Charter Oak Health Center, Inc. v. Barcelona

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Charter Oak Health Center, Inc. v. Barcelona

CHARTER OAK HEALTH CENTER, INC., ET AL.
v. VERONICA BARCELONA ET AL.
(AC 47732)
Suarez, Clark and Westbrook, Js.

Syllabus

The plaintiff nonstock corporation and five individual plaintiffs in their
capacity as members of the corporation’s board of directors and on the
corporation’s behalf appealed from the trial court’s judgment dismissing
their action against the defendants, three members of the corporation’s
board of directors, for lack of subject matter jurisdiction on the basis that
the individual plaintiffs lacked standing to bring the action. The plaintiffs
claimed that the court improperly dismissed the action, which sought declar-
atory and injunctive relief pursuant to the Connecticut Revised Nonstock
Corporation Act (§ 33-1000 et seq.), because the individual plaintiffs have
standing pursuant to statute (§ 33-1089 (a)). Held:

The trial court improperly dismissed the plaintiffs’ action for lack of subject
matter jurisdiction, as the individual plaintiffs were aggrieved persons within
the meaning of § 33-1089 (a) and, therefore, had standing to bring the action.
Argued June 4—officially released September 2, 2025

Procedural History

Action for injunctive and declaratory relief with
respect to the corporate governance of the named plain-
tiff and the validity of certain actions of its board of
directors, brought to the Superior Court in the judicial
district of Hartford and transferred to the Complex
Litigation Docket, where Joel Cruz et al. were added
as plaintiffs; thereafter, the court, Noble, J., granted the
defendants’ motion to dismiss and rendered judgment
thereon, from which the plaintiffs appealed to this
court. Reversed; judgment directed; further proceed-
ings.
Patrick M. Fahey, for the appellants (plaintiffs).
Linda L. Morkan, with whom were Kathleen E. Dion
and, on the brief, Jenna M. Scoville, for the appellees
(defendants).
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Opinion

WESTBROOK, J. In this corporate governance dis-
pute, the plaintiffs, Charter Oak Health Center, Inc.
(Charter Oak), and Adrian Wood, Joel Cruz, Martin
John, Eileen Alvarado, and Leslie Arroyo, in their capac-
ity as members of the board of directors of Charter
Oak and on behalf of Charter Oak, appeal from the
judgment of the trial court dismissing their action
against the defendants, Veronica Barcelona, Claudius
McNish, and Lolita Young, for lack of subject matter
jurisdiction on the basis that the individual plaintiffs
lacked standing to bring the action. The plaintiffs claim
that the court improperly dismissed the action because
the individual plaintiffs have standing pursuant to Gen-
eral Statutes § 33-1089.1 We agree and, accordingly,
reverse the judgment of the court.
The following facts, as alleged by the plaintiffs and
stipulated to by the parties, and procedural history are
relevant to this appeal. Charter Oak is a federally quali-
fied health center that serves underserved areas by
providing outpatient primary care, specialty medical
services, behavioral health services, and dental ser-
vices. On November 15, 2023, the board of directors of
Charter Oak held a regularly scheduled meeting. At that
time, the nine elected members of Charter Oak’s board
of directors were Wood, Cruz, Alvarado, John, Arroyo,
Barcelona, Joy-Lynn Hardy, McNish, and Young. Kimb-
erly Evans, Charter Oak’s general counsel, vice presi-
dent, and chief of compliance and legal affairs, as well
1
The plaintiffs also claim that the individual plaintiffs have standing to
bring the action because (1) they are classically aggrieved, (2) Charter Oak
waived the term limit provision of its bylaws, and (3) Charter Oak’s bylaws
do not authorize employees to remove board members. In light of our
reversal on the basis that the individual plaintiffs have standing pursuant
to § 33-1089 (a), we do not reach these claims.
In addition, with respect to Charter Oak, § 33-1089 (c) provides in relevant
part that ‘‘[t]he corporation shall be made a party to any proceeding under
this section . . . .’’
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Charter Oak Health Center, Inc. v. Barcelona

as Rick Markello, Charter Oak’s interim chief financial
officer, were also present at the meeting. During the
meeting, ‘‘Markello repeatedly expressed that, in his
view, some board members were beyond the term limits
set forth in the Charter Oak bylaws and could not serve
as board members.’’ Wood, the chairperson of the board
of directors, stated that ‘‘the board would not address
the term limits issue at that meeting, electing instead
to move the question to the board’s executive session.’’
