EISMANN, Justice.
This is an appeal out of Canyon County from a judgment dismissing claims against the person who sold a steer for slaughter that was later contaminated with E. coli bacteria by the slaughterer and against the persons to whom the slaughterer delivered the carcass for processing into packages of meat. We affirm the judgment of the district court.
Patty Anderson agreed to sell a 4-H steer for her eighteen-year-old granddaughter Danielle Bryant, who had purchased and raised the steer. Ms. Anderson placed an ad on Craigslist, and Joseph Deiter responded to the ad, but he only wanted to purchase one-half of the steer. He and Ms. Anderson communicated regarding various issues, and she ultimately prepared a handwritten contract ("Deiter Contract"), which they both signed. The contract provided:
Once Mr. Deiter had paid the $100.00 deposit and returned the signed contract, Ms. Anderson then had to find someone who was willing to purchase the other half of the steer before it was slaughtered. She placed another ad on Craigslist seeking a purchaser for the other half of the steer. A Mrs. Kirk responded to that ad, paid a $100.00 deposit, and signed a handwritten contract dated August 17, 2010, that had been prepared by Ms. Anderson.
Ms. Anderson contacted Donald Janak, who along with his wife own Janak, Inc., a mobile slaughtering business. He was asked to slaughter the steer on behalf of Mr. Deiter and Mrs. Kirk and to deliver the carcass to Don's Meats, which was a custom meat processing business that was owned and operated by Donald and Sharon Coons and their daughter Penny Coons. Mr. Janak and an employee of Janak, Inc., went to Ms. Anderson's property, where Ms. Anderson's ex-husband delivered possession of the steer to Mr. Janak. Mr. Janak and the employee slaughtered and skinned the steer, cut the carcass in half down the middle, and delivered the two halves of the carcass to Don's
On January 9, 2012, the Deiters filed this action against Ms. Anderson, Mr. Janak and his corporation, and the Coonses. Ms. Anderson filed a motion for summary judgment as to the claims against her, and, after briefing and argument, the district court granted her motion. The Deiters filed a motion for reconsideration, but the court denied their motion. The Coonses moved for summary judgment as to the claims against them and, after briefing and argument, the district court granted their motion. The Deiters settled with Mr. Janak and Janak, Inc., and they appealed the judgment in favor of Ms. Anderson and the Coonses. After oral argument, this Court requested that the parties submit additional briefing on the issue of when title to the steer passed under the Uniform Commercial Code, and the parties did so.
In their complaint, the Deiters alleged various theories of liability against Ms. Anderson, but the only theory they argue on appeal is that she was negligent per se for violating the Federal Meat Inspection Act, specifically 21 U.S.C. § 610(c). They argued to the district court that she violated the act because she sold adulterated meat; the steer was slaughtered under insanitary conditions; and she did not sell, slaughter, or prepare the steer for her own use. On appeal, the Deiters argue additional alleged violations of the Act that they contend would be a basis for a finding of negligence per se. Because those additional theories were not argued in the district court, we will not consider them on appeal. "An appellant is bound by the issues and theories upon which the case was tried below. Although a judgment may be sustained upon any legal theory, a new theory cannot be employed on appeal to attack the judgment." Clements Farms, Inc. v. Ben Fish & Son, 120 Idaho 185, 207, 814 P.2d 917, 939 (1991).
The Deiters argued to the district court that Mr. Anderson was negligent per se for violating section 610(c) of the Act, which provides:
In order to violate this provision, Ms. Anderson would have had to "sell, transport, offer for sale or transportation, or receive for transportation, [the described articles] in commerce." When initially enacted, the Act did not apply to intrastate transactions. The word "commerce" was defined to mean only interstate transactions. 21 U.S.C. § 601(h). The Act was later amended to permit the Secretary of Agriculture to designate a State as one in which the Act applies to operations and transactions wholly within the State if it has failed to develop or is not enforcing requirements equal to those imposed by the Act. 21 U.S.C. § 661(4)(c)(1). The Secretary designated Idaho as subject to the Act in 1981. Designation of the State of Idaho under
Ms. Anderson was acting as an agent for her granddaughter throughout these transactions. There is a factual dispute as to whether Mr. Deiter was so informed, but that dispute is immaterial. Being an agent of an undisclosed principal would make her liable on the contract, Agrisource, Inc. v. Johnson, 156 Idaho 903, 908, 332 P.3d 815, 820 (2014), but in this case it does not change the analysis with respect to liability.
