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JAVIER VILLANUEVA v. RAFAEL VILLANUEVA
(AC 43619)
Moll, Cradle and Clark, Js.
Syllabus
The plaintiff sought to recover damages from the defendant, his brother, for
breach of an implied in fact contract. The plaintiff started a landscaping
company and, although the defendant started working for the plaintiff
as an employee, they eventually became de facto equal partners, sharing
the profits and management of the business. No written partnership
agreement was ever entered into by the parties. At one point, the defen-
dant formed a limited liability company with himself as the sole member
because the plaintiff lacked a tax identification number, but the business
of the LLC was a continuation of the landscape company started by the
plaintiff and the parties remained partners. The defendant later locked
the plaintiff out of the landscaping business, taking all the customers,
crew, tools, vehicles, and equipment along with all the cash in two bank
accounts, leaving behind certain masonry/tree equipment and vehicles.
At that time, landscaping represented 90 percent of the business income
and the portion left to the plaintiff represented only 10 percent of the
revenue. The trial court found that an implied partnership existed
between the parties and that the defendant breached the terms of the
partnership agreement, and it rejected the defendant’s special defenses.
From the judgment rendered for the plaintiff, the defendant appealed
to this court. Held:
1. The trial court’s finding that there was an implied partnership agreement
between the parties was not clearly erroneous; the court’s finding was
supported by ample evidence in the record that the parties regarded
each other as partners, including evidence that both the plaintiff and
the defendant were compensated by withdrawals from the business
account for personal expenses, they jointly managed the business and
shared its profits, and they jointly purchased real estate using corpo-
rate funds.
2. The trial court did not err in concluding that the plaintiff provided credible
evidence of his damages; the court had broad discretion in determining
its award of damages and, although the plaintiff’s testimony was less
than certain at times, the court was entitled to weigh that testimony,
assess its reliability and credibility, and afford it whatever weight it
deemed appropriate in concluding that the testimony, including testi-
mony that when the defendant locked the plaintiff out of the business
he took control of eighty-five customer accounts, including two condo-
minium accounts worth $20,000, and took possession of several trucks
and large pieces of landscaping equipment, provided sufficient evidence
to enable the court to make a fair and reasonable determination as to
the amount of damages.
3. The trial court properly concluded that the plaintiff’s action was governed
by the six year statute of limitations (§ 52-576 (a)); the plaintiff’s one
count complaint sounded in breach of an implied contract and did not
assert a claim sounding in tort.
Argued April 22—officially released July 20, 2021
Procedural History
Action to recover damages for breach of contract,
brought to the Superior Court in the judicial district of
Stamford-Norwalk, where the matter was tried to the
court, Krumeich, J.; judgment for the plaintiff, from
which the defendant appealed to this court. Affirmed.
John R. Hall, for the appellant (defendant).
Mark M. Kratter, for the appellee (plaintiff).
Opinion
CRADLE, J. In this case arising from a dispute
between two brothers who operated a landscaping busi-
ness together, the defendant, Rafael Villanueva, appeals
from the judgment of the trial court, rendered after a
court trial, in favor of the plaintiff, Javier Villanueva,
and awarding the plaintiff damages in the amount of
one half of the value of the business assets that the
defendant maintained following the dissolution of that
business. On appeal, the defendant claims that the court
erred in finding that (1) an implied partnership existed
between the parties, (2) the plaintiff provided credible
evidence of his damages, and (3) the plaintiff’s action
was not barred by the statute of limitations. We affirm
the judgment of the trial court.1
The trial court set forth the following relevant facts.
‘‘In 2005, [the plaintiff] started a small landscaping com-
pany, known as Villanueva Landscaping, that mowed
lawns and did some patching and sealing pavement
driveways. [The defendant] started working for [the
plaintiff] in 2007; [the defendant] worked for him ini-
tially as an employee, but as the business grew the
brothers became de facto equal partners, sharing the
profits, and the management of the business. No written
partnership agreement was ever entered into by the
brothers. The brothers split their duties, as over time,
one crew did landscaping and the other did masonry
and tree work. [The plaintiff] worked on increasing the
customer base and supervised a masonry/tree crew in
the field; [the defendant] took over as bookkeeper and
was responsible for paperwork, but also supervised the
landscaping crew. The business grew from approxi-
mately twelve to fifteen customers during the first years,
to approximately fifty customers in 2009, when they
purchased a customer list from another landscaper,
to approximately eighty-five customers in 2014. The
number of workers grew from [the plaintiff] in 2005,
to the original crew of two, [the defendant] and [the
plaintiff], in 2007, to seven workers divided into two
crews of four and three by 2014.
