The Issue Has Respondent VBJ Packing, Inc. (Respondent) paid Petitioner, Chastain- Bishop Farms (Petitioner) in full for watermelons represented by Respondent's load numbers 3002 and 3004 purchased from Petitioner during the 1995 watermelon season?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Petitioner was a "producer" of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes. Watermelons come within the definition of "agricultural products" as defined in Section 604.15(3), Florida Statutes. At all times pertinent to this proceeding, Respondent was licensed as a "dealer in agricultural products" as defined in Section 604.15(1), Florida Statutes. Respondent was issued license number 8887 by the Department which is supported by Bond Number 137743741 in the amount of $75,000 written by Respondent Continental Casualty Company (Continental), as surety, with an inception date of January 1, 1995, and an expiration date of December 31, 1995. The Complaint was timely filed by Petitioner in accordance with Section 604.21(1), Florida Statutes. Sometime during the week prior to Monday, May 8, 1995, Petitioner and Respondent entered into a verbal agreement which contained the following terms: (a) Petitioner would sell Respondent a semi-trailer load of medium size melons of good quality to be harvested and loaded by Petitioner onto a semi-trailer furnished by Respondent; (b) Respondent would have the right and opportunity to inspect the melons before or during loading; (c) Respondent would pay Petitioner fifteen cents ($0.15) per pound for the melons loaded onto the trailer; (d) upon delivery at Petitioner's farm, the melons became Respondent's property and Petitioner had no further obligation to Respondent concerning the melons; and (e) settlement was to be made by Respondent within a reasonable time. Subsequent to the above agreement, Petitioner sold and Respondent bought, a second semi-trailer load of melons to be delivered under the same terms and conditions as agreed in the above verbal agreement. On Friday, May 5, 1995, Respondent's agent, Robert Allen and T. J. Chastain, a partner in Chastain-Bishop Farms, had a disagreement concerning Eddie Idlette, Respondent's inspector, being on the Petitioner's farm. Because of an incident in the past involving Idlette and Petitioner, Chastain did not want Idlette on Petitioner's farm and made this known to Allen. As result of this disagreement, Idlette left the Petitioner's farm and was not present on Monday or Tuesday, May 8 & 9, 1995, to inspect the two loads of melons. Allen testified that Chastain also excluded him from Petitioner's farm at this time, and that Chastain told him that neither he nor Idlette needed to be present during the loading of the melons because Chastain "would stand behind the loads". However, the more credible evidence shows that Chastain did not prevent Allen from inspecting the melons on Monday or Tuesday, May 8 & 9, 1995, or tell Allen that he "would stand behind the loads". Furthermore, there is credible evidence to show that Allen was present at Petitioner's farm on Monday and Tuesday, May 8 & 9, 1995, and he either inspected, or had the opportunity to inspect, the two loads of melons, notwithstanding Allen's testimony or Respondent's exhibit 6 to the contrary. Petitioner did not advise Respondent, at any time pertinent to the sale of the melons, that Petitioner would give Respondent "full market protection" on the melons. Furthermore, Petitioner did not agree, at any time pertinent to the sale of the melons, for Respondent to handle the melons "on account" for Petitioner. The more credible evidence supports Petitioner's contention that the melons were purchased by Respondent with title to the melons passing to Respondent upon delivery at Petitioner's farm, subject to inspection or the opportunity to inspect before loading and delivery. On Monday, May 8, 1995, Petitioner loaded Respondent's first semi- trailer with a State of Georgia tag number CX9379, with 2,280 medium size Sangria melons of good quality weighing 46,800 pounds and identified as Respondent's load number 3002. Respondent accepted load 3002 for shipment to its customer. Using the agreed upon price of fifteen cents ($0.15) per pound times 46,800 pounds, the Respondent owed Petitioner $7,020.00 for load number 3002. On Tuesday, May 9, 1995, Petitioner loaded Respondent's second semi- trailer with a State of New Jersey tag number TAB4020, with 2,331 medium size Sangria melons of good quality weighing 46,620 pounds and identified as Respondent's load number 3004. Respondent accepted load 3004 for shipment to its customer. Using the agreed upon price of fifteen cents ($0.15) per pound times 46,620 pounds, the Respondent owed Petitioner $6,9993.00 for load number 3004. The combined total amount owed to Petitioner by Respondent for load numbers 3002 and 3004 was $14,013.00. Respondent shipped load 3002 to E. W. Kean Co, Inc. (Kean). Upon receiving load 3002, Kean allegedly found problems with the melons. Respondent allowed Kean to handled the melons on account for Respondent. Kean sold the melons for $6,804.05 or 14.5 cents per pound. After Kean's deduction for handling, Kean paid Respondent $6,112.05 or 13.02 cents per pound. In accounting to Petitioner, Respondent made further deductions for handling and freight, and offered Petitioner $3,641.24 or 7.8 cents per pound for the melons on load 3002. Respondent shipped load 3004 to Mada Fruit Sales (Mada). Upon receiving load 3004, Mada allegedly found problems with the melons. By letter dated June 8, 1995 (Respondent's exhibit 4), Mada grudgingly agreed to pay the freight plus 10 cents per pound for the melons. Mada paid Respondent $4,662.00 for load 3004, and after Respondent deducted its commission of $466.20, offered Petitioner $4,195.80 or nine cents per pound for the melons on load 3004. By check number 18922 dated May 28, 1995, Respondent paid Petitioner $7,760.08. Respondent contends that this amount was offered to Kye Bishop in full settlement for loads 3002 and 3004, and that after Bishop consulted with Chastain, Bishop on behalf of Petitioner, accepted this amount in full settlement for loads 3002 and 3004. Bishop contends that he turned down the $7,760.08 as settlement in full but took the $7,760.08 as partial payment and proceeded to file a complaint with the Department against Respondent's bond for the difference. There is nothing written on the check to indicate that by accepting and cashing the check Petitioner acknowledged that it was payment in full for load numbers 3002 and 3004. The more credible evidence shows that Bishop did not accept the check in the amount of $7,760.08 as payment in full for loads 3002 and 3004 but only as partial payment, notwithstanding the testimony of Allen to the contrary. There was an assessment charge of $62.72 which Petitioner agrees that it owes and should be deducted from any monies owed to Petitioner by Respondent. Initially, Respondent owed Petitioner $14,013.00. However, substracting the partial payment of $7,760.08 and the assessment of $62.72 from the $14,013.00 leaves a balance owed Petitioner by Respondent of $6,190.20
