The Issue The issues presented are whether Respondent, George Mason Citrus, Inc. (Mason), owes Petitioner $10,000 for citrus fruit that Mason purchased from Petitioner and, if so, whether the surety is liable for any deficiency in payment from Mason.
Findings Of Fact Petitioner is a Florida corporation licensed by the Department as a “citrus fruit dealer,” within the meaning of Subsection 601.03(8), Florida Statutes (2005) (dealer).1 The business address for Petitioner is 1103 Southeast Lakeview Drive, Sebring, Florida 33870. Mason is a Florida corporation licensed by the Department as a citrus fruit dealer. The business address for Mason is 140 Holmes Avenue, Lake Placid, Florida 33852. Western is the surety for Mason pursuant to bond number 42292005 issued in the amount of $100,000 (the bond). The term of the bond is August 1, 2004, through July 31, 2005. Petitioner conducts business in Highlands County, Florida, as a dealer and as a “broker” defined in Subsection 601.03(3). In relevant part, Petitioner purchases white grapefruit (grapefruit) for resale to others, including Mason. Mason conducts business in Highlands County as either an “agent,” “broker,” or “handler” defined in Subsections 601.03(2), (3), and (23). On January 31, 2003, Mason contracted with Petitioner to purchase grapefruit from Petitioner pursuant to Fruit Contract number 03-307 (the contract). Mason drafted the contract. The terms of the contract require Petitioner to sell grapefruit to Mason for the 2003, 2004, and 2005 “crop years.” The 2003 crop year began in the fall of 2002 and ended at the conclusion of the spring harvest in 2003. The 2004 and 2005 crop years began in the fall of 2003 and 2004 and ended in the spring of 2004 and 2005, respectively. Only the 2005 crop year is at issue in this proceeding. The contract required Petitioner to deliver grapefruit to a person designated by Mason. Mason designated Peace River Citrus Products, Inc. (Peace River), in Arcadia, Florida, for delivery of the grapefruit at issue. Mason was required by the terms of a Participation Agreement with Peace River to deliver 30,000 boxes of grapefruit to Peace River during the 2005 crop year. In an effort to satisfy its obligation to Peace River, Mason entered into the contract with Petitioner for an amount of grapefruit described in the contract as an “Approximate Number of Boxes” that ranged between 12,000 and 14,000. Petitioner delivered only 2,128 boxes of grapefruit to Peace River. The production of grapefruit was significantly decreased by three hurricanes that impacted the area during the 2005 crop year. The parties agree that Mason owed Petitioner $19,070.03 for the delivered boxes of grapefruit. The amount due included a portion of the rise in value over the base purchase price in the contract caused by increases due to market conditions and participation pay out after the parties executed the contract (the rise).2 On or about October 26, 2005, Mason mailed Petitioner a check for $9,070.03. The transmittal letter for the check explained the difference between the payment of $9,070.03 and the amount due of $19,070.03. Mason deducted $10,000 from the $19,070.03 due Petitioner, in part, to cover the cost of grapefruit Mason purchased from other dealers or growers to make up the deficiency in grapefruit delivered by Petitioner (cover). The $10,000 sum also includes interest Mason claims for the cost of cover and Mason's claim for lost profits. Petitioner claims that Mason is not entitled to deduct lost profits and interest from the amount due Petitioner. If Mason were entitled to deduct interest, Petitioner alleges that Mason calculated the interest incorrectly. The larger issue between the parties is whether Mason is entitled to deduct cover charges from the amount due Petitioner. If Mason were not entitled to cover the deficiency in delivered boxes of grapefruit, Mason would not be entitled to interest on the cost of cover and lost profits attributable to the deficiency. The parties agree that resolution of the issue of whether Mason is entitled to cover the deficiency in delivered boxes of grapefruit turns on a determination of whether the contract was a box contract or a production contract. A box contract generally requires a selling dealer such as Petitioner to deliver a specific number of boxes, regardless of the source of grapefruit, and industry practice permits the purchasing dealer to cover any deficiency. A production contract generally requires the selling dealer to deliver an amount of grapefruit produced by a specific source, and industry practice does not permit the purchasing dealer to cover any deficiency. The contract is an ambiguous written agreement. The contract expressly provides that it is a "Fruit Purchase Contract" and a "delivered in" contract but contains no provision that it is either a box or production contract. The contract is silent with respect to the right to cover. Relevant terms in the contract evidence both a box contract and a production contract. Like the typical box contract, the contract between Mason and Petitioner prescribes a number of boxes, specifically no less than 12,000, that are to be delivered pursuant to the contract. However, the typical box contract does not identify the number of boxes to be delivered as "Approximate No. of Boxes" that ranges between 12,000 and 14,000 boxes. Unlike a production contract, the contract does not identify a specific grove as the source of the required grapefruit. Best practice in the industry calls for a production contract to designate the grove by name as well as the number of acres and blocks. However, industry practice does not require a production contract to identify a specific grove as the source of grapefruit. In practice, Mason treated another contract that Mason drafted with a party other than Petitioner as a production contract even though the contract did not identify a specific grove as the source of grapefruit. The absence of a force majure clause in the contract may evidence either type of contract.3 A box contract typically requires the selling dealer to deliver the agreed boxes of grapefruit regardless of weather events, unless stated otherwise in the contract. However, the absence of such a clause may also be consistent with a production contract because "acts of God" are inherent in a production contract. Such acts, including hurricanes, necessarily limit grapefruit production, and a production contract obligates the selling dealer to deliver only the amount of grapefruit produced. The contract between Petitioner and Mason did not contain a penalty provision for failure to deliver the prescribed boxes of grapefruit (box penalty). The absence of a box penalty in the contract evidences a production contract. The contract identifies Petitioner as the "Grower." A grower typically enters into a production contract. A box contract does not limit the source of grapefruit to be delivered, and the selling dealer in a box contract may obtain grapefruit from anywhere in the state. The contract between Petitioner and Mason limits the source of grapefruit to grapefruit grown in Highlands County, Florida. Mason knew that Petitioner sold only grapefruit from groves in Highlands County, Florida, identified in the record as the Clagget Taylor groves. During the 2003 and 2004 crop years, Petitioner sold only grapefruit from the Clagget Taylor groves. Mason received trip tickets and other documentation related to the delivery of no less than 24,000 boxes of grapefruit, all from the Clagget Taylor groves. The boxes of grapefruit delivered during the 2005 crop year came only from the Clagget Taylor groves. Mason received documentation showing the grapefruit came from the Clagget Taylor groves. Ambiguous written agreements are required by judicial decisions discussed in the Conclusions of Law to be construed against the person who drafted the agreement. Mason drafted an ambiguous agreement with Petitioner. The agreement must be construed against Mason as a production contract. Mason owes Petitioner $10,000 for the delivered grapefruit during the 2005 crop year. The terms of the bond make Western liable for any deficiency in payment from Mason.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order directing Mason to pay $10,000 to Petitioner, and, in accordance with Subsections 601.61 and 601.65, requiring Western to pay over to the Department any deficiency in payment by Mason. DONE AND ENTERED this 22nd day of August, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2007.
