Sackman v. Quinlan

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WILLIAM SACKMAN III ET AL. v. KELLY A.
QUINLAN, EXECUTRIX (ESTATE OF
NANCY L. SACKMAN), ET AL.
(AC 42748)
DiPentima, C. J., and Alvord and Pellegrino, Js.

Syllabus

The plaintiffs sought to recover damages from the defendant children of N
and the defendant spouse of one of the children, claiming, inter alia,
that the defendants were liable for conversion, unjust enrichment and
tortious interference with contractual relations in connection with N’s
encumbrance of a condominium that the plaintiffs’ deceased father, W,
had quitclaimed to N before his death. W had executed a revised will
that left his interest in the condominium to N, provided that, if she were
to sell the condominium, she was to set aside the proceeds for the
plaintiffs, less any funds that N might need for her comfort and support.
The same day that W executed his revised will, N executed her will,
which provided that, if W predeceased her, her interest in the condomin-
ium would pass to the plaintiffs upon her death. W and N then memorial-
ized their intentions in a separate agreement that referenced the cross
promises in their wills. The agreement provided that, if the property
were sold during N’s lifetime and after W’s death, N would set aside
the sale proceeds in a special account for the plaintiffs and that, if
the property were not sold, it would be devised to the plaintiffs. The
agreement also stated that it was a third-party beneficiary contract for
the benefit of the plaintiffs and that nothing in the agreement would
limit N’s ability to use the funds set aside for her comfort and support,
as provided for in W’s revised will. N thereafter used the condominium
as collateral to obtain a $100,000 line of credit and put the proceeds
into an account to which her daughter, the defendant K, had access.
After N died, title to the condominium passed to the plaintiffs. K, who
had been appointed executrix of N’s estate, rejected a claim the plaintiffs
filed against the estate in which they sought $76,000 of the line of credit
that they believed N had not used for improvements to the condominium.
In their complaint, the plaintiffs alleged that N had failed to abide by
her promise to W to devise the condominium or the proceeds of its sale
to the plaintiffs and sought to recover the outstanding balance of the
line of credit. While the action was pending, the defendants’ counsel,
who had undergone surgery for brain cancer, filed an affidavit with the
court and was permitted to withdraw from representation. When the
defendants’ new counsel thereafter filed a motion for summary judg-
ment, the plaintiffs objected to the timing of the motion and to the
contention that the defendants’ original counsel was incapacitated, and
the trial court ordered the defendants to file a motion for permission
to file a motion for summary judgment. The court granted the motion for
permission and thereafter granted the defendants’ motion for summary
judgment and rendered judgment for the defendants. The court deter-
mined that the written agreement between W and N was void for lack
of consideration and that there was no genuine issue of material fact
that N had complied with the provisions of the agreement. Held:
1. The trial court did not abuse its discretion when it granted the defendants’
motion for permission to file a motion for summary judgment: the plain-
tiffs failed to present any persuasive arguments that the court abused
its discretion, including their claim that the court failed to analyze the
incompetency of the defendants’ original counsel pursuant to statute
(§ 45a-650), § 45a-650 having been inapplicable, as it provides analysis
for the appointment of a conservator; moreover, the defendants repre-
sented to the court that their original counsel had demonstrated clear
deficiencies in his representation, the defendants submitted to the court
counsel’s affidavit, which explained that he was impaired during the
pendency of the case, as well as counsel’s medical records and a chart
of his treatment dates and corresponding trial court dates, and no trial
date had been scheduled at the time the defendants filed their motion
for permission to file a motion for summary judgment.
2. The trial court properly rendered summary judgment for the defendants,
there having been no genuine issue of material fact as to the plaintiffs’
claims of conversion, unjust enrichment and intentional interference
with contractual relations: because N owned the condominium after it
was quitclaimed to her, she had the right to borrow against it and, thus,
K could not have converted funds that the plaintiffs did not own and
could not have been unjustly enriched when N placed funds from the
line of credit into an account that passed to K, and, because there was
no merit to the plaintiffs’ claim that the trial court improperly determined
that the agreement between W and N was invalid, the defendants could
not have interfered with the agreement; moreover, even if the agreement
had been considered, it added only that N had promised not to change
her will, the plaintiffs did not argue that N changed her will, the property
thereafter was devised to the plaintiffs in accordance with N’s will
and the agreement, and, as summary judgment for the defendants was
proper, the plaintiffs’ claim that the trial court failed to view the evidence
in the light most favorable to them was unavailing.
