192 Conn.App. 768
Conn. App. Ct.2019Background
- The plaintiff, an accounting firm, billed Bongiorno Maxi Discount Liquors $36,075 for services performed and unpaid invoices dated June 21, 2012.
- George Bongiorno had long operated the liquor store; Marie’s Liquors, LLC was formed in 2010 (initially with George as sole member) and ownership/control shifted to Marie in mid-2012; the Liquor Control Commission approved the transfer on January 8, 2013.
- The plaintiff sued in December 2012 seeking breach of contract and successor liability against Marie and Marie’s Liquors, LLC; George died March 13, 2016 during the litigation.
- At trial the court found Marie’s Liquors, LLC liable as the successor to George for the unpaid invoices, but ruled Marie not personally liable and rendered judgment for Marie as executrix of George’s estate based on the court’s view that substitution was untimely under § 52-599(b).
- On appeal the plaintiff challenged (1) the denial of personal successor liability as to Marie and (2) the court’s entry of judgment for Marie as executrix for alleged untimely substitution; the appellate court affirmed on the first issue and reversed on the second.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Marie can be held personally liable under a successor-liability theory because she acquired the LLC interest without Liquor Control approval (Reg. §30-6-A4) | Unapproved transfer meant Marie operated individually Aug 2012–Jan 2013 and therefore is liable like the successor LLC | Regulations are for public protection, not privately enforceable here; corporate form shields Marie; plaintiff not in regulated class and injury not the regulation's target | Court affirmed: Marie not personally liable; plaintiff cannot privately enforce §30-6-A4 and the unapproved transfer did not make Marie liable for prior debts |
| Whether substitution of a representative for deceased defendant George was timely under §52-599(b) so that the executrix could be held liable | Substitution of a temporary administratrix was made Dec 23, 2016 (within one year of death), so plaintiff timely cited in fiduciary; therefore executrix is liable for George's breach | Court below treated substitution as untimely and exercised discretion to render judgment for executrix | Court reversed: the initial citation in Dec 2016 was within §52-599(b)’s one-year period; judgment for executrix was error and plaintiff is entitled to judgment against the estate |
Key Cases Cited
- Robbins v. Physicians for Women’s Health, LLC, 311 Conn. 707 (2014) (articulates exceptions to corporate nonliability for successor entities)
- Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216 (1996) (three-part test for implying a private right of action)
- Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363 (2005) (Liquor Control Act enacted for public protection, not private economic benefit)
- All Brand Importers, Inc. v. Department of Liquor Control, 213 Conn. 184 (1989) (liquor control laws enforced for public, not individual economic, protection)
- Gore v. People’s Savings Bank, 235 Conn. 360 (1995) (plaintiff must be within class protected by statute and injury of the type statute intended to prevent)
- Chamlink Corp. v. Merritt Extruder Corp., 96 Conn. App. 183 (2006) (tests for mere continuation and continuity of enterprise theories)
- Dorsey v. Honeyman, 141 Conn. 397 (1954) (plaintiff has absolute right to have estate representative cited within one year after defendant’s death)