vs. ) CASE NO. 92-7440A
) EDDIE D. GRIFFIN, d/b/a QUALITY, ) BROKERAGE and UNITED STATES ) FIDELITY & GUARANTY COMPANY, )
Respondents. )
Upon due notice, this cause came on for formal hearing on April 29, 1993 in Tallahassee, Florida before Ella Jane P. Davis, a duly assigned hearing officer of the Division of Administrative Hearings.
For Petitioners Randal Roberts Sr., Randal Roberts Jr., and Hugh Martin d/b/a M & R Farms:
For Respondent Eddie D. Griffin d/b/a Quality Brokerage: Eddie D. Griffin
$10,258.98, or any part thereof against Respondent dealer and his surety company.
The three Petitioners, a de facto partnership d/b/a M & R Farms, represented themselves. Randal Roberts, Sr. and Hugh Martin testified.
Petitioner's Exhibits 1, and 4 through 14 were admitted in evidence. Petitioner's Exhibits 2 and 3 were marked for identification but not offered in evidence.
Respondent Griffin represented himself d/b/a Quality Brokerage. He also called Randal Roberts, Sr. as his witness, testified on his own behalf, and had three exhibits marked for identification. Exhibit R-1 was withdrawn. Exhibit R-2 (settlement documents matched by number to federal inspection sheets) was admitted subject to Section 120.58(1)(a) F.S., that is, hearsay capable of explaining or supplementing direct evidence. Composite Exhibit R-3 was admitted.
Respondent United States Fidelity & Guaranty Company did not appear. Filing of a transcript and of proposed recommended orders was waived.
Petitioners are growers of watermelons and qualify as "producers" under Section 604.15(5) F.S.
Respondent Eddie D. Griffin d/b/a Quality Brokerage is a broker-shipper of watermelons and qualifies as a "dealer" under Section 604.15(1) F.S.
Respondent United States Fidelity & Guaranty Company is surety for Respondent Griffin d/b/a Quality Brokerage.
This cause is governed by the claims made in the amended complaint. (Exhibit P-13) That amended complaint sets out the parameters of the claimed amounts as follows:
AGREED PRICE | PAID PRICE | DIFFERENCE CLAIMED |
6-13-92 Inv.#573 45,429 lbs. Jub. melons @ .04/lb.$1,816.80 (paid on 41,720 lbs.) Adv. -700.00 NWPB - 9.08 1,107.72 |
950.46 |
157.26 |
6-14-92 Inv.#586 48,060 lbs. Jub. melons @ .05/lb. 2,403.00 (paid @ .04/lb.) Adv. -700.00 NWPB - 9.61 1,693.39 |
1,202.79 |
490.60 |
6-14-92 Inv.#587 50,610 lbs. Jub. melons @ .05/lb. 2,530.50 (paid @ .04/lb.) Adv. -700.00 NWPB - 10.12 1,820.38 |
1,304.28 |
516.10 |
6-15-92 Inv.#592 44,800 lbs. Crim. melons @ .05/lb. 2,240.00 (paid @ .04/lb.) Adv. -700.00 NWPB - 8.96 1,531.04 |
1,153.04 |
378.00 |
6-15-92 Inv.#593 46,340 lbs.
Crim. melons @ .05/lb. 2,317.00 (paid @ .04/lb.) Adv. -700.00
NWPB - 9.27
1,607.73 1,144.33 463.40
6-16-92 Inv.#598 47,170 lbs.
Crim. melons @ .05/lb. 2,358.50 (paid @ .04/lb.) Adv. -700.00
NWPB - 9.43
1,649.07 1,177.37 471.70
6-16-92 Inv.#607 48,320 lbs.
Crim. melons @ .05/lb. 2,416.00 (paid @ .04/lb.) Adv. -700.00
NWPB - 9.66
1,706.34 1,223.14 483.20
6-17-92 Inv.#628 1/ 40,890 lbs.