‘‘Although initially [the plaintiff] received customer
payments, [the defendant] took over the back-office
work, including all billing and banking. The business
deposited revenues into two bank accounts at Webster
Bank and Bank of America, controlled by [the defen-
dant]. [The plaintiff] did not have a tax [identification]
number so the business accounts were opened by [the
defendant] and he was in charge of deposits and with-
drawals. Funds were withdrawn from the accounts by
both brothers as needed to pay their personal expenses
rather than drawing a salary.2 On May 24, 2011, [the
defendant] formed Villanueva Landscaping, LLC, with
himself as sole member. The reason [the plaintiff] was
not made a member was that he lacked a tax [identifica-
tion] number, but the business of the LLC was the con-
tinuation of Villanueva Landscaping and the brothers
remained partners.
‘‘Sometime in 2014, [the plaintiff] found himself
locked out of the landscaping business as [the defen-
dant], without warning, took all the customers, crew,
tools, vehicles and equipment used in the landscaping
side of the business, together with all [of] the cash in
the accounts.3 [The defendant] left behind the masonry/
tree equipment and vehicles. In 2014, landscaping fees
represented 90 [percent] of the business income. The
portion left to [the plaintiff], the masonry and tree work,
represented 10 [percent] of revenues. Although [the
defendant] referred to the business being ‘divided’ in
early 2014, the credible evidence is that there was no
discussion or agreement about splitting the business,
but, rather [the defendant] imposed the division on [the
plaintiff] when he took over the landscaping portion of
the business as his own, along with the funds in the
accounts.’’
By way of a one count complaint dated June 19, 2018,
the plaintiff commenced this action alleging the breach
of an ‘‘unwritten and unspoken implied contract’’
between the parties. In response, the defendant filed
an answer and three special defenses. By way of special
defense, the defendant alleged that the plaintiff’s claim
was barred by the three year statute of limitations for
an oral contract pursuant to General Statutes § 52-581
and/or the three year statute of limitations for conver-
sion pursuant to General Statutes § 52-577. The defen-
dant also alleged that the plaintiff’s claim was barred
by the doctrine of laches and that he was entitled to
a setoff by the plaintiff’s ‘‘retention of certain of the
business assets in which both parties had an interest.’’
On October 30, 2019, following a brief court trial at
which both parties testified, the court filed a memoran-
dum of decision, wherein it found that an implied part-
nership existed between the parties and that the defen-
dant breached the terms of the implied partnership
agreement. The court rejected the defendant’s special
defenses, and awarded damages to the plaintiff in the
amount of $86,500, representing one half of the value
of the partnership property that had been taken by the
defendant. This appeal followed.
I
The defendant first contends that the court erred in
finding an implied partnership agreement between the
parties. We disagree.
‘‘It is well settled that the existence of an implied in
fact contract is a question of fact for the trier. . . .
Accordingly, our review is limited to a determination
of whether the decision of the trial court is clearly
erroneous. 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. . . . Because it is the trial court’s function
to weigh the evidence and determine credibility, we
give great deference to its findings. . . . In reviewing
factual findings, [w]e do not examine the record to
determine whether the [court] could have reached a
conclusion other than the one reached. . . . Instead,
we make every reasonable presumption . . . in favor
of the trial court’s ruling. . . .
