Bongiorno v. J & G Realty, LLC

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GEORGE BONGIORNO ET AL. v.
J & G REALTY, LLC, ET AL.
(AC 42790)
(AC 42791)
Alexander, Clark and Lavine, Js.
Syllabus
The plaintiffs, M and her daughter B, sought, inter alia, the dissolution and
winding up of the defendant businesses, which were established by M’s
husband and his brother. At the time of the commencement of the
action, certain of the defendant businesses were held in equal shares
by B and her three siblings. The defendants filed a motion to dismiss
M’s claims for lack of subject matter jurisdiction, alleging that she did
not have an ownership interest in any of the defendant businesses and,
accordingly, that she lacked standing to bring the action. The trial court
granted the defendants’ motion. Thereafter, B amended the complaint
and cited in M as a plaintiff. In the amended complaint, M and B alleged,
inter alia, claims of oppression of a minority member, breach of fiduciary
duty, unjust enrichment, and fraud against the defendant businesses
and their defendant managers, F and N. B also sought the dissolution
of the defendant businesses of which she was a member. M alleged that
she had standing to bring the action because she had, inter alia, an
economic interest in certain of the defendant businesses. The trial court
rendered judgment in favor of the defendants on M’s claims, stating that
they were barred by res judicata, that there was no proof that any
financial distributions had been made to the members or partners of
the defendant businesses or that any of the defendant businesses had
been dissolved that would entitle M to a distribution of the assets, and
that she lacked standing to maintain the action in an individual capacity
because any claim she might have could be asserted only in a derivative
action. The trial court further found that B lacked standing in her individ-
ual capacity to maintain her claims for breach of fiduciary duty, except
with respect to her claim that the defendant managers had failed to
provide her with access to the books and records of certain of the
defendant businesses, a claim that she abandoned on appeal, and that
she had failed to demonstrate that the defendant managers engaged in
any act of fraud or self-dealing or had violated their fiduciary duties.
On the plaintiffs’ appeals to this court, held:
1. With respect to M’s claims that the trial court erred by disposing of her
claims for breach of fiduciary duty on the basis of res judicata and by
finding that she lacked standing to directly sue for breach of fiduciary
duty, this court could not grant M any practical relief, and her appeal
was dismissed as moot: although, on appeal, M acknowledged all four
of the independent bases that the trial court articulated for rendering
judgment in favor of the defendants on each of her claims, she failed
to adequately brief her challenges to the trial court’s determinations
that no distributions had been made or dissolutions had occurred that
would entitle a holder of an economic interest to a distribution, and,
therefore, she abandoned those claims; accordingly, because M failed
to challenge each independent basis for the trial court’s decision, this
court lacked subject matter jurisdiction and did not reach the merits
of M’s claims.
2. With respect to B’s claim that the trial court erred when it failed to shift
the burden to F and N to prove good faith and fair dealing regarding
her breach of fiduciary duty claims, this court could not grant any
practical relief, and her appeal as to that issue was dismissed as moot:
B failed to appeal from the trial court’s conclusion that she did not have
standing to sue in her individual capacity, which was an alternative
basis for the trial court’s judgment on her claim; accordingly, because
M failed to challenge each independent basis for the trial court’s decision,
this court lacked subject matter jurisdiction.
3. This court declined to exercise its supervisory authority with respect to
B’s claims of oppression of a minority member and for the dissolution
and winding up of certain of the defendant businesses and, accordingly,
affirmed the judgment of the trial court: the Connecticut Uniform Limited
Liability Company Act (CULLCA) (§ 34-243 et seq.) did not apply to B’s
claims because it applies only to an action commenced, a proceeding
brought or a right accrued after July 1, 2017, and B commenced this
action in 2012 and failed to present evidence of any events occurring
after July 1, 2017, to support her claims; accordingly, contrary to B’s
assertion, the standard for analyzing oppressive conduct under CULLCA
that was set forth in Manere v. Collins (200 Conn. App. 356) did not
apply to her claims.
Argued October 19, 2021—officially released March 22, 2022
Procedural History
Action seeking, inter alia, the dissolution of the defen-
dant entities, and other relief, brought to the Superior
Court in the judicial district of Stamford-Norwalk,
where the court, Truglia, J., granted the defendants’
motion to dismiss the claims of the plaintiff Marie Bon-
giorno; thereafter, the plaintiff Marie Bongiorno was
cited in as a plaintiff; subsequently, the matter was tried
to the court, Hon. Kevin Tierney, judge trial referee;
judgment for the defendants, from which the plaintiffs
filed separate appeals to this court. Appeal dismissed
in Docket No. 42790; appeal dismissed in part, judg-
ment affirmed in Docket No. 42791.
Danielle J. B. Edwards, with whom, on the brief,
was Peter V. Lathouris, 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.).