Six days later, on November 21, 2023, Evans sent
emails to Wood, Cruz, and John, each containing a letter
stating that, ‘‘pursuant to Charter Oak’s bylaws [he or
she] had exceeded the six year term limit for service
on the board of directors.’’2 Later that day, Evans called
Hardy and expressed her view that Wood, Cruz, and
John ‘‘had been on the board for too long and were no
longer board members.’’ Evans asked Hardy to partici-
pate in a ‘‘shadow board meeting’’ the next day to elect
a new chairperson of the board, but Hardy, believing
that Wood, Cruz, and John were still legitimate mem-
bers of the board of directors, ‘‘refused to participate
in the board meeting . . . .’’ Despite Hardy’s disagree-
ment, Evans scheduled a meeting for the next day.
After her conversation with Evans, Hardy informed
Wood that Markello, Evans, and Timothy Powers, Char-
ter Oak’s vice president of corporate compliance, were
‘‘trying to seize control of the board of directors by
assembling a rogue board and electing a new chairper-
son and [chief executive officer (CEO)].’’ In response,
Wood, Cruz, John, and Hardy held a meeting and voted
to offer a permanent position to Thomas Maynor, Char-
ter Oak’s interim CEO, and to suspend Markello, Evans,
2
Article four, § 2, of Charter Oak’s bylaws provides in relevant part that
the terms of board members ‘‘shall expire at the end of each [a]nnual
[m]eeting . . . . Newly-elected [d]irectors shall hold office for a term of
two . . . years or until their successors [are] elected, but in no event shall
a [d]irector hold office for more than three . . . consecutive terms.’’
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and Powers. They also voted to remove the term limit
provision from Charter Oak’s bylaws. The next day, on
November 22, 2023, Maynor emailed letters to Markello,
Evans, and Powers, informing them that they had been
suspended.
Later that day, the defendants held a meeting at which
Evans and Markello also were present. After the meet-
ing, Markello sent an email to all Charter Oak staff,
stating in relevant part: ‘‘Five of our board members
had their terms expire according to our bylaws, and so
they are no longer on the board. They are [the individual
plaintiffs]. . . . The four remaining board members,
[the defendants and Hardy] currently make up our
board, however, they plan to add new board members
in the near future. Three of the four remaining members
of the board held a duly authorized board meeting today
and voted the following: 1. To elect . . . Barcelona as
the new chair. 2. To suspend the CEO search and engage
a professional search firm. 3. To appoint me . . . Mar-
kello, the new interim CEO.’’ Markello subsequently
used his authority as the new interim CEO to terminate
several of Charter Oak’s existing consulting contracts,
as well as Maynor’s interim CEO contract. The board
also suspended the Charter Oak email accounts of
Maynor, Wood, Cruz, John, and other Charter Oak con-
sultants, and revoked John’s access to Charter Oak’s
financial information.
On November 27, 2023, Wood, in his capacity as a
member of the board of directors of Charter Oak and
on behalf of Charter Oak, filed a one count complaint
against the defendants, seeking injunctive relief pursu-
ant to the Connecticut Revised Nonstock Corporation
Act, General Statutes § 33-1000 et seq. In his complaint,
Wood alleged that ‘‘[t]he actions of the rogue board
members constitute legally invalid ultra vires actions.
They did not have authority to act on behalf of the
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board and acted in violation of the company’s bylaws,
including the provisions directing notice of meetings
and provisions regarding quorums for lawful action of
the board.’’ (Emphasis in original.) He also alleged that
the individual plaintiffs ‘‘continue to serve as members
of the board of directors until their successor[s] [are]
elected.’’ In his prayer for relief, Wood sought a declara-
tion that the individual plaintiffs are current and legiti-
mate members of Charter Oak’s board of directors until
their successors are elected and installed. He also
sought a temporary restraining order (1) declaring that
the individual plaintiffs are current duly elected mem-
bers of Charter Oak’s board of directors, (2) voiding
the defendants’ actions concerning the operation of
Charter Oak since November 15, 2023, (3) providing the
individual plaintiffs a right to an accounting of Charter
Oak’s finances, and (4) restoring the individual plain-
tiffs’ access to Charter Oak’s facilities and information
systems. Along with the complaint, Wood filed an appli-
cation for an ex parte temporary restraining order con-
sistent with his prayer for relief, which the court denied.

On December 4, 2023, the defendants filed a motion
to dismiss Wood’s complaint for lack of subject matter
jurisdiction. They argued that, pursuant to Charter
Oak’s bylaws, Wood ceased being a board member upon
the expiration of his third consecutive term, and, there-
fore, he lacked standing to bring the action on behalf
of Charter Oak. Wood filed an opposition to the defen-
dants’ motion to dismiss, arguing that he has standing
to bring the action on behalf of Charter Oak because,
pursuant to General Statutes § 33-1085,3 he remains a
member of Charter Oak’s board of directors until his
successor is elected, or, alternatively, Charter Oak
3
General Statutes § 33-1085 provides in relevant part: ‘‘(e) Despite the
expiration of a director’s term, he continues to serve until his successor is
elected and qualifies or until there is a decrease in the number of directors.’’
