Great Country Bank v. Ogalin

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GREAT COUNTRY BANK ET AL. v. JEFFREY
OGALIN ET AL.
(AC 37905)
DiPentima, C. J., and Keller and Prescott, Js.
Argued April 11—officially released October 11, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Kamp, J.)
Roy W. Moss, for the appellant (Drywall Construction
Corporation of Connecticut, Inc.).
Paul N. Gilmore, with whom, on the brief, was Chris-
topher A. Klepps, for the appellee (substitute plaintiff).
Opinion
KELLER, J. In this foreclosure action, a third party,
Drywall Construction Corporation of Connecticut, Inc.
(Drywall), appeals from the judgment of the trial court
awarding the plaintiff Cadle Company a turnover order
in the amount of $19,887.27 to aid in the execution of
a deficiency judgment rendered against the defendant
Frank Ogalin, Jr.1 Drywall claims that (1) the court
erroneously found that, as of the date on which the
plaintiff served a property execution on Drywall, it
owed the defendant unreimbursed business expenses,
and (2) even if the court properly found that it owed
the defendant unreimbursed business expenses, it
improperly awarded the plaintiff a turnover order
because the expenses at issue constituted earnings for
personal services, which are not the proper subject of
a property execution. We affirm the judgment of the
trial court.
The relevant procedural history may be summarized
as follows. In 1994, following a foreclosure by sale,
the named plaintiff, Great Country Bank, obtained a
deficiency judgment against the defendant. Later, Great
Country Bank assigned its interest in the deficiency
judgment to the plaintiff. In 2013, the plaintiff conducted
postjudgment discovery and concluded that Drywall, a
closely held family business, was in possession of debts
that were due and owing to the defendant, one of its
employees. In December, 2013, pursuant to General
Statutes (Rev. to 2013) § 52-356a (a) (1),2 the plaintiff
served on Drywall a personal property execution in an
attempt to collect on the unsatisfied judgment. Drywall
refused this demand for payment.
In 2014, the plaintiff sought a turnover order against
Drywall. It filed an application for orders in aid of execu-
tion pursuant to General Statutes § 52-356b3 and a claim
for a determination of interests in the subject property
pursuant to General Statutes § 52-356c.4 It is not in
dispute that Drywall was served with the application
and claim. The court summoned Drywall to appear at
a hearing on these matters, which took place over the
course of three days, September 4, 2014, October 2,
2014, and November 5, 2014.5 During the hearing, the
plaintiff presented documentary evidence and testi-
mony from Christina Ogalin (Ogalin), who is both Dry-
wall’s president and the defendant’s daughter.
Following the hearing, both the plaintiff and Drywall
submitted posttrial briefs. Essentially, the plaintiff
argued that the evidence, which included business
records of Drywall, demonstrated that Drywall owed
the defendant unreimbursed business expenses that he
incurred on Drywall’s behalf. Drywall, arguing that the
evidence demonstrated that it had reimbursed the
defendant for prior expenses and that not all of the
expenses in evidence had been incurred by the defen-
dant, contended that it did not owe the defendant any
‘‘significant obligation’’ in December, 2013, when the
property execution was served on Drywall.
In relevant part, the court stated the following in its
memorandum of decision: ‘‘During the hearing on the
plaintiff’s application, the only witness was [Ogalin],
who testified in her capacity as president of Drywall.
Her testimony largely focused on the creation of four
manila envelopes that were marked as the plaintiff’s
exhibits 3, 4, 5, and 6. On the outside of each of these
exhibits, Ogalin had written in red ink, in three separate
columns, the amount of the expense, the date the
expense was incurred, and the vendor to whom the
expense was paid. Contained within each envelope
[were] the expense receipt[s] . . . itemized on the face
of the envelope. It was estimated that among all four
envelopes, more than 700 individual expenses were
itemized. The court finds that Drywall’s accounting and
record keeping practices were sloppy at best and per-
formed in a manner that defies even basic account-
ing standards.
