DOCKET NO. HHD CV-14-6055022 S
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`STATE OF CONNECTICUT,
`DEPARTMENT OF LABOR
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`VS.
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`B & G RESTORATIONS, LLC, ET AL
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`2
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`SUPERIOR COURT
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`J. D. OF HARTFORD
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`AT HARTFORD
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`APRIL 22, 2019
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`MEMORANDUM OF DECISION
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`In its three-count complaint, the State of Connecticut, Department of Labor, alleges,
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`based on General Statutes § 31-72 and other statutes, that defendants B & G Restorations, LLC
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`(B & G) and James Bonito failed to pay wages to four employees for the period August 31, 2009
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`to December 31, 2012. See complaint, dated September 29, 2014. Trial began on December 4,
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`2018, and has continued on several trial days thereafter. Additional trial days have been
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`scheduled in May 2019.
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`Before the court for consideration are the written submissions and the oral arguments
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`presented on April 16, 2019 concerning the defendants’ motion to quash and for a protective
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`order concerning the plaintiff s subpoena duces tecum, which was directed to defendant Bonito,
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`and seeks production of documents concerning nonparty Bonito Millwork, LLC (Bonito
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`Millwork) and Bonito personally (#132). The subpoena was served on March 19, 2019, after the
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`fourth day of trial on January 29, 2019, and before the scheduled fifth day of trial on March 26,
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`2019.
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`Although the subpoena requested documents from 2012 to the present, at oral argument
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`the plaintiff modified the time-frame for the requested documents t6%r§l%alé¥8the fall of
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`The trial court has the inherent authority to moderate the discovery process by imposing
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`protective orders under appropriate circumstances. See Rosado v. Bridgeport Roman Catholic
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`Diocesan Corp, 276 Conn. 168, 221-22 n. 59, 884 A.2d 981 (2005). “[T]he granting or denial
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`of a discovery request rests in the sound discretion of the [trial] court .
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`.
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`. .” (Internal quotation
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`marks omitted.) Woodbury Knoll, LLC v. Shipman and Goodwin, LLP, 305 Conn. 750, 775, 48
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`A.3d 16 (2012).
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`“A subpoena is an appropriate process for the production of documents that are relevant
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`to the matter before the court. .
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`.
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`. It may not be used, however, for the purpose of conducting a
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`fishing expedition into the papers of a party or a stranger to the proceedings. .
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`.
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`. The subpoena
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`should be sufficiently particularized so that the documents sought may be readily identified. .
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`.
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`If the subpoena on its face is too broad and sweeping, it is subject to a motion to quash.”
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`(Citations omitted; internal quotation marks omitted.) Three S. Development Co. v. Santore, 193
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`Conn. 174, 179, 474 A.2d 795 (1984).
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`As to Bonito Millwork, the defendants argue that it is not a party to this action, cannot be
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`held liable for any of the claims brought in this action, and its records are irrelevant, immaterial,
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`and inadmissible. Rather, the defendants assert that the production request in the subpoena is an
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`impermissible attempt to pursue unpleaded claims of piercing the corporate veil and successor
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`liability.
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`The defendants also contend that the time frame for which documents are sought is
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`outside the time—frame of the complaint, except to the extent that Bonito Millwork made
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`paymentson any wage claims by the claimants, limited to checks paid for work performed
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`

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`before December 30, 2012 or to make good on any unpaid B & G check or any amount alleged
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`unpaid by that defendant. They assert that Bonito Millwork’s other financial records are not
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`relevant to any allegation of the complaint as there are none which bear on its financial
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`'
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`capability.
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`As to Bonito personally, the defendants contend that, under Count HI of the complaint,
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`the plaintiff alleges that Bonito was the owner and principal member of B & G and violated
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`General Statutes § 31-71b by personally deciding to neglect or refuse to pay the alleged unpaid
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`wages. See complaint, Count 111, 11 9. They argue that the requested documentation, concerning
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`Bonito’s personal bank account statements and investment account statements, does not bear on
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`the plaintiff3 claims against Bonito as his personal financial condition is not at issue. They
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`reiterate that claims of piercing and successor liability have not been pleaded, and that the time-
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`frame for the requested documents is outside that which is alleged in the complaint, except to
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`the extent that Bonito made payments on any wage claims by the claimants, limited to checks
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`paid for work performed before December 30, 2012 or to make good on any unpaid B & G
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`check or any amount alleged unpaid by that defendant.
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`In response, the plaintiff asserts that there are three theories on which Bonito’s personal
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`liability rests. First, citing Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 464-65,
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`704 A.2d 222 (1997), it argues that an individual can be held personally liable as an employer
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`for wage obligations if the individual is the cause for the withholding of wages. This is the
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`theory pleaded in Count Ill. See Butler v. Hartford Technical Institute, Inc. , supra (defendant
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`was the individual in control of, and solely responsible for, all decisions with regard to wages,
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`and was specifically the cause for the withholding of, and the failure and refiasal to pay the
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`overtime wages).