Argued February 11—officially released June 30, 2020

Procedural History

Action to recover damages for, inter alia, conversion,
and for other relief, brought to the Superior Court in
the judicial district of New Haven, where the court,
Wilson, J., granted the defendants’ motion for permis-
sion to file a motion for summary judgment; thereafter,
the action was withdrawn as against the named defen-
dant; subsequently, the court granted the defendants’
motion for summary judgment and rendered judgment
thereon, from which the plaintiffs appealed to this
court. Affirmed.
Ellen C. Sackman, self-represented, with whom, on
the brief, were William Sackman III, self-represented,
and Steven Sackman, self-represented, the appellants
(plaintiffs).
Cristina Salamone, with whom, on the brief, was
Steven C. Rickman, for the appellees (defendants).
Opinion

PELLEGRINO, J. This appeal arises from a dispute
between the self-represented plaintiffs,1 the biological
children of William Sackman, Jr. (William), from his
marriage to Elaine Sackman (Elaine), and the defen-
dants,2 who are the children of William’s second wife,
Nancy L. Sackman (Nancy), and one of the children’s
spouse. The plaintiffs appeal from the judgment of the
trial court, rendered in favor of the defendants on a
motion for summary judgment. On appeal, the plaintiffs
claim that the trial court improperly (1) allowed the
defendants to file a motion for summary judgment, (2)
granted the defendants’ motion for summary judgment,
and (3) failed to view the evidence in the light most
favorable to the nonmoving party. We disagree and,
therefore, affirm the judgment of the trial court.
The following undisputed facts are relevant to the
resolution of this appeal. William and Elaine had three
children issue of their marriage, the plaintiffs: William
Sackman lll, Steven Sackman, and Ellen Sackman. After
Elaine died in 1991, William married Nancy. Nancy had
two children issue of a previous marriage, the defen-
dants: Kelly A. Quinlan (Kelly) and Christopher M. Sat-
tler. Kelly is married to Peter J. Quinlan, who is also a
named defendant. William owned a home that he had
acquired during his marriage to Elaine that was unen-
cumbered when he sold it in 1999. With the proceeds
from that sale, he purchased a condominium (condo)
in Cheshire that is at the heart of this appeal.
William executed a will that provided that, if he were
to predecease Nancy, she would have a life use of the
condo, and the plaintiffs would have a remainder inter-
est. In July, 2007, William executed a new will that
provided that, in the event that he predeceased Nancy,
his interest in the condo would pass to Nancy outright,
provided that, if she sold the condo, she had to set
aside the proceeds for the plaintiffs, less any funds that
she may need for her comfort and support.3 That same
day, Nancy executed a will providing that, if William
predeceased her, her interest in the condo would pass
to the plaintiffs upon her death.4
In a document dated August 13, 2007 (agreement),
William and Nancy memorialized their intentions. The
agreement referenced the cross promises contained in
William’s and Nancy’s wills and explained that William
had originally left the condo to Nancy ‘‘for the term of
her natural life’’ but that, in agreement with Nancy, he
was revising his will to leave the property to her out-
right, ‘‘primarily to provide her with a means to increase
her income should it be necessary by means of a reverse
mortgage.’’ The agreement stated that William was will-
ing to execute his will ‘‘provided that in the event such
property is sold during the lifetime of Nancy and after
the death of William, that she will set aside the net
proceeds from the sale of such real property into a
special account earmarked for distribution to [the plain-
tiffs] . . . . Further, in the event such property is not
sold, it will be devised to [the plaintiffs]. . . .’’ The
agreement added that Nancy agreed not to change her
will ‘‘without the written consent of William while he
is alive and in the event of his death without the written
consent of [the plaintiffs] . . . .’’ Further, ‘‘the parties
specifically agree that this [a]greement is a [third-party]
beneficiary contract for the benefit of [the plaintiffs]’’
and that ‘‘[n]othing herein shall be construed to limit
the ability of Nancy to utilize the funds so set aside for
her comfort and support’’ in article fourth of William’s
will. On June 5, 2012, after William had become ill, Ellen
Sackman, as attorney in fact for her father, quitclaimed
William’s interest in the condo to Nancy. Ellen claimed,
in an affidavit to the trial court, that she had known
that she ‘‘would have to open a formal estate for no
other reason but to transfer the [condo] to Nancy. [She],
therefore, made the decision to avoid probate by using
the general [p]ower of [a]ttorney from [her] father to
transfer the condominium to Nancy.’’ William subse-
quently died on June 13, 2012.
