{ "id": 8524815, "name": "ELMORE'S FEED AND SEED, INC., Plaintiff and Third-Party Plaintiff v. EDDIE PATRICK, Defendant v. RALSTON PURINA COMPANY, Third-Party Defendant", "name_abbreviation": "Elmore's Feed & Seed, Inc. v. Patrick", "decision_date": "1983-06-21", "docket_number": "No. 8227SC604", "first_page": "715", "last_page": "720", "citations": [ { "type": "official", "cite": "62 N.C. App. 715" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "295 S.E. 2d 436", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "441" } ], "opinion_index": 0 }, { "cite": "306 N.C. 618", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573268 ], "year": 1982, "pin_cites": [ { "page": "624" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0618-01" ] }, { "cite": "281 N.C. 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575528, 8575516, 8575502 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0516-03", "/nc/281/0516-02", "/nc/281/0516-01" ] }, { "cite": "186 S.E. 2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "pin_cites": [ { "page": "901", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "280 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572831 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0513-01" ] }, { "cite": "263 S.E. 2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "322" } ], "opinion_index": 0 }, { "cite": "45 N.C. App. 432", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549174 ], "year": 1980, "pin_cites": [ { "page": "437" } ], "opinion_index": 0, "case_paths": [ "/nc-app/45/0432-01" ] }, { "cite": "269 S.E. 2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "140", "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "301 N.C. 68", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561139 ], "year": 1980, "pin_cites": [ { "page": "72", "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0068-01" ] }, { "cite": "180 S.E. 2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "830" } ], "opinion_index": 0 }, { "cite": "278 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561041 ], "year": 1971, "pin_cites": [ { "page": "534" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0523-01" ] }, { "cite": "256 S.E. 2d 216", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "220" } ], "opinion_index": 0 }, { "cite": "297 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571908 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "512" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0506-01" ] } ], "analysis": { "cardinality": 557, "char_count": 10510, "ocr_confidence": 0.788, "pagerank": { "raw": 5.3233794276779046e-08, "percentile": 0.33552380853092206 }, "sha256": "9c81bc96f9e2317eec3c4058752819342832b34abd0ba6e5ed64cf39c7bb413f", "simhash": "1:708ef4eb35daed50", "word_count": 1775 }, "last_updated": "2023-07-14T22:38:59.213578+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge VAUGHN and Judge Hedrick concur." ], "parties": [ "ELMORE\u2019S FEED AND SEED, INC., Plaintiff and Third-Party Plaintiff v. EDDIE PATRICK, Defendant v. RALSTON PURINA COMPANY, Third-Party Defendant" ], "opinions": [ { "text": "ARNOLD, Judge.\nBefore we decide if the summary judgment motions were properly granted here, we first answer the defendant\u2019s contention that summary judgment cannot be granted while his motion to compel discovery was pending. G.S. 1A-1, Rule 56 does not address this question.\nThe general rule for this situation was stated in Conover v. Newton, 297 N.C. 506, 256 S.E. 2d 216 (1979).\nOrdinarily it is error for a court to hear and rule on a motion for summary judgment when discovery procedures, which might lead to the production of evidence relevant to the motion, are still pending and the party seeking discovery has not been dilatory in doing so.\n297 N.C. at 512, 256 S.E. 2d at 220. Although the defendant\u2019s motion to compel discovery was pending when summary judgment was decided against him, it was not error for the trial judge to rule on the Rule 56 motions.\nFirst, the defendant was dilatory in discovery. Although the plaintiff answered his interrogatories on 7 October 1981, the plaintiff did not move to compel discovery until 12 December 1981. His motion asked for answers to only 12 of the 100 interrogatory questions.\nSecond, the defendant has not shown that further discovery would lead to the production of relevant evidence. He knew of the plaintiffs prima facie case since the 13 August 1981 deposition of Bob Elmore, but failed to allege that he was unable to obtain essential facts so as to justify more discovery as provided in G.S. 1A-1, Rule 56(f).\nIn addition, the defendant\u2019s counsel admitted at the summary judgment hearing that \u201ceverything is present, Your Honor, which would require this Court to find that there is in fact a genuine dispute of varied material facts so that the summary judgment motion should not apply.