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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 defendants.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, Truglia, 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 certain limited liability companies, corporations, and partnerships in which they claimed interests as members,

partners, and/or shareholders. Initially, the plaintiff

brought this action against fifteen closely held Bongiorno family business entities and against Frank R. Bongiorno, 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 accordance 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having withdrawn all causes of action against all defendants on May 6, 2013. Although no additional withdrawals 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 jurisdiction, arguing that neither the plaintiff, George Bongiorno, nor Bridjay Capone had an ownership interest in

any of the corporate entities sufficient to confer standing. 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 scheduled 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 businesses. In October, 2010, after the plaintiff commenced

a dissolution of marriage action against George Bongiorno, 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 fourinstruments were never

delivered to any representatives of the defendant businesses, 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 defendant 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 businesses 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 businesses if the case proceeded further. The trial court

subsequently granted the defendants’ motion to dismiss. 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 jurisdiction 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 Mechanical 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, including subject matter jurisdiction, must be submitted to

the arbitrator. We are not persuaded. The rules of practice 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. Manifold 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 complaint, 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 adequately appear from all materials of record, the complaint 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 controversy.’’ (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 Statutes §§ 34-207 and 34-372 (5). In order to show an ownership 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 businesses, and the businesses first learned of these documents 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 business, 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 accordance with General Statutes § 34-172 (a).4 The fourth

defendant business, Bongiorno Brothers, a general partnership, 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 purported 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 jurisdiction, 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 necessary to protect the parties’ rights as required by § 52-

422. We do not agree.

Section 52-422 concerns pendente lite orders and provides in relevant part: ‘‘At any time before any award

is rendered pursuant to an arbitration under this chapter, 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 proceedings 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.) Milbauer 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 adjudicated 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 ofjudicial estoppel. Specifically, she argues

that the defendants have made inconsistent representations to the trial courtregarding the trial court’s jurisdiction 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 seeking estoppel. . . . We further limit judicial estoppel to

situations where the risk of inconsistent results with

its impact on judicial integrity is certain.’’ (Internal quotation 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 position—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 properly referred to arbitration, according to the stipulated

‘‘Order Staying Actions and Referral to Alternative Dispute 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 determine 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 arbitration. 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 individuals. 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)ifthe 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 partnership 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 . . . .’’