Wilson v. Burch Farms, Inc.

• Decision Date: 21 March 2006
• Docket Number: No. COA05-207.,COA05-207.
• Citation: 627 S.E.2d 249
• Court: North Carolina Court of Appeals
• Parties: Paul Bryan WILSON, Plaintiff, v. BURCH FARMS, INC., Defendant.

627 S.E.2d 249

Paul Bryan WILSON, Plaintiff, v. BURCH FARMS, INC., Defendant.

No. COA05-207.

Court of Appeals of North Carolina.

March 21, 2006.

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Appeal by defendant from judgment entered 14 July 2004 by Judge Christopher M. Collier in Richmond County Superior Court. Heard in the Court of Appeals 18 October 2005.

Henry T. Drake, Wadesboro, for plaintiff-appellee.

White & Allen, P.A., by David J. Fillippeli, Jr. and Gregory E. Floyd, Kinston, for defendant-appellant.

JACKSON, Judge.

Paul Bryan Wilson ("plaintiff") is a sweet potato farmer in Richmond County, North Carolina. Beginning in 1996 or 1997, plaintiff entered into an agreement with Burch Farms, Inc. ("defendant"), under the terms of which plaintiff would harvest his crop of sweet potatoes, and bring the crop to defendant. Thereafter, defendant would store the sweet potatoes for plaintiff, and many other farmers, and then run them through a process known as grading and packing. This process separates the potatoes based on type and quality, after which defendant would then sell the potatoes to various grocery store chains or other customers. After defendant sold what it could of plaintiff's crop, it would account to plaintiff with the proceeds from the sale, minus the administrative costs of storing and processing the produce.

In the fall of 2000, plaintiff farmed fifty acres of sweet potatoes, and entered into an agreement with defendant as he had in prior years. In November 2000, plaintiff delivered ten thousand two hundred (10,200) bushels of sweet potatoes, which defendant stored at a leased facility in Smithfield. Plaintiff stated at trial that all of these potatoes were of good quality and were freshly harvested at the time of shipment to defendant. Defendant's primary packing and storing facility is located in Faison, North Carolina, and at the time of plaintiff's shipment to defendant, the Faison facility was full. In May 2001, plaintiff shipped an additional three thousand three hundred (3,300) bushels of sweet potatoes to defendant's Faison facility. Both parties agreed upon inspection of the May 2001 shipment, that this shipment was not of marketable quality and was of no use to either party. This shipment was then "dumped" by defendant with plaintiff's consent.

As defendant ran plaintiff's and other farmer's sweet potatoes through the grading and packing process, unmarketable and rotten potatoes were removed from the bushels and discarded, or "dumped." Defendant regularly dumped plaintiff's and other farmer's produce if it began to rot or sprout roots while in storage, and before it could be graded and packed. Both plaintiff and Ted Burch ("Burch"), supervisor of defendant's packing house, testified that it was common practice in the industry for the broker, or defendant in this case, to notify the farmer if something was wrong with his crop, so that the farmer could come and look at the crop and retrieve it if he wanted to do so, prior to the broker's dumping the crop. During plaintiff's and defendant's previous dealings, defendant regularly dumped unmarketable and rotten bushels of plaintiff's sweet potato crops, with plaintiff's consent and without prior notification to plaintiff. At no time during the parties' dealings together had defendant ever had to dump plaintiff's entire sweet potato crop.

During the summer of 2001, defendant transported plaintiff's sweet potatoes being stored in Smithfield, to the Faison facility. Upon arrival of the potatoes, Burch testified that he immediately saw problems with the crop. Plaintiff testified that defendant informed him that the sweet potatoes would be processed shortly after their arrival at the Faison facility. In September 2001, plaintiff contacted defendant for an accounting of the ten thousand two hundred bushels of potatoes that originally had been stored in Smithfield. At this time, plaintiff was informed that defendant had dumped all of plaintiff's sweet potatoes approximately one month prior, due to the potatoes' being unmarketable and of poor quality. At no time prior to defendant's dumping plaintiff's potatoes was plaintiff notified that there was a problem with his crop.

Defendant provided a letter to plaintiff stating that plaintiff's crop of sweet potatoes for the year 2000 was of poor quality as a result of weather conditions, and therefore plaintiff's potatoes were unmarketable and were dumped by defendant. With this letter, plaintiff submitted an application to the U.S. Department of Agriculture ("USDA"), for compensation through the Quality Loss Program, which was designed to compensate farmers for cases in which their crop yield was low or unmarketable. Plaintiff received twenty-three thousand four hundred and eighty-four dollars ($23,484.00) in compensation from the USDA, representing compensation for only a portion of plaintiff's entire 2000 sweet potato crop, at only a fraction of the usual market price.