Ms. Anderson was not liable because under the Idaho Uniform Commercial Code, title to the steer passed to Mr. Deiter and Mrs. Kirk when possession was transferred to Mr. Janak. The Deiters contend that they did not purchase the steer; they only purchased the meat that was to be derived from the steer. They argue that the contract uses the word "beef," which means the meat from the steer, not the steer itself. The word "beef" can mean "the flesh of a cow, steer, or bull raised and killed for its meat" or "an adult cow, steer, or bull raised for its meat." Random House, Inc. http://www.dictionary.com/browse/beef (accessed: March 28, 2017). The Deiter Contract unambiguously used the word "beef" to mean an adult steer raised for meat.
The contract stated that Mr. Deiter purchased "1/2 of a beef in (carcass weight)." It was one-half of "a beef" that he contracted to purchase. (Emphasis added.) The use of the singular "a" indicates that he purchased one-half of an object. The contract then states, "Once the beef has been killed and delivered to Don's Meat in Emmett, ID, the carcass weight will be known...." Only something living could be killed. The steer was living, the meat later derived from the carcass was not living and could not be killed. The words "the beef" could only refer to the "beef" in the preceding sentence, which is the one-half of a beef that Mr. Deiter contracted to purchase. Selling a live steer that is to be butchered and sold by carcass weight does not indicate that it is only the resulting processed meat that is being sold. Therefore, the contract unambiguously states that Mr. Deiter purchased one-half of the steer that was to be killed and that the purchase price was to be determined based upon the carcass weight of the steer after it was slaughtered and delivered to Don's Meats.
Idaho Code section 28-2-401(2) provides, insofar as is relevant, "Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods...." There was no explicit agreement that title to the steer would pass at any time other than when Ms. Anderson completed her performance with reference to the physical delivery of the steer. Therefore, title passed when she completed that performance.
Idaho Code section 28-2-308(a) states that unless otherwise agreed "the place for delivery of goods is the seller's place of business or if he has none his residence." It is undisputed that Mr. Janak went to Ms. Anderson's residence where the steer was being held to take possession of the steer so he could slaughter it. Upon taking possession of the steer, Mr. Janak and the employee slaughtered it and then delivered the steer carcass to Don's Meats.
Under the Deiter Contract, it is clear that the carcass was to be delivered to Don's Meats. The contract states, "Once the beef has been killed and delivered to Don's Meat in Emmett, ID, the carcass weight will be known and Sharon Coons (owner of Don's Meat) will tell us what that weight is." Ms. Anderson instructed Mr. Janak that after he had slaughtered the steer, he was to deliver the steer carcass to Don's Meats. Mr. Deiter and Mrs. Kirk became owners of the steer when Mr. Janak took possession of it. At that point Ms. Anderson had "complete[d] h[er] performance with reference to the physical delivery of the goods." I.C. § 28-2-401(2).
I.C. § 28-2-401(2). Subsection (a) states when title passes for shipment contracts and subsection (b) states when title passes under destination contracts.
Under the shipment contract, the seller delivers the goods to a third party to transport the goods to the place required under the contract, and title passes when the goods are delivered to the person who will transport them. "The effect of the [Uniform Commercial] Code is that in the `shipment' contract, the most commonly used method, delivery to the carrier is delivery to the buyer." 67 Am. Jur. 2d Sales § 480 (2014). "`A delivery by direction of the buyer to a third person as intermediary to ship the goods is a good delivery to the buyer.'" Adams v. H & H Meat Products, Inc., 41 S.W.3d 762, 773 (Tex. App. 2001). Therefore, when Ms. Anderson delivered possession of the steer to Mr. Janak, who was then to slaughter it and transport the carcass to Don's Meats, title to the steer passed to Mr. Deiter and Mrs. Kirk.
"The `shipment' contract is regarded as the normal one, and the `destination' contract is regarded as the variant." 67 Am. Jur. 2d Sales § 479 (2014). If terms such as "F.O.B. the place of shipment" or "F.O.B. the place of destination" are not used in the contract "and there has been no specific agreement to the contrary, a contract for the transportation of goods by carrier will be presumed to be a `shipment' contract." Id. Thus, the Deiter Contract is a shipment contract if the contract did not have a specific agreement making it a destination contract.
Idaho Code section 28-2-503 deals with the manner of the seller's tender of delivery. Subsection (2) of the statute refers to delivery under a shipment contract, and subsection (3) deals with delivery under a destination contract. The Official Comment to the statute provides some explanation as to the difference between the two. It states:
(Emphases added.)
