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STATE OF MICHIGAN
COURT OF APPEALS


DART BANK, Plaintiff/Counter-Defendant, v WILLIAM D. BYRUM, JR. and WILLIAM D. BYRUM, SR., Defendants/Counter-Plaintiffs, and GENESIS AG LTD, Defendant/Counter-Plaintiff/ThirdParty Plaintiff-Appellant, and COOPERATIVE ELEVATOR COMPANY, Third-Party Defendant-Appellee, and MONSANTO COMPANY, Intervening Defendant.

UNPUBLISHED June 24, 2008

No. 277581 Ingham Circuit Court LC No. 05-000302-CH

Before: Zahra, P.J., and Cavanagh and Jansen, JJ. PER CURIAM. Third-party plaintiff Genesis Ag Ltd (Genesis) appeals by right the circuit court's grant of summary disposition in favor of third-party defendant Cooperative Elevator Company (Cooperative). The court ruled that there was no genuine issue of material fact concerning whether Cooperative had a right, upon Genesis's default, to sell soybeans that it was storing pursuant to an agreement with Genesis. The court entered judgment for Cooperative in the amount of $38,972.80. We affirm in part and vacate in part. -1-


Genesis was engaged in the business of producing, marketing, and selling hybrid corn, soybean, and wheat seed in various markets. At issue in this case is genetically modified soybean seed developed by Genesis under a licensing agreement with intervening defendant Monsanto Company. Prior to 2004, Genesis contracted directly with Cooperative's individual members to grow the specialized soybean seeds. Cooperative functioned as a middleman by soliciting its members to serve as contract growers for Genesis, and by processing, cleaning, storing, and bagging the seed after it was grown. In 2004, however, the parties entered into a new contractual arrangement. Under the terms of the new contract, Cooperative was to pay its member-growers directly for growing Genesis seed, and Genesis was to reimburse Cooperative for these payments to the member growers. In addition, Genesis was to reimburse Cooperative for the costs of soybean processing and storage. Under the new contract, the parties agreed that any grower fees not reimbursed to Cooperative by Genesis within 48 hours would accrue interest at a rate of 1

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