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waived the term limit provision of its bylaws. In support
of his opposition, Wood attached the meeting minutes
from the board’s annual meetings on October 26, 2022,
and October 23, 2019. The defendants filed a reply,
arguing that, pursuant to General Statutes § 33-1001,4
Charter Oak’s bylaws, not § 33-1085, control whether
Wood remained a board member after the expiration
of his third consecutive term.

On December 28, 2023, the court, Bellis, J., issued
an order transferring the case to the complex litigation
docket. On January 12, 2024, pursuant to Practice Book
§ 10-59, Wood filed an amended complaint in which he
added as plaintiffs Cruz, John, Alvarado, and Arroyo,
the other Charter Oak board members who allegedly
were wrongfully removed.5 On February 23, 2024, pursu-
ant to Practice Book § 10-60, the plaintiffs moved for
4
General Statutes § 33-1001 provides in relevant part: ‘‘(a) Sections 33-
1000 to 33-1290, inclusive, shall be so construed as to provide for a general
corporate form for the conduct of lawful activities with such variations and
modifications from the form so provided as the interested parties may agree
upon . . . . Whether or not a section of said sections contains the words
‘unless the certificate of incorporation or bylaws otherwise provide’, or
words of similar import, no provision of a certificate of incorporation or
bylaw shall be held invalid on the ground that it is inconsistent with such
section unless such section expressly prohibits variations therefrom, or
prescribes minimum or maximum numerical requirements, or a substantial
interest of the state or third parties is adversely affected thereby.
‘‘(b) If the certificate of incorporation, in effect on January 1, 1997, of a
corporation without capital stock . . . contains any provision contrary to,
inconsistent with or in addition to any provision of sections 33-1000 to 33-
1290, inclusive, but which provision was permitted to be contained in such
certificate pursuant to the provisions of applicable law as in effect prior to
January 1, 1997, the provisions contained in such certificate shall govern
such corporation and the provisions of said sections shall not be held or
construed to alter or affect any provision of the certificate of incorporation
of such corporation inconsistent herewith . . . .’’
5
The defendants have not raised the issue of whether the additional
plaintiffs were properly added. Whether the additional plaintiffs were prop-
erly added does not change our analysis and conclusions because the
absence of the additional plaintiffs would not deprive this court or the trial
court of jurisdiction over the controversy.
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leave to file a second amended complaint. The trial
court granted that request over the defendants’ objec-
tion.6
On January 26, 2024, the parties filed a stipulation
regarding the dates that the individual plaintiffs, the
defendants, and Hardy served on Charter Oak’s board
of directors. The stipulation provides that (1) between
2012 and 2023, John was elected and reappointed to
serve seven consecutive terms; (2) between 2013 and
2023, Wood was elected and reappointed to serve six
consecutive terms; (3) between 2013 and 2023, Cruz
was elected and reappointed to serve six consecutive
terms; (4) between 2014 and 2022, Arroyo was elected
and reappointed to serve five consecutive terms; (5)
between 2016 and 2022, Alvarado was elected and reap-
pointed to serve four consecutive terms; (6) between
2019 and 2022, McNish and Young were elected and
reappointed to serve three consecutive terms; (7) on
August 23, 2023, Barcelona was elected to serve her
first term; and (8) on October 25, 2023, Hardy was
elected to serve her first term. The stipulation addition-
ally provides that John, Wood, and Cruz had been
6
The court, in its memorandum of decision dismissing the action, stated
that, although ‘‘the complaint [that] was in effect at the time of filing of the
motion to dismiss was the complaint that was filed on November 27, 2023
. . . no substantive changes have been made to the complaint, [and, there-
fore], the court treats the February 23, 2024 complaint as the operative
complaint.’’ Because the trial court is required to decide jurisdictional issues
before addressing a request to amend the complaint; see, e.g., Bellman v.
West Hartford, 96 Conn. App. 387, 392, 900 A.2d 82 (2006); and the defendants
filed an opposition to the plaintiffs’ request for leave to file a second amended
complaint, the court should not have granted the plaintiffs’ request before
ruling on the motion to dismiss. This error, however, does not impact our
resolution of this appeal.
The first amended complaint, unlike the second amended complaint, was
filed as of right pursuant to Practice Book § 10-59 and, therefore, was a
permissible amendment notwithstanding the fact that the defendants had
already moved to dismiss to action. See Dauti v. Stop & Shop Supermarket
Co., 90 Conn. App. 626, 640, 879 A.2d 507, cert. denied, 276 Conn. 902, 884
A.2d 1025 (2005).
