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
The Issue Is Petitioner entitled to all or part of $12,732.61 he claims as a result of eight loads of watermelons brokered by Respondent Sunny Fresh Citrus Export & Sales Company between June 17, 1996 and June 21, 1996?
Findings Of Fact Petitioner is a grower of watermelons and qualifies as a "producer" under Section 604.15(5), Florida Statutes. Respondent Kelly Marinaro d/b/a Sunny Fresh Citrus Export & Sales Company is a broker-shipper of watermelons and qualifies as a "dealer" under Section 604.15(1), Florida Statutes. Respondent American Bankers Insurance Company of Florida is surety for Respondent Sunny Fresh. Petitioner's father had long done business with Kelly Marinaro's father, Frank Marinaro, before each father's retirement. Upon what basis the fathers traded is not clear on the record. Petitioner approached Kelly Marinaro d/b/a Sunny Fresh on three occasions with written proposals, two of which involved some front money being put up by Kelly Marinaro to help Petitioner grow and sell watermelons. One proposal suggested a standard broker's fee to be taken off loads. In each instance, Kelly Marinaro rejected the proposals, explaining that he was not a grower or a buyer but only "brokered" melons other people grew. On or about June 15, 1996, Petitioner telephoned and requested that Kelly Marinaro d/b/a Sunny Fresh assist him in the sale of watermelons he had already grown on a 40 acre field near Wildwood, Florida. Earlier in the 1996 watermelon season, Carr Hussey had taken two loads of melons from Petitioner's field. Hussey had advanced Petitioner $3,000 for harvesting of the melons. Although Petitioner claimed that Mr. Hussey bought his melons in the field, he also conceded that the melons he sold Mr. Hussey did not net that amount when sold to the ultimate purchaser, and therefore, neither Mr. Hussey nor Petitioner made any profit on those two loads. Mr. Hussey did not require reimbursement of the $3,000 he had advanced and proposed that Petitioner and he "work it out" the following season. However, Mr. Hussey took no more loads of Petitioner's melons and "went off to Georgia." This left Petitioner in need of some immediate help in selling his remaining melons. In the June 15, 1996 phone call, Kelly Marinaro d/b/a Sunny Fresh agreed to "broker" Petitioner's remaining watermelons to ultimate buyers in the north and northeast United States whom Marinaro lined up by telephone before shipping the melons. That is, he agreed to use his best efforts to sell the watermelons on Petitioner's behalf to ultimate consumers, charging Petitioner one cent per pound or $1.00 per hundred weight sales charge. The parties' arrangement depended upon the sale of the watermelons and the price actually paid at the ultimate destination, rather than the price the watermelons ideally could be sold for on the day they left Petitioner's field. The parties' agreement by telephone was not reduced to writing, but Findings of Fact 8 and 9 are made contrary to Petitioner's assertion that "they (Sunny Fresh) inspected; they bought the melons as is" for the following reasons. Kelly Marinaro had previously rejected any different risk for his company than selling the melons at the ultimate destination. He produced a written notation he had made contemporaneously with his telephone negotiation with Petitioner. Despite Petitioner's vague testimony to the contrary, it appears that Petitioner had had arrangements with other brokers in the past whereby he knew no profit would be made if the melons did not arrive in good condition, and he should have been aware that the actual sale price received at the point of delivery was the standard of doing business. Petitioner did not dispute that the sales charge was to be deducted by Kelly Marinaro from the ultimate price obtained. This is consistent with a dealer selling on behalf of a grower at the ultimate destination. Petitioner relied on prices given in the standard "Watermelon Reports" as F.O.B. (F.O.B. usually signifies delivery at a certain price at the seller's expense to some location.) I also find that the parties agreed to the price of the melons being based upon the amount they netted at the melons' ultimate destination for the reasons set out in Findings of Fact 13 and 16-21. Frank Marinaro, the father of Kelly Marinaro, is retired and regularly resides outside the State of Florida. He is unable to drive himself due to age and infirmity. He has a hired driver named James Hensley. The senior Mr. Marinaro is not a principal or employee of Sunny Fresh, but he likes to visit his son and his old cronies in Florida's watermelon belt during the growing season, for old times' sake. He was visiting his son in June, 1996. Kelly Marinaro arranged for Frank Marinaro to be driven by Mr. Hensley to Wildwood. Kelly Marinaro then transferred $6,300 of Sunny Fresh's money to a Wildwood bank where it was withdrawn in cash by Frank Marinaro. Frank Marinaro, driven by Mr. Hensley, then delivered the cash in three incremental payments authorized by Kelly Marinaro to Petitioner to pre-pay Petitioner's