This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-00-1953

 

Bursch Farms, Inc., et al.,

Appellants,

 

vs.

 

Circle C. Seeds, Inc., et al.,

Respondents.

 

Filed May 22, 2001

Affirmed

Harten, Judge

 

Norman County District Court

File No. C2-00-20

 

Michael M. Fluegel, Fluegel, Helseth, McLaughlin, Anderson & Brutlag, Chartered, 215 Atlantic Avenue, P.O. Box 527, Morris, MN 56267 (for appellants)

 

Wayne W. Carlson, Lisa K. Edison-Smith, Vogel, Weir, Hunke & McCormick, Ltd., 502 First Avenue North, Box 1389, Fargo, ND 58107-1389 (for respondents)

 

            Considered and decided by Kalitowski, Presiding Judge, Peterson, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

HARTEN, Judge

Appellants challenge the district court’s grant of summary judgment to respondents.  Appellants contend that: (1) the transaction amounted to a cash sale on the date of delivery; (2) Minn. Stat. § 232.23, subd. 5 (1998), precludes the admission of oral testimony regarding a storage contract; (3) a genuine issue of material fact exists as to whether respondents fully performed the storage agreement; and (4) the district court abused its discretion in denying their motion for leave to amend their complaint.  We affirm.

FACTS

In the late summer and fall of 1998, appellants Bursch Farms, Inc. (Bursch Farms), Kelly Skaurud d/b/a Skaurud Grain Farms (Skaurud Farms), and Vipond Farms delivered kidney beans to respondent Circle C Seeds, Inc. (Circle C), a bean processor in Gary, Minnesota.  Respondent Keith P. Chisholm (Chisholm) owns Circle C.  Between September 5 and September 23, 1998, Bursch Farms delivered 807,762 net pounds of beans to Circle C.  Between September 19 and September 29, 1998, Skaurud Farms delivered 505,009 net pounds of beans to Circle C.  Between August 21 and August 24, 1998, Vipond Farms delivered 94,568 net pounds of beans to Circle C.

            Circle C provided appellants with written scale tickets when they delivered their beans.  Only one of the scale tickets issued to appellants was marked “storage”; the remainder of the scale tickets did not indicate whether the beans were received for storage, cash sale, or credit sale.  Circle C did not provide written warehouse receipts to any of the appellants.  All of the appellants testified by deposition that they intended for their beans to be put in storage at the time of delivery, in hopes that the market would improve and they could get better prices.  Appellants’ beans were mixed together and with kidney beans delivered by other producers.  Roger Knutson of Circle C admitted in his deposition that appellants’ beans were indistinguishable once they were stored.

            Circle C’s policy was to charge storage at $.10 per hundred pounds per month.  Following the 1998 harvest, Chisholm sent each of the appellants a letter indicating this policy and informing them that “[a]ll beans stored must be sold or removed by June 30, 1999, or the beans will be sold at market price on that date.”  All of the appellants had discussions with Circle C about selling their beans.  Skaurud Farms sold more than 250,000 pounds of beans to Circle C in April 1999 at a price of $.275 per hundred pounds.  Other than that sale, appellants and Circle C could not agree on a price, and the other beans remained in Circle C’s storage.

            By letter dated November 1, 1999, each of the appellants received a check for beans in storage at Circle C at a price of $.20 per hundred pounds.  Skaurud Farms received a check for $47,100.74; Bursch Farms received one check for $142,799.58 and a second check for $113,207.98; and Vipond Farms received a check for $17,847.99.  Chisholm also sent each of the appellants a letter, giving them the option of accepting the checks or removing their beans from Circle C’s warehouse by November 15, 1999.  Each of the appellants cashed its check and elected not to remove any beans from Circle C.  Appellants sent Chisholm a letter stating that they accepted the checks as partial payment.

On December 16, 1999, appellants commenced this action, alleging (1) breach of a cash sale contract; (2) unjust enrichment; and (3) conversion.  Respondents denied all claims.  On March 13, 2000, appellants filed a motion for summary judgment.  On March 22, appellants moved to amend their complaint to add a negligence count. 

About one week later, respondents moved for summary judgment, arguing that appellants’ sworn admissions that they entered into storage contracts entitled respondents to summary judgment on appellants’ claim of breach of a cash sale contract; respondents also argued that appellants’ unjust enrichment and conversion claims failed as a matter of law because appellants admitted respondents acted pursuant to contracts for storage of appellants’ beans.  In addition, respondents filed a memorandum in opposition to appellants’ motion for leave to amend their complaint.  On April 3, appellants moved for partial summary judgment, arguing that appellants’ deliveries amounted to cash sales on the date of delivery as a matter of law.

            On May 1, the district court heard all the motions.  Appellants’ counsel did not argue in support of the motion to amend their complaint and abandoned the conversion claims.  The district court granted respondents summary judgment, concluding that appellants’ admissions established that the parties entered into a contract for storage, entitling respondents to a dismissal of appellants’ complaint.  The district court denied appellants’ motions for partial summary judgment and for leave to amend the complaint.  This appeal followed the district court’s denial of appellants’ motion for amended findings or a new trial.

D E C I S I O N

1.         Contract for Storage

“Construction of the contract of the parties is a matter of law that this court reviews de novo.”  Lund v. Southam, 617 N.W.2d 623, 625 (Minn. App. 2000) (citation omitted).  Statutory construction is a question of law, which this court reviews de novo.  See Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998). 

