STATE OF FLORIDA
DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES
INGRAM GROVE SERVICE, INC.,
Petitioner,
vs. CASE NO. 2757.66
MARK FETZER, INC., and U.S. FIDELITY & GUARANTY COMPANY,
Respondents.
MARK FETZER, INC.,
Petitioner,
vs. CASE NO. 2767.66
On September 21, 1992, Ingram Groves Services, Inc. (Ingram Groves), a producer of citrus products filed a complaint pursuant to section 601.66 of the Code to collect $21,580 for the sale of 3,000 boxes of Valencia oranges to Mark Fetzer, Inc. (Fetzer), a licensed citrus fruit dealer. Fetzer has a bond posted with the Department, as required by the Code, in the amount of $29,000; U.S. Fidelity & Guaranty Company is the surety on the bond. On October 30, 1992, Fetzer filed a complaint against Ingram Groves for $22,082.56 representing lost profits and other charges as a result of Ingram Graves's breach of contract. Ingram Groves,
also a licensed citrus fruit dealer has a bond filed with the Department in the amount of $100,000; Liberty Mutual Insurance Co., is surety on this bond. Each party denied liability for the claim of the other. Neither surety filed a formal response.
These matters were originally set for hearing on April 5, 1994, before Hearing Officer Robert R.
Crittenden; however, no one appeared on behalf of Fetzer. The hearing proceeded in absence of Fetzer and the hearing officer entered his Recommended Order in favor of Ingram Groves. Upon receiving the Recommended Order, Fetzer filed a Motion to Set Aside Dismissal and/or Default. The matter was remanded by the Department for further hearing on the motion. On April 12, 1995, another administrative hearing was held before Arnold H. Pollock, Hearing Officer, Division of Administrative Hearings in Lakeland, Florida. Both Ingram Groves and Fetzer were present at this hearing and testimony and documentary exhibits were received into evidence on behalf of both parties. On June 1, 1995, the hearing officer rendered his Recommended Order, a copy of which is attached as Exhibit A. The hearing officer recommended that the Department enter a final order in favor of Fetzer and against Ingram Groves and its surety in the amount of
$ 19,730. Both Ingram Groves and Fetzer filed written exceptions to the Recommended Order.
Ruling on Exceptions filed by Ingram Groves
Ingram Groves contends that there was no competent substantial evidence to support the finding that Ingram Groves breached the contract with Fetzer or that any more than 3,000 boxes of oranges were ever requested to be delivered. We disagree. There was evidence that additional conditions to the delivery of oranges under the contract were imposed by Mr. Bruce B. Ingram, President of Ingram Groves. After a partial performance under the contract, Mr. Ingram learned that Fetzer was selling the fruit to Vero Beach Groves, a processor of citrus fruit, and that Vero Beach--in addition to paying for the fruit from Ingram Groves-- was paying Fetzer on a antecedent debt which Vero Beach owed Fetzer under a prior contract. When Ingram Groves learned of this, it required Fetzer to collect a similar antecedent debt owed by Vero Beach to Ingram Groves. This condition was unsupported by any new consideration. Evidence of this
additional condition was sufficient to support the conclusion that there was a breach of the contract by Ingram Groves. The testimony revealed that Vero Beach was already in financial difficulty and that Ingram Groves would not release any more fruit to Fetzer unless Vero Beach paid installments on Vero Beach's debt to Ingram Groves. This made Fetzer's request for fruit in addition to the 3,000 boxes unnecessary once Vero Beach was unable to keep up the payments on the antecedent debt.
It is well established that a hearing officer's findings of fact may not be discarded by the reviewing agency unless they are "not based on competent substantial evidence." Section 120.57(l)(b)10; Venetian Shores Home & Prop. Own. v. Ruwkawski, 336 So.2d 399 (Fla. 3d DCA 1976). Section 120.57(1)(b)10 sets the standard for review of a recommended order as follows:
The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order. The Agency may not reject or modify the findings of fact, including findings of fact that form the basis for an agency statement, unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.
When the factual issues are susceptible of ordinary methods of proof, or when concerning those facts the agency does not claim special insight or expertise, the hearing officers's findings of fact take precedence. McDonald v. Department of Banking and Finance, 346 So.2d 569, 579 (Fla. 1st DCA 1977).
As pronounced by the court in Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1282 (Fla.
