STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EARL DICKS, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0055A

)

J. R. SALES, INC., and ) AETNA INSURANCE CO., )

)

Respondents. )

)

RECOMMENDED ORDER

In keeping with the authority of Section 120.57(1), Florida Statutes, a final hearing was held in Lake City, Florida, to resolve this controversy. Location of the hearing was the Courthouse Annex Conference Room, Columbia County Courthouse Annex, 34 North Hernando Street. The time of hearing was 10:00

a.m. and the date of hearing was September 3, 1985. The parties through counsel have submitted proposed recommended orders. Those proposals have been considered. In some instances, when the facts of those proposals coincide with the fact determination made in this recommended order, they have been utilized. Otherwise the proposed facts are rejected based upon the lack of relevance and materiality or for reason that those proposals were discarded in favor of other facts

APPEARANCES

For Petitioner: Marlin M. Feagle, Esquire

Post Office Box 1653

Lake City, Florida 32056-1653

For Respondent: Robert L. Stinson, Esquire

J. R. Sales, Inc. Post Office Box 1739

Tallahassee, Florida 32302-1739

For Respondent: No appearance. Aetna Insurance Co.

ISSUES

The issues that were considered in the course of the hearing were those related to a claim by the Petitioner of entitlement to receive an additional $5,581.00 in proceeds related to the sale of watermelons to J. R. Sales, Inc. In this case Petitioner has alleged that the Respondent J. R. Sales, Inc. in the person of its representative, one Carr Hussey, had agreed to pay a fixed price of four cents per pound for large grey watermelons and 3.5 cents per pound for medium grey watermelons and that four cents per pound was due the Petitioner for the delivery of large jubilee watermelons. It is further alleged that those prices were not paid. If the Petitioner's assertions are correct, the additional amount owed would be

$5,581.00. In reply Respondent J. R. Sales, Inc. denies the claim of $5,581.00 and in its defense states that all money due and owning to the Petitioner has been paid.

FINDINGS OF FACT

1. Petitioner, Earl Dicks, is a farmer in Columbia County, Florida. In 1984 Petitioner grew two varieties of watermelons in Columbia County for the purpose of selling those crops commercially. Those watermelon varieties were greys and jubilees.

   
   

2. As of June 21, 1984, Petitioner had not sold his crop of watermelons. On that date Petitioner was introduced to Carr Hussey, President of J. R. Sales, Inc. This introduction was made by another farmer, one Doyle Ottinger. The purpose of this introduction was to ascertain whether Hussey would be interested in purchasing the watermelons which Petitioner had available for sale. J. R. Sales, Inc. is a company which purchases watermelons in Florida for delivery and further sale in markets outside of Florida.

   
   

3. Following the introduction of the Petitioner and Hussey, those two gentlemen, Ottinger and Petitioner's son, Edward Dicks, went to see Petitioner's grey watermelon crop in Columbia County. Prior to arriving at the field, no discussion had been entered into between the Petitioner and Hussey as to price. While at the field Petitioner offered to sell the entire field of watermelons, and Hussey declined the purchase. At that juncture Hussey was not aware of any particular market in which he might place the Petitioner's watermelons. Hussey did indicate that if he were able to find a market for those crops, he would pay Petitioner the fair market value per pound for those watermelons on a given day. He further stated that the

   fair market price on June 21, 1984, was four cents a pound for large and 3.5 cents a pound for medium greys. The market price considerations at work, as Hussey envisioned them, had to do with the market conditions in New York, New England and Canada, places where the watermelons would be delivered. It also was important that the watermelons be delivered prior to July 4, 1984. The importance of this date had to do with the demand for watermelons for retail purchase prior to July 4, 1984, and a softening market immediately subsequent to that date. The discussion as to price was made in the presence of Petitioner, his son, and Hussey. There was no other discussion concerning the purchase price of the grey variety of watermelon, and no written document evidences this oral discussion of price.

   
   

4. Following the conversation of June 21, 1984, in which price was discussed between the Petitioner and Hussey, the grey watermelons which Petitioner had in Columbia County were available for harvesting. One or two days after this conversation, the first loads of watermelons were harvested. Although Petitioner believes that 17,000 pounds of medium watermelons were harvested with the balance of the watermelons taken on that day being large watermelons, it is found that the 17,000 pounds related to large watermelons with the balance being medium watermelons. This pertains to Petitioner's Exhibit Number 1 admitted into evidence which contains the composite invoices for those loads together with poundage and price. Seventeen thousand pounds relates to the large at 3.5 per pound with the balance of the weights pertaining to mediums at three cents per pound. The net amount paid after deducting the cost of harvesting was $3,085.78.

