Love v. Gamble, No. 2214

CourtCourt of Appeals of South Carolina
Writing for the CourtCURETON; HOWELL; SHAW
Citation316 S.C. 203,448 S.E.2d 876
PartiesJoe LOVE and Rusty Love, Love Bros., a Partnership, Appellants, v. Steve GAMBLE, Individually, d/b/a Sardinia Cucumber Company, and Vlasic Foods, Inc., Respondents. . Heard
Docket NumberNo. 2214
Decision Date08 June 1994

Page 876

448 S.E.2d 876
316 S.C. 203
Joe LOVE and Rusty Love, Love Bros., a Partnership, Appellants,
v.
Steve GAMBLE, Individually, d/b/a Sardinia Cucumber Company,
and Vlasic Foods, Inc., Respondents.
No. 2214.
Court of Appeals of South Carolina.
Heard June 8, 1994.
Decided Aug. 15, 1994.

Page 877

[316 S.C. 205] Ernest J. Jarrett and Helen T. McFadden, Jenkinson, Jenkinson & McFadden, Kingstree, for appellants.

William H. Johnson and Ray E. Chandler, Manning; and Monteith P. Todd, Columbia, for respondents.

CURETON, Judge.

This case involves the growing, buying and selling of cucumbers for the production of pickles. The appellants (the Loves) sued the respondents (Sardinia and Vlasic) for breach of contract, interference with and wrongful termination of an agency relationship, and interference with a prospective contractual advantage. At the close of the evidence, the trial judge granted a directed verdict to the respondents on the issue of liability on all causes of action. We affirm. Accordingly, we do not reach the damages issue raised by the Loves.

Facts

Vlasic Foods, Inc. buys cucumbers primarily for the purpose of producing pickles. Steve Gamble d/b/a Sardinia Cucumber [316 S.C. 206] Company (Sardinia) entered into a relationship with Vlasic in 1985 to furnish Vlasic a quantity of cucumbers each year for a period of five years commencing in 1986. To fulfill the requirements of that agreement, Sardinia grew a quantity of cucumbers itself and also contracted with other growers to furnish cucumbers to make up the difference.

Page 878

In 1988, Sardinia and the Loves signed a letter of intent whereby the Loves agreed to "establish a cucumber buying station at [their] farm ... as an independent contractor to purchase cucumbers for Sardinia Cucumber Company." The letter of intent (hereinafter referred to as agreement) further provided that Sardinia would provide all equipment needed by the Loves; the cucumbers would be bought in the name of Sardinia; the Loves would establish a bank account in Sardinia's name for the purpose of buying the cucumbers; and as compensation for their services, the Loves would receive a commission of $.50 per bushel for each bushel of cucumbers bought. The agreement was for the calendar year 1989. The Loves agreed to provide all labor for the buying station and pay all costs associated with it, i.e., wages, insurance, etc. Additionally, the Loves agreed to maintain the equipment Sardinia furnished. The agreement made no mention of quantity or the price of the cucumbers the Loves were to buy for Sardinia. Importantly, it said nothing about the Loves growing cucumbers for Sardinia.

As it turned out Vlasic provided most of the equipment for the Loves' operation, either through Sardinia or directly to the Loves, and repaired the equipment when needed. Additionally, Vlasic provided the seeds to the Loves for planting. According to the Loves, at the time the Loves and Sardinia signed the letter of intent, Gamble told them that they would be working for both Vlasic and Sardinia. There is no indication, however, that Vlasic ever told the Loves they worked for it or otherwise indicated there was any "contractual relationship" between Vlasic and the Loves. 1

In preparation for performance of the 1988 agreement, the Loves made minor modifications/improvements to their existing facilities as suggested by Vlasic's engineers. Also at the suggestion of Vlasic and/or Sardinia, the Loves made three [316 S.C. 207] changes to their agricultural practices. First, they planted a different kind of seed which produced cucumbers more suitable for Vlasic's needs. Second, they bought a new planter which planted rows 48 inches wide instead of the 38 inch rows they previously planted. Third, they staggered their planting times so that all cucumbers would not be ready for harvest at the same time.

Despite the absence of a formal agreement, Sardinia and the Loves performed under the terms of the "letter of intent" for the entire year of 1989, i.e., the spring and fall growing seasons. 2 Without renewing the letter of intent, they likewise performed under its basic terms for the spring season of 1990.