The Issue The issue in this case is whether Respondent Dooley Groves, Inc. owes Petitioner a sum of money for shipments of citrus fruit.
Findings Of Fact The evidence presented at final hearing established the facts that follow. The Parties and Their Problem Spyke's Grove and Dooley are "citrus fruit dealers" operating within the Department's regulatory jurisdiction. As a wholesale shipper, Spyke's Grove packages and arranges for delivery of citrus products pursuant to purchase orders that retail sellers such as Dooley submit. The packages typically are labeled with the retail seller's name (e.g. Dooley), and thus the retail buyer (and the recipient, if the citrus is purchased as a gift) usually will not be aware of Spyke's Grove's involvement. The instant case involves a series of orders that Dooley placed with Spyke's Grove between November and December 1999 for packages of gift fruit. Under a number of informal, largely unwritten contracts, Spyke's Grove agreed, each time it received an order from Dooley, to ship a gift fruit box or basket to the donee designated by Dooley's retail customer, for which fruit shipment Dooley agreed to pay Spyke's Grove. Spyke's Grove alleges that Dooley failed to pay in full for all of the gift fruit packages that Dooley ordered and Spyke's Grove duly shipped. Dooley contends (though not precisely in these terms) that Spyke's Grove materially breached the contracts, thereby discharging Dooley from further performance thereunder. Dooley also claims, as an affirmative defense, that the alleged debt was extinguished pursuant to an accord and satisfaction. The Transactions From mid-November 1999 until around December 12, 1999, Dooley faxed to Spyke's Grove approximately 150 individual orders for gift fruit packages. Each order consisted of a shipping label that identified the product (e.g. the type of gift box or basket), the intended recipient, the destination, and a proposed shipping date. Spyke's Grove manifested its intent to fill these orders by faxing statements of acknowledgment to Dooley. Although the many contracts that arose from these transactions were thus documented, the writings left much unsaid. For example, contrary to Dooley's assertion, the parties did not agree in writing that Spyke's Grove would deliver the subject gift baskets to the donees before Christmas, nor did they make any express oral agreements to this effect. Further, the parties did not specifically agree that Spyke's Grove would be obligated to deliver the gift fruit into the hands of the donees and bear the risk of loss until such tender of delivery. Rather, the contracts between Spyke's Grove and Dooley were ordinary shipment contracts that required Spyke's Grove to put the goods into the possession of carriers (such as the U.S. Postal Service or United Parcel Service) who in due course would deliver the packages to the donees. For several weeks, until early December 1999, Dooley placed orders, and Spyke's Grove filled them, under the arrangement just described, without controversy. The Fire On the night of Sunday, December 12, 1999, a devastating fire at Spyke's Grove's premises caused substantial damage, temporarily disrupting its citrus packing and shipping operations at the peak of the holiday season. Working through and around the loss, Spyke's Grove soon recovered sufficiently to reopen for business. By around noon on Tuesday, December 14, 1999, its telephone service had been restored, and activities relating to shipping resumed on Friday, December 17, 1999. Dooley's Response Dooley did not immediately learn about the fire that had interrupted Spyke's Grove's operations. Continuing with business as usual on Monday, December 13, 1999, Dooley attempted then and throughout the week to fax orders to Spyke's Grove but consistently failed to connect because the lines were busy. With unplaced orders piling up, Dooley began to worry that the gift baskets its customers had ordered earlier in the month——orders that Sypke's Grove already had agreed to fill—— would not arrive by Christmas, as Dooley had guaranteed when taking those orders. Then, on December 16, word of the Spyke's Grove fire reached Dooley. Dooley's worry escalated into alarm. That same day, Dooley placed telephone calls to as many of its retail customers or their donees as it could reach, to ascertain whether Spyke's Grove had shipped any of the gift fruit baskets that Dooley had ordered before December 12, 1999. Dooley was unable to confirm the receipt of a single package—— and it panicked. Disregarding its existing contractual obligations and with no advance notice to Spyke's Grove, Dooley made alternative arrangements for filling all of the orders that it had faxed to Spyke's Grove in December 1999. Dooley packaged and shipped some of the subject gift boxes on its own, and it placed orders for the rest with another wholesale shipper. These substitute packages were being shipped as early as December 17 or 18, 1999. Even after the fact, Dooley failed to inform Spyke's Grove that it had, in effect, repudiated the existing shipment contracts between them. Having no knowledge of Dooley's actions, Spyke's Grove packaged and shipped all of the gift fruit that Dooley had ordered pursuant to the contracts entered into before December 12, 1999. The Inevitable Dispute On January 27, 2000, Spyke's Grove sent three invoices to Dooley seeking payment for most of the citrus shipped pursuant to Dooley's orders. These bills totaled $3,242.55. A fourth and final invoice, for $70.57, was sent on February 18, 2000. Combined with the other bills, this last brought the grand total to $3,313.12. Each of these invoices contained the following boilerplate "terms": Net 14 days prompt payment is expected and appreciated. A 1 1/2% monthly service charge (A.P.R. 18% per annum) may be charged on all past due accounts. Customer agrees to pay all costs of collection, including attorneys [sic] fees and court costs, should collection efforts ever become necessary. Dooley did not remit payment or otherwise respond to Spyke's Grove's statements. Accordingly, on June 20, 2000, Spyke's Grove sent a letter to the Department requesting assistance. Dooley was provided a copy of this letter. On June 30, 2000, Dooley sent a letter to Spyke's Grove in which it explained the reasons why Dooley believed Spyke's Grove was not entitled to