Levco Tech, Inc. v. Kelly ( 2022 )

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LEVCO TECH, INC. v. DOROTHY KELLY ET AL.
(AC 44417)
(AC 44597)
Bright, C. J., and Alexander and Suarez, Js.
Syllabus
The defendants E and S, shareholders of the plaintiff, L Co., a family owned
company, appealed to this court from the judgment of the trial court
determining, inter alia, that the defendants R, J and D owned the majority
of the outstanding shares of L Co.’s common stock. S had been the
president, and M, her husband, had been the secretary of L Co. since
its founding. M, S and their children, E, R, D, A and P, each owned ten
of the seventy shares of the common stock issued by L Co. In 2012,
when D had concerns about her marriage, she purportedly created a
trust and transferred her ten shares to S, as trustee for D’s children.
Neither D nor S consulted counsel regarding the making of the trust,
and, within forty-eight hours, S agreed with D that the transfer was not
a good idea and took steps to undo it. In 2015, R acquired D’s ten shares
and A’s ten shares, thereby giving him ownership of thirty shares. After
P’s son, J, executed an option to purchase six of P’s shares, R believed
that he and J controlled thirty-six shares of L Co.’s stock and gave notice
to the other board members of a meeting in which he proposed to elect
himself to the new position of chairman of the board and chief executive
officer. On November 20, 2015, in an effort to block R from having
majority control of L Co., E drafted a stock purchase agreement under
which L Co. would issue to E twelve new shares and provide a loan to
help him pay for the stock. At 1:50 p.m. that day, notice was sent via
e-mail to the other board members, stating that the board would conduct
a meeting at 2:15 p.m. to effectuate the stock purchase agreement. R,
J and D were out of state at that time and did not attend the meeting,
at which a contested majority of the board, including E and S, approved
the stock purchase agreement. The next day, J and P, who also had
voted to approve the stock purchase agreement, signed documents to
revoke their votes, and E, S and M signed a document approving the
removal of all board members in December, 2015, and declaring invalid
any action taken after November 21. R proceeded with a board meeting
on November 21 and 22, which E and S did not attend. At that meeting,
a resolution was adopted declaring that proper notice had not been
given for the November 20 meeting and that all business conducted at
that meeting was invalid, as the dispute between the family members
by that time had coalesced into a faction that consisted of R, J and D,
and a faction that consisted of E, S and M. The two factions thereafter
continued to conduct their own board meetings at which, among other
things, they executed documents, adopted resolutions and named their
own officers. M’s shares were transferred to S in 2017, after the present
litigation commenced. L Co. brought a declaratory judgment action
against D, E, J, M and S seeking a determination, inter alia, of the number
of shares that E owned, and the defendants filed cross complaints against
each other seeking to determine the ownership of L Co.’s stock. The
court determined that D had not created an irrevocable trust and that
she owned her ten shares in November, 2015, when they were acquired
by R. The court also found that R had the right to vote his thirty shares
and that J had the right to vote his six shares in November, 2015, and
that the issuance of twelve shares to E was invalid. On appeal, S and
E claimed, inter alia, that the trial court improperly concluded that,
because the November 20, 2015 board meeting was invalid, L Co.’s
issuance of twelve shares of stock to E was invalid. Held:
1. S and E could not prevail on their claim that the trial court improperly
determined that any trust D may have created in 2012 was revocable:
the court’s conclusion that it would have been improvident for D to
create an irrevocable trust and that she mistakenly omitted the power
of revocation from the document was legally and logically correct and
supported by the evidence, as the court’s finding that D’s concern regard-
ing her marriage was transitory was not clearly erroneous in that her
husband did not file for divorce until 2013, which did not become final
until 2014, and S’s agreement with D within forty-eight hours to rescind
the transfer was evidence of S’s recognition that D’s marital concerns
were transitory; moreover, contrary to the assertion by S and E that
the court did not consider the relationship between D as settlor and
D’s children as beneficiaries insofar as that relationship ordinarily belies
the need to revoke such a trust, the trial court specifically noted that
the relationship was not discussed at trial, but there did not appear to
be anything unusual about the relationship, and it did not undermine
the court’s conclusion, on the basis of all of the factors it considered,
that D omitted the power of revocation by mistake; furthermore; the
court did not improperly rely on the fact that D did not have counsel
at the time she executed the purported trust document, as the absence
of counsel was among other factors the court considered, S and D both
maintained that D retained ownership of her shares until several years
after the present litigation was commenced, and it appeared that S and
E did not develop their trust theory until after the parties were embroiled
in litigation.
2. The trial court properly determined that the special board meeting on
November 20 was invalid due to inadequate notice and, therefore, that
the sale of twelve shares of L Co. stock to E at that meeting also was
invalid: notwithstanding the assertion by E and S that L Co. had a
practice of calling board meetings on short notice, it was readily apparent
that, by calling the meeting with only twenty-five minutes notice, E
thwarted the underlying purpose of the notice requirement in L Co.’s
bylaws and, thus, prevented board members from attending the meeting
and opposing the stock purchase agreement; moreover, the evidence
supported the court’s finding that twenty-five minutes notice was insuffi-
cient under both the bylaws and the circumstances under which the
notice was issued, as at least three board members were aware that
three other board members were out of town at the time the notice was
sent, the court appeared to credit the testimony of another board mem-
ber that the meeting was called with minimal notice to prevent R’s
faction from attending, and two board members who voted to approve
the stock purchase agreement shortly thereafter rescinded their votes.
Argued February 8—officially released August 2, 2022
Procedural History
Action for a judgment to determine, inter alia, the
number of shares of the plaintiff’s common stock owned
by the defendant Edward Levene, and for other relief,
brought to the Superior Court in the judicial district of
Stamford-Norwalk, where the defendant Robert Levene
et al. filed cross complaints; thereafter, the case was
transferred to the Complex Litigation Docket; subse-
quently, the court, Lee, J., in accordance with the stipu-
lation of the parties, bifurcated the trial to address first
the validity of the parties’ claims of ownership of the
plaintiff’s common stock; thereafter, Sally Levene, as
executrix of the estate of Martin Levene, was substi-
tuted for the defendant Martin Levene; subsequently,
the case was tried to the court, Lee, J.; judgment for
the defendant Robert Levene et al., from which the
defendant Edward Levene et al. filed separate appeals
with this court, which consolidated the appeals.
Affirmed.
Jeffrey R. Babbin, with whom was Matthew Brown,
for the appellants (defendant Edward Levene et al.).
David P. Friedman, with whom was Kristen L. Zaeh-
ringer, for the appellees (defendant Robert Levene et
al.).
Gregory J. Williams, for the appellee (plaintiff).
Opinion
BRIGHT, C. J. In this dispute among family members
over control of the family business, the defendants,
Sally Levene (Sally), both individually and as executrix
of the estate of Martin Levene (Martin),1 and Edward
Levene (Edward), bring these consolidated appeals
from the judgment of the trial court determining that
the defendants Robert Levene (Robert), Jeffrey Levene
(Jeffrey), and Dorothy Kelly (Dot) owned the majority
of the outstanding shares of common stock of the plain-
tiff, Levco Tech, Inc. (Levco). On appeal, Sally and
Edward claim that the court improperly determined
that (1) Dot had not placed her ten shares of Levco
stock in an irrevocable trust and (2) the issuance of
twelve shares of Levco stock to Edward was invalid.
We disagree and, therefore, affirm the judgment of the
trial court.
The following facts, as found by the court in its com-
prehensive memorandum of decision, and procedural
history are relevant to our resolution of this appeal.
Levco is a family owned energy supply company that
sells heating oil, provides related mechanical services,
and acts as a broker for electric suppliers in Connecti-
cut. In 1980, Levco was incorporated in Connecticut
and, by 1985, had issued a total of seventy shares of
common stock to Sally and Martin and their five chil-
dren, Edward, Robert, Dot, Susan Levene (Susan), and
Philip Levene (Philip). Each person owned ten shares
of common stock.
From its founding, ‘‘Sally was the president of Levco
and responsible for developing the business and main-
taining the records. Martin was the secretary and the
visionary who helped grow the business and involve
family members. As pater familias, he also was a peace-
maker between various family members. Edward and
Robert were vice presidents. Sally and Martin wanted
their children to develop a family business and intended
for their children’s stake to be shared equally, even
though Edward and Robert were performing most of
the work while Dot and Susan were working part-time.
