FOX GRAIN AND CATTLE CO v MAXWELL

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113. I?i S-2 :62 THE SUPREXE COCRT OF THE STATE OF MCSTAKA 1994 FOX G F S I X AND CATTLE CO., Plaintiff and Respondent, -vsFRAKK F. MAXYELL, Derendant and Appellant. APPEAL FROM: District Court of the Tenth Judicial District, In and for the County of Fergus, The Honorable Peter L. Rapkoch, Judge presiding COCYSEL OF RECORD: For Appellant: Donald A. Ranstrom; Sias Montana & Ranstrom, Chinook, For Respondent: Jaaes A. Wubble, John R. Christensen; Christensen & Hubble, Stanford, Montana ,--5:- LILA> ' LS G i s t r i c t C c u r t i n v c l v i r L g the t s r ~ i n a t i o no f a f . a r 3 Tenth J u d i c i a l lease. fron a jury verdict i n the a n a p p e a l and c r o s s - a c p e z l By s p e c i a l v e r d i c t t h e j u r y f o u n d t h a t F r a n k F . Maxwell ( a e l l did enkerec? w i t h not Fox naterially Grair. breach Cattle E; the Co. (Fox farm a ].ease ) h w d e v e r , f o u n d t h a t Maxwell owed Fox G r a i n $ 3 8 , 7 7 9 . 6 0 expenses; which The he jury, f o r farming it t h e n awarded P!axr~:ell $23,013.42, p l u s 7 5 p e r c e n t of t h e n e t F e d e r a l Crop I n s u r a n c e P a y a e n t , f o r Fox G r a i n ' s f a i l u r e t o mitigate its daxages, counterclaims: found 1) $ 1 6 , 7 2 1 . 1 5 R e s e r v e Program in favor for his (CRP) p r o c e e d s ; nachinery claim. G r a i n ' s breach and of s h a r e of and 2 ) Ifaxgel1 on his t h e Conservation $16,500 f o r hi.s l o s s of The j u r y a l s o asrarded Maxwell $ 9 5 , 0 0 0 f o r Fox of the inplied covenant of gocd f a i t h ar.d fair dealing. The verdict District Court eliminating the granted jury's judgment award of riatwitfistanding $95,000 to the Maxwell. N a x ~ c e l l a p p e a l s t h e D i s t r i c t C o u r t ' s d e c i s i o n t o g r a n t judgment notwithstanding t h e verdict. Fox G r a i n c r o s s - a p p e a l s : j u r . 1 3 s f i n d i n g s on t h e b r e a c h issue; g r a n t it a judgnent ?%ax:gell's other 2) t h e coiurt's 1) t h e failure t o n o t x i t h s t a n Z i n g t h e v e r d i c t on t h e i s s ~ e f o danages; and 3j the court's grant of surznary judgment t o Maxwell on t h e i s s u e o f t?ie v o l u n t e e r c r o p o w i e r s h i p . W a f f i r n i n p a r t a n d remand. e The issaes on a p p e a l a r e : DL-: i. f a r judgment ~ i s t r i c CO:;-+ err b y g r a n t i n g Fcx G r a i n ' s n o t i c i ? t ,_, n o t v i t h s t a n d i n g t h e v e r d i c t on t h e j u r y ' s --- f o r ?ox G r a i n ' s v i o l a t i o n +?=,000 - . o f t h e c o v e n a n t o f good f a i t h a n d '"'. ' " 0 - 7 --L-I..g D i 5 t h e 3 i s t r i c t C c u , r t e r r by d e n y i n g Fcx G r a i n ' s a c t i o n 2. for - award of ;uc!grnent n o t ; ; i t h s t a n d i n g tee v e r d i c t on t h e i s s u e o f Ma:vdell's o t h e r damages? Was t h e r e s u f f i c i e n t e v i d e n c e i n t h e r e c o r d t o s u p p o r t 3. the jury's Did t h e D i s t r i c t C o u r t e r r by g r a n t i n g Haxwell summary 4. judgnect f i n d i n g s t h a t Maxwell d i d n o t b r e a c h t h e l e a s e ? on Fox G r a i n ' s o w n e r s h i p c l a i m o f t h e volunteer winter wheat crop? :.:axwell entered a three-year f a r m l e a s e w i t h Fox G r a i n on February 17, 1989. The lease agreexent entered i n t o bet:.;een the parties gave ?aIaxwell t h e r i g h t t o f a r m Fox G r a i n ' s l a n d d u r i n g t h e c r o p s e a s o n s o f 1989, 1490, and 1991. that A s p a r t o f t h a t a g r e e m e n t , Maxwell a g r e e d h e 'would o c c u p y a n d c u l t i v a t e the land manner" a n d would n o t p e r m i t damage t o t h e l a n d . in a "farxer-like I n r