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Gary Duspiva Dba Gary Duspiva v. Clyde Fillmore An Individual

January 23, 2013

GARY DUSPIVA DBA GARY DUSPIVA WELL DRILLING & DEVELOPMENT,
PLAINTIFF-APPELLANT,
v.
CLYDE FILLMORE AN INDIVIDUAL, AND JOHN FILLMORE, AN INDIVIDUAL, DEFENDANTS-RESPONDENTS.



Appeal from the District Court of the Third Judicial District of the State of Idaho, Canyon County. Hon. Thomas J. Ryan, District Judge.

The opinion of the court was delivered by: J. Jones, Justice.

2013 Opinion No. 4

Stephen W. Kenyon, Clerk

The judgment of the district court is affirmed.

Gary Duspiva, a well driller, initiated this suit against Clyde and John Fillmore to recover money that he claimed to be owing for well drilling services. The Fillmores counterclaimed, alleging Duspiva violated the Idaho Consumer Protection Act*fn1 (ICPA). The matter proceeded to a court trial. The district court found that Duspiva's conduct violated the ICPA and granted judgment in favor of the Fillmores. Duspiva appealed to this Court.

I.

FACTUAL AND PROCEDURAL HISTORY

Duspiva is the owner of Gary Duspiva Well Drilling & Development. Clyde Fillmore met with Duspiva on June 11, 2007, to discuss drilling a well. At the June 11 meeting between Duspiva and Clyde, the parties discussed the well location and the conditions of the drilling services. Clyde decided where the well would be located. Duspiva informed Clyde that the well would cost $32.50 per foot of drilling, plus all incidental costs. Duspiva told Clyde that his allowance for sand in the well water was one pinch of sand per five gallons of water. Duspiva advised Clyde that he did not use sand screens in his wells, but he did not provide any explanation for his practice of not using screens. The parties did not execute a writing to memorialize this discussion.

On the same day, Duspiva met with John Fillmore to execute a Start Card Permit, an Idaho Department of Water Resources (IDWR) form that authorizes a well driller to commence drilling. The Start Card was filled out by Duspiva, signed by John, and submitted to IDWR by Duspiva. The Start Card permitted Duspiva to drill a "domestic well for a single-family residence." Further, the Start Card proposed a maximum well depth of 200 feet and required Duspiva to cease drilling and contact IDWR "if a bottom hole temperature of 85 F. or greater [is] encountered."

Duspiva began drilling on June 12, 2007. The district court described Duspiva's progress as follows:

Gary Duspiva first hit water at 85 feet. Thereafter, he hit water at 128-131 feet and 148-153 feet. At each layer, he noted the presence of brown sand and fine brown sand. He next hit water at 320-348 feet. At this level, the temperature was 70 degrees and he noted the presence of 3 tablespoons of sand per 5 gallon bucket and a flow of 10 gallons per minute. He next hit water at 360-362 feet. At this level, the temperature was 77½ degrees and he noticed the presence of 2 teaspoons of sand per five gallon bucket and a flow of 12 gallons per minute. Mr. Duspiva continued to drill and next hit water at 580-585 feet and again at 642-650 feet, at 670 feet, at 691 feet, at 701 feet, and finally at 836 feet on or about August 8, 2007. With each development the temperature of the water increased. At approximately 600 feet the temperature of the water rose to 85 degrees and thereafter continued to increase and at 836 feet reached a temperature of 91½ degrees.

Upon encountering the 85 degree water at 600 feet, Duspiva did not cease drilling or contact IDWR.

On August 9, 2007, Duspiva informed Clyde that, while drilling, he encountered low temperature geothermal (LTG)*fn2 conditions. At this time the well had been drilled to a depth of 836 feet, but Duspiva had encountered LTG conditions at approximately 600 feet. Duspiva did not explain to the Fillmores the legal or monetary significance of reaching LTG conditions.*fn3 Duspiva recommended that they continue to drill deeper or they would have to return to an upper level and would risk perforating the case and ruining the well. The Fillmores agreed to drill deeper. Also on August 9, Duspiva contacted IDWR and informed the department that he had encountered LTG conditions and that he wanted to drill deeper to complete the well.

On August 16, 2007, Duspiva presented John with an Application for Drilling Permit, which proposed a new well with a maximum depth of 1000 feet and an anticipated bottom hole temperature of 85 degrees to 212 degrees. The application was approved by IDWR on August 20, 2007, and Duspiva re-commenced drilling. On September 26, 2007, when Duspiva completed drilling, the well was 1130 feet deep and the water was 102 degrees.

On October 23, 2007, at a joint meeting with IDWR and Duspiva, the Fillmores first became aware of the ramifications of having an LTG well. Subsequently, the parties were unable to reach a resolution regarding completion of the well. Duspiva billed a total of $50,665 for his drilling and construction services. Clyde made two payments in the amount of $10,000, the first on August 3, 2007, and the second on September 13, 2007. On October 3, 2008, Duspiva filed suit against the Fillmores to recover the claimed balance of $30,665. The Fillmores filed a counterclaim with their Answer, seeking recovery for breach of contract/unjust enrichment and for violation of the ICPA.

While the case was awaiting trial, IDWR conducted an administrative proceeding to determine what course of action should be taken to address the Fillmores' unwanted LTG well. On November 6, 2008, IDWR issued a memorandum concluding that the well should be abandoned. That conclusion was reached due to the expiration of the drilling permit, the deteriorated relationship of the parties, and the unwillingness of Duspiva to provide any additional work to complete or abandon the well until he was paid in full. IDWR solicited bids from licensed well drillers to complete the closure of the well. Down Rite Well Drilling was selected to oversee the closure of the well. The Fillmores and Duspiva split the closure fee, approximately $13,000.

The Fillmores then hired Down Rite to drill a new domestic well on John's property. Down Rite drilled a productive domestic cold-water well forty feet from the original well site to a depth of 320 feet, using a filter pack and a screen, for approximately $18,000.

Prior to trial, the court addressed a Motion in Limine filed by Duspiva seeking to exclude the Fillmores' expert witness, Ed Squires,*fn4 on the grounds that his opinions were not timely disclosed. The court found merit in Duspiva's late disclosure argument, but ultimately held that Squires' testimony would help in educating the court on certain well drilling practices. Thus, the court held that Squires could testify in order to aid the court in understanding the evidence, but that Squires could not testify as to any opinions he had regarding Duspiva's conduct.

On August 23, 2010, the court trial commenced. The district court issued its Findings of Fact and Conclusions of Law on October 18, holding that Duspiva violated the ICPA and awarding the Fillmores actual damages in the amount of $27,500.*fn5 The Fillmores sought and the court granted an award of attorney fees under I.C. § 48-608(5). Duspiva timely appealed to this Court.

II.

ISSUES ON REVIEW

1. Did the district court err in finding that Duspiva's conduct violated the ICPA?

2. Did the district court cumulatively apply the alternative remedies of I.C. § 48-608(1)?

3. Did the district court err in allowing Ed Squires to testify as ...


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