Upon due notice, this cause came on for formal hearing on February 20, 1997, in Leesburg, Florida, before Ella Jane P. Davis, a duly assigned Administrative Law Judge of the Division of Administrative Hearings.
Arthur C. Fulmer, Esquire Post Office Box 2958 Lakeland, Florida 33806
Is Petitioner entitled to all or part of $12,732.61 he claims as a result of eight loads of watermelons brokered by Respondent Sunny Fresh Citrus Export & Sales Company between June 17, 1996 and June 21, 1996?
The complaint in this cause was filed with the Florida Department of Agriculture on October 8, 1996. It was referred to the Division of Administrative Hearings on November 8, 1996.
At formal hearing on February 20, 1997, Petitioner Bass testified on his own behalf and had thirteen exhibits admitted in evidence.
At the close of Petitioner's case-in-chief, Respondent Sunny Fresh moved for a directed verdict. This motion was treated as a motion for summary recommended order and was taken under advisement for resolution as part of this recommended order.
Respondent Sunny Fresh presented the oral testimony of Kelly Marinaro, Jean Marinaro, and Bill Ward and had eight exhibits admitted in evidence. Two other identified Sunny Fresh exhibits were withdrawn.
Respondent American Bankers Insurance Company of Florida did not appear at formal hearing.
No transcript was prepared. Petitioner Bass and Respondent Sunny Fresh timely filed proposed recommended orders which have been considered in the preparation of this recommended order.
Petitioner is a grower of watermelons and qualifies as a "producer" under Section 604.15(5), Florida Statutes.
Respondent Kelly Marinaro d/b/a Sunny Fresh Citrus Export & Sales Company is a broker-shipper of watermelons and qualifies as a "dealer" under Section 604.15(1), Florida Statutes.
Respondent American Bankers Insurance Company of Florida is surety for Respondent Sunny Fresh.
Petitioner's father had long done business with Kelly Marinaro's father, Frank Marinaro, before each father's retirement. Upon what basis the fathers traded is not clear on the record.
Petitioner approached Kelly Marinaro d/b/a Sunny Fresh on three occasions with written proposals, two of which involved some front money being put up by Kelly Marinaro to help Petitioner grow and sell watermelons. One proposal suggested a standard broker's fee to be taken off loads. In each instance, Kelly Marinaro rejected the proposals, explaining that he was not a grower or a buyer but only "brokered" melons other people grew.
On or about June 15, 1996, Petitioner telephoned and requested that Kelly Marinaro d/b/a Sunny Fresh assist him in the sale of watermelons he had already grown on a 40 acre field near Wildwood, Florida.
Earlier in the 1996 watermelon season, Carr Hussey had
taken two loads of melons from Petitioner's field. Hussey had advanced Petitioner $3,000 for harvesting of the melons.
Although Petitioner claimed that Mr. Hussey bought his melons in the field, he also conceded that the melons he sold Mr. Hussey did not net that amount when sold to the ultimate purchaser, and therefore, neither Mr. Hussey nor Petitioner made any profit on those two loads. Mr. Hussey did not require reimbursement of the
$3,000 he had advanced and proposed that Petitioner and he "work it out" the following season. However, Mr. Hussey took no more loads of Petitioner's melons and "went off to Georgia." This left Petitioner in need of some immediate help in selling his remaining melons.
In the June 15, 1996 phone call, Kelly Marinaro d/b/a Sunny Fresh agreed to "broker" Petitioner's remaining watermelons to ultimate buyers in the north and northeast United States whom Marinaro lined up by telephone before shipping the melons. That is, he agreed to use his best efforts to sell the watermelons on Petitioner's behalf to ultimate consumers, charging Petitioner one cent per pound or $1.00 per hundred weight sales charge.
The parties' arrangement depended upon the sale of the watermelons and the price actually paid at the ultimate destination, rather than the price the watermelons ideally could be sold for on the day they left Petitioner's field.
