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Greg Obendorf and Boyd Gray v. Terra Hug Spray Company

May 1, 2008


Appeal from the District Court of the Third Judicial District of the State of Idaho, Canyon County. Honorable Gregory M. Culet, District Judge.

The opinion of the court was delivered by: Horton, Justice.

2008 Opinion No. 55

Stephen Kenyon, Clerk

The decision of the district court is affirmed.

This is a crop loss case. Respondents Greg Obendorf and Boyd Gray brought suit against Appellants J.R. Simplot Company (Simplot) and Terra Hug Spray Company, Inc. (Terra Hug), advancing claims based upon negligence and breach of contract. The jury found in favor of Respondents, awarding $2,435,906 in total damages.*fn1 The district court thereafter granted Simplot's motion for new trial based on newly discovered evidence. This Court is asked to decide whether the district court properly instructed the jury and whether Simplot is entitled to a new trial on damages. We affirm.


Respondents are partners who farmed 162 acres of asparagus outside of Wilder, Idaho. Asparagus is a perennial crop with a productive life in excess of 15 years and is only grown in certain areas with suitable environmental conditions. Respondents sold their asparagus crop to Seneca Foods Corporation (Seneca) for use in the canned food market. At the time of trial, Seneca operated the only major asparagus canning facility in the state of Washington.*fn2 Seneca's main competitor in the canned asparagus market had previously moved its asparagus canning operations to South America.

Respondents contracted with Simplot to apply herbicides to their fields. Joe Uranga, a field representative for Simplot, met with Respondents and recommended a combination of four herbicides to control various weeds in the asparagus fields. Simplot hired Terra Hug to apply the herbicide mix. Between May 26 and May 28, 1999, Darrin Watson, an employee of Terra Hug, applied the herbicide mix to the fields. During the application, Mr. Watson experienced clogged spray nozzles, which required him to stop and clean the nozzles while in the field. Watson also reported that the mixture had settled materials in it and had the consistency of pancake batter.

A few days after the spraying, the asparagus fields experienced whitening, yellowing, and browning. A Seneca representative inspected the fields and concluded that the damage was due to the misapplication of herbicides. At the end of the growing season, one field, the Van Deusen field, was so badly damaged that Respondents plowed it under and replaced it with corn, a chemically tolerant crop. Based upon the recommendation of a Seneca field representative, Respondents plowed under their remaining asparagus fields after the 2001 growing season.

In March 2002, Respondents filed suit against Simplot and Terra Hug alleging claims for breach of contract, breach of implied warranty, breach of express warranty, and negligence against Simplot and claims for breach of contract and negligence against Terra Hug. A ten-day jury trial was held from May 10 through May 21, 2004. On the tenth day of the trial, the district court made an oral ruling permitting Respondents to amend their complaint to assert a claim based upon negligence per se and including a negligence per se instruction in the jury instructions.

On Friday, May 21, 2004, the jury returned a verdict for Respondents, finding the total damages resulting from Simplot's and Terra Hug's negligence to be $2,435,906. In its consideration of comparative negligence, the jury assigned 85% of the liability to Simplot and 15% of the liability to Terra Hug. On the contract claim, the jury awarded $2,070,520.10 in damages against Simplot and $365,385.90 in damages against Terra Hug. These contract damages exactly mirrored the award of negligence damages after apportionment for the comparative negligence of Simplot and Terra Hug.

On Wednesday, May 19, 2004, two days before the conclusion of the trial, General Mills, Seneca's primary customer of canned asparagus, signed a contract with Sociedad Agricola Viru S.A. (Viru), to fill its canned asparagus needs from Peru. On Monday, May 24, 2004, three days after the conclusion of the trial, General Mills informed Seneca that it would no longer purchase canned asparagus from Seneca. Seneca decided to close the Dayton processing facility the same day.

