STATE OF FLORIDA
DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES NEWBERN GROVES, INC.,
Petitioner,
vs. CASE NO. 2845.66
I
FINAL ORDER
This case arose under the Florida Citrus Code, Chapter 601, Florida Statutes, and comes before the Commissioner of Agriculture of the State of Florida for consideration and final agency action. On June 25, 1993, the Petitioner, Newbern Groves, Inc., filed a written complaint against Respondent, Inter-Floridana, Inc., a licensed citrus fruit dealer, for $798,850 owed on citrus fruit purchased during the 1992-1993 citrus shipping season. Respondent's license for the subject period of time is supported by a bond written by Co-Respondent, Ohio Casualty Insurance Company, in the amount of $24,000.
Respondent filed an answer denying the allegation of indebtedness. The file was referred to a hearing officer pursuant to 120.57(1) because factual allegations were at issue. Co Respondent did not file an answer to the Complaint.
A hearing was held before Robert R. Crittenden, Hearing Officer, on May 10 and 11, 1994. Before a recommended order was issued by Mr. Crittenden, his term of office expired and he was not reemployed by the Department as a hearing officer. The Department's
procedure of hiring an independent hearing officer was replaced by the utilization of the services of the Division of Administrative Hearings. Accordingly, the matter was referred to the Division of Administrative Hearings for the assignment of a hearing officer to succeed Mr. Crittenden. The transcript of the hearing and the exhibits were reviewed by DOAH Hearing Officer, Richard Hixson, who found in favor of the Petitioner and rendered a Recommended Order on February 13, 1995, a copy of which is attached hereto as Exhibit "A". On or about March 1, 1995, Respondent filed exceptions to the Recommended Order. No other party filed exceptions.
Section 120.57(l)(B)l0 establishes the standard for review of a Recommended Order.
It reads:
The agency may adopt the recommended order as the final order of the agency. 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 the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action....
Itiswell established that a hearing officer's findings of fact may not be discarded by the reviewing agency unless they are "not based on competent substantial evidence." Section 120.57(1)(b)l02; Venetian Shores Home & Prop. Own. v. Ruzakawski, 336 So.2d 399 (Fla. 3d DCA 1976).
When an agency does substitute its own findings, a reviewing court will naturally accord greater probative force to the hearing officer's contrary findings when the question is simply the weight or credibility of testimony by witnesses, or when the factual issues are otherwise susceptible of ordinary methods of proof, or when concerning those facts the agency may not rightfully claim special insight. ... [but] where the ultimate facts are increasingly matters of opinion and opinions are increasingly infused by policy considerations for which the agency has special responsibility, a reviewing court will give correspondingly less weight to the hearing officer's findings in determining the substantiality of evidence supporting the agency's substituted findings. McDonald
v. Department of Banking and Finance, 346 So.2d 569, 579 (Fla, 1st DCA 1977).
It is the hearing officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent substantial evidence. If, as is often the case, the evidence presented supports two inconsistent findings, it is the hearing officer's role to decide the issue one way or the other. The agency may not reject the hearing officer's finding unless there is no competent, substantial evidence from which the finding could reasonably be inferred. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1282 (Fla. 1st DCA 1985).
An agency cannot substitute its view for that of the hearing officer if the recommended order and the findings thereunder are supported by substantial competent evidence and the proceedings did not depart from the essential requirements of law. Schumacher v. Dept. of Professional Regulation, 611 So. 2d 75 (Fla. 4th DCA 1992), Munch v. Dept. of Professional Regulation, 592 So. 2d 1136 (Fla.1st DCA !992), Florida Dept. of Corrections v. Bradley, 510 So.2d 1122 (Fla 1st DCA 1987), School Bd. of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981); AFL-CIO Local 1010 v. Anderson, 401 So.2d 824 (Fla. 5th DCA 1981).
In its exception, the Respondent makes no reference to the transcript or exhibits to
support its exceptions; neither does it cite any law in support of its legal arguments. A review of the record demonstrates a complicated fact pattern and much conflicting testimony. Much of what transpired was base on oral agreements modified by later written documents which were not clear and at best incomplete. The failure to cite to the record neither facilitates the Department's review of the record nor enhances the persuasiveness of Respondent's exceptions.
