Seale v. GeoQuest, Inc.

189 Conn.App. 587

208 A.3d 326

Daniel C. SEALE

v.GEOQUEST, INC., et al.

AC 41407

Appellate Court of Connecticut.

Argued February 4, 2019

Officially released April 30, 2019

Alan R. Spirer, Westport, for the appellant (plaintiff).

Cullen W. Guilmartin, Glastonbury, with whom, on the brief, was Regen O'Malley, for the appellee (named defendant).

DiPentima, C. J., and Alvord and Moll, Js.

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 excavation company to remove the tank and this company, in turn, hired the defendant to remediate the soil contamination.

On August 12, 2014, the defendant, acting through its employee Jay Soltis, a licensed environmental professional and the defendant's vice president of environmental 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 provided, 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 relevant 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 remediation contractor, EnviroShield, Inc., to determine whether any fuel contamination existed on the property. 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 " ‘effectively 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 excavation, (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 investigation 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 misrepresentation.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. Therefore, 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 property 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 finding 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 [proceeding] 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 conflicting 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 determine." (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...