Williams Ground Services, Inc. v. Jordan , 174 Conn. App. 247 ( 2017 )

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WILLIAMS GROUND SERVICES, INC. v. ROBERT F.
JORDAN
(AC 38333)
Alvord, Prescott and Bear, Js.
Argued February 8—officially released June 27, 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).
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 land-
scaping 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 Connecti-
cut Code of Evidence. We affirm the judgment of the
trial court.
The following facts, as found by the court, and proce-
dural 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 prop-
erty, 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. Alter-
natively, 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 plain-
tiff 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 tax-
able 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 defen-
dant’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 correspon-
dence from the defendant’s president was a clear
acknowledgment of indebtedness. Id., 370–71.
The defendant claims on appeal that the court’s ‘‘fac-
tual 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 rely on 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 acknowl-
edgment 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 acknowledg-
ment of the whole debt from which an unconditional
promise to pay 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 gov-
erning 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 quotation marks omitted.) Cadle Co. v. Errato,
71 Conn. App. 447, 461–63, 802 A.2d 887, cert. denied,
262 Conn. 918, 812 A.2d 861 (2002); see also Zatakia
v. Ecoair Corp., supra, 128 Conn. 369–70.
In the present case, the court found that the defen-
dant’s several acknowledgments of the debt tolled the
statute of limitations. In support of this conclusion, the
court relied on the testimony of the plaintiff, stating:
‘‘There was testimony by the plaintiff that the defendant
said he was unable to pay the bill. There is testimony
that the defendant said ‘the property had been sold and
the plaintiff would receive a fat check at the closing.’
The defendant said ‘the plaintiff would be paid when
the house was sold.’ ’’ The court also found: ‘‘Exhibit
2 shows payment by the defendant on October 28, 2011,
being check [number] 6067 showing a $500 payment
with a note on the front that it was ‘on account-2011’
indicating to this court that there was money due, and
this was payment on it.’’5
The defendant argues that evidence presented was
insufficient to infer an unequivocal acknowledgment
of the debt. Specifically, he asserts that the plaintiff’s
testimony regarding his promises to pay was ‘‘undocu-
mented, uncorroborated, and self-serving hearsay testi-
mony from the party directly and materially benefitted
by said testimony.’’6 Additionally, he argues that his
testimony contradicts that of the plaintiff. All of these
arguments go to credibility and the weight to be given
to the evidence presented. Credibility and weight of the
evidence are matters for the finder of fact. Baillergeau
v. McMillan, 143 Conn. App. 745, 754 n.2, 72 A.3d 70
(2013).
Having reviewed the record, we determine that the
testimony and other evidence submitted to the court
support the court’s finding that the defendant unequivo-
cally acknowledged the debt. The defendant acknowl-
edges that the $500 payment could be considered as
evidence of his unequivocal acknowledgment of the
debt. He does not challenge any finding of the court
made on the basis of this evidence. He merely claims
that the amount of evidence supporting any such finding
is sparse. Although this evidence concerning the $500
payment, standing alone, could be enough to support
the court’s finding that the defendant acknowledged
the debt,7 the court also considered the defendant’s
various statements that he was unable to pay his out-
standing balance, his promise of a ‘‘fat check’’ upon
closing, and his additional statement that the plaintiff
would be paid when his house was sold. Any testimony
by the defendant to the contrary, the plaintiff’s interest
in the outcome, and the plaintiff’s lack of documenta-
tion and corroboration of the defendant’s acknowledg-
ments, are matters of credibility and weight that we do
not consider independently on appeal. Accordingly, the
defendant has failed to carry his burden of proving that
the court’s finding was clearly erroneous. The court’s
conclusion that the statute of limitations had been tolled
by the defendant’s several acknowledgments of the debt
thus was not error.
II
The defendant also claims that the court erred by
admitting, for the truth of their contents, certain photo-
copies of invoices, which he describes as ‘‘yearly sum-
maries,’’ of the monthly bills allegedly delivered to the
defendant over more than a decade. We disagree.
