Bongiorno v. J & G Realty, LLC ( 2016 )

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GEORGE BONGIORNO ET AL. v. J & G
REALTY, LLC, ET AL.
(AC 36953)
Beach, Alvord and Pellegrino, Js.
Argued October 7, 2015—officially released January 19, 2016
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Truglia, J.)
Peter V. Lathouris, with whom, on the brief, was
Richard M. Breen, for the appellant (plaintiff Marie
Bongiorno).
Mark F. Katz, for the appellees (named defendant
et al.).
Opinion
PELLEGRINO, J. The plaintiff Marie Bongiorno1
appeals from the judgment of the trial court rendered
when it granted a motion to dismiss filed by the defen-
dants.2 On appeal, the plaintiff claims that the trial court
improperly adjudicated the motion to dismiss for lack
of subject matter jurisdiction because (1) the action
was stayed for arbitration; (2) no action was needed
to protect the parties’ rights as required by General
Statutes § 52-422; and (3) the motion was barred by
judicial estoppel. We disagree and affirm the judgment
of the trial court.
The following facts, as found by the trial court, Trug-
lia, J., in its memorandum of decision, and procedural
history are relevant to our resolution of this appeal.
The plaintiff, George Bongiorno, and their daughter,
Bridjay Capone, commenced this action in June, 2012,
seeking the judicial dissolution and winding up of cer-
tain limited liability companies, corporations, and part-
nerships in which they claimed interests as members,
partners, and/or shareholders. Initially, the plaintiff
brought this action against fifteen closely held Bongi-
orno family business entities and against Frank R. Bon-
giorno, Maurice A. Nizzardo, and Michele B. Nizzardo,
personally, who are members and/or managers of the
entities.3
The plaintiff sought, inter alia, to dissolve and wind
up the limited liability company defendants pursuant
to General Statutes §§ 34-207 and 34-208. She also
sought to dissolve, wind up, and appoint a receiver for
Bongiorno Brothers, a general partnership, in accor-
dance with General Statutes §§ 34-372 (5) and 52-509
(a).
George Bongiorno is no longer a party to this action,
having withdrawn all causes of action against all defen-
dants on May 6, 2013. Although no additional withdraw-
als of action have been filed, all parties agree that the
plaintiff is now proceeding only against the following
four defendants: (1) J & G Realty, LLC; (2) JGBBNS
Realty, LLC; (3) Bongiorno Gas Island, LLC; and (4)
Bongiorno Brothers, a general partnership.
In August, 2012, the defendants filed a motion to
dismiss the action for lack of subject matter jurisdic-
tion, arguing that neither the plaintiff, George Bongi-
orno, nor Bridjay Capone had an ownership interest in
any of the corporate entities sufficient to confer stand-
ing. Shortly thereafter, on August 20, 2012, the parties
agreed to stay the action through September 24, 2012,
pending a binding arbitration of the matters in dispute.
This stipulation was accepted and made an order of
the court, Hon. Taggart D. Adams, judge trial referee.
The parties subsequently agreed to extend the stay until
November 27, 2012, and, although there was no order
extending the stay beyond that date, the parties contin-
ued their agreement and had arbitration sessions sched-
uled for June, 2014.
In November, 2013, the defendants filed a second
motion to dismiss for lack of subject matter jurisdiction
only as to the plaintiff. The defendants claimed that the
plaintiff had no ownership interest in any of the four
remaining commercial entities and, therefore, lacked
standing to bring this action, which must be dismissed
for lack of subject matter jurisdiction.
The trial court found the following facts as developed
over several days of hearings on the second motion to
dismiss. In early 2010, George Bongiorno owned a 50
percent interest in each of the four defendant busi-
nesses. In October, 2010, after the plaintiff commenced
a dissolution of marriage action against George Bongi-
orno, he executed four documents purporting to be
assignments to the plaintiff of his entire ownership
interest in each of the four defendant businesses. These
four instruments were executed in the Bongiorno’s
home. The only people present at the time were the
plaintiff, George Bongiorno, and Mary Badoyannis, an
attorney who represented the plaintiff in the dissolution
of marriage action. One of the four instruments was
executed on October 14, 2010, and three were executed
on October 21, 2010. These four instruments were never
delivered to any representatives of the defendant busi-
nesses, but were retained in Attorney Badoyannis’ files.