Martin set a policy that was followed through 2015, that
any family members working full-time for Levco should
be compensated equally . . . . [S]ince the early 1990s
. . . Philip, Robert and Edward would take an equal
salary and, if there were funds left over at the end of
the year, a bonus would be distributed equally between
them. Sally would also receive a bonus when income
permitted. Martin did not take a salary.
‘‘In subsequent years, Sally and Martin’s grandchil-
dren started to work for Levco as the third generation.
Two of these grandchildren were Philip and [his wife]
Jane’s children, Jeffrey . . . and Allison Prainito (‘Alli-
son’). The general rule for members of the Levene family
was that a position would be found for any member
who wanted to work at Levco.’’
Levco’s corporate office was in the lower level of
Sally and Martin’s residence in Stamford (Stamford
office). ‘‘Levco’s corporate records were maintained up
to 2015, in a Green Corporate Book (‘Green Book’),
which includes Levco’s certificate, [bylaws], minutes,
and transfer ledger. Up to 2015, Sally was responsible
for maintaining the Green Book and making entries
therein. . . . The Green Book also includes the ‘share
records’ of Levco’s stockholders, which document the
current issued and outstanding shares of Levco stock,
along with shares that have been cancelled. Currently,
many of the original certificates for shares of Levco
stock (‘certificates’) are contained within the Green
Book, but previously the original certificates were kept
in a locked file cabinet in the Stamford office or in the
possession of certain individual stockholders. . . .
The Green Book was traditionally located in Sally’s
office (which subsequently became Edward’s office) in
the Stamford office. The office was unlocked, with the
Green Book available for inspection by the stockholders
up until at least November, 2015.’’
‘‘Pursuant to the [bylaws], Levco stockholders elect
members to Levco’s Board of Directors (‘board’) at
annual meetings of the stockholders. Levco stockhold-
ers also, from time to time, elected members to the
board at a special meeting of the stockholders.’’ Until
1991, the board was comprised of Martin, Sally, Edward,
and Robert. ‘‘In 1991, Levco’s stockholders increased
the number of directors by electing Philip as the fifth
member of the board along with Sally, Martin, Edward
and Robert. From 1991 through 1996, the board was
comprised of these five members. During this time,
Sally was president, Martin was secretary, and Edward,
Robert and Philip were vice presidents.
‘‘Since at least 1997, Robert voiced his displeasure
with certain aspects of Levco management. Robert
often complained about the equal compensation with
his brothers, expressing a view that he was more valu-
able to Levco’s success and should be paid more than
his brothers. Sally, Edward, and Philip, accepting Mar-
tin’s advice for the company, all believed that for the
good of the company and family harmony, equal com-
pensation for full-time employment should be main-
tained.
‘‘In 1997, Levco’s stockholders voted to amend the
[bylaws] to permit up to ten directors and four vice
presidents, and elected Dot and Susan to the board for
a total of seven members. [The] board elected Sally as
president, Martin as secretary, and Edward, Robert,
Philip and Dot as vice presidents. . . . From Septem-
ber 26, 2009, to December 6, 2013, the board was com-
prised of seven members: Martin, Sally, Edward,
Robert, Philip, Dot, and Susan. During this time, Sally
was president, Martin was secretary, and Edward,
Robert, and Philip were vice presidents.’’
‘‘On July 15, 2012, Dot went to her parents’ house to
celebrate their anniversary. After dinner, Dot told her
parents that she had been unable to reach her husband
that day and that she feared that he might have gone
looking for an apartment as a result of their marital
difficulties. Dot said that it might be good to transfer
her shares to Sally because she was concerned that her
husband might interfere with Levco’s business.
‘‘During this conversation, Sally retrieved Dot’s stock
certificate no. 5 from an envelope. . . . Dot testified
that Sally was in charge of arrangements for this trans-
fer and that she did most of the writing.
‘‘There are two entries on certificate no. 5 in Sally’s
handwriting that reflect the transaction. They were cov-
ered by [white correction fluid] at an unclear time by
an unknown person, all witnesses having denied
responsibility. . . . The stock transfer record for cer-
tificate no. 5 has a column entitled ‘new certificate
issued to’ and, within that column, the words ‘Sally
Levene’ are discernible, without reference to a ‘trust’
or the words ‘Sally Levene, Trustee.’ . . . The entry on
the right side of the stock ledger corresponding to the
column entitled ‘to whom shares are transferred,’
although also whited out, refers to ‘Sally Levene,’ with-
out reference to a trust or trustee.
‘‘The reverse side of certificate no. 5 contains a pre-
printed legend, as on all certificates of Levco stock,
which provides for the transfer of the shares repre-
sented by the certificate irrevocably to an agent or
attorney. Sally altered the legend so that it reads, ‘For
value received, the undersigned hereby sells, assigns
and transfers unto Sally Levene, Stamford, CT, [please
print or type name and address of assignee] 10 shares
represented by the within [c]ertificate, and hereby irre-
vocably constitutes and appoints . . . [followed by a
blank line] . . . Attorney to transfer the said shares on
the books of the within-named [c]orporation with full
power of substitution in the premises, Dated [blank].’
‘‘Toward the end of their conversation on July 15,
and after the bulk of the entries had been placed in the
ledger and stock book, Sally told Dot that she did not
want to benefit personally from the stock and that she
wanted to hold the stock for the benefit of Dot’s three
sons. Dot testified that there was no other discussion
about a trust, although Sally testified that Dot told her
she wanted Sally to hold the stock in trust for her three
sons. Dot and Sally did not discuss any terms of a trust,
any aspects of trust administration, the trust duration
(i.e., whether it was intended to last in perpetuity or
whether it would be terminated once the concerns that
had given rise to the brief discussion about the trust
had ceased), or any dispositive trust provisions. They
did not discuss a ‘backup’ or successor trustee to take
over fiduciary responsibilities in the event that Sally
could no longer perform her duties as trustee. Nor did
they make any effort to consult legal counsel to ensure
the proper format of a trust.
‘‘Sally then filled out a new certificate (i.e., certificate
no. 9) relating to Dot’s shares, which identified a trans-
fer to Sally as trustee for Dot’s three sons. Dot testified
that, after she left her parents’ house and went home,
she changed her mind and decided that the transfer
was not a good solution and decided that she should
not go through with it. Whether on July 16 or 17, Dot
returned to her parents’ house and told Sally that she
did not think the stock transfer was a good idea. Dot
testified that Sally agreed with her. They then took steps
to undo or void the transfer, making a new stock ledger
entry identifying Dot as the owner of her ten shares,
and voiding stock certificate no. 9. In addition . . .
certificate no. 9 was cut in half. The stock transfer
record for certificate no. 9 has the word ‘VOID’ written
on it in capital letters. Dot and Sally both agreed that
the transfer had been undone. Dot testified: ‘we undid
it the next day.’ Sally agreed: ‘She [Dot] said she changed
her mind and so . . . I voided certificate no. 9.’
‘‘Between 2012 [and] 2015, Dot voted her shares sev-
eral times without objection. Dot also listed her Levco
stock as an asset on her 2014 financial affidavit in mari-
tal proceedings. Sally testified that, from 2012 until this
action was commenced on or about May 11, 2016, she
believed that Dot owned her ten shares and testified
that she did not believe that a trust was in effect over
those years, although subsequent contradictory evi-
dence was introduced at trial. Sally and Edward listed
Dot as the owner of ten shares of Levco stock entitled
to vote on the voting lists created by them as late as
February, 2016. Sally testified that it was ‘only after the
commencement of the lawsuit, at some point, I believed
that Dot did not own her shares; that they were in trust.’
‘‘After the commencement of this litigation, certifi-
cate no. 10 was issued at the request of Sally for the
lost [or] destroyed certificate no. 9 on June 15, 2018.
