Opinion
NO. 2016 CA 1241
04-12-2017
WATER WORKS PUMP & WELL, INC. v. MARILYN P. ZACKIN
FREDERICK L. BUNOL BRYAN J. O'NEILL METAIRIE, LA ATTORNEYS FOR PLAINTIFF-APPELLEE WATER WORKS PUMP & WELL, INC. W. EVAN PLAUCHE' KEVIN 0. LARMANN METAIRIE, LA ATTORNEYS FOR DEFENDANT-APPELLANT MARILYN P. ZACKIN
NOT DESIGNATED FOR PUBLICATION Appealed from the 22nd Judicial District Court in and for the Parish of St. Tammany, Louisiana
Trial Court No. 2014-12032
Honorable Scott Gardner, Judge FREDERICK L. BUNOL
BRYAN J. O'NEILL
METAIRIE, LA ATTORNEYS FOR
PLAINTIFF-APPELLEE
WATER WORKS PUMP &
WELL, INC. W. EVAN PLAUCHE'
KEVIN 0. LARMANN
METAIRIE, LA ATTORNEYS FOR
DEFENDANT-APPELLANT
MARILYN P. ZACKIN BEFORE: PETTIGREW AND McDONALD, JJ., AND CALLOWAY, J. Pro Tem. PETTIGREW, J.
Judge Curtis A. Calloway, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court. --------
In this contract dispute concerning the drilling and installation of a water well, the defendant/homeowner, Marilyn P. Zackin (Ms. Zackin), appeals a March 10, 2016 judgment that ordered her to pay the balance remaining on the contract price, $10,131.50, in addition to interest, costs, and attorney fees. The judgment also denied Ms. Zackin's reconventional demand in which she sought damages for an alleged breach of contract by the plaintiff, Water Works Pump & Well, Inc. (Water Works), the company that performed the services. Following a subsequent hearing to determine the amount of attorney fees owed, another judgment, rendered April 13, 2016, fixed the amount owed by Ms. Zackin at $12,664.37. Ms. Zackin appeals that judgment as well. Water Works answered the appeal seeking an additional amount of attorney fees and costs incurred in connection with this appeal of two judgments. After a thorough review of the record and for reasons detailed below, we find no error and affirm both judgments. We further find Water Works is entitled to an additional award for attorney fees incurred in connection with this appeal.
BACKGROUND
Prior to entering into the contract at issue herein, Ms. Zackin contacted Water Works requesting that it chlorinate an existing well located on her property. Water Works declined, informing her that to do so would "kill" the well and prevent it from flowing. Ms. Zackin hired a third party company that performed the services she requested. As advised by Water Works, the chlorination caused the well to fail beyond repair, resulting in Ms. Zackin having no water flow to her house. Ms. Zackin again contacted Water Well requesting it to drill and install a new well on her property on an emergency basis.
On November 20, 2013, Ms. Zackin and Water Works entered into a written contract requiring Water Works to drill a water well, install the submersible water pump and tanks, ditch the pipe and conduit, and connect the necessary wires and plumbing to Ms. Zackin's guest house. The stated goal of the contract was to reach "potable water." The contract provided Water Works would drill 100 feet for the minimum charged; it also authorized Water Works to drill to a maximum of 500 feet, as needed to reach "potable water" with an additional agreed upon cost of $13.00 per foot. The contract did not define "potable water." Based on its research and prior personal experience working in Ms. Zackin's neighborhood, Water Works estimated potable water might be reached at 300 feet. The contract price was $16,021.50, $5,890.00 of which was paid as a deposit by Ms. Zackin prior to completion of the services. Water Works reached potable water at 380 feet, and upon completion of its installation of the well, clear water emerged; however, upon exposure to air, it immediately turned cloudy and eventually orange. Water from the well also tested negative for bacteria by a state-certified testing laboratory. However, shortly thereafter, excessive iron in the water turned the water cloudy, upon exposure to air. Based on the orange coloration of the water and testing that revealed high levels of iron and manganese, Ms. Zackin refused to pay the contract balance for the work performed by Water Works. In addition to the discoloration of the water, Ms. Zackin also asserted that the water has a metallic taste and that it stains her sinks, tubs, and clothing washed in the water.
