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 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 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 The issue in this case is whether Petitioner is entitled to additional payment for a shipment of watermelons that he delivered to Respondent in May, 1993.
Findings Of Fact Growers Marketing Services, Inc. (Respondent) is a broker of watermelons and other agricultural produce. Preferred National Insurance Company, Inc. is the surety for Respondent. Petitioner has grown watermelons for about six years. In 1993, as in past years, Petitioner sold watermelons to Respondent and other brokers. Late on the afternoon of May 5, 1993, and continuing past darkness, Petitioner loaded a trailer full of watermelons for C & C, which is another agricultural broker to which Petitioner sells watermelons. Because Petitioner lacks sufficient lighting at the place of loading, the crew could not sufficiently determine the quality of the watermelons that they were loading. Many misshapen and substandard watermelons were loaded, but the trailer was not quite full. The conformance of the shipment, which was supposed to be all large watermelons, suffered further when a C&C representative told Petitioner to complete the load with smaller melons. Petitioner did so. The C & C shipment was taken to the scales, weighed, and trucked that night to Miami, where the recipient rejected the shipment due to poor quality and small size. On the morning of May 6, Petitioner learned that C & C was returning the shipment to him and would not pay for it. A field representative of Respondent learned of the rejected shipment and offered to try to sell it for whatever he could. Petitioner agreed. When the melons returned to the area on May 6, they were immediately taken to Respondent's packing house in Plant City. The packer immediately recognized that the melons were quite distressed. Misshapen, flat, and leaking, the melons needed to be sold fast. The packer so informed representatives of Respondent, who directed the packer to place the melons in large bins, rather than boxes, so they could be more easily marketed. A representative of Respondent immediately informed Petitioner of this development, and he said that they should get whatever they could for the melons. Respondent called a customer in Jacksonville, explained the situation, and agreed to sell them on consignment to the customer. The customer successfully remarketed a large number of the melons and, on May 25, 1993, remitted to Respondent a check in the amount of $5000, representing full payment for the melons. Respondent deducted from the $5000 its normal binning charge of $1260 and its normal sales charge of $420, leaving $3320. After a small mandatory deduction for National Watermelon Promotion Board, Respondent remitted to Petitioner, by draft dated June 10, 1993, the net of $3311.60. With the above-described payment, Petitioner has been paid in full for the watermelons.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing the Complaint. ENTERED on January 10, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on January 10, 1994. COPIES FURNISHED: Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800 Kye Bishop, pro se 145 N. Osceola Arcadia, FL 33821 Arthur C. Fulmer P.O. Box 2958 Lakeland, FL 33806 Preferred National Insurance P.O. Box 40-7003 Ft. Lauderdale, FL 33340-7003
The Issue Is Petitioner entitled to $7,433.00, or any part thereof, from Respondent on the basis of a brokered sale of watermelons?
Findings Of Fact At all times material, Petitioner Terry McCully was a first-year independent grower of Sangria watermelons in Jasper, Florida. Respondent is a professional broker of produce. On June 13, 1999, Petitioner and Nolan Mancil, known to Petitioner as a watermelon buyer from Georgia representing Respondent, "walked" Petitioner's sole field. On June 13, 1999, Petitioner and Mr. Mancil agreed that Respondent would pay 10¢ per pound for watermelons from Petitioner's sole field of watermelons. However, Petitioner also understood that ultimately, his payment would be based on whatever the "market price" was, per load. Petitioner had no prior experience with how "market price" is defined or determined. At all times material, Nolan Mancil was acting as an agent of Respondent, and regardless of the extent of the authority actually authorized by Respondent, Mr. Mancil had, with Respondent's concurrence, apparent authority for all agreements reached with Petitioner. According to Respondent's President, Mr. Ward, the standard in the industry is that no value is placed on an agricultural commodity until a final price is determined with the ultimate consumer/retailer. Respondent produced business records tracking each of the six loads harvested from Petitioner's field (including the four loads in dispute) and showing the