Findings Of Fact Petitioner Rushton is a grower of watermelons and qualifies as a "producer" under Section 604.15(5) F.S. Respondents Smith are broker-shippers of watermelons and qualify as dealers" under Section 604.15(1) F.S. Respondent South Carolina Insurance Company is surety for Respondents Smith. The amount and period of the bond have not been established. Petitioner's complaint sets out the amounts owed as follows: DATE OF SALE QUANTITY, AND PRICE PRODUCTS PER UNIT GRADE 6/7/92 Inv.#2051 43,200 lbs. AMOUNT Crimson Sweet Melons @.04 lb. $1,728.00 NWPB - 8.64 Adv. - 700.00 $1,019.36 6/10/92 Inv.#2053 43,900 lbs. Crimson Sweet Melons @3.5 lb. $1,536.50 NWPB - 8.78 Adv. - 700.00 $ 827.72 6/10/92 Inv.#2056 46,180 lbs. Crimson Sweet Melons @3.5 lb. $1,616.30 NWPB - 9.24 Adv. - 700.00 Less Payment of - 933.18 $ 907.06 $2,754.14 TOTAL $1,820.96 Regardless of the form of the complaint, Petitioner acknowledged at formal hearing that his claim relates only to Load 2051, that he did not dispute the deductions made by Respondents for NwPB or the advances paid him by the Dealer. Petitioner's complaint lumped the three loads together only because Respondent chose to cut a single check for all three loads and pay his accounts that way nearly three months after Load 2051 was shipped. With regard to Load 2051, it is not disputed that 43,200 pounds of watermelons were loaded by Dealers in Petitioner's field on June 7, 1992. The 1992 season was Petitioner's initial endeavor at growing watermelons. He was "in a bind" from the beginning of the growing season. Petitioner had originally intended to sell his watermelons to another buyer- dealer, but that person failed to send trucks to Petitioner's field. Petitioner was approached by Bobby Patton who put him in contact with Respondent Jim Smith on Saturday, June 6, 1992. Petitioner testified that Bobby Patton cut into and inspected sample melons and accepted most of his field of melons on Friday, June 5, 1992. After speaking with Petitioner by telephone on Saturday, June 6, 1992, Jim Smith went to Petitioner's field on Sunday, June 7, 1992. Petitioner and Respondents had no prior business dealings before their June 6 phone call. Jim Smith did not arrive at Petitioner's field on June 7, 1992 until the open-topped truck he had sent was half-loaded with Petitioner's melons. At that time, Smith and his employee, Dale Hires, inspected the melons on the truck and found some hollow hearts. At that time, Mr. Smith thought that the melons on the truck had been picked since Friday, but the undersigned accepts Petitioner's testimony and finds as fact that all the melons loaded into Load 2051 had been picked only since Saturday. Petitioner admitted that the melons were, "a little overripe and should have been loaded on Thursday or Friday and moved." Petitioner admitted that he and Smith then discussed that the melons were a little overripe and that they were "close" and had to be moved. Respondent Jim Smith told Petitioner there was a "potential problem," and he would let him know if a problem actually developed. Smith also said that they would try to work together and move the melons and try not to get Respondents "hurt." However, Petitioner did not specifically agree to "help" Respondent on melon loss. Petitioner later thought he was "helping" by putting a trucker up overnight in a motel at Petitioner's own expense. Smith used the phrases, "help each other" "help us" and "not hurt" to mean, "help Respondents so that Respondents would not show a loss." Petitioner testified that he had understood on June 7 that he was "not going to ride no freight" on the load. Smith concurred that this phrase he had used was mutually understood to mean that Respondents agreed to pick up the cost of freight. Respondent Smith considered the arrangement reached on June 7 to be a brokeraged deal wherein Respondent Dealers would "ride the freight" and Petitioner would "ride the melons," that is, Respondents expected Petitioner to absorb any loss occasioned by bad melons. Petitioner, on the other hand, considered all the watermelons accepted without reservation by Hires and Smith when they stepped off the half-loaded truck on June 7, 1992 and continued to load the truck with melons of questionable ripeness. Despite Petitioner's first assertion that he considered Bobby Patton's acceptance of the melons on Friday, June 5 to have been made on behalf of Respondents, that testimony is found to be contrary to his subsequent and more credible testimony that he considered Dale Hires to be acting for Respondents on June 7 and that he personally negotiated with Jim Smith on June 6 and June 7, after Bobby Patton was out of the picture. Respondents did nothing to cloak Bobby Patton, an independent contractor who "finds" melon fields, with apparent agency to negotiate the final "deal" for them with Petitioner. The "deal" between Petitioner and Respondents, such as it was, was finally and fully negotiated on June 7 between Petitioner and Respondent Jim Smith. The "deal" applied only to a certain specified segment of Petitioner's watermelon crop. Respondent Dealers thereafter handled a total of ten loads of watermelons. Respondent Dealers paid Petitioner satisfactorily on nine of the ten loads Only Load 2051, the first load, presented any problems. No agreement as to Respondents accepting all of Petitioner's field of watermelons was ever reached between the parties. Petitioner lost money with regard to the rest of his field, but that loss is in no way attributable to Respondents, despite Petitioner's expressed frustration in that regard. Petitioner heard nothing from Respondents until he requested payment and to "settle up" concerning all ten loads, approximately June 17, 1992. At that time, Jim Smith gave Petitioner settlement documents, including weight tickets and invoices for all ten loads at one time in a large envelope. Petitioner termed these documents "confirmations." At the time Smith handed Petitioner the envelope, Smith mentioned to Petitioner that one load had a problem with it. He did not give Petitioner any further information about which load had the problem. Before putting the confirmations in the envelope, Jim Smith had written across them, " * protect shipper on quality (ripe)." Petitioner testified that if this phrase had been on the documents, he did not see it, and if he had seen the phrase, he would not have understood it. Jim Smith had originally been promised $3,564.00 on Load 2051 in a telephone conversation with the ultimate recipient/receiver. He had based his June 6 offer and "deal" on June 7 with Petitioner for an expected gross to Petitioner of $1,734.04 in anticipation of the Respondents realizing the full amount of $3,564.00 from the receiver. Smith testified that when Load 2051 reached the receiver, it was rejected by the receiver due to the melons being overripe and hollow-hearted and that a federal inspection paid for by the receiver showed 15 percent to 40 percent of the samples were hollow hearted and the overall samples in the load was 25 percent, with bruising throughout but with the highest percentage in the lower layer of the piled watermelons, and some sunburn. He produced a federal inspection sheet dated June 10, 1992 (three days after the melons left Petitioner's field), covering an estimated sixteen hundred melons to the same effect. Respondent Smith had mailed this inspection sheet to Petitioner only in August 1992, with the final settlement documents and Respondents' check covering three loads, including Load 2051. The inspection sheet indicates "Midwest Marketing 2051" and "North Coast Brokerage, Cleveland, Ohio and carrier 39TR337-AL." The settlement sheets show the same trailer license number for Load 2051. (P-2) Smith also produced a bill of lading showing that North Coast Produce received carrier 39TR337 and rejected 15 melons cut for inspection, 238 melons bruised and racked, and seven decayed melons on June 10, 1992. The bill of lading shows 260 out of 1568 melons or roughly 17 percent of the load were rejected by the receiver. (R-5) Smith also produced a Norman's Brokerage