Helena Chemical Co. v. Nelson

Full title: HELENA CHEMICAL CO., Plaintiff/Counterclaim Defendant, v. JESSE NELSON…

Court: United States District Court, D. New Jersey

Date published: Jun 22, 2000

Civil Action No. 97-5662(JBS) (D.N.J. Jun. 22, 2000)

Opinion

Civil Action No. 97-5662(JBS).

June 22, 2000

Sean O'Meara, Esq., Archer Greiner, PC, Haddonfield, N.J., Attorney for Plaintiff/Counterclaim Defendant

Donald C. Simpson, Esq., Moorestown, N.J., Attorney for Defendant/Counterclaimant.

OPINION

SIMANDLE, District Judge:

I. Introduction

Plaintiff Helena Chemical Co. ("Helena") commenced this diversity-based contract action seeking payment of $78,000.00 plus interest and contractual attorney fees that it says as defendant Jesse Nelson Sr. owes for the cost of chemicals and services expended on his fields. Nelson has filed counterclaims asserting that he does not owe Helena anything for the reason that Helena is instead liable to him for damages caused to his fields by Helena's negligent application of its chemicals.

Presently before the Court is defendant/counterclaim plaintiff Nelson's Motion for Partial Summary Judgment on the issues of (1) plaintiff/counterclaim defendant Helena's negligence in applying "Prowl", an herbicide, when spraying Nelson's cornfields for weeds; and (2) Helena's liability under the New Jersey Consumer Fraud Act for failure to follow the application instructions published by the makers of Prowl. For reasons discussed herein, the Court finds that there remain no genuine disputes of fact to be resolved with respect to Nelson's negligence counterclaim (Counterclaim Count I), and thus Nelson's motion will be granted to the extent that it seeks to establish Helena's negligence as a matter of law. Secondly, the Court finds that despite ample opportunity to do so, Nelson has failed to adduce any evidence in support of his Consumer Fraud Act counterclaim (Counterclaim Count II). Accordingly, the Court will enter summary judgment against Nelson's Consumer Fraud claim in this case.

II. Background

Drawing all reasonable inferences in favor of plaintiff Helena as the non-movant, as required by Rule 56, Fed.R.Civ.P., the background of this case is as follows. Nelson, a corn, soy and dairy farmer, grows corn for his cows and for the open market. (Nelson Br. at 2.) For many years, Nelson used herbicides supplied by Moyer Sons to treat his cornfields for weeds. (Id.) In 1995, Nelson used Helena's chemicals to treat his soybean crops, and expressed his satisfaction with their quality. In 1996, Nelson was approached by Andrew Boerman ("Boerman"), a Helena representative, who asked him to consider switching to their products to spray his corn fields. (Id.) Nelson agreed, and chose to use a Prowl/Extrazine mixture, a cheaper alternative to the "Bicep" chemical he had used on his soy crops earlier. Nelson also asked that Helena apply a liquid nitrogen fertilizer when applying the chemicals. Helena agreed, and a deal was struck under which Helena would spray a majority of Nelson's crops and Moyer would spray the rest. (Id. at 3.)

Helena provided the chemicals and application services for 515 acres of Nelson's corn fields, applying the herbicide "Bicep" to 74 acres (which application is not in dispute in this case) and the herbicide "Prowl 3.3EC" to 441 acres, which is the basis of Nelson's counterclaim. Nelson alleges that Helena's application "Prowl" was negligent and fraudulent and that it caused significant loss of the corn crop in 1996, and lesser residual losses in the 1997 and 1999 growing seasons. Helena disputes liability for Nelson's losses and contests Nelson's claim of widespread damage, averring that inspection of the fields showed only 12 acres out of 441 were actually affected.

Boerman had substantial prior experience working with a Prowl/Extrazine/liquid nitrogen mixture similar to that sprayed on Nelson's field. (Boerman Cert. ¶ 6.) As he was experienced with the mixture, Boerman perceived no need to conduct any compatibility tests with respect to the fertilizer/Prowl compound prior to spraying Nelson's fields. (Id.) Boerman has averred that this is standard practice in the industry. (Id.) Based on his sense that no premixing was necessary, Boerman authorized the Helena applicator, Don Miller, to begin spraying but did not specifically instruct Miller to premix.

