STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEO R. FLEMING, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2213A

) WOODROW W. and ELIZABETH G. ) MADDOX d/b/a D & M PECAN COMPANY ) and CINCINNATI INSURANCE COMPANY,)

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this cause on October 14, 1987, in Orlando, Florida, before Diane A. Grubbs, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Leo R. Fleming, pro se

644 Vineland Road

Winter Garden, Florida 32787

For Respondent Jimmy Davis and

Woodrow W. and Mark Maddox Elizabeth G. Maddox D & M Pecan Company d/b/a D & M Pecan Post Office Box 1541

Company: Thomasville, Georgia 31799

For Respondent Cincinnati Insurance

Company: No appearance ISSUE

Whether Woodrow W. & Elizabeth G. Maddox d/b/a D & M Pecan Company owes petitioner an additional $5,671.30 for 15 loads of watermelon sold between June

28 and July 2, 1986.

BACKGROUND

On October 29, 1986, petitioner, Leo R. Fleming, filed a complaint against Woodrow W. & Elizabeth G. Maddox d/b/a/ D & M Pecan Company (hereinafter D & M) and Cincinnati Insurance Company, surety for respondent, which alleged that D & M was indebted to petitioner in the amount of $5,671.30 as the balance owed on

15 loads of watermelons sold to D & M by petitioner as the agent of Griffin Farms, Inc. The complaint specifically alleged that D & M had not paid the ground price agreed upon by the parties, which resulted in the $5,671.30 difference, and that D & M also had failed to account for any profit on the sale

of the watermelons. Petitioner alleged that the profit or loss on the sale was to be divided 50 percent to Griffin Farms and 50 percent to D & M. Petitioner alleged that he had paid Griffin Farms the full ground price due on the watermelons.

D & M answered the complaint and admitted to an indebtedness of $1,898.40 for one load of watermelons, Lot No. 621. Respondent alleged that on July 12, 1986, a settlement had been reached on the amount due on all other loads.

Respondent alleged that petitioner never got the right size or type of melon on the right truck at any time, which resulted in a great deal of confusion and the need to reroute the melons for resale. Because there were disputed facts, the matter was referred to the Division of Administrative Hearings for further proceedings.

Neither Woodrow nor Elizabeth Maddox were present at the hearing. However, Mark Maddox, Elizabeth and Woodrow's son, had been requested to appear on their behalf in that Mrs. Maddox had suffered a stroke the previous week. Mark Maddox was initially recognized as the qualified representative for respondent; however, Jimmy Davis was also recognized as a qualified representative in that he actually owns half of D & M Pecan Company. D & M Pecan Company is also known as Davis & Maddox Pecan Company.

At the hearing, petitioner testified on his own behalf, and petitioner's exhibits 1-3 were introduced into evidence. Jimmy Davis testified on behalf of D & M, and respondent's exhibits numbered 1-8 were admitted into evidence.

Petitioner ordered a transcript of the hearing which has been filed; however, neither petitioner nor respondent have filed proposed findings of fact or conclusions of law.

FINDINGS OF FACT

1. In the summer of 1986, petitioner, Leo R. Fleming, as the agent for a Mr. Griffin, entered into an agreement with Jimmy Davis, representing D & M Pecan Company, to sell an unspecified amount of watermelons to D & M at the "ground" price which was to be determined daily. The parties also agreed to "joint" the melons, meaning that D & M and Mr. Griffin would split whatever profit or loss was made on the sale of the watermelons. Under the terms of the agreement D & M supplied the trucks and petitioner was responsible for harvesting and loading the melons on the trucks.

   
   

2. Fifteen loads of watermelons were loaded and sold to D & M between June

   28 and July 2, 1986. On June 28, 1986, D & M paid petitioner $3,000 as an advance on the watermelons so that the field crew could be paid. On June 30, 1986, D & M paid $5,000 and on July 2, 1986, D & M paid $3,000. None of the monies paid to petitioner between June 28 and July 2 were for specific loads or lots of melons, but were advances to be credited against the total amount that was ultimately owed to petitioner.