Edward recorded the issuance of these shares of Levco
stock to Sally on the transfer ledger. At trial, a document
entitled ‘The Sally Levene 2012 Irrevocable Trust’ was
introduced. It was executed on March 26, 2018, and
states: ‘the grantor contemporaneously with execution
hereof, assigns transfers and/or contributes to the
trustee, and the trustee by execution of this trust agree-
ment acknowledges receipt of the cash and/or property
described on the Schedule A.’ Schedule A identifies
Dot’s ten shares as the property to be transferred. Dot
claims never to have seen this document until produced
in discovery and asserts she would not have consented
to Edward as a successor trustee, as provided in the
document. The language of this document purports to
establish a transfer of Dot’s shares from Sally individu-
ally to a trust on March 26, 2018. The consequence of
this purported transfer by Sally in her individual capac-
ity in 2018 is that the stock was not held in a trust from
2012 until 2018. Sally, when asked at her deposition
about the document, referred to it as a ‘mistake.’ ’’
‘‘As of 2015, the company’s business consisted mainly
of fuel oil distribution, managed and operated largely
by Robert, and an electric sales business, managed and
operated largely by Edward. Edward was responsible
for the marketing and sales in both the oil and electric
businesses. Philip and Sally managed the financial oper-
ations and administrative aspects of the business,
including for oil, at [the Stamford office]. . . . The
business was stable and working well.
‘‘Martin suffered a stroke in January, 2015. Sally was
still president of Levco at this time but came under
increasing time pressures from the business and the
declining health of her husband. . . . These factors
and Sally’s age prompted members of the Levene family
to increasingly consider Levco’s future. Robert coordi-
nated numerous ad hoc meetings and family gatherings
in which Robert expressed his opinion that he should
lead Levco. Robert also pressed Sally to resign as presi-
dent.
‘‘On June 5, 2015, Sally resigned as president after
more than [twenty-five] years, effective June 7, 2015,
with the understanding that Philip would become the
next president. On June 7, 2015, the board elected the
following slate of officers: Philip as president, Sally
as secretary/treasurer, and Edward and Robert as vice
presidents. . . .
‘‘On July 18, 2015, Levco stockholders elected a board
comprised of seven members: Edward, Robert, Philip,
Jane, Allison, Jeffrey, and Dot. Also on July 18, 2015,
the board elected the following slate of officers: Philip
as president, Allison as secretary, and Edward and
Robert as vice presidents. These were the officers as
of November 17, 2015.
‘‘In mid-2015, Robert wanted to lead Levco and to
obtain majority control of Levco through ownership
of a majority of Levco stock by purchasing various
stockholders’ shares. Robert coordinated a valuation of
Levco and its stock and also sought to obtain employee
compensation assessments. Robert convinced Philip to
hire Nardozzi & Associates (‘Nardozzi’) to perform the
valuation and to retain Oil Heat Associates to perform
employee compensation assessments. Robert also
enlisted Dot and Allison in his efforts to obtain a valua-
tion and provide information to Nardozzi.
‘‘On November 6, 2015, Robert sent an e-mail to Philip
and copied Sally, Edward, Dot, Susan, Jane, and Doris
(Robert’s wife). The e-mail set forth three options: [1]
that enough shareholders sell him their shares at a
purchase price of $1,125,000 for ten shares so that he
would be able to obtain at least a 51 percent or larger
ownership percentage; [2] that he sell his shares at the
price of $1,125,000 for ten shares; or [3] that the com-
pany correct its leadership problems.
‘‘On November 9, 2015, Edward directed Allison to
notice a special meeting of the stockholders for Novem-
ber 17, 2015, for the purpose of voting Sally back on
the board. Dot signed a proxy for her ten shares to
Robert on November 11, 2015. The effective dates listed
on this proxy extended from November 12, 2015, to
January 1, 2021. As part of this proxy, Robert agreed
to purchase Dot’s shares of Levco stock on January 1,
2021, but Dot retained the right to cancel the sale upon
ninety days’ notice. Two assurances were also listed in
the proxy agreement: Robert would support the contin-
ued use of [the Stamford office] as an office for Sally and
support Dot as the leader of the board’s compensation
committee. . . .
‘‘Susan also signed a proxy for her ten shares to
Robert on November 12, 2015, which Robert signed on
November 12, 2015. The effective dates listed on this
purported proxy extended from November 12, 2015, to
January 1, 2016. As part of this proxy, Robert agreed
to purchase and Susan agreed to sell Susan’s shares
on January 1, 2016, with payments of $800,000 due on
December 1, 2015, and $325,000 due on January 1, 2016.
As a result of these transactions, Robert had acquired
voting rights to thirty shares of Levco stock. This
included his original ten shares, an irrevocable proxy
for Dot’s ten shares, and an irrevocable proxy for
Susan’s ten shares.
‘‘Jeffrey and Philip signed an option on November
11, 2015, for Jeffrey to purchase six of Philip’s shares
of Levco stock. . . . Jeffrey paid Philip $1000 for the
option to purchase six shares of Levco stock. On
November 12, 2015, Jeffrey signed a notice of execution
of the option but apparently did not pay the full pur-
chase price for these shares. . . .
‘‘On November 12, 2015, Robert sent an e-mail to
Philip, Jane, Sally, Edward, Dot, Susan, Jeffrey, Doris,
and Allison providing documentation regarding these
changes in ownership and voting rights of Levco. Robert
believed that the voting right proportions were as fol-
lows: Philip—4 shares (5.7 percent); Jeffrey—6 shares
(8.6 percent); Edward—10 shares (14.3 percent); Sally
and Martin Levene—20 shares (28.6 percent); Robert
Levene—30 shares (42.9 percent). As a result, Robert
claimed that he and Jeffrey controlled 36 of the com-
pany’s 70 issued shares. Robert attached the notice of
exercise of Jeffrey’s option, the option, and the two
proxy agreements. Allison, then the secretary of the
corporation, received copies of Susan and Dot’s proxies
to Robert, and Jeffrey’s option documents with
Philip. . . .
‘‘On November 17, 2015, Philip signed a proxy to
Jeffrey, and he and Jeffrey each brought a copy of the
proxy to the . . . meeting. Also on November 17, 2015,
the noticed meeting of Levco’s stockholders was held
for the purpose of voting Sally back on the board.
Edward, Jeffrey, Martin, Philip, Robert, and Sally
attended the meeting, which constituted a quorum pur-
suant to the [bylaws]. Sally was the only candidate to
receive any votes. Edward, Martin, Philip and Sally
voted for Sally’s election to the board, for a total of 34
shares. Robert and Jeffrey voted against the motion,
for a total of 36 shares, counting the proxies from Susan,
Dot and Philip. Nevertheless, Edward declared that
Sally was elected by a plurality of shares, apparently
citing to General Statutes § 33-712. This caused the
board to have eight members, i.e., Sally, Edward,
Robert, Philip, Jane, Jeffrey, Allison and Dot. Allison
prepared and signed the meeting minutes, which
minutes were placed in the Green Book.
’’On November 18, 2015, Edward created a voting list
based on the information that he had at the time, which
listed Dot as a shareholder. Also on November 18, 2015,
Philip sent an e-mail to Robert, Edward, Dot, Allison,
Jane, Jeffrey and Dot stating his resignation as president
of Levco . . . . On the same date, Robert sent an e-mail
to Philip, Jane, Jeffrey, Sally, Edward, Allison and Dot,
giving notice of a meeting of the board to be held on
November 21, 2015. Robert included an agenda for this
meeting in which he proposed electing himself to a new
position of chairman of the board and chief executive
officer. Robert also proposed separation of the Levco
oil business from the Levco electric business and poten-
tially selling the electric business, which Edward was
running at the time. Edward and Sally opposed Robert’s
proposal.
‘‘Two days later, on November 20, 2015, in an effort
to block Robert’s majority control, Edward drafted a
proposed stock purchase agreement and loan agree-
ment [stock purchase agreement], which he, Philip, Alli-
son, Jane and Sally discussed and revised. The [stock
purchase agreement] called for the issuance of twelve
new shares to Edward with a loan of $1,350,000 from
Levco to him at 4 percent interest due on November
14, 2030, to help him pay for the stock. After these
discussions, the [stock purchase agreement] was signed
by Philip, Edward, Allison, Jane, and Sally in the morn-
ing of November 20, 2015, around noon.
‘‘Thereafter, Edward, Philip, Sally, Allison and Jane
determined that a board meeting was necessary to effec-
tuate this document. Pursuant to the [bylaws]: ‘Special
meetings [of the board] may be called by or at the
direction of the [c]hairman of the [b]oard, if any, of the
President, or of a majority of the directors in office.’
