FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF OKLAHOMA (D.C. No. 6:15-CV-00384-RAW)
R. McLaughlin of McLaughlin Law Firm, PLLC, Stigler,
Oklahoma, for Plaintiff-Appellant.
Clayton E. Bailey of Bailey Brauer PLLC, Dallas, Texas, for
LUCERO, McKAY, and HARTZ, Circuit Judges.
Earl Oldham appeals the district court's entry of summary
judgment in favor of Defendant O.K. Farms in this contract
case. Because the district court's ruling was based on a
theory that was not raised by Defendant or briefed by either
party, we reverse and remand for further proceedings.
has been raising chickens for O.K. Farms since 1995. On March
21, 2014, he and O.K. entered into the chicken-growing
contract at issue in this case. Under the contract, O.K.
would provide Plaintiff with chickens to raise, the chickens
would remain O.K.'s property, and Plaintiff would be paid
for providing for their care. The chickens-also referred to
as broilers-would ultimately be processed for human
consumption. The contract had a three-year duration, but O.K.
retained the right to terminate the contract for certain
specified reasons, including "[b]reach of any term or
condition of this contract, " "[a]bandonment or
neglect of a flock, " and "[f]ailure to care for or
causing damage to [O.K.'s] equipment or property."
(Appellee's Suppl. App. at 94.)
in the morning of May 20, 2016, Plaintiff discovered that one
of his three chicken houses had flooded after an overnight
rainstorm. He contacted O.K. and requested help. The O.K.
field service technician who was assigned to his area arrived
at Plaintiff's farm at about 6 a.m. Plaintiff told him he
would need help, and the technician got on the phone to
discuss the problem with his supervisor, O.K.'s broiler
manager. While he was doing so, Plaintiff briefly left the
farm to open his tire shop, returning fifteen to twenty
minutes later. During the phone call, the broiler manager
told the field technician that this was Plaintiff's
problem, not O.K.'s, and that Plaintiff would have to
about 9 a.m., Plaintiff spoke on the phone with the broiler
manager. The manager asked him how many of the chickens had
survived the flooding and what he planned to do to address
the problem. Plaintiff responded that about eighty percent of
the chickens were alive and that his grandson was present to
assist him. The manager asked if Plaintiff was planning on
getting additional help because the groundwater flooding in
the house was an animal-welfare violation. According to the
manager, Plaintiff then became irritated and complained about
the lack of help provided by O.K. When the manager asked what
Plaintiff wanted O.K. to do, Plaintiff told him to "come
get these birds out of the house." (Id. at
347.) According to the manager, he reminded Plaintiff that it
was Plaintiff's responsibility to raise and care for the
chickens, but Plaintiff interrupted him and said that O.K.
"could just come get all these goddamn birds."
(Id.) In his deposition, Plaintiff denied ever
saying this, but testified that, when the manager asked him
what he wanted O.K. to do, he said, "I want you to come
and catch them." (Id. at 64.) He testified that
he needed O.K. to get the chickens out of the flooded
henhouse so he could clean it up and make it habitable again.
catch crew arrived at Plaintiff's farm at about 11 a.m.
Because their equipment wouldn't work in the mud of the
flooded henhouse and because they didn't want to spend
all day working in wet clothing, they decided to remove the
chickens from the two dry henhouses first. After removing the
chickens from the second and third henhouses, they then
removed the chickens-most of them dead by now-from the
flooded house, finishing up at about 9 p.m. that night. The
live chickens were brought to a nearby farm to be raised by a
different farmer. Plaintiff was paid for the work he had done
in raising the surviving chickens to this point, reduced by
various expenses such as the costs of catching and moving the
3, 2015, O.K. sent Plaintiff a letter providing him with a
ninety-day notice of contract termination. After describing
the events of May 20, O.K. summarily asserted that it was
entitled to terminate for three separate contractual reasons:
(1) Plaintiff's "[b]reach of any term or
condition" of the contract; (2) Plaintiff's
"[a]bandonment or neglect of a flock, failure to provide
care or follow directions and instructions regarding the care
and maintenance of the flock by [O.K.'s]
representatives"; and (3) Plaintiff's
"[f]ailure to care for or causing damage to [O.K.'s]
equipment or property." (Id. at 237.)
filed suit in state court, alleging that O.K. breached the
contract by terminating the agreement without adequate cause.
O.K. removed the action to federal court and filed a motion
for summary judgment.
motion for summary judgment, O.K. provided its reasoning
behind each of the three contractual reasons identified in
the termination letter. First, O.K. argued that Plaintiff
breached the terms and conditions of the contract by failing
to adequately provide for the animal welfare of the chickens
in his care. Second, O.K. argued that Plaintiff
"abandoned and neglected the flock to open his tire shop
when the broilers were encountering a threat to their
welfare." (Appellant's App. at 34.) Finally, O.K.
argued that the flooding in the chicken house "damaged
O.K.'s property-that is, broilers." (Id.)
With the exception of the single-sentence argument that
Plaintiff abandoned his flock by briefly leaving to open his
tire shop, O.K.'s motion for summary judgment was
premised entirely on its contention that the flooding
problems in the henhouse were the result of Plaintiff's
neglect and that the harms caused by this neglect justified
O.K.'s early termination of the contract. In response,
Plaintiff contended that the flooding was the result of an
"act of God, " not neglect, and he cited for
support to the deposition testimony of the O.K. field
technician-the only O.K. employee who was at the scene from
the beginning-that this was an act ...