   
   

3. From the first day of loading, June 28, 1986, D & M experienced problems with the melons loaded by petitioner. Mr. Davis would call petitioner the night before the loading to advise him as to the type and size of melon that was to be put on each truck to be loaded the following day. However, petitioner would get the orders confused, which resulted in the trucks being loaded with a different size and type of watermelon than was ordered. D & M usually did not discover the problem until the trucks reached their destination. On a few occasions, the discrepancies were discovered when petitioner called back in

   after the trucks had left the field to report the amount of melons put on each truck. In any event, the failure to load the right melons on the trucks caused D & M to have to find other buyers and reroute the trucks or reduce the price of the melons delivered.

   
   

4. On July 12, 1986, petitioner and Mr. Davis met in Cordele, Georgia, for the purpose of determining the amount owed by D & M for the watermelons. Petitioner brought typed invoices with him which reflected the type of watermelon, the number of pounds shipped, and ground price per pound for each lot or load. However, due to the problems with the wrong melons being loaded, the parties agreed to reduce the price per pound on those loads which had not been loaded as ordered. The adjusted price agreed upon was written on the original invoices and the typed price was marked through. No adjustment was made for the lots that were loaded properly. Lot 621 was not included in the negotiations because petitioner did not present an invoice for that lot and neither party at that time knew what had happened to that truck. However, the parties did agree to settle the other 14 loads for a total price of $25,783.60. (See Appendix A which lists the invoiced price and negotiated price per load.) D & M deducted $10,000 from that total for the advances that had been made and gave petitioner a check for $15,783.60. 1/ The stamp marks on the back of the check reveal that the check was deposited by petitioner on or before July 14, 1986.

   
   

5. On July 15, 1986, petitioner wrote a check to the grower for the watermelons. The amount of the check was based on the negotiated price minus petitioner's commission and the cost of the harvesters. This amount is reflected on the original invoices. (P.Ex.1) However, Mr. Griffin did not accept the changes in the price and insisted upon payment from petitioner based on the original invoiced amount. Petitioner then paid Mr. Griffin based on the original invoiced amount "for keeping him from going to the PACA." (T-30) Thereafter, on August 6, 1986, petitioner sent D & M a statement reflecting a balance due based on the original invoiced amounts.

   
   

6. From thee evidence presented, it is clear that on July 12, 1986, the parties reached an agreement concerning the full amount to be paid for all the loads of watermelons purchased by D & M except for the load labelled Lot No. 621. D & M admits that it owes petitioner for Lot No. 621, but it contends that it only owes $1,898.40 for that load, whereas the invoice indicates that

   $2,133.90 is owed. Mr. Davis explained that D & M should not have to pay

   $2,133.90 for that load because that was the total amount it was able to get for the load. In other words, if D & M paid the full invoiced amount, it would not make a profit. Nevertheless, the original agreement of the parties was that D & M would pay ground price for the melons. D & M paid full invoice price on the melons that were correctly loaded and paid an agreed upon adjusted price for the melons that were not loaded as ordered. D & M failed to present any evidence establishing that Lot No. 621 consisted of melons that were not of the type and size ordered. Therefore, D & M owes petitioner $2,133.90 for Lot 621.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 604.21(6) and Section 120.57(1), Florida Statutes (1987).

   
   

8. Respondents do not dispute that D & M is a licensed dealer in agricultural products, as defined in Section 604.15, Florida Statutes, or that Cincinnati Insurance Company is the surety for D & M.