As stated in the comment, the prior uniform law provided that a contractual provision requiring the seller to pay the cost of transporting the goods to the buyer made the contract a destination contract, but the current version of the Uniform Commercial Code was specifically intended to negate that rule. Thus, the facts that Ms. Anderson paid Mr. Janak's fee and had him deliver the steer carcass to Don's Meats did not make this contract a destination contract. Likewise, a provision as to where the goods are to be shipped does not make the contract a destination contract. As stated in American Jurisprudence Second,
67 Am. Jur. 2d Sales § 480 (2014) (emphasis added).
"Thus a `ship to' term has no significance in determining whether a contract is a shipment or destination contract for risk of loss purposes. Other buyers have occasionally argued that the `ship to' term made the contract into a destination contract. Courts have properly rejected this argument." Eberhard Mfg. Co. v. Brown, 61 Mich.App. 268, 232 N.W.2d 378, 380 (1975). Likewise:
Pestana v. Karinol Corp., 367 So.2d 1096, 1100 (Fla. Dist. Ct. App. 1979) (citations omitted).
The Deiter Contract did not expressly require Ms. Anderson to deliver the steer or the steer carcass to any place. "The parties must explicitly agree to a destination contract; otherwise the contract will be considered a shipment contract." Id. at 1099. There was nothing in the contract regarding risk of loss if the carcass was taken to the wrong place. The contract stated, "Once the beef has been killed and delivered to Don's Meat in Emmett, ID, the carcass weight will be known and Sharon Coons (owner of Don's Meat) will tell us what that weight is." The contract certainly contemplated that the steer carcass would be delivered to Don's Meats, but it did not state who was to deliver it, nor did it include any provision regarding the risk of loss if it was not delivered to Don's Meats.
Because the contract in this case was a shipment contract, title passed to Mr. Deiter and Mrs. Kirk at the time and place that Ms. Anderson completed her performance with reference to the physical delivery of the goods. I.C. § 28-2-401(2). Once possession of the steer was delivered to Mr. Janak, there was nothing more for Ms. Anderson to do under the contract with respect to the physical delivery of the goods. She thereafter never had possession of the steer or its carcass. She had completed all that she was to do.
Mr. Janak had agreed to transport the carcass to Don's Meats, where the Deiters were to pick up their portion of the meat after it was processed. As the contract stated, "When the meat has been cut + wrapped by Don's Meat Joseph and Melinda Deiter will pay Sharon Coons 45¢ lb for that service and will pick up their half of the beef." (Emphasis added.) Once Ms. Anderson delivered possession of the steer to Mr. Janak, Mr. Deiter became the owner of a one-half interest in the steer, and Mrs. Kirk became the owner of the other one-half interest.
The Deiters argued in the district court that Ms. Anderson was not exempt from the provisions of the Federal Meat Inspection Act because she did not sell, slaughter, or prepare the steer for her own use. She did not sell, slaughter, or prepare the meat. She sold a steer, and when it was slaughtered and the carcass prepared, Mr. Deiter and Ms. Kirk were the owners of the steer and its carcass.
The Deiters argued to the district court that Ms. Anderson violated the Federal Meat Inspection Act because she sold or offered for sale, in commerce, articles which were capable for use as human food and which were adulterated at the time of the sale or offer for sale as proscribed by 21 U.S.C. § 610(c). The steer was not "capable of use as human food" as that term is used 21 U.S.C. § 610(c). That term does not apply to a live animal. It would have to be "any carcass, or part or product of a carcass, of any livestock." 9 CFR § 301.2(l). It was also not adulterated at the time of the sale.
Finally, the Deiters argued in the district court that Ms. Anderson violated the Federal Meat Inspection Act because the steer was slaughtered under insanitary conditions. A carcass would be adulterated under the Act if the steer was slaughtered in insanitary conditions. 21 U.S. Code § 601(l) & (m)(4). However, she was not the owner of the steer when that occurred.
We uphold the judgment of the district court dismissing this action as to Ms. Anderson. The Deiters have not shown that there was any genuine issue of material fact regarding their claim that she was negligent per se for violating provisions of the Federal Meat Inspection Act.
In their complaint, the Deiters alleged various theories of liability against the Coonses, but the only theories they argue on appeal is that the Coonses were negligent per se based upon their violation of various provisions of the Federal Meat Inspection Act. With respect to that Act, the Deiters argued to the district court that the Coonses were negligent per se for violating subsections (a), (c), and (d) of 21 U.S.C. § 610.