‘Written, oral, or any other mode of notice of the time
and place shall be given for special meetings in suffi-
cient time for the convenient assembly of the directors
thereat.’ ‘A majority of the entire [b]oard shall constitute
a quorum except when a vacancy or vacancies prevent
such majority, whereupon a majority of the directors in
office shall constitute a quorum, provided such majority
shall constitute not less than the greater of at least two
persons or at least one-third of the entire [b]oard. . . .
Except as herein otherwise provided, the act of the
[b]oard shall be the act, at a meeting duly assembled,
by vote of a majority of the directors present at the
time of the vote, a quorum being present at such time.’
‘‘At approximately 1:50 p.m., Allison sent out an
e-mail notice of the meeting on behalf of the majority
of the board as represented by five of the eight mem-
bers, i.e., Edward, Philip, Sally, Jane, and Allison. The
signed version of the [stock purchase agreement] was
attached to the notice for a board meeting. The meeting
was scheduled for 2:15 p.m., which time was chosen
to accommodate a doctor’s appointment for Allison that
afternoon. Philip and Jane wished to leave relatively
early, and the members agreed that 2:15 p.m. was the
time when they were all available.
’’Robert and Jeffrey were driving back from Maine
on this day, leaving about 11 a.m., after having driven
there to pay Susan the first installment payment for
her stock. Robert was driving, and Jeffrey was in the
passenger seat. Jeffrey was checking his phone and
read the notice from Allison around 2:30 p.m. Robert
pulled over and also read the notice from Allison.
Robert and Jeffrey decided to call attorneys. Robert
and Jeffrey arrived back in Norwalk between 4 and 4:30
p.m., after the conclusion of the meeting, which lasted
about fifteen minutes. Philip, Jane and Allison knew
that Jeffrey and Robert were in Maine but did not call
them about the meeting after Allison sent the e-mail
notice.
‘‘Dot was in a meeting in New York City, having
recently returned from a trip abroad. She acknowledged
seeing the e-mail notice before 2:15 p.m. She believes
that she called . . . but was unable to get through to
the meeting. Dot then returned to Stamford and met
with Philip and Jane. On the way back, Dot called
Robert and Jeffrey.
‘‘At the November 20, 2015 meeting of the board, a
contested majority of the board (i.e., Edward, Philip,
Allison, Jane, and Sally) voted in favor of the [agree-
ment] for the sale of twelve shares of Levco stock. . . .
Thereafter, Levco issued a check signed by Sally to
Edward representing the loan of $1,350,000 to pay for
the stock, and Edward endorsed the check to Levco
for the purchase of the twelve additional shares. . . .
Twelve shares of Levco stock were issued to Edward
as reflected on certificate no. 11 and recorded by
Edward in the Green Book. The [stock purchase agree-
ment] is also included in the Green Book.
‘‘Robert spoke with Dot, Philip, Jane, Jeffrey and
Allison on the night of November 20, 2015, and into
the morning of November 21, 2015. Following these
discussions, Jane and Philip signed identical documents
purporting to revoke their board votes for the [stock
purchase agreement].
‘‘On November 21, 2015, Edward, Sally, and Martin
signed a stockholder action without meeting recorded
in the Green Book approving the removal of all mem-
bers of the board effective as of December 16, 2015,
and declaring invalid any action, resolution, or vote
taken on or after November 21, 2015. The notice of this
action was given to all shareholders. Edward and Sally
claim that the action without meeting was signed by
stockholders who were holding at least 42 of 82 shares
of Levco.
‘‘Robert proceeded with a board meeting in Norwalk
on November 21 and 22, 2015, which was attended by
Philip, Jane, Jeffrey, Robert and Dot. Robert refused to
move the meeting to Stamford despite requests by Sally,
who did not want to leave Martin alone. Edward did
not attend because he believed it was not a valid board
meeting. Robert’s board minutes indicate, among other
things, that the group revised the minutes of the Novem-
ber 17 stockholder meeting to reverse Sally’s election
to the board. The minutes also indicate that the group
adopted a resolution finding that the meeting of Novem-
ber 20, 2015, lacked proper notice and that all business
conducted at the meeting was invalid. The minutes
noted that the ‘corporate stock certificate book showing
the recorded shares is missing’ (i.e., the Green Book)
and that Jane would create a new one (subsequently
referred to as the ‘Black Book’). The minutes indicated
that Sally, Martin, Edward and Dot had ten shares, with
Dot having given a proxy for her shares to Robert, and
that Robert had twenty shares, Jeffrey six shares and
Philip four shares. The group elected Robert as [chief
executive officer (CEO)]/president, Philip as vice presi-
dent, Jeffrey as vice president/treasurer, and Jane as
secretary. At this time, both Robert and Dot had asked
for the Green Book. Edward provided copies of the
Green Book to Dot and Jane but moved the Green Book
to another location in the corporate office and then
later off-site in early 2016.
‘‘A purported stockholder action without meeting
dated November 27, 2015, was executed by Edward,
Sally and Martin, which attempted to limit the size of
the board to three, effective December 23, 2015. On
November 28, 2015, a board meeting attended by Philip,
Jane, Jeffrey, Robert, Dot, and Edward was held. The
minutes refer to an amendment to the [bylaws] provid-
ing that the board may only authorize the issuance of
shares with approval of a majority of the voting power
of the shareholders.
‘‘On December 4, 2015, Philip sent an e-mail to his
siblings and Sally, stating that neither he nor Jane
wanted to be in the midst of a shareholder dispute and
that neither were going to attend any further board or
shareholder meetings until the dispute was resolved.
Apparently, Robert took this message as a resignation
from the board, which was accepted later that day at
a board meeting attended by Jeffrey, Robert and Dot.
The minutes stated that the board consisted of Edward,
Dorothy, Robert, Jeffrey and Jane.
‘‘On December 7, 2015, a shareholders meeting was
held with Robert, Dot, Philip, Sally, Edward and Jeffrey
in attendance, according to minutes taken by Jane as
secretary. Attorneys Gregory Williams and Edward Ler-
ner attended for Levco and Edward, respectively.
Robert and Edward presented competing eligible share-
holder voting lists. Neither was adopted. Discussion
included resolving the factions’ differences by arbitra-
tion or court proceedings. The location of the Green
Book was questioned. The continued operation of the
two divisions of the company was also proposed. The
meeting broke up after half an hour with no resolutions
or votes taken.
‘‘By now, the dispute within the Levene family had
coalesced into two factions, which continued as of the
time of trial, i.e., Robert’s faction, consisting of Robert,
Jeffrey and Dot, which operated the fuel oil business,
and Edward’s faction, consisting of Edward, Sally and
Martin, prior to his decease, which operated the elec-
tricity business.
‘‘On December 15, 2015, Allison and Philip executed
a separation agreement between Levco and Allison. Dot
had executed the separation agreement the previous
day as the ‘[Board’s] Compensation Committee Chair.’
[The separation] agreement called for the payment to
Allison of $60,000 in exchange for her release and agree-
ment not to sue. It also called for Allison’s agreement to
revoke her consent to the [stock purchase agreement].
‘‘On February 12, 2016, a continued shareholders
meeting took place, with Dot, Edward, Jeffrey, Robert
and Sally in attendance. Neither side accepted the oth-
er’s voting list, and Robert’s faction left the meeting.
In their absence, Edward’s faction adopted eight resolu-
tions, including a limitation of the board to three mem-
bers and specifying them to be Edward, Philip and Sally;
invalidating actions of the board taken after November
21, 2015; providing that there would be only one official
corporate record book, e.g., the Green Book; requiring
a two-thirds vote of the voting power to authorize future
actions of the shareholders or directors; and adopting
a voting list dated November 17, 2015, as follows: Dot—
ten shares, Edward—twenty-two shares, Martin—ten
shares, Philip—ten shares, Sally—ten shares, and
Susan—ten shares.
‘‘Edward’s faction also held a board meeting on Feb-
ruary 12, 2016, at which Sally was named president,
Philip, vice president, and Edward, vice president and
secretary. Various other motions were passed consol-
idating the right of Edward’s faction to act on behalf
of Levco.
‘‘On February 16, 2016, a shareholders meeting was
held, which Robert, Edward, and Jeffrey attended with
Attorneys Gregory Williams and Michael Leventhal. The
meeting broke down when Attorney Leventhal refused
to leave and Edward sought to chair the meeting instead
of Robert. Eventually, Edward and Attorney Leventhal
left the meeting. The meeting continued and, among
other things, [the shareholders] voted to replace the
existing board with Robert, Jeffrey and Dot. Edward’s
faction purported to continue the meeting sine die.
