Findings Of Fact D. L. Wadsworth buys watermelons in the field and sells them to parties to whom the melons are delivered. In 1984 he agreed to buy melons from Charles Shackelford. In conducting his business Wadsworth is not an agent for the grower nor does he act as broker between the grower and the person who ultimately takes delivery of the melons. There was obviously a misunderstanding on the part of Petitioner as to the exact role played by Wadsworth in his buying of watermelons. Shackelford testified that Wadsworth agreed to handle his watermelon crop for the 1984 harvest. Wadsworth, on the other hand, does not buy fields but only "loads" on a daily basis. The harvesting of the watermelons is done by an agent of the grower, not by Respondent. Respondent buys the melons which he loads and ships out. On June 1, 1984, Respondent bought two loads of melons from Petitioner for which he paid four cents per pound. This is the same price Wadsworth paid to other growers from whom he purchased melons on June 1. On June 2, 1984, Respondent bought three loads of watermelons from Petitioner. Petitioner testified that he asked Respondent on June 2 what melons were bringing and was told four cents per pound. Wadsworth denies quoting a price to Shackelford but acknowledges that even if melons were bringing four cents a pound in New York he could not pay four cents per pound in Wauchula and ship them to New York without losing money on every watermelon he bought. Petitioner also testified that Respondent ceased handling his melons after June 2, 1984, that Respondent told him he was sick and was going back to Brandon and that he (Respondent) was not going to handle any more watermelons. Respondent denied that he was sick during this period or that he could not be contacted. Respondent paid his motel bill in Wauchula on June 9, 1984. On June 5, 1984, Respondent gave Petitioner his check for the watermelons he had purchased and an invoice (Exhibit 1) which showed the price for one load on June 1 at four cents per pound and three loads on June 2 at three and a half cents per pound. Respondent did not receive any complaint from Petitioner until the Complaint that is the basis of this hearing was filed. To support his testimony that he paid all growers the same price for watermelons purchased, Respondent submitted a list of those growers from whom he bought watermelons on May 31 through June 3 showing that he paid four cents per pound on the first two days of that period and three and a half cents per pound the last two days (Exhibit 2).
The Issue The issue is whether Respondent Four Seasons Produce, Inc., owes Petitioner money for watermelons and, if so, how much.
Findings Of Fact Around April 1, 1997, Ralph Chastain, as Petitioner’s president, met with Chad Barnett and Larry Bullock to discuss the possible sale of watermelons. Mr. Bullock was a buyer for Respondent Four Seasons Produce, Inc. (Respondent), and Mr. Barnett was his assistant. With apparent and actual authority to act for Respondent, Mr. Bullock agreed to purchase Petitioner’s watermelons. Petitioner required Respondent to pay a deposit of $40,000 to ensure that Respondent would take delivery, and Respondent would then pay all balances weekly. At Mr. Chastain’s insistence, one of the two men representing Respondent would always be present during the loading of watermelons. The case turns on the conditions of the oral agreement concerning unsatisfactory watermelons. Petitioner’s witness, Mr. Chastain, could testify, based on direct knowledge, to the conditions of the agreement. Respondent’s witness was Mr. Bullock’s supervisor and could only testify, based on direct knowledge, as to what he told Mr. Bullock. Petitioner’s version of the agreement is credited. This version of the agreement controls because there is no question that Mr. Bullock had the apparent, if not actual, authority to enter in an agreement upon the conditions described by Mr. Chastain. Petitioner delivered a total of 24 loads of watermelons to Respondent from April 19-28, 1997. Sometime in the second week, Respondent did not timely pay the balance for watermelons. After some inconclusive exchanges between Mr. Chastain and Mr. Bullock, it became apparent that Respondent believed that it could deduct from the balance the value of watermelons that were unsatisfactory to the wholesaler to which Respondent had shipped them. Petitioner delivered watermelons at an agreed-upon price of $71,335.70. For the reasons already noted, it is impossible to credit Respondent’s version of the agreement, so there was no legitimate basis for any deductions, except for actual payments. Respondent paid the $40,000 deposit and $14,655.61. The remaining balance is thus $16,680.09.
Recommendation It is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order determining that Respondent owes Petitioner $16,680.09. DONE AND ENTERED this 30th day of December, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1997. COPIES FURNISHED: Ralph Chastain, President JDI Farms, Inc. 1300 State Road 31 Punta Gorda, Florida 33982 Scott R. Teach Meuers, Dressler & Kerr, LLP 2590 Golden Gate Parkway, Suite 109 Naples, Florida 34105 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Hartford Fire Insurance Company Hartford Plaza Hartford, Connecticut 06115
The Issue Has Respondent VBJ Packing, Inc. (Respondent) paid Petitioner, Chastain- Bishop Farms (Petitioner) in full for watermelons represented by Respondent's load numbers 3002 and 3004 purchased from Petitioner during the 1995 watermelon season?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Petitioner was a "producer" of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes. Watermelons come within the definition of "agricultural products" as defined in Section 604.15(3), Florida Statutes. At all times pertinent to this proceeding, Respondent was licensed as a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes. Respondent was issued license number 8887 by the Department which is supported by Bond Number 137743741 in the amount of $75,000 written by Respondent Continental Casualty Company (Continental), as surety, with an inception date of January 1, 1995, and an expiration date of December 31, 1995. The Complaint was timely filed by Petitioner in accordance with Section 604.21(1), Florida Statutes. Sometime during the week prior to Monday, May 8, 1995, Petitioner and Respondent entered into a verbal agreement which contained the following terms: (a) Petitioner would sell Respondent a semi-trailer load of medium size melons of good quality to be harvested and loaded by Petitioner onto a semi-trailer furnished by Respondent; (b) Respondent would have the right and opportunity to inspect the melons before or during loading; (c) Respondent would pay Petitioner fifteen cents ($0.15) per pound for the melons loaded onto the trailer; (d) upon delivery at Petitioner's farm, the melons became Respondent's property and Petitioner had no further obligation to Respondent concerning the melons; and (e) settlement was to be made by Respondent within a reasonable time. Subsequent to the above agreement, Petitioner sold and Respondent bought, a second semi-trailer load of melons to be delivered under the same terms and conditions as agreed in the above verbal agreement. On Friday, May 5, 1995, Respondent's agent, Robert Allen and T. J. Chastain, a partner in Chastain-Bishop Farms, had a disagreement concerning Eddie Idlette, Respondent's inspector, being on the Petitioner's farm. Because of an incident in the past involving Idlette and Petitioner, Chastain did not want Idlette on Petitioner's farm and made this known to Allen. As result of this disagreement, Idlette left the Petitioner's farm and was not present on Monday or Tuesday, May 8 & 9, 1995, to inspect the two loads of melons. Allen testified that Chastain also excluded him from Petitioner's farm at this time, and that Chastain told him that neither he nor Idlette needed to be present during the loading of the melons because Chastain "would stand behind the loads". However, the more credible evidence shows that Chastain did not prevent Allen from inspecting the melons on Monday or Tuesday, May 8 & 9, 1995, or tell Allen that he "would stand behind the loads". Furthermore, there is credible evidence to show that Allen was present at Petitioner's farm on Monday and Tuesday, May 8 & 9, 1995, and he either inspected, or had the opportunity to inspect, the two loads of melons, notwithstanding Allen's testimony or Respondent's exhibit 6 to the contrary. Petitioner did not advise Respondent, at any time pertinent to the sale of the melons, that Petitioner would give Respondent "full market protection" on the melons. Furthermore, Petitioner did not agree, at any time pertinent to the sale of the melons, for Respondent to handle the melons "on account" for Petitioner. The more credible evidence supports Petitioner's