The parties made a variety of post-trial motions, including Simplot's motion for new trial pursuant to I.R.C.P. 59(a)(4) (newly discovered evidence) and I.R.C.P. 59(a)(5) (excessive damages, appearing to have been given under the influence of passion or prejudice). The district court denied Simplot's motion for new trial based upon the claim of excessive damages, but granted Simplot's motion for a new trial on damages based upon newly discovered evidence. The district court also stayed further proceedings on the motion for a new trial pursuant to I.R.C.P. 62(b), to allow Simplot to take post-trial depositions of General Mills's employees regarding its decision to contract with Viru. Simplot and Respondents timely appealed to this Court.


A. Negligence per se.

The standard of review when reviewing jury instructions on appeal requires this Court to determine whether the jury was properly and adequately instructed. Accordingly, we "review the instructions and ascertain whether the instructions, when considered as a whole, fairly and adequately present the issues and state the applicable law." Ricketts v. Eastern Idaho Equip., Co., Inc.,137 Idaho 578, 581, 51 P.3d 392, 395 (2002) (citing Brooks v. Gigray Ranches, Inc., 128 Idaho 72, 76, 910 P.2d 744, 748 (1996)). "Generally, the question whether a duty exists is a question of law, over which we exercise free review." Udy v. Custer County, 136 Idaho 386, 389, 34 P.3d 1069, 1072 (2001). "Negligence per se, which results from the violation of a specific requirement of law or ordinance, is a question of law, over which this Court exercises free review." O'Guin v. Bingham County, 142 Idaho 49, 51, 122 P.3d 308, 310 (2005) (citing Ahles v. Tabor, 136 Idaho 393, 395, 34 P.3d 1076, 1078 (2001)).

B. Motion to strike affidavit.

This Court reviews a decision by the trial court to admit or exclude evidence under the abuse of discretion standard. Highland Enterprises., Inc. v. Barker, 133 Idaho 330, 345, 986 P.2d 996, 1011 (1999) (citing Morris v. Thomson, 130 Idaho 138, 144, 937 P.2d 1212, 1218 (1997)). In the case of an incorrect ruling regarding evidence, this Court will grant relief on appeal only if the error affects a substantial right of one of the parties. See e.g. White v. Mock, 140 Idaho 882, 891, 104 P.3d 356, 365 (2004) (citing Wood v. State, Dep't of Health & Welfare, 127 Idaho 513, 519, 903 P.2d 102, 108 (Ct. App. 1995)); I.R.C.P. 61; I.R.E. 103(a)).

C. I.R.C.P. 27(b) -- Depositions pending appeal.

No Idaho appellate court has addressed the standard of review for decisions involving the application of I.R.C.P. 27(b). We have expressed "our preference for interpreting the Idaho Rules of Civil Procedure in conformance with the interpretation placed upon the same language in the federal rules. That preference is obviously limited to situations in which our rules and the federal rules contain identical language." Wait v. Leavell Cattle, Inc.,136Idaho 792, 796, 41 P.3d 220, 224 (2001). Although I.R.C.P. 27(b) and F.R.C.P. 27(b) are substantially similar, they do not employ identical language. We have recognized that the control of discovery is a matter committed to the discretion of the trial court. Sanford v. Bailey, 139 Idaho 744, 749, 86 P.3d 458, 463 (2004). The federal courts review decisions to permit depositions pending appeal pursuant to F.R.C.P. 27(b) for an abuse of discretion. Campbell v. Blodgett, 982 F.2d 1356, 1358 (9th Cir. 1993). Given the similarities between the two rules and our usual deference to decisions of the trial courts in the control of discovery, we conclude that a trial court's decision whether to authorize a deposition pending appeal pursuant to I.R.C.P. 27(b) is subject to review for abuse of discretion.

D. I.R.C.P. 59(a)(4) -- Newly discovered evidence.

When considering an appeal from a trial court's ruling on a motion for new trial, this Court applies the abuse of discretion standard. Bott v. Idaho State Bldg. Auth., 122 Idaho 471, 475, 835 P.2d 1282, 1286 (1992). This Court will not disturb a trial court's ruling to grant or deny a motion for a new trial absent a showing of manifest abuse of that discretion. Id. Although this Court necessarily must review the evidence, we are not in a position to "weigh" it as the trial court can. Id. The focus, instead, is on the process by ...

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