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Agriculture and Consumer Services enter a final order granting the Petitioner relief by ordering Respondent VBJ Packing, Inc. to pay Petitioner the sum of $6,190.20. RECOMMENDED this 23rd day of May, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4226A The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. 1. Proposed findings of fact 1(a) through 1(i) are adopted in substance as modified in Findings of Fact 1 through 16. Respondent VBJ Packing, Inc's Proposed Findings of Fact. Proposed finding of fact 1 is covered in the Conclusion of Law. Proposed finding of fact 2 is adopted in substance as modified in Findings of Fact 1 through 16. Proposed finding of fact 3, 6, 7 and 8 10, are not supported by evidence in the record. As to proposed finding of fact 4, Petitioner and Respondent VBJ Packing, Inc. agreed that Petitioner would sell and Respondent would pay $0.15 per pound for medium size melons. Otherwise proposed finding of fact is not supported by evidence in the record. See Findings of Fact 4, 7 and 8. As to proposed finding of fact 5, Respondent sold the loads. Otherwise proposed finding of fact 5 is not supported by evidence in the record. Respondent Continental elected not to file any proposed findings of fact. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Lakeland, Florida 32399-0800 David K. Oaks, Esquire David Oaks, P.A. 252 W. Marion Avenue Punta Gorda, Florida 33950 Mark A. Sessums, Esquire Frost, O'Toole & Saunders, P.A. Post Office Box 2188 Bartow, Florida 33831-2188
The Issue Whether Respondent owes Petitioner $2,377.20 as alleged in the complaint filed by Petitioner in July 1997.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Bigham Hide Company, Inc. (Petitioner), is a watermelon grower in Coleman and Lake Panasoffkee, Florida. Respondent, Florida-Georgia Produce, Inc. (Respondent), is a licensed dealer in agricultural products having been issued License Number 7666 by the Department of Agriculture and Consumer Services (Department). Respondent has posted a bond in the amount of $30,000.00 written by Cumberland Casualty & Surety Company, as surety, to assure proper accounting and payment to producers such as Petitioner. In a complaint filed with the Department in July 1997, Petitioner alleged that he entered into an agreement with Bobby Patton (Patton) on behalf of Respondent to sell one truckload of "pee wee" watermelons. Under that agreement, Respondent agreed to pay seven cents per pound for the watermelons, and it would advance Petitioner $700.00 to cover the labor costs associated with loading the truck. The remainder would be paid upon final delivery. The complaint goes on to allege that Petitioner subsequently learned that there was "some problem" with the delivered produce. After Respondent inspected Petitioner's field to verify the quality of the crop, Petitioner was told that Respondent would "fight the fight" to get the shipment accepted. Since that time, however, the complaint alleges that Petitioner did not receive payment, an accounting of the transaction, an inspection report, or any further explanation. Accordingly, Petitioner filed this complaint seeking $3,077.20, less the $700.00 advance, or a total of $2,377.20. In its answer, Respondent has alleged that it actually received a truckload of "old diseased watermelons that had been lying in the field or on [the] field truck for a week," and the receiver refused to accept the load. Since it received nothing for the shipment, Respondent contends it is owed $700.00 for the money advanced to Petitioner. The parties agree that in late May 1997, Petitioner was contacted by Bobby Patton, who was representing Respondent, regarding the sale of small size watermelons. Patton offered to buy one truckload of "pee wee" watermelons at a price of seven cents per pound, to be paid after delivery to the receiver. Patton also agreed to advance Petitioner $700.00 to cover his loading costs. Petitioner agreed to these terms, and the truck was loaded from his field on June 3, 1997. The net weight of the loaded produce was 43,960 pounds. The vehicle's tag number was recorded on the loading slip as "AH 39099" from the province of Quebec, Canada. There is no evidence that the crop was diseased when it was loaded, or that it had been picked and lying in the field for several days before being loaded, as suggested in Respondent's answer to the complaint. The shipment was destined for Ontario, Canada. On or about June 5, 1997, the product was delivered to the customer, Direct Produce, Inc., in Etobicoke, Ontario. Because of a perceived lack of quality, the buyer refused to accept the load. Respondent immediately requested a government inspection which was performed on June 6, 1997. The results of that inspection are found in Respondent's Exhibit 3. It reveals that 1 percent of the load was decayed, 3 percent were bruised, 6 percent had Anthrocnose (belly rot), and 75 percent had "yellow internal discolouration." In addition, a composite sample reflected that 20 percent had "Whitish Stracked Flesh" while 5 percent had "Hollow Heart." In other words, virtually the entire shipment was tainted with defects or disease. The report also reflected that the net weight of the shipment was 44,500 pounds, and the tag number of the vehicle was "ALP 390999." The weight and tag number were slightly different from those recorded on the loading slip at Petitioner's field. After learning of the results of the inspection, Respondent's president, James B. Oglesby, immediately contacted Petitioner's president, Greg Bigham, and requested an inspection of Bigham's field to verify the quality of watermelons. During the inspection, Oglesby did not find any signs of belly rot or other problems similar to those noted in the government inspection. If there had been any incidence of belly rot in Petitioner's field, it would have been present in other unpicked watermelons. At the end of his inspection, Oglesby told Petitioner that he would "fight the fight" to get the shipment delivered and sold. Oglesby eventually found a buyer who would accept the shipment as feed for cattle. The buyer agreed to pay the freight charges for hauling the watermelons to Canada but nothing more. Therefore, Respondent was not paid for the load. Petitioner was led to believe that he would receive payment and paperwork, including the inspection report, within a few days. When he did not receive any documentation, payment, or further explanation within a reasonable period of time, he filed this complaint. It would be highly unlikely that a farmer would have one completely bad load from a field without the same problems being present in other loads shipped from the field at the same time. Petitioner presented uncontroverted testimony that no other shipments from that field during the same time period were rejected or had similar problems. In addition, it was established that poor ventilation on the truck, or leaving the loaded truck unprotected in the sun, could be causes of the crop being spoiled or damaged before it was delivered to Canada. Finally, at hearing, Respondent suggested that Bigham may have shown him a different field than the one from which his load was picked. However, this assertion has been rejected.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agriculture and Consumer Affairs enter a final order determining that Respondent owes Petitioner $2,377.20. In the event payment is not timely made, the surety should be responsible for the indebtedness. DONE AND ENTERED this 6th day of February, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this day 6th of February, 1998. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond 508 Mayo Building Tallahassee, Florida 32399-0800 Terry T. Neal, Esquire Post Office Box 490327 Leesburge, Florida 34749-0327 James B. Oglesby Post Office Box 6214 Lakeland, Florida 33807 Cumberland Casualty & Surety Company 4311 West Waters Avenue Tampa, Florida 33614 Richard D. Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
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 Is Petitioner entitled to $7,433.00, or any part thereof, from Respondent on the basis of a brokered sale of watermelons?
