Cargill, Inc. v. Mountain Cement Co.
| Decision Date | 03 March 1995 |
| Docket Number | Nos. 94-53,94-72,94-79,s. 94-53 |
| Citation | 891 P.2d 57 |
| Parties | 27 UCC Rep.Serv.2d 783 CARGILL, INCORPORATED, Appellant (Defendant), v. MOUNTAIN CEMENT COMPANY, Appellee (Plaintiff), and Salt Creek Welding, Appellee (Third-Party Plaintiff). SALT CREEK WELDING, a sole proprietorship, Appellant (Third-Party Plaintiff), v. CARGILL, INCORPORATED, Appellee (Third-Party Defendant). MOUNTAIN CEMENT COMPANY, Appellant (Plaintiff), v. SALT CREEK WELDING; and Cargill Incorporated, Appellees (Defendants). |
| Court | Wyoming Supreme Court |
Alan B. Minier, Brent R. Cohen, and Justin D. Cumming of Rothgerber, Appel, Powers & Johnson, Cheyenne, for Cargill, Inc.
David R. Nicholas, Philip A. Nicholas, Stephen N. Goodrich, and Jeff Anthony of Nicholas Law Office, Laramie, for Mountain Cement Co.
James Richard McCarty and Keith P. Tyler, Casper, for Salt Creek Welding.
Before GOLDEN, C.J., and THOMAS, MACY, and TAYLOR, JJ., and KAUTZ, D.J.
In these consolidated appeals, we are asked to address theories of express and implied warranties arising out a jury verdict in favor of Mountain Cement Company and Salt Creek Welding and against Cargill Incorporated. The district court reduced the jury verdict by the amount Mountain Cement Company and Salt Creek Welding recovered from other defendants who settled prior to trial. These appeals require us to apply Wyoming's Uniform Commercial Code; review jury instructions, both given and refused; consider the denial of a request for further discovery; and consider the damages awarded.
In Appeal No. 94-53, Cargill Incorporated states the issues in the following manner:
A. Did the trial court err by failing to order summary judgment or judgment as a matter of law against Mountain Cement Company and Salt Creek Welding on their warranty claims because, under the definitions found in the Uniform Commercial Code, Cargill was not a seller of the defective 5/8 inch steel plates?
B. Did the trial court err by failing to order summary judgment or judgment as a matter of law against Mountain Cement Company and Salt Creek Welding because the alleged contract was unenforceable against Cargill under the Statute of Frauds?
C. Did the trial court err when it gave Mountain Cement Company and Salt Creek Welding, two parties with common interests, four peremptory challenges each, for a total of eight, while Cargill was only given four?
D. Did the trial court err when it instructed the jury. Specifically:
1. Did the trial court err by refusing to instruct the jury on intervening causation?
2. Did the trial court err by instructing the jury on delegation of performance under the Uniform Commercial Code?
E. Did the trial court abuse its discretion by denying Cargill an opportunity for further discovery when Mountain Cement shifted its damage case after the discovery cutoff and again during trial?
In Appeal No. 94-53, Mountain Cement Company states the issues:
A. Is there sufficient evidence in the record to support the jury's finding that Cargill, Incorporated sold 5/8 inch steel plate to Salt Creek and breached an express warranty and/or implied warranty for the sale of the steel plate?
B. Is there sufficient evidence in the record to support the jury's finding that Cargill, Incorporated failed to establish its affirmative defense that an express warranty and/or implied warranty could not be enforced because of the statute of frauds?
C. Did the Trial Court abuse its discretion by granting Cargill, Incorporated, Mountain Cement Company, and Salt Creek Welding each 3 peremptory challenges and an additional peremptory challenge to each for the alternate jurors? And, if it did abuse its discretion, was it reversible error?
D. Was the jury confused or misled with respect to the applicable law by the Trial Court's refusal to grant appellant's instruction on intervening causation and its granting [of] Salt Creek Welding's instruction on delegation under the Uniform Commercial Code?
E. Did the Trial Court abuse its discretion by (1) denying Cargill, Incorporated an opportunity to take the deposition of Mountain Cement Company's damage witnesses for a second time, or (2) allowing Mountain Cement Company's damage experts to testify at trial?
Salt Creek Welding agrees with the issues presented by Cargill Incorporated in Appeal No. 94-53.
In Appeal No. 94-79, Mountain Cement Company presents the following issues:
A. Did the Trial Court err by refusing to grant Mountain Cement Company interest on its property damage claims against defendants Salt Creek Welding and Cargill Incorporated?
B. Did the Trial Court err by granting defendant Cargill, Incorporated a setoff against the jury verdict for settlement payments paid by USX Corporation and Leeco Steel Products, Inc.?