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elected and reappointed to serve two year terms on
October 25, 2023, and Arroyo and Alvarado had been
elected and reappointed to serve two year terms on
October 26, 2022.
Following a remote hearing,7 on May 28, 2024, the
court, Noble, J., issued a memorandum of decision dis-
missing the action for lack of subject matter jurisdic-
tion. In its memorandum of decision, the court first
determined that Charter Oak’s bylaws, rather than § 33-
1085, govern the issue of whether the individual plain-
tiffs remained board members after the expiration of
their third consecutive term. The court stated: ‘‘[T]he
defendants rely on the bylaws for the proposition that
the [individual] plaintiffs have exceeded their term lim-
its and can no longer be members of the board of direc-
tors after they have exceeded three consecutive terms.
The plaintiffs, however, argue that § 33-1085 applies
because the bylaws are silent as to what occurs after
a director’s term expires. . . . The court finds that
§ 33-1001 is unambiguous in that it allows a corporation
to deviate from the Connecticut [Revised] Nonstock
Corporation Act statutory requirements. Moreover, arti-
cle five of Charter Oak’s articles of incorporation . . .
states that ‘the method of election of the [b]oard of
[d]irectors and all other activities and business shall be
managed as provided in the [bylaws].’ . . . Charter
Oak’s articles of incorporation thus make it clear that
the bylaws govern all activities of Charter Oak. Accord-
ingly, the court finds that § 33-1085 is inapplicable in
the present case because article four, § 2, of the bylaws
varies permissibly from § 33-1085 (e) pursuant to § 33-
1001.’’ (Citation omitted.)
7
The record indicates that the court held a remote hearing regarding the
defendants’ motion to dismiss on January 16, 2024. The parties, however,
have not provided us with the transcript of such hearing and, instead,
submitted a certificate indicating that no transcript is necessary. See Practice
Book § 63-4 (a) (3).
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The court then determined that, pursuant to Charter
Oak’s bylaws, the individual plaintiffs were no longer
members of the board of directors. It stated: ‘‘The court
finds that, under the bylaws, the [individual] plaintiffs
are no longer members because they have exceeded
the bylaws’ term limits. Under article four, § 2, of Char-
ter Oak’s bylaws, after the [individual] plaintiffs com-
pleted their first three consecutive terms, they were no
longer eligible to be members of the board of directors.
They therefore lack standing to assert claims concern-
ing Charter Oak’s corporate governance on their own
behalf and, as former board members, have no authority
to initiate a lawsuit on Charter Oak’s behalf.’’ (Footnote
omitted.) The court further determined that ‘‘this appli-
cation of the bylaws would not result in absurd or
unworkable results’’ because the bylaws allow the
board of directors to call special meetings to add mem-
bers so that it may maintain nine directors as required
by the bylaws. The court also found that the staggered
nature of the directors’ terms ‘‘is designed to prevent
the board from lacking [a] quorum and the requisite
number of directors.’’
The court next addressed the plaintiffs’ argument
that Charter Oak had waived the term limit provision of
its bylaws. In rejecting that argument, the court stated:
‘‘[T]he plaintiffs have not put forth any evidence beyond
the mere assertion that these provisions were waived
to demonstrate that the board of directors actually
intended to waive the term limitations as set forth in
the bylaws. Therefore, the plaintiffs have failed to sat-
isfy their burden of proving subject matter jurisdiction
. . . . Moreover . . . the bylaws could have been
amended . . . to remove the term limitations had it
actually been the intention of the board of directors
to remove term limits. . . . The actions taken by the
[individual] plaintiffs on November 21, 2023, to remove
the term limitation provision are not valid because they
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were no longer members in good standing of the board
of directors.’’
Lastly, the court addressed the plaintiffs’ argument
that the individual plaintiffs have standing pursuant to
§ 33-1089 (a)8 because they are board members and/or
aggrieved persons. The court stated: ‘‘[T]he [individual]
plaintiffs are no longer members of the board of direc-
tors. Accordingly, they are not members or directors
as required by § 33-1089 (a). . . . The [individual]
plaintiffs, as former board of directors members who
have exhausted their three consecutive terms, are no
longer permitted to serve on the board of directors
absent a change in the bylaws and would not be
impacted by an appointment of new directors in a way
that is distinct from any member of the public. Accord-
ingly, they do not have standing under § 33-1089.’’
