STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHERRY GROVES, )

)

Petitioner, )

)

vs. ) CASE NO. 77-789A

)

GOUDA GROVES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Michael R.N. McDonnell, Hearing Officer for the Division of Administrative Hearings, at 9:00 a.m., on May 2, 1978, in Room 207, St. Lucie County Courthouse, 220 S. Indian River Drive, Ft. Pierce, Florida.

Sherry Groves, Petitioner, was represented by Louis R. McBane, Esquire and Phillip D. O'Connell, Sr., Esquire, O'Connell & Cooper, P.A., Suite 602, Flagler Center, 501 South Flagler Drive, West Palm Beach, Florida. Respondent, Gouda Groves, was represented by Raymond E. Ford, Esquire, Post Office Box 3307, Ft.

Pierce, Florida.

Petitioner, Sherry Groves, charges that Respondent, Gouda Groves, has violated Florida Statutes 601.64(2), by rejecting citrus fruit without reasonable cause it had bought from Sherry Groves and seeks to establish Gouda Groves' liability for the damages sustained in consequence of the violation.

Gouda Groves contends that it is not liable alleging that the fruit which was purchased was rendered unmarketable by virtue of pest infestation. Upon hearing the evidence in the case, it is determined that Gouda Groves is liable to Sherry Groves for the value of that fruit contracted for but rejected.

FINDINGS OF FACT

1. On October 5, 1976, Gouda Groves agreed to buy and Sherry Groves agreed to sell an estimated ten thousand (10,000) field crates of tangelos at a price of $1.50 per field crate. The contract provided inter alia:

   
   

   Buyer shall not be obligated to accept fruit rendered unmarketable by freeze, hail damage, black fly or other pest infestation. Should any portion of the fruit be deemed unmarketable as above, this agreement shall be considered null and void and all monies deposited shall be refunded to Buyer immediately.

   
   

2. Gouda Groves paid to Sherry Groves at the time of entering the contract the sum of $5,000.00 to be applied to the purchase price. The final harvesting date was contracted to be February 5, 1977.

3. Prior to entering the final contract Sherry Groves, on September 27, 1976, made an offer to Gouda Groves for the purchase of the same tangelo crop, estimating therein the number of field boxes to be 20,000. On October 5, 1976, a counter offer was made from Gouda Groves to Sherry Groves, reciting that the estimated number of field crates was $10,000.00. In the cover letter to the counter offer, Gouda Groves asked that if the contract were acceptable that it be signed and returned. On October 13, 1976, in a cover letter Mr. Sid Kline, on behalf of Sherry Groves, acknowledged that he received the contract and that it was satisfactory to him. While the contract itself recites the date of October 5, 1976, it was apparently finalized on October 13, 1976.

   
   

4. There was conflicting testimony as to the estimated number of field crates contained in the tangelo crop. The estimates range from 8,000 field rates to over 20,000 field crates. However, since the parties agreed to the estimate contained in the subject contract, it is concluded as a matter of fact that for the purpose of these findings, the number of field crates for which the parties contracted was 10,000. There was no evidence of an actual count of the fruit crop nor was there evidence which would render any estimate other than that of the contracting parties as the most accurate.

   
   

5. Gouda Groves harvested 660 field boxes of tangelos and then on about December 15, 1976, advised Sherry Groves that it would harvest no further fruit. On January 3, 1977, the parties had a meeting at which time Gouda Groves declared that they would harvest no fruit because it was not marketable. On January 14, 1977, Gouda Groves formalized its refusal to harvest further fruit in a letter to Sherry Groves.

   
   

6. Sherry Groves made an effort to sell the remaining fruit crop to other purchasers but managed to sell only 400 to 500 boxes at a loss. On January 20, 1977, there was a freeze which rendered the remaining portion of the crop virtually unmarketable.

   
   

7. At the time of Gouda Groves' refusal to conduct further harvesting, the subject fruit had not been rendered unmarketable by virtue of freeze, hail damage, black fly or other pest infestation.

   
   

   CONCLUSIONS OF LAW

   
   

8. Based upon the foregoing Findings of Fact, it is concluded as a matter of law that Gouda Groves, a licensed citrus fruit dealer, rejected without reasonable cause the citrus fruit it purchased from Sherry Groves. In consequence of the contract violation, Sherry Groves has been damaged in the amount of 9,010.00, which is computed by multiplying the 10,000 field crates contracted for, less the 660 field crates actually harvested, by the contract price of $1.50 per crate, less the $5,000.00 deposit. It is, therefore,

RECOMMENDED that the Department of Agriculture enter its final order enforcing the liability of Gouda Groves to Sherry Groves in the sum of

$9,010.00.

DONE and ENTERED this 15th day of November, 1978, in Tallahassee, Florida.

MICHAEL R. N. MCDONNELL

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Louis R. McBane, Esquire

Phillip D. O'Connell, Sr., Esquire O'Connell & Cooper, P.A.

Suite 602, Flagler Center

501 South Flagler Drive West Palm Beach, Florida

Raymond E. Ford, Esquire Post Office Box 3307

Ft. Pierce, Florida

Mr. W. F. Hasley, Chief

Bureau of Citrus License & Bond Department of Agriculture and

Consumer Services Post Office Box 1072

Winter Haven, Florida 33880

Docket for Case No: 77-000789

Orders for Case No: 77-000789