Nutrien Ag Solutions, Inc. v. Simmons

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

NUTRIEN AG SOLUTIONS, INC., )

f/k/a CROP PRODUCTION )

SERVICES, INC. )

)

Plaintiff, )

)

v. ) CASE NO. 2:19-CV-614-WKW

) [WO]

FRANKLIN BRUCE SIMMONS, III, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Franklin Bruce Simmons, III, has been farming for three decades. In 2018,

he moved his farming operations from Ohio to Alabama and settled on more than a

thousand acres in Montgomery County. He had high hopes for a high soybean yield,

but unseasonably rainy weather at harvest time ruined most of his crop. Without a

cash crop, he became delinquent on his credit account with Nutrien Ag Solutions,

Inc., formerly known as Crop Production Services, Inc. (“Nutrien” or “CPS”).

Nutrien brought this suit against Mr. Simmons to recoup the debt for the soybean

seeds and for other agricultural products and services. Mr. Simmons raised the

defense of fraud in the inducement to enter into the credit agreement. He also

counterclaimed for negligent and reckless misrepresentation pertaining to several

side agreements he says he entered into with Nutrien’s sales representative.

At the conclusion of discovery, Nutrien moved for summary judgment,

requesting entry of judgment in its favor for the debt and on the counterclaims. (Doc.

# 37.) That motion, which is opposed, has been fully briefed. (Docs. # 38, 41, 44.)

After careful consideration of the arguments, evidence, and the law, the court finds

that Nutrien’s motion for summary judgment is due to be granted.

I. JURISDICTION AND VENUE

Subject matter jurisdiction is proper pursuant to 28 U.S.C. § 1332. Personal

jurisdiction and venue are uncontested.

II. STANDARD OF REVIEW

To succeed on a motion for summary judgment, the moving party must

demonstrate that “there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court views

the evidence, and all reasonable inferences drawn therefrom, in the light most

favorable to the nonmoving party. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820

(11th Cir. 2010).

The party moving for summary judgment “always bears the initial

responsibility of informing the district court of the basis for the motion.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). This responsibility includes identifying

the portions of the record illustrating the absence of a genuine dispute of material

fact. Id. Alternatively, a movant who does not have a trial burden of production can

assert, without citing the record, that the nonmoving party “cannot produce

admissible evidence to support” a material fact. Fed. R. Civ. P. 56(c)(1)(B); see also

Fed. R. Civ. P. 56 advisory committee note (“Subdivision (c)(1)(B) recognizes that

a party need not always point to specific record materials . . . . [A] party who does

not have the trial burden of production may rely on a showing that a party who does

have the trial burden cannot produce admissible evidence to carry its burden as to

the fact.”).

If the movant meets its burden, the burden shifts to the nonmoving party to

establish—with evidence beyond the pleadings—that a genuine dispute material to

each of its claims for relief exists. Celotex Corp., 477 U.S. at 324. A genuine dispute

of material fact exists when the nonmoving party produces evidence allowing a

reasonable fact finder to return a verdict in its favor. Waddell v. Valley Forge Dental

Assocs. Inc., 276 F.3d 1275, 1279 (11th Cir. 2001).

III. BACKGROUND

A. The Parties

Nutrien is a provider of crop inputs and agricultural services for farmers.

Nutrien employed Brad Smith as a sales representative. Mr. Simmons conducted

business with Mr. Smith for his farming products and services, and Mr. Smith was

the sales representative responsible for Mr. Simmons’s account with Nutrien.

Mr. Simmons is an experienced farmer, having farmed for more than thirty

years. He also has a Ph.D. in Economics, a J.D., an LLM, and a Master’s in

Theology. (Def. Dep., at 14, 23, 25, 29.)

B. The Written Contract and Invoices

In 2018, Mr. Simmons entered into a commercial credit agreement with

Nutrien for the purchase of soybean seeds, chemicals, and fertilizer for 1,100 acres.

This agreement, titled a “Customer Profile,” included Mr. Simmons’s business,

financial, and farming information and incorporated the terms and conditions of the

credit agreement. Under the agreement, which had a credit limit of $100,000, Mr.

Simmons established a single account based on his written guaranty of the account

with Nutrien. The guaranty provided that Mr. Simmons

guarantee(s) the payment . . . and assume(s) personal liability for the

payment . . . of all obligations due and owing CPS for products and

services to Applicant(s) pursuant to this request for credit. . . . This

guaranty is absolute, unconditional, and continuing and shall remain in

effect until Applicant’s (s’) obligations have been paid, performed, and

discharged in full.

(Doc. # 1-1, at 2 (henceforth “the Contract”).) The Contract further provided that

“[t]he terms of payment will be specifically indicated on your invoices.” (Doc. # 1-

1, at 3.) The invoices set out that payment was due in full, and typically it was

“payable on the 10th of the month following the statement date.” (See, e.g., Doc.

# 38-1, at 14.) Payments not made “by the 25th of the month following the statement

date” incurred a five percent late fee. (See, e.g., Doc. # 38-1, at 14.) Both the

Contract and the invoices provided that any invoice not paid in full by the due date

also would be assessed a finance charge. The maximum finance charge was 18%

per year (1.5% monthly). (Contract, at 3.) Under the Contract, Mr. Simmons further

agreed to pay Nutrien’s reasonable attorneys’ fees, plus all costs of collection.

(Contract, at 2.) In his counterclaim, Mr. Simmons admits that he signed the

Contract.1 (Doc. # 11, at 7 (“Simmons executed the Customer Profile, which is

attached to the Complaint as ‘Exhibit A.’”).)