C. If Cargill, Incorporated was entitled to a setoff, did the Trial Court err by deducting the entire amount of the settlement payments against the entire amount of the jury's verdict, when the settling parties did not pay damages for Mountain Cement Company's property damage or prejudgment interest on its property damage?
Cargill Incorporated presents the following issues in Appeal No. 94-79:
A. Did the trial court properly refuse to grant Mountain Cement prejudgment interest on its property damage claim against Cargill?
B. Following a case tried only on breach of warranty, did the trial court properly reduce the judgment by $4,930,000 in settlement proceeds previously received by Mountain Cement?
In Appeal No. 94-72, Salt Creek Welding presents the following issue:
Whether the trial court erred in awarding Cargill a set-off in the amount of $70,000 representing monies paid prior to trial by USX to Salt Creek for mental anguish.
Cargill Incorporated, states the issue in Appeal No. 93-72 as:
A. Following a case tried only on breach of warranty theories, did the trial court properly reduce the judgment by $70,000 in settlement proceeds previously received by Salt Creek Welding?
Salt Creek Welding (Salt Creek) contracted to build a steel silo for Mountain Cement Company (Mountain Cement). The silo walls were to be built from A36 steel plate. A36 steel is an industrial grade material often used to build steel silos.
Salt Creek contacted Charlie Mandry (Mandry), a salesman for Cargill, Incorporated (Cargill), and ordered A36 steel plate for use in constructing the Mountain Cement silo. Cargill did not have the steel in stock and Mandry arranged to have the steel delivered by a Tulsa, Oklahoma supplier, Steel Deck. Several plates of steel were non-conforming carbon .33 max. alloy plates. The non-conforming plates were supplied by Leeco and manufactured by USX. When carbon .33 max. alloy plates are welded in the same way A36 steel plates are welded, the alloy becomes very brittle. One of the brittle alloy plates in the Mountain Cement silo cracked and the silo collapsed.
Mountain Cement sued Salt Creek, Cargill, USX, Leeco, and Steel Deck. (Steel Deck and USX were identified as Does). Salt Creek filed a cross claim against Cargill, USX, and Leeco. Steel Deck defaulted. Prior to trial, Mountain Cement and Salt Creek settled with USX and Leeco and both were dismissed with prejudice. Salt Creek confessed judgment to Mountain Cement.
The matter was tried before a jury on breach of warranty theories. The jury returned a verdict in favor of Mountain Cement and Salt Creek and against Cargill. The district court set off the settlement proceeds against the jury awards. Cargill appeals the jury verdict and several rulings by the district court. Mountain Cement and Salt Creek appeal the decision to set off the settlement proceeds against their jury awards.
Cargill argues that it is entitled to summary judgment or judgment as a matter of law. Specifically, Cargill argues it is not a seller for purposes of Wyo.Stat. § 34.1-2-103(a)(iv) (1991) and that the statute of frauds bars enforcement of any verbal contract between Cargill and Salt Creek. Cargill also challenges the district court's decision to allow Mountain Cement and Salt Creek to exercise separate peremptory challenges during jury selection; the jury instruction regarding delegation; the district court's refusal to give an instruction on intervening cause; and an order by the district court limiting discovery.
Whether the denial of a motion for summary judgment may be reviewed on appeal, following a trial on the merits, is an issue of first impression to this court. Before granting summary judgment, a court must determine whether there are any genuine issues of material fact in dispute and, if not, whether the moving party is entitled to judgment as a matter of law. Roemer Oil Co. v. Aztec Gas & Oil Corp., 886 P.2d 259, 262 (Wyo.1994). This two-pronged analysis is inapplicable if a motion for summary judgment is denied and the case is heard on its merits. The first prong of summary judgment analysis is rendered moot when the trier of fact accepts a particular set of facts at trial.
When the "issue of material fact" prong of summary judgment analysis is removed, the only question that remains is whether the moving party is entitled to judgment as a matter of law. The proper procedural mechanism for challenging an adverse judgment, following a trial on the merits, is a motion for judgment as a matter of law. We hold that it is improper to review the denial of a motion for summary judgment following a trial on the merits. Bigney v. Blanchard, 430 A.2d 839, 842-43 (Me.1981). We will not consider Cargill's argument that it is entitled to summary judgment. The proper focus of our analysis is on Cargill's motion for judgment as a matter of law.
A motion for judgment as a matter of law under W.R.C.P. 50, as amended in 1992, is procedurally identical to a motion for directed verdict under the former W.R.C.P. 50. Accordingly, our standard of review is identical. If the jury acted...
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