invoice for shipping that trailer, for which shipping he says he paid $1,676.16, (R-4) and an invoice showing he was paid only $1,700.00 by the receiver for this load (R-2). Neither the receiver, the federal inspector, nor any trucker testified. Smith testified that after the receiver rejected some or all of Load 2051, he thought he would get at least $1,743.04 from the receiver but the receiver's check to him was rounded to only $1,700.00. The foregoing shows that Respondent Smith ultimately accepted, without dispute, the $1,700.00 paid him by the receiver which amount was less than 50 percent of the originally promised amount and which amount did not comport with a load that was at the worst only 15 percent to 40 percent bad as per the inspection report and which the bill of lading shows contained only 260 or 17 percent rejected melons. When Jim Smith totalled out the final settlement sheets for Petitioner in August 1992, Smith intended to deduct $1,676.16 for shipping and $108.00 as a "finder's fee" he had paid to independent contractor Bobby Patton from the $1,700.00 that he had actually been paid by the receiver, thus showing a net loss to Respondents on Load 2051 of $84.16. Instead, he explained Respondents' loss to Petitioner in the final August 1992 settlement documents as "original invoice $3,564.00, (meaning the originally anticipated revenues to Respondents) less actual receipts $1,743.04, (meaning the amount Smith had expected to receive after federal inspection and rejection of part of Load 2051 by the receiver, and not what Smith actually received from the receiver) for a balance of $1,820.96." Smith labelled that figure of $1,743.04 as "customer deducts" meaning it was Respondents' net loss due to actions of the receiver. He then deducted the $1,820.96 figure from the total amount owed by Respondents to Petitioner for three loads. Mr. Smith admitted he had no authority or justification per his agreement with Petitioner for deducting the finder's fee of $108.00 he paid to Bobby Patton or his additional loss of $43.04, which occurred when the recipient promised $1743.04 and paid $1700.00. He also admitted he had no authority per Respondents' agreement with Petitioner to deduct anything attributable to freight charges.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Agriculture enter a Final Order awarding Petitioner $1,820.96 on Load 2051 only and binding Respondents to pay the full amount, but which in South Carolina Insurance Company's case shall be only to the extent of its bond. RECOMMENDED this 5th day of August, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1993. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Greg Rushton 10940 N. Circle M Avenue Dunnellon, Florida 32630 James R. Smith Randall Smith Midwest Marketing Company Post Office Box 193 Vincennes, IN 47591 South Carolina Insurance Company 1501 Lady Street Columbia, SC 29201
The Issue Whether Respondent owes Petitioner $2,377.20 as alleged in the complaint filed by Petitioner in July 1997.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Bigham Hide Company, Inc. (Petitioner), is a watermelon grower in Coleman and Lake Panasoffkee, Florida. Respondent, Florida-Georgia Produce, Inc. (Respondent), is a licensed dealer in agricultural products having been issued License Number 7666 by the Department of Agriculture and Consumer Services (Department). Respondent has posted a bond in the amount of $30,000.00 written by Cumberland Casualty & Surety Company, as surety, to assure proper accounting and payment to producers such as Petitioner. In a complaint filed with the Department in July 1997, Petitioner alleged that he entered into an agreement with Bobby Patton (Patton) on behalf of Respondent to sell one truckload of "pee wee" watermelons. Under that agreement, Respondent agreed to pay seven cents per pound for the watermelons, and it would advance Petitioner $700.00 to cover the labor costs associated with loading the truck. The remainder would be paid upon final delivery. The complaint goes on to allege that Petitioner subsequently learned that there was "some problem" with the delivered produce. After Respondent inspected Petitioner's field to verify the quality of the crop, Petitioner was told that Respondent would "fight the fight" to get the shipment accepted. Since that time, however, the complaint alleges that Petitioner did not receive payment, an accounting of the transaction, an inspection report, or any further explanation. Accordingly, Petitioner filed this complaint seeking $3,077.20, less the $700.00 advance, or a total of $2,377.20. In its answer, Respondent has alleged that it actually received a truckload of "old diseased watermelons that had been lying in the field or on [the] field truck for a week," and the receiver refused to accept the load. Since it received nothing for the shipment, Respondent contends it is owed $700.00 for the money advanced to Petitioner. The parties agree that in late May 1997, Petitioner was contacted by Bobby Patton, who was representing Respondent, regarding the sale of small size watermelons. Patton offered to buy one truckload of "pee wee" watermelons at a price of seven cents per pound, to be paid after delivery to the receiver. Patton also agreed to advance Petitioner $700.00 to cover his loading costs. Petitioner agreed to these terms, and the truck was loaded from his field on June 3, 1997. The net weight of the loaded produce was 43,960 pounds. The vehicle's tag number was recorded on the loading slip as "AH 39099" from the province of Quebec, Canada. There is no evidence that the crop was diseased when it was loaded, or that it had been picked and lying in the field for several days before being loaded, as suggested in Respondent's answer to the complaint. The shipment was destined for Ontario, Canada. On or about June 5, 1997, the product was delivered to the customer, Direct Produce, Inc., in Etobicoke, Ontario. Because of a perceived lack of quality, the buyer refused to accept the load. Respondent immediately requested a government inspection which was performed on June 6, 1997. The results of that inspection are found in Respondent's Exhibit 3. It reveals that 1 percent of the load was decayed, 3 percent were bruised, 6 percent had Anthrocnose (belly rot), and 75 percent had "yellow internal discolouration." In addition, a composite sample reflected that 20 percent had "Whitish Stracked Flesh" while 5 percent had "Hollow Heart." In other words, virtually the entire shipment was tainted with defects or disease. The report also reflected that the net weight of the shipment was 44,500 pounds, and the tag number of the vehicle was "ALP 390999." The weight and tag number were slightly different from those recorded on the loading slip at Petitioner's field. After learning of the results of the inspection, Respondent's president, James B. Oglesby, immediately contacted Petitioner's president, Greg Bigham, and requested an inspection of Bigham's field to verify the quality of watermelons. During the inspection, Oglesby did not find any signs of belly rot or other problems similar to those noted in the government inspection. If there had been any incidence of belly rot in Petitioner's field, it would have been present in other unpicked watermelons. At the end of his inspection, Oglesby told Petitioner that he would "fight the fight" to get the shipment delivered and sold. Oglesby eventually found a buyer who would accept the shipment as feed for cattle. The buyer agreed to pay the freight charges for hauling the watermelons to Canada but nothing more. Therefore, Respondent was not paid for the load. Petitioner was led to believe that he would receive payment and paperwork, including the inspection report, within a few days. When he did not receive any documentation, payment, or further explanation within a reasonable period of time, he filed this complaint. It would be highly unlikely that a farmer would have one completely bad load from a field without the same problems being present in other loads shipped from the field at the same time. Petitioner presented uncontroverted testimony that no other shipments from that field during the same time period were rejected or had similar problems. In addition, it was established that poor ventilation on the truck, or leaving the loaded truck unprotected in the sun, could be causes of the crop being spoiled or damaged before it was delivered to Canada. Finally, at hearing, Respondent suggested that Bigham may have shown him a different field than the one from which his load was picked. However, this assertion has been rejected.