Jub. melons @ .05/lb. 2,044.50 (no inv.# provided
producer) Adv. -700.00
NWPB - 8.18
1,336.32 .00 1,336.32
6-17-92 Inv.#626 36,690 lbs.
Jub. melons @ .05/lb. 1,834.50 (paid on 27,890 lbs.) Adv. -700.00
NWPB - 7.34
1,127.16 688.92 438.24
6-17-92 Inv.#627 37,300 lbs.
Jub. | melons | @ .05/lb. | 1,865.00 |
(paid on 30,500 lbs.) Adv. | -700.00 |
|
|
NWPB | - 7.46 |
|
|
| 1,157.54 | 818.90 | 338.64 |
6-17-92 Inv.#642 43,350 lbs. Job. melons @ .05/lb. |
2,167.50 |
|
|
(paid @ .04/lb.) Adv. | -700.00 |
|
|
NWPB | - 8.67 |
|
|
| 1,458.83 | 1,025.33 | 433.50 |
6-18-92 Inv.#643 44,150 lbs. Crim. melons @ .05/lb. |
2,207.50 |
|
|
(paid @ .04/lb.) Adv. | -700.00 |
|
|
NWPB | - 8.83 |
|
|
| 1,498.67 | 1,057.17 | 441.50 |
6-18-92 Inv.#644 45,060 lbs. Crim. melons @ .05/lb. |
2,253.00 |
|
|
Adv. | -700.00 |
|
|
NWPB | - 9.01 |
|
|
| 1,543.99 | .00 | 1,543.99 |
6-18-92 Inv.#646 43,180 lbs.
Crim. melons @ .05/lb. 2,159.00 (paid on 38,380 lbs.) Adv. -700.00
NWPB - 8.64
1,450.36 1,211.32 239.04
6-18-92 Inv.645 47,070 lbs.
Jub. melons @ .05/lb. 2,353.50 Adv. -700.00
NWPB - 9.41
1,644.09 .00 1,644.09
6-19-92 Inv.#663 43,520 lbs.
Crim. melons | @ .05/lb. | 2,176.00 |
|
(paid @ .04/lb.) | Adv. | -700.00 |
| NWPB | - 8.70 |
|
| 1,467.30 | 1,032.10 | 435.20 |
6-19-92 Inv.#685 44,820 Crim. melons | lbs. @ .05/lb. |
2,241.00 |
|
|
| Adv. | -700.00 |
|
|
| NWPB | - 8.96 |
|
|
|
| 1,532.04 | 1,083.84 | 448.20 |
TOTAL DUE $10,258.98
The amended complaint admits that Respondent's deductions for advances and NWPB were appropriate on each load/invoice, and these are not in contention.
The amended complaint admits that Respondent has already made the payments to Petitioners, which are indicated. It is only the claimed shortfall on each load that is at issue.
At formal hearing, Petitioners discussed a load they claimed they had delivered to Respondent on 6-20-92. They had neither receipts, weight tickets, nor settlement sheets, (invoices) nor payment from Respondent on this load. This "lost load," as the parties described it, is not named in the amended complaint. Therefore, no findings of fact can be made thereon, due to lack of jurisdiction.
Petitioner's Exhibit 1 appears to apply to loads 560, 561, 562, and 563, all loads occurring on 6-11-92. That date and those load numbers also are not listed in the amended complaint. Accordingly, no findings of fact will be made with regard to loads 560, 561, 562 or 563, due to lack of jurisdiction.
Petitioners delineated two theories of recovery as to the seventeen claims actually named in the amended complaint.
Petitioners claimed the right to recover from Respondents due to Respondent dealer's failure to pay for all or some of the poundage delivered by Petitioners to Respondent dealer on the following loads: 6-13-92 #573, 6-17-92 #628, 6-17-92 #626, 6-17-92 #627, 6-18-92 #644, 6-18-92 #646, 6-18-92 #645, 6- 19-92 #685.