The parties' agreement by telephone was not reduced to writing, but Findings of Fact 8 and 9 are made contrary to
Petitioner's assertion that "they (Sunny Fresh) inspected; they bought the melons as is" for the following reasons. Kelly Marinaro had previously rejected any different risk for his company than selling the melons at the ultimate destination. He produced a written notation he had made contemporaneously with his telephone negotiation with Petitioner. Despite Petitioner's vague testimony to the contrary, it appears that Petitioner had had arrangements with other brokers in the past whereby he knew no profit would be made if the melons did not arrive in good condition, and he should have been aware that the actual sale price received at the point of delivery was the standard of doing business. Petitioner did not dispute that the sales charge was to be deducted by Kelly Marinaro from the ultimate price obtained. This is consistent with a dealer selling on behalf of a grower at the ultimate destination. Petitioner relied on prices given in the standard "Watermelon Reports" as F.O.B. (F.O.B. usually signifies delivery at a certain price at the seller's expense to some location.) I also find that the parties agreed to the price of the melons being based upon the amount they netted at the melons' ultimate destination for the reasons set out in Findings of Fact 13 and 16-21.
Frank Marinaro, the father of Kelly Marinaro, is retired and regularly resides outside the State of Florida. He is unable to drive himself due to age and infirmity. He has a hired driver named James Hensley. The senior Mr. Marinaro is not
a principal or employee of Sunny Fresh, but he likes to visit his son and his old cronies in Florida's watermelon belt during the growing season, for old times' sake. He was visiting his son in June, 1996.
Kelly Marinaro arranged for Frank Marinaro to be driven by Mr. Hensley to Wildwood. Kelly Marinaro then transferred
$6,300 of Sunny Fresh's money to a Wildwood bank where it was withdrawn in cash by Frank Marinaro. Frank Marinaro, driven by Mr. Hensley, then delivered the cash in three incremental payments authorized by Kelly Marinaro to Petitioner to pre-pay Petitioner's harvesting costs. The senior Mr. Marinaro also helped with the incidental duties of meeting trucks at the Wildwood weighing station or local truck stops and directing them to Petitioner's farm. He was not paid by Sunny Fresh or by Petitioner for these services.
Petitioner testified that Frank Marinaro was present in his field for the loading of several truckloads of melons on different days, that he cut open some melons in the field and pronounced them "good" after sampling them, and that Frank Marinaro asked Petitioner to pay Mr. Hensley $50.00 for helping around the field and with physically loading some melons while they were there. This testimony is not evidence of Frank Marinaro's "apparent agency" to engage in the more complicated and technical process of "grading" watermelons on behalf of Sunny Fresh. These activities of Frank Marinaro did not alter
Petitioner's agreement with Kelly Marinaro on behalf of Sunny Fresh so that Frank Marinaro's and James Hensley's actions constituted a direct sale to Sunny Fresh of all the melons loaded at Petitioner's farm (the point of embarkation) because both Petitioner and Kelly Marinaro clearly testified that the $6,300 cash harvesting costs constituted advances against receipts of the sale of watermelons when sold by Sunny Fresh at the ultimate destination. Further, the request that Petitioner pay Mr.
Hensley for helping load the watermelons is in the nature of Petitioner paying a casual laborer for harvesting rather than it is evidence that any Sunny Fresh authority resided in Mr.
Hensley.
Between June 17, 1996 and June 21, 1996, Petitioner loaded eight truckloads of watermelons onto trucks for sale to various customers in the north and northeast United States.
