Weinshel, Wynnick & Associates, LLC v. Bongiorno

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WEINSHEL, WYNNICK & ASSOCIATES, LLC v. MARIE
BONGIORNO ET AL.
(AC 41467)
Keller, Bright and Flynn, Js.
Syllabus
The plaintiff, an accounting firm, sought to recover damages from the defen-
dant G, his wife, the defendant M, and L Co., a limited liability company,
for unpaid accounting services. G was the owner and operator of B Co.,
a liquor store, with which the plaintiff had a long standing service
contract. In 2010, G created L Co., of which he was the sole member and,
in July 2012, he transferred all of his interest in L Co. to M exclusively.
L Co. became the backer for B Co. and M took control over B Co.’s
operations. During this change in ownership, the plaintiff billed B Co.
for accounting services in June, 2012. After the services went unpaid,
the plaintiff commenced the present action against the defendants in
December, 2012. Thereafter, G died during the action’s pendency, and
M, as executrix of G’s estate, was substituted as a defendant. The trial
court rendered judgment in favor of the plaintiff as against L Co., but
not against M, individually or as executrix. On appeal, the plaintiff
claimed, inter alia, that the trial court improperly concluded that M
could not be held personally liable for the plaintiff’s damages pursuant
to the theory of successor liability. Held:
1. The plaintiff could not prevail on its claim that because M failed to obtain
approval from the Liquor Control Commission for her acquisition of G’s
interest in L Co., as required by state regulations, for the time prior to
January 8, 2013, when the commission approved the transfer of the
interest, M was operating B Co. in her individual capacity from August,
2012, until January, 2013, and was liable to the same extent as L Co.
under a theory of successor liability: the plaintiff failed to provide any
authority for its position that a party may seek to enforce a liquor control
regulation by means of a private cause of action, or its claim that under
the applicable statute regulation (§ 30-6-A4), an unapproved transfer of
interest in a corporate backer of a liquor permit exposes the transferee
to personal liability for the debts of the backer corporation, as § 30-6-
A4 was enacted for the benefit of the public, not for the benefit of
individuals engaged in private transactions with regulated entities, the
sale of intoxicating liquors had no substantial relevance to the plaintiff’s
claim for breach of contract for unpaid accounting services, the health
and safety concerns that undergird regulations such as § 30-6-A4 were
not implicated in this case, and even if this court were to recognize a
right to enforce a regulation by means of a private right of action, the
plaintiff was not among the class of persons § 30-6-A4 was intended to
protect, nor was the injury the type that the regulation was designed
to prevent; moreover, to the extent that G and M failed to comply
with § 30-6-A4, such nonfeasance was inconsequential to the plaintiff’s
dealings with L Co., and, thus, even if the transfer was invalid, that basis
alone was insufficient to hold M personally liable for the plaintiff’s
damages.
2. The trial court improperly rendered judgment in favor of M in her capacity
as executrix of G’s estate on the basis of the statute (§ 52-599 [b])
concerning the survival of a cause of action when a party thereto dies,
and its determination that because the substitution of M, as executrix,
for G was untimely, it had discretion to render judgment in favor of M
in her capacity as executrix: pursuant to the plain and unambiguous
language of § 52-599 (b), the plaintiff had one year, following notice of
the death of G, in which to apply for an order to substitute G with a
representative of his estate, and because the record clearly indicated
that an application to substitute a representative of the estate of the
deceased defendant, G, was made within one year, it was timely and
the trial court’s finding to the contrary was clearly erroneous; moreover,
because the motion to cite in a temporary administratrix of G’s estate
was timely, the court did not have discretion to render judgment in
favor of M, executrix, on that basis, and should have rendered judgment
in favor of the plaintiff accordingly.
Argued March 18—officially released September 17, 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 exec-
utrix of the estate of the defendant George Bongiorno,
was substituted as a defendant; subsequently, the mat-
ter 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; judg-
ment directed.
Andrew M. McPherson, for the appellant (plaintiff).
Peter V. Lathouris, for the appellees (defendants).
