may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Huntting Elevator Company,
Filed October 27, 1998
Dodge County District Court
File No. C696514
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.
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.
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.