Findings Of Fact Shortly before January 21, 1985, Tommy P. Adams, on behalf of Mid-South Distributors, placed an order with salesman Daniel Garcia, of Corky Foods Corporation, for the purchase of tomatoes. Mid-South Distributors was to purchase one hundred and forty-four (144) 5x6, eight hundred and sixty-four (864) 6x6, and five hundred and seventy-six (576) 6x7 boxes of tomatoes from Corky Foods. The parties agreed that the price of each unit would be fixed at $1.00 less than "market price." However, no price was established at the time of sale because tomato prices were unstable due to a freeze which passed through the area on January 19 and 20, 1985. Mid-South Distributors and Corky Foods had used this type of billing arrangement satisfactorily in past business transactions. On January 21, 1985, the tomatoes were shipped to Mid-South Distributors from the packing house in Boynton Beach, Florida. Thereafter, on January 23, 1985, an invoice was sent by Corky Foods to Mid-South Distributors establishing the price of the tomatoes as follows: $19.15 per unit for the 5x6 containers; $17.15 per unit for the 6x6 containers; and $15.15 per unit for the 6x7 containers. Mid-South Distributors remitted payment to Corky Foods based on the following assumed market prices: $16.00 for the 5x6; $14.00 for the 6x6; and $12.00 for the 6x7 boxes of tomatoes. Corky Foods Corporation sold 5x6 boxes of tomatoes to other dealers during the period in question for 519.15 per unit; 6x6 boxes of tomatoes during the period in question for $17.15; and 6x7 boxes of tomatoes during the time in question for $15.15. Adams Brokerage (Tommy P. Adams) purchased 5x6 boxes of tomatoes from area sellers during the time in question for $16.00; 6x6 boxes of tomatoes from area sellers during the time in question for $14.00; and 6x7 boxes of tomatoes from area sellers during the time in question for $12.00. The Southeastern Fruit and Vegetable Report, printed in Thomasville, Georgia on Thursday, January 24, 1985, set market prices on tomatoes in "South and Central Florida" at $20.00 for 5x6, $18.00 for 6x6, and $16.00 for 6x7. The Southeastern Fruit and Vegetable Report is often used as a guideline in establishing prices for the industry; the prices reported are based in part on information or "quotes" received from different shippers in the area under consideration. Notably, a shipper's quoted price for a particular day may not be the same price at which the shipper actually sells the commodity. The Southeastern Fruit and Vegetable Report used the geographical area of "South and Central Florida" in establishing market prices for tomatoes. The south and central Florida area is a reasonable geographical boundary to consider in establishing market prices for tomatoes sold at individual locations within those boundaries. The customary way in which Corky Foods Corporation determines market prices is by calling other large area packing houses, and by referring to the Southeastern Fruit and Vegetable Report. In establishing the prices for the tomatoes herein discussed, Corky Foods Corporation consulted (among other area packers) Florida Tomato Packers, a large tomato packer located in Homestead, Florida. The locations at which Tommy P. Adams purchased tomatoes for the lower prices included Lantana, Naples, Bonita Springs, Boca Raton, and Immokalee. Area market prices for tomatoes immediately prior to the freeze were as low as $11.00 for 5x6; $10,00 for 6x6; and $8.00 for 6x7. Generally, severe weather conditions, such as a freeze, will cause market prices for tomatoes to rise. The Respondents did not dispute the quality or condition of the tomatoes; market price was the sole source of disagreement between the parties.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing Corky Foods Corporation's Amended Complaint herein. DONE AND ORDERED this 8th day of November, 1985 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 8th day of November, 1985. APPENDIX Pursuant to Section 120.59(2), Florida Statutes (1983), following is submitted in response to Petitioner's and Respondent's Proposed Findings of Fact: Petitioner's Proposed Findings of Fact Paragraph: Ruling: Accepted; see paragraphs 1 and 2, Recommended Order. Rejected as a conclusion of law and not supported by the evidence. Partially accepted; see paragraph 7, Recommended Order. Partially accepted; see paragraphs 6 and 7, Recommended Order. Facts not included therein were rejected as not being established by evidence presented at the hearing. Rejected; irrelevant and not supported by the evidence. Accepted; see paragraph 4, Recommended Order. Accepted; see paragraphs 1 and 2, Recommended Order. Accepted; see paragraph 10, Recommended Order. Rejected; not a finding of fact. Respondent's Proposed Findings of Fact Paragraph: Ruling: a law. 1 Partially accepted; see paragraphs 1-10, Recommended Order. Rejected to the extent that the majority of this paragraph contains statement of the issues and conclusions of COPIES FURNISHED: Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Robert Chastain, Esquire General Counsel Mayo Building Room 513 Tallahassee, Florida 32301 Mr. Joe W. Kight Bureau of Licensing & Bond Department of Agriculture Mayo Building Tallahassee, Florida 32301 Donna L. Fuller Vice-President Corky Foods Corporation Post Office Box 1019 Boynton Beach, Florida 33425 Mid-South Distributors, Inc. 2601 South Blossom Trail Orlando, Florida 32805
Findings Of Fact Petitioner, Sunbelt Tomato Company (STC), is a tomato producer located in Quincy, Florida. Respondent, Terrific Tomato Company (TTC), is an agricultural dealer in Pompano Beach, Florida, subject to the licensing requirements of the Department of Agriculture and Consumer Services (agency). As such, TTC is obligated to obtain a dealer's license from the agency, and to post a surety bond executed by a surety corporation to ensure that payment is made to producers for agricultural products purchased by the dealer. To meet the latter requirement, TTC has obtained surety bond number 987-78-50 in the amount of $25,000 from respondent, Fidelity and Deposit Company of Maryland. On or about July 5, 1985, STC's president, Branch Mahaffey, accepted a telephone order from Emerson Elliott, whose wife Teresa owned Orlando Tomato Company (OTC). Elliott wished to purchase two loads of tomatoes on behalf of TTC. They agreed upon a price of $12,909.60 and $11,780.80, respectively, for the two loads. It was further understood that TTC was to receive the invoices, and that they were to be shipped to TTC in care of Quality Tomato and Produce (QTP) in Kansas City, Missouri, which was the ultimate buyer. In addition, both loads were to be U.S. combination grade (1 and 2 grades), which means that 75 percent of the tomatoes in each lot must meet U.S number 1 grade standards and the remaining 25 percent must meet U.S. number 2 grade standards. However, this was an erroneous instruction by OTC, because TTC had actually instructed Elliott to arrange for the purchase of two loads having at least 85 percent of the tomatoes meeting U.S. grade number 1 standards. The latter standard is more stringent than the combination grade erroneously ordered by OTC. It was also understood