                   IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1674
                             Filed August 15, 2018


JIM JAMISON d/b/a J&S AG SERVICES,
      Plaintiff-Appellant,

vs.

DARRELL J. CODDINGTON and WENDY CODDINGTON,
     Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Wayne County, Dustria A. Relph,

Judge.



      Plaintiff-appellant appeals the district court’s grant of summary judgment in

favor of the defendants-appellees. AFFIRMED.



      David L. Leitner of Leitner Law Office, West Des Moines, for appellant.

      Verle W. Norris, Corydon, for appellees.



      Considered by Vogel, P.J., Doyle, J., and Blane, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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BLANE, Senior Judge.

       Plaintiff Jim Jamison d/b/a J & S Ag Services (Jamison) appeals from the

district court’s grant of defendants Darrell and Wendy Coddington’s motion for

summary judgment.1 After our review of the record in this case, we find the district

court properly found no dispute of material fact, correctly applied the law, and did

not err in granting the Coddingtons’ motion for summary judgment.

    I. Factual and procedural background.

       In April 2016, Jamison filed a petition against Coddington alleging that in

2014 Coddington entered into an oral contract with him for the purchase of

soybean seed and for Jamison to custom spray a chemical application to the crop,

including purchase of the applied chemicals, but that Coddington then failed to

pay. Coddington filed an answer denying Jamison’s claims, asserting affirmative

defenses as well as a counterclaim for abuse of process.2              Jamison and

Coddington were deposed and written discovery exchanged. On February 20,

2017, the trial court granted Jamison’s motion to amend the petition to add Darrell’s

spouse, Wendy, as an additional defendant, alleging she was an equal owner of

the farming operation and also liable to Jamison. Wendy filed her answer denying

Jamison’s claims.

       On August 7, the Coddingtons filed their motion for summary judgment with

an attached statement of undisputed facts supported by the depositions and

Coddington’s affidavit. Jamison filed a resistance with an attached statement of


1 “Coddington” refers to Darrell Coddington only. “Coddingtons” refers to both Darrell
Coddington and Wendy Coddington.
2
  After the trial court’s ruling granting defendants’ motion for summary judgment,
Coddington dismissed his counterclaim.
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facts alleged to be in dispute, relying solely on his and Coddington’s depositions.

He did not submit an affidavit with his resistance.

       Following a hearing on September 5, based upon the depositions and

Coddington’s affidavit, the trial court found the following undisputed facts: Jamison

is in the business of selling seed to farmers as well as selling chemicals and

applying them to farmland. In the spring of 2014, Coddington entered into an

agreement with John Trihus (Trihus) for Trihus to custom farm that growing season

certain land owned by Coddington near Lineville, Iowa. Trihus was to provide all

crop inputs and all labor and equipment to plant and tend the soybean crop.

       Trihus then discussed with Jamison the need for soybean seed, advising

Jamison he was planting 1200 acres. Jamison ordered 1300 units of soybean

seed. Trihus and Coddington at various times picked up a total of 800 units of

soybean seed from Jamison’s storage facility during the planting season, at $60

per unit, for a total cost of $48,000.00. Trihus also arranged for Jamison to spray

the soybean crop Trihus was custom farming on Coddington’s land. The 2014

soybean crop was harvested that fall. In October, Coddington settled up with

Trihus for the cost of the crop inputs Trihus had arranged to purchase from

Jamison.

       Neither of the Coddingtons signed any written agreement, invoice, or other

document to support what Jamison claims was their purchase of crop inputs from

him. Jamison did not provide the Coddingtons any receipts, delivery tickets, or

invoices. He did not discuss with either of the Coddingtons the purchase of seed,

the cost of $60 per bag of seed, or the act of chemically spraying the farmland. In

January 2015, Jamison telephoned Coddington to demand payment for the
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soybean seed, chemicals, and application. Wendy Coddington was neither an

operator of the land custom farmed by Trihus in 2014, nor did she have any

interaction with Jamison, Trihus, or any other person regarding crop inputs and

custom farming in 2014.

       The trial court then proceeded to address the two fact issues that were

disputed. The first was whether, during a discussion on July 15, 2014, Coddington

told Jamison to send him an invoice for crop inputs. The court determined, “Even

though this allegation is in dispute, the court finds whether or not Jamison and

Coddington had this conversation is not a material fact because the Statute of

Frauds applies to this matter and Jamison has produced no writing to support the

existence of a contract between the parties.” The court found that the seed and

chemicals were “goods” covered by Iowa Code section 554.2105(1) (2016)—part

of Iowa’s Uniform Commercial Code (UCC)—and because the claimed contract

exceeded $500, the statute of frauds in section 554.2201(1) required it to be in

writing.

