author: ESPINOSA, J.

text:
    CHICAGO TITLE INSURANCE COMPANY v. BRISTOL HEIGHTS ASSOCIATES, LLC, ET AL.
    (AC 34040)
    Beach, Espinosa and Dupont, Js.

      Argued November 14, 2012
    officially released May 7, 2013

      Jeffrey J. Tinley, with whom, on the brief, was William F. Gallagher, for the appellant (named defendant).

      Christopher F. Girard, with whom was Edward V. O’Hanlan, for the appellee (plaintiff).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

ESPINOSA, J.

The defendant Bristol Heights Associates, LLC, appeals from the judgment of the trial court rendered in favor of the plaintiff, Chicago Title Insurance Company, in connection with the underlying civil action in which the plaintiff sought a declaratory judgment to determine its obligations under a title insurance policy (policy) issued to the defendant for real property located near Daniel Road and Kingswood Drive in the city of Bristol (property). The defendant claims that the trial court improperly (1) found that the defendant breached the policy by failing to cooperate with the plaintiffs coverage investigation, thereby prejudicing the plaintiff; (2) found that the defendant’s payment under protest of the tax hen on the property was voluntary, such that it violated the policy and prejudiced the plaintiff; (3) found that the plaintiff was relieved of its coverage obligation to the defendant when the plaintiffs right of subrogation was unimpaired; and (4) refused to consider evidence supporting the defendant’s claim that the plaintiff acted in bad faith. We affirm the judgment of the trial court.

The following facts as found by the court and procedural history of the case are relevant to our resolution of this appeal. On May 25, 1994, Lew J. Volpicella purchased the property involved in the underlying action and received a quitclaim deed from PB Real Estate, Inc. (PB Real Estate). At the time of the purchase, the property was a single parcel of land. Formerly, the property had been subdivided into 147 lots. The subdivision expired on March 3,1993. The city of Bristol (city) never sent a bill to Volpicella for taxes due on the October 1, 1993 grand list. The payments due from Volpicella for the July, 1994 and January, 1995 installments of that tax went unpaid. On May 31, 1995, the city recorded tax liens for the October 1,1993 grand list under PB Real Estate; the liens were filed individually against the 147 lots even though the properly was a single parcel as of March 3, 1993. The city gave notice of the hens to PB Real Estate, but not to Volpicella. Volpiceha paid the taxes on the property for the grand fists after 1993, and no overdue balance was reflected on any of the bills that he received. The city failed to apply any of Volpicella’s subsequent tax payments to the oldest, past due balance that it claimed was due from the 1993 grand fist.

Volpicella entered into an agreement with the defendant in which he became a member of the defendant and conveyed the property to the defendant. Volpicella conveyed the property by way of a warranty deed dated April 2, 2003, which was subsequently recorded on May 8, 2003. The deed contained no exception for the tax liens on the 1993 grand fist. Volpicella was given an unsecured promissory note for $800,000 as the consideration for the conveyance. At the time of the transfer of the property, the defendant purchased from the plaintiff the policy, which insured title to the property. The defendant’s attorney, Richard P. Kuzmak, served as the plaintiffs issuing agent with respect to the policy. When Kuzmak performed a title search on the property, he did not locate the city’s tax liens against the property because they were filed against the subdivided lots owned by PB Real Estate, not Volpicella.

On August 16,2005, the defendant received a demand from the city for payment of the 1993 taxes. The defendant never notified Volpicella that it was asserting any claim against his warranty deed, and it did not request that he pay the tax liens. On September 1, 2005, Kuzmak wrote a letter to one of the plaintiffs attorneys, Phillip Fanning, regarding the receipt of the tax lien, in which he requested a meeting. In a meeting on October 27, 2005, Kuzmak requested that Fanning and the plaintiff not do anything about the liens because the money the defendant owed Volpicella under the promissory note exceeded the amount of the tax lien and because the validity of the tax liens was in question. Fanning did not believe that the meeting was related to a claim by the defendant under the policy, but rather believed it was for the purpose of discussing the title issue that had arisen.

Kuzmak also notified Volpicella’s attorney, James Ziogas, that he knew the liens violated a covenant in the warranty deed. The defendant believed that the legitimate tax liability on the property was $11,000 and that, due to the covenants of the warranty deed from Volpicella, the tax liability was his responsibility. In the fall of 2005, Kuzmak, Ziogas and members of the defendant met with city officials in an effort to resolve or compromise the liens with the city. They ultimately were unable to resolve or compromise the liens. No request was ever made for Fanning to participate in any meeting or telephone call between the defendant, its representatives and the city.

In late 2005, the defendant began to refinance the debt related to the property. A mortgage related to these efforts, which was secured by the property, was due to be repaid on February 26, 2006. During this time, the defendant did not provide any information to Fanning or the plaintiff about any potential refinancing, and it did not request that the plaintiff issue a new policy to insure over the lien to facilitate the refinance. The plaintiff acknowledged receipt of a title claim from the defendant on December 27,2005, in response to a letter sent by Kuzmak to the plaintiffs claims office. The plaintiff assigned the claim to attorney Norma B. Levy for investigation. In late December, 2005, or early January, 2006, Kuzmak sent a letter to the plaintiff advising that the city was considering referring the tax liens on the property to corporation counsel for the collection of the tax.

Levy immediately investigated whether the hens were valid, whether there were viable defenses to the city’s threatened claims and whether the liens were covered under the policy. At the request of Levy, Kuzmak performed a legal analysis regarding the validity of the hens, the results of which indicated that the proper assessment of the property would have produced a substantially smaller amount of tax. Levy beheved that there were viable defenses to any action initiated by the city. While conducting her investigation, Levy obtained three extensions of time before the city would refer the matter to outside counsel to initiate cohection efforts so that the plaintiff could continue to investigate the claim. The tax collector never indicated that the city was going to commence a foreclosure action.

On March 8, 2006, the defendant paid the tax hens on the property in full. As of that date, the city had not initiated a foreclosure action or referred the matter to outside counsel for cohection. At trial, it was stipulated that the defendant did not notify the plaintiff or obtain its consent prior to paying the hens.

The plaintiff filed the operative revised complaint in the underlying action on May 30, 2007. In the complaint, the plaintiff sought a declaratory judgment that (1) the defendant’s coverage under the policy was precluded due to the defendant’s prior knowledge of the tax liens when it took title to the property; (2) the defendant’s coverage under the policy was precluded because the defendant suffered no loss by paying the taxes when it owed Volpicella $800,000 on the promissory note; (3) the defendant’s voluntary payment of the taxes excluded coverage under the policy pursuant to subsection 9 (c) of the conditions and stipulations section of the policy; (4) the plaintiffs obligations under the policy were terminated due to the defendant’s breach of its duty to cooperate under sections 4 and 5 of the conditions and stipulations in the policy; and (5) the defendant breached the implied duty of good faith and fair dealing inherent in their contractual relationship. The defendant filed a counterclaim alleging breach of contract, breach of the covenant of good faith and fair dealing, and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.

On December 30, 2009, the court, Hon. Joseph M. Shortall, judge trial referee, granted a motion for summary judgment filed by the plaintiff regarding the defendant’s bad faith and CUTPA claims, leaving the defendant’s breach of contract count as the only remaining counterclaim to be resolved at trial. On February 2, 2009, the defendant withdrew all three counts of its counterclaim. On September 8, 2010, the court granted the plaintiffs motion to restore to the docket the defendant’s withdrawn counterclaim for breach of contract, “subject to all relevant rulings of the court prior to, and following, its withdrawal on February 2, 2010 (# 218.50).”

On August 18, 2011, the court rendered judgment in favor of the defendant as to count one of the plaintiffs revised complaint regarding the defendant’s prior knowledge of the taxes, count two regarding the loss suffered by the defendant and count five regarding the defendant’s alleged bad faith. The court rendered judgment in favor of the plaintiff as to count three regarding the defendant’s voluntary payment, count four regarding the defendant’s breach of the duty to cooperate under section 5 of the conditions and stipulations in the policy and the defendant’s counterclaim. The present appeal followed. Additional facts will be set forth as necessary.

I

The defendant raises several claims related to the court’s finding that it breached the policy by failing to cooperate with the plaintiffs coverage investigation, thereby prejudicing the plaintiff. Specifically, the defendant claims that the applicable policy provision, from which its duty to cooperate was derived, required it to cooperate with the plaintiff for matters related only to the proof of loss or damage. The defendant claims that the plaintiffs requests with which the court found it did not comply did not relate to the proof of loss or damage but, rather, were intended to aid the plaintiffs noncontractual purposes of vitiating coverage and obtaining support for defenses to the plaintiffs coverage obligations. Further, the defendant argues that the court erred by failing to find that the plaintiff breached the policy by requesting information and documentation that was unrelated to the proof of loss or damage. In addition, the defendant argues that, even assuming that it was obligated to cooperate with the plaintiffs requests, it eventually complied with the requests, and any delay in its compliance did not prejudice the plaintiff. We disagree.