Opinion
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 busi-
nesses 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 deal-
ing 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 his-
tory are relevant to our resolution of these appeals. The
businesses at issue grew out of a partnership initiated bet-
ween now deceased brothers George Bongiorno (George)
and John Bongiorno when they opened Bongiorno Super-
market in Stamford in 1957. The brothers later pur-
chased commercial properties and established a retail
gas station, a car wash, a liquor store, and other busi-
nesses 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 chil-
dren: 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 inter-
ests 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 Bon-
giorno 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 inter-
est 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 with-
drew 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 enti-
ties that would enable her to bring an action for dissolu-
tion 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
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), Gen-
eral Statutes § 42-110a et seq.5 Bridjay also sought the
dissolution of the three LLCs. The remaining individual
defendants were Frank and Maurice (individual defen-
dants), 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 post-
trial brief, the plaintiffs claimed that they had identified
eight separate ‘‘suspicious’’ transactions, which included
(1) awarding management fees to the individual defen-
dants, (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 man-
aged by the individual defendants, and Bongiorno Gas
Island, LLC, (6) failing to collect loans due from Bongi-
orno 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
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 dis-
tinct’ ’’ 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 vio-
lated his fiduciary duty. The court, therefore, rendered
judgment in favor of the defendants.
Thereafter, the plaintiffs filed a motion for articula-
tion, 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 failed to challenge each independent basis
for the trial court’s decision, her appeal is moot.
This appeal implicates two important doctrines of
justiciability: standing and mootness. ‘‘[J]usticiability
comprises several related doctrines, namely, standing,
ripeness, mootness and the political question doctrine,
that implicate a court’s subject matter jurisdiction and
its competency to adjudicate a particular matter.’’
(Internal quotation marks omitted.) Cunningham v.
Cunningham, 204 Conn. App. 366, 381, 254 A.3d 330(2021). ‘‘[O]nce the question of the court’s subject mat-
ter jurisdiction is raised, it must be resolved before the
court addresses the merits of the plaintiff’s claims.’’
Sosa v. Robinson, 200 Conn. App. 264, 276, 239 A.3d
1228 (2020); see also Kelly v. Albertsen, 114 Conn. App.
600, 607, 970 A.2d 787 (2009) (‘‘[a]s soon as the jurisdic-
tion of the court to decide an issue is called into ques-
tion, all other action in the case must come to a halt
until such a determination is made’’ (internal quotation
marks omitted)).
‘‘Standing is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless he [or she] has, in an individual or
representative capacity, some real interest in the cause
of action, or a legal or equitable right, title or interest
in the subject matter of the controversy. . . . [If] a
party is found to lack standing, the court is consequently
without subject matter jurisdiction to determine the
cause.’’ (Internal quotation marks omitted.) Hilario’s
Truck Center, LLC v. Rinaldi, 183 Conn. App. 597, 603,
193 A.3d 683, cert. denied, 330 Conn. 925, 194 A.3d 776(2018). ‘‘Standing requires no more than a colorable
claim of injury; a [party] ordinarily establishes . . .
standing by allegations of injury [that he or she has
suffered or is likely to suffer]. Similarly, standing exists
to attempt to vindicate arguably protected interests.’’
(Internal quotation marks omitted.) Wilcox v. Webster
Ins., Inc., 294 Conn. 206, 214, 982 A.2d 1053 (2009).
‘‘The question of standing does not involve an inquiry
into the merits of the case.’’ (Internal quotation marks
omitted.) State v. Gaston, 201 Conn. App. 276, 281,
241 A.3d 209, cert. denied, 335 Conn. 981, 241 A.3d
705 (2020).
Although we recognize the trial court’s important
obligation to decide issues regarding standing prior to
addressing the merits of a claim, we also are mindful
of this court’s obligation to consider its own subject
matter jurisdiction and whether we can afford a party
any practical relief. In other words, we also must deter-
mine whether an appeal is moot. ‘‘Mootness is a ques-
tion of justiciability that must be determined as a thresh-
old matter because it implicates [this] court’s subject
matter jurisdiction . . . . A determination regarding
. . . [this court’s] subject matter jurisdiction is a ques-
tion of law . . . [and, therefore] our review is plenary.
. . . [I]t is not the province of appellate courts to decide
moot questions, disconnected from the granting of
actual relief or from the determination of which no
practical relief can follow. . . . In determining moot-
ness, the dispositive question is whether a successful
appeal would benefit the plaintiff or defendant in any
way.’’ (Citations omitted; internal quotation marks omit-
ted.) Fairfield Shores, LLC v. DeSalvo, 205 Conn. App.
96, 104–105, 256 A.3d 716 (2021).
‘‘Where an appellant fails to challenge all bases for
a trial court’s adverse ruling on [her] claim, even if this
court were to agree with the appellant on the issues
that [she] does raise, we still would not be able to
provide [her] any relief in light of the binding adverse
finding[s] [not raised] with respect to those claims. . . .
Therefore, when an appellant challenges a trial court’s
adverse ruling, but does not challenge all independent
bases for that ruling, the appeal is moot.’’ (Citation
omitted; internal quotation marks omitted.) State v. Les-
ter, 324 Conn. 519, 526–27, 153 A.3d 647 (2017); see
also Hartford v. CBV Parking Hartford, LLC, 330 Conn.
200, 210, 192 A.3d 406 (2018) (‘‘if there exists an unchal-
lenged, independent ground to support a decision, an
appeal from that decision would be moot, as this court
could not afford practical relief even if the appellant
were to prevail on the issue raised on appeal’’).