   
   

5. On July 2, 1984, additional medium and large grey watermelons were harvested from the Petitioner's Columbia County fields, through J. R. Sales, Inc. A copy of the composite invoices related to the latter, together with a description of the sizes, weights, and prices paid with deduction of harvesting cost, may be found in Petitioner's Exhibit Number 3 admitted into evidence. Price paid was 2.5 cents per pound for medium greys and three cents per pound for large greys. These watermelons were watermelons which would not have arrived at J.

R. Sales' markets in time meet the July 4, 1984, peak sales period. The total amount paid for this July 2, 1984, harvest of greys was $5,104.75.

6..Watermelons purchased from the Petitioner had to be placed in markets other than those normally served by J. R. Sales, Inc.

1. In the period June 23 through June 25, 1984, J. R. Sales, Inc. bought watermelons from other farmers in the growing area and paid prices for large greys which varied from three cents to 3.5 cents per pound. The price being paid for medium greys in that time frame was three cents per pound, to a farmer other than Petitioner. In the same sequence of days, 3.5 cents per pound was paid for a purchase of large jubilees from another farmer.

   
   

2. On the subject of large jubilees, Hussey had been shown a field of jubilee watermelons that were grown by Petitioner in Columbia County. When shown the melons, he indicated that he was not interested in purchasing them. Nonetheless, J. R. Sales, Inc. harvested large jubilee watermelons from that field and paid $1,529.15 for them. Payment was made to Petitioner at a rate of three cents per pound less harvesting cost. Petitioner's son was aware of this harvesting of the large jubilees. The composite invoices related to the large jubilees may be found in Petitioner's Exhibit Number 2 admitted into evidence, a copy. This document shows the invoice numbers, the size, the price per pound and weight together with the gross price less harvesting cost and the net payment price. These watermelons were harvested on June 28, 1984. Even though there was no discussion as to price of the jubilees, Petitioner was of the opinion that four cents a pound for large jubilees should be the price, a price never agreed to by J. R. Sales, Inc.

   
   

3. Sherod Keen, another individual who brokered and purchased watermelons in the area of Columbia County, Florida, in 1984 gave testimony. His testimony established that in the period June 21 through June 28, 1984, he was paying farmers a price between 3.5 cents to four cents per pound for medium greys and four to 4.5 cents per pound for large greys. On July 2, 1984, Keen was paying 3.5 to four cents for large greys. Keen agreed with Petitioner and Hussey that the cutoff date prior to July 4, 1984, is critical in terms of the price to be paid, in that watermelons delivered to the market prior to July 4, 1984, would bring a better price than those prices immediately following July 4, 1984. Keen sells in places such as Florida, Maine and Wisconsin. Keen was not interested in purchasing the watermelons which Petitioner sold to J. R. Sales, Inc.

   
   

4. Hussey, Keen and Ottinger established through their testimony that the prices for watermelons varied day to day within the relevant time frame, June and July, 1984.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57, Florida Statutes.

   
   

6. The burden of establishing his claims resides with the Petitioner in that he is asserting the affirmative, that is, a claim of entitlement to additional monies for the delivery of his product. See Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). Without regard for defenses that may have been available to Respondent J. R. Sales, Inc., Petitioner has failed to meet that burden. Petitioner has not proven that he was entitled to a payment of four cents per pound for large grey watermelons and

   3.5 cents per pound for medium grey watermelons, without regard for the market circumstance on a given day. The facts, as found, demonstrate that fair market value, meaning a fair market value taking into account the markets available to the Petitioner through the purchase and resale of his product by J.

   R. Sales, Inc., should determine the price. The prices paid to the Petitioner were in keeping with the prices J. R. Sales, Inc. paid to other farmers in the relevant period and as such correspond to fair market value.

   
   

7. This determination does comport with the ideas set forth in Section 672.201, Florida Statutes, pertaining to the statute of frauds. There being no written contract or agreement and the price of the sale of goods exceeding $500.00, Petitioner's claim of entitlement to 3.5 cents per pound for mediums and four cents per pound for large watermelons could not be enforced, even if those claims were found to be factually correct.

   
   

8. Finally, on the subject of the purchase of large and medium grey watermelons, those prices paid by Sherod Keen do not form the basis for deciding the issue of fair market value, in that the markets identified and served by Keen are not sufficiently relevant to constitute the basis for determination of fair market value.