Water Works made what it stated were "cost effective and relatively simple" recommendations, involving segregating the water lines and installing a particular backwashing filter to filter out the iron, and offered to perform its recommendations if Ms. Zackin would pay the $10,131.50 balance owed on the contract as well as the costs of the recommended filter. Ms. Zackin refused the offer and refused to pay the balance of the contract price. Instead, Ms. Zackin hired a third party contractor to perform the segregation of the water lines that Water Works had recommended, but she chose to install a different filter that she found and purchased online. Ms. Zackin continued to have problems and was required to remove and replace the filters two to three times a week, instead of the normally required two to three times per year. According to Water Works, the frequent replacement of the filters experienced by Ms. Zackin was due to the poor quality and design of the Aquasana filter she purchased online that rendered it incapable of adequately filtering the volume of water or the level of iron in the water.
Ultimately, Ms. Zackin segregated her water lines and connected to the municipal water line for her household water needs. She continues to use water pumped from the well installed by Water Works to operate the heat pump that heats and cools her home; it is undisputed that the well cools and heats the home without any problems. Despite Water Works' demands, Ms. Zackin continued to refuse to pay the balance owed on the contract.
PROCEDURAL BACKGROUND
Water Works filed its petition for breach of contract, damages, and in the alternative, on open account, on May 2, 2014; the contract, a detailed invoice, and evidence of collection efforts were attached. Ms. Zackin answered the petition and asserted her own breach of contract claim in a reconventional demand, alleging that "the water produced from the well is totally unsatisfactory and unsafe to consume or use." She further alleged entitlement to damages resulting from Water Works' negligent rendering of services.
ACTION OF THE DISTRICT COURT
Following a trial held on January 26, 2016, the district court issued written reasons for judgment and signed a judgment in accordance therewith on March 10, 2016, in favor of Water Works that granted its demands for damages and, finding no breach of contract by Water Works, denied Ms. Zackin's reconventional demand. In its reasons for judgment, the district court began its analysis by quoting the statutory definition of "potable water" provided in La. R.S. 40:5.8(5): "water having bacteriological, physical, radiological, and chemical qualities that make it safe and suitable for human drinking, cooking, and washing uses." The district court then referenced the testimony provided by Amanda Laughlin, the chief engineer of the Department of Health and Hospitals (DHH), Office of Public Health, in a videotaped deposition entered into evidence at trial, to the effect that neither the particulates, nor the levels of manganese or iron rendered the water from Ms. Zackin's well "not potable" according to DHH standards.
The district court additionally noted that Water Works did not own the water provided by the well it drilled and installed, and that it made no contractual or other warranties or representations to Ms. Zackin other than reaching potable water. Thus, the court concluded Water Works complied with its contractual obligations and Ms. Zackin had not proven otherwise. The court further found that Ms. Zackin had breached the contract by nonpayment of the price, and that she had also failed to prove the claims asserted in her reconventional demand.
ASSIGNMENTS OF ERROR
Ms. Zackin asserts two assignments of error: first, that the district court erred in awarding Water Works damages, costs, and attorney fees; and second, in failing to find that Water Works' performance under the contract did not amount to a breach thereof, and in denying her claim for damages on the reconventional demand on that basis. For the following reasons, we find the evidence in the record amply supports the district court's finding that Water Works complied with its obligations and did not breach any terms or obligations under the contract; and, based on Ms. Zackin's refusal to pay the contract price agreed upon, Water Works was entitled to damages comprising the balance owed under the contract, as well as costs and attorney fees, as provided for in the contract.
ANALYSIS
In support of the alleged errors, Ms. Zackin argues extensively that the "well sold by Water Works contained a redhibitory defect." First, we do not address this argument, as it was not at issue before the district court. There are no factual allegations in Ms. Zackin's reconventional demand to state a cause of action in redhibition; there were no arguments made or evidence presented at the trial below relevant to any alleged redhibitory defects. For this reason alone, that argument is wholly misplaced and not before this court. Additionally we note that even if alleged, the facts of this dispute do not involve a contract of sale, so redhibition principles do not apply. See La. C.C. arts. 2520 and 2529.