full payment of $3,313.12. Dooley had decided, unilaterally, that a deduction of $1,723.53 was in order. In its letter, Dooley described the remaining balance of $1,589.59 as the "final total payment," and a check for that amount was enclosed therewith. Nothing in Dooley's letter fairly apprised Spyke's Grove that the check for $1,589.59 was being tendered, in good faith, in full satisfaction of Spyke's Grove's demand for payment of $3,313.12. No language in that June 30, 2000, letter so much as hinted that Spyke's Grove's acceptance of the check would be considered a manifestation of assent to Dooley's position or an agreement to accept the lesser sum in satisfaction of a greater claim. In short, the parties did not make a mutual agreement, either expressly or by implication, to settle Spyke's Grove's claim for a total payment of $1,589.59. Spyke's Grove was entitled to accept Dooley's check for $1,589.59 as a partial payment against the total indebtedness, and it did. Shortly thereafter, Spyke's Grove filed a Complaint with the Department, initiating the instant proceeding. Ultimate Factual Determinations Dooley's refusal to pay in full for the goods it ordered from Spyke's Grove constituted a breach of the contracts between the parties. Spyke's Grove did not materially breach the agreements, nor was the indebtedness discharged pursuant to an accord and satisfaction. Spyke's Grove has suffered an injury as a result of Dooley's breach. Spyke's Grove's damages consist of the principal amount of the debt together with pre-award interest at the statutory rate, less the partial payment that Dooley made on June 30, 2000. Accordingly, Spyke's Grove is entitled to recover the following amounts from Dooley: Principal Due Date Statutory Interest $3,242.55 2/10/99 $ 18.66 (2/10/99 - 3/03/99) $ 70.57 3/04/99 $3,313.12 3/04/99 LESS: <$1,589.59> $ 437.56 (3/04/99 - 6/29/00) $1,723.53 6/30/00 $ 86.89 (6/30/00 - 12/31/00) $ 157.92 (1/01/01 - 10/31/01) $1,723.53 $ 701.03 Interest will continue to accrue on the outstanding balance of $1,723.53 in the amount of $0.52 per day from November 1, 2001, until the date of the final order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order awarding Spyke's Grove the sum of $1,723.53, together with pre- award interest in the amount of $701.03 (through October 31, 2001), plus additional interest from November 1, 2001, until the date of the final order, which will accrue in the amount of $0.52 per day. DONE AND ENTERED this 12th day of October, 2001, in Tallahassee, Leon County, Florida. COPIES FURNISHED: JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 2001. Barbara Spiece, President Spyke's Grove, Inc. 7250 Griffin Road Davie, Florida 33314 Diane M. Houghtaling, Vice President Dooley Groves, Inc. 1651 Stephens Road Post Office Box 7038 Sun City, Florida 33586-7038 Reliance Insurance Company Three Parkway Philadelphia, Pennsylvania 19102 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda D. Hyatt, Bureau Chief Department of Agriculture and Consumer Services 500 Third Street Northwest Post Office Box 1072 Winter Haven, Florida 33882-1072
The Issue Whether Respondent is indebted to Petitioner for Florida- grown citrus products sold to Respondent.
Findings Of Fact Petitioner and Respondent are Florida-licensed citrus fruit dealers operating within the Department's regulatory jurisdiction. Great American was the surety for J and G Citrus' fruit dealer's license for the 2006-2007 citrus shipping season. J and G Citrus is Petitioner's customer. Petitioner ships fruit on behalf of J and G Citrus under their name for a service charge and fee for fruit, the cost of packing, and shipping. Petitioner and Respondent entered a written contract on November 12, 2004, for such services. Cushman's replacements policy provides that a customer should notify Cushman of any problem and the company will refund the monies for the order or replace the package. Cushman guarantees to "honor all replacement requests in a timely manner at no cost to you." J and G Citrus utilized the policy during its contract with Cushman. Cushman delivered the following fruit orders for J and G Citrus from December 22, 2006, to February 16, 2007: 292 navel fruit trays at $3.35 a tray; 168 grapefruit trays at $3.35 a tray; 87 honeybells trays at $6.88 a tray; and 29 tangerine trays for $6.88 at tray. The costs for the fruit shipped totaled $2,339.00. J and G Citrus was invoiced this amount. Accordingly, Respondent was obligated to pay Petitioner the total sum for the fruit. After Cushman Fruit invoiced J and G Citrus for the outstanding balance, no payment was received. On March 28, 2007, Cushman informed J and G Citrus of its bill and told Respondent that "You need to get current." J and G Citrus responded on the same day that it would provide a payment schedule by Monday. On April 23, 2007, J and G Citrus confirmed by email that they were going to start paying and would provide a payment. On May 7, 2007, Cushman requested the payment schedule from J and G Citrus again and informed the company, "I need a response from you today." Cushman never heard further from Respondent regarding payment. To date, the invoices are unpaid and the monies are owed to Cushman. Petitioner performed all of its duties under the contract with J and G Citrus and Respondent failed to pay for the services. J and G Citrus is, therefore, indebted to Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered requiring Respondent pay to Petitioner the sum of $2,339.00 DONE AND ENTERED this 11th day of February, 2009, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2009. COPIES FURNISHED: Elizabeth Alvarez Cushman Fruit Company, Inc. 3325 Forest Hill Boulevard West Palm Beach, Florida 33406 Rob Brehm Great American Insurance Company Post Office Box 2119 Cincinnati, Ohio 45201 Christopher E. Green, Esquire Department of Agriculture and Consumer Services Office of Citrus License and Bond Mayo Building, M-38 Tallahassee, Florida 32399-0800 Brian D. Jerome Carla Dupleich J & G Citrus Groves 5781 Seminole Way Fort Lauderdale, Florida 33314 Honorable Charles Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800
The Issue The issue presented is whether Respondents Harbor Island Citrus, Inc., and Fidelity & Deposit Company of Maryland are indebted to Petitioner Rio Indio Fruit Company in the amount of $80,684.