It is not disputed that, notwithstanding the fact that the Prowl label instructed otherwise, Miller did not conduct compatibility tests for the chemical agents to be combined in spraying, and did not initially introduce a compatibility agent into the tanks. Miller began spraying, but early in the application process noticed coagulation in the tanks. Miller notified Boerman of the problem, who suggested that Miller further agitate the solution, premix the Extrazine in a bucket, and add water to the liquid nitrogen. (Boerman Cert. at ¶ 7.) Miller resumed spraying the fields, continued to have problems, and again contacted Boerman, who this time went into the field to address the problem, and suggested the use of the compatibility agent Blendex. After Boerman and Miller were satisfied that this remedy worked well, Miller completed the job. (Id.)

During the 1996-97 growing season Helena advanced to Nelson almost $43,000.00 worth of product. (Nelson Ex. B.) Helena also charged about $35,000.00 for its services applying the various chemicals to Nelson's cornfields. Nelson agreed to pay full price upon receipt of Helena's billing statement. This agreement provided for an 18% APR if Nelson did not pay full price within 30 days of the monthly billing statement. Helena's contract claim for $78,000 is not the subject of this motion.

Nelson noticed several bald spots in his fields prior to repaying Helena, and refused to pay thereafter. It is uncontested that, after the spraying, there appeared 60-foot swaths of bald fields or stunted corn growth where Miller had sprayed Nelson's fields with a 60-foot boom. Tests run on these balded patches have shown that, in some soil samples taken two years after the spraying, there still was a Prowl content of over 3 lbs. per acre, twice the amount per acre recommended on the Prowl label. Nelson argues that this overapplication of Prowl was caused by the negligent conduct of Helena's employees, that Helena is thereby responsible through the doctrine of respondeat superior, and that Helena's negligence has excused his responsibilities for making under the contract. Helena subsequently filed suit in this Court for breach of contract.

In response to Helena's breach of contract suit, Nelson counterclaimed that Helena was negligent in its application of chemicals to his fields (Counterclaim Count I) and that Helena committed fraud in violation of New Jersey's Consumer Fraud Act when it failed to follow its own label instructions, which provide for pre-mixing of certain chemicals (Counterclaim Count II). Nelson alleges that Helena's conduct caused him over $100,000 in crop damages.

The gravamen of Nelson's counterclaim is that Helena should have followed the Prowl label. Nelson alleges that Helena in several instances violated the instructions for use of Prowl, and that the label warned that if certain instructions were not followed, crop harm would follow. Nelson maintains that had Helena followed the instructions for use, the Prowl would not have caused the harm it did. Nelson cites several specific instances where Helena violated the instructions for use accompanying Prowl 3.3EC, the agent used on Nelson's farms. Among the instructions and warnings violated are:

• The maximum rate of application for pre-emergent growth is 3.6 pints/1.8 quarts per acre, or 1.5 lbs per acre.

(Prowl Instructions for Use, Liquid Fertilizer Compatibility Determinations at 6-7, Nelson Decl. Ex. A.)

As noted above, Nelson has shown that in some areas, soil samples taken two years after the spraying showed a per-acre amount that was more than twice the recommended amount.

• Over application can result in crop stand loss and crop injury.

Id.

Helena does not dispute that it was aware of the risks involved in overapplication of Prowl.

• Prowl "may not combine properly with some liquid fertilizer materials"; small quantities should always be tested before a full scale mixing.

Id.

As detailed above, there is no dispute that Helena did not pre-mix the Prowl and fertilizer mixture and that this led to the clotting and overapplication in some spots.

• If liquid fertilizer/herbicide separates in the spray tank, clogged elements may result, which can lead to crop injury.

Id.

It is not disputed that Miller noticed some separation of elements and continued to spray, which Nelson alleges led to crop injury.

• Problems may be corrected with a compatibility agent, but if separation occurs even with the compatibility agent, DO NOT use Prowl with that fertilizer.

Id.

It is not disputed that Boerman and Miller did not use a compatibility agent when the coagulation problems first appeared. Nelson alleges that, even if Miller did attempt to use a compatibility agent later, Miller should have immediately noticed the coagulation, and was therefore tardy in adding such an agent.

Based on Helena's violations of the Prowl label detailed above, Nelson now argues that this Court should find Helena negligent as a matter of law, and should hold as a matter of law that Helena's conduct violated New Jersey's Consumer Fraud laws.