e t u r n , h e was e n t i t l e d t o a l l o f t h e 1989 c r o p a n d 75 p e r c e n t o f t h e 1990 a n d 1991 crops. M a x x e l l a l s o a g r e e d t h a t a l l a c r e s would b e c u l t i v a t e d c~ fa e i t h e r by p l a n t i n g c r o p , o r b y s,;-- . t . t ~ e r 1iow . Fox G r a i n t e r a i n a t e d t h e l e a s e b a s e d on i t s claim t h a t Maxwell b r e a c h e d t h e l e a s e agreement: by n o t m l t i v a t i n g t h e e n t i r e p r o p e r t y a n d by f a i l i n g t o c a r e for t h e p r o p e r t y i n a " f a r m e r - l i k e m a n n e r . " E:'r:*;e;-er, a f r e r l i s t e n i n g t-.t h r s e and c i i e - h a l f :leeks of t e s t i m o n y , i n c l u r i i n q s e v e r a l e:.:perts i?ho t e s t i f i e d on b e h a l f cf Fox G r a i n , t h e j u r y concluded t h a t :.laxveil's f a i l u r e t o c u l t i - l a t e 1 0 0 a c r e s of t h e p r o p e r t y ;\ms n o t a a a t e r i a l b r e a c h and a p p a r e n t l y a l s o f o u n d t h a t d h e had p e r f o r m e d i n a " f a r m e r - l i k e 3.annern a ~ h a 3 n o t allcxed t h e p r o p e r t y t o b e dap.age3. , n T 22 alleged ef fcrrt tr, p r c v e t h e v z l u e c f i t s d a ~ . a g e sfrom M a x w e l l ' s f a i l u r e t o properly c a r e f o r t h e farm l a n d , Fox G r a i n o f f e r e d testimony f r o e s e v e r a l neighboring landowners t o e s t a b l i s h what t h e l a n d would h a v e been c a p a b l e o f p r o d u c i n g h a d it been p r o p e r l y c u l t i v a t e d and c a r e d f o r . F o r e x a ~ p l e ,L a r r y K a l i n a t e s t i f i e d t h a t h e farmed 1300 a c r e s o f l a n d a b o u t f o u r miles n o r t h o f t h e Fox G r a i n p r o p e r t y ; t h a t h e x a s f a m i l i a r w i t h t h e Fox G r a i n p r o p e r t y ; and t h a t h i s p r o p e r t y and t h e Fox G r a i n p r o p e r t y w e r e q u i t e s i m i l a r . ( a f t e r Maxwell had been evicted I n t h e f a l l o f 1990 from t h e Fox G r a i n p r o p e r t y ) , K a l i n a p l a n t e d a w i n t e r w h e a t c r o p on h i s l a n d which p r o d u c e d a 1 9 9 i h a r v e s t o f 3 0 t o 35 b u s h e l s p e r a c r e . Jess K n e r r f a r a s 2800 a c r e s o f l a n d a d j o i n i n g t h e Fox G r a i n property. He t e s t i f i e d t h a t h i s p r o p e r t y i s l i k e w i s e s i m i l a r t o Fox G r a i n ' s l a n d . I n 1 9 9 1 , h e p r o d u c e d 3 7 b u s h e l s o f w i n t e r wheat p e r a c r e and 2 0 b u s h e l s o f s p r i n g w h e a t p e r a c r e . Ee t e s t i f i e d t h z t L99i x a s a b e t t e r - t h a n - a v e r a g e y e a r &&e t o i n c r e a s e d n o i s t u r e . Kyle Grimsrud f a r m s 1 4 0 0 a c r e s o f p r o p e r t y t e n m i l e s from t h e Fox G r a i n Land. H e t e s t i f i e d t h a t h e was f a n i l i a r w i t h t h e Fox G r a i n p r o p e r t y and c o n s i d e r e d it s i m i l a r t o t h e p r o p e r t y t h a t h e tarrs. I n 1391, h e r a i s e d 4 3 b u s h e l s o f x i n t e r w h e a t p e r a c r e and 2s buskels of spring yJ;:?-at per acre. Iiis production in 1091 exceeded that for either of the two previous years. It was his cpicizn that the Fox Grain prcperty, if properly cared for, was capable of producing siailar yields. Alex Smith, who farxs land scuth of Le>~istoxn, was called as an expert witness to testify on behalf cf Fox Grain. Ee testified that in 1991 it cost $12 an acre to harvest wheat. He estiaated the price of wheat during 1991 was $2.80 a bushel. Fex Grain served notice on Maxwell that the lease was being termi-natedon July 23, 1990. i"ixwel1 actually left the property on August 23--one lonth later. Yecause he was wrongfully evicted from the