Findings Of Fact Petitioner Rio Indio Fruit Company operates a citrus packinghouse located in St. Lucie County, Florida. Respondent Harbor Island Citrus, Inc., operates a citrus packinghouse in Indian River County, Florida. On approximately November 20, 1999, Albert Valdes from Harbor Island contacted Ralph Viamontes from Rio Indio to ascertain if Rio Indio might have a source that Harbor Island could use to obtain colored grapefruit for Harbor Island's annual fund-raising program. It was the industry practice, and Harbor Island's practice, for the fund-raising program to run from late-November through mid-December. During that time period, students in the north sell the fruit to raise money for their projects. The fruit used in such a fund-raising program can be a quality inferior to the quality demanded by the Japanese market, the primary market for Harbor's Island's citrus. Viamontes told Valdes he would see if he could find a grower with colored grapefruit suitable for Harbor Island's fund-raising program. Viamontes telephoned Valdes the following day and said he had located a grower. On that day or possibly the following day Valdes and two other Harbor Island employees, Dennis Downs and James Morris, met Viamontes at the Rio Indio facility. The four men drove in Viamontes' vehicle to the Sorge VII grove in Martin County to look at the grove's colored grapefruit. The amount of fruit in the grove was much larger than Harbor Island needed to fulfill its fund-raising program commitment. Viamontes estimated that the grove contained the equivalent of 30,000 boxes of colored grapefruit. Valdes told Viamontes that Harbor Island might need 18,000 to 20,000 boxes of the grapefruit for its fund-raising program. Viamontes told the Harbor Island employees that they could still make a deal for the grapefruit in the grove because since he had his own packing house, he would take the fruit that Harbor Island did not need. The men discussed that Harbor Island could take 2/3 of the colored grapefruit in the grove, and Rio Indio could take 1/3. They further discussed that the manager of Sorge VII wanted $5.50 a box for the fruit, that Viamontes would contract to take all the fruit in the grove, that Harbor Island would pay Viamontes $5.50 a box for the fruit Harbor Island took, and that Viamontes would pay the grower. James Morris from Harbor Island specifically asked Viamontes what would happen if Harbor Island wanted less than 18,000 to 20,000 boxes. Viamontes told the Harbor Island employees that there would be no problem if Harbor Island took less fruit because Viamontes would take whatever was left after Harbor Island took what it wanted. Valdes consulted with Donald Groves, Jr., the owner of Harbor Island to verify that Harbor Island would make the arrangement suggested by Viamontes, and Groves approved the arrangement. Thereafter, Viamontes entered into a written contact with the manager of Sorge VII to purchase all of the fruit for $5.50 a box, and that written contract included deadlines for 20,000 boxes of fruit to be picked by December 31, 1999, and the remainder to be picked by the end of February 2000. Rather than the 30,000 field boxes that Viamontes had estimated the grove contained, the grove contained substantially more grapefruit than Viamontes estimated. The record in this cause suggests that the grove may have contained as many as 43,762 boxes of colored grapefruit. In accordance with its understanding of the arrangement with Viamontes, Harbor Island began harvesting colored grapefruit from the Sorge VII grove on November 26, 1999, and completed all picking at the grove on December 8, 1999. During that time Harbor Island picked 9,000 boxes of colored grapefruit for which it was obligated to pay Viamontes $5.50 per box. Harbor Island paid Viamontes in full for the fruit it took. During the time Harbor Island was at the Sorge VII grove picking colored grapefruit, Rio Indio's crews were there picking grapefruit. Rio Indio's crews also picked fruit at the grove during the months after Harbor Island completed its picking. In addition to Rio Indio's crews knowing that Harbor Island had completed its picking, James Morris specifically told Viamontes that Harbor Island had taken all the fruit it wanted from the Sorge VII grove as of December 8, 1999. During the months of December 1999, January 2000, February 2000, and the first half of March 2000, Viamontes spoke with Valdes of Harbor Island several times a day to check on the status of other unrelated fruit being packed and sold by Harbor Island for Viamontes. In addition, Viamontes was present at the Harbor Island packinghouse on a weekly basis to pick up checks due to him or Rio Indio for the unrelated fruit being sold by Harbor Island for Viamontes. Yet, at no time between December 8, 1999, and the middle of March 2000 did Viamontes tell anyone that he believed Harbor Island had an obligation to harvest additional fruit from the Sorge VII grove. Rather, in late January 2000 Viamontes asked Valdes if Harbor Island were going to take any more fruit from Sorge VII. When Valdes said the fund-raising program was over, Viamontes told Valdes not to worry because Rio Indio would take the rest. Further, on or about March 1, 2000, during one of Viamontes' visits to the Harbor Island packinghouse, Dennis Downs of Harbor Island asked Viamontes how the harvesting in Sorge VII was proceeding. Viamontes responded that Rio Indio was harvesting the remaining colored grapefruit and that Harbor Island need not be concerned about any further harvesting at the Sorge VII grove. On or about March 15, 2000, the price and demand for colored grapefruit suddenly and dramatically dropped due to an oversupply of fruit for which the industry was not prepared. After the dramatic decline, Viamontes contacted Valdes from Harbor Island and inquired whether Harbor Island was going to pick any additional fruit at the Sorge VII grove. Valdes responded that Harbor Island had no obligation to pick any additional colored grapefruit from the Sorge VII grove based upon the agreements between Harbor Island and Rio Indio, specifically, Viamontes' continued representations that Harbor Island should not be concerned about picking any additional colored grapefruit from the grove because Rio Indio would take the remainder. In July 2000 Viamontes appeared at Harbor Island and advised Donald Groves, for the first time, that Harbor Island owed Rio Indio the amount of $80,684 for an additional 20,171 boxes of colored grapefruit from the Sorge VII grove, which Viamontes now contends Harbor Island should have harvested. Rio Indio claims that it suffered a loss of $4 per box for that additional fruit. The documentation presented by Rio Indio to support its demand is questionable and does not substantiate Rio Indio's claimed damages. First, the majority of the documents submitted by Rio Indio indicate that the fruit described therein was from a grove in St. Lucie County, and Sorge VII is in Martin County. Second, the majority of the documents indicate that the fruit described therein was from packinghouse eliminations although Viamontes alleges that the fruit went directly from the field to the cannery without going through a packinghouse. Third, the cannery records reflect that the "pound solids per box" are significantly less than what would be expected from fruit coming from the Sorge VII grove based upon the grove's historical production.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Harbor Island Citrus, Inc., is not indebted to Rio Indio Fruit Company and dismissing the Complaint filed by Rio Indio Fruit Company in this cause. DONE AND ENTERED this 12th day of December, 2001, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 2001. COPIES FURNISHED: Theodore W. Herzog, Esquire 1101 Simonton Street Key West, Florida 33040 Fred L. Kretschmer, Jr., Esquire Moss, Henderson, Blanton, Lanier, Kretschmer & Murphy, P.A. 817 Beachland Boulevard Post Office Box 3406 Vero Beach, Florida 32964-3406 Kathy Elves The Fidelity and Deposit Companies 300 Saint Paul Place Post Office Box 87 Baltimore, Maryland 21203 Brenda D. Hyatt, Bureau Chief Department of Agriculture and Consumer Services 500 Third Street, Northwest Post Office Box 1072 Winter Haven, Florida 33882-1072 Brenda D. Hyatt, Bureau Chief Department of Agriculture and Consumer Services 541 East Tennessee Street India Building Tallahassee, Florida 32308 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Findings Of Fact At all times pertinent to the issues herein, Ingram Grove Services, Inc., (Ingram), was a commercial grower of citrus fruit and a licensed citrus fruit dealer in Florida. Mark Fetzer, Inc. (Fetzer), was also a grower and a licensed citrus fruit dealer in Florida. U.S. Fidelity & Guaranty Company was an insurance company authorized to write surety bonds in this state during the 1991-1992 citrus shipping season and was the underwriter of Fetzer's bond for the transaction in issue herein. Liberty Mutual Insurance Company was an insurance company authorized to write surety bonds in this state during the 1991-1992 citrus shipping season and was the underwriter of Ingram's bond for the transaction herein. By