STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK G. BAKER, d/b/a )

JACK G. BAKER SOD, )

)

Petitioner, )

)

vs. ) CASE NO. 92-7117A

)

DEBUSK SOD, INC. and ) AUTO-OWNERS INSURANCE COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

A formal hearing in this case was held pursuant to notice on April 21, 1993, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, in Inverness, Florida. In this case, the Petitioner seeks to recover payment for sod sold to DeBusk Sod.

APPEARANCES

For Petitioner: Jack G. Baker

(appeared on behalf of Jack G. Baker Sod) 1415 Bruno Road

Clermont, Florida 34711

For Respondent: James and Susan Meagher

(appeared on behalf of DeBusk Sod, Inc.) 7555 East Turner Camp Road

Inverness, Florida 34453 STATEMENT OF THE ISSUES

Whether the Respondents owe the Petitioner money for sod sold by the Petitioner to the Respondent.

PRELIMINARY STATEMENT

Jack G. Baker Sod (Baker) is in the business of selling sod and sodding. In July of 1992, Baker sold DeBusk Sod, Inc. (DeBusk) 186 pallets of Bahia sod at a price of $17.00 per pallet. DeBusk paid Baker $322.00 on August 25, 1992 and $833.00 on September 22, 1992, in partial payment for the sod. There remained a balance owing of $2,007.00 which was not paid by DeBusk. DeBusk asserts that portions of the sod purchased died although it was properly installed and cared for.

On October 15, 1992, Baker filed a complaint with the Department of Agriculture seeking recovery of the $2,007.00 from DeBusk. DeBusk responded controverting the claim and the Department of Agriculture referred the matter to the Division of Administrative Hearings on December 2, 1992. The case was

noticed for hearing on April 21, 1993, and heard as noticed. The parties stipulated at the conclusion of the hearing that they did not desire to submit posthearing findings or briefs and that the Recommended Order in the case could be prepared and entered without further input from the parties.

FINDINGS OF FACT

1. Jack G. Baker, d/b/a Jack G. Baker, is an individual in the business of selling sod to others and installing sod himself.

   
   

2. DeBusk Sod, Inc. (DeBusk) is a corporation in which the majority of the shares are owned by Susan D. Meagher, whose husband, James, is the minority shareholder. DeBusk installs sod in the central Florida area.

   
   

3. Just prior to July 1992, DeBusk contacted Baker regarding the purchase of sod. Because of an ongoing drought which was affecting the area DeBusk ordered two truckloads of sod to sample the quality of the product immediately prior to July 5, 1992. DeBusk previously had ordered many thousands of dollars worth of sod from Baker. Baker loaded and transported two truckloads of sod to the Meaghers, who were satisfied with the quality of the sod and purchased an additional 186 pallets which they arranged to pick up in Baker's field.

   
   

4. There was not a written contract for the sale of sod; however, all of the parties agree that DeBusk ordered 186 pallets of sod at $17.00 per pallet,

   f.o.b. (free on board) DeBusk's trucks in Baker's field. DeBusk paid Baker

   $322.00 on August 25, 1992 and $833.00 on September 22, 1992, in partial payment for the sod. There remained a balance owing of $2,007.00 which was not paid by DeBusk.

   
   

5. DeBusk ordered the sod after receiving the sample truckloads. James Meagher drove one of the trucks and was present when the sod was cut and loaded. At that time, James Meagher had the opportunity to inspect the sod being cut and loaded. Meagher accepted delivery of the sod in Baker's field.

   
   

6. Conflicting testimony was received at the hearing regarding the nature of the warranty on sod in the course of selling this agricultural product. The most credible evidence is that bahia sod is generally sold with an implied warranty that the product is free of large amounts of weeds or disease, and will take root and grow if properly installed and watered.

   
   

7. James Meagher testified, and his testimony was uncontroverted, that the sod in question was properly installed and watered.

   
   

8. Jack G. Baker testified regarding bahia sod. Bahia sod is exceptionally hardy and, if properly installed and watered, will survive and take root. The sod provided to DeBusk was cut and delivered at the same time as sod which was cut for Baker's own sodding operation and that of another independent sod company. The sod which Baker cut from this field was installed and survived when watered, and Baker received no complaints from the other sodding contractor regarding the sod which Baker had sold him.

   
   

9. James and Susan Meagher contacted Mr. Baker when the sod which they had purchased from Baker began to die and asked Mr. Baker to inspect the sod and stand behind the product. Mr. Baker refused to inspect the product asserting that if the sod was dying, DeBusk had failed to water the product as required. DeBusk refuses to pay for that portions of the sod purchased which died because it failed to conform to the implied warranty.

