Dixon Dairy Farms v. Conagra Feed Co.
| Decision Date | 23 June 1999 |
| Docket Number | No. A99A0645.,A99A0645. |
| Citation | 239 Ga. App. 233,519 S.E.2d 729 |
| Parties | DIXON DAIRY FARMS, INC. v. CONAGRA FEED COMPANY |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Howard, Carswell & Bennett, Kenneth R. Carswell, Jesup, for appellant.
Chambless, Higdon & Carson, Brown W. Dennis, Jr., Marc T. Treadwell, Macon, for appellee.
Conagra Feed Company sued Dixon Dairy Farms for $123,110.61 on an open account, plus contractual attorney fees and interest. Dixon Dairy answered that it did not owe on the account because Conagra's feed was not fit for its intended purpose, and counterclaimed for lost profits. The trial court granted summary judgment to Conagra on both its suit on account and Dixon Dairy's counterclaim. Dixon Dairy appeals the summary judgment grant. We affirm the grant of summary judgment to Conagra on Dixon Dairy's claim for lost profits, but reverse the grant to Conagra on its claim for money due on an open account.
On appeal, Dixon Dairy raises two enumerations of error, arguing that questions of fact remain as to whether the feed was fit for its ordinary purpose and whether the farm lost profits due to Conagra's alleged breach of the implied warranty of merchantability. Dixon Dairy admitted in its answer that it had an open account with Conagra, that Conagra shipped feed during the time period alleged, and that the account showed an unpaid balance; thus we need only address Dixon Dairy's defenses and counterclaim.
In reviewing the grant or denial of summary judgment, this court conducts a de novo review of the evidence. Goring v. Martinez, 224 Ga.App. 137, 138(2), 479 S.E.2d 432 (1996). As the movant for summary judgment, Conagra had the burden to show there was no genuine issue of material fact for trial and that the undisputed facts, viewed in the light most favorable to Dixon Dairy, warranted judgment as a matter of law. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).
Assuming Conagra made that showing, the burden then shifted to Dixon Dairy to show evidence sufficient to create an issue of fact on its affirmative defense.
Once the defendant satisfies its burden of proof by presenting evidence to support each element of the affirmative defense, the same burden of proof it would have at trial, the burden of production of evidence shifts to the plaintiff, who will survive summary judgment in the same fashion that she would survive a motion for directed verdict at trial, i.e., by presenting any evidence which creates a jury issue on an element of the affirmative defense. However, if the plaintiff is unable to meet this burden of production, the defendant is entitled to summary judgment as a matter of law.
( Citations and emphasis omitted.) Garrett v. NationsBank, N.A., 228 Ga.App. 114, 116, 491 S.E.2d 158 (1997). If Dixon Dairy met this burden, Conagra, as the moving party not bearing the burden on the affirmative defense, could meet its burden by pointing out that the evidence did not support the affirmative defense. Bell v. Smith, 227 Ga. App. 17, 18-19, 488 S.E.2d 91 (1997).
Pleadings and depositions establish that Conagra began delivering feed to Dixon Dairy on November 10, 1995, and stopped on January 20, 1996. A veterinarian who treated Dixon Dairy's cows regularly testified that he examined the herd in December 1995 and January 1996 at the owner's request. He testified the cows looked tired, their coats were dull, and their weight was down, as if they were not receiving sufficient nutrition. He examined the dairy's records with farm manager, and noticed that the interval between breeding times had lengthened, which reduced the amount of milk the animal produces. He attributed their poor condition to inadequate nutrition because that was the only part of their routine that had changed, and testing revealed no diseases or infections. He said the feed itself did not look fresh and had some kind of contaminate that looked like rat parts. Finally, he testified that a month after switching their feed, the cows' milk production rose; within three months their coats looked good and they were alert again.
Dixon Dairy's farm manager testified that the herd became sluggish 30 to 45 days after it began eating Conagra feed. The cows ate more feed but milk production remained flat, even though it generally rises during cooler months. He said he saw contaminants in the feed, such as rats, a hard hat, and a glove. Milk production rose after the dairy resumed using Purina feed, and the herd became healthy again.
We note the record contains references to various tests of the feed but no proper evidence of the test results. At most, it contains hearsay about what a test report indicates to a witness. Significantly absent from the record is any testimony from the person who conducted the tests or testimony regarding the sample and testing procedures. Without such evidence, the test results are hearsay. Furthermore, even if properly admitted, the evidence does not indicate the appropriate significance to be placed on the percentages contained in the analysis.
1. Dixon Dairy asserted that Conagra's feed was not fit for its ordinary purpose, feeding dairy cattle. OCGA § 11-2-314 provides that, unless excluded, a contract of sale implies a warranty of merchantability of the goods. OCGA § 11-2-314(2) defines merchantable as follows:
Goods to be merchantable must be at least such as: (a) Pass without objection in the trade under the contract description; and (b) In the case of fungible goods, are of fair average quality within the description; and (c) Are fit for the ordinary purposes for which such goods are used; and (d) Run, within the variations permitted by the agreement, of even kind, quality, and quantity within each unit and among all units involved; and (e) Are adequately contained, packaged, and labeled as the agreement may require; and (f) Conform to the promises or affirmations of fact made on the container or label if any.
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