contract number 518, dated January 14, 1992, and drafted on the letterhead of Mark Fetzer, Inc., Ingram, the grower, sold and conveyed to Fetzer, the buyer, approximately 20,000 boxes of valencia oranges at a price of $10.50 per box, with a moving date of April 30, 1992. This description was intended to cover all valencia oranges grown by Ingram and contained in Suncrest #11 field in Sebring, Florida and included transportation to Polk County. Ingram was authorized to, and did, request a deposit of $1.00 per box, and by check dated April 27, 1992, Fetzer paid Ingram the sum of $20,000. The oranges were to be delivered by Ingram to the Commercial Carriers Cold Storage, (CCCS), facility in Auburndale, Florida. The entire crop of fruit covered by this contract was to be paid for within 30 days of delivery to CCCS. The contract did not prohibit Fetzer from re-selling the fruit covered thereby. Ingram and Fetzer had done business together for several years, since 1985. In every case, each had paid what was owed to the other, but it is admitted that on occasion, such payment was delayed for a short time. Neither had ever failed to ultimately pay what was owed the other, however. Sometime after delivery of the fruit to CCCS by Ingram, Fetzer sold 3,000 of the boxes to Vero Beach Groves, Inc., (VB), a producer of commercial orange juice for commercial sales. At that time, and at all times pertinent to the issues herein, VB was having financial difficulties. Evidence of record indicates that at the time, VB owed approximately $32,000 to Fetzer, somewhat more than $60,000 to Ingram, and over $600,000 to Florida Growers, another entity not pertinent to the issues herein. The terms of Fetzer's sale to VB called for a payment of $13.65 per box. This included $11.65 per box for the oranges then delivered, including 15 brokerage, and $2.00 per box to satisfy VB's antecedent debt to Fetzer. If all the Ingram fruit were resold by Fetzer to VB, this procedure would have paid off VB's debt to Fetzer before all the Ingram fruit was pulled out of storage. When the antecedent debt was liquidated, the price per box would have been reduced to $11.65. Fetzer had not allowed VB's debt to it to grow very large, and the above practice, which had been followed for several years, had to this point, been successful. There was no dispute under the terms of the contract between Ingram and Fetzer until sometime in mid-May, 1992 when, prior to the delivery of any fruit, Mr. Ingram called Mr. Fetzer and asked for a meeting. At that meeting, Mr. Ingram told Mr. Fetzer that unless an agreement was made to get him, Ingram, a debt reduction procedure similar to Fetzer's, he would not make available to Fetzer the fruit called for under the contract. Mr. Ingram indicated at the hearing that when he heard Fetzer had contracted with VB, in light of VB's tenuous financial condition, he was concerned about being able to get paid and this caused him to seek the meeting with Fetzer. However, he did not communicate this to Fetzer nor did he ask Fetzer for payment in advance or some security for the obligation. In fact, according to Fetzer, he had the money available, in cash, to pay the entire amount owed Ingram if necessary. In addition, Fetzer told Ingram that even if VB could not take the fruit, there were at least 3 -5 other "juicers" to whom he could sell the fruit and pay Ingram. In point of fact, the fruit was subsequently sold, by Ingram, to other juice processors at a per box price which varied from $12.50 to $13.35. Nonetheless, Fetzer tried to work the situation out for all concerned with no consideration given him for any purported change to the contract. Faced with the potential for not being able to get the fruit for sale to VB, the contract with whom was worth in excess of $200,000 to him, Fetzer met with a representative of VB and reached an agreement with it whereby VB would pay an additional $3.35 over the $13.65 so that Ingram could be paid. At this meeting he was told by Mr. Kordick, VB's vice president, that VB would work something out with Ingram for the remaining fruit. Thereafter, VB agreed with Ingram to make additional payments to Ingram. It appears, however, that this agreement to pay the extra on Ingram's antecedent debt was more acquiescence to coercion than voluntary agreement. Fetzer then released the first shipment of oranges to VB. VB paid for the shipment of oranges when it came in.It also issued four checks in the amount of $1,680.00 each fdor payment on VB's antecedent debt to Ingram which were made payable to Ingram or Fetzer. These four checks were cashed by Fetzer and were dishonored. They were ultimately redeemed by VB after several weeks, but none of the funds were transmitted by Fetzer to Ingram. Fetzer kept them as compensation for the amount of profit he lost because of Ingram's refusal to release any more oranges after the first shipment. In addition, Fetzer did not pay Ingram for the first 3,000 box shipment. After the first shipment was delivered to VB, Mr. Fetzer was contacted by VB's representative, Mr. Kordick, who advised VB could not pay the amount asked for the fruit which included the "surcharge" to reimburse Ingram because the processed juice would not bring enough to cover it. Admittedly, Mr. Fetzer did not ask Mr. Ingram to rescind the requirement for the "surcharge" payment. Had he done so and had Ingram agreed, it is most likely that VB could have purchased all the oranges from the entire contract and paid for it. All Fetzer did was tell Ingram he should not place the extra burden on VB, and as it was, VB went out of business. Mr. Fetzer knew of the arrangements for the "surcharge" that Ingram wanted before the delivery of the one shipment to VB and requested that shipment knowing what was required. He decided to go along with Ingram to see what would happen even though he felt by then that Ingram had breached the contract. However, he did not put this in writing to Ingram. He felt he had no choice due to Mr. Ingram's representation to him at their May meeting that it would be Ingram's way or not at all. Fetzer went along with it because he saw it as the only way to potentially get the money owed him by VB. Considering the net amount paid by Fetzer as deposit, ($20,000 - $3,000 = $17,000); the amount of antecedent debt unrecoverable due to Ingram's actions, ($26,000) and the anticipated profit lost of the remaining boxes un- delivered by Ingram, ($14,950), Ingram owes Fetzer a gross total of $57,590. From this must be deducted the $6,720 which Fetzer collected from VB on Ingram's behalf but which was not delivered to Ingram, and the $31,500 unpaid for the 3,000 boxes delivered, leaving Ingram's net obligation to Fetzer as $19,730.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that A Final Order be issued by the Commissioner of Agriculture awarding the sum of $19730 to Mark Fetzer, Inc. RECOMMENDED this 1st day of June, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 1st day of June, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR FETZER: & 2. Accepted and incorporated herein. Accepted and incorporated herein. Not a Finding of Fact but a statement of the law. Not a Finding of Fact but a Conclusion of Law. Accepted as a restatement of the case history. - 9. Accepted and incorporated herein. & 11. Accepted and incorporated herein. Accepted and incorporated herein except that the debt of VB to Ingram was approximately $60,000. Accepted that no tripartite agreement was reached. Accepted. Accepted and incorporated herein. Not a Finding of Fact. Accepted. Not a Finding of fact but a restatement of testimony. Accepted and incorporated herein. Accepted. Accepted that Ingram resold to others the fruit not released to Fetzer. Not a Finding of Fact but a statement of law. Accepted and incorporated herein with amount stated. Accepted and incorporated herein. FOR INGRAM: & 2. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. First sentence rejected in so far as it indicates a tri-party agreement. VB's participation was more a matter of acquiescence than agreement. Second sentence accepted and incorporated herein. First sentence rejected. Fetzer did not decline to take fruit as called for in the original contract. Second sentence accepted as it notes the sale to third parties but not "as a result" of Fetzer's failure to take the fruit. Not a Finding of Fact but a Conclusion of law. Rejected as contra to the weight of the evidence. Rejected. Not a proper Finding of Fact but more a comment on the state of the evidence. COPIES FURNISHED: Douglas A. Lockwood, III, Esquire Peterson, Myers, Craig, Crews, Brandon & Puterbaugh, P.A. P.O. Drawer 7608 Lake Region Plaza, Suite 300 141 5th Street, N.W. Winter Haven, Florida 33883-7608 C. Kennon Hendrix, Esquire Hendrix & Brennan P.O. Box 520- 2043 14th Avenue Vero Beach, Florida 32961-0520 Chester C. Payne Financial Examiner Analyst Office of Citrus Bond and License Division of Marketing Development Department of Agriculture P.O. Box 1072 500 Third Street, N.W. Winter Haven, Florida 33882-1072 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800
The Issue 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?