C. Mr. Simmons’s 2018 Soybean Crop

According to Mr. Simmons’s testimony, in late June 2018, Mr. Smith told him

that farmers “only plant long season beans in Alabama.” (Def. Dep., at 131.) Mr.

Smith recommended that Mr. Simmons plant “long season” (also called “full

season”) soybean seeds and assured him that the conditions for harvesting the

soybeans would be dry enough in November to ensure a successful crop.2 (Def.

Dep., at 131, 187.) That turned out not to be the case.

1 There is some confusion in the record as to the date Mr. Simmons signed the Contract—

whether he signed it in April 2018 or whether he signed it in July 2018 and backdated it to April

2018. His summary judgment response confirms though that there is no dispute that he signed the

Contract: “Whether Simmons signed the CPS customer profile in April or July of 2018 is not

relevant to the outcome of this case because Simmons admits that he signed the customer profile

in July 2018.” (Doc. # 41, at 8 n.3.)

2 Nutrien contests the use of the nomenclature as “full season” or “long season” soybean

seed. It is undisputed that Nutrien sold Simmons a Group 5 maturity soybean, which Mr. Simmons

calls a “full season” or “long season” seed, but that Mr. Simmons contends that Nutrien should

have sold him Group 1.8 or 1.9 maturity soybean seeds, which Mr. Simmons calls “short season”

seeds. (Def. Dep., at 131; Def. Dep., at 183 (testifying that “long season” soybean seed in Alabama

includes Groups 5, 6, and 7; Smith Dep. at 77–78).) Because Mr. Simmons incorporates “full

Mr. Simmons planted “full season” soybean seeds on his farm. But November

2018 averaged more rain than expected. (Doc. # 38-8, at 6.) The wet harvest season

ruined most of the soybean crop, and Mr. Simmons was able to successfully harvest

only 101 acres of the soybeans planted. (Doc. # 11, at 8.) As a result, Mr. Simmons

did not generate enough cash to pay Nutrien for the fertilizer, chemicals, and soybean

seed in December. (Doc. # 11, at 8.)

D. The Unpaid Invoices

In 2018, during the soybean planting and harvest season, Nutrien sold and

delivered soybean seeds, fertilizers, chemicals, and services to Mr. Simmons for his

farming operations through a series of orders and deliveries. Each sale or service

and the amount due was set out on an invoice issued by Nutrien. (Doc. # 38-1.)

Fifteen invoices remain unpaid, with a principal balance totaling $110,746.89. The

statement dates on the unpaid invoices range from June 25, 2018, to August 6, 2018.

(See Doc. # 38-1, at 11–26.) These invoices were “transmitted to [Mr. Simmons] at

the address provided by [him], with sufficient postage paid,” and some invoices

“were delivered to Mr. Simmons by Nutrien employee, Brad Smith.” (Doc. # 38-1,

at 4 (Glass Aff.).) Nutrien has “no record of Mr. Simmons disputing the invoices or

rejecting delivery of goods prior to service of his lawsuit.” (Doc. # 38-1, at 4.)

season,” “long season,” and “short season” in his counterclaim and uses them during his

deposition, this opinion does likewise.

Additionally, Mr. Simmons admits that he ordered and received all the products

reflected in the fifteen unpaid invoices, some at the “recommendation of Brad

Smith.” (Doc. # 38-7 (Def.’s Responses to Pl.’s Requests for Admissions).) Nutrien

sent Mr. Simmons a demand latter, dated June 19, 2019, for the full amount of the

debt. (Doc. # 38-1, at 29.) That demand letter went unanswered.

E. The Side Agreements

Mr. Simmons argues that, notwithstanding the Contract and invoices, he had

three additional agreements with Nutrien, one written and two oral.

1. Mr. Smith’s Alleged Agreement that Nutrien Would Cancel the

Debt Owed for the Soybean Seeds if the Crop Failed

Mr. Simmons says that Mr. Smith orally assured him that if he were unable to

harvest the “full season” soybeans due to wet conditions in November 2018, Mr.

Simmons would not have to pay Nutrien for invoiced seeds. (Def. Dep., at 146–47;

Doc. # 11, at 7–8; see also Doc. # 41-3, at 2.) Mr. Simmons also says that he secured

Mr. Smith’s oral promise in writing. Specifically, Mr. Simmons has produced a

page from his steno pad that contains his notes memorializing his discussions with

Mr. Smith. This page, which is dated June 1, 2018, includes a bracketed phrase that

states: “late season beans—if not harvest, not owe! → claim: Nov, you can harvest.”

(Doc. # 41-6.) Mr. Simmons testified that he handed Mr. Smith his steno pad and

that, when Mr. Smith returned the steno pad, Mr. Smith’s name was written on the

page. (Def. Dep., at 151.) However, Mr. Simmons “did not see him sign it.” (Def.

Dep., at 151 (citing Ex. F below).)

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Hence, according to Mr. Simmons, Nutrien agreed in writing to cancel the debt he

owed for the soybean seeds if the soybean seeds did not yield a successful crop due

to adverse weather conditions, yet he was charged for the seeds.

Mr. Smith denies that he told Mr. Simmons that he would not have to pay for

the soybean seeds he purchased if the crop failed. (Smith Dep., at 78-79.) However,

assuming that the representation was made for purposes of summary judgment,

Nutrien counters that the statute of frauds bars enforcement of this alleged

agreement. (Doc. # 38, at 30-31.)