‘‘On October 29, 2013, Ogalin was deposed by the
plaintiff in postjudgment proceedings. During that
deposition, the following colloquy took place:
‘‘ ‘Q. And all of these . . . receipts . . . in these four
folders that are exhibits 3, 4, 5, and 6 and the front
pages, that represents obligations owing from [Drywall]
to [the defendant]?
‘‘ ‘A. Yes. All this will be owed. If not already paid,
some.’ . . .
‘‘On March 13, 2014, in her continued deposition,
Ogalin testified as follows with regard to the creation
of the envelopes:
‘‘ ‘Q. You testified a couple of minutes ago that you
never wrote the first check for expense reimbursement
concerning a document, such as an exhibit, which is
now exhibit 9, until the front face of the document
was complete.
‘‘ ‘A. I normally would generate the receipts and have
a total on the manila [envelope], and from that total
would write out checks when the business had money,
and then that total would be wiped out once I hit that
total. And then would go to the next manila [envelope]
and next manila [envelope] and so on. Everything has
been paid and accounted for but, like I said, that would
be an amount, and that’s how I would do it. . . .’
‘‘During the hearing on the plaintiff’s application,
Ogalin testified contrary to her prior sworn deposition
testimony. Most significantly, she claimed [at the hear-
ing] that all the expenses had been reimbursed prior
to her creating the manila envelopes, not before. In
addition, it was her testimony that the expenses were
not incurred by the defendant alone. Rather, they were
expenses incurred by her brother [Frank F. Ogalin III],
who is also an officer in the corporation, as well as
herself and [the defendant]. There was also conflicting
testimony as to how those receipts were maintained.
At one point, Ogalin testified that receipts were kept
in separate bags depending upon who incurred the
expense. There was also testimony that all the receipts
were comingled, regardless of who incurred the
expense. Again, as the court noted previously, the
accounting and record keeping methods employed by
Ogalin and Drywall were so poor that it is almost impos-
sible to place any credibility in their accuracy.
‘‘After [posttrial] litigation [had] commenced, Ogalin
attempted to create a spreadsheet in which she allo-
cated each individual expense to either herself, [the
defendant], or [Frank Ogalin III]. The court does not
find this testimony credible. First, when deposed,
Ogalin made clear that she only issued reimbursement
after she totaled the expenses on the outside of each
envelope and knew the aggregate total of those
expenses. Such a process would be the logical method
of issuing reimbursement, as one would need to know
how much needs to be reimbursed before issuing any
payment. To now claim that payments were made to
reimburse expenses before the actual value of those
expenses was determined is not logical [or] credible.
Moreover, to now assert that these expenses were
comingled expenses incurred by the defendant, [Frank
Ogalin III], and herself also lacks credibility. [Ogalin]
previously testified under oath that the receipts con-
tained in these individual envelopes were expense reim-
bursements owed to the defendant alone. Her
testimony, that in 2014 she created a spreadsheet allo-
cating those expenses between three individuals, based
on her memory of approximately 700 individual receipts
from a multitude of different vendors, also lacks credi-
bility. No individual is capable of recalling who incurred
a specific expense out of all of the many individual
expenses [at issue], some dating back as many as five
years. . . .
‘‘[W]hen the court evaluates the credibility of the
testimony of Ogalin, scrutinizes all the exhibits, and
considers the business practices of Drywall and its
accounting methods, the court finds that as of Decem-
ber 3, 2013, the date of the plaintiff’s property execution
issued to Drywall, Drywall owed the defendant unreim-
bursed business expenses in the amount of $19,887.27.
The court has reduced the total sum by those expenses
not attributable to the business of Drywall.
‘‘With regard to the plaintiff’s claim of a $4300 loan
repayment obligation due the defendant from Drywall,
the plaintiff has not met its burden of proof that this
was still owed to the defendant as of the date of the
property execution. This portion of the turnover order
is denied.
‘‘For the foregoing reasons, the court grants the plain-
tiff’s [application for a] turnover order in the amount
of $19,887.27.’’ (Emphasis in original.)
This appeal by Drywall followed. We will address
each of Drywall’s claims, in turn.
I
First, Drywall claims that the court erroneously found
that, as of the date on which the plaintiff served the
property execution on Drywall, it owed the defendant
unreimbursed business expenses totaling $19,887.27.