contention that the melons were purchased by Respondent with title to the melons passing to Respondent upon delivery at Petitioner's farm, subject to inspection or the opportunity to inspect before loading and delivery. On Monday, May 8, 1995, Petitioner loaded Respondent's first semi- trailer with a State of Georgia tag number CX9379, with 2,280 medium size Sangria melons of good quality weighing 46,800 pounds and identified as Respondent's load number 3002. Respondent accepted load 3002 for shipment to its customer. Using the agreed upon price of fifteen cents ($0.15) per pound times 46,800 pounds, the Respondent owed Petitioner $7,020.00 for load number 3002. On Tuesday, May 9, 1995, Petitioner loaded Respondent's second semi- trailer with a State of New Jersey tag number TAB4020, with 2,331 medium size Sangria melons of good quality weighing 46,620 pounds and identified as Respondent's load number 3004. Respondent accepted load 3004 for shipment to its customer. Using the agreed upon price of fifteen cents ($0.15) per pound times 46,620 pounds, the Respondent owed Petitioner $6,9993.00 for load number 3004. The combined total amount owed to Petitioner by Respondent for load numbers 3002 and 3004 was $14,013.00. Respondent shipped load 3002 to E. W. Kean Co, Inc. (Kean). Upon receiving load 3002, Kean allegedly found problems with the melons. Respondent allowed Kean to handled the melons on account for Respondent. Kean sold the melons for $6,804.05 or 14.5 cents per pound. After Kean's deduction for handling, Kean paid Respondent $6,112.05 or 13.02 cents per pound. In accounting to Petitioner, Respondent made further deductions for handling and freight, and offered Petitioner $3,641.24 or 7.8 cents per pound for the melons on load 3002. Respondent shipped load 3004 to Mada Fruit Sales (Mada). Upon receiving load 3004, Mada allegedly found problems with the melons. By letter dated June 8, 1995 (Respondent's exhibit 4), Mada grudgingly agreed to pay the freight plus 10 cents per pound for the melons. Mada paid Respondent $4,662.00 for load 3004, and after Respondent deducted its commission of $466.20, offered Petitioner $4,195.80 or nine cents per pound for the melons on load 3004. By check number 18922 dated May 28, 1995, Respondent paid Petitioner $7,760.08. Respondent contends that this amount was offered to Kye Bishop in full settlement for loads 3002 and 3004, and that after Bishop consulted with Chastain, Bishop on behalf of Petitioner, accepted this amount in full settlement for loads 3002 and 3004. Bishop contends that he turned down the $7,760.08 as settlement in full but took the $7,760.08 as partial payment and proceeded to file a complaint with the Department against Respondent's bond for the difference. There is nothing written on the check to indicate that by accepting and cashing the check Petitioner acknowledged that it was payment in full for load numbers 3002 and 3004. The more credible evidence shows that Bishop did not accept the check in the amount of $7,760.08 as payment in full for loads 3002 and 3004 but only as partial payment, notwithstanding the testimony of Allen to the contrary. There was an assessment charge of $62.72 which Petitioner agrees that it owes and should be deducted from any monies owed to Petitioner by Respondent. Initially, Respondent owed Petitioner $14,013.00. However, substracting the partial payment of $7,760.08 and the assessment of $62.72 from the $14,013.00 leaves a balance owed Petitioner by Respondent of $6,190.20
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Agriculture and Consumer Services enter a final order granting the Petitioner relief by ordering Respondent VBJ Packing, Inc. to pay Petitioner the sum of $6,190.20. RECOMMENDED this 23rd day of May, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, 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 23rd day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4226A 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 in this case. Petitioner's Proposed Findings of Fact. 1. Proposed findings of fact 1(a) through 1(i) are adopted in substance as modified in Findings of Fact 1 through 16. Respondent VBJ Packing, Inc's Proposed Findings of Fact. Proposed finding of fact 1 is covered in the Conclusion of Law. Proposed finding of fact 2 is adopted in substance as modified in Findings of Fact 1 through 16. Proposed finding of fact 3, 6, 7 and 8 10, are not supported by evidence in the record. As to proposed finding of fact 4, Petitioner and Respondent VBJ Packing, Inc. agreed that Petitioner would sell and Respondent would pay $0.15 per pound for medium size melons. Otherwise proposed finding of fact is not supported by evidence in the record. See Findings of Fact 4, 7 and 8. As to proposed finding of fact 5, Respondent sold the loads. Otherwise proposed finding of fact 5 is not supported by evidence in the record. Respondent Continental elected not to file any proposed findings of fact. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Lakeland, Florida 32399-0800 David K. Oaks, Esquire David Oaks, P.A. 252 W. Marion Avenue Punta Gorda, Florida 33950 Mark A. Sessums, Esquire Frost, O'Toole & Saunders, P.A. Post Office Box 2188 Bartow, Florida 33831-2188
The Issue Whether or not Petitioners (complainants) are entitled to recover $10,258.98, or any part thereof against Respondent dealer and his surety company.
Findings Of Fact Petitioners are growers of watermelons and qualify as "producers" under Section 604.15(5) F.S. Respondent Eddie D. Griffin d/b/a Quality Brokerage is a broker-shipper of watermelons and qualifies as a "dealer" under Section 604.15(1) F.S. Respondent United States Fidelity & Guaranty Company is surety for Respondent Griffin d/b/a Quality Brokerage. This cause is governed by the claims made in the amended complaint. (Exhibit P-13) That amended complaint sets out the parameters of the claimed amounts as follows: AGREED PRICE PAID PRICE DIFFERENCE CLAIMED 6-13-92 Inv.#573 45,429 lbs. Jub. melons @ .04/lb.$1,816.80 (paid on 41,720 lbs.) Adv. -700.00 NWPB - 9.08 1,107.72 950.46 157.26 6-14-92 Inv.#586 48,060 lbs. Jub. melons @ .05/lb. 2,403.00 (paid @ .04/lb.) Adv. -700.00 NWPB - 9.61 1,693.39 1,202.79 490.60 6-14-92 Inv.#587 50,610 lbs. Jub. melons @ .05/lb. 2,530.50 (paid @ .04/lb.) Adv. -700.00 NWPB - 10.12 1,820.38 1,304.28 516.10 6-15-92 Inv.#592 44,800 lbs. Crim. melons @ .05/lb. 2,240.00 (paid @ .04/lb.) Adv. -700.00 NWPB - 8.96 1,531.04 1,153.04 378.00 6-15-92 Inv.#593 46,340 lbs. Crim. melons @ .05/lb. 2,317.00 (paid @ .04/lb.) Adv. -700.00 NWPB - 9.27 1,607.73 1,144.33 463.40 6-16-92 Inv.#598 47,170 lbs. Crim. melons @ .05/lb. 2,358.50 (paid @ .04/lb.) Adv. -700.00 NWPB - 9.43 1,649.07 1,177.37 471.70 6-16-92 Inv.#607 48,320 lbs. Crim. melons @ .05/lb. 2,416.00 (paid @ .04/lb.) Adv. -700.00 NWPB - 9.66 1,706.34 1,223.14 483.20 6-17-92 Inv.#628 1/ 40,890 lbs. Jub. melons @ .05/lb. 2,044.50 (no inv.# provided producer) Adv. -700.00 NWPB - 8.18 1,336.32 .00 1,336.32 6-17-92 Inv.#626 36,690 lbs. Jub. melons @ .05/lb. 1,834.50 (paid on 27,890 lbs.) Adv. -700.00 NWPB - 7.34 1,127.16 688.92 438.24 6-17-92 Inv.#627 37,300 lbs. Jub. melons @ .05/lb. 1,865.00 (paid on 30,500 lbs.) Adv. -700.00 NWPB - 7.46 1,157.54 818.90 338.64 6-17-92 Inv.#642 43,350 lbs. Job. melons @ .05/lb. 2,167.50 (paid @ .04/lb.) Adv. -700.00 NWPB - 8.67 1,458.83 1,025.33 433.50 6-18-92 Inv.#643 44,150 lbs. Crim. melons @ .05/lb. 2,207.50 (paid @ .04/lb.) Adv. -700.00 NWPB - 8.83 1,498.67 1,057.17 441.50 6-18-92 Inv.#644 45,060 lbs. Crim. melons @ .05/lb. 2,253.00 Adv. -700.00 NWPB - 9.01 1,543.99 .00 1,543.99 6-18-92 Inv.#646 43,180 lbs. Crim. melons @ .05/lb. 2,159.00 (paid on 38,380 lbs.) Adv. -700.00 NWPB - 8.64 1,450.36 1,211.32 239.04 6-18-92 Inv.645 47,070 lbs. Jub. melons @ .05/lb. 2,353.50 Adv. -700.00 NWPB - 9.41 1,644.09 .00 1,644.09 6-19-92 Inv.#663 43,520 lbs. Crim. melons @ .05/lb. 2,176.00 (paid @ .04/lb.) Adv. -700.00 NWPB - 8.70 1,467.30 1,032.10 435.20 6-19-92 Inv.