Burton v. Warren Farmers Co-Op.

129 S.W.3d 513

Joe BURTON v. WARREN FARMERS COOPERATIVE.

No. M1999-00486-COA-R3-CV.

Court of Appeals of Tennessee, at Nashville.

February 1, 2000 Session.

September 12, 2002.

Published Pursuant to Tenn. Ct. App. R. 11.

Chantal M. Eldridge, Cookeville, Tennessee, for the appellant, Joe Burton.

Steven A. Dix, Murfreesboro, Tennessee, for the appellee, Warren Farmers Cooperative.

WILLIAM C. KOCH, JR., J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S., and WILLIAM B. CAIN, J., joined.

OPINION

This appeal involves a dispute between a farmer and a co-op over a disappointing soybean crop. The farmer filed suit against the co-op in the Circuit Court for Warren County, alleging that his crop had been damaged by the manner in which the co-op had sprayed herbicide on his fields early in the growing season. At the close of the farmer's proof, the trial court granted the co-op's motion for involuntary dismissal under Tenn. R. Civ. P. 41.02(2) after concluding that he had failed to prove his breach of contract and negligence claims. The farmer asserts on this appeal that the trial court erred by dismissing his lawsuit. We have determined that the trial court properly dismissed the farmer's complaint at the close of his proof.

I.

Joe Burton lives in the Mount Zion community in Warren County and has farmed there for most of his life. In addition to his 272-acre home place where he raises Holstein cattle and grows row crops, he grows corn, soybeans, wheat, and tobacco on three rented tracts of land. One tract is a 27-acre field, and the other two tracts, consisting of 11 acres and 58 acres, form one large field. During the summer of 1995, Mr. Burton planted and harvested a wheat crop and then planted soybeans with the assistance of David Walker, the owner of a nearby farm. During June and July, Mr. Walker purchased and planted soybeans on his farm, in Mr. Burton's three fields, and on another nearby farm owned by Carl Bouldin. He planted the same variety of soybeans on all three farms.

In the meantime, Mr. Burton had made arrangements with the Warren Farmers Cooperative to spray herbicide on his fields to control weeds and grass. He left it to the co-op to select which herbicides to use. On June 20, 1995, Mike Young, a certified sprayer employed by the co-op, sprayed Mr. Burton's 11-acre field with Roundup, Dual, and Canopy. On July 7, 1995, he sprayed Mr. Burton's 27-acre field with Fusilade 2000 and Classic. Finally, on July 17, 1995, Mr. Young sprayed Mr. Burton's 58-acre field with Fusilade DX and Classic.

Approximately seven to ten days after Mr. Young sprayed the last field, Mr. Burton noticed that his soybeans looked as if someone had "poured hot water on them." While the plants in the point rows¹ where Mr. Young had not sprayed appeared to be doing well, many of Mr. Burton's other soybean plants had stopped growing and appeared to be dying. Even though Mr. Burton's soybeans were struggling, the soybeans in Mr. Walker's and Mr. Bouldin's fields, which the co-op had not sprayed, were thriving.

Mr. Burton took several steps to address the problem with his soybean crop. First, he contacted the co-op. The co-op offered to spray his fields again, but Mr. Burton declined this offer because his soybeans were already blooming and could not be sprayed again. Accordingly, the co-op credited Mr. Burton's account for what it had charged to spray his soybeans. Zenica, the manufacturer of herbicides that had been sprayed on two of Mr. Burton's fields, also reimbursed him for the cost of its chemicals after Mr. Burton executed a written release. Mr. Burton also filed a claim seeking disaster credit with the United States Department of Agriculture stating that his crops had been damaged by dry weather between July 10 and 14, 1995 and possibly by chemicals. The department denied his claim because it determined that his crops would yield more than ten bushels of soybeans per acre.

Eventually, Mr. Burton's neighbors' fields yielded good soybean crops. Mr. Burton ended up with a below normal crop. He testified that his normal yield was thirty bushels per acre and that he was only able to harvest approximately twelve bushels per acre on his 11-acre and 58-acre fields. Mr. Burton stated that he only harvested fifty-six bushels on his 27-acre field and that he eventually cut up the remaining crop for hay.

Mr. Burton finally filed suit against the co-op in the Circuit Court for Warren County, alleging seven causes of action including breach of contract, breach of express and implied warranty, negligence, and fraud. The co-op denied liability and moved for a summary judgment based on the release Mr. Burton had given to Zenica. The trial court denied the motion, and the case proceeded to trial. By the time of the trial, Mr. Burton had narrowed his claims to two—breach of contract and negligence. In addition to his own testimony, Mr. Burton's proof included the testimony of two other Warren County farmers, an educator with the University of Tennessee's Agricultural Extension Service, the owner of an agricultural spraying business, and Mr. Young, the co-op employee who had sprayed Mr. Burton's fields. Following the conclusion of Mr. Burton's case, the trial court granted the co-op's motion for an involuntary dismissal pursuant to Tenn. R. Civ. P. 41.02(2). Mr. Burton has perfected this appeal.