       The court then addressed Jamison’s argument that the statute of frauds

requirement of a written contract did not apply because Coddington received and

accepted the seed and chemicals. See Iowa Code § 554.2201(3)(c). The court,

citing Iowa Code section 554.2606, determined that such acceptance had to be by

the “buyer,” as defined in Iowa Code § 554.2103(1)(a). The court found:

       In this case, there is no evidence in the record to support a finding
       that Coddington was the buyer of Jamison’s goods. Coddington did
       not have any discussion with Jamison regarding the purchase of the
       crop inputs, and there is no evidence of mutual assent or agreement
       between the parties. Further, Jamison clearly acknowledged in his
       deposition that Trihus purchased the soybean seeds and arranged
       for the soybean crop to be sprayed.
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The court concluded that whether Coddington told Jamison to send him an invoice

for the cost of crop inputs was not an issue of material fact because it was irrelevant

and insufficient to prove the existence of an enforceable contract under the statute

of frauds.

          The court next addressed the second contested factual issue—whether a

partnership or agency agreement existed between Trihus and Coddington so that

Trihus’s agreements with Jamison contractually bound Coddington. The trial court

decided that “besides Jamison’s allegation, there is simply no evidence to support

a finding that a partnership or other agency relationship ever existed between

Coddington and Trihus.”

          The trial court granted the Coddingtons’ motion for summary judgment and

dismissed Jamison’s amended petition.               Jamison then filed a motion for

reconsideration and new trial, which he supported with his affidavit raising

additional facts.3    The Coddingtons resisted, and the court denied Jamison’s

motion. Jamison timely filed a notice of appeal.

    II.      Standard of review.

          “We review a district court decision granting or denying a motion for

summary judgment for correction of errors at law.” Wallace v. Des Moines Indep.

Cmty. Sch. Dist. Bd. of Dirs., 754 N.W.2d 854, 857 (Iowa 2008). “A matter may be



3
  We note that Jamison’s affidavit, dated and filed on September 27, 2017, was not filed
with his original resistance to the summary judgment motion. Iowa Rule of Civil Procedure
1.981(3) provides: “If affidavits supporting the resistance are filed, they must be filed with
the resistance.” The affidavit was not timely filed pursuant to the rule. Jamison also did
not comply with Iowa Rule of Civil Procedure 1.981(5) regarding supplementing affidavits.
The facts asserted in Jamison’s affidavit filed with his motion to reconsider cannot be
considered by the trial court or this court on appeal as generating a dispute of fact.
                                           6


resolved on summary judgment if the record reveals only a conflict concerning the

legal consequences of undisputed facts.” Id.; see also Garvis v. Scholten, 492

N.W.2d 402, 403 (Iowa 1992). Summary judgment is appropriate when “there is

no genuine issue as to any material fact and . . . the moving party is entitled to a

judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). “The moving party has the

burden of showing the nonexistence of a material fact.” Hlubek v. Pelecky, 701

N.W.2d 93, 95 (Iowa 2005). “An issue of fact is ‘material’ only when the dispute

involves facts which might affect the outcome of the suit, given the applicable

governing law.” Wallace, 754 N.W.2d at 857. An issue is “genuine” if the evidence

in the record “is such that a reasonable jury could return a verdict for the non-

moving party.” Id. “Our task on appeal is to determine only whether a genuine

issue of material fact exists and whether the law was correctly applied.” Rants v.

Vilsack, 684 N.W.2d 193, 199 (Iowa 2004) (quoting Junkins v. Branstad, 421

N.W.2d 130, 132–33 (Iowa 1988)).          “We examine the record in a light most

favorable to the party opposing the motion for summary judgment to determine if

movant met his or her burden.” Id. “Speculation is not sufficient to generate a

genuine issue of fact.” Hlubek, 701 N.W.2d at 96.

   III.      Discussion.

          Again relying substantially on his untimely affidavit, Jamison argues there

are disputed facts that prevented the trial court from granting the Coddingtons’

motion for summary judgment.         Jamison first contends Trihus was either the

Coddingtons’ employee—“their hired hand”—or their partner in the 2014 farming

operation and acting as the Coddingtons’ agent when he entered into oral

contracts with Jamison for the seed and to chemically spray the fields.
                                         7


Alternatively, Jamison contends that Coddington became responsible to pay

Jamison when he picked up part of the soybean seed from Jamison’s storage

facility and directed Jamison during the spraying process. Lastly, Jamison argues

that in July 2014 Coddington accepted responsibility to pay when Coddington

requested Jamison to send him the billing statement for soybean seed.

       In his deposition, Jamison testified that he had a discussion on July 15,

2014, with Coddington where Coddington “wanted to know what his seed bill was

and he told me to bring the seed bill to him because he didn’t want any issues with

John Trihus.” Additional testimony followed:

              Q. Did you ever have any agreement with Mr. Coddington to
       furnish 800 bags of seed to him? A. Not Mr. Coddington.
              Q. Did you have any agreement with Mr. Coddington that he
       would pay you $60 per bag for seed? A. Not Mr. Coddington. I did
       his partner.
              Q. Who is his partner? A. John Trihus.
              Q. Did you have a conversation with Mr. Trihus about
       furnishing seed to him? A. Probably the end of February, first of
       March.
              Q. Of what year? A. 2014.
              Q. Where did that conversation take place? A. In my shed.
              Q. And what was the gist of that conversation? A. That him
       and [Coddington] was going to farm some ground and wanted to
       know if they could get fall terms and if I would carry him on the—
       carry them on the spraying until fall also.

