A contest-winning tea maker hoping to sell product on the shelves of grocery giant H-E-B has filed suit against a local bottling company, claiming it botched production, breached a contract and was negligent to the point that mold formed on its 20-ounce and 64-ounce containers.

Houston-based S Rose Punch Sweet Tea LLC, which sought to sell “Savannah Rose Tea,” claims in a lawsuit that Waco Bottling Co. failed to produce a bottle that was “merchantable” or of “fair average quality,” and that it failed to “blend, process and package the product under controlled quality measures,” as it had contracted to do.

The suit claims S Rose Punch Sweet Tea has incurred damages of $97,171, which includes the cost of producing and packaging 64-ounce and 20-ounce bottles, cost of the bottles, caps and labels, transportation and delivery, pallets and ingredients, “among other considerations.”

The suit, originally filed in Harris County but transferred to Waco, claims damages should be adjusted upward to reflect additional damages, and they should be tripled because the defendant committed the acts “knowingly and intentionally” and committed “false, misleading or deceptive acts or practices” in violation of the Texas Business and Commerce Code.

It also seeks $20,000 in damages for mental anguish, a figure that could be tripled, as well as interest on damages, court costs and attorney fees.

The tea producer is pursuing a deal with another bottling company, said Erren Chen, an attorney with the Moriarty Law Firm in Houston who is representing S Rose in the suit. The court has not set a trial date, and he is not involved in negotiations to settle the suit, Chen said.

Asked about his Houston-based client’s choice of a Waco company to provide bottling services, Chen said he was “not quite sure how they went about choosing” Waco Bottling Co., which operates at 209 Otis Drive.

Waco attorney Andy Pattillo, who is representing Waco Bottling Co., said his client denies causing any damage to the product. He described Waco Bottling Co. as a “locally owned, family owned” company founded by Patrick Linstrom capable of bottling drinks, sauces and rubs for customers.

“Customers provide the raw materials, bottles, caps and procedure for making the product, and my client has the equipment and know-how to proceed according to industry standards,” Pattillo said. “Their inventory is their equipment. They don’t keep bottles or raw materials.”

Pattillo said Waco Bottling Co. was hired to fill plastic packaging the tea company provided, but the bottles warped and “essentially melted” during the heating process. S Rose Punch suggested Waco Bottling Co. lower the processing temperature, but the company advised against that, saying reducing the temperature would not comply with industry standards.

“Their expert told us to follow their directions exactly, so my client did,” Pattillo said. “We were pressed to release the product to the vendor earlier than it normally would have been. Shelf-life testing may have made a difference. But whether that ultimately would have made a difference is to be determined.”

He said the legal action remains in its early stages. Discovery remains to be completed, “and both positions are subject to change,” he said.

The suit states Savannah Rose Tea is a “hot-filled” beverage that was entered in H-E-B’s Quest for Texas Best competition. The beverage made it among the top 25 products selected to the final round of judging, according to the suit.

“As such, S Rose began working on the production, packaging and distribution of the beverage to be sold at H-E-B,” the suit states.

In the fall of 2017, some of the plaintiff’s 64-ounce products were placed on H-E-B shelves for sale, according to the suit. About two days later, Waco Bottling Co. notified the plaintiff mold was discovered in the 20-ounce bottles, the suit claims.

“It was later discovered that all the 64-ounce bottles produced by Waco Bottling were either molded or had cap issues, or both, and completely unmerchantable,” the suit states.

A letter signed by Chen and included in the tea company’s legal filing states, “You did not bottle the ingredients in a manner consistent with either industry standards or with the standards provided by my client and its experts.”

The letter states S Rose would have been willing to accept $200,000 in exchange for dropping the claims against the bottling company.

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