Petitioners claim the right to recover from Respondents due to Respondent dealer's failure to pay per pound at the rate of one cent below the "wire price" per pound on the following loads: 6-14-92 #586, 6-14-92 #587, 6- 15-92 #592, 6-15-92 #593, 6-16-92 #598, 6-16-92 #607, 6-17-92 #642, 6-18-92 #643, and 6-19-92 #663.
For | 6-15-92 | 18-24 | lb. | average | 4.50 | - 5.00 | cents, few 6.00 |
|
| 26-32 | lb. | average | 4.50 | - 5.00 | cents, few 6.00 |
For | 6-16-92 | 18-24 | lb. | average | 5.00 | - 6.00 | cents |
|
| 26-32 | lb. | average | 5.00 | - 6.00 | cents |
For | 6-17-92 | 18-24 | lb. | average | 6.00 | cents, | few higher and lower |
|
| 26-32 | lb. | average | 6.00 | cents, | few higher and lower |
For | 6-18-92 | 18-24 | lb. | average | 6.00 | - 6.50 | cents, |
"Wire prices" are printed in "spread" form. Evidence was presented (Composite Exhibit P-14), and the parties are agreed, that the following were the "wire prices" at certain times material. Otherwise, there is no evidence in this record concerning amounts or dates of "wire prices."
mostly 6.00, few higher 26-32 lb. average 6.00 - 6.50 cents,
mostly 6.00, few higher and lower
For 6-19-92 18-24 lb. average 6.00 - 6.50 cents,
mostly 6.00, few higher
26-32 lb. average 6.00 - 6.50 cents
mostly 6.00, few higher and lower
Since no "wire prices" were proven up for the days involved in loads 586, and 587, Petitioners are not entitled to recover on their theory of entitlement for those loads.
Upon the allegations of the amended complaint and the "wire prices" proven, it appears that Petitioners have already received payment from Respondent dealer at one cent (or better) below the proven low-end "wire price" on loads 592, 593, 598, and 607. Therefore, Petitioners are not entitled to recover on their theory of entitlement for those loads.
Petitioners (grower-producers) believed that they had negotiated an oral contract with Respondent dealer to the effect that the dealer would pay Petitioners at the rate of one cent below the "wire price" per pound on those days that Respondent took delivery from them of their watermelons. Respondent testified contrariwise that although such an arrangement was discussed, the parties' final oral agreement was concluded in terms of an excellent quality of every melon, and after negotiations were completed, the dealer understood that the price he was to pay the producers was just the same price per pound he paid all his other producers on any given day. In determining the daily uniform price per pound, Respondent admitted that he used the "wire price" as a guideline, but never explained exactly how the "wire price" constituted a guideline.
The Petitioners and Respondent dealer had dealt with one another over a period of years. In past years they had discussed what was to occur if any loads were refused, in whole or in part, by retail buyers at their ultimate destinations. Over the years, the parties had agreed that for loads involving a "small deduct," that is, a small amount of refused melons, Respondent had unilateral authority to informally agree to dump the bad melons or take whatever he could get for the load and pass on the monetary loss to Petitioners. Petitioners conceded that the discretion to take or not take such losses always had been entirely that of Respondent during the parties' several years of past dealing, and that before 1992, whenever an ultimate recipient had refused melons, the "deduct" had been "worked out" this way with no prior notice to Petitioners. In short, by Petitioners' own evidence, it appears that up until the loads at issue in 1992, Petitioners had always simply accepted the Respondent's calculations concerning refusals for quality without requiring proof by way of a federal inspection.
Mr. Randal Roberts Sr. testified that in his opinion, any "deduct" over 300 pounds was not "small." However, no evidence defining an industry standard for the relative terms of "small deducts" or "large deducts" was introduced.
In light of the parties' standard arrangement over the whole course of their business dealings, it is deemed that Respondent continued to be within his rights in 1992 to unilaterally decide which melons to pay Petitioners for and which melons not to pay Petitioners for where quality became an issue between himself and the ultimate recipients.