Findings Of Fact At all times material, Petitioner Terry McCully was a first-year independent grower of Sangria watermelons in Jasper, Florida. Respondent is a professional broker of produce. On June 13, 1999, Petitioner and Nolan Mancil, known to Petitioner as a watermelon buyer from Georgia representing Respondent, "walked" Petitioner's sole field. On June 13, 1999, Petitioner and Mr. Mancil agreed that Respondent would pay 10¢ per pound for watermelons from Petitioner's sole field of watermelons. However, Petitioner also understood that ultimately, his payment would be based on whatever the "market price" was, per load. Petitioner had no prior experience with how "market price" is defined or determined. At all times material, Nolan Mancil was acting as an agent of Respondent, and regardless of the extent of the authority actually authorized by Respondent, Mr. Mancil had, with Respondent's concurrence, apparent authority for all agreements reached with Petitioner. According to Respondent's President, Mr. Ward, the standard in the industry is that no value is placed on an agricultural commodity until a final price is determined with the ultimate consumer/retailer. Respondent produced business records tracking each of the six loads harvested from Petitioner's field (including the four loads in dispute) and showing the accepted weights for each load. According to Mr. Mancil, "market price" is "zero," unless some amount is paid by the retailer to the broker on delivery and the amount paid on delivery constitutes "the market price." He denied ever telling Petitioner that their oral contract would use the United States Department of Agriculture National Watermelon Report (USDA Report) to specifically set a daily market price, although he admitted that at a later point in time, under changed conditions (see Finding of Fact No. 19) he had told Petitioner that the USDA Daily Report could be the maximum price. Petitioner conceded that he received the USDA Report from the Department of Agriculture Extension Agent only after a dispute arose and Petitioner had begun to prepare his claim. The undersigned infers therefrom that Petitioner was only aware of this methodology of setting a market price "after the fact." On Monday, June 14, 1999, Nolan Mancil's harvesters and graders entered Petitioner's field. Petitioner agreed to pay for the harvesting by Respondent's deduction of harvesting costs from each load after sale to the ultimate buyer, but at this point Petitioner also expected Respondent to pay him by the load, each load, immediately after sale at the ultimate point of sale (FOB). On Tuesday, June 15, 1999, trucks hired by Mr. Mancil and/or Respondent began removing watermelons from Petitioner's field. On that day, Mr. Mancil indicated that the watermelons being loaded were worth only 8-1/2¢ per pound. Petitioner agreed to the change in the amount to be paid. At some point, Petitioner accommodated Mr. Mancil by getting a truck, driver, and loaders, and by feeding Mr. Mancil's crew members. Petitioner seeks no reimbursement for these accommodations. Respondent took two truckloads away on June 15, 1999. Load #3664 of 46,340 pounds "shipped weight" and 45,830 pounds "accepted weight" were brokered by Respondent to a retailer at 8¢ per pound. Load #3692 of 48,060 shipped weight and 43,392 pounds accepted weight were brokered to a retailer at 9¢ per pound. Respondent's business records show that on the first (undisputed) load, the sale to a retailer was contracted by Respondent at 8¢ per pound, but when the time came to settle- up, the payment was made by Respondent's retail customer at the small melon size (13-plus pounds), not at the medium or large melon size. Respondent's business records further show that the second (undisputed) load was contracted at 9¢ per pound but was ultimately paid-out at the average weight per melon of 15.4 pounds instead of at 19.2 pounds per melon, after an initial rejection by the first buyer. No brokerage fee was imposed by Respondent on either of these undisputed loads, and on each of these loads, Respondent suffered a substantial loss. These losses were not passed on to Petitioner due to their "immediate cash payment" arrangement. Respondent immediately paid Petitioner for both loads at the agreed rate of 8-1/2¢ per pound, less harvesting costs and mandatory government fee. Petitioner does not dispute deduction of the government fee from the first two loads. Indeed, Petitioner's claim does not address the amount, method, or appropriateness of Respondent's payment to Petitioner for these first two loads. Petitioner's claim only addresses the last four loads harvested after June 15, 1999. After the first two loads, Mr. Mancil informed Petitioner that Respondent could no longer pay Petitioner in cash immediately after each load, but would henceforth pay Petitioner within 30 days. There is no dispute that Petitioner reluctantly agreed to this change in the timing of payment. Mr. Mancil claimed that he told Petitioner, either beginning with the third load or sometime between the third and fourth loads, that the USDA Report's daily price would be the highest price Petitioner could be paid by Respondent. According to Mr. Ward, over the four loads in dispute, the price received by Respondent from retailers was 7¢ per pound adjusted downward due to market conditions such as watermelon size being less than expected, smaller watermelons being in less demand, and the watermelons being in poor condition when accepted by the retailer(s). According to Mr. Ward, the net weight of a load is determined by deducting the truck's empty weight from the loaded weight of the truck; then the melons in the truck are counted, and that count is divided into the net weight, to get the average weight per melon. Petitioner maintained that he was never advised by Mr. Ward or Mr. Mancil that the watermelons in the last four loads were the wrong size or that many melons were not good. Mr. Mancil stated that he believed he had indicated to Petitioner that the watermelons in the last four truckloads were actually smaller than the size anticipated when the deal was struck on June 13, 1999, and that the watermelons were of poorer quality. He conceded that he was not sure Petitioner had understood him. There is no dispute that Petitioner's field was rather overgrown or that watermelons could be harvested despite this overgrowth. The overgrowth could have obscured the size and condition of the watermelons until after harvest. After the sixth load, neither Respondent nor Mr. Mancil sent any more trucks. There was never an agreement