Unruh v. Purina Mills, LLC, 97,494.

Citation221 P.3d 1130
Decision Date11 December 2009
Docket NumberNo. 97,494.,97,494.
PartiesKenneth E. UNRUH and Robert K. Carter, Appellees, v. PURINA MILLS, LLC, Appellant.
CourtUnited States State Supreme Court of Kansas

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.

PER CURIAM:

On review of the judgment of the Court of Appeals in Unruh v. Purina Mills, No. 97,494, 2008 WL 7297075, unpublished opinion filed June 27, 2008, Purina Mills, LLC, appeals from the jury verdict and award of attorney fees entered against it in a breach of warranties and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:

"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 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 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 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 food supply.

"The jury returned a verdict in favor of Unruh and Carter for breach of implied warranties of merchantability and fitness for a particular purpose, breach of express warranty, and violation of the KCPA. On Unruh's claims the jury apportioned 20% of the fault to Unruh and 80% to Purina and found his damages to be $47,550. On Carter's claims the jury apportioned 5% of the fault to Carter and 95% to Purina and found his damages to be $17,125.

"After dismissing the jury, the district court discovered that the caption on the jury verdict forms incorrectly listed the defendant as `State Farm Mutual Automobile Insurance Company' rather than Purina. The court ultimately found this to be harmless and denied Purina's motion for new trial or, in the alternative, for judgment notwithstanding the verdict. The court granted Unruh's and Carter's motion for attorney fees based upon their successful KCPA claims." Unruh, slip op. at 2-6.

Purina took a timely appeal. The Court of Appeals affirmed in part and reversed in part, finding that insufficient evidence supported the KCPA claims and the resulting award of attorney fees. Slip op. at 18-19. Judge Malone dissented in part and would have affirmed the district court on all issues. Slip op. at 23 (Malone, J., concurring and dissenting). Both parties filed petitions for review. The plaintiffs sought review of a ruling relating to the definition of willfulness under the KCPA. Purina sought review of rulings relating to the jury verdict form and the testimony of the plaintiffs on causation. This court granted review on all issues. See Supreme Court Rule 8.03(g)(1) (2009 Kan. Ct. R. Annot. 66); Troutman v. Curtis, 286 Kan. 452, 457, 185 P.3d 930 (2008) (on granting review without explicit limitation, Supreme Court may review all issues presented to and decided by the Court of Appeals).

I. JOINDER

The district court joined Unruh's and Carter's claims in a single cause of action. Purina argues that joinder constituted reversible error because Unruh and Carter initially stated different theories of causation; they engaged in different farm management practices; and Carter had to rely on evidence introduced by Unruh to support his claims of misrepresentation. The Court of Appeals found the district court did not abuse its discretion in joining the claims. Unruh, slip op. at 15-18.

The standard of review for a district court decision to consolidate cases for trial is abuse of discretion. See State ex rel. Graeber v. Marion County Landfill, Inc., 276 Kan. 328, 352, 76 P.3d 1000 (2003) (decision not to join parties reviewed under abuse of discretion standard); Tuley v. Kansas City Power & Light Co., 252 Kan. 205, 217, 843 P.2d 248 (1992) (decision whether to join parties in class action reviewed under abuse of discretion standard); Loucks v. Farm Bureau Mut. Ins. Co., 33 Kan.App.2d 288, 302, 101 P.3d 1271 (2004), rev. denied 279 Kan. 1006 (200...

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