Of the eight truckloads loaded, the breakdown of actual costs and expenses worked out as follows:
ACCOUNTING OF R. BASS LOADS
Sunny Fresh #93775 Sold to: Frankie Boy Produce Frankie Boys #96095 New York, NY
Weight shipped: 41,250
Unloaded weight: 40,400
Initial price at shipment to
grower for good watermelon: 5 - ½ cents/lb
Net return $1,212.00
Sales charge: (404.00)
Watermelon promotion board tax: (8.08)
Return to R. Bass due to
bad melons: 2 cents/lb $ 799.92
Sunny Fresh #93791 Sold to: Fruitco Corp. Fruitco #1880 Bronx, NY
Weight shipped: 40.800
Unloaded weight: 39,180
Initial price at shipment to
grower for good watermelon: 5 - ½ cents/lb
Net return $ 974.71
Sales charge: (391.81)
Watermelon promotion board tax: (7.84)
Return to R. Bass due to
bad melons: 2.49 cents/lb $ 575.06
Sunny Fresh #81312 Crosset Co. #67012 | Sold | to: | Crosset Co. Cincinnati, OH |
Weight shipped: |
|
45,860 |
Unloaded weight: Initial price at |
shipment to | 41,762 |
grower for good watermelon: |
| 5 cents/lb |
Gross return |
| $4,134.42 |
Shipping charges (freight): |
| (1,712.63) |
Net return: |
| 2,421.79 |
Sales charge: |
| (438.48) |
Watermelon promotion board tax: Return to R. Bass due to bad melons: 4.75 cents/lb |
| (8.35)
$1,974.96 |
Sunny Fresh #93804 Sold to: | Tom | Lange Co. |
Lange #3344 | St. | Louis, MO |
Weight shipped: |
| 44,550 |
Unloaded weight: Initial price at shipment to grower for good watermelon: |
| 39,760
5 cents/lb |
Gross return |
| $2,584.40 |
Shipping charges (freight): |
| (1,455.96) |
Net return: |
| 1,128.44 |
Sales charge: |
| (445.50) |
Watermelon promotion board tax: Return to R. Bass due to bad melons: 1.72 cents/lb |
| (7.95)
$ 674.99 |
Sunny Fresh #93802
M.A. Fruit #N/G |
Sold to: |
M.A. Fruit Trading Corp New York, NY |
Weight shipped: 40,130
Unloaded weight: 36,720
Initial price at shipment to
grower for good watermelon: 5 cents/lb
Gross return | $3,797.40 |
Shipping charges (freight): | (1,758.55) |
Net return: | 2,038.85 |
Sales charge: | (401.30) |
Watermelon promotion board tax: | (7.34) |
Return to R. Bass due to |
|
bad melons: 4.46 cents/lb | $1,630.21 |
Sunny Fresh #93817 Sold to: C. H. Robinson Company
C.H. Robinson #379035 Cleveland, OH
Weight shipped: |
| 43,300 |
Unloaded weight: Initial price at |
shipment to | 42,147 |
grower for good watermelon: | 5 cents/lb |
Gross return | $4,440.21 |
Shipping charges (freight): | (1,930.27) |
Net return: | 2,509.94 |
Sales charge: | (411.02) |
Watermelon promotion board tax: Return to R. Bass due to bad melons: 5 cents/lb | (8.43)
$2,090.49 |
Sunny Fresh #93819 Sold to:
Isenberg #N/G | Joseph Isenberg, Inc. Buffalo, NY |
Weight shipped: Unloaded weight: Initial price at shipment to grower for good watermelon: | 45,100
5 cents/lb |
Gross return | $ 500.00 |
Shipping charges (freight): | (1,877.98) |
Net return: | (1,377.98) |
Sales charge: Return to R. Bass due to bad melons: 4.06 cents/lb | (451.00)
$(1,828.98) |
Sunny Fresh #81334 | Sold | to: | Palazzola . |
Palazzola #N/G |
|
| Memphis, TN |
Weight shipped: 47,700
Unloaded weight:
Initial price at shipment to
grower for good watermelon: 5 cents/lb
Gross return |
| $ 0.00 |
Shipping charges | (freight): | (1,553.30) |
Net return: |
| (1,553.30) |
Inspection: |
| (65.00) |
Bins: |
| (30.00) |
Sales charge: Return to R. Bass due to bad melons: 4.46 cents/lb | (477.00)
$(2,125.90) |
Kelly Marinaro testified credibly that the resultant low prices paid by the ultimate purchasers was the result of the poor quality of Petitioner's melons upon their arrival at their ultimate destination. Exhibits admitted in evidence without objection verified the poor condition of five of the loads.