‘‘With respect to implied in fact contracts, we have
recognized that [w]hether [a] contract is styled express
or implied involves no difference in legal effect, but
lies merely in the mode of manifesting assent. . . . A
true implied [in fact] contract can only exist [however]
where there is no express one. It is one which is inferred
from the conduct of the parties though not expressed
in words.’’ (Citations omitted; internal quotation marks
omitted.) Connecticut Light & Power Co. v. Proctor,
324 Conn. 245, 258–59, 152 A.3d 470 (2016).
Here, the court found that ‘‘there is strong evidence
the parties were de facto partners.’’ The court reasoned:
‘‘Although perhaps [the] plaintiff initially hired [the]
defendant as an employee, the credible evidence is that,
in later years, they regarded each other as partners
compensated by withdrawals from the business
accounts for personal expenses, which may be charac-
terized as draws and distributions; not salary.’’ The
court further explained: ‘‘Although they divided their
responsibilities between front office and back office,
and by areas of the business, landscaping and paving,
they acted as mutual agents and jointly managed the
business and shared its profits. The LLC was formed to
facilitate the business’ finances, banking and reporting
but, as between themselves, the brothers remained gen-
eral partners. Their joint purchase of real estate using
corporate funds epitomized the informal understanding
between the brothers. The informal nature of distribu-
tions and draws, and the absence of contrary credible
proof, suggests they were equal partners. The totality
of evidence satisfied the test for formation of a partner-
ship . . . .’’
The defendant argues that, ‘‘[w]hile the actions of
the parties as found by the trial court in this matter
would appear to provide a basis for finding an implied
partnership agreement, such a finding cannot survive
the plaintiff’s own denial that any such agreement
existed.’’ Although the defendant accurately recounts
the plaintiff’s testimony denying the existence of a part-
nership agreement, the court’s finding that, by his con-
duct, the plaintiff manifested an intent to operate the
business alongside the defendant is amply supported
by the record. We therefore conclude that the court’s
finding of an implied partnership was not clearly errone-
ous.
II
The defendant next claims that the court erred in
concluding that the plaintiff provided credible evidence
of his damages. We are not persuaded.
‘‘Well established legal principles govern our review
of damage awards. In an action for breach of contract,
[t]he plaintiff has the burden of proving the extent of
the damages suffered. . . . Although the plaintiff need
not provide such proof with [m]athematical exactitude
. . . the plaintiff must nevertheless provide sufficient
evidence for the trier to make a fair and reasonable
estimate. . . . Our Supreme Court has held that [t]he
trial court has broad discretion in determining damages.
. . . The determination of damages involves a question
of fact that will not be overturned unless it is clearly
erroneous. . . . In a case tried before a court, the trial
judge is the sole arbiter of the credibility of the wit-
nesses and the weight to be given specific testimony.
. . . On appeal, we will give the evidence the most
favorable reasonable construction in support of the ver-
dict to which it is entitled. . . . In other words, we are
constrained to accord substantial deference to the fact
finder on the issue of damages. . . . Under the clearly
erroneous standard, we will overturn a factual finding
only if there is no evidence in the record to support it
. . . or [if] 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.’’ (Citations omitted; internal quotation
marks omitted.) Northeast Builders Supply & Home
Centers, LLC v. RMM Consulting, LLC, 202 Conn. App.
315, 353, 245 A.3d 804, cert. denied, 336 Conn. 933, 248
A.3d 709 (2021).
In addressing damages here, the court reasoned: ‘‘The
plaintiff here has not sought lost profits or an account-
ing, but rather has claimed damages based on the value
of the assets taken by the] defendant. The defendant
has asserted the right to [a] setoff for the value of assets
retained by the plaintiff. Neither party has provided
evidence as to the value of the business as of the split-
up or today or what each would have received in a
distribution upon liquidation, but rather have based
their claims for damages and [a] setoff on very incom-
plete and subjective evidence of the value of all the
partnership property at the time of the split-up.4 The
defendant took assets with a minimum value of $173,000
based on the most credible testimony as to historic cost
of equipment and customer list purchase pricing used
to approximate their value in 2014. If the partnership
had sold these assets that is the minimum amount that
would have been available for distribution assuming all
other partnership liabilities and revenues off set. The
evidence as to the value of assets retained by the plain-
tiff is sketchy at best, and [the] defendant abandoned
those assets to the plaintiff when he walked out with
the landscaping business, so the court declines a set
off. The plaintiff is awarded one-half of the value of the
partnership property taken by the defendant, $86,500,
as damages for breach of the partnership agreement.’’
