Martin Rispens & Son v. Hall Farms, Inc.

• Decision Date: 28 October 1992
• Docket Number: No. 14A01-9201-CV-00007,14A01-9201-CV-00007
• Citation: 601 N.E.2d 429
• Parties: 19 UCC Rep.Serv.2d 1021 MARTIN RISPENS & SON and Petoseed Company, Inc., Appellant-Defendants, v. HALL FARMS, INC., Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 429

601 N.E.2d 429

19 UCC Rep.Serv.2d 1021

MARTIN RISPENS & SON and Petoseed Company, Inc., Appellant-Defendants, v. HALL FARMS, INC., Appellee-Plaintiff.

No. 14A01-9201-CV-00007.

Court of Appeals of Indiana First District.

Oct. 28, 1992.

Michael Rosiello, Stanley C. Fickle, Jan M. Carroll, Barnes & Thornburg, Indianapolis, for appellant-defendants.

Paul B. Ledford, Vincennes, Stephen L. Williams, Mann, Chaney, Johnson, Goodwin & Williams, Terre Haute, for appellee-plaintiff.

BAKER, Judge.

Mark Hall has grown melons for 40 years, but in all his days he had never seen the likes of the disease which ravaged his 261 acre watermelon crop in 1989. Dubbed "watermelon fruit blotch," the disease--previously unknown in Indiana--destroyed much of Hall Farms's crop and allegedly cost it nearly $180,000 in lost profits, not to mention the damaged growing equipment and lost good will. Hall is the executive vice-president of plaintiff-appellee Hall Farms, Inc., which blames defendant-appellant Martin Rispens & Sons, a seed dealer, and defendant-appellant Petoseed Company, Inc., a seed producer, for selling allegedly defective watermelon seeds. Rispens and Petoseed challenge the trial court's refusal to grant summary judgment in their favor.

Undisputed Facts

Hall Farms, Inc., ¹ farms about 1,400 acres of mostly rented land in Knox County, Indiana. It produces grain, row crops, hay, watermelons, and cantaloupes and raises a few hogs and cows. In 1989, Hall Farms employed between 116 and 170 people; that year's watermelon and cantaloupe crop generated some $440,000 in gross revenues, despite the fruit blotch. Much of Hall Farms's past success in the melon market is attributable to the Prince Charles variety watermelon seed, known for its high yield and resistance to disease. Hall Farms had used the variety since 1982 or 1983.

In August of 1988, Hall Farms ordered 40 pounds of Prince Charles seeds from Rispens at a cost of $85.40 per pound. As requested, Rispens delivered the seeds, packaged in sealed one pound cans, in February 1989. Hall Farms stored the unopened cans until early April, at which time the watermelon seeds were germinated in two greenhouses.

On April 25th Mark Hall noticed that about 15 seedlings were spotted with small, yellow lesions. Suspecting gummy stem blight, a seed borne disease, Hall contacted a neighbor who, in turn, contacted Dr. Richard Latin, a plant pathologist from Purdue University. After transporting samples to the Purdue laboratory, Dr. Latin concluded the problem was neither gummy stem blight nor any fungus.

The lesions did not affect the plants' growth, however, and no plants died. The asymptomatic seedlings were transplanted to the fields between May 8th and 10th. Mark Hall monitored the plants every three or four days for the next several weeks, as was his custom. Although some looked a little "funny," they were nevertheless "growing like mad." Record at 651. On July 5th or 6th, Hall spotted a watermelon blemished by a small purple blotch. By July 15th, the blotch was "spreading like wildfire." Record at 662. By harvest time ten days later, a significant portion of the watermelon crop had been ruined.

Hall Farms left most of the blotched Prince Charles watermelons in the fields. They were eventually plowed under in early September in preparation for the planting of oats and then soybeans. Volunteer plants appeared the next summer, but Mark Hall killed them with Blazer, a herbicide, before Dr. Latin could examine them. Hall Farms suffered no watermelon blotch in 1990, even in fields that were infected the year before. During its investigation, Hall Farms learned the Prince Charles variety seeds it planted came from Petoseed's Lot Nos. 1018 and 5024. Lot 1018 was grown in China; lot 5024 was grown in Mexico.

Based on his discussions with Dr. Latin, who was of the opinion the bacteria causing the fruit blotch were introduced into Indiana through the Prince Charles seeds, Hall reasoned the Chinese or Mexican fields must have had the fruit blotch because his plants had it. Petoseed, a part of Hall Farms's argument goes, was therefore culpable to the extent it knew or should have known the fields were infected and yet harvested the seeds of the infected watermelons for sale to businesses like his.