III. Discussion

A. Summary Judgment Standard

The standard for granting summary judgment is a stringent one. A court may grant summary judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In deciding whether there is a disputed issue of material fact the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996); Kowalski v. L F Prods., 82 F.3d 1283, 1288 (3d Cir. 1996); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983), cert. denied, 465 U.S. 1091 (1984). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

B. Negligence and Causation Standards

Under New Jersey law, the principles of negligence are well settled. The requisite elements of a negligence cause of action are: (1) the existence of a duty; (2) the breach of that duty; and (3) proximate causation of damages. Conklin v. Hannoch Weisman, 145 N.J. 395, 417 (1996). Here, the parties do not contest that Helena owed Nelson a duty to carefully apply its products to his fields. The question of causation, however, requires somewhat more analysis.

There is a distinction to be made between routine tort cases and cases where concurrent causes of harm are present. Camp v. Jiffy Lube No. 114, 309 N.J. Super. 305, 309 (App.Div. 1998). In the cases where there is but one potential cause of harm, "the law requires proof that the result complained of probably would not have occurred `but for' the negligent conduct of the defendant." Id. (quoting Conklin, supra). In cases involving concurrent causes, the law requires consideration of the "substantial factor" test, which recognizes that a tortfeasor will be held answerable if its negligent conduct was a substantial factor in bringing about the injuries. Conklin, 145 N.J. at 419. In such circumstances, "[a]lthough the law of negligence recognizes that there may be any number of concurrent causes of an injury, `[n]evertheless, these acts need not, of themselves, be capable of producing the injury; it is enough if they are a "substantial factor" in bringing it about.'"Id. at 419-20.

C. Analysis

1. Nelson's Negligence Counterclaims

With respect to Nelson's claims of negligence, the first prong of the analysis duty is undisputed. Helena admits that it owed a duty of care to Nelson to carefully apply the Prowl/Extrazine/liquid nitrogen mixture Nelson's fields.

Turning to discuss the second prong breach of duty the Court finds that remains no material dispute as to Helena's negligence, and that the only issue left for a jury's determination is the extent of Nelson's loss due to Helena's negligent application of chemicals.

In an effort to create a dispute as to whether it was negligent in applying the Prowl mixture, Helena has acknowledged that "there is no dispute that Nelson sustained a limited amount of damage in certain areas of the fields sprayed by Helena", but disputes that its negligence was the cause of this harm:

The question is whether the damage was caused by a defect in the chemicals themselves, a defect in the spraying equipment, early emergence of a limited amount of corn, or the lack of due care on the part of Helena in spraying the fields. Helena submits that it acted reasonably and with due care. At the very least, there is [an] issue of fact as to whether it acted with due care and if not, whether its actions proximately caused any damages to Nelson.

(Helena Br. at 3-4.)

Thus, Helena admits that Nelson's fields were harmed to some degree (and the physical evidence on the point is conclusive), but argues that other forces may have caused Nelson's losses. Upon review of the factual record, it is clear to this Court that Nelson is entitled to judgment as a matter of law on the issue of Helena's negligence. Despite having come forward with a list of possible supervening causes of the damage to Nelson's crops, Helena has failed to support these theories with any evidence. At this point in the litigation, all factual and expert discovery having been concluded, it is Helena's burden as the non-movant to come forward with sufficient evidence to create a material dispute over whether something besides the failure of Helena personnel to follow the Prowl use instructions was a substantial cause of Nelson's losses. Helena has proffered several alternative causes of Nelson's crop loss: chemical defect, equipment defect, or early crop emergence. However, while Helena has proposed several theories about what might have caused the damage to Nelson's fields, it has not come forward with any supporting evidence. The record does not show that Helena took any testimony on the issue of alternative causes of harm, and no expert reports have been tendered. Furthermore, Helena has not joined as a party either the manufacturer of the chemicals, nor the equipment manufacturer. Indeed, at oral argument on January 12, 2000, Helena's attorney admitted that he had no facts to proffer about possible concurrent causes of harm. Helena's hypothetical speculation about other causes of Nelson's crop damage do not suffice to create a genuine dispute of material facts, because Helena has proffered no facts to support these hypotheses. Helena as non-movant must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010 (1985) (citation omitted); Anderson, supra, 477 U.S. at 249-50. Stated differently, Helena has failed to meet its burden to "do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Because Helena has failed to adduce any evidence from which a jury could conclude that something other than Helena's conduct damaged Nelson's land, the sole remaining potential cause of Nelson's losses is the negligence of Helena's personnel.

