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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 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

defendantforthe firsttime raised a statute oflimitations

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 courtreferto orrely 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 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 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 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 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 defendant’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 ‘‘undocumented, uncorroborated, and self-serving hearsay testimony 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 unequivocally acknowledged the debt. The defendant acknowledges 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 outstanding 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 documentation and corroboration of the defendant’s acknowledgments, 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 thatthe statute oflimitations 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 photocopies of invoices, which he describes as ‘‘yearly summaries,’’ of the monthly bills allegedly delivered to the

defendant over more than a decade. We disagree.

The following additional proceduralfacts 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 overruled. 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 business records and not complete and accurate copies of

the originals sufficientto satisfy § 8-4 (c) oftheConnect-
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 evidence.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

orderto 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 evidentiary 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 photocopies, 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 regarding 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 identified, 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 original 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 admitted 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 circumstances 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 Mortgage, 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 acknowledgments of the debt by plaintiff was not clearly erroneous. The court did not err in concluding that the

applicable statute of limitations was tolled by the defendant’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 priorto 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 limitations.

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 acknowledged 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 limitations 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 commencement 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, therefore, 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, miniature 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 otherwise required by statute. The reproduction, when satisfactorily identified,

shall be as admissible in evidence as the original in any judicial or administrative proceeding, whether the original is in existence or not, and an enlargement or facsimile of the reproduction shall be likewise admissible in

evidence if the original reproduction is in existence and available for inspection 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].’’