pending
action in which to file them. In contrast, the original
complaint in [Rell] was not dismissed when the trial
court initially determined that the [association] lacked
standing because the individual plaintiffs named in the
original complaint still had standing . . . . Accordingly,
the sole effect of dismissing the [association’s] claims
was to remove the [association] as a plaintiff. When the
[association] subsequently gained associational standing
to raise the claims, however, we can perceive no reason
why it would not have been permitted to join the action
as a plaintiff . . . .” (Emphasis in original.) Id., 685.
As we concluded in part I of this opinion, in the pres-
ent case, the court lacked subject matter jurisdiction on
the ground that the original complaint was insufficient
because Freeman did not meet his burden to establish
that he had standing to bring a direct action to recover
for injuries to the Freeman office. Thus, at the time the
court ruled on the motion to dismiss, there was no basis
in the record to conclude that Freeman had standing,
and the court should have dismissed the complaint at
that point. As the court explained in Rell, “[i]f the trial
court had rendered a judgment of dismissal [at that time],
the plaintiffs would not have been permitted to cure the
jurisdictional [defect] with subsequent pleadings because
there no longer would have been any pending action in
which to file them.” Id.
We further note that, although the plaintiffs do not
raise the issue, pursuant to General Statutes § 52-109,
Freeman could have moved to add the Freeman office as
a plaintiff to cure the standing defect before the court
ruled on the motion to dismiss. Section 52-109 provides:
“When 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 it
is necessary for the determination of the real matter in
dispute so to do, allow any other person to be substituted
or added as plaintiff.” Our courts have recognized that
§ 52-109 provides a limited exception to the general
Freeman v. Law Office of J. Xavier Pryor, LLC

rule that, once the issue of a trial court’s subject matter
jurisdiction is raised, the court must rule on the motion
on the basis of the existing complaint and cannot permit
an amendment aimed at curing the jurisdictional defect
because “any movement is necessarily the exercise of
jurisdiction.” (Internal quotation marks omitted.) Fed-
eral Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn.
93, 99, 680 A.2d 1321 (1996); see also, e.g., Bruno v.
Travelers Cos., 172 Conn. App. 717, 729, 161 A.3d 630
(2017) (“[t]he plaintiff should not have been given the
opportunity to replead because the court was without
jurisdiction to permit a repleading”). As this court has
explained, § 52-109, “as an exercise of the legislature’s
constitutional authority to determine [our court’s] juris-
diction; [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.” (Internal quo-
tation marks omitted.) Rana v. Terdjanian, 136 Conn.
App. 99, 112, 46 A.3d 175, cert. denied, 305 Conn. 926,
47 A.3d 886 (2012).
In the present case, however, Freeman did not take
any action to add the Freeman office as a plaintiff until
after the trial was completed, and even then did not
move to add the Freeman office in accordance with §
52-109. Although this court and our Supreme Court
have interpreted § 52-109 liberally in accordance with
its “ ‘ameliorative purpose’ ” to give trial courts, faced
with a proper request, the authority to “ ‘determin[e] if
[an] action should be saved from dismissal by the substi-
tution of plaintiffs’ ”; Freese v. Dept. of Social Services,
176 Conn. App. 64, 85, 169 A.3d 237 (2017); nothing in
the language of § 52-109 or the case law interpreting it
support the conclusion that a trial court, after improperly
denying a motion to dismiss, may nevertheless preside
over an entire trial over which it lacks subject matter
jurisdiction and then allow a plaintiff to retroactively
“cure” a standing defect by way of a motion to amend
the complaint.12
12
We note that, in Kortner v. Martise, 312 Conn. 1, 91 A.3d 412
(2014), our Supreme Court concluded that a potential standing defect
was cured by the trial court’s granting of a posttrial motion to substitute
Freeman v. Law Office of J. Xavier Pryor, LLC

