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J & G Realty, LLC v. Capone
J & G REALTY, LLC, ET AL. v.
BRIDJAY CAPONE ET AL.
(AC 48706)
Alvord, Moll and Seeley, Js.*
Syllabus
The plaintiffs, J Co. and two other entities, appealed from the trial court’s summary judgments for the defendants B and L. In 2012, B and her mother, M, commenced an action against various individuals and business entities, including the plaintiffs, seeking, inter alia, to dissolve and to wind up the businesses. The trial court in the 2012 action granted a motion to dismiss M’s claims for lack of standing, finding that she had not demonstrated a specific, personal or legal interest in any of the entities at issue. This court subsequently affirmed the dismissal of M’s claims, and the Supreme Court denied M’s petition for certification to appeal. During the pendency of M’s appeal in the 2012 action, L appeared on behalf of B and M and, after the Supreme Court’s denial of M’s petition, he filed in the 2012 action, inter alia, an amended complaint that included claims asserted on M’s behalf and a motion to cite in M as a plaintiff, alleging that M held an economic interest in J Co. On appeal in the present action, the plaintiffs claimed, inter alia, that the court improperly rendered summary judgment for L with respect to J Co.’s vexatious litigation claim against him. Held:
The trial court applied the wrong legal standard for probable cause with respect to a vexatious litigation action, as the court, despite identifying the correct legal standard as an objective one, made statements indicating that it had inserted a subjective element into the probable cause standard.
The trial court improperly concluded that L was entitled to summary judgment as a matter of law as to J Co.’s vexatious litigation claim against him, as, under the circumstances of the present case, a reasonable attorney familiar with Connecticut law would not have believed that, following the Supreme Court’s denial of M’s petition for certification to appeal from the dismissal of her claims in the 2012 action, probable cause existed to pursue the legal theory that M held an economic interest in J Co.
The trial court improperly rendered summary judgment for B with respect to the plaintiffs’ vexatious litigation claims against her, as this court concluded that there was a genuine factual issue as to whether B consulted with a particular attorney prior to commencing the 2012 action, which was material to the issue of whether she had probable cause to commence and to maintain the 2012 action, or, alternatively, that she relied in good faith on the advice of counsel.
Argued March 16—officially released October 13, 2026
*
The listing of judges reflects their seniority status on this court as of the date of oral argument.
J & G Realty, LLC v. Capone
Procedural History
Action to recover damages for, inter alia, vexatious
litigation, and for other relief, brought to the Superior
Court in the judicial district of Stamford-Norwalk, where
the court, Hon. Edward T. Krumeich II, judge trial referee, granted the motion for summary judgment filed
by the defendant Peter Lathouris and rendered judgment thereon, from which the plaintiffs appealed to this
court; thereafter, the court, Hon. Edward T. Krumeich
II, judge trial referee, granted the named defendant’s
motion for summary judgment and rendered judgment
thereon, and the plaintiffs filed an amended appeal; subsequently, the plaintiffs withdrew their claims as against
the defendant Marie Bongiorno; thereafter, the plaintiff
Enterprise Park, LLC, et al. withdrew their appeals.
Reversed; judgment directed; further proceedings.
Peter J. Zarella, with whom was Jessica D. Bowman,
for the appellants (named plaintiff et al.).
Daniel T. Angelone, for the appellee (named defendant).
Walter J. Klimczak III, for the appellee (defendant
Peter Lathouris).
Opinion
MOLL, J. The plaintiffs J & G Realty, LLC (J & G
Realty), 305 West Avenue, LLC, and 24 Ardmore Street,
LLC,1 appeal following the summary judgments rendered
by the trial court in favor of the defendants Bridjay
1
The present action was commenced by J & G Realty, 305 West Avenue, LLC, 24 Ardmore Street, LLC, Enterprise Park, LLC, and JGBBNS Realty, LLC. These parties filed the original and amended appeals in the present action; however, following subsequent withdrawals filed by Enterprise Park, LLC, and JGBBNS Realty, LLC, the remaining appellants are J & G Realty, 305 West Avenue, LLC, and 24 Ardmore Street, LLC. In the interest of simplicity, we refer in this opinion to (1) J & G Realty, 305 West Avenue, LLC, and 24 Ardmore Street, LLC, collectively, as the plaintiffs and (2) J & G Realty, 305 West Avenue, LLC, 24 Ardmore Street, LLC, Enterprise Park, LLC, and JGBBNS Realty, LLC, collectively, as the five LLCs.
J & G Realty, LLC v. Capone
Capone (Bridjay) and Peter Lathouris.2 On appeal, (1) J
& G Realty claims that the court improperly rendered
summary judgment in Lathouris’ favor with respect to
its vexatious litigation claim against him and (2) the
plaintiffs claim that the court improperly rendered summary judgment in Bridjay’s favor with respect to their
vexatious litigation claims against her. We reverse the
summary judgments of the trial court.
The following factual background, as previously set
forth by this court, and procedural history are relevant
to our resolution of this appeal. In 1957, “a partnership
[was] initiated between now deceased brothers George
Bongiorno (George) and John Bongiorno when they
opened Bongiorno Supermarket in Stamford . . . . The
brothers later purchased commercial properties and
established a retail gas station, a car wash, a liquor store, and other businesses near the supermarket (Bongiorno
businesses).
“John Bongiorno had no children and allegedly agreed
that, on his death, he would leave his interests in the
Bongiorno businesses in equal shares to George’s children: Frank [R. Bongiorno (Frank)], John A. Bongiorno,
Bridjay, and Michele B. Nizzardo. John Bongiorno died
in 2003, but did not leave his interests in the Bongiorno
businesses to George’s children. George, however, negotiated an agreement pursuant to which his children,
[his son-in-law] Maurice [A. Nizzardo (Maurice)], and
Bongiorno Supermarket, Inc., purchased John Bongiorno’s interests from John Bongiorno’s estate in 2004.
As part of the agreement, the estate of John Bongiorno
assigned a 12.5 percent membership interest in [J & G
Realty] to each of George’s children. At the time of the
agreement, [J & G Realty] held title to real property that
subsequently was owned by 305 West Avenue, LLC, and
24 Ardmore Street, LLC, businesses that were founded in
2004, following John Bongiorno’s death. The agreement
2
The original complaint also named Marie Bongiorno as a defendant; however, the five LLCs have withdrawn their claims against her, and she is not participating in this appeal. In the interest of simplicity, we refer in this opinion to Bridjay and Lathouris as the defendants.
J & G Realty, LLC v. Capone
further provided that the estate of John Bongiorno would
transfer 12.5 percent of the shares in those two properties to each of George’s four children. Thereafter, George also
transferred his 50 percent interest in 305 West Avenue,
LLC, and 24 Ardmore Street, LLC, in equal shares to his
four children. On January 22, 2012, George transferred
his 50 percent interest in [J & G Realty] in equal shares
to his four children. Consequently, each of George’s
four children held a 25 percent interest in each of [the
plaintiffs].” Bongiorno v. J & G Realty, LLC, 211 Conn.
App. 311, 314–15, 272 A.3d 700 (2022) (Bongiorno II).
In June 2012, Bridjay and Marie Bongiorno (Marie),
who was George’s wife, commenced an action against
various individuals and business entities, including
the plaintiffs,3 seeking, inter alia, to dissolve and to
wind up the Bongiorno businesses.4 See Bongiorno v.
J & G Realty, LLC, Superior Court, judicial district of
Stamford-Norwalk, Docket No. CV-XX-XXXXXXX-S (2012
action).5 On November 26, 2013, certain defendants in
the 2012 action filed a motion to dismiss Marie’s claims
for lack of standing. On May 30, 2014, following an evidentiary hearing, the trial court, Truglia, J., granted the motion to dismiss (May 30, 2014 decision). On June 18,
2014, Marie appealed from the May 30, 2014 decision,
which this court affirmed on January 19, 2016. See Bongiorno v. J & G Realty, LLC, 162 Conn. App. 430, 441,
131 A.3d 1230, cert. denied, 320 Conn. 924, 133 A.3d 878
(2016) (Bongiorno I). On February 8, 2016, Marie filed a
3
Bridjay and Marie brought the action in June 2012 against the following individuals and business entities: the five LLCs; Harxter Realty, LLC; Bongiorno Gas Island, LLC; Glenbrook Center, LLC; Bongiorno Brothers, a general partnership; Bongiorno Supermarket, Inc.; The Bongiorno Family, LLC; 317 West Avenue, L.L.C.; 317 West Avenue, LLC; Weselleck, LLC; Bongiorno Childrens Joint Venture #3; Frank; Maurice; Michele B. Nizzardo; and certain Jane Doe entities. John A. Bongiorno later was cited into the action as an additional defendant.