Later in Jamison’s deposition, he testified:

              Q. What ground was sprayed? A. Coddington and Trihus’s
       soybean acres post emerge.
              Q. When you say Coddington and Trihus’s soybean acres,
       why do you refer to it as Coddington and Trihus? A. Because they
       was supposed to be putting it in together.
              Q. How do you know that? A. I was told by both of them.
              Q. Well, who told you that? A. Both of them.
              Q. When? A. John [Trihus] told me that in the spring and
       Darrell Coddington told me that evening in Circle A Ranch driveway
       when we was talking to bring the bills to him.
                                         8


      Upon our review of the depositions and Coddington’s affidavit, the above is

the only information Jamison presented which could conceivably create a fact

dispute whether Trihus and Coddington were partners or had an employer-

employee relationship.

      A partnership has four elements: (1) an intent by the parties to
      associate as partners; (2) a business; (3) earning of profits; and (4)
      co-ownership of profits, property, and control. Chariton Feed &
      Grain, Inc. v. Harder, 369 N.W.2d 777, 785 (Iowa 1985). The crucial
      test of a partnership is an intent to associate as partners. Id. This
      element need not be in writing, but it may be inferred from the
      conduct of the parties and the circumstances surrounding the
      transactions. Thorp Credit, Inc. v. Wuchter, 412 N.W.2d 641, 647
      (Iowa Ct. App.1987).

Fettkether v. Fettkether, No. 01-0736, 2002 WL 31425212, at *1 (Iowa Ct. App.

Oct. 30, 2002). In Chariton Feed and Grain, although that case involved a written

agreement, the supreme court quoted a “leading” case on farming-type

arrangements:

      If a partnership existed, it might be possible for the tenant, within the
      scope of the partnership, to purchase property and make the owner
      of the land responsible therefor in an amount largely in excess of the
      rent, and each might be responsible for the torts of the other
      committed within the scope of the agency. The courts hold quite
      generally that there are obvious reasons for holding that farm
      contracts or agricultural agreements, by which the owner of land
      contracts with another that such land shall be occupied and
      cultivated by the latter, each party furnishing a certain portion of the
      seed, implements, and stock, and that the products shall be divided
      at the end of a given term, or sold and the proceeds divided, shall
      not be construed as creating a partnership between the parties.
      Such agreements are common in this country, and are usually
      informal in their character, often resting in parol. In the absence of
      stipulations or evidence clearly manifesting a contrary purpose, it will
      not be presumed that the parties to such an agreement intended to
      assume the important and intricate responsibility of partners, or to
      incur the inconveniences and dangers frequently incident to that
      relation.
                                         9

369 N.W.2d 777, 783–84 (Iowa 1985) (quoting Florence v. Fox, 188 N.W. 966,

967-68 (Iowa 1922)).

       Jamison’s evidence does not create a fact dispute whether Coddington and

Trihus had a partnership. According to Jamison, neither Coddington nor Trihus

used the word partner or partnership.        Jamison imputed the existence of a

partnership from the conversations, but the evidence available to decide the

summary judgment did not clearly manifest the creation of a partnership so as to

generate a fact issue that Coddington and Trihus had established a partnership.

       Jamison likewise did not present any evidence to establish a fact dispute

whether Trihus was the Coddingtons’ employee. As noted in Fox, there are a

number of different relationships that exist regarding farming. On our review of the

depositions and Coddington’s affidavit, they do not provide Jamison with disputed

facts to generate an issue the Trihus was an employee. Since Trihus was neither

Coddingtons’ employee nor partner, he could not bind Coddingtons to a contract

for the seed or spray application of chemicals, and the Coddingtons are not liable

to Jamison for payment.

       Next, Jamison argues that Coddington was a buyer and his acceptance of

the “goods”—the seed and chemical application—takes the contract out of the

statute of frauds and permits an oral contract.      The district court found that

Coddington was not a buyer under the UCC. Since the district court properly found

that Trihus was not the Coddingtons’ employee or partner, even if Coddington had

picked up some of the seed or advised Jamison in the chemical application, he did

not meet the UCC definition of buyer. Since Coddington was not the buyer, his

actions do not take this situation outside the statute of frauds. Jamison’s claim of
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an oral contract is not permitted, and he cannot establish that the Coddingtons

were responsible to pay.4

          Finally, based upon the foregoing, we agree with the district court that

Coddington’s request that Jamison send him an invoice for the cost of crop inputs

was not material to prove a contract between Jamison and Coddington because it

was irrelevant and insufficient to prove the existence of an enforceable—that is a

written—contract under the statute of frauds.

    IV.      Conclusion.

          The district court correctly applied the law, determined there was no dispute

of material fact, and granted the Coddingtons’ motion for summary judgment.

          AFFIRMED.




4
  In his appellate brief, Jamison also asserts that the Coddingtons were unjustly enriched
since they received the profit of the crop for which Jamison provided the seed and applied
chemicals. However, we note that Jamison did not plead a claim of unjust enrichment in
his petition.