The court concluded: ‘‘[T]he [individual] plaintiffs
lack standing because they are no longer board mem-
bers pursuant to article four, § 2, of the bylaws, which
varies permissibly from § 33-1085 (e) pursuant to § 33-
1001, and, thus, they lack the authority necessary to
bring this action. Accordingly, the court lacks subject
matter jurisdiction.’’ The court, therefore, rendered a
judgment of dismissal. This appeal followed.
On appeal, the plaintiffs claim that the court improp-
erly dismissed their action for lack of subject matter
jurisdiction because the individual plaintiffs have stand-
ing pursuant to § 33-1089 (a). Specifically, the plaintiffs
8
General Statutes § 33-1089 (a) provides in relevant part: ‘‘Upon applica-
tion of any member, director or person aggrieved, the superior court . . .
shall forthwith hear and determine the validity of any election or appoint-
ment of any director or officer of a corporation and the right of any person
to hold such office, and, if any such office is claimed by more than one
person, determine the person entitled thereto, and to that end shall determine
the voting and other rights of persons claiming the same in respect of such
election or appointment, and confirm the election or appointment, order a
new election as provided in section 33-1063 or direct other relief as may
be just and proper.’’
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Charter Oak Health Center, Inc. v. Barcelona

argue that the individual plaintiffs are aggrieved within
the meaning of that statute and are entitled to a determi-
nation of their rights to hold office. We agree.
We begin by setting forth the relevant legal principles
and standards that govern our review of this claim. ‘‘A
motion to dismiss tests, inter alia, whether, on the face
of the record, the court is without jurisdiction. . . .
[O]ur review of the court’s ultimate legal conclusion
and resulting [determination] of the motion to dismiss
will be de novo. . . . In undertaking this review, we
are mindful of the well established notion that, in
determining whether a court has subject matter jurisdic-
tion, every presumption favoring jurisdiction should be
indulged. . . .
‘‘Our courts have acknowledged that [t]rial courts
addressing motions to dismiss for lack of subject matter
jurisdiction . . . may encounter different situations,
depending on the status of the record in the case. . . .
[L]ack of subject matter jurisdiction may be found in
any one of three instances: (1) the complaint alone;
(2) the complaint supplemented by undisputed facts
evidenced in the record; or (3) the complaint supple-
mented by undisputed facts plus the court’s resolution
of disputed facts. . . . Different rules and procedures
will apply, depending on the state of the record at the
time the motion is filed. When a trial court decides a
jurisdictional question raised by a pretrial motion to
dismiss on the basis of the complaint alone, it must
consider the allegations of the complaint in their most
favorable light. . . . In this regard, a court must take
the facts to be those alleged in the complaint, including
those facts necessarily implied from the allegations,
construing them in a manner most favorable to the
pleader. . . .
‘‘In contrast, if the complaint is supplemented by
undisputed facts established by affidavits submitted in
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support of the motion to dismiss . . . [or] other types
of undisputed evidence . . . the trial court, in
determining the jurisdictional issue, may consider these
supplementary undisputed facts and need not conclu-
sively presume the validity of the allegations of the
complaint. . . . Rather, those allegations are tempered
by the light shed on them by the [supplementary undis-
puted facts]. . . . If affidavits and/or other evidence
submitted in support of a defendant’s motion to dismiss
conclusively establish that jurisdiction is lacking, and
the plaintiff fails to undermine this conclusion with
counteraffidavits . . . or other evidence, the trial court
may dismiss the action without further proceedings.
. . .
‘‘It is a basic principle of law that a plaintiff must
have standing for the court to have jurisdiction. . . .
Standing is the legal right to set judicial machinery in
motion. . . . One cannot rightfully invoke the jurisdic-
tion of the court unless he [or she] has, in an individual
or representative capacity, some real interest in the
cause of action, or a legal or equitable right, title or
interest in the subject matter of the controversy. . . .
When standing is put in issue, the question is whether
the person whose standing is challenged is a proper
party to request an adjudication of the issue . . . .’’
(Citations omitted; internal quotation marks omitted.)
Fountain of Youth Church, Inc. v. Fountain, 225 Conn.
App. 856, 867–69, 317 A.3d 106 (2024).
‘‘Standing is not a technical rule intended to keep
aggrieved parties out of court; nor is it a test of substan-
tive rights. Rather it is a practical concept designed to
ensure that courts and parties are not vexed by suits
brought to vindicate nonjusticiable interests and that
judicial decisions which may affect the rights of others
are forged in hot controversy, with each view fairly and
vigorously represented. . . . Importantly, [o]ur stand-
ing jurisprudence consistently has embodied the notion
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Charter Oak Health Center, Inc. v. Barcelona

that there must be a colorable claim of a direct injury
to the [complaining party], in an individual or represen-
tative capacity. . . . Standing focuses on whether a
party is the proper party to request adjudication of
the issues, rather than on the substantive rights of the
aggrieved parties.’’ (Citation omitted; internal quotation
marks omitted.) Pasciolla v. Pasciolla, 230 Conn. App.