The following additional facts as found by the court are relevant to this claim. On January 25 and 26, 2006, before the defendant paid the taxes, Levy sent letters to the defendant requesting information and examinations under oath pursuant to the terms of the policy. The defendant’s manager, William A. Orlandi, left two voice mail messages for Levy refusing to cooperate with the requests and threatening to file a lawsuit against the plaintiff as well as a complaint with the state insurance department. In response, Levy wrote a letter to Orlandi on January 30, 2006, further explaining reasons for the plaintiffs requests for documentation and the basis in the policy for the requests. The letter indicated that refusal to cooperate was grounds under the policy for denying coverage for the defendant’s claim.

The following week, in a telephone conversation with Levy, Orlandi again refused to cooperate or provide the documents that the plaintiff requested for its coverage investigation. On February 23, 2006, Orlandi wrote to the plaintiff on behalf of the defendant, indicating that the plaintiffs request was “hereby denied, in kind,” and asked for all correspondence regarding the matter to be referred to the defendant’s corporate counsel, Donald Conn. Levy called Conn on February 28, 2006, to ask for verification that the taxes were paid by the defendant. Conn said that he would get back to Levy, but never did. At trial, it was stipulated that the defendant did not cooperate with the plaintiffs coverage investigation prior to paying the city in full. The defendant continued to refuse to provide the documents requested by the plaintiff after it paid the taxes. On July 21, 2006, Orlandi and Volpicella eventually submitted to examinations under oath and produced certain documents that the plaintiff had requested. Because of the defendant’s actions, the plaintiff never completed its coverage investigation.

The court concluded that the plaintiffs multiple requests to have the members of the defendant submit to examination and produce documents were reasonable. The court found that Orlandi’s and Volpicella’s submission to examination under oath and production of documents “was so long after the payment of the taxes by [the defendant] that it prejudiced [the plaintiffs] ability to investigate and defend the claim.” The court also found the following: “[U]nder the circumstances of this case, [the defendant’s] actions breached the terms of paragraph 5 of the [p]olicy and thereby terminated the plaintiffs obligations under it. . . . Such breach resulted in prejudice to the plaintiffs ability to determine whether coverage applied and to prevent loss or damage to [the defendant]. [The] [p]laintiff is therefore not liable for any loss or damage suffered by [the defendant] through its payment of the tax hens. Accordingly, coverage is excluded under the [p]olicy . . . .’’In addition, the court found that the plaintiff did not breach the terms of the policy.

A

We first address the defendant’s claim that the court improperly excluded certain deposition testimony from Levy, namely, that her purpose for making demands to the defendant was to find information that would support defenses to coverage. Specifically, the defendant claims that the court improperly sustained an objection to the deposition testimony because it should have been admitted as a prior inconsistent statement to impeach Levy’s testimony at trial. We disagree.

The following additional undisputed facts are relevant to our resolution of this claim. On February 4, 2011, dining the defendant’s cross-examination of Levy, the following colloquy took place:

“[The Defendant’s Counsel]: Isn’t it true that you undertook the request for information to [the defendant] to determine whether there were defenses that [the plaintiff] could avail itself to coverage?

“[The Witness]: No.

“[The Defendant’s Counsel]: Ms. Levy, didn’t you testify at your deposition ... in response to my question about . . . the development agreement and all similar related documents describing rights and obligations of shareholders and investors at [the defendant], including . . . Volpicella, the information you were requesting, what would the relevance to your investigations be to that request? And you answered: Because it was important in assessing coverage to determine the relationship between . . . Volpicella as seller and . . . Volpicella as if he was a member of [the defendant] and his interest in [the defendant] because that does or it could impact coverage in this case.

“And I ask: And how so? And . . . you testified: Let’s say as a hypothetical that . . . Volpicella was to sell to [the defendant] and had, say, a 50 percent interest in [the defendant] as a purchaser and . . . Volpicella owed the taxes as the seller because he’s also an owner of [the defendant], it is possible that that would implicate certain defenses because there are defenses in the policy to claims that the issuer knew or should have known, and if [the defendant] and . . . Volpicella are one in the same in whole or in part, [the defendant] would have known or should have known of the taxes and that could . . . affect the coverage of determination. Do you disagree with the answer that I just read back to you from your deposition? . . .

“[Volpicella’s Counsel]: I would object on the grounds that even if what he just read is accurate, he hasn’t established any inconsistency between the testimony here today and the testimony at deposition. . . .

“[The Defendant’s Counsel]: ... I asked her whether or not the purpose of [the] request for information of [the defendant] was to determine whether [the plaintiff] had defenses to their claim for insurance coverage. And she said, I beheve, no, and therefore I’d hke to impeach her with her deposition testimony. . . .

“The Court: All right. I’ll sustain the objection because I don’t think it’s—what was presented is really [in] the nature of impeaching her testimony. There may have been some nuances in terms of her responses to even to that prior question or previous questions, but I don’t think that’s a prior inconsistent statement. So, I’ll sustain the objection.”

We first set forth the standard of review and applicable law governing this part of the defendant’s first claim. “The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . [E]videntiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injusticé.” (Thtemai quotation marks omitted.) Silicon Valley Bank v. Miracle Faith World Outreach, Inc., 140 Conn. App. 827, 832, 60 A.3d 343 (2013). “[I]n determining whether there has been an abuse of discretion, every reasonable presumption should be made in favor of the correctness of the trial court’s ruling . . . .” (Internal quotation marks omitted.) State v. Creech, 127 Conn. App. 489, 495, 14 A.3d 434, cert. denied, 301 Conn. 906, 17 A.3d 1045 (2011). “The credibility of a witness may be impeached by evidence of a prior inconsistent statement made by the witness.” Conn. Code Evid. § 6-10 (a).

Making every reasonable presumption in favor of the court’s ruling, we conclude that the court reasonably determined that Levy’s deposition testimony was not a prior inconsistent statement as compared to her response to defense counsel’s question at trial and, therefore, properly sustained the objection by Volpicel-la’s counsel. In her deposition testimony, as recited by the defendant’s counsel at trial, Levy indicated that the plaintiff had requested information and documentation from the defendant for the general purpose of assessing its coverage obligation to the defendant. When asked how Volpicella’s relationship to the defendant could impact coverage, Levy provided a hypothetical example in which she stated that the relationship could implicate certain defenses in the policy. Contrary to the defendant’s assertion, this deposition testimony was not contradicted by Levy’s trial testimony. Levy’s reference to the hypothetical implication of defenses in the policy did not indicate necessarily that the plaintiffs purpose in requesting information from the defendant was to determine whether the plaintiff had defenses to coverage. Rather, considering the reference to policy defenses in the context of her entire answer, the court reasonably determined that the purpose of the request was to evaluate the plaintiffs general coverage obligation, which, in the hypothetical scenario described by Levy, could have been affected by any relevant defenses in the policy. This was not inconsistent with Levy’s answer at trial. Therefore, we conclude that the court did not abuse its discretion in sustaining the objection to the deposition testimony.

B

We next consider whether, under the terms of the policy, the plaintiff was entitled to request the information and documentation it sought from the defendant and whether the defendant was required to comply with such requests. The defendant argues that section 5 of the conditions and stipulations in the policy only permitted the plaintiff to request information related to the proof of loss or damage in light of the title of the section and, likewise, only required the defendant to comply with a request of the same nature. The defendant further argues that the plaintiffs requests went beyond the scope of section 5 because they were made in order to obtain information that would vitiate coverage and find defenses to coverage through various policy exclusions. The plaintiff argues that the plain language of section 5 authorizes the plaintiff to request information and documents to further its coverage investigation and that its requests were, therefore, authorized under this section. We agree with the plaintiff.

The following additional undisputed facts are relevant to this claim. In a letter dated June 6, 2006, on behalf of the plaintiff, attorney Frank F. Coulom, Jr., sent a letter to the defendant’s attorney, Paul S. Tagatac. The letter stated the following: “This letter is to request information and documents from your client, [the defendant], to further our investigation of its tax hen claim and reach a resolution of this matter. ... It is unclear whether [the defendant] had acquired knowledge of the tax hen on the property through its member . . . Volpiceha, prior to acquiring the property. Prior knowledge of the hen would vitiate coverage of the claimed loss. To get to the bottom of that issue, [the plaintiff] requests that the following additional information and documents be provided prior to the examinations under oath . . . .”

Because this part of the defendant’s claim requires that we interpret the pohcy, “[w]e begin by setting forth the well settled standard of review for interpreting insurance contracts. [Construction of a contract of insurance presents a question of law for the court which this court reviews de novo. ... It is the function of the court to construe the provisions of the contract of insurance. . . . The [interpretation of an insurance policy . . . involves a determination of the intent of the parties as expressed by the language of the policy . . . [including] what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy. . . . [A] contract of insurance must be viewed in its entirety, and the intent of the parties for entering it derived from the four comers of the policy . . . [giving the] words ... [of the policy] their natural and ordinary meaning . . . [and construing] any ambiguity in the terms . . . in favor of the insured . . . .” (Internal quotation marks omitted.) Connecticut Ins. Guaranty Assn. v. Fontaine, 278 Conn. 779, 784-86, 900 A.2d 18 (2006).

