221 P.3d 1130 (Kan. 2009), 97,494, Unruh v. Purina Mills, LLC

Docket Nº:97,494.
Citation:221 P.3d 1130, 289 Kan. 1185
Opinion Judge:PER CURIAM:
Party Name:Kenneth E. UNRUH and Robert K. Carter, Appellees, v. PURINA MILLS, LLC, Appellant.
Attorney:Matthew M. Merrill, of Brown & Dunn, P.C., of Kansas City, Missouri, argued the cause, and Julie J. Gibson, of the same firm, was with him on the briefs for appellant. Randall K. Rathbun, of Depew Gillen Rathbun & McInteer LC, of Wichita, argued the cause, and, Jack Scott McInteer, of the same fi...
Judge Panel:ROSEN, J., concurring in part and dissenting in part: DAVIS, C.J., and BILES, J. join the foregoing concurring and dissenting opinion.
Case Date:December 11, 2009
Court:Supreme Court of Kansas

Page 1130

221 P.3d 1130 (Kan. 2009)

289 Kan. 1185

Kenneth E. UNRUH and Robert K. Carter, Appellees,



No. 97,494.

Supreme Court of Kansas.

December 11, 2009

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Syllabus by the Court

1. The standard of review for a district court decision to consolidate cases for trial is abuse of discretion.

2. Where the underlying facts and multiple plaintiffs' theories at trial are substantially the same, the statutory requirements for joinder are satisfied.

3. The pretrial order supersedes any pleadings and has the effect of amending the pleadings to conform to it.

4. If a party has an objection to a pretrial order, the party must file the objection in writing with the district court.

5. When the trial court grants or denies a motion in limine and the evidence is introduced at trial, the moving party must object at trial to the admission of the evidence to preserve the issue for appeal.

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6. Proof of willful conduct under the Kansas Consumer Protection Act requires proof of intent to harm the consumer.

7. When a verdict is challenged as being contrary to the evidence, an appellate court does not reweigh the evidence or pass on the credibility of the witnesses. If the evidence, when considered in the light most favorable to the prevailing party, supports the verdict, the appellate court should not intervene.

8. The failure to object to a jury instruction invokes a clearly erroneous review standard, whereby a court must be able to declare a real possibility existed that the jury would have returned a different verdict if the trial error had not occurred.

9. The caption of a document submitted to a jury will not generally be a source of reversible error.

[289 Kan. 1186] 10. The issue of the district court's authority to award attorney fees is a question of law over which appellate review is unlimited. Where the trial court has authority to grant attorney fees, its decision is reviewed under the abuse of discretion standard.

11. A court may not award attorney fees absent statutory authority or an agreement by the parties. Without such authority, a trial court's equitable powers do not extend to the awarding of attorney fees.

12. Where several causes of action are joined and only some of them permit the award of attorney fees, the work on the several causes must be segregated in determining an appropriate attorney fee award; however, where different causes of action are based on mutual facts and it would be difficult if not impossible for counsel to segregate the time spent prosecuting each theory, attorney fees may be awarded despite the failure of counsel to segregate the time spent on each claim.

Matthew M. Merrill, of Brown & Dunn, P.C., of Kansas City, Missouri, argued the cause, and Julie J. Gibson, of the same firm, was with him on the briefs for appellant.

Randall K. Rathbun, of Depew Gillen Rathbun & McInteer LC, of Wichita, argued the cause, and, Jack Scott McInteer, of the same firm, was with him on the briefs for appellee.


On review of the judgment of the Court of Appeals in Unruh v. Purina Mills, No. 97,494, 2008 WL 7297075, unpublished opinion filed June 27, 2008, Purina Mills, LLC, appeals from the jury verdict and award of attorney fees entered against it in a breach of warranties and Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq. action involving feed supplements supplied to two cattle ranchers.

A comparison with the record on appeal establishes that the statement of facts contained in the decision of the Court of Appeals is accurate and sufficient for purposes of review, as follows:

[289 Kan. 1187] " Kenneth E. Unruh and Robert K. Carter are neighboring cattle ranchers. In August 2003, Unruh attended a seminar conducted by Purina Mills, LLC (Purina), to promote a self-feeding system designed to reduce labor, save time, permit cattle to perform to their highest genetic ability, and boost total net return. The system used a creep feeder that distributed a product known as ‘ 2HL,’ which supplements a diet of grass or hay. 2HL is a mixture of corn, sunflower seed, cottonseed, and soybeans that varies from batch to batch. Purina calculates the cheapest mixture based on current costs that provides the promised nutrition content. This technique— the least cost formula— has been used in the animal feed industry for the past 50 years. Each bag of 2HL has a tag that guarantees the mixture contains a minimum amount of certain ingredients.