that TCC would arrange to send two trucks to Quincy to pick up the loads on July 8. Shortly after talking with Elliott, Mahaffey had a second telephone call concerning the order from TTC's president, Broderick Bolton. Bolton asked Mahaffey if Elliott had made arrangements on behalf of TTC to buy two loads of tomatoes at the agreed upon prices. Mahaffey responded that he had, and Bolton then told him he would have two trucks sent to Quincy on July 8 to pick up the shipments. The first load was picked up as scheduled on July 8 by a QTP vehicle which carried the tomatoes to its warehouse in Kansas City. After the second truck failed to arrive on the same day, Mahaffey telephoned Bolton on July 9 and asked where was the truck for the second load. Bolton told Mahaffey to arrange the transportation since QTP evidently did not have a truck available. Mahaffey then hired Steve Miller Produce Company in Thomasville, Georgia to pick up the second load. By this time, however, the tomatoes had been picked and had sat in the summertime heat for 24 hours because of TTC's failure to provide transportation. The second load, consisting of three lots, left Quincy on July 9 and arrived in Kansas City where it was stored in QTP's warehouse facilities. QTP was apparently dissatisfied with the quality of tomatoes and arranged for an inspection of the produce on July 11 by an inspector of the United States Department of Agriculture. The inspection report has been received in evidence as petitioner's exhibit 1. It reflected that there was "no decay" and that the load met "quality requirements." However, the inspector found 8 percent of lot 1 to have damage by bruising, 5 percent to have damage by sunken discolor, and 20 percent to have damage by skin checks. Lot 2 was found to have 4 percent damage by sunken discolored areas and 21 percent to have damage by skin checks. The final lot was found to have 6 percent damage by sunken discolored areas and 18 percent damage by skin checks. This information was relayed to Bolton who telephoned Elliott and told him there were problems with the load, and that less than 85 percent of the tomatoes met U.S. grade number 1 standards. The two agreed that Bolton should simply try to get the highest price possible for the second load. Bolton telephoned Mahaffey around July 12 and told him there was a problem with the second load. However, Mahaffey felt no price adjustment was necessary because of the buyer's delay in picking up the shipment. Even so, in an effort to resolve the matter quickly, Mahaffey told Bolton he would settle for $6.00 per box instead of the previously agreed upon prices which ranged from $6.50 to $8.00 per box. Mahaffey also asked for a copy of the inspection report. Bolton was noncommittal as to the $6.00 offer and said that he would be back in touch with Mahaffey at a later date. Mahaffey did not hear from Bolton again. Sometime later, Bolton telephoned QTP and relayed Mahaffey's offer to settle for $6.00 per box. The offer was apparently refused. In the last half of August, Mahaffey received the original inspection report dated July 11 and a second report dated July 17. The latter report contained the results of a second inspection of the second load conducted by the same federal inspector. Surprisingly, on the second inspection the inspector found the tomatoes to be of better quality than when he had first inspected them a week earlier. No explanation for this variance was given. The inspector noted on the second report that 1 percent of the tomatoes were now decaying, and that only 4 percent of the tomatoes were damaged by bruising while 24 percent had sunken discolored ranges. On an undisclosed day in late August Mahaffey received a check drawn on TTC's account on August 19 made payable to OTC in the amount of $3,680. The check was originally sent by Bolton to OTC which then forwarded the unendorsed check to Mahaffey. The $3,680 represented the amount which QTP paid TTC after disposing of the second load. Mahaffey did not cash the check, and immediately filed the complaint herein with the agency. In October, he received full payment from OTC for the first load, but the second load remains in controversy. Bolton stated he was forced to accept whatever price QTP was willing to pay for the second load of tomatoes since the goods were damaged and did not meet the specifications that the buyer requested. He acknowledged that leaving the tomatoes in the field for an extra day could affect the quality and color of the tomatoes. Bolton took no brokerage fee on the shipment, and turned over to STC all of the proceeds ($3,680) received from QTP. It is TTC's position that if STC has a claim, it should be against OTC rather than his company.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Terrific Tomato Company be directed to pay Sunbelt Tomato Company, Inc. $11,780.80 as full payment for a shipment of tomatoes sold by STC to TTC on July 9, 1985. In the event TTC does not comply with this directive, the surety for said dealer shall pay the amount due to the agency for the benefit of the producer. DONE and ORDERED this 25th day of July, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER 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 July, 1986. COPIES FURNISHED: Branch Mahaffey, President Sunbelt Tomato Co. Post Office Box 201 Quincy, Florida 32351 Broderick Bolton, President Terrific Tomato Co. Post Office Box 2145 Pompano Beach, Florida 33061 Mr. Joe Kight Bureau of License & Bond Room 418, Mayo Bldg. Tallahassee, Florida 32301 Fidelity and Deposit Co. of Maryland 909 Brickell Plaza, Suite 501 Miami, Florida 33131
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
The Issue The issue is whether Respondent S & G Sales, Inc., owes money to Petitioner in connection with the purchase of agricultural products.
Findings Of Fact Petitioner produces agricultural products in Naples, Florida. Petitioner and Respondent S & G Sales, Inc. (Respondent) entered into an agreement in which Respondent would market Petitioner's pickles for the best available price. However, the agreement did not require Respondent to sell the pickles only for market price. The agreement required only that Respondent use its best efforts in marketing the pickles. In April and May 1998, Petitioner delivered to Respondent numerous shipments of pickles pursuant to the parties' agreement. Quality and sizing problems in the pickles prevented Respondent from being able to obtain market price. Pickles are perishable. They can go from acceptable quality to rotten in as little as two days. Respondent's representative weekly informed Petitioner's representative of the below-market prices that he was obtaining for the pickles. The record is somewhat confusing because Petitioner seeks additional payment for some, but not all, shipments of pickles, and Respondent made periodic advances for all the pickle shipments plus shipments of squash also. However, the evidence is clear that Respondent was required to get only the best available price and, due to quality and size problems did so. The evidence is also clear that Respondent paid at least as much as it owed Petitioner for the pickle shipments covered in the present claim.
