Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Weinshel, Wynnick & Associates, LLC v. Bongiorno

Court of Appeals of Connecticut

September 17, 2019

WEINSHEL, WYNNICK & ASSOCIATES, LLC
v.
MARIE BONGIORNO ET AL.

          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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.