that Respondent would buy all the watermelons in Petitioner's field. Petitioner found it necessary to obtain trucks himself to haul away and dump the remaining watermelons which were rotting in his field. He seeks no reimbursement for this expense. Upon the foregoing Findings of Fact, I also find that the watermelons in the last four loads were smaller and inferior in quality to what had been expected. On June 16, 1999, 42,140 pounds shipped weight of watermelons were loaded by Respondent from Petitioner's field in Load #3691. Petitioner is claiming 7¢ per pound on the basis of a USDA Report on every pound for $2,879.00, less harvesting costs of $781.00 for $2,098.00. On June 17, 1999, 43,500 shipped weight of watermelons were loaded by Respondent from Petitioner's field in Load #3685. Petitioner is claiming 6¢ per pound on the basis of a USDA Report for every pound for $2,610.00, less harvesting costs of $826.00 for $1,784.00. The same day, 43,620 shipped weight of watermelons were loaded by Respondent from Petitioner's field in Load #3694. Petitioner is claiming 6¢ per pound on the basis of a USDA Report for every pound for $2,617.20, less harvesting costs of $830.00 for $1,787.20. Either on June 20, 21, or 22, 1999 (the dates on exhibits conflict), 43,000 shipped weight of watermelons were loaded by Respondent from Petitioner's field in Load #3702. Petitioner is claiming 6¢ per pound on the basis of a USDA Report for every pound less harvesting costs of $817.00 for $1,763.00. Petitioner bases the price per pound that he is claiming on his Exhibit P-6, the USDA Reports for June 17-18, and 21, 1999. He did not select from those reports the price per largest average weight of Sangria watermelon, but selected the middle or lowest average weight of "other red meat varieties." Except for June 21, 1999, this calculation gives Respondent the benefit of the doubt as to cents per pound for average market price on the respective USDA Reports, but in light of all the other evidence it is not an accurate method of calculating the true market price for the four disputed loads. Although Petitioner considers payment on the first two (undisputed) loads based on accepted weight to be within the parties' agreement and correct, he has not made his calculations of claim on the accepted weight of any of the last four (disputed) loads. Petitioner's calculations of claim also have not addressed the mandatory government fee for any of the last four (disputed) loads, although he considers payment on the first two, (undisputed) loads, for which Respondent deducted the mandatory fee, to be within the parties' agreement and correct. According to Respondent's business records for the four loads shipped after the Mancil-Petitioner re-negotiations of price per pound and discussion on maximum market pricing, these disputed loads were sold to retailers as follows: On June 16, 1999, Load #3691 had a shipped weight of 41,140 pounds and accepted weight of 39,940 pounds. The sale price was $0.055 per pound. The sale amount was $2,196.70. The government fee was $7.99. The harvesting cost was $781.00. A brokerage fee of $399.40 was subtracted, and Respondent's debt to Petitioner was calculated as $1,008.31. On June 17, 1999, Load #3685 had a shipped weight of 43,500 pounds and an accepted weight of 43,280 pounds. The watermelons were originally contracted for retail sale at $.0635 per pound but were refused by the first retailer as undersized. The second, alternative retailer bought these watermelons at a smaller-size market price for melons averaging 18 pounds, instead of 19.5- pound melons, and also made some returns of bad watermelons, so that the sale amount ended-up as $973.80, less a $8.66 government fee, less $826.00 for harvesting, less $216.40 brokerage fee, so that even Petitioner lost $77.26 on the deal. Also on June 17, 1999, Load #3694 had a shipped weight of 43,620 pounds and an accepted weight of 42,848 pounds. The contract sale had been for watermelons averaging 19.3 pounds, and the average size turned to out to be 16.7 pounds, and some of these melons were returned. The ultimate sale amount was $1,692.50, less a government fee of $8.72, less harvesting costs of $830.00, less brokerage fee of $321.36, with Respondent owing Petitioner $532.42. Finally, on or about June 22, 1999, the final load, #3702, had a shipped weight of 43,000 pounds, and accepted weight of 41,157 pounds, for a sale amount of $832.00; a government fee of $8.60; harvesting costs of $817.00; brokerage fee of $200.00; and amount due to Petitioner of $193.60. Again, the contract price of 6¢ from the retailer had been negotiated on melons in good condition of an average weight of 19.6 pounds, and the watermelons actually delivered by Respondent from Petitioner's field averaged 16.8 pounds, and many melons were returned to Respondent based on lack of quality. On the foregoing calculations, Respondent admits to owing Petitioner $1,269.87, rather than the $7,433.00 claimed by Petitioner's calculations. Neither party presented any evidence of an agreement to deduct a brokerage fee or how a brokerage fee was to be calculated. No brokerage fee was deducted by Respondent for the first two loads which are not in dispute, but Respondent actually suffered a loss on those loads which was not passed on to Petitioner (See Finding of Fact No. 14). For the last four loads, the only loads in dispute and the only loads for which a brokerage fee was deducted, the brokerage fee constitutes the only profit made by Respondent on the entire six-load transaction.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture enter a final order requiring Respondent Growers Marketing Service, Inc. to pay Petitioner $1,269.87, plus interest, if any, to be calculated by the Department, and requiring that if Growers Marketing Service, Inc., does not pay the amount specified within 30 days of the final order that its surety, Preferred National Insurance Company, shall be liable to Petitioner for the full amount. DONE AND ENTERED this 3rd day of April, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 2000. COPIES FURNISHED: Terry McCully 3245 Northwest 30th Lane Jennings, Florida 33806 William R. Ward, Jr., President Growers Marketing Service, Inc. Post Office Box 2595 Lakeland, Florida 33806 Preferred National Insurance Company Post Office Box 407003 Fort Lauderdale, Florida 33306 Brenda Hyatt, Chief Bureau of License and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue The issue is whether Respondent The Heidrich Corporation owes Petitioner money for watermelons and, if so, how much.