The first 12 paragraphs of the Respondent's exceptions takes issue with the issuance of the Recommended Order by a hearing officer who did not actually hear the evidence at the final hearing but only reviewed the record. Section 120.57(1)(b), Florida Statutes, states as follows:
If the hearing officer assigned to a hearing becomes unavailable, the division shall assign another hearing officer who shall use any existing record and receive any additional evidence or argument, if any, which the new hearing officer finds necessary.
Further, Section 120.58(1)(e), Florida Statutes, provides that "[t]he proposed order shall be prepared by the individual who conducted the hearing, if available, or by one who has read the record." Since Mr. Crittenden was not available, it was proper for Mr. Hixson to issue the Recommended Order based upon a reading of the record without receiving any additional evidence.
The next exception is to the hearing officer's finding of fact, paragraph 23, that the
$978,580 figure in the August 5, 1993, verified statement to the Department of Citrus related to monies owed by the Respondent to the Petitioner. (Petitioner's Exhibit 1) There is testimony from the Respondent's own representative in the record to support that finding. (T 131) This finding cannot, therefore, be overturned.
Respondent further objects that the hearing officer's finding of fact regarding gelling of
the grapefruit concentrate was based upon comments made off the record and that the evidence did not support the conclusion that the gelled concentrate was not sellable in that condition. It appears from a fair reading of the transcript that the testimony regarding the gelling was made in response to questioning from the hearing officer and were in fact made on the record. There was at least one incident where the Petitioner could not sell the gelled concentrate. (T 597-599) The finding of fact was that the grapefruit concentrate "could not be resold" ; this is not the same as saying it was not resalable under any circumstance. Here again there was sufficient evidence to support the finding.
Respondent, in its exception to the hearing officer's conclusion of law at paragraph 36, states that the settlement agreement found enforceable by the hearing officer (Petitioner's Exhibit
was not before the hearing officer because it was not mentioned in the Petitioners' s complaint.
The agreement does not abhor the basic transaction which formed the basis of Petitioner's complaint nor does it form the basis for a new cause of action different from that which was pled in Petitioner's complaint. The letter agreement was altogether consistent with the Petitioner's claim and was evidentiary in effect. Administrative pleading should not be overly technical to the point of thwarting the due presentation of a claim under the citrus code.
Paragraphs 16-18 of Respondent's exceptions take issue with the hearing officer's conclusions of law contained in paragraphs 39-41. These exceptions essentially contend that Respondent returned some of the product which it purchased from Petitioner in an "improved" condition. That is, Respondent purchased fresh fruit from Petitioner, processed it into concentrate, and then returned it. Petitioner then sold the concentrate for a price higher than it could have sold the fresh fruit which was originally delivered. Respondent claims that it
should be entitled to a credit for the increase in value which was a result of its labor.
In calculating the credit due the Respondent, the hearing officer used the price of $.83 per pound-solids, which appears to be the price for fresh fruit--not concentrate. The Petitioner offered into evidence the checks received for the sale of the returned juice concentrate and a summary of the pound solids sold of each fruit concentrate and the price paid per pound solids. (T 578-580) (Petitioner's Exhibit 11) The price per pound solids for the concentrate was
$1.27, not $. 83; this is reflected by the Petitioner's own document. The hearing officer appears to have concluded as a matter of law that the Petitioner was not accountable to the Respondent for any profit made on resale.1 This conclusion would allow the Petitioner to be unjustly enriched by the labor of the Respondent even though Respondent was the defaulting party. Principles of equity, including the prevention of unjust enrichment, are embraced in the Uniform Commercial Code. §671.103, Fla. Stat.; 67A Am Jur 2d, Sales, 1113. Accordingly, Respondent's exception on this matter is well taken.
The conclusion of law that Respondent is entitled. to a credit of only $440,464.77 is rejected. The Respondent is entitled to the credit as shown on Petitioner's Exhibit 11, i.e.,
$636,436.02, less the broker's commission of$ 5,011.30, for a total credit of $631,424.72.