#685 44,820 Crim. melons lbs. @ .05/lb. 2,241.00 Adv. -700.00 NWPB - 8.96 1,532.04 1,083.84 448.20 TOTAL DUE $10,258.98 The amended complaint admits that Respondent's deductions for advances and NWPB were appropriate on each load/invoice, and these are not in contention. The amended complaint admits that Respondent has already made the payments to Petitioners, which are indicated. It is only the claimed shortfall on each load that is at issue. At formal hearing, Petitioners discussed a load they claimed they had delivered to Respondent on 6-20-92. They had neither receipts, weight tickets, nor settlement sheets, (invoices) nor payment from Respondent on this load. This "lost load," as the parties described it, is not named in the amended complaint. Therefore, no findings of fact can be made thereon, due to lack of jurisdiction. Petitioner's Exhibit 1 appears to apply to loads 560, 561, 562, and 563, all loads occurring on 6-11-92. That date and those load numbers also are not listed in the amended complaint. Accordingly, no findings of fact will be made with regard to loads 560, 561, 562 or 563, due to lack of jurisdiction. Petitioners delineated two theories of recovery as to the seventeen claims actually named in the amended complaint. Petitioners claimed the right to recover from Respondents due to Respondent dealer's failure to pay for all or some of the poundage delivered by Petitioners to Respondent dealer on the following loads: 6-13-92 #573, 6-17-92 #628, 6-17-92 #626, 6-17-92 #627, 6-18-92 #644, 6-18-92 #646, 6-18-92 #645, 6- 19-92 #685. Petitioners claim the right to recover from Respondents due to Respondent dealer's failure to pay per pound at the rate of one cent below the "wire price" per pound on the following loads: 6-14-92 #586, 6-14-92 #587, 6- 15-92 #592, 6-15-92 #593, 6-16-92 #598, 6-16-92 #607, 6-17-92 #642, 6-18-92 #643, and 6-19-92 #663. For 6-15-92 18-24 lb. average 4.50 - 5.00 cents, few 6.00 26-32 lb. average 4.50 - 5.00 cents, few 6.00 For 6-16-92 18-24 lb. average 5.00 - 6.00 cents 26-32 lb. average 5.00 - 6.00 cents For 6-17-92 18-24 lb. average 6.00 cents, few higher and lower 26-32 lb. average 6.00 cents, few higher and lower For 6-18-92 18-24 lb. average 6.00 - 6.50 cents, "Wire prices" are printed in "spread" form. Evidence was presented (Composite Exhibit P-14), and the parties are agreed, that the following were the "wire prices" at certain times material. Otherwise, there is no evidence in this record concerning amounts or dates of "wire prices." mostly 6.00, few higher 26-32 lb. average 6.00 - 6.50 cents, mostly 6.00, few higher and lower For 6-19-92 18-24 lb. average 6.00 - 6.50 cents, mostly 6.00, few higher 26-32 lb. average 6.00 - 6.50 cents mostly 6.00, few higher and lower Since no "wire prices" were proven up for the days involved in loads 586, and 587, Petitioners are not entitled to recover on their theory of entitlement for those loads. Upon the allegations of the amended complaint and the "wire prices" proven, it appears that Petitioners have already received payment from Respondent dealer at one cent (or better) below the proven low-end "wire price" on loads 592, 593, 598, and 607. Therefore, Petitioners are not entitled to recover on their theory of entitlement for those loads. Petitioners (grower-producers) believed that they had negotiated an oral contract with Respondent dealer to the effect that the dealer would pay Petitioners at the rate of one cent below the "wire price" per pound on those days that Respondent took delivery from them of their watermelons. Respondent testified contrariwise that although such an arrangement was discussed, the parties' final oral agreement was concluded in terms of an excellent quality of every melon, and after negotiations were completed, the dealer understood that the price he was to pay the producers was just the same price per pound he paid all his other producers on any given day. In determining the daily uniform price per pound, Respondent admitted that he used the "wire price" as a guideline, but never explained exactly how the "wire price" constituted a guideline. The Petitioners and Respondent dealer had dealt with one another over a period of years. In past years they had discussed what was to occur if any loads were refused, in whole or in part, by retail buyers at their ultimate destinations. Over the years, the parties had agreed that for loads involving a "small deduct," that is, a small amount of refused melons, Respondent had unilateral authority to informally agree to dump the bad melons or take whatever he could get for the load and pass on the monetary loss to Petitioners. Petitioners conceded that the discretion to take or not take such losses always had been entirely that of Respondent during the parties' several years of past dealing, and that before 1992, whenever an ultimate recipient had refused melons, the "deduct" had been "worked out" this way with no prior notice to Petitioners. In short, by Petitioners' own evidence, it appears that up until the loads at issue in 1992, Petitioners had always simply accepted the Respondent's calculations concerning refusals for quality without requiring proof by way of a federal inspection. Mr. Randal Roberts Sr. testified that in his opinion, any "deduct" over 300 pounds was not "small." However, no evidence defining an industry standard for the relative terms of "small deducts" or "large deducts" was introduced. In light of the parties' standard arrangement over the whole course of their business dealings, it is deemed that Respondent continued to be within his rights in 1992 to unilaterally decide which melons to pay Petitioners for and which melons not to pay Petitioners for where quality became an issue between himself and the ultimate recipients. Petitioners estimated that on a scale of one to ten, the melons they had delivered to Respondent dealer in 1992 were "about a seven" when they delivered them to him, even though Respondent's agents culled out the really bad melons. It may be inferred therefrom that the loads were no better and were probably in worse condition when they reached their ultimate destinations. Respondent testified that he had dumped all or part of the remaining loads in question or reduced the price per pound from that of the "wire price" due to the poor quality of the melons based on complaints or refusals by the recipients when the melons reached their ultimate destinations. These are loads 573, 628, 626, 627, 644, 646, 645, 685, 642, 643, and 663. Although Petitioners adamantly denied that they had ever agreed to rely on federal inspections to determine which melons were bad and which were good, Respondent had gotten federal inspection sheets (R-2) to support his decision to dump all or part of loads 628, 643, 645, 663, and 685. Respondent dealer introduced his business journal (R-3) to show that load 643 was "bad" and load 644 was "dumped" due to poor quality. Respondent dealer introduced his contemporaneous business journal (R- 3) to show that except for loads 607, 643, 644, 663, and 685 he had paid as much to Petitioners per pound as to anyone else on the respective days he had taken delivery. On those loads he had paid Petitioners less than some other producers whom he dealt with on those days, but contended that he had reduced the price per pound paid to Petitioners on those days on the basis of poor quality, too. Nonetheless, 607 was paid at least at one cent below the "wire price" (See Finding of Fact 14), 643 was shown bad by inspection, 644 was dumped in its entirety per the dealer's journal, and 663 and 685 were shown bad by inspection. Upon the foregoing, it is determined that Respondent was within the parameters of his standard dealings with Petitioners where he reduced the price per pound of loads 643 and 663 on the basis of quality, just as he was within his clear unilateral authority and discretion to dump or discard whole melons from loads 628, 644, 645, and 685. After accounting for the foregoing loads, that leaves only loads 573, 626, 627, and 646 left in issue as to poundage and only load 642, (for which Respondent paid 4 cents per pound instead of one cent below the "spread" of the "wire price" for that day) at issue as to price per pound. As to each of these loads, Respondent produced business records wherein he had made contemporaneous notations concerning the quality complaints and/or number of melons rejected by the ultimate recipients. (R-2) Respondent did not pay Petitioners anything on load 645 because of freight deductions and Respondent also made freight deductions on some other invoices. There is no evidence in this record regarding how the parties had negotiated who would bear the ultimate cost of the freight. However, the Petitioners have not proven any entitlement to recover these charges which Respondent advanced and paid. Likewise, Petitioners also have not set out any trail by which the undersigned can trace any mathematical errors on any loads/settlement sheets to the Respondent dealer over Petitioners. Under the parties' standard mode of doing business, Respondent had clear unilateral authority and discretion to dump or discard whole melons for quality and pay Petitioners nothing for the whole melons dumped or discarded in loads 573, 626, 627, and 646. Upon the foregoing, it is determined that Respondent was also within the parameters of his standard dealings with Petitioners in not paying full negotiated price per pound on load 642 where some lesser price per pound could be negotiated with the ultimate recipient as to quality.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Agriculture enter a final order dismissing all named claims against Respondents. RECOMMENDED this 7th day of July, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 7th day of July, 1993.
