Argued
March 18, 2019
Procedural
History
Action
to recover damages for, inter alia, breach of contract,
brought to the Superior Court in the district of Stamford;
thereafter, the named defendant, the executrix of the estate
of the defendant George Bongiorno, was substituted as a
defendant; subsequently, the matter was tried to the court,
Hon. Kevin Tierney, judge trial referee; judgment in
part for the plaintiff, from which the plaintiff appealed.
Reversed in part; judgment directed.
Andrew
M. McPherson, for the appellant (plaintiff).
Peter
V. Lathouris, for the appellees (defendants).
Keller, Bright and Flynn, Js.
OPINION
KELLER, J.
The
plaintiff, Weinshel, Wynnick & Associates, LLC, appeals
from the trial court's judgment in favor of the
defendants, Marie Bongiorno, individually (Marie Bongiorno),
and Marie Bongiorno, executrix of the estate of George
Bongiorno (Marie Bongiorno, executrix), [1] on its claims of
successor liability and breach of contract. On appeal, the
plaintiff argues that the court improperly (1) concluded that
Marie Bongiorno could not be held personally liable for the
plaintiff's damages pursuant to a theory of successor
liability, and (2) rendered judgment in favor of Marie
Bongiorno, executrix, on the basis of General Statutes 52-599
(b). We affirm the judgment in favor of Marie Bongiorno, and
reverse the judgment in favor of Marie Bongiorno, executrix.
The
following facts, as found by the trial court, and procedural
history are relevant to this appeal. The plaintiff is an
accounting firm. In 1971, it was hired by George Bongiorno,
the husband of Marie Bongiorno, to provide him with personal
and business accounting services.[2]At the time, George
Bongiorno, a successful businessman and investor, owned and
operated with his brother, John Bongiorno, a supermarket in
Stamford. At some point, George Bongiorno obtained a liquor
permit and began operating a liquor store, Bongiorno Maxi
Discount Liquors, in the same business complex as the
supermarket.[3]
Until
September, 2010, George Bongiorno operated the liquor store
as a sole proprietorship. During this time, the plaintiff
continued to provide accounting services and billed its
services to Bongiorno Maxi Discount Liquors. On September 21,
2010, articles of organization were drafted for an entity
named Marie's Liquors, LLC, and, on September 23, the
articles were filed with the secretary of state. Marie's
Liquors, LLC, was a member managed limited liability company,
with George Bongiorno designated as its sole member. Shortly
after the creation of Marie's Liquors, LLC, an
application was submitted to the Department of Consumer
Protection, Liquor Control Division, to change the
backer[4] for Bongiorno Maxi Discount Liquors to the
newly formed Marie's Liquors, LLC.[5] Despite the
change in proprietorship, the business continued to operate
under the name Bongiorno Maxi Discount Liquors. On October
14, 2010, George Bongiorno transferred all
‘‘right, title and interest'' of his
‘‘membership units'' in Marie's
Liquors, LLC, to Marie Bongiorno.
On June
21, 2012, the plaintiff sent Bongiorno Maxi Discount Liquors
three separate invoices for various accounting services. In
total, the plaintiff billed Bongiorno Maxi Discount Liquors
$36, 075, with payment due in full by July 21, 2012. The
parties do not dispute that the June 21, 2012 invoices were
never paid.
On July
31, 2012, a purchase and sale agreement was executed that
purported to convey all of George Bongiorno's interest in
Marie's Liquor, LLC, to Marie Bongiorno in consideration
of one dollar.[6] The agreement also provided that George
Bongiorno would resign as the sole member of Marie's
Liquor, LLC, and that Marie Bongiorno would be made the sole
member in his place. On October 12, 2012, Marie Bongiorno
sent an ‘‘application for transfer of interest
within a limited liability company'' to the Liquor
Control Division. The application indicated that Marie
Bongiorno was acquiring all interest in Marie's Liquors,
LLC, which was now the backer for Bongiorno Maxi Discount
Liquors. On January 8, 2013, the Liquor Control Commission
approved the transfer of interest in Marie's Liquors,
LLC. Shortly thereafter, on February 28, 2013, Marie
Bongiorno filed amended articles of organization with the
secretary of state, naming herself as the sole member manager
of Marie's Liquors, LLC.
Following
the nonpayment of the June 21, 2012 invoices, the plaintiff
commenced this action against Marie Bongiorno, George
Bongiorno, and Marie's Liquors, LLC. In its original
complaint, dated November 21, 2012, the plaintiff alleged,
inter alia, that Marie Bongiorno was responsible for the
unpaid invoices pursuant to an agreement that she had with
the plaintiff. While the action was pending, George Bongiorno
died and notice of his death was filed with the court on
April 6, 2016.[7] On December 23, 2016, the plaintiff filed
a motion to cite in the temporary administratrix, Susan
Gottlin, of the estate of George Bongiorno. The
plaintiff's motion was granted on January 9, 2017.