Finally, the Respondent objects that certain information requested by the hearing officer at the close of the hearing was not submitted regarding the price of sellable grapefruit concentrate. Apparently this additional information was never filed by either party. There being
Although the hearing officer give no grounds for his ruling that the $.83 applies to the returned juice concentrate, Petitioner in its Memorandum of Law in Support of Petitioner's Proposed Conclusions of Law, Findings of Fact, and Damages argues that Section 672.706(6) of the Uniform Commercial Code does not require the seller to account to the buyer for profit on the sale of returned goods; however, this provision of the code does not speak to returned good that have been improved by the labor of the defaulting buyer.
no additional information filed of record, there is nothing for the Department to consider. There has to be an end to the administrative process and the record. If the parties needed the information, ample time and opportunity was available to submit it. There is no competent substantial evidence upon which to base a finding as to the value of the returned grapefruit concentrate. The hearing officer making none, there is nothing to overrule.
Based upon the consideration of the foregoing and being otherwise fully advised in the premises, it is
ORDERED AND ADJUDGED as follows:
The hearing officer's Findings of Fact are adopted m their entirety as the Department's Findings of Fact.
The hearing officer's Conclusions of Law contained in paragraphs 39, 40, and 41 are modified as follows:
Respondent is entitled to an offset for 501,130.73 pound solids of orange juice concentrate at $1.27, for a total of $636,436.02.
The balance due and owing Petitioner from Respondent resulting from the Respondent's failure to comply with the agreement of the parties is $342,143.98.
In addition Petitioner is entitled to the brokerage costs of $5,011.30, which were reasonably incurred as a result of Respondent's breach of contract, for a total balance due to Petitioner of $347,155.28.
All other Conclusions of Law as set forth in the Recommended Order are adopted as the Department's Conclusions of Law.
Respondent shall pay Petitioner $347,155.28 within 30 days of the filing of this Final
Order.
Should Respondent fail to timely pay such sum, demand for payment shall be made
upon Ohio Casualty Insurance Company, the surety underwriting Respondent's bond, and any
other security filed with the Department. Proceeds therefrom to be held for distribution pursuant to the provisions of Florida law.
Any party to these proceedings adversely affected by this Final Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a petition or notice of appeal with the Clerk, 515 Mayo Building, Tallahassee, FL 32399-0800, and a copy of the same with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order.
DONE AND ORDERED this '.2. I day of , 1995.
µ.
nn H. Wainwright Assistant Commissioner
FILED with the Clerk, this 21 day of , 1995.
Copies furnished to:
Timothy G. Hayes, Esq.
21859 State Road 54, Suite 200
Lutz, Florida 33549
Eric S. Mashburn, Esq.
P.O. Box 771277
Winter Garden, Florida 34777-12777
Brenda Hyatt, Chief
Bureau of License and Bond
Department of Agriculture and Consumer Services Tallahassee, Florida
C:IBW\FV\FO-NEWBR.3
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
NEWBERN GROVES, INC., )
)
vs.
Petitioner,
)
)
) CASE NO. 94-6775AC
)
INTER-FLORIDANA, INC., )
)
Respondent, )
)
and )
)
OHIO CASUALTY INSURANCE COMPANY, )
)
Co-Respondent. )
)
)
RECOMMENDED ORDER
On May 10 and 11, 1994 a final hearing was held in this case in Winter Haven, Florida before Robert R. Crittenden, Hearing Officer, assigned by the Department of Agriculture and Consumer Services. Subsequent to final hearing, the case was transferred by the Department of Agriculture an Consumer Services to the Division of Administrative Hearings on December 2, 1994, and thereafter assigned to Richard Hixson, Hearing Officer.
APPEARANCES
For Petitioner: Timothy G. Hayes, Esquire
21859 State Road 54, Suite 200
Lutz, Florida 33549
For Respondent: Eric s. Mashburn, Esquire
Post Office Box 771277 Winter Garden, FL 34777-1277
For Co-Respondent: None
STATEMENT OF THE ISSUES
The issues in this case are whether, and to what extent, the Respondent, a licensed citrus fruit dealer, is liable to the
Petitioner for damages resulting from the purchase, handling, sale, and accounting of purchases and sales occurring during the 1992-1993 growing season, and further whether the Co-Respondent, Surety Company, is therefore liable on the citrus fruit dealer's bond issued to the Respondent.
