Crescienzo Boccanfuso v. Giuseppe Boccanfuso et al. (2011)

MEMORANDUM OF DECISION

This matter has come before the court upon the Plaintiff's verified complaint and application for a temporary injunction.

The Plaintiff, Crescienzo Boccanfuso, together with his twin brother, Dominic and younger brother, Joseph, opened an automotive shop in 1970 at property located at 940 Post Road East, Westport, Ct. The business was incorporated in June 1970 and purchased the Post Road property by Warranty Deed dated and recorded in the Westport Town Clerk's office on August 17, 1970.  (D Exh. 1.)

The three brothers held equal one-third shares in the corporation and participated in the business' everyday operation.   The plaintiff operated the body shop;  Dominic handled service and repairs;  and Joseph ran the sales department.   Joseph passed away in 2006 and his son, the defendant Giuseppe took over his ownership interest and virtually the operation of the business.

At some point, the reasons for which were not fully developed at the hearing, the brothers had a falling out with the plaintiff, which carried over with Guiseppe after Joseph's death.   The plaintiff maintained his one-third interest although he no longer actively participated in the operation of the business.   Instead, in 2004, he assisted his two sons in the opening and operation of an automotive repair shop in Bridgeport and devoted his time to that enterprise.

The plaintiff, however, retained his set of keys to 940 Post Road East and routinely entered the premises between 5:00 AM and 6:00 AM before the building was open for business and before anyone else was present.

He testified that he was concerned that the business was not being run properly;  that he was not being apprised of the state of the business;  and that he required access to be able to observe what was going on in light of the fact that there was no communication of any consequence between he and his brothers and nephew.   He therefore entered the building in the early hours so that he could, in an undisturbed manner, check the mail;  check any bank correspondence;  check any notes exchanged between the defendants, and any other items relating to the business.   There was no evidence that he had been denied such information had he so requested.

He pointed to the fact that sometime in 2004 the corporation's Pontiac franchise was the subject of a civil action against O'Keefe Cadillac which resulted in a stipulated judgment in favor of Boccanfuso in the area of $200,000.   He claims not to have received any share of the proceeds from that recovery.   He offered no testimony or evidence that he made any request to the defendants, either to the individual defendants or the corporate defendant, for an accounting or request for an explanation as to how the settlement was utilized.

His testimony also alluded to a concern that the reputation and goodwill of the corporation, as well as his own, was jeopardized by conduct on the property not related to the automotive business.   In late December 2010 he observed and copied an Advisement of Rights by the Westport Police identifying property seized on the premises which included three marijuana plants, (P Exh. C).  In neither of these two instances did he ever broach the subject with his brothers or Guiseppe, nor did he seek any corporate records or accounting.

The incident that apparently triggered this present action involved the removal by the Plaintiff of an amphibian motor vehicle from 940 Post Road East in the early morning hours on December 28, 2010 before the opening of business.   Plaintiff had observed on E–Bay, (an on-line auction internet site), the offering of the amphibian vehicle for sale.   He claims the vehicle has sentimental value as it was in the family since early 1970 and that he wasn't consulted concerning its sale.   He has refused to return it because he doesn't want it sold.   The vehicle is housed at the Plaintiff's sons establishment in Bridgeport although it remains as the defendant corporation's property.   The following morning, December 29, 2010, at approximately 5:00 AM, the Plaintiff was denied access to the business premises.   The locks had been changed and he was greeted at the entrance door by two police officers who advised him that he didn't have authority to enter.

The Plaintiff has instituted this action seeking a temporary injunction prohibiting and restraining the defendants from depriving him of unlimited access to the personal property, real property and the business at 940 Post Road East, Westport, Ct.

He claims that as a one-third shareholder in the defendant corporation that he is entitled to unrestricted access to the property at 940 Post Road East. He claims further that because there is a degradation of the business' goodwill which relates to the family name as well as that of the corporation, financial damages cannot rectify that situation, and consequently irreparable harm will ensue.   And thirdly, that the equities balance in his favor as his presence on the premises poses no harm to the defendants, whereas barring his access would be detrimental to him.

The criteria for granting a temporary injunction requires the plaintiff to establish four elements:  1) That he has no adequate remedy at law;  2) that he would suffer irreparable injury absent an injunction;  3) that he would likely prevail at trial;  and 4) that a balancing of the equities favored a temporary injunction.  Waterbury Teacher's Association v. Freedom of Information Commission, 230 Conn. 441, 446 (1994).

Here, the plaintiff admittedly has not participated in the operation of defendant corporation for many years.   He has not received, nor has he sought any compensation from the business from the day he left its operation.   His reasons for wanting unlimited access, as hereinbefore alluded to, do not appear to be designed to be beneficial to the operation of the business.   Nor has the evidence suggested to the court that it would.   He seeks information that may well be available to him through other means.   He has the right to present himself at the business site during normal working hours and request whatever information he requires.   Should such a request not be honored he has all the legal rights set forth in Chapter 601 of the Connecticut General Statutes governing Business Corporations, including but not limited to an Accounting and a request for a Judicial Dissolution.  CGS. Sec. 33–896 and following.

Also, the equities do not appear to favor the plaintiff under the facts as presented to the court.   His claim that his presence on the premise at non-business hours will cause no damage to the business, whereas, barring him from uninterrupted access would be detrimental to him.   He conveniently overlooks the fact that he removed corporation property without permission, hardly an act that was beneficial to the defendant corporation.   This was conduct that could not have occurred other than at an hour when the business was not open.   He does not come into court with clean hands.

In addition, the plaintiff has failed to show that barring his presence at non-business hours will cause him irreparable injury.   He has presented no evidence that the reputation of the business or of himself or the Boccanfuso family name has been damaged.   His disappointment in the operation of the business can be addressed in accordance with legal rights that are available to him and upon which he may act if so motivated.

Finally, in short, the evidence falls short of establishing that the plaintiff would likely prevail at a trial on the merits.

The plaintiff's application for temporary injunction is Denied.

The Court

MAIOCCO, J.T.R.

Maiocco, John P., J.T.R.