Seale v. GeoQuest, Inc.

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DANIEL C. SEALE v. GEOQUEST, INC., ET AL.
(AC 41407)
DiPentima, C. J., and Alvord and Moll, Js.

Syllabus

The plaintiff sought to recover damages from the defendant G Co. for negli-
gence and negligent misrepresentation in connection with G Co.’s reme-
diation of soil contamination on certain real property purchased by the
plaintiff. The matter was tried to the court, which concluded that G Co.
had not breached its duty of care to the plaintiff and rendered judgment
in favor of G Co. On the plaintiff’s appeal to this court, held that the
trial court’s finding that G Co. had not breached its duty of care to the
plaintiff was not clearly erroneous and was supported by the evidence
in the record: there was testimony from three licensed environmental
professionals indicating that G Co. had followed industry standards and
had not violated any state or municipal regulations, that the property
effectively had been remediated in that the contaminated soil that
remained on the property was in accordance with certain state agency
remediation guidance documents, and that the plaintiff had incorrectly
interpreted a soil remediation report prepared by G Co., and the trial
court, as the sole arbiter of the credibility of those witnesses, determined
the proper weight to be accorded to their specific testimony and bore
the responsibility of resolving the conflicting testimony as to whether
G Co., through the actions of its agent, had breached the duty of care
regarding the remediation of the property; moreover, in the absence of
a finding that G Co. breached its duty of care, G Co. did not make a
misrepresentation of fact as to the conditions of the soil on the property.
Argued February 4–officially released April 30, 2019

Procedural History

Action to recover damages for, inter alia, the named
defendant’s alleged negligence, and for other relief,
brought to the Superior Court in the judicial district of
Stamford-Norwalk and tried to the court, Dubay, J.;
judgment for the named defendant, from which the
plaintiff appealed to this court. Affirmed.
Alan R. Spirer, for the appellant (plaintiff).
Cullen W. Guilmartin, with whom, on the brief, was
Regen O’Malley, for the appellee (named defendant).
Opinion

