Weinshel, Wynnick & Associates, LLC v. Bongiorno
| Decision Date | 28 July 2016 |
| Docket Number | FSTCV126016910S |
| Court | Connecticut Superior Court |
| Parties | Weinshel, Wynnick & Associates, LLC et al. v. Marie Bongiorno et al |
UNPUBLISHED OPINION
This is a Memorandum of Decision on a collection lawsuit on a one-day court trial held on May 3, 2016. The first named plaintiff is the accounting firm of Weinshel, Wynnick & Associates LLC doing business in Fairfield, Connecticut. The second plaintiff is Michael Weinshel, a principal in the firm of Weinshel, Wynnick & Associates, LLC. He is a licensed accountant and CPA. The total amount sought by the plaintiffs for its accounting services including accrued interest is slightly less than $30, 000.00.
The first named defendant, Marie Bongiorno of Stamford, is a former client of the accounting firm. Marie Bongiorno commenced a Stamford, Connecticut dissolution of marriage action against her husband, George Bongiorno, who was also a client of the accounting firm. Numerous Bongiorno business entities were also clients of the plaintiffs. The second named defendant, Mary Badoyannis, was the attorney of record for Marie Bongiorno in the above dissolution of marriage action. There is no evidence that the defendant, Mary Badoyannis, was never a client of the plaintiffs.
The operative complaint is the Revised Complaint dated June 25 2013 (#135.00). All five counts of the Revised Complaint were alleged as against both defendants in favor of both plaintiffs. The five counts are breach of contract, violation of the implied covenant of good faith and fair dealing violations of the Connecticut Unfair Trade Practices Act, quantum merit, and unjust enrichment. Both defendants were represented by both Attorney Mary Badoyannis and the Law Office of Peter V. Lathouris. The operative Answer is dated August 6, 2014 (#143.00). There were no special defenses, setoffs, or counterclaims filed by any of the defendants.
Prior to the commencement of the evidence this court noted a number of deficiencies within the Answer and Revised Complaint as follows: (1) the Answer was filed by " the Defendants, Marie Bongiorno" without naming Mary Badoyannis as one of the defendants; (2) the Answer was signed by " THE DEFENDANTS MARIE BONGIORNO MARY BADOYANNIS"; (3) the Revised Complaint in COUNT TWO, paragraph 9 alleged " Plaintiffs had made demand upon Defendants but Defendants have failed and refuse to pay Plaintiffs." There was no Answer to that paragraph 9. A similar allegation was contained in COUNT ONE, paragraph 7 and the operative Answer denied those allegations; (4) COUNT THREE paragraph 6 was answered by a general denial and yet the Revised Complaint (#135.00) contains no paragraph 6 in COUNT THREE; (5) COUNT FOUR contains eight separately numbered paragraphs including paragraph number 7, whereas the Answer (#143.00) contains two separate answers to the one paragraph 7; a denial and no knowledge. The parties responded to these inconsistencies prior to the commencement of the evidence. The parties agreed that these were typographical errors. The parties, in lieu of amending the pleadings, filed a handwritten Stipulation on May 3, 2016 (#155.00). Prior to the evidence, the court on the record deemed that the August 6, 2014 Answer (#143.00) to be filed on behalf of both defendants. The court found that both defendants authorized the Law Offices of Peter V. Lathouris to file that Answer. The court found that the Revised Complaint and Answer could be rightly understood. (#135.00, #143.00.)
After review of these typographical errors, the pleading inconsistencies and the May 3, 2016 Stipulation, the court finds that the pleadings were closed by the August 6, 2014 Answer. Berlingo v. Sterling Ocean House, Inc., 203 Conn. 103, 106, 523 A.2d 888 (1987). The court finds that the pleadings were closed and no jury claim was filed.
The plaintiffs' Revised Complaint sought money damages in all five counts in addition a claim for attorneys fees pursuant to the Connecticut Unfair Trade Practices Act, Gen. Stat. § 42-110g, in COUNT THREE. No attorneys fees were claimed for COUNTS ONE, TWO, FOUR and FIVE. After the conclusion of the testimony, both parties filed post-trial briefs.
