Nature's Share, Inc. v. Kutter Products, Inc.
| Decision Date | 04 October 1990 |
| Docket Number | No. 88 1035 C.,88 1035 C. |
| Citation | 752 F. Supp. 371 |
| Parties | NATURE'S SHARE, INC. d/b/a Heaven's Harvest, Plaintiff, v. KUTTER PRODUCTS, INC., Defendant and Third Party Plaintiff. S & R SEED CO., INC., formerly Tobin Lawn and Garden Supply Co., Inc., Defendant, v. LOVE BOX COMPANY, Third Party Defendant. |
| Court | U.S. District Court — District of Kansas |
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John H. Gibson, Carl L. Wagner, Boyer, Donaldson & Stewart, Wichita, Kan., for plaintiff.
John J. Jurcyk, Jr., Daniel F. Church, McAnany, Van Cleave & Phillips, Kansas City, Kan., for Kutter Products.
Frederick K. Starrett, Miller and Bash, Overland Park, Kan., and Roy Bash, Kansas City, Mo., Debra J. Arnett, McDonald, Tinker, Skaer, Quinn & Herrington, Wichita, Kan., for S & R Seed Co., Inc.
Robert D. Overman, Ross A. Hollander, Martin, Churchill, Overman, Hill & Cole, Wichita, Kan., for Love Box Co.
The case comes before the court on several dispositive motions: Kutter Products, Inc.'s motion for summary judgment; S & R Seed Company, Inc.'s motion for summary judgment; Nature's Share, Inc.'s motion for partial summary judgment; Love Box Company's motion to dismiss or in the alternative for partial summary judgment; and Nature's Share, Inc.'s motion to amend the pretrial order. Plaintiff, Nature's Share, Inc. (Nature's Share), alleges the defendant, Kutter Products, Inc. (Kutter), breached a contract and an implied warranty of merchantability and was negligent in developing and assembling corrugated disposable bird feeders with infested bird seed. Kutter counterclaims against plaintiff for negligence in not instructing on the proper maintenance of the bird seed, fraudulent concealment of the fact the seed was infested, and breach of its third-party contractual duties. Nature's Share brings a negligence claim against defendant, S & R Seed Co., Inc. (S & R), for supplying infested bird seed. Kutter has also filed a third-party complaint against Love Box Company (Love Box) for breach of contract and negligence.
In ruling on a motion for summary judgment, the trial court conducts a threshold inquiry of the need for a trial. Without weighing the evidence or determining credibility, the court grants summary judgment when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2512.
An issue of fact is "genuine" if the evidence is significantly probative or more than merely colorable such that a jury could reasonably return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2510. An issue of fact is "material" if proof thereof might affect the outcome of the lawsuit as assessed from the controlling substantive law. 477 U.S. at 249, 106 S.Ct. at 2510. Factual inferences are drawn to favor the existence of triable issues, and where reasonable minds could ultimately reach different conclusions, summary judgment is inappropriate. See Riley v. Brown & Root, Inc., 896 F.2d 474, 476-77 (10th Cir.1990).
The movant's initial burden under Fed.R.Civ.P. 56 is to show the absence of evidence to support the nonmoving party's case. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 345 (10th Cir.1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987). The movant must specify those portions of "`the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits if any,'" which demonstrate the absence of a genuine issue of fact. Windon, 805 F.2d at 345 (quoting Fed.R.Civ.P. 56(c)). It may be sufficient for the movant to establish that the alleged factual issues are without legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir.1987).
The opposing party may not rest upon mere allegations or denials in the pleadings but must set forth specific facts supported by the kinds of evidentiary materials listed in Rule 56(c). Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. The non-moving party's evidence is deemed true and all reasonable inferences are drawn in his favor. Windon, 805 F.2d at 346. More than a "disfavored procedural shortcut," summary judgment is an important procedure Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986).
For purposes of the motions for summary judgment filed by defendants Kutter and S & R, the following facts are uncontroverted:
1. Nature's Share is in the business of developing, producing and marketing a disposable corrugated bird feeder. Its principals were Paul Porvaznik, Tonk Mills and William Palmer.