Opinion
KELLER, J. The plaintiff, Weinshel, Wynnick & Asso-
ciates, 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, exec-
utrix),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) ren-
dered 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 plain-
tiff 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 business-
man 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 Dis-
count 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 ser-
vices 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 Bongi-
orno 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 backer4 for Bon-
giorno Maxi Discount Liquors to the newly formed
Marie’s Liquors, LLC.5 Despite the change in proprietor-
ship, the business continued to operate under the name
Bongiorno Maxi Discount Liquors. On October 14, 2010,
George Bongiorno transferred all ‘‘right, title and inter-
est’’ 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 Bongi-
orno 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 Bongi-
orno’s interest in Marie’s Liquor, LLC, to Marie Bongi-
orno 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 ‘‘applica-
tion for transfer of interest within a limited liability
company’’ to the Liquor Control Division. The applica-
tion indicated that Marie Bongiorno was acquiring all
interest in Marie’s Liquors, LLC, which was now the
backer for Bongiorno Maxi Discount Liquors. On Janu-
ary 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 Bon-
giorno 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 com-
plaint, 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 ref-
eree, during which one witness, Michael Weinshel, testi-
fied. Weinshel testified that he was a managing member
of the plaintiff and had performed accounting services
for Bongiorno Maxi Discount Liquors and the Bongi-
orno family for many years dating back to 1971. Through
Weinshel’s testimony, the plaintiff introduced into evi-
dence 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 Dis-
count Liquors’ checking account; and Marie Bongi-
orno’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 con-
tract claim against George Bongiorno, it nonetheless
rendered judgment in favor of Marie Bongiorno, execu-
trix, 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 execu-
trix . . . 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 litiga-
tion, 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 pro-
bate appeal are Michele B. Nizzardo and Frank Bongi-
orno, 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 satisfy the
requirements of judicial economy and to bring to an
end this relatively simple $36,075 accounting services
collection lawsuit, the court will exercise its discretion
and find no liability or damages against the decedent’s
estate of George Bongiorno.’’
The court also found in favor of Marie Bongiorno on
the plaintiff’s claim of successor liability. In so doing,
the court acknowledged that, in accordance with the
Regulations of Connecticut State Agencies, a permittee
may be held strictly liable for conduct related to her
permitted premises. The court found that the plaintiff
failed to provide any authority, however, for the propo-
sition that such regulations, which are related to the
sale of intoxicating liquors, allowed the court to disre-
gard the corporate structure of a business and hold its
individual members personally liable for the company’s
contractual obligations. Therefore, although the court
found that Marie’s Liquors, LLC, was liable for the debts
incurred by George Bongiorno pursuant to the plaintiff’s
claim of successor liability,10 it concluded that there
was inadequate legal support for concluding that Marie
Bongiorno could be held personally liable under the
same theory. This appeal followed.
I
The plaintiff first argues on appeal that the court
improperly concluded that Marie Bongiorno could not
be held personally liable for the plaintiff’s damages
pursuant to a theory of successor liability. Specifically,
the plaintiff claims that Marie Bongiorno failed to obtain
approval from the Liquor Control Division for her acqui-
sition of George Bongiorno’s interest in Marie’s Liquors,
LLC, as required by the Regulations of Connecticut
State Agencies, until January 8, 2013.11 The plaintiff
contends that, in the absence of approval from the
Liquor Control Division, Marie Bongiorno was
operating Bongiorno Maxi Discount Liquors in her indi-
vidual capacity from August, 2012, until January, 2013,
and is liable to the same extent as Marie’s Liquor’s, LLC,
under a theory of successor liability, for the plaintiff’s
damages. We are not persuaded and, accordingly, affirm
the judgment of the trial court.
We begin by setting forth the standard of review and
legal principles that guide our analysis. Because the
court’s judgment was premised on the legal conclusion
that Marie Bongiorno could not be held personally
responsible for the plaintiff’s damages under a theory
of successor liability, our review is plenary. ‘‘This court
affords plenary review to conclusions of law reached
by the trial court. . . . Under plenary review, we must
decide whether the trial court’s conclusions of law are
legally and logically correct and find support in the
record.’’ (Internal quotation marks omitted.) Joyner v.