accepted weights for each load. According to Mr. Mancil, "market price" is "zero," unless some amount is paid by the retailer to the broker on delivery and the amount paid on delivery constitutes "the market price." He denied ever telling Petitioner that their oral contract would use the United States Department of Agriculture National Watermelon Report (USDA Report) to specifically set a daily market price, although he admitted that at a later point in time, under changed conditions (see Finding of Fact No. 19) he had told Petitioner that the USDA Daily Report could be the maximum price. Petitioner conceded that he received the USDA Report from the Department of Agriculture Extension Agent only after a dispute arose and Petitioner had begun to prepare his claim. The undersigned infers therefrom that Petitioner was only aware of this methodology of setting a market price "after the fact." On Monday, June 14, 1999, Nolan Mancil's harvesters and graders entered Petitioner's field. Petitioner agreed to pay for the harvesting by Respondent's deduction of harvesting costs from each load after sale to the ultimate buyer, but at this point Petitioner also expected Respondent to pay him by the load, each load, immediately after sale at the ultimate point of sale (FOB). On Tuesday, June 15, 1999, trucks hired by Mr. Mancil and/or Respondent began removing watermelons from Petitioner's field. On that day, Mr. Mancil indicated that the watermelons being loaded were worth only 8-1/2¢ per pound. Petitioner agreed to the change in the amount to be paid. At some point, Petitioner accommodated Mr. Mancil by getting a truck, driver, and loaders, and by feeding Mr. Mancil's crew members. Petitioner seeks no reimbursement for these accommodations. Respondent took two truckloads away on June 15, 1999. Load #3664 of 46,340 pounds "shipped weight" and 45,830 pounds "accepted weight" were brokered by Respondent to a retailer at 8¢ per pound. Load #3692 of 48,060 shipped weight and 43,392 pounds accepted weight were brokered to a retailer at 9¢ per pound. Respondent's business records show that on the first (undisputed) load, the sale to a retailer was contracted by Respondent at 8¢ per pound, but when the time came to settle- up, the payment was made by Respondent's retail customer at the small melon size (13-plus pounds), not at the medium or large melon size. Respondent's business records further show that the second (undisputed) load was contracted at 9¢ per pound but was ultimately paid-out at the average weight per melon of 15.4 pounds instead of at 19.2 pounds per melon, after an initial rejection by the first buyer. No brokerage fee was imposed by Respondent on either of these undisputed loads, and on each of these loads, Respondent suffered a substantial loss. These losses were not passed on to Petitioner due to their "immediate cash payment" arrangement. Respondent immediately paid Petitioner for both loads at the agreed rate of 8-1/2¢ per pound, less harvesting costs and mandatory government fee. Petitioner does not dispute deduction of the government fee from the first two loads. Indeed, Petitioner's claim does not address the amount, method, or appropriateness of Respondent's payment to Petitioner for these first two loads. Petitioner's claim only addresses the last four loads harvested after June 15, 1999. After the first two loads, Mr. Mancil informed Petitioner that Respondent could no longer pay Petitioner in cash immediately after each load, but would henceforth pay Petitioner within 30 days. There is no dispute that Petitioner reluctantly agreed to this change in the timing of payment. Mr. Mancil claimed that he told Petitioner, either beginning with the third load or sometime between the third and fourth loads, that the USDA Report's daily price would be the highest price Petitioner could be paid by Respondent. According to Mr. Ward, over the four loads in dispute, the price received by Respondent from retailers was 7¢ per pound adjusted downward due to market conditions such as watermelon size being less than expected, smaller watermelons being in less demand, and the watermelons being in poor condition when accepted by the retailer(s). According to Mr. Ward, the net weight of a load is determined by deducting the truck's empty weight from the loaded weight of the truck; then the melons in the truck are counted, and that count is divided into the net weight, to get the average weight per melon. Petitioner maintained that he was never advised by Mr. Ward or Mr. Mancil that the watermelons in the last four loads were the wrong size or that many melons were not good. Mr. Mancil stated that he believed he had indicated to Petitioner that the watermelons in the last four truckloads were actually smaller than the size anticipated when the deal was struck on June 13, 1999, and that the watermelons were of poorer