2. Mr. Smith’s Alleged Oral Representations About Price Matching

Mr. Simmons testified that, in late May or early June 2018, Mr. Smith orally

agreed to match the prices that Mr. Simmons could obtain from his Ohio suppliers.

However, Nutrien did not honor the price-match agreement and later invoiced him

at higher prices. (Def. Dep., at 169–70; Doc. # 41-4.) As a result, Mr. Simmons

says that Nutrien overcharged him by more than $25,000 for the soybean seeds.

(Doc. # 41, at 5.)

Whether Mr. Smith promised Mr. Simmons to match prices is in dispute. The

dispute is not material, according to Nutrien, because Mr. Simmons could not have

reasonably relied on a representation that Nutrien would match the Ohio distributor’s

prices because price matching was not a payment term specified in the Contract or

invoices. Alternatively, Nutrien points out that this assertion “was also never plead

anywhere in his answer or counterclaim and should be disregarded.” (Doc. # 44,

at 9–10 (citing Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir.

2004) (“A plaintiff may not amend [his] complaint through argument in a brief

opposing summary judgment.”)).)

3. Mr. Smith’s Alleged Oral Representations that All Credit Purchases

Would Have Zero Percent Interest for Six Months

Mr. Simmons testified that, in July 2018, Mr. Smith told him that his credit

purchases would be part of “an interest free program for six (6) months,” with

payment due in December. (Doc. # 11, at 2; see also Def. Dep., at 123, 170–71;

Doc. # 41, at 5.) Mr. Simmons elaborated that “the deal” he had with Mr. Smith was

that he had until December 2018, after the harvest, to pay for the Nutrien products

and services and that the debt owed would be “interest free.” (Def. Dep., at 123,

132–33.) Yet, it is undisputed that Nutrien charged him interest during that six-

month period. (Doc. # 41, at 5; Doc. # 38-1.)

Nutrien does not dispute that Mr. Smith and Mr. Simmons discussed Nutrien’s

zero percent interest program. Nutrien has submitted evidence that, on March 18,

2018, Mr. Smith emailed Mr. Simmons, stating that “[w]e offer a 0%, due November

of 2018 for all Asgrow, Dekalb, Dyna Gro. & Syngenta Seed purchased.” (Doc.

# 44-1, at 2.) Mr. Smith attached the “AFS Credit Application Form” to the email.

(Doc. # 44-1, at 2, 3–4.) At his deposition, Mr. Simmons admitted that he received

the email from Mr. Smith, but he testified that he was unable to open attachments to

emails at that time (March 2018) and thus did not retrieve the form. (Def. Dep.,

at 284–85.) It is undisputed that Mr. Simmons did not complete and sign the

application for the zero-interest payment program. (Def. Dep., at 358–59, 284–85;

Smith Dep., at 51–53.)

F. The Lawsuit

In August 2019, Nutrien filed this lawsuit to collect the debt it says Mr.

Simmons owes under the Contract and unpaid invoices. The Complaint contains

five claims—for goods sold and delivered (Count 1), for open account (Count 2), for

account stated (Count 3), for unjust enrichment (Count 4), and for breach of contract

(Count 5). Nutrien alleges that Mr. Simmons owes the principal sum of

$110,746.89, with an interest rate of eighteen percent per annum, plus attorneys’

fees, and costs. (Doc. # 38, at 16.)

Mr. Simmons’s Answer pleads the affirmative defense of fraudulent

inducement: “Plaintiff fraudulently induced Simmons into buying ‘full season’

soybean seed in the summer of 2018 and under an interest free program for six (6)

months.” Doc. # 11, at 4 (Answer/Counterclaim) Mr. Simmons also brings two

counterclaims, one for negligent misrepresentation and the other for reckless

misrepresentation. As for the counterclaims, Mr. Simmons alleges that Mr. Smith,

on behalf of Nutrien, negligently and recklessly “misrepresented the type of soybean

seed that Simmons should plant in late June of 2018 on his farm in Montgomery

County.” (Doc. # 11, at 9.) He contends that Nutrien held itself out as an expert on

soybean seed selections, that he reasonably relied on Mr. Smith’s recommendation

to plant “full season” soybeans, and that he has suffered damages exceeding

$250,000. (Doc. # 11, at 9–10.) He further alleges that, if he had planted “short

season” soybean seeds, “the crop would have been harvested in September of 2018

and [he] would have generated sufficient funds to pay the Plaintiff and other

creditors.” (Doc. # 11, at 8.)

Nutrien now moves for summary judgment in its favor for the debt at issue on

its claims for breach of contract and for breach of open account/account stated. It

also moves for summary judgment on Mr. Simmons’s counterclaims. (Doc. # 38.)

Mr. Simmons opposes the motion. (Doc. # 41.)

IV. DISCUSSION

A. Choice of Law

The parties have argued their respective positions based upon Alabama law.

Their reliance on Alabama law is correct. “[A] federal court sitting in diversity will

apply the choice of law rules for the state in which it sits.” Manuel v. Convergys

Corp., 430 F.3d 1132, 1139 (11th Cir. 2005) (citing Klaxon Co. v. Stentor Elec. Mfg.

Co., 313 U.S. 487, 496 (1941)). “Alabama follows the principle of ‘lex loci

contractus,’ which states that a contract is governed by the laws of the state where it

is made except where the parties have legally contracted with reference to the laws

of another jurisdiction.” Cherry, Bekaert & Holland v. Brown, 582 So. 2d 502, 506

(Ala. 1991) (citations omitted). Because no state’s law is specified in the contractual

documents and the parties have not argued otherwise, the “contract is governed by

the laws of the state where it is made.” Id. The contract was made in Alabama, and

the sales of goods and services were made to Mr. Simmons in Alabama. Alabama

law thus applies.