The following additional procedural facts are relevant
to the resolution of this claim. When the plaintiff sought
to admit the first invoice into evidence, which included
landscaping charges for services performed over the
course of 2001, the defendant objected as follows: ‘‘Your
Honor, I’m going to object on the grounds that this is
an incomplete business record. It has the top cut off
of it. It has no date from when it was created and he
doesn’t really remember the specifics of when it was
created.’’ The court responded: ‘‘The objection is over-
ruled. It goes to weight, not admissibility.’’8
On appeal, the defendant claims that the invoices are
inadmissible because the yearly summaries were not
business records under the legal definition and because
the summaries, as photocopies, were incomplete busi-
ness records and not complete and accurate copies of
the originals sufficient to satisfy § 8-4 (c) of the Connect-
icut Code of Evidence. We reject this argument.
The defendant objected at trial that the invoices were
‘‘incomplete business record[s],’’ and the court, based
on its ruling on the objection, understood his objection
to go to completeness. The defendant did not seek to
clarify or to add other grounds to his objection as each
of the twenty-one other invoices was admitted into evi-
dence.9 The defendant, therefore, failed to preserve an
objection related to a ground other than to lack of
completeness.10
‘‘Our role in reviewing evidentiary rulings of the trial
court is settled. The trial court has wide discretion in
its rulings on evidence and its rulings will be reversed
only if the court has abused its discretion or an injustice
appears to have been done.’’ (Internal quotation marks
omitted.) DiLieto v. County Obstetrics & Gynecology
Group, P.C., 297 Conn. 105, 133, 998 A.2d 730 (2010.
‘‘In order to preserve an evidentiary ruling for review,
trial counsel must object properly. . . . In objecting to
evidence, counsel must properly articulate the basis of
the objection so as to apprise the trial court of the
precise nature of the objection and its real purpose, in
order to form an adequate basis for a reviewable ruling.’’
(Internal quotation marks omitted.) State v. Rivera, 169
Conn. App. 343, 366, 150 A.3d 244 (2016), cert. denied,
324 Conn. 905, 15 A.3d 544 (2017). ‘‘Our review of evi-
dentiary rulings made by the trial court is limited to
the specific legal ground raised in the objection [to the
trial court]. . . . This court reviews rulings solely on
the ground on which the party’s objection is based.
. . . [W]e have explained that, to afford petitioners on
appeal an opportunity to raise different theories of
objection would amount to ambush of the trial court
because, [h]ad specific objections been made at trial,
the court would have had the opportunity to . . .
respond.’’ (Citation omitted; internal quotation marks
omitted.) DiLieto v. County Obstetrics & Gynecology
Group, P.C., supra, 133–34.
Because the defendant’s objection was that the
invoices were incomplete business records, he failed
to preserve his evidentiary claims under §§ 8-4 (a), 10-
2, and 10-5 of the Connecticut Code of Evidence. We,
therefore, do not review these claims.
The defendant also claims that the invoices, as photo-
copies, were not complete and accurate copies of the
originals sufficient to satisfy § 8-4 (c).11 We disagree.
At trial, the defendant examined the plaintiff regard-
ing the invoices prior to the admission of the first yearly
invoice.12 The plaintiff testified that he would leave the
original invoices at the defendant’s home and would
keep a photocopy for his own records. He testified that
the document sought to be admitted into evidence was
one of these photocopies. The defendant asked whether
the plaintiff had testified at his deposition that he gave
‘‘the originals’’ to his attorney. The plaintiff clarified
that he had photocopied the copies that he had kept
for his records, kept those photocopies, and gave his
attorney the copies that he first kept for his records.
Section 8-4 (c) of the Connecticut Code of Evidence
provides that a ‘‘reproduction, when satisfactorily iden-
tified, shall be as admissible in evidence as the original
in any judicial or administrative proceeding . . . .’’
