STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AM-PRO DISTRIBUTORS, INC., d/b/a ) AM-PRO OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5999A

) BROWN'S PRODUCE, INC. and LAWYERS ) SURETY CORPORATION, )

)

Respondents. )

)

RECOMMENDED ORDER

The final hearing in this case was held before Larry J. Sartin, Hearing Officer, on February 14, 1996, in Trenton, Florida.

APPEARANCES

For Petitioner, Theodore M. Burt, Esquire Am-Pro Post Office 308 Distributors, Inc.: Trenton, Florida 32693

For Respondent, James H. Buzbee, Esquire Brown's Produce, 114 South Collins Street

Inc.: Plant City, Florida 33564-9052

For Respondent, Lawyers Surety

Corporation: No Appearance STATEMENT OF THE ISSUE

The issue in this case is whether Respondents, Brown's Produce, Inc., and Lawyers Surety Corporation, are indebted to Petitioner, Am-Pro Distributors, Inc., d/b/a Am-Pro of Florida.

PRELIMINARY STATEMENT

On or about August 17, 1994, Petitioner filed a Complaint with the Florida Department of Agriculture and Consumer Services. Petitioner alleged that Respondent, Brown's Produce, Inc., was indebted to Petitioner in the amount of

$55,139.45. On or about September 1, 1994, an Amendment to the Complaint was filed by Petitioner. The Complaint was amended to allege that the indebtedness had been reduced to $25,139.45. On or about October 4, 1994, Brown's Produce, Inc., filed an Answer of Respondent to the Amended Complaint denying that any indebtedness was owed Petitioner. Brown's Produce, Inc., requested a formal administrative hearing.

On October 25, 1994, the matter was filed with the Division of Administrative Hearings. The matter was designated case number 94-5999A and was assigned to the undersigned.

The case was initially scheduled for formal hearing on February 8, 1995.

The hearing was rescheduled, at the request of the parties, three times.

At the formal hearing Petitioner presented the testimony of Keith Warren and Johnna K. Thompson. Petitioner also offered 4 exhibits. All four exhibits were accepted into evidence.

Respondent, Brown's Produce, Inc., presented the testimony of Jerry Brown, Keith Warren and Mildred Brown. Respondent's exhibits 1-4 were accepted into evidence.

Respondent, Lawyers Surety Corporation, did not appear at, or participate in, the formal hearing.

A letter dated March 1, 1996 from the court reporter was filed on March 4, 1996. The letter indicated that the transcript of the final hearing was being filed (the transcript was not actually filed with the Division of Administrative Hearings until April 12, 1996). By agreement of the parties, proposed orders (incorrectly referred to as proposed "final orders") were, therefore, required to be filed on or before March 21, 1996. An extension of time until April 11, 1996, was requested by the parties. That request was granted by an Order entered March 28, 1996.

Both parties filed proposed orders. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. Petitioner, Am-Pro Distributors, Inc., d/b/a Am-Pro of Florida (hereinafter referred to as "Am-Pro"), is a producer-broker of watermelons.

   
   

2. Keith Warren has been the chief operating officer of Am-Pro at all times pertinent to this proceeding.

   
   

3. Respondent, Brown's Produce, Inc. (hereinafter referred to as "Brown's"), is also a watermelon producer-broker. Brown's is located in Gilchrist County, Florida.

   
   

4. Jerry Brown has been Brown's chief operating officer at all times relevant to this proceeding.

   
   

5. In early 1994, James Dukes informed Mr. Warren that he was interested in purchasing watermelons.

   
   

6. Mr. Warren was concerned about selling watermelons to Mr. Dukes because of doubts about whether Mr. Dukes would pay for the watermelons.

   
   

7. When Mr. Warren told Mr. Dukes that he would not sell watermelons to him, Mr. Dukes mentioned Mr. Brown.

8. Subsequent to Mr. Warren's conversation with Mr. Dukes, Mr. Warren received a telephone call from Mr. Brown. Mr. Brown informed Mr. Warren that he had been doing business with Mr. Dukes. Mr. Brown also told Mr. Warren that he did not have sufficient watermelons to supply Mr. Dukes.

   
   

9. During the telephone conversation, Mr. Brown told Mr. Warren that, if he would send watermelons to Mr. Dukes as requested, he would pay for the watermelons. Mr. Warren told Mr. Brown that he would send the watermelons to Mr. Dukes, but that he would look to Mr. Brown for payment and not Mr. Dukes. Mr. Brown agreed.

   
   

10. The agreement between Mr. Brown and Mr. Warren was not reduced to writing, consistent with industry practices. Nor did Mr. Brown or Mr. Warren agree on the amount of watermelons that were to be sent to Mr. Dukes.