The Court next addresses Helena's efforts to show that its employees acted with due care. Helena first argues that, while there is strong evidence that Helena's distributor Mr. Boerman was negligent, there is still a factual dispute as to whether breached his duty of care to Nelson. The Court disagrees, and finds that, based on the present record, any reasonable jury would conclude than Mr. Boerman was negligent.

The record establishes that Mr. Boerman did not conduct premixing of the spray to be applied to Nelson's fields, and that this omission was contrary to the instructions on the Prowl label. Nevertheless, Boerman asserts in his Certification that, due to his previous experience applying the Prowl/Extrazine/liquid nitrogen mixture, it was not necessary for him to strictly follow the Prowl labeling instructions because he already had a working knowledge of how those substances would interact. (Boerman Cert. ¶ 6.)

Further scrutiny of the record shows, however, that to the extent Boerman had experience with the Prowl mixture at issue, his experience did not involve spraying similar to the herbicide application spraying at issue in this case. As evidenced by Helena's own response to Nelson's interrogatory # 9, "to the best of [Helena's] knowledge, Helena did not spray [the Prowl/Extrazine/liquid nitrogen mixture] on any other farmer's fields other than Mr. Nelson's." (Simpson Decl., Ex. A.) Thus, while Mr. Boerman may have had experience with the mixture, Helena has admitted that this experience did not include spraying farms with a similar mixture while in Helena's employ. The Court concludes that, Boerman not having experience in spraying the mixture under conditions similar to those encountered at Nelson's farm, a reasonable jury could not find that Boerman's experience could substitute for following the directions on the Prowl label, least of all when harm occurred that is unexplained by any other cause. Consequently, it is manifest that Boerman was negligent in applying the Prowl mixture to Nelson's fields in violation of the use instructions notwithstanding any experience he may have had with the chemicals involved.

Even if the Court were to find that Boerman had relevant experience with the subject Prowl mixture, this experience would not obviate the need for him to follow the Prowl use instructions. It is undisputed that the Prowl use instructions specifically provide for pretesting and for a compatibility agent to be used in the event of element separation. Boerman, despite actual knowledge of the coagulation problem that Miller was incurring as he applied this untested mixture, did not initially include a compatibility agent when mixing the Prowl/Extrazine/liquid nitrogen mixture, and did not instruct the applicator to do so. Boerman states that when he learned that the elements had become clogged, he suggested to the applicator Mr. Miller that he include Blendex, a compatibility agent.¹ The parties agree that, once the Prowl label was followed, and Blendex was added to the mixture, that the coagulation stopped, and the spraying was completed without incident. The success of the Prowl instructions once they were followed establishes to a reasonable degree of certainty that, had the Prowl instructions been followed from the outset, there would have been no element separation or clotting. No contrary evidence has been produced.

1 The parties dispute whether Blendex was actually added to the Prowl mixture. ( See Supplemental Decl. of Jesse Nelson, Sr. ¶ 9 (pointing out that the cost of Blendex not included on invoices); Helena Ltr. Br. Dated March 24, 2000 at 2-3 (arguing that the Blendex was provided free of charge).) For purposes of this summary judgment motion, the Court assumes the non-movant's version is correct, and that Blendex was eventually added to the Prowl/Extrazine/liquid nitrogen mixture eventually, after coagulation was detected and after premixing did not solve the problem. Even under Helena's version of the facts, substantial areas were sprayed unevenly due to coagulation before the Blendex was added. Further, if (as Helena alleges) the Blendex solved the problem, that negates Helena's own theories that there was an extraneous problem with the applicator nozzles, the chemicals themselves, or the early emergence of the corn crop. As stated above, the Court finds that Nelson suffered damages, and that Helena is the sole viable cause of this loss. The record here shows that the Blendex was only added after spraying had begun and clotting problems had become evident. It is likely that, by then, Nelson's crops already had been harmed due to Helena's negligence. Helena's negligence came in failing to take proper precautions to prevent the clotting from occurring at the outset, thus, whether or not Blendex was added later is immaterial to the question of whether Helena negligently failed to prevent coagulation and over-concentration by not taking the precautions suggested by the Prowl label.

It is manifest that Helena did not take the proper precautions to prevent separation of the chemical elements being applied to Nelson's fields. Even if the Court were to find that there remains a genuine dispute over the extent of Boerman's experience with Prowl and combinations thereof, this dispute would be immaterial. Even it were proven that Boerman thought he understood the interactions of the subject chemicals, such a finding, would not prevent a finding Boerman was negligent in failing to follow labeling instructions which, if followed, would have prevented the over-concentration of Prowl which caused Nelson's crop losses.