1st DCA 1985):
It is the hearing officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent substantial evidence. [citation omitted] If, as is often the case, the evidence presented supports two inconsistent findings, it is the hearing officer's role to decide the issue one way or the other. The agency may not reject the hearing officer's finding unless there is no competent, substantial evidence from which the finding could reasonably be inferred. The agency is not authorized to weigh the evidence presented, judge credibility of witnesses, or otherwise interpret the evidence to fit its desired ultimate conclusion.
From a review of the testimony we cannot say that the hearing officer's findings are not supported by competent substantial evidence. The hearing officer who observed the demeanor of the witnesses and weighed the conflicting evidence, determined that the contract had been breached by Ingram Groves and that Fetzer was entitled to damages. There is evidence in the record to support these findings. 1 An agency cannot change the findings of the hearing officer if the recommended order and the findings thereunder are supported by substantial competent evidence and the proceedings did not depart from the essential requirements of law. Schumacher v. Dept. of Professional Regulation, 611 So. 2d 75 (Fla. 4th DCA 1992); Munch v. Dept. of
Professional Regulation, 592 So. 2d 1136 (Fla.1st DCA 1992); Florida Dept. of Corrections v. Bradley, 510
So.2d 1122 (Fla. 1st DCA 1987); School Bd. of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981); AFL-CIO Local 1010 v. Anderson, 401 So.2d 824 (Fla. 5th DCA 1981). The agency can, however, reject or modify a conclusion of law in the recommended order. Section 120.57(l)(b)10, Florida Statutes.
Ruling on Exceptions filed by Fetzer
Fetzer filed one exception, namely, that the hearing officer failed to award prejudgment interest. Prejudgment interest is recoverable on liquidated claims, but not where there is no determination of the exact amount due at a time certain. Parker's Mechanical Con. v. Eastpoint Water, 367 So. 2d 665 (Fla. 1st DCA 1979); Bryan and Sons Corp. v. Klefstad, 265 So. 2d 382 (Fla. 4th DCA 1972). Here the amount of damages for lost profits were by their very nature uncertain and unliquidated both as to time and amount. How much
profit was lost by Fetzer was dependent upon how much Vero Beach could have ordered and when it may have ordered it--both somewhat uncertain, at best.
Damages
The hearing officer recommended an awarded of damages to Fetzer for lost profits resulting from
1 Competent substantial evidence on which to base finding of fact "need not be enough to support the finding but there must be some competent evidence supporting or corroborating the incompetent evidence upon which a finding is bottomed. It is the evidence, not the competent evidence, that must be substantial." Florida Administrative Practice, Second Edition, Section 2.44 [citing Schwartz, Administrative Law, 340 (1976) and De Groot v. Sheffield, 95 So.2d 912 (Fla 1957)].
the collateral contract Fetzer had with Vero Beach Groves. This is supportable where, even though uncertain, there is a reasonable basis for the computation of the damages. Sampley Enterprises, Inc. v. Laurilla, 404 So. 2d 841 (Fla. 1st DCA 1981); Adams v. Dreyfus Interstate Development Corp., 352 So. 2d 76 (Fla. 4th DCA 1977). Although the Department accepts the hearing officer's findings of facts and conclusions of law in connection with the recommended award of damages for lost profits, we do not agree with the hearing officer's conclusion of law relative to the amount and items of damages recoverable.
In O.J. Investments v. George Mason Citrus, Inc., DACS 94- 0453 (Fla. Dept. of Agriculture 1994), the Department ruled on the question of whether a debt due on an antecedent contract was recoverable under the Citrus Code. We held as follows:
The relief to producers provided by the Florida Citrus Code is based upon
contracts made and entered into during a particular shipping season. A shipping season is defined by Section 601.03(23), Florida Statutes, as that period of time from August 1 of one year and ending July 31 of the following year. Section 601.61(2) provides that "[f]or purposes of this chapter, every [contract between a citrus fruit dealer and a producer] shall be conclusively deemed to have been made and entered into during the shipping season in which the delivery of fruit into the primary channel of trade is made." Fruit delivered in the primary channel of trade is defined by Section 601.03(28) to mean "when [the fruit] is sold or delivered for shipment in fresh form, or when it is received and accepted at a canning, concentrating, or processing plant for canning, concentrating, or processing."