    
    

11. Watermelons were first shipped to Mr. Dukes on or about April 20, 1994. A total of nine shipments of watermelons were made to Mr. Dukes. The following shipments of watermelons were made to Mr. Dukes during April of 1994:

    
    

    DATE		AMOUNT CHARGED
    April	20:	$7,272.60
    April	26:	7,139.20
    April	27:	7,484.40
    April	28:	5,909.50
    April	28:	6,468.65
    April	29:	6,551.20

    
    

12. On or about April 30, 1994, Mr. Warren decided not to send any further shipments of watermelons to Mr. Dukes because no payment had been made for the April shipments.

    
    

13. Mr. Warren telephoned Mr. Brown about the lack of payment. Mr. Brown indicated that he would send some money and that he would get Mr. Dukes to send money directly to Mr. Warren that Mr. Dukes owed him. Mr. Brown asked Mr. Warren to continue sending watermelons to Mr. Dukes.

    
    

14. Shortly after speaking to Mr. Brown about the nonpayment for watermelons sent to Mr. Dukes, Mr. Warren received three checks from Mr. Dukes. The checks were dated May 2, 1994. The total amount paid by Mr. Dukes was

    $10,000.00. These payments were credited against the indebtedness for watermelons shipped to Mr. Dukes.

    
    

15. Mr. Warren informed Mr. Brown that he had received partial payment. Mr. Brown asked Mr. Warren to send more watermelons because he still did not have sufficient melons to supply Mr. Dukes. In reliance on Mr. Brown's statements, made additional shipments of watermelons to Mr. Dukes during May of 1994. The following shipments of watermelons were made to Mr. Dukes:

    
    

    DATE	AMOUNT CHARGED
    May 2:	5,913.30
    May 3:	4,620.60
    May 3:	3,780.00

    
    

16. A total of $55,139.45 was invoiced for watermelons shipped to Mr. Dukes.

17. The evidence failed to prove whether invoices for the individual shipments of watermelons to Mr. Dukes were provided to Mr. Brown. Invoices accepted into evidence are addressed to Brown's and J.B. Farms, Inc. Those invoices, however, were generated by an office of Am-Pro located in Plant City, Florida. The evidence failed to prove that the invoices were actually transmitted to Browns. The first written confirmation of the shipments was sent on or about May 21, 1994. Mr. Brown was, however, verbally informed of the shipments by Mr. Warren.

    
    

18. Mr. Brown subsequently paid $20,000.00 to Am-Pro by check dated May 18, 1994. The payment was made by Mr. Brown through J.B. Farms, Inc. The payment was credited against the remaining indebtedness of $45,139.45, leaving a balance of $25,139.45.

    
    

19. Mr. Warren made additional requests to Mr. Brown for payment of the remaining indebtedness after the $20,000.00 payment. Mr. Brown told Mr. Warren that additional payments would be made.

    
    

20. During late May of 1994 or early June of 1994 Mr. Brown first informed Mr. Warren that he would not pay any further amount of the indebtedness for watermelons shipped to Mr. Dukes.

    
    

21. On or about May 21, 1994, Johnna Thompson, an employee of Am-Pro, spoke with Mr. and Ms. Brown about the outstanding debt for watermelons shipped to Mr. Dukes. Ms. Thompson was asked to send a summary of the amounts invoiced for the watermelons. Ms. Thompson sent a summary of the watermelons shipped during April and May of 1994 by fax to Ms. Brown by Johnna Thompson. The check for $20,000.00 received by Am-Pro was sent in response to Ms. Thompson's request for payment. For some unexplained reason the check was dated May 18, 1994. The check, however, was not received until after May 21, 1994 and was paid May 27, 1994.

    
    

22. At no time during Ms. Thompson's conversations with the Browns did either Mr. Brown or Ms. Brown indicate that only one shipment of watermelons to Mr. Dukes was to be paid for by Brown's. Nor did Mr. Brown, who had earlier told Mr. Warren that he would have Mr. Dukes send Mr. Warren money that Mr. Dukes owed Mr. Brown, tell Ms. Thompson that all or part of the $10,000.00 sent by Mr. Dukes was in payment for the one load of watermelons Mr. Brown allegedly agreed to pay for.

    
    

23. Ms. Thompson also overheard one other conversation between Mr. Warren and Mr. Brown concerning the shipment of watermelons to Mr. Dukes. At no time during that conversation did Mr. Brown indicate that he was only paying for one shipment of watermelons.

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

24. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57, Florida Statutes (1995).

    
    

    1. Burden of Proof.

25. Am-Pro was required to prove by a preponderance of the evidence its entitlement to payment from Browns for the outstanding indebtedness alleged in this proceeding. See Watson Realty Corp. v. Quinn, 435 So. 2d 950 (Fla. 1st DCA 1983).

    
    

    1. Statute of Frauds.

    
    

26. Although there was a dispute as to the agreement between Mr. Warren and Mr. Brown, the weight of the evidence in this case proved that Mr. Brown agreed to pay for all shipments of watermelons from Am-Pro to Mr. Dukes and not just one shipment.