174, 182, 330 A.3d 222 (2025).
‘‘It is axiomatic that aggrievement is a basic require-
ment of standing, just as standing is a fundamental
requirement of jurisdiction. . . . There are two general
types of aggrievement, namely, classical and statutory;
either type will establish standing, and each has its own
unique features.’’ (Internal quotation marks omitted.)
Perry v. Perry, 312 Conn. 600, 620, 95 A.3d 500 (2014).
‘‘Aggrievement does not demand certainty, only the pos-
sibility of an adverse effect on a legally protected inter-
est. . . . Statutory aggrievement exists by legislative
fiat, not by judicial analysis of the particular facts of the
case. In other words, in cases of statutory aggrievement,
particular legislation grants standing to those who claim
injury to an interest protected by that legislation.’’
(Internal quotation marks omitted.) Fort Trumbull Con-
servancy, LLC v. Alves, 262 Conn. 480, 487, 815 A.2d
1188 (2003).
‘‘In order to determine whether a party has standing
to make a claim under a statute, a court must determine
the interests and the parties that the statute was
designed to protect. . . . Essentially the standing ques-
tion in such cases is whether the . . . statutory provi-
sion on which the claim rests properly can be under-
stood as granting persons in the plaintiff’s position a
right to judicial relief. . . . [Stated differently, the]
plaintiff must be within the zone of interests protected
by the statute.’’ (Internal quotation marks omitted.)
Saunders v. Briner, 334 Conn. 135, 157, 221 A.3d 1
(2019); see also 7 Germantown Road, LLC v. Danbury,
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Charter Oak Health Center, Inc. v. Barcelona

351 Conn. 169, 180, 329 A.3d 927 (2025) (‘‘[w]ith statu-
tory standing, we generally look at whether a person
falls within the class of persons that the legislature has
authorized to bring an action’’). The issue of whether
§ 33-1089 authorizes the individual plaintiffs to bring
an action challenging their removal ‘‘presents a question
of statutory interpretation, over which we exercise ple-
nary review, guided by well established principles
regarding legislative intent.’’9 Saunders v. Briner,
supra, 157.
We begin with the language of § 33-1089 (a), which
provides in relevant part: ‘‘Upon application of any
member, director or person aggrieved, the superior
court . . . shall forthwith hear and determine the
validity of any election or appointment of any director
or officer of a corporation and the right of any person
to hold such office, and, if any such office is claimed
by more than one person, determine the person entitled
thereto . . . .’’ (Emphasis added.) The plain language
of the statute thus indicates that a ‘‘member’’ or a ‘‘direc-
tor’’ of a corporation, as well as any other ‘‘person
aggrieved,’’ may seek a determination in the Superior
Court concerning the validity of any election or appoint-
ment of any director or officer of a corporation and the
right of any person to hold office. General Statutes § 33-
1089 (a). Our review of the record that was before the
court when it decided the defendants’ motion to dismiss
9
‘‘When construing a statute, [o]ur fundamental objective is to ascertain
and give effect to the apparent intent of the legislature. . . . In other words,
we seek to determine, in a reasoned manner, the meaning of the statutory
language as applied to the facts of [the] case, including the question of
whether the language actually does apply. . . . In seeking to determine that
meaning, General Statutes § 1-2z directs us first to consider the text of the
statute itself and its relationship to other statutes. If, after examining such
text and considering such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be considered.’’ (Internal
quotation marks omitted.) Kasica v. Columbia, 309 Conn. 85, 93, 70 A.3d
1 (2013).
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leads us to conclude that the individual plaintiffs were
aggrieved persons within the meaning of § 33-1089 and,
therefore, had standing to bring the present action.10
It is undisputed that the individual plaintiffs had been
elected and reappointed to serve on Charter Oak’s
board of directors in either October, 2022, or October,
2023, and, therefore, were in the midst of two year
terms in November, 2023, when they were informed
that they were no longer board members. It also is
undisputed that a majority of the elected board mem-
bers did not vote to replace the individual plaintiffs as
board members at the time the plaintiffs commenced
the present action. The plaintiffs brought the present
action seeking, inter alia, a declaration that the individ-
ual plaintiffs have the right to hold office as members of
the board of directors because (1) pursuant to Charter
Oak’s bylaws, they are holdover board members until
their successors are elected or, alternatively, (2) Char-
ter Oak waived the term limit provision of its bylaws
by electing and reappointing the individual plaintiffs to
serve more than three consecutive terms. It is clear,
therefore, that the individual plaintiffs fall squarely
10
This interpretation is consistent with our Superior Court’s decisions
concerning actions brought pursuant to § 33-1089. See, e.g., Sowell v. DiCara,
Docket No. CV-XX-XXXXXXX-S, 2014 WL 7272522, *2 (Conn. Super. November
17, 2014) (‘‘[§ 33-1089] speaks to the validity of an election [and] is specifi-
cally enacted to allow those persons who are aggrieved by the election
process and directly impacted by the election to have the court review the
process and provide relief’’ (emphasis omitted)); Fosco v. Hickory Woods
Assn., Docket No. CV-XX-XXXXXXX-S, 2010 WL 2764707, *2 (Conn. Super.