Given the facts and circumstances of the present
case, we resolve Marie’s appeal on the basis of appellate
mootness. This appeal presents two justiciability ques-
tions that implicate both this court’s and the trial court’s
subject matter jurisdiction, and we are cognizant of
the importance of resolving issues of standing prior to
addressing the merits of a plaintiff’s claims. In the pres-
ent case, however, the issue of Marie’s standing as the
holder of an economic interest was not clearly analyzed
or decided by the trial court in its memorandum of
decision. Because Marie failed to challenge each inde-
pendent basis for the trial court’s decision, we conclude
that this court lacks subject matter jurisdiction. Accord-
ingly, we do not reach the merits of her claims and
dismiss her appeal as moot.
As previously stated, the trial court articulated four
independent bases for rendering judgment in favor of
the defendants on each of Marie’s claims. In her brief,
Marie challenges only the first and fourth grounds for
the court’s decision. Although she acknowledges the
second and third grounds for the court’s decision, she
failed to brief these issues adequately, and, therefore,
we deem those claims abandoned.8 ‘‘We repeatedly have
stated that [w]e are not required to review issues that
have been improperly presented to this court through
an inadequate brief. . . . Analysis, rather than mere
abstract assertion, is required in order to avoid aban-
doning an issue by failure to brief the issue properly.’’
(Internal quotation marks omitted.) Traylor v. State,
332 Conn. 789, 804–805, 213 A.3d 467 (2019). ‘‘Whe[n]
an issue is merely mentioned, but not briefed beyond
a bare assertion of the claim, it is deemed to have been
waived. . . . In addition, mere conclusory assertions
regarding a claim, with no mention of relevant authority
and minimal or no citations from the record, will not
suffice.’’ (Internal quotation marks omitted.) Manere v.
Collins, 200 Conn. App. 356, 358 n.1, 241 A.3d 133 (2020);
see also Barros v. Barros, 309 Conn. 499, 503 n.4, 72
A.3d 367 (2013) (claim deemed abandoned when defen-
dant merely referenced actions by trial court but failed
to provide any legal analysis).
The trial court had determined that no distributions
had been made and no dissolution had occurred that
would entitle a holder of an economic interest to a
distribution. Because Marie has not challenged these
independent bases for the court’s decision, we cannot
grant her any practical relief, and, thus, we dismiss her
appeal as moot.
II
AC 42791
We now turn to Bridjay’s appeal in AC 42791. At
trial, the parties agreed that Bridjay holds a 25 percent
interest in the three LLCs. The parties also agreed that,
as managers of the three LLCs, Frank and Maurice owed
a fiduciary duty to the members of the three LLCs,
including Bridjay. On appeal, Bridjay first claims that
the trial court erred by failing to shift the burden to
Frank and Maurice to prove good faith and fair dealing
regarding her breach of fiduciary duty claims. Second,
she argues that this court should exercise its supervi-
sory authority to reverse the judgment of the trial court
as to her claims of oppression of a minority member.
We conclude that Bridjay’s first claim is moot. With
respect to her second claim, we decline to exercise
our supervisory authority and, accordingly, affirm the
judgment of the trial court.
A
Bridjay first claims that the trial court erred when it
failed to shift the burden to Frank and Maurice to prove
good faith and fair dealing on her breach of fiduciary
duty claims. We conclude that her appeal as to this issue
is moot because she failed to challenge all independent
bases for the trial court’s decision in favor of Frank
and Maurice.
As discussed in part I of this opinion, Bridjay set
forth eight categories of allegedly ‘‘suspicious’’ transac-
tions to support her claims for breach of fiduciary duty
against Frank and Maurice as the managers of the three
LLCs in her posttrial brief. In its memorandum of deci-
sion, the court stated that Bridjay ‘‘failed to show that
[Frank and Maurice] engaged in any act of fraud, self-
dealing or conflict of interest. The court finds that the
burden has not shifted to the two fiduciaries, to demon-
strate the evidence by the clear and convincing stan-
dard.’’ Additionally, it concluded that, ‘‘[o]f the eight
‘suspicious transactions’ . . . all but . . . inspection
of books and records, are common to all of the members
of the three LLCs. None of these claims, damages and
‘suspicious transactions’ are ‘separate and distinct’ as
to [Bridjay], except for the inspection of books and
records . . . claim . . . . The court finds that [Brid-
jay] has no standing to maintain this lawsuit against
any of the defendants given it is not a derivative action.
The court finds that [Bridjay] has standing to maintain
the claims that she has brought as to [the] issue . . .
relating to the inspection of the books and records of
the three LLCs for which she has a [25 percent] interest.’’
On appeal, Bridjay claims that the court improperly
failed to shift the burden to Frank and Maurice on her
claims of breach of fiduciary duty. She contends that,
once a fiduciary relationship was shown, together with
‘‘only an allegation, rather than proof, of fraud . . .
self-dealing or conflict of interest’’; (emphasis in origi-
nal); the trial court should have shifted the burden to
Frank and Maurice to prove good faith and fair dealing
by clear and convincing evidence.9 She then sets forth
the first six of the original eight suspicious transactions
as evidence of the breach of fiduciary duty.
Pursuant to our analysis in part I of this opinion, we
recognize that, once the trial court determined that
Bridjay lacked standing to bring her claims of breach
of fiduciary duty in an individual capacity, the court
should have dismissed those claims rather than address
them on the merits. See Sosa v. Robinson, supra, 200
Conn. App. 276. Because Bridjay failed to appeal from
each independent basis for the court’s judgment, we
conclude that this court lacks subject matter jurisdic-
tion and resolve this appeal on the basis of appellate
mootness.
