Bongiorno v. J & G Realty, LLC

• Decision Date: 12 March 2019
• Docket Number: FSTCV126014465S
• Citation: Bongiorno v. J & G Realty, LLC, FSTCV126014465S (Conn. Super. Mar 12, 2019)
• Court: Connecticut Superior Court
• Parties: George BONGIORNO et al. v. J & G REALTY, LLC et al.

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

No. FSTCV126014465S

Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford

March 12, 2019

UNPUBLISHED OPINION

OPINION

Hon Kevin Tierney, J.T.R.

"My father set this up. Michael Weinshel is the accountant. And we— to be honest with you— we’re kind of in a damned if you do, damned if you don’t, position. We’re not changing anything that my father set up until after this whole thing is settled." Direct testimony of the individual defendant, Frank R. Bongiorno, on the twelfth day of this eighteen-day court trial.

This litigation commenced by the filing of a June 15, 2012 complaint (# 100.30). This litigation involves three generations of the Bongiorno family as well as multiple Bongiorno entities that own or owned commercial real property, businesses, and related investments principally located on the west side of Stamford, Connecticut. Those assets, acquired by generations of efforts by the Bongiorno family, were at issue in this court trial.

The operative complaint is the July 5, 2018 Second Amended Complaint (# 140.00). The two remaining plaintiffs in this litigation are Marie Bongiorno and her daughter, Bridjay Capone. The operative complaint is one hundred eight pages and contains seventy-two separate counts. The counts are organized in the following categories: (1) oppression of a minority member/shareholder interest, (2) breach of fiduciary duty, (3) fraud, (4) statutory theft pursuant to General Statutes § 52-564, (5) violation of General Statutes § 42-110(b)(a) et seq. (CUTPA), (6) unjust enrichment, (7) dissolution, winding up and distribution of all assets by the plaintiff, Bridjay Capone, as against the defendant, J & G Realty, LLC, (8) dissolution, winding up and distribution of all assets by the plaintiff, Bridjay Capone, as against the defendant, 24 Ardmore Street, LLC and (9) dissolution winding up and distribution of all assets by the plaintiff Bridjay Capone, as against the defendant, 305 West Avenue, LLC. The pleadings addressed to the original complaint and the amended complaints themselves occupied the following numbers: # 100.30, # 105.00, # 166.00, # 183.00, # 212.00, # 220.00, # 221.00, # 222.00, # 228.00, # 230.00, # 232.00, # 234.00, # 236.00, # 238.00, # 248.00, # 271.00, # 300.00, # 315.00, # 330.00, # 334.00, # 336.00-# 345.00, # 348.00-# 355.00, # 374.00, # 416.00, # 417.00, # 428.00, # 430.00, and # 440.00.

To those seventy-two counts all of the defendants, appearing by the same attorney, have filed a July 25, 2018 Answer and Special Defenses (# 445.00). The thirteen Special Defenses are res judicata, collateral estoppel, laches, statute of limitations General Statutes § 52-577, statute of limitations General Statutes § 52-584, prior dismissal of all claims of Marie Bongiorno by court order, statute of limitations General Statutes § 42-110b(f), statute of frauds General Statutes § 52-550, forgiveness of loans, statute of limitations General Statues § 52-581, res judicata by a separate court order, collateral estoppel by a separate court order, and dismissal for lack of standing by separate court order. The pleadings were closed (# 446.00). No party claimed this matter for a jury trial. The first day of the court trial was May 31, 2018 and the evidence concluded on July 24, 2018, the eighteenth day of trial. The parties filed post-trial memoranda in accordance with the court established briefing schedule.

George Bongiorno was born on January 18, 1930 and remained a lifelong resident of Stamford, Connecticut. He was self-employed in the food sales business. Along with his brother, John Bongiorno, they opened the highly successful west side neighborhood supermarket called Bongiorno’s Supermarket in 1957. They later created and built a retail gasoline sales business, a car wash and Bongiorno’s Maxi Discount Liquor near the supermarket. Together the two brothers made many successful real estate purchases in Stamford, Connecticut. George purchased real estate elsewhere in the United States. George Bongiorno was survived by his wife, a co-plaintiff, Marie Palmer Bongiorno, one of the two plaintiffs in this litigation and four children; daughters, co-plaintiff, Bridjay Capone, and Michele B. Nizzardo, and sons, John Bongiorno, Jr. aka John Bongiorno and individual defendant, Frank R. Bongiorno. On his death on March 13, 2016, he was survived by his wife, the above four children, his nine grandchildren, and eight great grandchildren.

