Willis v. Dilden Bros., Inc.

• Decision Date: 25 February 2022
• Docket Number: Court of Appeals Case No. 21A-CT-378
• Parties: Robert D. WILLIS and Cindy L. Willis, Appellants-Plaintiffs/Cross-Appellees, v. DILDEN BROTHERS, INC., Appellee-Defendant/Cross-Appellant
• Court: Indiana Appellate Court

184 N.E.3d 1167

Robert D. WILLIS and Cindy L. Willis, Appellants-Plaintiffs/Cross-Appellees,

v.DILDEN BROTHERS, INC., Appellee-Defendant/Cross-Appellant

Court of Appeals Case No. 21A-CT-378

Court of Appeals of Indiana.

FILED February 25, 2022

Attorney for Appellants: Duran L. Keller, Keller Law, Lafayette, Indiana

Attorney for Appellee: Benjamin M. Mattingly, Reiling Teder & Schrier, LLC, Fort Wayne, Indiana

Crone, Judge.

Case Summary

[1] Robert D. Willis and Cindy L. Willis filed a four-count complaint against well drilling company Dilden Brothers, Inc. (Dilden), alleging that Dilden's employees violated several consumer protection statutes by removing and replacing their well pump and other plumbing without their consent and without a written contract and by attempting to collect an invalid debt. Dilden filed a motion for partial summary judgment on Count 4, which the trial court granted. After a trial, the jury found in favor of the Willises and awarded them damages on all counts, including $115,000 on Count 4. Dilden filed a motion to correct error as to Counts 2 and 4, alleging that the damages were excessive. Based on its concern that the jury improperly included attorney's fees in its damages award on Count 4, the trial court vacated that award sua sponte and denied Dilden's motion to correct error. The Willises filed a motion for recusal, which the trial court also denied. After a bench trial on statutory damages and attorney's fees, the trial court awarded the Willises additional damages on Counts 1 and 3, $15,000 in damages on Count 4, and over $103,000 in attorney's fees.

[2] The Willises now appeal, arguing that the trial court erred in vacating the jury's damages award on Count 4, in granting partial summary judgment for Dilden on that count, in denying their motion for recusal, and in determining the amount of the attorney's fees award. Dilden cross-appeals, arguing that the trial court erred in denying its motion to correct error as to Count 2 and in awarding damages on Counts 3 and 4. We affirm in part and reverse in part.

Facts and Procedural History¹

[3] In 1987, the Willises moved into their Lafayette home, which was served by a private well of unknown age. Robert determined that the well "had good water," with "no lime, sulfur, or iron that sort of thing." Tr. Vol. 2 at 202. In 2005, Robert, who ran the research machine shop for the mechanical engineering department at Purdue University, installed in his basement a "Sears best" deep well jet pump with a foot valve,² hydraulic arrestors, a pressure switch, and a forty-four-gallon holding tank with a pressurized bladder, all of which he purchased for approximately $1,100. Id. at 202-04. Robert, who was born in 1951, thought that the pump was "probably going to last [him] the rest of [his] life." Id. at 202. According to Robert, that water system "supplied all of the [household's] needs" without losing pressure. Id. at 205. The Willises "could run everything. Wash cars, take showers." Id.

[4] One night in early February 2018, Robert heard the "pump kick on[,]" which he thought was "just a little funny" because "nobody had been running any water[.]" Id. An hour later, he heard the noise again and checked the house for running water, but he found none. He went into the basement and inspected the holding tank. When the tank was full, he saw the "pressure gauge slowly dropping," which caused the pump to "kick back on and fill that tank back up." Id. at 206. He suspected that either the foot valve or a check valve in the pump system was leaking water "back down the well." Id. He "really didn't think there was anything wrong with [the] pump" itself. Id. Robert "had a plan" to replace the foot valve himself if that turned out to be the source of the leak. Id. at 207.

[5] On February 5, Robert called Dilden and told the receptionist that he "wanted a second opinion so [he] could verify what [he] was thinking." Id. at 206. The receptionist told Robert that a service call would cost $150, which he agreed to so that he could either "confirm what [he] thought" or see if "it was something else[.]" Id. at 207. Later that day, three Dilden employees, one of whom was Norian Mundy, arrived at the Willises’ home. Robert took them down to the basement, told them "about the pump kicking on periodically[,]" and stated that he "believed it was the foot valve[.]" Id. at 208, 209. Robert and Mundy "played around with" the water system, and Mundy "agreed with [Robert] it was the foot valve." Id. at 210. But Mundy told Robert that he did not want to repair the foot valve because the system was "ancient[,]" and he was "not even sure they make this stuff anymore[.]" Id. Robert was skeptical about this, and after listening to Mundy talk "for a while" about "submersible pumps[,]" he told Mundy that he would "sleep on it." Id. at 211. Mundy replied, "[W]e're a very busy company and [...] we've got jobs all of the time, right now you're in the queue and if you wait any time at all you won't be in the queue and you'll be stuck out here without water." Id. Robert said, "[A]ll of the same, I am going to think about this for a little while and sleep on this." Id. at 212. Mundy reiterated that Dilden was "a very busy company" and stated, "[T]omorrow after we get our jobs done maybe we can [...] stop later in the day and see what you're thinking." Id. at 212.