harvesting costs. The senior Mr. Marinaro also helped with the incidental duties of meeting trucks at the Wildwood weighing station or local truck stops and directing them to Petitioner's farm. He was not paid by Sunny Fresh or by Petitioner for these services. Petitioner testified that Frank Marinaro was present in his field for the loading of several truckloads of melons on different days, that he cut open some melons in the field and pronounced them "good" after sampling them, and that Frank Marinaro asked Petitioner to pay Mr. Hensley $50.00 for helping around the field and with physically loading some melons while they were there. This testimony is not evidence of Frank Marinaro's "apparent agency" to engage in the more complicated and technical process of "grading" watermelons on behalf of Sunny Fresh. These activities of Frank Marinaro did not alter Petitioner's agreement with Kelly Marinaro on behalf of Sunny Fresh so that Frank Marinaro's and James Hensley's actions constituted a direct sale to Sunny Fresh of all the melons loaded at Petitioner's farm (the point of embarkation) because both Petitioner and Kelly Marinaro clearly testified that the $6,300 cash harvesting costs constituted advances against receipts of the sale of watermelons when sold by Sunny Fresh at the ultimate destination. Further, the request that Petitioner pay Mr. Hensley for helping load the watermelons is in the nature of Petitioner paying a casual laborer for harvesting rather than it is evidence that any Sunny Fresh authority resided in Mr. Hensley. Between June 17, 1996 and June 21, 1996, Petitioner loaded eight truckloads of watermelons onto trucks for sale to various customers in the north and northeast United States. Of the eight truckloads loaded, the breakdown of actual costs and expenses worked out as follows: ACCOUNTING OF R. BASS LOADS Sunny Fresh #93775 Sold to: Frankie Boy Produce Frankie Boys #96095 New York, NY Weight shipped: 41,250 Unloaded weight: 40,400 Initial price at shipment to grower for good watermelon: 5 - ½ cents/lb Net return $1,212.00 Sales charge: (404.00) Watermelon promotion board tax: (8.08) Return to R. Bass due to bad melons: 2 cents/lb $ 799.92 Sunny Fresh #93791 Sold to: Fruitco Corp. Fruitco #1880 Bronx, NY Weight shipped: 40.800 Unloaded weight: 39,180 Initial price at shipment to grower for good watermelon: 5 - ½ cents/lb Net return $ 974.71 Sales charge: (391.81) Watermelon promotion board tax: (7.84) Return to R. Bass due to bad melons: 2.49 cents/lb $ 575.06 Sunny Fresh #81312 Crosset Co. #67012 Sold to: Crosset Co. Cincinnati, OH Weight shipped: 45,860 Unloaded weight: Initial price at shipment to 41,762 grower for good watermelon: 5 cents/lb Gross return $4,134.42 Shipping charges (freight): (1,712.63) Net return: 2,421.79 Sales charge: (438.48) Watermelon promotion board tax: Return to R. Bass due to bad melons: 4.75 cents/lb (8.35) $1,974.96 Sunny Fresh #93804 Sold to: Tom Lange Co. Lange #3344 St. Louis, MO Weight shipped: 44,550 Unloaded weight: Initial price at shipment to grower for good watermelon: 39,760 5 cents/lb Gross return $2,584.40 Shipping charges (freight): (1,455.96) Net return: 1,128.44 Sales charge: (445.50) Watermelon promotion board tax: Return to R. Bass due to bad melons: 1.72 cents/lb (7.95) $ 674.99 Sunny Fresh #93802 M.A. Fruit #N/G Sold to: M.A. Fruit Trading Corp New York, NY Weight shipped: 40,130 Unloaded weight: 36,720 Initial price at shipment to grower for good watermelon: 5 cents/lb Gross return $3,797.40 Shipping charges (freight): (1,758.55) Net return: 2,038.85 Sales charge: (401.30) Watermelon promotion board tax: (7.34) Return to R. Bass due to bad melons: 4.46 cents/lb $1,630.21 Sunny Fresh #93817 Sold to: C. H. Robinson Company C.H. Robinson #379035 Cleveland, OH Weight shipped: 43,300 Unloaded weight: Initial price at shipment to 42,147 grower for good watermelon: 5 cents/lb Gross return $4,440.21 Shipping charges (freight): (1,930.27) Net return: 2,509.94 Sales charge: (411.02) Watermelon promotion board tax: Return to R. Bass due to bad melons: 5 cents/lb (8.43) $2,090.49 Sunny Fresh #93819 Sold to: Isenberg #N/G Joseph Isenberg, Inc. Buffalo, NY Weight shipped: Unloaded weight: Initial price at shipment to grower for good watermelon: 45,100 5 cents/lb Gross return $ 500.00 Shipping charges (freight): (1,877.98) Net return: (1,377.98) Sales charge: Return to R. Bass due to bad melons: 4.06 cents/lb (451.00) $(1,828.98) Sunny Fresh #81334 Sold to: Palazzola . Palazzola #N/G Memphis, TN Weight shipped: 47,700 Unloaded weight: Initial price at shipment to grower for good watermelon: 5 cents/lb Gross return $ 0.00 Shipping charges (freight): (1,553.30) Net return: (1,553.30) Inspection: (65.00) Bins: (30.00) Sales charge: Return to R. Bass due to bad melons: 4.46 cents/lb (477.00) $(2,125.90) Kelly Marinaro testified credibly that the resultant low prices paid by the ultimate purchasers was the result of the poor quality of Petitioner's melons upon their arrival at their ultimate destination. Exhibits admitted in evidence without objection verified the poor condition of five of the