PER CURIAM. The plaintiff, Daniel C. Seale, appeals
from the judgment of the trial court, following a bench
trial, rendered in favor of the defendant, GeoQuest, Inc.1
The dispositive issue on appeal is whether the court
properly determined that the defendant did not violate
the standard of care. We affirm the judgment of the
trial court.
In March, 2014, the plaintiff entered into a contract
to purchase 11 Minute Man Hill in Westport from a
third-party seller. Prior to the closing, the third-party
seller had an underground storage tank removed from
the property. The third-party seller learned that this
storage tank had leaked and contaminated the soil on
the property. The third-party seller engaged an excava-
tion company to remove the tank and this company, in
turn, hired the defendant to remediate the soil contami-
nation.
On August 12, 2014, the defendant, acting through its
employee Jay Soltis, a licensed environmental profes-
sional and the defendant’s vice president of environ-
mental services, arrived on the property to supervise
the remediation. As part of this process, the defendant
removed approximately forty-one tons of soil. On
August 13, 2014, Soltis wrote a report and e-mailed it
to the excavation company that day. The report pro-
vided, in relevant part, as follows: ‘‘Excavation to the
north was limited due to structural concerns for the
site home (per [Connecticut Department of Energy and
Environmental Protection (CT DEEP)] [G]uidance,
excavation is not required when the structural stability
of a building may be compromised). With the exception
of the northern sidewall, excavation continued until
no visible or olfactory indications of contamination
remained in the soils. . . . Based on the results of the
confirmation sampling program, the fuel oil release
has been effectively remediated in site soil, and no
further environmental investigation or remediation
is warranted at this time.’’ (Emphasis added.) Soltis
attached the test results from the laboratory, which
showed that the soil contamination was below the rele-
vant detection level of 500 milligrams per kilogram.
This report subsequently was provided to the plaintiff
and his attorney.
In 2015, the plaintiff decided to sell the property after
having demolished the home that had existed thereon.
The purchaser, SIR Development, LLC, engaged a reme-
diation contractor, EnviroShield, Inc., to determine
whether any fuel contamination existed on the prop-
erty. EnviroShield, Inc., estimated that between 300 and
400 tons of contaminated soil needed to be removed,
and indicated that the source of this contamination was
‘‘beneath the former residence location.’’
The plaintiff then hired Mark A. Gottlieb, a licensed
environmental professional, to further investigate the
soil contamination at the property. Gottlieb supervised
the remediation and issued a December 1, 2015 report
indicating that approximately 130 tons of soil had been
removed. The plaintiff had the property remediated at
a cost of approximately $45,000.
In April, 2016, the plaintiff commenced this action.
The plaintiff’s complaint set forth two counts sounding
in negligence and negligent misrepresentation. The
court found that the plaintiff had failed to meet his
burden of proof as to these causes of action. ‘‘The three
licensed environmental professionals [who had testified
at the trial, Gottlieb, Soltis, and Marc I. Casslar, the
president of the defendant] unanimously agreed that
the [defendant] did not violate any state or municipal
rule or regulation. The contaminated soil left on site
was in accordance with the CT DEEP Guidance. The
court finds that the plaintiff failed to prove any breach
of reasonable care on the part of the [defendant].’’
Accordingly, the court rendered judgment in favor of
the defendant. This appeal followed.2 Additional facts
will be set forth as needed.
The dispositive issue in this appeal is whether the
defendant breached its duty of care. In his appellate
brief, the plaintiff argues that the defendant’s report
indicated that the soil at the property had been ‘‘ ‘effec-
tively remediated’ ’’ and that ‘‘ ‘no further environmental
investigation or remediation is warranted at this time.’ ’’
He specifically contends that the defendant deviated
from the standard of care for a licensed environmental
professional by failing (1) to excavate to a sufficient
depth to detect and remove accessible contaminated
soil, (2) to take samples from the bottom of the excava-
tion, (3) to include photographs and a site sketch in
its report, (4) to specifically state in its report that
contaminated soil remained on the property, and (5)
to specifically state that further environmental investi-
gation was warranted. The defendant counters that the
court properly relied on the evidence to support its
conclusion that the defendant had not breached its duty
to the plaintiff. We agree with the defendant.3
As noted, the plaintiff’s complaint set forth two
causes of action: negligence4 and negligent misrepre-
sentation.5 The court concluded that the defendant had
not violated any state or municipal regulations and that
the contaminated soil that remained on the property
was in accordance with the CT DEEP Guidance. There-
fore, the court reasoned that the plaintiff had failed to
prove that the defendant had breached a duty owed to
the plaintiff as a result of its conclusion that the prop-
erty effectively had been remediated and that no further
investigation or remediation was warranted at that time.
As a corollary, the court determined that the defendant
had not made a misrepresentation of fact to the plaintiff
that it knew, or should have known, was false.
The plaintiff argues that the court improperly found
that the defendant had not breached its duty of care.
The determination of a breach of duty is reserved for
the trier of fact. Neuhaus v. DeCholnoky, 280 Conn.
190, 217, 905 A.2d 1135 (2006); see also Mirjavadi v.
Vakilzadeh, 310 Conn. 176, 191, 74 A.3d 1278 (2013);
Behlman v. Universal Travel Agency, Inc., 4 Conn. App.
688, 691, 496 A.2d 962 (1985).
‘‘Because the . . . claim challenges the sufficiency
of the evidence, which is based on the court’s factual
findings, the proper standard of review is whether, on