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agriculture and Consumer Affairs enter a final order determining that Respondent owes Petitioner $2,377.20. In the event payment is not timely made, the surety should be responsible for the indebtedness. DONE AND ENTERED this 6th day of February, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 day 6th of February, 1998. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond 508 Mayo Building Tallahassee, Florida 32399-0800 Terry T. Neal, Esquire Post Office Box 490327 Leesburge, Florida 34749-0327 James B. Oglesby Post Office Box 6214 Lakeland, Florida 33807 Cumberland Casualty & Surety Company 4311 West Waters Avenue Tampa, Florida 33614 Richard D. Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
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
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 the Harmons left the area, their work was carried on by Jim Coffee, who the Harmons introduced to Mr. Shiver as their representative. Once the melons were weighed and inspected, the melons belonged to the Respondents. Price would vary over the season, but price was agree upon before the melons were loaded. Settlement had always been prompt, and the Harmons enjoyed the confidence of the local farmers. On July 8, 1991, load F 276 of 45,840 pounds of watermelons was sold by Petitioner to Respondents for 4 per pound. They were weighed and inspected by Coffee. These melons were shipped to West Virginia where they were refused by the buyer. The melons were inspected in Charleston, WV, on July 12, 1991. This inspection revealed 10% transit rubs, 12% decay, and 22% checksom. These melons were subsequently shipped to Indianapolis, IN, for disposal. The Respondents deducted the freight on this load in the amount of $2,459.76 from moneys owed the Petitioner on other transactions. On July 9, 1991, two loads of watermelons, F 277 and F 278, were sold to the Respondents. Load F 277 weighed 46,200 pounds and Load F 278 weighed 45,830 pounds. Both loads were inspected by Coffee. Mr. Shiver had negotiated a price of 4 per pound for F 278 and 3.5 per pound for F 277. Load F 278 was received by the Respondents at their facility in Yamassee, SC, where it was government inspected on July 11, 1991. It was found to be in very bad shape. It was bartered to the trucking company by the Respondents in exchange for the freight charges. Load F 277 was also received by the Respondents, who accepted 38,000 pounds of 45,830 pounds of melons shipped. On July 10, 1991, load F 279 of 42,180 pounds was sold for 3.5 per pound, and shipped to the Respondents in Yamassee, SC, for repacking and shipment to Baltimore, MD. They were weighed and inspected by Coffee before shipment. This load was rejected without any inspection by the Respondents. The Petitioners received $1,330 for load F 277, nothing for loads F and 279, and Respondents retained $2,459.76 from prior transactions for freight charges on load F 276. Under the terms of the sale, FOB purchaser's truck at grower's field, the Respondents bore the cost of transportation. The Respondents also bore the risk of loss on sales which they made and which were rejected. On the two loads which were not inspected by government inspectors, F and F 277, the Petitioner is entitled to the sales price for the melons. Although there is evidence to support the Respondents' contention that the produce was not within grade specifications, the Respondent had accepted the produce. Contrary to Respondents' assertion that the produce coming from the same field on the same day would all be bad, these loads were not loaded on the same day. Further, most of one of the loads received on the same day from the same field was accepted. Lastly, as stated above, all the loads were inspected by Respondent prior to acceptance. The Respondents owe the Petitioners $1,833.60 on load F 276, $1,570.80 on load F 277, 1833.20 on load F 278, and 1476.30 on load F 279. This is a total of $6,713.90. The Respondents improperly retained $2,359.76 for freight charges, but did pay the Petitioners $1,330 for load F 277. The total owed by the Respondents to the Petitioners is $9,073.66, of which Respondents have already paid $1,330.00. The Respondents still owe the Petitioners $7,743.66 less $32 for the watermelon assessment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: Respondent be given 30 days to settle with the Petitioner in the amount of $7,711.66 and the Petitioner be paid $7,711.66 from Respondent's 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 Whether or not Petitioners (complainants) are entitled to recover $5,640.19 or any part thereof against Respondent dealer and Respondent 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. Petitioners' claims against the dealer and his bond are listed in the Amended Complaint in the following amounts and categories: 6-18-92 Inv. #657 45,580 lbs. Crimson melons @ .05 lb. $2,279.00 Advance - 700.00 NWPB* - 9.12 $1,569.88 6-19-92 Inv. #668 2,490 lbs. Crimson melons @ .05 lb. $ 124.50 (paid for 42,860 lbs. short 2,490 lbs.) NWPB* - .50 124.00 6-20-92 Inv. #695 6,818 lbs. Crimson melons @ .05 lb. $ 340.90 (paid for 39,062 lbs. short 6,818 lbs.) NWPB* 1.36 339.54 6-20-92 Inv. @ #702 .05 39,880 lbs. Sangria melons lb. $1,994.00 Advance - 700.00 Packing Straw - 10.00 NWPB* - 7.98 Pmt. - 90.00 1,186.02 6-21-92 Inv. @ #706 .05 44,740 lbs. Sangria melons lb. $2,237.00 Advance - 700.00 Packing Straw - 10.00 NWPB* - 8.95 1,518.05 6-22-93 Inv. @ #716 .04 11,280 lbs. Crimson melons lb. NWPB* - 2.32 460.88 6-22-92 Inv. @ #709 .04 46,740 lbs. Crimson melons lb. $1,869.60 Advance - 700.00 Packing Straw - 10.00 NWPB* - 9.35 1,150.25 Deducted for #706 - 441.82 441.82 PAID 708.43 Total Claimed $5,640.19 *NWPB = National Watermelon Promotion Board Fee Petitioners and Respondent dealer have had an oral business relationship for four to five years. Both parties agree that their oral agreement initially called for a federal inspection to be done on each load if the load were refused in whole or in part by the ultimate recipient. Respondent Griffin contended that over the years there had been further oral agreements to "work out" or "ride out" small discrepancies or partial refusals of loads without resorting to federal inspections, the cost of which inspections could eliminate the entire profit on single loads. Petitioners denied that such an amended oral agreement was ever reached and further maintained that the amounts of the loads at issue herein could not be considered "small" by any interpretation. Respondent submitted no evidence as to what the relative terms, "large" and "small," mean in the industry. Consequently, it appears that there was never a meeting of the minds of the parties on the alleged oral contract amendments relied upon by Respondent. Respondent testified that in past years, prior to 1992, he had interpreted the term "ride it out" to mean that he would simply accept the hearsay statements of ultimate recipients that named poundages of melons were bad and he would let the ultimate recipients pay for only the melons they said were good. Respondent would thereafter absorb any losses himself, not passing on the loss by deducting any amount from the full amount he would normally pay to the growers within ten days. However, 1992 was such a bad year for melons that the Respondent dealer chose not to absorb the greater losses and passed them on to the growers by way of deductions on "settlement sheets." In 1992 Respondent sent Petitioners the settlement sheets with the deductions explained thereon with the net payments as