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Maefair Health Care Center, Inc. v. Noka
MAEFAIR HEALTH CARE CENTER, INC. v.
SUSAN NOKA, CONSERVATOR
(ESTATE OF PATRICIA
N. ERTS)
(AC 46314)
Cradle, C. J., and Suarez and Westbrook, Js.
Syllabus
The plaintiff appealed from the trial court’s judgment denying its application
for a prejudgment remedy against the defendant, the conservator of the
person and estate of P. The plaintiff claimed, inter alia, that the court erred
in concluding that, on the basis of the definition of property in the statute
(§ 52-278a) governing prejudgment remedies, the plaintiff was precluded
from attaching P’s interest, as an heir, in certain real property that was part
of an estate then pending in a probate court. Held:
The trial court improperly denied the plaintiff’s application for a prejudgment
remedy on the basis of its conclusion that the plaintiff could not attach P’s
interest in the real property, as contingent interests in real property explicitly
fall within the broad definition of property in § 52-278a; accordingly, this
court remanded the case to the trial court to conduct a new hearing on the
application.
Argued April 22—officially released October 21, 2025
Procedural History
Action to recover damages for, inter alia, unjust
enrichment, and for other relief, brought to the Superior
Court in the judicial district of Fairfield, where the
court, Hon. Dale W. Radcliffe, judge trial referee, denied
the plaintiff’s application for a prejudgment remedy,
and the plaintiff appealed to this court. Reversed; further proceedings.
Michael W. Stenger, with whom, on the brief, was
Angelo Maragos, for the appellant (plaintiff).
Opinion
SUAREZ, J. The plaintiff, Maefair Health Care Center,
Inc., appeals from the judgment of the trial court denying its application for a prejudgment remedy filed
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Maefair Health Care Center, Inc. v. Noka
against Susan Noka,1 the conservator of the person and
estate of Patricia N. Erts.2 On appeal, the plaintiff
claims, inter alia,3 that the court incorrectly concluded
that General Statutes § 52-278a did not permit the plaintiff to attach the decedent’s interest in certain real property. We agree and reverse the judgment of the court.
The record reveals the following relevant facts, set
forth by the trial court, and procedural history. ‘‘The
plaintiff is licensed by the state of Connecticut to operate a chronic care and convalescent facility [in] Trumbull. . . . [The decedent] was first admitted as a resident/patient of the [plaintiff] on January 26, 2021, and
was discharged on March 10, 2021. She was readmitted
1
Susan Noka had been appointed as conservator of the person and estate
of Erts in 2021. Erts died in 2023 during the pendency of this appeal, and
we refer to her herein as the decedent. A motion to substitute Gregory J.
Vetter, the administrator of Erts’ estate, as the defendant was granted by
the trial court on June 24, 2024, and by this court on January 3, 2025. For
clarity, we refer in this opinion to the administrator as the defendant and
to Noka by name.
We further note that the defendant did not file a brief with this court. We
therefore decide the appeal on the basis of the record and the plaintiff’s
brief, appendix and oral argument. See, e.g., Batista v. Cortes, 203 Conn.
App. 365, 366 n.1, 248 A.3d 763 (2021).
2
The grant or denial of a prejudgment remedy is a final judgment for
purposes of appeal pursuant to General Statutes § 52-278l (a). See, e.g.,
People’s United Bank v. Kudej, 134 Conn. App. 432, 434 n.1, 39 A.3d 1139
(2012).
3
The plaintiff also claims that the court incorrectly concluded that it
could not state a cognizable claim against Noka, in her individual capacity,
rather than determining whether Noka, as conservator of the decedent’s
estate, was liable in her representative capacity, to the plaintiff on its claims
alleging unjust enrichment and quantum meruit. We do not address this
claim because the administrator of the decedent’s estate has been substituted
as the party defendant. See footnote 1 of this opinion. Accordingly, the
question of whether Noka was a proper party defendant is purely academic
because, even if we were to agree with the plaintiff’s first claim, any proceedings on remand would not involve Noka. ‘‘[W]e have consistently held that
we do not render advisory opinions. . . . [When] the question presented is
purely academic, we must refuse to entertain the appeal.’’ (Internal quotation
marks omitted.) Francis v. Fonfara, 303 Conn. 292, 297 n.8, 33 A.3d 185
(2012).
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Maefair Health Care Center, Inc. v. Noka
to the facility on March 22, 2021, and ha[d] resided at
[the plaintiff’s facility] since the readmittance. . . .
‘‘[The decedent was] the sole surviving child of the
late Marguerite Erts, who died on November 2, 2018.
The estate of Marguerite Erts is pending in the Probate
Court for the district of Trumbull. When Marguerite
Erts died, she was the owner of real property located
at 53 Sherwood Drive, Easton [property] [that] . . .