Simkins Industries, Inc., 111 Conn. App. 93, 97, 957
A.2d 882 (2008).
With respect to the plaintiff’s claim of successor lia-
bility against Marie Bongiorno, ‘‘[t]he general rule is
that where a corporation sells or otherwise transfers
all of its assets, its transferee is not liable for the debts
and liabilities of the transferor, and that [the] liability of
a new corporation for the debts of another corporation
does not result from the mere fact that the former is
organized to succeed the latter. . . . This general rule
of corporate nonliability serves, in effect, as a security
blanket that protects corporate successors from
unknown or contingent liabilities of their predeces-
sors. . . .
‘‘The rule is nonetheless subject to four well estab-
lished exceptions. A successor . . . may be held liable
for the debts and liabilities of its predecessor when
there is an express or implied assumption of liability,
the transaction amounts to a consolidation or merger,
the transaction is fraudulent, or the transferee corpora-
tion is a mere continuation or reincarnation of the old
corporation.’’ (Internal quotation marks omitted.) Rob-
bins v. Physicians for Women’s Health, LLC, 311 Conn.
707, 715, 90 A.3d 925 (2014).
‘‘There are two theories used to determine whether
the purchaser is merely a continuation of the selling
corporation. Under the common law mere continuation
theory, successor liability attaches when the plaintiff
demonstrates the existence of a single corporation after
the transfer of assets, with an identity of stock, stock-
holders, and directors between the successor and pre-
decessor corporations. . . . Under the continuity of
enterprise theory, a mere continuation exists if the suc-
cessor maintains the same business, with the same
employees doing the same jobs, under the same supervi-
sors, working conditions, and production processes,
and produces the same products for the same custom-
ers.’’ (Citations omitted; internal quotation marks omit-
ted.) Chamlink Corp. v. Merritt Extruder Corp., 96
Conn. App. 183, 187–88, 899 A.2d 90 (2006).
In its memorandum of decision, the court found that
the plaintiff had proven its claim of successor liability
against Marie’s Liquors, LLC, under both the mere con-
tinuation theory and the continuity of enterprise theory.
It found that Marie’s Liquors, LLC, was the current
backer for the liquor permit. The former backer was
Bongiorno Maxi Discount Liquors. Despite the change
in proprietorship, the store continued to operate under
the name ‘‘Bongiorno Maxi Discount Liquors.’’ More-
over, ‘‘[t]he same store manager, the same store employ-
ees, the same business location, the same landlord, the
same shelving, and the former liquor supply were all
continued without cessation. Most importantly the
same liquor permit and liquor permit number was trans-
ferred. There was no need to go through a full liquor
permit process, which would have required showing the
source of purchase funds, source of business capital,
background information, letters of recommendation,
and the like since this was a continuation of the Bongi-
orno liquor business from one family member to
another.’’
Although the parties stipulated that, following the
July 31, 2012 purchase and sale agreement, Marie Bongi-
orno took control of the liquor store and was the sole
member of Marie’s Liquors, LLC, the court concluded
that she was shielded from individual liability in light
of the corporate structure of the business. Moreover,
the court noted that the plaintiff did not plead or offer
sufficient evidence to pierce the corporate veil of
Marie’s Liquors, LLC, which would, thus, expose her to
liability for the company’s debts. As such, the court
concluded that the plaintiff failed to provide adequate
legal authority to support its claim of successor liability
against Marie Bongiorno.
The plaintiff argues on appeal that the court improp-
erly concluded that Marie Bongiorno could not be held
liable because it failed to consider the fact that she did
not obtain approval from the Liquor Control Division
prior to her acquisition of George Bongiorno’s interest
in Marie’s Liquors, LLC. Thus, for the period between
August, 2012, and January, 2013, the plaintiff contends
that Marie Bongiorno was operating the liquor store in
her individual capacity. In support of this contention,
the plaintiff cites § 30-6-A4 of the Regulations of Con-
necticut State Agencies, which provides in relevant part:
‘‘No transfer by sale or otherwise of any of the shares
of stock of the backer corporation, or the corporation
which has a financial interest in the backer, may be
made or any additional shares of stock issued without
notice to and approval by the department . . . .’’ The
plaintiff claims that this regulation stands for the propo-
sition that an unapproved transfer of interest in a corpo-
rate backer of a liquor permit exposes the transferee
to personal liability for the debts of the backer corpora-
tion. We do not agree.