Thereafter, Nancy obtained a $100,000 line of credit,
using the condo as collateral, and put the proceeds into
an account, to which Kelly had access. Prior to her
death in March, 2016, Nancy withdrew money from the
account to, among other things, make improvements to
the condo and to purchase an automobile. After Nancy
died, Kelly was appointed executrix of her estate by the
Probate Court in Cheshire. The plaintiffs subsequently
filed an application for an order regarding a certificate
of devise of the condo, dated June 3, 2016. In their
application for the order, the plaintiffs alleged that the
condo was encumbered by the line of credit and,
accordingly, sought a court order to sell the condo and
pay off the line of credit. On that same day, the plaintiffs
filed a claim against Nancy’s estate seeking $76,000 of
the line of credit that the plaintiffs believed Nancy had
not used for improvements to the condo. Kelly, as exec-
utrix, rejected the claim. In accordance with Nancy’s
will, title to the condo passed to the plaintiffs, who sold
it. The net proceeds from the sale of the condo were
placed in a restricted account, and a portion of those
proceeds eventually were distributed to the plaintiffs.5
The plaintiffs commenced the present action on Sep-
tember 30, 2016, claiming that Nancy had failed to abide
by her promise to William that she would devise the
condo, or the proceeds from its sale, to the plaintiffs.
The plaintiffs, thus, sought to recover the outstanding
balance of the line of credit held in Nancy’s account.
The complaint contained six counts. Three counts were
alleged against Kelly in her capacity as executrix of the
estate: (1) breach of contract; (2) breach of the implied
covenant of good faith and fair dealing; and (3) breach
of fiduciary duty. The remaining counts were alleged
against the defendants in their individual capacities: (1)
conversion against Kelly; (2) unjust enrichment against
Kelly; and (3) tortious interference with a contract
against Christopher, Kelly, and Peter.
The parties filed a joint scheduling order on April 11,
2017, which provided that any dispositive motions were
to be filed by May 8, 2017. Trial was scheduled for
January 29, 2018. While the case was pending, the defen-
dants’ original counsel was diagnosed with, and under-
went surgery for, terminal brain cancer. On December
29, 2017, original counsel filed a motion for a continu-
ance, requesting that the case be continued to March
2, 2018, which the court granted on January 2, 2018,
and marked off the trial date, which was to be set later
by the court. Original counsel subsequently withdrew
his appearance on January 3, 2018. The defendants then
filed a motion for a continuance, dated February 28,
2018, to which the plaintiffs filed an objection on March
2, 2018. The plaintiffs also filed a new trial management
report on March 1, 2018. New counsel filed an appear-
ance on behalf of the defendants on March 8, 2018, and
filed a motion for summary judgment on March 29,
2018. The plaintiffs objected to the timing of the motion
for summary judgment and to the defendants’ con-
tention that the defendants’ original counsel was inca-
pacitated. Although at the time the motion for summary
judgment was filed no trial date was set, a trial manage-
ment order was in place. Accordingly, the court ordered
the defendants to file a motion for permission to file a
motion for summary judgment so that it could be
apprised of all relevant information before deciding
whether to exercise its discretion pursuant to Practice
Book § 17-44 to grant the motion to file a motion for
summary judgment.
In support of their motion for permission to file a
motion for summary judgment, the defendants submit-
ted, inter alia, an affidavit from their original counsel
and his medical records detailing his condition and
treatment to explain the reason why their motion for
summary judgment had not been filed earlier. The trial
court held a hearing on the motion for permission to
file a late motion for summary judgment on June 4, 2018,
and, after considering the arguments and affidavits filed
by both parties, granted the defendants’ motion for per-
mission to file the motion for summary judgment. The
trial court subsequently held a hearing on the motion
for summary judgment on November 13, 2018. On March
1, 2019, the plaintiffs withdrew the counts of the com-
plaint alleged against Kelly in her capacity as executrix.