We conclude that the plain language of section 5 permitted the plaintiff to request information necessary to further its coverage investigation and required the defendant to cooperate with such requests. Section 5 entitled the plaintiff to require the defendant to submit to examination under oath and produce various records and documentation which reasonably pertain to the loss or damage at issue in a claim that is being investigated. Moreover, it specifically states that the failure of the defendant to submit to examination under oath or produce other reasonably requested information shall terminate any liability of the plaintiff under the policy as to that claim. We agree with the plaintiff that it was authorized under section 5 to investigate whether the defendant’s tax lien claim was entitled to coverage, and we find no support in the record for the defendant’s suggestion that the plaintiffs request went beyond the scope of the policy. Contrary to the defendant’s suggestion, the plaintiffs requests did not go beyond the scope of the policy merely because the requests included notice to the defendant that refusal to cooperate with its requests was grounds under the policy for denying coverage and that prior knowledge of the hen would vitiate coverage based on the policy exclusions. We also reject the defendant’s suggestion that the plaintiffs requests were not permitted merely because the defendant already had provided the plaintiff with some documentation regarding the tax hens. Accordingly, the court did not err by finding that the plaintiffs requests were reasonable under the terms of the pohcy and that the pohcy required the defendant to cooperate with such requests.

C

Finally, we consider whether the court erred in finding that the defendant breached the pohcy by not complying with the plaintiffs request such that it prejudiced the plaintiff. The defendant argues that it did not breach the pohcy because it was not obhgated to comply with the plaintiffs requests, which, it claims, went beyond the scope of section 5 of the pohcy. Further, the defendant argues that, even if it was so obh-gated, it eventually comphed and, therefore, did not prejudice the plaintiff. We are not persuaded.

We first set forth the standard of review and relevant law governing this part of the defendant’s claim. “Whether a contract has been breached ordinarily is a question of fact, subject to the clearly erroneous standard of review.” (Interna! quotation marks omitted.) Lydall, Inc. v. Ruschmeyer, 282 Conn. 209, 242, 919 A.2d 421 (2007). A trial court’s “findings [of fact] are binding upon this court unless they are clearly erroneous in hght of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 432, 849 A.2d 382 (2004).

“Generally, in the absence of a reasonable excuse, when an insured fails to comply with the insurance policy provisions requiring an examination under oath and the production of documents, the breach generally results in the forfeiture of coverage, thereby relieving the insurer of its liability to pay, and provides the insurer an absolute defense to an action on the policy. . . . In the absence of estoppel, waiver or other excuse, cooperation by the insured in accordance with the provisions of the policy is a condition the breach of which puts an end to the insurer’s obligation. . . . The lack of cooperation, however, must be substantial or material. . . .

“[T]he condition of cooperation with an insurer is not broken by a failure of the insured in an immaterial or unsubstantial matter. . . . [L]ack of prejudice to the insurer from such failure is a test which usually determines that a failure is of that nature. ... A cooperation clause in [an] . . . insurance policy requires that there shall be a fair, frank, and substantially full disclosure of information reasonably demanded by the insurer to enable it to prepare for, or to determine whether there is, a genuine defense. . . . [I]t has been held that an insured’s failure to disclose information breached a cooperation clause [when] . . . [t]he insured . . . [failed] to provide information requested by the insurer.” (Citations omitted; internal quotation marks omitted.) Double G.G. Leasing, LLC v. Underwriters at Lloyd’s, London, 116 Conn. App. 417, 432-33, 978 A.2d 83, cert. denied, 294 Conn. 908, 982 A.2d 1082 (2009).

Having thoroughly reviewed the record, we conclude that the court did not err in finding that the defendant breached the policy and prejudiced the plaintiff by failing to cooperate with its requests. As we explained in part I B of this opinion, the court properly interpreted section 5 of the policy to find that the plaintiffs requests were reasonable under the terms of the policy and that the defendant was required to comply with the requests. Accordingly, we find no merit in the defendant’s argument that it was error for the court to conclude that the defendant’s failure to comply breached the terms of section 5 of the policy. The defendant has offered no excuse for its failure to cooperate with the plaintiffs requests other than its argument that it was not obligated to do so under section 5, which, for the reasons explained in part I B of this opinion, is unavailing. At trial, the parties stipulated that the defendant did not cooperate with the plaintiffs coverage investigation before paying the tax hens, and the court found that the defendant continued to refuse to cooperate after paying the liens. Because the plain language of section 5 requires the defendant to submit to examination under oath and produce various records and documentation which reasonably pertain to the loss or damage, the court did not err in finding that the defendant’s refusal to do so was a breach of the policy.

Further, the defendant’s failure to cooperate was not immaterial or unsubstantial. Based on our review of the record, there was ample evidence to support the court’s finding of prejudice. The court found that the breach resulted in prejudice to the plaintiffs ability to determine whether coverage applied and to prevent loss or damage to the defendant. Levy’s January 30, 2006 letter to the plaintiff explained that the plaintiff had submitted its requests for information to the defendant in order to determine whether the defendant’s claim was entitled to coverage under the policy in light of a number of coverage related issues that had been raised. The court reasonably could have inferred from the evidence that the plaintiffs ability to investigate and defend the defendant’s claim had been prejudiced when the defendant refused to comply with these requests. The court also found that Orlandi’s and Volpi-cella’s eventual submission to examination and production of certain documents was so long after the payment of the taxes by the defendant that it prejudiced the plaintiffs ability to investigate and defend the claim. The record demonstrates that nearly seven months had passed from when the plaintiff acknowledged receipt of a title claim on the defendant on December 27, 2005, to the defendant’s claimed compliance on July 21, 2006. This is far from the fair, frank, and substantially full disclosure of information generally required by a cooperation clause like the one set forth in section 5. See id., 433. Accordingly, the court reasonably could have found that the plaintiff was prejudiced by the defendant’s breach, even in light of Orlandi’s and Volpicella’s eventual submission to examination and production of certain documents. Because we are not left with the definite and firm conviction that a mistake has been committed by the court, we conclude that the challenged findings are not clearly erroneous.

II

The defendant next claims that the court improperly found that the defendant’s payment under protest of the tax lien on the property was voluntary, such that it violated section 9 (c) of the policy and prejudiced the plaintiff. Specifically, the defendant claims that its payment to clear title to conclude a refinance so as to forward its business expectations did not mean that it assumed liability or settled its claims for the unpaid taxes, and, therefore, it did not breach the terms of the policy. In addition, the defendant claims that its payment of the taxes did not prejudice the plaintiff because the plaintiffs right to challenge the taxes was preserved. In light of our resolution of the defendant’s first claim, we do not reach the merits of this claim.

The following additional facts as found by the court are relevant to this claim. The court found that “the evidence is clear that the payment by [the defendant] was done voluntarily through its own affirmative act and without the impetus of a pending loss of title.” The court found that the defendant’s actions violated the terms of section 9 (c) of the policy and thereby terminated the plaintiffs obligation under it. Moreover, the court found that “[s]uch breach resulted in prejudice to the plaintiffs ability to determine whether coverage applied and to prevent loss or damage to [the defendant]. [The] [p]laintiff is therefore not hable for any loss or damage suffered by [the defendant] through such payment.”

The court found that the defendant breached both sections 5 and 9 (c) of the conditions and stipulations in the policy and that each violation independently prejudiced the plaintiffs ability to determine whether coverage applied and to prevent loss or damage to the defendant. Therefore, the defendant necessarily must demonstrate that the court’s findings regarding both sections of the policy were erroneous in order for us to conclude that the court erred in finding that it breached the policy. Because, for the reasons set forth in part I of this opinion, we concluded that the defendant has failed to demonstrate that the court’s findings regarding section 5 were erroneous, we need not address the defendant’s claim that the court erred in finding that it breached section 9 (c) such that it prejudiced the plaintiff. See Christoni v. Christoni, 156 Conn. 628, 629, 239 A.2d 533 (1968) (holding secondary ground supporting trial court’s decision to be immaterial when another ground was upheld by reviewing court). Accordingly, we decline to review the merits of the defendant’s second claim.

Ill

The defendant also claims that, even assuming that it breached the policy and the plaintiff did not breach the policy, the court improperly concluded that the plaintiff was relieved of its coverage obligation to the defendant when the plaintiff’s right of subrogation was unimpaired, and the defendant could have obtained payment through a subrogation claim against Volpicella. In essence, the defendant argues that the plaintiff should not have been relieved of its coverage obligation because it would not have been prejudiced by the defendant’s breach so long as the plaintiff could recover in subrogation against Volpicella. Specifically, the defendant argues that the court’s conclusion was erroneous because the court (1) failed to consider section 13 of the conditions and stipulations section of the policy regarding subrogation and (2) improperly precluded evidence regarding Volpicella’s assets. We disagree.

