Watts v. Sechler

• Decision Date: 30 June 2004
• Docket Number: No. 25873.,25873.
• Citation: 140 S.W.3d 232
• Parties: Katrina WATTS, Plaintiff-Appellant, v. Raymond SECHLER, Defendant-Respondent.
• Court: Missouri Court of Appeals

140 S.W.3d 232

Katrina WATTS, Plaintiff-Appellant, v. Raymond SECHLER, Defendant-Respondent.

No. 25873.

Missouri Court of Appeals, Southern District, Division Two.

June 30, 2004.

Application for Transfer Denied July 22, 2004.

Application for Transfer Denied August 24, 2004.

Appeal from the Circuit Court, Polk County, John W. Sims, J G. Spencer Miller, Gladstone, for appellant.

Joseph P. Winget, Scott E. Bellm, Turner, Reid, Duncan, Loomer & Patton, P.C., Springfield, for respondent.

KENNETH W. SHRUM, Judge.

Katrina Watts ("Plaintiff") sued Raymond Sechler ("Defendant") for damages, alleging that alfalfa hay she bought from Defendant poisoned her dairy cattle. Before trial, the court sustained Defendant's motion to dismiss Plaintiff's res ipsa loquitur count. The case went to trial on three other counts. At the close of Plaintiff's evidence, she opted to proceed on her "implied warranty of fitness for consumption" theory of recovery. Thereon, the trial court sustained Defendant's motion for directed verdict. This appeal followed.¹

We affirm in part; we reverse and remand in part.

FACTS AND PROCEDURAL HISTORY

In 1994, Plaintiff owned a dairy herd and decided to use alfalfa hay as part of her feeding program. To implement her decision, Plaintiff began buying "second cutting" alfalfa from Defendant.

During the 1996 hay season, Plaintiff bought both first and second cutting alfalfa from Defendant. As before, this hay was in "large round bale" form and all bales were "net wrapped." Initially, Plaintiff fed the 1996 "first cutting" alfalfa to her cows without adverse effects. Once Plaintiff started feeding the "second cutting" of the 1996 hay crop, however, her cattle became very sick. Many animals died, milk production dropped, cows began to miscarry, and many would not breed back in the normal sequence of events.

Ultimately, Plaintiff came to believe that the hay purchased from Defendant caused the illness in her livestock. Dr. Gardner, a veterinarian hired by Plaintiff, tested the subject hay. The tests revealed the "second cut" hay contained aflatoxin. From this and other investigation, Dr. Gardner concluded that Plaintiff's dairy herd was poisoned by the hay Defendant sold to Plaintiff.

The third count of Plaintiff's petition was entitled "Breach of Implied Warranty." In it, Plaintiff alleged that Defendant was a merchant engaged in the business of selling hay, he produced hay and sold it to Plaintiff knowing she would use it as feed for her dairy cattle, and she bought the hay in reliance upon Defendant's superior skill and judgment as a producer of hay.

In another count, Plaintiff sought recovery from Defendant on a res ipsa loquitur theory, i.e., that Defendant had managed and controlled the hay prior to its sale to Plaintiff, Defendant had superior knowledge about why the hay was toxic, and the herd illness would not ordinarily have occurred if Defendant had used ordinary care. As stated above, the court dismissed the res ipsa count at the request of Defendant before trial.

At the close of Plaintiff's case, Defendant moved for a directed verdict.² In urging dismissal, Defendant suggested the Plaintiff's implied warranty count was a "common law" claim, specifically a claim for breach of an implied warranty of fitness for consumption by animals. Plaintiff's lawyer agreed with Defendant's characterization as he told the court that Plaintiff was primarily relying upon the common law as illustrated by Borman v. O'Donley, 364 S.W.2d 31 (Mo.App.1962). After reading the Borman case, the trial judge responded as follows:

"[A]s I understand the law in this area, the doctrine and the cause of action is a common law cause of action not a statutory cause of action. We're not operating here under the Uniform Commercial Code, implied warranties of merchantability, or implied warranties of fitness for a particular purpose. We're operating under a common law cause of action of warranty of fitness for consumption which was certainly extended in the Borman case to processed animal food...."

The judge's assertion about what Plaintiff had elected as her remedy was not challenged or questioned by Plaintiff. With the case in that posture, the trial judge found that "hay is a raw material ... and no cause of action exists in... Missouri for a raw material." He then directed a verdict against Plaintiff.

DISCUSSION AND DECISION

Point I: Directed Verdict On Implied Warranty Claim

Plaintiff's first point charges the trial judge erred by directing a verdict for Defendant on Plaintiff's "breach of implied warranty" count because her "at-trial" evidence "established a prima facie case for breach of implied warranty of merchantability" for the subject hay in that "Defendant ... was a merchant and the hay that he sold to [Plaintiff] was not fit for ordinary purposes for which the hay would be used."