The court makes the following findings of fact and legal conclusions:
Plaintiff, Weinshel, Wynnick & Associates, LLC, is a limited liability company doing business in Fairfield, Connecticut. It is engaged in the accounting profession. The plaintiff, Michael Weinshel, is a CPA, a licensed accountant and a partner in the accounting firm of Weinshel, Wynnick & Associates, LLC. For many years Weinshel, Wynnick & Associates, LLC had been the personal accountants for Marie Bongiorno and her husband, George Bongiorno. The plaintiffs had also been the accountants for various Bongiorno entities that owned real property and conducted other businesses in Connecticut. The Bongiornos had accumulated a substantial net worth. The dissolution of marriage action was filed in the Superior Court, judicial district of Stamford/Norwalk at Stamford returnable on February 23, 2010 by Marie Bongiorno acting by her attorney of record, Mary Badoyannis. Mary Badoyannis is the second named defendant in this lawsuit. Marie Bongiorno sought a dissolution of marriage as against her longstanding husband, George Bongiorno. She sought alimony and a division of the various Bongiorno assets. The dissolution of marriage action was assigned docket number FST FA10-4018151 S.
COUNT ONE of the Revised Complaint alleges a breach of contract. Paragraph 5 states: " Plaintiffs and Defendants, Marie Bongiorno and Mary Badoyannis, Esq. (collectively referred to as 'Defendants'), made an agreement, under which Plaintiffs would provide Defendants, services as an expert witness in a divorce action between Marie Bongiorno and George Bongiorno." Paragraph 6 stated: " Plaintiffs provided services as an expert witness to Defendants and therefore, Plaintiffs have performed their obligations under the Agreement with Defendants." At trial a subpoena duces tecum was issued by Attorney Mary Badoyannis on behalf of Marie Bongiorno in the dissolution action. The subpoena was addressed to Michael Weinshel, CPA and Weinshel, Wynnick & Associates, LLC. The subpoena was dated April 29, 2010 and requested the presence of both the entity and Mr. Weinshel at a Friday, May 14, 2010 deposition. Ex. 10. A NOTICE OF DEPOSITION was attached to the subpoena utilizing the heading of the dissolution case: Marie Bongiorno v. George Bongiorno, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. FST FA10-4018151 S. Schedule A attached to and made part of the subpoena duces tecum contained 17 separate categories of documents to be brought to the May 14, 2010 deposition. Paragraph 17 requested " balance sheets, statements of income, general ledgers, cash disbursement journals, profit & loss statements for the following entities" for the years 2001 through and including 2010. Twenty-one specific entities were named in this paragraph 17. There were sixteen limited liability companies, two corporations, one joint venture, and two separate entities described as " Bongiorno Brothers" and " Bongiorno Maxi Discount Liquor."
In response to the subpoena duces tecum the plaintiffs hired their current attorney, William J. Kupinse, Jr. of the Law Firm of Goldstein and Peck, P.C. of Bridgeport, Connecticut. Mr. Kupinse arranged with Mary Badoyannis for the postponement of the May 14, 2010 deposition and suggested a rescheduled deposition date of June 3, 2010. Mr. Kupinse wrote a letter to Mary Badoyannis dated May 19, 2010 referencing the dissolution case of Marie Bongiorno v. George Bongiorno confirming those facts. This court finds that the May 19, 2010 letter forms the basis of the alleged agreement contained in paragraph 5 and 6 of COUNT ONE, sounding in breach of contract. Ex. 1. According to that letter a retainer of $3, 000.00 was to be paid. The following monetary terms were agreed upon. " His hourly rate will be $275 and he will charge five cents per page for copying." After the May 14, 2010 deposition had been cancelled, a new deposition was scheduled for October 7, 2010. A new subpoena duces tecum was issued by Mary Badoyannis. Ex. 11. This September 21, 2010 subpoena duces tecum together with the same Schedule A and a new NOTICE or DEPOSITION for a October 7, 2010 deposition were dated well before the plaintiffs sent the first October 12, 2010 invoice. Ex. 4.
The Revised Complaint alleges that the plaintiffs were furnishing " services as an expert witness" to the defendants in support of Marie Bongiorno's dissolution of marriage action. It appears that there were four separate services that were performed by the plaintiffs as set forth in the two invoices offered in evidence; (1) The testimony of Michael Weinshel at two depositions in the dissolution of marriage action wherein he was questioned as to the accounting documents that he had prepared and filed on behalf of the Bongiornos and the Bongiorno entities; (2) Copying efforts to produce thousands of pages of documents of the various entities to Marie Bongiorno who claimed that she did possess those documents in her records; (3) A review of the suggested documents to be copied to verify that they in fact were the documents requested by the subpoena duces tecum; and (4) Some loose end tax work for the upgrading and modification of various Bongiorno personal tax filings.
" The elements of a breach of contract action are the formation of an agreed performance by one party, breach of the agreement by the other party and damages." Sullivan v. Thorndike, 104 Conn.App. 297, 303, 934 A.2d 827 cert. denied, 285 Conn. 907, 942 A.2d 415 (2008...
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