Hall Farms filed a three count complaint against Rispens and Petoseed on October 13, 1989. In addition to its tort claim, Hall Farms alleged Rispens and Petoseed each made and then breached certain express and implied warranties. It sought punitive damages. Rispens and Petoseed moved for summary judgment, but the trial court refused to grant the motion. Rispens and Petoseed now bring this interlocutory appeal challenging that refusal. Other facts will be supplied when necessary.

Standard of Review

This is an appeal from the trial court's refusal to grant summary judgment. The purpose of summary judgment is to end litigation about which there can be no factual dispute and which may be determined as a matter of law. Kerr v. Carlos (1991), Ind.App., 582 N.E.2d 860. It is usually inappropriate in negligence cases, which are generally very fact sensitive. Rubin v. Johnson (1990), Ind.App., 550 N.E.2d 324, trans. denied. Because of its drastic result--the denial of a litigant's day in court--it must be exercised with particular care.

Summary judgment is appropriate only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Moore v. Sitzmark (1990), Ind.App., 555 N.E.2d 1305, 1307. The party seeking summary judgment bears the burden of establishing the propriety of the motion. Gaboury v. Ireland Road Grace Brethren, Inc. (1983), Ind., 446 N.E.2d 1310. When the movant has established a prima facie lack of any genuine issue of material fact and entitlement to judgment as a matter of law, it is incumbent upon the non-movant to respond by affidavit or other appropriate evidence setting forth specific facts establishing the existence of a genuine issue in dispute after all. T.R. 56(E); Keesling v. Baker & Daniels (1991), Ind.App., 571 N.E.2d 562, trans. denied. When considering the propriety of a motion for summary judgment, "[a]ny doubt as to a fact, or an inference to be drawn therefrom, is resolved in favor of the party opposing the motion for summary judgment." Gaboury, supra. Despite conflicting facts and inferences on some elements of a claim, summary judgment may be proper when there is no dispute or conflict regarding a fact that is dispositive of the litigation. Murphy v. Mellon Accountants Professional Corp. (1989), Ind.App., 538 N.E.2d 968, trans. denied.

On appeal from an order denying summary judgment, the appellate court faces the same issues as those presented to the trial court and must analyze the dispute in the same way. Oelling v. Rao (1992), Ind., 593 N.E.2d 189; Northern Indiana Public Service Co. v. Sell (1992), Ind.App., 597 N.E.2d 329. The burden of persuasion falls upon the party who lost in the trial court. Oelling, supra.

Overview

Hall Farms has advanced two general theories of liability: contract and tort. We shall address each in turn. After addressing the viability of Hall Farms's theories, we shall turn to perhaps the most significant issue in this litigation, the extent to which Hall Farms may recover damages for the injuries it suffered.

PART ONE: THEORIES OF LIABILITY

A. Contract

Hall Farms's contract theory of liability alleges Petoseed and Rispens each breached certain express and implied warranties.

Hall Farms's contract claim against Petoseed and Petoseed's defense to Hall Farms's claim arise from language printed on labels affixed to the one pound cans of the Prince Charles variety seeds. Hall Farms's claim against Rispens and Rispens's defense to Hall Farms's claim grow from language printed on Rispens's order form. In both cases the parties' agreements are wholly in writing; Hall Farms does not rely on any oral representations whatsoever.

1. Express Warranty

An express warranty is created by an affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain; it warrants that the goods shall conform to the affirmation or promise. IND.CODE 26-1-2-313(1)(a). "This statute requires some representation, terms or conditions or some definite statement as to how a product is warranted." Carpetland U.S.A. v. Payne (1989), Ind.App., 536 N.E.2d 306, 308. It is not necessary to the creation of an express warranty, however, that the seller use formal words such as "warrant" or "guarantee" or that he have a specific intention to make a warranty. IND.CODE 26-1-2-313(2). On the other hand, an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty. Id. ² When the parties' agreement is wholly written, the issue of whether certain language in the agreement has created an express warranty is a question of law.

Whether a given representation is a warranty or merely an expression of the seller's opinion is determined in part by considering "whether the seller asserts a fact of which the buyer is ignorant or merely states an opinion or judgment on a matter of which the seller has no special knowledge and on which the buyer may be expected also to have an opinion and to exercise his judgment." Royal Business Machines, supra, at 41. Courts must also consider the degree of specificity expressed in the representation and whether the representation is capable of being conclusively proven as a fact. Keeping all this in mind, we turn to the specific language upon which Hall Farms relies.

a. Petoseed

The label on Petoseed's one pound cans of Prince Charles watermelon seeds states the seeds are "top quality seeds with high vitality, vigor and germination." Hall Farms believes this language created an express...