9. Section 604.20(1), Florida Statutes, provides that before a license is issued to a dealer in agricultural products, the dealer

   
   

   shall make and deliver to the department a surety bond . . . in the amount of at least

   $1,000 or in such greater amount as the Department may determine, [that] [s]uch bond must be executed by a surety corporation [and that] [s]uch bond . . . shall be

   conditioned to secure the faithful accounting for and payment to the producers *or their agents or representatives* of the proceeds of all agricultural products handled or purchased by such dealer. (e.s. between *)

   
   

   Section 604.21(1) provides that

   
   

   [a]ny person claiming himself to be damaged by any breach of the conditions of a bond

   . . . given by a licensed dealer in agricultural products as hereinbefore provided may enter a complaint thereof against the dealer and against the surety, if any, to the department, which complaint shall be a written statement of the facts constituting the complaint.

   
   

10. Petitioner has the burden of establishing the facts alleged in his complaint. In other words, "petitioner has the burden of proving by a preponderance of the evidence that respondent defaulted on its agreement and is indebted to petitioner . . ." Ernest Leclercq, d/b/a Suncoast Farms v. Orin H. Cope Produce, Inc., d/b/a South Dade Produce, 9. F.A.L.R. 852 (1986).

    
    

11. Petitioner in this case failed to establish fully the allegations set forth in his complaint. In his complaint petitioner alleged that D & M owed him

    $5,671.30 as the balance due on the sale of the 15 loads of watermelons. The evidence presented established that petitioner and D & M negotiated the amount owed on 14 of the 15 loads and that D & M paid petitioner the total amount owed on those loads. However, the evidence established, and D & M admitted, that it had not paid petitioner for one load of watermelons, Lot No. 621. The evidence further established that D & M owes petitioner $2,133.90 for that load.

    
    

12. Subsequent to the hearing, petitioner filed a pleading requesting that interest be added to the amount of money due "at the maximum rate legally applied." However, petitioner cites to no authority for the allowance of interest in this type of proceeding, and the Department of Agriculture has recently held, in a proceeding brought pursuant to Section 604.21, Florida Statutes, that interest "is not considered an item under the jurisdiction of this Department . . . ." Oglesby Nursery, Inc. v. Garden of Eden Landscape & Nursery, Inc., F.A.L.R. LB Case No. 87-0041, DOAH Case No. 87-2226 (Final Order entered November 19, 1987).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that a final order be entered by the Department of Agriculture directing respondent to pay petitioner the sum of $2,133.90 within 15 days after the final order is entered.

DONE AND ENTERED this 26th day of February, 1988, in Tallahassee, Leon County, Florida.

DIANE A. GRUBBS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1988.

ENDNOTES

1/ D & M had actually paid $11,000 in advances, but only $10,000 was deducted from the total adjusted amount owed. From the evidence presented, it is not clear why the extra $1,000 was paid by D &M; however, because the settlement agreement also was to settle any amounts due under the agreement to "joint" the loads, the extra $1,000 may have been included in the payment to settle that matter.

2/ Reflects full payment for 39,760 lbs. at .045 per Ab.

3/ Reflects correct amount due for 43,080 lbs. at .045 per lb. (invoice originally had amount of 1971.00)

4/ Because the wrong melons were shipped, D & M lost $102.16 on this load due to additional freight charges.

5/ Not included in settlement since Fleming did not have invoice and no one knew then what happened to the truck.

APPENDIX A

Per Per

Ship- D&M lb. lb.

ping Lot Invoice Ground Adjusted Invoice Settled Date No. No. Type Lbs. Price Price Amount Amount

+ 1,000.00

26,788.60

COPIES FURNISHED:

Mr. Leo P. Fleming 644 Vineland Road

Winter Garden, Florida 32787

Mr. Jimmy Davis Mr. Mark Maddox

D & M Pecan Company Post Office Box 1541 Thomasville, GA 31799

Ben Pridgeon, Chief

Bureau of Licensing & Bond Department of Agriculture Lab Complex

Tallahassee, Florida 32399-1650

Honorable Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32399-0810

Robert Chastain, Esquire General Counsel Department of Agriculture

513 Mayo Building

Tallahassee, Florida 32399-0800

Docket for Case No: 87-002213

Orders for Case No: 87-002213