[was] listed as part of her estate. [The decedent] is the
only heir of Marguerite Erts.’’
On July 1, 2022, the plaintiff filed an application for
prejudgment remedy4 against Noka, seeking to attach
the subject property pursuant to General Statutes § 52-278c, to secure the sum of $310,386.5 Accompanying
the application for prejudgment remedy was an affidavit
from Bessie Forrest, the business office manager of the
plaintiff.6 In that affidavit, Forest averred, among other
things, that the plaintiff had furnished care and services
to the decedent and that $310,386 was due and owing.
Also accompanying the application for prejudgment
remedy was the plaintiff’s proposed writ of summons
and complaint. The plaintiff alleged in count one that
the decedent had been unjustly enriched based on the
4
‘‘A prejudgment remedy application is brought as a prelude to the filing
of a civil action, and is meant to determine whether security should be
provided for any judgment ultimately recovered by the plaintiff if he or she
is successful on the merits of the civil action.’’ (Internal quotation marks
omitted.) Connecticut Novelty Co. v. Graichen, 233 Conn. App. 843, 844 n.1,
341 A.3d 362 (2025).
5
The application also sought to attach ‘‘sufficient property of [the decedent] to secure said sum.’’ At the hearing on the plaintiff’s application
for a prejudgment remedy, the court stated: ‘‘I don’t believe I can issue a
prejudgment attachment on the real estate. Any other attachment or finding
here would be futile in light of the fact that the inventory shows $3000 in
property.’’ The plaintiff has not argued that the court should have attached
any assets of the decedent aside from the subject property.
6
In connection with the prejudgment remedy application and pursuant
to General Statutes § 52-278n, the plaintiff filed a motion seeking the disclosure of the decedent’s assets.
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Maefair Health Care Center, Inc. v. Noka
services that were provided, and, in count two, sought
recovery on a theory of quantum meruit. The plaintiff
alleged that Noka ‘‘control[led] and manag[ed] the
assets, income, property and resources of [the decedent],’’ and that Noka ‘‘had not paid the outstanding
charges from the estate of the [decedent].’’ Finally, the
plaintiff claimed that it was ‘‘damaged by the failure to
pay and the [decedent] is liable on the basis of quantum
meruit.’’
The court held an evidentiary hearing on the application on December 8, 2022, during which the court took
admitted exhibits into evidence and heard testimony
from two witnesses, Forrest and Marjorie Jean Paul
Rene, the director of nursing for the plaintiff. Forrest
testified as to the charges for services that the plaintiff
claimed were still outstanding. Noka did not present
any witnesses or offer any written exhibits. The parties
thereafter submitted posthearing briefs.
Following the hearing, the court issued a memorandum of decision dated March 2, 2023, denying the application for a prejudgment remedy. The court found that
‘‘care and treatment has been provided to [the decedent]
and no compensation has been received . . . .’’ The
court concluded, however, that the property was not
subject to attachment. Specifically, the court found that
the property had been owned by Marguerite Erts prior
to her death, and that the estate of Marguerite Erts
was ‘‘pending in the Probate Court for the district of
Trumbull.’’ The court noted that, although title to real
property vests in heirs of a decedent once a will is
admitted to probate, that title is defeated if the ‘‘administration of the estate requires that the property be sold,
by order of the Probate Court.’’ The court stated that
‘‘[the decedent could] not transfer, encumber, or pledge
the real property . . . so long as that real estate is part
of the estate of Marguerite Erts. The property is not
under her control, and will not be under her control,
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Maefair Health Care Center, Inc. v. Noka
unless it is transferred into the name of [the decedent]
via a certificate of devise issued by the Probate Court
. . . .’’ Accordingly, the court denied the plaintiff’s
application for a prejudgment remedy.
On July 7, 2023, the plaintiff moved for an articulation
of the court’s order denying the prejudgment remedy.
The court denied the motion, stating that its decision
‘‘correctly frame[d] the issue of whether real property
is subject to attachment. It was also found that services
were provided, and no payment was made by the nonparty or the conservator.’’ This court subsequently
granted the plaintiff’s motion for review but denied the
requested relief for articulation. This appeal followed.
On appeal, the plaintiff claims that the court incorrectly concluded that § 52-278a did not permit it to
attach the decedent’s interest in certain real property.
We agree.
We first set forth the applicable law governing prejudgment remedies. ‘‘A prejudgment remedy means any
remedy or combination of remedies that enables a person by way of attachment, foreign attachment, garnishment or replevin to deprive the defendant in a civil
action of, or affect the use, possession or enjoyment
by such defendant of, his property prior to final judgment . . . . General Statutes § 52-278a (d). A prejudgment remedy is available upon a finding by the court
that there is probable cause that a judgment in the
amount of the prejudgment remedy sought, or in an
amount greater than the amount of the prejudgment
remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in
favor of the plaintiff . . . . General Statutes § 52-278d
(a) (1). . . .