In arguing that the July 31, 2012 purchase and sale
agreement was invalid pursuant to the language of § 30-
6-A4, the plaintiff has provided this court with no
authority for the position that a party may seek to
enforce a liquor control regulation by means of a private
cause of action. Further, the plaintiff has failed to
address the factors set forth in Napoletano v. CIGNA
Healthcare of Connecticut, Inc., 238 Conn. 216, 249,
680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S.
Ct. 1106, 137 L. Ed. 2d 308 (1997), overruled in part on
other grounds by Batte-Holmgren v. Commissioner of
Public Health, 281 Conn. 277, 284–85, 914 A.2d 996
(2007). In Napoletano, our Supreme Court held that a
party asserting the existence of an implicit private rem-
edy must satisfy an exacting three part test: ‘‘First, is
the plaintiff one of the class for whose . . . benefit the
statute was enacted . . . ? Second, is there any indica-
tion of legislative intent, explicit or implicit, either to
create such a remedy or to deny one? . . . Third, is
it consistent with the underlying purposes of the legisla-
tive scheme to imply such a remedy for the plaintiff?’’
(Internal quotation marks omitted.) Id.
‘‘Additionally, in order to overcome the presumption
that no private right of action is implied in the statutory
enactment, the plaintiff must demonstrate that no factor
weighs against affording an implied right of action and
[that] the balance of factors weighs in [the plaintiffs’]
favor. . . . In examining these three factors, each is
not necessarily entitled to equal weight. Clearly, these
factors overlap to some extent with each other, in that
the ultimate question is whether there is sufficient evi-
dence that the legislature intended to authorize [the
plaintiff] to bring a private cause of action despite hav-
ing failed expressly to provide for one.’’ (Internal quota-
tion marks omitted.) D’Attilo v. Statewide Grievance
Commission, Superior Court, judicial district of Hart-
ford, Docket No. CV-XX-XXXXXXX (July 18, 2016), aff’d,
329 Conn. 624, 188 A.3d 727 (2018).
Our review of existing precedent reveals that the
Liquor Control Act, General Statutes §§ 30-1 through 30-
116, and the regulations promulgated therefrom were
enacted for the benefit of the public, not for the benefit
of individuals engaged in private transactions with regu-
lated entities. See Eder Bros., Inc. v. Wine Merchants
of Connecticut, Inc., 275 Conn. 363, 377, 880 A.2d 138
(2005) (‘‘[i]ndeed, when a plaintiff has brought an action
challenging the imposition of certain provisions of the
Liquor Control Act due to an economic harm to their
business, we have explained that the purpose of that
act is to regulate the sale and consumption of alcohol
for the protection of the public, not for the economic
benefit of a particular wholesaler’’); see also All Brand
Importers, Inc. v. Department of Liquor Control, 213
Conn. 184, 211, 567 A.2d 1156 (1989) (‘‘[i]t is fair to say
that the liquor control laws are to be enforced for the
benefit of the public and not for the economic benefit
of the plaintiff’’). Additionally, we note that the sale of
intoxicating liquors has no substantial relevance to the
gravamen of the plaintiff’s claim. This is a breach of
contract action for unpaid accounting services. The
health and safety concerns that undergird regulations
such as § 30-6-A4 are not implicated in this case. Accord-
ingly, even if this court were to recognize a right to
enforce a regulation by means of a private right of
action, the plaintiff is not among the class of persons
§ 30-6-A4 was intended to protect nor is the injury
alleged of the type that the regulation was designed to
prevent. Cf. Gore v. People’s Savings Bank, 235 Conn.