B. Breach of Contract

Nutrien has established a prima facie case of breach of contract under

Alabama law. “The elements of a breach-of-contract claim under Alabama law are

(1) a valid contract binding the parties; (2) the plaintiffs’ performance under the

contract; (3) the defendant’s nonperformance; and (4) resulting damages.” Dupree

v. PeoplesSouth Bank, 308 So. 3d 484, 490 (Ala. 2020).

The first element is satisfied. Mr. Simmons admits in his Counterclaim and

reaffirms in his summary judgment response that Nutrien and Mr. Simmons entered

into a valid Contract. (Doc. # 11, at 7, ¶ 11; Doc. # 41, at 8 n.3.) Under the Contract,

Nutrien provided agricultural goods and services to Mr. Simmons on credit for his

farming operations, and Mr. Simmons guaranteed “the payment and performance of

all obligations due and owing [Nutrien] for products and services to [him] pursuant

to this request for credit.”3 (Contract, at 2.) There is no genuine dispute of material

fact as to the first element of a claim for breach of contract under Alabama law.

3 As Nutrien points out in its opening summary judgment brief, Mr. Simmons attempted to

contradict his pleading during his deposition by testifying that the contract attached to the

Complaint was not the contract he signed. (See Def. Dep., at 105–06, 122-23; see also Def. Dep.,

at 113 (testifying that he “has not been able to find” the contract he signed).) However, his

summary judgment response does not rely on or mention that testimony, and for good reason. As

the Eleventh Circuit has recognized, “a party is bound by the admissions in his pleadings,” Best

Canvas Prod. & Supplies, Inc. v. Ploof Truck Lines, Inc., 713 F.2d 618, 621 (11th Cir. 1983), and

“facts judicially admitted are facts established not only beyond the need of evidence to prove them,

but beyond the power of evidence to controvert them,” id. (citations omitted). Mr. Simmons’s

admission in his Counterclaim is a judicial admission under Eleventh Circuit law and binds Mr.

Simmons. Alternatively, Mr. Simmons has abandoned any challenge to the validity of the

Contract.

The second element is satisfied. Nutrien performed under the contract. It

provided goods and services—including soybean seeds and fertilizers—to Mr.

Simmons. (See Doc. # 38-1 (invoices and account statements); see also Doc. # 11,

at 3 (¶ 20), in which Mr. Simmons “[a]dmit[s] that fertilizer, chemicals and seed

were delivered/provided to [him]” by Nutrien).) There is no genuine dispute of

material fact as to the second element of a claim for breach of contract under

Alabama law.

The third element is satisfied. Nutrien has submitted copies of the outstanding

and unpaid invoices. (See Doc. # 38-1, at 4, at 11–27.) Mr. Simmons does not

dispute that he is indebted to Nutrien for goods and services that Nutrien sold him;

he disputes only the amount of that debt. (See, e.g., Doc. # 11, at 8 (“Simmons did

not generate enough cash to pay Plaintiff for the fertilizer, chemicals and soybean

seed in December [2018] or his other creditors.”).) There is no genuine dispute of

material fact that Mr. Simmons has not performed under the Contract as required by

the third element of a claim for breach of contract under Alabama law.

The fourth element is the only element in dispute. Mr. Simmons does not

dispute that he owes a debt to Nutrien, but he does dispute the amount of that debt.

In his brief in opposition to summary judgment Mr. Simmons argues that his three

side agreements with Mr. Smith show why the amount of damages owed on the debt

is in dispute. (See Doc. # 41, at 4–6.) As a fourth argument, Mr. Simmons argues

that Nutrien overcharged him for application services, for fertilizer, for chemicals,

and for soybean seeds because unbeknownst to either Nutrien or Mr. Simmons at the

time, he had 927 tillable acres on his farm, but was charged based upon 1,100 acres.

The law as applied to the evidence, viewed in the light most favorable to Mr.

Simmons, dispels that the dispute is genuine. These arguments now will be

analyzed.

1. Mr. Smith’s Alleged Agreement that Nutrien Would Cancel the Debt

Owed for the Soybean Seeds if the Crop Failed

According to Mr. Simmons, Nutrien agreed to cancel the debt he owed for the

soybean seeds if the soybean seeds did not yield a successful crop due to adverse

weather conditions, yet he was charged for the seeds. Nutrien argues that this alleged

agreement “to forgive or otherwise waive its right to collect the debt Simmons owed”

is unenforceable under Alabama’s general statute of frauds, namely, Alabama Code

§ 8-9-2(7). (Doc. # 38, at 30.) Mr. Simmons counters that the statute of frauds “is

a nonissue” because there is a writing that “memorialized the agreement between

Simmons and CPS regarding the payment for the seed to be sold on credit.” (Doc.

# 41, at 16.) As evidence of the writing, Mr. Simmons relies on the note in his steno

book—“late season beans—if not harvest, not owe! → claim: Nov, you can

harvest”—in conjunction with Mr. Smith’s handwritten name on the steno page.

(Doc. # 41-6; Def. Dep., at 146–47, 151.)

The disposition of this issue turns on whether the written document allegedly

cancelling the debt Mr. Simmons owed Nutrien based on the extension of credit for

the soybean seeds is enforceable under Alabama’s general statute of frauds, Ala.