loads. In those instances in which there were United States Department of Agriculture Inspection Reports, I accept those reports as clearly dispositive of the issue of the melons' poor condition upon arrival. Petitioner's more vague testimony that he doubted any load could ever pass such an inspection as "A-1," does not refute them. Kelly Marinaro testified credibly and without contradiction that each time he was informed by a potential buyer that a load of melons was in poor condition upon arrival at their destination, he faxed, mailed, or telephoned Petitioner with the "trouble report" information as soon as feasible and tried to involve him in the decision as to what should be done. This is consistent with a sale at the ultimate destination. Kelly Marinaro further testified credibly and without contradiction that for two loads he recommended to Petitioner that they not obtain a federal inspection because it was not cost efficient. He made this recommendation for one of these two loads because it reached its destination on a Friday and the fruit would have to stand and deteriorate further in quality and price over the weekend if they waited on an inspection. Petitioner agreed to waive at least one inspection. Petitioner and Kelly Marinaro did not agree as to the number of times they spoke on the phone about "trouble reports", but Petitioner acknowledged at least four such phone conversations. Petitioner and Kelly Marinaro did agree that in each phone call, Petitioner told Kelly Marinaro to "do the best you can," and stated he did not want to pay any freight. This type of conversation is not indicative of a relationship in which the melons have been purchased outright at the site of embarkation, Petitioner's field. I have considered the testimony of Petitioner and of Kelly Marinaro, respectively, on the issue of whether or not Petitioner was required to pay the freight on the watermelons from their first oral contract by telephone call on June 15, 1996. Without attributing any ill-motive to either party- witness, I find they did not initially have a meeting of the minds as to how the cost of freight was to be handled, and that Petitioner assumed at some point he would not have to pay freight. However, it is clear from the evidence as a whole that Kelly Marinaro did everything possible to avoid freight charges to Petitioner and would not have meticulously informed and received oral waivers of inspections from Petitioner if there had been any clear agreement either that Sunny Fresh was purchasing the watermelons "as is" in Petitioner's field or that Sunny Fresh Produce was paying all the freight. Indeed, Petitioner was not charged for freight when Kelly Marinaro d/b/a Sunny Fresh provided the trucks. It is also clear from the evidence as a whole that Petitioner was informed on or about the date that each load arrived at its ultimate destination that he was going to be charged for at least some freight charges out of the ultimate price received for the melons. Bill Ward has acted as a broker of watermelons for many years. I accept his testimony that there can be varying grades of watermelon within one field or one harvest. The several "Watermelon Reports" admitted without objection show that the demand for Florida watermelons was light or fairly light in June 1996, that the price was down or to be established, and that all quotations were for stock of generally good quality and condition. There had been a lot of rain in Florida during the 1996 watermelon season and rain unfavorably affects the quality of melons. Melons from further north where there had been less rain were able to be shipped to northern and northeastern buyers in less time than were Florida melons. Northern and northeastern buyers did not have to select from inferior melons that year. Petitioner's testimony and supporting documentation that he sold to other purchasers two truckloads of good quality, top price melons from the same field between June 17 and June 21, 1996 does not overcome all the evidence that the majority of melons he sold through Sunny Fresh were of the poor quality reported by the ultimate buyers and federal inspectors or that the melons sold to Sunny Fresh deteriorated due to slow transport.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agriculture enter a final order dismissing Petitioner's complaint.RECOMMENDED this 26th day of March, 1997, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1997. COPIES FURNISHED: Ronald Bass 32510 Sumter Line Road Leesburg, FL 34748 Arthur C. Fulmer, Esquire Post Office Box 2958 Lakeland, FL 33806 Mr. Robert Waldman American Bankers Insurance Company Claims Management Services 11222 Quail Roost Drive Miami, FL 33157-6596 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler General Counsel The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, FL 32399-0800
The Issue Whether the Respondent owes the Petitioner money for watermelons allegedly purchased from Petitioner. The factual and legal issue is whether Respondent purchased the melons or acted as a broker/agent for Petitioner and attempted to sell the melons for Petitioner.