much as thirty days after the ultimate sales. Upon the foregoing evidence, it appears that Respondent had established a course of business whereby Petitioners could reasonably have expected him to absorb any losses occasioned by Respondent's reliance on hearsay statements of the ultimate recipients concerning poor quality melons unless Respondent chose not to test the questionable melons with a federal inspection. Petitioners obtained Exhibit P-5 for load 657 at Respondent dealer's place of business, but were not certain it applied to the load Mr. Tucker claimed he delivered to Respondent on 6-18-92 because Mr. Tucker did not know his load number that day. The exhibit represents the weight ticket Petitioners believe applies to the load which Mr. Tucker claimed to have delivered to Respondent dealer on 6-18-92. However, the exhibit bears two other names, "Jones and Smith," not Petitioners' respective names of Tucker or Watson. It has "WACC" handwritten across it, which Mr. Tucker claimed signified the name of his watermelon field. The number "657" also has been handwritten across it. There is no evidence of who wrote any of this on the exhibit. Respondent denied that load 657 was received from Mr. Tucker. The exhibit shows a printed gross weight of 78,900 lbs., tare weight of 32,860 lbs. and net weight of 66,800 lbs. Net weights are supposed to signify the poundage of melons delivered to the dealer. Nothing on the exhibit matches Mr. Tucker's journal entry (Petitioners' Exhibit 3) of delivering 45,580 lbs. of watermelons to Respondent dealer on 6- 18-92. Mr. Tucker testified that he was never paid for his delivery. Respondent denied there was such a delivery and testified that he paid Jones and Smith for load 657. Petitioners have established no entitlement to their claim of $1,569.88 on Invoice 657. Petitioners' Exhibit P-4 represents two weight tickets secured from Respondent dealer's records that Petitioners contend apply to load 668. The first page has "45,350/6-19-92/Scott Tucker WACC" handwritten across it. None of the four poundages imprinted thereon match any of the amounts claimed by Petitioners for invoice 668, and subtracting amounts testified to also does not conform these figures to Petitioners' claim on load 668. The second page weight ticket shows a date of 6-18-92 and a weight of 34,260 lbs. It also does not match Petitioner's claim that they were owed for 45,350 lbs. but were paid for only 42,860 lbs., being paid 2,490 lbs. short. Exhibit P-8 is the 668 invoice/settlement sheet which Respondent provided to Petitioners and shows invoice 668 with date of 6-19-92, tare and pay weight of 42,860 lbs. at $.05/lb. for $2,143.00 less $8.57 melon adv. association (a/k/a NWPB, see supra) for $2,134.43, less a $700.00 advance and $10.00 for packing straw for a total due Petitioners of $1,424.43 which Respondent has already paid. Petitioners have established no entitlement to their claim of $124.00 on Invoice 668. Petitioners Exhibit P-6 represents two weight tickets secured from Respondent dealer's records. The first page has "45,880 lbs./6-20-92/Scott Tucker Crimson WACC 695" handwritten across it. None of the printed gross, tare, or net weights thereon match any of the amounts claimed by Petitioners for invoice 695. The second page shows the date 6-20-92 and a printed net weight of 32,000 lbs. Respondent dealer provided Petitioners with Exhibit P-7, invoice/settlement sheet 695 dated 6-20-92 showing tare and pay weights of 39,062 lbs. priced at $.05/lb. totalling $1,953.10, less melon adv. assoc. (a/k/a NWPB) fee of $7.81, for $1,945.29, less $700.00 advanced, less $10.00 for packing straw for a total of $1,235.29. The foregoing do not support Petitioner Tucker's claim based on his journal entry (P-3) that he was entitled to be paid for 45,880 lbs. he claims he delivered that day instead of for 39,062 pounds (short by 6,818 pounds) with balance owing to him of $339.54. Respondent has paid what was owed on invoice 695. By oral agreement at formal hearing, Petitioners' Composite Exhibit 9 shows that Petitioner Tucker delivered 39,880 lbs. of melons to Respondent dealer on 6-20-92 and Petitioner Watson received back from Respondent dealer an invoice/settlement sheet 702 showing 39,880 pounds @ $.05/lb. equalling $1,994.00 and that although $1,994.00 was owed Petitioners, Respondent thereafter subtracted for $800.00 worth of returned melons, a $700.00 advance, $7.98 for melon adv. association (a/k/a NWPB), and $10.00 for packing straw, and that a balance was paid to Petitioners of only $90.00. This is arithmetically illogical. The subtractions total $1,517.98. Therefore, if all of Respondent's subtractions were legitimate, the total balance due Petitioners would have been $476.02. If the right to deduct for the $800.00 in returned melons were not substantiated by Respondent dealer, then Petitioners would be due $1,276.02. Since all parties acknowledge that $90.00 was already paid by Respondent dealer, then Petitioners are due $1,186.02 if Respondent did not substantiate the right to deduct the $800.00. Load 702 was "graded out," i.e. accepted as satisfactory, by a representative of Respondent dealer or a subsequent holder in interest when the melons were delivered by Petitioners to Respondent dealer. That fact creates the presumption that the melons were received in satisfactory condition by the Respondent dealer. Nothing persuasive has been put forth by the Respondent dealer to show that the situation concerning the melons' quality had changed by the time the load arrived at its final destination. Respondent got no federal inspection on this load and relied on hearsay statements by persons who did not testify as to some melons being inferior. In light of the standard arrangement of the parties over the whole course of their business dealings (see Findings of Fact 5-7 supra), Petitioners have proven entitlement to the amount claimed on load 702 of $1,186.02. By oral agreement at formal hearing, Petitioners' Composite 10 shows Petitioners Tucker and Watson delivered 44,740 lbs. of melons to Respondent dealer on 6-21-92. At $.05/lb., Petitioners were owed $2,237.00, less melon adv. association fee (a/k/a NWPB) of $8.95, $700.00 for an advance, and $10.00 for straw. Those deductions are not at issue. Therefore, Petitioners would be owed $1,518.05, the amount claimed, from Respondent. However, the invoice also notes that Respondent made a $268.18 deduction for melons returned. Respondent's Composite Exhibit 1 purports to be a BB&W Farms Loading Sheet and Federal Inspection Sheet. Respondent offered this exhibit to show that only $68.18 was realized by him on load 706 which he attributed to Petitioner Watson. However, the federal inspector did not testify as to the results of the inspection, the inspection sheet itself is illegible as to "estimated total," the "estimated total" has been written in by another hand as "$62.60," and there was no explanation on the Composite Exhibit or in testimony as to how Respondent dealer came up with $200.00 in "return lumping charges" as also indicated on Exhibit R-1. Accordingly, Petitioners have established that with regard to load/invoice 706, they delivered watermelons worth $2,237.00 to Respondent dealer and Respondent dealer did not affirmatively establish that any melons were bad, despite the federal inspection sheet introduced in evidence. Petitioners have proven entitlement to their claim on invoice 706 for $1,518.05. However, Petitioners conceded that Respondent actually paid them $441.82 on invoice/settlement sheet 706. Therefore, they are only entitled to recoup a total of $1,076.23 on their claim for Invoice 706. In the course of formal hearing, Respondent dealer admitted that, with regard to load invoice 716, (Tucker) he did owe Petitioners $460.88 for 275 watermelons, and that it had not been paid purely due to clerical error. By oral agreement at formal hearing, Petitioners' Composite Exhibit 12 (Invoice and Weight Tickets 709, Watson) shows Petitioner Watson delivered 46,740 lbs. of melons to Respondent dealer on 6-22-92 and at $.04 lb., Petitioners were owed $1,869.60, less appropriate deductions. Petitioners conceded that Respondent dealer appropriately deducted $9.35 for melon adv. association (a/k/a NWPB), $700.00 for an advance, and $10.00 for packing straw, bringing the amount they were owed to $1,150.25. Petitioners and Respondent are in agreement the Respondent paid only $708.43 of the $1,150.25 owed on invoice/settlement sheet 709 because Respondent dealer also deducted from the amount owed on invoice 709 the $441.82 he had previously paid out on Invoice 706. See, Finding of Fact 13, supra. Since Petitioners have established that they were owed $1,518.05 on invoice 706 but were paid only $441.82 thereon, it appears that Petitioners should be paid $1,076.23 on Invoice 706 and realize nothing on Invoice 709.