4
The original complaint filed in the 2012 action also sought the appointment of a receiver and/or custodian pendente lite, the imposition of a constructive trust over certain “Trust Property,” and “[s]uch other and further relief as may in law or equity appertain.”
5
George was an original plaintiff in the 2012 action; however, he withdrew his claims in 2013.
J & G Realty, LLC v. Capone
petition for certification to appeal (petition), which our
Supreme Court denied on March 2, 2016. Bongiorno v.
J & G Realty, LLC, 320 Conn. 924, 133 A.3d 878 (2016).
In July 2014, while Marie’s appeal from the May 30,
2014 decision was pending, Lathouris, of the Peter V.
Lathouris Law Office, LLC, appeared on behalf of Marie
and Bridjay in the 2012 action.6 On February 10, 2015,
Bridjay filed (1) a request for leave to file an amended
complaint, which included claims asserted on behalf of
Marie, and (2) a motion to cite in Marie as a plaintiff on
the ground that she had “an interest in the claims set
forth in [the] proposed amended complaint.” On March
16, 2015, over objection, the trial court, Hon. Kevin
Tierney, judge trial referee, granted Bridjay’s motion
to cite in Marie as a plaintiff, as well as Bridjay’s request for leave to amend the complaint.7
The 2012 action was tried to the trial court over the
course of eighteen days between May 31 and July 24,
2018. Lathouris represented Marie and Bridjay at trial.
After the trial had commenced, on July 5, 2018, with
leave of the court, Marie and Bridjay filed a seventy-two
count second amended complaint, which became their
operative complaint in the 2012 action, alleging claims of
breach of fiduciary duty, fraud, and unjust enrichment.8
In addition, Bridjay, alone, alleged claims of oppression
of a minority member/shareholder interest and sought
to dissolve, to wind up, and to distribute the assets of
the plaintiffs.
6
The original complaint filed in the 2012 action was signed by Richard S. Order and Angel Peterson of Updike, Kelly & Spellacy, P.C., who represented Marie and Bridjay when they commenced the 2012 action. Between the commencement of the 2012 action and Lathouris’ appearance in July 2014, the following additional attorneys filed appearances on behalf of Bridjay and/or Marie: (1) Jack E. Robinson; (2) Joseph Michael Pastore III of Smith Gambrell & Russell LLP, and later of Pastore Shofi & Dailey, LLC, and of Pastore & Dailey, LLC; and (3) Mary Badoyannis.
7
The court originally granted the motion on March 13, 2015, but later amended its order on March 16, 2015.
8
Marie and Bridjay also alleged claims of statutory theft in violation of General Statutes § 52-564 and violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.; however, they subsequently abandoned those claims.
J & G Realty, LLC v. Capone
On March 12, 2019, the trial court rendered judgment against Marie and Bridjay on the entirety of the
second amended complaint (March 12, 2019 decision).
Thereafter, Marie and Bridjay filed separate appeals
from the March 12, 2019 decision. On March 22, 2022, in
Bongiorno II, this court (1) dismissed, as moot, Marie’s
appeal on the ground that she failed to challenge all
independent bases for the judgment rendered against
her; Bongiorno v. J & G Realty, LLC, supra, 211 Conn.
App. 320–24; and (2) dismissed, as moot, a portion of
Bridjay’s appeal for failing to challenge all independent
bases for the judgment rendered against her and affirmed
the judgment in all other respects. Id., 325–34.
On July 15, 2022, the five LLCs commenced the present
action against the defendants and Marie. In a twenty-two
count third revised complaint dated February 29, 2024,
which became their operative complaint in the present
action, (1) the five LLCs asserted claims of statutory vexatious litigation pursuant to General Statutes § 52-5689
against Marie and Bridjay, with and without allegations
of malice, and (2) J & G Realty and JGBBNS Realty, LLC,
asserted claims of statutory vexatious litigation pursuant to § 52-568, without allegations of malice, against
Lathouris.10 On April 3, 2024, Lathouris filed an answer
and a special defense directed to JGBBNS Realty, LLC’s
claim against him. On April 24, 2024, the five LLCs filed
a reply denying Lathouris’ special defense. On May 30,
2024, Marie and Bridjay jointly filed an answer and eight
9
General Statutes § 52-568 provides: “Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages.”
10
Counts one through ten of the operative complaint filed in the present action set forth the five LLCs’ respective vexatious litigation claims against Marie, with counts six through ten including allegations of malice. Counts eleven through twenty set forth the five LLCs’ respective vexatious litigation claims against Bridjay, with counts sixteen through twenty including allegations of malice. Counts twenty-one and twentytwo set forth the vexatious litigation claims against Lathouris asserted by J & G Realty and JGBBNS Realty, LLC, respectively.
J & G Realty, LLC v. Capone
special defenses. On July 16, 2024, the five LLCs filed
a reply denying Marie’s and Bridjay’s special defenses.
On November 22, 2024, Lathouris filed a motion for
summary judgment, accompanied by a supporting memorandum of law and exhibits, as later supplemented,
as to the vexatious litigation claims brought against
him. On November 26, 2024, Marie and Bridjay jointly
filed a motion for summary judgment, accompanied by
a memorandum of law and exhibits, as to the vexatious
litigation claims brought against them. On January 10,
2025, the five LLCs filed memoranda of law, accompanied
by exhibits, in opposition to the motions for summary
judgment. On January 17, 2025, Lathouris filed a reply
memorandum. The trial court, Hon. Edward T. Krumeich
II, judge trial referee, subsequently heard argument on
each motion for summary judgment.
On April 14, 2025, the court granted Lathouris’ motion
for summary judgment. On May 2, 2025, the five LLCs
filed this appeal from the summary judgment rendered
in Lathouris’ favor (original appeal). On May 13, 2025,
in adjudicating the joint motion for summary judgment filed by Marie and Bridjay, the court granted the
motion as to Bridjay but denied it as to Marie. On May
30, 2025, the five LLCs’ original appeal was amended to
encompass the summary judgment rendered in Bridjay’s
favor (amended appeal).11 Additional procedural history
11
On May 12, 2025, 305 West Avenue, LLC, 24 Ardmore Street, LLC, and Enterprise Park, LLC, withdrew the portion of the original appeal filed by them. On July 30, 2025, (1) JGBBNS Realty, LLC, withdrew the portions of the original and amended appeals filed by it and (2) Enterprise Park, LLC, withdrew the portion of the amended appeal filed by it. The plaintiffs, alone, filed a principal appellate brief and a reply brief. In their principal appellate brief, the plaintiffs state that “the counts [of the operative complaint filed in the present action] at issue in this appeal are counts [eleven through twenty] against [Bridjay] and counts [twenty-one and twenty-two] against Lathouris,” although they further state that JGBBNS Realty, LLC, “is not pursuing an appeal” with regard to the summary judgment rendered in Lathouris’ favor as to count twenty-two. In light of the above, the decisions at issue in this amended appeal are (1) the summary judgment rendered in Lathouris’ favor with respect to count twenty-one asserted by J & G Realty and (2) the summary judgment rendered in Bridjay’s favor as to (a) counts eleven
J & G Realty, LLC v. Capone
will be set forth as necessary.12
Before turning to the plaintiffs’ claims on appeal, we
set forth the following relevant legal principles and standard of review governing our analysis. “In Connecticut,
the cause of action for vexatious litigation exists both at common law and pursuant to statute. Both the common
law and statutory causes of action [require] proof that
a civil action has been prosecuted . . . . Additionally,
to establish a claim for vexatious litigation at common
law, one must prove want of probable cause, malice and a
termination of suit in the plaintiff’s favor. . . . The statutory cause of action for vexatious litigation exists under
§ 52-568, and differs from a common-law action only in
that a finding of malice is not an essential element, but
will serve as a basis for higher damages.” (Internal quotation marks omitted.) Manufacturers & Traders Trust
Co. v. Virgulak, 233 Conn. App. 329, 348, 340 A.3d 521
(2025). “[A]ctions for vexatious litigation in Connecticut, both common-law and statutory, have been and can be
based on a party’s conduct in the continuation of a civil
or administrative proceeding without probable cause. . . .