It is apparent from the record that the contract giving rise to the
$48,190.30 claim concerned fruit entered into the primary channel of trade in the 1990-91 shipping season; therefore, the contract is conclusively deemed to have been "made and entered into" during the 1990-91 shipping season. The issue then becomes whether an obligation arising out of a contract made during a particular shipping season can be included in a citrus dealers obligation in a subsequent shipping season. It could be argued that if the old obligation is supported by new consideration in a contract made and entered into in a subsequent season, it should be included as an obligation of the new contract. Indeed, it seems to be included within the description of the citrus dealers obligations spelled out in Section 601.64, i.e., to make full payment promptly in respect to any transaction involving the sale of citrus fruit. However, the result in J.A. Stephens v. Vista Packing Company, 634 So. 2d 234 (Fla. 1st DCA 1994), indicates that a producer's claim against a dealer is limited to the shipping season in which the contract was made--when the fruit was delivered into the primary
channel of trade.
Applying the logic of the Vista case, it would seem that there is no remedy for the Petitioner for the claim arising under the 1990 contract under chapter 601 since the claim was not filed within the time allowed by law.
Thus we are compelled to deny any item of damage base upon the antecedent debt of Vero Beach to either party--eventhough it may be a legitimate item of damage in a civil action.
We further disagree with the hearing officer's mathematics. The hearing office concluded that the lost profit on the remaining 13,930 boxes of oranges was $14,950. 2 The difference between the price on the two contracts, $10.50 and $11.65 per box, is $1.15 per box. This multiplied by 13,930 is $16,019.50, not
$14,950.
Also, the hearing officer gave Fetzer credit only for 17,000 of its $20,000 deposit.3 This is not supported by competent substantial mathematics. A recapitulation of the amounts due each party is as follows:
Amount due Ingram Groves for fruit sold under contract (3,000 boxes@ $10.50/box) -
Deposit on contract paid by Fetzer-
Lost profit to Fetzer
on remaining 13,930 boxes (@ $1.15/box) -
Damages due Fetzer -
Ingram Graves Eet.zer
31,500.00
20,000.00
16,019.50
4,519 50
36,019.50 36,019.50
IT IS ORDERED AND ADJUDGED as follows:
Except as modified herein, the Department adopts the hearing officer's findings of fact contained in the Recommended Order.
2 Paragraphs 19 and 21 of the Recommended Order.
3 Paragraphs 11 and 21 of the Recommended Order.
Except as modified herein, the Department adopts the hearing officer's conclusions of law contained in the Recommended Order.
The exceptions of Ingram Groves are denied.
The exceptions of Fetzer are denied.
Ingram Groves shall pay Fetzer $ 4,519.50 within 30 days of the filing of this Final Order.
If Ingram Groves fails to timely pay such sum, the Department shall make demand for payment upon Liberty Mutual Insurance Co., the surety on bond. Proceeds therefrom shall be held for distribution pursuant to the provisions of the Code.
REVIEW
Any party to these proceedings adversely affected by this Final Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a petition or notice of appeal with the Clerk, 515 Mayo Building, Tallahassee, FL 32399-0800, and a copy of the same with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order.
DONE AND ORDERED this '3 i day of ft-uq1,1,,<:1f: , 1995.
BOB CRAWFORD
COMMISSIONER OF AGRICULTURE
Assistant Commissioner
Florida Department of Agriculture and Consumer Services
FILED with the Clerk, this day of f , 1995.
ency Clerk
fJ:VlMJdl.J\JJ d_
Copies furnished to:
Douglas A. Lockwood, III, Esq. Peterson, Myers, Craig, Crews, Brandon & Puterbaugh, P.A.
Attorney for Ingram Groves
P.O. Drawer 7608
Lake Region Plaza, Suite 300 141 5th Street, N.W.
Winter Haven, Florida 33883-7608
C. Kenyon Hendrix, Esq. Hendrix & Brennan Attorney for Fetzer
P.O. Box 520
Vero Beach, Florida 32961
Mr. Ralph Barns Liberty Mutual
P.O. Box 31782 Tampa, Florida 33631
Mr. Jim Thompson
U.S. Fidelity Guaranty
% Buckingham-Wheeler Agency
P.O. Box 220
Vero Beach, Florida 32961
Arnold H. Pollock, Esq. Hearing Officer
Division of Administrative Hearings 1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Brenda Hyatt, Chief
Bureau of License and Bond
Department of Agriculture and Consumer Services
Black Building lfl
545 East Tennessee Street Tallahassee, Florida 32308
Pat Montano Department of Citrus
P.O. Box 148
Lakeland, Florida 33802
STATE OF FLORIDA
r IElffl'El)SF!LEO.VlllfTT'=iHAVEtl.Fl
l)oc!IDIN!l-...---- :-i C :i:
BY-------
DIVISION OF ADMINISTRATIVE HEARINGS
INGRAM GROVE SERVICE, INC., )
)
Petitioner, )
)
5 1995
vs. )
)
MARK FETZER, INC., and U.S. ) FIDELITY & GUARANTY COMPANY, )
)
Respondents. )
)
MARK FETZER, INC., )
)
Petitioner, )
)
vs. )
)
INGRAM GROVE SERVICE, INC., and ) LIBERTY MUTUAL INSURANCE CO., )
)
Respondents. )
)
CASE NO. 94-5402AC
CASE NO. 94-5403AC
RECOMMENDED ORDER
A hearing was held in this case in Lakeland, Florida on April l2, l995, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.
