458 N.W.2d 683 (Minn. 1990), C4-88-410, Hapka v. Paquin Farms

Docket Nº:C4-88-410.
Citation:458 N.W.2d 683
Opinion Judge:The opinion of the court was delivered by: Coyne
Party Name:Conrad HAPKA, individually, Brian Hapka, individually, and Conrad and Brian Hapka, Petitioners, Appellants, v. PAQUIN FARMS, et al., Gust Hangsleben and State of Minnesota, Department of Agriculture, Respondents.
Attorney:Robert W. Wattson, Mark E. O'Boyle, Zelle & Larson, Minneapolis, Minnesota, for appellant.
Case Date:August 03, 1990
Court:Supreme Court of Minnesota

Page 683

458 N.W.2d 683 (Minn. 1990)

Conrad HAPKA, individually, Brian Hapka, individually, and

Conrad and Brian Hapka, Petitioners, Appellants,


PAQUIN FARMS, et al., Gust Hangsleben and State of

Minnesota, Department of Agriculture,


No. C4-88-410.

Supreme Court of Minnesota.

August 3, 1990

Page 684

Syllabus by the Court

The Uniform Commercial Code controls exclusively with respect to damages in a commercial transaction which involves property damage only. To the extent Superwood Corp. v. Siempelkamp Corp., 311 N.W.2d 159 (Minn.1981), and its progeny are inconsistent with the decision herein, they are hereby expressly overruled.

Robert W. Wattson, Mark E. O'Boyle, Zelle & Larson, Minneapolis, for appellants.

Dennis M. Sobolik, Roger C. Malm, Brink, Sobolik, Severson, Vroom & Malm, P.A., Hallock, for Paquin Farms.

Hubert H. Humphrey, III, Atty. Gen., Paul A. Strandberg, Sp. Asst. Atty. Gen., St. Paul, for State of Minn.

Donald Leonard, East Grand Forks, for Gust Hangsleben.

Minnesota Defense Lawyers Ass'n, Louis A. Dovre, Rider, Bennett, Egan & Arundel, Minneapolis, amicus curiae.

Heard, considered and decided by the court en banc.

COYNE, Justice.

On petition of plaintiffs Conrad and Brian Hapka, we review the decision of the court of appeals affirming the trial court's declination pursuant to Superwood Corp. v. Siempelkamp Corp., 311 N.W.2d 159 (Minn.1981), to submit tort theories to the jury in an action for damages resulting from diseased seed potatoes purchased from defendant P & H Farms. Hapka v. Paquin Farms, 431 N.W.2d 907, 910 (Minn.App.1988). We affirm.

Minnesota prohibits the planting of seed potatoes unless the seed meets minimum requirements prescribed by the commissioner of the department of agriculture. Minn.Stat. Sec. 21.118 (1982); 3 MCAR Sec. 1.0131 (1982). Compliance with the requirements may be evidenced by certificates of inspection which demonstrate "the varietal purity and the freedom from disease and physical injury" of the certified potatoes, and also contain any other information prescribed by rules promulgated by the commissioner. Minn.Stat. Sec. 21.113 (1982). A certificate of inspection can be issued only if the seed potatoes have been inspected while growing in the field, usually on several occasions during the growing season, and again after harvest at the time of shipment. Minn.Stat. Sec. 21.113; 3 MCAR Sec. 1.0129(A)(1) (1982). Minnesota's inspection program is part of a national effort to eradicate the destructive and highly contagious disease called "bacterial ring rot" from the potato crop. 3 MCAR Secs. 1.0127 to 1.0135 (1982). Although the certification rules make provisions to allow the presence of certain diseases at specified low levels, there is a zero tolerance for bacterial ring rot, and the discovery of a single plant in the field or of a single tuber in storage infected with bacterial ring rot causes the rejection of the entire field or lot. 3 MCAR Sec. 1.0129(E). The absence of a finding of ring rot is not to be construed to mean that the field or lot inspected is free from the disease. Id. Furthermore, certification does not "represent a warranty of any kind * * * as to the quality of the crop produced from the certified seed potatoes." 3 MCAR Sec. 1.0129(F).