Thereafter, on August 22, 2017, the plaintiff filed a motion
to cite in Marie Bongiorno, executrix. In its motion, the
plaintiff asserted that Marie Borgiorno, executrix, had
replaced Gottlin as the representative for George
Bongiorno's estate. The court granted the plaintiff's
motion, and Marie Bongiorno, executrix, was served on
September 14, 2017. Prior to trial, the plaintiff amended its
complaint, alleging, among other things, breach of contract
against the defendants and successor liability against Marie
Bongiorno.
On
November 15 and 16, 2017, a court trial was held before the
court, Hon. Kevin Tierney, judge trial referee,
during which one witness, Michael Weinshel, testified.
Weinshel testified that he was a managing member of the
plaintiff and had performed accounting services for Bongiorno
Maxi Discount Liquors and the Bongiorno family for many years
dating back to 1971. Through Weinshel's testimony, the
plaintiff introduced into evidence several documents
detailing the formation and ownership of Marie's Liquors,
LLC. Other documents that were introduced included, inter
alia, copies of the unpaid June 21, 2012 invoices; copies of
checks made payable to the plaintiff from the Bongiorno Maxi
Discount Liquors' checking account; and Marie
Bongiorno's federal income tax returns, which reported
income from Bongiorno Maxi Discount Liquors in 2010, 2011,
and 2012. The parties also executed a stipulation that
provided: ‘‘All bills of Bongiorno's Maxi
Discount Liquors that were incurred prior to the take over of
the liquor store by Marie Bongiorno in August of 2012, with
the exception of the bills of the plaintiff, were paid out of
income of Bongiorno's Maxi Discount Liquors after take
over.'' Following the close of evidence, the parties
waived oral argument and submitted posttrial briefs.
In a
memorandum of decision dated February 28, 2018, the court
found that there was an agreement between the plaintiff and
George Bongiorno and that the agreement had been breached by
the nonpayment of the June 21, 2012 invoices, resulting in
$36, 075 in damages to the plaintiff.[8] The court rendered judgment
in that amount against Marie's Liquors, LLC. As to Marie
Bongiorno, however, the court found that she did not have an
agreement with the plaintiff and, thus, was not responsible
for the unpaid invoices pursuant to this claim. Although the
court found that the plaintiff had established the necessary
elements of its breach of contract claim against George
Bongiorno, it nonetheless rendered judgment in favor of Marie
Bongiorno, executrix, on this count. See General Statutes
§ 52-599 (a).[9]In providing the basis for its ruling, the
court noted: ‘‘Marie Bongiorno as executrix of
the estate of George Bongiorno was not joined as a party
defendant in this litigation within six months of March 13,
2016. [General Statutes] § 52-599 (b). May 15, 2017, was
the date of the appointment of Marie Bongiorno as executrix
of the estate of George Bongiorno. Marie Bongiorno as
executrix was not joined by the plaintiff as a party
defendant in this litigation until August 29, 2017. . . .
Because of the circumstances of this case, the claim of
successor liability and the uncertainty of the status of the
probate appeal against Marie Bongiorno as executrix . . . and
the possibility of the appointment of a new fiduciary for the
estate of George Bongiorno as a result of the Superior Court
and Probate Court litigation, this court is reluctant to find
liability in favor of the plaintiff as against the estate of
George Bongiorno on the first count of breach of contract.
The court does find as a fact that all the elements of a
breach of contract have been met and that George Bongiorno,
by failing to pay the $36, 075.00, has breached the contract
and damages in that amount have been sustained by the
plaintiff.''
‘‘Marie
Bongiorno was appointed the executrix of the estate of George
Bongiorno by the Stamford Probate Court on May 15, 2017. . .
. That Probate Court appointment and the admission of the
underlying last will and testament of George Bongiorno is the
subject of an appeal commenced in the Stamford Superior Court
on May 25, 2017. . . . The plaintiffs in that probate appeal
are Michele B. Nizzardo and Frank Bongiorno, two of the four
children of George Bongiorno and Marie Bongiorno. The
defendant in that probate appeal is Marie Bongiorno, the
executrix under the contested will, and one of the three
defendants in this liquor store litigation. . . . This court
is unsure of the status of fiduciary orders issued by the
Probate Court, district of Stamford. In the event this
probate appeal is successful, Marie Bongiorno may no longer
be the executrix of the estate of George Bongiorno. A new
fiduciary may then be appointed subject to appellate stays,
if any. What a new fiduciary may do with this $36, 075 claim
is best left to speculation. Therefore, in order to ...