APPEARANCES
For Ingram:
For Fetzer:
Douglas A. Lockwood, III, Esquire Peterson, Myers, Craig, Crews,
Brandon & Puterbaugh P.A.
l4l 5th Street, N.W., Suite 300
P.O. Box 7608
Winter Haven, Florida 33883
C. Kennon Hendrix, Esquire Hendrix & Brennan, P.A. 2043 Fourteenth Avenue Post Office Box 520
Vero Beach, Florida 32961-0520
Exhibit A
For the Department: Chester C. Payne
Financial Examiner Analyst Office of Citrus Bond and
License
Division of Marketing Development Department of Agriculture
Post Office Box 1072
500 Third Street Northwest Winter Haven, Florida 33882-1072
STATEMENT OF THE ISSUES
The issue for consideration in these hearing is which of the parties is indebted to the other, and if so, in what amount, arising out of the sale of citrus fruit by Ingram to Fetzer, according to the terms of a contract between the parties, dated January 14, 1992.
PRELIMINARY MATTERS
By Petition dated September 21, 1992, filed with the Department of Agriculture, Ingram Grove Service alleged Mark Fetzer, Inc. was indebted to it in the amount of $21,580.00. Approximately one month later, on October 30, 1992, Mark Fetzer, Inc. filed a Petition against Ingram Grove Service, Inc., claiming that Ingram was indebted to it in the amount of
$22,082.56. The matter was referred to a Hearing Officer of the Department of Agriculture and Consumer Services who heard the matter on April 5, 1994. Neither Fetzer nor its attorney was present for the hearing. Thereafter, on May 24, 1994, after receiving a Proposed Recommendation from Ingram, the Hearing Officer issued a Recommended Order which found for Ingram in the amount of $18,200.00 together which prejudgment interest.
On June 1, 1994, counsel for Fetzer requested a rehearing of the evidence based on the fact that no notice of the
aforementioned hearing had been provided it. The matter was thereafter referred to the Division of Administrative Hearings for appointment of a Hearing Officer. The formal hearing requested by Fetzer and referred by the Assistant Commissioner, Department of Agriculture and Consumer Services, was set for hearing before Hearing Officer Richard Hixon on February 13, 1995, and was held as scheduled before the undersigned, to whom the case was assigned in the interim.
At the hearing, both Mr. Ingram and Mr. Fetzer testified in their respective behalves. Fetzer introduced Fetzer Exhibits A and B. Counsel for Ingram requested additional time to submit matters related to Fetzer exhibit A.. The parties agreed that counsel's submittal, and the response thereto by Fetzer, would be submitted to the Hearing Officer by April 22, 1992. Since no transcript was to be provided, it was agreed that the parties would have 15 days thereafter, until May 7, 1995, to submit Proposed Recommended Orders and the undersigned's Recommended Order would thereafter be due on May 22, 1995. Both parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.
FINDINGS OF FACT
l. At all times pertinent to the issues herein, Ingram Grove Services, Inc., (Ingram), was a commercial grower of citrus fruit and a licensed citrus fruit dealer in Florida. Mark Fetzer, Inc. (Fetzer), was also a grower and a licensed citrus fruit dealer in Florida.
U.S. Fidelity & Guaranty Company was an insurance company authorized to write surety bonds in this state during the
1991-1992 citrus shipping season and was the underwriter of Fetzer's bond for the transaction in issue herein. Liberty Mutual Insurance Company was an insurance company authorized to write surety bonds in this state during the 1991-1992 citrus shipping season and was the underwriter of Ingram's bond for the transaction herein.
By contract number 518, dated January 14, 1992, and drafted on the letterhead of Mark Fetzer, Inc., Ingram, the grower, sold and conveyed to Fetzer, the buyer, approximately 20,000 boxes of valencia oranges at a price of $10.50 per box, with a moving date of April 30, 1992. This description was intended to cover all valencia oranges grown by Ingram and contained in Suncrest #11 field in Sebring, Florida and included transportation to Polk County. Ingram was authorized to, and did, request a deposit of $1.00 per box, and by check dated April 27, 1992, Fetzer paid Ingram the sum of $20,000. The oranges were to be delivered by Ingram to the Commercial Carriers Cold Storage, (CCCS), facility in Auburndale, Florida. The entire crop of fruit covered by this contract was to be paid for within
30 days of delivery to CCCS. The contract did not prohibit Fetzer from re-selling the fruit covered thereby.