Findings Of Fact 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.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agriculture enter a final order dismissing Petitioner's complaint.RECOMMENDED this 26th day of March, 1997, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1997. COPIES FURNISHED: Ronald Bass 32510 Sumter Line Road Leesburg, FL 34748 Arthur C. Fulmer, Esquire Post Office Box 2958 Lakeland, FL 33806 Mr. Robert Waldman American Bankers Insurance Company Claims Management Services 11222 Quail Roost Drive Miami, FL 33157-6596 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler General Counsel The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, FL 32399-0800
The Issue The primary issue in this hearing was the existence of a contract between M. Stembridge and Jack's Fruit Company under which monies were owed Stembridge.
Findings Of Fact Prior to August 5, 1974, Mrs. Barbara Stembridge, who was in the grove caretaking business, called Mr. Jack Goldtrap by telephone relative to the sale of citrus fruit on properties managed by her for her mother-in-law and herself. Their discussion regarding the sale of the fruit and the terms was incorporated with the contract, Exhibit 1, which Mr. Goldtrap sent to Mrs. Stembridge together with a check for $7500. Mrs. Stembridge executed the contract, accepted the check, and returned the executed contract to Mr. Goldtrap. This contract recites that Mr. Goldtrap had purchased " all fruit on the following groves at market price at time of picking less 50 cents plus picking cost". Thereafter the contract lists the groves subject to the contract: "Home Bloc, Poor Prospect and R. F. Stembridge grove." The testimony was uncontroverted that the fruit which is the subject of the instant controversy was located within the groves enumerated in the contract, however, Mrs. Barbara Stembridge stated that it had not been her intent to sell the fruit in controversy, but she was uncertain whether this was communicated to Mr. Goldtrap prior to the execution of the contract. Mr. Goldtrap testified that he felt he had purchased all the fruit on the groves as stated in the contract. The Hearing Officer finds that the contract, Exhibit 1, takes precedent over any prior verbal agreement between the parties to the contract and that Mr. Goldtrap purchased all fruit in the grove identified therein. Mrs. Barbara Stembridge and R. M. Stembridge testified that subsequent to the written contract with Mr. Goldtrap that R. M. Stembridge entered into an oral agreement to purchase the fruit in controversy from Mrs. Stembridge (the mother of R. M. Stembridge and mother-in-law of Mrs. Barbara Stembridge, who is the sister-in-law of R. M. Stembridge). R. M. Stembridge desired the fruit for sale in his roadside stand at his service station, and planned to pick the fruit in controversy himself on a piecemeal basis over several months. Pursuant to her mother-in-law's Instructions, Mrs. Barbara Stembridge contacted T. G. Mixon, a field superintendent with 31 years experience to estimate the value of the fruit in controversy. T. G. Mixon looked at the trees and crop in controversy late in 1974 and estimated in value to R. M. Stembridge as $3/box; however, he qualified his estimate stating that this was only a valid estimate of its value to R. M. Stembridge based on his particular intended use and that its market value was no where near that figure. R. M. Stembridge paid the agreed upon price of $900 to his mother-in-law for the fruit in controversy. Prior to picking the fruit he had purchased, Mr. Goldtrap visited the groves and was shown the groves, their boundaries, and the fruit in controversy by Mrs. Barbara Stembridge's foreman. This fruit was red grapefruit which is generally unsuitable for juice production. Such fruit cannot be economically picked for juice because there is no market for the unacceptable fruit. Mr. Goldtrap was advised by Mrs. Stembridge's foreman that Mr. Stembridge was interested in the fruit. Mrs. Barbara Stembridge testified that she thought that her foreman had told an unknown person that the red grapefruit had been promised to her brother-in-law. Mr. Goldtrap decided not to pick the red grapefruit, but to leave the fruit on the trees, and instructed his picking crew supervisors to check with R. M. Stembridge to determine which of the fruit be desired. In addition to the red grapefruit in controversy, R. M. Stembridge also had agreed to purchase white grapefruit from approximately 10 trees adjoining his service station, a fact unknown to Mr. Goldtrap or his supervisors. When the supervisors called on Mr. Stembridge to find out which trees should be spared, Stembridge thinking that they were referring to the white grapefruit trees near his station and that they had been shown the red grapefruit trees by his sister-in-law's foreman told them to begin their picking and when they got down to the station he would show them the trees to spare. Mrs. Barbara Stembridge's foreman did not instruct the picking supervisors and the picking crew picked the red grapefruit in controversy. When Mr. Stembridge became aware of the reds having been picked, he contacted Mr. Goldtrap. Mr. Stembridge was very irate and Mr. Goldtrap was very apologetic not fully realizing how the fruit had been picked when it had been his intent to spare the fruit. At this point, Stembridge demanded $3/box for the fruit, and Mr. Goldtrap stated that was a high price. Thereafter, in either this conversation or a subsequent one, Stembridge stated perhaps he knew a man who would buy them, however, when contacted this individual was not interested. When Goldtrap was advised of this, Goldtrap said he would send another truck and collect the red grapefruit. The issue presented in this controversy, therefore, becomes a question of whether there was a transaction between Mr. Goldtrap and Mr. R. M. Stembridge. It is clear from the contract, Exhibit 1, that Mr. Goldtrap owned the fruit in question at the time Mr. Stembridge "purchased" the fruit from his mother. Goldtrap intended to leave the fruit because of it low value and instructed his supervisors to contact Stembridge so that Stembridge could identify the trees in which be was interested. However, these trees were not identified by Stembridge because Stembridge thinking the supervisors were referring to the white grapefruit trees, did not indicate the trees he desired. Therefore, Goldtrap's intent to relinquish his right to the fruit was never effectively communicated to Mrs. Barbara Stembridge or to R. M. Stembridge. Mr. Stembridge's demand for $3/box for the grapefruit was in essence a demand for damages and not an offer for sale. Even if it were viewed as an offer (overlooking Stembridge's lack of ownership), there is no evidence that Goldtrap accepted the offer. His response was to advise Stembridge that he would send another truck to pick up the fruit. This action was consistent with his prior contract with Barbara Stembridge to purchase all the fruit in the groves and his legal obligation. See Section 601.64(3), Florida Statutes. The testimony was clear that Mr. Goldtrap had not paid out the moneys received from the sale of the red grapefruit because of the questions raised by R. M. Stembridge. However, Barbara Stembridge has filed no complaint in this matter, and based upon the foregoing findings that there is no transaction or contract between R. M. Stembridge and Goldtrap, R. M. Stembridge is not entitled to an accounting or to payment for the fruit in controversy.