In challenging the trial court’s award of damages,
the defendant argues that ‘‘[t]he ‘very incomplete and
subjective evidence’ [that] the court had before it was
exclusively the result of the plaintiff’s testimony—no
documentation (invoices, repair bills, parts orders, cus-
tomer lists) was introduced, [nor was there any testi-
mony of] nonparty witnesses. . . . [T]his almost total
absence of any contemporaneous record of the value
of the assets should have raised serious credibility
[questions] for the court.’’ Although the only evidence
of damages was the plaintiff’s testimony, which, at
times, was less than certain, the trial court, as the trier
of fact, was entitled to weigh the plaintiff’s testimony,
assess its reliability and credibility, and afford it what-
ever weight it deemed appropriate. The plaintiff testi-
fied that, when he was locked out of the business, the
defendant assumed control of approximately eighty-
five customer accounts, including two condominium
complexes. The plaintiff testified that the condominium
accounts were each worth $20,000, and the individual
accounts were worth between $1000 and $1500 each.
The plaintiff also testified that the defendant maintained
possession of several trucks and various larger pieces
of landscaping equipment, including a trailer, a chipper,
a backhoe, and multiple commercial mowers. The plain-
tiff testified to the approximate value of each vehicle
and larger piece of landscaping equipment, and also
testified that the defendant took possession of approxi-
mately $7500 worth of smaller tools, including hand
tools, ropes, backpack blowers, weed wackers and a
sprayer. On the basis of the foregoing, the court found
that the plaintiff met his burden of providing the court
with sufficient evidence to enable the court to make a
fair and reasonable determination of the amount of
damages awarded to the plaintiff. Having reviewed the
evidentiary record before the court and affording the
trial court the broad discretion to which it is entitled
in awarding damages, we are not convinced that the
damages award was clearly erroneous or that a mistake
was made.
III
The defendant finally argues that the trial court erred
in rejecting his special defense that the plaintiff’s action
was barred by the statute of limitations under § 52-577.5
The trial court rejected the defendant’s argument that
the plaintiff’s action was barred by the statute of limita-
tions with little discussion. The court held: ‘‘The statute
of limitations for breach of an implied contract is six
years pursuant to [General Statutes] § 52-576 (a). This
action was timely commenced less than four years after
the defendant took partnership property to start his
own landscaping business.’’ The defendant claims that
the trial court applied the wrong statute of limitations,
arguing that the plaintiff’s cause of action is governed
by the three year statute of limitations for conversion
or breach of fiduciary duty, set forth in § 52-577.
‘‘The determination of which, if any, statute of limita-
tions applies to a given action is a question of law over
which our review is plenary.’’ Government Employees
Ins. Co. v. Barros, 184 Conn. App. 395, 398, 195 A.3d
431 (2018). The plaintiff’s one count complaint sounded
in breach of an implied contract and did not assert a
claim sounding in tort. We therefore agree with the
trial court’s conclusion that the plaintiff’s action was
governed by the six year statute of limitations set forth
in § 52-576 (a).
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant also claims that the court erred in finding that the plain-
tiff’s claim was not barred by the doctrine of laches. The trial court summarily
rejected the defendant’s laches argument in a footnote, in which it stated:
‘‘The doctrine of laches is not applicable to this action and is not warranted
under the facts found by the court, including lack of material prejudice to
the defendant from the delay.’’ On appeal, the defendant’s claim that he was
prejudiced by the plaintiff’s delay in commencing this action appears to be
limited to his argument that the plaintiff’s testimony was riddled by his
‘‘fallible memory.’’ This claim is unavailing.
2
‘‘They also withdrew funds from the business accounts in 2014 to jointly
purchase a house for $150,000, the title to which was in both their names,
which they owned 50/50.’’
3
‘‘[The plaintiff] testified that [the defendant] had emptied out the garage
where the landscaping equipment was stored and called the police on [the
plaintiff] when he tried to reclaim one of the vehicles.’’
4
‘‘The partnership has not been dissolved or wound down formally . . . .
Neither party has sought an accounting from the other. Each partner
accepted the de facto dissolution and winding down that occurred in 2014
and conducted their respective businesses separately since then. The Appel-
late Court has approved direct damages actions between partners in lieu
of formal accountings to wind up a partnership in cases where no complex
accounting is necessary. Chioffi [v. Martin], 181 Conn. App. 111, 145, 186
A.3d 15 (2018). The parties have waived any rights to an accounting.’’
5
The defendant does not challenge on appeal the trial court’s rejection
of his special defense based on the statute of limitations under § 52-581.