No. 85CA1457Colorado Court of Appeals.
Decided September 21, 1989. Prior Opinion Announced July 27, 1989 Withdrawn. Petition for Rehearing of American Plant Food Granted September 21, 1989. Petition for Rehearing of Stone’s Farm Supply, Inc. Denied September 21, 1989. Rehearing Denied October 26, 1989. Certiorari Granted April 2, 1990 (89SC574).
Certiorari Granted on following issues: Whether the Court of Appeals erred in holding that the the trial court lacked subject matter jurisdiction under § 13-21-402, 6A C.R.S. (1987), to hold respondent/cross-respondent strictly liable for damages sustained by respondents/cross-petitioners because it was not the manufacturer under the statute and the respondents/cross-petitioners failed to demonstrate that jurisdiction could not be obtained over the manufacturer. Whether the Court of Appeals erred in reversing the trial court’s judgment finding respondent/cross-respondent liable for damages sustained by respondents/cross-petitioners on the theories of strict liability and negligent manufacturing. Denied as to all other issues.
Appeal from the District Court of Rio Grande County Honorable O. John Kuenhold, Judge
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Lucero, Kadinger Lester, Carlos F. Lucero, Helen Sigmond, for Plaintiffs-Appellees and Cross-Appellants S.G. Deacon; Hildorn, Inc.; Bond-Metz Farms, Inc.; Kenneth Metz; Robert Metz; and Ronald Peterson.
Sherman Howard, Joseph J. Bronesky, for Defendant-Appellant and Cross-Appellee American Plant Food Corporation.
Rector, Retherford, Mullen Johnson, J. Stephen Mullen, Neil C. Bruce, Michael R. Waters, for Defendant-Appellant and Cross-Appellee Stone’s Farm Supply, Inc.
Division III.
Opinion by CHIEF JUDGE KELLY.
[1] The defendants, American Plant Food Corporation and Stone’s Farm Supply, Inc., appeal the judgment of the trial court awarding damages to the plaintiffs for injury to their potato crops. American argues, among other things, that the trial court erred in finding it strictly liable for the plaintiffs’ injuries. Stone’s contends that the trial court erred in applying the doctrine of negligence per se, and in finding that Stone’s breached the implied warranties of merchantability and fitness for a particular purpose. Stone’s further asserts that the trial court erred in setting the date for calculation of prejudgment interest. [2] The plaintiffs cross-appeal asserting that the trial court erred in dismissing their breach of express warranty claim and in awarding inadequate damages. In addition, the plaintiffs argue that Stone’s appeal is frivolous and should be dismissed with sanctions. We affirm in part and reverse in part.Page 863
[3] In the spring of 1980, each plaintiff purchased fertilizer from Stone’s, the components of which were supplied by four other companies and mixed by Stone’s. American was the distributor for the manufacturer of one of the chemical components of the fertilizer. Stone’s, prior to mixing the fertilizer, tested each plaintiff’s soil to determine his needs and recommended a specific fertilizer blend for each. [4] Fertilizer was first applied prior to planting the potatoes and a second time when the plants emerged from the ground. During the growing season, the plaintiffs noticed that their crops were not developing normally. They observed crinkling and yellowing of leaves, excessive vine growth, and misshapen and undersized potato tubers. [5] The plaintiffs contacted the president of Stone’s, who visited their fields and notified its suppliers of the problems. Numerous agronomists examined the plants, and took soil and fertilizer samples. They reached differing conclusions as to the cause of the damage, but most agreed that herbicide contamination of the plaintiffs’ fertilizer was likely. [6] The plaintiffs sued Stone’s and its suppliers, alleging that Stone’s had negligently supplied herbicide-contaminated fertilizer and that it had breached its express and implied warranties. They also alleged that Stone’s suppliers had negligently manufactured the components, and that they had breached their express warranties. All defendants except Stone’s and American were ultimately absolved of liability. I.
[7] American asserts that the trial court erred by finding it strictly liable for the plaintiffs’ injuries. We agree.
II. A.
[11] Stone’s contends that the trial court erred in finding it liable solely on the basis of negligence per se because it violated § 35-12-112, C.R.S. (1984 Repl. Vol. 14). We disagree.