the basis of the evidence, the court’s finding . . . was
clearly erroneous. . . . In other words, a court’s find-
ing of fact is clearly erroneous and its conclusions
drawn from that finding lack sufficiency 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.
. . . Moreover, we repeatedly have held that [i]n a [pro-
ceeding] tried before a court, the trial judge is the sole
arbiter of the credibility of the witnesses and the weight
to be given specific testimony. . . . Where there is con-
flicting evidence . . . we do not retry the facts or pass
on the credibility of the witnesses. . . . The probative
force of conflicting evidence is for the trier to deter-
mine.’’ (Internal quotation marks omitted.) Arroyo v.
University of Connecticut Health Center, 175 Conn.
App. 493, 513, 167 A.3d 1112, cert. denied, 327 Conn.
973, 174 A.3d 192 (2017).
In the present case, Gottlieb testified during cross-
examination that Soltis’ report indicated to him, as a
licensed environmental professional, that the defendant
had been aware of contaminated soil under the home.
He further stated that the plaintiff incorrectly interpre-
ted Soltis’ report as stating that all the contaminated
soil had been removed.6 Gottlieb acknowledged that it
would have been impossible for the defendant to ensure
that the property was completely free of contaminated
soil due to the presence of the home. Gottlieb could
not identify any state or municipal law that the defen-
dant had violated with respect to its work on the prop-
erty. Finally, he conceded that even if the defendant
had performed the remediation on the property in the
exact manner that Gottlieb described, contaminated
soil nevertheless would have been present under the
foundation of the then-existing home.
Soltis testified that the defendant had been hired to
assist in the remediation of the property in August, 2014.
At that time, he was unaware of any plan to demolish
the home then existing on the property, and Soltis testi-
fied that if the home had not been demolished, no addi-
tional remediation would have been necessary. He
further opined that his report could not be read as
asserting that no contaminated soil remained on the
property. He stated that leaving the contaminated soil
in the northern sidewall was permissible under the CT
DEEP Guidance and that, pursuant to that document,
the defendant had completed an effective remediation.
Finally, he noted that the defendant’s work on the prop-
erty followed industry standards.
Casslar testified that the Soltis report complied with
industry customs and that he found it to be accurate
and intelligible. He further noted his disagreement with
Gottlieb’s report and testimony regarding the remedia-
tion of the property supervised by Soltis. Casslar also
described several flaws contained in Gottlieb’s report.
In the present case, the trial court acted as the sole
arbiter of the credibility of the licensed environmental
professionals and determined the proper weight to be
accorded their specific testimony. Arroyo v. University
of Connecticut Health Center, supra, 175 Conn. App.
513. Furthermore, the court bore the responsibility of
resolving the conflicting testimony as to whether the
defendant, through the action of Soltis, had breached
the duty of care regarding the remediation of the prop-
erty. Id. We cannot say that the court’s finding was
clearly erroneous. Evidence existed in the record to
support the finding that the defendant had not breached
its duty of care, and after reviewing the record, this
court is not left with the definite and firm conviction
that a mistake has been committed.
The court concluded that the defendant had not
breached its duty of care. Furthermore, in the absence
of any such breach, the defendant did not make a mis-
representation of fact as to the conditions of the soil
at the property. As a result, we conclude that the court
properly rendered judgment in favor of the defendant.
The judgment is affirmed.
1
Although the summons and complaint identified ‘‘GeoQuest, Inc.,’’ and
‘‘Jay Soltis’’ as defendants, the marshal’s return of service indicates that
only GeoQuest, Inc., had been served with a copy of the summons and
complaint on April 18, 2016. Following the filing of the answer and special
defenses, all references in the court filings and pleadings have identified
GeoQuest, Inc., as the sole defendant. In its memorandum of decision,
however, the trial court referred to GeoQuest, Inc., and Jay Solits as the
defendants. In this opinion, we refer to GeoQuest, Inc., as the defendant.
2
The trial court denied the plaintiff’s March 20, 2018 motion for articula-
tion. This court granted the plaintiff’s subsequent motion for review of the
denial of the motion for articulation but denied the relief requested therein.
3
As a result, we decline to consider the defendant’s alternative grounds
for affirming the judgment of the trial court, namely, that it did not owe a
duty to the plaintiff and that it was not the cause in fact of the plaintiff’s
alleged damages.
4
‘‘A cause of action in negligence is comprised of four elements: duty;
breach of that duty; causation; and actual injury.’’ (Internal quotation marks
omitted.) Lawrence v. O & G Industries, Inc., 319 Conn. 641, 649, 126 A.3d
569 (2015); see also Ruiz v. Victory Properties, LLC, 315 Conn. 320, 328,
107 A.3d 381 (2015).
5
‘‘Traditionally, an action for negligent misrepresentation requires the
plaintiff to establish (1) that the defendant made a misrepresentation of
fact, (2) that the defendant knew or should have known was false, and (3)
that the plaintiff reasonably relied on the misrepresentation, and (4) suffered
pecuniary harm as a result.’’ (Internal quotation marks omitted.) Coppola
Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342,
351–52, 71 A.3d 480 (2013); see also National Groups, LLC v. Nardi, 145
Conn. App. 189, 193, 75 A.3d 68 (2013).
6
Specifically, the following colloquy occurred between Gottlieb and the
defendant’s counsel:
‘‘Q. If [the plaintiff] testified that he read the report as stating that no soil
contamination was left behind, would you agree—would you disagree with
[the plaintiff’s] reading of the report?
‘‘A. Yeah. [He] is not correct here. There was detectable contamination
in the north wall sample.’’