[O]ne who takes an active part in the continuation of
a civil proceeding engages in conduct that prolongs or
keeps that proceeding going.” (Citations omitted; footnote omitted.) Dorfman v. Liberty Mutual Fire Ins. Co.,
227 Conn. App. 347, 376–77, 322 A.3d 331 (2024), cert.
denied, 351 Conn. 907, 330 A.3d 881 (2025), and cert.
denied, 351 Conn. 907, 330 A.3d 882 (2025).
“[T]he legal idea of probable cause is a bona fide belief
in the existence of the facts essential under the law
for the action and such as would warrant a person of
ordinary caution, prudence and judgment, under the
and sixteen asserted by J & G Realty, (b) counts twelve and seventeen asserted by 24 Ardmore Street, LLC, and (c) counts thirteen and eighteen asserted by 305 West Avenue, LLC. See footnote 10 of this opinion.
12
On May 20, 2025, the court, Hon. John F. Kavanewsky, Jr., judge trial referee, issued an order stating that, as reported by counsel following a pretrial conference, the five LLCs’ claims against Marie had been resolved and the present action would be dismissed in thirty days unless it was withdrawn before then. No dismissal was entered, and on July 1, 2025, the five LLCs withdrew their claims against Marie.
J & G Realty, LLC v. Capone
circumstances, in entertaining it. . . . Probable cause
is the knowledge of facts, actual or apparent, strong
enough to justify a reasonable man [or woman] in the
belief that he [or she] has lawful grounds for prosecuting
the defendant in the manner complained of. . . . Thus,
in the context of a vexatious suit action, the defendant
lacks probable cause if he [or she] lacks a reasonable,
good faith belief in the facts alleged and the validity of
the claim asserted. . . . [T]he existence of probable cause is an absolute protection against an action for [vexatious
litigation], and what facts, and whether particular facts,
constitute probable cause is always a question of law. . . . Because the question of whether there is probable cause in
a vexatious litigation case is a question of law, our scope of review is plenary. . . . [T]he probable cause standard
applied to a vexatious litigation action against a litigant is a purely objective one.” (Citation omitted; internal
quotation marks omitted.) Id., 407–408.
“[In Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn,
LLP, 281 Conn. 84, 912 A.2d 1019 (2007)] [o]ur Supreme
Court . . . had the opportunity to consider whether a higher legal standard of probable cause should be applied to
attorneys and law firms sued for vexatious litigation. . . . After considering the statute and the competing policy
interests, the court concluded that a higher standard
should not apply. . . . Instead, in assessing probable cause, the court phrased the critical question as whether on the
basis of the facts known by the law firm, a reasonable
attorney familiar with Connecticut law would believe he
or she had probable cause to bring the lawsuit. . . . As is implied by its phrasing, the standard is an objective one
that is necessarily dependent on what the attorney knew
when he or she initiated the lawsuit. . . .
“[P]robable cause may be present even where a suit
lacks merit. Favorable termination of the suit often establishes lack of merit, yet the plaintiff in [vexatious litigation] must separately show lack of probable cause. . . .
The lower threshold of probable cause allows attorneys
and litigants to present issues that are arguably correct,
J & G Realty, LLC v. Capone
even if it is extremely unlikely that they will win . . . . Were we to conclude . . . that a claim is unreasonable
wherever the law would clearly hold for the other side,
we could stifle the willingness of a lawyer to challenge
established precedent in an effort to change the law. The
vitality of our [common-law] system is dependent upon
the freedom of attorneys to pursue novel, although potentially unsuccessful, legal theories.” (Citation omitted;
internal quotation marks omitted.) Rousseau v. Weinstein, 204 Conn. App. 833, 854, 254 A.3d 984 (2021).
“Advice of counsel is a complete defense to an action
of . . . [vexatious litigation] when it is shown that the
[client] . . . instituted his [or her] civil action relying in good faith on such advice, given after a full and fair
statement of all facts within his [or her] knowledge, or
which he [or she] was charged with knowing. . . . [T]he
defense [of advice of counsel] has five essential elements. First, the defendant must actually have consulted with
legal counsel about his [or her] decision to institute a
civil action . . . . Second, the consultation with legal
counsel must be based on a full and fair disclosure by the
defendant of all facts he [or she] knew or was charged
with knowing concerning the basis for his [or her] contemplated . . . action . . . . Third, the lawyer to whom the defendant turns for advice must be one from whom the
defendant can reasonably expect to receive an accurate,
impartial opinion as to the viability of his [or her] claim . . . . The fourth element . . . is . . . that the defendant, having sought such advice, actually did rely upon it . . . . Fifth and finally, if all other elements of the defense
are satisfactorily established, the defendant must show
that his [or her] reliance on counsel’s advice was made
in good faith.” (Citation omitted; internal quotation
marks omitted.) Christian v. Iyer, 221 Conn. App. 869,
877–78, 303 A.3d 604 (2023).
“In seeking summary judgment, it is the movant who
has the burden of showing the nonexistence of any issue of
fact. The courts are in entire agreement that the moving
party for summary judgment has the burden of showing
J & G Realty, LLC v. Capone
the absence of any genuine issue as to all the material
facts, which, under applicable principles of substantive
law, entitle [the movant] to a judgment as a matter of
law. The courts hold the movant to a strict standard. To
satisfy [its] burden the movant must make a showing
that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of
material fact. . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to
the opponent. . . . When documents submitted in support
of a motion for summary judgment fail to establish that
there is no genuine issue of material fact, the nonmoving
party has no obligation to submit documents establishing
the existence of such an issue. . . . Once the moving party has met its burden, however, the opposing party must
present evidence that demonstrates the existence of some
disputed factual issue. . . . It is not enough, however, for the opposing party merely to assert the existence of such
a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and,
therefore, cannot refute evidence properly presented to
the court under Practice Book § [17-45]. . . . Our review
of the trial court’s decision to grant [or to deny a] motion for summary judgment is plenary.” (Internal quotation
marks omitted.) Unifoods, S.A. de C.V. v. Magallanes,
230 Conn. App. 1, 20–21, 329 A.3d 256 (2024); see also
Dorfman v. Liberty Mutual Fire Ins. Co., supra, 227
Conn. App. 408 (defendant seeking summary judgment
on vexatious litigation claims “bore the initial burden to
negate, with evidence, the factual claims as framed by the
vexatious litigation counts of the complaint”). “Although
the question of what facts constitute probable cause is
one of law, over which our review is plenary . . . when the underlying facts that form the basis for probable cause
are disputed and factual findings relating thereto must
be made by the trier of fact, we cannot make a determination of whether probable cause exists in the exercise
of our plenary review, and summary judgment is not
appropriate.” (Citation omitted.) Dorfman v. Liberty
Mutual Fire Ins. Co., supra, 416–17.
J & G Realty, LLC v. Capone
I
We first address J & G Realty’s claim that the trial
court improperly granted Lathouris’ motion for summary judgment with respect to its vexatious litigation
claim against him. For the reasons that follow, we agree.
The following additional procedural history is relevant to our resolution of J & G Realty’s claim. In the
original complaint filed in the 2012 action, which sought
as relief, inter alia, to dissolve and to wind up the Bongiorno businesses, Marie alleged that (1) she “ha[d] been,
continue[d] to be and/or ha[d] a right to be a member of
[J & G Realty, among other entities], either directly or
by virtue of a durable power of attorney executed in her
favor by George on or about July 2, 2010,” and (2) she
and/or George “own[ed] interests in and [were] partners
[in Bongiorno Brothers, a general partnership, and Bongiorno Childrens Joint Venture #3].” In the November
26, 2013 motion to dismiss directed to Marie’s claims in
the 2012 action, the movants asserted that (1) Marie did
not own any interest in J & G Realty, JGBBNS Realty,
LLC, Bongiorno Brothers, a general partnership, and/
or Bongiorno Gas Island, LLC (four entities), and (2)
“because all of her allegations [were] dependent upon
her having an ownership interest in [the four] entities,
she ha[d] no standing to pursue her claims through the
[2012] action.” In a posthearing memorandum, Marie
relied on certain “fully executed assignment documents”
to assert that George had conveyed his interests in the
four entities to her in October 2010.
In the May 30, 2014 decision, issued following an
evidentiary hearing, Judge Truglia found as follows.
“[Marie] commenced a dissolution of marriage action
against [George] sometime prior to the fall of 2010.