2. Kutter is a secondary packaging operation which overwraps and packages finished products, including foodstuffs, into purchase displays and shipping cartons. Love Box is a manufacturer of corrugated boxes and corrugated products. S & R supplies lawn and garden materials such as fertilizers, grass seed and bird seed to people in the lawn business as well as retailers.
3. In April 1986, Paul Porvaznik met with R.D. Love, president and chief executive officer of Love Box, to introduce a disposable bird feeder project which he intended to develop and market. R.D. Love said Love Box would do the necessary research and development for the corrugated bird feeder, and he directed Noel Mertz, design manager and technical services manager for Love Box, to develop the bird feeder. Because Nature's Share was not known as financially secure and lacked any history of doing business and because suppliers would not quote it prices, Love Box in the same month agreed to assist it in locating sources for the component parts: perch rod, string, and bagged bird seed.
4. In May of 1986, Noel Mertz of Love Box inquired of Kutter whether it would be interested in a project to collate, shrink wrap, and store a bird feeder. Kutter also agreed to assist locating sources for the hanging string, dowel rod and one pound bag of bird seed and to obtain price quotations from potential suppliers. Two months earlier, Love Box had entered into an agreement with Kutter to collate and shrink wrap some of Love Box's retail corrugated products.
5. Noel Mertz of Love Box provided Kutter with the specifications for the dowel rod, hanging string, one pound polyethylene bag of bird seed and formula for the bird seed. Nature's Share had decided on the particular seed mixture and the type of bag.
6. Representatives of Love Box did not at any time during the project provide oral or written specifications to Kutter that the bird seed was to be fumigated. (This is not controverted by the testimony of Paul Provaznik of Nature's Share that at some point he spoke with Guy Zabor of Kutter about whether the bird seed was fumigated). At no time during the bird feeder project were any chemicals specified by plaintiff or Love Box for use in fumigating the bird seed.
7. On July 17, 1986, Love Box orally directed Kutter to purchase 100,000 one-pound polyethylene bags of bird seed from S & R, plus 100,000 dowel rods and 100,000 hanging cords for the bird feeders pursuant to specifications provided by Love Box. (This statement is not effectively controverted by the testimony from plaintiff's representatives that they decided to order from Kutter).
8. No party provided S & R with written or oral specifications for fumigation of the birdseed. The principals of Nature's Share had no contact with Tom Tobin or any representative of S & R.
9. On July 28, 1986, Love Box issued a written purchase order, confirming the July 17, 1986, oral directions, for the purchase of the materials. Love Box also requested that Kutter collate, assemble, shrink wrap and ship the bird feeders. (This statement is true whether or not Love Box was acting upon Nature's Share request).
10. Nature's Share never entered into any written contract with Kutter on the disposable bird seed project, including the purchase of materials or the other undertakings.
11. On July 23, 1986, representatives of Love Box, Kutter, Nature's Share and MCI Sales and Marketing met to discuss the sale, distribution, storage and assembly of the bird feeder and other Love Box products. On August 11, 1986, Love Box executed a written contract with MCI for it to sell Love Box's retail corrugated product line and the corrugated bird feeder.
12. In August or September of 1986, Love Box inquired from Kutter whether the bird seed supplied by S & R contained live insects. Within these same two months, S & R informed Kutter, which in turn informed Love Box, that the seed did not include live insects, but insect eggs, which would hatch within six to nine months. Love Box informed Nature's Share in November or December of 1986 that the bird seed could become infested within six to nine months. (Plaintiff has controverted the testimony that it was told the infestation would occur within that period). Nature's Share took no action in response to being informed of the possible infestation in six to nine months.
13. After all parties to the project were made aware of this possible infestation, Love Box directed Kutter to continue purchasing the bird seed from S & R. (This fact is not controverted by whether or not Love Box acted on Nature's Share's direction).
14. In the summer of 1986, Noel Mertz of Love Box told Guy Zabor, co-owner of Kutter, to treat Paul Porvaznik of Nature's Share with every courtesy but not to follow Mr. Porvaznik's instructions or directions nor respond to any requests without first contacting Mr. Mertz.
15. Less than 3,000...
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