In its March 13, 2019 memorandum of decision on
the defendants’ motion for summary judgment, the trial
court found, as a matter of law, that William and Nancy’s
August 13, 2007 written agreement was void for lack
of consideration. The court also concluded that there
was no genuine issue of material fact that Nancy had
complied with the provisions of her agreement with
William in that, if she sold the condo, the net proceeds
of the sale would go to the plaintiffs and that, if she
did not sell the condo, her interest in the property would
pass to the plaintiffs. Accordingly, the court rendered
judgment in favor of the defendants. This appeal
followed.
I
On appeal, the plaintiffs first claim that the trial court
abused its discretion by granting the defendants permis-
sion to file a motion for summary judgment in that
the court (1) failed to ‘‘follow accepted guidelines for
determining incompetency of prior counsel,’’ (2)
improperly considered original counsel’s affidavit, and
(3) ‘‘improperly relieved [the] defendants of [their]
responsibility’’ to demonstrate original counsel’s inca-
pacity.
Practice Book § 17-44 provides in relevant part: ‘‘In
any action . . . any party may move for a summary
judgment . . . at any time if no scheduling order exists
and the case has not been assigned for trial. If a schedul-
ing order has been entered by the court, either party
may move for summary judgment as to any claim or
defense as a matter of right by the time specified in the
scheduling order. If no scheduling order exists but the
case has been assigned for trial, a party must move for
permission of the judicial authority to file a motion for
summary judgment. . . . The pendency of a motion for
summary judgment shall delay trial only at the discre-
tion of the trial judge.’’ Accordingly, we review the trial
court’s decision for an abuse of discretion. See Chadha
v. Charlotte Hungerford Hospital, 97 Conn. App. 527,
533, 906 A.2d 14 (2006). ‘‘When reviewing claims under
an abuse of discretion standard, the unquestioned rule
is that great weight is due to the action of the trial court
and every reasonable presumption should be given in
favor of its correctness . . . . In determining whether
there has been an abuse of discretion, the ultimate issue
is whether the court could reasonably conclude as it
did.’’ (Citation omitted; internal quotation marks omit-
ted.) PSE Consulting, Inc. v. Frank Mercede & Sons,
Inc., 267 Conn. 279, 328–29, 838 A.2d 135 (2004).
The plaintiffs claim that the trial court failed to ana-
lyze the ‘‘incompetency’’ of the defendants’ original
counsel under General Statutes § 45a-650 (c) (1)6 and
therefore improperly granted the defendants’ motion
for summary judgment. This claim is meritless because
§ 45a-650 is not applicable. Instead, § 45a-650 provides
the analysis for the appointment of a conservator. The
plaintiffs also claim that the trial court improperly con-
sidered original counsel’s affidavit. The plaintiffs, how-
ever, provide no basis for their argument.7 Finally, the
plaintiffs argue that the trial court improperly relieved
the defendants of their responsibility to ‘‘keep apprised
of their case’’ and that the trial court ‘‘erred in allowing
[the] defendants to retroactively assert that their coun-
sel was incapable simply because they believe their
counsel may have made a mistake.’’ The plaintiffs, how-
ever, do not explain how the trial court acted improp-
erly in utilizing its discretion to allow the defendants
to file a motion for permission to file a motion for
summary judgment. As such, the plaintiffs have not
presented any persuasive arguments that would lead
us to determine that the trial court abused its discretion
in granting the defendants permission to file a motion
for summary judgment.
In considering whether to allow the defendants to
file their motion for summary judgment, the trial court
heard representations from the defendants that original
counsel did demonstrate some clear deficiencies in his
representation, including that ‘‘he filed an answer in
draft (red lined) format, conducted no discovery, and
was subjected to numerous motions for default and
judgment.’’ The trial court was presented with evidence
that the defendants’ original counsel was diagnosed
with terminal brain cancer and was undergoing treat-
ment while the case was pending. The defendants sub-
mitted original counsel’s medical records, a chart of
his treatment dates and corresponding trial court dates,
and an affidavit from original counsel explaining his
condition. Original counsel’s affidavit explained that he
was impaired during the pendency of this case. He died
within three months of submitting the affidavit. Further,
no trial date was scheduled at the time the defendants
filed their motion for permission to file a motion for
summary judgment. On the basis of the record before
us, we conclude that the court did not abuse its discre-
tion by granting the defendants’ motion for permission
to file a motion for summary judgment.8
II
The plaintiffs also claim that the trial court improp-
erly granted the defendants’ motion for summary judg-
ment because the defendants were not entitled to judg-
ment. Specifically, the plaintiffs claim that the trial court
(1) failed to consider ‘‘the limitation of ‘for her comfort
and support,’ ’’ (2) failed to consider ‘‘the legal definition
of a sale and of the term ‘proceeds,’ ’’9 and (3) improp-
erly determined that the agreement was invalid. Fur-
ther, the plaintiffs claim that the court failed to view
the evidence in the light most favorable to themselves
as the nonmoving parties. We disagree.