property and %as unable to plant a winter or spring crop for 1991, M a w e l ? was denied the opportunity to realize a profit from whatever crep he could have produced. The testimony was that had he renained on the property he could have seeded 1503.9 acres. Did the District Cou.rt err by granting Fox Grain's notion for judyment notwithstanding the verdict on the jury's award of $95,000 for Fox Grain's violation of the covenant of good faith and fair dealing? It is %ell settled that this Court will review a district court's grant of a J?WV with the identical standard used to reviev a rotion for directed verdict. S 'i.,,chuk v. Angel Island Community Ass'n (1992), 253 Xont. 221, 225, 833 P.2d 153, 160 may be granted only -,<hereit appears [ A ] directed -~erdict as a nntter if Law that :the non-loving party; could not recover upon any view of the evidence, including the legitimate inferences to be drawn from it. Si?chnk, 6 3 3 P.2d at 160. Further, a district C O G T ~must ~ i e %the evidence i n a light most party tihen c-.r:si6erir!y a faxjorable to tire ~cr.-rs*~ing motio? fcr [JKOV]; the ccurt must deny the motion if the non-zcving party built a prima facie case or if a s&stzmtiia conflict in the evidence exists. Orly if the s;-idence pzesents no rcox f3r an h c ~ e s tdifference of opinion shoul3 a ZX07 be granted. the evidence. The jury found that Fox Grain breached the implied covenant of good faith and fair dealing. It was established by Maxwell and his witnesses that Fox Grain only complained once about Maxwell's farming practices before Fox Grain evicted Maxwell frox the land. PIax~;ell argues that if Fox Grain had left hi- alone, he would have planted and harvested wheat and nade a profit just like the neighbors in the area. Had Maxwell produced 35 bushels of winter wheat per acre (which was well within the range of his neighbors' production) ; and had he provided 25 percent of that crop to Fox Grain pursuant to the parties' lease agreement; and after deducting $12 per acre as the reasonable cost of harvesting the crop, he blould still have reallzed a p r o f ~ tof $95,618.04. FOX Grain argues that while it offered proof of what its praprty kas capable of prod~cing had it beer! cared for in a farrer-like manner, zke prcperty wzs not capable of producing that n?lci- .wheat ; b e Fcx Grair tcok it bk ..n . c fro-, Marvell due to tne terrible condition in which Maxwell left it. However, according to our conclcsien under Issue IV, FOX Grain's evidence to that effect appa"r=_tly raised, a t mast, riestioi? of facc which the jury res-lved in fax;cr of Xaxweii. Ead the jury found that ?he property was as unprod~ctive as Fcx Grain and its witnesses alleged, the 3 u r y xould nezessarily ha7ve h a 3 t3 find that KaxweZl ha3 per~~itted waste or daaage to the property and, thereby, breached the lease Fox Grain argues that the crop it prod,~ced in 1991 was ~nprcductive, dze to the condition of its land. However, Maxwell's evidence was to the effect that he would have employed different farming techniques, which he felt vould have been more productive thdn those employed by Fox Grain. The jury had a right to, and apparently did, believe Maxwell. The jury's verdict :a further supported by the fact thzt in ]s 1939, on the sane piece of land, i.iax:~ell realized income of $79,885.84 fron a winter wheat crop which he had not even planted, but h-hich grew fron seeds knocked from their stalks in 1988 as a resuit of hail damage. The jury had a right to find that if Yaxwell could realize net income of over $70,C00 from a volunteer winter wheat crop in 1989, he could earn subscantially more than that on the same land by e~ployinggood farminy techniques in the fall cf 1990 and the growing season of 1991. tihile there