In October of 2010, after [Marie] had commenced the
dissolution of marriage action, [George] executed four
documents purporting to be assignments of his entire
ownership interests in each of the four [entities] [(October 2010 assignments)]. . . . [The October 2010 assignments]
were executed at [George and Marie’s] home, and the only
J & G Realty, LLC v. Capone
persons present at the time were [George], [Marie] and
Mary Badoyannis, who at the time represented [Marie] 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. . . . Unaccountably, [the
October 2010 assignments] were never delivered to any
representative of the [four entities] but were retained in
[Badoyannis’] files. . . . [Maurice] and [Frank] [credibly
testified] that the first time they learned of the existence of [the October 2010 assignments] was in the spring of
2013, when they were produced as part of [Marie’s and
Bridjay’s] discovery compliance in [the 2012] action.”
(Citations omitted.) The court later stated that Marie’s
claimed ownership interests in the four entities were
“based primarily on the October 2010 assignments, but
also on [her] testimony that she believed she had some
type of interest in each of the [four entities], although
she could not be sure of the exact nature of each interest.”
The court determined that Marie was not a member
or a partner of the four entities in June 2012, such that
she was not statutorily aggrieved when she commenced
the 2012 action. With respect to J & G Realty, the court
determined that (1) pursuant to J & G Realty’s governing operating agreement, the assignment of George’s
interest in J & G Realty to Marie in October 2010 was
“ ‘null and void and of no effect whatever’ ” as a result
of the lack of notice of the assignment to J & G Realty’s
members and (2) at no relevant time did George own any
nonvoting units in J & G Realty, which units were “freely
transferable to family members under the [governing]
operating agreement . . . .” The court further determined
that Marie had “not demonstrated a specific, personal
or legal interest in any of the [four entities] sufficient
to enable her, as a matter of law, to bring [a] derivative
action for dissolution and winding up of [the four entities]. The court respectfully disagree[d] with [Marie’s]
argument that the mere existence of the [October 2010]
assignments [was] sufficient evidence of ownership to
confer standing in an action for dissolution and winding up.” Additionally, the court determined that the
J & G Realty, LLC v. Capone
movants had “shown by a preponderance of the evidence
that [Marie] could not prove a membership or partnership
[interest] in any of the [four entities] if the [2012 action] proceeded further, and the issue of [Marie’s] standing
[was] therefore properly before the court by motion to
dismiss.” (Emphasis omitted.)
In Bongiorno I, this court concluded that Judge Truglia properly granted the motion to dismiss in the May 30,
2014 decision, determining that, “in [June 2012], when
[Marie] commenced the [2012] action, she did not have
an ownership interest in any of the [four entities] . . . .” Bongiorno v. J & G Realty, LLC, supra, 162 Conn. App.
438. This court stated that the October 2010 assignments
“were never delivered to any representatives of the [four
entities], and the [four entities] first learned of these
documents in the spring of 2013”; id., 437; and, with
regard to J & G Realty, “[its] operating [agreement] . . .
provide[d] that a transfer of interest is only effective once [it] has received notice, and that any transfer that does
not provide notice will be ‘null and void.’ ” Id., 437–38.
On July 21, 2014, while Marie’s appeal from the May
30, 2014 decision was pending and after Lathouris had
filed an appearance in the 2012 action, Marie and Bridjay filed a motion to open and to vacate the May 30,
2014 decision on the sole ground that the November 26,
2013 motion to dismiss should have been forwarded to
and adjudicated by an arbitrator. On October 20, 2014,
Lathouris filed a caseflow request seeking permission to
submit supplemental legal authority in support of the
motion to open and to vacate, stating that “[t]he gist of
[Marie’s] submission will be that, even though the court
found she was not a member or partner of the [four]
entities, she is and was an assignee and/or transferee
of [George’s] interests and therefore . . . entitled to the distributions attributable to George’s interests and thus
she had standing to pursue her claims.” The trial court
did not rule on the caseflow request. On November 14,
2014, the court denied the motion to open and to vacate.
J & G Realty, LLC v. Capone
On March 16, 2015, while Marie’s appeal from the
May 30, 2014 decision remained pending, Judge Tierney
granted Bridjay’s motion to cite in Marie as a plaintiff,
as well as Bridjay’s simultaneous request for leave to file an eight count amended complaint, which, in addition
to seeking to dissolve, to wind up, and to distribute the
assets of the Bongiorno businesses along with injunctive relief, asserted claims sounding in oppression of a
minority member/shareholder/partner interest, breach
of fiduciary duty, fraud, unjust enrichment, statutory
theft in violation of General Statutes § 52-564, and a
violation of the Connecticut Unfair Trade Practices Act
(CUTPA), General Statutes § 42-110a et seq. In support
of each of the eight counts, Marie and Bridjay alleged
that, “[a]t all times in and after October 2010, [Marie],
pursuant to written transfers duly executed by George,
claim[ed] an interest either as a member, partner, transferee or distributee, in [the four entities as well as certain ‘Loans Receivable’].”
On May 5, 2016, following the release of Bongiorno I
and our Supreme Court’s ensuing denial of the petition,
Marie and Bridjay filed a 109 count second revised complaint13 in which they alleged claims sounding in breach
of fiduciary duty, fraud, unjust enrichment, statutory
theft in violation of § 52-564, and violations of CUTPA.14
Marie alleged in relevant part that she had an “interest
as a transferee and/or distributee” of the four entities
by virtue of the October 2010 assignments.
On July 5, 2018, Marie and Bridjay filed their operative complaint in the 2012 action, in which they asserted
claims sounding in breach of fiduciary duty, fraud, and
13
On October 26, 2015, Marie and Bridjay filed a revised complaint in response to a request to revise filed on September 17, 2015; however, the trial court later ruled that the revised complaint did not conform to the request to revise.
14
In addition, Bridjay, alone, alleged claims of oppression of a minority member/shareholder interest and sought to dissolve, to wind up, and to distribute the assets of several business entities along with injunctive relief.
J & G Realty, LLC v. Capone
unjust enrichment.15 Marie alleged in relevant part that,
as a result of the October 2010 assignments, she was
a “transferee” with a “50 percent . . . interest in the
economic distributions” of J & G Realty, Bongiorno
Brothers, a general partnership, and Bongiorno Gas
Island, LLC, and that she had “economic interests” in
those three entities.16 In their posttrial brief filed in
the 2012 action, Marie and Bridjay maintained that,
by virtue of the October 2010 assignments, Marie was
an “economic transferee” of George’s interests in J &
G Realty, Bongiorno Gas Island, LLC, and Bongiorno
Brothers, a general partnership.
In the March 12, 2019 decision, Judge Tierney stated
that it was “not necessary . . . to determine whether or
not [Marie] possesses an economic interest in [J & G
Realty, among other entities]” because he was “find[ing]
the issues against [Marie on] all of her counts . . . for the following reasons: (1) [Marie] is prevented by res judicata from litigating [her] claim as an economic transferee . .
. [because] she had the opportunity to litigate the claim
earlier and the claim that was litigated was denied on
the merits [in the May 30, 2014 decision] and affirmed
by our appellate courts;17 (2) [t]here was no proof of
any financial distribution that has or had been made to
any of the members of [J & G Realty, among other entities] after the date of the alleged transfer to [Marie]; (3) [t]here is no dissolution of [J & G Realty, among other
entities] that has taken place and therefore an economic
transferee is not entitled to share in that distribution,
15
Marie and Bridjay later abandoned claims of statutory theft in violation of § 52-564 and violations of CUTPA that they had raised in the operative complaint filed in the 2012 action. See footnote 8 of this opinion. Additionally, Bridjay, alone, alleged claims of oppression of a minority member/shareholder interest and sought to dissolve, to wind up, and to distribute the assets of the plaintiffs.
16
Before filing their operative complaint in the 2012 action, Marie and Bridjay withdrew their claims against JGBBNS Realty, LLC, in which Marie previously had alleged an interest.
17
Elsewhere in his decision, Judge Tierney noted that Marie’s economic interest claim was “based on the same documents, the same testimony, the same evidence, and the same facts” considered by Judge Truglia in the May 30, 2014 decision.
J & G Realty, LLC v. Capone
and (4) [Marie] has no standing to make these claims
against [J & G Realty, among other entities, because]
those claims would be common to all individual members and partners” and had to be asserted in a derivative
action.18 (Footnote added.)
