Crouzet v. First Baptist Church of Stonington ( 2020 )

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CROUZET V. FIRST BAPTIST CHURCH OF STONINGTON—DISSENT
PRESCOTT, J., dissenting. In this factually and legally
complex action, brought by the plaintiff homeowner,
David Crouzet, to recover for economic harm resulting
from groundwater and soil contamination on his prop-
erty that allegedly migrated from an adjoining property
owned by the defendants, two churches,1 the trial court
heard competing expert and scientific testimony from
numerous witnesses over the course of a five day trial to
the court. Various experts and historical fact witnesses
testified regarding potential alternative or secondary
sources of the pollution on the plaintiff’s property. One
hundred and thirty exhibits were admitted at trial.
Despite the complexity of this case, however, the trial
court did not issue a written memorandum of decision
setting forth its factual findings and its application of
the law to those facts. Instead, the court rendered a
short, oral ruling from the bench in favor of the defen-
dants, the substance of which spans approximately one
transcript page. The decision is devoid of any factual
findings other than a brief, general comment on the
credibility of certain expert testimony. It also contains
no discussion of the applicable law.
Despite these obvious lacunae, the plaintiff, who has
appealed from the court’s judgment, filed a motion for
articulation that was quite limited in scope. In response,
the court’s articulation was exceedingly brief and did
little to explain the factual or legal basis for its judg-
ment. If anything, the court’s articulation further mud-
died the waters. Importantly, the plaintiff failed to file
a motion for review with this court in order to remedy
the reviewability issues engendered by the trial court’s
decision and articulation.
The meaning of the court’s decision is not readily
apparent to me. For the reasons I subsequently will set
forth, a possible interpretation of the court’s decision
is simply that the plaintiff failed to meet his burden of
persuasion on the critical issue of whether the environ-
mental contamination of his property was caused by
the defendants. Because our well settled standard of
review requires me, under these circumstances, to con-
strue the court’s judgment in a manner to uphold it,
rather than to undermine it; see White v. Latimer Point
Condominium Assn., Inc., 191 Conn. App. 767, 780–81,
216 A.3d 830 (2019); I respectfully dissent from the
decision of the majority to reverse the judgment and
remand the case for a new trial.
I begin with the facts and procedural history of the
case. The majority opinion more than adequately
describes the evidence that was presented at trial and
I see no need to repeat it wholesale here. It bears empha-
sis, however, that we know little regarding what facts
the trial court concluded had been established by
this evidence.
With respect to the procedural history, I first turn to
the court’s oral decision rendered immediately at the
conclusion of closing arguments. After briefly dis-
cussing the disposition of some outstanding motions
and the content of the closing arguments, the court’s
entire decision was as follows: ‘‘Both [Plato] Doundou-
lakis [the defendants’ expert] and [Martin] Brogie [the
plaintiff’s expert] . . . were both such partisan advo-
cates—now, this court has had experience with many
experts who, no matter how partisan they may be, at
least manage to project a veneer of impartiality. So the
court intends to disregard both the testimony of . . .
Doundoulakis and the testimony of . . Brogie, and the
testimony of [William] Puckett [the plaintiff’s contrac-
tor], which the court expressly rejects. That leaves—
the only credible witnesses are [William] Warzecha [a
state environmental analyst called by the plaintiff] and
[Paul] Burgess [a licensed environmental consultant
called by the defendants]. While . . . Warzecha was
credible, his data was outdated and outweighed by . . .
Burgess’ testimony, but even that does not overcome
the fact that the defense has shown a secondary source
exists beneath the basement property owned by the
plaintiff, and therefore finds the plaintiff has failed to
prove the allegations that defendant has caused the
pollution beneath his house.
‘‘It is therefore unnecessary to reach the defendant’s
special defenses. Judgment will enter for defendants—
defendant on all counts.’’ (Emphasis added.)
The plaintiff filed this appeal on September 7, 2018.
Shortly thereafter, on October 3, 2018, the plaintiff filed
a motion for articulation. The sole question posed by
the plaintiff in his motion was ‘‘[w]hat data of . . .
Warzecha’s was outdated?’’ The motion for articulation
did not ask the court to articulate what facts it found
with respect to its apparent conclusion that the plaintiff
had failed to meet his burden of persuasion that the
defendants were the cause of the environmental con-
tamination on his property. It also did not seek any
articulation from the trial court on its use of the phrase
‘‘secondary source.’’