In its findings, the court determined that each of the
‘‘ ‘suspicious transactions’ ’’ Bridjay alleged in support
of her breach of fiduciary duty claims, except the claim
regarding inspection of the books and records,10 were
common to all members of the three LLCs, and, there-
fore, that she did not have standing to sue in her individ-
ual capacity. This conclusion was one independent
basis for the court’s ruling in favor of the defendants.
As an alternative basis for its judgment, the court con-
cluded that Bridjay had failed to meet her burden of
proof in establishing her breach of fiduciary duty claims
and, therefore, that the burden of proving fair dealing
did not shift to Frank and Maurice. Bridjay has not
appealed from the court’s conclusion that she does not
have standing to sue in her individual capacity. Thus,
we cannot afford her any practical relief and conclude
that her appeal as to this issue is moot.
B
Bridjay’s second claim on appeal asks this court to
exercise its supervisory authority to reverse the judg-
ment of the trial court as to her claims of oppression
of a minority member against the three LLCs, Frank,
and Maurice and as to her claims for the dissolution
and winding up of the three LLCs. In the alternative,
she requests that the case should be remanded for a
new trial as to those claims. Specifically, she claims
that the standard set forth in Manere v. Collins, supra,
200 Conn. App. 384–85, for analyzing oppressive con-
duct in limited liability companies applies to her claims.
We decline to exercise our supervisory power because
we conclude that the standard for analyzing oppressive
conduct set forth in Manere is not applicable in the
present case.
The following additional facts are relevant to the
resolution of this claim. In counts one through five
of the operative complaint, Bridjay alleged claims of
oppression of a minority member against the three
LLCs, Frank, and Maurice. In addition, in counts seventy
through seventy-two, Bridjay requested that the three
LLCs be dissolved and wound up and that all of their
assets be distributed to the rightful owners. The ground
for this requested relief was, inter alia, oppressive con-
duct pursuant to General Statutes (Rev. to 2017) §§ 34-
207 and 34-208 (a) (2)11 and General Statutes § 34-267
(a) (5).12
In her posttrial brief, Bridjay argued that the defen-
dants ‘‘have engaged in a pattern of conduct aimed at
suppressing her minority membership interest in the
[entities of which she is a member].’’ In support of her
claim of oppression, Bridjay argued that she ‘‘has been
generally frozen out of the business’’ and relied on the
aforementioned eight ‘‘suspicious’’ transactions to sup-
port her claims of breach of fiduciary duty. Further-
more, Bridjay claimed that Frank and Maurice are man-
aging members of other entities, namely, Harxter
Realty, LLC, Glenbrook Center, LLC, and 317 West Ave-
nue, LLC, and that these entities have provided distribu-
tions to both Frank and Maurice. Therefore, Frank and
Maurice have ‘‘the financial wherewithal to sustain
withholding distributions from [the three LLCs] because
they have alternative income streams which are uncon-
trovertibly independent of Bridjay . . . . [S]aid infor-
mation, given the totality of the circumstance[s], allows
[the trial] court to draw inferences that the foregoing
conduct has impacted [Bridjay] the most severely and
was done with the specific intention of suppressing her
interests and/or to punish her for aligning herself with
her mother, [Marie], in the various Bongiorno legal bat-
tles.’’ (Footnote omitted.)
In its memorandum of decision, the court noted that,
as a member of the three LLCs, Bridjay had standing
to seek the dissolution and winding up of the three
LLCs. The court then discussed the evidence offered
by the plaintiffs at trial, which included federal income
tax returns for the three LLCs. ‘‘Exhibit 67 contained
the tax returns for 24 Ardmore Street, LLC, for the years
2005 through and including 2017. Exhibit 68 contained
the tax returns for 305 West Avenue, LLC, for the years
2007 through and including 2017. Exhibit 69 contained
the tax returns for J & G Realty, LLC, for the years 2000
through and including 2017. . . . Nowhere in those
three 2017 federal income tax returns is there any allo-
cation of events, income, expenses, deductions, and
credits after July 1, 2017. The monetary evidence before
this court of any financial breaches after July 1, 2017,
was missing from this trial. No doubt rent was received
and management fees were paid from and after July 1,
2017, but no evidence was offered as to the amounts
from and after July 1, 2017. The three federal income
tax returns for 2017 failed to allocate and differentiate
pre-July 1, 2017 finances from post-July 1, 2017 finances.
This court has insufficient evidence, likewise, to do
the same. This court, confronted by the very limited
evidence of post-July 1, 2017 finances, will not apply
the Connecticut [Uniform] Limited Liability Company
Act [(CULLCA), General Statutes § 34-243 et seq.], in
this memorandum of decision. . . . This court will
apply the dissolution and winding up statutes, both
pre-July 1, 2017 and post-July 1, 2017, to those three
counts.’’13 (Citation omitted.)