Code § 8-9-2(7). Section § 8-9-2 of the Alabama Code provides that specified oral

contracts are unenforceable. Relevant here, “[e]very agreement or commitment to

lend money, delay, or forbear repayment thereof” is void “unless such agreement or

some note or memorandum thereof expressing the consideration is in writing and

subscribed by the party to be charged therewith or some other person by him

thereunto lawfully authorized in writing.” Ala. Code § 8-9-2(7). Mr. Smith’s

agreement to “forbear repayment” of Mr. Simmons’s indebtedness must comply

with the strictures of § 8-9-2(7) to be enforceable.

The Alabama Supreme Court has explained that “[i]n order to take an

otherwise valid oral contract out of the operation of the statute of frauds . . . , the

[writing] must state all essential elements over the signature of the party to be

charged, including, but not limited to, the element of consideration.” Bussey v. John

Deere Co., 531 So. 2d 860, 863 (Ala. 1988) (addressing the element of consideration

under Alabama’s general statute of frauds and under the statute of frauds contained

in Alabama’s Uniform Commercial Code). Additionally, “the authority of an agent

to bind his principal . . . must also be in writing—otherwise, the contract is void.”

Altmayer v. City of Daphne, 613 So. 2d 366, 369 (Ala. 1993) (citing Cammorata v.

Woodruff, 445 So. 2d 867, 872 (Ala. 1983)). The theories of implied and apparent

authority of an agent do not apply “to a situation which falls within the statute of

frauds.” Cammorata, 445 So. 2d at 872.

Based on the foregoing principles, the steno page fails for lack of

consideration and for lack of written authority to bind Nutrien to the agreement.

First, this writing is not supported by any consideration. Although the parties have

not cited a decision directly on point, and independent research uncovered no

decision, § 8-9-2 requires a writing evidencing consideration for each type of

contract specified; hence, Bussey’s holding that a written agreement under § 8-9-

2(1) was unenforceable for lack of consideration is instructive. There, a John Deere

equipment dealer sued John Deere Company for breach of a dealership agreement.

Under the agreement, memorialized in a series of letters, John Deere assured the

dealer that if he constructed a new building for the dealership, John Deere would

increase his inventory until the building was paid off. After the dealer’s completion

of the building, John Deere did not provide any additional inventory. In defense of

the claim for breach of the dealership, John Deere relied on the parties’ written

agreement, which provided that John Deere was not “responsible for delay or failure

to ship caused by unavailability of Goods.” Bussey, 531 So. 2d at 861. The Alabama

Supreme Court affirmed the lower court’s entry of summary judgment in favor of

John Deere. The agreement pertaining to the dealer’s construction of the new facility

was unenforceable under § 8-9-2(1), which governs agreements that by their terms

are not performed within one year, because the relied-upon letters did not provide

consideration. They made “no reference to anything that John Deere agreed to do

or refrained from doing in return for the building of the building other than

continuing to enter into the written contracts . . . .” Id. at 863. Because the letters

“failed . . . to recite the consideration flowing from one side to the other, the letters

c[ould not] form the basis of memorandums sufficient to take the alleged oral

contract out of the statute of frauds.” Id. (citation omitted); see also Foy v. Foy, 484

So. 2d 439 (Ala. 1986) (holding that the failure of an option agreement to contain a

statement of the consideration rendered it void under the Statute of Frauds).

Here also, there is no “note or memorandum expressing the consideration”

that Mr. Simmons would provide in exchange for Nutrien’s alleged agreement to

forgive his indebtedness. See § 8-9-2(7). The writing does not express what Mr.

Simmons agreed to do or agreed to refrain from doing in return for having the debt

cancelled if the soybean crop failed. Mr. Smith’s written promise to forgive the

indebtedness is gratuitous. The writing’s failure to include an expression of

consideration for the forgiveness of the debt voids the agreement under the statute

of frauds.

Second, the signature on the steno page is “Brad Smith”; there is no reference

to Nutrien, and no indication in the writing that Mr. Smith signed as a representative

of Nutrien. Thus, the writing was not signed by Nutrien, which is the party to be

charged with the contract. Additionally, any argument that Mr. Smith signed as

Nutrien’s agent is also foreclosed by the evidence. Mr. Simmons has not cited any

evidence that Mr. Smith had written authority from Nutrien to forgive the debt.

Because the statute of frauds requires actual authority in a writing, Mr. Simmons

cannot rely on the implied or apparent authority of Mr. Smith to bind Nutrien. See

Cammorata, 445 So. 2d at 872.

Mr. Simmons argues, however, that the writing satisfies the statute of frauds

contained in Alabama’s Uniform Commercial Code (“UCC”), Ala. Code § 7-2-201,

which requires “some writing sufficient to indicate that a contract for sale has been

made between the parties and signed by the party against whom enforcement is

sought or by his authorized agent or broker.” Ala. Code § 7-2-201. This argument

is unavailing.

The UCC’s statute of frauds does not apply because the agreement at issue is

one for forbearance of a debt, not for the sale of soybean seeds. See Black’s Law

Dictionary 537 (Abridged 8th ed. 2005) (defining “forbearance” as the “act of

refraining from enforcing a right, obligation, or debt”). The soybean seeds already

had been sold to Mr. Simmons on a credit account per the Contract, and the

agreement was for the cancellation of the debt incurred for the credit sale. Even if

the agreement could be interpreted as one for the sale of goods, it likewise would

fail for lack of consideration. Under the holding in Bussey and the express statutory

terms, consideration is an essential element of the writing required to avoid the

statute of frauds bar under both § 7-2-201 and § 8-9-2(7) of the Alabama code. See

531 So. 2d at 863.

For the foregoing reasons, Mr. Smith’s alleged agreement that Nutrien would

cancel the debt owed for the soybean seeds if the crop failed violates § 8-9-2(7).