On appeal from the March 12, 2019 decision, Marie
claimed error as to only two of the four bases underlying the judgment rendered against her, namely, that (1)
her claims were barred pursuant to the doctrine of res
judicata and (2) she lacked standing. Bongiorno v. J & G
Realty, LLC, supra, 211 Conn. App. 320. In Bongiorno
II, this court concluded that Marie’s appeal was moot
because she failed to challenge each independent basis
for the judgment. Id. As this court explained: “Given
the facts and circumstances of the [2012 action], we
resolve Marie’s appeal on the basis of appellate mootness.
[Marie’s] appeal presents two justiciability questions that implicate both this court’s and the trial court’s subject
matter jurisdiction, and we are cognizant of the importance of resolving issues of standing prior to addressing
the merits of a plaintiff’s claims. In the [2012 action],
however, the issue of Marie’s standing as the holder of an
economic interest was not clearly analyzed or decided by
the trial court in its memorandum of decision. Because
Marie failed to challenge each independent basis for the
trial court’s decision, we conclude that this court lacks
subject matter jurisdiction. Accordingly, we do not reach
the merits of her claims and dismiss her appeal as moot.”
Id., 322–23.
Turning back to the present action, in count twentyone of the plaintiffs’ operative complaint, J & G Realty
alleged in relevant part that (1) Marie, in bringing the
2012 action, claimed that she was a member and/or had
a right to be a member of J & G Realty, (2) in the May
18
Notwithstanding the grounds that it enumerated for declining to address the merits of Marie’s economic interest claim, the court stated that “the parties expect that the court will make a finding on the viability of the October 2010 [assignments] . . . .” Relying in part on the May 30, 2014 decision, the court proceeded to determine that the October 2010 assignments were null and/or void.
J & G Realty, LLC v. Capone
30, 2014 decision, Judge Truglia found that Marie was
not a member of J & G Realty when she commenced the
2012 action, whereupon he dismissed her claims, (3) this
court affirmed the May 30, 2014 decision in Bongiorno
I, and, on March 2, 2016, our Supreme Court denied the
petition, (4) Marie did not have probable cause to commence the 2012 action, or to continue prosecuting the
2012 action following our Supreme Court’s denial of the
petition, because (a) she falsely claimed to be a member
of J & G Realty, (b) she falsely claimed to have a right to be a member of J & G Realty, (c) she had no evidence to
support her claims against J & G Realty, and/or (d) she
lacked standing to assert claims against J & G Realty,19
and (5) on May 5, 2016, Lathouris filed the second revised
complaint in the 2012 action on behalf of Marie “when he
knew or should have known that there was no probable
cause underlying [Marie’s] allegations, after [the May
30, 2014 decision] became a final judgment [when our
Supreme Court denied the petition on] March 2, 2016.”
In his answer, Lathouris denied J & G Realty’s material
allegations.
In moving for summary judgment, Lathouris claimed
that there were no genuine issues of material fact and
that, as a matter of law, he was entitled to summary
judgment on J & G Realty’s vexatious litigation claim
against him. Lathouris contended that (1) there remained
“a dispute over the validity of George’s gift of his 50
percent share [of J & G Realty] to his children” in 2012,
as Marie still maintains that George transferred his
interest in J & G Realty to her in October 2010, and (2)
in the May 30, 2014 decision, Judge Truglia “did not rule
that the transfer [of George’s interests in J & G Realty
to her in October 2010] did not happen, but ruled on
the narrow issue that the transfer was not perfected,”
whereupon he found that she was not a member of J &
G Realty, thereby depriving her of standing to seek the
dissolution and winding up of J & G Realty. Lathouris
19
J & G Realty further alleged that Marie lacked probable cause to continue prosecuting the 2012 action for the reasons enumerated in the May 30, 2014 decision.
J & G Realty, LLC v. Capone
maintained that, in the May 30, 2014 decision, Judge
Truglia “did not find that Marie had no property interest in [J & G Realty, among other entities], nor did [he]
find that George’s transfers of [George’s] interests to
Marie [by way of the October 2010 assignments] were
void or invalid”; (emphasis omitted); such that Marie
was not precluded from later raising the “different legal
theory” that George had transferred an economic interest
in J & G Realty to her in October 2010. Lathouris further asserted that he had a legitimate ground to pursue
Marie’s economic interest claim on the basis of, inter
alia, information that he had obtained from Marie and
her prior attorneys in the 2012 action.
Lathouris also contended that the doctrine of res judicata did not bar Marie’s claims raised following our
Supreme Court’s denial of the petition. Quoting Marie’s
argument in her posttrial brief filed in the 2012 action,
Lathouris recited that “[she] was properly rejoined to
[the 2012 action], that the [May 30, 2014 decision] was
only related to her standing as a member of the [four]
entities, that [the May 30, 2014 decision was] not a final
judgment to which res judicata [was] applicable, and that
she [was] . . . asserting claims which [were] not barred
by the doctrine of res judicata.” Moreover, Lathouris
noted that (1) Judge Tierney, following the May 30, 2014
decision, granted Bridjay’s motion to cite in Marie as a
plaintiff in the 2012 action, and no motion to dismiss
directed to Marie was filed thereafter, and (2) in affirming the March 12, 2019 decision in Bongiorno II, this court
commented that “the issue of Marie’s standing as the
holder of an economic interest was not clearly analyzed
or decided by the trial court in its memorandum of decision”; Bongiorno v. J & G Realty, LLC, supra, 211 Conn.
App. 323; which Lathouris construed as referring to the
May 30, 2014 decision.
In sum, Lathouris maintained that, following our
Supreme Court’s denial of the petition, he “had probable cause to pursue Marie’s cause of action under the
theory that she was an economic transferee as he had
J & G Realty, LLC v. Capone
a reasonable, good faith belief in the facts alleged and
the validity of the claim asserted.” Among the exhibits
submitted by Lathouris in support of his motion for summary judgment were the transcripts of his deposition
taken in connection with the present action, as well as
his testimony during the evidentiary hearing held on an
application for a prejudgment remedy filed in the present
action (prejudgment remedy hearing).
In its memorandum of law in opposition to Lathouris’
motion for summary judgment, J & G Realty argued
that (1) “[t]he sole [claim] . . . against Lathouris [is] for him bringing Marie back into the [2012 action] after [the
May 30, 2014 decision holding] that she did not have
standing,” (2) “[a]t all times after Lathouris entered his
appearance in the [2012 action], during July 2014, [he]
had actual knowledge that Marie did not have standing
and that Marie did not have any interest, economic or
otherwise, that would allow her to claim standing in the
[2012 action],” relying on (a) George’s conveyance of his
interest in J & G Realty to his children in 2012, (b) J &
G Realty’s governing operating agreement, and (c) the
May 30, 2014 decision, as affirmed on appeal, and (3)
Lathouris’ reasoning for prosecuting the 2012 action
on Marie’s behalf boiled down to him “disagree[ing]”
with the May 30, 2014 decision and this court’s decision affirming it, which was not sufficient to establish
probable cause. Among the exhibits submitted by J &
G Realty was an affidavit of Maurice, which attached
several supporting exhibits.
In his reply memorandum, Lathouris maintained that
(1) the May 30, 2014 decision was narrow, such that he
“in good faith determined that [Judge Truglia] had not
ruled on Marie’s economic interest and proceeded under
that theory,” (2) there remained a dispute as to whether
George transferred his interest in J & G Realty to Marie
in 2010, rather than to his children in 2012, (3) J & G
Realty’s governing operating agreement did not undermine the theory that Marie was an economic transferee of
George’s interest in J & G Realty, and (4) J & G Realty did
J & G Realty, LLC v. Capone
not submit evidence creating a genuine issue of material
fact with respect to the issue of probable cause.
