Ragsdale v. Timmer et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TODD RAGSDALE,
Plaintiff/Counter
Defendant,
v.
STACY TIMMER & JACOB TIMMER,
Defendants/Counter
Claimants.
Case No. 24-1170-DDC
MEMORANDUM AND ORDER
This case is about a farming relationship turned sour. Plaintiff Todd Ragsdale and
defendants Stacy and Jacob Timmer had an oral agreement for years. Under it, plaintiff, a
farmer in north central Kansas, farmed defendants’ land and, in exchange, he received two thirds
of the crops produced. Defendants, ranchers from Colorado, then asked plaintiff to custom farm
some additional land. Custom farming is a different type of relationship; plaintiff had no interest
in the crops and, instead, only billed defendants for his services. Plaintiff also cared for
defendants’ cattle in Kansas.
Strife arose when defendants discovered that plaintiff had placed his cattle on defendants’
pasture. Plaintiff insists that defendants gave him permission to do so, but defendants deny it.
After discovering plaintiff’s alleged trespass, defendants terminated the parties’ entire
relationship. They also refused to pay plaintiff for his custom-farming work.
Plaintiff has sued defendants for breach of the parties’ oral contract. He contends that
defendants failed to pay for his custom-farming services, and he also claims they failed to
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reimburse him for input costs. Defendants responded with a storm of counterclaims, seeking an
accounting, and recovery for: breach of contract, breach of fiduciary duty, fraud, Kansas
Consumer Protection Act violations, and trespass. Defendants insist they don’t owe plaintiff
anything because, highly summarized, he failed to follow certain fertilizer prescriptions,
overcharged them for his services, overcharged them for inputs, under-reported crop yields, and
failed to deliver crops.
Both parties have moved for summary judgment. But the court can’t resolve all disputes
in such a fact-intensive case with so many conflicting stories at summary judgment. Still, some
of defendants’ theories can’t withstand summary-judgment scrutiny. The court thus grants
plaintiff’s Motion for Summary Judgment (Doc. 78) in part. And it denies defendants’ Motion
for Partial Summary Judgment (Doc. 76) in whole.
I. 	Background1
Before the court recites the facts, it must take up a preliminary issue: plaintiff’s request
that the court strike the declaration of Casey Overton, submitted by defendants. Doc. 85 at 3–6.
1 	Defendants have violated the court’s local rules twice with their summary-judgment briefing.
Our local rules require double-spaced filings. D. Kan. Rule 5.1(a). But several pages of their summary-
judgment response are 1.5 spaced. Doc. 86 at 4–28. This tactic circumvented the court’s rule limiting
summary-judgment responses to 40 pages. D. Kan. Rule 7.1(d)(2). When properly spaced, defendants’
response brief is 46 pages. The court could strike the final six pages of defendants’ brief. But because
plaintiff didn’t move to strike, the court won’t do so. The court nonetheless notes that it’s unimpressed
with counsel’s disregard for our rules.
Defendants have committed a second violation. In their reply to their own summary-judgment
motion, they attached as an exhibit the summary-judgment facts that they deem uncontroverted. Doc. 91-
1. This too violates our court’s local rules. Our local rules require summary-judgment briefs to
encompass all summary-judgments facts as well. D. Kan. Rule 7.1(d)(2); D. Kan. Rule 56.1(b)(1).
Repackaging facts as an exhibit is another obvious run at circumventing page limits. The court routinely
has struck filings like this one. Uhlig LLC v. CoreLogic, Inc., No. 21-2543-DDC, 2024 WL 1557626, at
*1 (D. Kan. Apr. 10, 2024); Orchestrate HR, Inc. v. Blue Cross & Blue Shield of Kan., Inc., No. 19-4007-
DDC, 2024 WL 277893, at *2 (D. Kan. Jan. 25, 2024); McCray v. McDonough, No. 22-2154-DDC, 2023
WL 8005026, at *1–2 (D. Kan. Nov. 17, 2023). So, the court strikes defendants’ exhibit, Doc. 91-1, and
will not consider it at summary judgment.
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Overton worked at defendants’ bank on defendants’ loan for their farming and ranching
operations. Defendants proffer Overton’s declaration to show how they became suspicious of
plaintiff’s practices. Yet, at bottom, this is a breach-of-contract dispute. The legal questions that
the court must answer don’t turn on Overton’s expectations or suspicions; she wasn’t a party to
the contract. To be sure, Overton triggered defendants’ suspicions of plaintiff’s billing. But it’s
what’s actually on the bills that matters. So, the court doesn’t require the Overton declaration to
recount the facts in this dispute—it’s simply irrelevant. Demonstrating the declaration’s
irrelevance, defendants never even cite the declaration in their legal analysis. See Doc. 77 at 31–
38. Because the court needn’t consider the irrelevant Overton declaration, the court denies
plaintiff’s request to strike it as moot. With this preliminary matter out of the way, the court
turns to the facts.
The Parties
Plaintiff is a farmer and rancher from Phillips County, Kansas. Doc. 79-1 at 1 (Pl. Aff.
¶ 4). Defendants are ranchers from Colorado who own and lease land in north central Kansas.
Doc. 75 at 2 (PTO ¶ 2.a.ii.); Doc. 79-2 at 4 (S. Timmer Dep. 11:13–21). Plaintiff connected with
defendants through his wife, Doc. 79-1 at 1 (Pl. Aff. ¶ 6), and the parties began a sharecropping
Casting stones from their glass house, defense counsel complains that plaintiff failed to brief his
own summary-judgment response correctly because he addresses statements of fact together. Doc. 91 at
1. Defendants also chastise plaintiff for failing to include in his summary-judgment response his own
statements of facts not covered by defendants’ motion. Id. at 2. These complaints are bootless. The
court appreciates plaintiff condensing the facts as much as possible. Defendants worry that plaintiff’s
practice means that the court can’t tell which facts plaintiff tries to controvert. No need to worry; the
court can grasp the controversy. Nor does the court need plaintiff to set out his own additional statement
of facts in response to defendants’ summary-judgment motion—he submitted his own summary-judgment
motion, which captures all of plaintiff’s facts. This mechanism is perfectly acceptable in a case with
cross-motions for summary judgment.
In sum, plaintiff did what defendants could not: condensed, edited, and sacrificed where possible
to submit a rule-compliant—viz., double-spaced, 40-page—brief encompassing all facts. The court will
not fault plaintiff for his effort.
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relationship around 2008 or 2009, Doc. 79-2 at 14 (S. Timmer Dep. 79:10–13). Under the
sharecropping arrangement, plaintiff farmed 273 acres for defendants and plaintiff received two
thirds of the crops harvested, while defendants received the other third. Id. at 13 (S. Timmer
Dep. 75:4–14); Doc. 75 at 2 (PTO ¶ 2.a.ii.). Remember those ratios; they’ll become important
later.
The parties had no disputes about the sharecropping arrangement for a long time. Doc.
79-3 at 15 (J. Timmer Dep. 122:18–25). And defendants gave plaintiff a power of attorney in
connection with their crop-insurance policies. Doc. 77-1 at 1 (Crop Insurance Power of
Attorney).
The Trust Land & the Custom Farming Agreement
In 2021, defendants asked plaintiff to custom farm some additional land. Doc. 75 at 2
(PTO ¶ 2.a.iii.).2 Custom farming differs from sharecropping. Id. In a custom-farming
arrangement, the farmer doesn’t receive any of the crops harvested. Id. Instead, the landowner
pays the farmer a rate for services he provides. Id. Defendants wanted plaintiff to custom farm
land owned by Stacy’s3 family trusts. Id. Defendants had asked the trustee, a bank, to lease the
trust land to them on a cash-rent basis. 4 Doc. 79-6 at 5 (Swanson Dep. 23:3–10, 24:3–6).
2 	The parties have many pointless squabbles over the facts. Compare Doc. 79 at 6 (asserting
defendants lacked experience with row-crop farming), with Doc. 86 at 4 (controverting this fact to assert
that defendant Stacy Timmer grew up on a farm and rode along with her farther during row-crop harvest
and defendant Jake Timmer has done field work); compare Doc. 79 at 8 (asserting defendants contacted
plaintiff to solicit custom farming services), with Doc. 86 at 5 (controverting this fact by asserting that
defendants asked plaintiff “if he would be interested in helping them”). The parties seem to forget that
only the material facts matter. There’s no point in squabbling about facts that don’t matter. The court
has little interest in these sideshows. It thus confines its recounting of these events to facts material to the
summary-judgment disputes.
3 	Because the two defendants share the same last name, the court refers to each defendant by first
name.
4 	The parties dispute the quality of the trust land. The trustee bank’s farm manager testified that
the land was “low[ ]producing.” Doc. 79-6 at 6 (Swanson Dep. 26:19–27:2). The farm manager noted
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Plaintiff hesitated to enter a custom-farming arrangement with defendants to farm the
trust land. Doc. 79-1 at 2 (Pl. Aff. ¶ 11). He never had custom farmed before.5 Id. at 3 (Pl. Aff.
¶ 13). And defendants knew that plaintiff never had custom farmed before. Doc. 79-3 at 9 (J.
Timmer Dep. 86:22–25). Defendants had their own inexperience. They’d never hired someone
for custom farming of row crops before. Doc. 79-2 at 6–7 (S. Timmer Dep. 20:23–21:3).
In May 2022, the parties entered an oral agreement for plaintiff to provide custom-
farming services to defendants. Doc. 79-1 at 3 (Pl. Aff. ¶ 16); Doc. 79-2 at 18 (S. Timmer Dep.
116:1–5). Plaintiff testified that he tends to farm the same way, whether he owns the field,
sharecrops, cash rents, or custom farms. Doc. 77-13 at 5 (Pl. Dep. 35:4–8). Jacob testified that
he wanted plaintiff “to do what he was doing on his own acres.” Doc. 79-3 at 16 (J. Timmer
Dep. 156:12–22).
that the land suffered from drought conditions in 2022. Id. at 8 (Swanson Dep. 35:19–36:4). Plaintiff’s
agronomist, for his part, testified that defendants’ ground is “probably more in an average, to maybe a
little bit lower” and “not terrible, either.” Doc. 86-4 at 2, 6 (Van Laningham Dep. 21:2–14, 122:3–25).
The agronomist testified that, comparatively, plaintiff’s “ground is probably running a little bit better.”
Id. at 6 (Van Laningham Dep. 122:3–18). He then clarified that defendants’ “ground is . . . not terrible,
either. I mean, there’s some rougher spots in some of that. But it’s overall, good.” Id. (Van Laningham
Dep. 122:3–25).
From this testimony, each side of the caption naturally draws the conclusion most aligned with its
interests: plaintiff insists that the trust land was bad, while defendants insist that the trust land was good.
The court concludes that, for reasons that become clear in its analysis, the quality of the trust land doesn’t
matter to the summary-judgment analysis.
5 	Defendants dispute this proposition, asserting that plaintiff reported custom-farming income in a
2021 financial statement. Doc. 86 at 5; Doc. 77 at 4. The relevant financial statement lists $6500 in
“Custom Work.” Doc. 82-1 at 2. Plaintiff has explained that this $6500 came from renting equipment to
his son. Doc. 85-1 at 1–2 (Supp. Pl. Aff. ¶ 5). He explained that he used the “Custom Work” line on the
financial statement to capture this income “because it was the easiest way to add equipment rental income
on the form.” Id. And plaintiff has clarified that he never has done custom-farming work outside of the
work he performed for defendants. Id. Plaintiff used the same “Custom Work” column in a later
financial statement, which defendants also complain about, but it’s clear that “Custom Work” doesn’t
always mean custom farming. Doc. 87-1 at 2. The summary-judgment record thus leads to just one
reasonable conclusion: plaintiff never had custom farmed before he started custom farming for
defendants. Defendants’ effort to dispute this fact falls well short.
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It’s undisputed that, as part of the custom-farming arrangement, all parties expected that
plaintiff would prepare the ground, plant, apply fertilizer, apply chemicals, harvest, and transport
crops. Id. at 20–21 (J. Timmer Dep. 180:8–181:24). The parties also don’t dispute that
defendants agreed to reimburse plaintiff for his actual costs. Doc. 79-1 at 4 (Pl. Aff. ¶ 20); Doc.
79-2 at 24 (S. Timmer Dep. 162:4–13); Doc. 79-3 at 20 (J. Timmer Dep. 179:22–180:7). But the
parties heavily dispute their expectations about what plaintiff would charge for his services, and
whether they reduced plaintiff’s rates for his services to writing.
At first, plaintiff had no idea how much to charge for custom farming. Doc. 79-1 at 3 (Pl.
Aff. ¶ 15). He researched custom-farming rates with the K-State extension office and provided
defendants with rates from a K-State booklet. Id. The parties dispute the booklet plaintiff used.
Plaintiff asserts that he used rates based on a 2018 or 2019 K-State booklet. Id. Defendants
controvert this fact, insisting instead, that because plaintiff looked at the K-State booklet in 2022
he must have used the 2022 booklet. Doc. 86 at 6; see also Doc. 77-13 at 24 (Pl. Dep. 154:9–
24). And K-State updates their custom-farming-rate booklet every two years. Doc. 86-2 at 9 (J.
Timmer Dep. 193:17–25). This matters because, if plaintiff used an older booklet, then the
parties should’ve expected his custom-farming rates to change. And plaintiff’s custom-farming
rates are a major point of contention in this litigation.
The Handwritten Document
Plaintiff asserts that the parties never dedicated any part of their oral agreement on paper.
Doc. 79-1 at 3 (Pl. Aff. ¶ 16). Defendants disagree. Defendants assert that plaintiff put his
custom-farming rates into writing and provided those rates to defendants in the form of a
handwritten document. The parties agree that this handwritten document exists. Plaintiff
testified that he “wrote a deal down” for his custom-farming rates, based on the K-State custom-
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farming booklet, and sent the handwritten document to defendants. Doc. 77-13 at 23 (Pl. Dep.
151:1–22). Each side has conflicting stories about the handwritten document.
Plaintiff, in his affidavit, testified that he sent defendants this handwritten document in
January 2022, but he asserts that he intended for the handwritten document to provide defendants
with a rough concept of his custom-farming costs—not to serve as a quote. Doc. 79-1 at 3 (Pl.
Aff. ¶ 15).6 Plaintiff further testified that he didn’t know if defendants had agreed to the custom-
farming rates, and he was “trying to give them an idea of where things could be.” Doc. 77-13 at
23 (Pl. Dep. 152:1–13).
Defendants insist that this handwritten document represents agreed-upon prices for
plaintiff’s custom-farming services. Yet defendant Jacob testified that the parties didn’t agree to
any specific terms on the custom-farming arrangement. Doc. 79-3 at 18 (J. Timmer Dep.
169:21–170:5). Defendant Stacy, for her part, testified that she never talked to plaintiff about the
handwritten document. Doc. 79-2 at 19 (S. Timmer Dep. 117:17–24). Jacob also testified that
he and plaintiff never talked about defendants’ expectations for the custom-farming arrangement.
Doc. 79-3 at 19 (J. Timmer Dep. 174:11–175:24). To his credit, Jacob offered to “take partial
blame for that.” Id. (J. Timmer Dep. 175:20–176:1). And Jacob testified that he and plaintiff
had just a “friend conversation” and didn’t have a business conversation because plaintiff and
defendants had worked together for a long time. Id. at 20 (J. Timmer Dep. 177:16–25).
6 	Defendants assert that plaintiff’s affidavit tries to change his deposition testimony, and the court
thus should disregard it. Doc. 91 at 3. The court rejects this assertion. Plaintiff’s affidavit and his
deposition testimony are largely consistent. Plaintiff testified that he didn’t know if defendants had
agreed to the rates on the handwritten document and he’d merely tried to give them an idea of his prices.
