Bongiorno v. J & G Realty, LLC

• Decision Date: 22 March 2022
• Docket Number: AC 42790, (AC 42791)
• Citation: 211 Conn.App. 311
• Parties: George BONGIORNO et al. v. J & G REALTY, LLC, et al.
• Court: Connecticut Court of Appeals

211 Conn.App. 311

George BONGIORNO et al.

v.J & G REALTY, LLC, et al.

AC 42790, (AC 42791)

Appellate Court of Connecticut.

Argued October 19, 2021

Officially released March 22, 2022

Danielle J. B. Edwards , with whom, on the brief, was Peter V. Lathouris , Stamford, for the appellants in Docket Nos. AC 42790 and AC 42791 (plaintiffs).

Mark F. Katz , for the appellees in Docket Nos. AC 42790 and AC 42791 (named defendant et al.).

Alexander, Clark and Lavine, Js.

ALEXANDER, J.

These appeals arise out of a decade of litigation among members of the Bongiorno family with respect to certain commercial real property and businesses in Stamford. Following a trial to the court, the plaintiffs Marie Bongiorno (Marie) and her daughter, Bridjay Capone (Bridjay),¹ appeal from the judgment of the trial court rendered in favor of the defendants J & G Realty, LLC; 305 West Avenue, LLC; 24 Ardmore Street, LLC; Bongiorno Gas Island, LLC; Bongiorno Brothers, a general partnership (Bongiorno Brothers); Harxter Realty, LLC; Enterprise Park, L.L.C.; Glenbrook Center, LLC; Bongiorno Supermarket, Inc.; Jane Doe Entities; Frank R. Bongiorno (Frank); and Maurice A. Nizzardo (Maurice).² In Docket No. AC 42790, Marie claims that the trial court erred by (1) disposing of her claims for breach of fiduciary duty against Frank and Maurice on the basis of res judicata and (2) finding that she lacked standing to bring claims in her own name for breach of fiduciary duty. We dismiss Marie's appeal as moot. In Docket No. AC 42791, Bridjay claims that (1) the trial court erred by failing to shift the burden to Frank and Maurice to prove good faith and fair dealing on her breach of fiduciary duty claims and (2) this court should exercise its supervisory authority to reverse the judgment of the trial court as to her claims of oppression of a minority member. In regard to her breach of fiduciary duty claims, we dismiss Bridjay's appeal as moot, and we affirm the judgment of the trial court in all other respects.

The following factual background and procedural history are relevant to our resolution of these appeals. The businesses at issue grew out of a partnership initiated between now deceased brothers George Bongiorno (George) and John Bongiorno

[272 A.3d 705]

when they opened Bongiorno Supermarket in Stamford in 1957. The brothers later purchased commercial properties and established a retail gas station, a car wash, a liquor store, and other businesses near the supermarket (Bongiorno businesses).

John Bongiorno had no children and allegedly agreed that, on his death, he would leave his interests in the Bongiorno businesses in equal shares to George's children: Frank, John A. Bongiorno, Bridjay, and Michele B. Nizzardo. John Bongiorno died in 2003, but did not leave his interests in the Bongiorno businesses to George's children. George, however, negotiated an agreement pursuant to which his children, Maurice, and Bongiorno Supermarket, Inc., purchased John Bongiorno's interests from John Bongiorno's estate in 2004. As part of the agreement, the estate of John Bongiorno assigned a 12.5 percent membership interest in J & G Realty, LLC, to each of George's children. At the time of the agreement, J & G Realty, LLC, held title to real property that subsequently was owned by 305 West Avenue, LLC, and 24 Ardmore Street, LLC, businesses that were founded in 2004, following John Bongiorno's death. The agreement further provided that the estate of John Bongiorno would transfer 12.5 percent of the shares in those two properties to each of George's four children. Thereafter, George also transferred his 50 percent interest in 305 West Avenue, LLC, and 24 Ardmore Street, LLC, in equal shares to his four children. On January 22, 2012, George transferred his 50 percent interest in J & G Realty, LLC, in equal shares to his four children. Consequently, each of George's four children held a 25 percent interest in each of the three LLCs.