Although the defendant argues that the plaintiff sought
to admit reproductions into evidence, the plaintiff
sought to admit his original business records. His origi-
nal business records, for the purposes of § 8-4 (c), were
the photocopies of the invoices sent to the defendant
that the plaintiff kept for his records. These were the
documents that the plaintiff testified were being admit-
ted into evidence. He did not testify that reproductions
of business records were being submitted into evidence.
The court, therefore, did not abuse its discretion when
it admitted the invoices into evidence. In the circum-
stances of this case, any issue concerning whether they
were substantively complete went to the weight to be
given them and not to their admissibility. See LPP Mort-
gage, Ltd. v. Lynch, 122 Conn. App. 686, 699 n.11, 1
A.3d 157 (2010) (‘‘[B]usiness records do not carry any
presumption of accuracy merely because they are
admissible. The credibility of such records remains a
question for the trier of fact.’’ [Internal quotation
marks omitted.]).
In summary, the court’s finding of several acknowl-
edgments of the debt by plaintiff was not clearly errone-
ous. The court did not err in concluding that the
applicable statute of limitations was tolled by the defen-
dant’s acknowledgments of the debt. The court did not
abuse its discretion in admitting the plaintiff’s business
records into evidence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The court also found that prior to the sale of the defendant’s real property,
some confusion occurred because the plaintiff improperly filed a mechanic’s
lien on the land records for the estimated amount of his services, but money
was held out at the closing to satisfy any damages awarded to the plaintiff
from any legal action.
2
We need not reach the defendant’s claim that the court improperly found
that he waived his statute of limitations defense by failing to raise it as a
special defense, or that the statute of limitations was tolled by the continuing
course of conduct doctrine because we affirm the court’s alternative finding
that the defendant’s acknowledgments of the debt tolled the statute of limi-
tations.
3
The defendant also claims that an ancient case, Weed v. Bishop, 7 Conn.
128 (1828), controls. The court in Weed held that a creditor, as party to
the case, was incompetent to testify to an acknowledgment of a debt. Id.,
131–32. The defendant failed to raise Weed before the trial court as the
controlling law in this case regarding the acknowledgment of the debt.
Accordingly, the defendant failed to preserve his claim that the plaintiff was
incompetent to testify to the defendant’s acknowledgment of the debt. See
Jalbert v. Mulligan, 153 Conn. App. 124, 143–44, 101 A.3d 279, cert. denied,
315 Conn. 901, 104 A.3d 107 (2014). Nevertheless, the defendant’s reliance
on Weed is misplaced because the General Assembly abolished the general
common-law rule upon which Weed was based nearly 170 years ago. See
State v. James, 211 Conn. 555, 560, 560 A.2d 426 (1989) (‘‘[i]n 1848 the
common law disability of parties to testify as witnesses was removed by a
statute now incorporated in General Statutes § 52-145 [a]’’).
4
We note that the court appears to have raised sua sponte the tolling
doctrine on the basis of the defendant’s several acknowledgments of his
debt to the plaintiff. At trial, the defendant did not object to the court’s sua
sponte insertion of such tolling doctrine into the case, and he has not raised
the issue on appeal as it relates to any of his claims. We thus do not consider
whether the court erred by inserting and relying on that doctrine.
5
The defendant asserts that the court improperly considered a $2500
payment made by him in 2012 as part of its determination that he acknowl-
edged the debt. As the defendant states, however, the court found that the
payment was made as an advance payment and was made ‘‘in order to
induce the plaintiff to continue working.’’ The court, thus, did not consider
this payment in determining that the defendant unequivocally acknowledged
the debt.
6
As statements of a party opponent, the plaintiff’s testimony about the
defendant’s statements falls within an exception to the hearsay rule. Conn.
Code Evid. § 8-3 (1).