Subsection (a), (c), and (d) of 21 U.S.C. § 610 provide:
In their initial brief opposing the Coonses' motion for summary judgment, the Deiters contended that the Coonses violated the Federal Meat Inspection Act
With respect to their first reason, the Deiters did not point to any provision of the Federal Meat Inspection Act that the Coonses allegedly violated other than "`receiv[ing] for transportation' any beef that is `adulterated or misbranded at the time of such ... receipt for transportation' or receive for transportation `any articles required to be inspected under this subchapter'" and "commit[ting] any act while beef is being held for sale after transportation which is intended to cause or has the effect of causing such articles to be misbranded." The district court held that the Deiters had not presented any
Finally, the Deiters argued that the meat was not exempt from the inspection requirements because the Coonses did not prepare the meat for Ms. Anderson, whom they contend was the owner, but they prepared the meat for the Deiters and the Kirks. The Deiters stated as follows:
Based upon the portion of the statute they emphasized, they asserted, "Because the Coons Defendants were not preparing the steer and its meat exclusively for use in the household of Patty Anderson, for use in their own household, or for use in the household of their employees, they were in violation of the Federal Meat Inspection Act." They further explained that "the Coons Defendants knew they were doing the butchering work for two families, the Deiter family and the Kirk family — clearly not the owners of the cow." As explained above, Ms. Anderson was not the owner of the steer when it was slaughtered, nor was she the owner of the carcass when it was delivered to Don's Meats. Mr. Deiter and Mrs. Kirk were the owners. Thus, the Deiters' argument that Don's Meats was not a custom exempt facility was erroneous.
In their supplemental brief filed in opposition to the Coonses' motion for summary judgment, the Deiters contended that the Coonses violated the Federal Meat Inspection Act
The inspections required by the Federal Meat Inspection Act are an antemortem inspection "of all amenable species before they shall be allowed to enter into any slaughtering, packing, meat-canning, rendering, or similar establishment, in which they are to be slaughtered and the meat and meat food products thereof are to be used in commerce," 21 U.S.C. § 603(a), and a postmortem inspection "of the carcasses and parts thereof of all amenable species to be prepared at any slaughtering, meat-canning, salting, packing, rendering, or similar establishment." 21 U.S.C. § 604.
21 U.S.C. § 623(a) exempts custom exempt facilities from the "provisions of this subchapter requiring inspection of the slaughter of animals and the preparation of the carcasses, parts thereof, meat and meat food products at establishments conducting such operations for commerce." As stated above, the Deiters contended that this exemption did not apply because the meat was not prepared for the owner, Ms. Anderson, but instead for the Deiters and the Kirks. Thus, their assertions that the meat had not been inspected as required by the Federal Meat Inspection Act fails under the Deiters' argument.
It also fails because the Deiters did not present any evidence that either the
In their motion for summary judgment, the Coonses contended that "Plaintiffs are unable to prove proximate causation." Absent evidence as to the nature of the inspection and whether it could detect the presence of E. coli bacteria, the Deiters have not presented any evidence to show a causal connection between any alleged failure to have an antemortem or postmortem inspection and their injuries. The Deiters have not shown that there was any genuine issue of material fact supporting the requirement that they establish that the failure to have the inspections caused their injuries.
Finally, the Deiters alleged in the district court that the Coonses misbranded the meat by "labeling meat as `Not for Sale' when in fact it is for sale." As explained above, the Coonses did not sell the meat or hold it for sale. They were paid only to process it. When the carcass was delivered to Don's Meats, it was owned by the Deiters and the Kirks and they retained ownership of the meat. The Coonses were only paid for processing it.
As with Ms. Anderson, the district court held that "commerce" did not apply to intrastate transactions when ruling on the Coonses' motion for summary judgment. "When the trial court reaches the correct result by an erroneous theory, we will affirm the result on the correct theory." Stapleton v. Jack Cushman Drilling & Pump Co. Inc., 153 Idaho 735, 740, 291 P.3d 418, 423 (2012). We therefore affirm the judgment dismissing the complaint as to the Coonses.
On appeal, the Deiters argue additional theories that they contend would support a claim against the Coonses for negligence per se, but we will not consider them because they were not argued in the district court. "An appellant is bound by the issues and theories upon which the case was tried below. Although a judgment may be sustained upon any legal theory, a new theory cannot be employed on appeal to attack the judgment." Clements Farms, Inc., 120 Idaho at 207, 814 P.2d at 939.
