IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

m 01-30058

Summary Calendar

_______________

JOHNNY BYONE,

INDIVIDUALLY AND ON BEHALF OF A CLASS OF ALL OTHERS SIMILARLY SITUATED;

JOHNNY ODOM,

INDIVIDUALLY AND ON BEHALF OF A CLASS OF ALL OTHERS SIMILARLY SITUATED,

Plaintiffs-Appellants,

VERSUS

MONSANTO COMPANY; ET AL.,

Defendants,

MONSANTO COMPANY; ASGROW SEED COMPANY; SF SERVICES,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Western District of Louisiana

_________________________

August 6, 2001

Before JOLLY, SMITH, and BENAVIDES,

Circuit Judges.

PER CURIAM:*

Louisiana farmers Johnny Byone and

Johnny Odom purchased and grew Roundup

Ready® brand soybeans during 1997 and

1998. Experiencing lower yields than

anticipated, they sued the developer of this

strain of soybean, Monsanto Company, and

* Pursuant to 5TH CIR. R. 47.5, the court has

determined that this opinion should not be

published and is not precedent except under the

limited circumstances set forth in 5TH CIR. R.

*

(...continued)

47.5.4.
2

two seed companies, Asgrow Seed Company

and SF Services, who sold them the beans.

The district court granted summary judgment

to the defendants. Finding no error, we affirm,

essentially for the reasons given by the district

court in its comprehensive ruling entered on

December 13, 2000.

I.

Monsanto Companygeneticallyengineered

the Roundup Ready® soybean to resist the

effects of Roundup brand herbicide so that

farmers could spray to control weeds without

harming their crop. Byone and Odom admit

that the soybeans withstood the herbicide as

expected, but they contend that despite

assurances of “maximum yield potential” and

“no reduction in yield potential,” the Roundup

Ready® plants produced fewer soybeans than

did the other brands they planted simultaneously. Byone and Odom claim that such advertising fraudulently misrepresented the performance of these seeds. We have reviewed

the record, and we conclude that the court

correctly entered summary judgment. 

II.

Byone’s and Odom’s fraud claim for the

1997 crop is time-barred. A one-year statute

of limitations applies to delictual actions such

astortious or negligent misrepresentation. See

LA. CIV. CODE ANN. arts. 3447, 3492 (West

2001). Under Louisiana law, when a plaintiff

cannot reasonablyknow ofthe cause of action,

the doctrine of contra non valentum tolls this

period until the plaintiff has information

sufficient to prompt further inquiry. See Eldredge v. Martin Marietta Corp., 207 F.3d

737, 742 (5thCir. 1992). Assuming arguendo

that the doctrine applies here, the latest time at

which Byone and Odom could have had such

information was when they harvested their

1997 crop; they did not sue until July 1999.

Even if their claim were not time-barred, their

claim is without merit, as we will explain.

III.

Although Byone and Odom’s fraud claim

for the 1998 crop is timely, they cannot

prevail. First, they point us to no actual

promise or guarantee of a high yield; they

present only scientific data and farmers’

testimony suggesting that Roundup Ready®

seeds have equal yield potential to that of

other soybean varieties. Second, even

assuming that these sophisticated soybean

producersjustifiablyrelied on some ephemeral

promise in the advertisements, only

misstatements concerning past or present facts

are actionable as fraud under Louisiana law.

See America’s Favorite Chicken v. Cajun

Enters., Inc., 130 F.3d 180, 186 (5th Cir.

1997).1 Finally, Asgrow’s seed bags carried a

disclaimer noting that Asgrow provided no

guarantee “of crop yield or freedom from seed

borne diseases.”

AFFIRMED.

1

In America’s Favorite Chicken, an analogous

suit against a franchiser for fraudulent

misrepresentation of sales potential, we construed

this proposition broadly. The franchiser provided

projected salesfigures and promised that if thepurchasers ran the store properly, sales definitely

would increase. We concluded that even this

promise was not actionable. America’s Favorite

Chicken, 130 F.3d at 186.