Although he was originally a named plaintiff in this litigation, with the assistance of his attorney, Wayne R. Keeney, Attorney Keeney withdrew George Bongiorno from this litigation immediately after he filed his appearance on May 6, 2013 (# 149.00). In addition to the withdrawal of the former plaintiff, George Bongiorno, from this litigation, a number of the entities have been removed as party defendants, including the Bongiorno Family Limited Liability Company, Bongiorno Children’s Joint Venture # 3, JGBBNS Realty, LLC, Three Hundred Seventeen West Avenue, L.L.C., 317 West Avenue, LLC, and Weselleck, LLC (# 430.00). Also removed from this litigation were the individual defendants, John Bongiorno, Jr. and Michele B. Nizzardo (# 417.00). Two individual defendants remain in this litigation. They are Frank R. Bongiorno, who is the co-manager of the defendants, J & G Realty, LLC, 24 Ardmore Street, LLC and 305 West Avenue, LLC and one of the two real property managers. The second individual defendant remaining in this litigation is Maurice A. Nizzardo, husband of Michele B. Nizzardo. He is the other co-manager of the defendants, J & G Realty, LLC, 24 Ardmore Street, LLC and 305 West Avenue, LLC and the second of the two real property managers. The two remaining individual plaintiffs are Marie Bongiorno and her daughter, Bridjay Capone. The two plaintiffs at trial were and are represented by Peter V. Lathouris Law Office, LLC. Remaining as entity defendants at trial were the three LLCs that the plaintiff, Bridjay Capone, is claiming a twenty-five (25.0%) percent membership interest; J & G Realty, LLC, 24 Ardmore Street, LLC and 305 West Avenue, LLC. Those three are commonly referred to in this Memorandum of Decision as "the three LLCs." The remaining five entity defendants are those against whom the plaintiffs claim damages but do not claim an ownership interest. Those remaining five entity defendants are owned or partially owned by other members of the Bongiorno family including the individual defendants, Frank R. Bongiorno and Maurice A. Nizzardo. These five defendant entities that remain as of trial are Harxter Realty, LLC, Enterprise Park, LLC, Bongiorno Gas Island, LLC, Glenbrook Center, LLC, and Bongiorno Brothers, a general partnership. The originally named defendant, Bongiorno Supermarket, Inc., remained a defendant at trial but was not represented by counsel of record. The evidence at trial disclosed that the supermarket was sold in 2004, then became a Bongiorno tenant and closed its operations as of July 31, 2006. The two remaining individual defendants and the remaining defendant business entities other than Bongiorno Supermarket, Inc. were and are represented at trial by attorney Mark F. Katz.

The following legal precepts were applied by this court in rendering this Memorandum of Decision.

"Fraud involves deception practiced in order to induce another to act to her detriment, and which causes that detrimental action ... The four essential elements are (1) that a false representation of fact was made; (2) that the party making the representation knew it to be false; (3) that the representation was made to induce action by the other parties; and (4) that the other party did so act to her detriment." Carr v. Fleet Bank, 73 Conn.App. 593, 595 (2002). Specific acts of fraud must be pleaded, and the mere allegation that a fraud had been perpetrated is insufficient. Maruca v. Phillips, 139 Conn. 79, 81 (1952). The first three elements of fraud must be proven by clear and convincing evidence. Chase Manhattan Mortgage Corporation v. Machado, 83 Conn.App. 183, 188 (2004). "Fraud by nondisclosure, which expands on the first three of these four elements, involves the failure to make a full and fair disclosure of known facts connected with a matter about which a party has assumed to speak, under circumstances in which there is a duty to speak." Pospisil v. Pospisil, 59 Conn.App. 446, 450, cert. denied, 254 Conn. 940 (2000). Some allegations of fraud are addressed to the claimed lack of authority of the January 22, 2012 transfer documents from George Bongiorno to his four children and the failure to notify each children of that transfer as soon as it was made.

"Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages." Gen. Stat. § 52-564. This statute is commonly known as statutory theft. The plaintiffs’ claim for relief claims treble damages in accordance with this statute. "Statutory theft under General Statutes § 52-564 is synonymous with larceny as provided in General Statutes § 53a-119." Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 44 (2000).

"Pursuant to § 52-119, a person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner." Suarez-Negrete v. Trotta, 47 Conn.App. 517, 521 (1998). A claim for money owed on a debt is not sufficient by itself to establish a cause of action for statutory theft. Deming v. Nationwide Mutual Insurance Company, 279 Conn. 745, 772 (2006). "In order to establish a valid claim of statutory theft for money owed, a party must show ownership or...