‘‘On February 17, 2016, Philip entered into a sever-
ance agreement with Levco signed by Robert, pursuant
to which Philip sold his remaining four shares to Levco
and received a severance payment and several other
benefits. Philip’s share certificate no. 8 remains
recorded on the share record in the Green Book with
no signature evidencing transfer. The Black Book con-
tains an affidavit attested by Philip that certificate no.
8 was lost and replaced by certificate no. 12 transferring
four shares to Philip and certificate no. 13 transferring
six shares to Jeffrey. A voting list prepared for a share-
holder meeting in October, 2017, implies that Philip’s
shares were retired. Also on February 17, 2016, Jane
entered into a severance agreement with Levco signed
by Robert.
‘‘On February 18, 2016, Robert’s faction held a board
meeting at which Robert was appointed CEO, president,
and treasurer, and Jeffrey [was appointed] vice presi-
dent and secretary. [The board] also approved the sever-
ance agreements with Philip and Jane. On February 21,
[2016], Edward’s faction held a board meeting at which
Robert and Jeffrey were suspended as employees of
Levco, barred from its premises in Stamford and Nor-
walk, and otherwise deprived of authority to use or
remove any corporate assets. Robert and Jeffrey contin-
ued to operate the fuel oil business from Norwalk.
Edward agreed to hire back Philip at [the Stamford
office] almost immediately after the severance. Philip
returned as a half-time independent contractor consul-
tant and has continued to work for Levco at [the Stam-
ford office].
‘‘On July 8, 2016, Dot resigned from the board. Robert
and Dot subsequently executed an irrevocable proxy
agreement that replaced Dot’s option and put into effect
her requirement to sell in May, 2019. Sally provided
Edward a proxy for her shares as of September 4, 2016.
The shares originally issued to Martin were transferred
to Sally on June 15, 2017. Sally recorded the issuance
of these shares of Levco stock on the transfer ledger
in the Green Book. The shares originally issued to Sally
and Martin, held by Sally as of June 15, 2017, were
subsequently transferred to the Sally Levene Levco
Stock Administrative Trust. A certificate was issued to
Sally Levene, Trustee of the Sally Levene Levco Stock
Administrative Trust on June 15, 2018. Edward recorded
the issuance of these shares of Levco stock on the
transfer ledger in the Green Book. . . . Both factions
have continued to hold contested shareholders and
directors meetings.’’ (Footnotes omitted.)
In May, 2016, Levco commenced the underlying
action against Dot, Edward, Jeffrey, Martin, and Sally,
seeking a declaratory judgment stating the number of
shares of Levco owned by Edward. Robert and Jeffrey
jointly filed a cross complaint against Edward, Sally,
and Martin, seeking, inter alia, a judgment declaring
that (1) there are sixty-six shares of Levco stock and
that, with respect to the right to vote those shares, Sally,
Martin, and Edward each control ten shares, Jeffrey
controls six shares, and Robert, as the holder of Dot’s
proxy, controls thirty shares; (2) Jeffrey’s purchase of
six shares from Philip and Levco’s redemption of Phil-
ip’s four shares are valid and effective; (3) Dot’s proxy
agreement to Robert is valid; (4) Robert’s purchase
of Susan’s ten shares is valid; (5) the stock purchase
agreement is invalid and ineffective; and (6) all actions
taken by Edward on or after November 18, 2015, are
invalid. Dot also filed a cross complaint against Edward
and Sally seeking a declaratory judgment stating the
number of shares Dot owns.2
Edward and Sally each filed a cross complaint against
Robert and Jeffrey seeking, inter alia, a judgment declar-
ing that (1) there are eighty-two outstanding shares of
Levco stock because the stock purchase agreement is
valid and effective; (2) Dot transferred ten shares to
Sally as trustee for her three children on July 15, 2012,
and, therefore, her proxy agreement with Robert is
invalid and ineffective; (3) Jeffrey does not own any
shares because Philip has not transferred any of his ten
shares; (4) Susan has not transferred any of her ten
shares; (5) Sally was elected to the board on November
17, 2015; and (6) all actions taken by Robert and Jeffrey
on behalf of Levco since November 20, 2015, are invalid
and ineffective.3
On November 16, 2018, the parties stipulated that the
trial of the case would be bifurcated and that, in the
first phase of the trial, the court would determine the
validity of the claims of ownership of Levco stock and,
therefore, who controls Levco. The parties submitted
various questions to be answered by the court, which
the court distilled to three primary issues: (1) whether
Dot owned her shares when she sold a proxy to Robert
in 2015; (2) whether Philip’s sale of six of his ten shares
to Jeffrey was valid; and (3) whether the issuance of
twelve shares to Edward pursuant to the stock purchase
agreement was valid.
At trial, Edward and Sally claimed that (1) Dot cre-
ated an irrevocable trust for the benefit of her three
children when she transferred her shares to Sally and,
therefore, did not own the shares when she gave Robert
a proxy in 2015, (2) Philip’s sale of six shares to Jeffrey
was invalid because the shares were issued to Philip
and his wife, Jane, jointly, and Jane did not sign the
documents effecting the transfer to Jeffrey, and (3) the
stock purchase agreement was valid. For their part,
Robert, Jeffrey, and Dot claimed that (1) Dot’s proxy
was valid because she never created a trust or, alterna-
tively, because the trust was revoked within forty-eight
hours after its creation; (2) Philip individually owned
the ten shares; and (3) the November 20, 2015 special
meeting of the board, during which the board approved
Edward’s stock purchase agreement, was invalid due
to insufficient notice of the meeting.
After a trial, which spanned nine days, the court
issued a memorandum of decision resolving the three
principal issues in favor of Robert, Jeffrey, and Dot.
First, the court rejected Edward and Sally’s claim that
Dot had created an irrevocable trust and found that
Dot owned her shares in November, 2015, when she
issued a proxy to Robert. Second, the court found that
Philip owned the ten shares individually and, therefore,
that Robert had the right to vote thirty shares and Jef-
frey had the right to vote six shares as of November
17, 2015.4 Consequently, the court determined that Sally
was not elected to the board on November 17, 2015,
because Robert and Jeffrey’s thirty-six votes against
Sally’s election constituted the majority of the seventy
outstanding shares of Levco.5 Last, the court determined
that the issuance of twelve shares of stock to Edward
on November 20, 2015, was invalid because (1) twenty-
five minutes notice of the special meeting of the board
was insufficient, (2) Edward was not a disinterested
director qualified to vote on the resolution, and (3)
Philip and Jane rescinded their support of the resolution
several hours after voting for it. These appeals fol-
lowed.6 Additional facts will be set forth as necessary.
I
Edward and Sally first claim that the court misapplied
the doctrine of mistake in finding that Dot created a
revocable trust in July, 2012. For their part, Robert,
Jeffrey, and Dot claim that the court found that Dot
transferred her shares to Sally individually and not to
a trust and that, assuming arguendo a trust was created,
the court properly found that it was revoked. We note
that the parties dispute whether the court found that
Dot created a trust when she transferred her Levco
stock to Sally. Although the court’s decision is ambigu-
ous in this respect, because we conclude that the court
properly found that any trust that may have been cre-
ated was revoked, we need not resolve the ambiguity.
The following additional facts are relevant to this
claim. In its memorandum of decision, the court cited
Goytizolo v. Moore, 27 Conn. App. 22, 604 A.2d 362(1992), for the relevant legal principles regarding the
revocability of trusts: ‘‘General principles of trust con-
struction require an express reservation of the right to
modify, amend, or revoke a trust. . . . One exception
to this rule is in cases where the settlor mistakenly
omitted the power to revoke the trust. . . . Certain
factors are relevant in determining whether the settlor
intended to reserve the power to revoke a trust and by
mistake omitted such a power in the trust instrument.
Some of these factors are: (1) the fact that the creation
of the trust without reserving power of revocation
would be an improvident act of the settlor; (2) the fact
that the settlor when he created the trust did not have
independent legal advice; (3) the relationship between
the settlor and the beneficiaries; (4) the reasons which
induced the settlor to create the trust . . . .’’ (Citations
omitted; footnotes omitted; internal quotation marks
omitted.) Id., 27.