360, 375–76, 665 A.2d 1341 (1995) (‘‘It is well established
that [i]n order to establish liability as a result of a
statutory violation, a plaintiff must satisfy two condi-
tions. First, the plaintiff must be within the class of
persons protected by the statute. . . . Second, the
injury must be of the type which the statute was
intended to prevent.’’ [Citations omitted; internal quota-
tion marks omitted.]).
Moreover, even if we assume that the July 31, 2012
transfer was invalid until it was approved by the Liquor
Control Division, the effect would have been George
Bongiorno retaining his status as sole member of
Marie’s Liquors, LLC, during the interim. Concomi-
tantly, Marie Bongiorno would have had no interest in
the company. In that circumstance, we could perceive
an argument that during such time Marie Bongiorno
did not have the authority to act on the company’s
behalf and might be personally liable for any obligations
she incurred. See Rich-Taubman Associates. v. Com-
missioner of Revenue Services, 236 Conn. 613, 619, 674
A.2d 805 (1996) (‘‘To avoid personal liability, an agent
must disclose to the party with whom he deals both
the fact that he is acting in a representative capacity
and the identity of his principal. . . . Accordingly, the
agent is not liable where, acting within the scope of his
authority, he contracts with a third party for a known
principal.’’ [Citations omitted; internal quotation marks
omitted.]). It does not follow, however, that if Marie
Bongiorno was operating the business without any
interest in Marie’s Liquors, LLC, she should be held
personally responsible for the company’s preexisting
debts, such as those owed to the plaintiff. In this
instance, the plaintiff performed accounting services
pursuant to a longstanding agreement it had with
George Bongiorno. The plaintiff’s damages were
incurred before the parties executed the allegedly unau-
thorized transfer of interest in Marie’s Liquors, LLC, on
July 31, 2012. To the extent that George and Marie
Bongiorno failed to comply with § 30-6-A4, such nonfea-
sance was inconsequential to the plaintiff’s dealings
with the liquor store. Thus, even if we were to conclude
that the July 31, 2012 purchase and sale agreement was
invalid, this basis alone is insufficient to hold Marie
Bongiorno personally liable for the plaintiff’s damages.
In sum, the plaintiff has failed to convince us that
the court improperly applied the law when it concluded
that Marie Bongiorno was not personally liable for the
plaintiff’s damages. We, therefore, conclude that the
court properly rendered judgment in favor of Marie
Bongiorno on this claim.
II
The plaintiff’s second claim on appeal is that the
court improperly rendered judgment in favor of Marie
Bongiorno, executrix, on the basis of § 52-599 (b). In
particular, the plaintiff argues that the court erred in
finding that the substitution of Marie Bongiorno, execu-
trix, for the deceased defendant George Bongiorno, was
untimely and, thus, improperly concluded that it had
discretion to render judgment in favor of Marie Bongi-
orno, executrix. We agree with the plaintiff that the
court improperly interpreted § 52-599 (b) and, accord-
ingly, reverse the judgment in favor of Marie Bongi-
orno, executrix.
‘‘With regard to the trial court’s factual findings, the
clearly erroneous standard of review is appropriate.
. . . A factual finding is clearly erroneous when it is
not supported by any evidence in the record or when
there is evidence to support it, but the reviewing court
is left with the definite and firm conviction that a mis-
take has been made. . . . Simply put, we give great
deference to the findings of the trial court because of
its function to weigh and interpret the evidence before
it and to pass upon the credibility of witnesses. . . .
‘‘The trial court’s legal conclusions are subject to
plenary review. [W]here the legal conclusions of the
court are challenged, we must determine whether they
are legally and logically correct and whether they find
support in the facts set out in the memorandum of
decision . . . .’’ (Internal quotation marks omitted.)
Miller v. Guimaraes, 78 Conn. App. 760, 766–67, 829
A.2d 422 (2003).
