STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOE A. POTTS, on behalf of )

COUNTY LINE GROVES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 77-1385T

) SOUTHERN CITRUS CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard on November 23 1977, in the law offices of Lewis H. Hill, III, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This case arose upon the complaint of Joe Potts, on behalf of County Line Groves (CLG), against Southern Citrus Corporation (Southern), that Southern had failed to perform under the terms of its contract with Potts as agent for CLG, and as a result of this breach, that CLG had suffered a financial loss. This breach would constitute a violation of Section 601.64 and thereby a violation of Section 601.66.

In summary, CLG presented its contract with Southern and evidence that Southern had not picked and marketed the fruit in accordance with the terms of the contract; that because of this failure, the fruit was exposed to a freeze on January 19, 20 and 21, 1976; that after this freeze, Southern did not pick the fruit in accordance with the contract or give notice of its intent not to pick the fruit as required by the contract; and that because of the breach of the contract by Southern, CLG had suffered a substantial economic loss.

Southern presented evidence that CLG had not suffered a substantial economic loss; and argued that the terms of the contract did not obligate Southern to pick the fresh fruit by January 15, 1976, as alleged by CLG.

ISSUES PRESENTED

Whether Southern violated the terms of the contract, whether the breach caused any damage to CLG; and if so, what the amount of the damages were.

APPEARANCES

For Petitioner: Joe A. Potts

County Line Groves 7203 Florida Avenue

Tampa, Florida 33604

As officer and Trustee of CLG

For Respondent: Lewis H. Hill, Esquire

2720 First Florida Tower Tampa, Florida 33602

FINDINGS OF FACT

1. Southern is a licensed citrus fruit dealer.

   
   

2. CLG is the corporate owner of a citrus grove located generally south of Highway 54, east of Livingston Avenue, and west of Cyprus Creek. This grove contains citrus fruit to include Robinson tangerines, Dancy tangerines, Murcott tangerines, Hamlin oranges, Navel oranges, and Pineapple oranges, together with some seedling orange trees.

   
   

3. Southern and CLG entered into a contract (Exhibit 1) for the picking, hauling and marketing of the citrus fruit. Pursuant to the terms of this contract, Southern purchased the entire citrus crop in the grove. CLG alleges breach of that contract and filed a timely complaint with the Department pursuant to Section 601.66, Florida Statutes.

   
   

4. Under the provisions of this contract, Robinson tangerines were picked on October 27, 28 and 29, 1976. Navel oranges were picked on December 5 and 6, 1976. Both the Robinson tangerines and Navel oranges were marketed as fresh fruit. Picking of the orange crop for the juice market commenced on January 17, 1977. Oranges for this market were picked on January 17, 19, 21, 22 and 23. Picking of the orange crop for the juice market recommenced on February 21 and contained on February 22, 23, 24, 25 and March 3, 1977. In addition, Navel oranges were picked for the juice market on January 28, 29 and February 1, 1977.

   
   

5. The contract between CLG and Southern provides for the sale of all citrus in the grove described above by CLG to Southern. The price to be paid was set forth as follows:

   
   

   ORANGES APPROX. BOXES PRICE PER 90 LB. WEIGHT BOX

   
   

   Early & Midseason 8,000 1/ 35 /# of Solids +

   (100 percent) Rise in Market When Picked Less 60

   + Picking Per Box

   
   

   Valencia 8,000

   
   

   GRAPEFRUIT APPROX. BOXES PRICE PER 85 LB.

   WEIGHT BOX

   
   

   M.S. or Duncan Fresh Fruit-Robins Tang; Dancey Tang;

   Navels; Murcotts; Tangelos-ETC,

   
   

   Red or Pink Market Price When Picked Other

6. The provisions regarding the time of performance of the contract are as follows:

   
   

   All fruit contracted to be purchased shall be picked as and when buyer is ready, the picking to be completed on or before E & M - Jan. 15 Val. - May 30, 1977, 1/ provided the Buyer shall not be hampered or prevented from picking or shipping the same within said period by Act of God, strikes, railroad or other embargoes, quarantine or any other

   condition, manner or thing, beyond its control, in which case the time for gathering and shipping said fruit shall be extended a length of time equal to the period of hampering or prevention caused as aforesaid. 1/

   
   

   Although Southern had been urged by Potts to commence picking in the grove, Southern delayed picking all the fruit until after January 15, 1977.