Findings Of Fact During the 1996 season, the Petitioner, who is a labor contractor and farmer, grew watermelons. The Respondent, who is a building contractor and watermelon broker, was “handling” watermelons in the area around Archer, Florida. The Respondent was represented by Tony Tharp, brother of the Respondent, who spoke with the Petitioner. As a result of an oral agreement reached between Tony Tharp and Petitioner, the watermelons which Petitioner had grown were picked by persons working for Tharp on June 20, 21, and 23, 1996. There was no written contract or memorandum regarding the agreement of the parties. Petitioner stated that he wanted to get his melons picked, but that he was busy with his crew and could not pick them, and the melons needed to be picked because they were past their prime. Tony Tharp agreed to “move them” for Petitioner. One truck load was picked and loaded on June 20; three truck loads were picked and loaded on June 21, and two truck loads were picked and loaded on June 23. Tharp paid Petitioner $700 which was termed an “advance” by Respondent, and considered a “down payment” by Petitioner, who understood he would receive the remainder of the money due him in approximately seven days. The trucking was arranged for by Tharp, and the Respondent bore the cost of picking and freight initially, and the merchants who received the melons paid the shipping for the melons they accepted. The melons were shipped to markets in several states. The first load was refused by the intended recipient, and after several attempts to dispose of the melons, they were sold at salvage for $180. The second load was also refused, and could not be salvaged. Pictures of this load were introduced where it was unloaded in Marianna, Florida. The remaining loads of watermelons were accepted, and $4,876.43 received for them. The costs of loading the two loads which were refused was $1,149.75. The freight costs on these two loads was $3,901.83. The Petitioner testified that the Tharp agreed to purchase the melons in the field, and, therefore, he is entitled to the purchase price for the melons. Dennis Tharp stated he was a broker, and that the Petitioner assumed the risk if the melons could not be sold. Dennis Tharp stated that he had lost the costs of picking, $1,149.75, and transporting, $3,901.83, the two loads of melons offset by the salvage value of $180.00, resulted in a total loss of $4,871.58. When the costs of picking the last four loads, $1,591.20, and the $700.00 advance on the sale is deducted from the proceeds of the sale of the last four loads, $4,876.43, the net profit on the last four loads is $2,585.23. When the profits from the sale of the last four loads is deducted from the loses on the first two loads, there is a net loss of $2,286.35. This net loss was absorbed by the Respondent. Several of the people who were in the field testified regarding the state of the melons being picked. The melons were past their prime for picking. On the last load, the pickers refused to pick any more melons without additional compensation because so many melons were being rejected at the truck. Petitioner, who was present, concurred in this extraordinary expense. Generally, melons are not sold because the market drops and the merchants refuse melons being shipped to them. In this case, the first melons were rejected, and the last loads were accepted. The quality of a watermelon cannot be determined without cutting it open which destroys its merchantability. Watermelon graders attempt to judge the quality of melons from the external characteristics; however, purchasers cut open samples upon receipt to judge their quality. The Respondent notified the Petitioner by letter dated July 11, 1996 that the first two loads had been rejected; that he had salvaged those he could; and that the costs related to these two loads exceeded the profits due Petitioner on the last four loads.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Department enter a Final Order finding that the Respondent owes no further money to the Petitioner. DONE and ENTERED this 12th day of March, 1997, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1997. COPIES FURNISHED: Alphonso Hunt 226 Fawn Drive Archer, Florida 32618 Dennis Tharp 4516 Decatur Street Marianna, Florida 32446 Auto Owners Insurance Company Legal Department Post Office Box 30660 Lansing, MI 48909-8160 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 Richard Tritschler, General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Bob Crawford, Commissioner Department of Agriculture The Capitol, PL-01 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
Findings Of Fact Upon consideration of the oral testimony and the documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, Petitioner, Carl Hiers and Rachel Hiers were "producers" of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes. At all times pertinent to this proceeding, Respondent, Jay Nichols, Inc., (Nichols was a licensed "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes, issued license number 1547 by the Department, and bonded by the U.S. Fidelity & Guaranty Co. (Fidelity for the sum of $50,000.00, bond number 790103-10-115-88-1, with an effective date of March 22, 1988 and a termination date of March 22, 1989. At all times pertinent to this proceeding, Nichols was authorized to do business in the State of Florida. The Complaint filed by Petitioners was timely in accordance with Section 604.21(1), Florida Statutes. Prior to Petitioners selling or delivering any watermelons (melons) to Nichols, Petitioners and Nichols agreed verbally that: (a) Petitioners would sell Nichols melons on a per pound basis at a price to be quoted by Nichols on the day of shipment; (b) Petitioners would harvest and load the melons on trucks furnished by Nichols; (c) a weight ticket with the weight of the truck before and after loading would be furnished to Petitioners; (d) Nichols or its agent in the field would have the authority to reject melons at the place of shipment (loading) which did not neet the guality or grade contracted for by Nichols; (e) the melons were to be of U.S. No. 1 grade; and, (f) settlement was to be made