Likewise, plaintiff’s affidavit claims he didn’t intend for the handwritten document to serve as a quote.
To the extent plaintiff’s affidavit and deposition aren’t consistent, the court finds plaintiff’s deposition
confusing, and the affidavit clears up this confusion.
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Despite this testimony about the lack of specificity, Jacob also testified that he and Stacy
had agreed to the prices on the handwritten document. Id. (J. Timmer Dep. 179:4–21). And it’s
undisputed. Plaintiff never updated the rates on the handwritten document, so plaintiff never
informed them of any rate increases. Doc. 77-13 at 23 (Pl. Dep. 152:17–19).
When asked which numbers on the handwritten document might change, plaintiff started
listing things other than his own labor—i.e., chemicals, fuel rates, seed prices. Id. at 23–24 (Pl.
Dep. 152:20–153:5). Defendants thus assert that plaintiff told them that only plaintiff’s input
costs would change over time and never told them that his labor costs would increase. Doc. 86 at
6. Yet Jacob testified that plaintiff’s custom-farming rates increased in 2023, Doc. 79-3 at 20 (J.
Timmer Dep. 179:2–21), and defendants don’t challenge these rate increases as a breach of
contract, Doc. 75 at 16 (PTO ¶ 4.b.). Also, Stacy testified that she understood that the
handwritten document represented rates only for crop year 2022. Doc. 79-2 at 19 (S. Timmer
Dep. 117:17–21).
In sum, the summary-judgment record is unclear whether the handwritten document is
part of the parties’ agreement. And it’s also unclear what, exactly, defendants expected to
happen to plaintiff’s custom-farming rates over time.
2022
Throughout 2022, plaintiff prepared the ground, planted, applied fertilizer, applied
chemicals, harvested, and transported crops. Doc. 79-1 at 4 (Pl. Aff. ¶ 22). In 2022, plaintiff
produced crops “nearly consistent with” his own crops. Id. (Pl. Aff. ¶ 24). Plaintiff also
submitted a summary that shows the trust land’s production compared to plaintiff’s own fields
and the county average:
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2022 Crop 	County Average
(bu/ac)
Plaintiff’s Average
(bu/ac)
Custom-Farmed
Average
(bu/ac)
Corn 	64.8 	54.62 	49.29
Beans 	17.9 	6.28 	18.88
Milo 	64.6 	70.27 	38.67
Doc. 79-11 at 2 (Fowler Summary A). 7 In November 2022, once the crop season ended, plaintiff
and defendants agreed to have Cooperative Producers, Inc. (CPI), a farmers’ cooperative, sample
the trust land’s soil. Doc. 79-1 at 6 (Pl. Aff. ¶ 27). Defendants were provided with the sample
results no later than February 2, 2023.8 Id.
7 	Defendants fault the Fowler summary for deriving data from crop-insurance records. Doc. 86 at
7–8. Defendants complain that the crop-insurance records aren’t accurate because crop insurance doesn’t
track production if a crop produced over insurance coverage. Id. at 8. According to defendants,
plaintiff’s financial consultant admits that crop-insurance reporting isn’t accurate because it doesn’t track
harvest production above the insurance guarantee. Id. at 20 (citing Doc. 79-27 at 3 n.5 (Seymour
Summary B)). In the footnote defendants cite, plaintiff’s financial consultant addressed a field called
“Grandpa’s Place” and noted a crop harvest over insurance guarantee, so, the financial consultant wrote,
“Production to Count for loss estimate was not determined by insurance adjuster.” Doc. 79-27 at 3 n.5
(Seymour Summary B). This is defendants’ smoking gun that—even though difficult to follow—
purportedly shows that crop-insurance data is unreliable.
The court sees defendants’ complaints as a red herring, not a smoking gun. Plaintiff’s financial
consultant has clarified that the footnote explains “that if there is no crop loss, then crop production is not
tracked for production in excess of insured coverage for loss purposes.” Doc. 92-3 at 1 (Supp. Seymour
Aff. ¶ 3) (emphasis in original). The consultant explained it this way, “total bushel production is still
reported on the Claim Information & Deferral form by the insurance adjusters” and this information
simply exists on a different form. Id. The court thus rejects defendants’ attempt to cast doubt on crop-
insurance data. Indeed, defendants themselves rely heavily on crop-insurance data. See Doc. 86 at 8
(relying on crop-insurance data to show that plaintiff stored a certain amount of corn in 2022).
8 	Defendants attempt to controvert this fact, asserting that plaintiff didn’t share CPI’s soil-sample
results with them. Doc. 86 at 9. But the testimony defendants cite doesn’t support their attempt. Plaintiff
testified that he couldn’t recall sharing soil samples with defendants for the sharecrop fields. Doc. 86-3
at 6 (Pl. Dep. 129:12–22). Plaintiff then testified that he did share the soil samples for the trust fields. Id.
(Pl. Dep. 130:1–9). As further confirmation, plaintiff has adduced an email from CPI’s agronomist to
defendants with the soil-sample results, Doc. 79-22 at 2 (Pl. Ex. 12).
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The parties have several disputes about plaintiff’s 2022 farming. Plaintiff submitted
invoices to defendants for the custom-farming work, and defendants paid those invoices. Doc.
79-1 at 4–5 (Pl. Aff. ¶ 25). But, because defendants assert that plaintiff had agreed to the rates
on the handwritten document, they claim that plaintiff overcharged them on each invoice he
submitted for services performed on the trust land in 2022. See Doc. 77 at 16–19. Beyond
plaintiff’s services, defendants dispute other charges on the 2022 invoices. Defendants also
assert that plaintiff didn’t deliver all their grain. The court considers these disputes later, in its
analysis.
2023
In 2023, plaintiff again performed custom-farming services for defendants on the trust
land. He again prepared the ground, planted, applied fertilizer, applied chemicals, harvested, and
hauled crops. Doc. 79-1 at 6 (Pl. Aff. ¶ 28). Based on CPI’s soil sampling, CPI prescribed
fertilizer amounts for defendants’ land. Id. (Pl. Aff. ¶ 29). Plaintiff asserts that he used these
fertilizer prescriptions, id., but defendants heavily dispute this. The court considers the debate
about the CPI fertilizer descriptions later.
Plaintiff’s farming of the trust land achieved, in his view, reasonable yields. Here’s how
the trust land’s yield stacked up against the county average:
Crop 	Trust Land (bu/ac) 	Phillips County Average
(bu/ac)
Corn 	77.25 	66.53
Soybeans 	23.09 	17.92
Milo 	53 	51.73
Wheat 	17.24 	31.85
Id. (Pl. Aff. ¶ 31); Doc. 79-51 at 7 (Kehler Report). Plaintiff also asserts that the trust land’s
wheat yield outpaced his own production averages. Doc. 79-1 at 6 (Pl. Aff. ¶ 31). Defendants
assert that comparing the trust land results to the county average isn’t appropriate because
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plaintiff instructed CPI on his yield goals, CPI prescribed fertilizer to enable plaintiff to meet
those goals, but then plaintiff didn’t apply the proper amount of fertilizer. Doc. 86 at 12. The
court explains CPI next but, first, it summarizes the disputes about the plaintiff’s 2023 farming.
Many disputes arise from plaintiff’s 2023 farming. Plaintiff claims that defendants
received all the grain he produced for them in 2023—both the trust land grain and the sharecrop
grain, Doc. 79-1 at 6 (Pl. Aff. ¶ 30), but defendants heavily dispute this. Defendants also dispute
the invoices plaintiff submitted in 2023 because, according to defendants, the 2023 invoices
overcharged them for plaintiff’s custom-farming services and marked up inputs.
CPI Precision Agriculture
One of defendants’ allegations of breach of contract centers on CPI’s Precision
Agriculture. Defendants’ breach-of-contract theory goes like this: the parties agreed that
plaintiff would farm defendants’ fields exactly as he farmed his own. And, according to
defendants, plaintiff utilized CPI’s Precision Agriculture on his own fields, so he should’ve used
it on theirs.
When plaintiff amended his Answer to defendants’ Counterclaim, he admitted that
defendants “utilized the CPI Precision Agriculture Program, not including ‘FieldAlytics[.]’”
Doc. 29 at 3 (Am. Answer ¶ 12).9 Plaintiff also admitted that he informed defendants “that he
had utilized the CPI Program for his own land.” 10 Id. (Am. Answer ¶ 14). Plaintiff told
9 	Fed. R. Civ. 56(c)(1)(A) (explaining that party moving for summary judgment may support facts
with “admissions”); Saghian v. Shemuelian, 835 F. App’x 351, 353 (10th Cir. 2020) (“‘[A]dmissions in
the pleadings are binding . . . and may support summary judgment[.]’” (quoting Mo. Hous. Dev. Comm’n
v. Brice, 919 F.2d 1306, 1315 (8th Cir. 1990))).
10 	Plaintiff now insists that a CPI Precision Agriculture Program doesn’t exist as a program and
instead calls CPI Precision Agriculture “a series of different services offered[.]” Doc. 85 at 7. There’s
some support in the summary-judgment record for this view. The CPI agronomist testified that Precision
Agriculture is “just services that we offer, you know. It’s not a set program.” Doc. 79-8 at 6 (Van
Laningham Dep. 41:2–6). The problem is that plaintiff’s Amended Answer already called it a “CPI
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defendants that he used CPI for soil samples, to understand the condition and needs of the soil
better. Doc. 77-13 at 20 (Pl. Dep. 129:4–10). Indeed, for many years, plaintiff used CPI as his
agronomist to sample his soil and recommend fertilizer application. Doc. 75 at 2 (PTO ¶ 2.a.vi.);
Doc. 79-1 at 4 (Pl. Aff. ¶ 19.b.).
CPI’s many services include an agronomist prescribing fertilizer rates. CPI can make
fertilizer and other recommendations based on data that they get from farmers. When plaintiff
finished planting, he would download information from the John Deere system in his tractor.
Doc. 77-13 at 21 (Pl. Dep. 134:13–21). He didn’t share that information with CPI.11 Id. CPI’s
agronomist testified that CPI never has collected data about plaintiff’s fertilizer application.
Doc. 85-3 at 6 (Van Laningham Dep. 51:23–52:20).
Plaintiff attested that he never discussed precision fertilizer application with defendants.
Doc. 79-1 at 3 (Pl. Aff. ¶ 17). In contrast, defendant Jacob testified that the parties had a
“general conversation” about precision fertilizer application but didn’t discuss specifics. Doc.
86-2 at 6 (J. Timmer Dep. 156:3–19). Jacob admitted that he never complained to plaintiff about
access to the CPI program. Doc. 85-6 at 9 (J. Timmer Dep. 168:6–22). He also admitted that he
“should have asked.” Id. During the 2023 planting season, Jacob asked CPI’s agronomist about
access to CPI’s information, and the agronomist explained that Jacob needed plaintiff’s
permission to access plaintiff’s account. Id. at 5 (J. Timmer Dep. 140:3–17). Plaintiff gave his
Precision Agriculture Program.” Doc. 29 at 3 (Am. Answer ¶ 12). And, as established above, this counts
as an admission.
11 	Defendants assert that plaintiff failed to share this data with CPI for just their fields. Doc. 77 at 9.
Plaintiff’s testimony doesn’t support this assertion fully. It’s simply not clear whether plaintiff is saying
he didn’t share data with CPI for any field, or just for defendants’ fields. See Doc. 77-13 at 21 (Pl. Dep.
134:13–21).
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permission one week later. Id. (J. Timmer Dep. 140:17–23). Defendant Stacy, for her part,
knew little about CPI. Doc. 85-5 at 11 (S. Timmer Dep. 201:23–202:5).
Jacob further testified that they never talked about precision seed or chemical application,
however. Doc. 79-3 at 16–17 (J. Timmer Dep. 155:19–157:2). Jacob had a very limited
understanding of plaintiff’s use of precision chemical application in his own operation. Id. at 17
(J. Timmer Dep. 157:3–14). Stacy, for her part, never talked to plaintiff about CPI. Doc. 79-2 at
20 (S. Timmer Dep. 126:17–23).12
CPI Fertilizer Prescriptions
CPI utilized a soil analysis of plaintiff’s fields to create field maps with zones, and
plaintiff and CPI’s agronomist worked together to set a yield goal for each zone. Doc. 77-13 at
14, 25, 26 (Pl. Dep. 106:3–12, 173:1–5, 180:3–10). Plaintiff and the CPI agronomist set yield
goals for defendants’ fields, too. Id. at 15 (Pl. Dep. 112:11–20). After they set these yield goals,
plaintiff and the agronomist would work up a prescription for fertilizer. Id. at 16 (Pl. Dep.
113:11–22). CPI then provided variable rates for fertilizer application that suggested different
fertilizer application rates for different field zones. Id. at 9 (Pl. Dep. 50:10–51:12). The CPI
agronomist would email the fertilizer prescriptions to plaintiff, or bring over a thumb drive for
plaintiff to use in his tractor. Id. at 17 (Pl. Dep. 120:4–11). The CPI agronomist testified that, if
12 	The parties mention “FieldAlytics,” a software program that generates reports for CPI. Doc. 79-1
at 4 (Pl. Aff. ¶ 19.a.); Doc. 79-8 at 7 (Van Laningham Dep. 57:18–58:18). The CPI agronomist testified
that he uses FieldAlytics for its detailed information on soil samples. Doc. 86-4 at 5 (Van Laningham
Dep. 115:9–17). Jacob testified that defendants never discussed “FieldAlytics” with plaintiff. Doc. 79-3
at 17 (J. Timmer Dep. 157:24–158:8). Plaintiff testified that he doesn’t use FieldAlytics. Doc. 79-1 at 4
(Pl. Aff. ¶ 19.a.). The court thus concluded that the evidence about FieldAlytics is irrelevant.
On the topic of data, the parties also discuss FieldView, another separate platform. The court
similarly concludes that the evidence about FieldView is irrelevant.
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plaintiff applied less fertilizer than CPI prescribed, it would surprise him. Doc. 77-20 at 5 (Van
Laningham Dep. 206:15–18).
Plaintiff deferred to CPI’s fertilizer recommendations. Doc. 77-13 at 15 (Pl. Dep. 109:4–
12). He found the recommendations mostly accurate and followed them most of the time. Id. at
13 (Pl. Dep. 103:3–104:8).
Mat Hohner, a former farm hand who worked for plaintiff, testified, “we always had
good luck with [CPI], with the [fertilizer] scrips being what we need.” Doc. 77-21 at 2, 5
(Hohner Dep. 10:20–25, 41:3–7). He also testified that the tractor operator can’t override the
system on the planter or drill that applies the fertilizer at a variable rate prescribed by the
fertilizer prescription. Id. at 4 (Hohner Dep. 31:12–32:4). He wouldn’t want to override the
fertilizer setting because to do so “maybe not be following whatever has talked about and agreed
on” previously. Id. (Hohner Dep. 32:5–14). But, according to Hohner, plaintiff applied less
fertilizer than called for by CPI’s fertilizer prescription. Id. at 10 (Hohner Dep. 103:15–104:2).
Hohner testified, “we would always go less, just to make it a littler cheaper because [the
CPI prescription] was calling for an extreme amount”—that is, CPI called for “a high rate of
fertilizer.” Id. (Hohner Dep. 104:5–15). He also testified that they would deviate from CPI’s
prescription “if it was calling for a real high rate of fertilizer.” Id. at 5 (Hohner Dep. 41:11–20).
In that case, plaintiff would reduce the fertilizer rate to a “cost-effective” level that would still
have enough product to help. Id. According to Hohner, plaintiff always would go lower than the
prescription, he would never go over what CPI prescribed. Id. To change the prescription,
plaintiff would use his computer to modify the rates on the CPI thumb drive. Id. (Hohner Dep.
