This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-484

 

 

Javon R. Bea,

individually and
d/b/a HCI Farms,
Appellant,

vs.

Hoehne Brothers,

a partnership, et al.,
Respondents.

 

 

Filed January 6, 2004

Affirmed

Crippen, Judge*

 

Olmsted County District Court

File No. C1021088

 

 

Bruce K. Piotrowski, George F. Restovich, 117 East Center Street, Rochester, MN  55904 (for appellant)

 

Gerald S. Duffy, Steven J. Weintraut, Siegel, Brill, Greupner, Duffy & Foster, P.A., 1300 Washington Square, 100 Washington Avenue South, Minneapolis, MN  55401 (for respondents)

 

            Considered and decided by Harten, Presiding Judge, Hudson, Judge, and Crippen, Judge.


U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Appellant challenges the trial court’s summary judgment that dismisses his several claims, arguing that his evidence raises genuine issues of material fact.  Because the record confirms the trial court’s judgment, we affirm.

FACTS

Appellant Javon R. Bea, individually and d/b/a HCI Farms, contacted respondents Hoehne Brothers in the fall of 1997 about purchasing elk.  On October 18, 1997, appellant agreed to buy up to 20 full-blooded heifer elk calves at the price of $4,750 per calf, for a total of $95,000.[1]  One of the terms of the contract drafted by appellant was that “Hoehne Brothers will provide to HCI Farms one of their best bulls for breeding at no additional charge.”  Appellant hand wrote into the contract that the bull would be provided “for two years, Sept. ’98, ’99.” 

Respondents delivered 20 heifer calves to appellant in February 1998.  They also delivered a bull elk to appellant in September 1998 for use in breeding.  This bull had successfully bred heifers the previous two years and respondents asserted their belief that it was one of their best bulls.  The bull was with the heifers for roughly four months in 1998, but none became impregnated during this breeding season.   Appellant asked respondents for a replacement bull during the 1998 season before he knew whether the heifers were impregnated.  Respondents declined to provide a second bull because that was not their standard practice and this particular bull had no prior problems impregnating heifers.  Appellant’s claims for damages are confined to the 1998 breeding season.[2]

In 2001, appellant filed suit against respondents, claiming breach of contract, negligent misrepresentation, breach of implied and express warranties, and negligent performance.  Two years later, the trial court granted respondents’ motion for summary judgment.

D E C I S I O N

 

            On an appeal from summary judgment, it must be determined whether there are any genuine issues of material fact and whether the trial court erred in its application of the law.   State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).   This court is to view the evidence in the light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted). 

            Once the moving party has made a prima facie case that entitles it to summary judgment, the burden shifts to the nonmoving party to produce specific facts that raise a genuine issue for trial.  Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988); Minn. R. Civ. P. 56.05.  A genuine issue of material fact must be established by substantial evidence.  DLH, Inc. v. Russ, 566 N.W.2d 60, 69-70 (Minn. 1997). 

1.  Breach of Contract

Appellant contends that respondents breached the contract by not providing him with one of their “best bulls for breeding,” arguing that the breach is evident because none of the 20 heifers produced calves.  But a breach of this contract was not proven by evidence on the quality of the bull.  Appellant has failed to establish his contract claim because it has produced no evidence that the bull, whatever its quality, was not one of the best that respondents owned.  There was neither a contract for the breeding potential of the bull nor an agreement for the occurrence of successful breeding with appellant’s new herd of heifers.  Respondents argue that they believed that the bull was one of their best because it had impregnated heifers the previous two years with other breeders, and there is no evidence that respondents had reason to think otherwise.