We disagree.
Drywall expressly invokes our clearly erroneous stan-
dard of review, which governs our review of the findings
of fact made by the trial court. ‘‘It is the province of
the trier of fact to weigh the evidence presented and
determine the credibility and effect to be given the
evidence. . . . On appellate review, therefore, we will
give the evidence the most favorable reasonable con-
struction in support of the verdict to which it is entitled.
. . . It is not within the power of this court to find facts
or draw conclusions from primary facts found by the
trial court. As an appellate court, we review the trial
court’s factual findings to ensure that they could have
been found legally, logically and reasonably. . . .
Appellate review under the clearly erroneous standard
is a two-pronged inquiry: [W]e first determine whether
there is evidence to support the finding. If not, the
finding is clearly erroneous. Even if there is evidence
to support it, however, a finding is clearly erroneous if
in view of the evidence and pleadings in the whole
record [this court] is left with the definite and firm
conviction that a mistake has been committed.’’ (Cita-
tions omitted; internal quotation marks omitted.) Mor-
gan Buildings & Spas, Inc. v. Dean’s Stoves & Spas,
Inc., 58 Conn. App. 560, 564, 753 A.2d 957 (2000).
In relevant part, Drywall argues: ‘‘The only witness
presented by [the plaintiff], Drywall’s president,
[Ogalin], testified that Drywall owed the defendant
nothing at the time of [the plaintiff’s] levy. The docu-
mentary evidence fully supported and in no manner did
it contradict Ogalin’s testimony. This includes Ogalin’s
relevant deposition testimony, wherein [she] indicated
nothing more than Drywall’s general intention or prac-
tice of paying reimbursement to an employee, such as
[the defendant] for actual business expenses incurred
for Drywall’s benefit.’’ (Emphasis omitted.) Addition-
ally, Drywall argues that the evidence did not support
the court’s reliance on receipts included in the enve-
lopes, as there was no evidence that these envelopes,
or the receipts therein, had ‘‘any specific connection
to [the defendant]’’ or that the debts reflected therein
were owed the defendant on the date of the execution
or within the four months following the execution.6
We readily conclude that the evidence supports the
trial court’s finding that the four envelopes at the center
of its findings contained receipts for expenses incurred
by the defendant on behalf of Drywall. Although, in the
context of this claim, Drywall appears to rely entirely
on Ogalin’s testimony at the posttrial hearing, critical
evidence in the present case came in the form of her
deposition testimony, which was offered by the plaintiff
and admitted into evidence for substantive purposes
by the court without objection.7 She was deposed, first,
on October 29, 2013, and, later, on March 13, 2014, after
the plaintiff served the property execution and filed an
application for a turnover order against Drywall. In her
deposition testimony of October 29, 2013, Ogalin stated
that the envelopes contained receipts for unreimbursed
expenses incurred by the defendant for Drywall. She
testified at length with respect to the manner in which
she recorded the expenses incurred by the defendant
for Drywall, which included, among other things, food
purchases, items used by workers and office supplies.
She testified that she kept records at Drywall’s place
of business, which was located in a portion of her home.
She testified that as the defendant provided her with
receipts for his business expenditures, which were
always cash expenditures, it was her procedure to place
such receipts into a shopping bag that was dedicated
to the defendant’s expenditures. Ogalin testified that
receipts for business expenditures incurred by Frank
Ogalin III were stored in a separate shopping bag.
In her October 29, 2013 deposition testimony, Ogalin
testified that, between 2011 and 2013, she removed
receipts from the shopping bag dedicated to the defen-
dant’s unreimbursed expenses. Then, she engaged in a
laborious process of itemizing the expenses by using
four envelopes. Each envelope contained between 165
and 174 receipts. For each receipt, Ogalin recorded on
the front of the envelope the name of the vendor, the
date the expense was incurred, and the amount of the
expense. Ogalin proceeded to testify that, once she was
unable to fit any additional receipts into an envelope,
it was her practice to create a total for all of the receipts
in the envelope and to write that total on the outside
of each envelope near the columns listing the individual
expenses. Photocopies of the front of each of the four
envelopes were introduced as exhibits both at the time
of Ogalin’s depositions and at the posttrial hearing.