In sum, although Boerman may have had some experience with the chemicals involved in this case, the record here does not confirm that he had experience in spraying fields with such a mixture while in Helena's employ. Furthermore, even if Boerman did have relevant experience spraying the subject mixture, this background does not change the fact that Boerman did not premix or test the included chemicals before authorizing Miller to commence spraying. No reasonable juror could conclude that Boerman's experience and industry standards directly contradict the Prowl use instructions. Accordingly, the Court will enter summary judgment on the issue of whether Helena was negligent in failing to follow the Prowl label, for failing to premix, and for continuing to apply the mixture in the face of coagulation problems.

Turning next to assess the conduct of the applicator Mr. Miller, the Court finds that there is not a genuine dispute as to whether he was negligent in spraying Nelson's fields. There is a direct, uncontested correlation between Helena's application of Prowl and Nelson's crop damage, and it is uncontroverted that Miller never premixed the elements until after the coagulation problems appeared. Moreover, the parties agree that any corrective measures, such as premixing and blending, were not begun until the spraying had been partially completed.

Because Helena did not exercise due care to prevent clotting, and only exercised premixing techniques after the coagulation problems appeared, there is no genuine factual dispute as to whether Helena's personnel breached their duty of care to Nelson. A reasonable jury could not conclude otherwise than that Boerman and Miller should have followed the Prowl instructions, and that had they done so the damage could have been averted.

Although the Court now will enter summary judgment against the Helena on the issue of negligence, the parties have not briefed the issue of damages, and valuation of the harm Nelson suffered remains to be determined at trial.

In sum, the Court has now determined (1) that there is not a genuine dispute of material fact concerning whether Helena breached its duty of care to Nelson; (2) there is no dispute as to whether, if such breach did occur, the breach was the proximate cause of Nelson's harm; and (3) Nelson's losses resulting from any breach of duty must determined by trial. Thus, Nelson's negligence counterclaim will proceed to trial on the issue of calculation of damages.

2. Nelson's Consumer Fraud Counterclaim

The Court now considers Nelson's motion for summary judgment on his consumer fraud counterclaim. This claim is based on the premise that Helena solicited Nelson's business with misleading statements about the quality and price of its goods. Nelson argues that, owing to the damage Helena inflicted upon his crops, these statements turned out to be false. Nelson has offered no evidence that Helena's statements were knowingly false, but instead argues that this Court should nevertheless grant summary judgment in Nelson's favor on two grounds. The first is that Helena gave Nelson a false assurance that its products would be equal in quality to that of Moyer Sons, and that this knowing falsehood constitutes fraudulent inducement to contract in violation of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 (the "Act"). Second, Nelson asserts that Helena engaged in an unconscionable business practice in violation of the Act when it failed to follow the Prowl label. As support for this argument, Nelson claims that Helena's conduct was a facial violation of the federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136(a)(2)(G), and the New Jersey Pesticide Control Act (NJPCA), N.J.S.A. 13:1F-1, et seq. For the reasons that follow, Nelson is not entitled to summary judgment under either theory.

Turning to discuss Nelson's fraud in the inducement argument, as stated above the Court finds that Nelson has adduced no evidence that Helena knowingly misled Nelson into purchasing its products. At most, Nelson has come forward with evidence of negligence for Helena's failure to follow the Prowl label. Simply put, there is nothing to support a finding of fraud. The record here shows that there was a statement from Boerman to Nelson that Prowl was as good and as inexpensive as that of a competitor. There is nothing tending to show that Boerman concealed some defect, or that Boerman intended to mis-apply the Prowl mixture. There is no evidence that Prowl, if applied properly, is not a suitable herbicide for its intended purpose. Rather, Nelson has adduced evidence solely tending to prove that Helena's application of the mixture was negligent and harmful.