Because the prerequisites for avoiding the operation of the statute of frauds are not

in writing, the agreement is void. Because the agreement is void, it cannot create a

genuine dispute of material fact as to the amount of damages Mr. Simmons owes

Nutrien under the Contract and invoices.

2. Mr. Smith’s Alleged Oral Representations Pertaining to Price

Matching and Zero Percent Interest for Six Months

Mr. Simmons contends that, prior to entering into the Contract with Nutrien,

Mr. Smith orally agreed to match the prices that Mr. Simmons could obtain from his

Ohio suppliers and assured Mr. Simmons that his credit purchases would be part of

“an interest free program for six (6) months.” (Doc. # 11, ¶ 10; see also Def. Dep.,

at 123, 132–33; 169–71; Doc. # 41, at 5; Doc. # 41-4.) Mr. Simmons says that

Nutrien’s failed to honor these promises. (Doc. # 41, at 5; Doc. # 38-1.)

Nutrien argues that the undisputed evidence establishes as a matter of law that

Mr. Simmons’s reliance on these alleged representations made by Mr. Smith was

not reasonable. Nutrien argues that Mr. Simmons could not have reasonably relied

on representations that were not terms of the Contract and invoices. It contends

further that Mr. Simmons could not have reasonably relied on an offer of zero

percent interest when he knew he had to complete an application to determine his

eligibility for the interest-free program. Additionally, it contends that there was no

valid contract between it and Mr. Simmons to enter into a contract for zero percent

interest for six months because Mr. Simmons did not complete the application form

for consideration for the interest-free program. (Doc. # 44, at 9–13.)

Mr. Simmons offers nothing more than a bare assertion that Nutrien’s failure

to honor these promises creates a “factual dispute [that] is relevant to the amount of

the claim asserted by Plaintiff.” (Doc. # 41, at 4–5.) Mr. Simmons does not

elaborate or cite any authority for his contention. At bottom, Nutrien’s unrefuted

legal arguments have traction.

Under Alabama law, a purchaser generally “is not authorized to disregard the

express terms of a written contract and rest a claim on fraud, claiming only that he

relied on a statement contrary to the contract terms. The purchaser’s reliance upon

a contrary statement, even if the statement is false, must be ‘reasonable’ under the

circumstances.” Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160, 163 (Ala. 1988).

“[T]he reasonable reliance standard imposes . . . on a plaintiff a general duty . . . to

read the documents received in connection with a particular transaction.” Foremost

Ins. Co. v. Parham, 693 So. 2d 409, 421 (Ala. 1997). Under the reasonable reliance

standard, “a person cannot blindly rely on an agent’s oral representations to the

exclusion of written disclosures in a contract.” Ex parte Caver, 742 So. 2d 168, 173

(Ala. 1999). “[A] plaintiff who is capable of reading documents, but who does not

read them or investigate facts that should provoke inquiry, has not reasonably relied

upon a defendant’s oral representations that contradict the written terms in the

documents.” AmerUs Life Ins. Co. v. Smith, 5 So. 3d 1200, 1208 (Ala. 2008); see

also Wood v. ADT LLC, 327 So. 3d 224, 239 (Ala. Civ. App. 2020) (discussing the

history of Alabama’s reliance standard).

The evidence fails to show that Mr. Simmons’s reliance on Mr. Smith’s oral

representations about guarantees of price matching and participation in the interest

free program was reasonable.4 It is undisputed that Mr. Smith’s oral representations

were not terms of the Contract or the subsequent invoices. The Contract provides

that “[t]he terms of payment will be specifically indicated on your invoices.” (Doc.

# 1-1, at 3.) The written invoices undisputedly billed Mr. Smith in amounts that

included interest and that did not include a price match, and those invoices did not

4 This outcome is compelled whether Mr. Simmons is attempting to plead a defense or an

untimely counterclaim. Additionally, any attempt by Mr. Simmons to assert new counterclaims

based on these theories comes too late. See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312,

1315 (11th Cir. 2004) (“A plaintiff may not amend [his] complaint through argument in a brief

opposing summary judgment.). His pleading does not mention at all the price-matching theory,

and it does not plead the interest-free theory as a separate counterclaim. (See Doc. # 11.)

contain any terms along the lines of what Mr. Simmons says Mr. Smith orally

promised. Mr. Simmons, who is college educated with multiple graduate degrees

(including law and economics), easily could have discovered by reading the

Contract, together with the invoices, that the bills reflected higher prices than he says

he agreed to. Yet, Mr. Simmons’s brief cites no evidence that he ever investigated

or inquired about the discrepancies to protect his interest, nor did he contest the

invoices when received. His failure to do so renders his reliance on Mr. Smith’s oral

representations unreasonable as a matter of law.

It also is undisputed that Mr. Smith provided Mr. Simmons with a copy of the

application for the interest-free payment program, that Mr. Simmons received it, but

that he did not complete and return the application. (Doc. # 44-1, at 2, 3–4; Def.

Dep., at 284–85, 358–59, 284–85; Smith Dep., at 51–53.) Because Mr. Simmons

did not apply for Nutrien’s program offering zero percent interest for a period of six

months on certain purchases, a basic element of a contract—“mutual assent to the

terms essential to the contract,” Ex parte Holland Mfg. Co., 689 So. 2d 65, 66 (Ala.

1996)—is lacking. The absence of evidence as to a valid contract for Mr. Simmons’s

participation in the interest-free payment program is another reason why Mr.