41:21–42:8).13
13 	Plaintiff objects to Hohner’s testimony, arguing it lacks foundation. Hohner testified that his only
involvement with CPI was helping to unload fertilizer. Doc. 85-7 at 3 (Hohner Dep. 19:2–8). Hohner
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Defendants assert that, in 2023, plaintiff applied zero fertilizer to one-third of a field
within the trust land. Doc. 77 at 8. That assertion doesn’t match plaintiff’s deposition testimony.
In the deposition, defense counsel showed plaintiff a map, which counsel claims shows no
fertilizer applied to one third of the field. Doc. 77-13 at 27 (Pl. Dep. 181:1–3). Counsel then
asks, “Are you reading that the same way?” Id. (Pl. Dep. 181:4). Plaintiff responds, “Yes.” Id.
(Pl. Dep. 181:5). But reading a document means little; plaintiff never actually testified that he
applied no fertilizer to a field.
To the contrary, plaintiff immediately went on to testify that the fertilizer application
should match the CPI prescription. Id. (Pl. Dep. 181:6–8). When asked to explain why if,
hypothetically, the fertilizer applied didn’t match CPI’s prescription, plaintiff explained that he
turned the fertilizer from the prescription of 92 or 98 pounds per acre to 50 pounds per acre. Id.
(Pl. Dep. 181:9–20). Plaintiff explained that he applied less fertilizer because, by this point in
October 2023, defendants hadn’t paid him. Id. (Pl. Dep. 182:9–15). Indeed, to this day,
defendants haven’t paid plaintiff for any of his 2023 custom-farming work. 14 Doc. 79-2 at 22
(S. Timmer Dep. 154:9–12).
said he preferred the simplicity of trucking, so he mostly performed that work. Id. at 6 (Hohner Dep.
46:1–22). Hohner didn’t operate the sprayers—he just delivered the fertilizer to the sprayer—so he never
operated any of the variable-rate controls. Id. at 3 (Hohner Dep. 19:21–20:1). Hohner also testified that
he never planted or drilled any crops on defendants’ fields. Id. at 4–5 (Hohner Dep. 32:24–33:7). His
only involvement with defendants’ fields was hauling fertilizer in or hauling grain out; he never planted,
tilled, applied chemicals, or applied fertilizer to defendants’ fields. Id.; see also id. at 13 (Hohner Dep.
103:4–6). And he never communicated with plaintiff or defendants about the custom-farming agreement.
Id. at 11 (Hohner Dep. 84:13–16).
The court rejects plaintiff’s objection. Hohner hauled fertilizer, which is “sufficient to support a
finding that” he knew how much or how little fertilizer plaintiff applied. See Fed. R. Evid. 602 (standard
required to show personal knowledge).
14 	Defendant Stacy has submitted a declaration in which she asserts that plaintiff told defendants he
was using CPI’s fertilizer prescriptions, but plaintiff never shared the prescriptions with them and never
mentioned that he had declined to follow CPI prescriptions on defendants’ fields. Doc. 77-14 at 1 (S.
Timmer Decl. ¶ 7). The court strikes this part of Stacy’s declaration as a sham declaration.
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Grain Hauling
Defendants claim that some of their grain is missing. Once a crop is harvested and
loaded onto a semi, the semi can take the grain several places. One of those places is a grain
elevator. At a grain elevator, the semi driver parks on the elevator’s scale, and the elevator
weighs the semi with its full load of grain. Doc. 77-13 at 10 (Pl. Dep. 59:2–60:1). The driver
provides the elevator the landowner’s information. Doc. 85-7 at 7 (Hohner Dep. 52:15–21).
After the semi dumps the grain, the elevator re-weighs the semi and its empty trailer, then
provides the driver with a weight-scale ticket. Doc. 77-13 at 10 (Pl. Dep. 59:2–60:11). This
ticket provides the grain load’s weight, the grain’s owner, and other details. Id. (Pl. Dep. 60:3–
11). The elevator provides proof of yield for crops stored at that specific elevator. Id. at 37–38
(Pl. Dep. 252:21–253:6).
Instead of taking grain to the elevator, a farmer can self-store grain. Plaintiff did just
that; he hauled some grain from defendants’ fields to his father’s feedlot and stored it in grain
bins there. Id. at 12 (Pl. Dep. 67:24–68:7). Plaintiff testified that he hauled defendants’ grain
When deciding “whether a material issue of fact exists, an affidavit may not be disregarded
because it conflicts with the affiant’s prior sworn statements.” Franks v. Nimmo, 796 F.2d 1230, 1237
(10th Cir. 1986). But a court “will disregard a contrary affidavit when . . . it constitutes an attempt to
create a sham fact issue.” Id. When deciding whether an affidavit or a declaration creates merely a sham
fact issue, the pertinent factors include “whether the affiant was cross-examined during [her] earlier
testimony, whether the affiant had access to the pertinent evidence at the time of [her] earlier testimony or
whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects
confusion which the affidavit attempts to explain.” Id.
Here, Stacy testified at her deposition that she never discussed fertilizer prescriptions with
plaintiff. Doc. 85-5 at 10 (S. Timmer Dep. 197:1–198:10). She also testified that plaintiff never told her
that an agronomist would make fertilizer determinations. Doc. 79-2 at 29 (S. Timmer. Dep. 196:2–9).
Yet Stacy’s declaration asserts that plaintiff told defendants he was using CPI’s fertilizer prescriptions.
Doc. 77-14 at 1 (S. Timmer Decl. ¶ 7). The court disregards this second, contrary assertion based on the
Franks factors just articulated. Stacy was cross-examined during her deposition. She certainly had
access to her own knowledge at her deposition; there’s no reason to think she discovered new personal
knowledge after her deposition testimony. And Stacy’s earlier testimony reflects no confusion.
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somewhere other than the elevator if the crop was too wet to take to the elevator. Doc. 85-10 at
3 (Pl. Dep. 69:12–17). Plaintiff explained that his bins have fans and heaters to dry the grain. Id.
(Pl. Dep. 70:3–10). Plaintiff also testified that he hauled defendants’ grain to the bins if the
grain’s test weight was too low and the elevator might deduct payment. Id. (Pl. Dep. 69:12–
70:2). And those are the only two situations when plaintiff wouldn’t take defendants’ crops to
the elevator. Id. (Pl. Dep. 70:18–25).
Plaintiff’s father, Robert, ran the scale at the feedlot and documented where the load
originated. Doc. 77-13 at 12 (Pl. Dep. 65:15–21). Hohner, the farm hand, testified slightly
differently; he testified that the driver operated the scale himself and recorded which field had
originated the crop. Doc. 85-7 at 9–10 (Hohner Dep. 60:3–61:2, 62:21–63:10). The feedlot
scales also produced a weight ticket. Doc. 77-13 at 11 (Pl. Dep. 64:18–24).
Hohner also testified that the feedlot bins typically stored corn, but sometimes stored
wheat and milo. Doc. 77-21 at 6 (Hohner Dep. 63:16–22). Plaintiff maintains that Hohner is
incorrect; he stored only corn from defendants’ fields in the feedlot bins. Doc. 85-1 at 3 (Supp.
Pl. Aff. ¶ 8). Indeed, plaintiff testified that he just hauled corn to the bins. Doc. 79-58 at 7 (Pl.
Dep. 269:5–13). Plaintiff’s father explained that Hohner wouldn’t have known everything going
on at the feedlot because he wasn’t there all the time. Doc. 85-9 at 3 (R. Ragsdale Dep. 52:9–
23).
It’s undisputed that plaintiff didn’t tell defendants that he took crops from their fields to
the feedlot.15 Doc. 77-14 at 2 (S. Timmer Decl. ¶ 9).
15 	Plaintiff’s father, Robert, testified that, as far he knew, all of defendants’ grain went to the
elevator. Doc. 77-22 at 2 (R. Ragsdale Dep. 58:6–14). Robert also testified, however, that only plaintiff
knew where defendants’ crops went; Robert wasn’t involved in that decision. Doc. 85-9 at 3 (R. Ragsdale
Dep. 52:9–15).
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Hohner, who drove a truck for plaintiff’s operation, testified that everything from
defendants’ trust land went to the elevator. Doc. 85-7 at 7 (Hohner Dep. 49:25–50:13). He then
described the slightly complicated process plaintiff’s operation used to decide what to haul
where. For the land plaintiff sharecropped with defendants, Hohner would weigh the load first,
at either the elevator or the feedlot. Id. (Hohner Dep. 50:14–23). Then, plaintiff would adjust
what to haul into the elevator for defendants’ share. Id. (Hohner Dep. 50:14–51:1). For
example, for corn—a crop plaintiff stored at his bins—the harvest crew would haul the first few
loads to the bins at the feedlot. Id. at 8 (Hohner Dep. 53:14–54:12). Toward the end of a field,
they’d calculate the yield utilizing the combine’s yield monitor and the weight of the loads
hauled off the field. Id. (Hohner Dep. 54:7–20). Then, they’d take the later loads to the elevator
to cover defendants’ share of the crop. Id. (Hohner Dep. 53:18–54:6). For corn, plaintiff
confirmed that he added together the tickets from the elevator and the bins at the feedlot and,
based on these calculations, ensured defendants’ share went to the elevator. Doc. 77-13 at 39
(Pl. Dep. 269:5–25).
Hohner estimated that they used the elevator’s scale around 90% of the time. Doc. 85-7
at 8 (Hohner Dep. 56:8–16). If they didn’t take a semi to the elevator, they used the storage bins’
scale, which produced a printout that was then separated by field. Id. at 9 (Hohner Dep. 58:24–
59:14). And the driver would document the field where the load originated, and the landlord’s
name. Id. (Hohner Dep. 60:9–20). In sum, according to Hohner, “all the bushels were kept track
of for each field.” Id.
Defendants subpoenaed scale tickets from plaintiff’s father’s feedlot. Plaintiff’s father
testified that the feedlot doesn’t have scale tickets for plaintiff’s grain, nor for defendants’ grain.
Doc. 77-22 at 7 (R. Ragsdale Dep. 98:3–19). Plaintiff explained that, for the feedlot scales, he
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and his father typically don’t retain the scale tickets long term. Doc. 85-1 at 3 (Supp. Pl. Aff.
¶ 9). They provide the tickets to their crop-insurance company for proof of yield, then discard
them. Id. Defendant Stacy, for her part, asserts plaintiff never provided defendants with weight
tickets from the feedlot, Doc. 77-14 at 2 (S. Timmer Decl. ¶ 11), and that defendants’ crop-
insurance-agency records don’t contain weigh tickets from the feedlot, Doc. 91-2 at 2 (S.
Timmer Decl. ¶ 18).
Despite this kerfuffle about where to deliver grain, plaintiff asserts that defendants
received their one-third share of grain through transfers at the elevator. Doc. 85-1 at 3–4 (Supp.
Pl. Aff. ¶ 9). Plaintiff explained that when it came to defendants’ grain—except grain delivered
to the grain elevator—he transferred a like amount of grain into defendants’ name at the elevator.
Id. According to plaintiff, this “is a common practice in sharecropping as grain is fungible.” Id.
The Pasture Debacle
In May 2023, north central Kansas suffered from drought. Doc. 77-29 at 2 (J. Timmer
Decl. ¶ 16). Drought affected every cattle rancher—plaintiff included. Doc. 77-13 at 29 (Pl.
Dep. 189:9–20). That month, plaintiff, looking for a place to put his cattle on grass, texted
defendant Jacob about sending a load of cattle to Colorado. Id. at 28–29 (Pl. Dep. 188:5–
189:12). Jacob tried to locate available grass for plaintiff’s cattle in Colorado. Id. at 29 (Pl. Dep.
189:21–190:11).
Jacob came to Kansas on May 18 to assess the conditions of his pasture and the trust’s
pasture, which defendants had begun leasing from the trust in 2022. Doc. 77-29 at 1, 2 (J.
Timmer Decl. ¶¶ 11, 17). Following this assessment, Jacob and the trustee agreed to rest the
pastures. Id. at 1, 2 (J. Timmer Decl. ¶¶ 12, 18–19). Jacob decided to take all of defendants’
cattle back to Colorado. Id. at 2 (J. Timmer Decl. ¶ 20). And Jacob told plaintiff about this
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decision. Id. (J. Timmer Decl. ¶ 21). Jacob and plaintiff’s son loaded defendants’ cattle for the
cattle’s move to Colorado. Doc. 77-13 at 29 (Pl. Dep. 192:5–8).
After defendants took their cattle to Colorado, plaintiff moved his cattle onto defendants’
pastures. Doc. 77-21 at 8 (Hohner Dep. 89:11–25). Plaintiff testified that defendants gave him
permission to do so in a phone call in early May, before defendants had moved their cattle to
Colorado.16 Doc. 77-13 at 30–31 (Pl. Dep. 196:13–197:19). Plaintiff’s son testified that his
father had mentioned that he’d received a call from defendants and defendants said it was okay
for plaintiff to put his cattle on defendants’ property.17 Doc. 79-59 at 4 (T. Ragsdale Dep. 50:5–
11). Plaintiff also documented his pasture usage. Doc. 79-55 at 11 (Cattle Logs). When asked
why defendants would allow someone to put cattle on pastures after deciding not to use the
pastures out of concern for their condition, plaintiff responded, “I don’t know.” Doc. 77-13 at 31
(Pl. Dep. 199: 20–25).
Defendants have testified that they did not give plaintiff permission to put cattle on their
pastures. Doc. 77-14 at 6 (S. Timmer Decl. ¶ 55); Doc. 77-29 at 2 (J. Timmer Decl. ¶ 23).
16 	Plaintiff implies that defendants have lied about this phone call based on suspicious discovery
activity. Defendant Stacy testified that she didn’t recall any phone calls with plaintiff in May 2023. Doc.
79-2 at 27 (S. Timmer Dep. 175:4–18). And defendant Jacob testified he might have talked to plaintiff in
the second half of May, but never in the first half. Doc. 79-3 at 23 (J. Timmer Dep. 225:17–226:25).
Defendants then produced phone records through May 11, and none showed any lengthy calls with
plaintiff. Doc. 79-53 (Timmer Phone Logs 5/5/25). Next, plaintiff issued a specific document request for
the rest of the phone logs. Doc. 79-1 at 7 (Pl. Aff. ¶ 40). Defendants produced the rest of the phone logs,
which showed a 27-minute phone call between plaintiff and defendants on May 12—one day outside the
date of defendants’ initial production. Doc. 79-54 at 6 (Timmer Phone Logs 6/16/25). And, contrary to
Jacob’s testimony, those phone records show several calls to plaintiff in early May. See id. at 5.
17 	Defendants assert that plaintiff told his son that plaintiff didn’t have permission to put his cattle
on defendants’ pastures. Doc. 77 at 27. Indeed, plaintiff’s son testified as much. Doc. 77-30 at 3 (T.
Ragsdale Dep. 30:18–23). But, later in his deposition, plaintiff’s son clarified that plaintiff made that
statement in November 2023, after the cattle were removed. Doc. 85-17 at 3 (T. Ragsdale Dep. 49:1–11).
Plaintiff’s son submitted a declaration clarifying his deposition testimony. Doc. 85-2 at 2 (T. Ragsdale
Decl. ¶ 7).
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Plaintiff removed the calves in September 2023, and removed the rest of his cattle from
defendants’ pastures in November 2023. 18 Doc. 79-1 at 8 (Pl. Aff. ¶ 41); Doc. 79-56 at 5–6 (R.
Ragsdale Dep. 84:19–85:10). The parties dispute the pastures’ condition after plaintiff’s cattle
finished grazing on the pasture. Defendants submitted photos of the pastures and assert that
these photos show bare pasture. Doc. 77 at 28. Here’s one photo:
Doc. 77-35 (Pasture Photo). One of defendants’ friends, Angela Bond, took this photo and
testified that, based on her experience growing up on a farm, the pasture is bare, with no grass
remaining for grazing. Doc. 77-32 at 2 (Bond Dep. 10:16–11:20). Plaintiff points out that Bond
took her photos from the road, by the front gate—the most trafficked part of the pasture. Doc.