PRELIMINARY STATEMENT
On June 25, 1993, Petitioner, Newbern Groves, Inc., filed a formal complaint with the Department of Agriculture and Consumer Services alleging that Respondent, Inter-Floridana, Inc., a licensed citrus fruit dealer in Florida under section 601.66, Florida Statutes, with a bond of $24,000 issued by Co-Respondent, Ohio Casualty Insurance Company, had purchased citrus fruit during the 1992-1993 shipping season in the amount of
$988,850.00, for which $798,850 remained due and owing to Petitioner. The complaint alleged that Petitioner had sold to Respondent:
17,930 boxes of grapefruit weighing approximately 900,27.76 lbs. at $1.15 lb.
166,431 boxes of oranges weighing approximately 1,158,062.11 lbs.0.68 lb.
5,815 boxes of grapefruit weighing approximately 15,920.97 lbs at $0.55 lb., and
15,737 boxes of oranges weighing approximately 111,349 lbs at $0.80 lb.
The complaint further alleged that the total purchase price of the citrus fruit sold to Respondent was $988,850 of which the Respondent had remitted $190,000 leaving a balance of $798,850
due to Petitioner. The formal complaint was signed by Peter S. Kemp, Secretary and Treasurer for Newbern Groves. On June 28, 1993, an affidavit signed by Peter S. Kemp and C. D. Newbern was executed stating that beginning in May of 1992 and continuing until March of 1993 verbal agreements had been entered into between the Petitioner and the Respondent pertaining to the sale of citrus fruit.
On July 19, 1993, Respondent filed a verified answer denying the allegations of the formal complaint. The answer was signed by Jacques Bobbe, President, on behalf of the Respondent.
Attached to the verified answer was an "Exhibit A'' also signed by Jacques Bobbe stating that Petitioner sold no fruit to Respondent, that Respondent processed fruit and stored the product for Petitioner, and that Petitioner owed Respondent
$442,133.21 for various services in connection with the processing and storage of Petitioner's fruit.
The Co-Respondent, Ohio Casualty Insurance Company, did not file an answer to the complaint.
The Department of Agriculture and Consumer Services assigned this case to the Department's hearing officer, Robert R. Crittenden, who entered an Initial Order on July 29, 1993, directing the parties to comply with various procedural requirements prior to hearing. On August 10, 1993, by order of Hearing Officer Crittenden, final hearing was set for November 5, 1993.
On November 5, 1993, a hearing was held. At that time counsel for Respondent requested a continuance. A separate
appearance was entered on behalf of the Co-Respondent. The parties also submitted a stipulation to the hearing officer stating that the total citrus pound solids involved in this
matter is 1,375,359.98.
1,261,323.38
8,087.87
63,426.55
42,522.18
The breakdown of which is:
pound solids of orange juice pound solids of mandarin pound solids of white
grapefruit juice
pound solids of red grapefruit juice
In addition the parties stipulated that Respondent would provide Petitioner with an accounting of the product sold within thirty days, and a detailed statement of the various processing and storage charges Respondent claimed were due from Petitioner. The parties at that time indicated to the hearing officer that upon proper accounting being received, this matter could thereafter be settled or otherwise resolved by arbitration.
In accordance with the request for continuance and the stipulation of the parties, the hearing officer continued the final hearing.
Although on January 13, 1994, Respondent filed a pleading entitled a Notice of Compliance with the Stipulation, it does not appear from the record that the representations of counsel regarding settlement of the case, or referral to arbitration were pursued, and, accordingly, the hearing officer by order dated February 25, 1994 rescheduled the case for pre-trial conference on April 18, 1994, and final hearing for May 10, 1994, in Winter Haven, Florida.
Final hearing was conducted by Hearing Officer Crittenden on May 10 and 11, 1994. Thereafter a transcript of the proceeding
4
was filed and the Petitioner filed proposed findings of fact and conclusions of law on August 1, 1994. Respondent filed proposed findings of fact and conclusions of law on September 6, 1994.
