                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-24-2002

Helena Chem Corp v. Nelson
Precedential or Non-Precedential:

Docket 0-3700




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Recommended Citation
"Helena Chem Corp v. Nelson" (2002). 2002 Decisions. Paper 31.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/31


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                                                NOT-PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT
                          __________

                  NOS.    00-3700 AND 01-1252
                            __________

         HELENA CHEMICAL CO., A DELAWARE CORPORATION

                                v.

            JESSE NELSON, SR., d/b/a NELSON FARMS
                                            Appellant in 00-3700

                   Helena Chemical Company,
                         Appellant in 01-1252
                          _________

       On Appeal from the United States District Court
                for the District of New Jersey
                 (D.C. Civil No. 97-cv-05662)
         District Judge: Honorable Jerome B. Simandle
                          __________

          Submitted Under Third Circuit LAR 34.1(a)
                       January 8, 2002
    Before: MANSMANN, RENDELL and FUENTES, Circuit Judges

                  (Filed: January 23, 2002)
                          __________

                         MEMORANDUM OPINION
                             __________

RENDELL, Circuit Judge.
     Helena Chemical Co. ("Helena") sued Nelson Farms seeking payment for
chemicals and spraying services, and Nelson Farms counterclaimed,
asserting that
Helena's improper application of herbicides had damaged its fields. The
District Court
entered summary judgment in favor of Nelson Farms for negligence, and
against Nelson
Farms on its claim under the New Jersey Consumer Fraud Act (the "Consumer
Fraud
Act"), N.J.S.A. 56:8-2. The jury determined damages, and Nelson Farms was
awarded
$310,826 for the negligence claim.
     Nonetheless, Nelson Farms appealed, contending that the judge should
have found
that Helena's actions violated the Consumer Fraud Act because Helena
"knowingly
ignored label directions and applied the pesticide [improperly]," because
the
misrepresentation by Helena was of a type contemplated by the Consumer
Fraud Act such
that the issue should have been submitted to the jury, and because the
court erred in
failing to find that the violations of federal and state law were
"aggravating
circumstances" within the meaning of Cox v. Sears Roebuck, 647 A.2d 454
(N.J. 1994),
sufficient to give rise to a violation of the Consumer Fraud Act. We have
jurisdiction
under 28 U.S.C.    1291, and our review of a summary judgment decision is
de novo.
     The District Court first considered whether a statement by Helena
that it would
match a competitor in quality and price amounted to fraudulent inducement
to contract.
It found that, at most, Helena may have breached an oral guarantee of
quality, which does
not violate the Consumer Fraud Act by itself, but must be accompanied by
aggravating
circumstances. See D'Ercole Sales, Inc. v. Fruehauf Corp., 501 A.2d 990,
997-98, 1001
(N.J. Super. Ct. App. Div. 1985). The District Court found that Nelson
Farms had put
forth no evidence of aggravating circumstances and, in particular, that
there was no
evidence of "concealment of an intent to provide inferior service from the
outset." On
appeal, Nelson Farms urges us to hold that the repeated application of the
herbicide after
Helena's employees realized it was not mixing well amounted to aggravating
circumstances. But we agree with the District Court that this does not
rise to the level
contemplated by the statute. Finally, the District Court reasoned that
Helena's statement
was "puffing" rather than fraud under the Consumer Fraud Act. See Gennari
v. Weichert
Co. Realtors, 672 A.2d 1190 (N.J. Super. Ct. App. Div. 1996), aff'd as
modified, 691
A.2d 350 (N.J. 1997) (requiring that the misrepresentation must be
material to the
transaction, must be false, and must induce the buyer to make the
purchase).
     The District Court next rejected Nelson Farms' argument that Helena's
failure to
follow the instructions on the label amounted to an unconscionable
business practice
because it violated statutes that regulate the use of herbicides. The
District Court found
no basis in law for this argument and reasoned that misuse of herbicides
can be remedied
without reliance on the Consumer Fraud Act through the herbicide statutes'
own
enforcement provisions.
     We agree that summary judgment against Nelson Farms on its Consumer
Fraud
Act claim was appropriate, essentially for the reasons in the District
Court's opinion. We
agree that there was no evidence that either Helena's statement or its use
of herbicides
violated the Consumer Fraud Act. The improper herbicide application did
not constitute
an "unconscionable commercial practice," in part because it did not
reflect the lack of
"good faith, honesty in fact and observance of fair dealing" that Cox
requires. Id.
Moreover, Helena's statement that it would meet the quality and cost of
its competitor did
not constitute a misrepresentation. Instead, it was an assurance given,
but Helena then
failed to perform in accordance with the assurance. No one alleges that
the company
lacked the qualifications and was not competent; rather, it just did not
follow the label.
     Also before us is Helena's cross-appeal from the District Court's
denial of its
motion for a new trial or remittitur on the ground that the jury awarded
excessive
damages. In its opinion, the District Court examined in detail the
presentations made by
competing experts, the calculations of the quantity of each crop that was
lost or damaged,
and the evidence as to the value of these crops. We conclude that the
District Court did
not abuse its discretion in denying this motion and that the jury's damage
verdict was not
"so grossly excessive as to shock the judicial conscience." Murray v.
Fairbanks Morse,
610 F.2d 149, 153 (3d Cir. 1979) (internal quotation marks and citations
omitted).
     Finally, Helena cross-appealed from the order granting Nelson Farms'
motion to
add prejudgment interest to the final judgment. We agree with the
District Court that this
was an appropriate addition, as the New Jersey Court Rules expressly
provide for interest
without requiring that it be requested in the complaint or in pretrial
submissions.
     In sum, for the reasons set forth by the District Court in its
opinion, we will
AFFIRM.
____________________________
TO THE CLERK OF COURT:
    Please file the foregoing memorandum opinion.



                                     /s/ Marjorie O. Rendell
                                     Circuit Judge