‘‘Section 52-278d (a) explicitly requires that a trial
court’s determination of probable cause in granting a
prejudgment remedy include the court’s taking into
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Maefair Health Care Center, Inc. v. Noka
account any defenses, counterclaims or set-offs . . . .
Therefore, it is well settled that, in determining whether
to grant a prejudgment remedy, the trial court must
evaluate both parties’ evidence as well as any defenses,
counterclaims and setoffs. . . . Such consideration is
significant because a valid defense has the ability to
defeat a finding of probable cause.’’ (Citation omitted;
emphasis omitted; internal quotation marks omitted.)
Konover Development Corp. v. Waterbury Omega, LLC,
214 Conn. App. 648, 657–58, 281 A.3d 1221, cert. denied,
345 Conn. 919, 284 A.3d 627 (2022).
Analysis of the plaintiff’s claim requires us to construe § 52-278a. Although ordinarily we review a trial
court’s actions with respect to an application for a prejudgment remedy for clear error; see id., 664; the issue
raised by the plaintiff, specifically, whether the decedent’s interest in the property is ‘‘property’’ under § 52-578a, presents a question of statutory interpretation
requiring plenary review. See, e.g., Feldmann v. Sebastian, 261 Conn. 721, 724–25, 805 A.2d 713 (2002)
(applying plenary review when parties stipulated that
probable cause existed to sustain prejudgment remedy
and only issue before trial court was whether remedy
was authorized as matter of law).
‘‘When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent
of the legislature. . . . 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. . . . It is a
basic tenet of statutory construction that [w]e construe
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Maefair Health Care Center, Inc. v. Noka
a statute as a whole and read its subsections concurrently in order to reach a reasonable overall interpretation.’’ (Internal quotation marks omitted.) Greenwich
Retail, LLC v. Greenwich, 233 Conn. App. 78, 85–86,
340 A.3d 463 (2025).
Section 52-278a (e) broadly defines ‘‘property’’ as
‘‘any present or future interest in real or personal property, goods, chattels or choses in action, whether such
is vested or contingent.’’ See Krafick v. Krafick, 234
Conn. 783, 795, 663 A.2d 365 (1995) (citing § 52-278a in
support of proposition that term ‘‘ ‘property’ ’’ has been
broadly defined in General Statutes). It is well settled
that ‘‘a person’s right of inheritance vests at the moment
of the decedent’s death . . . and that although distribution occurs a considerable time thereafter, it relates
back to the date of the death as the time when the right
of the beneficiary became fixed.’’ (Citation omitted;
internal quotation marks omitted.) Bartlett v. Bartlett,
220 Conn. 372, 379, 599 A.2d 14 (1991).7
It is true that an heir’s title during the administration
of a testator’s estate is ‘‘subject to being defeated should
7
‘‘The recording of a probate certificate of devise or descent is necessary
only to perfect marketable title. That certificate furnishes evidence that the
heir’s or devisee’s title is no longer in danger of being cut off by a probate
sale to pay debts of the estate and also because it furnishes a record of
who received the title. Such a probate certificate is not a muniment of title,
however, but merely a guide or pointer for clarification of the record. . . .
The fiduciary of the decedent’s estate does not take title to the real estate
. . . and a fiduciary has no right to interfere with the devolution of title
unless the property is needed to satisfy claims against the estate.’’ (Internal
quotation marks omitted.) Zanoni v. Lynch, 79 Conn. App. 309, 320–21, 830
A.2d 304, cert. denied, 266 Conn. 929, 837 A.2d 804 (2003). This is consistent
with the fact that, generally speaking, the law does not presume that title
to real estate shall be held in abeyance and that title must be vested in
someone, since ‘‘public policy favors certainty in title to real property . . . .’’
63C Am. Jur. 2d 104, Property § 28 (2018); see, e.g., Shepard v. Union &
New Haven Trust Co., 106 Conn. 627, 634, 138 A. 809 (1927) (‘‘[t]he law will
not favor a construction which suspends . . . title or holds it in abeyance’’
(internal quotation marks omitted)).
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Maefair Health Care Center, Inc. v. Noka
it be necessary for the administration of the estate that
it be sold by order of the court, and subject to the
right of the administrator to have possession, care and
control of it during the settlement of the estate, unless
the [P]robate [C]ourt shall otherwise order.’’ (Internal
quotation marks omitted.) O’Connor v. Chiascione, 130
Conn. 304, 306, 33 A.2d 336 (1943). ‘‘[U]nder the conditions and for the purposes prescribed by statute, as
whe[n] the personal property is insufficient to pay the
debts of the decedent’s estate, his real property and
interests therein may be regarded as assets to which his
personal representatives may resort. . . . The Probate
Court’s authority to order the sale of real property is
special and statutory and the authority must be strictly
followed, otherwise the order of sale will be void. . . .