    
    

27. This conclusion does not, however, resolve this dispute. At issue is whether the agreement, an oral one, is enforceable under the Statute of Frauds, Section 725.01, Florida Statutes. Section 725.01, Florida Statutes, provides that no action may be brought to require a person to answer for the debt of another unless the promise was made in writing.

    
    

28. A distinction is made, however, between an action on a direct promise to pay for goods shipped to another (A tells B to ship goods to C and A will pay for them) and a collateral promise to pay for goods of another if the recipient of the goods fails to pay for them (A tells B that A will pay for goods shipped to C if C does not pay). Collateral promises come within the Statute of Frauds, while direct promises to pay do not. Sanders v. Hodges, 147 So. 571 (Fla. 1933).

    
    

29. The weight of the evidence in this case supports a finding that Mr. Brown agreed to directly pay for watermelons shipped by Mr. Warren to Mr. Dukes. Although Am-Pro failed to prove precisely how the shipment of watermelons to Mr. Dukes by Am-Pro constituted valuable consideration to Mr. Brown and Brown's, the evidence did prove that Mr. Brown told Mr. Warren that he "had been doing business with Mr. Dukes." See Al Booth's, Inc. v. Boyd Scrap Enterprises, Inc.,

518 Soi. 2d 422 (Fla. 5th DCA 1988); and American Atlantic Lines v. Ros Forwarding, Inc., 441 So. 2d 1153 (Fla. 3rd DCA 1983).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Affairs enter a

Final Order requiring that Brown's Produce, Inc., pay to Petitioner the sum of

$25,139.45, within fifteen days of the Final Order and, absent such payment, requiring Lawyers Surety Corporation, after notice of nonpayment, to pay the same amount to Petitioner to the extent of the amount remaining under the bond.

DONE and ENTERED this 21st day of May, 1996, in Tallahassee Florida.

LARRY J. SARTIN, 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 21st day of May, 1996.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-5999A

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

Petitioner's Proposed Findings of Fact

1. Accepted in 5.

2. Accepted in 6-7.

3. Accepted in 8.

4. Accepted in 8-10.

5-6 Summary of some events and testimony at the final hearing.

1. Accepted in 12.

2. See 20.

3. Accepted in 13.

4. Accepted in 12.

5. Accepted in 13.

6. Accepted in 13 and hereby accepted.

7. Accepted in 14.

14-15 Summary of some events and testimony at the final hearing.

1. Accepted in 15.

2. Accepted in 18. 18-19 Accepted in 19.

20 Accepted in 20.

21-22 Accepted in 9 and 15

23 Accepted in 14 and 18. 24-25 Hereby accepted.

1. Not supported by the weight of the evidence.

2. Accepted in 21-22.

3. Accepted in 21.

4. Accepted in 23.

30-35 Not relevant. Summary of some events and testimony at the final hearing.

36-39 These proposed findings are a summary of events and testimony at the final hearing. The statement of Mr. Dukes was given no weight in this Recommended Order.

40-44 Summary of some events and testimony at the final hearing.

1. Accepted in 8-9.

2. Summary of some events and testimony at the final hearing.

3. Cumulative.

4. Accepted in 16.

5. Summary of some events and testimony at the final hearing.

6. Hereby accepted

Browns' Proposed Findings of Fact

1. Accepted in 1-2.

2. Accepted in 3-4.

3. Hereby accepted.

4. Statement of the issue.

5. Accepted in 5.

6. Accepted in 6-7.

7. Accepted in 8-9.

8-9 Not supported by the weight of the evidence.

1. See 10.

2. Hereby accepted.

3. See 17 and 21.

4. Accepted in 21.

5. Accepted in 17 and 21. 15-16 Accepted in 17.

17-19 Hereby accepted.

20-21, 24-25 and 33-34 These proposed findings of fact are generally correct. The "discrepancies" in dates were not sufficient to raise doubt as to the pertinent facts in this case. The discrepancies relate to when the invoices were run.

1. Not supported by the weight of the evidence. See 13.

2. Hereby accepted. The last sentence is not, however, supported by the weight of the evidence.

26-27 Not supported by the weight of the evidence. 28-29 Not relevant.

1. Not supported by the weight of the evidence.

2. Not relevant and not supported by the weight of the evidence.

3. Hereby accepted.

35 See 8

36-38 Not supported by the weight of the evidence.

1. Hereby accepted.

2. Not supported by the weight of the evidence.

3. Not relevant.

4. Not supported by the weight of the evidence.

COPIES FURNISHED:

James H. Buzbee, Esquire Post Office Drawer HHH

Plant City, Florida 33564-9053

Theodore M. Burt, Esquire Post Office Box 308 Trenton, Florida 32693

Lawyers Surety Corporation 1025 South Semoran, Suite 1085 Winter Park, Florida 32792

Brenda D. Hyatt, Chief Bureau of License and Bond Department of Agriculture &

Consumer Services Mayo Building

Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture

The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler, Esquire The Capitol, PL-10

Tallahassee, Florida 32399-0810

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 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: 94-005999

Orders for Case No: 94-005999