   
   

7. A severe freeze occurred on January 19, 20, and 21, 1977. As a result of this freeze, an embargo was established on the shipment of fresh fruit from Florida.

   
   

8. Subsequent to the freeze, Southern re-entered the grove and picked some fruit as noted above, but thereafter discontinued picking. Southern did not notify CLG of its intention to abandon the contract until after May 10, 1977. The date of last activity by Southern, March 3, 1977, when 40 boxes of oranges were picked.

   
   

9. Southern does not controvert nor raise any defense to the allegation that it failed to pick early and midseason juice oranges by January 15, 1977, as required by the contract. Southern does controvert the quantity of juice oranges lost and thereby the amount of money damages CLG alleges to have suffered as a result of Southern's failure to pick the juice oranges by January 15, 1977.

   
   

10. Various estimates concerning the quantity of juice oranges within the grove were presented. The Hearing Officer finds that there were 2,536 Hamlin orange trees, 366 seedling orange trees, 561 Pineapple orange trees within the grove. (See Exhibit 8) The Hearing Officer further finds that there were 4.5 boxes of oranges on each tree, except seedling trees, the fruit from which is not included in these computations. The Hearing Officer finds that there were 1,080 Naval orange trees within the grove bearing 4.5 boxes per tree. The total orange crop by variety within the grove was 11,412 boxes of Hamlin oranges, 2,524 boxes of Pineapple oranges, and 4,860 boxes of Navel oranges. There were a total of 5,899 boxes of Hamlin oranges picked, and a total of 1,381 Navel oranges picked (1,041 boxes as juice oranges and 840 boxes as fresh fruit) . The portion of the orange crop not picked by variety was 5,513 boxes Hamlin oranges, 2,524 boxes Pineapple oranges, and 2,979 boxes of Navel oranges. The total number of boxes not picked and lost excluding the Navel oranges is 8,037 boxes. The weighted average of pound solid from the fruit picked before and immediately after the freeze is 4.9 pound solid per box. At 35 per pound solid, $13,783.46 would have been the gross proceeds from the sale of the fruit, Less $1.25 per box for pick and haul ($10,046.25) the net loss to CLG was

    $3,737.21 on the round orange crop excluding the Navel oranges. The Navel oranges were designated a portion of the fresh fruit crop. The fresh fruit

    price of Navels was $1.50 per box. The loss of the Navel orange crop box at that price was $4,468.50. The total loss to the orange crop was $8,205.71.

    
    

11. There were 1,027 Robinson tangerine trees, 1,302 Dancy tangerine trees, and 1,400 Murcott tangerine trees in the grove. Again, varying estimates of the quantity of tangerines within the grove were presented. The Hearing Officer finds that there were 4.5 boxes of tangerines on the Dancy tangerine trees and 4 boxes on the Robinson and Murcott trees. The total number of boxes of tangerines in the grove by variety were 5,859 boxes of Dancy tangerines, 4,108 boxes of Robinson tangerines, and 5,600 boxes of Murcott tangerines. The record reveals that 1,077 boxes of Robinson tangerines were picked. The record also reveals that there was no market existing for Murcott tangerines. The total number of boxes of tangerines for which a market existed and which were not picked were, by variety, 5,859 boxes of Dancy tangerines, and 3,031 boxes of Robinson tangerines. The Dancy tangerines matured around Christmas time but Southern elected to delay picking them. The weighted average price per box of tangerines based on those Robinson tangerines which were sold was $2.42 per box. The total cash value of the tangerine crop for which there was a market and were not was $21,513.80. The total damages suffered by CLG as the result of Southern's failure to pick the fruit by January 15, 1977, as provided in the contract, was $29,719.51.

    
    

    CONCLUSIONS OF LAW

    
    

12. This case arose upon the complaint of County Line Groves that Southern Citrus had breached contract with CLG for the picking and marketing of citrus fruit, that CLG had suffered financial damage as a result of that breach and that CLG sought to recover the amount of these damages from Southern.

