Brown v. Blue Cane Cowart Tippo Water Ass'n Inc.
| Decision Date | 04 June 2019 |
| Docket Number | NO. 2018-CA-00242-COA,2018-CA-00242-COA |
| Citation | 309 So.3d 478 |
| Parties | Willie BROWN and Carolyn Talley Brown, Appellants v. BLUE CANE COWART TIPPO WATER ASSOCIATION INC., and Its Board Members, Joseph Wilson, President, Pamuela Henderson, Vice President, Lula Bradley, Treasurer, and Don Davis, Appellees |
| Court | Mississippi Court of Appeals |
ATTORNEY FOR APPELLANTS: AZKI SHAH
ATTORNEY FOR APPELLEES: MELVIN DAVID MILLER II, CLARKSDALE
BEFORE J. WILSON, P.J., GREENLEE AND McDONALD, JJ.
McDONALD J., FOR THE COURT:
¶1. This appeal arises from a dispute between Willie and Carolyn Brown (the "Browns") and Blue Cane Cowart Tippo Water Association and its board members ("Blue Cane") concerning termination of the Browns' water services. The Browns filed an action for injunctive relief and damages in the Chancery Court of Tallahatchie County and now appeal the court's final judgment. From our review of the record and relevant case law, we find no error and affirm that final judgment.
FACTS AND PROCEDURAL HISTORY
¶2. The Browns own a private well and water system known as the Sharkey-Twilight Well. At the time of this action, there were seven other households on this system. The Browns were also connected to a second system, the Blue Cane water system, which services approximately 440 households. Apparently the Browns were the only persons who were simultaneously connected to both well systems. The Browns had a backflow prevention device attached to their well to prevent contamination from one system to the other.
¶3. On March 7, 2017, the Browns received results of bacteria screening done on the Sharkey-Twilight Well by the Mississippi Well Owner Network. It stated that coliform was present, although no E-coli was found. On March 11, 2017, the Browns notified those connected to the well, including Blue Cane, of the possible contamination and that they would be shutting down the well for further tests.1
¶4. After receiving the March 11, 2017 notice from the Browns, Blue Cane notified the Board of Health of the potential contamination. On March 20, 2017, Blue Cane had a letter delivered to the Browns through a deputy sheriff notifying them that it needed access their property to check the backflow prevention device. It also notified them that they were being disconnected from the public system because of its fiduciary duty owed to the members of Blue Cane to maintain a healthy water supply. That evening the board president, Joe Wilson, and a board director, Pam Henderson, went to the Browns' property with the chemical operator and law enforcement in order to test the water from the Sharkey-Twilight Well and the backflow device. They waited for several hours but were denied access.
¶5. On March 21, 2017, Blue Cane personnel again were denied access to the Browns' property and were told to contact the Browns' attorney. That same day the Browns wrote to Blue Cane and told it that any attempts to come onto their property would be viewed as trespass. They also provided a copy of their prior year's (May 2016) backflow-passing test result that is required yearly and which had been previously supplied to Blue Cane. But they still failed to inform Blue Cane of the more recent test results showing no contamination.
¶6. On March 22, 2017, Herman Saulsberry, the chemical operator took samples from several locations in the Blue Cane system—the closest location being three miles from the Browns.
¶7. On March 23, 2017, the health department issued a no-drink order that was communicated to Blue Cane and Sharkey-Twilight customers through television and radio notices. The health department also required a summary of events and plan of action from Blue Cane, which Blue Cane sent on March 24, 2017. In that plan, Blue Cane noted that because the Browns had refused access to the property, their continued connection to the public system posed a threat. Blue Cane planned to bypass the Browns' lines, which were located on their private property, to cut the water off at the road.
¶8. That same day, Blue Cane implemented its plan and dug outside the Browns' fence to be able to access the water line and disconnect it. Apparently, the Browns' attorney arrived and hand-delivered to the workers a letter saying that the Browns were giving them free access to their property to do whatever inspections were needed.2 The workers continued to dig where they had been told to access the line and ultimately turn off Blue Cane's water to the property. The Browns, who still had access to water from their own Sharkey-Twilight Well, apparently shut it down altogether at the recommendation of their attorney. When and why this was done was not clear. In any event, any damages to them from lack of access to water were not caused solely by Blue Cane.