Recommendation It is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing Petitioner's complaint. DONE AND ENTERED this 25th day of January, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 1999. COPIES FURNISHED: Mr. Joseph Monahan New York Surety Company 123 William Street New York, New York 10038-3804 Juan Tello Qualified Representative Tello Farms, Inc. Post Office Box 8154 Naples, Florida 34101-8154 Carolann A. Swanson Roetzel & Andress 2320 First Street, Suite 1000 Fort Myers, Florida 33901 Honorable Bob Crawford Commissioner 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 During January, February, and early March, 1982, Respondent entered into several oral contracts for the purchase of tomatoes from Petitioner. Specifically, orders were placed by Respondent on January 28, February 3 and 5, and March 3, 1982, for US. No.3 grade tomatoes to be shipped f.o.b. origin to receivers in Puerto Rico and Alabama. The first three orders were shipped by boat to Puerto Rico and the fourth by truck to Alabama. The shipment of January 28, 1982 (Shipment #1), consisted of 1,296 boxes, and the invoice cost was 9,288.90. Payment was due on or before February 17, 1982, per the handwritten note placed on the invoice by Ms. Ernst before it was mailed out. A similar notice as to payment due date was placed on each of the other invoices before they were mailed out. The shipment of February 3, 1982 (Shipment #2), consisted of 1,368 boxes; the invoice cost was $9,188.10; and "payment was due on or before February 22, 1982. The shipment of February 5, 1982 (Shipment #3), also consisted of 1,368 boxes; was priced at $9,188.10; and payment was due on or before February 24, 1982. The shipment to Alabama of March 3, 1982 (Shipment #4), consisted of 1,178 boxes; the invoice cost was $7,748.70; and payment was due on or before March 23, 1982. Shipment #1 was inspected by a United States Department of Agriculture (USDA) inspector in the receiver's cool room in Puerto Rico on February 5, 1982, eight days after it was shipped. At that time, the inspector noted that the condition of the tomatoes was "approximately 40 percent green and breakers, 45 percent turning pink, 10 percent light red and red. Decay ranges from 2 to 6 percent, average 3 percent, Bacterial soft rot in early stages." The grade was noted: "Fails to grade US. No. 3, account of grade defects." Quality was noted as: "Mature fairly clean to clean, well developed, generally fairly smooth to slightly rough. Grade defects ranges 40 to 56 percent, average 47 percent, mostly scars, catfaces, cuts and rough texture." Shipment #2 was inspected by a USDA inspector in the receiver's cool room on February 16, 1982, 13 days after shipment. At that time, the inspector noted as to condition: "Average approximately 95 percent red. From 2 to 8 percent, average 4 percent decay; Bacterial soft rot and Gray Mold rot in various stages." Quality was listed as: . . . grade defects ranges 12 to 28 percent, average 19 percent, mostly growth [sic] crack, catfaces, cuts and scars. Grade was noted: "Fails to grade US. No. 3 account of grade defects." Shipment #3 was inspected by a USDA inspector in the receiver's cool room on February 17, 1982, 12 days after shipment. On the inspection report, condition was noted: "Average approximately 85 percent red. Decay ranges 5 to 24 percent, average 14 percent. Gray Mold rot and Bacterial soft rot in various stages." Quality was listed as: . . . From 12 to 32 percent, average 18 percent grade defects, mostly scars, catfaces, mechanical damage and rough texture." Grade was listed as: "Fails to grade US. No. 3 account of grade defects." Shipment #4 was inspected by a USDA inspector in the receiver's warehouse in Alabama on March 5, 1982, two days after shipment. Upon inspection, condition was noted as: "Strano's Pride lot: Average approximately 30 percent green, 5 percent breakers, 20 percent turning, 20 percent pink, 15 percent light red, 10 percent red." As to Select Lot: "Average approximately 20 percent green, 20 percent breakers, 15 percent turning, 20 percent pink, 10 percent light red, and 15 percent red." Each lot was average 1 percent decay. Grade was not quoted, nor was quality. Ordinary shipping time by ship from the Port of Miami to Puerto Rico is four to five days. Inspections under the USDA Perishable Agricultural Commodities Act rules must be conducted within 24 hours after delivery. The USDA inspector is generally accepted as the only nonpartisan means of determining grade, condition, and quality of produce. While the condition of a shipment may change during transit, the grade of the produce normally will not. When the delivery inspections on Shipments #1, #2, and #3 were conducted in Puerto Rico and the receivers complained to Respondent about the produce they received, Elliott, who had been in daily telephone contact with his dissatisfied customers and had verified the condition of the shipments in conversations with the inspectors in question, contacted Tom Banks, Sales Manager for Petitioner, who authorized adjustments in payment saying, "Work it out and get back what you can, or words to that effect. Discussion between these two men as to the adjustments included such topics as charges for gassing and freight to the gashouse, along with the fact that the tomatoes failed to grade out at destination as US. No. 3, as ordered. Mr. Banks failed to get the approval of Mr. Strano before authorizing those adjustments, however Respondent had ordered green tomatoes without gassing so that there would be less chance of spoilage during the several days it took in transit for the tomatoes to get from Miami to Puerto Rico. Gassing, a procedure designed to speed up the ripening of tomatoes, would not have been an appropriate process in a situation such as this. With regard to Shipment #4, Respondent wanted vine-ripened tomatoes for quick delivery to a close-by market. He described his order as for 40 to 50 percent color in the shipment. The tomatoes delivered contained color well below the desired level; and as a result, the Respondent's customer, who had to hold them for an extended period before sale to allow them time to ripen, was dissatisfied with the shipment. The tomatoes in Shipments #1, #2, and #3 were graded as US. No. 3 by a USDA inspector at Petitioner's plant outside Miami prior to shipment. The procedure followed is for the inspector to inspect batch lots containing amounts far greater than that in any one of the shipments in question here. The inspector puts his stamp of grade on a master inspection certificate. Thereafter, whenever any tomatoes are drawn from that batch for sale and shipment, the Petitioner's employees are authorized to mark the appropriate grade for that shipment onto the documentation relating to it. There is no additional inspection by the USDA at origin. However, Petitioner could provide a document trail for only two shipments. One, of 1,368 boxes to Puerto Rico on February 3, 1982, was Shipment #2. Certificate No. B 135642, referring to Gas Lot 306, reflecting a grading of US. No. 3 on February 2, 1982, can be traced to that shipment. Certificate No. B 135588, which was offered in support of Shipment #3, on February 5, 1982, affords reasonable connection to that shipment. There is no documentation, other than Petitioner's own shipping memorandum, which relates to the preshipment grading of the tomatoes in Shipment #1. No credible evidence was introduced to establish the grade of produce in this shipment which failed to grade out as US. No. 3 upon delivery. I therefore find that the grade assigned by the inspector at the delivery point is controlling and that the shipment of 1,296 boxes on January 28, 1982, was not US. Grade No. 3. Respondent deducted $3.25 per box on Shipment #1 ($4,212), $1.50 per box on Shipment #2 ($2,050), $2.50 per box on Shipment #3 ($3,420), and $2 per box on Shipment #4 ($2,356), plus $752.40 each on Shipments #2 and #3 for gassing and freight to the gashouse.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Department of Agriculture and Consumer Services enter an order finding that Respondent is indebted to Petitioner in the amount of $5,470. RECOMMENDED this 7th day of June, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 7th day of June, 1983. COPIES FURNISHED: Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Kenneth M. Clayton, Esquire Michael T. Hand, Esquire 220 North Palmetto Avenue Orlando, Florida 32801 Homestead Tomato Packing Company, Inc. c/o Mr. Rosario Strano Post Office Box 3064 Florida City, Florida 33034 Peerless Insurance Company 62 Maple Avenue Keene, New Hampshire 0343
The Issue The issue in this case is whether Respondent Clark's Country Farmers Market, Inc. owes Petitioner a sum of money for shipments of citrus fruit.