" Unruh was impressed with the system and told Carter about it. As a result, Unruh and Carter agreed to purchase the system. They received their first load of 2HL in late November 2003. They had no initial problems with the system other than regulating the flow of feed from the feeder. Tim Peissig, Purina's district manager, and Kent Hansen, the owner of the local retail distributer, observed Unruh's cows 2 weeks later and concluded that the system

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was working properly. However, Hansen noted that Unruh had no hay and very little grass available to his cattle and reminded Unruh to provide the cows with an ample supply.

" When Unruh and Carter received their second load of 2HL in late December 2003, they noticed that the feed had a different color than the first batch and was hard and oily in texture. They had to break the feed apart with crowbars and claw hammers to make the product edible for their cows. Over the next several weeks, Unruh and Carter continued to break up the 2HL in the feeders daily, but their cattle's consumption of the feed dropped and the cows began losing weight.

" In February 2004, Unruh notified Purina of these problems. Peissig and Hansen returned to Unruh's ranch, and Hansen again noted the lack of hay for Unruh's cows. Testing of the feed revealed that Purina had changed the formula for 2HL between the first and second batch. Sunflower meal increased from 5% to 15% and cottonseed meal decreased from 10% to 0%. Nevertheless, the mix met Purina's nutrition specifications.

" Peissig and Hansen attempted to solve Unruh's problems by delivering to Unruh a batch consisting of 80% 2HL and 20% corn. Pending delivery of this new batch, Unruh fed his cows as much hay as possible as Peissig had suggested. Carter also fed his cows more hay as soon as they began to lose weight.

" When Peissig and Hansen returned a couple of weeks later, nearly a dozen of Unruh's and Carter's cows had died and others aborted their calves and had to be sold at a loss.

" In August 2005, Unruh and Carter filed a suit against Purina claiming damages for breach of express and implied warranties. The court later granted them leave to amend their petition to include claims for breach of the Kansas Consumer Protection Act (KCPA), K.S.A. 50-625 et seq. Unruh and Carter never filed and served an amended petition which included their KCPA claims, though a proposed [289 Kan. 1188] amended petition was attached to their motion for leave to amend. The claim was later set forth in the pretrial order.

" Purina moved to sever for trial the separate claims of Unruh and of Carter. The district court denied the motion. Purina also moved in limine to prohibit Unruh and Carter from expressing lay opinions on causation. In overruling the motion, the [judge] observed:

" ‘ Mr. Carter and Mr. Unruh, their profession is in raising cattle, and in that respect an integral part of that business is feeding cattle and putting weight on cattle so that they can maximize their profits when these cattle are sold. And doing that kind of business, they acquire certain knowledge about cattle and what they eat and what they're fed, and I think that they are qualified to offer testimony in that regard.’

" At trial, Bret Galyardt, a Purina employee engaged in quality control, testified that cold weather and other variables may affect the flowability of feed, though not to the extent that a rancher should be expected to have to break apart the feed with a hammer or a crowbar. Peissig testified that he was aware that 2HL had flowability problems in very cold weather, but he did not inform Unruh and Carter of this because it did not happen very often.

" Unruh testified that the switch to 2HL did not reduce his labor or time or ensure his cattle would perform to the best of their genetic ability. To the contrary, he believed that his cows' inability to feed on the 2HL due to the flowability problem resulted in many of them dying or aborting their calves. Nevertheless, he did not disagree with the statement that Purina wanted him to succeed in the use of 2HL. He testified that the use of 2HL caused the death of 5 registered Angus cows, the reduced value of 14 other cows, and the loss of calves due to 59 cows aborting. Unruh claimed damages of $50,900.

" Carter's testimony was, for the most part, consistent with that of Unruh. He testified that the use of 2HL caused him to lose 4 cows, and he had to sell 16 other cows at a loss. He also claimed he lost 16

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calves due to cows aborting. He claimed damages of $17,600.

" James Forcherio, Ph.D., Purina's expert, opined that Unruh's and Carter's cattle must have been starving to lose the amount of weight they experienced within the relevant 30-day period. He attributed the loss to the lack of adequate forage, not the second batch of 2HL. He testified that 2HL is only a supplement to help cows gain weight and should be provided in addition to an otherwise adequate food supply. In his opinion, Unruh's and Carter's cows would not have lost as much weight as they did, even when supplied with a bad batch of 2HL, if they were otherwise provided with an adequate...

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