In those instances in which there were United States Department of Agriculture Inspection Reports, I accept those reports as clearly dispositive of the issue of the melons' poor condition upon arrival. Petitioner's more vague testimony that he doubted any load could ever pass such an inspection as "A-1," does not refute them.
Kelly Marinaro testified credibly and without contradiction that each time he was informed by a potential buyer that a load of melons was in poor condition upon arrival at their destination, he faxed, mailed, or telephoned Petitioner with the "trouble report" information as soon as feasible and tried to
involve him in the decision as to what should be done. This is consistent with a sale at the ultimate destination.
Kelly Marinaro further testified credibly and without contradiction that for two loads he recommended to Petitioner that they not obtain a federal inspection because it was not cost efficient. He made this recommendation for one of these two loads because it reached its destination on a Friday and the fruit would have to stand and deteriorate further in quality and price over the weekend if they waited on an inspection. Petitioner agreed to waive at least one inspection.
Petitioner and Kelly Marinaro did not agree as to the number of times they spoke on the phone about "trouble reports", but Petitioner acknowledged at least four such phone conversations. Petitioner and Kelly Marinaro did agree that in each phone call, Petitioner told Kelly Marinaro to "do the best you can," and stated he did not want to pay any freight. This type of conversation is not indicative of a relationship in which the melons have been purchased outright at the site of embarkation, Petitioner's field.
I have considered the testimony of Petitioner and of Kelly Marinaro, respectively, on the issue of whether or not Petitioner was required to pay the freight on the watermelons from their first oral contract by telephone call on June 15, 1996. Without attributing any ill-motive to either party- witness, I find they did not initially have a meeting of the
minds as to how the cost of freight was to be handled, and that Petitioner assumed at some point he would not have to pay freight. However, it is clear from the evidence as a whole that Kelly Marinaro did everything possible to avoid freight charges to Petitioner and would not have meticulously informed and received oral waivers of inspections from Petitioner if there had been any clear agreement either that Sunny Fresh was purchasing the watermelons "as is" in Petitioner's field or that Sunny Fresh Produce was paying all the freight. Indeed, Petitioner was not charged for freight when Kelly Marinaro d/b/a Sunny Fresh provided the trucks. It is also clear from the evidence as a whole that Petitioner was informed on or about the date that each load arrived at its ultimate destination that he was going to be charged for at least some freight charges out of the ultimate price received for the melons.
Bill Ward has acted as a broker of watermelons for many years. I accept his testimony that there can be varying grades of watermelon within one field or one harvest.
The several "Watermelon Reports" admitted without objection show that the demand for Florida watermelons was light or fairly light in June 1996, that the price was down or to be established, and that all quotations were for stock of generally good quality and condition.
There had been a lot of rain in Florida during the 1996 watermelon season and rain unfavorably affects the quality of
melons. Melons from further north where there had been less rain were able to be shipped to northern and northeastern buyers in less time than were Florida melons. Northern and northeastern buyers did not have to select from inferior melons that year.
Petitioner's testimony and supporting documentation that he sold to other purchasers two truckloads of good quality, top price melons from the same field between June 17 and June 21, 1996 does not overcome all the evidence that the majority of melons he sold through Sunny Fresh were of the poor quality reported by the ultimate buyers and federal inspectors or that the melons sold to Sunny Fresh deteriorated due to slow transport.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), F.S.
Petitioner bears the duty to go forward in this type of proceeding and has the burden of proving by a preponderance of the evidence that the dealer defaulted on its agreement and is indebted to Petitioner. Petitioner did not so prove in this case.
Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1997.
Arthur C. Fulmer, Esquire Post Office Box 2958 Lakeland, FL 33806
Mr. Robert Waldman
Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