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Agriculture enter a final order awarding Petitioners $1,186.02 on invoice 702, $1,076.23 on invoice 706, and $460.88 on invoice 716 for a total of $2,723.13, dismissing all other claimed amounts, and binding Respondents to pay the full amount of $2,723.13, which in United States Fidelity & Guaranty Company's case shall be only to the extent of its bond. RECOMMENDED this 30th day of June, 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 30th day of June, 1993. COPIES FURNISHED: Scott Tucker and Phillip Watson Route 2 Box 280 Trenton, FL 32693 Eddie D. Griffin d/b/a Quality Brokerage Post Office Box 889 Immokalee, FL 33934 William J. Moore USF&G Post Office Box 31143 Tampa, FL 33631 United States Fidelity & Guaranty Company Post Office Box 1138 Baltimore, MD 21203 Brenda Hyatt, Chief Department of Agriculture Division of Marketing, Bureau of Licensure and Bond Mayo Building Tallahassee, FL 32399-0800 Honorable Bob Crawford Department of Agriculture and Consumer Services Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, Esquire General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810
Findings Of Fact The Petitioners in this matter are agricultural producers. Respondent GMS is an agricultural dealer. Petitioners, through their agent, Odis Phillips, contracted to sell a portion of their watermelons to GMS through its agent, J. W. Starling. Neither side controverts that prior to June 25, 1983, the terms of their verbal contract were as follows: The watermelons were to be loaded on the shipper's truck at the field by the grower at the grower's expense; GMS would confirm a firm sale price at the time of delivery; and Settlement would be on the day following the delivery of the melons to the shipper. The price was the local market price paid producers of watermelons by the shippers, which price was generally acknowledged to be one cent per pound less than the price for which the shipper could sell the melons. The above terms were not renegotiated between Phillips and Starling. Immediately prior to June 25, 1983, the market price paid to GMS by shippers had been falling at approximately one cent per pound per day. On or about June 25, 1983, William Ward, Jr., manager of GAS, called Starling and advised him that the watermelon market was falling and they no longer had any confirmed sales. Ward advised Starling that Starling could no longer quote fixed prices to the growers from whom GMS had been purchasing watermelons. This constituted a change from the way these transactions had been handled prior to that date, when the price of the melons was fixed and GMS had a confirmed sale for the melons. After that date, GMS sought to obtain the melons for sale as `rollers." A "roller" is a load of melons shipped without a confirmed purchaser, for which a sale is attempted to be negotiated while the melons are in transit. The loads of melons in question were shipped by GMS as "rollers." Testimony regarding whether the Petitioners agreed to the sale of the watermelons in question as "rollers" or continued to demand a fixed price for their melons is conflicting. After June 25, 1983, Starling was in contact with Phillips and advised him that the market was off and the price was dropping. Starling felt he had advised Phillips that the melons would henceforth be "rollers" and the price contingent upon the sale price. Phillips did not feel that there had been any change, but felt that the price would continue to be based upon local market conditions. It is specifically found that the terms in Case Nos. 83-3013A and 83-3014A remained unchanged. The local market price on June 27, 1983, was six cents per pound. Starling was in contact with Petitioner James E. Hiers at Starling's office on the morning of June 29, 1983. Hiers was functioning as a field supervisor, keeping a record of the number of loads, their weight, the buyer, the price, and what was paid for all loads sold involved in Case No. 83-3015A. Starling testified that he advised Hiers that the price of the watermelons shipped on June 28 and 29, 1983, was not firm but would be based upon the price for which GMS could sell them. Starling testified that he told Hiers the price was contingent upon price when the melons sold. Hiers responded to Starling on June 29, 1983, that he was not selling based upon the sales price for the melons received by GMS but would sell only for a firm price at the rate other brokers were paying producers for melons in the local area. Starling did not clearly state that the melons were "rollers;" however, there was definitely no assent on the part of Hiers to ship the Petitioners' melons as "rollers." Starling testified that he did not quote Hiers a price for the watermelons. Hiers testified that it was his practice not to load melons for shipment until a firm, fixed price for them was quoted by the purchaser. Heirs' testimony was the more credible and supported by others who had purchased melons from him. Each morning during the season, Heirs ascertained the market price for watermelons. His records reflect a price of four to five cents per pound for June 29, 1983, which Hiers took to be an effective price of four cents per pound. This price of four cents per pound was consistent with the local market price for watermelons on June 28 and 29, 1983. After Hiers rejected the new terms tendered by Starling and restated that the terms of sale were firm price based upon local market price, GMS trucks were sent with Hiers to the field for loading. It costs a farmer between two and a quarter and two and a half cents per pound to load and ship watermelons. The price eventually tendered by GMS for the melons in question was three cents per pound, or one cent less than the price quoted by Starling. The following reflects by the case number, the date, weight, and tendered settlement price for each load of watermelons purchased by GMS based upon track reports; Petitioners Exhibits 1, 2 and 3; and evidence of price based upon the testimony and records of the Petitioners: Case No. 83-3013A Date Wght. Local Amount Pound Market Tendered Difference Price by GMS Claimed Total Difference Claimed 06/27/83 40,610 $.06 $.05 $.01 $406.10 06/27/83 43,540 .06 .05 .01 435.40 06/27/83 47,900 .06 .04 .02 958.00 06/27/83 41,410 .06 .05 .01 414.10 06/27/83 40,000 .06 .05 .01 400.00 06/28/83 41,130 .05 .04 .01 411.30 06/28/83 42,610 .05 .03 .02 852.20 06/28/83 40,250 .05 .03 .02 805.00 06/28/83 42,520 .04 .03 .01 425.20 $ 5,107.30 Case No. 83-3014A Date Wght. Local Amount Pound Market Tendered Difference Price by GMS Claimed Total Difference Claimed 06/27/83 47,950 $.06 $.05 $.01 $479.50 06/28/83 42,770 .05 .04 .01 427.70 $ 907.20 Case No. 83-3015A Wght. Price Local Amount Pound Market Tendered Difference by GMS Claimed Claimed Total Difference Date 06/28/83 44,220 $.05 $.03 $.02 $884.40 06/28/83 44,070 .05 .03 .02 881.40 06/29/83 46,450 .04 .03 .01 464.50 06/29/83 41,350 .04 .03 .01 413.50 06/29/83 39,880 .04 .03 .01 398.80 06/29/83 42,100 .04 .035 .005 210.50 06/29/83 40,260 .04 .04 .00 - 0 - 06/29/83 42,420 .04 .03 .01 424.20 $ 3,676.30 In addition to the money already tendered, the Respondents owe the Petitioners the following amounts: in Case No. 83-3013A, $5,107.30; in Case No. 83-3014A, $907.20; and in -Case No. 83-3015A, $3,676.30; or a total of $9,690.80.