A

We first address the defendant’s claim that the court failed to consider section 13 of the conditions and stipulations section of the policy. The sole basis for the defendant’s claim that the court failed to consider section 13 is that the court omitted any reference to that provision of the policy in its memorandum of decision. The defendant’s argument erroneously presumes that the absence of a reference to section 13 in the court’s decision necessarily indicates that the court failed to consider that policy provision in its analysis. The defendant has pointed to nothing in the record which would indicate that the court, in fact, failed to consider that policy provision, and there is no indication that the court did not view the contract of insurance in its entirety to derive the intent of the parties from the four comers of the policy as required by Connecticut law. See Connecticut Ins. Guaranty Assn. v. Fontaine, supra, 278 Conn. 784-85. We will not presume error by the court. Accordingly, we find no merit in the defendant’s claim that the court failed to consider the subro-gation section of the policy.

B

We now consider the defendant’s claim that the court abused its discretion by precluding evidence of Volpi-cella’s assets. The defendant argues that the court should not have excluded the evidence because it would have demonstrated that Volpicella had sufficient assets to pay the plaintiff in a subrogation claim were the plaintiff to bring one. For the reasons we will set forth, we conclude that the court did not abuse its discretion.

The following additional undisputed facts are relevant to our resolution of this claim. In an objection filed on January 27, 2011, Volpicella objected to the defendant’s attempt to introduce an exhibit as evidence of a purported title search on Volpicella’s personal residence, arguing that the proposed exhibit was irrelevant to the declaratory action and, even if relevant, was more prejudicial than probative. The defendant filed a response on January 28, 2011, in which it argued that Volpicella’s ability to satisfy a judgment against him would be relevant to counts three and four of the plaintiffs complaint. During the January 31, 2011 pretrial hearing, the court sustained Volpicella’s objection, stating the following: “I would find first of all that that exhibit would be relevant only if there was a settlement or judgment [that] had already existed as between the plaintiff and either [Volpicella or the] defendant. That’s not the case here. The exhibit is really related to the discovery of assets, which is something to be done by postjudgment proceedings if necessary. Although [the defendant’s counsel] has filed his response that cites some Connecticut Superior Court cases, most of the appellate authority, in fact not most, all of the appellate authority relie [d] on within that objection comes from out of state, [and there] doesn’t appear to be any Connecticut appellate authority directly on point.

“And I’ll note that . . . [the] plaintiffs counts three and four, which deal with—declaratory judgment actions relative to coverage—that count three is based primarily on the fact that payment was voluntarily made by the defendant. Count four claims there’s no coverage in a declaratory judgment action because of the breach of the duty to cooperate on the part of the defendant.

“Neither of those counts were brought under [a] theory of any sort of subrogation, and I don’t think it really relates to an issue of subrogation as to those counts. So, I think the title search itself really is irrelevant to the issues, and they’re pending before [the] court on the pleadings as they now stand. So, I’m going to sustain the objection . . . .”

We first set forth our standard of review and applicable law governing this part of the defendant’s third claim. “[T]he trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Internal quotation marks omitted.) State v. Creech, supra, 127 Conn. App. 495. “All relevant evidence is admissible .... Evidence that is not relevant is inadmissible.” (Emphasis added.) Conn. Code Evid. § 4-2. “Relevant evidence means evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.” (Internal quotation marks omitted.) Conn. Code Evid. § 4-1.

The court found that the purported title search of Volpicella’s residence was irrelevant to the issues presented by the plaintiffs third and fourth counts, both of which sought declaratory judgments related to coverage. The court also found that neither count was brought under a theory of subrogation, that the exhibit did not relate to any issue of subrogation as to those counts and that the exhibit “would be relevant only if there was a settlement or judgment [that] had already existed as between the plaintiff and either [Volpicella or the] defendant,” which it found was not the case here. Making every reasonable presumption in favor of the correctness of the court’s ruling as to the relevance of the exhibit, we conclude that the court properly excluded the evidence in accordance with our code of evidence after determining that it was irrelevant. The defendant’s argument—that the court improperly excluded the exhibit because it would have established that Volpicella had sufficient assets to pay the plaintiff by way of subrogation—is unavailing because it disregards the plain language of the subrogation provision of the policy, which indicates that it is only applicable once a claim has been paid or settled by the plaintiff. Accordingly, the court could have properly determined that evidence of assets that may have been recovered in a potential subrogation claim by the plaintiff against Volpicella was not relevant to the parties’ respective obligations under the policy or the evaluation of coverage before any claim had been settled or paid. Therefore, we conclude that the court did not abuse its discretion.

IV

Finally, the defendant claims that the court improperly refused to consider its evidence that the plaintiff breached the policy for the purpose of establishing the plaintiffs bad faith. Specifically, the defendant argues that the court, Shaban, J., erred by refusing to consider whether such evidence established bad faith by the plaintiff because it claims that the court was not bound by the prior ruling by the court, Hon. Joseph M. Shortall, judge trial referee, granting the plaintiffs motion for summary judgment regarding the defendant’s counterclaim alleging bad faith by the plaintiff. We are not persuaded.

The following additional undisputed facts are relevant to the resolution of this claim. On January 18,2011, the plaintiff filed a motion in limine seeking to limit the scope of issues to be tried. Specifically, the plaintiff requested that the court preclude the defendant from introducing any evidence that the plaintiff acted in bad faith or violated CUTPA based on the fact that those two counts of the defendant’s counterclaim were eliminated on summary judgment and were subsequently withdrawn by the defendant. In a pretrial hearing on January 31, 2011, the court, Shaban, J., stated: “As to the motion [in limine] on the broader issues, the plaintiff has basically said, and I’ll focus on these two at the moment, that any evidence regarding bad faith or a violation of . . . CUTPA should be prohibited based on the fact that those claims are no longer in the case. I find that Judge ShortalTs ruling, clearly in the summary judgment motion, knocks out those two counts. Therefore, I would grant the motion in limine to preclude any evidence regarding bad faith or any . . . CUTPA violations, or any evidence presented for that purpose. I characterize it that way because I recognize also that because the defendant . . . has a breach of contract claim that, sometimes, evidence of a breach of contract can be used both for just that, breach of contract and evidence of bad faith. So, [to] the extent that evidence might be presented to establish a breach of contract, that’s allowed, but to the extent it may be intended to establish a bad faith claim, or bad faith conduct on [the] part of the insurer, that will be precluded. And the same thing for . . . CUTPA violations.”

“[T]he trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . [I]n determining whether there has been an abuse of discretion, every reasonable presumption should be made in favor of the correctness of the trial court’s ruling, and we will upset that ruling only for a manifest abuse of discretion. ... In general, abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors.” (Internal quotation marks omitted.) State v. Creech, supra, 127 Conn. App. 495. “[T]he right of a [defendant] to recover is limited to the allegations of [its claims or counterclaims as properly framed by the pleadings in the] complaint. . . . The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise . . . .” (Internal quotation marks omitted.) Mamudovski v. BIC Corp., 78 Conn. App. 715, 732, 829 A.2d 47 (2003), appeal dismissed, 271 Conn. 297, 857 A.2d 328 (2004).

Because the defendant’s right to recovery was limited by the allegations in its counterclaim; see id.; the court properly precluded any evidence regarding bad faith when that count effectively had been removed from the defendant’s counterclaim by the court’s prior summary judgment ruling in favor of the plaintiff. Further, the bad faith count of the defendant’s counterclaim was never restored to the docket after the defendant subsequently withdrew it. Because the bad faith counterclaim was no longer part of the proceedings, any evidence presented in support of a fact related to the plaintiffs alleged bad faith would not be material to the determination of the proceedings, and, therefore would not be relevant. Conn. Code Evid. § 4-1. Accordingly, the court properly precluded any evidence to the extent that it was intended to establish a bad faith claim or bad faith conduct by the plaintiff. Conn. Code Evid. § 4-2. Moreover, even were we to conclude that the trial court, Shaban, J., was somehow not bound by the earlier ruling of the court, Hon. Joseph M. Shortall, judge trial referee, the defendant has failed to make any argument as to how the court’s evidentiary ruling constituted an abuse of discretion. Making every reasonable presumption in favor of the correctness of the court’s ruling, we conclude that the court did not abuse its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Lew J. Volpicella was named as a defendant in the underlying civil action, but is not a subject of this appeal. We therefore refer in this opinion to Bristol Heights Associates, LLC, as the defendant.

       The defendant on appeal also challenges the trial court’s denial of its September 29, 2011 motion to reargue and for reconsideration of the memorandum of decision issued in connection with the court’s August 18, 2011 judgment. The defendant, however, failed to brief any argument specifically related to that motion. Accordingly, the defendant has abandoned any claim related to that motion. See Harris v. Bradley Memorial Hospital & Health Center, Inc., 306 Conn. 304, 319, 50 A.3d 841 (2012) (“[a]n appellant who fails to brief a claim abandons it” [internal quotation marks omitted]).