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`The plaintifl also argues that, under the successorship doctrine, an employer may be held
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`liable for employment obligations incurred by a prior employer. It argues that Bonito Millwork
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`succeeded B & G, and that Bonito’s personal liability is triggered if Bonito legally constitutes
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`Bonito Millwork or is otherwise liable for its obligations, then he is liable in efi'ect as successor
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`to B &G.
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`The plaintiff also contends that Bonito is personally liable for the wage claims, albeit
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`arising against B & G, on the basis of piercing the corporate veil of Bonito Millwork as
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`successor to B & G having successor liability.
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`The plaintiff argues that the requested documents are needed for the possible
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`presentation of evidence, including concerning Bonito’s personal liability.
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`The plaintiff also asserts that the complaint may be amended and the theories of
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`successorship and piercing the corporate veil do not have to be in the complaint as long as the
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`facts proved are consistent with the complaint’s allegations. In View of the course of conduct in
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`the litigation, they contend that the defendants have not shown prejudice or surprise in having to
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`address the plaintiff s theories. They also note that the defendants filed no request to revise or
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`motion to strike portions of the complaint. The plaintiff alluded to pretrial written discovery and
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`depositions without specific citation thereto.
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`Neither successor liability nor piercing the corporate veil are pleaded in the plaintist
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`complaint as bases for recovery. In addition, as noted above, Bonito Millwork is not a party to
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`this action.
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`“[P] leadings have their place in our system ofjurisprudence. While they are not held to
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`the strict and artificial standard that once prevailed, we still cling to the belief, even in these
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`iconoclastic days, that no orderly administration ofjustice is possible without them. .
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`.
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`. The
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`purpose of a complaint or counterclaim is to limit the issues at trial, and such pleadings are
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`calculated to prevent surprise. .
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`.
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`. Moreover, [t]he principle that a plaintiff may rely only upon
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`what he has alleged is basic. .
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`.
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`. It is fundamental in our law that the right of a plaintiff to
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`recover is limited to the allegations of his complaint. .
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`.
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`. What is in issue is determined by the
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`pleadings and these must be in writing. .
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`.
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`. Once the pleadings have been filed, the evidence
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`proffered must be relevant to the issues raised therein. .
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`.
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`. A judgment upon an issue not
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`pleaded would not merely be erroneous, but it would be void.” (Citation omitted; internal
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`quotation marks omitted.) Foncello v. Amorossi, 284 Conn. 225, 233, 931 A.2d 924 (2007).
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`“A plaintiff may not allege one cause of action and recover upon another.” (Internal
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`quotation marks omitted.) Alaimo v. Alaimo, 179 Conn. App. 769, 771, 181 A.3d 149 (2018).
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`Also, the plaintiff has filed no request to amend its complaint. “While our courts have
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`been liberal in permitting amendments .
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`.
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`. this liberality has limitations. Amendments should be
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`made seasonably. Factors to be considered in passing on a motion to amend are the length of the
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`delay, fairness to the opposing parties and the negligence, if any, of the party offering the
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`amendment. .
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`.
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`. The motion to amend is addressed to the trial court’s discretion which may be
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`exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable
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`delay of the trial. .
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`.
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`. Whether to allow an amendment is a matter left to the sound discretion of
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`U1
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`the trial court.” LaFrance V. Lodmell, 322 Conn. 828, 846—47, 144 A.3d 373 (2016).
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`“In exercising its discretion with reference to a motion for leave to amend, a court
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`should ordinarily be guided by its determination of the question whether the greater injustice
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`will be done to the mover by denying him his day in court on the subject matter of the proposed
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`amendment, or to his adversary by granting the motion, with the resultant delay.” DuBose v.
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`Carabetta, 161 Conn. 254, 263, 287 A.2d 357 (1971). Here, in the absence of a proposed
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`amendment to the complaint, the court’s discretion concerning belated, proposed amendments
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`to the complaint is not invoked.
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`The plaintiff argues that the complaint provided fair notice to Bonito of its theories of
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`liability. In particular, the plaintiff cites paragraphs 9-12 of Count 111 as being consistent with
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`piercing and with successor liability. In paragraph 9, the plaintiff alleges that Bonito personally
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`made the decision to neglect or refuse to pay the employees/claimants, and was the cause for
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`withholding of and failure and refusal to pay the wages owed. In paragraph 10, the plaintiff
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`alleges that its investigation found that Bonito had failed to pay wages in a total amount of
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`$19,686.50. In paragraphs 11 and 12, the plaintiff alleges that demand for payment was made,
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`but Bonito failed, neglected and/or refuse to pay, and that his continued failure and refusal to
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`pay constitutes conduct which is intentional, egregious, arbitrary, unreasonable, and in bad faith.
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`“[T]he interpretation of pleadings is always a question of law for the court. .
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`. The
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`modern trend, which is followed in Connecticut, is to construe pleadings broadly and
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`realistically, rather than narrowly and technically. .
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`. Although essential allegations may not be
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`supplied by conjecture or remote implication; .
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`.