On December 2, 1994, the Department of Agriculture and Consumer Services referred this case to the Division of Administrative Hearings for assignment of a hearing officer. On December 7, 1994, an Initial Order was entered requiring the parties to submit preliminary responses to the Division regarding further proceedings in this case.
On January 9, 1995, Petitioner filed a Response to Initial Order requesting that the Division of Administrative Hearings conduct no further proceedings, and enter a recommended order based on the transcript and record previously filed. The Respondent did not file any document in response to the Initial Order, or otherwise appear before the Division of Administrative Hearings. Accordingly, in light of the response and request of the Petitioner, and without objection being filed by Respondent, this recommended order is prepared based on the transcript and record filed in this case with the Division of Administrative Hearings.
FINDINGS OF FACT.
Petitioner, Newbern Groves Inc., is a Florida corporation engaged in the business of producing, buying, and selling citrus fruit. Petitioner's business address is in Tampa, Florida.
Newbern Groves, Inc. was founded in 1947 by Copeland Newbern, who at all relevant times in this case served as Chairman of the Board of Directors.
5
The President of Newbern Groves, Inc., is John Shepard. The Secretary-Treasurer of Newbern Groves, Inc., is Peter Skemp.
At all relevant times, Respondent, Inter-Floridana, Inc., (full name, Inter-Floridana Imports and Exports, Inc.) was a citrus fruit dealer, licensed by the State of Florida during the 1992-1993 growing season. Respondent's business address was Brooksville, Florida, where Respondent operated a processing plant. The 1992-1993 growing season was the first year Respondent operated this processing plant. Respondent also maintained offices and warehouses in Orange County, Florida. In addition to its citrus fruit business, Respondent corporation also engaged in other business enterprises including blending other fruit drinks, processing tomato juice concentrate, and the sale of imported beer.
At all relevant times, Jacques Bobbe was President and Chief Executive Officer of Inter-Floridana, Inc. At all relevant times, Larry Cail was the manager of the Respondent's processing plant in Brooksville, Florida.
Beginning in May of 1992, Jacques Bobbe, on behalf of Inter-Floridana, and Peter Skemp and Copeland Newbern, on behalf of Newbern Groves, entered into discussions relating to Newbern"s supplying Inter-Floridana with citrus fruit for the Inter Floridana plant in Brooksville, Florida. Prior to this time the parties had not met, and there was no established course of business dealings between the parties. Specific meetings between the parties took place on July 30, 1992 in Brooksville; September 2, 1992 in Tampa; September 17, 1992 in Tampa; September 29, 1992 in Orlando; and November 25, 1992 in Tampa.
6
The discussions conducted by the parties generally related to Newbern supplying Inter-Floridana with 1,500,000 boxes of citrus fruit which would accommodate the capacity of Inter Floridana's Brooksville plant. The parties also generally discussed prices of various citrus fruit. There is no written documentation of the parties' negotiations. It is common practice in the citrus fruit industry to purchase and sell citrus fruit without written contracts.
On November 3, 1992, Newbern delivered its first shipment of citrus fruit to Inter-Floridana's Brooksville plant. The shipment was delivered pursuant to Inter-Floridana's request to conduct a test-run of the processing plant's production capability. In December of 1992, Larry Cail of Inter-Floridana specifically requested grapefruit be delivered from Newbern. At that time Newbern was selling grapefruit to Chapman Fruit Company at $1.15 a pound.
Thereafter Newbern continued to deliver citrus fruit shipments to Inter-Floridana's Brooksville plant on a regular basis until April 14, 1993. Inter-Floridana accepted the deliveries of citrus fruit from Newbern.
The total pounds solids of Newbern fruit delivered to Inter-Floridana was 1,375,359.98, consisting of:
1,261,323.38 pound solids of orange juice 8,087.87 pound solids of mandarin
63,426.55 pound solids of white grapefruit juice 42,522.18 pound solids of red grapefruit juice.
Beginning in December of 1992 Newbern representatives Peter Skemp and Copeland Newbern demanded payment for the fruit
7
delivered to the Inter-Floridana plant in Brooksville. The customary practice in the citrus fruit business is payment is due one week after delivery. In this case, however, Newbern had agreed to a two-week after delivery payment.