¶9. On the same day as the cut off, the Browns had their backflow device inspected. Mrs. Brown brought the test results (dated March 24, 2017) to Blue Cane. But the alleged new valve referenced in those results had the same serial number as the old one, causing Mr. Wilson, the president of Blue Cane, to be suspicious. Blue Cane continued to press to inspect the system itself.3
¶10. On March 24, 2017, the results of the tests of the Blue Cane system also came back uncontaminated. Based on these test results, the health department lifted its no-use order.
¶11. Because it could not test the Browns' system and because it could not verify the recent report concerning the maintenance on the backflow device, at a regular meeting of the board of directors on April 4, 2017, Blue Cane voted to terminate the Browns' membership. No written notice was given to the Browns about this meeting. Their service had already been disconnected due to the emergency situation; so the meeting did not deal with their service, just their membership. The Browns were notified that their membership was terminated and presented with a cost bill for the work Blue Cane had done in the amount of $ 4,316.25.
¶12. On April 5, 2017, the Browns filed a complaint in the Tallahatchie County Chancery Court for wrongful termination of their water services. They also moved for a temporary restraining order (TRO) and a permanent injunction. In their complaint, the Browns sought a reconnection with the Blue Cane system and recovery for costs.
¶13. On April 6, 2017, the court held a TRO hearing with no notice to Blue Cane. At that hearing, the Browns represented to the court that they had given Blue Cane permission to come onto their property to read the meter, that they were current in their payments, and that Blue Cane's board terminated their water service with no notice to them at a meeting on April 4, 2017. No mention was made of the water contamination issues and interaction between the parties prior to the board meeting. Based on the Browns' testimony, the chancery court issued a TRO, ordering Blue Cane to immediately restore the water connection to the Browns.
¶14. On April 10, 2017, the chancery court convened a hearing to determine whether a permanent injunction should issue. This time Blue Cane was present. Through testimony of Blue Cane's president, Joe Wilson, and the office manager, Brenetta Hoskins, the contamination problem was revealed as well as the actions Blue Cane had to take to insure safe water to its 440 customers. Blue Cane admitted that the Browns did not have notice that their membership would be discussed at the April 4 meeting. But their service had been disconnected before the April 4 meeting because of the contamination notification the Browns had given Blue Cane and because Blue Cane could not go onto the Browns' property to verify proper functioning of the backflow preventer. During the hearing, Blue Cane informed the court that it was willing to reconnect the Browns to the public system under the condition it could get onto the property to do the inspections needed. The Court ordered that Blue Cane immediately inspect the Browns' backflow device (by 5 p.m. that day) and if it passed inspection, then the Browns would be reconnected to the system by 5 p.m. the next day, April 11, 2017. The Browns were ordered to allow safe access to their property or be fined $ 500 per day. The parties were given 20 days to submit arguments to the court on a division of the costs.
¶15. On April 26, 2017, the Browns filed a motion for contempt against Blue Cane claiming that Blue Cane had not tested the water at their home as the court required. The court held a hearing on this motion on May 31, 2017, at which Blue Cane presented two sets of test results, showing that the water going to the Browns' home had been tested. The court noted that it had not ordered testing at the Brown house itself and that it felt testing the water going to and from the house satisfied the court's mandate. The court was also informed that the backflow device was tested the same day that the meter was moved, and it passed the test. The court denied the Browns' motion, and the parties agreed to attend mediation for any unresolved issues.
¶16. On August 31, 2017, the court conducted the mediation and made a record of various documents that had been provided. Among them were the March 11, 2017 Sharkey-Twilight Well's test results showing contamination and the subsequent March 16, 2017 test results showing no contamination. The Browns had not previously provided these to Blue Cane or to the Court. The Court commented on points in the history of the parties' dispute where it had been possible to resolve the issue had either party taken certain actions. The court asked the parties to provide an affidavit from the deputy sheriff who had served the March 20 letter to the Browns concerning what he told them and whether the Browns responded that Blue Cane could or could not come onto their property. The court also wanted to know from Entergy when the Browns' meter to the Sharkey-Twilight Well was disconnected.
¶17. In October 2017, an affidavit from John Paige, a part-time deputy sheriff, was obtained; he stated that he merely...
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