within a reasonable time after shipment. Although Nichols assisted Petitioners in obtaining the crew to harvest and load the melons, Petitioners had authority over the crew and was responsible for paying the crew. On a daily basis, L. L. Hiers, would contact Nichols and obtain the price being paid for melons that day. The price was marked in a field book with the net weight of each load. Nichols contends that the price quoted each day was the general price melons were bringing on the market that day. The price to be paid Petitioners was the price Nichols received for the melons at their destination minus 1 cent per pound commission for Nichols, taking into consideration freight, if any. Nichols was not acting as Petitioners' agent in the sale of the melons for the account of the Petitioners on a net return basis nor was Nichols acting as a negotiating broker between the Petitioners and the buyer. Nichols did not make the type of accountiig to Petitioners as required by section 604.22, Florida Statutes, had Nichols been Petitioners' agent. The prices quoted by Nichols to L. L. Hiers each day was the agreed upon price to be paid for melons shipped that day subject to any adjustment for failure of the melons to meet the quality or grade contracted for by Nichols. On June 11, 1988, L. L. Hiers contacted Nichols and was informed that the price to be paid for melons shipped that day was 6 cents per pound. This price was recorded in the field book with the net weight of the load of melons shipped on June 11, 1988. Only a partial load, no. 10896 weighing 11,420 pounds for which Nichols paid 5 cents per pound, is in dispute. The amount in dispute is $114.70. On June 13, 1988, L. L. Hiers contacted Nichols and was informed that the price to be paid for melons shipped that day was 5 cents per pound. This price was recorded in the field book with the net weight of 3 loads of melons shipped that day that are in dispute. The 3 loads in dispute are as follows: (a) Load No. 10906, weighing 48,620 pounds for which Nichols paid 4 cents per pound; (b) Load No. 10904, weighing 50,660 pounds for which Nichols paid 4 cents per pound, and; (c) Load No. 10902, weighing 45,030 pounds for which Nichols paid 4 cents per pound. The amount in dispute is as follows: (a) Load No. 10906, $486.20; (b) Load No. 10904, $253.30; and (c) Load No. 10902, $450.30. On June 20, 1988, L. L. Hiers contacted Nichols and was informed that the price to be paid for melons shipped that day was 5 cents per pound. This price was recorded in the field book with the weight of 52,250 for which Nichols paid 2 cents per pound. The amount in dispute is $1,567.50. On June 23, 1988, L. L. Hiers contacted Nichols and was informed that the price to be paid for melons shipped that day was 5.25 cents per pound. This price is 0.25 cent per pound less than that quoted on the same day in Case No. 88-5632A which is apparently due to the variety, Crimson Sweet, as opposed to Charmston Grey, since the average size of the melons shipped that day was within 4 ounces. This price was recorded in the field book with the load of melons shipped that day weighing 44,140 pounds for which Nichols paid 5 cents per pound. The load in dispute is load no. 11251, and the amount in dispute is $110.35. The total amount in dispute is $2,982.35. Load no. 11090 was federally inspected and failed to meet U.S. No. 1 grade on account of condition, not quality requirements. Therefore, the price of 2 cents per pound is a reasonable price and within the terms of the verbal contract. On all other loads, Nichols contends that the quality was low resulting in a lesser price than that agreed upon. However, Nichols failed to present sufficient evidence to support this contention. Nichols has refused to pay Petitioners the difference between the agreed upon price for load nos. 10896, 10902, 10904, 10906, 11090, and 11251, and the price paid by Nichols as indicated in the settlement sheet. The total difference is $2,982.35. However, subtracting $1,567.50, the difference in load no. 11090 that was rejected, from the total differnce results in a net difference of $1,414,85 and the amount owed to Petitioners.
Recommendation Upon cnsideration of the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is therefore, RECOMMENDED that Respondent, Jay Nichols, Inc., be ordered to pay the Petitioners, Carl Hiers and Rachel Hiers, the sum of $1,414.85. It is further RECOMMENDED that if Respondent, Jay Nichols, Inc., fails to timely pay Petitioners, Carl Hiers and Rachel Hiers, as ordered, then Respondent, U.S. Fidelity & Guaranty Co., be ordered to pay the Department as required by Section 604.21, Florida Statutes, and that the Department reimburse the Petitioners in accordance with Section 604.21, Florida Statutes. RESPECTFULLY SUBMITTED AND ENTERED this 20th day of March, 1989, in Tallahassee, Leon County, 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 20th day of March, 1989. COPIES FURNISHED: Honorable Doyle Conner, Commissioner Mr. Carl Heirs Depaftment of Agriculture and Mrs. Rachel Hiers Consumer Service Route 5, Box 339 The Capitol Dunnellon, Florida 32630 Tallahassee, Florida 32301 Mallory Horne, Esquire Jay Nichols, Inc. Department of Agriculture and Post Office Box 1705 Consumer Services Lakeland, Florida 33802 513 Mayo Building Tallahassee, Florida 32399-0800 U.S. Fidelity & Guaranty Company Ben H. Pridgeon, Chief Post Office Box 1138 Bureau of License and Bond Baltimore, Maryland Mayo Building 21203 Tallahassee, FL 32399-0800
The Issue This case arises from a complaint filed by Jay Nelson and Ernest Leclercq, d/b/a Sun Coast Farms, in which it is asserted that H. M. Shield, Inc., is indebted to the Complainants in the amount of $7,266.20 for agricultural products sold to the Respondent. At the hearing the representative for the Complainant stated that most of the matters asserted in the complaint had been resolved by settlement, but that six items remained in dispute and that the total amount remaining in dispute was $1,041.20. Ms. Ernst testified as a witness for the Complainant and also offered several documents as exhibits, which documents were marked as a composite exhibit and received in evidence.