The price of the citrus fruit was to be calculated on the cost to Newbern of obtaining the fruit from the growers plus
.05 for Newbern's expenses in making the deliveries to Inter Floridana.
On February 26, 1993, Inter-Floridana made its first payment to Newbern in the amount of $80,000. Thereafter Inter Floridana made three more payments of $40,000, $40,000, and
$30,000. The final payment from Inter-Floridana was made on April 1, 1993.
After the April 1, 1993 payment, representatives of Newbern continued to demand payment from Inter-Floridana. No further payments were received, and Newbern ceased delivery of citrus fruit to Inter-Floridana on April 14, 1993.
On May 12, 1993 the parties met in Brooksville, Florida. At this meeting Jacques Bobbe informed Peter Skemp and Copeland Newbern that Inter-Floridana's position was that Inter-Floridana was not purchasing citrus fruit from Newbern, but processing the citrus fruit for Newbern, and accordingly, Newbern owed Inter Floridana approximately $400,000 for the costs of production, which was documented in a letter from Inter-Floridana to Newbern on May 14, 1993. At hearing on May 10, 1994, Jacques Bobbe testified that Inter-Floridana retracted its previous position, and did purchase citrus fruit from Newbern during the 1992-1993 growing season.
On May 24, 1993, Copeland Newbern sent a letter to Jacques Bobbe demanding payment of $789,374.01 based on the Florida Citrus Mutual citrus statistics for the citrus fruit at that time, plus .05 for Newbern's services.
On June 1, 1993, Jacques Bobbe sent a letter to Copeland Newbern requesting additional information regarding the calculation of the payment demanded from Newbern.
On June 23, 1993, Copeland Newbern sent a certified letter to Jacques Bobbe detailing the problems associated with this transaction, and requesting assistance in resolving the matter in a timely manner.
On June 25, 1993, Newbern filed the formal complaint against Inter-Floridana with the Department of Agriculture and Consumer Services which is the basis for this proceeding.
Representatives of the parties met again on July 8, 1993; and on July 9, 1993, Jacques Bobbe sent a letter to John Shepard offering to resolve this matter as follows: Inter Floridana would sell the frozen concentrated orange juice at
$1.29 per pound solid; Newbern would receive $.83 per pound solid; Inter-Floridana would receive $.29 for packing and $.17 profit per pound solid. If the product sold for more than $1.29 per pound solid, the parties would divide the excess profit equally.
On July 16, 1993, John Shepard, as President of Newbern Groves Inc., wrote to Jacques Bobbe and accepted this agreement.
On July 19, 1993, Inter-Floridana filed its answer to the formal complaint filed by Newbern. The answer was verified
by Jacques Bobbe. The answer denied that Inter-Floridana purchased citrus fruit from Newbern, and further claimed Newbern owed Inter-Floridana $442,133.21 for various services in connection with the processing and storage of the Newbern fruit. As set forth above, this position was subsequently retracted, and Inter-Floridana acknowledged the purchase of citrus fruit from Newbern.
On August 5, 1993, Jacques Bobbe, on behalf of Inter Floridana, filed a verified statement with the Department of Citrus attesting that Inter-Floridana did not purchase any fruit during the 1992-1993 growing season. The verified statement further attested that Inter-Floridana processed fruit for Newbern, and that Inter-Floridana had accounts payable of
$978,580, and accounts receivable of $489,378.83. The accounts payable represented funds owed by Inter-Floridana to Newbern, and the accounts receivable consisted of the various production charges from Newbern as claimed by Inter-Floridana.
On August 26, 1993, Newbern received an accounting from Inter-Floridana showing 500,651.26 pound solids of orange juice, 2,512.02 pound solids of mandarin, 39,809 pound solids of white grapefruit, and 11,602.50 pound solids of red grapefruit. This balance was substantially less than the amount delivered to Inter-Floridana.
Unbeknown to Newbern, in February of 1993, Inter Floridana had sold a substantial portion of the Newbern product to Windsor-Premium (Premium), a European business concern that Jacques Bobbe had been negotiating with since February of 1992.