Findings Of Fact The evidence presented at final hearing established the facts that follow. The Parties and Their Problem Spyke's Grove and Clark's are "citrus fruit dealers" operating within the Department's regulatory jurisdiction. As a wholesale shipper, Spyke's Grove packages and arranges for delivery of citrus products pursuant to purchase orders that retail sellers such as Clark's submit. The packages typically are labeled with the retail seller's name, and thus the retail buyer (and the recipient, if the citrus is purchased as a gift) usually will not be aware of Spyke's Grove's involvement. The instant case involves a series of orders that Clark's placed with Spyke's Grove between October and December 1999 for packages of gift fruit. Under a number of informal, largely unwritten contracts, Spyke's Grove agreed, each time it received an order from Clark's, to ship a gift fruit box or basket to the donee designated by Clark's' retail customer, for which fruit shipment Clark's agreed to pay Spyke's Grove. Spyke's Grove alleges that Clark's failed to pay in full for all of the gift fruit packages that Clark's ordered and Spyke's Grove duly shipped. Clark's contends (though not precisely in these terms) that Spyke's Grove materially breached the contracts, thereby discharging Clark's from further performance thereunder. The Transactions From mid-October 1999 until around December 12, 1999, Clark's faxed or e-mailed to Spyke's Grove approximately 350 individual orders for gift fruit packages. Among other information, each order consisted of a shipping label that identified the product (e.g. the type of gift box or basket), the intended recipient, and the destination. Spyke's Grove manifested its intent to fill these orders by faxing statements of acknowledgment to Clark's, by telephoning Clark's, or both. Although the many contracts that arose from these transactions were thus documented, the writings left much unsaid. For example, the parties did not explicitly agree in writing that Spyke's Grove would deliver the subject gift baskets to the donees before Christmas, nor did they make any express oral agreements to this effect.1 Further, the parties did not specifically agree that Spyke's Grove would be obligated to deliver the gift fruit into the hands of the donees and bear the risk of loss until such tender of delivery. Rather, the contracts between Spyke's Grove and Clark's were ordinary shipment contracts that required Spyke's Grove to put the goods into the possession of carriers (such as the U.S. Postal Service or United Parcel Service) who in due course would deliver the packages to the donees. For many weeks, until early December 1999, Clark's placed orders, and Spyke's Grove filled them, under the arrangement just described. The relationship was not completely trouble-free, for the parties had some problems with duplicate orders. Most, if not all, of these difficulties stemmed from the implementation of a computerized ordering system which allowed Clark's to "export" orders directly to Spyke's Grove's electronic database. The parties recognized at the time that errors were occurring, and they attempted contemporaneously to identify and purge unintended duplicates. Pursuant to the course of dealing between these parties, Spyke's Grove filled orders that were not affirmatively identified as errors prior to the scheduled shipment date. The Fire On the night of Sunday, December 12, 1999, a devastating fire at Spyke's Grove's premises caused substantial damage, temporarily disrupting its citrus packing and shipping operations at the peak of the holiday season. Working through and around the loss, Spyke's Grove soon recovered sufficiently to reopen for business. By around noon on Tuesday, December 14, 1999, its telephone service had been restored, and activities relating to shipping resumed on Friday, December 17, 1999. The Aftermath Meantime, Clark's contends, customers had begun calling Clark's on December 10, 1999, to complain that gift fruit packages were not being received as promised. None of the customers testified at hearing, however, and therefore no competent, non-hearsay evidence establishes the contents of their alleged out-of-court statements. On December 14, 1999, following several unsuccessful attempts to communicate with Spyke's Grove shortly after the fire (about which Clark's remained unaware), Denise Clark, acting on behalf of Clark's, reached Robert Spiece, a representative of Spyke's Grove, on his cell phone. At hearing, Ms. Clark and Mr. Spiece gave conflicting accounts as to the substance of their December 14, 1999, telephone conversation. Neither disputed, however, that during this conversation Ms. Clark and Mr. Spiece agreed, at Ms. Clark's request, that all orders of Clark's not yet shipped by Spyke's Grove would be canceled, effective immediately, as a result of the fire. Although Ms. Clark claimed that Mr. Spiece further informed her that Spyke's Grove could not identify which orders had been shipped, the factfinder does not believe that Mr. Spiece made such a sweeping negative statement. Rather, as Mr. Spiece explained at hearing, Ms. Clark probably was told that information regarding the filled orders would not be available that day. Without waiting for further information from Spyke's Grove, Clark's began calling its retail customers to ascertain whether they had received packages that were supposed to have been shipped by Spyke's Grove. Employees of Clark's who had participated in this process——which took four to five days—— testified at hearing about conversations between themselves and various customers. As uncorroborated hearsay, however, the out- of-court statements attributed to these customers were not competent substantial evidence upon which a relevant finding of fact, e.g. that any particular customer or customers had not received their gift fruit, could be based. Moreover, this hearsay evidence, even if competent, would still have been too anecdotal to establish persuasively any widespread failure on the part of the carriers to deliver the packages shipped by Spyke's Grove. On December 15, 1999, Spyke's Grove prepared three draft invoices for the gift fruit packages that Clark's had ordered and which Spyke's Grove had shipped before December 12, 1999. Numbered 1999113001, 1999121101, and 1999121201, the invoices sought payment of $688.72, $2,415.48, and $298.66, respectively. On the first page of Invoice #1999121201, Barbara Spiece, the President of Spyke's Grove, wrote: Some of these were lost in the fire. "A" day left in the morning. "Springfield" was on the floor to go out that night. I realize there are many duplicates in these shipped reports. We tried to watch for them but with different order numbers it was very difficult. Just cross them out [and] you will not be charged for them. I apologize for all of the problems we have had this season [illegible] wish you luck. These bills were faxed to, and received by, Clark's on December 16, 1999. Clark's did not pay the invoices, or dispute them, or cross out the unintended duplicate orders (as it had been invited to do) to effect a reduction in the outstanding balance. Instead, Clark's ignored Spyke's Grove's requests for payment. Not only that, in disregard of its existing contractual obligations and with no advance notice to Spyke's Grove, Clark's proceeded on its own to fill all of the orders that it had placed with Spyke's Grove before December 12, 1999——including those orders that Spyke's Grove, through its draft invoices, claimed to have shipped. Even after the fact, Clark's failed to inform Spyke's Grove that it had, in effect, repudiated its contractual promises to pay Spyke's Grove for the gift fruit packages already shipped as of December 12, 1999 (i.e. the orders not canceled on December 14, 1999). The Inevitable Dispute Having heard nothing from Clark's in response to its December 16, 1999, fax, Spyke's Grove sent its invoices out again, in final form, on January 25, 2000.2 This time, Ms. Spiece did not inscribe any instructions to cross out duplicates for a discount. Numbered 11063001 ($688.72), 11063002 ($2,449.14), and 11063003 ($195.52), these bills totaled $3,333.38. Each of these invoices contained the following boilerplate "terms": Net 14 days prompt payment is expected and appreciated. A 1 ½% monthly service charge (A.P.R. 18% per annum) may be charged on all past due accounts. Customer agrees to pay all costs of collection, including attorneys [sic] fees and court costs, should collection efforts ever become necessary. Clark's did not remit payment or otherwise respond to Spyke's Grove's statements. Accordingly, on June 20, 2000, Spyke's Grove sent a letter to the Department requesting assistance. Clark's was provided a copy of this letter. Shortly thereafter, Spyke's Grove filed a Complaint with the Department, initiating the instant proceeding. Ultimate Factual Determinations Clark's refusal to pay for the goods ordered from and shipped by Spyke's Grove constituted a breach of the contracts between the parties. Spyke's Grove did not materially breach the agreements. Further, Clark's did not object, within a reasonable period of time, to the statements of account that Spyke's Grove rendered preliminarily on December 16, 1999, and finally on January 25, 2000. Accordingly, these invoices amount to an account stated concerning the transactions between the parties. Clark's failed to overcome the presumption of correctness that attaches to an account stated, either by proving fraud, mistake, or error. Spyke's Grove has suffered an injury as a result of Clark's' breach. Spyke's Grove's damages consist of the principal amount of the debt together with pre-award interest at the statutory rate. Accordingly, Spyke's Grove is entitled to recover the following amounts from Clark's: Principal Due Date Statutory Interest $3,333.38 2/08/99 $ 298.66 (2/08/00 - 12/31/00) $ 335.56 (1/01/01 - 11/30/01) $3,333.38 $ 634.22 Interest will continue to accrue on the outstanding balance of $3,333.38 in the amount of $1.00 per day from December 1, 2001, until the date of the final order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order awarding Spyke's Grove the sum of $3,333.38, together with pre- award interest in the amount of $634.22 (through November 30, 2001), plus additional interest from December 1, 2001, until the date of the final order, which will accrue in the amount of $1.00 per day. DONE AND ENTERED this 29th day of November, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 2001.
