DUSTIN D. SCHELL and LONNIE N. SCHELL, Appellants (Plaintiffs),
DUSTIN SCALLON and LANCE SCALLON, Appellees (Defendants).
from the District Court of Campbell County The Honorable
Thomas W. Rumpke, Judge
Representing Appellant: Randall T. Cox, Cox, Simper &
Thrall, Gillette, Wyoming. Argument by Mr. Cox.
Representing Appellee: Tad T. Daly, Daly & Sorenson, LLC,
Gillette, Wyoming. Argument by Mr. Daly.
DAVIS, C.J., and BURKE, [*] FOX, KAUTZ, and BOOMGAARDEN, JJ.
Appellants, Dustin and Lonnie Schell (collectively,
"Buyers"), purchased a residential property from
Appellees, Dustin and Lance Scallon (collectively,
"Sellers"). The purchase contract for the property
required, "Seller to complete a fully functional water
well prior to closing." Buyers alleged Sellers failed to
comply with that requirement and breached the contract. After
a bench trial, the district court entered judgment in favor
of Sellers. We affirm.
We consolidate and rephrase the issues in this case as
the district court err when it ruled that Sellers completed a
fully functional well by closing and, thus, did not breach
the purchase contract?
the district court commit reversible error by excluding
particular testimony or exhibits offered by Buyers?
Prior to listing their residential property for sale, Sellers
obtained water by hauling it to a cistern on the property,
but they understood potential buyers may not be able to
obtain financing to purchase a property that lacked its own
water supply. Sellers consequently decided to drill a water
well, and around the end of January 2015, Sellers contracted
with Stan Davis to drill the well. Sellers obtained a
groundwater permit from the State Engineer's Office in
February, and Mr. Davis began drilling in March.
Sellers listed the property for sale about a month after
contracting with Mr. Davis. On March 1, 2015, Buyers offered
to purchase the property. Buyers used a standard Wyoming
Association of Realtors form for their proposed purchase
contract. Buyers supplemented the form's boilerplate
language with four "additional provisions," one of
which required, "Seller to complete a fully functional
water well prior to closing." Buyers did not request any
other terms or conditions be included related to drilling the
well, and the contract did not reference any standards or
performance specifications for the well other than being
"fully functional." Sellers responded with a
counter-offer that included the well requirement, unamended,
and Buyers accepted the counter-offer three days later.
The parties initially scheduled the closing date for June 1,
2015, but at Buyers' request, the parties moved up the
date to May 11th, and then again to April 27th. Despite the
expedited timeframe, Mr. Davis completed the well and
installed a pump on April 10, 2015. Sellers used the well
prior to closing and did not have any issues with the well or
the taste, clarity, or quantity of water from the well. At
the time of closing, Sellers believed the well was fully
Buyers did not inspect the well prior to closing, other than
obtaining a water sample that passed their lender's
required test. Buyers moved into the home on the day of
closing. Around the time of closing, Sellers requested that
Mr. Davis install a deeper, more powerful pump, at no charge
to Buyers, to help the well function better during drought
conditions. Buyers consented, and Mr. Davis returned to the
property after the closing and installed the new pump.
Buyers began experiencing problems with the well over the
next several months, including discolored water, algae, and
silt clogging water filters and appliances. At Buyers'
request, Mr. Scallon returned to the property on a few
occasions to install landscaping and to help Buyers fix a
problem with the booster pump, which was separate from the
well and moved water from the cistern into the home. The
district court judge heard conflicting testimony at trial on
whether Buyers informed Mr. Scallon about their concerns with
the well during that time.
In March 2016, Buyers sought advice about killing the algae
in their water system from Cliff Ruby, a licensed well
driller. He recommended applying chlorine tablets in the well
casing and cistern, but that did not end the problem. The
well quit working on June 27, 2016, prompting Buyers to have
their well inspected and to contact Mr. Ruby again. The
well's pump and tubing were pulled, and Josh Cowan with
Windcreek Services lowered a camera down the well and made a
video recording. Following the inspection, Buyers accepted
Mr. Ruby's recommendation and had Mr. Ruby plug the well
and drill a new one.
Buyers initiated this action against Sellers in December
2016, raising claims of fraud, negligence, and breach of
contract. The fraud and negligence claims were dismissed on
summary judgment and are not part of this appeal. The
district court conducted a bench trial on the breach of
contract claim. Witnesses at the trial included Dustin
Schell, Dustin Scallon and his wife, Danielle, and
representatives of the companies that helped with Buyers'
post-closing well inspection. Buyers also called Mr. Ruby as
an expert witness. He testified that he found problems with
the well's construction when he viewed the downhole video
and later plugged the well in June 2016. He testified that he
thought the video showed a hole in the casing but admitted he
did not know when that hole was created. Mr. Ruby also opined
that the well did not comply with the State Engineer's
minimum construction standards for water wells or with common
industry practices. Mr. Ruby opined that the well was not
functional when he observed it, but later admitted that he
believed a well could still be functional even if it did not
comply with the minimum construction standards.
[¶10] After trial, the district court ruled that Buyers
did not satisfy their burden of proof and concluded that
Sellers had completed a fully functioning water well prior to
closing. The district court entered judgment in favor of
In this case, the Plaintiffs' real estate agent added the
language requiring the water well. That language did not
require a well that produced a certain amount of water. It
did not require a well that produced water of a certain
quality (although the evidence established that the one test
of the water that the Plaintiffs' real estate agent
performed showed the water to be satisfactory). The contract
did not require that the well meet certain minimum
engineering standards. The contract did not require that the
well produce water for a certain period of time.
Based upon the totality of the evidence, the Court concludes
that the well was fully functional as of the date of closing.
It produced sufficient water for a single family residential
dwelling, which was the purpose of the contract. Although the
Court considered the expert testimony, that testimony
established that the well, as constructed, could function.
While it may have been a "marginal" well, the well
was a fully functional water well for at least a couple of
weeks after closing. Any warranties beyond the well
functioning at the time of closing would have been subsumed
by the contract's right to inspect and the "as
is" clause. See Rogers v. Wright, 2016 WY 10,
¶ 38, 366 P.3d 1264, 1277 (Wyo. 2016).
appealed the district court's judgment.
After a bench trial, we review the trial court's findings
of fact for clear error and its conclusions of law de novo.
Moore v. Wolititch, 2015 WY 11, ¶ 9, 341 P.3d
421, 423 (Wyo. 2015) (citing Clark v. Ryan Park Prop.
& Homeowners Ass'n, 2014 WY 169, ¶ 6, 340
P.3d 288, 289 (Wyo. 2014)). A trial court's rulings on
the admissibility of evidence are within its sound discretion
and we will not disturb those rulings absent a clear abuse of
discretion. Black Diamond Energy, Inc. v. Encana Oil
& Gas (USA) Inc., 2014 WY 64, ¶ ...