   
   

9. There being no agreement as to the purchase price of jubilees, the determination of the appropriate amount to pay for the large jubilee watermelons is a fair market value. This conclusion is reached in view of the fact that in the absence of an agreement as to price, that price must be a fair market value. Petitioner's attempt to prove entitlement to four cents

per pound for large jubilee watermelons does not prevail. Having accepted the fair market value as the basis for determining Petitioner's entitlement to payment, it is found that the price that the Petitioner was paid was in keeping with the fair market value of jubilee watermelons.

Having considered the facts and the conclusions of law reached, it is

RECOMMENDED

That a final order be entered which denies Petitioner's claim of underpayment in the amount of $5,581.00 for watermelons purchased by J. R. Sales, Inc. and dismisses that complaint.

DONE AND ENTERED this 7th day of October, 1985, at Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 1985.

COPIES FURNISHED:

Marlin M. Feagle, Esquire Post Office Box 1653

Lake City, Florida 32056-1653

Robert L. Stinson, Esquire Post Office Box 1739

Tallahassee, Florida 32302-1739

Aetna Insurance Company

Attention: Mr. F. B. Schroeder, Jr. Three Center Plaza

Post Office Box 1793

Boston, Massachusetts 02205

Hon. Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32301

Mr. Joe Kight

Department of Agriculture and Consumer Services

418 Mayo Building Tallahassee, Florida 32301

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=

AGENCY FINAL ORDER

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

=

STATE OF FLORIDA

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

EARL DICKS,

Petitioner,

vs. DOAH CASE NO. 85-0055A

LB CASE NO. 86-0028

1. R. SALES, INC., and AETNA INSURANCE CO.,

   
   

   Respondents.

   /

   
   

   FINAL ORDER

   
   

   On October 14, 1985, the Division of Administrative Hearings hearing officer in the above-styled case submitted his Recommended Order to me. A copy of that Recommended Order is attached as Exhibit "A". Pursuant to Section 120.57(1)(b)8, Florida Statutes, and Rule 28-5.404, Florida Administrative Code, all parties were allowed twenty days in which to submit written exceptions to the Recommended Order. Petitioner, Earl Dicks, submitted timely exceptions to the Recommended Order, a copy of which is attached as Exhibit "B". Respondent, J. R.

   Sales, Inc., submitted a reply to Petitioner's exceptions, a copy of which is attached as Exhibit "C".

   
   

   BACKGROUND

   
   

   Petitioner is a producer of farm commodities in Columbia County, Florida. In 1984, Petitioner grew watermelons.

   
   

   On or about June 21, 1984, Petitioner met with Carr Hussey, representing Respondent, to discuss the sale and purchase of Petitioner's watermelons. Petitioner has alleged that the Respondent in the person of its representative, Carr Hussey, had agreed to pay a fixed price of four cents per pound for large grey watermelons and 3.5 cents per pound for medium grey watermelons and that four cents per pound was due to Petitioner for the delivery of large jubilee watermelons.

   
   

   The issue for determination at the hearing was whether Res- pondent was obligated to pay Petitioner an additional $5,576.00.

   
   

   The hearing officer recommended that a Final Order be entered denying Petitioner's claim of underpayment in the amount of $5,576.00 for watermelons purchased by Respondent and dismissed the complaint.

   
   

   RULINGS ON EXCEPTIONS

   
   

   In ruling on these exceptions, I specifically note the standard of review contained in Chapter 120. Section 120.57(1)(b)9, Florida Statutes, provides that an agency may reject findings of fact contained in a recommended order only if it concludes, after a review of the complete record, that there is no competent substantial evidence in the record to support those findings.

   
   

   The agency may, however, reject or modify the conclusions of law and interpretations of administrative rules.

   
   

   PETITIONER'S EXCEPTIONS

   
   

   1. Petitioner's first exception is to the hearing officer's conclusion of law that "there being no written contract or agreement and the price of the sale of goods exceeding $500.00, Petitioner's claim of entitlement to 3.5 cents per pound for mediums and four cents per pound for large watermelons could not be enforced, even if those claims were found to be factually correct."

      
      

      Section 672.201 provides, in relevant part, as follows:

      
      

      1. Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.

(3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable:

1. If the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made, but the contract is not enforceable under this provision beyond the quantity of goods admitted; or

   
   

2. With respect to goods for which payment has been made and accepted or which have been received and accepted . . .

The facts of this case falls within the statute of frauds, exceptions to Section 672.201, Florida Statutes. Even though the price of the goods exceeded $500.00, the contract between the parties is enforceable because the Respondent admitted in his testimony that a contract existed between the parties for the Petitioner to sell and for the Respondent to purchase Petitioner's watermelons. There was also written documentation, entered into evidence, between the parties as to the quantity of watermelons purchased.

