Rusty’S Fertilizer, Inc. v. Maloley

RUSTY’S FERTILIZER, INC., APPELLANT, v. FRED MALOLEY, APPELLEE.

No. A-13-089

NEBRASKA COURT OF APPEALS

Filed December 31, 2013

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

RUSTY'S FERTILIZER V. MALOLEY

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Dawson County, JAMES E. DOYLE IV, Judge, on appeal thereto from the County Court for Dawson County, CARLTON E. CLARK, Judge. Judgment of District Court affirmed as modifed.

Larry W. Beucke, of Parker, Grossart, Bahensky, Beucke & Bowman, L.L.P., for appellant.

Tod A. McKeone, of Heldt & McKeone, for appellee.

INBODY, Chief Judge, and MOORE and RIEDMANN, Judges.

RIEDMANN, Judge.

INTRODUCTION

Rusty's Fertilizer, Inc. (Rusty's), appeals from the district court for Dawson County, which affirmed but modified the county court's decision. Rusty's generally argues that its motion to dismiss made at the close of Fred Maloley's evidence should have been granted, that Maloley failed to prove that Rusty's was negligent or that any negligence of Rusty's was the cause of damage to Maloley's crops, and that Rusty's was awarded an incorrect amount of damages. For the reasons set forth below, we affirm the district court's order as modified by this opinion.

BACKGROUND

Maloley is a farmer, and in 2009, he entered into an agreement with Rusty's to apply fertilizer and herbicide on three of his fields. The fields were referred to as the "School quarter," "Webb field," and "Edeals field." Rusty's recorded Maloley's order on documents calledbooking sheets, which identified the fields to be treated, the specific chemicals and amounts to be applied, the per unit cost for the chemicals, and the number of acres to be treated. The booking sheets also indicated the cost per acre for the service of spraying the chemicals on the ground. The customer is then expected to prepay the amount listed on the booking sheets.

Eugene Florell, president of Rusty's, testified at trial that the booking sheets guarantee the unit price for the chemicals but only provide an estimated cost because the total cost will be based on the actual amount of product applied. Maloley also referred to the booking sheets as estimates, but he testified that in his 25 years of farming experience, there is typically very little difference between the prepayment amount and the final invoice.

Maloley planted 70 acres of corn in the School quarter on May 8, 2009, and 121 acres of corn in Webb field. Rusty's sprayed chemicals on the fields the following day. Maloley irrigated the fields until September, but otherwise he did very little to inspect the crop until harvest. When Maloley returned to the field in early December 2009, he observed a distinct straight line down the middle of the School quarter. On the 28-acre tract on the south portion of the field, the corn was healthy and robust, but the corn on the 42-acre tract on the north portion was damaged and stunted. After harvesting the corn, Maloley determined that the south portion, normally the lower yielding portion of the School quarter, yielded 140 more bushels per acre than the typically higher-yielding north portion.

A majority of the evidence presented at trial addressed the cause of the damage to the north portion of the School quarter. Maloley presented the testimony of Dr. Dale Flowerday, a consulting agronomist. Dr. Flowerday opined that in light of the fact the damage to the north portion of the School quarter "was in a very straight line pattern, and the only things that go on in straight lines are fertilization and chemical application, hybrids, and irrigation," the damage was caused by "something that went on as a spray, or in the fertilizer." Dr. Flowerday's testimony will be set forth more specifically in our analysis section below.

Maloley was asked to address other factors that Rusty's claimed could have caused the damage. He testified that he planted the same seed hybrid from the north portion of the School quarter to almost the end of the south portion and also used that same hybrid in the Edeals field. Therefore, any damage caused by the seed hybrid would not have been limited to the north portion of the School quarter. He also testified that, although weather conditions can affect crop yield, that generally occurs if there is a break in planting time. However, he planted the entire field in the same day. Maloley testified that he has never seen an insect infestation or disease affect a straight line through a field. Maloley stated that the soil in the north portion of the School quarter is more fertile than that in the south portion and that the north portion has produced a significantly higher crop yield every year except 2009. According to Maloley, he irrigated the north and south portions equally in 2009, so any issues with irrigation would not have caused damage to the north portion alone.

