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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`:
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`:
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`:
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`:
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`SUPERIOR COURT
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`J. D. OF HARTFORD
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`AT HARTFORD
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`OCTOBER 8, 2019
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`MEMORANDUM OF DECISION
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`Trial began in this wage enforcement matter on December 4, 2018, and continued on
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`four additional trial days thereafter, with the plaintiff 5 case in chief not yet concluded. Other
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`scheduled days were utilized for the presentation of oral argument. Additional trial days are
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`anticipated.
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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 § 31-22 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.
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`Before the court for consideration are the written submissions and the oral arguments
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`presented on July 23, 2019 concerning the defendants’ objection (#141) (objection) to the
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`plaintiffs May 15, 2019 request for leave to amend the complaint (#136). The court was
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`provided with a copy of the transcript of the oral arguments on October 4, 2019, which, by
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`agreement, commenced the 120-day period for adjudication of the objection. See Practice Book
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`§ 11-19 (a).
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`As to Bonito personally, under Count III ofthe originaiib‘p'feFaQrireicgiii laint, the
`plaintiff alleges that Bonito was the owner and principal iiiériiberof13 weight #glated General
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`id I1 00 El 0 l 8 3 d 0
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`Statutes § 31-71b by personally deciding to neglect or reggetg pwydthgalleggg @JliSéiid wages.
`CC
`£1017” w (aw EMS/ms
`(13113
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`w/W @
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`l ‘12?
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`See complaint, Count III, fl 9.
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`In the proposed amended complaint, dated May 15, 2019 (#136), the plaintiff seeks to
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`add new paragraphs 10 and 11 to Count III. In proposed paragraph 10, the plaintiff alleges that
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`Bonito is also personally liable for the wages due “by piercing the corporate veil in, inter alia,
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`the absence of meetings of the limited liability company, Bonito Millwork, LLC [(Bonito
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`Millwork)] and related books and records, and the presence of use of business funds for
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`personal purposes.” Bonito Millwork is not as party to this action.
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`In proposed paragraph 11, the plaintiff alleges that Bonito Millwork is the successor to B
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`& G and liable for the wages due “in having a continuity of management, personnel, members
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`and the general conduct of its business, as well as B & G’s cessation soon after Bonito
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`Millwork’s taking control of the business and Bonito Millwork holding itself out as the effective
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`continuation ofB & G. The defendant James Bonito’s personal liability is based on piercing the
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`corporate veil of Bonito Millwork, having successor liability.”
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`In its previous memorandum of decision (#135) concerning the defendants’ motion to
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`quash and for aprotective order (#132), the court noted that claims of piercing and successor
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`liability had not been pleaded as bases for recovery.
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`“While our courts have been liberal in permitting amendments .
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`.
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`. this liberality has
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`limitations. Amendments should be made seasonably. Factors to be considered in passing on a
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`motion to amend are the length of the delay, fairness to the opposing parties and the negligence,
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`if any, of the party offering the amendment. .
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`.
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`. The motion to amend is addressed to the trial
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`court’s discretion which may be exercised to restrain the amendment of pleadings so far as
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`necessary to prevent unreasonable delay of the trial. .
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`.
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`. Whether to allow an amendment is a
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`matter left to the sound discretion of the trial court.” LaFrance v. Lodmell, 322 Conn. 828,
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`846—47, 144 A.3d 373 (2016). “The essential tests are whether the ruling of the court will work
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`an injustice to either the plaintiff or the defendant and whether the granting of the motion will
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`unduly delay a trial.” (Internal quotation marks omitted.) Franc V. Bethe] Holding Co. , 73 Conn.
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`App. 114, 132, 807 A.2d 519, cert. granted on other grounds, 262 Conn. 923, 812 A.2d 864
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`(2002) (appeal withdrawn October 21, 2003).
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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).
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`The defendants argue that the request to amend is untimely, asserts new theories of
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`liability during trial, involves a nonparty, is prejudicial, and was caused by plaintiff’s negligence
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`in failing to file the claims for the over three and one-half years the litigation has been pending,
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`despite discovery and depositions.