The court found credible the testimony of Maurice A.
Nizzardo and Frank R. Bongiorno that the first time
they learned that the instruments existed was in the
spring of 2013, when they were produced as part of the
plaintiff’s discovery compliance. The trial court found,
by a preponderance of the evidence, that the plaintiff
was not a member or partner of any of the four defen-
dant businesses in June, 2012, and therefore could not
claim to have been statutorily aggrieved in accordance
with General Statutes §§ 34-207, 34-208, 34-372, and 34-
374 when she commenced this action. The court further
found that the plaintiff had not demonstrated a specific,
personal, or legal interest in any of the defendant busi-
nesses sufficient to enable her to bring a derivative
action for dissolution and winding up of the businesses,
and that the defendants had shown by a preponderance
of the evidence that the plaintiff could not prove a
membership or partnership interest in any of the busi-
nesses if the case proceeded further. The trial court
subsequently granted the defendants’ motion to dis-
miss. This appeal followed.
I
We first address the plaintiff’s claim that the court
erred when it adjudicated the defendants’ motion to
dismiss for lack of subject matter jurisdiction while the
matter was stayed pending unrestricted arbitration.
Our review of jurisdictional issues is plenary. ‘‘We
have long held that because [a] determination regarding
a trial court’s subject matter jurisdiction is a question
of law, our review is plenary. . . . Subject matter juris-
diction involves the authority of the court to adjudicate
the type of controversy presented by the action before
it. . . . [A] court lacks discretion to consider the merits
of a case over which it is without jurisdiction . . . .’’
(Internal quotation marks omitted.) Ferguson Mechani-
cal Co. v. Dept. of Public Works, 282 Conn. 764, 770–71,
924 A.2d 846 (2007).
The plaintiff argues that the parties agreed to an
unrestricted arbitration, and therefore all issues, includ-
ing subject matter jurisdiction, must be submitted to
the arbitrator. We are not persuaded. The rules of prac-
tice and our case law make clear that a claim that the
court lacks jurisdiction over the subject matter cannot
be waived; Practice Book § 10-33; and must be
addressed when brought to the court’s attention. Mani-
fold v. Ragaglia, 94 Conn. App. 103, 116, 891 A.2d 106
(2006). ‘‘[O]nce the question of lack of jurisdiction of
a court is raised, [it] must be disposed of no matter in
what form it is presented . . . and the court must fully
resolve it before proceeding further with the case.’’
Raftopol v. Ramey, 299 Conn. 681, 689–90, 12 A.3d
783 (2011).
The court implicitly relied on its purported subject
matter jurisdiction when it stayed the case in favor of
arbitration. Had the court known at that time that the
plaintiff lacked standing, the court would not have had
subject matter jurisdiction to enter the stay. Thus, the
court was bound to consider and adjudicate the motion
to dismiss.
Further, the court properly granted the motion to
dismiss. ‘‘For purposes of ruling on a motion to dismiss
for want of standing, both the trial and reviewing courts
must accept as true all material allegations of the com-
plaint, and must construe the complaint in favor of the
complaining party. . . . At the same time, it is within
the trial court’s power to allow or to require the plaintiff
to supply . . . further particularized allegations of fact
deemed supportive of [the] plaintiff’s standing. If, after
this opportunity, the plaintiff’s standing does not ade-
quately appear from all materials of record, the com-
plaint must be dismissed.’’ (Internal quotation marks
omitted.) Andross v. West Hartford, 285 Conn. 309, 340,
939 A.2d 1146 (2008). ‘‘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 contro-
versy.’’ (Internal quotation marks omitted.) Bysiewicz
v. DiNardo, 298 Conn. 748, 758, 6 A.3d 726 (2010).
‘‘Where a party is found to lack standing, the court
is consequently without subject matter jurisdiction to
determine the cause.’’ J.E. Robert Co. v. Signature
Properties, LLC, 309 Conn. 307, 318, 71 A.3d 492 (2013).