quality. He conceded that he was not sure Petitioner had understood him. There is no dispute that Petitioner's field was rather overgrown or that watermelons could be harvested despite this overgrowth. The overgrowth could have obscured the size and condition of the watermelons until after harvest. After the sixth load, neither Respondent nor Mr. Mancil sent any more trucks. There was never an agreement that Respondent would buy all the watermelons in Petitioner's field. Petitioner found it necessary to obtain trucks himself to haul away and dump the remaining watermelons which were rotting in his field. He seeks no reimbursement for this expense. Upon the foregoing Findings of Fact, I also find that the watermelons in the last four loads were smaller and inferior in quality to what had been expected. On June 16, 1999, 42,140 pounds shipped weight of watermelons were loaded by Respondent from Petitioner's field in Load #3691. Petitioner is claiming 7¢ per pound on the basis of a USDA Report on every pound for $2,879.00, less harvesting costs of $781.00 for $2,098.00. On June 17, 1999, 43,500 shipped weight of watermelons were loaded by Respondent from Petitioner's field in Load #3685. Petitioner is claiming 6¢ per pound on the basis of a USDA Report for every pound for $2,610.00, less harvesting costs of $826.00 for $1,784.00. The same day, 43,620 shipped weight of watermelons were loaded by Respondent from Petitioner's field in Load #3694. Petitioner is claiming 6¢ per pound on the basis of a USDA Report for every pound for $2,617.20, less harvesting costs of $830.00 for $1,787.20. Either on June 20, 21, or 22, 1999 (the dates on exhibits conflict), 43,000 shipped weight of watermelons were loaded by Respondent from Petitioner's field in Load #3702. Petitioner is claiming 6¢ per pound on the basis of a USDA Report for every pound less harvesting costs of $817.00 for $1,763.00. Petitioner bases the price per pound that he is claiming on his Exhibit P-6, the USDA Reports for June 17-18, and 21, 1999. He did not select from those reports the price per largest average weight of Sangria watermelon, but selected the middle or lowest average weight of "other red meat varieties." Except for June 21, 1999, this calculation gives Respondent the benefit of the doubt as to cents per pound for average market price on the respective USDA Reports, but in light of all the other evidence it is not an accurate method of calculating the true market price for the four disputed loads. Although Petitioner considers payment on the first two (undisputed) loads based on accepted weight to be within the parties' agreement and correct, he has not made his calculations of claim on the accepted weight of any of the last four (disputed) loads. Petitioner's calculations of claim also have not addressed the mandatory government fee for any of the last four (disputed) loads, although he considers payment on the first two, (undisputed) loads, for which Respondent deducted the mandatory fee, to be within the parties' agreement and correct. According to Respondent's business records for the four loads shipped after the Mancil-Petitioner re-negotiations of price per pound and discussion on maximum market pricing, these disputed loads were sold to retailers as follows: On June 16, 1999, Load #3691 had a shipped weight of 41,140 pounds and accepted weight of 39,940 pounds. The sale price was $0.055 per pound. The sale amount was $2,196.70. The government fee was $7.99. The harvesting cost was $781.00. A brokerage fee of $399.40 was subtracted, and Respondent's debt to Petitioner was calculated as $1,008.31. On June 17, 1999, Load #3685 had a shipped weight of 43,500 pounds and an accepted weight of 43,280 pounds. The watermelons were originally contracted for retail sale at $.0635 per pound but were refused by the first retailer as undersized. The second, alternative retailer bought these watermelons at a smaller-size market price for melons averaging 18 pounds, instead of 19.5- pound melons, and also made some returns of bad watermelons, so that the sale amount ended-up as $973.80, less a $8.66 government fee, less $826.00 for harvesting, less $216.40 brokerage fee, so that even Petitioner lost $77.26 on the deal. Also on June 17, 1999, Load #3694 had a shipped weight of 43,620 pounds and an accepted weight of 42,848 pounds. The contract sale had been for watermelons averaging 19.3 pounds, and the average size turned to out to be 16.7 pounds, and some of these melons were returned. The ultimate sale amount was $1,692.50, less a government fee of $8.72, less harvesting costs of $830.00, less brokerage fee of $321.36, with Respondent owing Petitioner $532.42. Finally, on or about June 22, 1999, the final load, #3702, had a shipped weight of 43,000 pounds, and accepted weight of 41,157 pounds, for a sale amount of $832.00; a government fee