Bluegrass suit: Scotts, Seeds delay trial; settlement in the works

Start of a month-long trial on one of the largest civil suits in Whitman County superior court records was postponed for a week after attorneys advised the court they were at the tentative stage of reaching an agreement. The court has been preparing for a lengthy trial which could have jurors making decisions involving millions of dollars.

The suit had evolved to contest counter claims filed by the Scotts Company, purchaser of Kentucky Bluegrass seed from Inland Northwest farmers, and Seeds, Inc., the Tekoa based firm which signed growers for Scotts, processed the seeds and stored it.

The suit underwent a major change two weeks ago when attorneys advised the court the Kentucky Bluegrass growers, who filed two suits two years ago, had reached a settlement and were out of the dispute.

Friday morning, staff members in the county clerk’s office were calling prospective jurors to inform them Monday’s start for the trial had been postponed a week. The jurors were also told negotiations were underway to settle the dispute.

The court had issued a call for 95 county residents to report for potential jury duty. Judge David Frazier included a hardship query in the jury summons to accommodate jurors which could have faced hardship if a family member was selected to serve on what was expected to be a long trial.

The list of potential jurors has been cut down to 55. They were instructed last week to call a designated number later this week to determine the status of the trial.

Matthew Turetsky, Seattle attorney who has represented Scotts Company in the two-year court battle, notified the court by e-mail Oct. 11 that a tentative agreement was in the works. He sent the message on behalf of both sides remaining in the suit.

Judge David Frazier said Friday the attorneys asked to keep their trial date on the docket in case they failed to reach a final settlement, so the trial was officially postponed for a week.

Last Thursday’s notice from the attorneys came after Judge Frazier presided at a four-plus hour hearing on pre-trial motions Oct. 12.

At that hearing, the court was informed Scotts intended to pursue its breach of contract claims against Seeds, Inc. Turetsky has contended the Tekoa-based firm “stuffed” seed delivery invoices by including Bluegrass seed lots that had never been contracted by Scotts. The incentive, Turetsky has contended, was to take advantage of the relative high prices on the long-term Scotts contracts after the Kentucky Bluegrass seed market dropped in the wake of the real estate market crash.

Turetsky in his trial brief has cited a Scotts figures in excess of $25 million as result of the alleged breach of contract caused by the alleged stuffing by Seeds.

Turetsky earlier had listed 72 potential witnesses which could be called by Scotts and 2,390 exhibits, many of them copies of business records with growers and Seeds, Inc., over a four-year span.

Tim Esser of Pullman, representing Seeds, contends Scotts indeed ordered the Kentucky Bluegrass seed and had launched the argument after attempting to get control of the Bluegrass seed supply in the years before the 2008 recession plunge. Esser noted the growers filed suit in 2010 after an ill-fated attempt by Scotts executives to convince growers to “help them out” in the face of plunging demand for lawn seed.

Esser’s pre-trial brief told the court Scotts has not paid Seeds sums due for cleaning the crops, which accounts for half of the company’s revenue. Scotts has also not paid storage fees or made interest payments.

As a result of Scotts’ refusal to pay its account, Esser in his brief said Seeds, acting under the Uniform Commercial Code, has withheld proceeds from seed sales it has made on behalf of Scotts as means of getting payments they believe due.

Esser said in his brief he would ask the jury to decide on an interrogatory form of verdict which proceeded through the claims made in an affirmative defense.

In other filings this week, a notice from the commissioner of the state’s Division Three of Court of Appeals in Spokane made their denial of a discretionary review of a June 8 decision ruling here final. The appeals court noted their policy of generally allowing the process to play out in the trial court. The review had been sought by Scotts after Judge Frazier ruled here the company had authorized Seeds agents to tag a 20-cent bonus on grower contracts as incentive to keep growers signed up.

Also early this week, Cheryl Adamson, Kennnewick attroney representing Dye Seed Ranch of Pomeroy, presented a stipulation for a dismissal order for one of the grower groups. Adamson earlier had informed the court growers involved in the Dye Seeds Ranch segment of the suit had settled.