The Hearing officer also received into evidence checks issued and signed by Carr Hussey, President of Respondent. It has been held that evidence in the form of a check which had been written on the Defendant's account and made out to the

Plaintiff and which had been accepted by the Plaintiff and deposited into Plaintiff's account is enough to take the sales agreement between the parties out of the statute of frauds. Lea Industries, Inc. v. Raelayn International, Inc,, 363 So. 2d 49 (3rd DCA 1978). Petitioner's first exception is accepted.

The only disputed issue was the agreed upon price per pound. There is competent and substantial evidence in the record supporting the hearing officer's conclusion that since there was no agreement as to price, that price must be a fair market value.

Petitioner's second exception is to the hearing officer's findings of fact as to the fair market value of the watermelons. The fair market value of watermelons is established by what growers are willing to sell watermelons for and what purchasers are willing to buy them for on any given day.

Sherrod Keen, a grower and watermelon buyer in the area, testified as to what he was paying area farmers. He testified that his watermelon prices to local farmers range from a minimum of 3.5 to four cents per pound for medium and four to 4.5 cents per pound for large grays and other watermelons including jubi- lees. On July 2, 1984. Keen was paying 3.5 to four cents for large watermelons.

The hearing officer disregarded this testimony because Keen sells in places such as Florida, Maine, and Wisconsin while the Respondent was selling in places such as New York, New England, and Canada. This is a distinction without a difference since both watermelon buyers were buying melons at the same f.o.b. shipping point market price without regards to where they were being sold.

Petitioner contends that the hearing officer committed reversible error in denying Petitioner's exhibit tendered for the purpose of showing fair market values in 1984 as published by the Southeastern Fruit and Vegetable Reporting Service from Orlando, Florida.

Section 672.724, Florida Statutes provides that:

Whenever the prevailing price or value of any goods regularly bought and sold in any established commodity market is in issue, reports in official publications or trade journals or in newspapers or periodicals of

general circulation published as the reports of such market shall be admissible in evidence. The circumstances of the preparation of such a report may be shown to affect its weight but not its admissibility.

Thus, Petitioner's exception is accepted. However, this does not change the result. The Southeastern Fruit and Vegetable Reporting Service is only a guideline in establishing prices for various commodities in the industry. Without additional evidence of market prices, it cannot be used as conclusive evidence of

what market prices are on any given day.

CONCLUSION AND ORDER

Having considered the Recommended Order, the exceptions filed by Petitioner, the reply filed by Respondent, and the record it is

ORDERED THAT

1. The Hearing Officer's Findings of Fact and Conclusions of Law are hereby adopted as modified by this Final Order.

   
   

2. Respondent pay the Petitioner the amount of $5,576.00 within fifteen (15) days after the Order becomes final. This Order is final and effective on the date filed with the clerk of the Department.

Any party to the Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 515 Mayo Building, Tallahassee, Florida 32301; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within thirty (30) days from the date this Final Order is filed with the clerk of the Department.

DONE AND ORDERED this 31st day of July, 1986, in Tallahassee, Florida.

DOYLE CONNER, COMMISSIONER

Department of Agriculture and Consumer Services

COPIES FURNISHED TO:

Department of Agriculture and Consumer Services

Clerk's Office

Room 515, Mayo Building Tallahassee, Florida

Earl Dicks

Route 3, Box 357

Lake City, Florida 32055

J. R. Sales, Inc. Post Office Box 267

Fairfield, Maine 04937

Marlin M. Feagle, Esquire Post Office Box 1653

Lake City, Florida 32056-1653

Robert L. Stinson, Esquire Post Office Box 1739

Tallahassee, Florida 32302-1739

Aetna Insurance Company

Attention: Mr. F. B. Schroeder, Jr. Three Center Plaza

Post Office Box 1793 Boston, Massachusetts 02205

James Maynard, Field Representative James Brooks, Field Representative. Thomas Martino, Field Representative Brenda Hyatt, Field Representative

Joe W. Kight, Chief Department of Agriculture

and Consumer Services Room 418, Mayo Building Tallahassee, Florida 32301

Charles C. Adams, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

William C. Harris, Esquire Department of Agriculture

and Consumer Services Room 513, Mayo Building

Tallahassee, Florida 32301

Docket for Case No: 85-000055

Orders for Case No: 85-000055