Findings Of Fact Petitioner, Am-Pro Distributors, Inc., d/b/a Am-Pro of Florida (hereinafter referred to as "Am-Pro"), is a producer-broker of watermelons. Keith Warren has been the chief operating officer of Am-Pro at all times pertinent to this proceeding. Respondent, Brown's Produce, Inc. (hereinafter referred to as "Brown's"), is also a watermelon producer-broker. Brown's is located in Gilchrist County, Florida. Jerry Brown has been Brown's chief operating officer at all times relevant to this proceeding. In early 1994, James Dukes informed Mr. Warren that he was interested in purchasing watermelons. Mr. Warren was concerned about selling watermelons to Mr. Dukes because of doubts about whether Mr. Dukes would pay for the watermelons. When Mr. Warren told Mr. Dukes that he would not sell watermelons to him, Mr. Dukes mentioned Mr. Brown. Subsequent to Mr. Warren's conversation with Mr. Dukes, Mr. Warren received a telephone call from Mr. Brown. Mr. Brown informed Mr. Warren that he had been doing business with Mr. Dukes. Mr. Brown also told Mr. Warren that he did not have sufficient watermelons to supply Mr. Dukes. During the telephone conversation, Mr. Brown told Mr. Warren that, if he would send watermelons to Mr. Dukes as requested, he would pay for the watermelons. Mr. Warren told Mr. Brown that he would send the watermelons to Mr. Dukes, but that he would look to Mr. Brown for payment and not Mr. Dukes. Mr. Brown agreed. The agreement between Mr. Brown and Mr. Warren was not reduced to writing, consistent with industry practices. Nor did Mr. Brown or Mr. Warren agree on the amount of watermelons that were to be sent to Mr. Dukes. Watermelons were first shipped to Mr. Dukes on or about April 20, 1994. A total of nine shipments of watermelons were made to Mr. Dukes. The following shipments of watermelons were made to Mr. Dukes during April of 1994: DATE AMOUNT CHARGED April 20: $7,272.60 April 26: 7,139.20 April 27: 7,484.40 April 28: 5,909.50 April 28: 6,468.65 April 29: 6,551.20 On or about April 30, 1994, Mr. Warren decided not to send any further shipments of watermelons to Mr. Dukes because no payment had been made for the April shipments. Mr. Warren telephoned Mr. Brown about the lack of payment. Mr. Brown indicated that he would send some money and that he would get Mr. Dukes to send money directly to Mr. Warren that Mr. Dukes owed him. Mr. Brown asked Mr. Warren to continue sending watermelons to Mr. Dukes. Shortly after speaking to Mr. Brown about the nonpayment for watermelons sent to Mr. Dukes, Mr. Warren received three checks from Mr. Dukes. The checks were dated May 2, 1994. The total amount paid by Mr. Dukes was $10,000.00. These payments were credited against the indebtedness for watermelons shipped to Mr. Dukes. Mr. Warren informed Mr. Brown that he had received partial payment. Mr. Brown asked Mr. Warren to send more watermelons because he still did not have sufficient melons to supply Mr. Dukes. In reliance on Mr. Brown's statements, made additional shipments of watermelons to Mr. Dukes during May of 1994. The following shipments of watermelons were made to Mr. Dukes: DATE AMOUNT CHARGED May 2: 5,913.30 May 3: 4,620.60 May 3: 3,780.00 A total of $55,139.45 was invoiced for watermelons shipped to Mr. Dukes. The evidence failed to prove whether invoices for the individual shipments of watermelons to Mr. Dukes were provided to Mr. Brown. Invoices accepted into evidence are addressed to Brown's and J.B. Farms, Inc. Those invoices, however, were generated by an office of Am-Pro located in Plant City, Florida. The evidence failed to prove that the invoices were actually transmitted to Browns. The first written confirmation of the shipments was sent on or about May 21, 1994. Mr. Brown was, however, verbally informed of the shipments by Mr. Warren. Mr. Brown subsequently paid $20,000.00 to Am-Pro by check dated May 18, 1994. The payment was made by Mr. Brown through J.B. Farms, Inc. The payment was credited against the remaining indebtedness of $45,139.45, leaving a balance of $25,139.45. Mr. Warren made additional requests to Mr. Brown for payment of the remaining indebtedness after the $20,000.00 payment. Mr. Brown told Mr. Warren that additional payments would be made. During late May of 1994 or early June of 1994 Mr. Brown first informed Mr. Warren that he would not pay any further amount of the indebtedness for watermelons shipped to Mr. Dukes. On or about May 21, 1994, Johnna Thompson, an employee of Am-Pro, spoke with Mr. and Ms. Brown about the outstanding debt for watermelons shipped to Mr. Dukes. Ms. Thompson was asked to send a summary of the amounts invoiced for the watermelons. Ms. Thompson sent a summary of the watermelons shipped during April and May of 1994 by fax to Ms. Brown by Johnna Thompson. The check for $20,000.00 received by Am-Pro was sent in response to Ms. Thompson's request for payment. For some unexplained reason the check was dated May 18, 1994. The check, however, was not received until after May 21, 1994 and was paid May 27, 1994. At no time during Ms. Thompson's conversations with the Browns did either Mr. Brown or Ms. Brown indicate that only one shipment of watermelons to Mr. Dukes was to be paid for by Brown's. Nor did Mr. Brown, who had earlier told Mr. Warren that he would have Mr. Dukes send Mr. Warren money that Mr. Dukes owed Mr. Brown, tell Ms. Thompson that all or part of the $10,000.00 sent by Mr. Dukes was in payment for the one load of watermelons Mr. Brown allegedly agreed to pay for. Ms. Thompson also overheard one other conversation between Mr. Warren and Mr. Brown concerning the shipment of watermelons to Mr. Dukes. At no time during that conversation did Mr. Brown indicate that he was only paying for one shipment of watermelons.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Affairs enter a Final Order requiring that Brown's Produce, Inc., pay to Petitioner the sum of $25,139.45, within fifteen days of the Final Order and, absent such payment, requiring Lawyers Surety Corporation, after notice of nonpayment, to pay the same amount to Petitioner to the extent of the amount remaining under the bond. DONE and ENTERED this 21st day of May, 1996, in Tallahassee Florida. LARRY J. SARTIN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1996. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-5999A The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Petitioner's Proposed Findings of Fact Accepted in 5. Accepted in 6-7. Accepted in 8. Accepted in 8-10. 5-6 Summary of some events and testimony at the final hearing. Accepted in 12. See 20. Accepted in 13. Accepted in 12. Accepted in 13. Accepted in 13 and hereby accepted. Accepted in 14. 14-15 Summary of some events and testimony at the final hearing. Accepted in 15. Accepted in 18. 18-19 Accepted in 19. 20 Accepted in 20. 21-22 Accepted in 9 and 15 23 Accepted in 14 and 18. 24-25 Hereby accepted. Not supported by the weight of the evidence. Accepted in 21-22. Accepted in 21. Accepted in 23. 30-35 Not relevant. Summary of some events and testimony at the final hearing. 36-39 These proposed findings are a summary of events and testimony at the final hearing. The statement of Mr. Dukes was given no weight in this Recommended Order. 40-44 Summary of some events and testimony at the final hearing. Accepted in 8-9. Summary of some events and testimony at the final hearing. Cumulative. Accepted in 16. Summary of some events and testimony at the final hearing. Hereby accepted Browns' Proposed Findings of Fact Accepted in 1-2. Accepted in 3-4. Hereby accepted. Statement of the issue. Accepted in 5. Accepted in 6-7. Accepted in 8-9. 8-9 Not supported by the weight of the evidence. See 10. Hereby accepted. See 17 and 21. Accepted in 21. Accepted in 17 and 21. 15-16 Accepted in 17. 17-19 Hereby accepted. 20-21, 24-25 and 33-34 These proposed findings of fact are generally correct. The "discrepancies" in dates were not sufficient to raise doubt as to the pertinent facts in this case. The discrepancies relate to when the invoices were run. Not supported by the weight of the evidence. See 13. Hereby accepted. The last sentence is not, however, supported by the weight of the evidence. 26-27 Not supported by the weight of the evidence. 28-29 Not relevant. Not supported by the weight of the evidence. Not relevant and not supported by the weight of the evidence. Hereby accepted. 