Findings Of Fact In June 1996, Petitioners, who are growers, sold watermelons to Respondent The Heidrich Corporation (Respondent), which is a broker. Respondent shipped the watermelons directly from Petitioners' fields to Canada for resale. This case involves eight deliveries of watermelons from Petitioners to Respondent. Petitioners' invoice numbers and dates of sale are as follows: 1392 on June 14, 1393 on June 15, 4004 on June 18, 4005 on June 19, 4013 and 4015 on June 22, 4016 on June 23, and 4034 on June 25. The understanding between Petitioners and Respondent relieved Respondent of the responsibility of paying for watermelons that were nonconforming when received by Respondent's customer. Nonconforming melons are melons that are decayed, undermature, overmature, destroyed for inspection, or otherwise reasonably unacceptable to Respondent's customer. However, nonconforming melons do not included melons that are unacceptable due to damage in transit; such damage would consist of cracking or bruising. The parties did not explicitly agree who would bear freight, inspection, and disposal expenses of nonconforming melons. After deduction for nonconforming melons, the June 14 shipment comprised 40,102 pounds. The parties agreed to a price of 4.5 cents per pound for this shipment, so the amount due Petitioners is $1804.59. Respondent paid freight of $92.31 attributable to decayed watermelons. After deduction for nonconforming melons, the June 15 shipment comprised 45,181 pounds. The parties agreed to a price of 4.5 cents per pound for this shipment, so the amount due Petitioners is $2033.15. Respondent paid freight of $33.75 attributable to decayed watermelons. After deduction for nonconforming melons, the June 18 shipment comprised 35,963 pounds. The parties agreed to a price of five cents per pound for this shipment, so the amount due Petitioners is $1798.15. Respondent paid freight of $226.16 attributable to decayed watermelons. The June 19 shipment was substantially nonconforming. Sixty-eight percent of the watermelons were defective on receipt in Canada, possibly due to excessive rainfall and premature cutting. Respondent's customer rejected the entire load, rather than try to find the few salable melons. For the purposes of the present case, the proper accounting for this shipment is to multiply the unloaded weight of 32,890 pounds by the percentage of conforming watermelons (32 percent). The result of 10,525 pounds represents the weight of conforming melons on receipt in Canada. The parties agreed to a price of five cents per pound, so the amount due Petitioners is $526.25. Respondent did not separately state the freight attributable to the nonconforming fruit that was not the result of shipping. Expressed as percentages of the shipping weight (not unloaded weight), eight percent of the melons were decayed, 38 percent were undermature, and five percent were overmature, for a total of 51 percent, or 20,981 pounds, of nonconforming melons. Freight on this shipment was 5.5 cents per pound, so the freight expenses for these nonconforming melons is $1153.96. Respondent also credited its customer with $700 to pay for the disposal of the melons. There were two relevant shipments on June 22. The first is documented by Petitioners' invoice 4013. After deduction for nonconforming melons, this shipment comprised 41,316 pounds. The parties agreed to a price of five cents per pound for this shipment, so the amount due Petitioners is $2065.80. Respondent paid freight of $231.20 attributable to decayed watermelons. The second June 22 shipment is documented by Petitioners' invoice 4015. The deduction for nonconforming melons requires two calculations. On arrival in Canada, prior to governmental inspection, Respondent's customer reasonably rejected 13,572 pounds out of 47,270 shipped pounds; 12,612 pounds were nonconforming (the remaining 960 pounds were bruised). Of the remaining 33,698 pounds, 15 percent, or 5055 pounds, were also nonconforming, as reflected in an ensuing governmental inspection. This means that 18,627 pounds of the original shipment were nonconforming, leaving 28,643 pounds of conforming melons. The parties agreed on five cents per pound for this shipment, so the amount due Petitioners is $1432.15. Respondent paid freight of $931.35 attributable to the nonconforming melons. Respondent's customer reasonably rejected 68 percent of the June 23 shipment of 44,120 pounds. However, 19 percent of the rejected melons were bruised, so the net deduction for nonconforming melons in the June 23 shipment is 20,736 pounds, leaving conforming melons of 23,384 pounds. The parties agreed to a price of five cents per pound for this shipment, so the amount due Petitioners is $1169.20. Respondent paid freight of $1036.80 35 attributable to the nonconforming melons. Respondent also paid its customer $850 for dumping and inspection fees. The final shipment, which took place on June 25, was by bins, rather than loose watermelons. There were no nonconforming melons in this shipment. The parties agreed that Respondent would pay $1272.55 for this shipment.
Recommendation It is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order determining that Respondent owes Petitioners the sum of $12,101.84. DONE AND ENTERED this 7th day of July, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1997. COPIES FURNISHED: Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Francis A. Oakes Oakes Produce Company 2744 Edison Avenue Fort Myers, Florida 33916 Francis X. Heidrich, President The Heidrich Corporation Post Office Box 151059 Altamonte Springs, Florida 32715-1059 Aetna Casualty & Surety Company 151 Farmington Avenue Hartford, Connecticut 06156
Findings Of Fact The Petitioner, Triple M Packing, Inc. (Triple M) is in the business of selling produce, particularly tomatoes from its principal business address of Post Office Box 1358, Quincy, Florida. The Respondent, Fair Chester Tomato Packers, Inc. (Fair Chester), is primarily engaged in the business of packaging, distributing and brokering tomatoes in the New York City metropolitan area. It purchases produce from various sellers around the country in tomato-producing areas for resale at markets in the New York City area. Since it is a licensed agricultural dealer, the Respondent is required under the pertinent provisions of Chapter 604, Florida Statutes, to file a surety bond with the Department of Agriculture and Consumer Services (Department), designed to guarantee payment of any indebtedness to persons selling agricultural products to the bonded dealer to whom the dealer fails to make accounting and payment. Fair Chester has thus obtained a 50,000 surety bond which is underwritten by its Co-Respondent, Hartford Accident and Indemnity Company (Hartford). During the 1984 growing season, the Petitioner sold certain shipments of tomatoes to the Respondent for a price of $12,276. Thereafter, curing middle-to-late 1984, the Respondent Fair Chester, found itself in straitened financial circumstances such that it was unable to pay its various trade creditors, including the Petitioner. In view of this, various creditors at the behest of a lawyer retained by Fair Chester, eventually entered into a composition agreement, whereby the unsecured trade creditors agreed to settle, release and discharge in full their claims against Fair Chester on the condition that each creditor signing that agreement be paid thirty-three and one-third percent of its claim. It was determined that the composition agreement would be operative if the trade creditors representing 95 percent or more in dollar amount of all unsecured debts accepted the terms and provisions of that composition agreement on or before November 13, 1984. All the Respondent's unsecured trade creditors were contacted and ultimately those representing more than 95 percent of the outstanding creditor claims against Respondent accepted the terms and provisions of the composition agreement by the deadline. A document indicating acceptance by the Petitioner was signed by one Robert Elliott, purportedly on behalf of the Petitioner, Triple M Packing, Inc. In this connection, by letter of November 13, 1984 (Respondent's Exhibit 4) Attorney Howard of the firm of Glass and Howard, representing the Respondent, wrote each trade creditor advising them that the required acceptance by 95 percent of the creditors had been achieved, including the acceptance of the agreement signed and stamped "received November 8, 1984" by Robert