10. Carl Hiers, a sodding contractor, testified regarding bahia sod. If cut too thin during a severe drought, bahia sod can go into shock and die although it is watered. Mr. Hiers did not see the sod in question, and could not offer an opinion about whether it had failed to thrive because it had been cut too thin.

    
    

11. Jack Baker testified regarding cutting sod too thin. If sod is cut thick enough to hold together, it is thick enough to survive the shock of being cut and transplanted. A portion of the sod fell from one of the last loads cut for DeBusk and lay in Baker's field for three days before a neighbor of Baker's picked it up and used it to sod an area over a septic tank where it grew and thrived.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to pursuant to Section 120.57, Florida Statutes, and Chapter 604, Florida Statutes.

    
    

13. The facts show that Baker sold DeBusk the sod f.o.b. Baker's fields after receiving and accepting a sample of the sod to be delivered. Generally, the implied warranty attaching to the product is that the sod is (1) free of disease, (2) free of significant amounts of weeds and other grasses, and (3) that if properly installed and watered it will take root and grow. DeBusk seeks to avoid payment on the sod because it fails to meet the implied warranty of merchantability. However, by purchasing the sod based upon a sample, the transaction is covered by an expressed warranty, and not an implied warranty.

    
    

14. Chapter 672, Florida Statutes, Uniform Commercial Code; Sales, controls such transactions. Chapter 672.313, Florida Statutes, relates to express warranties. An express warranty is created when a sample or model is made part of the basis of the bargain that the whole of the goods shall conform to the sample or model.

    
    

15. In this transaction, DeBusk was concerned about the quality of the sod given the weather conditions at the time, and required that Baker provide two truckloads of sod to confirm its quality as a condition precedent to the bargain. The sample sod became the basis for the sale.

    
    

16. Section 672.316, Florida Statutes, addresses exclusion or modification of warranties. Subsection 3 of Section 672.316 provides that, notwithstanding Subsection 2 of Section 672.316 regarding modifications of an implied warranty, when a buyer has examined a sample or model of the goods before entering into a contract, there is no implied warranty with regard to defects which an examination would have revealed to him. In such a case, there is an express warranty that the goods to be sold will conform to the sample.

    
    

17. In this case, DeBusk received, examined, accepted and paid for a sample of the sod. James Meagher was present in the field as the remainder of the sod was cut, and could have inspected this sod to assure it conformed with the sample. Presumably, the quality of the sod which was tendered to Meagher was of the same quality as the sample which he had earlier received and inspected. Meagher accepted the product. Baker had performed his part of the bargain.

18. The record shows that bahia sod is very hardy and that this was installed and watered properly. DeBusk argues that the sod failed to meet the implied warranty that it would root and grow if installed properly and watered, and cites the fact that it died as proof of its failure to meet the warranty standard. However, there is no implied warranty. Instead, there is an expressed warranty that the sod conforms in quality to that of the sample. After acceptance, the burden lies with the purchaser to prove that the sod is nonconforming.

    
    

19. It was incumbent upon the purchaser to establish that the sod's failure to survive was due to a cause which the purchaser could not have ascertained from inspection in the field. Evidence that the sod was properly installed and watered, and yet failed to thrive, does not establish that the sod failed to conform to the sample in the face of Baker's testimony that bahia sod will thrive and grow if installed and watered properly. The death of the sod under the circumstances raises an inference of some other factor causing the sod to die. However, DeBusk had to establish that the cause of the sod dying was a condition which he could not have identified by inspection at delivery in the field; and, therefore, the sod failed to conform to the sample.

    
    

20. DeBusk, having failed to show that the sod which they refused to pay for did not conform to the sample which they earlier received, is required to perform on the contract and to pay Baker for the sod which they purchased.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DeBusk Sod have sixty days within which to pay to Jack G.

Baker d/b/a Jack G. Baker Sod $2,007.00, and failing in that, Auto Owners

Insurance Company be required to pay to Jack G. Baker d/b/a Jack G. Baker Sod

$2,007.00 from DeBusk Sod, Inc.'s agricultural bond.

DONE AND ENTERED this 7th day of May, 1993, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1993.

COPIES FURNISHED:

Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture

and Consumer Services The Capitol, PL-10

Tallahassee, FL 32399-0810

Richard Tritschler, Esquire Department of Agriculture

and Consumer Services The Capitol, PL-10

Tallahassee, FL 32399-0810

Jack G. Baker Jack G. Baker Sod 1415 Bruno Road

Clermont, FL 34711

James and Susan Meagher DeBusk Sod, Inc.

7555 East Turner Camp Road Inverness, FL 34453

Brenda Hyatt, Chief Department of Agriculture Bureau of Licensure and Bond

508 Mayo Building Tallahassee, FL 32399-0800

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 92-007117

Orders for Case No: 92-007117