35 See 8 36-38 Not supported by the weight of the evidence. Hereby accepted. Not supported by the weight of the evidence. Not relevant. Not supported by the weight of the evidence. COPIES FURNISHED: James H. Buzbee, Esquire Post Office Drawer HHH Plant City, Florida 33564-9053 Theodore M. Burt, Esquire Post Office Box 308 Trenton, Florida 32693 Lawyers Surety Corporation 1025 South Semoran, Suite 1085 Winter Park, Florida 32792 Brenda D. Hyatt, Chief Bureau of License and Bond Department of Agriculture & Consumer Services Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: At all times pertinent to this proceedings Petitioner was a producer of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1983). At all times pertinent to this proceedings Respondent BB & W was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 245 by the Department, and bonded by Fireman's Fund Insurance Company (Fireman) in the sum of $15,000 - Bond No. SLR - 4152 897. At all times pertinent to this proceeding, Respondent Fireman was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983). Although Respondent BB & W contends that the watermelons in dispute were purchased through Scotty Luther Produce as were all watermelons purchased by the Respondent BB & W in Florida, the evidence shows that on the load in dispute, Respondent BB & W, through its president Cecil Bagwell was dealing directly with Petitioner when Cecil Bagwell contacted him by telephone to discuss the purchase of the watermelons and in making the necessary arrangements for a truck to pick up and deliver the watermelons to their destination. The evidence also shows that Scotty Luther of Scotty Luther Produce was not present in the area when the watermelons in dispute were purchased or loaded and was not involved in this transaction. The agreement between Petitioner and Respondent BB & W was that title and risk of loss passed to Respondent BB & W on shipment, with all remedies and rights for Petitioner's breach reserved to Respondent BB & W. Petitioner loaded three (3) loads of Charleston Grey Watermelons (grey) to Respondent BB & W on June 3 and 4, 1985 but only one (1) load is in dispute which is a load of grey watermelons loaded on June 4, 1985 on a truck furnished by Respondent BB & W. The net weight of the watermelons was 46,810 pounds and the agreed upon price was $0.03 per pound for a total price of $1,404.30 which Respondent BB & W has refused to pay. Petitioner also sold Respondent BB & W two (2) loads of grey watermelons on June 3, 1985 that were harvested from the same field as the watermelons in dispute and shipped: one load to Orlando, Florida; and one (1) load to Atlanta, Georgia without any incident of loss as a result of overmaturity or otherwise. The watermelons in dispute were not federally or state inspected before or during loading. Although Respondent BB & W contended that the watermelons had been inspected by a federal inspector at their destinations the evidence was insufficient to show that the watermelons in dispute had been inspected or that they were over mature upon arrival at their destination. Likewise the evidence was insufficient to prove that the watermelons in dispute were over mature upon loading. The record reflects that the watermelons in dispute were loaded in a closed trailer with no apparent ventilation and the refrigeration unit not operating when the trailer departed from Petitioner's farm after loading. Petitioner received a call from Respondent BB & W's office two (2) days after shipping the watermelons advising him that the watermelons had been "kicked" but it was two (2) more days before he reached Cecil Bagwell to find out that they were "kicked" for being over mature.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent BB & W be ordered to pay to the Petitioner the sum of $1,404.30. It is further RECOMMENDED that if Respondent BB & W fails to timely pay the Petitioner as ordered, then Respondent Fireman be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1983) Respectfully submitted and entered this 25th day of February, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 25th day of February, 1986. COPIES FURNISHED: Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301 Robert Chastain General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 Ron Weaver, Esquire, Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Joe W. Kight, Chief License and Bond Mayo Building Tallahassee, Florida 32301 Freddie Woods Jr. Post Office Box 52 Evinston, FL Cecil Bagwell, President BB & W Farms, Inc. Route 2, Box 855 Cordell, GA 31015
Findings Of Fact The Respondents, F. H. Dicks, III; F. H. Dicks, IV; and F. H. Dicks Company, are wholesale dealers in watermelons which they purchase and sell interstate. The Respondents' agents during the 1991 melon season in the Lake City area were Harold Harmon and his son, Tommy Harmon. The Harmons had purchased watermelons in the Lake City area for several year prior to 1991, and the Petitioner had sold melons through them to the Respondents for two or three seasons. The terms of purchase in these prior transactions had always been Freight on Board (FOB) the purchaser's truck at the seller's field with the farmer bearing the cost of picking. The terms of purchase of the melons sold by Petitioner to Respondents prior to the loads in question had been FOB the purchaser's truck at the seller's field with the farmer bearing the cost of picking. One of the Harmons would inspect the load being purchased during the loading and at the scale when the truck was weighed out. After this inspection, the melons accepted by Harmon were Respondents'. Price would vary over the season, but price was agreed upon before the melons were loaded. Settlement had always been prompt, and the Harmons enjoyed the confidence of the local farmers. On June 11, 1991, Petitioner was unable to fill out a load of regular size melons being sold to Respondent. Tommy Harmon was present and instructed Petitioner to finish the load with Pee Wee (smaller) melons. There were 10,602 pounds of Pee Wee melons loaded which Tommy Harmon agreed to purchase at 10 per pound. On June 18, 1991, a load of 49,330 pounds of Mirage melons was loaded for the Respondents. It is controverted by F. H. Dicks whether Harold Harmon was present when these melons were loaded; however, Dicks was uncertain and Harmon testified he could not remember. Petitioner testified Harmon was present, and inspected and accepted the melons under the same terms as all prior loads for a price of 6 per pound. Petitioner's testimony is uncontroverted, and there is no indication that the terms for this load were different from the other transactions, that is, FOB the purchaser's truck at the seller's field with the farmer bearing the cost of picking. Under the terms of sale, FOB purchaser's truck at seller's field, the Respondent bore the costs of transportation and the risk of refusal of the produce. Respondent's recourse was against the purchaser who refused delivery. If there was a problem with the grade, the Respondents also bore the risk of loss on sales which they made and which were rejected. The Respondents owe the Petitioner $1,060.20 for the Pee Wee melons, and $2,959.80 for the Mirage melons.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: Respondents be given 30 days to settle with the Petitioner in the amount of $4,020, and the Petitioner be paid $4,020 from Respondents' agricultural bond if the account is not settled. DONE and ENTERED this 6th day of October, 1992, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1992. COPIES FURNISHED: Terry McDavid, Esquire 128 South Hernando Street Lake City, FL 32055 F. H. Dicks, III c/o F. H. Dicks Company P.O. Box 175 Barnwell, SC 29812 Bob Crawford, Commissioner Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Department of Agriculture Division of Marketing, Bureau of Licensure and Bond 508 Mayo Building Tallahassee, FL 32399-0800 South Carolina Insurance Company Legal Department 1501 Lady Street Columbia, SC 29202 Victoria I. Freeman Seibels Bruce Insurance Companies Post Office Box One Columbia, SC 29202 Richard Tritschler, Esquire Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810
The Issue The issue is whether Respondent The Heidrich Corporation owes Petitioner money for watermelons and, if so, how much.