Elliott, sales manager of Triple M. In conjunction with its letter of November 13, 1984, Glass and Howard transmitted Fair Chester's check for one-third of the indebtedness due Triple M or $4,092. The Petitioner's principal officer, its president, Kent Manley, who testified at hearing, acknowledged that he received that letter and check, but he retained it without depositing it or otherwise negotiating it. In the meantime, on October 29, 1984 a complaint was executed and filed by Triple M Packing, Inc. by its president, Kent Manley, alleging that $12,276 worth of tomatoes had been sold to Respondent on June 13, 1984 and that payment had not been received. The purported acceptance of the composition agreement executed by Robert Elliott, sales manager, was not executed until November 8, 1984 and the check for $4,092 in partial payment of the Triple M claim was not posted until November 13, 1984. Mr. Manley's testimony was unrefuted and established that indeed Mr. Elliott was a commissioned salesman for Triple M, was not an officer or director of the company and had no authority to bind the company by his execution of the composition of creditors agreement. Mr. Manley acted in a manner consistent with Elliott's status as a commissioned salesman without authority to bind the Petitioner corporation since, upon his receipt of the "one- third settlement" check with its accompanying letter, he did not negotiate it, but rather pursued his complaint before the Department. In fact, in response to the Department's letter of December 20, 1984 inquiring why the complaint was being prosecuted in view of the purported settlement agreement, Mr. Manley on behalf of Triple M Packing, Inc. by letter of December 28, 1984, responded to Mr. Bissett, of the Department, that he continued to hold the check and was not accepting it as a final settlement. Thus, in view of the fact that the complaint was filed and served before notice that 95 percent of the creditors had entered into the composition agreement and never withdrawn, in view of the fact that on the face of the complaint Robert C. Elliott is represented as a salesman indeed, for an entity known as "Garguilo, Inc.," and in view of the fact that Mr. Manley as president of Triple M, retained the check without negotiating it and availing himself of its proceeds, rather indicating to the Department his wish to pursue the complaint without accepting the check as settlement, it has not been established that the Respondent, Fair Chester, was ever the recipient of any representation by Manley, or any other officer or director of the Petitioner corporation, that it would accept and enter into the above-referenced composition of creditors agreement. It was not proven that Triple M Packing, Inc. nor Mr. Manley or any other officer and director either signed or executed the composition agreement or authorized its execution by Robert C. Elliott. Respondent's position that Mr. Manley and Triple M acquiesced in the execution of the settlement agreement by Elliott and the payment of the one-third settlement amount by the subject check has not been established, especially in view of the fact that the complaint was filed after Attorney Howard notified Triple M of Respondent's settlement offer and prior to notice to Triple M that the settlement agreement had been consummated by 95 percent of the creditors and prior to the sending of the subject check to Triple M. Mr. Manley then within a reasonable time thereafter, on December 28, 1984, affirmed his earlier position that the entire indebtedness was due and that the settlement had not been accepted.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, the evidence of record and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That Fair Chester Tomato Packers, Inc. pay Triple M Packing Company, Inc. $12,276. In the event that principal fails to or is unable to pay that indebtedness, Hartford Accident and Indemnity Company should pay that amount out of the surety bond posted with the Department of Agriculture and Consumer Services. DONE and ENTERED this 16th day of September, 1985 in Tallahassee, Florida. Hearings Hearings 1985. COPIES FURNISHED: Mr. Kent Manley, Jr. Post Office Box 1358 Quincy, Florida 32351 P. MICHAEL RUFF Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 16th day of September, Arthur Slavin, Esquire BLUM, HAIMOFF, GERSEN, LIPSON, GARLEY & NIEDERGANG 270 Madison Avenue New York, New York 10016 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Mr. Joe W. Kight Bureau of Licensing & Bond Department of Agriculture Mayo Building Tallahassee, Florida 32301 =========================================================== ======
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, L. L. Hiers was a "producer" 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 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, 2988 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 was timely filed by Petitioner in accordance with Section 604.21(1), Florida Statutes. Prior to Petitioner selling or delivering any watermelons (melons) to Nichols, Petitioner and Nichols agreed verbally that: (a) Petitioner would sell Nichols melons on a per pound basis at a price to be quoted by Nichols on the day of shipment, (b) Petitioner 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 Petitioner; (d) Nichols or its agent in the field would have the authority to reject melons at the place of shipment (loading) which did not meet the quality 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 Petitioner in obtaining the crew to harvest and load the melons, Petitioner had authority over the crew and was responsible for paying the crew. On a daily basis, Petitioner would contact Nichols and obtain the price being paid for melons that day. The price was marked in the 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, but the price to be paid Petitioner was the price Nichols received for the melons at their destination minus a 1 cent per pound commission for Nichols, taking into consideration freight, if any. Nichols was not acting at Petitioner's agent in the sale of the melons for the account of the petitioner on a net return basis nor was Nichols acting as a negotiating broker between the Petitioner and the buyer. Nichols did not make the type of accounting to Petitioner as required by Section 604.22, Florida Statutes, had Nichols been Petitioner's agent. The prices quoted by Nichols to Petitioner 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 10, 1988, Petitioner 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 each truckload of melons shipped that day. Petitioner shipped 4 loads of melons on June 10, 1988 but only 3 loads are in dispute, as follows: (a) load no. 10891 weighing 45,830 lbs. for which Nichols paid 3 cents per pound; (b) load no. 10892 weighing 43,950 lbs. for which Nichols paid 5 cents per pound and; (c) load 10893 weighing 47,190 lbs. for which Nichols paid 5 cents per pound. On June 22, 1988, Petitioner contacted Nichols and was informed that the price to be paid ford melons shipped that day was 5.25 cents per pound. This price was recorded in the field book with the net weight the loads shipped that day. Only load no. 10174 weighing 44,550 lbs. for which Nichols paid 3 cents per pound is in dispute. On June 23, 1988, Petitioner contacted Nichols and was informed that the price to be paid for melons shipped that day was 5.5 cents per pound. This price was recorded in the field book with the net weight of the loads shipped that day. Two loads were shipped, but only load no. 11227 weighing 48,490 pounds for which Nichols paid 5 cents per lbs. is in dispute. The differences in the price paid for each load and the agreed upon price are as follows: (a) load no. 10891-$1324.90; (b) load no. 10892-$479.50; (c) load no. 10893-$471.90; (d) load no. 11174-$891.00 and; (c) load no. 11227- $242.45. The total amount in dispute is $3,419.75. Nichols contends that load no. 10891 was rejected because it failed to pass government inspection due to quality, and that the quality of load nos. 10982, 10893, 1174 and 1122 was poor, resulting in a lower price than the price agreed upon. There was insufficient evidence to support this contention. Nichols has refused to pay Petitioner the difference between the agreed upon price for load nos. 10891, 10892, 10893, 11174 and 11227 and the price paid by Nichols as indicated on the settlement sheet. The difference is $3,419.75, and is owed to Petitioner by Nichols.