Moreover, appellant has furnished no significant evidence to show that the bull respondents furnished was not a good bull for breeding.  Appellant conceded that respondents provided papers for the bull, which is something appellant considered evidence of a good bull.  Dr. Jeffrey Smith, appellant’s elk veterinarian, opined that the lack of impregnation was due to the bull, rather than the heifers, but Dr. Smith did not visit appellant’s farm until after the 1998 breeding season, in February 1999.  The record includes no evidence that any investigation was done by appellant or Dr. Smith to determine whether the lack of calves was due to nutrition, disease, or other physical characteristics of the bull or the heifers.  As the trial court noted, there is only speculation to support the determination that an alternative bull would have impregnated the heifers.  Damages that are “speculative, remote, or conjectural . . . are not recoverable” for breach of contract.  Cardinal Consulting Co. v. Circo Resorts, Inc., 297 N.W.2d 260, 267 (Minn. 1980).

Respondents also argue that there cannot be a breach with respect to the bull because appellant gave no consideration for the bull, since it was provided at “no additional charge.”  Because of our conclusion that there was no proven breach of the agreement, we decline to review this assertion. 

             Absent evidence showing that respondents did not provide one of their “best bulls” as required by the contract, the record sustains the conclusion of the trial court to grant summary judgment on the breach of contract claim.

2.  Negligent Performance

Appellant contends that the purpose of the contract was for respondents to provide breeding services.  Based on assertions that respondents failed to conduct the appropriate testing of the bull to ensure its breeding capability and failed to provide a back-up bull, appellant claims that respondents violated standards of the elk breeding industry and were negligent in their performance of the contract.  Respondents contend that they cannot be held responsible for terms that were not part of the contract; they did not contract to provide breeding services. 

Although the goal of appellant’s use of the bull was to impregnate his heifers, the contract was not specifically for breeding purposes.  The parties did not contract for breeding services, but rather for appellant’s purchase of 20 heifers from respondents and for respondents to provide use of one of their bulls for breeding.  The contract does not indicate that respondents were required to test the bull,[3] provide a back-up bull, or assist with breeding beyond the task of providing appellant with one of their “best bulls.”  No such terms were discussed by the parties prior to signing the contract.  Under these circumstances, the trial court did not err in concluding that respondents did not have a duty regarding successful breeding through use of the bull; the court properly found cause for a summary judgment dismissing the negligent performance claim.

3.  Negligent Misrepresentation

            Appellant contends that a statement of Karl Hoehne constitutes a negligent misrepresentation.  Early in the course of contacts between the parties, Hoehne spoke of a first-year return from the breeding of heifers, and appellant asserts that this statement occurred while Hoehne knew that many heifers do not breed in their first year and that appellant intended to attempt breeding heifers in the first year after buying them.  Appellant also argues that respondents were negligent in representing that they were providing one of their “best bulls.”

Persons making a representation are negligent when they have not discovered or communicated certain information that ordinary persons in their position would have discovered or communicated.  Florenzano v. Olson, 387 N.W.2d 168, 174 (Minn. 1986); Safeco Ins. Co. of Am. v. Dain Bosworth Inc., 531 N.W.2d 867, 870 (Minn. App. 1995), review denied (Minn. July 20, 1995).  Proof of the subjective state of the speaker’s mind is not needed to prove negligence.  Florenzano, 387 N.W.2d at 174.  Rather, negligence is proven by measuring the misrepresenter’s conduct against an objective standard of reasonable care.  Id.

            As to the promise to furnish a bull, appellant’s contention fails for the reasons stated in analyzing his breach of contract claim.  There is also no merit in his argument directed at comments on breeding prospects. 

            In September 1996, appellant expressed his curiosity about elk farming to Karl Hoehne’s wife, appellant’s travel agent.  Shortly thereafter, appellant spoke to Karl Hoehne on the telephone about elk farming.  Karl Hoehne invited appellant to visit the elk farm that he operated with his brother and another elk farm in Pine Island.  At some point during these conversations, Karl Hoehne commented on the benefits of elk farming, mentioning that one could recoup half the investment by selling half the calves born from breeding.  Appellant stated in his deposition, “I thought that in two years . . . I would have my investment in the animals paid off.” 