(Colo.App. 1982). [13] The Commercial Fertilizer, Soil Conditioner, Plant Amendment, and Agricultural Liming Material Act, § 35-12-101, et seq., C.R.S. (1984 Repl. Vol. 14), reflects a legislative intent to protect consumers against the manufacture and sale of fertilizers containing harmful ingredients. It imposes a broad duty upon distributors of commercial fertilizer without regard to their knowledge of the contamination. [14] Section 35-12-112(1)(a), C.R.S. (1984 Repl. Vol. 14) provides that:
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[15] “No person shall distribute an adulterated product. A commercial fertilizer . . . is deemed adulterated: (a) If it contains any deleterious or harmful ingredient in sufficient amount to render it injurious to beneficial plant . . . life, when applied in accordance with directions for use on the label . . . .” [16] A distributor is defined as any person who sells commercial fertilizer in Colorado. Section 35-12-103(12), C.R.S. (1984 Repl. Vol. 14). [17] The trial court found that Stone’s distributed fertilizer contaminated with herbicides which injured the plaintiffs’ crops. As buyers of commercial fertilizer, the plaintiffs are within the class of persons to be protected by § 35-12-112. See White v. Rose, 241 F.2d 94(10th Cir. 1957) (buyers of livestock feed are within the class of persons to be protected by act regulating the sale of commercial feeding stuffs). Accordingly, the finding that Stone’s violated § 35-12-112 was sufficient to impose liability on it. [18] Stone’s contention that there was insufficient evidence of causation is without merit. The trial court found, on supporting evidence, that the herbicide-contaminated fertilizer was the proximate cause of the plaintiffs’ injuries. We will not disturb this finding on appeal. See Bloxsom v. San Luis Valley Crop Care, Inc., 198 Colo. 113, 596 P.2d 1189
(1979).
B.
[19] Stone’s argues that the trial court erred in imposing liability for breach of the implied warranties of merchantability and fitness for a particular purpose. We disagree.
C.
[22] Stone’s asserts that the trial court erred in selecting the date from which prejudgment interest would accrue. Stone’s argues that prejudgment interest should accrue only from the time of “wrongful withholding” which, it contends, does not occur until a creditor makes a demand for payment that is refused. Further, Stone’s argues that the plaintiffs here did not make such a demand until the filing of their claim. We do not agree.
(Colo.App. 1986) and W. H. Woolley Co. v. Bear Creek Manors, 735 P.2d 910 (Colo.App. 1986), cited by Stone’s, do not change that rule. In those cases, a wrongful withholding did not occur until a demand for payment was made because such a demand was an element of the claims asserted. [25] In this case, however, a demand for payment is not an element of the plaintiffs’ claim. Thus, the plaintiffs are entitled to prejudgment interest from the time their actions accrued, that is, from the time their damages occurred. The trial court chose January 1, 1981, as the date that the plaintiffs’ damages occurred. There is support in the record for that conclusion; thus, we will not reverse it. See Martinez v.
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Continental Enterprises, 730 P.2d 308 (Colo. 1986).
III. A.
[26] We reject the plaintiffs’ contention on cross-appeal that the trial court erred in refusing to find that the defendants breached an express warranty. Whether a statement constitutes a warranty is an issue of fact Palmer v. A. H. Robins Co., 684 P.2d 187 (Colo. 1984). Here, the trial court found, on supporting evidence, that the only warranties in this transaction were the implied warranties given by Stone’s. Accordingly, it properly denied recovery on an express warranty theory. See Martinez v. Continental Enterprises, supra.
B.
[27] The plaintiffs assert that the trial court erred by refusing to award them the cost of their fertilizer. We disagree.
C.
[30] Two of the plaintiffs argue that they received inadequate damages. We disagree. The trial court constructed formulae different from those advanced by plaintiffs to calculate the damages to Hildorn, Inc., and Bond-Metz Farms. Because there is support in the record for the trial court’s formulae, we will not set aside these awards. See Allison v. Smith, 695 P.2d 791 (Colo.App. 1984).
D.
[31] We do not agree that the trial court erred by not allowing recovery for alleged losses in 1981. The trial court found that there was no evidence that the contaminants found by the testing in 1980 would have been harmful to the potato crops in 1981. This factual finding was within the trial court’s discretion. The trial court’s finding regarding the plaintiff’s comparative negligence was unnecessary in light of its finding that the evidence did not support a claim for damages in 1981; thus, we need not address that finding.
E.
[32] We also do not agree that the appeal by Stone’s is frivolous and should be dismissed with sanctions. An appeal is frivolous only if the proponent can present no rational argument based on the evidence or law in support of its appeal. Mission Denver Co. v. Pierson, 674 P.2d 363 (Colo. 1984). We cannot conclude that Stone’s, although unsuccessful, presented no rational argument. Accordingly, we decline to dismiss the appeal or to impose sanctions.
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