of $8.60; harvesting costs of $817.00; brokerage fee of $200.00; and amount due to Petitioner of $193.60. Again, the contract price of 6¢ from the retailer had been negotiated on melons in good condition of an average weight of 19.6 pounds, and the watermelons actually delivered by Respondent from Petitioner's field averaged 16.8 pounds, and many melons were returned to Respondent based on lack of quality. On the foregoing calculations, Respondent admits to owing Petitioner $1,269.87, rather than the $7,433.00 claimed by Petitioner's calculations. Neither party presented any evidence of an agreement to deduct a brokerage fee or how a brokerage fee was to be calculated. No brokerage fee was deducted by Respondent for the first two loads which are not in dispute, but Respondent actually suffered a loss on those loads which was not passed on to Petitioner (See Finding of Fact No. 14). For the last four loads, the only loads in dispute and the only loads for which a brokerage fee was deducted, the brokerage fee constitutes the only profit made by Respondent on the entire six-load transaction.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture enter a final order requiring Respondent Growers Marketing Service, Inc. to pay Petitioner $1,269.87, plus interest, if any, to be calculated by the Department, and requiring that if Growers Marketing Service, Inc., does not pay the amount specified within 30 days of the final order that its surety, Preferred National Insurance Company, shall be liable to Petitioner for the full amount. DONE AND ENTERED this 3rd day of April, 2000, in Tallahassee, Leon County, Florida. 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 3rd day of April, 2000. COPIES FURNISHED: Terry McCully 3245 Northwest 30th Lane Jennings, Florida 33806 William R. Ward, Jr., President Growers Marketing Service, Inc. Post Office Box 2595 Lakeland, Florida 33806 Preferred National Insurance Company Post Office Box 407003 Fort Lauderdale, Florida 33306 Brenda Hyatt, Chief Bureau of License and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Findings Of Fact The Petitioner, Triple M Packing, Inc. (Triple M) is in the business of selling produce, particularly tomatoes from its principal business address of Post Office Box 1358, Quincy, Florida. The Respondent, Fair Chester Tomato Packers, Inc. (Fair Chester), is primarily engaged in the business of packaging, distributing and brokering tomatoes in the New York City metropolitan area. It purchases produce from various sellers around the country in tomato-producing areas for resale at markets in the New York City area. Since it is a licensed agricultural dealer, the Respondent is required under the pertinent provisions of Chapter 604, Florida Statutes, to file a surety bond with the Department of Agriculture and Consumer Services (Department), designed to guarantee payment of any indebtedness to persons selling agricultural products to the bonded dealer to whom the dealer fails to make accounting and payment. Fair Chester has thus obtained a 50,000 surety bond which is underwritten by its Co-Respondent, Hartford Accident and Indemnity Company (Hartford). During the 1984 growing season, the Petitioner sold certain shipments of tomatoes to the Respondent for a price of $12,276. Thereafter, curing middle-to-late 1984, the Respondent Fair Chester, found itself in straitened financial circumstances such that it was unable to pay its various trade creditors, including the Petitioner. In view of this, various creditors at the behest of a lawyer retained by Fair Chester, eventually entered into a composition agreement, whereby the unsecured trade creditors agreed to settle, release and discharge in full their claims against Fair Chester on the condition that each creditor signing that agreement be paid thirty-three and one-third percent of its claim. It was determined that the composition agreement would be operative if the trade creditors representing 95 percent or more in dollar amount of all unsecured debts accepted the terms and provisions of that composition agreement on or before November 13, 1984. All the Respondent's unsecured trade creditors were contacted and ultimately those representing more than 95 percent of the outstanding creditor claims against Respondent accepted the terms and provisions of the composition agreement by the deadline. A document indicating acceptance by the Petitioner was signed by one Robert Elliott, purportedly on behalf of the Petitioner, Triple M Packing, Inc. In this connection, by letter of November 13, 1984 (Respondent's Exhibit 4) Attorney Howard of the firm of Glass and Howard, representing the Respondent, wrote each trade creditor advising them that the required acceptance by 95 percent of the creditors had been achieved, including the acceptance of the agreement signed and stamped "received November 8, 1984" by