The Issue Whether the Respondent owes payment to the Petitioners for citrus sold by the Petitioners to the Respondent and, if so, what amount of payment is due.
Findings Of Fact Rogers Brothers Fruit Company was a licensed Florida citrus dealer in Lakeland, Florida, license #110, and as such posted a dealers bond for the 1992- 93 production season. Rogers Brothers Fruit Company, Incorporated was also a licensed Florida citrus dealer in Lakeland, Florida, license #111, and as such posted a dealers bond for the 1992-93 production season. In these cases, both Rogers Brothers Fruit Company and Rogers Brothers Fruit Company, Incorporated dealt interchangeably with, and are equally liable to, the Petitioners. CASE NO. 94-5393 R. T. Poppell and Carl Carpenter, Jr. are citrus growers in Florida. By contract entered into in October, 1992, Poppell and Carpenter sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation based on Erly Juice contract." CASE NO. 94-5394 R. T. Poppell is a citrus grower in Florida. By contract entered into in October, 1992, Poppell sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation to be based on Holly Hill contract." CASE NO. 94-5395 Jack P. Sizemore is a citrus grower in Florida. By contract entered into in October, 1992, Sizemore sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation to be based on Holly Hill contract." CASE NO. 94-5396 Mac A. Greco, Jr., and R. T. Poppell are citrus growers in Florida. By contract entered into in October, 1992, Greco and Poppell sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation to be based on Erly Juice contract." CASE NO. 94-5397 Maple Hill Groves, Inc., is in the business of growing oranges in Florida. By contract entered into in November 1992, Maple Hill sold oranges to Rogers Brothers. According to the contract, the price for the oranges was "participation to be based on Erly Juice contract." Erly Juice was a Florida company in the business of acquiring and processing citrus for juice. Although two of the contracts at issue in this proceeding indicate payment is based on participation in the Holly Hill contract, all parties apparently agree that the Erly Juice contract was the relevant payment reference. In this case, Rogers Brothers had entered into agreements with Erly Juice for a specified quantity of oranges. Rogers, in turn, contracted with growers to obtain the fruit Rogers needed to meet the obligation to Erly. Payment to the growers was to be based on "participation." Essentially, "participation" payment means that individual citrus growers get a proportionate share of the proceeds obtained by the buyer. During the 1993 citrus production season, Erly began experiencing financial difficulties. By letter of August 25, 1993, Erly notified citrus suppliers that the Erly plant in Lakeland had been sold and that the company had been reorganized. The letter further states as follows: We have now completed the calculation of the amount due for participants in our early/mid season orange pool. Our interim estimation of the final participation price is $.57 per lb. solid. We are, however, unable to pay the 25 percent advance amount due at this time. Negotiations continue with our bank to resolve this problem. By letter of September 29, 1993, Erly notified Rogers Brothers that Erly was unable to pay its obligations. The letter states: As we discussed on the phone this morning, ERLY Juice is unable to pay 100 percent of the amount due under our fruit contracts. We have, however, negotiated additional credit to allow us to offer 75 percent of the amount due in order to settle without litigation expense.... ...If you agree to settle our obligations to you for $22,630.54, please sign the attached Settlement Agreement and Release.... Rogers Brothers accepted the settlement offer. The settlement amount was calculated at 75 percent of the originally estimated $.57 lb. solid payment. The resulting payment is $.4275 lb. solid. Rogers Brothers, in turn, paid each Petitioner an amount equal to $.4275 lb. solid for the fruit obtained from each grower. The Petitioners assert that they are entitled to additional funds from Rogers Brothers in the amount of the 25 percent of the original $.57 estimate. The evidence fails to support the assertion.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that: The Florida Department of Agriculture and Consumer Services enter a Final Order dismissing the Petitions for Relief filed in these cases. DONE and RECOMMENDED this 16th day of August, 1995, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 16th day of August, 1995. APPENDIX TO RECOMMENDED ORDER The following constitute rulings on proposed findings of facts submitted by the parties. Petitioners The Petitioners' proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: I. Rejected, contrary to the evidence. Two of the contracts specify payment is based on the Holly Hill contract. Rejected, cumulative. Rejected, contrary to the evidence which establishes that the $.57 lb. solid payment was estimated. P, Q, R. Rejected, irrelevant. The Petitioners had no contract with Erly. S, T, U, V, W, X. Rejected, unnecessary. The evidence fails to establish that further payment from Rogers Brothers to the Petitioners is due under the terms of the contracts. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. COPIES FURNISHED: The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 Michael S. Edenfield, Esquire 206 Mason Street Brandon, Florida 33511 Michael D. Martin, Esquire 200 Lake Morton Drive, Suite 300 Lakeland, Florida 33801
The Issue The issue is whether Respondent owes Petitioner $13,853.00 for failure to harvest Petitioner's 2004 Valencia orange crop, as alleged in the Complaint.