The court granted ‘‘in part’’ the motion for articula-
tion. It articulated as follows: ‘‘Nothing in the court’s
decision implicates either the statute of limitations or
the continuing course of conduct doctrine. The court’s
reference to . . . Warzecha’s testimony as ‘outdated’
was solely a reference to his credibility. Since he was
taken out of turn with an [assistant attorney general]
present who had filed an appearance moments before
. . . Warzecha’s testimony. Immediately after his testi-
mony he and the [assistant attorney general] departed
and they were not in the courtroom when evidence was
presented which the court credited in finding that the
existing contamination beneath the plaintiff’s property
was there long before [the] plaintiff purchased his
property.’’
The plaintiff did not file a motion for review, as was
his right pursuant to Practice Book § 66-7, in which he
could have asserted that the trial court’s articulation
was insufficient or otherwise improper. The plaintiff
also did not seek any further articulation by the trial
court after it issued its articulation. See Practice Book
§ 66-5. Moreover, the plaintiff took no steps, as was
his right, to seek to compel the trial court to issue a
memorandum of decision that complied with Practice
Book § 64-1.2 That provision obligates a trial court,
under the circumstances presented here, to issue a deci-
sion, either orally or in writing, which ‘‘shall encompass
its conclusion as to each claim of law raised by the
parties and the factual basis therefor.’’ Practice Book
§ 64-1 (a).
On appeal, the plaintiff raises three claims of error,
each of which makes reference to the trial court’s use
of the phrase ‘‘secondary source’’ in rendering judgment
for the defendants.3 In essence, the plaintiff argues that
the court’s use of the term ‘‘secondary source’’ either
necessarily reflects unsound legal reasoning by the
court that amounts to legal error or otherwise consti-
tutes a clearly erroneous finding of fact because it is
unsupported by any evidence in the record. I would
conclude that the record before us simply is inadequate
to support either of these arguments and to conclude
otherwise would require us to engage in conjecture
that our appellate courts consistently have eschewed
in conducting appellate review of a judgment rendered
following a trial to the court.
In order to review a claim of error, it is axiomatic
that this court must have an adequate record, and it is
the responsibility of the party seeking to overturn a
decision to provide that record on appeal. See Breen
v. Judge, 124 Conn. App. 147, 160–61, 4 A.3d 326 (2010).
‘‘It is well established that [a]n articulation is appro-
priate where the trial court’s decision contains some
ambiguity or deficiency reasonably susceptible of clari-
fication.’’ Id., 161. ‘‘This court will neither speculate
with regard to the rationale underlying the court’s deci-
sion nor, in the absence of a record that demonstrates
that error exists, presume that the court acted errone-
ously. . . . It is well settled that [we] do not presume
error; the trial court’s ruling is entitled to the reason-
able presumption that it is correct unless the party
challenging the ruling has satisfied its burden [of]
demonstrating the contrary. . . . [If] the record can
be read to support [a] court’s conclusion that the plain-
tiff failed to meet his burden, the plaintiff has failed to
demonstrate that the court erred.’’ (Citations omitted;
emphasis added; internal quotation marks omitted.)
White v. Latimer Point Condominium Assn., Inc.,
supra, 191 Conn. App. 780–81. In other words, we must
‘‘read an ambiguous record, in the absence of a motion
for articulation, to support rather than to undermine
the judgment.’’ (Internal quotation marks omitted.)
Abington Ltd. Partnership v. Heublein, 257 Conn. 570,
586 n. 29, 778 A.2d 885 (2001).
I first consider whether the court’s use of the term
‘‘secondary source’’ necessarily reflects that the court’s
legal analysis was flawed. I am unconvinced.
It is undisputed that the plaintiff had the burden to
prove that some or all of the pollution beneath his
basement was caused by the defendants. The court
appears to have explicitly concluded that ‘‘the plaintiff
has failed to prove the allegations that the defendant
caused the pollution beneath his house.’’ The court,
however, muddied the waters by stating that a ‘‘second-
ary source exists beneath the basement property owned
by the plaintiff. . . .’’
The court, however, never defined the term ‘‘second-
ary source.’’ As the plaintiff indicates in his appellate
brief, the ‘‘only definition of ‘secondary source’ was
provided by [Burgess], which he defined as ‘an addi-
tional source other than what was identified on the
[defendants’] parsonage property.’’4 (Emphasis added.)
The court does not attempt to place its use of the term
into any particular legal context by citing to or dis-
cussing any case law or legal doctrine involving second-
ary source contamination. The court also does not make
any references to the parties’ contractual agreement,
which included a provision exempting the defendants
from any obligation to remediate the impact of contami-
nation coming from ‘‘secondary sources.’’