Robert Elliott, sales manager of Triple M. In conjunction with its letter of November 13, 1984, Glass and Howard transmitted Fair Chester's check for one-third of the indebtedness due Triple M or $4,092. The Petitioner's principal officer, its president, Kent Manley, who testified at hearing, acknowledged that he received that letter and check, but he retained it without depositing it or otherwise negotiating it. In the meantime, on October 29, 1984 a complaint was executed and filed by Triple M Packing, Inc. by its president, Kent Manley, alleging that $12,276 worth of tomatoes had been sold to Respondent on June 13, 1984 and that payment had not been received. The purported acceptance of the composition agreement executed by Robert Elliott, sales manager, was not executed until November 8, 1984 and the check for $4,092 in partial payment of the Triple M claim was not posted until November 13, 1984. Mr. Manley's testimony was unrefuted and established that indeed Mr. Elliott was a commissioned salesman for Triple M, was not an officer or director of the company and had no authority to bind the company by his execution of the composition of creditors agreement. Mr. Manley acted in a manner consistent with Elliott's status as a commissioned salesman without authority to bind the Petitioner corporation since, upon his receipt of the "one- third settlement" check with its accompanying letter, he did not negotiate it, but rather pursued his complaint before the Department. In fact, in response to the Department's letter of December 20, 1984 inquiring why the complaint was being prosecuted in view of the purported settlement agreement, Mr. Manley on behalf of Triple M Packing, Inc. by letter of December 28, 1984, responded to Mr. Bissett, of the Department, that he continued to hold the check and was not accepting it as a final settlement. Thus, in view of the fact that the complaint was filed and served before notice that 95 percent of the creditors had entered into the composition agreement and never withdrawn, in view of the fact that on the face of the complaint Robert C. Elliott is represented as a salesman indeed, for an entity known as "Garguilo, Inc.," and in view of the fact that Mr. Manley as president of Triple M, retained the check without negotiating it and availing himself of its proceeds, rather indicating to the Department his wish to pursue the complaint without accepting the check as settlement, it has not been established that the Respondent, Fair Chester, was ever the recipient of any representation by Manley, or any other officer or director of the Petitioner corporation, that it would accept and enter into the above-referenced composition of creditors agreement. It was not proven that Triple M Packing, Inc. nor Mr. Manley or any other officer and director either signed or executed the composition agreement or authorized its execution by Robert C. Elliott. Respondent's position that Mr. Manley and Triple M acquiesced in the execution of the settlement agreement by Elliott and the payment of the one-third settlement amount by the subject check has not been established, especially in view of the fact that the complaint was filed after Attorney Howard notified Triple M of Respondent's settlement offer and prior to notice to Triple M that the settlement agreement had been consummated by 95 percent of the creditors and prior to the sending of the subject check to Triple M. Mr. Manley then within a reasonable time thereafter, on December 28, 1984, affirmed his earlier position that the entire indebtedness was due and that the settlement had not been accepted.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, the evidence of record and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That Fair Chester Tomato Packers, Inc. pay Triple M Packing Company, Inc. $12,276. In the event that principal fails to or is unable to pay that indebtedness, Hartford Accident and Indemnity Company should pay that amount out of the surety bond posted with the Department of Agriculture and Consumer Services. DONE and ENTERED this 16th day of September, 1985 in Tallahassee, Florida. Hearings Hearings 1985. COPIES FURNISHED: Mr. Kent Manley, Jr. Post Office Box 1358 Quincy, Florida 32351 P. MICHAEL RUFF Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 16th day of September, Arthur Slavin, Esquire BLUM, HAIMOFF, GERSEN, LIPSON, GARLEY & NIEDERGANG 270 Madison Avenue New York, New York 10016 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Mr. Joe W. Kight Bureau of Licensing & Bond Department of Agriculture Mayo Building Tallahassee, Florida 32301 =========================================================== ======
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 Petitioner (complainant) is entitled to recover $1,340.50 or any part thereof against Respondent dealer and Respondent surety company.