       In a separately enumerated claim, the defendant also asserts that the court failed to apply the controlling law related to the construction of insurance policies and failed to acknowledge several material policy provisions. The substance of this claim, however, appears to be merely an overview of the issues on appeal. Accordingly, the analysis of the other claims set forth in this opinion provides an adequate basis for the resolution of this claim. We, therefore, need not discuss it separately.

       Section 9 (c) of the conditions and stipulations section of the policy states: “The [plaintiff] shall not be liable for loss or damage to any insured for liability voluntarily assumed by the insured in settling any claim or suit without the prior written consent of the [plaintiff].”

       Section 5 of the conditions and stipulations section of the policy is entitled “Proof of Loss or Damage” and states in relevant part: “[T]he insured claimant may reasonably be required to submit to examination under oath by any authorized representative of the [plaintiff] and shall produce for examination, inspection and copying, at such reasonable times and places as may be designated by any authorized representative of the [plaintiff], all records, books, ledgers, checks, correspondence and memoranda, whether bearing a date before or after [d]ate of [pjolicy, which reasonably pertain to the loss or damage. Further, if requested by any authorized representative of the [plaintiff], the insured claimant shall grant its permission, in writing, for any authorized representative of the [plaintiff] to examine, inspect and copy all records, books, ledgers, checks, correspondence and memoranda in the custody or control of a third party, which reasonably pertains to the loss or damage. . . . Failure of the insured claimant to submit for examination under oath, produce other reasonably requested information or grant permission to secure reasonably necessary information from third parties as required in this paragraph shall terminate any liability of the [plaintiff] under this policy as to that claim.”

       In the sixth count of the complaint, the plaintiff sought an alternative declaratory judgment that, if it was found liable to indemnify the defendant under the policy, Volpicella should be required to indemnify the plaintiff for the amount of any loss paid by the plaintiff to the defendant. Because the court did not find the plaintiff liable to indemnify the defendant under the policy, the court declined to address the claims raised in this count.

       The court found that the defendant did not breach its duty under section 4 of the conditions and stipulations section of the policy. Therefore, section 4 is not at issue in this appeal.

       As part of the defendant’s first claim, the defendant argues that the court improperly excluded certain deposition testimony from Levy, namely, that her purpose for making demands to the defendant was to find information that would support defenses to coverage. The defendant claims that the deposition testimony should have been admitted to impeach Levy’s testimony at trial. As we explain in part I A of this opinion, we conclude that the court did not abuse its discretion in excluding this evidence. Accordingly, we review the remainder of the defendant’s first claim without regard to the evidence of Levy’s deposition testimony.
      The defendant also claims that Levy’s deposition testimony was admissible as a statement by a party opponent under § 8-3 (1) (C) of the Connecticut Code of Evidence. The defendant did not offer the testimony for this purpose at the time of the court’s ruling and only subsequently raised this argument in its motion to reargue and for reconsideration of the court’s memorandum of decision. Because the defendant raises this argument solely in connection with his claim of evidentiary error, we decline to review its merits, as it was not properly preserved for appellate review. See Smith v. Andrews, 289 Conn. 61, 77, 959 A.2d 597 (2008).

       In the letter, Levy cited various exclusions in the policy that could preclude coverage and explained that the plaintiff had submitted its requests for information in order to determine whether the defendant’s claim was entitled to coverage under the policy in light of a number of “coverage related issues” that had been raised.

       Having concluded in part IA of this opinion that the court did not abuse its discretion in sustaining the objection to the evidence of Levy’s deposition testimony, we review the remainder of the defendant’s second claim without regard to this evidence.

       The defendant also claims that the court erred in finding that the plaintiff did not breach the policy by requesting examinations and documentation that were beyond the scope of section 5 of the policy. Because, as we explain in part IB of this opinion, we conclude that the court did not err in finding that the plaintiffs requests were reasonable under the terms of the policy, we conclude that it was not clearly erroneous for the court to find that the plaintiff did not breach the policy by making such requests.

       The defendant also argues that the court’s rationale for finding that it breached section 9 (c) was flawed because it (1) improperly equated loss of title with losing ownership of property in foreclosure, (2) improperly found that even if the plaintiff determined that the liens were defects of title covered under the policy, the plaintiff still had the right to wait for the city to initiate foreclosure, (3) failed to acknowledge that the policy’s definition of loss includes the existence of a title defect because the policy covers unmarketability of title and (4) failed to acknowledge that the liens alone entitled the defendant to coverage under section 7 of the policy’s conditions and stipulations section. The defendant also claims that the court’s finding contravened public policy by implying that taxpayers must refuse to pay taxes in order to avoid forfeiting insurance coverage.

       Section 13 (a) of the conditions and stipulations section of the policy states in relevant part: “Whenever the [plaintiff] shall have settled and paid. a claim under this policy, ail right of subrogation shall vest in the [plaintiff] unaffected by any act of the insured claimant.
      “The [plaintiff] shall be subrogated to and be entitled to all rights and remedies which the insured claimant would have had against any person or property in respect to the claim had this policy not been issued. If requested by the [plaintiff], the insured claimant shall transfer to the [plaintiff] all rights and remedies against any person or property necessary in order to perfect the right of subrogation. The insured claimant shall permit the [plaintiff] to sue, compromise or settle in the name of the insured claimant and to use the name of the insured claimant in any transaction or litigation involving these rights and remedies. . . .
      “If loss should result from any act of the insured claimant, as stated above, that act shall not void this policy, but the [plaintiff], in that event, shall be required to pay only that part of any losses insured against by this policy which shall exceed the amount, if any, lost to the [plaintiff] by reason of the impairment by the insured claimant of the [plaintiff’s] right of subro-gation.”

       On appeal, the defendant challenges only the court’s preclusion of evidence that the plaintiff acted in bad faith. Therefore, our analysis and conclusion are limited to the court’s ruling on this evidence and do not apply to the court’s ruling insofar as it pertained to any evidence of the plaintiffs alleged CUTPA violations.

       To the extent that the defendant attempts to collaterally challenge the summary judgment ruling, we decline to review the merits of such a challenge because the defendant failed to appeal specifically from the court’s summary judgment ruling.


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    KATHLEEN TARRO ET AL. v. MASTRIANI REALTY, LLC, ET AL.
    (AC 33921)
    (AC 33922)
    Lavine, Robinson and Schaller, Js.

      Argued October 16, 2012
    officially released May 7, 2013

      Juri E. Taalman, with whom, on the brief, was Timothy Brignole, for the appellants (plaintiffs).

      Joseph M. Busher, Jr., with whom, on the brief, was Philip R. Dunn, Jr., for the appellees (defendants).
   Opinion

ROBINSON, J.

The plaintiffs, Kathleen Tarro and Victorian Elegance, LLC, appeal from summary judgments rendered against them in two civil actions that they brought against the defendants, Mastriani Realty, LLC, James D. Mastriani (Jay Mastriani) and James V. Mastri-ani. The plaintiffs claim that, in both actions, the court improperly concluded that there were no genuine issues of material fact and that the defendants were entitled to judgments as a matter of law because the issues raised therein had been litigated previously or could have been litigated in an earlier commercial eviction action brought by the defendants against the plaintiffs, and, therefore, the actions were barred by res judicata and collateral estoppel. We disagree and, accordingly, affirm the judgments of the court.

The record reveals the following relevant facts and procedural history. Tarro is the sole member of Victorian Elegance, LLC, which company owned and operated Victorian Elegance, a business previously located in a shopping center at 156 Broad Street in Windsor (subject premises). The business sold antiques and other goods at retail and on consignment. Mastriani Realty, LLC, is the owner of the subject premises, and the other defendants are the owners and operators of Mastriani Realty, LLC. Victorian Elegance, LLC, sublet the subject premises from Prudential Realty. When Prudential Realty failed to pay rent, Mastriani Realty, LLC, initiated summary process eviction proceedings against Victorian Elegance, LLC (eviction action). A stipulated judgment was rendered by the housing court on July 13, 2010, that granted Mastriani Realty, LLC, possession of the subject premises beginning on October 1, 2010, with the condition that if Victorian Elegance, LLC, made a use and occupancy payment of $2000, the stay of execution would be extended to November 1, 2010.

Victorian Elegance, LLC, failed to vacate the premises by October 1, 2010, and it did not make the $2000 use and occupancy payment. Accordingly, on October 1, 2010, the defendants sought and received a nonresidential summary process execution. The execution contained notice that Mastriani Realty, LLC, would take possession of the subject premises on October 8, 2010, and also included the following additional notice: “If you do not move out by that date, this paper gives your landlord the legal right to inventory your possessions and personal effects and to store them in the premises or to remove them and store them elsewhere. If you do not claim your possessions and personal effects and pay the removal and storage costs within [fifteen] days after [October 8, 2010], your possessions and personal effects will be forfeited to the landlord.” On October 7,2010, Victorian Elegance, LLC, filed a motion to quash the execution and an application for a temporary injunction staying enforcement of the execution until the court heard its motion to quash. According to its motion, Victorian Elegance, LLC, needed additional time to remove its personal property from the subject premises and it was willing to pay $2000 to obtain a stay of enforcement until the end of the month. The court granted a temporary injunction prohibiting enforcement of the execution and scheduled a hearing on the motion to quash. Following the hearing, the court denied the motion to quash, ordered that $2000 remitted to the court by Victorian Elegance, LLC, be dispersed to Mastriani Realty, LLC, and granted a final stay of the enforcement of the execution until noon on November 1, 2010.