Findings Of Fact Based on the testimony of the witness and on the exhibits offered and received in evidence, I make the following findings of fact: On February 23, 1984, the Complainant sold agricultural products consisting of Snap Beans, Wax Beans, and Zukes (Lot No. 1116) to the Respondent. At the time of the hearing there was still unpaid and owing the amount of $327.00 on this sale. On March 8, 1984, the Complainant sold agricultural products consisting of Snap Beans and Wax Beans (Lot No. 1294) to the Respondent. At the time of the hearing there was still unpaid and owing the amount of $184.20 on this sale. On March 8, 1984, the Complainant sold agricultural products consisting of Wax Beans (Lot No. 1295) to the Respondent. At the time of the hearing there was still unpaid and owing the amount of $184.20 on this sale. On March 19, 1984, the Complainant sold agricultural products consisting of Snap Beans and Zukes (Lot No. 1453) to the Respondent. At the time of the hearing there was still unpaid and owing the amount of $202.50 on this sale. On March 19, 1984, the Complainant sold agricultural products consisting of Snap Beans and Zukes (Lot No. 1454) to the Respondent. At the time of the hearing there was still unpaid and owing the amount of $110.00 on this sale. On March 19, 1984, the Complainant sold agricultural products consisting of Snap Beans and Zukes (Lot No. 1457) to the Respondent. At the time of the hearing there was still unpaid and owing the amount of $202.50. The total amount owed for agricultural products by the Respondent to the Complainant, which amount was unpaid as of the time of the hearing, is $1,401.20.
Recommendation On the basis of all of the foregoing, it is recommended that a Final Order be entered directing H. M. Shield, Inc., to pay Jay Nelson and Ernest Leclercq, d/b/a Sun Coast Farms, the amount of $1,401.20 for the agricultural products described in the findings of fact, above. In the event the Respondent fails to make such payment within 15 days of the Final Order, it is recommended that the surety be required to pay pursuant to the bond. DONE and ORDERED this 6th day of June, 1985, at Tallahassee, Florida. Hearings Hearings MICHAEL M. PARRISH 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 6th day of June, 1985. COPIES FURNISHED: Jay Nelson & Ernest Leclercq d/b/a Sun Coast Farms P.O. Box 3064 Florida City, Florida 33034 H. M. Shield, Inc. Room 82 State Farmer's Market Pompano Beach, Florida 33060 Hartford Insurance Company of the Southeast 200 East Robinson Street Orlando, Florida 32801 Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Joe W. Kight, Chief Bureau of License and Bond Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 The Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301
The Issue The issues presented in this case concern claims made by the Petitioner related to the delivery of agricultural products, namely watermelons, to the Respondent, Young, which petitioner claims have not been paid for. The claim has been advanced pursuant to Section 604.21, Florida Statutes. The disputed amount is $9,226.30. FINDINGS OF FACT 1/ Petitioner, who does business as Crawford Melon Sales, made an oral agreement with Respondent, Danny Lewis Young, who trades as Hugh Young Produce, to sell U.S. No. 1 watermelons for the price of .03 cents or .025 cents f.o.b. The total charge for the watermelons delivered and associated costs was $23,559.20, of which $14,332.90 has been paid, leaving a balance of $9,226.30. The watermelons were delivered in Florida to drivers who signed invoices of receipt at the time of shipment. The drivers were individuals dispatched by the Respondent Young or employed by the Petitioner. The exact dates of delivery are set forth in the Petitioner's Composite Exhibit No. 1. All shipments were sent to Tennessee. The trucks were very tightly packed at the request of Respondent Young. Time in transport varied depending on whether the drivers were union affiliated. The union drivers would not drive for the same length of time before stopping, as contrasted with the non-union drivers. Jessie Johnson, who was a driver in the delivery of two of the loads, found 75 to 100 bad melons in his initial load delivered to Nashville, Tennessee. In the second load, Johnson observed 65 to 70 melons that were damaged to include some broken melons. Some of that group of 65 to 70 melons had been damaged at a time when they were unloaded in Clarksville, Tennessee. The 65 to 70 damaged melons which Johnson testified about in the second load were returned to Nashville, Tennessee to be Inspected. Each of the loads which were transported by Jessie Johnson and his brother Leroy Johnson contained 1,500 to 1,800 melons in the truck bed. Randall Harper, who had been employed by the Respondent Young, established that in those loads of 50,000 to 60,000 pounds, which are in dispute, there would he a certain amount of watermelons that were bruised because of their placement on the bottom of the stack in the truck bed. The Johnson brothers and Harper were not present at times when the federal agricultural inspector in Nashville, Tennessee, examined the subject loads of watermelons. Michael W. Golightly, an employee with the United States Department of Agriculture, was the individual who inspected some watermelons at issue. He had considerable experience in inspecting watermelons prior to his examination of the loads delivered pursuant to the oral agreement between Petitioner and Respondent Young. In addition to work experience, Golightly had attended schools designed to promote his expertise in the examination of commodities, such