Findings Of Fact Petitioner is a grower of watermelons and qualifies as a "producer" under Section 604.15(5) F.S. Respondent Steve Helms Fruit Co., Inc. is a broker-shipper of watermelons and qualifies as a "dealer" under Section 604.15(1) F.S. Respondent Ohio Casualty Insurance Co. is listed as surety for Steve Helms Fruit Co., Inc. The amount and period of the bond have not been established. The time material to the amended complaint is June, 1994. Two or three weeks before Petitioner's melons were ready for harvest, Steve Helms personally came to Petitioner's home and requested to ship Petitioner's melons for ultimate retail sale. Petitioner requested to be paid "up front." Mr. Helms would not agree to pay all the money "up front" but agreed to pay some. He also agreed to pay within 14 days of the first shipment. Petitioner had had a bad experience two years previously, so he got Mr. Helms to promise to "clean up" his field. This expression is subject to some interpretation, and although Petitioner initially stated that the agreement was for Respondent broker-shipper to buy all his melons regardless of condition, Petitioner later modified his statement to say that Mr. Helms only promised not to take the best melons and leave the rest. Harvesting began May 15, 1994. Until June 10, 1994, Petitioner's usual contact with Respondent broker- shipper was Frank Favuzza, who oversaw all weighing and loading and assessed the Petitioner's melons on behalf of Respondent broker-shipper. On June 10, 1994, Mr. Helms was again personally in the field. Petitioner told Mr. Helms that he had to get the remainder of the melons off the field by Sunday, otherwise the heat would ruin them. Mr. Helms said he would wait until Monday. Petitioner believes that if the melons had been harvested by Sunday, June 12, 1994, three truckloads could have been harvested. On Monday, less than a full truckload was in good enough condition to be loaded onto a truck. A lot of melons were going bad and were left in the field to rot. On Tuesday, June 14, 1994, Petitioner's melons were weighed at Romeo, Florida and the poundage established at 29,330 pounds. Frank Favuzza estimated to Petitioner that his melons would only bring $.04/lb. From this conversation, related by Petitioner, it may be clearly inferred that Petitioner knew he would not be paid until after Respondent broker-shipper received payment from the ultimate retailer at the other end of the transaction. Petitioner's amended complaint alleged the amounts due as follows: "On June 1, 1994, #92111, 700 lbs. at $.07 equals $49.00, not $490.00; June 3, 1994, #92117, 900 lbs. at $.07 equals $63.00, not $630.00; and June 3, 1994, #92120, 790 lbs. at $.07 equals $55.30, not $553.00. Therefore Item (12) Complaint Total is amended to $1,340.00." The amendments did not alter the original claim for 6-14-94, invoice 92157 for 29,330 lbs. of melons at $.04 for $1,173.20. There was no claim for the melons that rotted in Petitioner's field. Weight tickets and Respondent's corresponding broker-shipper's bills of lading were admitted in evidence. These showed the following amounts were received by Respondent broker-shipper: 6/1/94 INVOICE 92111 46,020 net weight melons 6/3/94 INVOICE 92117 45,580 net weight melons 6/3/94 INVOICE 92120 44,720 net weight melons 6/14/94 INVOICE 92157 29,330 net weight melons Petitioner testified, without refutation, that he was present at each weighing and that he had agreed to take $.07 per pound on all loads except for the June 14, 1994 load for which he was claiming $.04 per pound. The bills of lading support Petitioner's testimony as to the price per pound. The bills of lading also clearly show that the price per pound was "to farm minus labor." This notation means that the net amount to be paid Petitioner by Respondent was subject to a prior deduction for labor, but it cannot reasonably be inferred to include a deduction for shipping. Petitioner's last load of 29,330 lbs. of melons weighed on June 14, 1994 was less