Sagebrush Development, Inc. v. Moehrke
| Citation | 604 P.2d 198 |
| Decision Date | 17 December 1979 |
| Docket Number | No. 5147,5147 |
| Parties | SAGEBRUSH DEVELOPMENT, INC., Appellant (Plaintiff), v. Guenther MOEHRKE and Sally Moehrke, Appellees (Defendants). |
| Court | United States State Supreme Court of Wyoming |
Dan R. Price, II of Morgan & Brorby, Gillette, for appellant.
Richard S. Dumbrill of Jones, Dumbrill & Hansen, Newcastle, for appellees.
Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.
Plaintiff-appellant appeals from a judgment rendered against it on a counterclaim of defendants-appellees for breach of contract wherein appellant agreed to provide water, sewer and street services for residents, such as appellees, of Rawhide Village II, a suburban subdivision in Campbell County and not within any city limits. Appellant claims error: (1) in that there was not "sufficient evidence to permit recovery," and (2) in the amount of damages awarded by the court.
We affirm.
Appellees are third-party beneficiaries under a 1975 contract between appellant and Stockmens Bank. The bank made mortgage loans to the owners of property in Rawhide Village II. The contract was entered into in anticipation of such and recites that it was made not only with the bank in its individual capacity "but also as the representative of and for the benefit of the present and future owners or occupants of all and each of the properties, buildings, residences, and other improvements which are now or may hereafter be served by the water supply system, sewer system and street system" of appellant.
In the contract, appellant covenanted and agreed among other things to:
Appellees and other homeowners of Rawhide Village II complained to appellant and others concerning the services rendered by appellant under the contract. To force some action on their complaints, appellees and others began to pay for the utilities into a trust rather than to appellant. Appellant began this legal action against appellees to collect for utility services rendered during the period payments were made to the trust and not directly to it. Appellees counterclaimed for breach of contract. The trial court found for appellant on the complaint and awarded it $500.00 in damages. 1 The trial court found for appellees on the counterclaim and awarded them nominal damages of $10.00 for failure to provide water fit for the purposes intended; nominal damages of $10.00 for failure to provide street maintenance as agreed; $795.00 in damages resulting from sewer backup; and $4,000.00 in damages for diminished value of property because of failure to provide utility services as agreed.
As said in Douglas Reservoirs Water Users Association v. Cross, Wyo., 569 P.2d 1280, 1283 (1977):
"In matters of evidence on review, we apply the monotonously-repeated rule that an appellate court must assume evidence in favor of a successful party to be true, leave out of consideration the conflicting evidence of the unsuccessful party and give the evidence of the successful party every favorable inference which may be reasonably drawn from it. * * * "
A review of the record under this standard reflects that there was ample evidence to support the facts of:
A. A breach of the contract by failing to "supply at all times * * * a sufficient quantity of water to meet the reasonable needs of each of the properties * * * and also so as to produce water without * * * other objectionable characteristics making it unsafe or unsuitable for domestic and ground use * * *," inasmuch as seven witnesses testified that there was presence of midge larvae or "worms" in the water; six witnesses testified that the water had a red "deposit" and color; two witnesses testified to a disagreeable odor from the water; the chief of the volunteer fire department testified that there was inadequate water to fight "any major structural fire, especially a house fire"; and three of the water samples submitted to the State Health Laboratory tested unsafe.
B. A breach of the contract by failing to "provide at all times for each of the * * * residences * * * sewerage service adequate for safe and sanitary collection, treatment and disposal of all domestic sewerage," and to "operate and maintain the sewage system, including the sewage treatment plant in a manner so as not to pollute the ground, air, or water * * * with improperly or inadequately treated sewage, or with noxious or offensive gases or odors," inasmuch as one witness testified to the offensive odor from the sewage plant; one witness (the County Sanitarian) testified to raw sewage on the ground and exposed "sludge" in the plant area; six homeowner witnesses testified to sewage backup in their homes, with resulting odors and necessary cleanups; one witness (appellant's C. A breach of the contract by failing to maintain the street system in good order and repair, inasmuch as four witnesses testified to depressions and sinking of the streets over water and sewer lines and manholes, with resulting trenches and potholes making it difficult to drive on the streets.
engineer) testified that the sewer backups could have resulted in faulty design of appellant's system and equipment; the DEQ inspection reflected that the "sewage has ponded around the plant" and that the plant "has been allowed to deteriorate to a sub-standard condition."
A breach of contract is a failure without legal excuse to perform any promise which forms a whole or a part of a contract. National City Bank of Cleveland v. Erskine & Sons, 158 Ohio St. 450, 110 N.E.2d 598 (1953). It is a " * * * non-performance of any contractual duty of immediate performance. * * * " Restatement of Contracts § 312 (1932). The trial court made a determination that appellant did not perform contractual duties which should have been performed. This determination was adequately and sufficiently supported by the evidence. See Lusk Lumber Co. v. Independent Producers Consolidated, 35 Wyo. 381, 249 P. 790 (1926), reh. den. 36 Wyo. 34, 252 P. 1029 (1927).
Appellant contends that the award of $795.00 was improper since it was for expenses incurred in connection with a sewer backup for which it was not responsible. The trial court found otherwise as a matter of fact, not law. And when gauged by the aforesaid standard under which we must review the evidence, there is adequate support in the record for the finding of the trial court. 2
The specific amounts paid for painting and other cleanup were of record. The record reflects that such activities were a direct result of the backup. The causal connection between the backup and the maintenance and operation of the system by appellant existed in the DEQ report that the plant itself had been allowed to deteriorate to a substantial degree, in the testimony of the County Sanitarian that the pipe size in the main line was inadequate and more susceptible to freezing than would have been a pipe of proper size, and in the testimony of the District Supervising Engineer of the DEQ that "part of the reasons for the backup was * * * attributable to the actual design of the lift station * * * another reason why backups could be expected on this system was that there did not appear to me to be any overall daily operational maintenance or repair of the sewage or water system." From this, the trial court could properly infer that the broken cleanout should have been discovered by appellant and repaired before a freeze particularly in view of the number and frequency of complaints in this area, which should alert appellant to take special care and attention in inspecting all lines having to do with sewage disposal.
Appellant's contention that appellees had not properly mitigated the damages by allowing the muck, etc. to be tracked into an area not flooded, again goes to a determination of fact within the discretion of the trial court. The trial court has considerable discretion as to matters to be considered in mitigation of damages. Thayer v. Smith, Wyo., 380 P.2d 852 (1963).
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