The spring 1990 cucumber crop was a bumper crop. The Loves delivered 103,000 bushels to Sardinia, more than double the expected amount. On June 28, 1990, Sardinia advised the Loves that it would not accept any additional cucumber shipments after June 29, 1990, this date being about two weeks prior to the end of the spring 1990 harvest season. The Loves sold their remaining cucumber crop to another pickle company and make no claim for losses for the spring 1990 crop.

On July 20, 1990, Sardinia advised Love that it would not be accepting any cucumber shipments from the Loves for the fall 1990 season. The Loves called Vlasic about this, and Vlasic advised them that it was Sardinia's decision to make. On February 12, 1991, Sardinia advised the Loves that it would not be accepting any cucumbers for the spring 1991 season. This was about six weeks before commencement of the spring cucumber planting. On February 26, 1991, Vlasic removed its equipment from the Loves' operation site, thereby making it clear there would be no business relationship between Sardinia and the Loves for the spring or fall 1991 seasons. The existence, duration and manner of termination of the relationship between the Loves and Vlasic and/or Sardinia after the spring 1990 growing season is the central issue in this appeal.

Standard of Review

In reviewing the grant of a directed verdict motion, we view the evidence and all reasonable inferences therefrom in the light

Page 879

most favorable to the non-moving [316 S.C. 208] party. See Moore v. Levitre, 294 S.C. 453, 365 S.E.2d 730 (1988). However, this does not mean that the court should ignore facts unfavorable to the opposing party. In essence, the court must determine whether a verdict for the opposing party "would be reasonably possible under the facts as liberally construed in his favor." Bultman v. Barber, 277 S.C. 5, 7, 281 S.E.2d 791, 792 (1981).

Breach of Contract

The controlling inquiry here is whether the Loves had a contract with Gamble and/or Vlasic for any growing season after the spring 1990 season. There is no evidence of a written or oral contract between the Loves and Gamble or Vlasic after the expiration of the Gamble-Love "letter of intent" for 1989. Thus, any contract between the Loves and Gamble and/or Vlasic for any growing season after 1989 necessarily had to be implied. See Stanley Smith & Sons v. Limestone College, 283 S.C. 430, 322 S.E.2d 474 (Ct.App.1984) (express contract is manifested by words, written or oral; implied contract is manifested by conduct but, as with an express contract, the conduct must demonstrate the parties' mutual assent to all essential terms of the contract); see also Morgan v. Honeycutt, 277 S.C. 150, 283 S.E.2d 444 (1981) (silence alone is not conduct constituting acceptance of an offer to contract).

The Loves admitted they never specifically discussed a contract with anyone for any growing season after 1989. At bottom, the Loves argue they had a right to assume they would continue their 1989 arrangement with Gamble and/or Vlasic in 1990 and 1991 unless specifically told otherwise. They base this assumption on the following circumstances: (1) Gamble and/or Vlasic never gave them timely notice that they would not be growing cucumbers or operating a shed in the fall of 1990 and for 1991; (2) The Loves operated a "pickle shed" and grew cucumbers for Gamble and/or Vlasic in the spring of 1990 without a written contract allegedly on the same terms as the 1988 letter of intent; and (3) Vlasic's equipment remained on the Loves' premises after the spring 1990 growing season.

During oral argument, counsel for the Loves made it clear that had Gamble and/or Vlasic given the Loves timely notice that they did not intend to purchase cucumbers from them for the fall 1990 season and the 1991 seasons, then the Loves would have no claim against Gamble and/or Vlasic. The Loves [316 S.C. 209] base their "timely notice" argument on a purported custom and usage in the cucumber industry. They contend that absent notice for an acceptable period of time before each growing season, growers and shed operators customarily assume that prior relationships with cucumber buyers like Gamble and Vlasic will continue into the next cucumber season.

To establish such a custom and usage, the Loves proffered the testimony of Chuck Easler, a 21 year old farmer, as an expert. The trial judge refused to qualify Easler as an expert and excluded his testimony, finding Easler's limited and unique experience as a cucumber farmer and shed operator did not qualify him to testify as an expert on customs and usages in the industry. The Loves claim this was error. We disagree.

A review of the proffered testimony of Easler demonstrates that his experience in the cucumber industry was limited to working in and managing his family's business, which had a unique "life time" relationship with a shed operator. 3 Moreover, the admission or exclusion of evidence, including the decision to qualify a witness as an expert, resides in the sound discretion of the trial judge. See Powers...