Standing to bring an action to dissolve either a limited
liability company or a general partnership requires
some ownership interest in the entity. See General Stat-
utes §§ 34-207 and 34-372 (5). In order to show an own-
ership interest, the plaintiff relied on the documents
executed in October, 2010, that purported to assign to
her George Bongiorno’s ownership interest in each of
the four defendant businesses. These documents were
never delivered to any representatives of the busi-
nesses, and the businesses first learned of these docu-
ments in the spring of 2013. The operating agreements
for two of the four defendant businesses, J & G Realty,
LLC, and JGBBNS Realty, LLC, provide that a transfer of
interest is only effective once the company has received
notice, and that any transfer that does not provide
notice will be ‘‘null and void.’’ The third defendant busi-
ness, Bongiorno Gas Island, LLC, did not have an
operating agreement in effect, but the plaintiff never
provided notice of the assignment to any members, and,
even if she had provided notice, she would not have
become a member unless and until a majority of the
other members consented to the assignment in accor-
dance with General Statutes § 34-172 (a).4 The fourth
defendant business, Bongiorno Brothers, a general part-
nership, did not have an operating agreement in effect,
but the plaintiff never provided notice of the assignment
to the other partners in order to give effect to the pur-
ported transfer as required by General Statutes § 34-
348 (e).5 Accordingly, in June, 2012, when the plaintiff
commenced the underlying action, she did not have an
ownership interest in any of the defendant businesses
and the court properly granted the motion to dismiss.
‘‘[W]henever a court discovers that it has no jurisdic-
tion, it is bound to dismiss the case . . . .’’ (Internal
quotation marks omitted.) Millward Brown, Inc. v.
Commissioner of Revenue Services, 73 Conn. App. 757,
766, 811 A.2d 717 (2002).
II
The plaintiff next claims that, even if the court had
the authority to adjudicate the motion to dismiss, it
erred in doing so because its adjudication was not nec-
essary to protect the parties’ rights as required by § 52-
422. We do not agree.
Section 52-422 concerns pendente lite orders and pro-
vides in relevant part: ‘‘At any time before any award
is rendered pursuant to an arbitration under this chap-
ter, the superior court for the judicial district in which
one of the parties resides . . . upon application of any
party to the arbitration, may make forthwith such order
or decree, issue such process and direct such proceed-
ings as may be necessary to protect the rights of the
parties pending the rendering of the award . . . .’’
The present action, a motion to dismiss predicated
upon the absence of standing, is not a proceeding that
must comply with § 52-422 because a motion to dismiss
is not a pendente lite proceeding. ‘‘[P]endente lite
orders, by their very definition, are orders that continue
to be in force during the pendency of a suit, action, or
litigation.’’ (Internal quotation marks omitted.) Mil-
bauer v. Milbauer, 54 Conn. App. 304, 309, 733 A.2d
907 (1999). ‘‘A motion to dismiss . . . properly attacks
the jurisdiction of the court, essentially asserting that
the plaintiff cannot as a matter of law and fact state a
cause of action that should be heard by the court.’’
(Internal quotation marks omitted.) Merrill v. NRT New
England, Inc., 126 Conn. App. 314, 318, 12 A.3d 575,
appeal dismissed, 307 Conn. 638, 59 A.3d 171 (2011)
(certification improvidently granted). Thus, the trial
court did not need to consider § 52-422 when it adjudi-
cated the motion to dismiss.
III
The plaintiff’s final claim is that the defendants were
estopped from pursuing their motion to dismiss under
the doctrine of judicial estoppel. Specifically, she argues
that the defendants have made inconsistent representa-
tions to the trial court regarding the trial court’s jurisdic-
tion to entertain motions. We do not agree.
It is unclear from the memorandum of decision
whether the trial court failed to consider this argument
or rejected it without comment. Nonetheless, the claim
fails on the merits. ‘‘Typically, judicial estoppel will
apply if: 1) a party’s later position is clearly inconsistent
with its earlier position; 2) the party’s former position
has been adopted in some way by the court in the earlier
proceeding; and 3) the party asserting the two positions
would derive an unfair advantage against the party seek-
ing estoppel. . . . We further limit judicial estoppel to
situations where the risk of inconsistent results with
its impact on judicial integrity is certain.’’ (Internal quo-
tation marks omitted.) MacDermid, Inc. v. Cookson
Group, PLC, 149 Conn. App. 571, 578, 89 A.3d 447, cert.
denied, 312 Conn. 914, 93 A.3d 597 (2014).