The Issue The issues in this cause are whether respondent is guilty of violating F.S. 561.42(1) in that it did assist four retail vendors by giving gifts and/or guilty of violating F.A.C. Rule 7A-4.45 in that it failed to reflect on four invoices the complete addresses of four vendors and their signatures, and if so, whether a civil penalty should be assessed against respondent's license or such license should be suspended or revoked, pursuant to F.S. S. 561.29.
Findings Of Fact Having considered the testimony and evidence presented at the hearing, the following findings of fact are made: On or about June 1, 1975, Mr. George C. Gould went to respondent's place of business and obtained six to eight boxes containing 12,000 to 15,000 invoices. Four of these invoices form the basis for the present charges against respondent. Invoice No. 5327, dated January 23, 1975, contains the information, inter alia, that items were sold to "Magic Market number 139, Apal Pkway," License Number 47-164, and also that one bottle of Boones Farm Strawberry Wine was delivered as a promotional item at no charge. Invoice No. 5331, dated January 23, 1974, is for "Inland Quick Stop, Hwy 20 and Cap. Circle", License No. 47-175, and indicates that one bottle of Boones Farm Strawberry Wine was delivered at no charge as a promotional item. Invoice No. 5332, dated January 23, 1974, is for "Tempo, W. Tenn. St." License No. 47-17, and indicates that one bottle of Boones Farm Strawberry Wine was delivered as a promotional item at no charge. Invoice No. 6512, dated February 6, 1974, is for "Subway, W. Tenn. St.", License No. 47-145, and indicates that one bottle of Rhine was delivered as a sample at no charge. None of the above invoices contained the signature of the vendors. Mr. Monty Myers, President of respondent, acknowledged that technical breaches occurred when the bottles of wine were given to the vendors above listed. In mitigation, Mr. Myers stated that the giving of promotional gifts had been going on for some time, especially with the beer distributors. In May of 1975, Mr. Myers, other distributors and five persons with the Division of Beverage had a meeting. At this meeting Mr. Myers acknowledged that he had in the past given promotional items to vendors. Members of the Division of Beverage informed Myers and the others that after this May meeting, charges would be brought against those who gave away promotional items or gifts. No promotional items have been given by respondent since the May meeting. Myers further testified that he did not understand the extent of the address requirement, that the number 47 in the license number represents Leon County and that he would now be able to comply with the address requirements.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that respondent be found guilty of violating F.S. s. 561.42(1) and F.A.C. Rule 7A-4.45, and that a civil penalty in the amount of $80.00 be imposed. Respectfully submitted and entered this 17th day of November, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles Tunnicliff, Esquire Johns Building 725 South Bronough Street Tallahassee, Florida J. Klein Wigginton, Esquire 504 East Jefferson Street Tallahassee, Florida
The Issue Whether Southern violated the terms of the contract, whether the breach caused any damage to CLG; and if so, what the amount of the damages were.
Findings Of Fact Southern is a licensed citrus fruit dealer. CLG is the corporate owner of a citrus grove located generally south of Highway 54, east of Livingston Avenue, and west of Cyprus Creek. This grove contains citrus fruit to include Robinson tangerines, Dancy tangerines, Murcott tangerines, Hamlin oranges, Navel oranges, and Pineapple oranges, together with some seedling orange trees. Southern and CLG entered into a contract (Exhibit 1) for the picking, hauling and marketing of the citrus fruit. Pursuant to the terms of this contract, Southern purchased the entire citrus crop in the grove. CLG alleges breach of that contract and filed a timely complaint with the Department pursuant to Section 601.66, Florida Statutes. Under the provisions of this contract, Robinson tangerines were picked on October 27, 28 and 29, 1976. Navel oranges were picked on December 5 and 6, 1976. Both the Robinson tangerines and Navel oranges were marketed as fresh fruit. Picking of the orange crop for the juice market commenced on January 17, 1977. Oranges for this market were picked on January 17, 19, 21, 22 and 23. Picking of the orange crop for the juice market recommenced on February 21 and contained on February 22, 23, 24, 25 and March 3, 1977. In addition, Navel oranges were picked for the juice market on January 28, 29 and February 1, 1977. The contract between CLG and Southern provides for the sale of all citrus in the grove described above by CLG to Southern. The price to be paid was set forth as follows: ORANGES APPROX. BOXES PRICE PER 90 LB. WEIGHT BOX Early & Midseason 8,000 1/ 35 /# of Solids + (100 percent) Rise in Market When Picked Less 60 + Picking Per Box Valencia 8,000 GRAPEFRUIT APPROX. BOXES PRICE PER 85 LB. WEIGHT BOX M.S. or Duncan Fresh Fruit-Robins Tang; Dancey Tang; Navels; Murcotts; Tangelos-ETC, Red or Pink Market Price When Picked Other The provisions regarding the time of performance of the contract are as follows: All fruit contracted to be purchased shall be picked as and when buyer is ready, the picking to be completed on or before E & M - Jan. 15 Val. - May 30, 1977, 1/ provided the Buyer shall not be hampered or prevented from picking or shipping the same within said period by Act of God, strikes, railroad or other embargoes, quarantine or any other condition, manner or thing, beyond its control, in which case the time for gathering and shipping said fruit shall be extended a length of time equal to the period of hampering or prevention caused as aforesaid. 1/ Although Southern had been urged by Potts to commence picking in the grove, Southern delayed picking all the fruit until after January 15, 1977. A severe freeze occurred on January 19, 20, and 21, 1977. As a result of this freeze, an embargo was established on the shipment of fresh fruit from Florida. Subsequent to the freeze, Southern re-entered the grove and picked some fruit as noted above, but thereafter discontinued picking. Southern did not notify CLG of its intention to abandon the contract until after May 10, 1977. The date of last activity by Southern, March 3, 1977, when 40 boxes of oranges were picked. Southern does not controvert nor raise any defense to the allegation that it failed to pick early and midseason juice oranges by January 15, 1977, as required by the contract. Southern does controvert the quantity of juice oranges lost and thereby the amount of money damages CLG alleges to have suffered as a result of Southern's failure to pick the juice oranges by January 15, 1977. Various estimates concerning the quantity of juice oranges within the grove were presented. The Hearing Officer finds that there were 2,536 Hamlin orange trees, 366 seedling orange trees, 561 Pineapple orange trees within the grove. (See Exhibit 8) The Hearing Officer further finds that there were 4.5 boxes of oranges on each tree, except seedling trees, the fruit from which is not included in these computations. The Hearing Officer finds that there were 1,080 Naval orange trees within the grove bearing 4.5 boxes per tree. The total orange crop by variety within the grove was 11,412 boxes of Hamlin oranges, 2,524 boxes of Pineapple oranges, and 4,860 boxes of Navel oranges. There were a total of 5,899 boxes of Hamlin oranges picked, and a total of 1,381 Navel oranges picked (1,041 boxes as juice oranges and 840 boxes as fresh fruit) . The portion of the orange crop not picked by variety was 5,513 boxes Hamlin oranges, 2,524 boxes Pineapple oranges, and 2,979 boxes of Navel oranges. The total number of boxes not picked and lost excluding the Navel oranges is 8,037 boxes. The weighted average of pound solid from the fruit picked before and immediately after the freeze is 4.9 pound solid per box. At 35 per pound solid, $13,783.46 would have been the