Recommendation Having determined that the allegations of the complaint have been established, and having determined that Respondent GMS owes the Petitioners respectively the following sums, it is recommended that the Department of Agriculture and Consumer Services order Respondent GMS to pay the Petitioners the following amounts in these cases in addition to the amounts tendered: (a) in Case No. 83-3013A, $5,107.30; (b) in Case No. 83-3014A, $907.20; and (c) in Case No. 83-3015A, $3,676.30. DONE and RECOMMENDED this 17th day of April, 1984, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 17th day of April, 1984. COPIES FURNISHED: Frederick E. Landt, III, Esquire Post Office Box 2045 Ocala, Florida 32678 M. Craig Massey, Esquire 1701 South Florida Avenue Post Office Box 2787 Lakeland, Florida 33806-2787 Glenn Bissett, Chief Bureau of Licensing and Bond Department of Agriculture & Consumer Services Mayo Building, Room 418 Tallahassee, Florida 32301 Robert A. Chastain, Esquire Department of Agriculture & Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 The Honorable Doyle Conner Commissioner of Agriculture & Consumer Services The Capitol Tallahassee, Florida 32301
The Issue Whether Respondent, L. A. Wroten Company, Inc., is indebted to Petitioner for agricultural products (watermelons) purchased by Respondent.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. Respondent L. A. Wroten Company, Inc., is a licensed dealer in agricultural products. During times relevant, Respondent had a bond posted through Cincinnati Insurance Company as surety. During times material, Respondent employed Grady Smith as a field representative. As such, Smith had authority to, and on numerous occasions, purchased watermelons on behalf of Respondent. Petitioner is a producer of agricultural products, specifically watermelons. Petitioner has been growing melons for approximately 30 years. Petitioner has known Smith for the duration of his production of agricultural products and has had business dealings with Smith as a representative of Respondent Wroten on numerous occasions during the past two years. During May and June of 1992, Petitioner sold 21 loads of melons to Respondent Wroten. Four of those loads are at issue in this case. (The remaining 17 loads Smith purchased from Petitioner as representative of Respondent, are not at issue herein.) On June 11 and 12, 1992, Smith, acting as representative of Respondent Wroten, agreed to buy the loads of melons in controversy here. Smith purchased Sangria watermelons at four and one-half cents per pound. When the loads were loaded, graded and weighed, Smith was on hand and the totals were as follows: Load #6149 44,460 pounds x 4-1/2 cents = $2,000.70 Load #6351 43,870 pounds x 4-1/2 cents = $1,974.15 Load #5898 49,140 pounds x 4-1/2 cents = $2,211.30 Load #5900 43,660 pounds x 4-1/2 cents = $1,964.70 The total agreed price for the melons at issue was $8,150.85. Respondent Wroten has previously paid Petitioner $4,456.13 of the amount due which, when deducted from the amount claimed together with $45.71 in melon promotion fees, leaves a balance claimed by Petitioner in the amount of $3,649.01. Beginning in 1991 and continuing through 1992, Petitioner and Smith, as representative of Respondent Wroten, agreed to the sale of melons under an understanding that the transaction was F.O.B. at Coleman, Florida, acceptance final at shipping point. This agreement included an understanding that Respondent would provide a trailer to haul the melons and would pay all transportation charges. Pursuant to the parties' agreement, payment for the melons was due "when they moved over the scales", i.e., as soon as the trucks were loaded and weighed or on the following day. Finally, the understanding and agreement between the parties was that the title and risk of loss to the melons passed to Respondent Wroten on the day of shipment. The growers receipt submitted in evidence clearly showed the essential terms of the agreement and contained no language which would indicate that the sale was conditioned in any manner respecting Respondent Wroten's claim that Petitioner agreed to "ride the load". The admitted growers receipts and other testimony supports Petitioner's claim that Respondent's representative Smith offered the same terms to other producers and growers in the area. The referenced understanding/agreement was the focal point of the terms under which Petitioner conducted business with representative Smith. Although the growers receipt did not contain a price for the melons, Petitioner's president, Greg Bigham, credibly testified that the agreed price between Bigham and Smith was 4 1/2 cents per pound. Further, Respondent offered no testimony and presented no documentary evidence establishing that the price was other than as stated by Bigham. Respondent Wroten contests that it owes the sum claimed by Petitioner based on a phone conversation allegedly had between Lee Wroten and Greg Bigham in which it is contended that Bigham agreed to bear the risk of loss of the melons to their ultimate destination. This method of sale in the industry is known as offering "protection" or "riding-the-load". Bigham acknowledged a phone conversation respecting loads of royal sweet melons which had been previously rejected by Respondent Wroten, however he did not agree to offer "protection" or otherwise "ride-the-load" as to the Sangria melons questioned here. Likewise, Smith could not remember telling Bigham that the terms of sale had changed nor did he attempt to confirm that Petitioner was required to assume the risk of loss for the Sangria melons. Likewise, the growers receipts issued thereafter to Petitioner contained no changed conditions or restrictions respecting the terms of sale. Even assuming, arguendo, that Petitioner offered protection or otherwise agreed to "ride the load", Respondent offered no credible evidence to establish that the melons were either defective or that there was any other fault with the melons when shipped or upon arrival at destination which would somehow require that a set off be issued to Respondent. As stated, Smith was present on June 11 and 12, 1992 and witnessed the loading and graded the melons as they were being placed on the trailers provided by Respondent Wroten. Smith, while inspecting and grading the melons, eliminated those melons which were not acceptable to him. After the melons were loaded, Smith, acting as representative of Respondent, accepted the load and observed the weighing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order requiring that: Respondent L. A. Wroten Company, Inc., pay to Petitioner the sum of $3,649.01. In the event that Respondent, L. A. Wroten Company, Inc., fails to timely pay Petitioner the sum of $3649.01 as ordered, that the Respondent Cincinnati Insurance, as surety, be ordered to pay the Department a like sum as required by Section 604.21, Florida Statutes and that the Department timely reimburse Petitioner in accordance with that subsection. DONE AND ENTERED this 29th day of April, 1993, in Tallahassee, Florida. JAMES E. BRADWELL 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 29th day of April, 1993. APPENDIX Rulings on Petitioner's proposed findings of fact: Paragraph 6, adopted in part, Paragraph 9, Recommended Order. Paragraph 7, rejected as argument. COPIES FURNISHED: Lawrence J. Marchbanks, Esquire MARCHBANKS DAIELLO & LEIDER 4800 North Federal Highway #101-E Boca Raton, Florida 33431 Don Davis L.A. Wroten Company, Inc. Post Office Box 2437 Lakeland, Florida 33806 Richard Tritschler, Esquire General Counsel Department of Agriculture The Capitol - Plaza Level 10 Tallahassee, Florida 32399 0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399 0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol - Plaza Level 10 Tallahassee, Florida 32399 0810