Importantly, the court expressly indicated that it was
not reaching any special defenses raised by the defen-
dants because the court determined that the plaintiff
had failed ‘‘to prove the allegations that the defendant
has caused the pollution beneath his house.’’ The defen-
dants had pleaded two special defenses in response
to the operative complaint. The first special defense
asserted that all causes of action alleged were barred
by the relevant statutes of limitation. The second special
defense pertained to the breach of contract counts and
alleged that the defendants already had paid for all
remediation work that was within the scope of the
parties’ remediation agreement. As previously stated,
the parties had agreed that the defendants would not
be responsible for any remediation that was attributable
to a secondary source of contamination. Accordingly,
the second special defense, if reached by the court,
presumably would have required the court to consider
reducing any damages awarded to the plaintiff if the
court found that some of the contamination present
beneath the plaintiff’s basement was caused by both
pollution from the defendants’ property and from other
sources. Because the court found that ‘‘the plaintiff has
failed to prove the allegation that the defendant caused
the pollution beneath his house,’’ there was no need
for the court to attempt to apportion the responsibility
between the defendants and other potential sources of
the contamination.
Read in context then, the court’s reference to a sec-
ondary or other source of the contamination arguably
may have been intended to reflect that there was a
factual reason for finding unpersuasive the evidence
presented by the plaintiff relating to whether the defen-
dants’ property was the source of the contamination.
Stated another way, the court’s finding of the existence
of an alternative or ‘‘secondary source’’ of the pollution
simply may have informed its broader conclusion that
the plaintiff had failed to persuade the court, as he
must to prevail, that the defendants caused the pollution
underneath the plaintiff’s basement. Ultimately, I am
left to conclude that, although the court uses the term
‘‘secondary source’’ in discussing the origins of the con-
tamination found on the plaintiff’s property, its use of
that terminology is ambiguous, at best, given the lack
of any relevant legal analysis or other context.
Importantly, in his motion for articulation directed
at the trial court after the appeal was filed, the plaintiff
never asked the court to explain its use of the term
secondary source or its legal significance, to identify the
nature of the secondary source or to explain whether
its use of the term meant that the plaintiff had proven
that the defendants’ property was the primary or princi-
pal source of the contamination. Given the obvious
ambiguities in the court’s brief, oral ruling, it was incum-
bent on the plaintiff to seek clarification of the court’s
decision and, if the plaintiff believed that the court’s
articulation was insufficient, to seek review and relief
from this court.5 See Practice Book § 66-5.
Our rules of practice provide that a party will not
ordinarily forfeit review of a claim solely on the basis
of a failure to request an articulation and that this court
has the authority to order an articulation sua sponte if
necessary. See Practice Book § 61-10 and commentary.
We are unable to do so in the present case, however,
because Judge Koletsky has retired, and the issue of
his use of the term ‘‘secondary source’’ is not one that
is susceptible to clarification by another judge simply
from a review of the record. It would be contrary to
our standards of review and, frankly, unfair to the defen-
dants, who were the parties that prevailed after a
lengthy and undoubtedly expensive trial, to view the
ambiguity of the court’s decision through a lens that
presumes error and results in the need for a new trial.6
I simply am unable to fairly determine whether the
court used the term ‘‘secondary source’’ as a reference
to some other alternative source of the contamination
under the plaintiff’s property or, as the plaintiff would
have us conclude, as an implicit finding that the defen-
dants’ property necessarily was also a source, if not
the primary source, of the pollution, a finding, which
in the plaintiff’s view, would be inconsistent with the
court’s ultimate decision to render judgment in favor
of the defendants.
Having determined that, due to the inherent and unex-
plained ambiguity in the court’s imperfect decision, the
record does not adequately support a conclusion that
the court engaged in any clear legal error, I am left to
consider only whether the trial court’s use of the term
‘‘secondary source’’ necessarily reflects a clearly erro-
neous factual finding. To the extent that the court used
that term merely to reflect that another source, other
than the defendants’ property, existed for the contami-
nation on the plaintiff’s property, I cannot conclude on
this record that such a finding is clearly erroneous.
‘‘In a case 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. . . . On appeal,
we will give the evidence the most favorable reasonable
construction in support of the verdict to which it is
entitled. . . . A factual finding may be rejected by this
court only if it is clearly erroneous.’’ (Internal quotation
marks omitted.) Coppedge v. Travis, 187 Conn. App.