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`. the complaint must be read in its entirety in
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`such a way as to give effect to the pleading with reference to the general theory upon which it
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`proceeded, and do substantial justice between the parties. .
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`.
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`. As long as the pleadings provide
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`sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice
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`the opposing party, we will not conclude that the complaint is insufficient to allow recovery. .
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`.
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`[I]f the parties at trial have adopted a certain construction of the pleadings .
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`.
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`.
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`. we should give
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`deference to that construction.” (Citations omitted.) Travelers Ins. Co. v. Namerow, 261 Conn.
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`784, 795-96, 807 A.2d 467 (2002).
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`As noted above, the defendants explicitly dispute that they were put on notice by the
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`complaint that the plaintiff was seeking to recover based on either successor liability or piercing
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`the corporate veil. See, in contrast, Landry v. Spitz, 102 Conn. App. 34, 43—44, 925 A.2d 334
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`(2007) (unpleaded cause of action actually was litigated at trial without objection).
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`The above-cited paragraphs 9—12 of Count 111 do not provide notice to Bonito of claims
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`of either successor liability or piercing the corporate veil. See, in contrast, Medina v. Unlimited
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`Systems, LLC, 760 F.Supp; 2d263, 270 (D. Conn. 2010), cited by the plaintiff, concerning
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`successor liability, where the court listed factors typically considered: “continuity of
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`management, personnel, physical location and general business operations; continuity of
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`shareholders; cessation of the predecessor business shortly after the successor entity is formed;
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`and whether the purchaser business holds itself out as the effective continuation of the seller.”
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`These factors are not pleaded in the complaint. A defendant cannot request a revision to or seek
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`to strike allegations concerning a legal theory which is not contained in the complaint.
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`In the subpoena, the plaintiff seeks all monthly bank checking and savings account
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`statements for Bonito Millwork and Bonito personally; any investment account statements for
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`Bonito Millwork and Bonito personally; and the books and records of Bonito Millwork, and any
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`amendments thereto, as well as annual reports. As noted above, at oral argument, the time-frame
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`was modified, to from 2012 to the fall of 2014.
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`The request is overbroad as to time since the time period that is alleged in the complaint
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`to be relevant is August 31, 2009 to December 30, 2012. See complaint, Counts I and III, 11 4;
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`Count II, 11 3.
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`After review, the court also finds that the request for documents in the subpoena is not
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`reasonably calculated to lead to the discovery of admissible evidence. See Practice Book § 13—2.
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`As stated above, neither successor liability nor piercing are pleaded.
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`Rather, the document request is a fishing expedition into the papers of Bonito Millwork,
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`a nonparty, and into the personal records of Bonito individually. As such it is not sufficiently
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`particularized. On its face, the subpoena is too broad and sweeping. See Three S. Development
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`Co. v. Santore, supra, 193 Conn. 179.
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`The defendants conceded that evidence that Bonito Millwork or Bonito made payments
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`on any wage claims by the claimants, limited to checks paid for work performed-before
`December 30, 2012 or to make good on any unpaid B & G check or any amount alleged unpaid
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`by that defendant, is relevant to the plaintist claims.
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`Accordingly, by May 14, 2019, Bonito is directed to produce any Bonito Millwork or
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`personal bank or investment account statements reflecting such payments. The motion to quash
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`the subpoena is otherwise granted as to the request for production of documents.
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`BY THE COURT
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`ROBERT B S
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`l/Lb
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`RO
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`JUDGE TRIAL REFEREE
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`CHECKLIST FOR CLERK
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`Docket Number
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`01/ M/QOSSwQLS
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`. CaseName—WM
`86 6Wag/lens455 We
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`Memorandum of Decision dated_/(~£____L_____~' 7';4
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`File Sealed:
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`Memo Sealed:
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`This memorandum of Decision mayWed to the Reporter of
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`Judicial Decisions for publication.
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`This Memorandum of Decision may NOT be released to the
`Reporter of Judicial Decisions for publication.
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`Case Detail - HHD-CV14-6055022-S
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`Page 1 of 5
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`STATE OF CONNECTICUT, COMMISSIONER OF LABOR, DEPAR v. B.
`& G RESTORATIONS, LLC Et AI
`-
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`Case Type: M90
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`File Date:10/31/2014 Return Date:11/18/2014
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`STATEOF CONNECTICUT COMMISSIONER OFLABOR,
`DEPARTMENT OF LABOR
`Attorney:
`(2’ AAG RICHARD T SPONZO (085296) File Date: 01/25/2017
`AG-WORKERS COMP/LABOR
`PO BOX 120
`HARTFORDI CT 061410120
`
`
`
`NEW HAVEN. CT 06510
`
`B 8: G RESTORATIONS, LLC
`Attorney:
`(3 RINI & ASSOCIATES (432676)
`51 ELM STREET
`SUITE 420
`NEW HAVEN, CT 06510
`JAMES BONITO
`Attorney: 1? RINI & ASSOCIATES (432676)
`51 ELM STREET
`SUITE 420
`
`File Date: 11/20/2014
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`File Date: 11/20/2014
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