Findings Of Fact In June 1996, Petitioners, who are growers, sold watermelons to Respondent The Heidrich Corporation (Respondent), which is a broker. Respondent shipped the watermelons directly from Petitioners' fields to Canada for resale. This case involves eight deliveries of watermelons from Petitioners to Respondent. Petitioners' invoice numbers and dates of sale are as follows: 1392 on June 14, 1393 on June 15, 4004 on June 18, 4005 on June 19, 4013 and 4015 on June 22, 4016 on June 23, and 4034 on June 25. The understanding between Petitioners and Respondent relieved Respondent of the responsibility of paying for watermelons that were nonconforming when received by Respondent's customer. Nonconforming melons are melons that are decayed, undermature, overmature, destroyed for inspection, or otherwise reasonably unacceptable to Respondent's customer. However, nonconforming melons do not included melons that are unacceptable due to damage in transit; such damage would consist of cracking or bruising. The parties did not explicitly agree who would bear freight, inspection, and disposal expenses of nonconforming melons. After deduction for nonconforming melons, the June 14 shipment comprised 40,102 pounds. The parties agreed to a price of 4.5 cents per pound for this shipment, so the amount due Petitioners is $1804.59. Respondent paid freight of $92.31 attributable to decayed watermelons. After deduction for nonconforming melons, the June 15 shipment comprised 45,181 pounds. The parties agreed to a price of 4.5 cents per pound for this shipment, so the amount due Petitioners is $2033.15. Respondent paid freight of $33.75 attributable to decayed watermelons. After deduction for nonconforming melons, the June 18 shipment comprised 35,963 pounds. The parties agreed to a price of five cents per pound for this shipment, so the amount due Petitioners is $1798.15. Respondent paid freight of $226.16 attributable to decayed watermelons. The June 19 shipment was substantially nonconforming. Sixty-eight percent of the watermelons were defective on receipt in Canada, possibly due to excessive rainfall and premature cutting. Respondent's customer rejected the entire load, rather than try to find the few salable melons. For the purposes of the present case, the proper accounting for this shipment is to multiply the unloaded weight of 32,890 pounds by the percentage of conforming watermelons (32 percent). The result of 10,525 pounds represents the weight of conforming melons on receipt in Canada. The parties agreed to a price of five cents per pound, so the amount due Petitioners is $526.25. Respondent did not separately state the freight attributable to the nonconforming fruit that was not the result of shipping. Expressed as percentages of the shipping weight (not unloaded weight), eight percent of the melons were decayed, 38 percent were undermature, and five percent were overmature, for a total of 51 percent, or 20,981 pounds, of nonconforming melons. Freight on this shipment was 5.5 cents per pound, so the freight expenses for these nonconforming melons is $1153.96. Respondent also credited its customer with $700 to pay for the disposal of the melons. There were two relevant shipments on June 22. The first is documented by Petitioners' invoice 4013. After deduction for nonconforming melons, this shipment comprised 41,316 pounds. The parties agreed to a price of five cents per pound for this shipment, so the amount due Petitioners is $2065.80. Respondent paid freight of $231.20 attributable to decayed watermelons. The second June 22 shipment is documented by Petitioners' invoice 4015. The deduction for nonconforming melons requires two calculations. On arrival in Canada, prior to governmental inspection, Respondent's customer reasonably rejected 13,572 pounds out of 47,270 shipped pounds; 12,612 pounds were nonconforming (the remaining 960 pounds were bruised). Of the remaining 33,698 pounds, 15 percent, or 5055 pounds, were also nonconforming, as reflected in an ensuing governmental inspection. This means that 18,627 pounds of the original shipment were nonconforming, leaving 28,643 pounds of conforming melons. The parties agreed on five cents per pound for this shipment, so the amount due Petitioners is $1432.15. Respondent paid freight of $931.35 attributable to the nonconforming melons. Respondent's customer reasonably rejected 68 percent of the June 23 shipment of 44,120 pounds. However, 19 percent of the rejected melons were bruised, so the net deduction for nonconforming melons in the June 23 shipment is 20,736 pounds, leaving conforming melons of 23,384 pounds. The parties agreed to a price of five cents per pound for this shipment, so the amount due Petitioners is $1169.20. Respondent paid freight of $1036.80 35 attributable to the nonconforming melons. Respondent also paid its customer $850 for dumping and inspection fees. The final shipment, which took place on June 25, was by bins, rather than loose watermelons. There were no nonconforming melons in this shipment. The parties agreed that Respondent would pay $1272.55 for this shipment.
Recommendation It is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order determining that Respondent owes Petitioners the sum of $12,101.84. DONE AND ENTERED this 7th day of July, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1997. COPIES FURNISHED: Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Francis A. Oakes Oakes Produce Company 2744 Edison Avenue Fort Myers, Florida 33916 Francis X. Heidrich, President The Heidrich Corporation Post Office Box 151059 Altamonte Springs, Florida 32715-1059 Aetna Casualty & Surety Company 151 Farmington Avenue Hartford, Connecticut 06156
The Issue The dispute here involves the alleged non-payment for watermelons that the Petitioner claims to have sold to the Respondent.
Findings Of Fact The case is being considered in accordance with the provisions of Chapter 604, Florida Statutes, which establishes the apparatus for settling disputes between Florida produce farmers and dealers who are involved with the farmers' products. Lyman Walker, a Florida farmer, contends by his complaint that five loads of watermelons grown and harvested in Florida, were sold directly to Mr. Pagano & Sons, Inc., in the person of Maurice Pagano, on the following dates, by the following types; in the following weight amounts; at the following price per pound, and for the following total price per load: June 2, 1977, small Charleston Gray Watermelons, 51,550 lbs. at .03-1/2, totaling $1,804.00 June 2, 1977, Charleston Grey Watermelons, 47,440 lbs. at .03-1/2, totaling $1,660 June 7, 1977, Charleston Grey Watermelons, 47,850 lbs. at .02, totaling $957 June 7, 1977, Charleston Gray Watermelons, 49,190 lbs. at .02, totaling $983 June 8, 1977, Charleston Grey Watermelons, approximately 46,000 lbs. at .02, totaling $920 Total for all loads $6,325. An examination of the testimony offered in the course of the hearing, supports the Petitioner's contention. The facts in this case also show that Maurice Pagan, acting in behalf of the Respondent gave money to the Petitioner for having the watermelons loaded for shipment. That amount was $2,500, and when deducted from the $6,325 total price leaves a balance owing to the Petitioner of $3,825. The Respondent has not paid the $3,825 which it agreed to pay to the Petitioner and under the facts of the agreement it is obligated to pay the Petitioner. One final matter should be dealt with and that pertains to the approximation of the weight of the June 8, 1977, load. The figure used is an approximation, because the Respondent's representative at the loading in Florida, Phil Pepper, took that load away and failed to return the weight ticket. This caused the Petitioner to have to approximate the weight and the approximation is accepted in determining the amount which the Respondent owes the Petitioner.