Findings Of Fact Petitioners are growers of watermelons and qualify as "producers" under Section 604.15(5) F.S. Respondents Smith are broker-shippers of watermelons and qualify as "dealers" under Section 604.15(1) F.S. Respondent South Carolina Insurance Company is surety for Respondents Smith. Petitioners Brewton and Respondents Smith have had a good business relationship overall, including the 1992 growing season during which several loads of high quality watermelons were sold by the Brewtons through the Smiths. Of the several loads of melons sold, only one load, the one invoiced on June 18, 1992, is at issue. Regardless of oral agreements with varying conditions for other loads, the parties agreed as of June 18, 1992 that the load of June 18, 1992, invoice 2088, (R-5), would be paid for by Respondents Smith advancing harvest costs and agreeing to pay Petitioners for the load, minus the costs of harvesting, after Respondents had received payment from the recipient. At the time of loading, everyone concerned felt the June 18, 1992 load might have some problems with it, but every attempt was made to load only quality product. Petitioners and Respondents each had input on which specific melons were loaded. At that time, Mr. Rick Smith o/b/o Respondents Smith advised Mr. Dewey Brewton, III that because the quality of the load was borderline and as a result of its borderline condition the whole load could be rejected at its ultimate destination, Respondents Smith wanted Petitioners Brewton to protect the Respondents Smith on the quality of the melons. He also specifically advised Dewey Brewton, III that the whole load could be rejected. The parties then entered into an agreement, partly oral and partly written. Rick Smith and Dewey Brewton, III understood their agreement to mean that Petitioners would absorb any loss as a result of the quality of the watermelons from that point forward, but that Respondents would not come back against Petitioners for the costs Respondents had advanced on Petitioners' behalf or for the cost of the freight. To signify this, the words "grower protects shipper on quality" was written on the invoice. On or about June 22, 1992, Rick Smith informed Dewey Brewton, III that the entire June 18, 1992 load had been rejected by the first receiver. At that time, Dewey Brewton, III accepted Rick Smith's representation and did not require further proof of rejection at the first point of delivery or request an independent inspection at the first point of delivery. He also acquiesced in Respondents shopping around for a second buyer who might take all or some of the load originally sent out on June 18, 1992, and did not request the return of Petitioners' watermelons. At that time, Rick Smith also told Dewey Brewton, III that the load might have to be held on the truck a day or two to ripen some of the watermelons for a second point of delivery. He again indicated that the whole load could be rejected again when the load was sent on to a second receiver. Dewey Brewton, III specifically agreed to let the melons ripen "a day or so," and did not request any change in the grower protection plan initially agreed to between the parties. Respondents Smith were eventually able to market the melons to a second delivery point (consignee) in Michigan. That receiver complained that the melons started breaking down and he had to dump 735 melons. Pursuant to standard custom of the trade, Respondents accepted payment of $1,944.00 for the melons, subtracted $1,831.98 they had laid out in freight costs and also subtracted the $675.18 they had advanced on behalf of Petitioners to the harvester. Thus, Respondents sustained a net loss of $563.16. Respondents absorbed the $563.16 loss and did not require any repayment of harvesting costs advanced or any freight charges from Petitioners. Dewey Brewton, III testified that he originally understood that "grower protection" meant that Petitioners "would stand behind their quality product until the ultimate point," but that he had interpreted a comment by Mr. Rick Smith on June 22, 1992 to the effect that "the grower (Petitioners) agreed to 'ride' the watermelons and the shipper (Respondent) agreed to 'ride' the freight" to mean that the growers (Petitioners) no longer had any duty to cover their own losses on the June 18, 1992 load of watermelons after the first rejection and up to final sale to the second buyer. In light of Mr. Brewton's failure to change the written language concerning protection on the invoice, his knowledge from the day of initial shipment that the June 18, 1992 load was of dubious quality, his acceptance that the first recipient had rejected the load, and his agreement that Respondents could have a further waiting/ripening/shopping around period before ultimate sale, coupled with his knowledge from the very beginning that the June 18, 1992 load could be utterly rejected at any point so as to render the endeavor a complete loss to the Petitioners, Mr. Brewton's assumption that on June 22, 1992, Respondents Smith were voluntarily waiving their written agreement that "grower protects shipper on quality" was not reasonable. On June 22, 1992, the load had already been rejected once. At that stage, the outcome of the proposed sale was considerably more precarious than when the crop was loaded on June 18, 1992. It is also found Mr. Brewton's assumption that the agreement had been modified was not knowingly or intentionally induced by the Respondents and that the assumption was not contemporaneously conveyed to Respondents Smith so that they could disabuse Mr. Brewton of his error. Upon the foregoing, it is further found that the written initial agreement that "grower protects shipper on quality" was not altered on June 22, 1992 but continued in force.
Recommendation 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 dismissing Petitioner's complaint. RECOMMENDED this 26th day of March, 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 26th day of March, 1993. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda D. Hyatt, Chief Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Jacquelyn J. Brewton 8876 NW 115th Avenue Ocala, FL 34482 Dewey Brewton III 8876 NW 115th Avenue Ocala, FL 34482 Richard L. Smith Midwest Marketing Company P. O. Box 193 Vincennes, IN 47591 South Carolina Insurance Company Legal Department 1501 Lade Street Columbia, SC 29201-0000
The Issue The issue for determination is whether Respondents owe Petitioner approximately $591 for a quantity of watermelons provided by Petitioner; secondarily, resolution of this issue 1 Correction of obvious error has been made to the style of this case, adding the name of Co-Respondent U.S. Fidelity and Guaranty Co., and eliminating the Department of Agriculture and Consumer requires a determination of whether Respondents acted as an agent for Petitioner as opposed to a direct purchase of Petitioner's melons by Respondents.
Findings Of Fact Petitioner is a farmer who produces agricultural products, including watermelons. Petitioner also has trucks in which he hauls agricultural products, including watermelons. When all his trucks are in use, he frequently calls a friend, Freddy Bell, to provide some of Bell’s trucks to haul his products. Petitioner, in turn, helps Bell when Bell’s trucks are all in use. Respondent Wilson is a dealer of such products in the course of normal business activity. Respondent Wilson acts as a broker in these arrangements, receives the gross sales receipts from buyers and from that sum deducts costs of labor, freight, inspections, any other associated costs and his commission. The net balance of the gross sales receipts are paid to the melon producers. Respondent U. S. Fidelity and Guaranty Company is the bonding agent for Respondent pursuant to Section 604.20, Florida Statutes. Petitioner had not discussed any arrangement for the sale of his melons with Respondent Wilson. Instead, Petitioner discussed the sales price of his melons with Freddy Bell. Petitioner testified that Bell represented to Petitioner that he could get a price of $4.00 per hundred weight for Petitioner’s melons. Petitioner relied on Bell to provide transport his melons and obtain the promised price. While Bell did not testify at the final hearing, the parties are in agreement that Bell arranged for sale and shipment of Petitioner’s melons through Wilson. Wilson’s President, Robert M. Wilson, testified at hearing that Bell was not empowered by him to represent a guaranteed price for melons to anyone and that he could not affirm that Bell operated as his agent. He added that Melons were plentiful this past season and no melons were brokered on a guaranteed price basis. Testimony of Robert M. Wilson at the final hearing establishes that the arrangement between Respondent Wilson and Freddy Bell on Petitioner’s behalf was a brokerage arrangement and that the sale of the melons was subject to conditions and demands of the market place, i.e., that the melons would sell for the best possible price which Wilson could obtain for them. Testimony of Petitioner is uncorroborated and fails to establish that the agreement between the parties contemplated a direct sale of the melons to Respondent Wilson or a guaranteed price by Wilson.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing Petitioner's complaint.DONE AND ENTERED this 12th day of March, 1997, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 12th day of March, 1997. COPIES FURNISHED: Bo Bass 2829 Southwest SR 45 Newberry, FL 32669 John M. Martirano, Esquire US Fidelity and Guaranty Co Post Office Box 1138 Baltimore, MD 21203-1138 Robert M. Wilson, President Wilson and Son Sales, Inc. 2811 Airport Road Plant City, FL 33567 Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, FL 32399-0810 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol - Plaza Level 10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture Mayo Building, Room 508 Tallahassee, FL 32399-0800