Added together, the four totals listed on the envelopes
amount to $25,080.41.8
In addition to demonstrating that the envelopes and
the receipts therein reflected business expenses
incurred by the defendant on behalf of Drywall, the
evidence supported a finding that these expenses were
unreimbursed on December 3, 2013, when the property
execution was served on Drywall. During her deposition
testimony of October 29, 2013, which, obviously, pre-
ceded the execution, Ogalin was asked if the four enve-
lopes represent obligations owed to the defendant by
Drywall. She replied, ‘‘Yes. All this will be owed. If not
already paid, some.’’
In both her March 13, 2014 deposition testimony and
her testimony at the time of the posttrial hearing, Ogalin
testified that her process of totaling the receipts in the
envelopes occurred prior to her making reimburse-
ments for such expenses. She testified that reimburse-
ments for the amount totaled on one envelope are
completed prior to her making reimbursements for
expenses reflected on another envelope.
Ogalin’s testimony at the March 13, 2014 deposition,
which occurred after the execution had been served
and after the plaintiff applied for a turnover order, as
well as her subsequent testimony at the posttrial hear-
ing, differed in material ways from her original deposi-
tion testimony. Essentially, both in her later deposition
and at the posttrial hearing, Ogalin testified that, upon
her further review, the envelopes contained receipts
that reflected her own expenses, not just those of the
defendant, as well as obligations that had been paid.
As is detailed in the court’s discussion of Ogalin’s testi-
mony at the posttrial hearing, she testified that, after
her initial deposition testimony, she created a spread-
sheet in which, on the basis of her recollection of the
hundreds of business expenses at issue, she reflected
that many of the receipts at issue were her own
expenses. Also, referring to specific reimbursements
that had been made by Drywall prior to the execution,
she testified that, prior to the creation of the envelopes,
reimbursements had been made to the defendant for
receipts in the envelopes.
For a variety of reasons, the court found that Ogalin
did not testify credibly at the posttrial hearing. Although
Drywall does not explicitly challenge the court’s credi-
bility determination, upon which the court’s decision is
based, its arguments concerning the evidence implicitly
invite us to rely solely upon Ogalin’s testimony at the
posttrial hearing. It suffices to observe that in our
review we need only look to whether the evidence sup-
ports the court’s factual determinations; we will not
relitigate the court’s credibility findings because such
determinations are wholly within the province of the
court as the trier of fact.9 See, e.g., Somers v. Chan,
110 Conn. App. 511, 530, 955 A.2d 667 (2008).
With respect to the precise amount of the court’s
turnover order, $19,887.27, we observe that the court
stated that it had reached this final amount after it
carefully evaluated Ogalin’s testimony and all of the
exhibits presented in evidence. As stated earlier, Ogal-
in’s deposition testimony from October 29, 2013, as well
as documentary evidence consistent therewith, sup-
ported a finding that, at the time of execution, Drywall
owed the defendant business expenses in a higher
amount, $25,080.41. The court did not set forth detailed
findings with respect to how it arrived at its turnover
order in the amount of $19,887.27, and the record does
not reflect that Drywall, which bears the burden of
demonstrating that the trial court committed reversible
error, asked the court to provide the manner by which
it calculated the amount of the debt owed the defendant.
As the plaintiff argues before this court, however, the
evidence readily provides a rationale for the court’s
award. It is clear from our review of the court’s decision
that its award was directly based on its finding that, as
of the date on which the plaintiff served a property
execution on Drywall, it owed the defendant unreim-
bursed business expenses totaling $19,887.27. As stated
previously in this opinion, ‘‘[o]n appellate review . . .
we will give the evidence the most favorable reasonable
construction in support of the verdict to which it is
entitled. . . . It is not within the power of this court
to find facts or draw conclusions from primary facts
found by the trial court. As an appellate court, we review
the trial court’s factual findings to ensure that they
could have been found legally, logically and reason-
ably.’’ (Citation omitted; internal quotation marks omit-
ted.) Morgan Buildings & Spas, Inc. v. Dean’s Stoves &
Spas, Inc., supra, 58 Conn. App. 564.