as watermelons, to determine their marketability. Through his experience and training, Golightly is an expert in identifying the grade quality of watermelons and any associated problem reducing the quality of the commodity, watermelons. His background and training is identified in his deposition which was offered as Respondent's Exhibit No. 1 and admitted into evidence. The grading of watermelons is pursuant to standards developed by the United States Department of Agriculture and is found in Exhibit 2 to the deposition. In inspecting a load of watermelons, a representative sample is examined of approximately 100 watermelons, going from the top of the load to the bottom. The Petitioner's watermelons, which were inspected by Golightly, were all inspected in Tennessee, as contrasted with the point of origin in Florida. As a consequence, the standards to be applied in that inspection were not as rigid. The loads in question were examined by Golightly after a request had been made by Young to conduct the inspection. That request was made at the time of receipt of the watermelons and any delay in inspection was occasioned by other duties to be fulfilled by Golightly or the fact of an intervening weekend between the time of receipt and the time of inspection. In view of these delays, as much as two to five days would pass between the time that the watermelons were loaded and the inspection was made. The results of the inspections may be found as part of the Respondents' Exhibit No. 1 as exhibits to the deposition and as part of the Petitioner's Composite Exhibit No. 1. In examining the watermelons, anthracnose, anthracnose rot, stem end rot, sunburn, immature picks and bruising were found. With the exception of the 45,280 pound load of July 2, 1982, and the 76,060 pound load of July 11, 1982, by the deposition and attachments, which are Petitioner's Exhibit No. 1, and the Respondents' Exhibit No. 1, which contains copies of inspections made by Golightly, it has been shown that the watermelons in dispute were subject to a rejection as U.S. No. 1 watermelons. The basis of the rejection pertains to the observation made by the inspector in which he found those categories of deficiencies related in this paragraph. Those deficiencies are completely described in the deposition and in the inspection reports. Pursuant to custom or practice in the watermelon business, Respondent Young was entitled to sell the substandard watermelons, found by the federal inspector, at the best price possible and to pay the Petitioner a reduced amount for the product. In fact, Respondent Young mitigated the circumstances by selling those questioned watermelons that could be sold and has paid the Petitioner money realized from those sales. In addition, he has paid the Petitioner the full amount on the 45,250 pounds of watermelons of July 2, 1982. He has only paid the Respondent .015 cents f.o.b. on the 76,060 pounds of watermelons of July 11, 1982. The agreed upon price was .03 cents f.o.b. for those watermelons of July 11, 1982, and there was no proof in the course of the hearing to the effect that those watermelons were substandard. Based upon the facts as presented, Respondent still owes the Petitioner an additional $1,140.90 for the 76,060 pounds of watermelons which were delivered on July 11, 1982. The petitioner also claims $350 as a payment advanced to a driver involved with the July 3, 1982, load of 51,270 pounds. Petitioner claims Young is responsible for the reimbursement of the $350 which Petitioner advanced to this driver. The document within Respondents' Composite Exhibit No. 1, which is a copy of the invoice or statement for the load shows the payment of that advance. None of the Respondents' proof by testimony or documentation indicates any reimbursement of the $350 and the $350 claim is found to be established. Another related claim pertains to the July 13, 1982, load of 46,440 pounds in which the allegation is made by the Petitioner that $428.80 in freight costs are due from the Respondent Young. This is a balance remaining from the $928.80 freight reflected in the invoice or statement of account of July 13, 1982, which is found in Composite Exhibit No. 1 by the Petitioner. The complaint allegation shows that $500 of the total $928.80 has been paid leaving the subject $428.80 at issue. The Petitioner has successfully established entitlement to $428.80 related to freight on that load and this proof has been unrefuted by the Respondent. Finally, Petitioner claims an additional sum of $859.20 for freight on the July 18, 1983, 42,960 pound load. The statement of account or invoice, which is part of Composite Exhibit No. 1 by the Petitioner, shows a freight claim in that amount, and is sufficient proof to demonstrate entitlement to that amount. The proof offered by the Respondent Young fails to refute this claim. When added to remaining money owed for watermelon sales per se, Respondent owes the Petitioner a total amount of $2,778.90 for watermelons and related cost of freight and incidentals. American Insurance Company is surety on a $20,000.00 bond for the benefit of the Respondent Danny Lewis Young d/b/a Hugh Young Produce. This arrangement represents the available funds to pay Petitioner's claims.
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 Whether the Respondent owes the Petitioner money for watermelons purchased from Petitioner. The factual issues are whether the contract between the parties limited the warrantee of merchantability, and whether melons were of good quality on arrival, and, if not, who was responsible for the failure to meet quality standards.