The court stated that ‘‘[Bridjay], as the member of the
three LLCs has filed three counts seeking dissolution
of each of the three LLCs . . . . Those claims are
rejected . . . since [Bridjay] has failed to sustain her
burden of proof. . . . As a factual allegation in support
of her dissolution and winding up counts, [Bridjay]
alleges: ‘The conduct of all or substantially all of the
defendant[s’] . . . activities and affairs are unlawful
and/or it is not reasonably practicable to carry on the
business in conformity with its operating agreement,
articles of organization and/or the interests of the mem-
bers.’ . . . The three operating agreements were in evi-
dence. No ‘articles of organization’ were placed in evi-
dence. . . . The operating agreements contain only
two provisions for dissolution in Article XIV, Section
14.01 Termination: (1) the unanimous decision of the
Members to dissolve the LLC or, (2) the sole Member
of the LLC being a Dissociating Member. . . .
‘‘This court has discussed in detail the claim of mis-
management alleged by the plaintiffs and has found no
support for those claims in this trial. . . . The court
finds that no event of dissolution has occurred as set
forth in the operating agreement. The court finds that
[Bridjay] has failed to satisfy the proof required for the
dissolution and winding up of the three LLCs. The court
finds insufficient evidence that ‘it is not reasonably
practicable to carry on the business in conformity with
its operating agreement . . . or the interests of the
members.’ The court finds that neither [Frank] as a
member or manager of the three LLCs [nor Maurice] as
manager of the three LLCs has engaged in any ‘unlawful
conduct . . . .’ ’’ (Citations omitted.) It further stated
that it ‘‘cannot find as a matter of fact that there [were]
any financial misdealings by [Frank] or [Maurice] in
any fashion whatsoever. . . . [Bridjay has] failed to
sustain [her] burden of proof as to the counts alleging
. . . oppression.’’
On appeal, Bridjay asks this court to exercise its
supervisory power to reverse the decision of the trial
court in regard to her claims of oppression and dissolu-
tion or, in the alternative, to order a new trial, in light
of this court’s decision in Manere v. Collins, supra, 200
Conn. App. 356.14 We decline to exercise our supervisory
power and affirm the judgment of the trial court.
‘‘It is well settled that [a]ppellate courts possess an
inherent supervisory authority over the administration
of justice. . . . Supervisory powers are exercised to
direct trial courts to adopt judicial procedures that will
address matters that are of utmost seriousness, not only
for the integrity of a particular trial but also for the
perceived fairness of the judicial system as a whole.
. . . Under our supervisory authority, we have adopted
rules intended to guide the lower courts in the adminis-
tration of justice in all aspects of the criminal process.’’
(Citation omitted; internal quotation marks omitted.)
State v. Elson, 311 Conn. 726, 764–65, 91 A.3d 862 (2014).
‘‘Supervisory authority is an extraordinary remedy
that should be used sparingly . . . . Although [a]ppel-
late courts possess an inherent supervisory authority
over the administration of justice . . . [that] authority
. . . is not a form of free-floating justice, untethered
to legal principle. . . . Our supervisory powers are not
a last bastion of hope for every untenable appeal. They
are an extraordinary remedy to be invoked only when
circumstances are such that the issue at hand, while
not rising to the level of a constitutional violation, is
nonetheless of utmost seriousness, not only for the
integrity of a particular trial but also for the perceived
fairness of the judicial system as a whole.’’ (Internal
quotation marks omitted.) State v. Fuller, 158 Conn.
App. 378, 392, 119 A.3d 589 (2015).
In Manere v. Collins, supra, 200 Conn. App. 378, this
court interpreted the meaning of the word ‘‘ ‘oppres-
sion’ ’’ as used in CULLCA. Specifically, this court inter-
preted the meaning of that word as used in § 34-267
(a) (5). Id. The plaintiff in Manere was a member and
manager of a limited liability company, BAHR. Id., 359–
60. On appeal, the plaintiff claimed, inter alia, that the
trial court improperly rejected his application for a dis-
solution of BAHR pursuant to § 34-267 (a) (5) on the
ground of oppressive conduct by BAHR’s only other
member and manager. Id., 360, 376.
In Manere, this court adopted the ‘‘ ‘reasonable
expectations’ ’’ test as the applicable standard when
analyzing a claim of oppression under § 34-267 (a) (5).
Id., 384. Under that standard, ‘‘a majority member’s
conduct is oppressive if that conduct substantially
defeats the minority member’s expectations which,
objectively viewed, were both reasonable under the
circumstances and were central to his or her decision
to join the venture or developed over time.’’ Id., 389.
Further, if the court makes a finding of oppression, it
must also determine whether the oppressive conduct
‘‘ ‘was, is, or will be directly harmful to the applicant
. . . .’ ’’ Id., 392.
We do not agree with Bridjay’s contention that this
court’s decision in Manere warrants the exercise of our
supervisory power to reverse the trial court’s judgment
as to her claims of oppression and dissolution. In Man-
ere, the court interpreted the meaning of the word
‘‘ ‘oppression’ ’’ as used in § 34-267 (a) (5), which is part
of CULLCA. Id., 378. General Statutes § 34-283b states
that ‘‘Sections 34-243 to 34-283d, inclusive, do not affect
an action commenced, proceeding brought or right
accrued before July 1, 2017.’’ In her own posttrial brief,
Bridjay argued that the legislature did not intend for
the CULLCA to apply retroactively.15 Therefore, because
Bridjay failed to present evidence of events occurring
after July 1, 2017, to support her claims of oppression
and dissolution, § 34-267 does not apply to her claims.