In its decision, the court stated that it had determined
the amount of its turnover order after it had ‘‘reduced
the total sum by those expenses not attributable to the
business of Drywall.’’ In her initial deposition testimony
in which she described the unreimbursed expenses
detailed on the envelopes, Ogalin admitted that she had
not reviewed the receipts contained in the envelopes
for the purpose of determining whether they reflected
valid business expenses because she believed that
‘‘many things could be for the company.’’ At the time
of the posttrial hearing, Ogalin testified with respect to
the spreadsheet concerning the receipts which, as was
discussed previously in this opinion, she prepared prior
to the posttrial hearing. Although the court did not
find this evidence and the testimony concerning it be
credible insofar as it was introduced to demonstrate,
for example, that expenses had been reimbursed or that
certain expenses were not attributable to the defendant,
it appears that the court found this testimony and evi-
dence credible insofar as it was introduced to demon-
strate that certain of the expenses at issue simply were
not business expenses of Drywall. ‘‘[T]he trial judge
. . . is free to accept or reject, in whole or in part, the
testimony offered by either party.’’ (Internal quotation
marks omitted.) Antonucci v. Antonucci, 164 Conn.
App. 95, 131, 138 A.3d 297 (2016).
The spreadsheet contained information concerning
the receipts reflected on the envelopes. Referring to
the spreadsheet, Ogalin testified that sixty-five of the
expenses detailed thereon, totaling $3819.14, had been
‘‘rejected’’ by her because they were not business
expenses of Drywall.10 Deducting this $3819.14 from
$25,080.41, the total amount reflected on the envelopes,
results in $21,261.27, an amount that is $1374 greater
than the amount of the court’s turnover order,
$19,887.27. Thus, the evidence suggests that the court
deducted the expenses that Drywall claimed were not
attributed to its business and, to Drywall’s benefit,
awarded a turnover order in an amount that was lower
than the total amount reflected on the envelopes minus
such nonbusiness expenses.11
As the foregoing analysis reflects, there is evidence
to support the court’s findings and its turnover order.
The plaintiff demonstrated that, at the time of the execu-
tion, Drywall held ‘‘nonexempt personal property of the
judgment debtor other than debts due from a banking
institution or earnings.’’ General Statutes (Rev. to 2013)
§ 52-356a (a) (1).12 Such debts are a proper subject of
a turnover order. See General Statutes § 52-356b.13 With
respect to the court’s findings, our review of the evi-
dence and pleadings in the whole record does not leave
us with the definite and firm conviction that a mistake
has been committed. Accordingly, this claim is not per-
suasive.
II
Next, Drywall claims that even if the court properly
found that it owed the defendant unreimbursed busi-
ness expenses, it improperly awarded the plaintiff a
turnover order because the expenses at issue consti-
tuted earnings for personal services and, therefore,
were not the proper subject of a property execution.
We reject this claim.
Drywall observes that, under General Statutes (Rev.
to 2013) § 52-356a (a) (1), the plaintiff was entitled to
an execution ‘‘against the nonexempt personal property
of the judgment debtor other than debts due from a
banking institution or earnings. . . .’’ Moreover, Dry-
wall observes that ‘‘ ‘[e]arnings’ ’’ are defined by statute
as ‘‘any debt accruing by reason of personal services,
including any compensation payable by an employer
to an employee for such personal services, whether
denominated as wages, salary, commission, bonus or
otherwise.’’ General Statutes § 52-350a (5). Drywall
argues that ‘‘assuming Drywall owed [the defendant] a
debt by reason of expenses [he] incurred as an
employee on behalf of [his employer], then the expenses
were incurred by [the defendant], a fortiori, by reason
of his performance of personal services, and therefore
the debt owed comes squarely within the plain statutory
definition of earnings.’’ Drywall goes on to argue:
‘‘Where in the course of rendering personal services to
an employer, an employee incurs substantial reimburs-
able expenses, the actual reimbursement of such
expenses is conceptually similar to wages, [salary],
bonuses, commissions, etc., and is . . . deserving of
the protections of the statutory wage execution provi-
sions.’’ Thus, Drywall argues, ‘‘the alleged debt owed by
Drywall to [the defendant] was not subject to ordinary
property execution [and] it was error to enter the turn-
over order.’’
