CNJ DISTRIBUTING CORP. dba FAIRVIEW ANGUS RANCH, Plaintiff and Appellant,
D & F FARMS, INC., Defendant and Appellee,
CIRCLE S SEEDS OF MONTANA, INC., Third Party Defendant
Submitted on Briefs: July 24, 2013
APPEAL FROM: District Court of the Sixth Judicial District, In and For the County of Sweet Grass, Cause No. DV 2010-10 Honorable Wm. Nels Swandal, Presiding Judge
For Plaintiff and Appellant:
Rodd A. Hamman, Calton Hamman & Wolff, P.C.; Billings, Montana
Edward J. Guza, Guza, Williams & Nesbitt; Bozeman, Montana
Justice Michael E Wheat
¶1 CNJ Distributing Corp. (CNJ) appeals from the Order of the Sixth Judicial District, Sweet Grass County, denying and dismissing with prejudice CNJ's breach of contract claim against D&F Farms, Inc. (D&F).
¶2 We restate the issues on appeal as follows:
¶3 Did the District Court err in finding D&F did not materially breach the contract by failing to object to rocky field conditions or by failing to achieve consistent depth of seed placement?
¶4 Did D&F's failure to get the seed to the proper depth prevent CNJ from harvesting the crop during harvest season and proximately cause CNJ's damages?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 This controversy arose after CNJ hired D&F as a custom seeder to seed a barley crop grown under contract with Circle S Seeds of Montana, Inc. (Circle S). CNJ sued D&F for breach of contract, alleging the crop did not ripen and could not be harvested on time because of improper seed placement. D &F sued Circle S alleging failure to instruct. After a bench trial, Circle S settled with D&F. The District Court, in an Order filed December 20, 2012, denied and dismissed with prejudice CNJ's breach of contract claim. CNJ appealed.
¶6 The uncontested findings of fact are as follows:
¶7 CNJ owns and operates the Fairview Ranch in Sweet Grass County, Montana. George Frank (Frank) is the owner and President of CNJ. CNJ purchased the Fairview Ranch in 1984. Since that time, the Fairview Ranch has been operated as a registered Angus ranch with irrigated hay and pasture. CNJ has hired a full-time ranch manager to run the Fairview Ranch. Kenny Lee (Lee) started as manager of the Fairview Ranch on May 1, 2009.
¶8 D&F is a Montana corporation doing business out of Manhattan, Montana. Matt Flikkema (Flikkema) owns D&F. D&F is a "custom seeder." This means landowners, like CNJ, hire D&F to plant crops. D&F supplies the seeding equipment, in this case a John Deere 1890 pulled by a tractor, and provides qualified individuals to operate the equipment. Casey Hamilton (Hamilton), an experienced and qualified operator, works for Flikkema doing the seeding.
¶9 Circle S is a Montana corporation doing business out of Three Forks, Montana. Circle S is a supplier of seeds, and per the agreement entered into with CNJ, a beneficiary to the crop that was to be produced on CNJ land in fall 2009. Steve McDonnell (McDonnell) is one of the owners of Circle S. Don Heck (Heck) is an agronomist/Certified Crop Advisor for Circle S and personally visited and inspected the field at issue at least six times.
¶10 In the fall of 2008, Circle S contracted with Montsago to produce a barley crop known as BG 46e for food purposes. WestBred, LLC of Bozeman, Montana developed BG 46e. Dr. D an Biggerstaff (Biggerstaff), one of the developers of BG 46e, is an expert on BG 46e.
¶11 Pivot 2 is a "very rocky" section of field comprising 550 net irrigated acres, located on the Fairview Ranch. In the fall of 2008, CNJ hired Dwight Dyk (Dyk) of Dyk Enterprises, Inc., to chem fallow Pivot 2 to kill the ...