Case law is clear that the breach of warranty alone does not violate the Consumer Fraud Act. D'Ercole Sales, Inc. v. Fruehauf Corp., 206 N.J. Super. 11, 25 (App.Div. 1985). "In consumer goods transactions, unconscionability must be equated with concepts of deception, fraud, false pretense, misrepresentation, concealment and the like". Id. at 31. In order for the Act to apply, there must be some indicia of aggravating circumstances, such as concealment of an intent to provide inferior service from the outset. "`In a sense, unfairness inheres in every breach of contract when one of the contracting parties is denied the advantage for which he contracted, but this is why remedial damages are awarded in contract claims. If such an award is to be trebled, the . . . legislature must have intended that substantial aggravating circumstances be present.'" Id. at 31 (quoting United Roasters, Inc. v. Colgate Palmolive Co., 649 F.2d 985, 992 (4th Cir.), cert. denied, 454 U.S. 1054 (1981)). Under these principles, breach of an oral warranty is not sufficiently aggravating to trigger application of the New Jersey Consumer Fraud Act. Id. at 25.

Despite the fact that Helena may have engaged in "puffing" by stating to Nelson that their products were equal in price and quality to the more familiar Bicep herbicide, this warranty of quality does not rise to the level of false pretense or fraud. Nelson's remedy for Helena's breach of their promises to him, if any remedy exists, is contractual, not statutory. Accordingly, not only has Nelson failed to establish that he is entitled to judgment as a matter of law for consumer fraud, but he also has failed to adduce any evidence from which a jury could conclude that a violation of the Act took place when Boerman boasted that Helena's chemicals equaled a competitor's in quality and price. Even if such representations took place, "puffing" is not a basis for a claim of consumer fraud. Gennari v. Weichert Co. Realtors, 288 N.J. Super. 504 (App.Div. 1996), aff'd as modified, 148 N.J. 582 (1997). In Gennari, the Appellate Division held that not just any erroneous statement will suffice to create a cause of action under the Consumer Fraud Act. Rather, the misrepresentation must be one that is material to the transaction, false, and actually induced the buyer to make the purchase. Id. at 535. Under the principles discussed in Gennari, Helena's statements of quality and economy were merely sales talk not rising to the level of fraud. Furthermore, there is no evidence of record that Boerman's statements were false at the time he made them. It is possible that, had the chemicals been properly applied, that the Prowl mixture would have proven better and cheaper than Nelson's previous brand. Therefore, there is no evidence that Boerman's statements were consciously false. Indeed, Boerman's "puffing" may have proven true but for the unfortunate misapplication of the chemicals at issue. Because there is no evidence of fraudulent inducement, Nelson is not entitled to summary judgment on this aspect of his consumer fraud counterclaim.

It is also manifest that Nelson is not entitled to judgment as a matter of law on the aspect of this fraud claim based on alleged violations of herbicide regulation statutes. Nelson argues that because Helena admittedly did not follow the instructions on the Prowl label, this constitutes a violation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136(a)(2)(G), and the New Jersey Pesticide Control Act (NJPCA), N.J.S.A. 13:1F-1 et seq, both of which require adherence to such labels, and which impose penalties for failure to follow the use instructions for herbicidal chemicals. Nelson maintains that because Helena violated these Acts, it committed an unconscionable business practice in violation of the Consumer Fraud Act.

Nelson's unconscionability argument fails, however, for the reason that it has no basis in law. Nelson has not come forward with a single case or any authority showing that violation of these statutes constitutes an unconscionable business practice. The statutes cited do not provide for private enforcement, but rather empower certain government agencies to prosecute violations. See N.J.S.A. 13:1F-10. Thus, FIFRA and the NJPCA have built-in enforcement provisions and do not require use of the Consumer Fraud Act to remedy the misuse of herbicides. No contrary authority has been found, and the Court is satisfied that under no set of circumstances in the present case could Nelson prove a violation of the Consumer Fraud Act by showing a violation of FIFRA or the NJPCA. Accordingly, Nelson is not entitled to summary judgment on this aspect of his counterclaim.

Furthermore, even if it is true that Helena violated the proffered herbicide acts, there is no evidence of record showing that Helena's employees were not acting in good faith when they failed to premix or add suitable compatibility agents. As discussed above, Helena was negligent, not malicious in its disregard for the Prowl use instructions, and breached its contractual responsibility to properly apply the chemicals to Nelson's crops. The New Jersey Supreme Court has stated that in order to state a claim of consumer fraud in a contract case, substantial "aggravating circumstances" must be present in addition to the breach of contract. Cox v. Sears Roebuck Co., 138 N.J. 2, 18 (1994). Helena's conduct in this case was simply negligent, not unconscionable, whether or not its failure to properly mix and apply these substances also violated FIFRA and NJPCA. Nelson has failed to proffer any facts tending to prove the presence of "aggravating circumstances" of the type of fraudulent business practice the Consumer Fraud Act is directed against. Accordingly, there is not a genuine dispute of material facts as to whether Helena's alleged violations of NJPCA and FIFRA give rise to a consumer fraud claim.