After setting forth the relevant law, the court
addressed the issue as follows: ‘‘[T]he essential facts
are clear. Dot transferred her ten shares of stock to
Sally. It appears that Sally told Dot she would hold
the shares for the benefit of Dot’s children. The word
‘irrevocable’ was not mentioned. One or two days later,
Dot and Sally agreed to rescind the transfer and consis-
tently maintained that Dot retained ownership of her
shares until several years after the litigation was com-
menced.
‘‘The initial conversation was brief and without the
benefit of counsel. However, applicable authority holds
that a trust can be created orally and without formal
discussion of a trust. Given Dot’s interest in keeping
her stock out of her husband’s hands, the court con-
cludes that it was likely that Dot intended to create
a trust. However, there is no satisfactory or credible
evidence of their intent to make the trust irrevocable
or that the topic was even discussed.
‘‘Regardless of whether Dot and Sally actually estab-
lished a trust on [July] 15, 2012, the court concludes
that they revoked it one or two days later. In keeping
with the relevant factors discussed [previously], the
court finds that (1) the creation of a trust without a
power of revocation was improvident because the cause
was transitory (i.e., marital instability), but the impor-
tance of voting stock in a successful, closely held family
company was not, (2) Dot did not have independent
legal advice when she transferred her stock to her
mother, (3) the relationship between Dot and her chil-
dren was not addressed at trial, but there is no reason
to believe that it was in any way unusual, and (4) the
reasons that induced Dot to transfer the stock, as men-
tioned previously, were transitory, and it appears that
the marital tension lessened for a time thereafter. Fur-
ther, the court concludes that there was no meeting of
the minds as to the irrevocability of the transfer because
it was not discussed.
‘‘The law of trusts is not meant to be a trap for the
unwary; Loomis v. Marshall, 12 Conn. 69, 77 (1837);
but, rather, to protect the intent of the settlor. In this
case, the interests of Dot, the purported settlor, are
best served by holding that any trust created in 2012
was revoked in 2012, and that Dot retained her shares,
as acknowledged by Dot and Sally and by the parties’
course of dealing in recognizing the validity of her
voting her shares for several years in the future.
‘‘As a result, Dot owned her shares when she granted
a proxy to Robert in November, 2015.’’
We begin our analysis with the applicable standard
of review. Edward and Sally argue that the court misap-
plied the relevant legal standard to the facts found,
which presents a mixed question of law and fact. ‘‘[S]o-
called mixed questions of fact and law, which require
the application of a legal standard to the historical-fact
determinations, are not facts in this sense. . . . [Such
questions require] plenary review by this court unfet-
tered by the clearly erroneous standard. . . . When
legal conclusions of the trial court are challenged on
appeal, we must decide whether [those] . . . conclu-
sions are legally and logically correct and find support in
the facts that appear in the record.’’ (Internal quotation
marks omitted.) Crews v. Crews, 295 Conn. 153, 162–63,
989 A.2d 1060 (2010). Accordingly, ‘‘we review the sub-
sidiary findings of historical fact, which constitute a
recital of external events and the credibility of their
narrators, for clear error, and engage in plenary review
of the trial court’s application of . . . legal standards
. . . to the underlying historical facts.’’ (Internal quota-
tion marks omitted.) ASPIC, LLC v. Poitier, 208 Conn.
App. 731, 742, 267 A.3d 197 (2021).
We now turn to this court’s decision in Goytizolo v.
Moore, supra, 27 Conn. App. 22, on which the trial court
relied and which Edward and Sally agree illustrates
the proper application of the doctrine of mistake. In
Goytizolo, in August, 1955, after purchasing a parcel of
real estate, the defendant conveyed the property by
quitclaim deed to her mother in trust for the plaintiff, the
defendant’s daughter. Id., 23. In 1973, the defendant’s
mother conveyed the same property by quitclaim deed
to the defendant in trust for the plaintiff. Id. In 1987,
the defendant, both individually and as trustee for the
plaintiff, conveyed the property by quitclaim deed to her
husband without mentioning the trust, and her husband
then conveyed the property by quitclaim deed back to
the defendant, also without mentioning the trust. Id.,
24. The plaintiff sought to have the 1987 conveyances
between the defendant and her husband declared null
and void. Id. The trial court found that the defendant
had created an enforceable trust in favor of the plaintiff
and ordered the defendant to convey the property to
the plaintiff. Id.On appeal, this court affirmed the trial court’s finding
that a trust was created and proceeded to consider
whether the trust was revocable. See id., 26. The defen-
dant argued that ‘‘she established a trust in order to
shelter her real estate property only until such time as
she had automobile insurance coverage, and that once
that purpose no longer existed, she would be able to
regain title.’’ Id. Relying on the factors set forth in the
Restatement (Second) of Trusts, this court determined
that the trust was irrevocable.7 See id., 27–28. The court
reasoned that ‘‘there was no reservation of the right to
revoke the trust. Nor was there anything to indicate that
the defendant mistakenly omitted the right to revoke.
Nothing suggests that the creation of the trust without
a power of revocation was an improvident act. The
defendant-settlor consulted an attorney who drafted
the August 1955 deed. The relationship between the
settlor and the beneficiary as mother and daughter is
a factor in favor of the creation of a trust, and the
enduring nature of that relationship ordinarily belies
the need to revoke a trust for the benefit of either. Even
if the defendant’s testimony regarding her reasons for
creating the trust were true, many years elapsed after
the defendant became insured during which period
nothing was recorded on the land records that
attempted to revoke the trust.’’ Id., 28. As this court’s
decision in Goytizolo demonstrates, the question of
whether the settlor of the trust mistakenly failed to
state that the trust was revocable is fact intensive.
The facts involved in Goytizolo are markedly differ-
ent from those in the present case. In Goytizolo, the
settlor had consulted an attorney who prepared the
deed creating the trust, whereas Dot spontaneously
decided to give her Levco shares to Sally without con-
sulting an attorney regarding the transfer or the creation
of a trust. In addition, in Goytizolo, despite her claim
regarding the transitory nature of the concerns that
prompted her to create the trust, the settlor did not
seek to revoke the trust for ‘‘many years’’ after those
concerns had dissipated. In the present case, by con-
trast, within a day or two after Dot transferred her
shares to Sally, they both ‘‘agreed to rescind the transfer
and consistently maintained that Dot retained owner-
ship of her shares until several years after the [present]
litigation was commenced.’’8 In fact, it appears that Sally
and Edward did not develop their trust theory until
after the parties were already embroiled in litigation.
Given these distinctions, we find no inconsistency
between the application of the Restatement factors in
Goytizolo and the court’s analysis in the present case.
Edward and Sally contend that the court failed to
consider the relationship between the settlor and bene-
ficiaries. They highlight this court’s reasoning in Goyti-
zolo that the mother-child relationship between the set-
tlor and beneficiary ‘‘ordinarily belie[d] the need to
revoke a trust for the benefit of either.’’ Goytizolo v.
Moore, supra, 27 Conn. App. 28. They argue that the
court failed to consider this factor and that, because the
beneficiaries were Dot’s children, this factor supports
a finding of irrevocability. The court, however, did not
omit this factor from its analysis. Indeed, the court
specifically noted that the relationship between Dot
and her children was not discussed during the trial, but
there did not appear to be anything unusual about the
relationship. Moreover, there is no requirement that the
court give greater weight to any particular factor under
the analysis. Therefore, even if this factor weighs in
favor of irrevocability, it does not undermine the court’s
conclusion, on the basis of all of the factors it consid-
ered, that Dot omitted the power of revocation by mis-
take.
Edward and Sally next argue that the court erred in
finding that it would have been improvident for Dot to
create an irrevocable trust because ‘‘the undisputed
purpose of Dot’s trust was to shield Dot’s assets from
her husband, underscoring that irrevocability was key
to effectuating Dot’s intent.’’ In support of this argu-
ment, they direct our attention to comment (h) to § 332
of the Restatement (Second) of Trusts, which provides
in relevant part: ‘‘The reasons for which the trust was
created may indicate that the settlor intended to reserve
a power of revocation, although no such power was
reserved in the trust instrument. Thus, if it is shown
that the reason of the settlor for creating the trust was
to meet a temporary emergency, this is evidence that
he did not intend to make the trust irrevocable.
