United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-1135

_____________ Lynn Brunsman; Karen Brunsman, * * Plaintiffs - Appellants, * * v. * * DeKalb Swine Breeders, Inc., * * Defendant - Appellee. *

_____________ Appeals from the United States No. 97-1136 District Court for the

_____________ Northern District of Iowa. Ronald J. Nelson; Brenda K. Nelson, * * Plaintiffs - Appellants, * * v. * * DeKalb Swine Breeders, Inc., * * Defendant - Appellee. *-2- _____________ No. 97-1253

_____________ Lynn Brunsman; Karen Brunsman, * * Plaintiffs - Appellees, * * v. * * DeKalb Swine Breeders, Inc., * * Defendant - Appellant. *

_____________ Submitted: December 10, 1997 Filed: March 6, 1998

_____________ Before McMILLIAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.

_____________ JOHN R. GIBSON, Circuit Judge. Lynn and Karen Brunsman and Ronald and Brenda Nelson appeal the distric t court's entry of summary judgment against them on their breach of warranty claim s against DeKalb Swine Breeders, Inc. B oth couples are hog farmers who bought boars fromDeKalb to use for breeding. Their contracts disclaimed any warranty o f merchan tability, health, or fitness for a particular purpose and limited the buyer' s remedy to replacement of the boars. The boars allegedly transmitted a virus to th e Brunsmans' and Nelsons' sows, causing the sows to give birth to piglets that suffered from "Shaky Pig Syndrome." The Nelsons and Brunsmans filed these suits for breach of warranty. They contend that the limitations on warrantyand remedy in the contractsThe Honorable Michael J. Melloy, Chief Judge, United Sta tes District Court for 1 the Northern District of Iowa. -3- are unconscionable. The district court held that the limitations were no t 1
unc onscionable and granted DeKalb summary judgment. Nelson v. DeKalb Swin e Breeders, Inc. , 952 F. Supp. 622 (N.D. Iowa 1996) and Brunsman v. DeKalb Swin e Br eeders, Inc. , 952 F. Supp 628 (N.D. Iowa 1996). The Brunsmans and Nelson s appeal, arguing that the limitations were unconscionable, and DeKalb cross-appeals, arguing that the court should have entered judgment for it on the ground that the buyers did not file suit within the limitations period prescribed in the contract. We affirm.
We review de novo the district court's grant of summary judgment. Summary judgmentis pr oper only if the record, viewed in the light most favorable to the non

movant, shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v

. Catrett , 477 U.S. 317, 322 (1986). The contracts for sale of the boars stated in boldface and capital letters:
LIMITATION ON WARRANTIES AND REMEDIES A. WARRANTIES AND DISCLAIMERS O F WARRANTIES. DEKALB WARRANTS ONLY THAT TH E SWINE ARE AS D ESCRIBED IN THIS CONTRACT, AND DEK ALB ALSO PROVIDES THE LIMITE D WARRANTIES REGARDING FERTILITY AS SET FORT H MORE FULLY IN [the paragraph on the fertility warranty]. It is undisputed t

hat these warranties do not address the defect that actually existed in the boars-- infection with a contagious virus. That defect was addressed in the same paragraph, in boldface, capital letters, and red print:-4-

DEKAL B GIVES NO OTHER WARRANTIES, EXPRESS O R IMP LIED, REGARDING THE SWINE OR THEIR PROGENY . DEKALB GIVES NO WARRANTIES OF MERCHANTABILITY, HEALTH OR FITNESS FOR A PARTICULAR PURPOSE. The contra cts also stated in red print that the buyer had read the "Pathogens an d Disease-- Statement and Limited Replacement Policy" on the back of the contract form. The "Pat hogens and Disease" statement listed pathogens that had been present i n DeKa lb's swine herds. It specifically listed "congenital tremor virus," the virus tha t causes Shaky Pig Syndrome.
Additionally, the contracts stated:

LIMITATION ON DAMAGES. UNDER N O CIR CUMSTANCES SHALL DEKALB BE LIABLE TO BUYE R FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES O R CLAIMS OF ANY KIND, WHETHER ARIS ING IN CONTRACT, TOR T, NEGLIGENCE, STRICT PRODUCTS LIABILITY , STATUTORY OR REGULATORY VIOLATION OR UNDE R ANY OTHER LEGAL THEORY. DeKalb agreed in the contract to replace swine infected with any of five specifi c diseases, which did not include Shaky Pig Syndrome.

The Bruns mans and the Nelsons contend that the limitation on the warranty provided by the DeKalb contract is unconscionable under Iowa Cod e Section 554.2302 (1995) (Uniform C ommercial Code section 2-302(1)), because the warranty provided is actually illusory and has no value.-5-

Under Io wa law, a court considering a claim of unconscionability shoul d consider the factors of assent, unfair surprise, notice, disparity of barg aining power, and substanti ve unfairness. Gentile v. Allied Energy Prods., Inc. , 479 N.W.2d 607, 60 9 (Iowa Ct. App. 1991) (citing C&J Fertilizer v. Allied Mut. Ins. Co. , 227 N.W. 2d 169, 181 (Iowa 1975)). Whether a co ntractual term is unconscionable is a question of law. See Iowa Code § 554.2302(1) and comment 3. The question is not a difficult one in this case, since the Bruns mans' and Nelsons' briefs concede that they agreed to the terms and that they were "free to go elsewhere for bre eding stock." Thus, the factors of assent and disparity of bargaining power do not help t he buyers. There can be no plausible claim of unfair surprise or lack o f notice, since the l imitation of warranty was in plain language, intelligible to a layman, and was printed in the most emphatic typeface on the front of the contract. Moreover, the front of the contract alerted the buyer to a s tatement on pathogens expressly stating that DeKalb' s herd had been exposed to the virus that the boars were later found t o carry. As for substantive unfairness, Iowa Code section 554.2316(2) (1995) permits parties to negate implied warranties if the e xclusion meets certain standards, which the contracts in these ca ses met. The Brunsmans and the Nelsons have made no showing sufficie nt to establish that the limitations of warranties in their contracts wer e unconsc ionable as a matter of law. See Schweizer v. DeKalb Swine Breeders, Inc. , 954 F. Supp. 1495, 1506 (D. Kan. 1997); cf. Rayle Tech., Inc. v. DeKalb Swin e Breede rs, Inc. , 897 F. Supp. 1472, 1475 (S.D.Ga. 1995), aff'd , 133 F.3d 1405 (11t h Cir. 1 998); Urschel Farms, Inc. v. DeKalb Swine Breeders, Inc. , 858 F. Supp. 831 , 833-37 (N.D. Ind. 1994).
Ha ving concluded that there is no basis for setting aside the limitation o f warranty, we need not consider the remaini ng arguments in the appeal or cross appeal. We affirm the judgment of the district court.-6-

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.