The plaintiffs arranged to have rental trucks available for November 1 and 2,2010, for the purpose of removing property from the subject premises; however, Jay Mas-triani allegedly arrived in the morning of November 1, 2010, accompanied by a locksmith, claiming that he intended to throw Tarro off the property. Tarro retrieved her copy of the execution from her office to show that any enforcement could not occur until 12 p.m. Jay Mastriani informed Tarro that once the doors were locked that day, she would be allowed to return only on November 15, 2010, and that any possessions left after that date would be his. Jay Mastriani and the locksmith left.

Tarro then also left the subject premises and, on behalf of Victorian Elegance, LLC, filed for bankruptcy. The defendants were notified of the bankruptcy filing at 11:50 a.m. on November 1, 2010. At 1:30 p.m., the defendants arrived at the subject premises with a locksmith and a state marshal. An inventory was made of the property remaining at the subject premises. Tarro called the Windsor police department to prevent the defendants from locking the property. By 3:30 p.m., the defendants had physically removed Tarro from the premises and never allowed her further access to the premises.

The bankruptcy trustee informed the parties that no one should remove any assets from the subj ect premises while the bankruptcy was pending. Although the defendants, through counsel, informed Tarro that they intended to give her one day of access to remove any claimed assets from the premises, they insisted that they would do so only after she signed a general release of liability.

The bankruptcy action was dismissed on November 23,2010. On December 2,2010, Victorian Elegance, LLC, filed a motion asking the housing court “to extend the time for [it] to claim its property until midnight December 21, 2010.” In that motion, Victorian Elegance, LLC, asserted that because of the fourteen day bankruptcy appeal period, any stay previously in effect with respect to the moving of assets at the subject premises would remain in effect through December 6, 2010. It claimed that the defendants were interfering with the plaintiffs’ efforts to obtain a lease of new premises and that Tarro would need more than the one day being offered to remove everything. The court denied the motion on December 7, 2010.

After that date, the defendants allegedly continued to deny the plaintiffs access to the subject premises and to frustrate the plaintiffs’ efforts to reclaim those possessions left at the subject premises. The defendants eventually established January 11, 2011, as the final date on which they would provide the plaintiffs with access to recover the plaintiffs’ assets, albeit continuing to condition any access on the plaintiffs’ execution of a general release of liability. On December 22, 2010, Tarro went to the premises and found the defendants removing property to an auction house where it could eventually be sold. The defendants called the Windsor police department and notified the police that if Tarro came on the property again, she should be arrested for trespassing.

The plaintiff commenced the two actions underlying the present appeals on January 27, 2011. The action underlying AC 33922 sought a writ of replevin (replevin action). The action underlying AC 33921 consisted of a four count complaint sounding in statutory conversion, statutory lockout, tortious interference in business relationships and negligence (civil action). The plaintiffs allege that at no time were they provided with an adequate opportunity to remove their possessions from the subject premises. At the heart of both actions is the assertion that the defendants are in wrongful possession of the contents and inventory of Victorian Elegance, LLC, and other personal property of the plaintiffs.

On March 4, 2011, the defendants filed in each action an answer and special defenses, including the special defense that the action is barred by res judicata. They also filed motions for summary judgment in each action. A memorandum of law accompanied the motions for summary judgment, attached to which were copies of the parties’ stipulated agreement in the eviction action and the summary process execution. According to the defendants, there were no genuine issues of material fact and they were entitled to judgment as a matter of law because the issues raised by the plaintiffs in the replevin action and the civil action either had been or could have been litigated previously and decided by the housing court in the eviction action, the plaintiffs never appealed from any of the housing court’s rulings in the eviction action, and relitigation was barred by the doctrines of res judicata and collateral estoppel. The plaintiffs filed memoranda in opposition to the motions for summary judgment, attaching various exhibits. According to the plaintiffs, the claims they raised in the replevin action and civil action arose from facts that are separate and distinct from those litigated in the earlier eviction action, and they had no obligation to pursue those claims before the housing court. Thus, the plaintiffs argued, res judicata and collateral estoppel should not apply to bar their actions. Each party filed supplemental memoranda of law. The plaintiffs filed a second supplemental memorandum prior to the court hearing argument at short calendar.

On July 28, 2011, the court issued a memorandum of decision granting the defendants’ motion for summary judgment in the replevin action, concluding as follows: “[T]he issues raised in this case were capable of being litigated in the previous action, and were in fact directly addressed by the court at that time. Therefore, this action is barred by res judicata and collateral estoppel. . . . [Tjhere are no genuine issues of material fact, and the defendants are entitled to judgment as a matter of law . . . .’’On August 6, 2011, the court granted the defendants’ motion for summary judgment in the civil action and incorporated its decision in the replevin action by reference. The plaintiffs filed the present appeals.

We begin our analysis of the plaintiffs’ claims by setting forth the well-settled standard of review applicable to a trial court’s decision to grant a motion for summary judgment as well as other legal principles that will guide our review. “Practice Book § [17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is 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 judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . [I]ssue-finding, rather than issue-determination, is the key to the procedure. . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.” (Internal quotation marks omitted.) Mott v. Walmart Stores East, LP, 139 Conn. App. 618, 624-25, 57 A.3d 391 (2012). “A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact. . . . Because the court’s decision on a motion for summary judgment is a legal determination, our review on appeal is plenary. . . . Similarly, [t]he applicability of the doctrines of res judi-cata or collateral estoppel presents a question of law, over which our review is plenary.” (Citations omitted; internal quotation marks omitted.) Coyle Crete, LLC v. Nevins, 137 Conn. App. 540, 547, 49 A.3d 770 (2012).

“Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum. [C]laim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits. . . . [I]ssue preclusion . . . prevents a party from relitigating an issue that has been determined in a prior suit. . . . The doctrines of res judicata and collateral estoppel protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation. . . . [T]he doctrine of . . . claim preclusion . . . [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action [between the same parties or those in privity with them] on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose. . . . The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it. . . .

“We recognize that the mere explication of the doctrine of claim preclusion does not resolve all difficulties which may appear at the point of application. . . . [T]he law of estoppel by judgment is well settled, the only difficulty being in its application to the facts. . . . The difficulty has always been in determining what matters are precluded by the former adjudication. . . . In applying the rule of claim preclusion, the critical question is how broad a definition to give to the term same claim or cause of action. The broader the definition, the broader the scope of preclusion.” (Citations omitted; internal quotation marks omitted.) Bruno v. Getter, 136 Conn. App. 707, 720-21, 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d. 732 (2012).

The doctrines of res judicata and collateral estoppel “are judicially created rules of reason that are enforced on public policy grounds . . . [and] whether to apply either doctrine in any particular case should be made based upon a consideration of the doctrine’s underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close . . . and the competing interest of the plaintiff in the vindication of a just claim. . . . These [underlying] purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation. . . . Both collateral estoppel and res judi-cata are grounded in the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest. ... At the same time, our Supreme Court has instructed that those doctrines of preclusion should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies. . . . Finally, we note that the party asserting a defense of collateral estoppel or res judicata bears the burden of establishing its applicability.” (Citations omitted; internal quotation marks omitted.) Coyle Crete, LLC v. Nevins, supra, 137 Conn. App. 547-48.

Our Supreme Court has cautioned that “the application of either doctrine has dramatic consequences for the party against whom it is applied, and that we should be careful that the effect of the doctrine does not work an injustice.” (Internal quotation marks omitted.) Powell v. Infinity Ins. Co., 282 Conn. 594, 602, 922 A.2d 1073 (2007). To that end, it has identified factors that a court may consider in deciding whether to recognize an exception to the general policy favoring application of the preclusion doctrines: “(1) whether another public policy interest outweighs the interest of finality served by the preclusion doctrines ... (2) whether the incentive to litigate a claim or issue differs as between the two forums ... (3) whether the opportunity to litigate the claim or issue differs as between the two forums . . . and (4) whether the legislature has evinced an intent that the doctrine should not apply.” (Citations omitted; internal quotation marks omitted.) Id., 603. With those principles in mind, we turn to the claims raised by the plaintiffs in the present appeals.