Ingram and Fetzer had done business together for several years, since 1985. In every case, each had paid what was owed to the other, but it is admitted that on occasion, such payment was delayed for a short time. Neither had ever failed to ultimately pay what was owed the other, however.
Sometime after delivery of the fruit to CCCS by Ingram, Fetzer sold 3,000 of the boxes to Vero Beach Groves, Inc., (VB),
a producer of commercial orange juice for commercial sales. At that time, and at all times pertinent to the issues herein, VB was having financial difficulties. Evidence of record indicates that at the time, VB owed approximately $32,000 to Fetzer, somewhat more than $60,000 to Ingram, and over $600,000 to Florida Growers, another entity not pertinent to the issues herein. The terms of Fetzer's sale to VB called for a payment of
$13.65 per box. This included $11.65 per box for the oranges then delivered, including 15¢ brokerage, and $2.00 per box to satisfy VB's antecedent debt to Fetzer. If all the Ingram fruit were resold by Fetzer to VB, this procedure would have paid off VB's debt to Fetzer before all the Ingram fruit was pulled out of storage. When the antecedent debt was liquidated, the price per box would have been reduced to $11.65. Fetzer had not allowed VB's debt to it to grow very large, and the above practice, which had been followed for several years, had to this point, been successful.
There was no dispute under the terms of the contract between Ingram and Fetzer until sometime in mid-May, 1992 when, prior to the delivery of any fruit, Mr. Ingram called Mr. Fetzer and asked for a meeting. At that meeting, Mr. Ingram told Mr. Fetzer that unless an agreement was made to get him, Ingram, a debt reduction procedure similar to Fetzer's, he would not make available to Fetzer the fruit called for under the contract.
Mr. Ingram indicated at the hearing that when he heard Fetzer had contracted with VB, in light of VB's tenuous financial condition, he was concerned about being able to get paid and this
caused him to seek the meeting with Fetzer. However, he did not communicate this to Fetzer nor did he ask Fetzer for payment in advance or some security for the obligation. In fact, according to Fetzer, he had the money available, in cash, to pay the entire amount owed Ingram if necessary. In addition, Fetzer told Ingram that even if VB could not take the fruit, there were at least 3 -
5 other ''juicers" to whom he could sell the fruit and pay Ingram. In point of fact, the fruit was subsequently sold, by Ingram, to other juice processors at a per box price which varied from
$12.50 to $13.35. Nonetheless, Fetzer tried to work the situation out for all concerned with no consideration given him for any purported change to the contract.
Faced with the potential for not being able to get the fruit for sale to VB, the contract with whom was worth in excess of $200,000 to him, Fetzer met with a representative of VB and reached an agreement with it whereby VB would pay an additional
$3.35 over the $13.65 so that Ingram could be paid. At this meeting he was told by Mr. Kordick, VB's vice president, that VB would work something out with Ingram for the remaining fruit.
Thereafter, VB agreed with Ingram to make additional payments to Ingram. It appears, however, that this agreement to pay the extra on Ingram's antecedent debt was more acquiescence to coercion than voluntary agreement. Fetzer then released the first shipment of oranges to VB. VB paid for the shipment of oranges when it came in.It also issued four checks in the amount of $1,680.00 each fdor payment on VB's antecedent debt to Ingram which were made payable to Ingram or Fetzer. These four checks
were cashed by Fetzer and were dishonored. They were ultimately redeemed by VB after several weeks, but none of the funds were transmitted by Fetzer to Ingram. Fetzer kept them as compensation for the amount of profit he lost because of Ingram's refusal to release any more oranges after the first shipment. In addition, Fetzer did not pay Ingram for the first 3,000 box shipment.
After the first shipment was delivered to VB, Mr. Fetzer was contacted by VB's representative, Mr. Kordick, who advised VB could not pay the amount asked for the fruit which included the "surcharge" to reimburse Ingram because the processed juice would not bring enough to cover it. Admittedly, Mr. Fetzer did not ask Mr. Ingram to rescind the requirement for the "surcharge" payment. Had he done so and had Ingram agreed, it is most likely that VB could have purchased all the oranges from the entire contract and paid for it. All Fetzer did was tell Ingram he should not place the extra burden on VB, and as it was, VB went out of business.