85-21 at 4 (Bond Dep. 15:3–12).
Plaintiff didn’t see defendants between May and November of 2023. Doc. 77-13 at 32
(Pl. Dep. 204:10–15). In November, defendant Jacob texted plaintiff and asked if his cattle had
18 	Hohner, plaintiff’s farmhand, suggested that they had removed all of plaintiff’s cattle in
November 2023, and doesn’t mention any September movement. Doc. 77-21 at 9 (Hohner Dep. 98:14–
21). This discrepancy in the summary-judgment record is immaterial. It’s also not clear if plaintiff took
the bulls off of the pasture in September or if he never had bulls on pasture there. Doc. 79-56 at 5–6 (R.
Ragsdale Dep. 84:19–85:10).
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grazed on defendants’ pastures. Doc. 79-57 at 2 (Texts). In late November, Jacob told plaintiff
that they had “a lot to settle up on so until then stay off of everything we have[.]” Id. at 3
(Texts). Plaintiff tried to talk to defendants, and informed Jacob that he’d planned either to pay
for the pasture usage or reduce his farming bills accordingly. Id. Jacob responded that he didn’t
want to talk and explained that he’d wanted to leave the pastures alone, given the drought. Id.
Jacob said, “We wouldn’t have agreed to you using or leasing any of it . . . . You stole it.” Id.
Plaintiff responded, “I’m sorry you feel that way. I’ve never taken advantage of you in any way.
I wouldn’t have put cattle on there without you or Stacy’s guidance.” Id. Defendants then
terminated their relationship with plaintiff. Doc. 79-1 at 8 (Pl. Aff. ¶ 42).
Defendant Jacob attested that plaintiff, by putting cattle on pasture owned by the trust,
put defendants at risk of losing both the pasture lease from the trust and the ability to farm the
trust land. Doc. 77-29 at 2 (J. Timmer Decl. ¶ 25). Jacob testified that the pasture lease with the
trust didn’t allow defendants to sublease the trust land pasture. Doc. 77-15 at 2 (J. Timmer Dep.
97:24–98:6). But Jacob doesn’t claim expertise in interpreting legal documents. And, contrary
to Jacob’s testimony, the pasture lease provides that defendants couldn’t assign the lease to
another. Doc. 77-19 at 1 (Pasture Lease). It doesn’t provide that defendants couldn’t sublease
the pasture to a third party.
When plaintiff took his cattle off defendants’ pastures, the cattle were in good condition
and had gained weight. Doc. 77-22 at 5 (R. Ragsdale Dep. 91:3–9). Plaintiff testified that he
“probably” could have kept his cattle on his own land from May to November 2023. Doc. 77-13
at 32–33 (Pl. Dep. 204:24–205:4). Instead, plaintiff put his cattle on defendants’ land and, as a
result, his cattle didn’t require as much of plaintiff’s hay as they otherwise would have. Id. at 33
(Pl. Dep. 205:5–15). Plaintiff testified further that, if defendants’ pastures were unavailable, he
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probably could’ve put half of the cattle on his own pastures, and maybe more. Id. (Pl. Dep.
208:21–25).
Defendants’ Response to the Alleged Trespass
Before defendants learned of plaintiff’s alleged trespass, they’d planned to haul 160 cattle
to Kansas for the winter to graze on stalk residue, hay, and in pastures, under plaintiff’s
supervision. Doc. 77-29 at 2 (J. Timmer Decl. ¶ 28). Instead, defendants kept their cattle in
Colorado, based on (i) the Kansas pastures’ condition after plaintiff’s cattle had grazed there
over the summer and fall and (ii) they no longer trusted plaintiff. Id. (J. Timmer Decl. ¶ 29).
Defendants didn’t know or trust anyone else available to manage a herd in north central Kansas.
Id. (J. Timmer Decl. ¶ 30). Stacy complains that plaintiff, after his alleged trespass, didn’t
identify any locations in Kansas where they could graze their cattle. Doc. 77-14 at 5 (S. Timmer
Decl. ¶ 54).
So, defendants kept their cattle in Colorado that winter and incurred costs feeding them.
Doc. 77-29 at 3 (J. Timmer Decl. ¶ 31). But they had a late start; they only started preparing to
feed their cattle in November 2023. Id. (J. Timmer Decl. ¶ 32). Defendants didn’t have the
necessary hay supply arranged and, given the late hour before winter, faced limited hay
availability and increased hay costs. Id. (J. Timmer Decl. ¶ 33). In defendants’ view, all costs
incurred feeding their cattle in Colorado that winter were necessary costs because of the
condition of the pastures. Id. (J. Timmer Decl. ¶ 34).
Plaintiff disputes defendants’ post-alleged-trespass woes. In his view, defendants had a
variety of options that didn’t require them to keep their cattle in Colorado. The court examines
these purported options, below.
Plaintiff testified that defendants couldn’t have brought their cattle back to Kansas no
matter what plaintiff did because one doesn’t graze cattle on grass pastures in Kanss over the
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winter. Doc. 79-1 at 8 (Pl. Aff. ¶ 43). Instead, according to plaintiff, Kansas ranchers place
cattle on cover crops, crop residue, and crop stalks. Id. Plaintiff moved his cattle off of
defendants’ pastures in 2023 because it was time for them to go to corn stalks. Doc. 79-59 at 5
(T. Ragsdale Dep. 15:6–11). Plaintiff’s father confirmed that they, in their process, put cattle on
corn or milo stalks until February. Doc. 79-56 at 4 (R. Ragsdale Dep. 50:11–25). Indeed,
plaintiff testified that he did just that with his cattle and defendants’ cattle the prior year. Doc.
79-1 at 8 (Pl. Aff. ¶ 43). Defendant Jacob disputes this; he testified that defendants initially
grazed their cattle on their pastures in the winter of 2021. Doc. 86-2 at 5 (J. Timmer Dep.
105:4–106:11).
Plaintiff further insists that defendants’ pastures would’ve had insufficient grass until the
following summer, regardless of what he’d done. Doc. 79-1 at 8 (Pl. Aff. ¶ 44). Defendants
point out, however, that they’d used the pastures over the winter in a prior year. Doc. 86-2 at 5
(J. Timmer Dep. 105:4–106:11).
Plaintiff asserts that defendants had available crop residue and crop stalks that they
could’ve used for winter grazing. Doc. 79-1 at 8 (Pl. Aff. ¶ 45). Plaintiff also had baled feed
from defendants’ land and had that feed available for feeding defendants’ cattle, should the cattle
consumer all of the crop stalks. Id. at 8 (Pl. Aff. ¶ 46). Plaintiff thus maintains that his use of
defendants’ pasture didn’t affect defendants’ winter options for cattle feed in Kansas. Id. (Pl.
Aff. ¶ 43). And plaintiff asserts that defendants had no reason to keep their cattle in Colorado
based solely on his use of their pastures. Id. (Pl. Aff. ¶ 46). The trust land’s trustee testified that
defendants had fall crops on the trust land and the stalks could have served as livestock feed—a
practice the trust had used before. Doc. 79-6 at 10 (Swanson Dep. 44:3–16). The trustee also
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testified that defendants haven’t explained why they didn’t use the stalks as feed for cattle in the
fall of 2023. Id. (Swanson Dep. 44:17–20).
Defendants, for their part, assert that they didn’t put their cattle on stalks or utilize the
hay that plaintiff had baled because they didn’t have anyone in north central Kansas to care for
their cattle. Doc. 79-2 at 12 (S. Timmer Dep. 61:10–62:1). Stacy testified that having someone
to watch their cattle was “a huge part” of their decision. Id.
Stacy also testified that she didn’t look into additional pastures for their cattle in
December 2023. Id. Jacob confirmed that they didn’t look into additional pasture because (i) it
was almost December, (ii) he didn’t know if any pasture was available, and (iii) his fractured
relationship with plaintiff made him uncomfortable hiring someone else. Doc. 79-3 at 25 (J.
Timmer Dep. 241:17–242:6). Jacob also testified that, at that point, he was angry, so he “wasn’t
going to bring cattle out here and put around that again.” Id. (J. Timmer Dep. 242:7–10).
Plaintiff’s pasture expert opined that, after November, cattle are typically moved onto
stalks, like corn or milo stalks. Doc. 79-62 at 4 (Kehler Aff. ¶ 7.a.).
II. 	Legal Standard
Summary judgment is appropriate when the moving party demonstrates that “no genuine
dispute” exists about “any material fact” and that it is “entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(a). When it applies this standard, the court views the evidence and draws
inferences in the light most favorable to the non-moving party. Nahno-Lopez v. Houser, 625
F.3d 1279, 1283 (10th Cir. 2010). “An issue of fact is ‘genuine’ ‘if the evidence is such that a
reasonable jury could return a verdict for the non-moving party’ on the issue.” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “An issue of fact is ‘material’ ‘if
under the substantive law it is essential to the proper disposition of the claim’ or defense.” Id.
(quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)). “Only disputes
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over facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson, 477 U.S. at 247–48.
The moving party bears “‘both the initial burden of production on a motion for summary
judgment and the burden of establishing that summary judgment is appropriate as a matter of
law.’” Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010) (quoting Trainor v.
Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002)). To meet this burden, the
moving party “‘need not negate the non-movant’s claim, but need only point to an absence of
evidence to support the non-movant’s claim.’” Id. (quoting Sigmon v. CommunityCare HMO,
Inc., 234 F.3d 1121, 1125 (10th Cir. 2000)).
If the moving party satisfies its initial burden, the non-moving party “‘may not rest on its
pleadings, but must bring forward specific facts showing a genuine issue for trial [on] those
dispositive matters for which it carries the burden of proof.’” Id. (quoting Jenkins v. Wood, 81
F.3d 988, 990 (10th Cir. 1996)); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986);
Anderson, 477 U.S. at 248–49. “To accomplish this, the facts must be identified by reference to
affidavits, deposition transcripts, or specific exhibits incorporated therein.” Adler, 144 F.3d at
671 (citing Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992)).
When deciding whether the parties have shouldered their summary judgment burdens, “the
judge’s function is not . . . to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
The federal courts don’t view summary judgment as a “disfavored procedural shortcut.”
Celotex, 477 U.S. at 327. To the contrary, it’s an important procedure “designed ‘to secure the
just, speedy[,] and inexpensive determination of every action.’” Id. (quoting Fed. R. Civ. P. 1).
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While a court can treat cross motions for summary judgment separately, and “the denial
of one does not require the grant of another[,]” Buell Cabinet Co., Inc. v. Sudduth, 608 F.2d 431,
433 (10th Cir. 1979), it also may address the legal arguments together, Berges v. Standard Ins.,
704 F. Supp. 2d 1149, 1155 (D. Kan. 2010). Here, the two motions, and their legal arguments,
overlap—and substantially so. Indeed, each side invokes and incorporates their own summary-
judgment briefing and oppose the other’s summary-judgment motion. The court thus exercises
its discretion and addresses the legal arguments made by the dueling motions together. By far,
it’s the most efficient alternative.
III. 	Analysis
Plaintiff’s claims are straightforward. He brings claims for breach of contract and, in the
alternative, unjust enrichment. He also seeks pre-judgment interest. Plaintiff seeks summary
judgment in his favor on all his claims. He also seeks summary judgment against defendants’
counterclaims.
Defendants bring six counterclaims:
1. 	Accounting;
2. 	Breach of contract;
3. 	Breach of fiduciary duty;
4. 	Fraud;
5. 	Kansas Consumer Protection Act violations; and
6. 	Trespass.
Doc. 75 at 16–17 (PTO ¶ 2.b.). Their motion seeks summary judgment in their favor on
counterclaims two, three, four, and five. For counterclaim six, defendants ask the court to
declare their response to plaintiff’s trespass reasonable as a matter of law.
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The court begins its analysis with the parties’ overlapping breach-of-contract claims.
Based in part on its breach-of-contract conclusions, the court then addresses defendants’
counterclaims, in the order just articulated.19 The summary-judgment version of the facts about
sharecropping and custom farming are relevant to each claim. The facts about the pasture
debacle matter to the fiduciary-duty claim—but only slightly. The pasture dispute’s facts—the
summary-judgment edition of those facts, that is—matter more for the trespass claim.
A. 	Breach of Contract
Plaintiff’s breach-of-contract claim is simple: defendants haven’t paid him for the goods
and services he claims he provided in 2023. Id. at 12 (PTO ¶ 4.a.). Alternatively, plaintiff
claims unjust enrichment. Id. Defendants’ breach-of-contract claim is more complicated,
alleging multiple breaches of each farming agreement—the sharecropping contract and the
custom-farming contract. Id. at 16 (PTO ¶ 4.b.). The bulk of the court’s breach-of-contract
analysis focuses on the counterclaims.
Start with the basics. A breach-of-contract claim under Kansas law has five elements:
“(1) the existence of a contract between the parties; (2) sufficient consideration to support the
contract; (3) the plaintiff’s performance or willingness to perform in compliance with the
contract; (4) the defendant’s breach of the contract; and (5) damages to the plaintiff caused by
the breach.” Stechschulte v. Jennings, 298 P.3d 1083, 1098 (Kan. 2013).
19 	The parties agree. Kanas law governs this action. Doc. 75 at 1 (PTO ¶ 1.d.). The court concurs.
In diversity cases like this one, the court “applies the forum state’s choice-of-law rules to determine
which state’s substantive law governs a claim.” Nordwald v. Brightlink Commc’ns, LLC, 603 F. Supp. 3d
1030, 1040 (D. Kan. 2022) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)).
Where, as here, “a party fails to make ‘a clear showing that another state’s law should apply,’ Kansas
choice of law principles require a court to default to Kansas substantive law.” Howard v. Ferrellgas
Partners, L.P., 748 F.3d 975, 982 (10th Cir. 2014) (quoting In re K.M.H., 169 P.3d 1025, 1032 (Kan.
2007)).
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The first dispute the court must decide is whether the handwritten document became part
of the terms of the custom-farming agreement. The court tackles this dispute next. The court
then moves to defendants’ many theories of breach.
1. 	Terms of the Custom-Farming Agreement
The parties agree that two oral contracts exist: the sharecropping agreement and the
custom-farming agreement. And no one disputes the terms of the sharecropping agreement. But
the parties dispute whether the oral custom-farming contract included terms dictating the rates
for plaintiff’s custom-farming services, as recorded on the handwritten document plaintiff
provided. Though each side insists that the summary-judgment evidence supports its view, the
court must disagree.
“Whether a contract exists depends on the intentions of the parties and is a question of
fact.” Unified Sch. Dist. No. 446 v. Sandoval, 286 P.3d 542, 546 (Kan. 2012). But, if “the
legally relevant facts are undisputed, the existence and terms of a contract raise questions of law
for the court’s determination.” Id. Here, the legally relevant facts remain murky—too murky for
the court to resolve at summary judgment.
Plaintiff testified that he didn’t know if the rates were agreed to; instead, he provided the
handwritten document to “try[] to give them an idea of where things could be.” Doc. 77-13 at 23
(Pl. Dep. 152:1–13). His affidavit reasserts that he intended for the handwritten document to
prove a rough concept—not to serve as a quote. Doc. 79-1 at 3 (Pl. Aff. ¶ 15). Plaintiff thus
planned to raise his rates, yet he never informed defendants of any such raise. Doc. 77-13 at 23
(Pl. Dep. 152:17–19).