‘‘The standard of review of a trial court’s decision to
grant summary judgment is well established. [W]e must
decide whether the trial court erred in determining that
there was no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter
of law. . . . In deciding a motion for summary judg-
ment, the trial court must view the evidence in the light
most favorable to the nonmoving party. . . . The test
is whether a party would be entitled to a directed verdict
on the same facts. . . . This court’s review of the trial
court’s decision to grant summary judgment . . . is
plenary.’’ (Internal quotation marks omitted.) TD Bank,
N.A. v. Salce, 175 Conn. App. 757, 765–66, 169 A.3d
317 (2017).
After the plaintiffs withdrew the three counts against
Kelly in her capacity as executrix, the only counts
remaining were conversion, unjust enrichment, and tor-
tious interference with a contract as to all defendants.
The plaintiffs alleged that the funds from the line of
credit belonged to them and that Kelly converted those
funds by retaining ownership over them. ‘‘The tort of
[c]onversion occurs when one, without authorization,
assumes and exercises ownership over property belong-
ing to another, to the exclusion of the owner’s rights.’’
(Internal quotation marks omitted.) Deming v. Nation-
wide Mutual Ins. Co., 279 Conn. 745, 770, 905 A.2d 623
(2006). ‘‘To establish a prima facie case of conversion,
the plaintiff must demonstrate that (1) the material at
issue belonged to the plaintiff, (2) that the defendants
deprived the plaintiff of that material for an indefinite
period of time, (3) that the defendants’ conduct was
unauthorized and (4) that the defendants’ conduct
harmed the plaintiff.’’ Stewart v. King, 121 Conn. App.
64, 74 n.4, 994 A.2d 308 (2010). The trial court found
that there was no genuine issue of material fact that
Nancy owned the condo after Ellen quitclaimed it to
her prior to William’s death. As the owner of the condo,
Nancy had the right to borrow against it as she wished.
Kelly, therefore, could not have converted funds that
the plaintiffs did not own.
The plaintiffs also alleged that Kelly was unjustly
enriched. The plaintiffs argued that Nancy did not have
the right to take the funds from the line of credit and
retain them in an account that passed to Kelly.
‘‘Unjust enrichment is a doctrine allowing damages
for restitution, that is, the restoration to a party of
money, services or goods of which he or she was
deprived that benefited another.’’ (Internal quotation
marks omitted.) Piccolo v. American Auto Sales, LLC,
195 Conn. App. 486, 494, 225 A.3d 961 (2020). ‘‘[U]njust
enrichment relates to a benefit of money or property
. . . and applies when no remedy is available based on
the contract. . . . The lack of a remedy under a con-
tract is a precondition to recovery based on unjust
enrichment . . . . It would be contrary to equity and
fairness to allow a defendant to retain a benefit at the
expense of the plaintiff.’’ (Internal quotation marks
omitted.) Id., 499.
The trial court determined that there was no genuine
issue of material fact that, at the time Nancy borrowed
money against the condo, she was the sole owner of
the condo pursuant to the quitclaim deed Ellen signed
as attorney in fact for William. The funds Nancy bor-
rowed on the condo were hers to do with as she wished,
and she could permit whomever she wished to have
access to the funds. The funds from the home equity
line of credit were never the plaintiffs’. The trial court
accordingly rendered judgment on behalf of the defen-
dants on this claim.
The plaintiffs alleged intentional interference with
contractual relations against the defendants, specifi-
cally, that Nancy violated the terms of the agreement
by siphoning equity from the condo and passing it to
Kelly. The plaintiffs alleged that the funds were in Nan-
cy’s account, to which Kelly had access at Nancy’s
death, and, as a result, the defendants retained the funds
from the line of credit in violation of the agreement.