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`They assert that they have objected to questions during trial about successor liability and
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`piercing the corporate veil. They assert that the plaintiff seeks to introduce new evidence, that
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`has not been part of the case to date, for the first time, concerning the operating procedures of
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`Bonito Millwork and to claim that Bonito profited from his management of Bonito Millwork.
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`The defendants assert that the new allegations would re-open the pleadings and lead to
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`additional discovery, which would be prejudicial since records which were given to the
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`plaintiff’s investigators were never returned to the defendants and cannot be located by the
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`plaintiff. Depositions would be sought as to the loss of these records.
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`Also, the defendants argue that they are prejudiced since they prepared for trial for many
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`years and the proposed amendment would open the pleadings and introduce whole new areas of
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`litigation concerning Bonito Millwork, thereby causing long delays, and additional legal work
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`and trial days.
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`In addition, the defendants argue that the amendment does not relate back to the original
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`complaint and is time-barred. Issues need not be considered “when they are merely mentioned
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`and not briefed beyond a bare assertion. .
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`.
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`. with no mention of relevant authority and minimal
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`or no citations from the record. .
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`. .” (Internal quotation marks omitted.) Rock v. Univ. of
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`Connecticut, 323 Conn. 26, 33, 144 A.3d 420 (2016). Since this argument is not supported by
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`case law or analysis, the court need not consider it.
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`The plaintiff contends that amendment may occur at any time and the defendants were
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`previously aware of the plaintiff s piercing allegations, which are closely related to the
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`originally pleaded theories of liability. The plaintiff asserts that amendment became warranted
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`when, during trial, it became clear when Bonito’s personal liability attached in relation to Bonito
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`Millwork.
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`The plaintiff also argues that, in view of discovery conducted before trial, the defendants
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`cannot show either surprise or prejudice. For example, the plaintiff cites Bonito’s deposition
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`testimony (plaintiff‘s Exhibit 26 for identification) concerning his role at Bonito Millwork, and
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`questions related to piercing the corporate veil. In addition, the plaintiff cites its opening
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`statement, which referred to its piercing theory, and the defendants’ opening statement, in which
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`defense counsel stated that he did not believe that Bonito had liability on piercing. Also, the
`plaintiffnotes thatpiercing is referred to in the plaintiffs legal memorandum (#128), which was
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`presented before the commencement of the presentation of evidence.
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`While piercing the corporate veil was referenced in the opening statements and the
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`plaintiff’s pretrial memorandum, the new, proposed allegations in paragraphs 10 and 11 concern
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`factual issues which have not been litigated at trial. See paragraph 10, concerning the absence of
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`meetings of the limited liability company, Bonito Millwork, and related books and records, and
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`the presence of use of business funds for personal purposes; and paragraph 11, that Bonito
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`Millwork is the successor to B & G and liable for the wages due “in having a continuity of
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`management, personnel, members and the general conduct of its business, as well as B & G’s
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`cessation soon after Bonito Millwork’s taking control of the business and Bonito Millwork
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`holding itself out as the effective continuation of B & G.”
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`In contrast, see Landry v. Spitz, 102 Conn. App. 34, 45, 925 A.2d 334 (2007), where
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`factors and circumstances concerning the unpleaded theory of bad faith “were a major focus of
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`the trial. .
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`. .” Here, the new allegations will require the'presentation of different evidence. As
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`the Supreme Court has explained. “[t]he trial court is in the best position to assess-the burden
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`which an amendment would impose on the opposing party in light of the facts of the particular
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`case. The essential tests are whether the ruling of the court will work an injustice to either the
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`plaintiff or the defendant and whether the granting of the motion will unduly delay a trial.”
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`(Internal quotation marks omitted.) Town of Wallingford V. Glen Valley Assocs., Inc., 190 Conn.
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`158, 161—62, 459 A.2d 525 (1983).