On February 26, 1993 Premium paid Inter-Floridana
$807,825.29 for the product. This sale was the first part of a proposed ongoing transaction between Premium and Inter-Floridana to market citrus products in Europe. The proposed transaction would have been approximately $2 million; however, Premium did not complete 'the transaction with Inter-Floridana, and Premium eventually filed for bankruptcy in the United States District Court for the Southern District of Florida.
The four payments totalling $190,000 that Inter Floridana made to Newbern were derived from the proceeds of the sale to Premium.
On October 1, 1993 Inter-Floridana sent a letter to John Shepard informing Newbern that of 1,375,359.57 pound solids, 848,558.76 had been sold.
Thereafter in October of 1993, Inter-Floridana returned to Newbern 501,130.73 pound solids of orange, 18,018.92 pound solids of white grapefruit, and 11,614.39 pound solids of pink grapefruit.
Newbern resold the returned orange citrus product to Indian River Fruits by means of a citrus broker, Merrill Lynch, which received a brokerage fee of $5,011.30.
Some of the grapefruit citrus product had gelled and could not be resold.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction in this case. Sections 120.57 and 601.65, Florida Statutes.
During the 1992-1993 growing season Petitioner and Respondent entered into an enforceable oral agreement whereby the Respondent agreed to purchase citrus fruit from Petitioner. Petitioner filed a timely complaint with the Department of Agriculture and Consumer Services seeking enforcement of the agreement and distribution of the bond issued by Co-Respondent. Section 601.66, Florida Statutes.
Petitioner complied with the terms of the agreement and supplied Respondent with citrus fruit totalling 1,375,359.98 pound solids during the 1992-1993 growing season.
Respondent did not comply with the terms of the agreement in that Respondent failed to pay Petitioner for all citrus fruit delivered during the 1992-1993 growing season, and further failed to provide Petitioner with an appropriate accounting of the purchases and sales of the citrus fruit.
On July 9, 1993, the Respondent offered, and on July 16,1993, the Petitioner accepted, an enforceable written agreement setting out prices and profits between the parties for the sale of the citrus fruit.
On August 5, 1993, Respondent filed a verified statement with the Department of Citrus recognizing and attesting to accounts payable to Petitioner in the amount of $978,580. Respondent"s President acknowledged that this verified representation to the Department of Citrus reflected and confirmed prices of $.83 for oranges, and $1.15 and $.55 for grapefruit purchased from Petitioner, which based upon the evidence, accurately represents the prices agreed upon by the parties.
Petitioner is entitled to the $978,580 as evidenced by the Respondent's verified statement to the Department of Citrus of the amount owed to Petitioner as of August 5, 1993, less the value of the citrus product thereafter returned to Petitioner in October of 1993.
Applying the prices agreed upon by the parties, as evidenced by the record, to the citrus product returned to Petitioner, Respondent is entitled to an offset for 501,130.73 pound solids of orange at $.83, 15,920.97 pound solids of grapefruit at $1.15, and 13,712.33 pound solids of grapefruit at
$.55, for a total offset of $440,464.77.
The balance due and owing Petitioner from Respondent resulting from the Respondent's failure to comply with the agreement of the parties is $538,115.23.
In addition Petitioner is entitled to the brokerage costs of $5,011.30 which were reasonably incurred as a result of Respondent's breach of contract, for a total balance due Petitioner of $543,126.53.
The citrus fruit dealer's bond issued by Co-Respondent, Ohio Casualty Insurance Company, to Respondent in the amount of
$24,000 is amenable and applicable to the satisfaction of the claim of the Petitioner. Section 601.65, Florida Statutes.
Based on the foregoing, it is, hereby, RECOMMENDED:
That the Department of Agriculture and Consumer Services enter a final order adjudicating that the amount of indebtedness
owed to the Petitioner from Respondent is $543,126.53, that the Respondent shall have thirty (30) days in which to satisfy such indebtedness, and upon failure of the Respondent to satisfy such indebtedness, the citrus fruit dealer's bond in the amount of
$24,000 shall be distributed to Petitioner.