‘‘A claim for intentional interference with contractual
relations requires the plaintiff to establish: (1) the exis-
tence of a contractual or beneficial relationship; (2)
the defendant’s knowledge of that relationship; (3) the
defendant’s intent to interfere with the relationship; (4)
that the interference was tortious; and (5) [that there
was] a loss suffered by the plaintiff that was caused by
the defendant’s tortious conduct.’’ (Internal quotation
marks omitted.) Starboard Fairfield Development, LLC
v. Gremp, 195 Conn. App. 21, 32, 223 A.3d 75 (2019).
The plaintiffs alleged that they were remainder bene-
ficiaries of the agreement between Nancy and William.
The plaintiffs further argued that Nancy’s actions vio-
lated the agreement and that the proceeds of the line
of credit were transferred improperly to Kelly upon
Nancy’s death. The trial court determined, as a matter
of law, that the agreement between William and Nancy,
in which Nancy promised not to alter her will without
permission from William or the plaintiffs, was void and
therefore unenforceable. Because there was no valid
agreement between William and Nancy, the defendants
could not have interfered with it. Prior to her death,
Nancy owned the condo pursuant to the quitclaim deed
and had the right to borrow against her interest in it.
Despite the fact that the agreement was unenforceable,
Nancy abided by her promise to William and, pursuant
to her will, devised her interest in the condo to the
plaintiffs at her death.
After thoroughly reviewing the record, including the
pleadings and affidavits submitted in support of the
defendants’ motion for summary judgment, we are per-
suaded that the trial court properly rendered summary
judgment in favor of the defendants. The parties agree
that there are no genuine issues of material fact. On
appeal, the plaintiffs argue that Nancy’s ability to bor-
row against the condo was restricted by the terms of
the will limiting her access to funds ‘‘for her comfort and
support.’’ The trial court did not reach that conclusion
when presented with the record. At the time of Nancy’s
death, she was the owner of the condo, which had been
quitclaimed to her before William’s death. Under the
terms of her will, there was no prohibition against tak-
ing out a line of credit; she agreed only to devise the
property to the plaintiffs, which she did. The plaintiffs,
therefore, had no basis for their claim to the proceeds
of the line of credit.
We see no merit to the plaintiffs’ claim that the trial
court improperly determined that the agreement was
invalid. The trial court explained that, even if the agree-
ment was considered, the agreement added only that
Nancy promised not to change her will, and the plain-
tiffs do not argue that Nancy changed her will. In accor-
dance with her will and the agreement, if considered,
the property was devised to the plaintiffs. Further,
because we agree with the trial court’s determination
that summary judgment in favor of the defendants was
appropriate in this case, we reject the plaintiffs’ claim
that the trial court failed to view the evidence in the
light most favorable to the plaintiffs. On the basis of
the foregoing, we conclude that the trial court properly
rendered summary judgment in favor of the defendants
and, therefore, affirm the judgment of the trial court.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiffs are William Sackman III, Steven Sackman, and Ellen
Sackman.
2
The defendants are Kelly A. Quinlan (Kelly), Christopher M. Sattler, and
Peter J. Quinlan (Peter). Kelly and Sattler are the biological children of
Nancy Sackman; Peter is married to Kelly. Kelly was sued in her individual
capacity and in her capacity as the executrix of Nancy Sackman’s estate.
3
Article fourth of William’s will states: ‘‘I give and devise to my wife,
NANCY L. SACKMAN, if she survives me, all of my interest in and to the
real property known as [the condo]. . . . I further request that my wife
shall devise the same at her death to [the plaintiffs] and the then living issue
of any deceased child of mine. In the event she shall sell such real property,
I request that she set aside the net proceeds thereof in a separate account
earmarked for eventual distribution to [the plaintiffs] pursuant to a last will
and testament to be executed by her. . . . I further request that my wife,
in the event that she shall sell such real property, shall set aside the net
proceeds thereof in a separate account earmarked for eventual distribution
to [the plaintiffs] pursuant to a Last Will and Testament to be executed by
her. By such direction I do not mean that my wife should not be entitled
to utilize such funds during her lifetime for her comfort and support, but
rather that any proceeds remaining at her death should pass to [the plaintiffs]
or if any be deceased, to their issue.’’
4
Article fourth of Nancy’s will provides: ‘‘If at the time of my death I have
an interest in real property known as [the condo] . . . and be using as my
residence, I give and devise the same to [the plaintiffs] . . . . I further
direct that in the event that I have sold [the condo] . . . or such other
residential property that I may own, and have not acquired another residence,
then the net proceeds remaining from the sale of such real property that I
have set aside in a special account earmarked for distribution to [the plain-
tiffs] be distributed to them . . . .’’