On 30 August 2002, plaintiff filed a complaint in Richmond County Superior Court alleging various claims against defendant. Plaintiff's complaint alleged claims for breach of contract and negligence on the part of a bailee. At trial, both parties testified along with several other farmers and employees of defendant. At the close of plaintiff's evidence, defendant made a motion for directed verdict on both of plaintiff's claims. The trial court denied defendant's motion as to the breach of contract claim, and granted the motion on the bailment claim, thereby dismissing plaintiff's bailment claim. The jury returned a verdict finding that defendant had breached its oral contract with plaintiff, and awarded plaintiff damages in the amount of fifty thousand dollars ($50,000.00). The trial court then made findings of fact regarding the compensation plaintiff received from the federal government, and proceeded to grant defendant a set-off against plaintiff's damages award in the total amount of twenty-one thousand six hundred fifteen dollars and thirty cents ($21,615.30). From the jury verdict and award of damages to the plaintiff, defendant appeals. Plaintiff cross appeals on the trial court's dismissal of the bailment claim and the reduction of the damages awarded.

Defendant's first assignment of error concerns the trial court's instructions to the jury regarding the requirements of the Perishable Agricultural Commodities Act ("PACA") for dumping perishable agricultural commodities. Defendant contends the instruction on PACA's requirements constituted reversible error in that PACA was not applicable in the present case, as plaintiff's case was one in state court for a breach of contract claim.

The record demonstrates that before the trial court instructed the jury, a charge conference was held with the attorneys representing both parties. At the charge conference, the court advised the attorneys as to how and what it was going to instruct the jury on the issue of PACA and dumping. Defendant objected to the proposed instruction on PACA's requirements, and his objection was denied. After the jury was instructed, the trial court asked both parties, outside the presence of the jury, if either of them had any objections or requests for additional instructions. Neither party objected to the instructions as they were given.

"`Rule 10(b)(2) of our Rules of Appellate Procedure requiring objection to the charge before the jury retires is mandatory and not merely directory.'" Wachovia Bank v. Guthrie, 67 N.C.App. 622, 626, 313 S.E.2d 603, 606 (1984) (quoting State v. Fennell, 307 N.C. 258, 263, 297 S.E.2d 393, 396 (1982)). "[W]here a party fails to object to jury instructions, `it is conclusively presumed that the instructions conformed to the issues submitted and were without legal error.'" Madden v. Carolina Door Controls, 117 N.C.App. 56, 62, 449 S.E.2d 769, 773 (1994) (quoting Dailey v. Integon General Ins. Corp., 75 N.C.App. 387, 399, 331 S.E.2d 148, 156, disc. review denied, 314 N.C. 664, 336 S.E.2d 399 (1985)). On appeal, plaintiff now contends that defendant failed to preserve his right to appeal on the instructions to the jury, as defendant failed to object to the instructions before the jury retired to deliberate. Our Supreme Court has held, and we reiterate, that when a party has objected to proposed jury instructions during a charge conference, and the trial court has considered and denied the request, that the party need not repeat its objections after the jury charge is given. Wall v. Stout, 310 N.C. 184, 188-89, 311 S.E.2d 571, 574 (1984). Therefore, by objecting to the proposed instruction on PACA at the charge conference and receiving a ruling on his objection, defendant has properly preserved this issue for appeal.

As defendant has properly preserved its right to appeal on the jury instruction regarding PACA, we review the trial court's instruction to determine whether it was proper. On appeal, this Court reviews a jury charge "contextually and in its entirety," and the charge will be considered "to be sufficient if `it presents the law of the case in such manner as to leave no reasonable cause to believe the jury was misled or misinformed. . . .'" Bass v. Johnson, 149 N.C.App. 152, 160, 560 S.E.2d 841, 847 (2002) (quoting Jones v. Development Co., 16 N.C.App. 80, 86-87, 191 S.E.2d 435, 439-40, cert. denied, 282 N.C. 304, 192 S.E.2d 194 (1972)). As defendant now asserts there was error in the instruction, defendant "bears the burden of showing that the jury was misled or that the verdict was affected by an omitted instruction." Id. (citing Robinson v. Seaboard System Railroad, 87 N.C.App. 512, 524, 361 S.E.2d 909, 917 (1987), disc. review denied, 321 N.C. 474, 364 S.E.2d 924 (1988)). "`Under such a standard of review, it is not enough for the appealing party to show that error occurred in the jury instructions; rather, it must be demonstrated that such error was likely, in light of the entire charge,...