[6] After Mundy and his coworkers left, Robert went to a home improvement store and confirmed that replacement parts for his water system, including foot valves, were still available. Early the next morning, as Cindy was getting ready to go to work, the now-retired Robert went to a fast-food restaurant to get breakfast, review some plumbing brochures he had gotten at the store, and "sit and think about this stuff and make a decision." Id. at 214. When Robert returned home, a truck was parked in his driveway, and Cindy told him that the "guys" who "were there yesterday" were "downstairs making a lot of noise." Id. at 215.³ Robert was "surprised" at this news and went into the basement to find "plum[b]ing parts all over[,]" "holes drilled into [his] concrete block wall[,]" and a Dilden employee "going to mount [a] box in there on the wall." Id. at 216. Robert asked what was going on, and the man replied, "There's two guys outside you need to go and talk to them I can't tell you anything." Id.

[7] Robert went outside and saw two of the Dilden employees who had been there the day before. They had "dug a hole" at the Willises’ well site and were "taking things apart and kind of [making] a mess[.]" Id. at 217. Robert told them to follow him into the basement and demanded to know what was going on. One of the men said that "they were not used to customers asking questions" and told Robert to "go somewhere and sit down." Id. Robert told the men to stop working, but they did not, so he called Dilden and told the receptionist that he wanted to talk to Mundy and that he wanted "everything stopped [...] now." Id. at 219. Eventually, Mundy arrived at the Willises’ home, conferred with his coworkers, and told Robert, "[W]e're going to try to get you some water." Id. at 221. Robert reminded Mundy that he "already had water" before the Dilden crew arrived, but at that point the original plumbing had been "torn apart and thrown aside." Id. at 226.

[8] The Dilden employees unsuccessfully attempted to install a four-inch-diameter pump in the well and ultimately installed a three-inch pump with restrictors that significantly reduced the flow of water. They also replaced the forty-four-gallon holding tank with a "dinky" seven-gallon tank. Id. at 230. Mundy told Robert that the pump would "get [him] enough water that [he] could get a drink" but that "if [he was] going to shower [he] might have enough to flip on [himself.]" Id. at 226. Mundy also stated, "I think you're going to need a new well." Id. Robert rejected Mundy's proposed sites for the well, which were either in an easement that the Willises did not own or in the drain field for the Willises’ "kitchen sink" and "washer[.]" Id. at 227. Several days later, Dilden sent the Willises an estimate of $7,000 for drilling a new well, relocating the recently installed components, and abandoning the existing well.

[9] At the end of February, Dilden sent the Willises an invoice for $3,254.74 for the parts installed and labor performed on February 6. The invoice states, "Service charges at the rate of 1.5% per month corresponding to an annual rate of 18%, along with costs, expenses and attorney fees will be charged on all unpaid balances after 30 days[.]" Ex. Vol. at 39. Robert called Dilden two or three times and asked to speak with the owner about the invoice, but he never got to talk to him.

[10] Around June 2018, Dilden sent the Willises an invoice summary showing three finance/late charges totaling $149.17 and an outstanding balance of $3,403.91, as well as a "Final Notice" that reads,

To date we have received no correspondence to your $3403.91 debt to our company. This, following numerous attempts to collect, will be your final notification prior to our referring your debt to an outside collection firm.

Your balance is 80 days past due. We intend to close this matter within no more than 10 business days of 06/18/18. Your full payment by that date will stop this process.

If you fail to respond to this notice, you will be contacted by a collection firm and can no longer be assisted by our company in preventing this potential credit-affecting collection to take place.

Id. at 47.

[11] In August 2018, Dilden filed a complaint against the Willises in small claims court, seeking $3,254.74 plus $232.74 in interest and $600 in attorney's fees. The Willises retained counsel Duran Keller. On October 9, 2018, Keller sent Dilden a three-page demand letter that summarized the Willises’ account of the foregoing events and further stated in pertinent part,

The Willises have been living these past months with a substandard

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