528, 532–33, 202 A.3d 1116 (2019). ‘‘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.’’ (Emphasis added;
internal quotation marks omitted.) Id.
In considering whether a court has made a clearly
erroneous factual finding, we look to the evidence that
was admitted at trial. Although, in so doing, we cannot
consider evidence that the trial court expressly rejected
as the finder of fact, we nonetheless will presume for
purposes of our review that any evidence not discussed
by the court was considered by it and credited in making
any factual findings under review. Here, there was con-
siderable testimonial and documentary evidence admit-
ted that would have supported the court’s finding that
the contamination on the plaintiff’s property came from
a source other than the defendants’ property.
Among the evidence before the trial court of other
potential sources of oil contamination was testimony
that a prior owner of the plaintiff’s property regularly
drained oil from his car onto the dirt driveway, allowing
that oil to seep into the soil. In addition, a prior tenant
living at the plaintiff’s property testified at trial that on
numerous occasions when the home’s heating oil tank
was being filled, oil would backflush out of the fill pipe
‘‘all over the ground.’’ The plaintiff testified that the
home inspection report that he received at the time he
purchased his property stated that fuel oil had leaked
from the home’s fuel oil tank in the basement and that
the fuel oil line was improperly laid. There was also
evidence that the contractor who later installed a con-
crete floor in the basement to replace the existing dirt
floor pumped water contaminated with oil from the
basement into the plaintiff’s backyard. Furthermore,
there was evidence that, even after a new heating sys-
tem was installed, oil leaked from that new system and
had been observed pooling on the floor of the plaintiff’s
basement. Finally, Burgess, whose expert testimony
was credited by the court, gave testimony suggesting
that he believed that the oil intruding into the plaintiff’s
basement had an origin other than the contamination
on the defendants’ property.7 When asked if he ‘‘ever
received data or information that suggested to [him]
the existence of an alternative source of contamination
at 50 Trumbull Avenue,’’ he responded, ‘‘Yes.’’8
If I give the evidence presented the most favorable
reasonable construction in support of the court’s ver-
dict as I must, I cannot conclude that the court’s refer-
ence to a secondary source of contamination was a
clearly erroneous factual finding. There was ample evi-
dence in the record to support such a finding, regardless
of its intended legal significance, and I am not con-
vinced on this record that a mistake has been com-
mitted.
In summary, although the majority’s construction of
the court’s decision, including the court’s use of the
term ‘‘secondary source,’’ is plausible, I do not believe
that it is the only explanation, or even the most likely,
for the court’s decision. Because we are compelled to
resolve any inherent ambiguity in favor of upholding
the court’s judgment for the defendants, I would affirm
the judgment of the trial court and, accordingly, respect-
fully dissent.
1
The defendants are First Baptist Church of Stonington and Second Con-
gregational Church of Stonington.
2
Practice Book § 64-1, with limited exceptions not relevant here, requires
that a trial court prepare a memorandum of decision whenever it renders
an appealable final judgment, and provides in relevant part: ‘‘(a) . . . The
court’s decision shall encompass its conclusion as to each claim of law
raised by the parties and the factual basis therefor. If oral, the decision shall
be recorded by a court reporter, and, if there is an appeal, the trial court
shall create a memorandum of decision for use in the appeal by ordering
a transcript of the portion of the proceedings in which it stated its oral
decision. The transcript of the decision shall be signed by the trial judge
and filed with the clerk of the trial court. . . .
‘‘(b) If the trial judge fails to file a memorandum of decision or sign a
transcript of the oral decision in any case covered by subsection (a), the
appellant may file with the appellate clerk a notice that the decision has
not been filed in compliance with subsection (a). . . . The appellate clerk
shall promptly notify the trial judge of the filing of the appeal and the notice.
The trial court shall thereafter comply with subsection (a).’’
3
The plaintiff’s statement of the issues frames his claims as follows:
‘‘Did the trial court err in finding no liability against the defendants for
contamination on the plaintiff’s property when the defendants accepted
responsibility for the pollution, which [the Department of Energy and Envi-
ronmental Protection] concluded originated on the defendants’ property,
when no expert offered an opinion based on reasonable probability that
there was a secondary source and no evidence established what the second-
ary source was? . . . Did the trial court err in finding no liability against
the defendants when the existence of a secondary source does not relieve
the defendants of liability and when the defendants are the primary source
of the contamination of the plaintiff’s property? . . . Did the trial court
err in considering the existence of a secondary source of contamination
under [the Connecticut Environmental Policy Act, General Statutes § 22a-
14 et seq.] and common-law claims of trespass and nuisance when no appor-
tionment claim was brought by the defendants?’’