Defendant Jacob testified that he and defendant Stacy had agreed to the prices on the
handwritten document. Doc. 79-3 at 20 (J. Timmer Dep. 179:4–21). Jacob also testified,
however, that he never discussed specifics with plaintiff. Id. at 18 (J. Timmer Dep. 169:21–
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170:5). And Stacy testified that she never discussed the handwritten document with plaintiff.
Doc. 79-2 at 19 (S. Timmer Dep. 117:17–24). This all boils down to a disputed question of
intent, and such a question is not proper summary-judgment fodder. For goodness sakes, the
parties don’t even agree about which K-State booklet plaintiff used to draft the handwritten
document. At summary judgment, the court “cannot weigh the evidence or make credibility
determinations.” Forth v. Laramie Cnty. Sch. Dist. No. 1, 85 F.4th 1044, 1052 (10th Cir. 2023).
The court thus declines to decide on summary judgment whether the parties’ agreement
included the handwritten document. The court next considers the parties’ various disputes about
breach.
2. 	Breach
It’s undisputed that defendants have breached the contract; they failed to pay plaintiff.
Defendants insist that they didn’t have to pay because plaintiff materially breached the
agreement.
Under Kansas law, a “party is not liable for a material failure of performance if it can
show that the other party committed a prior material breach of the contract; in such event, the
prior breach discharged the party’s own duty to perform.” Hawley v. Shear, No. 20-2562-EFM,
2023 WL 2784838, at *4 (D. Kan. Apr. 5, 2023) (quotation cleaned up). “A material breach is
one in which ‘the promisee receives something substantially less or different from that for which
he bargained.’” Id. (quoting Almena State Bank v. Enfield, 954 P.2d 724, 727 (Kan. Ct. App.
1998)). “Substantial performance is the antithesis of material breach.” Almena State Bank, 954
P.2d at 727 (quotation cleaned up). So, the court must determine whether plaintiff materially
breached the contract or substantially performed it.
Defendants’ breach-of-contract counterclaim involves two contracts: the sharecrop
agreement and the custom-farming agreement. Defendants allege plaintiff breached the
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sharecrop agreement by: (i) failing to follow the CPI Precision Agriculture Program, (ii)
overcharging for inputs, (iii) underreporting crop yields and failing to deliver all crops to grain
elevators for weighing and accounting. Doc. 75 at 16 (PTO ¶ 4.b.). Defendants further allege
the same breaches of the custom-farming agreement, plus one more: overcharging for services.
The court begins its analysis with the CPI Precision Agriculture issue, then considers all
the controversy about invoices together, and concludes with the grain-delivery debacle.
a. 	The CPI Precision Agriculture Program
Defendants argue that plaintiff breached the sharecrop and the custom-farming
agreements by failing to follow CPI’s Precision Agriculture Program on their fields.
Plaintiff emphasizes that the parties never agreed to use CPI. Doc. 85 at 28. And there is
some support for this position in the summary-judgment record. Defendant Jacob testified that
the parties didn’t agree to any specific terms, Doc. 79-3 at 18 (J. Timmer Dep. 170:3–5), and he
admitted that he never complained to plaintiff about the CPI program, Doc. 85-6 at 9 (J. Timmer
Dep. 168:6–22). Defendant Stacy knew nothing about CPI’s data tracking until late 2023. Doc.
85-5 at 11 (S. Timmer Dep. 201:18–202:1).
Instead of a specific agreement about CPI, it’s undisputed that the parties simply agreed
plaintiff would farm defendants’ land in the same manner he farmed his own. Doc. 85 at 28.
Plaintiff insists he did so, or, at worst, that he substantially did so. Id. Defendants, of course,
disagree. They assert that plaintiff agreed to follow CPI’s fertilizer prescriptions, but, in 2023,
he applied less fertilizer than CPI prescribed. Doc. 77 at 32. Defendants cite three instances of
plaintiff failing to follow CPI fertilizer prescriptions.
First, defendants assert that plaintiff admitted he hadn’t applied any fertilizer to one-third
of defendants’ field. Id. But plaintiff’s deposition testimony that defendants cite for this
proposition, as mentioned above, doesn’t support this view:
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Doc. 77-13 at 27 (Pl. Dep. 181:1–5). No reasonable factfinder could see this exchange and
conclude plaintiff testified that he didn’t apply fertilizer to a field. He testified about reading an
(unknown) map. He didn’t testify about what he actually did. And he went on to testify that he
did, indeed, apply fertilizer to the field. See id. (Pl. Dep. 181:5–20). The summary-judgment
evidence thus doesn’t support defendants’ claim that plaintiff didn’t apply fertilizer to part of a
field and plaintiff deserves summary judgment against this theory of breach.
Second, defendants argue that plaintiff breached their agreement by applying lower
amounts of fertilizer than CPI prescribed. Doc. 77 at 32. They claim this contradicted the
parties’ agreement. But this mischaracterizes the parties’ agreement. The parties didn’t agree
that plaintiff would apply CPI’s fertilizer prescriptions—how could they when (as defendants
concede) they never discussed specifics? Instead, the parties agree that plaintiff would farm
defendants’ fields like he farmed his own. And the summary-judgment facts show that plaintiff
did so.
Defendants’ theory relies heavily on Hohner’s testimony about under-application of
fertilizer. See Doc. 77 at 8–9. Hohner, plaintiff’s farmhand, testified that plaintiff didn’t follow
the CPI prescription if the prescription called for a really high rate of fertilizer. Doc. 77-21 at 5
(Hohner Dep. 41:3–20). And yet Hohner never testified that plaintiff didn’t follow the CPI
prescription just on defendants’ fields. To the contrary, Hohner testified he wasn’t sure if
plaintiff had adjusted fertilizer prescriptions on defendants’ land. Id. at 10 (Hohner Dep.
103:15–21). He testified he didn’t know how often plaintiff applied less, only that the plaintiff,
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his father, or his son would “always go less, just to make it a little cheaper because it was calling
for an extreme amount.” Id. (Hohner Dep. 103:22–104:10) (emphasis added). In sum, Hohner’s
testimony about fertilizer can’t provide a basis for a reasonable factfinder to find that plaintiff
farmed defendants’ land differently than he farmed his own. Plaintiff has earned summary
judgment against this breach-of-contract theory.
Last, plaintiff admitted that he reduced the CPI fertilizer prescription by about 50% on
one field in October 2023. Doc. 77-13 at 27 (Pl. Dep. 181:6–182:21). He testified that he did so
on just one field because it “was getting late into the season, in October, and [I] hadn’t gotten
paid for anything[.]” Id. Plaintiff explained that, if the fertilizer was cheap, he might have
applied the full prescription, but he “turn[ed] it down to get it close to 50 pounds per acre.” Id.
This, plaintiff admits, is the one exception to plaintiff farming defendants’ land as he farmed his
own. Doc. 85 at 31. Plaintiff maintains that this adjustment was reasonable and justified
because defendants had breached the contract by failing to pay. Id. at 31–32. The court can’t
resolve this third issue at summary judgment. Here’s why: a timing problem.
Under Kansas law, when “a party materially breaches a contract, they are precluded from
enforcing the contract against the nonbreaching party until the material breach has been cured.”
Alenco, Inc. v. Warrington, 560 P.3d 586, 596 (Kan. Ct. App. 2024); see also Fed. Land Bank of
Wichita v. Krug, 856 P.2d 111, 115 (Kan. 1993) (explaining that material breach of contract
warrants “rescission of a contract”). It’s not “summary-judgment clear” who breached the
parties’ contract first. A reasonable factfinder could conclude that the handwritten document
was part of the parties’ agreement and plaintiff thus breached the agreement first by charging
rates higher than those on the handwritten document. But a reasonable factfinder also could
conclude that the handwritten document was not part of the parties’ agreement, and thus
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reasonably conclude that defendants breached the contract first by failing to pay plaintiff for his
work.
Plaintiff insists that, even in this latter scenario, he hasn’t breached the agreement
materially because he substantially performed his contractual obligations and charged a
reasonable (if higher) rate for his services. But a reasonable factfinder could conclude that
plaintiff materially breached the contract first by charging rates higher than those listed on the
handwritten document. So, a reasonable factfinder could conclude that plaintiff couldn’t justify
reducing the fertilizer he applied to defendants’ fields until he had cured his original breach.
In sum, only one part of defendants’ breach-of-contract counterclaim for failing to follow
CPI Precision Agriculture on their fields survives: plaintiff’s failure to apply the full amount of
fertilizer on one field in October 2023. The court takes up defendants’ second theory of breach,
overcharging for inputs and services, next.
b. 	Overcharging
Defendants also assert that plaintiff breached the sharecropping agreement by
overcharging for inputs. Doc. 75 at 16 (PTO ¶ 4.b.). And they assert that plaintiff breached the
custom-farming agreement by overcharging for inputs and his own services. Id. The court
tackles these accusations by first addressing the invoices from 2022, then the invoices from
2023.
i. 	The 2022 Invoices
In the Pretrial Order, defendants claim that plaintiff overcharged them in 2022 to the tune
of $23,183.24. Id. at 19. Plaintiff has moved for summary judgment on defendants’
counterclaims and controverted each claim of overcharge on the 2022 invoices. The court
examines each overcharge presented in the Pretrial Order, below.
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First, defendants claim that plaintiff overcharged them $3,606.68 for spraying 503 acres
of wheat stubble because plaintiff only sprayed 354 acres, creating an extra charge for 154 acres.
Id. at 18. Plaintiff explained that he sprayed 354 acres and charged for 508 acres because he had
to spray the entire 354-acre field twice, and had to spray 154 acres a third time. Doc. 79-1 at 5
(Pl. Aff. ¶ 26.a.). Plaintiff didn’t charge defendants for the second spray; he only charged them
for the third spray. Id. He thus claims that he ultimately undercharged defendants. Id.
Defendants quibble that no 154-acre field exists. Doc. 86-8 at 1 (S. Timmer Decl. ¶ 11).
Defendants have missed the point. Plaintiff charged for the actual acres he treated. Doc. 92-1 at
2 (2nd Supp. Pl. Aff. ¶ 6). So, it doesn’t matter if the acreage treated matches the size of a field.
No reasonable factfinder could buy defendants’ attempt to cast doubt on plaintiff’s explanation.
The court thus concludes that plaintiff is entitled to summary judgment against defendants’ claim
of overcharging wheat-stubble spraying by 154 acres.
Next, defendants claim plaintiff overcharged $3,300.01 for 101.23 acres of spraying
beans because the acreage doesn’t match the size of either field planted to beans. Doc. 75 at 18.
Plaintiff explains that he had to spray 101.23 acres for a second time due to drought conditions.
Doc. 79-1 at 5 (Pl. Aff. ¶ 26.b.). Again, plaintiff didn’t charge for the size of the field; he
charged for the acres he treated. Yet, again, defendants insist plaintiff overcharged them because
no 101-acre bean field exists. Doc. 86-8 at 2 (S. Timmer. Decl. ¶ 12). But that doesn’t
controvert plaintiff’s explanation for the charge. No reasonable factfinder could find an
overcharge here. The court concludes that plaintiff is entitled to summary judgment against
defendants’ claimed overcharge of spraying 101.23 acres.
Defendants then claim damages for plaintiff’s double-billing of corn preplant chemicals.
Doc. 75 at 18. Plaintiff asserts that no such double-billing occurred because defendant Stacy
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approved this spraying. Doc. 79-1 at 5 (Pl. Aff. ¶ 26.c.). Stacy disputes this assertion and claims
she never authorized it. Doc. 86-8 at 2 (S. Timmer Decl. ¶ 13). So, a dispute of material fact of
Stacy’s authorization for the corn preplant chemicals exists, and this overcharge remains live for
trial.
The remaining four damages claims in the Pretrial Order boil down to a dispute over the
rates plaintiff charged for his custom-farming services.20 Doc. 75 at 19. That is, defendants
assert that plaintiff charged a rate higher than the rate on the handwritten document. As
discussed, a genuine dispute of material fact exists whether the handwritten document qualified
as part of the parties’ agreement. That dispute prevents the court from deciding the fate of these
alleged overcharges at summary judgment. That resolves plaintiff’s arguments about the 2022
invoices, so the court moves on to defendants’ motion.
In their own motion for summary judgment, defendants raise a much narrower set of
invoices. Defendants assert the following overcharges from the 2022 invoices:
• 	Invoice No. 310324 overcharged $525.50 for spraying corn where plaintiff charged
$7 per acre despite agreement on $6.50 per acre, Doc. 77 at 16–17;
• 	Invoice No. 310324 overcharged $215 for drilling oats where plaintiff charged $22
per acre despite agreement on $17 per acre, id. at 17;
• 	Invoice No. 310324 overcharged $21.50 for spraying oats where plaintiff charged $7
per acre despite agreement on $6.50 per acre, id.;
• 	Invoice No. 310326 overcharged $3,957.11 for planting beans where plaintiff charged
$41.75 per acre despite agreement for $17.50 per acre, id. at 18;
• 	Invoice No. 310333 overcharged $745.20 for planting cover crops where plaintiff
charged $22.50 per acre despite agreement on $17.10 per acre, id. at 18–19;
20 	Plaintiff takes issue with a damages claim for planting billed at $41.75 per acre when defendants
claim that plaintiff agreed to $17.50 per acre. Doc. 79 at 12 (citing Doc. 75 at 19). Plaintiff explains that
he billed the planting at $22/acre and added $19.75/acre for starter fertilizer. Doc. 79-1 at 5–6 (Pl. Aff.
¶ 26.e.). Stacy asserts, however, that plaintiff charged for the starter fertilizer elsewhere. Doc. 86-8 at 2
(S. Timmer Decl. ¶ 15). So, a dispute of material fact prevents the court from granting plaintiff summary
judgment on this issue.
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• 	Invoice No. 310333 overcharged $938.40 for cover-crop seed where plaintiff charged
$32.60 per acre despite agreement on $28.00 per acre, id. at 19.
Plaintiff moves to strike the first bullet point’s claim—$525.50 overcharged for spraying
corn in Invoice No. 310324—because that overcharge doesn’t appear anywhere in the Pretrial
Order. Doc. 85 at 17. He’s right. The Pretrial Order section defendants cite claims damages for
double-billing corn preplant chemicals, not for overcharging for spraying corn. Doc. 75 at 18.
Defendants thus have waived this damages claim. Wilson v. Muckala, 303 F.3d 1207, 1215
(10th Cir. 2002) (“[T]heories of damages not included in the pretrial order are waived[.]”).
The rest of the bullet points come down to a dispute about plaintiff’s custom-service rates
and whether the parties’ agreement included the rates on the handwritten document.21 The
dispute swirling around plaintiff’s custom-farming rates on the handwritten document prevents
the court from concluding that, as a matter of law, defendants are entitled to recover for these
overcharges.
In sum, a genuine dispute of material fact remains for the following theories of plaintiff
overcharging defendants in 2022: (i) plaintiff double billing for corn replant chemicals and (ii)
plaintiff overcharging for his services—but only those overcharges captured in the Pretrial
21 	As mentioned above, the dispute about the starter-fertilizer charge in Invoice 310326 presents a
dispute of material fact because Stacy has testified that plaintiff charged for starter fertilizer elsewhere.
The court also notes that plaintiff complains that the defendants’ summary-judgment argument about
Invoice No. 31033 differs from the damages claimed in the Pretrial Order. Doc. 85 at 17. That’s true;
they do differ. But only just. The Pretrial Order claims an overcharge for three things: planting, seed,
and fertilizer. Doc. 75 at 19. And it claims an overcharge on 136.46 acres. Id. In contrast, in their
summary-judgment motion, defendants only claim an overcharge for planting and seed. Doc. 77 at 18–19
(DSOF ¶¶ 133–41). The motion also bases the planting overcharge on 138 acres, slightly more than the
136.46 mentioned in the Pretrial Order. Id. at 18 (DSOF ¶ 133). The court declines to do anything about
these small differences because plaintiff doesn’t ask the court to do so and “pretrial orders generally
should be construed liberally[.]” Koch v. Koch Indus., Inc., 203 F.3d 1202, 1220 (10th Cir. 2000).