Simmons has not raised a genuine dispute of material fact on the damages element

of Nutrien’s claim that he breached the Contract.

3. Mr. Simmons’s Damages Theory Based on an Acreage Overcharge

for Products and Services

Finally, Mr. Simmons contends that Nutrien overcharged him for application

services, for fertilizer, for chemicals, and for soybean seeds based on an incorrect

measurement of his farm’s tillable acreage. It is undisputed that Nutrien charged by

the acre for 1,100 acres, but Mr. Simmons contends that Nutrien should have charged

him for 927 acres. His argument goes like this. “In May of 2018, Simmons believed

that he had 1,250 tillable acres on his farm in south Montgomery County. In 2020,

Simmons had his fields measured and learned that that he only had 927 tillable acres

on his farm.” (Doc. # 41, at 3 (citing Def. Dep., at 81, 189).) Hence, according to

Mr. Simmons, Nutrien overcharged him for 173 acres that he did not have. (Doc.

# 41, at 4–6.) Without citing any authority, Mr. Simmons concludes that this is

another reason why there are “genuine, disputed material facts that will need to be

resolved by the jury.” (Doc. # 41, at 1.)

This argument has no traction because it conflicts with the number of acres—

1,100—that the parties contemplated and agreed upon when the Contract was made.

“[T]he damages claimed must be . . . such as may reasonably be supposed to have

been within the contemplation of the parties at the time the contract was made.’”

Aldridge v. Dolbeer, 567 So. 2d 1267, 1269–70 (Ala. 1990). There is no evidence

that, when the Contract was made, the parties contemplated that the agricultural

services and goods Nutrien sold Mr. Simmons should have been based on 927 acres,

and not based on 1,100 acres. As for Mr. Simmons, he does not dispute that, during

the contractual period, he believed he had at least 1,100 tillable acres. He

represented in the written Contract that he had 1,100 acres to farm, (Doc. # 1-1, at 2),

an admission he cannot deny. He also testified that, prior to purchasing the property,

he relied on the official records of the USDA Farm Service Agency (“FSA”), which

assessed the property as having at least 1,100 farmable acres, and that he did not

have the property independently surveyed. (Def. Dep., at 81.) As for Mr. Smith,

there is no evidence that he possessed any contrary information about the size of the

farmable acreage, nor that he agreed to, or was required to, verify the acreage

information Mr. Simmons gave him.

It is undisputed that in March 2018, Mr. Smith received the FSA report from

Mr. Simmons, and there is evidence that Mr. Smith relied on that report in

calculating the acreage. (See Def. Dep., at 361–62; see also Doc. # 44-2, at 2.) There

is no evidence to refute that on the dates Nutrien performed agricultural services for

Mr. Simmons and sold him goods, the parties believed that the appropriate per-acre

charge should be based upon 1,100 acres. Bottomline, Nutrien sold Mr. Simmons

services and goods for 1,100 acres, and Mr. Simmons accepted the services and

goods based on that acreage. Not surprisingly, Mr. Simmons cites no authority, and

the court found none, to support his position that the parties’ alleged mutual mistaken

belief as to the number of tillable acres on Mr. Simmons’s farm is grounds to reduce

the amount of damages. This argument is insufficient to withstand summary

judgment on the element of damages.

4. Summary

In sum, each element of Nutrien’s breach of contract claim is established by

undisputed evidence, and Mr. Simmons has not raised a genuine issue of material

fact that he has a defense to damages element of the breach-of-contract claim.

Accordingly, Nutrien is entitled to summary judgment on its breach of contract claim

for the debt Mr. Simmons owes under the terms of Contract and the invoices.

Judgment will be entered in favor of Nutrien in the principal amount of $110,746.89,

plus the accruing interest. Reasonable attorneys’ fees also will be awarded, and

Nutrien, as requested, will be given leave leave to submit a motion seeking an award

of attorneys’ fees. Because granting Nutrien’s motion affords it all the relief it has

requested—judgment in the amount of Mr. Simmons’s indebtedness under the

Contract and invoices, plus interest—it is unnecessary to address its arguments for

summary judgment on the claims for amounts due under open account/account

stated.

D. Defendant’s Counterclaims

Defendant brings a counterclaim for negligent misrepresentation and a second

counterclaim for reckless misrepresentation. (Doc. # 11, at 8–10.) Under Alabama

law, negligent and reckless misrepresentation are not separate causes of action;

rather, they are degrees of the same tort. See Montgomery Rubber & Gasket Co. v.

Belmont Mach. Co., 308 F. Supp. 2d 1293, 1297 (M.D. Ala. 2004). “The elements

of a misrepresentation claim are 1) a misrepresentation of material fact, 2) made

willfully to deceive, recklessly, without knowledge, or mistakenly, 3) which was

reasonably relied on by the plaintiff under the circumstances, and 4) which caused

damage as a proximate consequence.” Bryant Bank v. Talmage Kirkland & Co., 155

So. 3d 231, 238 (Ala. 2014) (citing Foremost Ins. Co., 693 So. 2d at 421–22).

“Reasonable reliance is shown if the circumstances are such that a reasonably

prudent person who exercised ordinary care would not have discovered the true facts

[sic].” Sexton v. Bass Comfort Control, Inc., 63 So. 3d 656, 663 (Ala. Civ. App.

2010) (citation omitted) (alterations adopted).

