Tolmie Farms, Inc. v. J.R. Simplot Co., Inc., 20104

• Citation: 124 Idaho 607,862 P.2d 299
• Decision Date: 28 September 1993
• Docket Number: No. 20104,20104
• Parties: , 23 UCC Rep.Serv.2d 65 TOLMIE FARMS, INC., an Idaho Corporation and Donald E. Tolmie and Connie H. Tolmie, husband and wife, Plaintiffs-Appellants, v. Stauffer Chemical Company, Inc. and John Does One through Ten, Defendants, and J.R. SIMPLOT COMPANY, INC., Defendant-Respondent. Boise, January 1993 Term
• Court: United States State Supreme Court of Idaho

Page 299

862 P.2d 299

124 Idaho 607, 23 UCC Rep.Serv.2d 65

TOLMIE FARMS, INC., an Idaho Corporation and Donald E. Tolmie and Connie H. Tolmie, husband and wife, Plaintiffs-Appellants, v. Stauffer Chemical Company, Inc. and John Does One through Ten, Defendants, and J.R. SIMPLOT COMPANY, INC., Defendant-Respondent.

No. 20104.

Supreme Court of Idaho,

Boise, January 1993 Term.

Sept. 28, 1993.

[124 Idaho 608] Eismann Law Offices, Nampa, for plaintiffs-appellants. Richard B. Eismann argued.

David E. Spurling, Boise, for defendant-respondent.

REINHARDT, Justice, Pro Tem.

BACKGROUND

The appellant, Tolmie Farms, Inc. (Tolmie Farms) seeks review of the Court of Appeals decision affirming the district court's grant of summary judgment dismissing its breach of warranty claims against the respondent J.R. Simplot Company, Inc. (Simplot). Tolmie Farms' petition for review of the Court of Appeals' decision was granted by the Supreme Court.

FACTS

The facts, as summarized by the Court of Appeals, are as follows:

Tolmie Farms is a family owned and operated farming enterprise that grows potatoes in Wilder, Idaho. Potato farmers in that area customarily fumigate the planting soil in the autumn with a nematicide to prevent nematodes, a root-eating worm, from destroying the potatoes. Vapam is a nematicide manufactured by Stauffer Chemical Company (Stauffer) and sold by J.R. Simplot Company (Simplot). In the fall of 1982, 1983, and 1984, Tolmie Farms purchased Vapam from Simplot and applied the chemical to its potato fields in each of those years. Although the potato harvests in 1983 and 1984 were successful, the 1985 crop became infested with nematodes, causing severe damage to the harvest.

Tolmie Farms and Donald and Connie Tolmie (hereinafter collectively referred to as Tolmie Farms) brought this action against Stauffer and Simplot, alleging breach of express written and oral warranties, breach of implied warranty of merchantability, and breach of implied warranty of fitness for a particular purpose. Simplot moved for summary judgment, contending there was no evidence to support the allegation that it had made any express warranties, and asserting that it had effectively disclaimed all implied warranties. Simplot also objected to Donald and Connie Tolmie's status as real parties in interest and sought to dismiss them from the case. The district court granted the motion, dismissing all of the claims against Simplot, and dismissing the Tolmies from the action. On its own motion for summary judgment, Stauffer was granted a partial summary judgment. The district court gave effect to the written warranty disclaimers, but concluded there remained triable issues of fact The Court of Appeals addressed the issues of: (1) whether Simplot made any express oral warranties; (2) whether Simplot had effectively disclaimed all implied warranties of merchantability and warranties of fitness for a particular purpose; and (3) whether Donald and Connie Tolmie were proper parties to the action. The Court of Appeals held that the trial court record presented a genuine issue of material fact as to whether Simplot made any express oral warranties and that Donald and Connie Tolmie were proper parties to the action and reversed on these issues. The Court of Appeals affirmed the district court's order dismissing the breach of implied warranty claims. Thereafter, the Idaho Supreme Court granted a petition for review as to the issues presented in the appeal.

[124 Idaho 609] with respect to the claim for breach of express warranty. The rulings relating to Stauffer are not before us in this appeal, which was certified under I.R.C.P. 54(b) for review of the Simplot judgment only. Tolmie Farms appealed the Simplot judgment to the Idaho Supreme Court. The Idaho Supreme Court then assigned the case to the Idaho Court of Appeals.

ANALYSIS

When this Court hears a case which comes before it on a petition for review of an opinion of the Court of Appeals, and the issues presented to the Court of Appeals concerned a decision of the district court, we turn to and consider the correctness of the district court's decision. "While we value the opinion of the Court of Appeals for the insight it gives us in addressing the issues presented on appeal, we do not focus on the opinion of the Court of Appeals, but rather on the decision of the district court." Gerstner v. Washington Water Power, 122 Idaho 673, 675, 837 P.2d 799, 801 (1992) (quoting Sato v. Schossberger, 117 Idaho 771, 775, 792 P.2d 336, 340 (1990)).