DONE AND RECOMMENDED this
13 day of February, 1995, in
Tallahassee, Leon County, Florida.
_dd(
RICHARD HIXSON
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 /.:J,'f-1'. day of February, 1995.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6775AC
Petitioner's proposed findings of fact.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted in part. Respondent acknowledged discussion of prices for the citrus fruit.
Accepted in part. Respondent acknowledged an indebtedness of $978,580.
Accepted.
Accepted.
Rejected as not supported by the evidence. Respondent's proposed findings of fact.
Accepted.
Accepted.
3 • Accepted.
4. Rejected as not supported by the evidence. 5 • Rejected as not supported by the evidence. 6 . Rejected as not supported by the evidence. 7• Accepted.
Rejected in part.
Rejected as to the frozen concentrated orange juice, accepted as to grapefruit.
Rejected as irrelevant.
Rejected as not supported by the evidence.
Rejected as not supported by the evidence.
Rejected as not supported by the evidence.
Rejected as not supported by the evidence.
COPIES FURNISHED:
Timothy G. Hayes, Esquire 21859 State Road 54, Suite 200
Lutz, Florida 33549
Eric S. Mashburn, Esquire Post Office Box 771277 Winter Garden, FL 34777-1277
The Honorable Bob Crawford Department of Agriculture and
Consumer Services The Capitol, PL-10
Tallahassee, Florida 32399-0810
Richard Tritschler, General Counsel Department of Agriculture and
Consumer Services The Capitol, PL-10
Tallahassee, Florida 32399-0810
Brenda Hyatt, Chief
Bureau of Licensing & Bond Department of Agriculture
508 Mayo Building
Tallahassee, Florida 32399-0800
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.
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| Issue Date | Proceedings |
|---|---|
| Jun. 01, 2009 | Final Order filed. |
| Aug. 03, 1995 | Final Order filed. |
| Mar. 20, 1995 | Petitioner`s Response to Respondent`s Exceptions to and Motion to Set Aside Hearing Officer`s Recommended Order filed. |
| Mar. 02, 1995 | Respondent`s Exceptions to and Motion to Set Aside Hearing Officer`s Recommended Order w/cover letter filed. |
| Feb. 13, 1995 | Recommended Order sent out. CASE CLOSED. Hearing held 12/02/94. |
| Jan. 17, 1995 | (Petitioner) Response to Initial Order; Cover Letter filed. |
| Dec. 07, 1994 | Initial Order issued. |
| Dec. 02, 1994 | (Respondent) Motion for Extension of Time to File Written Closing Arguments; Respondent`s Response to Petitioner`s Supplement to Record filed. |
| Dec. 02, 1994 | Reply of Petitioner; Motion for Extension of Time to File Response Memorandum; Respondent`s Memorandum; Memorandum of Law in Support of Petitioner`s Proposed Conclusions of Law, Findings of Fact, and Damages; Petitioner`s Proposed Conclusions of Law, Find |
| Dec. 02, 1994 | Citrus Fruit Dealer`s License; Citrus Fruit Dealer`s Bond; Increase Rider for Citrus Fruit Dealer`s Bond; Hearing Transcript & Exhibits of May 10 & 11, 1994; Petitioner`s Supplement to Record; Respondent`s Supplement to Record; Respondent`s Proposed Findi |
| Dec. 02, 1994 | Notice of Compliance With Stipulation; (Respondent) Response to Orderof December 17, 1993; (Petitioner) Response; (Agency) Order (of 12/17/93); Stipulation Hearing Transcript of 11/5/93; Order Setting Final Hearing; Initial Order; Answer of Respondent; A |
| Dec. 02, 1994 | Agency referral letter; Respondent's Trial Brief; (Petitioner) Noticeof Taking Deposition; Transcript of Hearing of 4/18/94; (Respondent) Notice of Taking Deposition (6); Notice of Pre-Trial Conference and Final Hearing; Response; Respondents' Response t |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 21, 1995 | Agency Final Order | |
| Apr. 21, 1995 | Agency Final Order | |
| Feb. 13, 1995 | Recommended Order | Citrus fruit dealer failed to properly pay or account for fruit bond surety is liable on bond. |