According to Mr. Simmons’s testimony, Mr. Smith told him that (1) farmers

“only plant long season beans in Alabama” and that (2) planting long season beans

in mid-June would yield Mr. Simmons a good harvest in November because “it

doesn’t rain in November.” (Def. Dep., at 131.) Mr. Simmons cites the latter page

of his deposition testimony as memorializing the substance of the misrepresentations

underlying the counterclaims.5 (Doc. # 44, at 3–4.) Nutrien argues that Mr.

5 Nutrien contends that these alleged misrepresentations change the nature of the claim

alleged in the counterclaims: The counterclaims plead that Mr. Smith misrepresented “the type of

soybean seed that should be planted in Montgomery County,” not that Mr. Smith misrepresented

Simmons cannot establish the first and second elements of his misrepresentation

claims. (Doc. # 38, at 25.) It contends that Mr. Simmons has not pointed to any

evidence demonstrating that the first misrepresentation is material or false or that the

second misrepresentation was made with the requisite intent to deceive. The court

agrees.

First, Mr. Smith’s alleged statement that Alabama farmers only plant “long

season” soybean seeds is not material to the extent that the statement refers to regions

of Alabama other than Central Alabama where Mr. Simmons farmed. The expert

report Mr. Simmons cites for his statement that farmers in Alabama plant Group 4

soybeans—which are not “full season” soybeans, see Doc. # 41-2—demonstrates

the point. (Doc. # 41, at 2 (citing Doc. # 38-8, at 7).) In that report, Nutrien’s expert,

who holds a Ph.D. in agronomy, narrowed the geographical region for Group 4

planting to “some Northern Alabama farms . . . .” (Doc. # 38-8, at 7.) But Central

Alabama is at issue here. The statement is material as to the type of soybean seeds

farmers plant in Central Alabama, but that part of the statement is not false.

Nutrien’s expert also testified that for a “late planting” (mid-to-late June) in Central

Alabama, the type of seed sold to Mr. Simmons—a Group 6 or “full season” seed—

“the type of soybean seed sold in Alabama as a whole.” (Doc. # 44, at 3.) Nutrien argues that,

under the heightened pleading standard applicable to fraud claims, Mr. Simmons should not be

permitted to “change his whole theory of liability in response to summary judgment without

amending his pleadings . . . .” (Doc. # 44, at 3–4.) As discussed, the counterclaims—either as

pleaded or as Mr. Simmons recollected at his deposition—cannot survive summary judgment;

thus, it is not necessary to resolve Nutrien’s argument.

was preferred and appropriate. (Doc. # 38-8, at 6.) Nothing in Mr. Simmons’s brief

or in the evidence he cites creates a genuine dispute of material fact on this point.

Second, Mr. Simmons has not raised a genuine dispute of material fact that

Mr. Smith intended to deceive Mr. Simmons when he assured Mr. Simmons of a

productive soybean crop and told him that the weather conditions for harvesting in

November would be dry. “A fraud action based upon a promise of future

performance must be based on evidence that the defendant intended to deceive the

plaintiff.” Crowne Invs., Inc. v. Bryant, 638 So. 2d 873, 877 (Ala. 1994). Mr.

Smith’s statement contains two separate but related promises.

As to the first prediction of a dry November, the evidence is that November

2018 turned out to bring “unusually wet weather” and that other farmers “suffer[ed]

losses in both yield and quality in the late fall of 2018.” (Doc. # 38-8, at 6.) There

is no evidence of deceptiveness in Mr. Smith’s prediction months in advance of how

the weather would affect harvesting based on normal patterns.

As to the second prediction, Mr. Smith recommended planting “full season”

soybean seeds because he believed that planting “short season” soybean seeds in

mid-June 2018 would have resulted in the plants not being of sufficient height to be

harvested. (Smith Dep., at 71–73.) Mr. Simmons has not pointed to any evidence

that casts aspersions on Mr. Smith’s asserted belief. To the contrary, Mr. Simmons

testified that he believed Mr. Smith’s recommendation was well intended. At his

deposition, Mr. Simmons testified that he thought Mr. Smith “was trying to help”

him when he made the recommendation to plant “full season” soybean seeds. (Def.

Dep., at 205–06.) Additionally, Mr. Simmons was asked, “[S]o you believe when

he [Mr. Smith] was talking to you, he honestly believed that he was telling you the

truth?” Mr. Simmons answered, “That’s what I feel, yes, sir.” (Def. Dep., at 206.)

Mr. Simmons’ counterclaims for misrepresentation cannot survive summary

judgment on this evidentiary record.

V. CONCLUSION

The evidence establishes that Mr. Simmons is liable to Nutrien for breach of

contract in the principal amount of $110,746.89, with an interest rate of eighteen

percent per annum, as well as for reasonable attorneys’ fees and costs. Mr. Simmons

offered no evidence to controvert Nutrien’s assertions or the evidence in the record.

Nutrien also is entitled to summary judgment on Mr. Simmons’s counterclaims for

negligent and reckless misrepresentation. Accordingly, it is ORDERED that

Nutrien’s motion for summary judgment (Doc # 37) is GRANTED.

It is further ORDERED that Nutrien shall file a motion for attorneys’ fees and

costs and a brief in support of the motion, on or before August 30, 2022. Mr.

Simmons shall file a response to the motion no later than ten days after Nutrien files

its motion.

It is further ORDERED that on or before August 30, 2022, Nutrien shall file

its proposed interest calculation and provide supporting documentation for a finding

as to the date upon which such interest should accrue and end. Any objection to that

calculation shall be filed no later than ten days after Nutrien’s filing. Judgment will

be entered after interest and attorneys’ fees have been determined.

DONE this 10th day of August, 2022.

/s/ W. Keith Watkins

UNITED STATES DISTRICT JUDGE