    
    

13. The facts plainly show that a contract was entered into under which Southern purchased the entire citrus crop of the County Line Grove. There was partial performance on this contract. The facts show that Southern failed to pick all of the Hamlin and other early and midseason oranges by January 15 as required by the contract. The facts show that only a portion of the Robinson tangerine crop was harvested prior to January 15. The facts also show that Southern failed to pick any of the Dancy tangerine crop although that crop matured around Christmas, 1976, and a market existed for Dancy tangerines. Southern also failed to pick all of the Navel orange crop, although a portion of the Navel oranges was picked as fresh fruit prior to January 15 and another lot was picked after the freeze for the juice market. The facts are very clear that Southern failed to pick all of the fruit prior to January 15 and thereafter failed to pick the fruit immediately after the freeze. The failure by Southern to honor the contract without cause would be a violation of Section 601.64(2), Florida Statutes.

    
    

14. Southern argues that there was no date in the contract for picking the fresh fruit, therefore it cannot be held liable for failing to pick the fresh fruit prior to January 15, and therefore, prior to the freeze. Southern further argues that after the freeze, no market existed for this fruit. Southern also controverts the extent of damages alleged by CLG asserting that the orange crop contains no more than 8,000 boxes of oranges.

    
    

15. The question of the damages is one of fact, about which findings have been made as outlined above.

    
    

16. The only date stated in the contract, other than for the Valencia oranges, was the date by which "E & M" would be picked and that date was January

    15, 1977. Southern argues that "E & M" is limited to round oranges and does not include fresh fruit. Southern refers to the portion of the contract setting out the price of the fruit in which separate entries were made for early and midseason oranges and for fresh fruit. It is true that the contract addresses under the price provisions three types of fruit; Valencias, E & M, and Fresh Fruit. with regard to the time of performance, dates by which performance was to be rendered were provided only for Valencia oranges and E & M. The record clearly indicates that all of the fresh fruit consists or varieties which reach maturity in early and midseason. The record is very clear that the means of marketing and pricing fresh fruit and juice fruit vary.

    
    

17. The contract between CLG and Southern had to state a time of performance for the picking of the fresh fruit because a promise to do something whenever the promisor pleases is illusory. See 17 Am Jur2d Contracts, Section 79, Note 7. The only time stated in the contract applicable to the fresh fruit is under the provision relating to early and midseason fruit. Under the price provisions of the contract, there was the necessity to specify different terms for the price of fresh fruit as opposed to juice fruit. However, there was no need to separate fresh fruit from other early and midseason varieties with regard to the time of performance. It should be noted that "E & M" appears under the column "ORANGES" within the pricing provisions, and that the pricing provisions for fresh fruit includes both tangerines and Navel oranges. Therefore, "E & M" under the pricing provisions is limited to early and midseason oranges, excluding Navel oranges which were specifically excluded from "E & M" by inclusion with tangerines in the price provisions for fresh fruit. Under the provision relating to time of performance, there are no exclusions from "E & M" and the term as used refers to all early and midseason varieties of citrus fruit to include Navel oranges and tangerines. Therefore, under the terms of the contract, Southern should have picked all of the early and midseason varieties of cirrus prior to January 14, 1977. Respondent violated Section 601.64, Florida Statutes. The Petitioner is entitled to relief under Section 601.66, Florida Statutes.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, the Hearing Officer recommends that Southern Citrus Corporation be required to pay County Line Groves the amount of $29,719.51 within 90 days together with interest from the date of this order at 5 percent per annum.

DONE and ORDERED this 27th day of March, 1978, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

ENDNOTE

1/ All of the underlined portion was hand written on the pre-printed form contract.

COPIES FURNISHED:

Joe A. Potts County Line Groves

7203 Florida Avenue

Tampa, Florida 33604

Lewis H. Hill, Esquire. 2720 First Florida Tower Tampa, Florida 33602

================================================================= AGENCY FINAL ORDER

=================================================================

BEFORE THE COMMISSIONER OF AGRICULTURE OF THE STATE OF FLORIDA

IN RE: The Complaint of COUNTY LINE GROVES, INC.,

Complainant,

CASE NO. 1723.66

vs. DOAH CASE NO. 77-1385T

SOUTHERN CITRUS CORPORATION,

Respondent.