‘‘On the other hand, the reason for which the trust
was created may indicate that he did not intend to
reserve a power of revocation. Thus, where the reason
of the settlor for creating the trust was to prevent her
husband from reaching the property or to prevent her
children from bringing pressure to bear upon her to
convey the property to them, these circumstances tend
to support the inference that the settlor did not intend
to reserve a power of revocation.’’ 2 Restatement (Sec-
ond), Trusts § 332, comment (c), p. 148 (1959).
They argue that ‘‘Dot’s scenario is literally hornbook
law. . . . She sought to place assets beyond the reach
of her soon-to-be ex-husband, and Dot made sure of it
by creating an irrevocable trust, which could not be
invaded.’’ To be sure, the general factual scenario
described in the Restatement (Second) of Trusts could
be seen as describing Dot’s situation in 2012, if Dot’s
concern was firmly held. The court, however, found,
based on the evidence before it, that that was not
the case.
Specifically, the court found that Dot’s concern
regarding her marriage was transitory and that ‘‘the
marital tension lessened for a time’’ after the transfer
to Sally. Edward and Sally contend that the marital
instability was not transitory because her husband filed
for a divorce in 2013. Notwithstanding the ultimate
breakdown of Dot’s marriage, which Edward and Sally
maintain underscores that the marital instability was
not transitory, the court heard evidence to the contrary.
With regard to the events in July, 2012, Dot testified
that she thought her husband had looked for an apart-
ment, but she explained: ‘‘I wasn’t getting a divorce.
My husband didn’t move out [until] many months later
and didn’t file for divorce until the next year. And then
we didn’t get divorced until September 25, 2014.’’ In
addition, the fact that Sally, Dot’s mother and the person
who suggested holding the shares for the benefit of
Dot’s children, readily agreed within forty-eight hours to
rescind the transfer is evidence that she, too, recognized
Dot’s marital concerns at the time of the transfer were
transitory. Although the court’s ultimate conclusion as
to whether Dot made a mistake when she failed to state
that the trust was revocable is a mixed question of law
and fact subject to plenary review, the court’s subsid-
iary factual finding that Dot’s concern was transitory
is subject to the clearly erroneous standard of review.
See, e.g., ASPIC, LLC v. Poitier, supra, 208 Conn. App.
742. Further, it is well established that ‘‘the trier of fact
is not required to draw only those inferences consistent
with one view of the evidence, but may draw whatever
inferences from the evidence or facts established by
the evidence it deems to be reasonable and logical.’’
(Internal quotation marks omitted.) Palozie v. Palozie,
283 Conn. 538, 552, 927 A.2d 903 (2007). On the basis
of the evidence before the court, including Dot’s and
Sally’s testimony, we cannot say that the court’s finding
is clearly erroneous.
Last, Edward and Sally claim that the court improp-
erly relied on the absence of counsel to overcome the
presumption of irrevocability. They rely on comment
(b) to § 332 of the Restatement (Second) of Trusts,
which provides in relevant part: ‘‘[T]he mere fact that
the settlor did not have independent legal advice before
he executed the trust instrument is not of itself suffi-
cient evidence that the power of revocation was omitted
by mistake.’’ 2 Restatement (Second), supra, § 332, com-
ment (b), p. 146. Notably, however, the court considered
the absence of counsel among other factors, including
the improvidence under the circumstances of making
the trust irrevocable. Accordingly, the court did not
rely on the ‘‘mere’’ absence of counsel to support its
conclusion, and we are not persuaded that the court’s
reliance on this factor, among others, was improper.
In sum, the court’s conclusion, on the basis of its
consideration of the relevant factors, that Dot had omit-
ted the power to revoke the trust by mistake is legally
and logically correct and is supported by the evidence
in the record.9
II
Edward and Sally next claim that the court erred in
concluding that the issuance of twelve additional shares
of Levco stock to Edward was invalid. We are not per-
suaded.
The following additional facts are relevant to this
claim. The court concluded that the issuance of twelve
shares to Edward was invalid for three distinct reasons.
‘‘First, twenty-five minutes’ notice of the special meet-
ing of the board on November 20, 2015, was insufficient.
Article II, § 5, of Levco’s [bylaws] states that ‘written,
oral, or any other mode of notice of the time and place
shall be given for special meetings in sufficient time
for the convenient assembly of the directors thereat.’
Robert and Jeffrey were returning from Maine, and Dot
was at a function in New York City, while the other
board members agreed on the plan to issue twelve addi-
tional shares to Edward. Their absence from Fairfield
County was known to at least three of the other board
members, i.e., Philip, Jane and Allison. Allison testified
that the notice seemed calculated to avoid their partici-
pation. The excuses of a doctor’s appointment for Alli-
son and Philip’s desire to leave work early are insuffi-
cient to justify the minimal notice given, especially
when the meeting only lasted a few minutes.
‘‘Second, Edward was not a disinterested director
qualified to vote on the resolution. He was plainly bene-
fited by the issuance of valuable stock to be paid for
with proceeds of a long-term loan from the company
and so had a conflicting interest in the transaction. As
a result, the only directors at the meeting qualified to
vote for the resolution were Philip, Jane and Allison,
which is neither a quorum nor a majority of the qualified
directors (counting Robert, Jeffrey and Dot, and not
counting Sally). . . . As a result, the vote was insuffi-
cient to authorize the issuance of the twelve shares to
Edward.
‘‘Third, several hours after voting for the resolution,
Philip and Jane signed a rescission of their support of
the resolution. A meeting of the directors had been
scheduled for the next day, November 21. Edward
sought to prohibit the board from adopting a formal
rescission by initiating an action of stockholders with-
out meeting that fired all the directors. However, this
stratagem failed because Edward’s newly issued twelve
shares were invalid and, as a result, a majority of the
shareholders did not support the action. As a result,
the board’s meeting on November 21, at which, among
other things, the actions of November 20 were
rescinded, was valid. Another purported stockholder
action without meeting to limit the number of board
members to no more than three was also invalid
because it was not supported by a majority of the stock-
holders.’’ (Citation omitted.)
On appeal, Edward and Sally claim that the court
improperly concluded that (1) the November 20, 2015
board meeting was invalid due to inadequate notice of
the meeting, (2) Sally’s election to the board was invalid
and, consequently, that she was not qualified to vote
to approve the stock purchase agreement at the Novem-
ber 20, 2015 board meeting, and (3) Philip, Jane, and
Allison properly rescinded their votes to issue the
twelve additional shares to Edward. Because we con-
clude that the court properly determined that the
November 20, 2015 board meeting was invalid due to
insufficient notice of the meeting, we do not address
the remaining claims regarding Sally’s election to the
Board and the rescission of the votes. See footnote 5
of this opinion.
Whether the court properly determined that the
notice of the special meeting was insufficient under
Levco’s bylaws also presents a mixed question of law
and fact. Thus, as previously noted in part I of this
opinion, ‘‘we review the subsidiary findings of historical
fact . . . for clear error, and engage in plenary review
of the trial court’s application of . . . legal standards
. . . to the underlying historical facts.’’ (Internal quota-
tion marks omitted.) ASPIC, LLC v. Poitier, supra, 208
Conn. App. 742.
As a general rule, ‘‘notice of a special meeting must
be given to every director unless there is some express
provision in the charter or bylaws or established usage
to the contrary, or unless it is impossible or impractica-
ble to do so. . . . Notice to all directors is required
because when a number of directors are elected to
manage the affairs of the corporation, it is contemplated
that the corporation shall have the benefit of the judg-
ment, counsel and influence of all of those directors.
Thus it is only right to hold that, in the absence of
special circumstances or express provision to the con-
trary, every one of them should have an opportunity to
be present at meetings of the board.
‘‘A special meeting held in the absence of some of
the directors, and without any notice to them, is illegal
except in those cases where the articles of incorpora-
tion, bylaws, or established custom so provide, or where
it is impossible or impractical to give notice. The action
at such a meeting, even if made by a majority of the
directors, is invalid.’’ (Footnote omitted.) 2 C. Jones,
Fletcher Cyclopedia of the Law of Private Corporations
(2006 Rev.) § 406, pp. 254–55.