[T]he burden is on the . . . administrator, to establish
in the Probate Court, and in the Superior Court, on
appeal, the statutory predicate for the court’s order.
. . . The foregoing [statements] leave no doubt as to
the fact that although title to specifically devised real
property passes to a decedent’s devisees at his death,
such title is not absolute.’’ (Citations omitted; internal
quotation marks omitted.) Zanoni v. Lynch, 79 Conn.
App. 309, 321–22, 830 A.2d 304, cert. denied, 266 Conn.
929, 837 A.2d 804 (2003).
The fact that an heir’s title may be contingent on the
administration of a testator’s estate, however, does not
mean the heir does not have a vested interest in the
property upon the death of the testator. For example,
in Gaynor v. Payne, 261 Conn. 585, 592, 804 A.2d 170
(2002), our Supreme Court held that the contingent
remainder interests of grandchildren with respect to a
trust were not a mere expectancy. The court stated
that the grandchildren’s remainder interests could be
reached by creditors and concluded that, even though
their interest was subject to a condition precedent that
may never be fulfilled, namely, that they survive their
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Maefair Health Care Center, Inc. v. Noka
parents, ‘‘that possibility does not alter the nature of
the contingent remainder as an enforceable, presently
existing property interest.’’ Id., 593–94.
In the present case, the court concluded that,
although the decedent did have title to the property
upon the death of Marguerite Erts, her title was not
absolute while the administration of the estate of Marguerite Erts was still pending. The court also stated
that the decedent ‘‘[could not] transfer, encumber, or
pledge the real property . . . so long as that real estate
is part of the estate of [Marguerite] Erts. The property
is not under the control of . . . [Noka], and will not
be under her control, unless it is transferred into the
name of [the decedent], via a certificate of devise issued
by the Probate Court for the district of Trumbull.’’ The
court found that the estate of Marguerite Erts is still
pending in the Probate Court for the district of Trumbull.8
Although the court correctly stated that the decedent
cannot sell or encumber the property during the administration of Marguerite Erts’ estate, the decedent still
had a vested interest in the property and held title to
it when Marguerite Erts died. Section 52-278a does not
require that a property interest be ‘‘absolute.’’ We agree
with the assertion of the plaintiff’s counsel at oral argument before this court that, for purposes of attachment
at the prejudgment remedy stage, property includes
vested and/or contingent interests, and that the court
improperly ‘‘conflat[ed] possession or control with
interest in property.’’ Moreover, although the court correctly states that the decedent could not have taken
8
Although the plaintiff argues that Noka’s counsel did not present any
evidence that any claim had been filed against the estate of Marguerite Erts,
we note that the only information before the court at the hearing on the
plaintiff’s application was that the estate of Marguerite Erts was pending.
Specifically, the plaintiff’s counsel represented to the court that the property
‘‘is currently in [the] Probate [Court],’’ and Noka’s counsel stated that there
was ‘‘no certificate of devise issued at this time . . . .’’
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Maefair Health Care Center, Inc. v. Noka
control of the property until it was transferred into her
name via a certificate of devise issued by the Probate
Court, control also is not required for an asset to constitute ‘‘property’’ as that term is defined in § 52-278a. See
also Zanoni v. Lynch, supra, 79 Conn. App. 320–21
(‘‘probate certificate is not a muniment of title . . . but
merely a guide or pointer for clarification of the record’’
(internal quotation marks omitted)). Although control
over property during the administration of an estate is
in the administrator of an estate, ‘‘the right of possession
and control is in [the administrator] only as a fiduciary
for those interested in the estate . . . .’’ (Emphasis
added.) O’Connor v. Chiascone, supra, 130 Conn. 306.
Thus, the fact that the decedent’s interest in the property was contingent on the settlement of the estate of
Marguerite Erts, and even potentially subject to complete defeat, does not mean that her interest could not
have been attached as a matter of law. As stated previously, contingent interests in real property explicitly
fall within the broad definition of ‘‘property’’ in § 52-278a. In such a situation, the creditor would merely be
able to attach the same rights over the property that
the debtor had—in this case, a contingent interest in
real property subject to the administration of the estate
of the testator. See L. Simes, Law of Future Interests
(2d Ed. 1966) § 39, pp. 79–80 (‘‘if [a] future interest is
contingent or defeasible in the hands of the debtor, the
same contingencies and defeasibilities are applicable
to it in the hands of the creditor’’). Therefore, we conclude that the court improperly denied the plaintiff’s
application for a prejudgment remedy on the basis of
its conclusion that it could not attach the decedent’s
interest in the property.
The judgment denying the plaintiff’s application for
a prejudgment remedy is reversed and the case is
remanded with direction to conduct a new hearing on
that application.
In this opinion the other judges concurred.