/

FINAL AGENCY ORDER

This cause was initiated by the filing of a Complaint on May 12, 1977, before the Department of Agriculture by Joe A. Potts of County Line Groves (CLG) against Southern Citrus Corporation, a licensed citrus fruit dealer during the 1976-1977 citrus shipping season. The Complaint claimed damages of "over

$35,000.00" by virtue of Southern's alleged failure to harvest CLG's oranges and tangerines pursuant to on October 1976, contract between the parties.

On July 14, 1977, CLG requested that the controversy be heard by the Division of Administrative Hearings, Department of Administration, pursuant to the provisions of Section 120.57, Florida Statutes.

On November 23, 1977, a hearing was held in Tampa, Florida, before Mr.

Stephen F. Dean, Hearing Officer assigned to hear the case by the Division of Administrative Hearings. Present at the hearing were Joe A. Potts, on behalf of CLG, and Mr. Louis H. Hill, III, Southern's counsel. Witnesses were called, testimony taken, and evidence received by the Hearing Officer.

On March 27, 1978, the Hearing Officer entered his Recommended Order as the result of the hearing, together with a Statement of Consideration of Proposed Findings and Fact.

On May 30, 1978, Southern's counsel filed written Exception to the Hearing Officer's Recommended Order.

The matter is now ripe for the entry of a Final Agency Order, pursuant to the provision of Section 120.57(1)(b)10, which provides as follows:

"10. The agency may adopt the recommended order as the agency's final order. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order, but may not reject or modify the findings of fact 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.

The agency may accept or reduce the recommended penalty in a recommended order, but may not increase it without a review of the complete record. In the event a court, in reversing an agency's order, finds that such agency action was done in bad faith, or maliciously, the court may award attorney's fees and costs to the aggrieved prevailing party."

The mandate of the above quoted section is explicit: this agency ". . .may not reject or modify the findings of fact 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. . ."

The complete record of proceedings have been reviewed by this agency. This agency has also reviewed the "Exception to Hearing Officer's Recommended Order" filed by Respondent's counsel.

This agency finds and hereby determines, that the proceedings held by the Division of Administrative Hearings complied "with the essential requirements of law" and that the findings of fact made by the Hearing Officer in the recommended order were "based upon competent substantial evidence" presented at the hearing. It is without the purview of Section 120.57 for this agency to substitute its judgment in the analysis of the evidence presented for that of the Hearing Officer who heard the case. Evidence was presented at the hearing to substantiate the findings of fact made by the Hearing Officer.

This agency has also reviewed the conclusions of law and the recommendation made by the Hearing Officer, and finds these to be consistent with the findings of fact made by the Hearing Officer.

Accordingly, pursuant to the directive of Section 120.57(1)(b)10, it is hereby

ORDERED that the Respondent, Southern Citrus Corporation, a licensed citrus fruit dealer for the 1976-1977 citrus shipping season, do comply with the Recommended Order of March 27, 1978, entered by the Hearing Officer, which Order is hereby accepted and approved by this agency, except that since the date for payment of the amount found to be due has now expired, that the Respondent, Southern Citrus Corporation, have 15 days from the date of the entry of this Order within which to make such payment, together with five percent (5 percent) interest thereon from March 27, 1978. Payment shall be made to the Division of Fruit and Vegetable Inspection, Bureau of Citrus License and Bond, Winter Haven, Florida

It is further ORDERED and DIRECTED that upon the failure of the Respondent to comply with the provisions of this Order that demand for payment thereof shall be made on Respondent's citrus fruit dealer's bond during the 1976-1977 citrus shipping season.

DONE AND ORDERED in Winter Haven, Polk County, Florida, this 16 day of August, 1978.

DOYLE CONNER

Commissioner of Agriculture

BY

W. F. Hasley, Chief

Bureau of City License and Bond

Docket for Case No: 77-001385

Orders for Case No: 77-001385