was substactial evidence produced by Fox Grain frcx h i the jury could have found that Maxwell's farming techniques wccld not have beec profitable during the rexainder of his lease term with Fox Grain, it was not the responsibility of the Cistrizt Ccurt, a=_d is certainly not the appropriate f a c t i o n of eT~lcience, cr rcferences frcm the eyJ-rdence, siaply because the pcinted out in S h c h u k : A directed verdict x i y be granted only where it appears as a nstter af law that . . . [the nonmoving partyj could not reco"zer upon any view of the evidence, including the Legiti~ate infererces to be drawn fron it, Si~chuk, 833 P.2d at 160 (quoting Wilkerson v. School Dist. Xo. 15 In this case, the jury found that Fox Grain breached the covenant of good faith and fair dealing which was implied from its contract with Earnell. When a breach of that covenant occurs, contract dar?ages are appropriate. Story v. City of Bozeman (1990), 242 Kont. 435, 450, 791 P.2d 767, 775. The purpose of contract dazages is to make the nonbreaching party whole, or put the nonbreaching party in a posirion as if the contract had been performed. Stensvad v. Miners and Merchants Bank (1982), 196 Mont. 193, 206, 640 P.2d 1303, 1310. Maxwell's contract d a n a ~ e sfor breach of the covenapt of good faith and fair dealing were based on the profits he lost from being unable to farn Fox Grain's land pursuant to his lease agreement. Xhile damages for lost profits may not be speculative, it is orly required that they be proven with "the best evidence under the circunstances [which] will support a reasonably close estimate of the loss." Stensvad, 640 P.2d at 1310. The best evi6er.ce of the profits which Phx-dell could have prcdzced, had he been allowed to continue farxing Fox Grain's land -. ,-.- ,. to bULadant their lease aqreexent, !:s evi3snce cf what farxers on ,a - =i-: i a r ~land in the area were able to produce. in this case, Fox Grain introduced evidence of --" i,r:at neighboring farcers were able to pr.zdace in oreer to establish its cun daxages based on its allegation that Waxwell had danaged its land. The jury, however, fourd that Max-:lei1 hac! not daaage~3Fox G r a m ' s land xben it found that Max-xell had not b r e a c h 4 the lease agreement. It is, therefore, only logical to conclude that had FTaxwelL been able to perfor~.under the lease agreement he would have been able to produce crops similar to those produced on adjoining and neighboring lands. verdict on this issue was We conclude that the jury's supported by substantial credible evidence, that the District Caurt erred in granting a JNOV on this i s s ~ e ,and reinstate the jury verdict awarding Frank F. Max-uell Did the District Court err by denying Fox Grain's ~ ~ o t i o n for judginent notwithstanding the verdict on the issue of Maxwell's other damages? The jury awarded Max'well: 1) $23,013.42, plus 75 percent of the net federal crop insurance payment, for Fox Grain's failure to mitigate its damages; and 2) $16,500 on his loss of machinery claia. According to Fox Grair,, there was absolutely no evidence in . -w tke reccrd to scpport these two i u 1 awards. Fox Grain contends that the District Court improperly refused to grant a JNoV as to thess awards First, Fox Grain challenges the axard of 75 percent of the federal crcp ins-rance payaent. was unnecessary. Fox Srain zrgues that the award Since the j-ry ccncluAed that the lezse was iz effect during 1991, pursl.ia3t tg t5e lease terxs Ma:ciell was entitled to 75 percent of all government paynents, includixg crop insarance. Xe conclude that Maxwell &-as entitled tc 75 percent of 211 govercaent payments, including crop insurance. We remand this issue to the District Court to determine the types of government payments received by Fox Grain during 1991 and the aaounts due to ?faxwell under each program. Fox Grain further argxes that the award of $ 2 3 , 0 1 3 . 