The plaintiff states that, after the parties agreed to
arbitration, the defendants argued in their ‘‘Objection to
[Plaintiff’s] Motion to Disqualify Defendants’ Counsel’’
that the plaintiff had abandoned the motion to disqualify
because the plaintiff stipulated to arbitration while the
motion was pending in the trial court. The plaintiff
argues that it is inconsistent for the defendants to argue
now that they have not abandoned their right to have
a motion to dismiss adjudicated by the trial court, and
the plaintiff contends that the defendants should be
estopped from making this claim.
We do not agree that the defendants’ former posi-
tion—that a motion is abandoned if the party submits
to arbitration while the motion is pending—is clearly
inconsistent with the defendants’ current position—
that the court had the authority to adjudicate the motion
to dismiss for lack of subject matter jurisdiction. The
motion to disqualify counsel is an issue that was prop-
erly referred to arbitration, according to the stipulated
‘‘Order Staying Actions and Referral to Alternative Dis-
pute Resolution.’’6 The motion to dismiss for lack of
subject matter jurisdiction, however, is of an entirely
different nature, and the defendants cannot be estopped
from pursing it in the court because of their former
position on a different motion. ‘‘[T]he power to deter-
mine its jurisdiction is one of the core inherent powers
of a court.’’ Golden Hill Paugussett Tribe of Indians
v. Southbury, 231 Conn. 563, 570, 651 A.2d 1246 (1995).
Further, the defendants’ former position—that the
plaintiff abandoned her motion to disqualify counsel
when she agreed to arbitration—was never adopted by
the trial court in an earlier proceeding. Instead, the
parties agreed that the issue of attorney disqualification
should be decided by the arbitrator. Accordingly, the
court, Hon. A. William Mottolese, judge trial referee,
issued an order that the matter be referred to arbitra-
tion. Accordingly, judicial estoppel does not apply.
The judgment is affirmed.
In this opinion the other judges concurred.
1
George Bongiorno is no longer a party to this action, having withdrawn
all causes of action against all defendants on May 6, 2013. The plaintiff
Bridjay Capone was not named in the motion to dismiss that is the subject
of this appeal and, consequently, she is not a party to this appeal. For clarity,
in this opinion new refer to Marie Bongiorno as the plaintiff and to George
Bongiorno and Bridjay Capone by name where appropriate.
2
This action was originally filed against fifteen businesses and three indi-
viduals. Although no withdrawls of action have been filed by the plaintiff,
the parties agreed that the plaintiff is only proceeding against four business
defendants: (1) J & G Realty, LLC; (2) JGBBNS Realty, LLC; (3) Bongiorno
Gas Island, LLC; and (4) Bongiorno Brothers, a general partnership. For
clarity, we refer to these parties collectively as the defendants.
3
Frank R. Bongiorno and Michele B. Nizzardo are the son and daughter
of George Bongiorno and the plaintiff. Maurice A. Nizzardo is married to
Michele B. Nizzardo.
4
General Statutes § 34-172 (a) provides: ‘‘Subject to subsections (b) and
(c) of section 34-119, an assignee of an interest in a limited liability company
may become a member if and to the extent that (1) the assignor gives the
assignee that right in accordance with authority described in the operating
agreement, (2) unless otherwise provided in writing in an operating
agreement, at least a majority in interest of the members, other than the
assignor, consent, or (3) if the limited liability company has only one member,
the assignor gives the assignee the right to become a member.’’
5
General Statutes § 34-348 (e), which governs the transfer of a partner’s
transferable interest in a partnership, provides in relevant part: ‘‘A partner-
ship need not give effect to a transferee’s rights under this section until it
has notice of the transfer.’’ The General Statutes govern relations among the
partners and between the partners and the partnership when the partnership
agreement does not otherwise provide. General Statutes § 34-303 (a).
6
The Order Staying Actions and Referral to Alternative Dispute Resolution
dated August 20, 2012, provides in relevant part: ‘‘If all issues and disputes
between and among the parties are not resolved through mediation prior
to September 24, 2012, any remaining issues and disputes shall be submitted
by the parties to binding arbitration . . . .’’