Findings Of Fact Petitioner, Lionel LaGrow, is a resident of Highlands County, Florida. Respondent, Chapman Fruit Company, Inc. (hereinafter "Respondent" or "Chapman"), is a Florida corporation with its principal place of business in Hardee County, Florida. Chapman is a duly licensed fruit buyer in the State of Florida and is owned by Ray Chapman (hereinafter referred to as "Mr. Chapman"). Mr. LaGrow owns and operates a 26-acre grove in Highlands County, Florida. At all times relevant to this proceeding, Mr. LaGrow's grove contained varieties of citrus referred to as "Earlies," "Mids," and "Valencias." The Earlies and Mids varieties are picked early in each fruit season and the Valencias are picked late in each fruit season. At all times relevant to this proceeding Reggie Cooper (hereinafter referred to as "Mr. Cooper") was an employee of Chapman. Mr. Cooper was authorized by Chapman to enter into binding agreements and to make arrangements for and supervise the picking and hauling of Mr. LaGrow's citrus. Mr. LaGrow and Chapman entered into a Pick and Haul Contract (hereinafter referred to as "Contract") dated November 9, 2001, by which Mr. LaGrow agreed to sell, and Chapman agreed to purchase, fruit grown on the 26-acre tract located in Highlands County, Florida, for shipping seasons 2001-2002, 2002-2003, and 2003-2004. The Contract did not provide prices within the Agreement itself for picking and hauling the fruit. The parties verbally agreed to prices for picking and hauling at the time of each year's harvest. The Contract, as written, was a "Delivered-In" Contract, meaning that Mr. LaGrow retained the right to arrange for picking and hauling the fruit at any time during the term of the Contract. Mr. Cooper made arrangements for and supervised the picking and hauling of Mr. LaGrow's citrus. After the citrus was picked, Chapman provided Mr. LaGrow statements that accurately and fairly account for all fruit harvested by Chapman's contracted harvester. The statements showed the gross income, the costs of picking and hauling, as well as other expenses, and the net income to Mr. LaGrow. The parties followed the procedure described in paragraph 7, beginning in November 2001 of the 2001-2002 citrus shipping season through the harvesting of the Earlies and Mids in the 2003-2004 fruit season. There were 3,531 boxes of Earlies and Mids harvested by Chapman's contractor in November 2001 for the 2001-2002 citrus shipping season from the LaGrow property. When multiplied by the total pounds of solids (19,881.16), a gross purchase price of $15,904.93 resulted. Picking and hauling in the amount of $2.00 per box was deducted leaving $8,180.86 payable to Mr. LaGrow. Chapman tendered a check in the amount of $8,180.86 to Mr. LaGrow. There were 3,103 boxes of Valencias harvested by Chapman's contractor in March 2002 for the 2001-2002 citrus shipping season from the LaGrow property. When multiplied by the total pounds of solids (21,085.57), a gross purchase price of $20,031.29 resulted. Picking and hauling in the amount of $2.20 per box was deducted leaving $13,134.87 payable to Mr. LaGrow. Chapman tendered a check in the amount of $13,134.87 to Mr. LaGrow. There were 1,785 boxes of Earlies and Mids harvested by Chapman's contractor in the 2002-2003 citrus shipping season from the LaGrow property. When multiplied by the total pounds of solids (11,063.98), a gross purchase price of $10,068.22 resulted. Picking and hauling in the amount of $2.86 per box was deducted leaving $4,628.44 payable to Mr. LaGrow. Chapman tendered a check in the amount of $4,628.44 to Mr. LaGrow. There were 1,594 boxes of Valencias harvested by Chapman's contractor in the 2002-2003 citrus shipping season from the LaGrow property. When multiplied by the total pounds of solids (10,582.23), a gross purchase price of $10,053.12 resulted. Picking and hauling in the amount of $2.77 per box was deducted leaving $5,601.87 payable to Mr. LaGrow. Chapman tendered a check in the amount of $5,601.87 to Mr. LaGrow. There were 316 boxes of Earlies and Mids harvested by Chapman's contractor in the 2003-2004 citrus shipping season by Chapman's contractor from the LaGrow property. When multiplied by the total pounds of solids (1,847.46), a gross purchase price of $1,385.59 resulted. Picking and hauling in the amount of $3.55 per box was deducted leaving $252.57 payable to Mr. LaGrow. Chapman tendered a check in the amount of $252.57 to Mr. LaGrow. There were no problems or disputes between Chapman and Mr. LaGrow regarding the harvesting of the citrus until the 2003-2004 Valencia crop was to be picked. All harvesting of Mr. LaGrow's fruit during the Contract period was performed by Chapman's contracted harvester. There was no fruit harvested from the LaGrow property by any one other than Chapman's contracted harvester during the Contract period. During the Contract period there was a steady decline in production from the LaGrow grove property. From the first year of the Contract to the second year of the Contract there was a nearly 51 percent reduction in the number of net boxes harvested. From the second year of the Contract to the third year of the Contract, with respect to the Earlies and Mids, there was an 82.3 percent reduction in the number of net boxes harvested. There were an insufficient number of boxes of Valencia oranges on the LaGrow property available for harvest in 2004. Had Chapman harvested, or arranged to harvest the 2004 Valencia crop, once picking and hauling charges were applied, a negative balance owed would have resulted. Mr. Cooper, on behalf of Chapman, made multiple attempts to arrange for harvesting of the 2004 Valencia crop, including, but not limited to, contacting M.E. Stephens, IV, who declined to harvest the fruit based on the quantity available for harvest. For the same reason, other harvesters advised Mr. Cooper that they could not harvest the LaGrow 2004 Valencia crop. Though unsuccessful, Mr. Cooper's efforts to have the crop harvested were reasonable under the circumstances. Mr. Cooper never told Mr. LaGrow that because of the quantity of the Valencia oranges in 2004, he was unable to find a contractor to harvest the fruit. Although it became apparent that Mr. Cooper had not arranged for the Valencia oranges to be harvested, Mr. LaGrow never contacted Mr. Chapman or Mr. Cooper. Under the subject Contract, Mr. LaGrow could harvest or make arrangements to have the Valencia oranges harvested. However, Mr. LaGrow failed to take steps in 2004 to have the Valencia oranges harvested and sold. Mr. LaGrow's Complaint contends that Chapman owes him $13,853.00 for failing to harvest and sell the Valencia oranges in the 2004 season. In Petitioner's Proposed Recommended Order, he seeks $9,586.50 in "damages."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Commissioner of Agriculture enter a final order dismissing Petitioner's Complaint. DONE AND ENTERED this 7th day of November, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 2007.