than a full truckload, so Respondent added melons from another farm to that truck to make up a full load. Respondent broker-shipper did not pay Petitioner for 700 pounds of the June 1, 1994, invoice 92111 truckload; for 900 pounds of the first June 3, 1994 invoice 92117 truckload; for 790 pounds of the second June 3, 1994 invoice 92120 truckload; or for any (29,330 pounds) of the June 14, 1994 invoice 92157 truckload, upon grounds that those melons were not saleable at their destination. Petitioner put in evidence Exhibit P-3 which is an accounting Respondent had sent him. It shows that Respondent broker-shipper had deducted $690.30 for labor on invoice 92111 and claimed 700 pounds could not be sold; had deducted $683.70 for labor on invoice 92117 and claimed 900 pounds could not be sold; had deducted $670.80 for labor on invoice 92120 and claimed 790 pounds could not be sold; and had paid Petitioner nothing on a June 14, 1994 truckload, invoice 92159. Invoice 92157, which corresponds to Petitioner's June 14, 1994 partial truckload of 29,330 pounds of melons, is not listed or otherwise explained in the exhibit. The exhibit is conclusionary and inexplicably is dated 1993. There is no back-up evidence to support Respondent's making these deductions. No inspection certificate or labor charges are in evidence. Petitioner's initial complaint, which he put in evidence as P-1, constitutes an admission by him. In the complaint, Petitioner contended (1) that he was selling "direct" to Respondent broker-shipper; (2) that he was selling "f.o.b."; and (3) that he was selling "Fob shipping point excectance (sic) after final inspection." Petitioner also stated therein that he was given an inspection sheet showing 46,310 lbs. of watermelons had failed inspection and he did not feel the melons that failed inspection were his melons because Frank Favuzza approved of all melons loaded from Petitioner's field and the inspection sheet did not say that the bad melons were Petitioner's melons. Somewhat contrariwise, Petitioner testified at formal hearing that he had asked Respondent broker-shipper for a government inspection certificate showing that his melons were bad and never got it. From the credible evidence as a whole, it is inferred that Petitioner sold his watermelons on the June 14, 1994 truckload at $.04 per pound contingent upon the melons arriving at their ultimate destination in saleable condition per a federal inspection. It is further inferred that the prior three loads at issue also were sold contingent upon their arriving in saleable condition. The evidence as a whole also supports a finding that Petitioner's melons left the weigh station in a condition capable of being sold for the respective prices agreed upon between Petitioner and Respondent broker-shipper. Any deterioration of melons between June 10, 1994 when Petitioner requested that the broker-shipper take the last load and June 14, 1994 when the last load actually was weighed and shipped is attributable to Respondent broker-shipper, but that fact is not significant since the lesser rate of $.04/lb. was agreed upon prior to shipping and after Respondent broker-shipper had seen and approved the loaded melons. Petitioner's foregoing evidence of delivering saleable quality melons to Respondent broker-shipper is unrefuted. The presumption is thereby created that but for some failure of Respondent broker-shipper, the melons would have arrived at their ultimate destination in saleable condition. There is no evidence of record to support Respondent's deductions for "labor," or for melons which allegedly could not be sold upon delivery at the ultimate destination. Petitioner moved ore tenus to further amend his complaint to include a prayer for reimbursement for the cost of the melons which rotted in his field and became unsaleable between June 10 and June 14, 1994 due to Respondent broker-shipper's delay in loading and to assert a claim for interest on the $1,340.50 claim. This motion was denied as too late.
