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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 negligence and negligent misrepresentation in connection with G Co.’s remediation 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 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 crossexamination 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 interpreted 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 defendant had violated with respect to its work on the property. 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 testified that if the home had not been demolished, no additional 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 property 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 remediation 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 property. 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 misrepresentation 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 articulation. 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.’’