In granting Lathouris’ motion for summary judgment,
the court, Hon. Edward T. Krumeich II, judge trial referee, determined that (1) Lathouris had demonstrated the
lack of a genuine of material fact and that, as a matter of law, he was entitled to summary judgment, and (2) J & G
Realty failed to submit any evidence creating a genuine
issue of material fact. The court stated that “the undisputed facts demonstrated that . . . Lathouris reasonably
concluded [that] Marie had a case to present to protect
her economic interests in [J & G Realty, among other
entities]. Lathouris understood that Judge Truglia had
not ruled [in the May 30, 2014 decision] on whether Marie
had . . . economic interest[s] in [J & G Realty, among
other entities]. There is no hint of dishonesty on the
part of Lathouris in espousing Marie’s economic interest [claim]. Nor is there evidence of a manifest disregard
of the law. As an advocate, Lathouris was not required
to credit the adverse evidence submitted by his opponents if there was a reasonable basis for bringing Marie
back into the [2012 action]. His belief in the viability of her [claim] was also supported by [the] lack of a motion
to dismiss the economic interest [claim] [pursued] by
Marie. Based on the facts known to him, Lathouris had
probable cause to believe, in good faith, that Marie had
viable claims that [the] alleged mismanagement of [J &
G Realty, among other entities] harmed her economic
interests even though she was not a member of [those
entities].” In a footnote, the court also stated in relevant part that “[t]here was ample evidence for Lathouris to
conclude that there had been a transfer and Marie was
oppressed by those in control of [J & G Realty, among
other entities]. The evidence to the contrary on the merits of the [2012 action] submitted . . . in opposition to
[Lathouris’] motion [for summary judgment] does not
create an issue of fact as to Lathouris’ belief in the case presented to the court in the motion to cite in Marie [in
J & G Realty, LLC v. Capone
the 2012 action], the second revised complaint [filed on
May 5, 2016], or at trial.”
Additionally, the court rejected J & G Realty’s argument that, “as a matter of law, Lathouris’ belief that
there was a viable claim was wrong because the [May
30, 2014 decision] was a final judgment and res judicata
preclude[d] not only the issues that were raised but also
those issues that could have been raised,” reasoning
that, “[w]hile this may be a correct statement of the
law, it does not mean Lathouris lacked probable cause
because even a mistaken belief about a nonmeritorious
issue may satisfy probable cause.” Citing Bongiorno II,
the court stated that “the issue of whether the transfer
created an economic interest in [J & G Realty, among
other entities] was not decided by Judge Truglia . . .
which implicated the third condition for res judicata
that there must have been an adequate opportunity to
litigate the matter fully. . . . Lathouris cannot be held
to have constructive knowledge of the grounds for issue
preclusion, identified by neither the parties nor the [trial] court when Judge Truglia dismissed Marie’s claim as a
member of [J & G Realty, among other entities] for lack
of standing, that Judge Tierney would later find after
trial that the [May 30, 2014 decision] precluded her
claim as an alleged economic interest holder in [those
entities].” (Citations omitted; internal quotation mark
omitted.) The court further stated that (1) “[t]he evidence demonstrated [that] Lathouris subjectively believed in
good faith that the economic interest claim he asserted
on Marie’s behalf had not been precluded by [the May 30,
2014] decision” and (2) Judge Tierney’s conclusion in the
March 12, 2019 decision that Marie’s claims were barred
by res judicata, as well as “[this court’s] recognition of
the narrow ground of [the March 12, 2019 decision],
should not be considered relevant to Lathouris’ state of
mind when he introduced the economic interest theory
into the [2012 action].”
On appeal, J & G Realty maintains that the court
improperly granted Lathouris’ motion for summary
J & G Realty, LLC v. Capone
judgment as to its vexatious litigation claim against
him because the court (1) applied the wrong legal standard with respect to probable cause and (2) incorrectly
concluded that Lathouris was entitled to summary judgment as a matter of law. For the reasons that follow, we
conclude that the court improperly rendered summary
judgment in Lathouris’ favor.
A
We first turn to J & G Realty’s claim that the court
applied the wrong legal standard for probable cause,
which raises a question of law subject to plenary review.
See J. Y. v. M. R., 215 Conn. App. 648, 665, 283 A.3d
520 (2022) (“[t]he question of whether the court applied
the correct legal standard is a question of law subject
to plenary review”). As we delineated previously, the
probable cause standard applied to a vexatious litigation
action is objective. See Rousseau v. Weinstein, supra,
204 Conn. App. 854 (“[I]n assessing probable cause . . .
the critical question . . . [is] whether on the basis of
the facts known by the law firm, a reasonable attorney
familiar with Connecticut law would believe he or she
had probable cause to bring the lawsuit. . . . As is implied by its phrasing, the standard is an objective one that is
necessarily dependent on what the attorney knew when he
or she initiated the lawsuit.” (Internal quotation marks
omitted.)). In granting Lathouris’ motion for summary
judgment, the court identified the correct legal standard
for probable cause, expressly stating that the standard
“is a purely objective one.” (Internal quotation marks
omitted.) As highlighted by J & G Realty, however, the
court made statements indicating that it had inserted
a subjective element into the probable cause standard,
including that (1) “[t]he evidence demonstrated [that]
Lathouris subjectively believed in good faith that the
economic interest claim he asserted on Marie’s behalf
had not been precluded by [the May 30, 2014 decision]”
and (2) Judge Tierney’s conclusion in the March 12, 2019
decision that Marie’s claims were barred by res judicata
“and [this court’s] recognition of the narrow ground of
J & G Realty, LLC v. Capone
[the March 12, 2019 decision] should not be considered
relevant to Lathouris’ state of mind when he introduced
the economic interest theory into the [2012 action].”
Insofar as these statements reflect that the court failed
to apply the requisite objective probable cause standard,
the court committed error.
Our inquiry does not end there. In light of our plenary
review of the court’s grant of Lathouris’ motion for summary judgment, as well as the question of whether probable cause existed, any error by the court in its application of the probable cause standard does not in and of itself
require reversal of the summary judgment rendered in
Lathouris’ favor; rather, applying the correct probable
cause standard, we proceed to consider the merits of J &
G Realty’s claim on appeal.20 See Rousseau v. Weinstein,
supra, 204 Conn. App. 856 and n.12 (notwithstanding
trial court’s presumed application of incorrect probable
cause standard in granting motions for summary judgment in vexatious litigation action, this court addressed
merits of whether defendants had probable cause in light
of this court’s plenary review regarding probable cause
and trial court’s grant of motion for summary judgment);
Charlotte Hungerford Hospital v. Creed, 144 Conn. App.
100, 116, 72 A.3d 1175 (2013) (trial court’s application
of incorrect probable cause standard in adjudicating
motion for summary judgment in vexatious litigation
action did “not end [this court’s] inquiry” given this
court’s plenary review regarding probable cause).
20
Citing State v. Williams, 350 Conn. 363, 324 A.3d 760 (2024), and Deroy v. Estate of Baron, 136 Conn. App. 123, 43 A.3d 759 (2012), J & G Realty argues that the court’s failure to apply the correct probable cause standard, without more, mandates reversal of the summary judgment rendered in Lathouris’ favor. In Williams and Deroy, however, the trial courts applied improper legal standards in the context of a trial, making those cases procedurally distinguishable from the present action. See State v. Williams, supra, 376–79; Deroy v. Estate of Baron, supra, 126–27; see also Rousseau v. Weinstein, supra, 204 Conn. App. 856–57 n.12 (deeming cases cited by plaintiffs, including Deroy, in support of argument that trial court’s application of incorrect legal standard required reversal of summary judgments to be “distinguishable procedurally” because those cases involved trial courts’ applications of incorrect legal standards during trial).
J & G Realty, LLC v. Capone
B
We next turn to J & G Realty’s claim that the court
improperly concluded that, as a matter of law, Lathouris
was entitled to summary judgment as to its vexatious
litigation claim against him. J & G Realty’s dispositive contention is that, following our Supreme Court’s
denial of the petition on March 2, 2016, Lathouris lacked
probable cause to file the May 5, 2016 second revised
complaint in the 2012 action asserting claims on behalf
of Marie predicated on the theory that she held an economic interest in J & G Realty.21 We agree.
Preliminarily, we note that Lathouris’ evidentiary
submissions in support of his motion for summary judgment do not reflect that there were no genuine issues of
material fact regarding the issue of probable cause such
that he would be entitled to summary judgment as a matter of law. Specifically, Lathouris’ deposition testimony
and his testimony during the prejudgment remedy hearing demonstrated that he was aware of the May 30, 2014
decision, along with this court’s decision affirming the
May 30, 2014 decision in Bongiorno I and our Supreme
Court’s denial of the petition, when on May 5, 2016, he
filed the second revised complaint in the 2012 action.
Although Lathouris testified that he interpreted the May
30, 2014 decision as not precluding him from pursuing
Marie’s economic interest claim in the 2012 action, his
subjective reading of the May 30, 2014 decision is of no
moment; rather, the proper inquiry is whether a reasonable attorney familiar with Connecticut law would
have believed that, on May 5, 2016, when Lathouris
filed the second revised complaint in the 2012 action,
probable cause existed to support Lathouris’ decision to
pursue Marie’s economic interest claim. See Rousseau v.