Both Ms. Anderson and the Coonses request an award of attorney fees on appeal pursuant to Idaho Code section 12-121. "In normal circumstances, attorney fees will only be awarded when this court is left with the abiding belief that the appeal was brought, pursued or defended frivolously, unreasonably or without foundation." Minich v. Gem State Developers, Inc., 99 Idaho 911, 918, 591 P.2d 1078, 1085 (1979). We do not find that this appeal was brought or pursued frivolously, unreasonably, or without foundation. Therefore, we will not award them attorney fees on appeal.
We affirm the judgment of the district court, and we award Respondents costs, but not attorney fees, on appeal.
Justice HORTON and Justice Pro Tem WALTERS concur.
I concur with the majority insofar as it affirms summary judgment to Anderson. I write separately to respectfully dissent from the majority's analysis in Part III, where it affirms summary judgment to the Coonses.
As the majority correctly recites, the Deiters asserted the Coonses violated the Federal Meat Inspection Act (FMIA) in three main ways:
The shortcomings of the majority's analysis emerge when the Deiters' first argument is addressed. The majority overlooks how the FMIA defines "prepare" to mean "slaughtered, canned, salted, rendered, boned, cut up, or otherwise manufactured or processed." 21 U.S.C. § 601(l). Indeed, the majority never acknowledges the FMIA's broad definition of "prepare." As a result, the majority is led to sidestep the Deiters' argument, raised before the district court, triggering the FMIA's broad definition of "prepare" — i.e., that "the Coons Defendants clearly dealt with `adulterated' beef that they further processed into steaks, roasts, and ground beef." That assertion, if true, would indicate a violation of 21 U.S.C. § 610(a). But perhaps most critical in this regard, the district court made no finding as to whether the Coonses "prepared" the beef in violation of the FMIA, and I would therefore adhere to precedent and refrain from doing so on appeal. Cf. Boise Tower Assocs., LLC v. Hogland, 147 Idaho 774, 784, 215 P.3d 494, 504 (2009) (remanding case for resolution of issues the district court never reached).
Further, I cannot agree with the majority's conclusion that "the Deiters' argument that Don's Meats was not a custom exempt facility was erroneous." 21 U.S.C. § 623 governs exemptions and specifically exempts "[p]ersonal slaughtering and custom slaughtering for personal, household, guest, and employee uses." That provision states:
21 U.S.C. § 623(a). Thus, the above furnishes three situations in which the slaughter and preparation of meat are exempt. The Coonses argue they are exempt as a custom operation under the third situation, which exempts:
Id. Distilled, the plain language of this exemption covers entities that prepare meat slaughtered by any person of cattle of his own raising, which was delivered by the owner of the beef for custom preparation that is exclusively for the owner's household use. In other words, two main requirements must be met for the Coonses to fit this exemption: (1) the same person who raised the beef must have slaughtered it; and (2) the owner must have delivered it to the Coonses for processing for the owner's exclusive household use.
Both requirements are lacking in this case. First, the same person who raised the beef did not slaughter it. Instead, Anderson recruited Janak, Inc., a mobile slaughtering business, to slaughter the beef after it had already been raised. Second, the owner of the beef did not deliver it to the Coonses. Rather, Janak, Inc. delivered the beef to the Coonses after the slaughter. And, at that time, the Deiters owned the beef, not Janak, Inc. Thus, the custom exemption does not apply to the Coonses.
Finally, the majority maintains that summary judgment is properly affirmed because the Deiters have presented no evidence of proximate cause. Given this Court's clearly defined role under Article 5, Section 9 of the Idaho Constitution "to review, upon appeal, any decision of the district court[ ]," I would refrain from reaching the issue of proximate cause. The district court never reached the issue of proximate cause; therefore, no decision on that issue exists for this Court to review. This Court has so held in the past, and today should be no different. E.g., Ada Cty. Highway Dist. v. Total Success Invs., LLC, 145 Idaho 360, 368, 179 P.3d 323, 331 (2008) ("This Court does not review an alleged error on appeal unless the record discloses an adverse ruling forming the basis for the assignment of error."). In any event, unlike the majority, I do not believe we are equipped to resolve proximate cause as a matter of law in this case. None of the Coons' proximate cause arguments are properly suited for a negligence per se causation analysis — i.e., whether the Coonses violated the FMIA, and if so, whether that violation caused the Deiters' injuries.
For the above reasons, I am unable to join Part III of the majority's opinion.
Justice J. Jones, Pro Tem concurs.
