Hieb v. Opp

• Decision Date: 30 November 1989
• Docket Number: No. 16667,16667
• Parties: Stanley HIEB, Plaintiff and Appellee, v. Floyd OPP, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 797

458 N.W.2d 797

Stanley HIEB, Plaintiff and Appellee, v. Floyd OPP, Defendant and Appellant.

No. 16667.

Supreme Court of South Dakota.

Considered on Briefs Nov. 30, 1989.

Decided July 18, 1990.

Lonald L. Gellhaus of Williams & Gellhaus, Aberdeen, for plaintiff and appellee.

Forrest C. Allred and Phillip M. Allred (on brief) of Allred & Allred, Aberdeen, for defendant and appellant.

PER CURIAM.

This action arises from a contract for the installation and construction of a sewage system to service a new home constructed in rural Eureka, South Dakota. Floyd Opp (Opp) was the owner of the property and he entered into the contract with Stanley Hieb (Hieb). After completion of the house, difficulties arose with the sewer system, as a result of which Opp refused to pay the balance on the contract. Hieb brought suit for the balance due on the contract and Opp counterclaimed for damages alleging deficient performance on the contract. The trial court dismissed both claims upon the grounds that the contract was void as a matter of law and Opp appeals. We affirm.

Opp had drawn preliminary plans for the new house with the aid of Rick Weisbeck, who Opp hired to do the actual construction. The plans included descriptions of the electrical and plumbing systems that Opp desired. The preliminary plans were sent to a company in Minnesota for final drafting and preparation of the materials.

Rather than hire Weisbeck as the general contractor, Opp acted as his own general contractor and hired his own plumber and electrician. All of these individuals took their orders from Opp as to how things were to be done. In this vein, Opp also hired Hieb to excavate the basement, install a sewage system and bring a water line into the house.

In the fall of 1985, Hieb dug the basement to a depth jointly determined by Opp, Weisbeck and Hieb, based upon the design of the house.

After the digging of the basement, Hieb and Opp first discussed the details of the proposed sewage system. Opp stated that he wanted a system similar to the one that serviced his old house, a septic tank system with a natural flow two feet below the ground, coming out at the bottom of a hill and draining on the land at the bottom of the hill. Because of the depth to which the basement had been dug, Hieb gave Opp two options for the system. The first was to employ a lift station to raise the sewage up to the level for natural drainage in the manner of the previous system. The alternative was also a natural or gravity flow system which would have to be very deep to permit drainage from the sewer stub in the basement. Hieb left the choice up to Opp who never pursued the lift system.

Opp directed his plumber in the plumbing installation, including placement of the drains, sinks, bathtubs, stools and other fixtures. The plumber tied all of the drains into one sewer stub leading from the lowest drain in the basement. When Hieb returned to complete the outside installation of the sewage system, he had to connect to the sewer system leading from the basement. This mandated Hieb's use of the deep system previously described to Opp. He connected a septic tank to the sewer stub and installed the necessary sewer line and drainage tiles.

About a week after Opps moved into their new house, they began experiencing problems with the sewage system. At one point, raw sewage backed up into the basement damaging the foundation and sheetrock and certain personal property stored in the basement. Opp contacted Hieb and both made futile attempts to remedy the situation by adding a sump pump and culvert at the end of the system. At this point Opp contacted the South Dakota Department of Water and Natural Resources (the department), which sent a scientist to inspect the system. He concluded that the system was improperly designed and constructed. He found six violations of the department's rules concerning small, on-site wastewater treatment systems, namely: deposit of wastewater on the surface, failure to perform percolation tests, excessive depth of the absorption trench, use of improper fill materials, close proximity of the sewage system to the water supply, and improper drainage of the roof and groundwater sump pump into the sewage system.

After hearing the evidence, the trial court found that Hieb and Opp had mutually agreed to ignore the applicable rules of the department on individual and small on-site wastewater systems. The trial court concluded that their contract was thereby rendered void as against public policy, held that neither party should prevail and dismissed both claims with prejudice.

On appeal, Opp raises three issues:

1. Whether responsibility for constructing and installing a septic tank system in compliance with state regulations rests with the owner of the system or the party installing the system?

2. Whether the trial court was clearly erroneous in finding that Opp knowingly and deliberately ignored state health regulations governing septic tank systems?

3. Whether the trial court erred in concluding that the contract between Hieb and Opp is void as a matter of law?

We first examine issue 1. Although the trial court found that both Hieb and Opp had a duty to know the applicable regulations and to implement them in the construction of the sewage system, Opp argues that Hieb, as the "designer" of the system, should bear full responsibility for failure to follow the regulations.

The regulations at issue are set forth in ARSD ch. 74:03:01. First, with respect to responsibility for compliance, ARSD 74:03:01:39 provides:

No person may install, construct, or operate a wastewater treatment or dispersal system or any other system for the treatment or disposal of human excreta which does not meet the requirements of this chapter. (emphasis added).

ARSD 74:03:01:51 likewise provides:

The designer of each on-site wastewater treatment system must take into consideration the distance from any producing water well to the proposed septic tank and absorption system, the slope of the site and the gradient from any producing water well to the wastewater treatment system, the seasonal high groundwater table, the groundwater table, the percolation rate, the lot size, and the type and maximum daily wastewater flow to be treated by the wastewater treatment system. (emphasis added).

The issue involves a mixed question of fact and law in applying the regulations to the trial courts findings of fact. We therefore review the decision de novo. Permann v. Dept. of Labor, Unemp. Ins. D., 411 N.W.2d 113 (S.D.1987). We also note that rules of statutory construction also apply to administrative rules. Hartpence v. Youth Forestry Camp, 325 N.W.2d 292 (S.D.1982). The purpose of the rules of statutory construction is to discover the true intention of the law and that intention must be ascertained primarily from the language expressed in the statute. Reid v. Huron Bd. of Educ., 449 N.W.2d 240 (S.D.1989). In construing a statute, the statutory language is to be accorded its plain meaning and effect. State v. Ohlmann, 444 N.W.2d 377 (S.D.1989).

The provisions of ARSD 74:03:01:39 and ARSD 74:03:01:51 regarding responsibility for compliance with the rules are plain and clear in their meaning. They expressly place that responsibility on those who design, install or construct a wastewater treatment system. Although ARSD 74:03:01:39 also makes reference to those who "operate" the system, this suit does not involve deficient "operation" of a system but rather deficient design and installation of the system.

Based upon the plain language of those rules, while it is beyond question that Hieb bore partial responsibility for compliance, under the facts of this case, ...