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Order. With the 2022 invoices whittled down as summary-judgment principles will permit, the
court next considers the 2023 invoices.
ii. 	The 2023 Invoices
Defendants also claim that plaintiff breached the custom-farming agreement by
overcharging them for custom-farming services in 2023. Doc. 77 at 20–23. As already covered,
a genuine dispute of material facts exists whether the parties adopted into their oral contract the
custom-farming rates on plaintiff’s handwritten document. The court can’t grant summary
judgment on this breach-of-contract theory.
Defendants have another breach-of-contract theory based on the 2023 invoices. They
assert that plaintiff breached the sharecropping agreement by overcharging them for inputs—i.e.,
by marking up his fertilizer costs. It’s uncontroverted that plaintiff advanced some money for
the input costs. He counts $143,962.00 for fertilizer, chemical, and seed advanced costs. Doc.
79-1 at 7 (Pl. Aff. ¶ 32). And it’s uncontroverted that plaintiff, under the parties’ agreement,
wasn’t supposed to markup prices for his inputs. Doc. 77-13 at 24 (Pl. Dep. 155:12–19); Doc.
79-2 at 24 (S. Timmer Dep. 161:20–162:3). After plaintiff submitted his initial invoices,
defendants questioned his fertilizer prices. Doc. 79-1 at 7 (Pl. Aff. ¶ 33). These invoices had
incorrect prices for fertilizer and chemicals. Doc. 77-13 at 27 (Pl. Dep. 183:20–22). So, plaintiff
revised the invoices.22
Plaintiff based his fertilizer prices on the fertilizer bills he got from CPI. On plaintiff’s
fertilizer bills, CPI charged plaintiff $0.24750 per pound for 32% nitrogen fertilizer. Doc. 77-26
22 	Plaintiff attached the relevant invoices to the Pretrial Order as Exhibit A. See Doc. 75-1.
Defendants argue that the fertilizer and chemical prices on these Exhibit A invoices are incorrect. Doc.
77 at 21 (DSOF ¶ 157). Defendants are mistaken. In the testimony defendants cite, plaintiff testifies that
the original invoices had incorrect fertilizer and chemical prices. Doc. 77-13 at 27, 28 (Pl. Dep. 183:20–
22, 185:15–21). Exhibit A contains revised invoices. Compare Doc. 77-12 (Corrected Invoices), with
Doc. 75-1 (PTO Ex. A). The court is unimpressed with defendants’ mischaracterization of the record.
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at 4 (Ragsdale–000163). When plaintiff charged defendants for nitrogen fertilizer, he billed per
gallon. See Doc. 75-1 at 1–4 (PTO Ex. A). Defendants assert that a gallon of fertilizer weighs
11.06 pounds. Doc. 77 at 20 (DSOF ¶ 149). Defendants convert plaintiff’s price per gallon to
price per pound and came up with $0.264 per pound—higher than the $0.24750 that CPI charged
plaintiff. Id. (DSOF ¶ 150). Defendants thus conclude that plaintiff marked up his fertilizer
costs.
Not so. The summary-judgment record plainly contradicts defendants’ story about the
fertilizer invoices. As plaintiff points out, his fertilizer costs encompassed more than the cost of
the 32% fertilizer. Doc. 85 at 18. CPI also billed him for a fertilizer called “Thio-Sul” and
charged an insurance fee:
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Doc. 77-26 at 1 (Ragsdale–00157). Taking the first entry as example, the invoice itself
demonstrates that plaintiff didn’t just pay $11,887.31 for the 32% fertilizer (identified as 32-0-0
in the invoice). Id. Rather, he paid $13,322.50 for 52,416.7 pounds of fertilizer—the 32%
fertilizer, plus the Thio-Sul, plus the insurance fee. Id. When converted to gallons, this amount
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comes to $2.81 per gallon, or $0.2541 per pound.23 Defendants simply have used the wrong
numbers by focusing solely on the cost of 32% fertilizer only. 24
In sum, just one piece of defendants’ breach-of-contract counterclaim based on the 2023
invoices survives summary judgment: whether plaintiff overcharged defendants for his custom-
farming services. No reasonable factfinder could conclude that plaintiff overcharged defendants
for fertilizer. This conclusion resolves the parties’ disputes about plaintiff overcharging. The
court moves on to defendants’ final theory of breach: that plaintiff hauled grain somewhere
other than a grain elevator.
c. 	Hauling Grain
Defendants next assert that plaintiff breached the sharecropping and custom-farming
agreements by failing to deliver all crops from their fields to grain elevators. Doc. 75 at 16 (PTO
¶ 4.b.). Defendants also maintain that, in so doing, plaintiff underreported crop yields and failed
23 	Indeed, some of plaintiff’s invoices charge $2.81 per gallon. See, e.g., Doc. 75-1 at 1 (PTO Ex.
A). Plaintiff’s custom-farming invoices are undated, see generally id., which makes it difficult to match
the invoices he sent defendants with the fertilizer invoices. The court need not do so, however, because
the invoices themselves demonstrate the error of defendants’ view. That is, the uncontroverted summary-
judgment facts demonstrate that defendants’ theory of fertilizer upcharge is wrong and no reasonable
factfinder could agree with it.
The court shows its math here, using defendants’ conversion rate of 11.06 pounds per one gallon
of 32% fertilizer:
52,417 𝑙𝑏𝑠. × 1 𝑔𝑎𝑙. 11.06 𝑙𝑏𝑠.
ൗ 	= 4,739.33 𝑔𝑎𝑙.
$13,322.50 ÷ 4,739.33 𝑔𝑎𝑙. = $2.81/𝑔𝑎𝑙.
$2.81/𝑔𝑎𝑙. × 1 𝑔𝑎𝑙. 11.06 𝑙𝑏𝑠
ൗ 	= $0.254/𝑙𝑏.
24 	Defendants correctly note that plaintiff failed to controvert some of their statements of fact on this
issue. See Doc. 85 at 18–19 (failing to mention DSOF ¶¶ 148–52). One of those facts asserts that
plaintiff marked up the price of fertilizer. Doc. 77 at 20 (DSOF ¶ 152). The court declines to fault
plaintiff for this oversight because plaintiff has controverted these facts sufficiently when addressing
other facts. Doc. 85 at 18–19 (Pl. Resp. to DSOF ¶¶ 144–47).
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to account for some of defendants’ crops. Id. The court begins with the question whether the
parties’ agreement required plaintiff to take all crops to the grain elevator.
It’s undisputed that plaintiff hauled some of defendants’ crops to his grain bins.
Nonetheless, plaintiff is entitled to summary judgment on defendants’ theory that he breached
the parties’ agreements by hauling crops somewhere other than the grain elevator. The parties’
oral agreement didn’t include any requirement to haul grain to the elevator.
Defendant Stacy has submitted a declaration asserting that defendants didn’t give
plaintiff permission to take harvested crops anywhere other than a grain elevator. Doc. 77-14 at
2 (S. Timmer. Decl. ¶ 8). But her isolated grant of permission doesn’t matter. As recounted
above, the parties never discussed the specifics of the custom-farming arrangement. Indeed,
Stacy testified at her deposition that she never directed plaintiff where to deliver grain. Doc. 79-
2 at 28 (S. Timmer Dep. 190:17–23). She also testified that, before contacting plaintiff in
November 2023—after plaintiff had finished harvesting—she never had personally told plaintiff
where to deliver crops. Doc. 85-5 at 9 (S. Timmer Dep. 131:21–24). And defendant Jacob
testified that he and plaintiff had just a “friend conversation” and didn’t have a business
conversation. Doc. 79-3 at 20 (J. Timmer Dep. 177:16–25). Defendants point out that plaintiff’s
father testified that none of defendants’ grain should’ve gone to the bins. Doc. 77-22 at 2 (R.
Ragsdale Dep. 58:6–19). But plaintiff’s father wasn’t part of or a party to the parties’ oral
contract, so his beliefs on this issue don’t matter. The court thus agrees with plaintiff. The
parties’ agreement didn’t require exclusive elevator delivery. Doc. 85 at 32. It grants plaintiff
summary judgment against defendants’ theory that he breached their agreement by failing to
deliver all crops to the elevator.
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Defendants also insist that plaintiff breached their agreements by failing to deliver all of
their grain. Putting it another way, defendants assert that some grain is missing. Plaintiff
responds that he gave defendants all grain that they were owed. The court begins its analysis of
this issue by analyzing defendants’ theory that plaintiff sold their grain to the Scoular Company
without their knowledge and hid their grain that way. It then takes up defendants’ arguments
that they’re missing 2022 crops. And it concludes this discussion with defendants’ arguments
that some 2023 crops are missing.
i. 	The Scoular Company
Based on crop-insurance documents,25 in 2022, plaintiff reported 10,300.7 bushels of
corn delivered to the feedlot bins. Doc. 77-23 (2022 Rain & Hail Report). But, in early 2023,
plaintiff sold 15,298.55 bushels of corn to the Scoular Company. Doc. 77-24. Plaintiff couldn’t
have harvested additional grain between the 2022 corn harvest and early 2023. So, defendants
conclude, plaintiff sold 5,000 more bushels of corn than he had in storage to the Scoular
Company. Yet plaintiff never told defendants that he’d sold their corn to the Scoular company,
and defendants never received payment for any corn that plaintiff sold to the Scoular Company.
Doc. 77-14 at 2 (S. Timmer Decl. ¶ 16). Based on this, defendants cry foul.
Plaintiff accounts things differently. Defendants’ 10,300.7 figure, according to plaintiff,
only counts feedlot deliveries reported to insurance. Doc. 85 at 14. Plaintiff suggests looking,
instead, at his total 2022 corn production: 14,520.90 bushels. That figure comes from three
places:
• 	11,344.90 bushels of corn from plaintiff’s land, Doc. 79-11 at 2 (Fowler Summary
A);
25 	Plaintiff reports what he’s planted to his crop-insurance agent. Doc. 77-13 at 6 (Pl. Dep. 40:2–6).
Plaintiff and defendants have different crop-insurance companies, but the proof-of-yield tickets for the
entire production go to plaintiff’s insurance agent. Id. at 39 (Pl. Dep. 270:1–10).
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• 	2,548.00 bushels on the land that plaintiff sharecropped with defendants, entitling
plaintiff to 1,698.68 bushels of his own, Doc. 79-15 at 2 (Fowler Summary B).
• 	2,216 bushels on the land that plaintiff sharecropped with Mark Kaiser, entitling
plaintiff to 1,477.33 bushels of his own, Doc. 85-13 at 19 (Rain & Hail – 002927). 26
So, in total, plaintiff had 14,520.91 bushels of corn to sell after the 2022 harvest.27
Recall that plaintiff sold 15,298.55 bushels of corn to the Scoular Company. Doc. 77-24.
Plaintiff thus sold 777.65 more bushels in early 2023 than he harvested in 2022. Plaintiff
explains this discrepancy two ways. First, plaintiff traded some of his 2022 soybeans to his
father and, in exchange, received 1,200 bushels of his father’s corn.28 Doc. 85-1 at 5 (Supp. Pl.
Aff. ¶ 11). Plaintiff did so because his father had a soybean forward contract that required
additional soybeans. Id. Plaintiff’s father confirmed this. Doc. 85-15 at 2 (R. Ragsdale Aff.
¶ 7). Plaintiff also explains that he had stored grain from previous years’ harvests. Doc. 85-1 at
5 (Supp. Pl. Aff. ¶ 11).
26 	This exhibit didn’t reprint well, so it is missing names over its columns. Fortunately, the court
could consult other examples to discern the titles of the columns. See, e.g., Doc. 85-13 at 20 (Rain & Hail
– 002928).
27 	Plaintiff insists that the 14,520.91 figure doesn’t include defendants’ grain. Doc. 85-1 at 5 (Supp.
Pl. Aff. ¶ 11). Defendants take issue with this assertion, contending that plaintiff’s figure contradicts the
sharecropping agreement, isn’t supported by the record, and doesn’t add up. Doc. 91 at 11. Defendants
are wrong. As demonstrated in the bullet-point breakdown, plaintiff accounted for the sharecropping
agreement and removed the requisite one-third share—he added only 1,698.68 bushels and 1,477.33
bushels to his total production. The court had no trouble locating the figures supporting plaintiff’s math
in the documents plaintiff cited. And the math is simple: 11,344.90 + 1,698.68 + 1,477.33 = 14,520.91.
28 	Defendants ask the court to discredit this explanation. They assert that plaintiff sold all of his
2022 soybeans to CPI, so he couldn’t have had any soybeans left to trade with his father. Doc. 91 at 11–
12. This isn’t the gotcha moment that defendants think it is because plaintiff had crops leftover from
earlier years. See Doc. 85-1 at 5 (Supp. Pl. Aff. ¶ 11). And there’s no reason for a reasonable factfinder
to find that defendants would understand plaintiff’s crop yield, crop storage, and crop-sale contracts better
than plaintiff himself.
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In sum, the summary-judgment evidence shows that defendants’ theory—that plaintiff’s
sale of corn to the Scoular Company reeks of malfeasance—is incorrect. Indeed, as the court
demonstrates next, defendants got all of their corn from the 2022 harvest.
ii. 	2022 Corn
To support their theory of missing 2022 corn, defendants rely heavily on a “Proof of
Yield” document from AgMark LLC, the company who operates the grain elevator at issue. See
Doc. 86 at 20–21; see also Doc. 86-9 (Proof of Yield). That Proof of Yield document doesn’t
show any elevator tickets from corn delivered from the sharecropped fields in 2022. See
generally Doc. 86-9 (Proof of Yield). 29 Defendants assert that plaintiff reported 2,548 bushels of
corn to crop insurance but didn’t deliver any of those bushels to the grain elevator. Doc. 86 at 21
(DSOF ¶ 34).
Plaintiff disputes defendants’ version of the story. Plaintiff submitted a summary
(Fowler Summary C) showing that the sharecrop land produced 2,548 bushels of corn in 2022.
Doc. 79-15 at 2 (Fowler Summary C). 30 Fowler Summary C is based on crop-insurance data.
See Doc. 79-16 (Fowler App. C). Defendants want grain-elevator data. And they complain that
plaintiff never gave them any grain-elevator tickets for corn from the sharecropped fields in
2022. Doc. 86-8 at 1 (S. Timmer Decl. ¶ 10). Defendants also fault Fowler Summary C for
failing to rely on any records from the grain elevator. Doc. 86 at 21.
29 	In case the reader is interested in better understanding this Proof of Yield document, according to
defendants, the relevant account for the sharecrop land is RAGSTOD3. Doc. 86 at 20 (DSOF ¶ 26); see
also Doc. 92 at 4 (declining to controvert this fact).
30 	Defendants cite the relevant field as 17-2S-1W. Doc. 86 at 20 (DSOF ¶ 28). That doesn’t quite
match the legal description in Fowler Summary C, which lists the field as 17-2S-16W. Doc. 79-15 at 2.
The court assumes that defendants’ brief contains a typo.
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Plaintiff, for his part, faults defendants’ analysis right from the start for focusing
exclusively on deliveries to the grain elevator. Plaintiff explains that the Proof of Yield
document reflects only grain deposits into a particular account. Doc. 92-1 at 1–2 (2nd Supp. Pl.
Aff. ¶ 5). But proving yield requires more than grain deposits into a particular elevator. Id. This
is so because farmers can store grain in many different places and keep some grain for use as
seed. Id. Plaintiff calls the Proof of Yield more of a “grain deposit ledger” than an actual proof
of yield. Id. So, defendants’ myopic focus on tickets from one grain elevator misses the forest
for considering just one kind of tree.