June 1, 2010) (plaintiff who lost corporation’s board of directors election
successfully brought action under § 33-1089 challenging voting procedure
used in election); Orange Landing Condominium Assn. v. Paul, Docket
No. CV-XX-XXXXXXX-S, 2004 WL 2284302, *1 (Conn. Super. September 20,
2004) (former members of corporation’s board of directors brought action
under § 33-1089 to challenge validity of special election and actions of board
after election); Royce v. Willowbrook Cemetery Assn., Inc., Docket No. CV-
XX-XXXXXXX-S, 2002 WL 31500984, *3 (Conn. Super. October 21, 2002) (‘‘§ 33-
1089 provides the exclusive remedy for determining validity of any election
of any officer of a corporation’’).
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within the zone of interests that the statute is designed
to protect. The trial court, in concluding that the individ-
ual plaintiffs were no longer board members, improp-
erly reached the merits of the underlying dispute rather
than the threshold question of whether the individual
plaintiffs had statutory standing to seek the very sort
of determination § 33-1089 (a) is intended to afford.
In reaching the merits of the dispute and concluding
as it did that the individual plaintiffs are no longer board
members, the court improperly determined that Charter
Oak’s bylaws unambiguously prohibited the individual
plaintiffs from serving as holdover board members and
that the plaintiffs failed to meet their burden of proving
that Charter Oak waived the term limit provision of its
bylaws when the board elected the individual plaintiffs
to serve more than three consecutive terms.
We begin with the plaintiffs’ contention that the court
improperly concluded that the bylaws unambiguously
prohibited the individual plaintiffs from serving as hold-
overs following the expiration of their third terms. The
court determined that, ‘‘[u]nder article four, § 2, of Char-
ter Oak’s bylaws, after the [individual] plaintiffs com-
pleted their first three consecutive terms, they were no
longer eligible to be members of the board of directors.’’
The plaintiffs, however, argue that the bylaws do not
prohibit board members from serving in a holdover
capacity after the expiration of a member’s third con-
secutive term. Specifically, the plaintiffs contend that,
putting the issue of waiver aside, the term limit provi-
sion, when read in context, only prohibits board mem-
bers from being elected to a fourth consecutive term,
but does not prohibit a board member from serving as
a holdover until a successor is elected following the
expiration of a board member’s third consecutive term.
The defendants, on the other hand, contend that the
court properly determined that the provision of the
bylaws stating that ‘‘in no event shall a [d]irector hold
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office for more than three . . . consecutive terms’’
unambiguously precludes a board member from serving
once his or her third consecutive term expires.
‘‘Courts construe bylaws according to the general
rules of contract construction or statutory construction.
. . . Generally, the rules governing the interpretation
of contracts and statutes require courts to defer to the
plain and ordinary meaning of language, unless such
language gives rise to ambiguity.’’ (Citations omitted;
internal quotation marks omitted.) Foundation for the
Advancement of Catholic Schools, Inc. v. Blair, 230
Conn. App. 793, 809–10, 332 A.3d 990, cert. denied, 351
Conn. 927, 333 A.3d 1108 (2025). ‘‘If the language of the
contract [or statute] is susceptible to more than one
reasonable interpretation, the contract [or statute] is
ambiguous.’’ (Internal quotation marks omitted.)
Nation-Bailey v. Bailey, 316 Conn. 182, 192, 112 A.3d
144 (2015). ‘‘When the language of a contract [or statute]
is ambiguous, the determination of [its intended mean-
ing] is a question of fact,’’ and ‘‘[e]xtrinsic evidence is
always admissible . . . to explain [the] ambiguity
. . . .’’ (Internal quotation marks omitted.) Id. Under
the general rules of contract and statutory construction,
the threshold question of whether the language of the
bylaws is itself ambiguous is a question of law over
which our review is plenary. See, e.g., Remillard v.
Remillard, 297 Conn. 345, 355, 999 A.2d 713 (2010);
McTiernan v. McTiernan, 164 Conn. App. 805, 824, 138
A.3d 935 (2016).