The plaintiff argues that there is no support in the
law for Drywall’s argument that any monies it owed the
defendant for expenses that he incurred on Drywall’s
behalf should be characterized as wages for personal
services. On a more fundamental level, however, the
plaintiff argues that Drywall is not entitled to review
of this claim because it was not raised before the trial
court. We agree with the plaintiff.
The record reflects that, at no time during the pro-
ceedings before the trial court did Drywall argue or
attempt to demonstrate that the expenses at issue were
a form of wages owed the defendant for personal ser-
vices; the factual issues were limited to whether the
expenses were incurred by the defendant on behalf of
Drywall, whether the expenses were unreimbursed at
the time of the execution, and whether the expenses
were business expenses. Before this court, Drywall, in
a conclusory manner that is not supported by reference
to relevant facts in the record, raises a factual issue
that it did not ask the court to resolve expressly and
which, unsurprisingly, the trial court did not address
in its memorandum of decision.
We need not consider this claim. ‘‘Our appellate
courts, as a general practice, will not review claims
made for the first time on appeal. . . . [A]n appellate
court is under no obligation to consider a claim that is
not distinctly raised at the trial level. . . . [B]ecause
our review is limited to matters in the record, we [also]
will not address issues not decided by the trial court.
. . . The purpose of our preservation requirements is
to ensure fair notice of a party’s claims to both the trial
court and opposing parties. . . . These requirements
are not simply formalities. They serve to alert the trial
court to potential error while there is still time for
the court to act.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) White v. Mazda
Motor of America, Inc., 313 Conn. 610, 619–20, 99 A.3d
1079 (2014).
Alternatively, we observe that Drywall has failed to
set forth any authority in support of the proposition
that, on behalf of the defendant, it had standing to claim
before the trial court that the debts at issue were exempt
from execution because they constituted wages owed
the defendant as compensation for personal services.
The record reflects that the defendant and Drywall were
served with the execution in accordance with § 52-356a,
which included a notice of judgment debtor rights as
required by General Statutes § 52-361b. The defendant,
who is the judgment debtor in this proceeding, did not
avail himself of his statutory right to claim an exemption
on the ground that the execution was directed at wages,
which were exempt from execution, by returning the
exemption claim form to the clerk of the Superior Court.
For the foregoing reasons, we conclude that Drywall
is unable to prevail with respect to this claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
This foreclosure action was commenced by the named plaintiff, Great
Country Bank, against the following defendants: Jeffrey T. Ogalin; Frank
Ogalin, Jr.; the Federal Deposit Insurance Corporation, as receiver for the
Bank Mart; the Internal Revenue Service of the United States of America;
and Benson Snaider, P.C. Great Country Bank obtained a judgment of fore-
closure, and later a deficiency judgment following the sale, then assigned its
interest in the deficiency judgment to Cadle Company, which subsequently
appeared as a plaintiff in this action. In this opinion, we shall refer to Cadle
Company as the plaintiff, to Frank Ogalin, Jr., as the defendant, and to other
individuals by name. The plaintiff and Drywall are the only parties that
participated in this appeal.
2
General Statutes (Rev. to 2013) § 52-356a (a) (1) provides in relevant
part: ‘‘On application of a judgment creditor or a judgment creditor’s attor-
ney, stating that a judgment remains unsatisfied and the amount due thereon,
and subject to the expiration of any stay of enforcement and expiration of
any right of appeal, the clerk of the court in which the money judgment
was rendered shall issue an execution pursuant to this section against the
nonexempt personal property of the judgment debtor other than debts due
from a banking institution or earnings. . . .’’
3
General Statutes § 52-356b provides: ‘‘(a) If a judgment is unsatisfied,
the judgment creditor may apply to the court for an execution and an order
in aid of the execution directing the judgment debtor, or any third person,
to transfer to the levying officer either or both of the following: (1) Possession
of specified personal property that is sought to be levied on; or (2) possession
of documentary evidence of title to property of, or a debt owed to, the
judgment debtor that is sought to be levied on.