Mr. Fetzer knew of the arrangements for the "surcharge" that Ingram wanted before the delivery of the one shipment to VB and requested that shipment knowing what was required. He decided to go along with Ingram to see what would happen even though he felt by then that Ingram had breached the contract. However, he did not put this in writing to Ingram. He felt he had no choice due to Mr. Ingram's representation to him at their May meeting that it would be Ingram's way or not at all. Fetzer went along with it because he saw it as the only way to potentially get the money owed him by VB.
Considering the net amount paid by Fetzer as deposit, ($20,000 - $3,000 = $17,000); the amount of antecedent debt unrecoverable due to Ingram's actions, ($26,000) and the anticipated profit lost of the remaining boxes un-delivered by Ingram, ($14,950), Ingram owes Fetzer a gross total of $57,590. From this must be deducted the $6,720 which Fetzer collected from VB on Ingram's behalf but which was not delivered to Ingram, and the $31,500 unpaid for the 3,000 boxes delivered, leaving Ingram's net obligation to Fetzer as $19,730.
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
Under the provisions of Section 601.61, Florida Statutes, a licensed fruit dealer in this state is required to post a cash bond, certificate of deposit or a surety bond executed by the dealer and by a surety company qualified to do business in this state in an amount as specified in the statute. Both dealers in this case submitted the required surety bond issued by qualified surety companies; U.S. Fidelity & Guaranty Company, Inc. for Fetzer, and Liberty Mutual Insurance Company for Ingram.
Both principals in this matter were obliged to comply with the terms and provisions of the Citrus Code. Unlawful acts by citrus fruit dealers are outlined in Sections 601.64, Florida Statutes. As pertinent here they include:
(2) ... to reject or fail to deliver in accordance with the terms of the contract
without reasonable cause any citrus fruit bought, sold, or contracted to be bought or sold by such citrus fruit dealer;
Section 601.66, Florida Statutes, prescribes the procedure for the filing of complaints before the Department of Agriculture and Consumer Services for alleged violations of the
provisions of the Citrus Code by a licensed citrus dealer. procedures were followed here by both principals.
The evidence in this matter indicates there was a
Those
contract for the sale of fruit from Ingram to Fetzer at a price agreed upon by the parties. This contract had no restrictions in it as to whom Fetzer could sell the fruit. Consequently, the sale by Ingram to Fetzer was properly in process when Fetzer drew the first shipment from the warehouse to deliver to VB. Ingram's demand that Fetzer make a separate ageement to recoup VB's debt to Ingram was not a part of the original fruit contract between them and was not legally enforceable. Ingram's claim that his demand was to secure the payment for the fruit by Fetzer is ingenuous and unworthy of belief. The long-standing history of successful sales between the parties and Fetzer's unsullied record of full payment belies that claim.
What appears evident is that Ingram saw a way to pressure Fetzer into recouping for Ingram VB's debt to Ingram without any consideration being given for the change in the terms of the contract between Ingram and Fetzer. The threat to cancel the sale to Fetzer if Fetzer did not agree to collect a surcharge for Ingram from VB does not qualify as such. There was no legitimate modification of the contract between Ingram and
9
Fetzer. In fact, Ingram breached its contract with Fetzer and is, therefore, in violation of Section 601.64(2), Florida Statutes.
Section 601.65, Florida Statutes, provides:
If any licensed citrus dealer violates any provision of this chapter, such dealer shall be liable to the person allegedly injured thereby for the full amount of damages sustained in consequence of such violation.
The question, then, is what is the proper amount of damages owed to Fetzer as a result of Ingram's breach of contract. The evidence is clear that though VB's financial
..
status was shaky, it could have continued to buy the oranges fro
Fetzer and most likely would have honored the agreement in full. Fetzer would have sold VB 16,930 boxes at $11.65 per box for a total price of $197,234.50. He would have paid Ingram for that number of boxes at $10.50 per box for a total of $177,765.
Fetzer's gross profit, therefore, would have been $19,469.50. In addition, however, Fetzer's agreement with VB called for an additional payment of $2.00 per box until the antecedent debt of
$32,000 was liquidated. As it was, Fetzer sold 3,000 boxes of oranges to VB for $13.65, which included $11.65 for the oranges and $2.00 per box for the antecedent debt VB owed him. The total sales price was $40,950, which included a payoff of $6,000 on the antecedent debt. His profit on the sale of the 3,000 boxes, then, was $3,450, the difference on 3,000 boxes between the purchase price of $10.50 and the orange sale price of $11.65 per box. The additional $2.00 per box to make $13.65 went to pay off the antecedent debt.