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`The circumstances in cases relied on by the plaintiff in particular at oral argument are
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`distinguishable from the situation here. In Franc v. Bethe] Holding Co. , supra, 73 Conn. App.
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`114, no additional evidence was involved. There, the plaintiffs requested leave to amend their
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`complaint to add allegations of recklessness after resting, in order “to conform to the evidence
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`they had presented.” Id., 131. The trial court deferred ruling on the plaintiffs’ request until the
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`end of the trial. See id., 132. Thus, the plaintiffs did not seek amendment in the midst of their
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`case in chief in order to present additional evidence. Also, the defendant chose to forgo the
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`opportunity to present additional evidence. See id., 135.
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`Similarly, in Moore v. Sergi, 38 Conn. App. 829, 833-34, 664 A.2d 795 (1995), cited by
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`the plaintiff, the defendants sought to amend their counterclaim after the trial, after viewing
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`I
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`photographs taken by and presented at trial by the plaintiff. The court accepted the explanation
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`that the defendants could not possibly have included alleged items of property taken by the
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`plaintiff in the original counterclaim for conversion since they did not know about the evidence
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`depicted in the photographs until trial. See id., 834. Here, as stated above, the plaintiff asserts
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`that it explored piercing the corporate veil in pretrial discovery.
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`Likewise, the need for amendment could not reasonably have been anticipated in All
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`American Pools, Inc. v. Lato, 20 Conn. App. 625, 569 A.2d 562 (1990), also cited by the
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`plaintiff. That matter also involved an amendment after trial. See id., 629. There, a Supreme
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`Court decision was issued during the trial construing General Statutes § 20-429, a section of the
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`Home Improvement Act, and the plaintiff had no way of knowing that that decision would be
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`issued “midway through trial and that the defendants would be able to rely on its ruling in
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`presenting their evidence .
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`.
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`. .” Id., 630.
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`As noted above, the first day of trial in this matter was over ten months ago, December
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`4, 2018. Trial of this matter already has been delayed, for various reasons. As its piercing
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`theories were explored in advance of trial, the plaintiff reasonably could have sought to amend
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`the complaint much earlier. Under these circumstances, in View of the delay in seeking
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`amendment and the fact that, after several days of trial, different proof would be involved in
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`presenting evidence concerning the newly proposed allegations, resulting in this matter being
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`unduly delayed, in the exercise of its discretion, the court finds that the greater injustice will be
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`done to the defendants than to the plaintiff by denying him his day in court on the subject matter
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`of the proposed amendment.
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`CONCLUSION
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`For the reasons stated above, the defendants’ objection to the plaintiffs request for leave
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`to amend the complaint is sustained. Counsel are directed to contact the Caseflow office to
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`schedule a telephonic status conference in order to discuss the resumption of the presentation of
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`evidence at trial.
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`BY THE COURT
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`ho
`W3 .
`ROBERT B. SHA RO
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`JUDGE TRIAL REFEREE
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`Case Detail - HHD-CV14-6055022-S
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`Civil/FamIIy
`Case Type. M90
`File Date. 10/31/2014 Return Date: 11/18/2014
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`STATE OF CONNECTICUT COMMISSIONEROF LABOR,
`DEPARTMENT OF LABOR
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`, FeeCategory}
`Party'
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`.Plaintiff
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`Attorney: 5-: AAG RICHARD T SPONZO (085296) File Date: 01/25/2017
`AG-WORKERS COMP/LABOR
`PO BOX 120
`HARTFORD, CT 061410120
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`Comments
`File Date: 11/20/2014
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`.
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`D-01 B 816 RESTORATIONS, LLC
`AttOrney: c? RINI & ASSOCIATES (432676)
`51 ELM STREET
`SUITE 420
`,
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`NEW HAVEN, CT 06510
`
`
`JAMES BONITO
`Attorney: 8 RINI & ASSOCIATES (432676)
`51 ELM STREET
`SUITE 420
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`D-02
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`NEW HAVEN, CT 06510
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`File Date: 11/20/2014
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`Defendant
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`Defendant
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