Petitioners estimated that on a scale of one to ten, the melons they had delivered to Respondent dealer in 1992 were "about a seven" when they delivered them to him, even though Respondent's agents culled out the really bad melons. It may be inferred therefrom that the loads were no better and were probably in worse condition when they reached their ultimate destinations.
Respondent testified that he had dumped all or part of the remaining loads in question or reduced the price per pound from that of the "wire price" due to the poor quality of the melons based on complaints or refusals by the recipients when the melons reached their ultimate destinations. These are loads 573, 628, 626, 627, 644, 646, 645, 685, 642, 643, and 663.
Although Petitioners adamantly denied that they had ever agreed to rely on federal inspections to determine which melons were bad and which were good, Respondent had gotten federal inspection sheets (R-2) to support his decision to dump all or part of loads 628, 643, 645, 663, and 685.
Respondent dealer introduced his business journal (R-3) to show that load 643 was "bad" and load 644 was "dumped" due to poor quality.
Respondent dealer introduced his contemporaneous business journal (R-
3) to show that except for loads 607, 643, 644, 663, and 685 he had paid as much to Petitioners per pound as to anyone else on the respective days he had taken delivery. On those loads he had paid Petitioners less than some other producers whom he dealt with on those days, but contended that he had reduced the price per pound paid to Petitioners on those days on the basis of poor quality, too. Nonetheless, 607 was paid at least at one cent below the "wire price" (See Finding of Fact 14), 643 was shown bad by inspection, 644 was dumped in its entirety per the dealer's journal, and 663 and 685 were shown bad by inspection.
Upon the foregoing, it is determined that Respondent was within the parameters of his standard dealings with Petitioners where he reduced the price per pound of loads 643 and 663 on the basis of quality, just as he was within his clear unilateral authority and discretion to dump or discard whole melons from loads 628, 644, 645, and 685.
After accounting for the foregoing loads, that leaves only loads 573, 626, 627, and 646 left in issue as to poundage and only load 642, (for which Respondent paid 4 cents per pound instead of one cent below the "spread" of the "wire price" for that day) at issue as to price per pound. As to each of these loads, Respondent produced business records wherein he had made contemporaneous notations concerning the quality complaints and/or number of melons rejected by the ultimate recipients. (R-2)
Respondent did not pay Petitioners anything on load 645 because of freight deductions and Respondent also made freight deductions on some other invoices. There is no evidence in this record regarding how the parties had negotiated who would bear the ultimate cost of the freight. However, the Petitioners have not proven any entitlement to recover these charges which Respondent advanced and paid.
Likewise, Petitioners also have not set out any trail by which the undersigned can trace any mathematical errors on any loads/settlement sheets to the Respondent dealer over Petitioners.
Under the parties' standard mode of doing business, Respondent had clear unilateral authority and discretion to dump or discard whole melons for quality and pay Petitioners nothing for the whole melons dumped or discarded in loads 573, 626, 627, and 646.
Upon the foregoing, it is determined that Respondent was also within the parameters of his standard dealings with Petitioners in not paying full negotiated price per pound on load 642 where some lesser price per pound could be negotiated with the ultimate recipient as to quality.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to Section 120.57(1), F.S.
Petitioners bear the duty to go forward in this type of proceeding and have the burden of proving, by a preponderance of the evidence, that the dealer defaulted on its agreement and is indebted to the Petitioners. Petitioners did not meet that burden herein under these circumstances.
Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Agriculture enter a final order dismissing all named claims against Respondents.
RECOMMENDED this 7th day of July, 1993, at Tallahassee, Florida.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1993.
1/ Although Petitioners did not initially have an invoice number for this load, Respondent introduced Exhibit R-2 showing that this refers to invoice 628.
Randal Roberts, Sr.
Randal Roberts, Jr.
Eddie D. Griffin
Brenda Hyatt, Chief Department of Agriculture Division of Marketing, Bureau of Licensure and Bond Mayo Building
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