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 $1,340.50, and binding Respondents to pay the full amount of $1,340.50, which in Ohio Casualty Insurance Co.'s case shall be only to the extent of its bond. RECOMMENDED this 2nd day of June, 1995, 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 2nd day of June, 1995. APPENDIX TO RECOMMENDED ORDER 94-6189A The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1-2 Accepted. Rejected as unnecessary Rejected as subordinate and mere argumentation. 5-6 Rejected as mere argumentation. Rejected as these were not the dates testified. Rejected as mere argumentation. Respondent Steve Helms Fruit Co., Inc.'s PFOF: 1 Accepted. 2-4 Rejected as not proven. Accepted as to the June 10-14, 1994 load. Rejected as not proven. Not proven in whole. Covered to the extent proven. While one inference might be that a different invoice number was assigned to the combined load, that is not the only reasonable inference based on the evidence submitted. Likewise, although Petitioner apparently got some inspection certificate, that certificate is not in evidence. There is no record evidence as to what it covered. It is not reasonable to infer or guess that it covered four loads on four trucks on three dates or that there is any way to calculate from it that the only bad melons were Petitioner's melons and not those mixed in from another farm on June 14, 1994. See FOF 19-20. 8-15 Rejected as not proven. Respondent Ohio Casualty Insurance Co.'s PFOF: None filed COPIES FURNISHED: Frank Favuzza, President Steve Helms Fruit Co., Inc. Post Office Box 1682 Auburndale, Florida 33823 Tom Morton Ohio Casualty Insurance Co. Post Office Box 94-5010 Maitland, Florida 32794-5010 L. C. Stevenson 333 NW 46th Avenue Ocala, Florida 34482 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol PL-10 Tallahassee, Florida 32399-0810 Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL 10 Tallahassee, Florida 32399
Findings Of Fact In 1983 William Lovett, Jr., Complainant, planted 65 acres of water melons, most of which were bought by Doyle L. Wadsworth, Respondent, either for himself or for William Manis Company. The only entity for which Respondent acted as agent was the Manis Company, for whom he has bought melons as its agent for many years. On behalf of himself or Manis, Respondent, in 1983, purchased melons from Complainant on June 16, 17, 20, 23, 24, 27, and 29. Complainant's melons were bought at prices ranging from seven cents to ten cents per pound. The melons were paid for by check signed by Respondent, dated zero to five days after the invoice date, on either Respondent's checking account at the Barnett Bank of Brandon or on Manis Company's account at Sun Bank of Tampa. Total payments to Complainant for these melons were $285,104.25 (Exhibits 2 and 3). Complainant and Respondent had met shortly before the 1983 water melon season through a mutual friend. Wadsworth agreed to buy water melons from Lovett, not to act as his broker. The grower had the water melons harvested, the buyer provided trucks and trailers to pick up the melons at the field, and the sale occurred when the melons were loaded. Wadsworth testified that he explained to Lovett that he buys melons on a load basis which he has done for many years, that he does not act as a broker to sell the melons, and that once the melons are loaded they are the responsibility of the then-owner, Wadsworth. 1983 was a good year for water melons and Wadwsorth bought nearly all of Lovett's production. Lovett asked Wadsworth if he would handle his melons if Lovett planted a crop in 1984 and Wadsworth agreed. Wadsworth also told Lovett that he preferred "grays," which Lovett planted. Lovett understood that Wadsworth had agreed to buy all of his water melons except for those Lovett sold independently, and to pay the prevailing prices. Wadsworth had no such understanding. Lovett's primary occupation is doctor of veterinary medicine and he relied on others for harvesting information. For reasons not fully explained at the hearing, the harvesting of Lovett's 1984 crop of water melons was a little late. Accordingly, any further delays resulted in overripe or sunburned water melons. The first harvesting of Lovett's melons occurred on Saturday, June 2, 1984, and Wadsworth bought 46,480 pounds at 3-1/2 cents per pound on behalf of Manis Company. Harvesting next occurred Monday, June 4, 1984, when Wadsworth bought 40,680 pounds for Manis and just over 100,000 pounds for himself. Payment for these water melons was made June 5, 1984, by a check in the amount of $3,050.60 on the Manis bank and $3,626.70 00 Wadsworth's bank. During the loading on June 4 a large number of water melons were discarded as culls. This made the task of grading and overseeing the grading much more onerous, and Wadsworth advised Lovett he would not be buying any more water melons from him that season. Lovett came to Wadsworth's motel to persuade him to do otherwise, but without success. Lovett asked Wadsworth if he could refer him to someone else to handle his melons, which request Wadsworth declined. Lovett subsequently obtained the services of a broker to handle his water melons but the additional delay in getting the crop harvested and the extra brokerage cost he incurred resulted in less income to Lovett than he would have received had Wadsworth bought all of Lovett's melons. Conflicting evidence was presented regarding the condition of the water melons grown by Lovett in 1984. Lovett's witnesses described the field as the finest ever seen, while Wadsworth testified that recent excess rainfall left part of the field wet, and some vines were wilting. All witnesses agreed that there were a large number of culls discarded from the water melons graded No. 1 on the first harvesting. In view of the recommended disposition of this case, a definitive finding of fact on this issue is unnecessary.
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
