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Timm Adams, et al v. United States of America

October 6, 2011

TIMM ADAMS, ET AL.,
PLAINTIFFS,
v.
UNITED STATES OF AMERICA, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER ON DUPONT'S MOTION THE PERCENTAGE LEASE WADA FARMS PLAINTIFFS FOR SUMMARY JUDGMENT ON ISSUE FOR THE POULSON AND INTRODUCTION

The Court has before it a portion of DuPont's motions for summary judgment filed against plaintiffs that the Court will refer to as Jackman Poulson, Scott Poulson, and Wada Farms.*fn1 In this decision, the Court will resolve DuPont's claim that any damages recovered by these plaintiffs must be reduced by the percentage of rent applicable to the fields in dispute. While DuPont withdrew its challenges to certain fields in its final briefing, some fields remain in dispute. With regard to those fields that remain in dispute, the Court will grant DuPont's motion for the reasons explained below.

FACTUAL BACKGROUND

Jackman Poulson

After briefing, the only remaining issues on the percentage rent issue relate to fields leased by Jackman Poulson to grow sugar beets in 2001 and 2002. One field was leased in 2001 from Everett Wood and the other in 2002 from Luis and Leah Johnson. While both leases at issue were written, neither was produced in discovery or submitted to the Court in conjunction with this motion. Poulson was questioned about the lease terms during this deposition, and was asked whether his 2001 lease on the Wood field was a "cash or crop share." See Poulson Deposition (Dkt. 1990-60), at p. 40. Poulson answered that "I can't answer that for sure without looking, but I believe it was -- gosh, I believe it was a crop share at that time." Id. The FSA Report signed by Poulson confirms that the landlord Wood was getting 20% of the crop revenue in 2001 on that sugar beet field. See Exhibit 6 (Dkt. No. 1990-61). Poulson further testified that in 2002, the Johnson field was a "crop share," with the landlord Johnsons receiving 25 percent of the revenue from the sugar beets. See Poulson Deposition, supra, at pp. 40-41.

After DuPont filed this motion, Poulson responded with a declaration stating that his lease "was not a crop share" and that "I always paid cash, as opposed to crops, for my beet fields." See Poulson Declaration (Dkt. No. 2013-22) at ¶ 2. But even assuming Poulson paid his rent in cash rather than crops, his declaration does not rebut his deposition testimony, the FSA Report, and DuPont's allegations, that Poulson paid as rent to the Johnsons 25% of the crop revenue for 2002 sugar beets. And his declaration does not rebut the FSA Report and DuPont's allegations that Poulson paid as rent to Wood 20% of the crop revenue for 2001 sugar beets. Thus, those percentage figures are unrebutted in this record. Moreover, there is no evidence that Poulson paid as rent to either Wood or the Johnsons a fixed payment that did not depend on his crop production or revenue.

Scott Poulson

After the briefing was completed on Scott Poulson's claim, the only issues remaining relate to Poulson's renting of the Bartholoma field in 2001. At his deposition, Poulson was asked whether his Bartholoma lease was a crop share arrangement, and he responded that "without seeing the lease, I probably can't tell you because that one changed midstream too." See Scott Poulson Deposition (Dkt. No. 1990-63) at p. 32. He was then shown an FSA Report, signed by him, indicating that he was paying a rent of 25% of the crop revenue. See Exhibit 3 (Dkt. No. 1990-63). When asked if that FSA Report refreshed his recollection, Poulson answered that "[i]t appears to be a crop share, but I won't verify that without seeing the document [apparently referring to the lease]." Id.

In its opening brief, DuPont alleges that Poulson paid 25% of the crop revenue as rent on the Bartholoma lease, and cites in support Poulson's deposition testimony and the FSA Report discussed above. In responding, Poulson filed his declaration stating that on the Bartholoma lease, "the landlord was always paid in cash based on a percentage of crop proceeds." See Scott Poulson Declaration (Dkt. No. 2013-23) at ¶ 7.

This declaration statement, in combination with the lack of any rebuttal to DuPont's evidence of a 25% rent agreement, means that there is no genuine issue of material fact that Scott Poulson paid 25% of the crop proceeds as rent on the Bartholoma lease.

Wada Farms

DuPont's motion challenged three Wada Farms fields as being leased under percentage rent agreements. After all the briefing was completed, DuPont withdrew some of its challenges, leaving in dispute only the Billings parcel of the Billings/Parson field rented by Wada Farms in 2001. In his deposition, Albert Wada testified that on that field, his rent was a percentage of his crop proceeds -- his rent for his potato crop was 25% of crop proceeds and his rent for grain was 33%. See Wada Deposition at p. 63. After DuPont filed this motion, Wada filed his declaration stating that in 2001, the year at issue here, he had "a cash lease, not a crop share." See Wada Declaration (Dkt. No. 2001-18) at ¶ 5. But assuming that Wada paid his rent with cash instead of crops does not alter in any way his earlier deposition testimony that his rent was a percentage of his crop proceeds. Wada has filed nothing that rebuts his deposition testimony -- and DuPont's allegations -- that his rent was a percentage of his crop proceeds. For other fields, no longer in dispute, Wada states in his declaration that "[r]ent was not based on a percentage of our actual crop income . . . ." See Wada Declaration (Dkt. No. 2001-18) at ¶ 7. But he makes no such representation for the Billings parcel of the Billings/Parson field. Finally, there is no evidence that Wada paid a fixed rent on the Billings parcel that did not depend on crop production or revenue.

Factual Summary for Poulsons and Wada Farms

For the Poulsons and Wada Farms, the record shows no genuine issue of material fact that for each, their rent on the fields in dispute was a percentage of ...


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