Weinstein, supra, 204 Conn. App. 854. We answer that
inquiry in the negative.
21
J & G Realty further contends that there was a genuine issue of material fact as to whether Lathouris had probable cause to continue prosecuting the 2012 action through trial. In light of our resolution of J & G Realty’s dispositive claim, we need not address this other contention.
J & G Realty, LLC v. Capone
On the basis of Lathouris’ evidentiary submissions in
support of his motion for summary judgment, including his deposition and the May 5, 2016 second revised
complaint filed in the 2012 action, there was no genuine
dispute that Marie’s claim in the 2012 action that she
maintained an economic interest in J & G Realty was
predicated on the viability of the October 2010 assignment of George’s interest in J & G Realty to her, which
Judge Truglia addressed directly in the May 30, 2014
decision.22 Specifically, in the May 30, 2014 decision,
Judge Truglia found that (1) the October 2010 assignment of George’s interest in J & G Realty to Marie violated the terms of J & G Realty’s governing operative
agreement, thereby rendering the transfer “ ‘null and
void and of no effect whatever,’ ” (2) George did not own
any nonvoting units in J & G Realty at any relevant time,
such that certain “freely transferrable” language of J &
G Realty’s governing operating agreement did not apply
to the October 2010 assignment vis-à-vis J & G Realty,
and (3) George transferred his interest in J & G Realty
to his children in January 2012. Stated otherwise, in
no uncertain terms, Judge Truglia found that George
22
In Bongiorno II, this court made the following statement: “In the present case . . . the issue of Marie’s standing as the holder of an economic interest was not clearly analyzed or decided by the trial court in its memorandum of decision.” Bongiorno v. J & G Realty, LLC, supra, 211 Conn. App. 323. In support of his motion for summary judgment, Lathouris seized on that statement to contend that this court had stated in Bongiorno II that, in the May 30, 2014 decision, Judge Truglia did not address whether Marie held an economic interest in J & G Realty. Lathouris maintains that assertion on appeal. In granting Lathouris’ motion for summary judgment, the trial court, Hon. Edward T. Krumeich II, judge trial referee, ostensibly agreed with Lathouris’ position, citing Bongiorno II in stating that “the issue of whether the [October 2010] transfer[s] created an economic interest in [J & G Realty, among other entities] was not decided by Judge Truglia . . . .” Reading Bongiorno II in its entirety, however, it is clear that this court did not comment on whether Judge Truglia analyzed and decided the economic interest issue in the May 30, 2014 decision. The statement at issue plainly referred to the March 12, 2019 decision, which was the decision on appeal in Bongiorno II and in which Judge Tierney expressly declined to consider the merits of Marie’s economic interest claim. Thus, Lathouris’ reliance on Bongiorno II to contend that Judge Truglia did not address Marie’s economic interest claim in the May 30, 2014 decision is misplaced.
J & G Realty, LLC v. Capone
did not transfer any interest in J & G Realty to Marie
in October 2010 but, instead, transferred his interest
in J & G Realty to his children in January 2012. This
court subsequently affirmed the May 30, 2014 decision
in Bongiorno I, and, on March 2, 2016, our Supreme
Court denied the petition.
Additionally, Lathouris’ evidentiary submissions in
support of his motion for summary judgment demonstrate no genuine dispute that he was not relying on
any new facts or evidence in pursuing Marie’s economic
interest claim. In the May 5, 2016 second revised complaint filed in the 2012 action, Marie alleged that she
had an “interest as a transferee and/or distributee” of
the four entities by virtue of the October 2010 assignments. Moreover, Judge Tierney expressly stated in the
March 12, 2019 decision that Marie’s economic interest
claim pursued at trial in the 2012 action was “based on
the same documents, the same testimony, the same evidence, and the same facts” presented to Judge Truglia
vis-à-vis the motion to dismiss adjudicated in the May
30, 2014 decision.
We conclude that, faced with the foregoing circumstances, a reasonable attorney familiar with Connecticut
law would not have believed that, on May 5, 2016, following our Supreme Court’s denial of the petition, probable
cause existed to pursue the legal theory that Marie held
an economic interest in J & G Realty.23 Accordingly, we
further conclude that the court improperly determined
that, as a matter of law, Lathouris was entitled to summary judgment as to J & G Realty’s vexatious litigation
claim against him.24
23
To support his probable cause claim further, Lathouris relies on (1) Judge Tierney’s grant of Bridjay’s motion to cite in Marie as a plaintiff in the 2012 action and (2) the lack of a motion to dismiss filed thereafter directed to Marie. In short, we are not persuaded that Judge Tierney’s ruling citing in Marie as a plaintiff in the 2012 action or the lack of a motion to dismiss Marie from the 2012 action for a second time have any bearing on Lathouris’ probable cause.
24
As an alternative ground for affirmance, Lathouris claims that there was no genuine issue of material fact as to whether J & G Realty sustained damages as a result of his alleged conduct concerning Marie.
J & G Realty, LLC v. Capone
II
We next turn to the plaintiffs’ claim that the trial court
improperly rendered summary judgment in Bridjay’s
favor with respect to their vexatious litigation claims
against her. For the reasons that follow, we agree.
The following additional procedural history is relevant
to our discussion of this claim. In counts eleven through
thirteen of the operative complaint filed in the present
action, the plaintiffs, respectively, alleged that Bridjay commenced the 2012 action without probable cause
because (1) she had no evidence to support her claims and/
or (2) she was unable to prove any of her claims. Counts
sixteen through eighteen substantively tracked counts
eleven through thirteen, except for additional allegations
that Bridjay commenced the 2012 action with malice.
In her answer, Bridjay denied that she lacked probable
cause. Additionally, in her seventh special defense, Bridjay alleged that she relied on the advice of counsel in
commencing the 2012 action.
In moving for summary judgment with respect to
the plaintiffs’ claims against her, Bridjay maintained
that there were no genuine issues of material fact as to
See Hamer v. Byrne, 231 Conn. App. 53, 80, 333 A.3d 158 (“[t]he plaintiff in a vexatious [litigation] action, like any other plaintiff, has the burden of proving damages” (internal quotation marks omitted)), cert. denied, 351 Conn. 930, 334 A.3d 482 (2025), and cert. denied, 351 Conn. 930, 334 A.3d 483 (2025). Specifically, Lathouris maintains that there was no genuine dispute that, regardless of whether Marie was cited back into the 2012 action, J & G Realty would have incurred the same expenses by litigating Bridjay’s claims in the 2012 action. In particular, Lathouris relies on depositions of Maurice, Frank, and Mark F. Katz, J & G Realty’s trial counsel in the present action who also represented it in the 2012 action, that he submitted in support of his motion for summary judgment. Lathouris raised this claim in his motion for summary judgment, but the court declined to address it on the merits.
In short, we reject Lathouris’ alternative ground for affirmance because, at a minimum, nominal damages may be awarded to J & G Realty as to its vexatious litigation claim against him. See id., 81–83 (affirming judgment awarding nominal damages with respect to certain vexatious litigation counts asserted in counterclaim when counterclaim plaintiffs’ legal fees vis-à-vis vexatious action against them had been paid by another party and counterclaim plaintiffs failed to provide evidence to measure their loss as to other compensatory damages).
J & G Realty, LLC v. Capone
whether (1) she had probable cause to commence and to
maintain the 2012 action, or, alternatively, (2) she relied in good faith on the advice of counsel. Regarding probable
cause, Bridjay contended that (1) Badoyannis “unearthed
inconsistencies, irregularities, and improprieties in the
way George (and later, [Frank and Maurice]) were operating the [plaintiffs], [and] [a]s the digging continued via . . . [Joseph Michael] Pastore [III] and [Lathouris], the belief in the improprieties and mismanagement increased,”
and (2) an expert witness report prepared by Michael
R. Blezard dated November 14, 2013, prepared in connection with the 2012 action, set forth the opinion that
her damages “were in the millions of dollars range.”
With respect to her advice of counsel defense, Bridjay
asserted that she met every element of the defense vis-à-vis Richard S. Order, who represented her at the outset
of the 2012 action; see footnote 6 of this opinion; including that (1) she met with Order before commencing the
2012 action “to determine if there were grounds for legal
action as [Badoyannis] opined”; (emphasis omitted); and
(2) she relied, in good faith, on Order’s advice to commence the 2012 action. Moreover, Bridjay asserted that
she relied on the advice of Pastore and Lathouris, who
later represented her in the 2012 action; see footnote
6 of this opinion; in continuing to prosecute the 2012
action. Bridjay attached several exhibits in support of
her motion, including a personal affidavit, the transcript
of a deposition of Badoyannis taken in connection with
the present action, and the transcript of the prejudgment
remedy hearing.