5
The property was sold on September 9, 2016, for $197,000. Subsequently,
$101,229.88 of those sale proceeds were used to pay off the home equity
line of credit. After the home equity line of credit was paid off, the Probate
Court ordered the remaining funds, $81,799, put into a restricted account.
The Probate Court approved the distribution of $8827.42 to Steven Sackman
as reimbursement for work done on the condo and ordered $10,000 to be
distributed to each of the plaintiffs. A total of $43,000 of the net proceeds
of the sale remained in the restricted account to ensure that there were
assets available to pay the expenses of Nancy’s estate.
6
General Statutes § 45a-650 provides in relevant part: ‘‘(a) At any hearing
on a petition for involuntary representation, before the court receives any
evidence regarding the condition of the respondent or of the respondent’s
affairs, the court shall require clear and convincing evidence that the court
has jurisdiction, that the respondent has been given notice as required in
section 45a-649, and that the respondent has been advised of the right to
retain an attorney pursuant to section 45a-649a and is either represented
by an attorney or has waived the right to be represented by an attorney.
The respondent shall have the right to attend any hearing held under this
section. . . .
‘‘(c) (1) After making the findings required under subsection (a) of this
section, the court shall receive evidence regarding the respondent’s condi-
tion, the capacity of the respondent to care for himself or herself or to
manage his or her affairs, and the ability of the respondent to meet his or
her needs without the appointment of a conservator. Unless waived by the
court pursuant to subdivision (2) of this subsection, medical evidence shall
be introduced from one or more physicians licensed to practice medicine
in this state who have examined the respondent not more than forty-five
days prior to the hearing, except that for a person with intellectual disability,
as defined in section 1-1g, psychological evidence may be introduced in lieu
of such medical evidence from a psychologist licensed pursuant to chapter
383 who has examined the respondent not more than forty-five days prior
to the hearing. The evidence shall contain specific information regarding
the respondent’s condition and the effect of the respondent’s condition on
the respondent’s ability to care for himself or herself or to manage his or
her affairs. The court may also consider such other evidence as may be
available and relevant, including, but not limited to, a summary of the
physical and social functioning level or ability of the respondent, and the
availability of support services from the family, neighbors, community or
any other appropriate source. Such evidence may include, if available,
reports from the social work service of a general hospital, municipal social
worker, director of social service, public health nurse, public health agency,
psychologist, coordinating assessment and monitoring agencies, or such
other persons as the court considers qualified to provide such evidence.’’
7
The plaintiffs argue in their principal brief to this court: ‘‘The fact that
[original counsel] was ill is not in dispute, but if he at any time during his
approximately thirteen month representation of the defendants believed
his illness was interfering with his ability to represent them, he had the
responsibility to withdraw as counsel. Instead he participated in the pretrial
process and only retroactively swore in an affidavit that he had been impaired
when he was requested to by the defendants’ new counsel and the defendant
Peter Quinlan, who was [original counsel’s] longtime personal friend. By
accepting and relying on [prior counsel’s] affidavit in which he stated that
he had been impaired, the court unfairly permitted the defendants to restart
the case.’’
The plaintiffs provide no basis for their claims of impropriety on behalf
of original counsel. Further, the plaintiffs do not explain why it was inappro-
priate for the court to have considered original counsel’s affidavit. In addition
to filing original counsel’s affidavit, the defendants filed original counsel’s
medical records with the court, as well as an e-mail from original counsel
explaining his treatment.
8
The trial court did not file a memorandum of decision regarding its
decision to allow the defendants to file their motion for summary judgment.
9
The plaintiffs’ claim on appeal that the trial court failed to consider
whether Nancy, by taking out a line of credit on the condo, actually sold
the property and that the funds from the loan were therefore proceeds of
the sale. The trial court refused to consider this claim because the plaintiffs
did not raise this argument until the hearing on the summary judgment
motion. The plaintiffs did not raise this claim in their complaint or in their
objection to the motion for summary judgment. Because this claim was not
properly raised before and decided by the trial court, we do not consider
it here. See White v. Mazda Motor of America, Inc., 313 Conn. 610, 629–32,
99 A.3d 1079 (2014).