Article four, § 2, of Charter Oak’s bylaws provides
in relevant part: ‘‘Newly-elected [d]irectors shall hold
office for a term of two . . . years or until their succes-
sors [are] elected, but in no event shall a [d]irector hold
office for more than three . . . consecutive terms.’’
(Emphasis added.) We conclude that the relevant lan-
guage of article 4, § 2, of Charter Oak’s bylaws is open
to more than one reasonable interpretation with respect
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to whether a board member may serve in a holdover
capacity upon the expiration of a third consecutive
term. The language providing that ‘‘in no event’’ shall
directors hold office for more than three consecutive
terms can reasonably be read to mean that directors
cease being members in good standing upon the expira-
tion of their third consecutive term. The language pro-
viding that directors shall hold office ‘‘until their succes-
sors [are] elected,’’ however, can reasonably be read
to mean that a director whose third consecutive term
has expired may not be elected for an additional consec-
utive term but nevertheless remains a holdover board
member until his or her successor is elected. Accord-
ingly, the individual plaintiffs have colorable claims to
board membership, which is all that is required in order
to prove that they are aggrieved persons for purposes
of § 33-1089 (a). See Fort Trumbull Conservancy v.
New London, 265 Conn. 423, 432, 829 A.2d 801 (2003).
The court should have denied the motion to dismiss on
that basis and proceeded to a trial on the merits during
which it could consider extrinsic evidence to discern
the meaning of the bylaws. See Parisi v. Parisi, 315
Conn. 370, 373, 107 A.3d 920 (2015); see also id., 386
(concluding that ‘‘case must be remanded to the trial
court to resolve the ambiguity in the parties’ separation
agreement through a determination of their intent after
consideration of all available extrinsic evidence and the
circumstances surrounding the entering of the agree-
ment’’).
In addition to determining that the individual plain-
tiffs were no longer board members pursuant to the
bylaws, the trial court also determined that the plain-
tiffs’ claim that Charter Oak had waived its term limit
provision by electing the individual plaintiffs to more
than three consecutive terms failed. In reaching that
conclusion, the court stated that ‘‘the plaintiffs have
not put forth any evidence beyond the mere assertion
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that these provisions were waived to demonstrate that
the board of directors actually intended to waive the
term limitations as set forth in the bylaws.’’ (Emphasis
added.)
As it did with respect to the plaintiffs’ claim that the
individual plaintiffs were holdover board members, the
court conflated the issue of whether the individual
plaintiffs had standing to pursue their waiver claim with
the issue of whether the plaintiffs ultimately would
prevail on the merits of that claim. At the motion to
dismiss stage, the plaintiffs were required to prove only
that they had a colorable claim that Charter Oak had
waived its bylaws and that the individual plaintiffs
therefore were aggrieved persons for purposes of § 33-
1089 (a). See Fort Trumbull Conservancy v. New Lon-
don, supra, 265 Conn. 432.
‘‘It is well established that [w]aiver is a question of
fact.’’ (Internal quotation marks omitted.) Worth Con-
struction Co. v. Dept. of Public Works, 139 Conn. App.
65, 68, 54 A.3d 627 (2012). ‘‘[W]aiver is the intentional
relinquishment or abandonment of a known right or
privilege. . . . [T]o determine the presence of waiver,
there must be evidence of intelligent and intentional
action by the petitioner of the right claimed to be
waived. . . . Each case should be considered upon the
particular facts and circumstances surrounding that
case, including the background, experience and con-
duct of the party that is waiving its rights.’’ (Citations
omitted; emphasis added; internal quotation marks
omitted.) Id., 70–71.
The amended complaint and stipulation supported
the plaintiffs’ claim that, notwithstanding the provision
of the bylaws prohibiting board members from holding
office for more than three consecutive terms, each of
the individual plaintiffs was elected to a term exceeding
that limitation. On the basis of that record, we conclude
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that the plaintiffs produced sufficient evidence to prove
a colorable claim of waiver, and, therefore, the individ-
ual plaintiffs are aggrieved persons within the meaning
of § 33-1089 (a). The court should have denied the
motion to dismiss on that basis and proceeded to hold
a trial on the merits of that claim during which the
parties would have had an opportunity to present addi-
tional evidence in support of their competing claims.
In sum, we conclude that the individual plaintiffs
have standing as aggrieved persons pursuant to § 33-
1089 (a), and, therefore, the court should have denied
the defendants’ motion to dismiss.
The judgment is reversed and the case is remanded
with direction to deny the defendants’ motion to dismiss
and for further proceedings.
In this opinion the other judges concurred.