7
Having concluded that the defendant had waived any statute of limita-
tions defense, the court did not determine whether the three year statute
of limitations for oral contracts, General Statutes § 52-581, or the six year
statute of limitations for written contracts, General Statutes § 52-576, would
apply to this case. The $500 payment made in 2011 could have tolled the
six year statute of limitations if it applied. Because there also was evidence
that the defendant acknowledged the debt within three years of the com-
mencement of the action, we need not decide which statute applies.
8
The defendant made his objection to the first landscaping bill for 2001.
He seems to have attempted to maintain his objection on the same grounds
with respect to other billing documents, stating, ‘‘And if you’re comfortable
with it Your Honor, for expediency purposes, I don’t need to voir dire every
single invoice that looks like this,’’ to which the court responded, ‘‘Okay.’’
The plaintiff submitted twelve other similar annual landscaping invoices,
eight snow plowing invoices covering 2003 through 2013, and a single invoice
for extra work in 2005, 2008, 2011, and 2013. We assume that the defendant’s
objection was maintained for all of these documents even though these
documents arguably differ.
9
See footnote 8 of this opinion.
10
The defendant also claims that the invoices were inadmissible because
the plaintiff failed to establish that the documents were business records
under § 8-4 (a) of the Connecticut Code of Evidence; that the plaintiff
did not establish that the original documents qualified as summaries of
voluminous writings or that the documents from which the summaries were
prepared were admissible business records sufficient to satisfy § 10-5 of the
Connecticut Code of Evidence; and that the plaintiff failed to establish
that the summaries satisfied the best evidence rule under § 10-2 of the
Connecticut Code of Evidence. These claims are not preserved, and, there-
fore, we do not discuss them.
11
Section 8-4 (c) of the Connecticut Code of Evidence provides in relevant
part: ‘‘[I]f any person in the regular course of business has kept or recorded
any memorandum, writing, entry, print, representation or combination
thereof, of any act, transaction, occurrence or event, and in the regular
course of business has caused any or all of them to be recorded, copied or
reproduced by any photographic, photostatic, microfilm, microcard, minia-
ture photographic or other process which accurately reproduces or forms
a durable medium for so reproducing the original, the original may be
destroyed in the regular course of business unless its preservation is other-
wise required by statute. The reproduction, when satisfactorily identified,
shall be as admissible in evidence as the original in any judicial or administra-
tive proceeding, whether the original is in existence or not, and an enlarge-
ment or facsimile of the reproduction shall be likewise admissible in
evidence if the original reproduction is in existence and available for inspec-
tion under direction of court. The introduction of a reproduced record,
enlargement or facsimile shall not preclude admission of the original.’’
(Emphasis added.) Section 8-4 (c) of the Connecticut Code of Evidence
was amended in 2015 to make technical changes that are not relevant to
this appeal.
12
The following exchange occurred between the defendant’s counsel and
the plaintiff:
‘‘Q. Mr. Williams, is this a complete copy of the original?
‘‘A. Yes, as far as I know.
‘‘Q. It’s not cut off at the top?
‘‘A. No. Well, Williams Ground Service is in there. Sometimes when you
put it in the copy machine it cuts it off.
‘‘Q. But it is not a complete copy of the original invoice?
‘‘A. It looks like one for me, except for the name at the top.
‘‘Q. So it is cut off on the top?
‘‘A. Yes.
‘‘Q. Is [it] possible there’s other writing up there that we can’t see?
‘‘A. It would just say Williams Ground Service.
‘‘Q. Where are these original invoices?
‘‘A. These are the only ones that I have. I—when I made these I gave the
originals, left them at [the defendant’s] and I keep the copy.
‘‘Q. Didn’t you say the other day you gave the originals to [your attorney]?
‘‘A. In other words I copied and gave them to him off copies that I had.
The originals—when I put the original bill, I would turn the originals in and
I would keep a copy for myself. Okay. So—
‘‘Q. Oh, turn them you mean give them to [the defendant]?
‘‘A. That’s correct. So then I would copy the bills I have and those are
the bills that I gave to [my attorney].’’