Moreover, even assuming arguendo that § 52-109
permitted the trial court, having previously denied a
motion to dismiss, to cure a standing defect by granting
a motion to substitute a proper party, it would not alter
the outcome of the present case. Here, the plaintiffs did
not claim—and the trial court did not find—that the
action was “commenced in the name of the wrong person
as plaintiff . . . through mistake,” as is required under §
52-109. See, e.g., Fairfield Merritview Ltd. Partnership
v. Norwalk, 320 Conn. 535, 554–55, 133 A.3d 140 (2016)
(construing motion to amend complaint as motion to
add party plaintiff pursuant to § 52-109 where plaintiff
moved to amend approximately one month after filing
complaint, defendants did not object to motion, and
in a case where the defendant never moved to dismiss the action and
the issue of the trial court’s jurisdiction was never brought to the trial
court’s attention. In Kortner, the plaintiff commenced the action in
her capacity as her daughter’s conservator and, when her daughter died
after trial but before judgment entered, moved to substitute herself in
her capacity as administratrix of her daughter’s estate. Id., 11. The
defendant never challenged the plaintiff’s standing before the trial court
or on appeal but, after oral argument, our Supreme Court, sua sponte,
ordered the parties to file supplemental briefs addressing (1) whether
the plaintiff had standing to commence the action in her capacity as
conservator, and (2) if not, whether the standing defect was cured when
the trial court granted the posttrial motion to substitute the mother in
her capacity as administratrix. Id., 9 n.7. The court did not address
whether the plaintiff had standing to commence the action in her capac-
ity as conservator, concluding “that even assuming, arguendo, that the
plaintiff did not have standing to bring the claim when she commenced
the action in 2006, any defect was cured when she, as administratrix of
[the daughter’s] estate, was substituted as the plaintiff in 2010 and that
substitution related back to the commencement of the action.” Id., 14.
Because the potential standing issue in Kortner was never raised
before the trial court, the court was never alerted to that issue, and the
plaintiff had no occasion to attempt to cure it pursuant to § 52-109.
In contrast, the defendants in the present case did move to dismiss the
action, and Freeman did not move pursuant to § 52-109 to cure the
standing defect by adding the Freeman office prior to the court ruling
on the defendants’ motion. Thus, if the court had granted the motion
to dismiss—as we concluded in part I that it should have—it would
have been required to dismiss the action, and “the plaintiffs would not
have been permitted to cure the jurisdictional [defect] with subsequent
pleadings because there no longer would have been any pending action
in which to file them.” Connecticut Coalition for Justice in Education
Funding, Inc. v. Rell, supra, 327 Conn. 685.
Freeman v. Law Office of J. Xavier Pryor, LLC

“under the undisputed facts and circumstances . . . there
[was] no question that the . . . requirements [of § 52-109]
were met”); Rana v. Terdjanian, supra, 136 Conn. App.
111 (court properly granted motion to substitute limited
liability company as plaintiff before ruling on standing
issue because “it is well within the authority of a court
to permit a substitution of plaintiffs in lieu of dismiss-
ing an action provided that the court determines that the
conditions set forth in § 52-109 have been met” (emphasis
added)); cf. Ion Bank v. J.C.C. Custom Homes, LLC, 189
Conn. App. 30, 45, 206 A.3d 208 (2019) (plaintiff could
not cure standing defect by filing amended complaint as
of right pursuant to Practice Book § 10-59 because trial
court “never considered or made a finding of whether
the action was initiated by ‘mistake,’ a finding essential
to evoking its discretionary authority to allow a substi-
tution [or addition]”). As discussed previously, in his
posttrial motion to amend,13 Freeman did not assert that
he commenced the action in his own name through mis-
take. Rather, Freeman claimed that the Freeman office
was his “alter ego,” and that he should be allowed to add
the Freeman office as a plaintiff because the company
was winding up its affairs and this action was part of
that winding up process. Indeed, Freeman maintained
throughout the trial—and the plaintiffs still maintain
on appeal—that he had standing to bring a direct action,
and the plaintiffs have never argued that this action was
commenced in the name of the wrong plaintiff through
mistake. In light of the basis for the motion to amend
and Freeman’s position throughout trial and the plain-
tiffs’ position on appeal, there is nothing in the record
to indicate that the court made the findings necessary
to permit Freeman to add the Freeman office as a proper
party pursuant to § 52-109. Accordingly, we conclude
that Freeman’s lack of standing was not cured by the
13
Although the proper mechanism by which to cure a standing defect
is a motion to add or substitute pursuant to § 52-109, our Supreme
Court has treated a motion “captioned . . . as a request for permission
to amend” as a motion to add pursuant to § 52-109 where it “clearly
was, in its substance, a motion to add or substitute a party plaintiff.”
Fairfield Merritview Ltd. Partnership v. Norwalk, supra, 320 Conn. 554.
Thus, the fact that Freeman captioned his motion as one for permission
to amend is not controlling.
Freeman v. Law Office of J. Xavier Pryor, LLC

court’s order granting his posttrial motion to amend
the complaint.
The judgment is reversed and the case is remanded with
direction to grant the defendants’ motion to dismiss and
to render judgment accordingly.
In this opinion the other judges concurred.