‘‘(b) The court may issue a turnover order pursuant to this section, after
notice and hearing or as provided in subsection (c) of this section, on a
showing of need for the order. If the order is to be directed against a third
person, such person shall be notified of his right pursuant to section 52-
356c to a determination of any interest claimed in the property.
‘‘(c) The court may issue a turnover order against a judgment debtor,
without notice or hearing, upon affidavit by the judgment creditor or another
competent affiant stating facts from which the court concludes that there
is a reasonable likelihood that the judgment debtor is about to remove the
property from the state or is about to fraudulently dispose of the property
with intent to hinder, delay or defraud his creditors. The court shall expedi-
tiously hear and determine any motion by the judgment debtor to dissolve
such an ex parte order.
‘‘(d) Unless directed to a person who is before the court, any turnover
order shall be personally served and shall contain a notice that failure to
comply therewith may subject the person served to being held in contempt
of court.’’
4
General Statutes § 52-356c provides: ‘‘(a) Where a dispute exists between
the judgment debtor or judgment creditor and a third person concerning
an interest in personal property sought to be levied on, or where a third
person claims that the execution will prejudice his superior interest therein,
the judgment creditor or third person may, within twenty days of service
of the execution or upon application by the judgment creditor for a turnover
order, make a claim for determination of interests pursuant to this section.
‘‘(b) The claim, which shall constitute the appearance of any third-person
claimant, shall be filed with the Superior Court, on a prescribed form as a
supplemental proceeding to the original action. The claim shall contain a
description of the property in which an interest is claimed and a statement
of the basis for the claim or of the nature of the dispute.
‘‘(c) On filing of the claim, the clerk of the court shall assign the matter
for hearing on a date certain and order that notice of the hearing be served
by the claimant on all persons known to claim an interest in the disputed
property.
‘‘(d) Pending the hearing on the claim and subject to further order of the
court, any property in dispute shall continue to be held by the person then
in possession and shall not be transferred to any person who is not a party
to the supplemental proceeding. If previously seized by or delivered to a
levying officer, the property shall remain in the custody of the levying officer.
‘‘(e) Unless the judgment creditor waives such rights as he may have to
execute against the contested property, the claim shall be deemed contro-
verted and the issues shall be joined without further pleading by any party.
The court may permit or require such further pleadings, amendments and
notices and may make such further orders as justice or orderly administra-
tion requires. Prior to hearing the claim, the court may in its discretion: (1)
Require the judgment creditor to post a bond in favor of a third person
claimant for any damages which may accrue as a result of the outstanding
execution and any subsequent proceedings, (2) on substitution by the third
person of a bond as security for the property, allow the third person to
obtain release of the property pending determination of the claim, or (3)
direct that other known nonexempt property of the judgment debtor first
be executed against.
‘‘(f) After hearing, the court shall render judgment determining the respec-
tive interests of the parties and may order the disposition of the property
or its proceeds in accordance therewith.
‘‘(g) This section does not affect any interest in property of any person who
is not a party to a determination pursuant to the provisions of this section.’’
5
We observe that Drywall, represented by counsel, appeared before the
trial court as a ‘‘third party’’ and that it has brought the present appeal as
a ‘‘third party.’’ Drywall, which is not a party to the underlying action,
nevertheless properly brings the present appeal because it indisputably was
a party to the supplemental proceeding, initiated by the plaintiff under § 52-
356c, in that original foreclosure action. General Statutes § 52-263 provides
in relevant part: ‘‘Upon the trial of all matters of fact in any cause or action
in the Superior Court, whether to the court or jury, or before any judge
thereof when the jurisdiction of any action or proceeding is vested in him,
if either party is aggrieved by the decision of the court or judge upon any
question or questions of law arising in the trial . . . he may appeal to the
court having jurisdiction from the final judgment of the court or of such
judge . . . .’’ Our Supreme Court has observed that, for purposes of § 52-
263, an underlying action encompasses judicial proceedings in a court of
justice and ‘‘include any proceeding in such a court for the purpose of
obtaining such redress as the law provides. . . . It includes not only the
usual civil action instituted by process but also proceedings initiated by
petition . . . stipulation . . . or motion.’’ (Citation omitted; emphasis
altered; internal quotation marks omitted.) Board of Education v. Tavares
Pediatric Center, 276 Conn. 544, 554–55, 888 A.2d 65 (2006). Moreover,
‘‘[a]ny court decision on a determination of interest in property under section
52-356c . . . shall be a final decision for the purpose of appeal.’’ General
Statutes § 52-400d; see, e.g., PB Real Estate, Inc., v. Dem II Properties, 50
Conn. App. 741, 742, 719 A.2d 73 (1998) (nonparty appealed from turnover
order directed against it).