4
The fact that a witness defined the phrase in that manner does not
necessarily mean that the court accepted it as the operative definition or
intended to ascribe it that meaning when it used the term in its brief, oral
decision. It is not simply the words themselves but the manner in which
the court uses them, utterly disconnected from any true analysis or context,
which renders the term ambiguous here.
5
The majority suggests that no articulation was necessary because there
was nothing ‘‘unclear or ambiguous in the court’s brief explanation of its
analysis.’’ It would conclude that the court’s use of the term secondary
source can be readily discerned simply from the court having followed its
secondary source reference with the statement that ‘‘therefore . . . the
plaintiff has failed to prove the allegations that the defendant has caused
the pollution beneath his house.’’ I find this argument unpersuasive. In my
view, the court may have been referring to an entirely alternative source
of the contamination, fully excluding any contamination coming from the
defendants’ property. That interpretation finds support when read in con-
junction with the court’s subsequent articulation that ‘‘the existing contami-
nation beneath the plaintiff’s property was there long before [the] plaintiff
purchased his property,’’ referring to those oil discharges by previous owners
or tenants of the plaintiff’s property. Such a reading could be harmonized
with the court’s conclusion that the plaintiff had failed to meet his burden
of persuasion with respect to proximate cause. Alternatively, the court’s
reference to another source could be read to mean a source in addition to
or including the contamination from the defendants’ property. That interpre-
tation of the court’s language, however, would result in a non sequitur
because the mere existence of such an additional source would not ‘‘there-
fore’’ mean the plaintiff failed to show that the oil pollution from the defen-
dants’ property did not also cause some of the plaintiff’s basement contami-
nation and thus entitle the plaintiff to some recovery. I cannot resolve
this conflict in favor of reversing the trial court without resorting to pure
speculation or violating our duty not to presume error.
6
The present case is readily distinguishable from our resolution of the
appeal in Zaniewski v. Zaniewski, 190 Conn. App. 386, 210 A.39 620 (2019).
In that case, we declined to apply a presumption of correctness to orders
issued as part of a judgment of dissolution of marriage where the trial judge
had failed to make factual findings underlying those orders. Unlike the
present case, however, the trial judge in Zaniewski retired shortly after
rendering the judgment on appeal, which prevented the appellant from
obtaining an articulation of the court’s decision. Id., 390–91. Here, the plain-
tiff had ample opportunity to seek and, in fact, obtained an articulation
from the court. The plaintiff, however, failed to ask the court to articulate
or otherwise remedy its failure to explain the factual and legal basis for its
judgment, including its reference to a secondary source.
7
Burgess gave the following testimony in response to direct examination
by the defendants’ counsel:
‘‘Q. And what was it that . . . Brogie said to you in this phone conversa-
tion that led you to consider the possibility of an alternative contamination
source for what was at 50 Trumbull Avenue?
‘‘A. He indicated that he had received . . . —information from . . .
Crouzet that a contractor was working in the basement and observed a
purple oil flowing into the basement that looked fresh.
‘‘Q. Did . . . Brogie share with you any other information about that
purple oil—what part of the building or anything like that?
‘‘A. I don’t believe so at that time.
‘‘Q. And what was significant to you about what . . . Brogie had said?
‘‘A. Upon, you know, further research on that topic, it indicated that it
would date the oil—the dyeing of oil took place around sometime after
1993, ‘94, when they started dyeing residential fuel oil. So that, that was a
piece of information that sparked my interest at that time.
‘‘Q. And why was the mention of purple oil suggestive to you of a secondary
source or an alternative source of the contamination?
‘‘A. Well, as the project developed, I—and we actually conducted the
remediation on number 48 and 50 on the exterior part, I didn’t observe any
oil or any—also—nor oil that had that dye in it during the excavation.
‘‘Q. And so if the area that you were working in between 48 and 50 didn’t
have any oil with that dye in it, what was the significance to you of a report
of oil with that dye in it that was seen at 50?
‘‘A. Well, it indicated the potential for a secondary source that could have
occurred on the Crouzet property based on that observation and others—
other facts.’’
8
The plaintiff and the majority make much of the fact that Burgess’
testimony regarding the possibility of other sources of the contamination
under the plaintiff’s property was not stated to a reasonable degree of
certainty. The defendants, however, did not have the burden of proof with
respect to causation. That burden fell on the plaintiff, and the court clearly
concluded that he failed to meet his burden.