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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 Christopher 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

judgmentto 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. Itfiled an application for orders in aid of execution 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 testimony from Christina Ogalin (Ogalin), who is both Drywall’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 defendant, 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 performed in a manner that defies even basic accounting 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 hearing] 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 poorthat it is almost impossible to place any credibility in their accuracy.

‘‘After [posttrial] litigation [had] commenced, Ogalin

attempted to create a spreadsheet in which she allocated 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 contained in these individual envelopes were expense reimbursements owed to the defendant alone. Her

testimony, that in 2014 she created a spreadsheet allocating those expenses between three individuals, based

on her memory of approximately 700 individualreceipts

from a multitude of different vendors, also lacks credibility. No individual is capable ofrecalling 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 December 3, 2013, the date of the plaintiff’s property execution

issued to Drywall, Drywall owed the defendant unreimbursed 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.

‘‘Forthe 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 standard ofreview, which governs ourreview 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 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 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.’’ (Citations omitted; internal quotation marks omitted.) Morgan 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 documentary 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 practice of paying reimbursement to an employee, such as

[the defendant] for actual business expenses incurred

for Drywall’s benefit.’’ (Emphasis omitted.) Additionally, Drywall argues that the evidence did not support

the court’s reliance on receipts included in the envelopes, 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 defendant’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, preceded the execution, Ogalin was asked if the four envelopes 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

hertestimony at the time of the posttrial hearing, Ogalin

testified that her process of totaling the receipts in the

envelopes occurred prior to her making reimbursements for such expenses. She testified that reimbursements 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 hearing, differed in material ways from her original deposition 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 testimony at the posttrial hearing, she testified that, after

her initial deposition testimony, she created a spreadsheet 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 credibility 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 supports 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, Ogalin’s deposition testimony from October 29, 2013, as well

as documentary evidence consistent therewith, supported 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 clearfrom 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 unreimbursed 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 reasonably.’’ (Citation omitted; internal quotation marks omitted.) 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 evidence credible insofar as it was introduced to demonstrate 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, atthe time ofthe execution, 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 evidence 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 persuasive.

II

Next, Drywall claims that 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 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, Drywall 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 reimbursable 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 provisions.’’ 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 proceedings 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 services; 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 courtthatthe debts atissue 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 SuperiorCourt.
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 foreclosure, 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 attorney, stating that a judgmentremains 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 transferto the levying officer either or both ofthe 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 expeditiously 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 shallremain 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 controverted 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 administration 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 respective 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 statement is in writing or otherwise recorded by audiotape, videotape or some

other equally reliable medium, (B) the writing or recording is duly authenticated 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.