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Conrad Hapka and his son Brian are potato farmers in Marshall County, Minnesota. 1 The Hapkas grow seed potatoes to be sold to other farmers for growing various kinds of commercial potatoes. Like the Hapkas, Richard and David Paquin, the principal owners of Paquin Farms, Inc., also enjoyed a good reputation for growing disease-free, high quality seed potatoes, which they marketed through the Paquin Potato Company. On Memorial Day, Monday, May 30, 1983, the Hapkas purchased a truckload of seed potatoes from the Paquins. This load of potatoes, like a subsequent load purchased on the following day, was grown by P & H Farms, a partnership composed of the Paquins and Gust Hangsleben, a farmer whose reputation for growing seed potatoes did not, according to the Hapkas, match that of the Paquins. 2 Neither the Paquins nor the Hapkas arranged for the required shipping point inspection of the seed potatoes purchased on either day; instead, a random sample of seed potatoes was selected from the lot and submitted for state inspection at a later date. Even though the first sale took place on a legal holiday, a state inspector was available upon request, and Conrad Hapka testified that on an earlier occasion he had arranged for an inspection on a Sunday.

The Hapkas planted the seed potatoes immediately. The planting process included cutting the potatoes into smaller pieces for propagation. The machinery used for cutting and planting those seed potatoes was later used for cutting and planting other potatoes bought from a third source and planted in another field. All of the Hapkas' fields passed the first two state inspections. On the third inspection, however, a state inspector found signs of ring rot in the fields planted with P & H Farms seed potatoes and in the fields later planted with seeds from a different source. No ring rot was found in fields planted before Memorial Day. The presence of ring rot infection was confirmed by a laboratory analysis, and all the infected fields were rejected for certification as seed potatoes.

The evidence was that the P & H seeds purchased by the Hapkas were infected with ring rot, which was spread by the Hapkas' potato cutter to the seed potatoes acquired from another source. Because of the loss of seed certification, the Hapkas were forced to sell most of their potatoes at the much lower price available for potatoes on the commercial market. One load of potatoes could not be sold and had to be destroyed. The Hapkas were also put to the expense of disinfecting and cleaning their farm machinery and warehouses.

The Hapkas sued Paquin Farms, Inc., Paquin Potato Company, P & H Farms, the Paquins individually, Gust Hangsleben, 3 and the Minnesota Department of Agriculture. The Hapkas asserted that the state negligently failed to inspect the seed potatoes and also breached a contractual duty of inspection and then alleged that all other defendants were guilty of misrepresentation, acted negligently, breached both express and implied warranties, and were strictly liable for selling seed potatoes infected with ring rot.

At the close of the evidence, the trial court directed a verdict in favor of the state, ruled that tort theories of negligence and strict products liability were unavailable, and submitted to the jury only questions regarding misrepresentation and warranty. The jury found that no express warranties had been made and that there had been neither misrepresentation nor breach of implied warranty. The court of appeals affirmed judgment in favor of all defendants, and we granted further review.

We first consider the nature and scope of the review obtained by the Hapkas by virtue of their petition for further review pursuant to Rule 117, Minnesota

Page 686

Rules of Civil Appellate Procedure. Among a number of directives of that rule, a petitioning party is required to identify the legal issues and their disposition by the court of appeals and to specify and discuss the criteria justifying review. The Hapkas focused their petition for further review exclusively on the availability of tort theories of liability--negligence and strict products liability--in their action against the sellers of the diseased seed potatoes. The petition contained no reference to their claims that the Minnesota Department of Agriculture had breached a duty of inspection. Even after the state advised that it would not interpose a response to the petition that raised no issues involving the state, the Hapkas made no effort to declare their intention to pursue those issues. Nevertheless, in their brief to this court the Hapkas once again challenged the propriety of the directed verdict in favor of the state. We decline to consider that issue.

Rule 117 not only provides a procedural mechanism by which a petitioner may seek further review of a court of appeals decision by the supreme court, but is designed to facilitate effective appellate review of that petition by imposing on the petitioner a burden of identifying and discussing all critical issues. Certainly, parties cast in the role of respondent are entitled to know that issues relating to them will be raised and, more significantly, this court must be aware of the scope of the review requested.

We are, of course, cognizant of the limited opportunity for discussion of multiple issues in a petition for further review and of the suggestion implicit in the Rules of Civil Appellate Procedure that the art of advocacy is better served by focusing the argument on the issue which best satisfies the criteria for review. Minn.R.Civ.App.P. 117, subd. 2. For that reason, unless the order granting review specifically limits the issues, we customarily allow parties considerable latitude in their presentation of the case. However, this latitude is not without practical limitations.

The claims of sellers' liability and breach of duty by the state, although connected with the diseased seed potatoes, rest on completely different and independent legal theories. The petition, directed only to the issue of the sellers' liability, gave the state no reason to suspect that it would be implicated in this court's review or that it needed to protect its position by filing a response to the petition or a respondent's brief on the merits. It was therefore incumbent upon the Hapkas, particularly under these circumstances, to raise the unrelated question of the state's liability, however succinctly, in order to apprise the state of the necessity to respond...

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