‘‘Although at common law the death of a sole plaintiff
or defendant abated an action . . . by virtue of § 52-
599, Connecticut’s right of survival statute, a cause of
action can survive if a representative of the decedent’s
estate is substituted for the decedent. It is a well estab-
lished principle, however, that [d]uring the interval . . .
between the death and the revival of the action by the
appearance of the executor or administrator, the cause
has no vitality. The surviving party and the court alike
are powerless to proceed with it. . . . Moreover, the
language of § 52-599, and its predecessor, has been con-
strued to mean that the fiduciary may be substituted
as a matter of right within the time prescribed by the
statute, but the court in its discretion may permit the
fiduciary to be substituted after the time described for
good cause shown. . . . Statutes in derogation of the
common law are remedial in nature and are to be liber-
ally construed to implement their remedial purpose.’’
(Citations omitted; internal quotation marks omitted.)
Negro v. Metas, 110 Conn. App. 485, 497–98, 955 A.2d
599, cert. denied, 289 Conn. 949, 960 A.3d 1037 (2008).
Section 52-599 (b), provides that: ‘‘A civil action or
proceeding shall not abate by reason of the death of
any party thereto, but may be continued by or against
the executor or administrator of the decedent. If a party
plaintiff dies, his executor or administrator may enter
within six months of the plaintiff’s death or at any time
prior to the action commencing trial and prosecute the
action in the same manner as his testator or intestate
might have done if he had lived. If a party defendant
dies, the plaintiff, within one year after receiving writ-
ten notification of the defendant’s death, may apply to
the court in which the action is pending for an order
to substitute the decedent’s executor or administrator
in the place of the decedent, and, upon due service and
return of the order, the action may proceed.’’ (Empha-
sis added.)
It is evident from the plain and unambiguous language
of this statute, that the plaintiff had one year, following
written notice of the death of George Bongiorno, in
which to apply for an order to substitute the deceased
party with the representative of his estate.12 Although
the court made no specific finding as to when written
notice of George Bongiorno’s death was provided to
the plaintiff, it is undisputed that he died on March 13,
2016. Recognizing that this date was the earliest point
at which such notice could have been provided, the
record clearly indicates that the application to substi-
tute the representative of the estate of George Bongi-
orno for the deceased defendant was made within
one year.
As stated previously in this opinion, the plaintiff filed
a motion to cite in Gottlin, the temporary adminstratrix
of the estate of George Bongiorno on December 23,
2016.13 This motion was granted on January 9, 2017.
Thus, given the fact that the plaintiff’s motion was filed
within one year of George Bongiorno’s death, it was
undoubtedly timely pursuant to § 52-599 (b), irrespec-
tive of when written notice of his death was provided
to the plaintiff, and the court’s finding to the contrary
was clearly erroneous. Further, because the plaintiff’s
motion was timely, the court did not have discretion
to render judgment in favor of Marie Bongiorno, execu-
trix, on this basis. Dorsey v. Honeyman, 141 Conn. 397,
400, 107 A.2d 260 (1954) (‘‘the plaintiff [has] an absolute
right to have the representative of a deceased defendant
cited in within one year after the defendant’s death,
and thereafter it is within the power of the court to
order him cited in if good cause is shown for the delay’’).
Indeed, having found that the plaintiff had established
all the elements of its breach of contract claim against
George Bongiorno, for which Marie Bongiorno, execu-
trix, is liable pursuant to § 52-599 (a), it should have
rendered judgment in favor of the plaintiff accordingly.
The judgment in favor of Marie Bongiorno, executrix,
is reversed and the case is remanded with direction to
render judgment in favor of the plaintiff as against Marie
Bongiorno, executrix; the judgment is affirmed in all
other respects.
In this opinion the other judges concurred.
1
The defendants Marie’s Liquors, LLC, formerly Bongiorno Maxi Discount
Liquors, and Samuel Starks, are also parties to this appeal; however, the
plaintiff has appealed only from the portion of the judgment related to
its claims against the defendants, Marie Bongiorno and Marie Bongiorno,
executrix. Accordingly, in this opinion all references to the defendants are
to the defendants, Marie Bongiorno and Marie Bongiorno, executrix.