6
See General Statutes (Rev. to 2013) § 52-356a (a) (4) (C) (ii) (‘‘if a debt
is not yet payable, payment shall be made when the debt matures if within
four months after issuance of the execution’’).
7
Section 8-5 of the Connecticut Code of Evidence provides in relevant
part: ‘‘The following are not excluded by the hearsay rule, provided the
declarant is available for cross-examination at trial:
‘‘(1) A prior inconsistent statement of a witness, provided (A) the state-
ment is in writing or otherwise recorded by audiotape, videotape or some
other equally reliable medium, (B) the writing or recording is duly authenti-
cated as that of the witness, and (C) the witness has personal knowledge
of the contents of the statement . . . .’’
8
Each envelope reflected a different total. One envelope was marked with
a total of $7603.37, another with a total of $5155.45, another with a total of
$5920.05, and the final with a total of $6401.54.
9
Insofar as Ogalin testified in a manner contrary to her initial deposition
testimony, the court resolved such conflict in favor of the earlier deposition
testimony. It suffices to observe that there were ample factors that supported
the court’s finding that Ogalin’s later testimony, concerning debts owed
from her family’s business to the defendant, generally was not credible. The
court explained that Ogalin’s later deposition testimony and her posttrial
testimony were not logical and likely had been influenced by the fact that
they occurred after the posttrial litigation was initiated by the plaintiff. The
court also explained why it did not credit as accurate the spreadsheet
generated by Ogalin, by memory, after the commencement of the posttrial
litigation. As the plaintiff correctly argues, Ogalin’s testimony that Drywall
had reimbursed the defendant for expenses that appear on the envelopes,
and Drywall’s attempt to demonstrate this by presenting evidence of pay-
ments that allegedly had been made to the defendant, was incompatible
with the court’s finding, supported by Ogalin’s initial deposition testimony,
that reimbursements were made by Drywall, if at all, only after Ogalin had
prepared each envelope and had totaled the receipts contained therein. Thus,
although there was testimony from Ogalin concerning several payments that
had been made to the defendant by Drywall, the court did not rely on such
evidence because many of these alleged payments predated the preparation
of the envelopes that, according to Ogalin’s testimony, contained the receipts
for the expenses reimbursed to the defendant.
10
In addition to Ogalin’s testimony that these expenses were not business
expenses of Drywall, we observe that the spreadsheet reflects that many
of the expenses were incurred in retail stores, including but not limited to
T.J. Maxx, Toys R Us, Perfume World, Champs, Old Navy, Game Stop,
Macy’s, Petco, American Eagle, Sephora, Hallmark, Kohl’s, and Hollister.
Consistent with Ogalin’s testimony, it would have been reasonable for the
court to have inferred that expenses incurred at such retail stores were
unlikely to have been related to Drywall’s construction business.
11
The plaintiff argues, and we agree, that the court’s further reduction of
$1374 may be the result of the court having credited other evidence favorable
to Drywall, including evidence presented at the posttrial hearing that on
October 11, 2013, prior to the date on which the execution was served on
Drywall, Drywall had reimbursed the defendant by check in the amount of
$1274, for his purchase of ‘‘small tools and supplies.’’ Ogalin, referring to a
‘‘Vendor Activity Report’’ that reflected payments made to the defendant,
testified that such payment, for business expenses of Drywall, had been
made to the defendant.
12
See also footnote 2 of this opinion.
13
See also footnote 3 of this opinion.