4 2 , was not supported by acy evidence and thus, was speculative. Accordingly, the District Court should have granted a S?iOV as to that award. A review of the record, however, negates Fox Grain's argurr.ent. Technically the award of $23,013.42 was not an award but, rather, that miount represented an axount which Maxwell was not liable since Fox Grain failed to aitigate its damages. The jury determined that the lease was in effect and, pursuant to the lease, Naxwell was liable for 75 percent of the farming expenses, or $38,779.60. The jury then determined that Fox Grain failed to ~.iti;.ate those farming expenses and conc?,uded that if Fox Grain properly mitigated its damages, it would have saved Xaxvell $23,013.42. The record reveals that evidence was elicited to prove that Fox Grain refused t,o sell stored grain, which resulted in $1,000 of extra storaqe costs. Fi;-rther, Fox Grain refused to enter an agreenent with Xaxdell so that the Agriculture Stzbilizatior ac3 Conservation Service would release advance deficiency payments of $i3,C13.42, C n that basis, ; e c c n c l ~ d echat the District Court w properly denied Fox Grain's nction for a JNOV as to the $23,013.42. Additixall;;, Fox Grain contends that the special verdict for3 xas pisleading. According to Fox Grain, the ~wording of question 2)b), is nonsensical, confusing, and the jury did not know what the question was asking. The special verdict provided, in pertinent part: 2) Do you find against [Fox Grain] and in favor of [E4axxell], that no naterial breach of the lease occurred? Answer: Y e s L No If your answer is yes, resulting in reccgnition of the contlcu~ngvalidlty of the lease, then: a) Khat anount of farming expenses incurred since July 23, 1990, do you find [Max~ell] responsible for the payment of? b) Taking into consicleration mitigation of damages, what anount of damages, if any, do you award to j [Hax-#ell and against [Fox Grain]? $ 2?,C13.42 + 75% of nec Fed Crqo ins pnt While questicn 2 ) b ) is not a nodel question on the mitigation issue, : e cczclude that the special verdict form coxporrs with the ; standards of Rule 45(a), M.R.Civ.P. (1993)' 239 Mont. Z O i l In Story v. City of Bozeman 229, 856 P.2d 202, 215-16, we exaained the three-part stan3ard to asternine the adeqaacy of a special verdict 1) w3ether, when read as a whole and in conj*~nction with the general charge, the i?terrogatcries arieqcately presented tke contested issues ta the jury; rwhetber the s,kmission of the issues to the j u r y vas fair; a x 6 2) 3) whether the ultimate questions of fact were clearly suhitted to t h e jury. In the present case, when question 2)b) is read in context with the remaining portions of the special verdict form, the issue of nitigation was properly presented to the jury. verdict fairly and accurately subnitted the specifically the nitigation issue, to the jury. The special issues, and F~rther,the ultimate question of fact of whether Fox Grain mitigated its damages was logically and clearly presented to the j c r y . We hold that the special verdict form complied with Rule 49(a), l4.R.Civ.P. Finally, Fox Grain maintains that the District Court should have overturned the jury award of $16,500 for loss of machinery. Fox Grain contends that ?lam-ell's father, TOP., purchased the tractor in his o m name. Since Tom was not a party to the lease, the loss of the tractor was Ton's, and not Xaxwell's. Fox Grain argues that the District Court improperly allowed Maxwell to recover t>e loss of that tractor. The record, however, dilutes Fox Grain's argunant. Even though Tom purchased the tractor