2005-328, GLADYS LEE DURGIN v. PILLSBURY LAKE WATER DISTRICT

The plaintiff, Gladys Lee Durgin, appeals an order of

orally), for the defendant.

Upton & Hatfield, LLP, of Concord (Matthew R. Serge on the brief and

brief and orally), for the plaintiff.

Cleveland, Waters and Bass, P.A., of Concord (Mark D. Wiseman on the to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. GLADYS LEE DURGIN

No. 2005-328 editorial errors in order that corrections may be made before the opinion goes Franklin District Court Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as purposes of operating the water system, p. 2 water supply. In 1968, the residents voted to establish the Water District for

off. According to Durgin, if she failed to make payment, her water would be shut two types of such motions in

subdivision, provided the Durgins with a brochure that advertised the homes Prior to their purchase, Town and Country Homes, Inc., the agent for the husband purchased a home in Webster at the Pillsbury Lake Subdivision.

enforceable as a private, individual right of action . . . .” This appeal followed. Water District. The Durgins continued to pay an annual fee for their water. while “[g]overnmental obligations may exist . . . , [they] are not obligations and Country Homes conveyed the equipment for the water services to the how the court treated the motion to dismiss, based upon our discussion of the law.” implied private contract.” From the trial court order, it is unclear to us as to see RSA 52:1 (Supp. 2005), and Town stated in its order: “I do not find that [Durgin’s] evidence today supports an preponderance of the evidence. those facts to determine whether the plaintiff had established her case by a

The following facts were undisputed. In June 1965, Durgin and her late case, would result in our review using “the familiar under either standard. in Renovest, is applicable here, as we determine that Durgin cannot prevail the [parties] which [was] enforceable as [an] individual right of action,” and that Id. at 78. We need not decide which particular standard, as illustrated dismissal unless it is inconsistent with the findings or otherwise contrary to these findings of fact, unless they are clearly erroneous, nor will we reverse the evidentiary hearing, the trial court granted the Water District’s motion and Id. at 76-78. “On appeal, we will not overrule

case, would usually result in the trial judge making findings of fact and using Renovest, 135 N.H. at 76. The second, requesting an expedited disposition of a taking all evidence introduced and resolving all conflicts in [Durgin’s] favor.”

N.H. 72, 76-78 (1991). The first type, used to assess the legal sufficiency of a

ruled that the evidence failed to support “an implied private contract between plaintiff’s case, the trial court granted the Water District’s motion to dismiss. It evidence on whether a contract existed between the parties. At the close of the that motion was made after Durgin had presented her case. Concluding the involves a ruling by the trial court on the Water District’s motion to dismiss, applicable standard of review. Although the procedural posture in this case Before reviewing the evidence presented at trial, we turn first to the

trial court bifurcated the proceeding and conducted a bench trial, first hearing costs associated with the installment of an artesian well on her property. The of her case was inconsistent with its finding or is otherwise contrary to law. p. 3 shown that the trial court’s findings were clearly erroneous or that its dismissal

existence of an implied contract. In addition, we conclude that Durgin has not

contract. that she failed to present sufficient evidence to support the existence of such a at twenty pounds of pressure per square inch. The trial court disagreed, ruling

trial court’s ruling that there was insufficient evidence to support the claimed latter contention because we conclude that the record before us supports the with its obligations to provide water to homeowners. We need not reach the

least as of 2003, the implied term required the Water District to provide water

law no contract can be implied between it and private individuals in connection

an adequate supply of water was an implied term of the contract, and that at

an implied contract. Further, the Water District contends that as a matter of

District, based upon the conduct between them, that the obligation to provide Durgin maintained that she had an enforceable private contract with the Water her request, she filed suit, claiming breach of an implied contract. At trial,

supported by adequate consideration, to be bound by the contract.” Fleet understanding of the terms of the contract and must manifest an intention, contractual terms. Id. That is, “[t]he parties must have the same For a meeting of the minds to occur, the parties must assent to the same contends that the conduct between it and Durgin does not support a finding of and a meeting of the minds. Tsiatsios v. Tsiatsios, 140 N.H. 173, 178 (1995). acknowledged its “obligations” to supply her with water. The Water District A valid, enforceable contract requires offer, acceptance, consideration, upon language in a letter she received from the Water District in which it

sought reimbursement for her costs from the Water District. When it refused

at peak flow. chapter 485, to provide water at a minimum of twenty pounds per square inch

residence demonstrates the existence of an implied contract. She further relies between the parties in which she paid a fee in exchange for water service to her implied contract was formed. She contends that the quid pro quo conduct District’s system and installed an artesian well on her property. She then On appeal, Durgin argues that the trial court erred in ruling that no water supply, Durgin unilaterally discontinued her connection to the Water provided at all for several days. Although the parties discussed the insufficient

promulgated pursuant to the New Hampshire Safe Drinking Water Act, RSA

residence at a pressure below the required minimum and, at times, not the evidence at trial, during a portion of 2003, water was supplied to Durgin’s