Recommendation Upon consideration of the foregoing Findings of Fact, 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 to Petitioner, L. L. Hiers the sum of $3,419.75. It is further RECOMMENDED that if Respondent, Jay Nichols, Inc. fails to timely pay Petitioner, L. L. 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 Petitioner in accordance with Section 604.21, Florida Statutes. Respectfully submitted and entered this 20th day of March, 1989, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 1989. COPIES FURNISHED: Carl Hiers, Qualified Representative Route 5, Box 339 Dunnellon, Florida 32630 Steve Nichols, Vice President Jay Nichols, Inc. Qualified Representative Post Office Box 1705 Lakeland, Florida 33802 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Mallory Horne, General Counsel Department of Agriculture and Consumer Services 513 Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture Lab Complex Tallahassee, Florida 32399-1650 U.S. Fidelity & Guaranty Co. Post Office Box 1138 Baltimore, MD 21203
Findings Of Fact The Petitioners and the Respondent had a business relationship under which the Respondent purchased watermelons from the Petitioners during the 1978 harvest season. Watermelons are at times sold on a "cash basis", which means that a buyer purchases the melons at the field for a set price per pound. At other times watermelons are sold on a "handle basis" or a "brokerage basis". Under these arrangements a buyer picks up a load of melons, sells it at the best obtainable price, and a portion of the sale price goes to the producer and a portion to the buyer. Prior to the 1978 harvest season, the Petitioners had had some unhappy experiences selling watermelons on a "handle" or "brokerage" basis. They decided to sell melons during the 1978 season only on a cash basis. The Respondent purchased several loads from the Petitioners during 1978 on a cash basis. A dispute arose as to four loads of melons which the Respondent purchased from the Petitioners late in the 1978 harvest season. The Petitioners understood that the transactions would continue to be on a cash basis. The Respondent, who was represented by W.B. Stevens in the transactions, appears to have had the honest belief that the transactions would be on a brokerage basis. Mr. Stevens did not, however, reduce the brokerage arrangement to writing, and he did not adequately advise the Petitioners that the terms of the transactions would be different from previous transactions that year. The four transactions were as follows: On May 30, 1978, the Respondent purchased 2,000 Grey watermelons which weighed 44,650 pounds at a quoted price of 4.75 cents per pound. On June 2, 1978, the Respondent purchased 1,330 Jubilee watermelons which weighed 45,470 pounds at 5.25 cents per pound. On June 5, 1978, the Respondent purchased 1,560 Grey watermelons which weighed 40,080 pounds at a quoted price of 4.50 cents per pound, and 1,550 Jubilee watermelons which weighed 44,100 pounds at a quoted price of 5.00 cents per pound. The total amount the Respondent owed the Petitioners for these four loads was $8,516.66. The Respondent issued the Petitioners a check for the loads in the amount of $5,453.72. The Petitioners are thus owed an additional $3,062.94. The Respondent offered several affidavits into evidence. These were identified for the record as Respondent's Exhibits 1-5, but they were rejected. Even if the affidavits had been admissible, they would not serve to alter the findings of fact set out herein. The affidavits identified as Respondent's Exhibits 1, 3 and 4 relate to the quality of the watermelons. Since it has been found that the melons were sold on a cash basis, the Respondent took ownership of the melons when they were loaded onto the Respondent's trucks. The quality of the melons would not, therefore, affect the amount the Respondent owed the Petitioners. If the Respondent were going to reject the melons, it should have done so when they were loaded onto the trucks. The affidavit which was identified as Respondent's Exhibit 2 relates to a truck shortage that existed in Florida at the time that the Petitioners' melons were harvested. While this affidavit may tend to support the Respondent's contention that it intended these loads to be sold on a brokerage basis, it does not alter the fact that the Respondent did not adequately communicate this understanding to the Petitioners. The affidavit which was marked as Respondent's Exhibit 5 is unsigned. Furthermore, it relates only that Mr. Stevens believed that the transactions would be handled on a brokerage basis. The affidavits are hearsay and are not cumulative of other evidence in this case. They are therefore inadmissible. Even if the affidavits were admissible, however, they would have no relevance to the issues. The Respondent is licensed with the Department of Agriculture and Consumer Services as an agricultural commodity dealer. The Respondent has a $20,000 bond on file with the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED: That a final order be entered by the Department of Agriculture and Consumer Services finding that the Petitioners are entitled to $3,062.94 in additional compensation for agricultural commodities which they sold to the Respondent, and requiring the Respondent to pay this sum to the Petitioners. RECOMMENDED this 7th day of March, 1979, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June. COPIES FURNISHED: Mr. W. B. Stevens President Eastern Marketing Services, Inc. P.O. Box 2156 Bartow, Florida 33830 Mr. Thomas H. Mancil P.O. Box 303 Clewiston, Florida 33840 L. Earl Peterson, Chief Bureau of License & Bond Department of Agriculture Mayo Building Tallahassee, Florida 32304 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32304 Robert A. Chastain General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32304
Findings Of Fact In 1983 William Lovett, Jr., Complainant, planted 65 acres of water melons, most of which were bought by Doyle L. Wadsworth, Respondent, either for himself or for William Manis Company. The only entity for which Respondent acted as agent was the Manis Company, for whom he has bought melons as its agent for many years. On behalf of himself or Manis, Respondent, in 1983, purchased melons from Complainant on June 16, 17, 20, 23, 24, 27, and 29. Complainant's melons were bought at prices ranging from seven cents to ten cents per pound. The melons were paid for by check signed by Respondent, dated zero to five days after the invoice date, on either Respondent's checking account at the Barnett Bank of Brandon or on Manis Company's account at Sun Bank of Tampa. Total payments to Complainant for these melons were $285,104.25 (Exhibits 2 and 3). Complainant and Respondent had met shortly before the 1983 water melon season through a mutual friend. Wadsworth agreed to buy water melons from Lovett, not to act as his broker. The grower had the water melons harvested, the buyer provided trucks and trailers to pick up the melons at the field, and the sale occurred when the melons were loaded. Wadsworth testified that he explained to Lovett that he buys melons on a load basis which he has done for many years, that he does not act as a broker to sell the melons, and that once the melons are loaded they are the responsibility of the then-owner, Wadsworth. 1983 was a good year for water melons and Wadwsorth bought nearly all of Lovett's production. Lovett asked Wadsworth if he would handle his melons if Lovett planted a crop in 1984 and Wadsworth agreed. Wadsworth also told Lovett that he preferred "grays," which Lovett planted. Lovett understood that Wadsworth had agreed to buy all of his water melons except for those Lovett sold independently, and to pay the prevailing prices. Wadsworth had no such understanding. Lovett's primary occupation is doctor of veterinary medicine and he relied on others for harvesting information. For reasons not fully explained at the hearing, the harvesting of Lovett's 1984 crop of water melons was a little late. Accordingly, any further delays resulted in overripe or sunburned water melons. The first harvesting of Lovett's melons occurred on Saturday, June 2, 1984, and Wadsworth bought 46,480 pounds at 3-1/2 cents per pound on behalf of Manis Company. Harvesting next occurred Monday, June 4, 1984, when Wadsworth bought 40,680 pounds for Manis and just over 100,000 pounds for himself. Payment for these water melons was made June 5, 1984, by a check in the amount of $3,050.60 on the Manis bank and $3,626.70 00 Wadsworth's bank. During the loading on June 4 a large number of water melons were discarded as culls. This made the task of grading and overseeing the grading much more onerous, and Wadsworth advised Lovett he would not be buying any more water melons from him that season. Lovett came to Wadsworth's motel to persuade him to do otherwise, but without success. Lovett asked Wadsworth if he could refer him to someone else to handle his melons, which request Wadsworth declined. Lovett subsequently obtained the services of a broker to handle his water melons but the additional delay in getting the crop harvested and the extra brokerage cost he incurred resulted in less income to Lovett than he would have received had Wadsworth bought all of Lovett's melons. Conflicting evidence was presented regarding the condition of the water melons grown by Lovett in 1984. Lovett's witnesses described the field as the finest ever seen, while Wadsworth testified that recent excess rainfall left part of the field wet, and some vines were wilting. All witnesses agreed that there were a large number of culls discarded from the water melons graded No. 1 on the first harvesting. In view of the recommended disposition of this case, a definitive finding of fact on this issue is unnecessary.