It is undisputed that all but one of the scale tickets respondents issued to appellants failed, as required by Minn. Stat. § 232.23, subd. 2 (1998), to “state specifically whether the grain [was] received on contract, for storage, for shipment or consignment or sold.”^[1]  It is also undisputed that respondents failed to issue warehouse receipts to appellants, as required by Minn. Stat. § 232.23, subd. 4 (1998).^[2]  Appellants contend that respondents’ failure to note on the scale tickets that the beans were received for storage and their failure to issue warehouse receipts for the beans requires that the transaction be deemed a cash sale at market price on the date of delivery as a matter of law.  Minn. Stat. § 232.23, subd. 3 (1998), provides:

Grain delivered considered sold.  All grain delivered to a public grain warehouse operator shall be considered sold at the time of delivery, unless arrangements have been made with the public grain warehouse operator prior to or at the time of delivery to apply the grain on contract, for shipment or consignment or for storage.

 

“The court’s role in interpreting a contract is to ascertain and give effect to the intention of the parties.”  Metropolitan Sports Facilities Comm’n v. General Mills, Inc., 470 N.W.2d 118, 122-23 (Minn. 1991) (citation omitted). 

Since the contract is ambiguous, this court may look at extrinsic evidence to interpret the contract.  To determine intent of the parties, the court looks at surrounding circumstances and the parties’ own subsequent conduct.

 

Fredrich v. Independent Sch. Dist. No. 720, 465 N.W.2d 692, 695 (Minn. App. 1991) (citations omitted), review denied (Minn. Apr. 29, 1991).  The district court considered deposition testimony to help ascertain the intent of the parties.  The district court found:

[Appellants’] admissions clearly establish the fact that the parties, either at the time of or prior to delivery, had entered into an oral contract for the storage of the beans delivered to [respondents].  Therefore the provisions of Minn. Stat. § 232.23, [s]ubd. 3 do not apply.  The terms of such an agreement are provable by parol evidence.  The fact that the scale tickets for the deliveries were only partially filled out and that [respondents] failed to issue warehouse receipts for the beans is immaterial.

 

Appellants argue that Minn. Stat. § 232.23, subd. 5 (1998), precludes the court from considering the deposition testimony.  This statute provides that “no slip, memorandum or other form of receipt is admissible as evidence in any civil action.”  Minn. Stat. § 232.23, subd. 5.^[3]  But the district court did not rely on a “slip, memorandum or other form of receipt”; the district court relied on sworn admissions from all three appellants that their intent when they delivered their beans to Circle C was to place their beans in storage.  The district court did not err in determining that the contract between the parties was a contract for storage and not a contract for cash sale.

2.         Summary Judgment

In reviewing a summary judgment motion, we determine whether there are any genuine issues of material fact and whether the lower court erred in its application of the law. 

 

Brookfield Trade Ctr., Inc., 584 N.W.2d at 392-93 (citation omitted).

A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.  On appeal, the reviewing court must 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) (citations omitted).

            Appellants contend that summary judgment is precluded because a genuine issue of material fact exists concerning respondents’ performance of the storage agreement.  Throughout, appellants have maintained that their deliveries to Circle C constituted a cash sale on the date of delivery and alleged breach of a cash sale contract.  Appellants did not plead an alternative theory based on breach of a storage contract.  Respondents note that “none of the seven allegedly disputed facts” that appellants list in their brief to support a claim of breach of a storage contract “is mentioned in the facts alleged in [appellants’] [c]omplaint.”  For the first time on appeal, appellants seek to raise fact issues that were neither presented to nor considered by the district court.

A reviewing court must generally consider only those issues that the record shows were presented and considered by the trial court in deciding the matter before it. 

 

Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotation and citation omitted).  “Nor may a party obtain review by raising the same general issue litigated below but under a different theory.”  Thiele, 425 N.W.2d at 582 (citing Pomush v. McGroarty, 285 N.W.2d 91, 93 (Minn.1979) (cannot raise new negligence theory on appeal); Security Bank v. Holst, 298 Minn. 563, 564, 215 N.W.2d 61, 62 (1974) (elementary that party cannot shift his position on appeal)).  The district court did not err in granting summary judgment to respondents.

3.         Denial of Appellants’ Motion to Amend Complaint

Appellants argue that the district court abused its discretion in denying their motion for leave to amend their complaint.  Although Minn. R. Civ. P. 15.01 provides that leave to amend “shall be freely given when justice so requires,” the district court has broad discretion to grant or deny leave to amend a complaint, and its ruling “will not be reversed absent a clear abuse of discretion.”  Fabio, 504 N.W.2d at 761 (Minn. 1993) (citation omitted).

A trial court may deny such an amendment where prejudice may result to the opposing party or where such an amendment would serve no legal purpose.

 

Lumbermen’s Underwriting Alliance v. Tifco, Inc., 465 N.W.2d 580, 584 (Minn. App. 1991), review denied (Minn. Apr. 1, 1991).

Appellants’ motion to amend their complaint was filed on March 22, 2000, after the depositions of all the parties and their representatives had been completed.  Moreover, on March 13, more than one week prior to filing their motion to amend, appellants themselves noticed a motion for summary judgment.  Respondents refute appellants’ assertion that their motion to amend was served after limited discovery and contend that the motion was objectionable, untimely, and unsupportable.

Appellants did not submit a brief in support of their motion to amend or present any supporting oral argument on that motion at the May 1 hearing.  Appellants sent a letter to the district court acknowledging that they had not argued the motion to amend in the hearing and requesting the district court to consider the motion “on the basis of the filings made by the parties.” 

A denial of a motion to amend is proper when the movant fails to establish evidence to support the allegations the movant seeks to amend. 

 

Davis v. Midwest Disc. Sec., Inc., 439 N.W.2d 383, 388 (Minn. App. 1989) (citation omitted).  Under these circumstances, the district court did not abuse its discretion in denying appellants’ motion to amend their complaint.

            Affirmed.