The facts alleged in Ms. Zackin's reconventional demand are limited to her claim that Water Works performed its contractual obligations in a negligent manner and that she suffered damages as a result. Our review is limited to the resolution of those alleged facts. Our review of the record reveals that Ms. Zackin failed to specify or identify any particular provision of the contract that was allegedly breached by Water Works. Instead, Ms. Zackin's arguments rest on an alleged ambiguity in the contract language, in that the contract does not define potable water. She further argues this alleged ambiguity requires that the contract be construed in her favor and that potable water be given its broadest meaning, which she contends would yield a finding that the discoloration and iron and manganese content of the water rendered it "not potable" and that Water Works breached the contract. We find no merit to Ms. Zackin's arguments. First, while executing the contract, Ms. Zackin did not object to the contractual language and made no mention of any confusion or misunderstanding of the meaning of the stated goal of the contract - to reach potable water. Moreover, we find the language of the contract is clear and unambiguous. Moreover, Ms. Zackin provides no support for her claim that the district court erred in utilizing the statutory definition of potable water while analyzing Water Works' performance under the contract based on the evidence presented.
Additionally, Ms. Zackin offered no evidence to contradict the testimony of Ms. Laughlin that, notwithstanding the orange coloration of the water and the excessive amounts of iron therein, it was nonetheless "potable" within the customary meaning of the term and consistent with the statutory definition thereof. We also note that Mike Metevier, expert witness for Water Works, testified consistent with Ms. Laughlin that the water pumped by the well drilled and installed by Water Works was potable. Offering additional evidence to support these witnesses' testimonies, Water Works presented documentary evidence that neither iron nor manganese are listed as contaminants in the National Primary Drinking Water Regulations adopted by Louisiana. Rather, they are listed as contaminants that may cause cosmetic effects in Secondary Drinking Water Regulations, not adopted by and nonenforceable in Louisiana.
The evidence further established that only 25-30 percent of the wells drilled in St. Tammany by Water Works do not require any filtering; however, the remaining wells produce water that must be filtered to reach the quality desired by the homeowner. Additionally, Water Works established that it did not and could not guarantee the chemical makeup of the water. The evidence established that the well drilled by Water Works for Ms. Zackin was in accordance with all applicable regulations and standards set forth by the Louisiana Department of Natural Resources and consistent with customary techniques utilized in the water well drilling industry. Ms. Zackin presented no evidence to contradict this evidence, nor did she otherwise prove any substandard or negligent performance by Water Works in the drilling of her well. Instead, the evidence established the well was drilled to 380 feet in accordance with the contract provisions, and Ms. Zackin did not offer any evidence that water of different quality could have been found at a depth between 380 and 500 feet, as authorized by the contract, or at any other particular depth even outside of the contract's limitations.
Water Works presented testimony that it never told or represented to Ms. Zackin that water from the well would not have to be filtered to attain any quality beyond "potable." Indeed, the record reveals that Water Works explained, prior to drilling, and also recommended after drilling, that Ms. Zackin may have to segregate her plumbing lines and filter the water. The record establishes that Ms. Zackin hired someone else to perform the recommendations made by Water Works, but used a cheaper filter of inferior quality than the one recommended by Water Works. The record establishes that any deficiencies resulting from the "repair" service provided by the third party (i.e., the high rate of necessary filter replacement) was due largely to Ms. Zackin's choice of filter. In any event, none of the resulting deficiencies were in any way proven to be a result of Water Works' performance under the contract.
Finally, there is no dispute that Ms. Zackin did not pay the full contract price. Accordingly, for all the above stated reasons, the evidence presented provides an ample factual basis for the district court's conclusions, which are not manifestly erroneous.
WATER WORKS' ANSWER TO THE APPEAL
Water Works filed an answer to the appeal, seeking an award for additional attorney fees incurred as a result of Ms. Zackin's appeal. Consistent with our findings, we find such an award is justified and hereby award Water Works additional attorney fees in the amount of $1,200.00.
CONCLUSION
For the foregoing reasons, we find no manifest error in the district court's findings. The evidence in the record more than amply supports that Water Works complied with all contractual provisions and obligations, and that Ms. Zackin's refusal to pay the negotiated contract price was unjustified and constituted a breach of her contractual obligations, entitling Water Works to the damages awarded. Moreover, we find Water Works is entitled to an additional award of $1,200.00 in attorney fees incurred in defending Ms. Zackin's appeal. Thus, the judgment of the district court is hereby affirmed; Ms. Zackin is further ordered to pay Water Works an additional $1,200.00 representing attorney fees incurred and necessitated by this appeal. All costs of the appeal are assessed to Ms. Zackin.