At this point, then, VB's debt to Fetzer was reduced from $32,000 to $26,000 which would have been recouped after the sale of 13,000 more boxes of fruit. Since 13,930 boxes of fruit remained in CCCS, Fetzer would have made a profit of $14,950 at a price of 11.65 per box on those boxes in addition to the $3,450 on the first 3,000 boxed for a total profit of $18,400.
It can be seen, then, that as a result of Ingram's refusal to honor his contract with Fetzer, Fetzer failed to make the anticipated profit of $14,950 on the remaining fruit. He also failed to recoup the remaining $26,000 of the antecedent debt owed him by VB, and he was still short $17,000 on the
$20,000 deposit he had paid Ingram which was to be deducted at
$1.00 per box on the boxes delivered. Together, Fetzer's loss amounts to $57,950. From this must be deducted the $6,720 retained by Fetzer from the amount collected on VB's antecedent debt to Ingram and the $31,500 due Ingram on the 3,000 boxes delivered, for a total of $38,220. Consequently, the net amount due Fetzer is $19,730.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that A Final Order be issued by the Commissioner of Agriculture awarding the sum of $19730 to Mark Fetzer, Inc.
RECOMMENDED this
Florida.
day of June, 1995, in Tallahassee,
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings
this /_s,,1.:- day of June, 1995.
APPENDIX TO RECOMMENDED ORDER
IN CASES NO. 95-5402AC and 95-5403AC
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
1. & 2.
3.
4.
5.
6.
7. - 9.
10. & 11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
Accepted and incorporated herein. Accepted and incorporated herein.
Not a Finding of Fact but a statement of the law. Not a Finding of Fact but a Conclusion of Law.
Accepted as a restatement of the case history. Accepted and incorporated herein.
Accepted and incorporated herein.
Accepted and incorporated herein except that the debt of VB to Ingram was approximately $60,000.
Accepted that no tripartite agreement was reached. Accepted.
Accepted and incorporated herein. Not a Finding of Fact.
Accepted.
Not a Finding of fact but a restatement of testimony. Accepted and incorporated herein.
Accepted.
Accepted that Ingram resold to others the fruit not released to Fetzer.
Not a Finding of Fact but a statement of law. Accepted and incorporated herein with amount stated. Accepted and incorporated herein.
& 2. Accepted and incorporated herein.
Accepted.
Accepted and incorporated herein.
First sentence rejected in so far as it indicates a tri-party agreement. VB's participation was more a matter of acquiescence than agreement. Second sentence accepted and incorporated herein.
First sentence rejected. Fetzer did not decline to take fruit as called for in the original contract. Second sentence accepted as it notes the sale to third parties but not "as a result" of Fetzer's failure to take the fruit.
Not a Finding of Fact but a Conclusion of law.
Rejected as contra to the weight of the evidence.
Rejected.
Not a proper Finding of Fact but more a comment on the state of the evidence.
Douglas A. Lockwood, III, Esquire Peterson, Myers, Craig, Crews,
Brandon & Puterbaugh, P.A.
P.O. Drawer 7608
Lake Region Plaza, Suite 300
141 5th Street, N.W.
Winter Haven, Florida 33883-7608
C. Kennon Hendrix, Esquire Hendrix & Brennan
P.O. Box 520- 2043 14th Avenue
Vero Beach, Florida 32961-0520
Chester C. Payne Financial Examiner Analyst
Office of Citrus Bond and License Division of Marketing Development Department of Agriculture
P.O. Box 1072
500 Third Street, N.W.
Winter Haven, Florida 33882-1072
Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10
Tallahassee, Florida 32399-0810
Richard Tritschler General Counsel Department of Agriculture The Capitol, PL-10
Tallahassee, Florida 32399-0810
Brenda Hyatt, Chief
Bureau of Licensing and Bond Department of Agriculture
508 Mayo Building
Tallahassee, Florida 32399-0800
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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.