The Issue The basic issue in this case is whether the Respondent Lawrence J. Lapide, Inc., is indebted to the Petitioner Raiford Dunn for agricultural products purchased by the Respondent from the Petitioner. BACKGROUND AND INTRODUCTION By complaint filed with the Bureau of License and Bond, Florida Department of Agriculture and Consumer Services, on October 7, 1986, and submitted to the Division of Administrative Hearings on November 21, 1986, for hearing, the Petitioner seeks payment of a balance due on watermelons sold and delivered to Lawrence J. Lapide, Inc., on June 17, 18, and 19, 1986. At the hearing the Petitioner and the representative for the Respondent Lapide both testified and both presented the testimony of other witnesses. The Petitioner and the Respondent Lapide also both offered exhibits which were received in evidence. Following the hearing, none of the parties ordered a transcript of the proceedings. Further, none of the parties have filed any post- hearing proposed findings of fact or conclusions of law as allowed by Section 120.57(1)(b)4, Florida Statutes.
Findings Of Fact Based on the parties stipulations, on the testimony at the hearing, and on the exhibits received in evidence I make the following findings of fact. l. The Respondent Lawrence J. Lapide, Inc., is a New York corporation. It is a licensed dealer in agricultural products, having been issued license number 1274. For the time period in question, Lawrence J. Lapide, Inc., had a bond posted through Peerless Insurance Company in the amount of $50,000.00. The bond number was RG-30-44. The Petitioner is a producer of agricultural products, specifically watermelons. The Petitioner has been raising watermelons for approximately 25 years. The Petitioner knows Mr. Lawrence J. Lapide and has had business dealings with Lawrence J. Lapide, Inc., on several occasions during the past 4 or 5 years. During 1986 the Petitioner sold three loads of watermelons to Lawrence J. Lapide, Inc., prior to the four loads which are the subject of this case. (The parties do not have any disputes about the three earlier loads.) During June of 1986, Mr. Lawrence J. Lapide met with the Petitioner to discuss the purchase of watermelons. Mr. Lapide, acting on behalf of Lawrence J. Lapide, Inc., agreed to buy four loads of watermelons. Mr. Lapide purchased 3 loads of small watermelons (referred to as "dinks") at 3 cents per pound and l load of medium watermelons at 5 cents per pound. When the watermelons were loaded and weighed, the totals were as follows: Pig # 676086 43,290 pounds x 3 cents $1,298.70 Pig # 677969 47,980 pounds x 3 cents $1,439.40 Pig # 676036 43,910 pounds x 3 cents $1,317.30 Pig # 677047 45,640 pounds x 5 cents $2,282.00 Thus, the total agreed price for the four loads of watermelons was $6,337.40. When the Petitioner and Mr. Lapide agreed to the sale of the four loads of watermelons, the terms of the sale included an understanding that the transaction was F.O.B. at Sumterville, Florida. The agreement between the parties included an understanding that Mr. Lapide would provide the trailers to haul the watermelons and Mr. Lapide would pay all transportation charges for the watermelons. Pursuant to the agreement of the parties, payment for the watermelons was due "when they moved over the scale," i.e., as soon as the trucks were loaded and weighed. Finally, the evidence shows that the agreement between the parties was to the effect that title and risk of loss to the watermelons passed to the Respondent Lapide on shipment, with all remedies and rights for the Petitioner's breach reserved to the Respondent Lapide. The watermelons in question were loaded on June 17, 18, and 19, 1986, on trailers provided by Mr. Lapide. Pursuant to Mr. Lapide's request, as soon as each truck was loaded, the Petitioner called the transportation company to advise them that the melons were loaded and ready to be shipped. When the watermelons were loaded, they were in good marketable condition and if anthractnose rot was present on the watermelons, it was not visible at the time of loading. During the week of June 16, 1986, the Petitioner loaded watermelons for Mr. James Hill at the same time he was loading watermelons for the Respondent Lapide. The watermelons loaded for Mr. Hill came from the same fields as the watermelons loaded for the Respondent Lapide. Mr. Hill did not have any problems with the loads of watermelons he bought from the Petitioner during the week of June 16, 1986. Two of the loads of watermelons received by the Respondent Lapide were not inspected when received in New York. Those two loads contained saleable watermelons although an unspecified percentage of the watermelons in the two uninspected loads were unsaleable. The Respondent Lapide sold watermelons from the two uninspected loads. Two of the loads of watermelons received by the Respondent Lapide were inspected after they were received in New York. The inspections showed that one load contained anthractnose rot in various stages in 44 percent of the watermelons and that the other load contained anthractnose rot in various stages in 79 percent of the watermelons. The Respondent Lapide dumped the last two loads of watermelons. The Respondent Lapide has previously paid the Petitioner $1,500.00 of the amount due for the four loads of watermelons in question.
Recommendation Based upon all of the foregoing, it is recommended that the Respondent Lawrence J. Lapide, Inc., be ordered to pay to the Petitioner the sum of $4,837.40. It is further recommended that if the Respondent Lawrence J. Lapide, Inc., fails to timely pay the Petitioner as ordered, :the Respondent Peerless Insurance Company then be ordered to pay the Department as required by Section 604.21, Florida Statutes, and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes. DONE AND ENTERED this 2nd day of June, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1987. COPIES FURNISHED: William C. Harris, Esquire Florida Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Lawrence J. Lapide, Inc. 3 Willshire Court Freeport, New York 11236 Peerless Insurance Company 62 Maple Avenue Keene, New Hampshire 03431 Ted Helms, Chief Bureau of License and Bond Lab Complex Tallahassee, Florida 32399-1650 Lawrence J. Marchbanks, Esquire MARCHBANKS & FEAN 4700 N.W. 2nd Avenue, Suite 101 Boca Raton, Florida 33432 Hon. Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 =================================================================