II. THE STANDARD OF REVIEW

At the outset, we must address the appropriate standard for reviewing the trial court's dismissal of Mr. Burton's claims against the co-op. Unfortunately, Mr. Burton has misapprehended the appropriate standard of review because he has overlooked the substantive differences between an order granting a directed verdict in a jury case and an order granting an involuntary dismissal in a non-jury case. The differences between the standards used to review these two orders will prove to be outcome-determinative in this case.

A Tenn. R. Civ. P. 41.02(2) motion for involuntary dismissal differs markedly from a Tenn. R. Civ. P. 50 motion for a directed verdict. The most obvious, yet most overlooked, difference is that motions for directed verdicts have no place in bench trials, while Tenn. R. Civ. P. 41.02(2) motions have no place in jury trials. Cunningham v. Shelton Sec. Serv., Inc., 46 S.W.3d 131, 135 n. 1 (Tenn.2001); City of Columbia v. C.F.W. Constr. Co., 557 S.W.2d 734, 740 (Tenn.1977); Scott v. Pulley, 705 S.W.2d 666, 672 (Tenn.Ct.App.1985). Beyond this obvious procedural difference, motions for involuntary dismissal serve a different purpose than motions for directed verdict and require the courts to employ a substantially different method of analysis.

A Tenn. R. Civ. P. 50 motion for directed verdict provides a vehicle for deciding questions of law. The question presented is whether the plaintiff has presented sufficient evidence to create an issue of fact for the jury to decide. Spann v. Abraham, 36 S.W.3d 452, 462 (Tenn.Ct.App.1999); Ingram v. Earthman, 993 S.W.2d 611, 626 (Tenn.Ct.App.1998). The courts do not weigh the evidence when they answer this question, Conatser v. Clarksville Coca-Cola Bottling Co., 920 S.W.2d 646, 647 (Tenn.1995), nor do they evaluate the credibility of the witnesses. Richardson v. Miller, 44 S.W.3d 1, 30 (Tenn.Ct.App.2000). Rather, they review the evidence in the light most favorable to the non-moving party, give the non-moving party the benefit of all reasonable inferences, and disregard all the evidence contrary to the non-moving party's position. Alexander v. Armentrout, 24 S.W.3d 267, 271 (Tenn.2000); Addaman v. Lanford, 46 S.W.3d 199, 203 (Tenn.Ct.App.2000).

A directed verdict should not be granted if the party with the burden of proof has presented sufficient evidence to create an issue of fact for the jury to decide. White v. Vanderbilt Univ., 21 S.W.3d 215, 231 (Tenn.Ct.App.1999). A jury issue has been created if there is any doubt regarding the conclusions to be drawn from the evidence, Crosslin v. Alsup, 594 S.W.2d 379, 380 (Tenn.1980), or if reasonable persons could draw different conclusions from the evidence. Hurley v. Tennessee Farmers Mut. Ins. Co., 922 S.W.2d 887, 891 (Tenn.Ct.App.1995); Pettus v. Hurst, 882 S.W.2d 783, 788 (Tenn.Ct.App.1993). A jury issue has not been created when reasonable minds can draw only one conclusion from the evidence. Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn.1994); Tompkins v. Annie's Nannies, Inc., 59 S.W.3d 669, 673 (Tenn.Ct.App.2000).

Motions for involuntary dismissal pursuant to Tenn. R. Civ. P. 41.02(2) require the courts to engage in an entirely different analysis. These motions do not raise questions of law but rather challenge the sufficiency of the plaintiff's proof. Smith v. Inman Realty Co., 846 S.W.2d 819, 821 (Tenn.Ct.App.1992); Merriman v. Smith, 599 S.W.2d 548, 560 (Tenn.Ct.App.1979). A claim may be dismissed pursuant to a Tenn. R. Civ. P. 41.02(2) motion to dismiss if, based on the law and the evidence, the plaintiff has failed to demonstrate a right to the relief it is seeking. City of Columbia v. C.F.W. Constr. Co., 557 S.W.2d at 740. Motions under Tenn. R. Civ. P. 41.02(2) require less certainty than motions for directed verdict. Smith v. Inman Realty Co., 846 S.W.2d at 822. Thus, a court faced with a Tenn. R. Civ. P. 41.02(2) motion need only impartially weigh and evaluate the plaintiff's evidence just as it would after all the parties had concluded their cases and may dismiss the plaintiff's claims if the plaintiff has failed to make out a prima facie case by a preponderance of the evidence. Thompson v Adcox, 63 S.W.3d 783, 791 (Tenn.Ct.App.2001).

This court uses the familiar Tenn. R.App. P. 13(d) standard to review a trial court's disposition of a Tenn. R. Civ. P. 41.02(2) motion because the trial court has used the same reasoning to dispose of the motion that it would have used to make a final decision at the close of all the evidence. College Grove Water Util. Dist. v. Bellenfant, ...