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Williams Ground Services, Inc. v. Jordan

Court of Appeals of Connecticut

June 27, 2017

WILLIAMS GROUND SERVICES, INC.
v.
ROBERT F. JORDAN

          Argued February 8, 2017

         Appeal from Superior Court, judicial district of Stamford-Norwalk, Hon. Edward R. Karazin, Jr., judge trial referee.

          Robert D. Russo, III, with whom was Colin B. Con- nor, for the appellant (defendant).

          Paul S. Nakian, for the appellee (plaintiff).

          Alvord, Prescott and Bear, Js.

          OPINION

          BEAR, J.

         The 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.

         The 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 basis.

         At some 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 driveway.[1]

         On 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.

         On 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.

         I

         The defendant claims that the court erred in finding that the statute of limitations was tolled by, inter alia, his acknowledgments of the debt.[2] We disagree.

         Before 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.[3] 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. Id., 370-71.

         The 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.

         The 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.[4] We disagree.

         ‘‘The [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. . . .

         ‘‘A 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. . . .

         ‘‘We 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 ...


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