STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LANIER RANCH & GROVE, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-1718

) WHIDDEN CITRUS & PACKINGHOUSE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled case was held in Lakeland, Florida, on June 22, 1995, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: W. Ralph Durrance, Jr.

Post Office Box 5647

Lakeland, Florida 33807-5647

For Respondent: Gary Whidden

Whidden Citrus & Packinghouse, Inc.

396 Country Road 630A Frostproof, Florida 33843

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent owes Petitioner money on a citrus contract and, if so, how much.

PRELIMINARY STATEMENT

By Complaint filed January 6, 1995, Petitioner alleged that Respondent owed it $15,000 for fruit that Respondent contracted to purchase and did not.

Petitioner later amended the claim to $17,412 by document filed February 6, 1995.

By Answer filed February 28, 1995, Respondent denied the allegations.

At the hearing, Petitioner called three witnesses and offered into evidence

10 exhibits, which were all admitted. Respondent called one witness and offered into evidence no exhibits.

No transcript was ordered, and or proposed recommended orders were filed.

FINDINGS OF FACT

1. Petitioner owns citrus groves in Wauchula and one is near Zolfo Springs. Due to its proximity to a homesite, the latter grove is called the homeplace grove.

   
   

2. Respondent operates a citrus packinghouse and a small retail outlet for citrus.

   
   

3. On October 7, 1994, Petitioner and Respondent entered into a contract under which Petitioner agreed to sell to Respondent naval oranges at the price of $6 per box on the tree. Petitioner insisted on the contract and supplied the form.

   
   

4. The contract states that the fruit "will be picked by Dec. 20, 1994." This is handwritten in the blank space for quantity of fruit. Elsewhere the contract provides a space for a completion date for picking, but this space is left blank. The contract adds: "However, notwithstanding the foregoing provision, Buyer, at its sole discretion[,] shall determine the dates and times for accomplishing the picking, loading, or hauling of said fruit."

   
   

5. The contract notes that there are an estimated 3000 boxes at the Wauchula grove and an estimated 500 boxes at the homeplace grove. The contract states:

   
   

   Buyer shall only be required hereunder to accept delivery of the estimated quantity of fruit set forth herein; however, Buyer may, at its sole option, elect to accept delivery of all fruit grown or being grown at the grove locations described above at the prices specified herein.

   
   

6. After signing the contract, the price of navel oranges dropped considerably. Also, Respondent had been relying on a third party to purchase much of the fruit from him, but the third party did not do so.

   
   

7. Through December 9, 1994, Respondent took delivery on 1662 boxes of navel oranges. Petitioner picked the first 820 boxes, for which Respondent paid an additional, agreed-upon $2 per box. Respondent picked the remainder of the 1662 boxes, for which Respondent paid $11,612, pursuant to the contract.

   
   

8. Petitioner became increasingly concerned with Respondent's slow progress. They agreed to reduce the price to $5 per box for 60 boxes picked on December 13, 1994, and then $4 per box for 360 boxes picked after the December

   20 picking date stated in the contract. Pursuant to their new agreement, Respondent paid $300 for the 60 boxes picked on December 13, 1994, and $1440 for the remaining 360 boxes picked between December 27, 1994, and January 11, 1995.

   
   

9. Believing that Respondent was obligated to take the entire output from the two groves, which proved to be a total of 4232 boxes, Petitioner's principal concluded that Respondent could not meet its contractual obligations. Without notice to Respondent, Petitioner agreed with Mt. Dora Growers Cooperative to pick the remaining fruit. The growers coop picked 920 boxes on January 11, 1995, 900 boxes on January 12, 1995, and 330 boxes on January 16, 1995. For a total of 2150 boxes, the growers coop paid Petitioner $498.84, or $0.23 per box.

10. Petitioner had better luck with the homeplace oranges. By contract dated January 24, 1995, again without notice to Respondent, Petitioner sold 500 boxes of navel oranges to Keith Watson, Inc. for $2 per box.

    
    

11. Respondent took delivery of 1220 boxes in October, 122 boxes in November, 320 boxes through December 9, 380 boxes at reduced prices for the rest of December, and 40 boxes in the first 11 days of January.

    
    

12. This declining trend suggests problems. However, this fact alone does not prove an anticipatory breach by Respondent. Nothing in the record establishes Respondent's intent to repudiate the contract.

    
    

13. There was still time for Respondent or, more likely, a third party to pick the remaining boxes for which Respondent was liable (1418). The growers coop removed 1820 boxes in two days. Also, the price and urgency of the growers coop sale are undermined by the sale two weeks later of 500 boxes at $2 per box.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Sections 120.57(1) and 601.66, Florida Statutes.

    
    

15. Petitioner has the burden of proving Respondent's liability for the payment of money. Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

    
    

16. The contract, which was supplied by Petitioner, did not obligate Respondent to purchase more than 3500 boxes of navel oranges. The more compelling interpretation of the contract is that it did not impose a deadline by which Respondent had to pick the oranges. In any event, any ambiguity on this point would be resolved against Petitioner. In an attempt to accelerate Respondent's performance, Petitioner agreed to a reduction in price for 420 boxes that Respondent picked in late December and early January. But Petitioner has not proved an actual or anticipatory breach of the contract by Respondent.

    
    

17. Because Respondent never breached or repudiated the contract, it is unnecessary to consider the issues of notice and reasonableness arising in Petitioner's resale of the fruit for which it claimed Respondent remained liable. See Section 672.706, Florida Statutes.

RECOMMENDATION

It is

RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing the complaint.

ENTERED on July 7, 1995, in Tallahassee, Florida.

ROBERT E. MEALE

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 on July 7, 1995.

COPIES FURNISHED:

W. Ralph Durrance, Jr.

P.O. Box 5647

Lakeland, FL 33807-5647

Gary Whidden

Whidden Citrus & Packinghouse, Inc.

396 Country Road 630A Frostproof, FL 33843

Florida Farm Bureau General Insurance Company

P.O. Box 147030 Gainesville, FL 32614-7030

Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810

Richard Tritschler, General Counsel Department of Agriculture

The Capitol, PL-10 Tallahassee, FL 32399-0810

Brenda Hyatt, Chief

Bureau of Licensing and Bond Department of Agriculture

508 Mayo Building Tallahassee, FL 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.

Docket for Case No: 95-001718

Orders for Case No: 95-001718