Findings Of Fact During the 1996 season, the Petitioner contracted with Respondent to sell several loads of watermelons. The claim identified the various loads of melons by date and weight as follows: DATE POUNDS PRICE CLAIM 6/23 44,010 $.04 $1760 6/25 40,300 $.04 $1612 6/25 40,260 $.04 $1610 6/25 41,640 $.04 $1666 6/26 15,750 $.04 $ 600 The Respondent used file numbers to identify the loads which were purchased from Petitioner. These were co-related with the Petitioner’s information by date. The Respondent reduced the amount remitted to the Petitioner on the following loads due to shrinkage (loss of weight during transit) and loss of decayed melons on file number 96057. The Petitioner stated at hearing that, while he had added them to the claim, the differences between his claims and Respondent’s accounting were within the shrinkage and loss limits. The Respondent owed the Petitioner $4,832 on the following: DATE FILE NO. WEIGHT PAID 6/23 96055 43,659 $1746 6/25 96056 39,240 $1570 6/25 96057 38,080 $1516 The controversy between the parties centered upon file numbers 96058 and 96065. Both parties agree regarding the weight of the melons shipped and the price per pound. File number 96058 consisted of 41,640 pounds of melons sold at $.04 per pound. The shipment was sold to Provigo Distribution, Inc. on June 25, and the melons were to be Peewee sized melons (melons weighing 14-17 pounds). The Petitioner loaded the melons on a truck provided by Provigo, and Respondent did not have a person present to inspect the load when it was loaded. The Petitioner asserts that title to the melons transferred when they were loaded on the truck, and that Respondent was liable for the product thereafter. The Respondent acknowledges that it accepted title for the melons when loaded on the truck at the field, but that terms also provided that the melons would be of a specified size and would be of good quality upon delivery. There was no written contract limiting the warrantee of merchantability. Provigo refused acceptance of the melons because they were too big. The melons were around 21 pounds or small mediums (18-24 pounds). When the Respondent sought to sell the melons to another buyer, the buyer had the melons inspected, and 57 percent of the melons were rejected: 15 percent for sunburn, 7 percent for bruising, 10 percent for whitish pink flesh, and 25 percent as overripe. The Respondent introduced a copy of the documents showing the original sale price to Provigo, rejection, inspection and accounting upon resale. The Respondent had sold the melons related to file number 96058 to Provigo for $.06 a pound with Provigo paying the freight. The Respondent would have made $2498.40 on the sale to Provigo. Upon rejection, the Respondent was responsible to Provigo for the transportation costs ($.05 per pound) for the entire load or $2082. The Respondent obtained $613.84 from the sale of the melons after their rejection. File number 96065 related to a partial load which Petitioner had sold on June 26th to Respondent in response to Respondent’s request for Peewee size melons. Petitioner was only able to supply a partial load of 15,750 pounds. These were moved on June 26th from Florida to Georgia, where on June 27th, the truck was finished off with large melons from another farmer. The Respondent had an agent who was in Georgia where the melons were shipped immediately in order to add additional melons to the load. This agent had the authority to purchase melons and cull melons for Respondent, and was in contact with Respondent during the period the truck carrying Petitioner’s melons was waiting. The agent also knew the load was to be shipped to Canada for sale. Respondent’s agent in Georgia saw that the Peewees loaded from Petitioner were spotted, leaking, and decayed prior to loading the large melons. These melons were shipped to Canada at a cost of $.05 a pound for a total of $1138 where the Peewees from Respondent were rejected because of decay. Their condition was such that they could not be given away, and a disposal charge of $350 was charged to Respondent. The Respondent in rendering an accounting of the transaction to Petitioner charged Petitioner $1138 for the transportation of the 15,750 pounds of melons to Canada and $350 for their disposal.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Department enter a final order finding that the Respondent owes the Petitioner a total of $2523 and providing Respondent a reasonable amount of time to produce proof of payment of this amount to Petitioner. DONE and ENTERED this 15th day of May, 1997, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1997. COPIES FURNISHED: Bo Bass, President Bass Farms, Inc. 2829 Southwest SR 45 Newberry, FL 32669 H. Joseph Heidrich 260 Maitland Avenue, Number 1000 Atlamont Springs, FL 32701 Brenda Hyatt, Chief Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, FL 32399-0800 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, FL 32399-0810 Bob Crawford, Commissioner Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 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 proceeding, 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 proceeding, Respondent Rentz was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 4103 by the Department, and bonded by Respondent Nationwide in the sum of $14,000 - Bond No. LP 505 761 0004. At all times pertinent to this proceeding, Respondent Nationwide 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). Petitioner harvested, loaded and shipped sixteen (16) loads of watermelons to various receivers on instruction from Respondent Rentz during the 1985 watermelon season but only four (4) loads were in dispute on the date of the hearing with a claim of $3,807.98. 1/ Petitioner in previous watermelon seasons loaded and shipped watermelons for Respondent Rentz and on all occasions, including the 1985 season, had been paid for the watermelons either in cash by Respondent Rentz or by check drawn on Respondent Rentz's account. The invoicing of all loads of watermelons shipped by Petitioner for Respondent Rentz was done by Respondent Rentz and payments made by the various receivers were made to Respondent Rentz. Petitioner's understanding that Respondent Rentz was acting as a buyer and not a broker was credible and supported by Respondent Rentz's actions subsequent to the watermelons being loaded and shipped. 2/ Although Respondent Rentz contended that he was acting as a broker, the more credible evidence shows that Respondent Rentz was acting as a buyer and that risk of loss passed to him upon shipment, with all remedies and rights for Petitioner's breach reserved to him. For purposes of Sections 604.15-604.30, Florida Statutes, the Department's policy is to consider a person a broker, requiring only a minimum bond ($13,000.00) for licensure, when that person does not take title to the product and whose function is to bring buyer and seller together and assist them in negotiating the terms of the contract for sale but not to invoice or collect from the buyer.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent Rentz be ordered to pay to the Petitioner the sum of $3,807.98. It is further RECOMMENDED that if Respondent Rentz fails to timely pay the Petitioner as ordered, then Respondent Nationwide 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 15th day of April, 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 15th day of April, 1986.