nv, -/
| Issue Date | Proceedings |
|---|---|
| Jun. 01, 2009 | Final Order filed. |
| Sep. 22, 1995 | (Petitioner) Order Denying Motion for Rehearing filed. |
| Sep. 18, 1995 | Motion for Rehearing or Exceptions to Final Order; & Cover Letter from T. Hartman filed. |
| Sep. 01, 1995 | Final Order filed. |
| Jul. 03, 1995 | Transcript of Proceedings filed. |
| Jul. 03, 1995 | (Petitioner) Notice of Filing; Petitioner`s, Ingram Grove Service, Inc., Exceptions to Recommended Order filed. |
| Jun. 15, 1995 | (Petitioner) Motion for Additional 15 Days Within Which to File Exceptions to Recommended Order filed. |
| Jun. 13, 1995 | (Mark Fetzer) Exception to Recommended Order filed. |
| Jun. 09, 1995 | (C. Kennon Hendrix) Exceptions to Recommended Order filed. |
| Jun. 01, 1995 | Recommended Order sent out. CASE CLOSED. Hearing held 4/12/95. |
| May 11, 1995 | Proposed Recommended Order (from D. Lockwood,III for Hearing Officer signature) w/cover letter filed. |
| May 08, 1995 | (C. Kennon Hendrix) Proposed Findings of Fact and Conclusions of Law (for Hearing Officer Signature) filed. |
| Apr. 12, 1995 | CASE STATUS: Hearing Held. |
| Feb. 13, 1995 | Confirmation letter to Court Reporter from Hearing Officer`s secretary re: hearingdate sent out. (Court Reporter: Susan Slattery, Associated Court Reporters) |
| Feb. 13, 1995 | Notice of Hearing sent out. (hearing set for 4/12/95; 9:30am; Lakeland) |
| Jan. 25, 1995 | Letter to RAH from C.K. Hendrix (RE: available dates for hearing) filed. |
| Jan. 03, 1995 | Letter to WFQ from K. Hendrix (RE: available dates for hearing) filed. |
| Dec. 13, 1994 | (Petitioner) Motion for Continuance filed. |
| Dec. 13, 1994 | Order Granting Continuance sent out. (hearing date to be rescheduled at a later date; parties to file status report by 12/30/95) |
| Dec. 09, 1994 | (C. Hendrix) Pre-Hearing Stipulation; Defendant`s Witness List; Schedule Defendant`s Exhibit List and Plaintiff`s Objections Index To Objections filed. |
| Dec. 05, 1994 | Notice of Filing (deposition of Mark Fetzer) filed. |
| Nov. 10, 1994 | Letter to Court Reporter from Secretary (hearing set for 12/16/94; 10:00am; Winter Haven) filed. |
| Oct. 14, 1994 | Order of Consolidation and Notice of Hearing sent out. (Consolidated cases are: 94-5402AC & 94-5403AC. (Hearing Date 12/16/94;10:00AM;Winter Haven) |
| Sep. 30, 1994 | Initial Order sent out. (for D. Lockwood only) |
| Sep. 29, 1994 | Initial Order issued. |
| Sep. 26, 1994 | Deposition of Robert Kordick; Supportive Letters filed. |
| Sep. 26, 1994 | Notice of Propounding Interrogatories Upon Ingram Grove Service, Inc.; Interrogatories Served on Ingram Grove Service, Inc.; Initial Order;Answer of Respondent; Deposition of Jim Breadwell filed. |
| Sep. 26, 1994 | (Fetzer) Notice of Taking Deposition Duces Tecum; Certificate of Service of Plaintiff`s Answers to Interrogatory Propounded by Defendant; Response of Ingram Grove Service, Inc. to Request to Produce; (Ingram) Notice of Appearance; (Fetzer) Motion to Compe |
| Sep. 26, 1994 | (2) Subpoena Duces Tecum for Deposition; (Ingram) Response to Pretrial Order; Pretrial Order; (Ingram) Response to Request to Produce; (Fetzer) Request to Produce; Supplemental Response to Request to Produce; Order Requiring Filing of Status Report; (Fetz |
| Sep. 26, 1994 | Notice of Filing; Request for Hearing; (Citrus) Recommended Order; Memorandum of Claimant, Ingram Grove Service, Inc.; CC: Transcript of Hearing for 4/5/94; Notice of Propounding Interrogatories Upon Ingram Grove Service, Inc.; Request to Produce; (Citrus |
| Sep. 26, 1994 | Agency referral letter; Order of Remand; Exceptions to Recommended Order; Affidavit of Charles Kennon Hendrix; Notice of Pretrial Conference and Final Hearing; Affidavit of Mark Fetzer; Affidavit of Melissa A.Thorpe; Notice of Re- Certification of Service |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 31, 1995 | Agency Final Order | |
| Aug. 31, 1995 | Agency Final Order | |
| Jun. 01, 1995 | Recommended Order | Grower is in debted to purchaser of oranges for breach of contract by failing to deliver. |