The plaintiffs’ sole claim in both AC 33921 and AC 33922 is that the court erred in concluding that their actions were barred by res judicata or collateral estop-pel and that, absent a disputed issue of material fact, the defendants were entitled to judgments as a matter of law. The plaintiffs’ arguments in support of their claim are, in essence, threefold: (1) the claims raised in the replevin action and the civil action could not be and were not raised before the housing court because its jurisdiction is limited solely to housing matters as that term is defined in General Statutes § 47a-68, (2) the eviction action and the present actions involve separate and distinct legal issues and facts such that the claims raised in the present actions extend beyond any preclu-sive effect of the summary process action, and (3) no preclusive effect could flow from the execution of ejectment because the execution was never properly returned to the housing court. In response to the plaintiffs’ arguments, the defendants maintain to the contrary that the judgment and execution in the eviction action, including the court’s consideration and disposition of the parties’ postjudgment motions, governed the disposition of the personal property at issue, and, accordingly, res judicata and collateral estoppel bar the plaintiffs’ subsequent actions. On the basis of our review, we conclude that the defendants have the better argument and that the court properly granted the defendants’ motions for summary judgment because there is no genuine issue of material fact in dispute and the defendants are entitled to judgments as a matter of law.

I

We first address the plaintiffs’ argument that the housing court could not have considered the issues raised in the replevin and civil actions or have fashioned a proper remedy, if necessary, to protect the personal property rights of the plaintiffs. Any determination regarding the scope of a court’s subject matter jurisdiction or its authority to act presents a question of law over which our review is plenary. See 73-75 Main Avenue, LLC v. PP Door Enterprise, Inc., 120 Conn. App. 150, 157, 991 A.2d 650 (2010); State v. Perez, 85 Conn. App. 27, 37, 856 A.2d 452, cert. denied, 271 Conn. 933, 859 A.2d 931 (2004). The plaintiffs contend that the jurisdiction or authority of the court that heard the eviction action was limited solely to housing matters as defined by § 47a-68 such that the court could not have resolved the issues raised by the plaintiff in its subsequent actions. That argument fails, however, because it is in direct conflict with prior appellate decisions. See Savage v. Aronson, 214 Conn. 256, 571 A.2d 696 (1990); 73-75 Main Avenue, LLC v. PP Door Enterprise, Inc., supra, 150.

“In Savage v. Aronson, [supra, 214 Conn. 256], our Supreme Court . . . explained that, [d] espite the familiar reference to the judicial district courtroom where the judge assigned to hear housing matters presides as the housing court, our statutes create no such special jurisdictional entity. Housing matters are included within the jurisdiction of the Superior Court .... The evident purpose of the statutes and rules relating to the divisions of the Superior Court was not to impose any jurisdictional limitation on judges but to achieve greater efficiency in the administration of the judicial department. . . . A judge assigned to the housing division at a particular judicial district is authorized by [General Statutes] § 47a-70 (a), after a case has first been placed on the housing docket, to transfer such matter to the regular docket for a geographical area or judicial district if he determines that such matter is not a housing matter or that such docket is more suitable for the disposition of the case. . . . However, [e]ven if it were clear that [a] complaint fails to allege circumstances constituting a housing matter as defined by ... § 47a-68, it is plain that such a deficiency did not deprive the trial court of jurisdiction over the action. A judge of the Superior Court assigned to hear housing matters does not lose his general authority to hear any cause of action pending in that court.'” (Citation omitted; emphasis added; internal quotation marks omitted.) 73-75 Main Avenue, LLC v. PP Door Enterprise, Inc., supra, 120 Conn. App. 157. Thus, there is no merit to the argument that the housing court in the present case somehow lacked the necessary jurisdiction or authority to adjudicate any and all issues the parties wished to raise vis-a-vis the personal property at issue.

n

The plaintiffs next argue that the legal issues and factual allegations at issue in the replevin and civil actions are separate and distinct from those that were before the housing court and, thus, res judicata and collateral estoppel do not apply. The plaintiffs also assert that their incentive to litigate before the housing court clearly differed from their incentive to litigate before the Superior Court, invoking one of the factors to be considered in deciding whether an exception to the preclusion doctrines should apply in a particular case. See Powell v. Infinity Ins. Co., supra, 282 Conn. 603. For the following reasons, we reject the plaintiffs’ arguments.

The primary issues to be litigated in a replevin action are whether the plaintiff has an immediate possessory interest in the personal property that he or she seeks to replevy and whether such property is being wrongfully detained by the defendant. See General Statutes § 52-515. Similarly, the allegations underpinning the civil action are that the defendants acted, either intentionally or negligently, to deprive the plaintiffs of access to the subject premises and to their personal property. Contrary to the plaintiffs’ arguments, however, the parties’ respective property rights as to the contents of the former shop of Victorian Elegance, LLC, squarely were at issue in the eviction action. The plaintiffs are not entitled to perpetual litigation regarding this matter, and the court properly precluded them from doing so in the subsequent actions.

On the basis of our review of the record, it appears that, by operation of law, the plaintiffs forfeited any right to the immediate possession of personal property remaining at the subject premises, and they could have raised with the housing court any issues they had concerning their efforts to reclaim such property from the defendants. In accordance with the stipulated judgment of possession, it was incumbent upon the plaintiffs that they remove themselves from the subject premises along with any possessions and personal effects by October 1, 2010, the date the stay of execution of the judgment of possession expired. See General Statutes § 47a-42a (a). Because the plaintiffs had not vacated the subject premises by that date and had not paid the $2000 necessary to extend the stay of execution further, a valid execution of ejectment was issued. That execution was properly served on the plaintiffs and contained clear notice that if all possessions and personal effects were not removed from the premises by the date and time set for eviction, the defendants had the legal right to inventory and remove any remaining items and, if not collected within fifteen days, title would be forfeited to the defendants. See General Statutes § 47a-42a (b). Victorian Elegance, LLC, unsuccessfully sought to quash the execution with the result that it received a final stay of enforcement to November 1, 2010. It never appealed from any of the housing court’s rulings up to that point, including from the denial of the motion to quash, and, therefore, legally was obligated to vacate fully by noon of that date, including removing from the premises all possessions it did not wish to abandon.

The record does not indicate what efforts, if any, the plaintiffs took to physically remove their possessions from the subject premises prior to the November 1, 2010 eviction date; however, what is clear is that the plaintiffs failed to fully remove themselves and their possessions from the property by noon on November 1, 2010. Even assuming without deciding that Tarro’s eleventh hour filing of the bankruptcy action resulted in a further stay of enforcement of the execution; see 11 U.S.C. § 362; any such stay expired at the latest on December 6, 2010, fourteen days after the bankruptcy action was voluntarily dismissed. See Fed. R. Bankr. P. 8002 (a). Thus after the extended eviction date of December 6, 2010, had passed, the plaintiffs could not assert a right to the immediate possession of items they had failed to remove prior to the eviction date, retaining at best a right under § 47a-42a (c) to claim such items within fifteen days, or by December 20, 2010.

In granting summary judgment, the trial court found that the plaintiffs had ample opportunity to raise any and all issues related to the retrieval of their possessions with the housing court, and we can find no error with its finding. Although on appeal, the plaintiffs claim that they could not have raised the issues they now seek to adjudicate before the housing court, the December 2, 2010 motion filed with the housing court shows differently. Victorian Elegance, LLC, filed a motion with the housing court on December 2, 2010, in which it asked the court that it be allowed until midnight on December 21, 2010 to remove the contents of the premises. The motion included allegations that the defendants intended unnecessarily to limit access to the property and that the defendants had contacted a third party landlord in an effort to dissuade that landlord from renting to Victorian Elegance, LLC. The court denied the motion, and no appeal was taken from that ruling. The filing of the motion to extend illustrates that the plaintiffs were well aware that any issues pertaining to their efforts to retrieve their possessions or to improper actions by the defendants to prevent the same could have been raised to the housing court. No other motions, however, were filed with the housing court challenging any alleged wrongdoing on the part of the defendants vis-a-vis the plaintiffs’ efforts to retrieve their abandoned possessions, including the defendants’ requirement that the plaintiffs sign a general release before obtaining access to the subject premises.

To the extent that the plaintiffs were unhappy with procedural aspects of the eviction litigation and adverse rulings of the housing court, the plaintiffs’ remedy was to seek redress directly from the housing court or to file an appeal. We are mindful that “[t]he decision whether to apply res judicata to matters not actually litigated should be made in light of the policies underlying that doctrine—the competing interests of the defendant and of the courts in bringing litigation to a close and of the plaintiff in the vindication of a just claim.” (Internal quotation marks omitted.) Bruno v. Geller, supra, 136 Conn. App. 722. On the basis of our review of the record and taking into consideration all competing interests involved, we conclude that the court properly determined that the plaintiffs had a full and fair opportunity to litigate their claims before the housing court and thus should be precluded in subsequent litigation from raising matters that could have and should have been raised before the housing court.

The plaintiffs assert in their brief that an exception to the general application of res judicata and collateral estoppel should have been granted in the present case. As previously stated, in considering whether an exception should be granted, we consider such factors as “(1) whether another public policy interest outweighs the interest of finality served by the preclusion doctrines ... (2) whether the incentive to litigate a claim or issue differs as between the two forums ... (3) whether the opportunity to litigate the claim or issue differs as between the two forums . . . and (4) whether the legislature has evinced an intent that the doctrine should not apply.” (Citations omitted; internal quotation marks omitted.) Powell v. Infinity Ins. Co., supra, 282 Conn. 603. Although the plaintiffs’ arguments focus primarily on the third factor, none favors the plaintiffs’ position.