\u201d This is an admission that no further discovery was needed.\nAlthough we find that it was proper for the trial judge to reach the summary judgment question, it was error for him to grant the motions of the plaintiff and third-party defendant. There was a \u201cgenuine issue of material fact\u201d on whether the plaintiff was negligent in not informing the defendant of the change in the feed.\nSummary judgment under G.S. 1A-1, Rule 56(c) is proper when there is \u201cno genuine issue as to any material fact....\u201d It is a \u201cdrastic remedy... [that] must be used with due regard to its purposes and a cautious observance of its requirements in order that no person shall be deprived of a trial on a genuine disputed factual issue.\u201d Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E. 2d 823, 830 (1971). This remedy \u201cdoes not authorize the court to decide an issue of fact. It authorizes the court to determine whether a genuine issue of fact exists.\u201d Vassey v. Burch, 301 N.C. 68, 72, 269 S.E. 2d 137, 140 (1980) (emphasis in original). Summary judgment should be denied \u201c[i]f different material conclusions can be drawn from the evidence.\u201d Spector Credit Union v. Smith, 45 N.C. App. 432, 437, 263 S.E. 2d 319, 322 (1980).\nIn Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E. 2d 897, reh\u2019g denied, 281 N.C. 516, --- S.E. 2d --- (1972), the court defined two terms that are determinative on a summary judgment question.\nAn issue is material if the facts alleged would constitute a legal defense, or would affect the result of the action, or if its resolution would prevent the party against whom it is resolved from prevailing in the action. The issue is denominated \u201cgenuine\u201d if it may be maintained by substantial evidence.\n280 N.C. at 518, 186 S.E. 2d at 901 (emphasis added). In addition to no issue of fact being present, to grant summary judgment a court must find \u201cthat on the undisputed aspects of the opposing evidential forecasts the party given judgment is entitled to it as a matter of law.\u201d 2 McIntosh, N.C. Practice and Procedure, \u00a7 1660.5 (2d ed., Phillips Supp. 1970). See also, W. Shuford, N.C. Civil Practice and Procedure \u00a7 56-7 (2d ed. 1981).\nIt is an accepted tenet of our jurisprudence that summary judgment is rarely proper in negligence cases like the defendant\u2019s counterclaim in this case. \u201cEven where there is no dispute as to the essential facts, where reasonable people could differ with respect to whether a party acted with reasonable care, it ordinarily remains the province of the jury to apply the reasonable person standard.\u201d Moore v. Crumpton, 306 N.C. 618, 624, 295 S.E. 2d 436, 441 (1982).\nOur examination of the facts here leads us to conclude that summary judgment was improper. There is evidence in this case to link the defendant\u2019s damage to a change in the feed mixture.\nThe defendant\u2019s herd began to develop sickness in late April or early May, 1977. This was about the same time that cottonseed was added to the feed mixture. The defendant stated that his cows improved after they went off of the plaintiffs feed. Other dairy farmers who used the same feed had similar problems. Dr. Davenport made a \u201ccalculated guess\u201d that the change in feed ingredients caused the illness.\nThe plaintiff uses Davenport\u2019s statement that illness from a feed change would have occurred \u201cno later than one week after the cows first ate that feed\u201d to argue that any feed change was not the problem. We disagree.\nH. B. Turner, the production manager for Ralston Purina\u2019s Charlotte plant, stated in an affidavit that cottonseed was included in all Milk Special 20 \u201cB\u201d feed produced at that plant from 26 April through June, 1977. The plaintiff got feed from Purina\u2019s Charlotte plant and delivered it to the defendant during the April-June, 1977 period. The defendant stated that the problems with his herd began in late April or early May, 1977. This is a sufficient showing of causation to survive a summary judgment motion.\nBecause we find that there is a genuine issue of material fact in this case, we reverse the entry of summary judgment for the plaintiff and the third-party defendant and remand for a trial.\nReversed.