Recommendation It is recommended that the Respondent be required to pay the Petitioner $3,825 for watermelons it purchased from the Petitioner. DONE AND ENTERED this 21st day of February, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jon D. Caminez, Esquire 1030 East Lafayette Street Suite 101 Tallahassee, Florida 32301 Maurice Pagano 59 Brooklyn Terminal Market Brooklyn, New York 11236 L. Earl Peterson, Chief Bureau of License and Bond Division of Marketing Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32304
The Issue Whether Respondent, Larry D. Henson d/b/a Cordele Melon Depot, is liable to Petitioners for $5,817.40 for watermelons grown by Petitioners and brokered by Respondent, pursuant to Chapter 604, Florida Statutes.
Findings Of Fact Petitioner Andy Mulberry owns real property in Alachua County, Florida. He and Petitioner Ermon Owens (the growers) were partners or joint venturers for the purpose of producing a profitable watermelon crop on Mr. Mulberry's property during the summer of 2003. Respondent Larry Henson is a licensed "dealer in agricultural products," as defined in Section 604.15(1), Florida Statutes. He lives out of state and his business is located in Cordele, Georgia. On June 21, 2003, Hardy Tate contacted Andy Mulberry, stating that he had noticed Petitioners' crop of watermelons was of excellent quality. Mr. Tate stated that he believed his "boss," Respondent Larry Henson, would be interested in buying the watermelons. Mr. Tate had never worked with either Petitioners or Respondent before the present "deal," and had only met Mr. Henson a few months earlier. Mr. Tate is a "watermelon bird dog." That means that he is a freelance promoter of agreements between growers and dealers. His business is connecting growers (in this case, Owens and Mulberry) and dealers, a/k/a brokers, (in this case, Henson, d/b/a Cordele Melon Depot) and facilitating their negotiations and harvest. He does not work regularly for any one grower or dealer, but on his own initiative, acts as "go- between" for many growers and dealers. Mr. Tate resides in Ft. Pierce, Florida, and does not maintain his own crew of harvesters. However, Mr. Tate will pick up laborers wherever he travels and oversee their harvesting of agricultural products. These laborers may be described as "local," "day," "itinerant," or "casual," depending upon which of several federal or state statutes may apply. On June 21, 2003, Mr. Tate cajoled Mr. Mulberry into letting him put Mulberry and Henson together so Mr. Tate and his harvesters could “make a little money." After being assured by Mr. Tate by telephone that Mr. Mulberry had a good crop of medium-sized melons, Mr. Henson dealt directly with Mr. Mulberry by telephone to set the terms of their oral contract. Mr. Henson told Mr. Mulberry that he had a buyer in Ohio who needed quality, medium-sized watermelons. It was estimated that the Petitioners' field would yield three truckloads of such melons. Messrs. Henson and Mulberry initially negotiated a price of seven cents per pound for the first truckload and six cents per pound for all subsequent truckloads, to be paid by Mr. Henson to Petitioners after sale of the melons at the ultimate point of delivery in Ohio. There were apparently no price variations considered for potential market price fluctuations or for the cost of freight (truck and driver). Despite some vacillation in Mr. Mulberry's testimony, it is found that he clearly understood that Mr. Henson expected to receive top quality, medium-sized melons at the ultimate point of delivery in Cleveland, Ohio, for the first truckload. Also, upon a preponderance of the credible evidence, it is found that Mr. Henson made clear to Mr. Mulberry that he expected the second truckload of melons also to consist of top quality medium-sized melons at the ultimate point of delivery in Cleveland, Ohio. While there is some suggestion within the testimony that if the first two truckloads sold well in Cleveland, Ohio, Mr. Henson might have accepted a third truckload of mixed large and small melons, that is irrelevant in calculating what, if anything, the parties owe each other, because that truckload was sold elsewhere, and as a result, Petitioners are not seeking money from Respondent for that truckload. (See Finding of Fact 36.) Petitioners had been ready to harvest several days earlier, but had no harvesting crew on the premises or on standby 1/ and were short of money to hire one, so it was finally agreed between Mr. Henson, Mr. Mulberry, and Mr. Tate that Mr. Henson would advance Petitioners the cost of harvesting and loading (calculated at two cents per pound) and would forward to Mr. Tate the money to pay harvesters secured by Mr. Tate, with the understanding that this amount was to be deducted from the amount due from Mr. Henson to Petitioners for the first truckload of watermelons. This arrangement meant that Petitioners could then expect to be paid only five cents per pound and only four cents per pound for the first and second truckloads, respectively. Mr. Tate hired a local crew, set the crew to picking, picked up the money advanced by Mr. Henson, and ultimately paid the crew for harvesting and loading. It is also noted that on the two nights Mr. Tate's crew worked on Petitioners’ crop, Mr. Owens and his wife bought dinner for the crew. Mr. Henson hired and sent a third-party truck and driver to Petitioners’ field on June 21, 2003. Although it is clear that all concerned were aware Mr. Henson was paying the cost of the freight by providing the truck and driver, there is no competent evidence that the parties ever reached any meeting of the minds as to how the cost of freight was ultimately to be allocated between the growers and broker. There also is no evidence in this record setting out the standard operating procedure or business custom by which such freight costs are normally allocated in the trade. The crew selected by Mr. Tate harvested the first truckload of melons on or about June 21, 2003. Before they began harvesting, Mr. Tate cut open some medium-sized melons and showed the crew and Mr. Mulberry the size and quality of melons Mr. Henson wanted. Mr. Tate personally oversaw approximately 750 of the 2000 melons that went into the first truck provided by Mr. Henson. These melons appeared to be of good quality and the correct size (medium). However, Mr. Tate was not in the field all of the time. In addition to being gone for approximately five hours on June 21, 2003, to pick up the wages of the harvesters which Mr. Henson had advanced, Mr. Tate was apparently off-premises on other days in other fields with other crews. Although Mr. Tate testified that Mr. Henson would hold him responsible for the size and quality of the melons loaded, Mr. Tate assumed that Mr. Mulberry was in charge of loading his melons while he, Mr. Tate, went to pick up the funds advanced by Mr. Henson to pay the harvesting crew. According to Mr. Tate, it is common procedure for him to rely on the grower to see that the correct kind of melons are loaded, because if the right type and quality of melons do not arrive at the ultimate destination, the grower will not be paid. Because Mr. Tate's commission from Mr. Henson also would be based on the size and quality of the melons at the ultimate point of delivery, in Mr. Tate's opinion, his and Mr. Mulberry's interests in loading good melons were the same. With regard to the first truckload of melons, Mr. Tate was gone from Petitioners' field for approximately five hours. When he returned to the field, the first truckload was fully loaded. Mr. Tate remembered the quality of the first 700 melons he had seen loaded and was satisfied with the melons on the top of the truck, but he did not check the full depth of the first truckload for size and quality. The entire first truckload amounted to approximately 2000 melons, including approximately 1250 melons Mr. Tate had not personally checked. The greater weight of the credible evidence is that the first truckload of melons left Mr. Mulberry’s field after midnight on June 22, 2003, that is, plus or minus 12:01 a.m. June 23, 2003. The greater weight of the credible evidence is that the first truckload weighed in at 42,820 pounds of melons. Given Mr. Henson’s and Mr. Mulberry’s agreement with regard to harvesting costs, this weight would mean that the growers would be paid five cents per pound upon delivery of that weight of medium-sized, good quality melons in Cleveland, Ohio. The first truckload of melons was delivered to Mr. Henson's customer in Cleveland, Ohio, on the morning of June 24, 2003. There is no competent evidence that there was any unreasonable delay