After a careful examination of Nelson's Consumer Fraud Act arguments, the Court finds that summary judgment must be entered against this aspect of his counterclaim. Because Nelson has asserted in the present motion that there is not a genuine dispute of material facts and that he is entitled to summary judgment on his consumer fraud counterclaim, it is appropriate to examine whether Nelson, as the party bearing the burden of proof on the counterclaims at trial, has made out a prima facie case of consumer fraud. It is well-recognized that the court may deny the movant's summary judgment motion and grant summary judgment against the movant if, upon the undisputed facts proffered by the movant, the opposing party (here Helena) is entitled to judgment as a matter of law despite the lack of a cross-motion. See 10A Charles Alan Wright, Arthur R. Miller Mary Kay Kane, Federal Practice and Procedure (Civil) § 2720 at 347 (3d ed. 1998). See also Banks v. Lackawanna County Comm'rs, 931 F. Supp. 359, 363 n. 7 (M.D.Pa. 1996); Weil Ceramics Glass, Inc. v. Dash, 618 F. Supp. 700, 716 (D.N.J. 1985), rev'd in part, vacated in part on other grounds, 878 F.2d 659 (3d Cir. 1989); DeFelice v. Philadelphia Bd, of Educ., 306 F. Supp. 1345 (E.D.Pa. 1969), aff'd per curiam, 432 F.2d 1358 (3d Cir. 1970).

As noted above, the Court has found that there is no evidence in the record from which a jury could conclude that Helena's conduct was violative of the Consumer Fraud Act. Nelson has had ample opportunity to come forward with evidence in support of his fraud claims and has failed to do so. This despite Nelson having submitted briefs and numerous exhibits in support of summary judgment on his counterclaim, and having submitted additional exhibits in his post-argument letter brief dated March 14, 2000. None of the evidence before the Court is sufficient to create a genuine dispute as to whether Helena violated New Jersey's Consumer Fraud Act. Nelson has only posited that Boerman may have breached an oral guarantee of quality, which, as discussed above, is not sufficient to trigger application of the Consumer Fraud Act under the governing authority of New Jersey cases. The Court also has found that Nelson's statute-based unconscionability arguments are without merit as a matter of law. In sum, the factual record does not reveal any evidence from which a jury could conclude that Helena's conduct was fraudulent or unconscionable. Accordingly, the Court will enter summary judgment against Nelson's consumer fraud counterclaim.

CONCLUSION

For the reasons discussed above, Nelson's motion for summary judgment in favor of his counterclaims will be granted in part and denied in part. With respect to Nelson's negligence counterclaim, the Court will grant Nelson's motion. At trial, Nelson's burden will be to show the damages resulting from Helena's breach of its duty of care. The Court will deny Nelson's motion with respect to his consumer fraud counterclaim, and, having determined that Nelson has had ample opportunity to adduce evidence in support of this claim and has failed to do so, will enter summary judgment against this aspect of Nelson's counterclaim. Thus, the remaining issues for trial in this case are Helena's breach of contract claim against Nelson, and the damages aspect of Nelson's negligence counterclaim. The accompanying Order is entered.

O R D E R

THIS MATTER having come before the Court on motion of counterclaim plaintiff Jesse Nelson for summary judgment in favor of his counterclaims in this case; and the Court having heard oral argument on January 12, 2000; and having considered the parties' submissions and post-argument supplements; and for the reasons expressed in today's Opinion;

IT IS this day of June, 2000 ORDERED as follows:

1. Counterclaim plaintiff Nelson's motion for summary judgment in favor of his negligence claim (Counterclaim Count I) is GRANTED, and it is ADJUDGED that Helena's breach of its duty to Nelson was a substantial cause of the as-yet-undetermined damages to Nelson's fields;

2. Counterclaim plaintiff Nelson's motion for summary judgment in favor of his Consumer Fraud Claim (Counterclaim Count II) is DENIED;

3. Summary judgment is ENTERED against Nelson's Consumer Fraud claim, and Counterclaim Count II is DISMISSED with prejudice;

4. This case shall be set for trial in the normal course. The remaining issues for decision are (1) plaintiff Helena's contract claims against Nelson, and (2) the damages aspect of Nelson's negligence counterclaim.