Bridjay commenced the present action in 2012. The
trial court discussed that, in the evidence presented by
Bridjay to the court in the form of tax returns, there
were no allocations of ‘‘events, income, expenses,
deductions, and credits after July 1, 2017.’’ It further
stated that it would not apply CULLCA in its decision.
Therefore, the provisions of CULLCA, and specifically
§ 34-267 (a) (5), do not apply in the present case.
Because the ‘‘ ‘reasonable expectations’ ’’ standard set
forth in Manere v. Collins, supra, 200 Conn. App. 384–
85, applies to claims of oppression arising under § 34-
267 (a) (5), that standard does not apply in the present
case. We, therefore, affirm the judgment with respect
to this claim.
The appeal in Docket No. AC 42790 is dismissed; the
appeal in Docket No. AC 47291 is dismissed as to Bridjay
Capone’s breach of fiduciary duty claims, and the judg-
ment is affirmed in all other respects.
In this opinion the other judges concurred.
1
The underlying action was commenced in 2012 by the late George Bon-
giorno (George), his wife, Marie, and their daughter, Bridjay. George with-
drew from the action in 2013. In this appeal, we refer to Marie and Bridjay
collectively as the plaintiffs and individually as Marie and Bridjay.
2
The plaintiffs brought this action against the following individuals and
business entities: J & G Realty, LLC; 24 Ardmore Street, LLC; 305 West
Avenue, LLC; Harxter Realty, LLC; Enterprise Park, L.L.C.; Bongiorno Gas
Island, LLC; Glenbrook Center, LLC; Bongiorno Brothers; Bongiorno Super-
market, Inc.; The Bongiorno Family, LLC; JGBBNS Realty, LLC; 317 West
Avenue, L.L.C.; 317 West Avenue, LLC; Weselleck, LLC; Bongiorno Childrens
Joint Venture #3; Jane Doe Entities (other entities unknown to the plaintiffs
that were allegedly owned or controlled by the individual defendants); Frank;
Maurice; Michele B. Nizzardo; and John A. Bongiorno.
Prior to trial, the plaintiffs withdrew the action against all of the defendants
except J & G Realty, LLC; 24 Ardmore Street, LLC; 305 West Avenue, LLC;
Harxter Realty, LLC; Enterprise Park, L.L.C.; Bongiorno Gas Island, LLC;
Glenbrook Center, LLC; Bongiorno Brothers; Bongiorno Supermarket, Inc.;
Frank; and Maurice. At the time of trial, Bongiorno Supermarket, Inc., and
Jane Doe Entities remained defendants but were not represented by counsel
of record.
In this opinion, we refer to J & G Realty, LLC, 24 Ardmore Street, LLC,
and 305 West Avenue, LLC, collectively as the three LLCs.
3
In her posthearing memorandum, Marie alleged that she held an owner-
ship interest in JGBBNS Realty, LLC, J & G Realty, LLC, Bongiorno Gas
Island, LLC, and Bongiorno Brothers.
4
Marie claimed at trial and in this appeal that ‘‘our laws recognize the
existence of an economic interest which is separate and distinct from a
right to participate in the management/business affairs of an entity.’’
She relied on, inter alia, General Statutes (Rev. to 2017) § 34-170, which
provides in relevant part: ‘‘(a) Except as provided in writing in an operating
agreement and subject to the provisions of subsections (b) and (c) of section
34-119: (1) A limited liability company membership interest is assignable in
whole or in part; (2) an assignment entitles the assignee to receive, to the
extent assigned, only the distributions to which the assignor would be
entitled . . . .’’
Essentially, Marie argued that, although George had failed to transfer his
full membership interest in the entities to her, which would have given her
all the rights of a member, such as voting rights, the transfer was effective
in granting her the status of an economic transferee, which includes the
right to receive distributions.
5
In their posttrial brief, the plaintiffs expressly abandoned ‘‘all claims
sounding in statutory theft and breach of the [CUTPA] as alleged in the
second amended complaint.’’
6
‘‘It is axiomatic that a party must have standing to assert a claim in
order for the court to have subject matter jurisdiction over the claim. . . .
[I]f the injuries claimed by the plaintiff are remote, indirect or derivative
with respect to the defendant’s conduct, the plaintiff is not the proper party
to assert them and lacks standing to do so. [When], for example, the harms
asserted to have been suffered directly by a plaintiff are in reality derivative
of injuries to a third party, the injuries are not direct but are indirect, and
the plaintiff has no standing to assert them. . . .
‘‘A limited liability company is a distinct legal entity whose existence is
separate from its members. . . . [It] has the power to sue or to be sued in
its own name . . . or may be a party to an action brought in its name by
a member or manager. . . . A member or manager, however, may not sue
in an individual capacity to recover for an injury based on a wrong to the
limited liability company. . . . [A] member or manager of a limited liability
company is not a proper party to a proceeding by or against a limited liability
company solely by reason of being a member or manager of the limited
liability company, except where the object of the proceeding is to enforce
a member’s or manager’s right against or liability to the limited liability
company or as otherwise provided in an operating agreement . . . .’’ (Cita-
tions omitted; internal quotation marks omitted.) Scarfo v. Snow, 168 Conn.
App. 482, 497–98, 146 A.3d 1006 (2016).