Although Plaintiff's point relied on never mentions section 400.2-314, RSMo (2000), a Uniform Commercial Code ("U.C.C.") provision, the first part of her argument beneath the point advances the notion that her "implied warranty" count was based on this U.C.C. provision.³ Still later in her briefing of Point I, Plaintiff broadens her claim of trial court error by contending she also made a submissible case for breach of an "implied warranty of fitness for consumption by animals," a warranty derived from common law. See Midwest Game Co. v. M.F.A. Milling Co., 320 S.W.2d 547 (Mo.1959).

Defendant's initial response urges affirmance by pointing out that, until this appeal, Plaintiff never asserted a claim for breach of a U.C.C. implied warranty of merchantability, either by pleading, or during trial, or in post-trial motions. With that as his premise, Defendant insists that we cannot convict the trial court of error on an issue never put before it to decide, Barner v. The Mo. Gaming Co., 48 S.W.3d 46-50[15] (Mo.App.2001); that Plaintiff is bound by the position she took in the trial court, namely, she was proceeding on the common law claim, and we can only review the case upon that theory. See Reese v. Ryan's Family Steakhouses, Inc., 19 S.W.3d 749, 752 [9] (Mo.App.2000).

Arguably, Plaintiff's petition pleaded the elements of a U.C.C. implied warranty of merchantability claim, albeit, without citing the applicable statute or pleading notice. However, that is not the theory Plaintiff told the trial judge and defense counsel she was pursuing. In answer to Defendant's motion for directed verdict at the close of Plaintiff's case, Plaintiff argued she had made a case of "implied warranty of fitness for consumption by animals." The judge then reviewed the case cited by Plaintiff and, having done so, declared what he understood to be Plaintiff's position, namely, that she was submitting her case on the common law theory of recovery and not on U.C.C. principles of implied warranty of merchantability. Thereon, Plaintiff stood silent and thus confirmed what she had said earlier; she opted to submit her case on the common law theory. Plaintiff's position on this remained unchanged during post-trial filings and arguments to the trial judge.

In sum, Defendant's complaint is valid. Plaintiff is asking this court to reverse on a theory never presented to the trial court. This we will not do. Appellate courts have repeatedly held that a party cannot present his or her cause of action on one theory in the trial court and, if unsuccessful there, argue a different theory in an appellate court. Sinclair Refining Co. v. Wyatt, 149 S.W.2d 353, 354[1] (Mo.1941); Vintila v. Drassen, 52 S.W.3d 28, 38[11] (Mo.App.2001). Review on appeal is limited to issues and theories heard by the trial judge. State Farm Mut. Auto. Ins. Co. v. Esswein, 43 S.W.3d 833, 839[7] (Mo.App.2000). Having taken the position at trial that her cause of action was grounded on common law principles, Plaintiff is barred from arguing a different theory on appeal to convict the trial court of error. Barner, S.W.3d at 50 [14,15].

Plaintiff's second claim under Point I is that reversal is mandated because Plaintiff made a submissible case on her common law implied warranty claim of fitness for consumption. In response, Defendant correctly points out that this argument is not properly briefed. This is so because it is an argument that does not follow the order of "Points Relied On" and is one not included in the "Points Relied On." This is a violation of Rule 84.04(e)and would justify this court's refusal to review such argument.⁴ See Rule 84.13.

Even so, we exercise our discretion to proceed with the appeal on its merits. We do so because we have been able to determine the facts of the case and the issues to be decided from the briefs and transcript. Norman v. Ballentine, 627 S.W.2d 83, 85 (Mo.App.1981). Moreover, Defendant's lawyers have been able to perform their briefing obligations and have responded to Plaintiff's argument that she made a submissible case on her common law implied warranty claim. See Twelve Oaks Motor Inn, Inc. v. Strahan, 110 S.W.3d 404, 407 n. 3 (Mo.App.2003); Daniel v. Indiana Mills & Mfg., Inc., 103 S.W.3d 302, 312 (Mo.App.2003); Keeney v. Mo. Highway and Transp. Comm'n, 70 S.W.3d 597, 598 n. 1 (Mo.App.2002).

The dispute in this prong of Point I centers on two phrases, namely "raw state" food and "processed and packaged" food. These phrases appeared in cases that found an implied warranty of fitness for consumption accompanied the sale of animal feed. See Midwest, 320 S.W.2d 547; Albers Milling Co. v. Carney, 341 S.W.2d 117 (Mo.1960); Borman, 364 S.W.2d 31. Midwest was the first case to extend the implied warranty of fitness for consumption to animal feed when there was no privity between the damaged consumer and the feed manufacturer. The Midwest plaintiff sought damages from a manufacturer of fish food after the manufacturer's pre-packaged and processed fish food killed some of plaintiff's fish. In part, the plaintiff alleged that a common law...