2
At trial, several ‘‘engagement letters’’ were admitted that evidenced a
contract between the plaintiff and George Bongiorno. These letters, dated
January 31, 2003, January 1, 2005, and January 1, 2010, provided that the
parties’ agreement would ‘‘remain in effect for future periods until changed
by either party.’’ The court found that no evidence was presented to establish
a change or modification of the parties’ agreement.
3
George Bongiorno was the original permittee and backer for the
liquor permit.
4
General Statutes § 30-1 (4) provides: ‘‘ ‘Backer’ means, except in cases
where the permittee is himself the proprietor, the proprietor of any business
or club, incorporated or unincorporated, engaged in the manufacture or
sale of alcoholic liquor, in which business a permittee is associated, whether
as employee, agent or part owner.’’
5
Letters admitted into evidence at trial indicate that, at this time, George
Bongiorno was no longer the permittee for the store’s liquor license, having
been replaced by Frank Bongiorno. George Bongiorno was still named as
the backer.
6
At trial, the parties stipulated that Marie Bongiorno took over the liquor
store in August, 2012, effectively disregarding the October 14, 2010 transfer
of all of George Bongiorno’s ‘‘membership units’’ to Marie Bongiorno.
7
The court found that George Bongiorno died on March 13, 2016.
8
As against Marie’s Liquors, LLC, the court also awarded prejudgment
and postjudgment interest on this amount pursuant to General Statutes § 37-
3a (a). As of the date of the memorandum of decision, the total amount
due was $56,638.
9
General Statutes § 52-599 (a) provides: ‘‘A cause or right of action shall
not be lost or destroyed by the death of any person, but shall survive in
favor of or against the executor or administrator of the deceased person.’’
10
Specifically, the court found that the plaintiff had presented ‘‘persuasive
evidence of successor liability under the continuity of enterprise theory
and the theory that Marie’s Liquors, LLC, [was] a mere continuation or
reincarnation of the old business.’’ Therefore, although Marie’s Liquors, LLC,
did not have a contract with the plaintiff for the provision of accounting
services, it could be held liable as the successor to George Bongiorno, with
whom the plaintiff had such a contract. On appeal, neither party challenges
the court’s findings as to the claim against Marie’s Liquors, LLC.
11
The defendants argue that the plaintiff failed to preserve this claim on
appeal. Although we acknowledge that the court did not expressly address
§ 30-6-A4 of the Regulations of Connecticut State Agencies, our review of
the record reveals that the court acknowledged the general precept that a
permittee and backer are strictly liable for any legal violations related to
their permitted premises. ‘‘Given that the sine qua non of preservation is
fair notice to the trial court;’’ (internal quotation marks omitted) MacDermid,
Inc. v. Leonetti, 328 Conn. 726, 738 n.7, 183 A.3d 611 (2018); we conclude
that the plaintiff adequately preserved its claim, despite the fact that it was
not asserted as distinctly and clearly as it could have been. See Outlaw v.
Meriden, 43 Conn. App. 387, 390, 682 A.2d 1112, cert. denied, 239 Conn.
946, 686 A.2d 122 (1996).
12
Accordingly, we note that the court incorrectly applied the six month
time limitation to this action. It is clear from the language of the statute
that the six month limitation applies only when it is a party plaintiff that
has died; in cases involving deceased defendants, such as this case, the one
year time limitation applies. This error alone is not dispositive, however,
as we must address whether the plaintiff’s application to substitute the
representative of the estate of George Bongiorno for the deceased defendant
was nonetheless filed within one year of the written notice of his death.
13
We note that the motion to cite in Marie Bongiorno was filed on August
22, 2017, more than a year after the death of George Bongiorno. For the
purposes of § 52-599 (b) however, the December 23, 2016 motion satisfied
the statutory requirement of an application ‘‘for an order to substitute the
decedent’s executor or administrator in the place of the decedent,’’ and,
thus, the date on which the plaintiff sought to cite in Marie Bongiorno,
executrix, after she replaced the temporary administratrix, Gottlin, on May
15, 2017, is immaterial as to this issue on appeal.