in his name, Xaxwell's property--worth $14,300--was used as a down payment, and Masvell was responsible fcr the paperits. Tom only assisted Haxwell in obtzining financing for the tractor, Fcrther, two other itens of ~ a c h i r'1 - ~ s were lcst, a pcsthole digger and rotary cuzter valaed between $2,500 and $2,750. record, T: te After an extensive review of the ccnclude that the District Court properly denied Fox Grain's n : c cin f=r a J!:gC as to the ---s: ,.,czb:.,nery damrjes. We hold that ths recorc: contains sufficient pr3of to justify the jury's conclusion that $2?,C13.42--and nackinery. Fox owed Grain failed Maxwell to $16,500 rnitiqate for its daz.ages-- Maxiellis loss of The District Court is affimed on Issue 11. Was there sufficient evidence in the record to scpport the jury's findings that Maxweii dld not breach the lease? The jury concluded that P1axwel.l had not breached the lease and the Lease was in effect for 1991. jury,- conclusion on the breach Fox Grain contends that the issue is unsupported by the evidence. Moreover, Fox Grain argues that the District Court erred by granting Maxwell's motion in limine relating to negotiations or discussions which predated the execntion of the lease agreement. We will not disturb a district court's evidentiary rulings absent an abuse of discretion. Haines Pipeline Construction, Inc. v. Kontana Power Co. (1991)' 251 Mont. 422, 427, 830 P.2d 1230, 1234. In this case, the District Court's order in limine excluded parcl evidence of the lezse agreement. Tox Grain contends that parol evidence should have been adaitted to exglain aabigcities in the lease. See Eliingson Agency, Inc. v. Baltrusch (1937), 228 Mont. 360, 366, 742 P.2d 1009, 1013. foLloaing previsions are ambignous: Fox Grain contends that the I) Maxwell agreed to "occupy-,till axi in all res-;?ects cultivate the premises 3bove nentioced during the tsrzt aforesaici, in a farmer-like manner, and according to the usnal course of farning practiced in the neighborhood;" and 2) MaxweLl and Fox Grain "agreed that nc? less than all -n-acres skall bs c~~itivatei. each year of this Lease, ef"' n-r by being in crop or suamerfallow, except that Xzxwell is allmied tc stubble in approxiaately- 1,000 acres of sunr.erfallov and will leave 1,OCO acres of sunnerfallow at the end o f t h e Lease." Fox Grain arques that the terzs "farmer-like manner," "usual course of farming practiced in the neighborhood," acd "not less than all acres snail be cultivated each year of this lease" were ambiguous and required parol evidence to explain their xeaning. Further, the tern "Eaxb:ell is alloxed to stubble in approximately 1,000 acres of summerfallow" is ambiguous, since any farmer knows that a person cannct "stubble in" summerfallow. When ambiguous terms exist in a contract, parol evidence is admissible to explain the ambiguous terms. P.2d 3, at 1013. c3nveyance" Ellinason Aqency, 742 In Ellinqscn Aoencv, i e examined ~shetherthe tern r under a real estate broker's exclusive listing 2greemer.t inclucied a transfer of title in lieu cf foreclosure. We concluded that summary judgment was improper because genuine issues of fact existed since the term "conveyance" did not have a fixed meaning. Ellinqson Aqency, 542!:;.?I at 1013. C e helci that parcl i evidence was necessary to interpret the parties' intention of inclcding that tern in the agreenent. u n a s c n Aqencv, 742 P.2d at 1013. Fox traifi contends that. the District Court should have allowed it t, testify as to the meaning of the t e r m : 14 of the lease. According ts Fox Grain, it was unable to explain to the jury that the Lease reqoired "axwell to spray for weeds and snmnerfaiiow the pro~erty. 3" . , :else, however, did not pra-iide that Haxweli was zeqak-ed