Plaintiff also points out that he sent the actual scale tickets to the crop-insurance
company. See Doc. 85-11 at 7 (Heritage Proof of Loss). These tickets show 142,700 pounds of
corn from the sharecrop fields.31 Id. And, according to plaintiff, that’s 2,548 bushels. Doc. 85-1
at 5 (Supp. Pl. Aff. ¶ 11). This means defendants’ one-third share totals 849.40 bushels. Recall
that plaintiff maintains that, while he didn’t take all of the corn to the elevator, he transferred the
proper amount of corn to defendants’ account at the elevator. Indeed, elevator records reflect a
transfer of 849.50 bushels of corn from plaintiff to defendant Jacob in October 2022. Doc. 85-12
at 2 (Trinity Records).
Defendants got their corn. Plaintiff has adduced undisputed facts demonstrating that
defendants aren’t missing any corn from the 2022 harvest. No reasonable factfinder could
conclude otherwise.
iii. 	2022 Wheat
Defendants have a similar complaint about the 2022 wheat harvest. Fowler Summary C,
based on crop-insurance data, reports 1,871.71 bushels of wheat harvested on defendants’
31 	The court reaches this figure by adding up the net weight of the three tickets: 58,540 + 59,160 +
25,000 = 142,700.
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sharecrop fields. Doc. 79-15 at 2 (Fowler Summary C); see also Doc. 79-16 (Fowler App. C).
But the Proof of Yield from the elevator shows 920.71 bushels of wheat from the sharecrop
fields delivered to the elevator in 2022. Doc. 86-9 at 4 (Proof of Yield). So, again, defendants
take issue with the difference between what plaintiff reported to crop insurance and what he took
to the elevator. Doc. 86 at 21.
Again, plaintiff faults defendants for focusing exclusively on deliveries to a single
elevator. That’s not the way to measure yield from a field, he asserts. Plaintiff’s explanation for
the 2022 wheat-harvest numbers shows the pitfalls of defendants’ approach: only 920.71 bushels
of the 1,871.71 total bushels produced went to the elevator because plaintiff retained 964 bushels
for seed wheat. Doc. 92-4 at 1 (Adjuster’s Special Report). Because he self-stored these 964
bushels, he then transferred defendants’ one-third share, 313.94 bushels, into Jacob’s account at
the elevator in July 2022. Doc. 85-12 at 2 (Trinity Records). Lest any doubt remain, plaintiff
has adduced evidence that, in July 2022, Jacob sold his one-third share of the total 1,871.71
bushels: 621.77 bushels of wheat. Doc. 92-5 (Wheat Purchase Settlement).
Defendants got their wheat. No reasonable factfinder could agree with defendants’
theory that they are missing wheat from 2022.
iv. 	2023 Harvest Generally
Defendants next rouse suspicion about the 2023 crops. Plaintiff asserts that defendants
received all the grain produced from the trust land and the sharecrop land in 2023. Doc. 79-1 at
6 (Pl. Aff. ¶ 30). Plaintiff also submitted the affidavit of a financial consultant, who asserts that
no variance existed between the bushels of wheat that plaintiff produced and harvested on the
sharecrop ground and the bushels of wheat delivered for the 2023 crop year. Doc. 79-25 at 5
(Seymour Aff. ¶ 15). The financial consultant didn’t find any material, unexplained variances
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and, instead, found that the information reported to insurance and the delivery scale tickets
reconciled. Id. at 6 (Seymour Aff. ¶ 16).
Defendants strive to controvert plaintiff’s financial consultant’s accounting by asserting
that the financial consultant admitted that crop-insurance reporting isn’t accurate. Doc. 86 at 20.
As avid footnote readers know already, the court rejects defendants’ attempt to cast dispersions
on this data. See above n.7. Defendants complain that the financial consultant didn’t look at
grain-elevator records. Yet again, defendants labor under a misapprehension. They believe that
a term of their agreement required plaintiff to substantiate grain production with elevator
tickets—and elevator tickets only. Their myopic focus on grain-elevator records is misplaced.
Plaintiff provided the scale tickets to the crop-insurance company. Farmers haul crops to a lot of
different places, and the crop-insurance data captures the crops stored in those various places.
See Doc. 92-3 at 1 (Supp. Seymoure Aff. ¶ 3) (explaining that relevant crop-insurance form
captures “total bushel production”).
The court thus concludes that defendants have failed to controvert the financial
consultant’s conclusion about the 2023 data. No reasonable factfinder could conclude that
defendants are missing 2023 grain. The court demonstrates this, below, by combing through the
summary-judgment evidence about the 2023 corn harvest and the 2023 wheat harvest.
v. 	2023 Corn
General complaints about the 2023 data aside, defendants take issue with the 2023 corn
numbers. Plaintiff submitted a summary of the 2023 sharecropping production (Fowler
Summary E) that showed 8,714.89 bushels of corn produced. Doc. 79-19 at 2 (Fowler Summary
E). Like the other summary, Fowler Summary E is based on crop-insurance data. Doc. 79-20
(Fowler App. E). The Proof of Yield from the elevator shows 3,267.15 bushels of corn delivered
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to the elevator in 2023. Doc. 86-9 at 4 (Proof of Yield). Defendants complain that plaintiff
reported 8,714.89 bushels to crop insurance but didn’t deliver those bushels to the grain elevator.
Plaintiff has adduced evidence to explain this discrepancy. First, plaintiff has corrected
the total corn production for 2023. According to plaintiff’s financial consultant, the crop-
insurance agent made an error. Doc. 79-25 at 5 (Seymour Aff. ¶ 14). The agent recorded one
load at 15.4 bushels. Id. But 15.4 represents the moisture-content of the grain, not the bushels.
Id. Instead, the scale ticket shows 1095.40 bushels. Id.; compare Doc. 79-33 at 3 (Rain & Hail–
002335), with id. at 6 (Rain & Hail–002343). So, the crop insurer understated the yield by 1,080
bushels, for a total 2023 corn yield on the sharecropping field of 9,794.89 bushels. Doc. 79-32 at
3 (Seymour Summary E). Of this amount, defendants were entitled to one third, or 3,264.96
bushels.
As just mentioned, according to the Proof of Yield document defendants rely on, the
elevator shows 3,267.15 bushels of corn delivered to the elevator in 2023. Elevator records show
that all of this corn went to Jacob. Doc. 92-6 at 2 (Ag Mark Delivery Sheet). That’s one-third of
the corrected, total 2023 corn yield of 9,794.89 bushels.
Defendants got their corn. No reasonable factfinder could conclude otherwise.
vi. 	2023 Wheat
The final dispute about missing grain is for the 2023 wheat. Fowler Summary E shows
4,348 bushels of wheat from the relevant field. Doc. 79-19 at 2 (Fowler Summary E). The Proof
of Yield that defendants rely on shows 3,510.81 bushels of sharecrop wheat delivered to the
elevator. Doc. 86-9 at 4–5 (Proof of Yield). Plaintiff explains the discrepancy this way: he
reserved the rest for seed wheat. Doc. 79-28 at 3 n.5 (Seymour Summary E); Doc. 79-29 at 4–5
(Seymor App. C). Plaintiff had those 845 bushels of seed wheat treated and cleaned at a cost of
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$2.50 per bushel, a charge he didn’t apply to defendants. Doc. 79-25 at 5–6 (Seymour Aff. ¶ 15).
And he planted the seed wheat in defendants’ fields. Id. Defendants offer no record evidence to
controvert this explanation.
The summary-judgment evidence thus permits just one reasonable conclusion:
defendants got their wheat.
vii. 	Hauling Grain Summary
As demonstrated above, defendants started their argument about missing grain on the
wrong foot. They assert that they only received grain actually delivered to the grain elevator.
But the summary-judgment evidence tells a different story. Plaintiff either (i) credited Jacob’s
account at the grain elevator with their one-third share of crops stored elsewhere or (ii) stored the
crop as seed and used that seed on defendants’ fields. No reasonable factfinder thus could
conclude that defendants are missing grain. Plaintiff thus deserves summary judgment against
this breach-of-contract theory.
3. 	Breach of Contract Summary
To sum up, defendants’ breach-of-contract counterclaim took heavy summary-judgment
fire. Starting with the existence of a contract, viewing the facts in a light most favorable to
defendants, a reasonable factfinder could conclude that the handwritten document represented
the parties’ agreement about plaintiff’s custom-services prices. So, a reasonable factfinder could
conclude that plaintiff overcharged defendants for his services. That dispute remains live for
trial.
Defendants’ theory that plaintiff breached the agreement by failing to follow CPI’s
Precision Agriculture Program survives albeit in reduced form. The parties never agreed that
plaintiff would follow CPI’s fertilizer prescriptions; they agreed merely that plaintiff would farm
his land as he farmed his own. Defendants never established that plaintiff failed to apply
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fertilizer to part of a field. And the summary-judgment evidence showed that he applied less
fertilizer than the CPI prescription in all fields, not just defendants’ fields. But a reasonable
factfinder could conclude that plaintiff unjustifiably reduced the fertilizer by 50% on one field in
October 2023.
Defendants’ theory that plaintiff overcharged them has some battle wounds, too. Plaintiff
adduced uncontroverted facts explaining several charges on his 2022 invoices. All that remains
for trial based on the 2022 invoices is an alleged double billing for corn replant chemicals and
plaintiff’s charges for his custom-farming services. Similarly, for the 2023 invoices, a genuine
dispute remains about plaintiff’s charges for his custom-farming services. But no reasonable
factfinder could agree with defendants’ theory that plaintiff marked up the price of fertilizer on
his invoices.
Defendants’ final theory of breach about hauling grain didn’t make it through summary
judgment. The parties’ agreement didn’t require plaintiff to take all crops to the grain elevator.
Nor could a reasonable factfinder find that plaintiff failed to account for all of defendants’ crops.
Instead, the summary-judgment facts show that defendants got their grain.
With the dust settled on defendants’ breach-of-contract counterclaim, the court now must
address plaintiff’s breach-of-contract claim. The above summary-judgment analysis shows that
plaintiff is entitled to summary judgment on several of defendants’ theories and that plaintiff is
entitled to some payment for his services. But at this stage, genuine issues of material fact
remain, and they prevent the court from deciding just how much plaintiff is owed. Until the
court can resolve the factual dispute whether the parties agreed to the custom-farming rates on
the handwritten document, the court can’t determine (i) who breached the contract first and (ii)
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how much defendants owe plaintiff.32 And, because a genuine dispute of material fact remains
about the contract’s terms—but not about the existence of a contract itself—plaintiff isn’t
entitled to summary judgment on his alternative unjust-enrichment claim. See Pizza Mgmt., Inc.
v. Pizza Hut, Inc., 737 F. Supp. 1154, 1167 (D. Kan. 1990) (“Promissory estoppel is an
alternative theory of recovery to a breach of contract claim. It is an equitable doctrine resorted to
for the enforcement of promises that are noncontractual and otherwise unenforceable.”).
The court turns to defendants’ breach-of-fiduciary-duty counterclaim, next.
B. 	Breach of Fiduciary Duty
Defendants bring a counterclaim for breach of fiduciary duty. Doc. 75 at 16 (PTO
¶ 4.b.). Plaintiff asks for summary judgment against this counterclaim because, he asserts, no
fiduciary relationship existed between the parties. Doc. 79 at 26–28.
The Kansas Supreme Court has recognized two general types of fiduciary relationships:
“(1) those specifically created by contract . . . and (2) those implied in law due to the factual
situation surrounding the involved transactions and the relationship of the parties to each other
and to the questioned transactions.” Denison State Bank v. Madeira, 640 P.2d 1235, 1241 (Kan.
1982). Defendants assert that this case belongs to the second category. This second category of
fiduciary relationships can prove “difficult to determine and must depend upon the facts in each
32 	Plaintiff asserts that he’s entitled to prejudgment interest on his liquidated damages—i.e. the
money he advanced for inputs. Doc. 79 at 24. Likely, he is. Indeed, defendants don’t dispute this claim
anywhere in their summary-judgment response. See generally Doc. 86. The court saves this issue for
another day, however. Here’s why.
Kan. Stat. Ann. § “16–201 provides for prejudgment interest on liquidated claims. A claim
becomes liquidated when both the amount due and the date on which such amount is due are fixed and
certain or when the same become definitely ascertainable by mathematical computation.” Hamilton v.
State Farm Fire & Cas. Co., 953 P.2d 1027, 1033 (Kan. 1998). But a genuine dispute of material fact
remains whether plaintiff double billed for corn chemicals. See above § III.A.2.b.i. So, the amount
plaintiff is due isn’t quite certain, and the court thus declines to decide the issue of prejudgment interest
now.
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case.” Id. Fortunately, the Kansas Supreme Court has provided broad principles for courts to
consider when determining whether a fiduciary relationship existed.
A fiduciary (i) “imparts a position of peculiar confidence placed by one individual in
another,” (ii) has “a duty to act primarily for the benefit of another,” and (iii) “is in a position to
have and exercise, and does have and exercise influence over the other.” Id. “A fiduciary
relationship implies a condition of superiority of one of the parties over the other.” Id. And a
fiduciary generally receives charge of “the property, interest or authority of the other[.]” Id.
But the court can’t use a fiduciary relationship to “convert ordinary day-to-day business
transactions into fiduciary relationships where none were intended or anticipated.” Id. at 1243.
“Mere concert of action, without more, does not establish a fiduciary relationship.” Wolf v.
Brungardt, 524 P.2d 726, 736 (Kan. 1974) (quotation cleaned up). So, for example, an arm’s
length transaction for mutual profit doesn’t create a fiduciary relationship. Id. Parties create a
fiduciary relationship “only when, by their concerted action, they willingly and knowingly act
for one another in a manner to impose mutual trust and confidence[.]” Id. (quotation cleaned
up).
“Under Kansas law a party seeking to establish the existence of a fiduciary relationship
must prove it by clear and convincing evidence.” Rajala v. Allied Corp., 919 F.2d 610, 615
(10th Cir. 1990). The court may never presume a fiduciary relationship. Id.
Defendants here have failed to adduce clear and convincing evidence from which a
reasonable factfinder could find that plaintiff willingly and knowingly accepted the duties of a
fiduciary. A sharecropping agreement doesn’t automatically create a fiduciary relationship
because generally, a lessor-lessee relationship does not create a fiduciary duty. Dugan v. First
Nat’l Bank in Wichita, 606 P.2d 1009, 1016 (Kan. 1980). Nor does the custom-farming
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agreement create one because “[s]imply providing services pursuant to an ordinary, commercial
contract does not establish a fiduciary relationship.” PulseCard, Inc. v. Discover Card Servs.,
Inc., 917 F. Supp. 1478, 1484 (D. Kan. 1996) (applying Kansas law). Indeed, defendants proffer
no authority holding that a farmer owes a landowner any fiduciary duty.
The summary-judgment facts don’t include many of the hallmarks of a fiduciary
relationship. Plaintiff didn’t occupy a position of peculiar confidence; sharecropping and
custom-farming are common practices. Nor did plaintiff have a duty to act primarily for
defendants’ benefit. Under the sharecropping agreement, plaintiff got two thirds of the crop and
defendants got one third—plaintiff thus acted primarily for his own benefit. And the custom-
farming agreement was a mere services contract that didn’t impose any special duties on
plaintiff. Plaintiff didn’t want to enter the custom-farming agreement at first; he asked to
sharecrop the trust land instead of custom farming, but defendants declined. Doc. 79-1 at 3 (Pl.
Aff. ¶ 14). So, plaintiff didn’t occupy a position of excessive influence or superiority over
defendants. After all, defendants were the landowners, with plenty of experience with
sharecropping. And defendants were the ones who decided to expand their operation with the
trust land, and they hired plaintiff to custom farm it over his hesitation.