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23 practice notes
  • Henson v. International Paper Co., No. 3745.
    • United States
    • Court of Appeals of South Carolina
    • February 17, 2004
    ...facts unfavorable to the opposing party. Long v. Norris & Assocs., Ltd., 342 S.C. 561, 568, 538 S.E.2d 5, 9 (Ct.App.2000); Love v. Gamble, 316 S.C. 203, 208, 448 S.E.2d 876, 879 (Ct.App.1994). In deciding whether to grant or deny a directed verdict motion, the trial court is concerned only ......
  • Ecclesiastes Prod. Ministries v. Outparcel, No. 4254.
    • United States
    • South Carolina Court of Appeals
    • June 14, 2007
    ...facts unfavorable to the opposing party. Long v. Norris & Assocs., Ltd., 342 S.C. 561, 568, 538 S.E.2d 5, 9 (Ct.App.2000); Love v. Gamble, 316 S.C. 203, 208, 448 S.E.2d 876, 879 (Ct.App.1994). In deciding whether to grant or deny a directed verdict motion, the court is concerned only with t......
  • The Huffines Co., LLC v. Lockhart, No. 3994.
    • United States
    • United States State Supreme Court of South Carolina
    • May 23, 2005
    ...unfavorable to the opposing party. Long v. Norris & Assocs., Ltd., 342 S.C. 561, 568, 538 S.E.2d 5, 9 (Ct. App.2000); Love v. Gamble, 316 S.C. 203, 208, 448 S.E.2d 876, 879 (Ct.App.1994). In deciding whether to grant or deny a directed verdict motion, the trial court is concerned only with ......
  • Preferred Home Inspections, Inc. v. Bellsouth Telecomms., LLC, Civil Action No.: 3:14-cv-00673-MBS
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • September 24, 2014
    ...Club Apartments, No. 2005-UP-107, 2005 WL 7083456, at *4 (S.C. Ct. App. Feb. 10, 2005) (unpublished opinion) (quoting Love v. Gamble, 448 S.E.2d 876, 882-83 (S.C. Ct. App. 1994)). Plaintiffs fail to meet the first element required in an intentional interference with prospective contractual ......
  • Request a trial to view additional results
23 cases
  • Henson v. International Paper Co., No. 3745.
    • United States
    • Court of Appeals of South Carolina
    • February 17, 2004
    ...facts unfavorable to the opposing party. Long v. Norris & Assocs., Ltd., 342 S.C. 561, 568, 538 S.E.2d 5, 9 (Ct.App.2000); Love v. Gamble, 316 S.C. 203, 208, 448 S.E.2d 876, 879 (Ct.App.1994). In deciding whether to grant or deny a directed verdict motion, the trial court is concerned only ......
  • Ecclesiastes Prod. Ministries v. Outparcel, No. 4254.
    • United States
    • South Carolina Court of Appeals
    • June 14, 2007
    ...facts unfavorable to the opposing party. Long v. Norris & Assocs., Ltd., 342 S.C. 561, 568, 538 S.E.2d 5, 9 (Ct.App.2000); Love v. Gamble, 316 S.C. 203, 208, 448 S.E.2d 876, 879 (Ct.App.1994). In deciding whether to grant or deny a directed verdict motion, the court is concerned only with t......
  • The Huffines Co., LLC v. Lockhart, No. 3994.
    • United States
    • United States State Supreme Court of South Carolina
    • May 23, 2005
    ...unfavorable to the opposing party. Long v. Norris & Assocs., Ltd., 342 S.C. 561, 568, 538 S.E.2d 5, 9 (Ct. App.2000); Love v. Gamble, 316 S.C. 203, 208, 448 S.E.2d 876, 879 (Ct.App.1994). In deciding whether to grant or deny a directed verdict motion, the trial court is concerned only with ......
  • Preferred Home Inspections, Inc. v. Bellsouth Telecomms., LLC, Civil Action No.: 3:14-cv-00673-MBS
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • September 24, 2014
    ...Club Apartments, No. 2005-UP-107, 2005 WL 7083456, at *4 (S.C. Ct. App. Feb. 10, 2005) (unpublished opinion) (quoting Love v. Gamble, 448 S.E.2d 876, 882-83 (S.C. Ct. App. 1994)). Plaintiffs fail to meet the first element required in an intentional interference with prospective contractual ......
  • Request a trial to view additional results

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