to spray cr su-m?rfallox the prcperty. pr""irJe ";t]hat Fox [Grain: is to be consult& Tkn lease di2 by Y a m e l l as to the farcing decisions, however, the final. decisicn of Maxlcell shall be binding upcn Pcx [Grain]." Even though the court refused to allow Fox Grain to testify about the xeaning of the terns, the court did allow neighboring farmers' testimony on the issue of farming practices. We conclude that the court did not abuse its discretion when it limited Fox Grain's testimony as to what it felt the lease required of Maxwell. Fox Grain also argues that the jury's f i n d k g that i"ixwell did rtot breach the lease was not supported by substantial evidence. Fox Grain extensively argues the facts of this case and concludes that Maxwell breached the lease. When conflicting evidence exists, the jury must judge the credibility and ~geightof the evidence and i we will not retry the case nor will F e reweigh the evidence on appeal. Whisher v. Higgs (1993), 257 Mont. 132, 146, 849 P.2d 152, 160. After an extensive review of the record, we conclude that the jury's finding that Maxwell did not breach the lease was supported by substantial ex:idence. We affirm the jury verdict on Issue 111. Did the District Court err by granting Maxwell summary judgnent on Fox Grain's ownership claim of the volunteer winter wheat crop? Ol~r standard of review on a grant of surzaar'j judgaent is i d e n t i c a l t? that cf t h e t r i a l c o u r t . ( 1 9 9J , , -' the 2 5 5 ~ o c t .4 2 3 , record to Mimic v . C i t y o f Rcundup 431, 849 P . Z ~ 1 2 , 2 determine whether a ., l n ~ i e ,249 P.Z? a t 2 1 4 , genuine F i r s t , we e x a a i n e 214. issues of fact exist. I f no g e n u i n e i s s u e s o f f a c t e x i s t , t h e n 1 <ve rust d e t e r ~ i n e h e t h e r t h e n o v i n g p a r t y i s e n t i t l e d t o j u d g c e n t x as 2 n a t t e r o f i a ~ x , -M i n n t e t The lease provisions 249 P.22 ac 214. stated that Maxijell would p r e n i s e s d u r i n g t h e 1989, 1990, and 1991 c r o p s e a s o n s . t o d e l i v e r t o Fox G r a i n o n e - f o u r t h lease the Maxwell was o f a l l c r o p s p r o d u c e d on t h e l a n d , e x c e p t t h a t Maxwell was t o r e c e i v e t h e e n t i r e 1939 c r o p a r d Fox G r a i n was n o t t o s h a r e i n t h a t c r c p . Fox G r a i n c o n c e d e s t h a t t h e v o l u n t e e r c r o p w a s h a r v e s t e d i n 1929, b u t c o n t e n d s t h a t an i s s u e of the c r o p began growing. f a c t e x i s t s a s t o which y e a r Fox G r a b c o n t e n d s t h a t a c t u a l l y p l a n t e d i n 1987 f o r h a r v e s t i n 1 9 8 8 . t h e c r o p was However, d u e t o t h e h a i l s t o r m i n 1 9 8 8 , t h e v o l u n t e e r c r o p s p r o u t e d i n 1939. We conclude that no g e n u i n e i s s u e of fact e x i s t s and t k e a g r e e x e n t is c l e a r on i t s f a c e t h a t s i n c e t h e v o l u n t e e r c r c p was h a r v e s t e d i n 1 9 8 9 , Maxwell h a d a r i g h t t o r e c e i v e t h e e n t i r e c r o p . At the beginning existence of of the lease, the volurteer crop, the parties but were chose n o t to a-dare o f the address t h e o w n e r s h i p o f t h a t c r c p i n t h e i r a g r e e ~ ~ e n t M o r e o v e r , ."$hen Maxwell . h a r v e s t e d t h e v o l u n t e e r c r o p i n 1 9 8 9 , Fox G r a i n d i d n c t c l a i o t h a t i t owned t h e c r o p . Ratker, Fox G r a i n w a i t & s e n t N a x x e l l t h e Lease c a n c e l l e t i o n n o t i c e - - t o i n t e r e s t ic t h a t cr3p. u n t i l 1996-->;hen it c l a i n an ownership We h a l e t h a t t h e D i s t r i c t C o u r t p r o p e r l y We concur: A i \

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