The Issue The issue is whether Boyer Produce, Inc. and its surety, Southern Farm Bureau Casualty Insurance Company, owe petitioner $1,751.80 as alleged in the complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In July 1993, petitioner, Patricia Thomas, was given authority by her brother to sell all remaining watermelons on his farm located in Citra, Florida. This amounted to approximately one truckload. She eventually sold them to respondent, Boyer Produce, Inc., a dealer (broker) in agricultural products located in Williston, Florida. Its owner and president is Kennedy Boyer (Boyer), who represented his firm in this proceeding. As an agricultural dealer, respondent is required to obtain a license from and post a surety bond with the Department of Agriculture and Consumer Services (Department). In this case, the bond has been posted by respondent, Southern Farm Bureau Casualty Insurance Company, and is in the amount of $75,000.00. Although the parties had never had business dealings before this transaction, through a mutual acquaintance, Randy Rowe, respondent learned that petitioner was interested in selling her watermelons. After Boyer visited the field and examined three watermelons which he described as "good," Boyer offered to purchase a truckload for 4 per pound if all melons were of the same quality. Thomas declined and counteroffered with a price of 5 per pound. The parties then agreed to split the difference and arrived at a sales price of 4 per pound. During the negotiations, Rowe acted as an intermediary between the parties and observed the formation of the contract as well as the loading of the goods onto the truck. Although the matter is in dispute, it is found that both parties agreed that Thomas would be paid 4 per pound for "good" watermelons delivered. This meant that petitioner would not be paid unless and until the watermelons were delivered to their final destination in "good" condition. In the trade, being in "good condition" meant that the watermelons would meet U. S. Grade No. 1 standards. Respondent also agreed to provide a truck and driver at petitioner's field and to transport the produce to Brooklyn, New York, the final destination. At the same time, petitioner was given the responsibility of loading the watermelons on the truck. To assist petitioner in meeting her up- front labor costs, respondent advanced $500.00 as partial payment for the shipment. Winston Smith was hired by respondent to transport the melons to New York. He arrived at petitioner's field on Saturday, July 16, 1993, and remained there while approximately 46,000 pounds of melons were loaded on an open top flat bed trailer. One of the loaders said the melons were "packed real tight," and four bales of straw were used in packing. According to Rowe, who observed the loading, the watermelons packed that day were in "good" condition, and any nonconforming watermelons were "kicked" off the truck. Also, by way of admission, the driver, as agent for Boyer, acknowledged to Rowe that the melons loaded were in "good" condition. Late that afternoon, a thunderstorm came through the area and, due to lightening, no further loading could be performed. Since around 46,000 pounds had already been loaded, petitioner desired for the truck to be sent on its way north. Smith, however, told petitioner he wanted 50,000 pounds in order to make his trip to New York worthwhile and he would not go with anything less. Acceding to his wishes, petitioner agreed to meet Smith the next morning and load an additional two hundred watermelons, or 4,000 pounds, on the truck. Smith then drove the loaded truck to a nearby motel where he spent the night. That evening it rained, and this resulted in the uncovered watermelons and straw getting wet. The next morning, Smith telephoned petitioner and advised her to meet him at 9:00 a. m. at a local Starvin' Marvin store, which had a weight scale that could certify the weight of the shipment. Petitioner carried two hundred watermelons to the store at 9:00 a. m., but Smith did not arrive. Around noon, she received a call from Smith advising that his truck was broken down at the motel and would not start. The watermelons were then taken to the motel and loaded onto the trailer. In all, 50,040 pounds were loaded. Smith's truck would still not start after the watermelons were loaded, and Smith refused to spend any money out of his own pocket to repair the truck. Not wanting to delay the shipment any longer, petitioner gave Smith $35.00 to have someone assist him in starting the vehicle. In order for the repairs to be made, the loaded trailer had to be jacked up and the truck unhooked from and later rehooked to the trailer. This was accomplished only with great difficulty, and Smith was forced to "jostle" the trailer with the power unit for some two hours altogether. According to Rowe, he warned Smith that such jostling could bruise the melons and "mess them up." Smith was also cautioned early on that he should make the necessary repairs as soon as possible so that the load of watermelons would not continue to sit uncovered in the sun. The truck eventually departed around 9:00 p. m., Sunday evening after the uncovered trailer had sat in the sun all day. The shipment was delivered to Brooklyn on the following Tuesday afternoon or evening, and it was inspected by a government inspector on Wednesday morning. According to the inspection report, which has been received in evidence, the load was split evenly between crimson and jubilee melons, and 23 percent and 21 percent, respectively, of the two types of melons failed to meet grade. No greater than a 12 percent "margin" is allowed on government inspections. Almost all of the defects cited in the report were attributable to the melons being "over-ripe." The buyer in New York rejected the entire shipment as not meeting standards. Respondent then sold the shipment for only $1350.00 resulting in a loss of $350.00 on the transaction. In addition, respondent says the driver (Smith) accepted $1200.00 instead of the $2,000.00 he would have normally charged to transport a load to New York. When petitioner asked for her money a few weeks later, respondent declined, saying the goods had not met specification when delivered to their destination, and if she had any remedy at all, it was against Smith, the driver. If petitioner had been paid 4 per pound for the entire shipment, she would have been entitled to an additional $1,751.80, or a total of $2,251.80. Petitioner contends that the melons failed to meet grade because of the negligence of the driver. More specifically, she says the loaded melons sat in the sun for almost two days, including all day Sunday after being soaked from the Saturday evening rain. If wet melons are exposed to the hot sun for any length of time, they run the risk of "wet burning," which causes decay. But even if this occurred, only 1 percent of the shipment was found to have "decay" by the government inspector. Petitioner also says that by being jostled for two hours on Sunday, the melons were bruised. Again, however, the melons were rejected primarily because they were over-ripe, not bruised. Therefore, and consistent with the findings in the inspection report, it is found that the jostling and wet burning did not have a material impact on the quality of the melons. Respondent contended the melons were close to being fully ripened when they were picked and loaded. In this regard, Charles Strange, Sr. agreed that if the melons sat in the field for another four or five days, they would have started "going bad." By this, it may be reasonably inferred that, unless the melons were loaded and delivered in a timely manner, they would have become over-ripe and would not meet grade within a matter of days. Therefore, a timely delivery of the melons was extremely important, and to the extent respondent's agent, Smith, experienced at least a twenty-four hour delay in delivering the melons through no fault of petitioner, this contributed in part to their failure to meet grade. Petitioner is accordingly entitled to some additional compensation, a fair allocation of which is one-half of the value of the shipment, or $1125.90, less the $500.00 already paid.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services requiring respondent to pay petitioner $625.90 within thirty days from date of the agency's final order. In the event such payment is not timely made, the surety should be liable for such payment. DONE AND ENTERED this 2nd day of December, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER 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 2nd day of December, 1993. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda D. Hyatt, Chief Bureau of Licensing & Bond 508 Mayo Building Tallahassee, Florida 32399-0800 Richard A. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810 Southern Farm Bureau Casualty Insurance Company Post Office Box 1985 Jackson, Mississippi 39215-1985 Patricia Thomas Post Office Box 522 Archer, Florida 32618 Kennedy Boyer 15A South West 2nd Avenue Williston, Florida 32696