We reiterate that in a commercial eviction action brought pursuant to § 47a-42a, the court hearing such an action properly has before it not only those issues necessary for a proper determination of the parties’ possessory rights in the subject premises, but also any issue that might arise with respect to possessions and personal effects that remain at the subject premises following execution. See General Statutes § 47a-42a (c). Section 47a-42a contains specific provisions that provide for the forfeiture of an evictee’s possessory interests in personal property not removed from the premises prior to eviction and that grant the evictor the right to dispose of any unclaimed property as it deems appropriate. Accordingly, we do not agree with the plaintiffs that the issues they sought to raise in their replevin and civil actions were somehow foreign to the prior proceedings before the housing court or that they lacked a sufficient incentive or opportunity to raise all issues before the housing court concerning the property remaining at or removed from the subject premises and their rights to recover the same. Further, by addressing in § 47a-42a the rights of parties before the housing court relative to any personal property and inventory that might remain on the premises following a commercial eviction, the legislature evinced an intent that issues concerning such property be resolved as part of the eviction action, thereby limiting the need for additional litigation.

III

Finally, the plaintiffs argue that the summary process execution issued by the housing court in the eviction action on October 1, 2010, was not properly returned to that court within sixty days and, therefore, the execution had lapsed and was void as of December 1, 2010, such that “the defendants were under an obligation to obtain a new execution, which would delineate the statutory rights of the plaintiffs, pursuant to § 47a-42a, to set dates for making claim and abandonment.” They further argue that the defendants’ failure to obtain a new execution “clearly circumvented the plaintiffs’ right to claim [their] assets within a certain designated and specific period of time and failed to provide for the forfeiture of possession of personal effects to the defendants by statute.” We find that this argument lacks merit.

The plaintiffs cite to no statute, case law or rule of practice to support their argument that an execution becomes void if not physically returned to court within sixty days. All that is required for a valid execution by statute is that a copy of the execution be served on the summary process defendant and any other parties in occupancy. General Statutes § 47a-42a (b). In the present case, the marshal properly executed the return of service portion of the execution form, a copy of which was attached as exhibit B to the motions for summary judgment, indicating that he served the plaintiffs on October 4, 2010. The defendants were under no obligation to obtain and serve a new execution.

In sum, we conclude that the issues raised in the plaintiffs’ replevin action and civil action either were decided in the eviction action or could have been raised and decided therein, and, therefore, the plaintiffs’ actions are properly barred by the doctrines of res judi-cata and collateral estoppel. We find no error with the decision of the trial court that there are no genuine issues of material fact and that the defendants are entitled to judgments as a matter of law.

The judgments are affirmed.

In this opinion the other judges concurred.

       In September, 2010, Victorian Elegance, LLC, sought to open and vacate the stipulated judgment of possession. Mastriani Realty, LLC, objected. The housing court sustained the objection and no appeal was filed.

       According to correspondences between the parties submitted as evidence with the motions for summary judgment, although the defendants took the position that the contents of the premises had been forfeited and were now legally owned by the defendants, they nevertheless posted signs at the premises giving consignors notice that they would return any specific items to the consignor upon the submission of a claim with proper documentation.

       Attached as exhibits were the following: an affidavit from Tarro; a July 13, 2010 notice of judgment after stipulation; an October 1, 2010 summary process nonresidential eviction; an October 7, 2010 order by the housing court granting the motion for temporary injunction filed by Victorian Elegance, LLC; an October 7, 2010 receipt for a bond payment to the clerk of the housing court; an October 16,2010 housing court order denying Victorian Elegance, LLC’s motion to quash and granting a stay of execution until November 1,2010; a November 6,2010 facsimile from the bankruptcy trustee to counsel for Victorian Elegance, LLC, noting that no one was to remove any property from the premises; a proposed general release of liability; a November 24, 2010 e-mail from the defendants’ counsel to the plaintiffs’ counsel; the July 13,2010 stipulated agreement of the parties; and a November 1, 2010 notice of bankruptcy filing.

       Attached to the defendants’ supplemental memorandum were the following exhibits: several e-mails and letters between the defendants’ counsel and the plaintiffs’ counsel; the November 29, 2010 motion filed by Victorian Elegance, LLC, to extend the time to remove property from the premises, including an inventory list, the opposition filed by Mastriani Realty, LLC, and the housing court’s order denying the motion; a draft general release of liability to be signed by the plaintiffs; a certified letter from the defendants’ counsel to the plaintiffs’ counsel dated December 21, 2010; and a printout from the Judicial Branch website noting that Tarro was arrested for criminal trespass on January 20, 2011.

       General Statutes § 47a-68 provides: “As used in this chapter, sections 51-51v and 51-165, subsection (b) of section 51-278 and section 51-348, ‘housing matters’ means:
      “(1) Summary process;
      “(2) Appeals from the decisions of a fair rent commission under sections 7-148e and 7-148f;
      “(3) Actions and administrative appeals involving discrimination in the sale or rental of residential property;
      “(4) All actions regarding forcible entry and detainer;
      “(5) Actions under the provisions of title 47a, chapter 4121 or section 47-294;
      “(6) All actions involving one or more violations of any state or municipal health, housing, building, electrical, plumbing, fire or sanitation code, including violations occurring in commercial properties, or of any other statute, ordinance or regulation concerned with the health, safety or welfare of any occupant of any housing;
      “(7) All actions under sections 47a-56a to 47a-59, inclusive;
      “(8) All actions for back rent, damages, return of security deposits and other relief arising out of the parties’ relationship as landlord and tenant or owner and occupant;
      “(9) All other actions of any nature concerning the health, safety or welfare of any occupant of any place used or intended for use as a place of human habitation if any such action arises from or is related to its occupancy or right of occupancy.”

       General Statutes § 47a-42a is titled “Eviction of tenant and occupants from commercial property. Disposition of unclaimed possessions and personal effects.” It provides: “(a) Whenever a judgment is entered against a defendant pursuant to section 47a-26, 47a-26a, 47a-26b or 47a-26d for the possession or occupancy of nonresidential property, such defendant and any other occupant bound by the judgment by subsection (a) of section 47a-26h shall forthwith remove himself or herself, such defendant’s or occupant’s possessions and all personal effects unless execution has been stayed pursuant to sections 47a-35 to 47a-41, inclusive. If execution has been stayed, such defendant or occupant shall forthwith remove himself or herself, such defendant’s or occupant’s possessions and all personal effects upon the expiration of any stay of execution. If the defendant or occupant has not so removed himself or herself upon entry of a judgment pursuant to section 47a-26, 47a-26a, 47a-26b or 47a-26d, and upon expiration of any stay of execution, the plaintiff may obtain an execution upon such summary process judgment, and the defendant or other occupant bound by the judgment by subsection (a) of section 47a-26h and the possessions and personal effects of such defendant or other occupant may be removed as provided in this section.
      “(b) The state marshal charged with executing upon any such summary process judgment shall, at least twenty-four hours prior to the date and time of the eviction, use reasonable efforts to locate and notify the defendant or occupant of the date and time such eviction is to take place. Such notice shall include service upon each defendant and upon any other person in occupancy, either personally or at the premises, of a true copy of the summary process execution. Such execution shall be on a form prescribed by the Judicial Department, shall be in clear and simple language and in readable format, and shall contain, in addition to other notices given to the defendant or occupant in the execution, a conspicuous notice, in large boldface type, that a person who claims to have a right to continue to occupy the premises should immediately contact an attorney. Such execution shall contain a notice advising the defendant or occupant that if he or she does not remove such defendant’s or occupant’s possessions and personal effects from the premises by the date and time set for the eviction and thereafter fails to claim such possessions and personal effects from the landlord and pay any removal and storage costs within fifteen days after the date of such eviction, such possessions and personal effects will be forfeited to the landlord.
      “(c) The state marshal who served the execution upon the defendant or occupant as provided in subsection (b) of this section shall return to the premises at the date and time such eviction is to take place. If the defendant or occupant has not removed himself or herself from the premises, the state marshal shall remove such defendant or occupant. If the defendant or occupant has not removed such defendant’s or occupant’s possessions and personal effects from the premises, the plaintiff, in the presence of the state marshal, shall prepare an inventory of such possessions and personal effects and provide a copy of such inventory to the state marshal. The plaintiff shall remove and store such possessions or personal effects or shall store the same in the premises. Such removal and storage or storage in the premises shall be at the expense of the defendant. If such possessions and effects are not called for by the defendant or occupant and the expense of such removal and storage or storage in the premises is not paid to the plaintiff within fifteen days after such eviction, the defendant or occupant shall forfeit such possessions and personal effects to the plaintiff and the plaintiff may dispose of them as the plaintiff deems appropriate.” General Statutes § 47a-42a.

       Given the plaintiffs’ repeated insistence that more than a single day would have been required to remove allpossessions forthe subjectpremises, it is unclear how they ever intended to completely remove everything by noon when the process admittedly had not begun as of the morning of November 1, 2010.