‘‘A corporation is a separate legal entity, separate and apart from its
stockholders. . . . It is an elementary principle of corporate law that . . .
corporate property is vested in the corporation and not in the owner of the
corporate stock. . . . That principle also is applicable to limited liability
companies and their members. . . .
‘‘[T]he law [permits] shareholders to sue derivatively on their corporation’s
behalf under appropriate conditions. . . . [I]t is axiomatic that a claim of
injury, the basis of which is a wrong to the corporation, must be brought
in a derivative suit, with the plaintiff proceeding secondarily, deriving his
rights from the corporation which is alleged to have been wronged. . . .
[I]n order for a shareholder to bring a direct or personal action against the
corporation or other shareholders, that shareholder must show an injury
that is separate and distinct from that suffered by any other shareholder or
by the corporation.’’ (Citation omitted; internal quotation marks omitted.)
Id., 501.
Our Supreme Court, in Saunders v. Briner, 334 Conn. 135, 158–59, 221
A.3d 1 (2019), concluded that the ‘‘[Connecticut Limited Liability Company
Act (CLLCA), General Statutes (Rev. to 2017) § 34-100 et seq.] does not
permit members or managers to file derivative actions but, rather, authorizes
them to collectively commence an action in the name of the limited liability
company upon a requisite vote of disinterested members or managers (mem-
ber initiated action). . . . [General Statutes (Rev. to 2017) §] 34-187 provides
the procedure that members or managers must follow if they wish to file
a lawsuit in the name of the company.’’ (Citation omitted; footnote omitted.)
The court stated that, ‘‘because of the closely held nature of many [limited
liability companies] there may be little difference between the derivative
remedy and the one proposed in this section.’’ (Internal quotation marks
omitted.) Id., 162 n.28. The court noted the general rule that prohibits a
member of a limited liability company from bringing a direct action when
the injury sustained affects all of the shareholders collectively and stated
that, although the CLLCA did not authorize derivative actions, it ‘‘provided
a substitute to the derivative remedy’’ in the form of the member initiated
action. Id., 167–69.
7
In this court’s order granting in part the relief requested in the plaintiffs’
motion for review, this court ordered the trial court to ‘‘reconcile its state-
ments on pages 40 and 42–43 of its March 12, 2019 memorandum of decision
by articulating whether it found that [Maurice] received any assets pursuant
to the 2004 purchase agreement with the estate of John Bongiorno.’’
In its rectification, the trial court stated: ‘‘On page 43 line 1, the trial court
makes the following changes to the first partial sentence at the top of page
43: (A) Eliminate ‘any assets’ and substitute therefore ‘any real property at
issue in this litigation,’ immediately before the phrase, ‘in the settlement of
the Estate of John Bongiorno,’ and (B) add the following sentence immedi-
ately after the above sentence: ‘The real property at issue in this litigation
[is] the three parcels of real property described on page 40 in paragraph
numbered (5).’ ’’
8
Marie stated with respect to the trial court’s second and third bases for
its decision: ‘‘First, this court should take note of the trial court’s second
and third grounds for dismissal, which are cabined under res judicata: (2)
there are presently no distributions to dispute, and (3) there is presently
no dissolution to dispute. Read together with the court’s opening statement
that ‘it is not necessary for [it] to determine whether or not the plaintiff
. . . possesses an economic interest in the three entities,’ these two issues
serve as a very serious warning: should any of the entities make distributions
or dissolve, there will immediately be cause for new litigation in order to
ascertain [the] very issue on appeal here: the validity of the plaintiff’s claimed
economic interest.’’
9
‘‘The elements which must be proved to support a conclusion of breach
of fiduciary duty are: [1] [t]hat a fiduciary relationship existed which gave
rise to . . . a duty of loyalty . . . an obligation . . . to act in the best
interests of the plaintiff, and . . . an obligation . . . to act in good faith
in any matter relating to the plaintiff; [2] [t]hat the defendant advanced his
or her own interests to the detriment of the plaintiff; [3] [t]hat the plaintiff
sustained damages; [and] [4] [t]hat the damages were proximately caused
by the fiduciary’s breach of his or her fiduciary duty.’’ (Internal quotation
marks omitted.) Manere v. Collins, supra, 200 Conn. App. 366–67.
‘‘Once a [fiduciary] relationship is found to exist, the burden of proving
fair dealing properly shifts to the fiduciary. . . . Furthermore, the standard
of proof for establishing fair dealing is not the ordinary standard of fair
preponderance of the evidence, but requires proof either by clear and con-
vincing evidence, clear and satisfactory evidence or clear, convincing and
unequivocal evidence. . . . Proof of a fiduciary relationship, therefore, gen-
erally imposes a twofold burden on the fiduciary. First, the burden of proof
shifts to the fiduciary; and second, the standard of proof is clear and convinc-
ing evidence. . . . Such burden shifting occurs in cases involving claims
of fraud, self-dealing or conflict of interest.’’ (Citation omitted; internal
quotation marks omitted.) Papallo v. Lefebvre, 172 Conn. App. 746, 754, 161
A.3d 603 (2017).
10
The court concluded that Bridjay had standing to bring her claim of
breach of fiduciary duty as to the allegation that the defendants did not
allow her to inspect the books and records, which was set forth as the seventh
‘‘suspicious’’ transaction in Bridjay’s reply to the defendants’ posttrial brief.
