This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Huntting Elevator Company,



Tim Biwer,


Filed October 27, 1998


Short, Judge

Dodge County District Court

File No. C696514

Gary Hansen, Peter T. Shimabukuro, Doherty, Rumble & Butler, P.A., 3500 Fifth Street Tower, 150 South Fifth Street, Minneapolis, MN 55402-4235 (for respondent)

Kenneth R. White, Farrish, Johnson & Maschka, 201 North Broad Street, Suite 200, P.O. Box 550, Mankato, MN 56002-0550 (for appellant)

Considered and decided by Davies, Presiding Judge, Schumacher, Judge, and Short, Judge.


SHORT, Judge

This breach of contract action arises from two hedge-to-arrive contracts. The buyer, Huntting Elevator Company, purchased specific amounts of corn and soybeans at a per-bushel price independent of the cash market price at delivery time. The producer, Tim Biwer, used the contracts to lock in grain prices as a hedge against market price declines. When the producer asked the buyer to defer delivery, the buyer refused and the producer sold his crops to another grain elevator. The buyer sued for breach of contract, unjust enrichment, and misrepresentation; the producer counterclaimed for breach of contract, defamation, tortious interference with contract, and false advertising. After completion of discovery, the buyer moved for judgment as a matter of law. On appeal from the trial court's grant of summary judgment in favor of the buyer, the producer argues the trial court: (1) improperly decided fact issues on the contract, defamation, and tortious interference claims; (2) applied the wrong law to the advertising claim; and (3) failed to address the producer's oral motion. We affirm.


On appeal from a grant of summary judgment, we determine whether any genuine issues of material fact exist and whether the trial court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). While we view the evidence in the light most favorable to the nonmoving party, the nonmovant must produce specific facts that create an issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986). We do not defer to the trial court's decision on purely legal issues. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).


The producer argues the trial court ignored parol evidence and improperly resolved fact issues on his contract claim. At trial, the parties disagreed on whether the producer could unilaterally modify the delivery date, but agreed their dispute could be resolved by examination of the contracts and contract guidelines. The producer's counsel suggests, on appeal, for the first time, that the contract guidelines are not part of the parties' agreement and parol evidence must be admitted to decide the delivery date issue. We decline to address the producer's new argument because legal theories not litigated below are not properly before us. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988.)

The plain language of the parties' agreement references "rolling" as a "privilege" not a "right" of unilateral modification. It is undisputed the producer: (1) requested to roll forward the delivery date; (2) was delinquent on deliveries under his 1994 contracts and was proposing to apply new crop to new contracts before fulfilling older contracts; (3) did not deliver against his contracts; and (4) was paid more for his crops from a third person than he would have received from the buyer. Under these circumstances, the buyer was entitled to judgment as a matter of law on the contract claims.

The producer also argues the trial court erred in granting summary judgment on his defamation claim because the buyer's employee said the producer was a "horse sh*t farmer," and "had lost his financing." However, the first statement is clearly not of public interest and cannot reasonably be interpreted as stating fact. See, e.g., Geraci v. Eckankar, 526 N.W.2d 391, 397-98 (Minn. App. 1995) (concluding statements that individual "had poisoned the board," was "out of control," "a bad influence," "emotional," and "not a team player" not actionable because statements are not of public interest and could not reasonably be interpreted as stating fact), review denied (Minn. Mar. 14, 1995). And, although a statement regarding the producer's inability to obtain financing might be actionable, the producer failed to establish a prima facie case of defamation by admitting that neither statement harmed him. See Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980) (requiring harm to plaintiff's reputation to establish defamation). Because the statements are not defamatory and the producer has failed to offer any evidence of damages, the trial court properly granted summary judgment in favor of the buyer on the defamation claims.

The producer further argues the alleged defamatory statements, coupled with the statement that the buyer's employee was going to "get" the producer, preclude summary judgment on his tortious interference claim. However, to establish a claim for tortious interference with a contractual relationship, a plaintiff must establish: (1) the existence of a contract; (2) the alleged wrongdoer's knowledge of the contract; (3) an unjustified intentional procurement of the contract's breach; and (4) damages. Kallok v. Medtronic, Inc., 573 N.W.2d 356, 362 (Minn. 1998). Because the producer failed to produce any evidence suggesting the buyer's employee directed those statements at the producer's lender to cause a contract disruption, those statements alone do not establish tortious interference with contract. See, e.g., United Wild Rice, Inc. v. Nelson, 313 N.W.2d 628, 632 (Minn. 1982) (holding no tortious interference of contractual relations where plaintiff made no showing of activities that could be considered interference); Black's Law Dictionary 1208 (6th ed. 1990) (defining "procurement" as the act of bringing about). The trial court properly granted summary judgment in favor of the buyer on the producer's tortious interference with contract claim.


The producer also argues the trial court applied the wrong law in considering the false advertising claim. We disagree. The trial court properly held Minn. Stat. § 325F.67 does not apply because the producer was not a consumer for purposes of the grain transaction. Cf. Kronebusch v. MVBA Harvestore Sys., 488 N.W.2d 490, 494 (Minn. App. 1992) (interpreting Minn. Stat. § 325F.67 to apply to farmers as purchasers of silos), review denied (Minn. Oct. 20, 1992). The producer acted as a merchant in selling his grain products to the grain elevator. Under these circumstances, the producer is barred from asserting a cause of action under the Consumer Fraud Act. See Church of Nativity of Our Lord v. Watpro, Inc., 491 N.W.2d 1, 7-8 (Minn. 1992) (concluding only ordinary consumers, not merchants, protected under Consumer Fraud Act); see also In re Grain Land Coop, 978 F. Supp. 1267, 1279 (D. Minn. 1997) (emphasizing commercial transactions exclusively covered by U.C.C. remedies).


The producer further argues the trial court erred by failing to address his oral motion to add fraud and misrepresentation counterclaims. See Stern v. Dill, 442 N.W.2d 322, 325 (Minn. 1989) (holding an oral pretrial motion is appropriate if made during hearing, with proceedings recorded, and when oral motion is related to matter then under consideration). However, the record demonstrates: (1) the producer's attorney filed a motion to add claims for breach of warranty, false advertising, and punitive damages; (2) at that motion hearing, the producer's attorney orally moved to add an additional count for fraud and misrepresentation; (3) the buyer's attorney objected to this oral motion; (4) the trial court denied the producer's motion to add a claim for punitive damages, but granted the producer leave to amend his counterclaims to add additional counts without specifying which claims; (5) the producer did not seek clarification of the trial court order; (6) the buyer subsequently moved for summary judgment on the producer's breach of contract, tortious interference with contract, defamation, breach of warranty, and false advertising claims; (7) the producer did not address his fraud and misrepresentation claim when opposing the buyer's motion; and (8) after summary judgment was granted, the producer did not seek clarification. Because the producer failed to bring the alleged omission to the trial court's attention, we will not consider this alleged error. See Northland Pine Co. v. Melin Bros., 142 Minn. 233, 235, 171 N.W. 808, 808 (1919) (concluding party cannot invite error in proceedings, and on appeal complain of judgment that he sought or of errors that he helped make); cf. Pacific Mut. Door Co. v. James, 465 N.W.2d 696, 701 (Minn. App. 1991) (concluding where trial court fails to make specific findings of fact or

conclusions of law, and claimed omission not brought to attention of trial court by motion for amended facts, this court will not review issue). Under these circumstances, the buyer was entitled to judgment as a matter of law.