As the Delaware Chancery Court has explained: ‘‘The
reason and principle underlying [the rule] is this: Each
member of a corporate body has the right to consulta-
tion with the others and has the right to be heard upon
all questions considered, and it is presumed that if the
absent members had been present they might have dis-
sented and their arguments might have convinced the
majority of the unwisdom of their proposed action,
and thus have produced a different result.’’ (Internal
quotation marks omitted.) Lippman v. Kehoe Steno-
graph Co., 11 Del. Ch. 80, 88, 95 A. 895 (1915).10
Edward and Sally argue that because Levco often
called meetings of the board on short notice and
because each board member has access to e-mail and
the ability to attend meetings by phone while travelling,
the court ‘‘committed reversible error when it focused
solely on the timing of notice . . . notwithstanding
that such timing violated no law or bylaw and was
consistent with past practice in this family run busi-
ness.’’ (Citation omitted.) In response, Robert, Jeffrey,
and Dot claim that the minimal notice provided was
insufficient under Levco’s bylaws and argue that ‘‘[e]-
mail notice and remote participation are of no help if
the notice is received . . . after the meeting is over.’’
We agree with Robert, Jeffrey, and Dot.
The court considered Levco’s bylaws and found that
twenty-five minutes was insufficient notice for ‘‘the con-
venient assembly of the directors . . . .’’ Although
Edward and Sally emphasize that such short notice
was consistent with Levco’s past practice, the court’s
conclusion that the minimal notice was insufficient
under the circumstances is supported by its findings.
Specifically, the court found that at least three members
of the board were aware that Dot, Robert, and Jeffrey
were out of town at the time the notice was sent, and
it appears to have credited Allison’s testimony that the
meeting was called with minimal notice in order to
prevent Robert’s faction from attending. Furthermore,
given that Philip, Jane, and Allison rescinded their votes
in favor of the stock purchase agreement after confer-
ring with Robert and Jeffrey, it is readily apparent that
the underlying purpose of the notice requirement was
thwarted. That is, by calling the special meeting with
only twenty-five minutes notice to the board, Edward
prevented Robert and Jeffrey from attending the meet-
ing and attempting to persuade the rest of the board
to oppose the stock purchase agreement. Consequently,
we conclude that the court properly determined that,
under the specific circumstances leading up to the
November 20, 2015 board meeting, twenty-five minutes
notice was insufficient under Levco’s bylaws.
The judgment is affirmed.
In this opinion the other judges concurred.
1
After Martin died on February 18, 2018, the court granted the motion
filed by the plaintiff, Levco Tech, Inc., to substitute Sally, as executrix of
the estate of Martin, in place of Martin.
2
The revised cross complaint included six counts against Edward, six
counts against Sally, and two counts against Martin. Counts one, four, seven,
nine, eleven, and thirteen were directed against Edward and sought a declara-
tory judgment; a determination as to the validity of Edward’s alternative
board; the removal of Edward’s alternative board; inspection of corporate
records; a writ of mandamus to inspect books and records; and to enjoin
ultra vires acts. Counts two, five, eight, ten, twelve, and fourteen sought
the same relief against Sally. Counts three and six were directed against
Martin and also sought a declaratory judgment and a determination as to
the validity of Edward’s alternative board.
3
Edward’s cross complaint included four counts against Robert and Jef-
frey. In the first three counts, Edward sought a declaratory judgment, the
removal of Robert and Jeffrey from the board, and to enjoin ultra vires acts.
In count four, he asserted a breach of fiduciary duty claim.
Sally’s cross complaint included nine counts against Robert and Jeffrey.
Counts one through four mirrored the four counts of Edward’s cross com-
plaint. In counts five through nine, Sally asserted derivative claims for fraud,
a violation of the Connecticut Uniform Securities Act, General Statutes
§ 36b-2 et seq., statutory theft under General Statutes § 52-564, conversion,
and unjust enrichment.
4
Edward and Sally have not challenged this finding on appeal.
5
On appeal, Edward and Sally claim that the court improperly determined
that Sally was not elected to the board at the November 17, 2015 meeting.
They argue that, pursuant to § 33-712 (a), because Levco’s certificate of
incorporation was silent as to the method of electing directors to the board,
the plurality rule applied and, therefore, Sally was elected to the board by
a plurality of the votes.
At oral argument before this court, however, counsel for Edward and
Sally acknowledged that if this court determines that the court properly
concluded that (1) Dot revoked the trust and (2) the issuance of twelve
additional shares to Edward was invalid, the issue regarding whether Sally
was elected to the board on November 17, 2015, would be moot because
Robert and Jeffrey would control the board, as they would have the right
to vote the majority of the outstanding shares of Levco.
6
In Docket No. AC 44417, Edward and Sally, both individually and as
executrix of Martin’s estate, appealed, challenging the judgments on Levco’s
complaint, Dot’s cross complaint against Edward and Sally, and the two
counts of Robert and Jeffrey’s revised cross complaint against Martin. See
Practice Book § 61-3 (‘‘judgment disposing of only a part of a complaint,
counterclaim or cross complaint is a final judgment if that judgment disposes
of all causes of action in that complaint, counterclaim or cross complaint
brought by or against a particular party or parties’’).
Because the court’s decision did not dispose of all of the counts in the
cross complaints brought by or against Edward, Sally, Robert, and Jeffrey,
Edward and Sally filed a motion pursuant to Practice Book § 61-4, requesting
that the trial court make a written determination that the issues resolved
by the judgment are so integral to the outcome of the case that the delay
incident to the appeal would be justified. The trial court granted the motion,
and this court subsequently granted Edward and Sally’s motion for permis-
sion to file an appeal challenging the judgments on (1) counts one, two,
four and five of Robert and Jeffrey’s revised cross complaint; (2) count one
of Edward’s cross complaint against Robert and Jeffrey; and (3) count one
of Sally’s cross complaint against Robert and Jeffrey. This resulted in Edward
and Sally filing a separate appeal, docketed as AC 44597. This court later
ordered that AC 44597 be consolidated with AC 44417.
7
Although the relevant section of the Restatement (Third) of Trusts was
published in 2003, before Dot transferred her shares to Sally in 2012, the
trial court relied on the Restatement (Second) of Trusts, which was published
in 1959. The parties likewise rely on the Restatement (Second) of Trusts
and do not address the applicability of the Restatement (Third) of Trusts.
8
Edward and Sally highlight comment (c) to § 332 of the Restatement
(Second) of Trusts, which provides: ‘‘The statement or testimony of the
settlor made or given after the creation of the trust that at the time he
created the trust he believed that he had power to revoke it is not of itself
a sufficient ground for reforming the instrument and permitting him to
revoke the trust. His statement or testimony, however, may be sufficient if
corroborated by other evidence, or the other evidence may be sufficient
without his statement or testimony. The reason is that such statement or
testimony is unreliable since the settlor may easily be mistaken as to his
former state of mind or may misrepresent it.’’ 2 Restatement (Second),
Trusts § 332, comment (c), pp. 146–47 (1959).
In the present case, Dot’s testimony regarding her state of mind at the
time she created the trust was corroborated by Sally’s testimony that she
agreed to rescind the transfer a day or two afterward.
9
Shortly before oral argument, Robert, Jeffrey, and Dot, pursuant to Prac-
tice Book § 67-10, filed a notice of supplemental authority regarding Connect-
icut’s adoption of the Uniform Trust Code, General Statutes § 45a-499a et
seq., effective as of January 1, 2020. At oral argument before this court,
they argued that General Statutes § 45a-499oo, which provides that a settlor
may revoke a trust unless the terms of the trust expressly provide that it
is irrevocable, applies retroactively to the present case. Although § 45a-
499oo (a) provides that this provision ‘‘shall not apply to . . . a trust created
under an instrument executed before January 1, 2020,’’ they claim that the
statute nevertheless applies to oral trusts because General Statutes § 45a-
499c (30) defines ‘‘trust instrument’’ as ‘‘any instrument executed by the
settlor . . . that contains terms of the trust, including any amendments
thereto.’’ Accordingly, they argued that the statute applies in the present
case because there is no trust instrument, as Edward and Sally claimed that
Dot created an oral trust. We question the soundness of this proffered
construction of the statute. Nevertheless, because we find no error in the
court’s conclusion that Dot’s trust was revocable, we do not address whether
the new statutory presumption of revocability applies retroactively to oral
trusts created prior to January 1, 2020.
10
Although the Delaware Chancery Court’s decisions are not binding on
this court, we find the court’s statement of the rationale for the notice rule
to be accurate and persuasive.