gross proceeds from the sale of the fruit, Less $1.25 per box for pick and haul ($10,046.25) the net loss to CLG was $3,737.21 on the round orange crop excluding the Navel oranges. The Navel oranges were designated a portion of the fresh fruit crop. The fresh fruit price of Navels was $1.50 per box. The loss of the Navel orange crop box at that price was $4,468.50. The total loss to the orange crop was $8,205.71. There were 1,027 Robinson tangerine trees, 1,302 Dancy tangerine trees, and 1,400 Murcott tangerine trees in the grove. Again, varying estimates of the quantity of tangerines within the grove were presented. The Hearing Officer finds that there were 4.5 boxes of tangerines on the Dancy tangerine trees and 4 boxes on the Robinson and Murcott trees. The total number of boxes of tangerines in the grove by variety were 5,859 boxes of Dancy tangerines, 4,108 boxes of Robinson tangerines, and 5,600 boxes of Murcott tangerines. The record reveals that 1,077 boxes of Robinson tangerines were picked. The record also reveals that there was no market existing for Murcott tangerines. The total number of boxes of tangerines for which a market existed and which were not picked were, by variety, 5,859 boxes of Dancy tangerines, and 3,031 boxes of Robinson tangerines. The Dancy tangerines matured around Christmas time but Southern elected to delay picking them. The weighted average price per box of tangerines based on those Robinson tangerines which were sold was $2.42 per box. The total cash value of the tangerine crop for which there was a market and were not was $21,513.80. The total damages suffered by CLG as the result of Southern's failure to pick the fruit by January 15, 1977, as provided in the contract, was $29,719.51.
Recommendation Based upon the Findings of Fact and Conclusions of Law, the Hearing Officer recommends that Southern Citrus Corporation be required to pay County Line Groves the amount of $29,719.51 within 90 days together with interest from the date of this order at 5 percent per annum. DONE and ORDERED this 27th day of March, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issue in this case is whether Respondent is indebted to Petitioner relating to the lease of farmland, management of farmland, and the sale of strawberries pursuant to various oral contracts.
Findings Of Fact Tonya Gladney is an individual doing business as Tonya Gladney Farms, an entity dedicated to the business of farming in south central Florida. Gladney learned the farming business from her father. Gladney had been around strawberry farming her whole life and decided to engage in the business independently starting with the 2006-2007 growing season. TGF is a fledgling operation and does not own all of the land, equipment, or resources necessary to actively operate and maintain a farm. That is, TGF found it necessary to lease land from various landowners and to use that land for farming purposes. Further, TGF needed to rent certain farming equipment in order to prepare the leased lands for farming. G&S Melons, LLC, is a Florida limited liability company whose managing member is John Glen Grizzaffe. G&S is a farming operation which has been in existence since 1999. Like Gladney, farming was in Grizzaffe's blood, and his family had been farming since the 1920's. G&S started out as a grower of watermelons, but has grown berries, melons, squash, cucumbers and other produce as well. In recent years, G&S purchased 25 acres of land to be used primarily for strawberry farming, and that area of its business has grown considerably. In 2006, when Grizzaffe and Gladney first started doing business, TGF was G&S's only strawberry producer. G&S markets its produce to several grocery store chains, including SuperValue, Acme, Shaws, Jewel Foods, Food Lion, Sweet Bay, Albertsons and others. Grizzaffe's experience and business relationship with the various chains have allowed him to become a broker of goods produced by other farmers. As a broker, Grizzaffe has experience dealing with buyers and knows how to negotiate the best prices for products in his custody. In 2007, G&S was subleasing some land from C.W. Stump who was leasing the land from its owner, Al Repita. The land, known as Lightfoot Road Farm ("Lightfoot") is located in Wimauma, Hillsborough County. Grizzaffe was paying $325 per acre for the Lightfoot property, which was irrigated, but did not have overhead sprinklers. Grizzaffe held a year-to-year sublease on the property, primarily because Repita had the land up for sale. Grizzaffe expected to retain his lease for the next two or three years, but did not have any long-term expectations. The most credible evidence indicates that Lightfoot encompasses approximately 35 acres. After initial discussions between the parties concerning Lightfoot, Gladney and Grizzaffe met at the farm to further discuss the possible sublease by TGF. Gladney indicated she wanted to grow strawberries and Grizzaffe agreed to sublease the land to her. The sublease agreement was not reduced to writing, nor are there any written terms or conditions associated with the sublease.1 Gladney was unclear as to her understanding of what the terms of the lease were supposed to be. She believed Lightfoot was between 20 and 25 acres in size and would be available for at least two to three years, maybe up to five years. Gladney's testimony was not clear as to what she believed the lease amount to be, but thought $200 to $225 per acre would be about right "if there was any charge." Gladney did not provide any rationale as to why she should not be charged for subleasing the land. Grizzaffe's testimony that he was subleasing Lightfoot to TGF for $325 an acre--exactly what he was paying for it--is credible and makes the most sense in light of all the facts. The size of Lightfoot was a major point of contention between the parties. Inasmuch as there was no written lease, the parties' understanding can only be gleaned from their testimony. Gladney opined the land was 20 to 25 acres based on the fact that TGF had purchased enough plastic to cover 25 acres. Three rolls of plastic (2,400 square feet) would cover one acre and TGF had purchased 75 rolls. It takes 2,000 strawberry plants to cover one acre, and TGF purchased 50,000 plants. Mathematically, Gladney determined there was 25 acres of farmable land at Lightfoot. Grizzaffe's opinion was based on the following evidence: Net acreage is based on 43,560 square feet-per-acre divided by the row center. Strawberries are planted at a distance of four feet between the center of each row, leaving only 10,890 net square feet for planting on the Lightfoot acreage. This equates to 29.8 row acres, plus space in between the rows at Lightfoot, the dirt between the beds, the ditches, and the roadways around the field. So, although there are 20-to-25 acres of ground actually planted, the total gross acreage is higher (in this case approximately 35 acres). Farmland is generally leased by calculating the gross acreage, not merely the part of the land which can be farmed.2 Gladney advised Grizzaffe that between the Lightfoot farm and another farm she was working, G&S could expect between 50 and 60 acres of berries. Such calculations are incredibly important for the effective supply of berries to customers by the broker. Inasmuch as Lightfoot had only drip irrigation available at the time of the subject sublease and because overhead irrigation was necessary to grow strawberries, it was understood between the parties that an overhead irrigation system would have to be installed.3 A major dispute between the parties concerned who would be responsible for installing the overhead irrigation system. Inasmuch as Gladney believed the lease to be less than $225 per acre, it is doubtful she was leasing land with a sprinkler system. Sprinklered farmland usually rents for considerably more, i.e., in the neighborhood of $1,000 per acre. Gladney maintains that Grizzaffe specifically promised to pay for any overhead irrigation system installed on Lightfoot. This made sense to Gladney, because she believed Grizzaffe was going to be able to extend his current lease to