To be sure, plaintiff had access to information that defendants didn’t have. As defendants
point out, plaintiff set crop yield goals, chose how much fertilizer to apply, decided when to
harvest, and hauled crops to a destination of his choice. Doc. 86 at 35–36. But these roles and
decisions don’t “spring from an attitude of trust and confidence,” because they are part and
parcel of farming. Wolf, 524 P.2d at 736. Defendants emphasize that they gave plaintiff a power
of attorney, but they conveniently omit that they did so only for their crop-insurance policies.
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Doc. 77-1 at 1 (Crop Insurance Power of Attorney). Crop insurance is also part and parcel of
farming.
In sum, defendants have failed to shoulder their burden to adduce clear and convincing
evidence from which a reasonable factfinder could conclude that the circumstances of their
agreement imposed a fiduciary duty on plaintiff. Defendants have failed to demonstrate that the
parties’ sharecropping and custom-farming arrangements were anything but arm’s-length
business transactions. No court ever has found a fiduciary duty existed in a case like this one.
The court declines here to become the first.
Before the court moves on, it must clean up one stray fiduciary-duty aside. In their
summary-judgment response, defendants assert that plaintiff’s “fiduciary role extended to the
Timmers’ cows and pastures.” Doc. 86 at 39. Defendants don’t bother to explain how the facts
and circumstances of plaintiff caring for defendants’ cattle created a fiduciary relationship. And
they certainly haven’t cited any legal authority for their conclusory proposition. The court thus
rejects defendants’ theory that plaintiff somehow owed defendants a fiduciary duty because he
cared for their cattle.
In sum, no rational trier of fact could find, on this summary-judgment record, clear and
convincing evidence of a fiduciary relationship. Plaintiff thus is entitled to summary judgment
against defendants’ breach-of-fiduciary-duty claim.
C. 	Fraud
Defendants’ motion asks for summary judgment in their favor on their fraud claim, Doc.
76 at 1, but their brief mentions fraud just once, see generally Doc. 77. Defendants’ analysis
doesn’t dedicate any space to their fraud claim. Id. at 31–38. The court thus denies defendants’
request for summary judgment on their fraud claim because they’ve made no more than a
perfunctory argument. See United States v. Walker, 918 F.3d 1134, 1151 (10th Cir. 2019)
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(explaining that parties waive arguments when “they are advanced . . . only in a perfunctory
manner” (quotation cleaned up)).
Plaintiff in turn seeks summary judgment against defendants’ fraud claim. Doc. 79 at
24–26. “[F]raud is never presumed and must be established by clear and convincing evidence.”
Alires v. McGehee, 85 P.3d 1191, 1195 (Kan. 2004). “The elements of an action for fraud
include [i] an untrue statement of fact, [ii] known to be untrue by the party making it, [iii] made
with the intent to deceive or with reckless disregard for the truth, [iv] upon which another party
justifiably relies and acts to his or her detriment.” Id. Plaintiff attacks the first and fourth
elements. He argues that he made no representations to defendants and, even if he had,
defendants couldn’t have relied on them reasonably. Doc. 79 at 25–26.
Defendants again have little to say in response. They don’t dedicate any of their
summary-judgment response brief to their fraud claim. See Doc. 86 at 29–40. Defendants make
some noise about misrepresentations, but they do so only when arguing their fiduciary-duty
claim against plaintiff. Id. at 33–36. And nowhere do defendants meet plaintiff’s targeted
argument about reasonable reliance. See id. Because defendants’ response to plaintiff’s
summary-judgment arguments about their fraud claim is perfunctory, the court grants plaintiff’s
request for summary judgment against this claim. It’s not the court’s assignment to conjure
defendants’ arguments for them. See Perry v. Woodward, 199 F.3d 1126, 1141 n.13 (10th Cir.
1999) (explaining that the court “will not craft a party’s arguments” for it).
In any event, plaintiff is correct that defendants have failed to adduce clear and
convincing evidence from which a reasonable factfinder could conclude that plaintiff made
material misrepresentations. In the Pretrial Order, defendants allege that plaintiff defrauded
them by “inducing them to believe that” plaintiff:
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• 	followed the CPI Precision Agriculture Program,
• 	properly charged for services and inputs,
• 	accurately reported crop yields, and
• 	delivered harvested crops to grain elevators.
Doc. 75 at 16 (PTO ¶ 4.b.). 33 But the summary-judgment record establishes as uncontroverted
this much: Plaintiff never represented to defendants that he did these things. No representation
means no fraud.
At the risk of sounding repetitive, the parties had no more than general discussions about
how plaintiff would farm defendants’ land. To be sure, the parties agree that plaintiff would
farm defendants’ land as he farmed his own. But that’s not specific enough. Edwards v. Phillips
Petrol. Co., 360 P.2d 23, 26 (Kan. 1961) (“Misrepsentations in order to constitute actionable
fraud . . . cannot ordinarily be predicated on unfulfilled promises or statements as to future
events.”); Blankinship v. Porter, 47 P.2d 72, 75 (Kan. 1935) (“There is authority drawing a
distinction between a promise made without an intent to perform and a promise made with an
affirmative intent not to perform, and holding that the former is insufficient and the latter
requisite to constitute actionable fraud.” (quotation cleaned up)). That is precisely what
defendants have tried to do here: transform a breach-of-contract claim into a fraud claim. The
court rejects this unsupported attempt.
D. 	KCPA
Defendants also make a counterclaim under the Kansas Consumer Protection Act and
claim that they are entitled to judgment as a matter of law this claim. Doc. 75 at 16–17 (PTO
¶ 4.b.). The KCPA prohibits “suppliers” from engaging “in any deceptive act or practice in
33 	Defendants also claim plaintiff defrauded them by trespassing on their pastures. Doc. 75 at 16
(PTO ¶ 4.b.).
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connection with a consumer transaction.” Kan. Stat. Ann. § 50-626(a). Plaintiff argues that he’s
entitled to summary judgment against this claim because he doesn’t meet the KCPA’s definition
of a supplier. Doc. 79 at 28–30. As relevant here, the KCPA defines a supplier as any “person
who, in the ordinary course of business, solicits, engages in or enforces consumer transactions,
whether or not dealing directly with the consumer.” Kan. Stat. Ann. § 50-624(l).
For the custom-farming issues, plaintiff doesn’t qualify as a supplier because custom
farming didn’t fall within his ordinary course of business. Plaintiff never had custom farmed
before this arrangement with defendants. Doc. 79-1 at 3 (Pl. Aff. ¶ 13). That alone disqualifies
plaintiff as a supplier; no reasonable factfinder could conclude that plaintiff’s ordinary course of
business involved custom farming.
For the sharecropping issues, plaintiff makes a slightly different argument. The KCPA
concerns itself with consumer transactions, and it defines a consumer transaction as a “a sale,
lease, assignment or other disposition for value of property or services within this state, . . . to a
consumer[.]” Kan. Stat. Ann. § 50-624(c). Under the sharecropping agreement, defendants
leased land to plaintiff. So, plaintiff argues, if anything, plaintiff is the consumer under the
KCPA. He’s right. The KCPA defines a supplier as the lessor. Kan. Stat. Ann. § 50-624(l)
(“‘Supplier’ means . . . lessor[.]”); see also Dealers Leasing, Inc. v. Allen, 994 P.2d 651, 654
(Kan. Ct. App. 1999) (defining company that leased jukebox to consumer as the supplier). So,
the KCPA doesn’t apply to defendants’ counterclaims based on the sharecropping agreement.34
34 	Defendants’ only response to plaintiff’s argument that he’s not a supplier fails to persuade.
Defendants argue that plaintiff regularly “engaged in ground preparation, planting, fertilizer application,
harvesting, and transportation” and is thus a supplier. Doc. 86 at 36 (quotation cleaned up). Defendants’
point is neither here nor there. No one disputes that plaintiff is a farmer. Defendants haven’t argued that
a reasonable factfinder could conclude that plaintiff, “in the ordinary course of business, solicits, engages
in or enforces consumer transactions[.]” Kan. Stat. Ann. § 50-624(l). And the court declines to construct
defendants’ arguments for them.
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In sum, plaintiff is entitled to summary judgment against defendants’ KCPA
counterclaim.35
E. 	Trespass
Defendants’ final counterclaim is a trespass claim. Doc. 75 at 17 (PTO ¶ 4.b.). “Under
Kansas law, trespass is an intentional tort, and plaintiff must show the following elements: (1)
that foreign matter entered upon another’s land; (2) that the entry was purposeful or substantially
certain to occur; (3) that defendant intended the act which constituted the invasion of plaintiff’s
rights.” Equity Asset Corp. v. B/E Aerospace, Inc., 388 F. Supp. 2d 1305, 1310 (D. Kan. 2005)
(citing United Proteins, Inc. v. Farmland Indus., Inc., 915 P.2d 80, 83–84 (Kan. 1996)). This
standard requires defendants to prove that plaintiff entered their land “without a privilege to do
so created by the possessor’s consent or otherwise.” Riddle Quarries v. Thompson, 279 P.2d
266, 269 (Kan. 1955). Defendants’ permission is a hotly contested factual dispute.
Plaintiff seeks to defeat defendants’ trespass claim by relying on defendants’ “false
testimony” about their permission. Doc. 79 at 32. Recall that, on plaintiff’s telling, defendants
gave him permission to use the pastures during an early May 2023 phone call. Doc. 77-13 at 31
(Pl. Dep. 197:3–19). Also recall that defendants didn’t recall this phone call at their depositions,
Doc. 79-2 at 27 (S. Timmer Dep. 175:4–18); Doc. 79-3 at 23 (J. Timmer Dep. 225:17–226:25),
but later produced phone records showing they’d called plaintiff in early May, see above n.16.
35 	Plaintiff argues that defendants’ KCPA claim is groundless, so the KCPA entitles him to his
attorney’s fees. Doc. 75 at 17 (PTO ¶ 5.a.). The cited provision in the KCPA entitles suppliers to recover
attorney fees if a consumer brings a groundless case and the supplier prevails. Kan. Stat. Ann. § 50-
634(e)(1). But the court just concluded that plaintiff isn’t a supplier. So the court declines to award
plaintiff his attorney’s fees under this provision of the KCPA. In light of this conclusion, the court
declines to decide whether defendants’ KCPA claims were groundless. Doc. 76 at 2.
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So, plaintiff has suspicions about defendants’ credibility on this matter. Defendants, for
their part, have their own suspicions about plaintiff’s credibility.36 But, at summary judgment,
the court “cannot weigh the evidence or make credibility determinations.” Forth, 85 F.4th at
1052. Defendants maintain that they didn’t give plaintiff permission and, viewing the facts in
the light most favorable to them and crediting these assertions, a reasonable factfinder could find
for defendants. Thus the court can’t grant summary judgment in plaintiff’s favor on the
permission issue.
Perhaps anticipating an insurmountable problem created by the summary-judgment
standard, plaintiff proffers another reason for summary judgment: he was, at worst, a good-faith
trespasser. Doc. 79 at 32–33. But this argument also relies on a factual premise incompatible
with the summary-judgment standard. Construing the facts in the light most favorable to
defendants, plaintiff didn’t have permission, and he knew it, because defendants never gave him
permission. So, under that summary-judgment version of the facts, he couldn’t have acted in
good faith.
Switching gears to trespass damages, defendants then ask the court to find, as a matter of
law, that they responded reasonably after learning of plaintiff’s trespass. Doc. 76 at 2. Plaintiff,
predictably, argues that he’s entitled to summary judgment against defendants’ trespass damages
because defendants acted unreasonably when they discovered the alleged trespass. Plaintiff
36 	Defendants base their suspicions on defendant Jacob’s conversations with plaintiff about potential
pasture land available for plaintiff’s cattle. Doc. 86 at 38. On May 3, Jacob offered to help plaintiff find
room for some cattle and suggested ground called the Trapper Mine. Doc. 86-7 at 1 (5/3/2023 Texts).
Plaintiff claims that defendants gave him permission to use the pastures on May 12. Four days later,
plaintiff told Jacob that if the Trapper Mine lease option didn’t come to pass, that was that, and he would
sell the cattle. Id. at 9 (5/16/23 Texts). Defendants claim that this statement “is not the statement of a
man who had just been told he could graze his cows on the Timmer and trust pastures in Kansas.” Doc.
86 at 2.
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argues that defendants failed to mitigate their damages by choosing not to bring their cattle back
to Kansas out of spite. Doc. 79 at 33–34.
“A person suffering from the trespass of another is bound, as far as he reasonably can, to
reduce his damages, and he is required to exercise the diligence of an ordinarily prudent man in
order to do so.” Mackey v. Bd. of Cnty. Comm’rs of Johnson Cnty., 341 P.2d 1050, 1058 (Kan.
1959) “[M]itigation of damages is an affirmative defense, the establishment of which devolves
upon the party asserting it.” Rockey v. Bacon, 470 P.2d 804, 808 (Kan. 1970).
The court declines to decide, at summary judgment, whether defendants exercised
reasonable care when mitigating their alleged trespass damages. “Whether reasonable care was
exercised is a question of fact, precluding the grant of summary judgment”—in either direction.
Honeycutt ex rel. Phillips v. City of Wichita, 836 P.2d 1128, 1142 (Kan. 1992). On one hand, a
reasonable factfinder might agree with plaintiff, i.e., Kansas ranchers don’t graze their cattle on
pastures over the winter, so plaintiff’s trespass caused defendants no harm. Or a reasonable
factfinder also could find that defendants failed to use common sense by making no effort to
locate alternative pasture or stalk grazing in Kansas. On the other hand, a reasonable factfinder
also could find that, because defendants had used their Kansas pastures over the winter in earlier
years, they could’ve done so in 2023. And, without those pastures as an option, defendants
behaved reasonably by keeping their cattle close to home in Colorado.
In sum, neither side of the case’s caption deserves summary judgment on the issue of
defendants’ trespass damages.
IV. 	Conclusion
The court denies defendants’ Motion for Partial Summary Judgment (Doc. 76). Genuine
disputes of material fact prevent the court from granting defendants judgment as a matter of law
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on the breach-of-contract counterclaim. And their breach of fiduciary duty, fraud, and KCPA
claims survive.
The court grants in part and denies in part plaintiff’s Motion for Summary Judgment
(Doc. 78). Plaintiff has shown that no reasonable factfinder could agree with several of
defendants’ theories of breach. But a genuine dispute of material fact prevents the court from
granting him summary judgment on his breach-of-contract claim. Plaintiff is entitled to
summary judgment against defendants’ counterclaims, as captured above.
The court concludes by tying up a few loose ends. Plaintiff moves for summary
judgment against defendants’ counterclaim for an accounting, but never once mentions that
claim in his brief. See generally Doc. 79. The court isn’t sure what to do with defendants’
accounting counterclaim, so the claim remains live. The court also grants defendants’ motions to
seal exhibits containing plaintiff’s financial information.
IT IS THEREFORE ORDERED BY THE COURT THAT defendants’ Motion for
Summary Judgment (Doc. 76) is denied.
IT IS FURTHER ORDERED THAT plaintiff’s Motion for Summary Judgment (Doc.
78) is granted in part and denied in part.
IT IS FURTHER ORDERED THAT plaintiff’s Motion to Strike (Doc. 85) is denied as
moot.
IT IS FURTHER ORDERED THAT defendants’ Motion to Seal (Doc. 81) is granted.
The court orders Doc. 82-1 sealed permanently.
IT IS FURTHER ORDERED THAT defendants’ Motion to Seal (Doc. 89) is granted.
The court orders Doc. 87-1 sealed permanently.
IT IS FURTHER ORDERED THAT Doc. 91-1 is struck.
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IT IS SO ORDERED.
Dated this 27th day of February, 2026, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
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