The court, however, rejected this claim, stating that it ‘‘made inquiry daily
at the beginning of the trial day, if there were any other discovery matters
that needed to be resolved. The plaintiffs made no claim of lack of discovery
during the trial. Until the plaintiffs’ posttrial brief . . . was filed, this court
was not aware that there was a continuing claim that [Bridjay] and her
experts were denied discovery in the form of lack of access to the books
and records . . . .’’ Bridjay has not raised the issue of inspecting the books
and records in her appellate brief and, therefore, has abandoned that claim.
11
Hereinafter, unless otherwise indicated, all references to §§ 34-207 and
34-208 in this opinion are to the 2017 revision of the statute.
12
In the operative complaint, Bridjay stated the grounds for dissolution,
winding up and distribution of assets as being found in §§ 34-207 and 34-
208 (a) (2) and General Statutes §§ 33-896 (a) (1) (B) and (D), 34-267, and
34-372 (5).
In its decision, the court stated that ‘‘§ 34-372 (5) and . . . § 33-896 (a)
(1) (B) and (D) are not applicable since the LLCs are not governed by the
partnership statutes or corporate statutes after July 1, 2017. Only . . . § 34-
267 is applicable for LLCs after July 1, 2017.’’
‘‘Our common law does not recognize LLCs, which were first created by
statute in Connecticut in 1993. . . . The provisions of the [Connecticut
Limited Liability Company Act (CLLCA), General Statutes (Rev. to 2017)
§ 34-100 et seq.] relating to winding up an LLC’s affairs inextricably link the
winding up process to a dissolution, and therefore must be read together
with the statutes governing the dissolution of an LLC.’’ Styslinger v. Brewster
Park, LLC, 321 Conn. 312, 317–18, 138 A.3d 257 (2016). ‘‘The [CLLCA]
provides only a single mechanism for triggering a winding up of an LLC’s
affairs: an event of dissolution.’’ Id., 318.
Sections 34-206 and 34-207 set forth multiple dissolution events. General
Statutes (Rev. to 2017) § 34-206 provides: ‘‘A limited liability company is
dissolved and its affairs shall be wound up upon the happening of the first
to occur of the following: (1) At the time or upon the occurrence of events
specified in writing in the articles of organization or operating agreement;
(2) unless otherwise provided in writing in the articles of organization or
operating agreement, upon the affirmative vote, approval or consent of at
least a majority in interest of the members; or (3) entry of a decree of
judicial dissolution under section 34-207.’’
Pursuant to General Statutes (Rev. to 2017) § 34-207, ‘‘[o]n application by
or for a member, the superior court for the judicial district where the
principal office of the limited liability company is located may order dissolu-
tion of a limited liability company whenever it is not reasonably practicable
to carry on the business in conformity with the articles of organization or
operating agreement.’’
Section 34-208 describes the winding up of a limited liability company.
It provides in relevant part: ‘‘(a) Except as otherwise provided in writing
in the operating agreement, the business and affairs of the limited liability
company may be wound up . . . (2) on application of any member or legal
representative or assignee thereof, by the superior court for the judicial
district where the principal office of the limited liability company is located,
if one or more of the members or managers of the limited liability company
have engaged in wrongful conduct, or upon other cause shown.’’ General
Statutes (Rev. to 2017) § 34-208.
As an additional basis for dissolution, Bridjay cited General Statutes § 34-
267 (a), which provides in relevant part: ‘‘A limited liability company is
dissolved, and its activities and affairs must be wound up, upon the occur-
rence of any of the following . . . (4) On application by a member, the
entry by the Superior Court . . . of an order dissolving the company on
the grounds that: (A) The conduct of all or substantially all of the company’s
activities and affairs is unlawful; or (B) it is not reasonably practicable to
carry on the company’s activities and affairs; (5) On application by a member,
the entry by the Superior Court . . . of an order dissolving the company
on the grounds that the mangers or those members in control of the company:
(A) Have acted, are acting or will act in a manner that is illegal or fraudulent;
or (B) have acted or are acting in a manner that is oppressive and was, is,
or will be directly harmful to the applicant . . . .’’ As explained later in
this opinion, we conclude that this section is not applicable to Bridjay’s claim.
13
Although the court stated it would apply the post-July 1, 2017 dissolution
and winding up statutes in its decision, the court does not use these statutes
in its analysis.
14
Bridjay has not challenged the trial court’s factual findings or its conclu-
sion that she failed to meet her burden of proof regarding her claims of
oppression. Instead, she contends that ‘‘[n]either the parties nor the trial
court had the benefit of this guidance [set forth in Manere v. Collins, supra,
200 Conn. App. 384–85] before the judgment was issued . . . .’’ Therefore,
she argues that ‘‘the court’s exercise of supervisory authority is necessary
in order to restore the integrity of the outcome of the case . . . .’’
15
‘‘[The] plaintiffs take the position that the legislature did not intend to
apply [CULLCA] retroactively and that, despite being repealed, [General
Statutes (Rev. to 2017) §§ 34-100 to 34-242] apply to any act which occurred
prior to July 1, 2017; for any claim which occurred subsequent to July 1,
2017, the proper statutory application is [CULLCA].’’