            Karl Hoehne encouraged appellant to consult numerous other resources about elk farming, but appellant did not do so.  Appellant stated during his deposition that he believed much of what Karl Hoehne said was found to be true by the industry at the time of the comments.  Equally important is the fact that there is nothing in the record to indicate that Karl Hoehne’s comments were aimed at influencing appellant to buy elk from him.  See Bonhiver v. Graff, 311 Minn. 111, 122, 248 N.W.2d 291, 298-99 (1976); Safeco, 531 N.W.2d at 870 (stating one making representations held to duty of care when supplying information to guide transaction in which one has pecuniary interest). 

            The trial court did not err in dismissing appellant’s negligent misrepresentation claim.

4.  Warranties

The provisions of Article 2 of the Uniform Commercial Code (UCC), adopted by Minnesota in Minnesota Statutes chapter 336, apply to transactions in goods.  Minn. Stat. § 336.2-102 (2002).  Animals are included in the definition of “goods.”  Minn. Stat. § 336.2-105(1) (2002). 

A.         Implied Warranties

Appellant contends that respondents breached the implied duty to supply a bull that would breed with appellant’s heifers, and that there is a question of fact as to whether the bull was fit for that purpose according to Minn. Stat. § 336.2-315 (2002).  But, as stated earlier in this opinion, appellant has furnished only speculative evidence as to the breeding fitness of respondents’ bull.  Moreover, the agreement asserted by appellant is severely limited in scope; it is for use of one of respondents’ best bulls for breeding, but not for providing breeding services or even to provide an animal of any level of fitness.  The evidence fails to establish a genuine issue of fact on appellant’s implied warranty claim.

            B.         Express Warranties

            Respondents argue that the statement, “one of their best bulls for breeding” does not constitute an express warranty, but is rather “puffing” or a mere statement of respondents’ opinion.  Appellant argues that the statement regards the quality of the bull and constitutes an express warranty that respondents breached.

            It is not necessary that a seller use formal words such as “warrant” or “guarantee” for an express warranty to exist.  Minn. Stat. § 336.2-313 (2002).  But a statement “purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.”  Minn. Stat. § 336.2-313(2).  Express warranties, requiring conformity, occur when the seller affirms facts relating to the sale of goods or states a description of the goods that becomes the basis for the bargain.  Minn. Stat. § 336.2-313.

            Appellant claims that because Karl Hoehne commented that generally 20 elk heifers produce 20 elk calves (10 heifers and 10 bulls over time) and he agreed to provide one of his best bulls for breeding, an express warranty was created.  But the record fails to indicate that respondent’s agreement to provide a bull was the basis for appellant’s agreement to purchase the 20 heifers.  The contract was not for sale of a bull, and there is no alternative evidence suggesting that the furnishing of a bull was the central term of the contract.  Cf. Brown v. Doyle, 69 Minn. 543, 72 N.W. 814 (1897) (finding a warranty on the breeding potential of a horse sold by one party to the other).  Moreover, respondent’s statements on the breeding potential of heifers was not a representation on the breeding potential of his bull.  Appellant infers from comments of Karl Hoehne the assurance that the furnished bull would produce 20 calves, but his inference is not supported by the deposition testimony of Hoehne.            

            Finally, it is evident from the record that Karl Hoehne’s comments about 20 heifers generally producing 20 calves and his agreement to provide one of his “best bulls” was based on his experience and opinion and was not an express warranty.  Hoehne spoke in general terms about breeders recouping half their investment from one year’s sale of half the bred calves.  

            Appellant did not provide evidence creating a genuine fact issue on his claim that Karl Hoehne made an express warranty.

            Affirmed.

 



*Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Appellant’s capital outlay for starting his elk farm was $120,000, plus the barn and cost of elk food.  Although the record shows that Karl Hoehne directed appellant to numerous other people and organizations to consult about elk farming, there is no evidence that appellant consulted with anyone but Hoehne before signing the contract.

[2] In 1999, respondents provided appellant with two bulls. The 1999 breeding resulted in 18 calves from the 20 heifers.

[3]  Dr. Smith testified that it is not good practice to test a bull before or during the breeding season because testing can interfere with the bull’s breeding ability.  It follows that testing according to the standard asserted by appellant could enlarge the problem that represents his primary concern, that successful breeding not occur.