a five-year lease. It takes a few years farming a parcel to recoup the expense of an overhead irrigation system. Grizzaffe, on the other hand, knew his lease, which was on a year-to-year basis, might only last two or three more years and that there was no promise of an extension. In fact, the farm is currently being offered for sale, meaning no long- term lease would be available to G&S. Grizzaffe told Gladney that she needed to install the overhead irrigation system in order to assure a quality product, but made no promise to pay for it. While TGF was preparing the farm to plant strawberries for the upcoming season, an overhead sprinkler system was installed. The system was apparently paid for by Gladney, but she claims to have used money furnished by Grizzaffe. There are, however, no written receipts or cancelled checks that indicate a payment by G&S for the sprinkler system. Certain bills or invoices addressing irrigation were generated by James Irrigation, Inc., the company hired to install the overhead system. The James Irrigation statements of account were addressed to Gladney. Other invoices concerning the irrigation system were issued by Gator Pipe and Supply and indicated they were shipped to "Gladney Farms." Gladney made at least one payment of $45,000 directly to James Irrigation as documented in the exhibits admitted at final hearing. The total cost of the overhead irrigation system was approximately $62,000. There are no checks from G&S or Grizzaffe to Gladney or TGF designated as payment for a sprinkler system, nor was there any credible testimony that Grizzaffe would pay for the Lightfoot sprinkler system. When Gladney ceased operations on Lightfoot, she did not take the Rainbird sprinkler heads or pvc pipes with her. In fact, Gladney did not take up the plastic used in growing the strawberries, although that is common practice when leasing land from another producer. Gladney did not, therefore, assert an ownership interest in the sprinkler system. The tenor of the cessation of business between the parties at that time (each seemed angry at the other) may account for Gladney's failure to clean up the Lightfoot property and/or retrieve the sprinkler system. However, Grizzaffe does not assert ownership of the sprinkler system either. It apparently belongs to the owner of the land. The next major point of contention between the parties was the price that G&S was charging TGF to act as intermediary between the grower (TGF) and the buyer (food store chains or others). Gladney contends that G&S agreed to handle and pre-cool all of TGF's berries at the flat rate of $1.00 per box. Gladney further contends that at least one other broker had accepted her berries at the same price. Grizzaffe counters that while his business would not be profitable giving a $1.00 flat rate, some brokers may be able to offer that to growers for ad hoc purchases. However, for a regular arrangement wherein a grower is providing a broker most of its product, that would not be feasible. Grizzaffe maintains the charge for TGF berries was the same charged to all other growers, i.e., 50 cents per box for pre-cooling the berries and 10 percent of the amount of the sale. G&S may charge a slightly higher pre-cool fee based on exceptional circumstances, but 50 cents is the norm. The purchase orders introduced into evidence by G&S include a brokerage fee of 10 percent and a pre-cool fee of 50 cents per box, comporting with his version of the oral contract. Again, the agreement between the parties as to the charge for handling berries was not reduced to writing. The more credible evidence supports G&S's position. TGF alleges that G&S misrepresented the amount it would sell TGF's product to buyers for and that G&S did not sell for the agreed-upon price. Gladney expected her berries to be sold at the USDA Market Price (to be discussed further below). Some purchase orders issued by G&S indicate that TGF berries were sold for several dollars under the USDA Market Price. The USDA Market Price is calculated by USDA utilizing the daily sale of berries by all growers in an area. The average price range is printed in a USDA publication and made available to growers, brokers and buyers as a guideline for negotiating prices in the future. The USDA publication apparently comes out almost daily, setting out the prices paid to local growers on the previous day or days. It is, therefore, a recap of what has been paid, not a projection of future prices to be paid. There is also a less structured means of establishing the "market price." This method involves local growers talking to each other and determining what each had been paid for their product on any given day. Growers often discuss market price, but seldom distinguish between USDA Market Price and the common market price. Gladney maintains that she spoke to Grizzaffe regularly and that he always assured her that her berries would be getting the market price or higher. She seems to believe that Grizzaffe was talking about the USDA Market Price. However, it is generally impossible for any broker to guarantee a price for a product; that is strictly a matter of supply and demand at any given point in time. However, Grizzaffe would benefit from charging the highest price he could get, because he was getting a percentage of the total sale. It is clear from the evidence that TGF berries sometimes were sold at an amount several dollars less than the USDA Market Price. There are reasonable explanations for that fact. For example, if TGF berries were rejected by one buyer, they would be sold as lower quality berries to another buyer who had need for that product. If there was a very high supply, but low demand, at the time the berries were harvested, a lower price may result. However, other than for those exceptions, G&S sold TGF berries for the same price that G&S sold other growers' berries; and due to his long-standing relationship with several chains, G&S often got the very best price in the area. One other price issue (although not largely pertinent to the instant dispute) concerned pre-selling berries by establishing an "ad price" for the product. An ad price was essentially an agreed-upon price well in advance of the actual purchase. This was done in order to allow stores the opportunity to advertise the price of berries in the newspaper or other circulars because the store would know the price well enough in advance. For example, the broker and buyer may agree to a price of $14 per box for berries to be delivered on a date certain. When that date came, the market price might be $12 per box or $16 per box, but the buyer would only pay the ad price ($14 per box). So, some of the TGF berries may have been sold at below USDA Market Price because they were part of an ad price arrangement. Gladney contends she was underpaid for supervising another farm for Grizzaffe. There is no documentation whatsoever as to the agreement between the parties. The farm was approximately 25 acres, which would produce about 2,000 to 2,500 flats of berries to the acre (or 50,000 to 62,500 flats). Gladney maintains she was supposed to receive $.25 a flat for berries produced on that farm as her management fee. No accounting of berries produced on the farm was presented into evidence. Gladney received a check for $10,000 from Grizzaffe to pay the management fee for the farm. Gladney said that $10,000 would be a "low amount" for her work, but did not substantiate that more was actually owed. Gladney protested offsets from her earned fees that related to certain products and materials, specifically fuel and packing materials. However, the bills and receipts presented by Grizzaffe justify the materials based on the number of berries produced and packed by Gladney for sale by Grizzaffe. The offsets appear reasonable and consistent with normal farming practices. G&S accurately and appropriately billed TGF for materials, including pallets, eggshells (small cartons used to ship berries), and fuel. The charges for those materials are applied to and deducted from TGF's profits on the berries delivered to G&S. The last primary point of contention