\nChief Judge VAUGHN and Judge Hedrick concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "Lamb and Bridges, by William E. Lamb, Jr., for the defendant-appe llant.", "Horn, West & Horn, by C. A. Horn, for the plaintiff and third-party plaintiff-appellee.", "Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston, by William L. Rikard, Jr. and Sheldon Love Sturges, for the third-party defendant-appellee." ], "corrections": "", "head_matter": "ELMORE\u2019S FEED AND SEED, INC., Plaintiff and Third-Party Plaintiff v. EDDIE PATRICK, Defendant v. RALSTON PURINA COMPANY, Third-Party Defendant\nNo. 8227SC604\n(Filed 21 June 1983)\n1. Rules of Civil Procedure \u00a7 56\u2014 granting of summary judgment \u2014 pending motion to compel discovery\nIt was not error for the trial judge to rule on summary judgment motions even though a motion to compel discovery was pending since (1) the defendant was dilatory in discovery, (2) the defendant had not shown that further discovery would lead to the production of relevant evidence, and (3) the defendant\u2019s counsel admitted at the summary judgment hearing that everything necessary for the court to find on the motion was present. G.S. 1A-1, Rule 56(f).\n2. Animals \u00a7 1; Negligence \u00a7 29.1\u2014 change in cattle feed \u2014 negligence in not informing\nThe trial court improperly granted plaintiffs and third party defendant\u2019s motions for summary judgment since there was a genuine issue of material fact on whether the plaintiff was negligent in not informing the defendant of change in cattle feed since there was evidence which linked defendant\u2019s damage in lower milk production and death of some of his cows to a change in the feed mixture.\nAPPEAL by defendant from Thornburg, Judge. Judgment entered 8 February 1982 in Superior Court, Cleveland County. Heard in the Court of Appeals 20 April 1983.\nThe plaintiff brought this action to recover for unpaid cow feed that it sold to the defendant from December, 1976 to June, 1977. The defendant answered and counterclaimed for damages.\nHe alleged that the plaintiff was negligent in failing to warn him of a change in the dairy feed formulation being purchased by the defendant from the plaintiff. According to the counterclaim, the milk production of the defendant\u2019s herd dropped and some of his cows died. The defendant also sought punitive damages and treble damages for unfair and deceptive trade practices.\nThe plaintiff denied liability in its reply to the defendant\u2019s counterclaim. Ralston Purina was joined as a third-party defendant because of its possible liability for all or part of the defendant\u2019s counterclaim against the plaintiff.\nWhen the defendant bought a herd of cows in late 1976, he told Bob Elmore, the plaintiffs owner, that he wanted the cows to stay on the same Purina feed that they had been eating. It was Milk Special 20 \u201cB\u201d, a soybean-based feed sold by the third-party defendant. Although the defendant did not know it, all of the Milk Special 20 \u201cB\u201d feed produced at the third-party defendant\u2019s Charlotte plant from 26 April through June 1977 contained cottonseed as a protein ingredient.\nThe defendant was not notified that the protein base of the feed had changed from soybean to cottonseed, even though the plaintiff knew that a sudden change in feed could cause problems to dairy cows. The plaintiff never gave the defendant an ingredient ticket even though he asked for one on a number of occasions.\nThe defendant\u2019s cows first became sick around the last of April or the first of May, 1977. Some of them died in May and June. Several days after 3 June 1977, veterinarian John Davenport told the defendant to find out if there had been any change in the feed ingredients. Bob Elmore denied any changes in the feed.\nDr. Davenport indicated that a change in the protein base in the feed could have caused the problems. He stated that signs of illness from such a change would have occurred no later than one week after the cows first ate the feed. Davenport termed a link between the change in feed and the problems in the defendant\u2019s cows \u201ca calculated guess on my part.\u201d A neighboring dairy, who bought the same feed from the plaintiff as the defendant, had problems at the same time as the defendant.\nWhen the defendant began purchasing soybean-based feed from FCX on 11 June 1977, the milk production of the herd began improving.\nAfter the plaintiff answered the defendant\u2019s interrogatories and depositions were taken, a hearing was held on 8 February 1982 to decide pending summary judgment motions. The trial judge granted the summary judgment motions of the plaintiff and the third-party defendant prior to hearing the defendant\u2019s motion to compel discovery. From these rulings, the defendant appealed.\nLamb and Bridges, by William E. Lamb, Jr., for the defendant-appe llant.\nHorn, West & Horn, by C. A. Horn, for the plaintiff and third-party plaintiff-appellee.\nGrier, Parker, Poe, Thompson, Bernstein, Gage & Preston, by William L. Rikard, Jr. and Sheldon Love Sturges, for the third-party defendant-appellee." }, "file_name": "0715-01", "first_page_order": 747, "last_page_order": 752 }