On a motion for summary judgment, we review "the pleadings, depositions, and admissions on file, together with the affidavits, if any," to determine whether there is a genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. I.R.C.P. 56(c); Cluff v. Bonner County, 121 Idaho 184, 186, 824 P.2d 115, 117 (1992). We review the evidence most favorable to the party opposing the motion, and draw all inferences in their favor." Rawson v. United Steelworkers of America, 111 Idaho 630, 633, 726 P.2d 742, 745 (1986).

With this standard in mind we first review the record to determine whether there is a genuine issue of material fact as to whether or not Simplot made any express oral warranties to the Tolmies.

It is alleged in the complaint that the defendants represented to the plaintiffs that Vapam, applied in the manner recommended and instructed by the defendants in the fall of 1984, would control nematodes on the potato crop grown in the year 1985, would increase the yield of the potatoes, and would improve the quality of the potatoes.

Simplot denied the existence of any express oral warranties allegedly made to Tolmie Farms and moved for summary judgment on that issue. In opposition to the motion, Tolmie Farms submitted the affidavit of Donald Tolmie, wherein he stated that in the fall of 1982, Simplot employee Avery Sheets, told Tolmie that Vapam would control nematodes, was easy to apply through a center pivot sprinkler system, and would produce a better quality and higher yield of potatoes, which were more storable. Tolmie also stated that he met with Dennis Coon, the Unit Manager of Simplot in Caldwell, who told him that Vapam was a very popular fumigant in the state of Washington because it could be applied through a center pivot sprinkler system and because it controlled nematodes and other soil pests. Further, the affidavit asserted that Sheets made virtually the same representations to Tolmie in the fall of 1983 and 1984.

Simplot submits that the Tolmie affidavit is insufficient to defeat their motion for summary judgment on the cause of action for express oral warranty. In addition, Simplot asserts that the previous deposition Idaho Rule of Civil Procedure 56(e) provides in pertinent part that "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify about the matters stated therein." Simplot alleges that Donald Tolmie's affidavit failed to comply with I.R.C.P. 56(e). Simplot argues that the affidavit contained inadmissable hearsay and that the statements presented in the affidavit lacked adequate foundation and therefore should not be considered. This Court follows Camp v. Jiminez, 107 Idaho 878, 881, 693 P.2d 1080, 1083 (Ct.App.1984), where it was held that if noncompliance with Rule 56(e) is not brought to the trial court's attention by proper objection and motion to strike, it is waived. A review of the record shows no such objection or motion. We therefore will not consider this issue on appeal.

[124 Idaho 610] testimony of Donald Tolmie is in complete contradiction with his affidavit. Further, the allegations made in Donald Tolmie's affidavit, namely that Simplot employee Sheets concurred or reiterated statements made by Stauffer employee Ron Shaeffer, are insufficient to establish the existence of an express warranty. Finally, even if the statements made by Simplot employees, Sheets and Coons, were admissible, they do not constitute express warranties as a matter of law.

Simplot further alleges that to the extent that Mr. Tolmie's affidavit contradicts his prior sworn deposition testimony, the allegations contained in the affidavit are insufficient to prevent Simplot from obtaining summary judgment.

Idaho Rule of Civil Procedure 30(e) ¹ allows for changes in deposition testimony. Tolmie corrected his prior deposition testimony where he had stated that he could not recall certain facts about representation made to him by Avery Sheets. In his corrected deposition testimony, Tolmie stated that he met with Avery Sheets in the fall of 1982, 1983, and 1984 to discuss the benefits of using Vapam on the potato fields and that Sheets specifically told him that if properly applied, Vapam would control nematodes and increase the yield and quality of the potato harvest. These statements are not inconsistent with his affidavit.

Simplot argues that the Tolmies are trying to prevent an adverse summary judgment by creating factual issues in the affidavit which contradict their prior sworn deposition testimony. However, it appears that Simplot failed to review the corrected deposition testimony prior to Tolmie's signature on December 28, 1989, which does not conflict with his affidavit. While we may agree that the purpose of summary judgment is served by a rule that prevents a party from creating sham issues by offering contradictory testimony, we perceive no "contradiction" where the witness asserts in his affidavit facts which, at the time of his earlier deposition, he specifically had asserted he could not recall. Kennedy v. Allied Mut., 952 F.2d 262, 266-67 (9th Cir.1991) (district court must determine that affidavit contradicting prior testimony is a "sham" before it determines that affidavit cannot be used to create an issue of fact precluding...