In June, 2012, George, Marie, and Bridjay commenced the underlying action seeking dissolution and winding up of the Bongiorno businesses. In 2013, George withdrew from the litigation. In the original complaint, Marie alleged that she was or had the right to be a member of certain defendant entities, either directly or by virtue of a durable power of attorney executed in her favor by George in 2010, and she sought to wind up and dissolve those entities. In 2013, the defendants filed a motion to dismiss Marie's claims for lack of subject matter jurisdiction, claiming that Marie did not have an ownership interest in any of the four entities³ she claimed to be a member of and, thus, lacked standing to bring the action. The trial court, Truglia, J., granted the motion to dismiss after determining that George's purported assignment of his interests in these entities was ineffective and that Marie had not "demonstrated a specific, personal or legal interest" in any of the entities that would enable her to bring an action for dissolution and winding up. See Bongiorno v. J & G Realty, LLC, 162 Conn.App. 430, 435, 131 A.3d 1230, cert. denied, 320 Conn. 924, 133 A.3d 878 (2016).

Thereafter, the court, Hon. Kevin Tierney, judge trial referee, granted Bridjay's motion to cite in Marie as a plaintiff and to amend the complaint. In the amended complaint, Marie alleged that she had, inter alia, an economic interest in J & G Realty, LLC, Bongiorno Brothers, and Bongiorno Gas Island, LLC.⁴ Marie again

[272 A.3d 706]

relied on the October, 2010 documents that purported to transfer George's interest in these entities to Marie.

The operative complaint is the July 5, 2018 second amended complaint. It contains seventy-two counts, alleging claims of oppression of a minority member/shareholder interest, breach of fiduciary duty, fraud, unjust enrichment, statutory theft, and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.⁵ Bridjay also sought the dissolution of the three LLCs. The remaining individual defendants were Frank and Maurice (individual defendants), who are the comanagers of certain defendant entities and co-property managers of the real property owned by certain defendant entities. Frank and Maurice are Marie's son and son-in-law, respectively.

The case was tried to Judge Tierney on eighteen dates between May 31, 2018, and July 24, 2018. In their posttrial brief, the plaintiffs claimed that they had identified eight separate "suspicious" transactions, which included (1) awarding management fees to the individual defendants, (2) paying the legal fees of other businesses and members, (3) paying real estate commissions to the individual defendants, (4) failing to pay distributions despite showing impressive profits, (5) failing to collect rents from M & F Car Wash, LLC, another entity managed by the individual defendants, and Bongiorno Gas Island, LLC, (6) failing to collect loans due from Bongiorno Brothers, (7) failing to give Bridjay access to the books and records of the businesses, and (8) failing to disclose George's transfer of membership interests to his children. On March 12, 2019, the court issued a 107 page memorandum of decision, rejecting each of the plaintiffs' allegations of "`suspicious transactions'" and finding "the issues on all counts, count one through and including count seventy-two, in favor of all of the defendants...."

In rendering judgment in favor of the defendants on Marie's claims, the court relied on the independent grounds that (1) her claims were barred by the doctrine of res judicata, (2) there was no proof that any financial distributions had been made to any of the members or partners of the defendant businesses after the date of the alleged transfer of interests to Marie, (3) there was no proof that any of the businesses had been dissolved that would entitle her to a distribution of the assets, and (4) she lacked standing to maintain the action in her individual capacity because any claim that she might have would be common to all members and partners of the defendant entities and may be asserted only in a derivative action.⁶

[272 A.3d 707]

With respect to Bridjay's claims, the court determined that she lacked standing in her individual capacity to maintain claims of breach of fiduciary duty with respect to all of the alleged "`suspicious transactions,'" except for her claim that the individual defendants had failed to provide her with access to the books and records of the three LLCs. The court found that none of the injuries Bridjay allegedly sustained was "`separate and distinct'" from those suffered by other members of the three LLCs, and such claims could be asserted only in a derivative action. Bridjay, therefore, had standing only to maintain her breach of fiduciary duty claim with respect to the individual defendants' alleged failure to provide her access to the books and records of the businesses. The court found that Bridjay had failed to demonstrate that Frank and Maurice had engaged in any act of fraud or self-dealing or had a conflict of interest and that neither individual defendant had violated his fiduciary duty. The court,

[272 A.3d 708]

therefore, rendered judgment in favor of the defendants.

Thereafter, the plaintiffs filed a motion for articulation, which the court denied. The plaintiffs then filed a motion for review with this court. This court granted the motion for review and denied in part and granted in part the relief requested.⁷ Additional facts with be set forth as necessary.

I AC 42790

We first address Marie's appeal in AC 42790, in which she argues that the trial court erred by (1) disposing of her claims for breach of fiduciary duty against Frank and Maurice on the basis of res judicata and (2) finding that she lacked standing to sue directly for breach of fiduciary duty. Marie has failed, however, to challenge the second and third bases of the trial court's decision because she has briefed them inadequately. Because Marie has...