WILLIAMS GROUND SERVICES, INC.
ROBERT F. JORDAN
February 8, 2017
from Superior Court, judicial district of Stamford-Norwalk,
Hon. Edward R. Karazin, Jr., judge trial referee.
D. Russo, III, with whom was Colin B. Con- nor, for the
S. Nakian, for the appellee (plaintiff).
Alvord, Prescott and Bear, Js.
defendant, Williams Ground Services, Inc., appeals from the
judgment rendered, following a bench trial, in favor of the
plaintiff, Robert F. Jordan, on the plaintiff's claim of
payment due for unpaid landscaping and snow plowing services.
On appeal, the defendant claims that the trial court erred by
(1) determining that the statute of limitations had been
tolled because he unequivocally acknowledged the debt and (2)
admitting certain documents that he argues are inadmissible
under various provisions of the Connecticut Code of Evidence.
We affirm the judgment of the trial court.
following facts, as found by the court, and procedural
history are relevant to the resolution of this appeal.
Beginning in approximately 2001, the plaintiff
‘‘performed lawn, cleanup, lawn maintenance, and
snow plowing services'' for the defendant at his
single family home in Darien. These services were provided
annually from 2001 through 2013, and were billed to the
defendant, who made payments on an irregular and infrequent
point, the plaintiff became aware that the defendant's
house was for sale, and the two parties discussed the matter.
When the sale of the home was imminent, the defendant asked
the plaintiff to plow the driveway so that a moving company
could move him out safely. The defendant indicated that the
plaintiff would receive a ‘‘fat check''
at the closing. He also indicated that the outstanding bill
would be paid in full. The plaintiff acceded to the
defendant's request and plowed the
January 6, 2015, the plaintiff commenced this action against
the defendant to recover the outstanding balance due for his
services. The defendant filed an answer and three special
defenses asserting that (1) the plaintiff sought compensation
for services he did not provide, (2) the plaintiff was not
the entity the defendant knew to have performed work on his
property, and (3) the plaintiff was not entitled to the
punitive damages and attorney's fees he claimed. The
parties subsequently submitted pretrial briefs in which the
defendant for the first time raised a statute of limitations
defense as a basis for dismissing the action, and the
plaintiff argued that the continuing course of conduct
doctrine tolled the statute of limitations.
August 18, 2015, following a bench trial, the court issued
its memorandum of decision. The court found that the
defendant had waived any statute of limitations defense by
failing to raise it as a special defense. Alternatively, the
court found that the defendant's several acknowledgments
of the debt and the conduct of the parties tolled the statute
of limitations. The court also found that the defendant had
not proved his first and second special defenses, but it
found, pursuant to his third special defense, that he had
proved that the plaintiff was not entitled to punitive
damages or attorney's fees. Finally, the court found in
favor of the plaintiff on his claim for unpaid landscaping
and snow plowing services, awarded him $32, 558.70 in damages
with taxable costs, and rendered judgment thereon. This
appeal followed. Further facts and procedural history will be
set forth as necessary for the resolution of this appeal.
defendant claims that the court erred in finding that the
statute of limitations was tolled by, inter alia, his
acknowledgments of the debt. We disagree.
addressing the court's determination that the applicable
statute of limitations was tolled by the defendant's
acknowledgments of the debt, we assess the trial court's
reliance in this case on Zatakia v. Ecoair
Corp., 128 Conn.App. 362, 18 A.3d 604, cert. denied, 301
Conn. 936, 23 A.3d 729 (2011). The defendant claims that the
court's reliance on Zatakia is
misplaced. This court held in Zatakia that,
inter alia, the trial court had not committed clear error
when it found that correspondence from the defendant's
president was a clear acknowledgment of indebtedness.
defendant claims on appeal that the court's
‘‘factual analogy'' to Zatakia,
in support of its determination that he acknowledged the
debt, was misplaced because the cases are factually
distinguishable and, thus, its determination that he
unequivocally acknowledged the debt was clear error. We
reject this argument because we disagree with the
defendant's characterization of the manner in which the
court relied on Zatakia. The court quoted
Zatakia for the applicable legal standard to
determine whether an unequivocal acknowledgment of a debt has
tolled the statute of limitations. At no point did the court
refer to or relyon the facts of Zatakia as set forth
by the defendant.
defendant also claims that, under the rule stated in
Zatakia, the conduct of the parties in the present
case was insufficient to infer an unequivocal acknowledgment
of the debt and, thus, the court's determination was
clearly erroneous. We disagree.
[s]tatute of [l]imitations creates a defense to an action. It
does not erase the debt. Hence, the defense can be lost by an
unequivocal acknowledgment of the debt, such as a new
promise, an unqualified recognition of the debt, or a payment
on account. . . . Whether partial payment constitutes
unequivocal acknowledgment of the whole debt from which an
unconditional promise topay can be implied thereby tolling
the statute of limitations is a question for the trier of
fact. . . .
general acknowledgment of an indebtedness may be sufficient
to remove the bar of the statute. The governing principle is
this: The determination of whether a sufficient
acknowledgment has been made depends upon proof that the
defendant has by an express or implied recognition of the
debt voluntarily renounced the protection of the statute. . .
. But an implication of a promise to pay cannot arise if it
appears that although the debt was directly acknowledged,
this acknowledgment was accompanied by expressions which
showed that the defendant did not intend to pay it, and did
not intend to deprive himself of the right to rely on the
[s]tatute of [l]imitations. . . . [A] general acknowledgment
may be inferred from acquiescence as well as from silence, as
where the existence of the debt has been asserted in the
debtor's presence and he did not contradict the
assertion. . . .
review the trial court's finding . . . under a clearly
erroneous standard. . . . [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. . . . We do not examine the record to determine
whether the trier of fact could have reached a conclusion
other than the one reached. Rather, we focus on the
conclusion of the trial court, as well as the method by which
it arrived at that conclusion, to determine whether it is
legally correct and factually supported.'' (Citations
omitted; internal ...