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Rusty'S Fertilizer, Inc. v. Maloley

Court of Appeals of Nebraska

December 31, 2013

Rusty's Fertilizer, Inc., appellant,
v.
Fred Maloley, appellee.

NOT DESIGNATED FOR PERMANENT PUBLICATION

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.

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.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

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 called booking 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 ...


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