in transit. Due to the poor quality and varying sizes of these melons (from small to large instead of all medium), the customer at the point of delivery refused delivery and telephoned Mr. Henson with that information. Mr. Henson told the Ohio customer to call for a federal inspection of the first truckload of Petitioners' melons. Mr. Henson then telephoned Mr. Mulberry and told him of the problem with the first truckload. The federal inspection report, dated 11:20 a.m., June 24, 2003, declared that the average defects were 34 percent and serious defects were 26 percent of the first truckload, and further noted that many of the melons were in an advanced state of decay. On this basis, the Ohio customer, the Economy Produce Company, rejected the first truckload. Ultimately, the Economy Produce Company sold the first truckload at a vastly reduced rate and transmitted the full amount received to Mr. Henson. This amount was $700.00. There is considerable dispute about whether the second truckload had been loaded and had actually left Petitioners' field before Mr. Henson faxed the federal inspection report to Mr. Mulberry. The best reconstruction of chronological events is that Mr. Tate started to oversee the loading of the second truckload in Mr. Mulberry’s field on June 23, 2003, but loading was not completed until June 24, 2003. On the morning of June 24, 2003, when Mr. Henson telephoned Mr. Tate to tell him that the first truckload had been bad (see Finding of Fact 23), Mr. Tate was not in Mr. Mulberry’s melon field. Mr. Henson then faxed the federal inspection sheet to Mr. Mulberry. When Mr. Tate later arrived at Mr. Mulberry's melon field, Mr. Tate explained the inspection sheet to Mr. Mulberry. Then, Mr. Mulberry and Mr. Tate went to inspect the second truck which was still being loaded. Mr. Tate cut open several melons from the second truck and showed them to Mr. Mulberry, citing their large size and over-ripeness as probably the same problems that had occurred with the first truckload. Reconciling the differences in the witnesses’ respective testimony as much as possible, it appears that both Mr. Mulberry and Mr. Tate knew that there were some off-size and some over-ripe melons in the second truckload, but Mr. Henson was allowed to believe, during his phone calls concerning the problems with the first truckload, that the second truckload had left the field and could not be held. Mr. Tate warned Mr. Mulberry that there would be some problems with the second load too. Mr. Tate told Mr. Mulberry not to load any more large melons and to leave the large melons under a tree packed in straw. Mr. Tate then left the melon field. When Mr. Tate returned, the second truckload had already left the field, and there were no large melons stacked under the tree. At that point, Mr. Tate realized Mr. Mulberry had allowed all sizes of melons to be loaded into the second truck. If the second truckload, containing 47,000 pounds of melons, had arrived in Cleveland, Ohio, with the right size and quality of melons, Petitioners would have been entitled to four cents per pound from Mr. Henson, on the basis of their ultimate harvesting agreement. When the truck driver radioed to Mr. Henson on June 24, 2003, that he was en route to Cleveland, Ohio, with the second truckload of melons and that the truck was passing Lake City, Florida, Mr. Henson diverted the second truckload of melons to his wholesale warehouse in Cordele, Georgia. Mr. Henson did this because he did not want to incur freight charges of approximately $1,800.00 on a second load of melons which could be as bad as the first. Mr. Henson’s calling the truck into the Georgia facility did not sit well with the third-party truck driver, because he already had arranged a return run from Cleveland, Ohio, to Florida. Upon Mr. Henson's own inspection and that of his qualified employee, Robbie Alvarez, in Cordele, Georgia, Mr. Henson determined that the second truckload contained many melons which were over-ripe; some melons which were under-ripe; some melons which were the wrong size; and some melons which were "bottle necks." Mr. Henson decided not to send the second truckload on to Ohio and sustain shipping charges in excess of what he could reasonably expect in payment for the watermelons. Mr. Henson made several telephone calls to Mr. Mulberry urging him to come to Cordele, Georgia, to inspect the second truckload and to work out some fair monetary arrangement. Mr. Mulberry promised to come to Cordele, Georgia, and so Mr. Henson let the second truckload sit, awaiting Mr. Mulberry's arrival. However, Mr. Mulberry did not go to Cordele and did not notify Mr. Henson that he had changed his mind on the advice of the Alachua County Agent. Mr. Mulberry did not ever inform Mr. Henson that he was not coming to inspect the second truckload. Messrs. Owens and Mulberry testified that Mr. Henson sent them "release from liability" papers to sign, so that Mr. Henson would not have to pay them for the two loads of watermelons. Mr. Henson testified that he sent "release papers" so that he could sell the second load of watermelons in Cordele, Georgia. Given the evidence as a whole, Mr. Henson is the more credible witness on this issue. After approximately a day and one-half, during which Mr. Mulberry failed to come to Georgia as he had promised, Mr. Henson sold the second truckload of watermelons to By-Faith Co. for $2,150.00 and let the irate third-party truck driver go about his business. Mr. Henson did this in order to minimize his loss on the second truckload of inferior watermelons. Messrs. Mulberry and Owens sold the 1,300 melons of various sizes that would have made up the third truckload to Tavaries Brown, a local trucker, who testified that "they [the melons] were in pretty good shape, no sunburn." However, the sizes and prices of these melons were not proven-up, and “sunburn” is a different problem than decay. Therefore, Mr. Brown’s testimony does not demonstrate that the preceding two truckloads consigned to Respondent were medium-sized, good quality melons. Messrs. Mulberry and Owens sold other melons from their crop at a roadside stand, without any complaints from customers. However, the sizes and prices of these melons also was never proven-up so those sales also do not demonstrate that the first two truckloads consigned to Respondent were medium- sized, good quality melons. Petitioners seek to receive $2,997.40 for the first load of melons and $2,820.00 for the second load of melons. These figures are based on Petitioners’ contention that both truckloads of melons consigned to Respondent were the right size and of good quality. Their calculations are based upon 42,820 pounds of melons in the first load, at seven cents per pound, and 47,000 pounds of melons in the second load, at six cents per pound. Neither monetary amount accounts for the price Petitioners agreed they would owe Mr. Henson for the costs he advanced to them for harvesting at two cents per pound. Those figures would be $2,142.50 and $1,880.00, respectively. Respondent calculated the following amounts as due to him as follows: Load No. 1 Net return $ 700.00 Less 2¢ per pound advance (harvesting) -856.40 Less freight to Cleveland, Ohio -1,712.80 Less NWPD Dues -8.56 Cordele Melon Depot Commission (waived) 0.00 Net due Cordele Melon Depot $1,877.76 Load No. 2 Net return from By-Faith Co. $2,150.00 Less 2¢ per pound advance (harvesting) -940.00 Less freight to Cordele, Georgia -400.00 Less NWPD Dues -9.40 Net due Petitioners $ 800.60 Net due Cordele Melon Depot $1,877.76 Less net due Petitioners -800.60 Balance due Cordele Melon Depot $1,077.16 The evidence of the amounts paid to Respondent dealer is sufficient to establish the net returns of $700.00 and $2,150.00 respectively. The charges for harvesting costs are a matter of simple arithmetic and appear correct. At the hearing, Petitioners did not challenge Respondent's charge for the NWPD dues, but neither was there any evidence of a meeting of the minds or a standard mode of conduct with regard to this amount. Since there was no clear agreement that Petitioners would reimburse Respondent for freight costs, those calculations by Respondent are not substantiated. The amounts claimed for freight costs by Respondent also may not be established merely upon Respondent's testimony without some corroborating bill of lading or other document itemized by the third-party hauler.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order requiring Respondent and/or its surety to pay Petitioners $1,053.60. DONE AND ENTERED this 12th day of February, 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 February, 2004.