In July 2009, Rusty's billed Maloley for the additional amounts due. Maloley noticed that the invoiced amounts were significantly higher than the amounts contained in the booking sheets. He also noted that he was charged for the herbicides Aatrex and Lumax for Webb field when he had requested that Rusty's apply Guardsman herbicide. At trial, Florell testified that Rusty's had run out of Guardsman during the application on Webb field and substituted the other herbicides,which are more expensive. Based on the billing discrepancies and the problems with the north portion of the School quarter, Maloley refused to pay the remaining balances.

Rusty's filed an action in county court for the amount of the unpaid balance. In Maloley's answer, he asserted that he had been overcharged by Rusty's and that Rusty's had applied chemicals he had not requested which were more expensive than those he did request. Maloley also asserted a counterclaim against Rusty's for the crop damage he claimed was caused by Rusty's negligent application of chemicals to Maloley's field.

A bench trial before the Dawson County Court began on April 16, 2012. At the end of the first day, Maloley rested his case but reserved the right to call rebuttal witnesses. The case was then set for a second day of trial on May 4. During the interim, Rusty's filed a motion to dismiss Maloley's counterclaim. The motion was heard at the opening of the second day of trial, and the court denied Rusty's motion. Ultimately, the county court entered judgment in favor of Rusty's on its claim and awarded damages in the amount of $6,722.48. The court also entered judgment in favor of Maloley on his counterclaim and awarded damages in the amount of $23,520.

Rusty's appealed to the Dawson County District Court, and Maloley cross-appealed. Each party assigned several errors allegedly committed by the county court. As to the issues relevant to our case, the district court concluded that Maloley presented sufficient evidence in support of his counterclaim and affirmed the county court's denial of Rusty's motion to dismiss. The district court also affirmed the county court's determinations that Rusty's was negligent and that such negligence was the proximate cause of damage to the north portion of the School quarter. Finally, the district court concluded that the proper manner by which to calculate the amount due to Rusty's was based on the amounts contained on the booking sheets, as opposed to the invoiced amounts. Therefore, the district court found that the amount due from Maloley to Rusty's was $2,274.27 and modified the county court's judgment accordingly. Rusty's now appeals to this court.

ASSIGNMENTS OF ERROR

Rusty's asserts that the district court erred in affirming the county court's denial of Rusty's motion to dismiss and finding that Rusty's was negligent or that any negligence of Rusty's was the proximate cause of the damage to Maloley's crops. Rusty's also asserts that the district court erred in calculating the amount due Rusty's.

ANALYSIS

Motion to Dismiss.

Rusty's argues that the trial court erred in failing to grant its motion to dismiss at the close of Maloley's evidence. A motion to dismiss in a nonjury trial is equivalent to a motion for a directed verdict in a jury trial. R.J. Miller, Inc. v. Harrington, 260 Neb. 471, 618 N.W.2d 594 (2000). When considering a motion to dismiss in a nonjury trial, a court must resolve every controverted fact in the nonmoving party's favor and give that party the benefit of every reasonable inference to be drawn therefrom. Id. In order to sustain a motion for directed verdict, the court resolves a controversy as a matter of law and may do so only when the facts are such that reasonable minds can draw only one conclusion. Id.

In rendering judgment as the finder of fact, a trial court resolves credibility issues and weighs the evidence in the same manner as does a jury. Childers v. Phelps County, 252 Neb. 945, 568 N.W.2d 463 (1997). If there is any evidence in favor of the nonmoving party, the case may not be decided as a matter of law; at that point, a court must assume that all of the evidence presented by the plaintiff is true, even when the evidence is contradicted. Id.

Maloley's counterclaim alleged that Rusty's was negligent in its application of chemicals, and thus, Maloley was required to prove all of the elements of a negligence claim, including a legal duty owed by Rusty's to Maloley, breach of such duty, causation, and damages. See Blaser v. County of Madison, 285 Neb. 290, 826 N.W.2d 554 (2013). Rusty's claims that Maloley failed to prove causation because Maloley's initial position was that there was a "contaminant" in the sprayer and he failed to prove the exact contaminant that caused the damage. We disagree and conclude that Maloley adduced sufficient evidence to support the trial court's decision to deny Rusty's motion to dismiss.

As stated, Maloley's counterclaim asserted that the damage to the crops was the result of Rusty's negligent...