between the parties is whether or not G&S loaned money to TGF and, if so, how much was loaned, the interest rate, and whether the loan was repaid. Again, there is no written loan agreement between the parties. According to Grizzaffe, G&S agreed to lend TGF up to $50,000 during the 2007-2008 growing season at a flat ten percent interest rate. The loan was offered in recognition of the fact that Gladney was just beginning her farming practice and would need some assistance on the front end. G&S expected to recoup its loan as TGF began delivering berries for sale. Gladney maintains that there was no loan to TGF or herself from Grizzaffe. Rather, she states that any checks for other than produce were G&S's payments for the promised irrigation system. G&S issued a number of checks to Gladney identified as "farm advance" or "loan" or "payroll." These checks were issued prior to the first sale of TGF berries by G&S. That is, TGF was not yet entitled to a check from the sale of proceeds at the time the checks were issued. Grizzaffe says the purpose of the checks was to advance money to Gladney so that she would have the funds necessary to rent equipment to prepare the land for planting, to install the sprinkler system, to pay her workers, and to cover her farming costs before proceeds from sales starting coming in. The first check representing sale of TGF berries by G&S was issued to Gladney on February 7, 2008 (although TGF had started delivering berries in November 2007). It is clear that Grizzaffe was providing money to Gladney before money had been earned. Whether it is called an advance or a loan, the net effect is the same. The total amount loaned by Grizzaffe to Gladney was far in excess of the agreed-upon $50,000. As TGF experienced unforeseen start-up expenses, Grizzaffe would write a check to help them meet any shortfall. These checks, which Gladney characterized as payments for the irrigation system, far exceed the cost of that system. The most credible evidence is that Grizzaffe fronted money to Gladney in the amount of $203,717.00. Further, G&S's charges to TGF exactly reflect a ten percent charge for certain checks, clearly evidencing the loan as described by Grizzaffe. Platte River Insurance Company ("Platte River") is a foreign insurance company authorized to do business in Florida. Platt River bonded G&S as required under Section 604.20, Florida Statutes (2008).4 Platte River did not make an appearance or file an answer to the Complaint filed by Petitioner in this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services dismissing the Petition of Tonya Gladney, d/b/a Tonya Gladney Farms. DONE AND ENTERED this 23rd day of February, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 2009.
The Issue The issue in this case is whether Respondent H & R Packing & Sales Company, LLC, must pay Petitioner the full contract price for citrus fruit that said Respondent accepted upon tender despite knowing that the goods were nonconforming.
Findings Of Fact Petitioner Betty H. Shinn, d/b/a Shinn Groves ("Shinn"), is in the business of growing citrus fruit and hence is a "producer" within the regulatory jurisdiction of the Department of Agriculture and Consumer Services ("Department"). Respondent H & R Packing & Sales Company, LLC ("HRPS"), is a "citrus fruit dealer" operating within the Department's jurisdiction. On November 3, 2004, Shinn and HRPS entered into a contract (the "Contract") whereby HRPS agreed to harvest "fresh fruit quality" navel oranges from a particular section of Shinn's grove, which oranges Shinn agreed to sell to HRPS for the price of $8.00 per field box. The Contract provided, in pertinent part, as follows: The SELLER [that is, Shinn] shall take all reasonable and normal precautions to maintain fresh fruit quality during the life of this agreement. Failure to exercise close control to mites and other pests shall constitute a violation of this agreement. Further, the BUYER [i.e. HRPS] may at his option cancel this contract or renegotiate the price to be paid and the conditions of sale. In addition, the parties agreed that HRPS would pick the fruit no later than January 1, 2005, and pay for the oranges "within 45 days of the week of the harvest." An agent of HRPS's named Frederick Gaines inspected the crop identified to the Contract on a couple of occasions in November and December 2004. At some point he notified Shinn that the oranges were being damaged by rust mites. Shinn arranged to have the crop sprayed with Thiolux (a miticide), which was done around December 6, 2004. HRPS harvested the crop on January 3, 2005. (HRPS's performance in this regard was nonconforming, because the oranges were to be picked no later than January 1, 2005. By allowing HRPS to proceed after the deadline, however, Shinn waived HRPS's untimely performance.) At or about the time of the harvest, Mr. Gaines orally notified Charles Shinn (who is the son——and an agent——of Petitioner Betty Shinn) that the oranges had been damaged by rust mites and consequently were not fresh fruit quality. Mr. Shinn suggested that the oranges be "run through" the packing house (where the fruit would be graded on its quality), after which the parties could renegotiate the price, if necessary, to adjust for any material deficiencies in the quality of the crop. This proposal was evidently acceptable to HRPS, for it proceeded to harvest the oranges with knowledge that the crop was (or might not be) fresh fruit quality. HRPS picked 790 field boxes of oranges from Shinn's grove pursuant to the Contract. When these oranges were graded at the packing house, an unusually small percentage (approximately 34%) could be "packed out," that is, packaged and delivered for sale as fresh fruit.i The rest "graded out," i.e. failed to meet the standards for sale as fresh fruit, and were sold, at a loss, to juice processors. HRPS was obligated under the Contract to pay Shinn for the oranges on or before February 22, 2005, but HRPS let the deadline pass without either paying for the oranges or notifying Shinn of a breach with respect thereto. By letter dated March 17, 2005, Shinn demanded that HRPS pay the full contact price of $6,320 for the fruit harvested under the Contract.ii HRPS responded to Shinn's demand-letter via correspondence dated March 24, 2005. In this letter, HRPS acknowledged the Contract's existence but disclaimed the duty to pay in full due to the fruit's generally poor quality. HRPS expressed some willingness to resolve the matter amicably but offered no payment. Shinn was not satisfied and initiated this administrative proceeding. Ultimate Factual Determinations HRPS harvested and hauled away the oranges identified to the Contract. This performance constituted acceptance of the goods, and such acceptance was made with knowledge of a (possible) nonconformity, namely that the oranges were not fresh fruit quality due to rust mite damage. The apparent nonconformity was made manifest to HRPS shortly after the harvest, when an unusually small percentage of the pertinent crop was "packed out." HRPS failed, however, to notify Shinn of the breach within a reasonable time after confirming the nonconformity. Consequently, HRPS is barred from any remedy for breach. HRPS's failure to pay for the oranges at the Contract rate constituted a breach of the Contract entitling Shinn to recover the full price, together with pre-award interest. Accordingly, HRPS is obligated to pay Shinn the principal amount of $6,320.00, together with statutory interest of $378.20 (for the period 02/22/05 - 12/31/05). Interest will continue to accrue on the outstanding balance of $6,320.00 in the amount of $1.56 per day from January 1, 2006, until the date of the final order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order awarding Shinn the sum of $6,320.00, together with pre-award interest in the amount of $378.20 (through December 31, 2005), plus additional interest from January 1 2006, until the date of the final order, which will accrue in the amount of $1.56 per day. DONE AND ENTERED this 13th day of December, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 2005.