See N.H. Admin. Rules, Env-Ws 301.02, 372.32(b). According to

District acknowledges that it was obligated under the administrative rules, the sill elevation of each lot or unit shall be at least 20 psi.”). Indeed, the Water (effective Nov. 30, 2005; formerly Env-Ws 372.27(a)) (“At peak flow, pressure at supply water at a certain pressure. See N.H. Admin. Rules, Env-Ws 372.32(b) Durgin was aware of State standards that required the Water District to house meets state standards, we see that we have met all

p. 4 actions we have taken towards upgrades, and because water pressure at your

and not private contractual duties. Specifically, it stated: “Because of the that the Water District was referencing its compliance with “state standards” “obligations” to supply water to Durgin, such language reasonably indicates

beyond or apart from its obligations to do so under law. exhibit any intent of the Water District to enter into a private implied contract 4 water fee in exchange for water for her residence, without more, does not

Moreover, while the Water District acknowledged in correspondence its

of an implied contract. The mere fact that Durgin paid taxes and an annual Services (DES) determined in an action unrelated to the plaintiff’s contract that in March 2004, the New Hampshire Department of Environmental before Superior Court or Administrative Agencies of the State.” We further note the Pillsbury Lake Subdivision],” and Durgin does not challenge this finding. motion to dismiss “without prejudice as to other possible enforcement/claims District “assumed [the] private agreements or obligations of the developer [of Finally, we note that the trial court order granted the Water District’s expressly found that there was insufficient evidence to establish that the Water required to furnish water in accord with specific regulatory standards. implied contract existed between the parties. water to the subdivision residents, and the parties do not dispute that it was (Emphasis added.) Accordingly, we affirm the trial court’s ruling that no

erred in concluding that the evidence was insufficient to establish the existence

178 (meeting of minds required for creation of contract). The trial court

We conclude that the plaintiff failed to demonstrate that the trial court

gave rise to an implied-in-fact contract that Durgin could enforce. written words, may establish an enforceable, implied-in-fact contract, exclusively upon whether the conduct of the parties as reflected in the record N.H. Admin. Rules, Env-Ws 372.32. The case before us, however, focuses

The Water District’s obligation to provide Durgin’s residence with water is

N.H. 76, 82 (1992). insufficient to create an implied contract,” Short v. School Admin. Unit 16, 136 Town of Tilton, 121 N.H. 511, 514 (1981), subjective expectations “are Harrison v. Watson, 116 N.H. 510, 511 (1976); Morgenroth & Assoc’s, Inc. v.

N.H. 28, 43 (200 p. 5 5). Although the conduct of the parties, apart from oral and 288, as is the issue of the existence of a contract, Gulf Ins. Co. v. AMSCO, 153 question to be determined by the trier of fact,” Fleet Bank—NH “The question of whether a ‘meeting of the minds’ occurred is a factual manifest,” id., based upon an objective standard, Tsiatsios, 140 N.H. at 178. assent is not sufficient; a ‘meeting of the minds’ requires that the agreement be Bank—NH v. Christy’s Table, 141 N.H. 285, 287-88 (1996). “Mere mental 5

violations are discovered.

requirements and will take appropriate action if additional monitor the . . . Water District’s compliance with applicable applicable drinking water statutes and rules. DES will continue to

The . . . Water District remains obligated to comply with all

DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

The DES order concluded: Affirmed.

in this Order, as well as for failing to comply with this Order itself. fines, civil penalties, and criminal penalties for the violations noted Please note that RSA 48 p. 5 5:58 provides for administrative

within a prescribed time, the deficiencies that had led to the various violations. Admin. Rules, Env-Ws 372.32(b). DES ordered the Water District to correct, including the requirement that it provide water at a certain pressure. See N.H. claim that the Water District had violated various administrative regulations,