In opposing Bridjay’s motion for summary judgment,
the plaintiffs argued that she failed to sustain her burden with respect to probable cause and her advice of counsel
defense. The plaintiffs maintained that (1) Bridjay had
no independent knowledge of wrongdoing but, instead,
relied solely on her counsel to prove her claims in the 2012 action and (2) Bridjay’s counsel failed to detail any acts
or conduct supporting her claims. Among the exhibits
submitted by the plaintiffs was an affidavit of Maurice,
which appended several supporting exhibits.
J & G Realty, LLC v. Capone
In rendering summary judgment in Bridjay’s favor,
the court concluded that, “[b]ased on the evidence submitted by [Bridjay, she] satisfied [her] initial burden of
proof that [she] had probable cause to believe in good
faith [that she] had viable claims against the plaintiffs
and relied on the advice of counsel.” Specifically, the
court determined that Bridjay’s evidentiary submissions
demonstrated no genuine dispute that (1) Badoyannis,
following an investigation into the affairs of the Bongiorno businesses, advised Bridjay of “improprieties”
that adversely affected her, (2) Bridjay had no independent knowledge of the “improprieties” discovered by
Badoyannis, (3) Badoyannis referred Bridjay to Order,
with whom Bridjay, Marie, and Badoyannis met before
the 2012 action had been commenced, (4) Order reviewed
materials provided to him by Badoyannis, told Bridjay
that she had viable claims, and drafted the original complaint filed in the 2012 action, (5) Bridjay commenced
the 2012 action in reliance on the advice of Badoyannis
and Order, (6) Order later withdrew his appearance for
Bridjay, whereupon Badoyannis assisted Bridjay in locating Pastore as replacement counsel, (7) Bridjay relied on
the advice of Badoyannis and Pastore that she had valid
claims to continue prosecuting the 2012 action, and (8)
Pastore later withdrew his appearance for Bridjay and
was replaced by Lathouris, who conveyed to Bridjay that
she had viable claims and represented her at trial in the
2012 action.25
The court next determined that, upon the burden
shifting to the plaintiffs, they failed to demonstrate
the existence of any genuine issues of material fact. As
the court summarized: “The plaintiffs’ arguments . . .
boil down to the assertion that [Bridjay] had no personal
knowledge of the wrongdoing alleged in the [2012 action]
but relied on [her] attorneys in investigating, commencing, and continuing the [2012 action]. In essence, that is
the crux of [Bridjay’s] reliance on the advice of counsel
25
The court further determined that Bridjay’s evidentiary submissions established no genuine dispute that she had not withheld material information from Badoyannis, Order, or Pastore.
J & G Realty, LLC v. Capone
defense; the attorneys conducted the investigation and
discovery, advised [Bridjay that she] had a case, and
[Bridjay] relied in good faith on the advice given by
counsel. The evidence submitted by the plaintiffs goes
to the merits of the claims in the [2012 action] rather
than the probable cause and advice of counsel defense
advanced by [Bridjay].”
The plaintiffs’ dispositive assertion on appeal is that
the court improperly rendered summary judgment in
Bridjay’s favor because she failed to establish the lack
of a genuine dispute that she consulted with Order prior
to commencing the 2012 action.26 We agree.27
In her personal affidavit submitted in support of
her motion for summary judgment, Bridjay averred
26
The plaintiffs further contend that there were genuine issues of material fact concerning whether Bridjay relied, in good faith, on the advice of counsel in commencing the 2012 action. In light of our resolution of the plaintiffs’ dispositive claim, we need not address this additional contention.
27
Bridjay argues that we should dismiss the portion of this amended appeal challenging the summary judgment rendered in her favor because, in their principal appellate brief, the plaintiffs framed their claim as challenging the court’s determination regarding her advice of counsel defense without separately briefing a claim of error contesting the court’s determination vis-à-vis probable cause. In essence, Bridjay asserts that the plaintiffs failed to challenge each independent basis for the summary judgment rendered in her favor. See Bongiorno v. J & G Realty, LLC, supra, 211 Conn. App. 322 (“Where an appellant fails to challenge all bases for a trial court’s adverse ruling on [her] claim, even if this court were to agree with the appellant on the issues that [she] does raise, we still would not be able to provide [her] any relief in light of the binding adverse finding[s] [not raised] with respect to those claims. . . . Therefore, when an appellant challenges a trial court’s adverse ruling, but does not challenge all independent bases for that ruling, the appeal is moot.” (Internal quotation marks omitted.)). We are not persuaded.
First, we note that the court did not conduct separate analyses regarding probable cause and Bridjay’s advice of counsel defense in its decision; rather, after detailing Bridjay’s evidentiary submissions in support of her motion for summary judgment, it concluded that Bridjay satisfied her burden both with respect to probable cause and her advice of counsel defense. Second, although the plaintiffs’ principal appellate brief focuses on the court’s determination regarding Bridjay’s advice of counsel defense, their contention that a genuine dispute existed as to whether Bridjay consulted with Order prior to commencing the 2012 action is relevant to probable cause, as well as to her advice of counsel defense, when, as is undisputed in the record, Bridjay had no independent
J & G Realty, LLC v. Capone
in relevant part that (1) Badoyannis informed Bridjay
that, on the basis of materials obtained by Badoyannis, the Bongiorno businesses “may [be] doing things
wrong and violating the law,” (2) Badoyannis recommended that Bridjay consult with Order, (3) Bridjay,
along with Badoyannis and Marie, met with Order, with
whom Badoyannis shared the materials Badoyannis had
gathered regarding the Bongiorno businesses, and (4)
Order, after reviewing the materials shared by Badoyannis, agreed to represent Bridjay and commenced the
2012 action. Two other exhibits submitted by Bridjay,
however, cast doubt as to whether she had met with Order
prior to the commencement of the 2012 action. First,
during the prejudgment remedy hearing, both Bridjay
and Marie testified that they did not remember when they
had met Order for the first time, beyond recalling that
they first met him in Badoyannis’ office. Second, during
her deposition, Badoyannis testified in relevant part that
(1) she had no recollection of attending a meeting with
Order prior to the commencement of the 2012 action,
although she recalled that, at some point, Order’s office
retrieved files from her concerning her investigation into
the Bongiorno businesses, (2) she had no knowledge of the
circumstances surrounding Bridjay’s retention of Order
as counsel in the 2012 action, and (3) she had no recollection of making any recommendation to Order regarding
Bridjay’s claims in the 2012 action. On the basis of this
summary judgment record, we conclude that there was
knowledge of the wrongdoing alleged in the 2012 action. Indeed, in support of her alternative argument in her appellate brief addressing the merits of the court’s determination concerning probable cause, Bridjay maintains that there was no genuine dispute that, inter alia, Order advised her that her claims in the 2012 action had merit. Accordingly, we address on the merits the plaintiffs’ claim against Bridjay.
Bridjay further argues that we should decline to review the plaintiffs’ claim because, in opposing her motion for summary judgment, they failed to raise any argument concerning her advice of counsel defense. The record reflects that the plaintiffs discussed Bridjay’s advice of counsel defense in their memorandum of law in opposition to her motion for summary judgment and during argument on the motion. Moreover, Bridjay’s advice of counsel defense was addressed and decided by the court in rendering summary judgment in her favor. Thus, we reject Bridjay’s argument.
J & G Realty, LLC v. Capone
a genuine factual issue as to whether Bridjay met with
Order prior to commencing the 2012 action, which is
material to the issue of probable cause; see footnote 27
of this opinion; as well as Bridjay’s advice of counsel
defense. Accordingly, we further conclude that the court
improperly rendered summary judgment in Bridjay’s
favor with respect to the plaintiffs’ claims against her.
The judgments are reversed with respect to the summary judgment rendered against J & G Realty, LLC,
as to count twenty-one of the plaintiffs’ third revised
complaint and the summary judgment rendered against
J & G Realty, LLC, 24 Ardmore Street, LLC, and 305
West Avenue, LLC, as to counts eleven through thirteen and sixteen through eighteen, respectively, and the
case is remanded with direction to deny the motions for
summary judgment as to those counts and for further
proceedings according to law; the judgments are affirmed
in all other respects.
In this opinion the other judges concurred.