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 issues presented here concern the attempt by Petitioner to recover $2,367.30 as payment for watermelons sold to Sunshine Fruit Company, Inc. See Sections 604.15 - 604.30, Florida Statutes.
Findings Of Fact In July, 1993, Petitioner was a producer of agricultural products in Florida. That product was watermelons. At that time Sunshine Fruit Company was a dealer in agricultural products grown in Florida. Bill Hamilton also produced watermelons in Florida in July, 1993. His field had a common boundary with Petitioner's field. The watermelons taken from Petitioner's field in July, 1993 adjacent to the Hamilton field are at issue here. Bill Hamilton had done business with Sunshine Fruit Company in 1993 but was unable to meet the July demand which Sunshine Fruit Company had for watermelons. Hamilton had conducted his business with Allen Reiter as representative for Sunshine Fruit Company. To assist Reiter in obtaining additional watermelons in July that Hamilton could not supply, Hamilton referred Reiter to the Petitioner. An agreement was made to sell Petitioner's watermelons. The agreement was one in which Phillip Allen, Petitioner's son, served as her representative in the negotiations. In this arrangement the son was entitled to fifty percent of any profits and Petitioner the remaining 50 percent. The deal Petitioner made was to provide one load of medium melons and one load of large melons to Sunshine Fruit Company. Allen Reiter sent trucks to pick up the melons from Petitioner's field. After referring the Petitioner's business to Sunshine Fruit Company, Bill Hamilton observed Allen Reiter cut watermelons that were being delivered to Sunshine Fruit Company to examine the condition of the watermelons. Those watermelons that were being examined were located on a field truck. The field truck was a truck different from the truck that was to be used in transporting the watermelons to market. Hamilton also observed Reiter examining watermelons that were being loaded onto the transport truck. Hamilton had not experienced significant problems with hollow heart or bruising in the watermelons that he had harvested in the field adjacent to that belonging to the Petitioner in the year 1993. An approach which Hamilton and Petitioner had employed to avoid crop damage to the watermelons was to avoid loading watermelons that had become wet when it rained. Both producers, that is to say Hamilton and the Petitioner, had experienced an occasional slow down in harvesting in July, 1993, because of rain. Rain delayed the harvesting and loading of the Petitioner's watermelons provided to Sunshine Fruit Company. When the rain shut down the harvesting operation, some of the watermelons had already been picked. Harvested watermelons were put on the field truck before the rain commenced and were covered up with plastic to keep the rain from damaging the watermelons. The watermelons that had been picked that morning and placed on the field truck were left on the field truck while it rained hard that afternoon. The load that is being described was finished with watermelons picked the following day. Charles Gardner who worked for Petitioner in the harvesting operation also saw Allen Reiter cut watermelons that were on the field truck on the first day, the day it rained in the afternoon. Gardner also saw Reiter examine melons on the field truck on the second day. Phillip Allen and others loaded the two trucks provided by Sunshine Fruit Company and he supervised that operation. The second load of watermelons was placed on a truck that Phillip Allen and Charles Gardner understood to be Allen Reiter's "personal truck." An individual whose name was not identified at the hearing, whom Gardner and Phillip Allen understood to be "Reiter's personal driver", based upon an introduction made by Allen Reiter, interfered with the attempts by Phillip Allen to discard watermelons of questionable quality that were being loaded onto the transport truck. Phillip Allen told the driver that the questionable watermelons were bad, and the driver said "they are all right". When Phillip Allen would attempt to discard watermelons, this unidentified individual would return the questionable watermelons into the group of watermelons being transported, accompanied by a remark to the effect, "don't worry about it." This arrangement was contrary to the more typical arrangement in which the producer would discard what it referred to as the "culls." This caused a considerable number of watermelons to be kept for transport that should have been discarded. In the past the "culls" had been broken in the field or sold as pig feed. Phillip Allen tried to contact Allen Reiter by telephone after experiencing problems in which the driver insisted that substandard watermelons be packed. Phillip Allen was unable to reach Allen Reiter. Being unsuccessful in this attempt at contact, Phillip Allen deferred to the driver's choice to leave bad watermelons in the load for transport to market. However, Phillip Allen, not the driver, was in charge of the loading of the truck upon which substandard watermelons were being placed. Therefore, to the extent that the substandard watermelons diminished the value of the load, Petitioner must suffer the consequences. Nothing in the record leads to the conclusion that the driver had the authority to act as agent for Sunshine Fruit Company in determining what watermelons were of sufficient quality to be shipped. The driver mentioned in the previous paragraph stated in the presence of Charles Gardner that he was going home for the weekend and would deliver the watermelons on Monday. This comment was made on the prior Friday. The driver stated in the presence of Phillip Allen that he was going home because of brake problems and was going to wait to deliver the melons until Monday. Larry Thompson was the buyer and field supervisor for Sunshine Fruit Company in the transaction with Petitioner. Because it had been raining for several days, the decision to purchase the watermelons was through an arrangement in which the price would be determined at the time of receipt at the ultimate destination for the produce. There was no written agreement between the parties. Larry Thompson went to the field on the day after it had rained. While at the field on the second day Thompson observed the load of large watermelons. Charles Gardner told Larry Thompson that the large watermelons were popping. Larry Thompson told Allen Reiter that Reiter needed to check the large watermelons. Larry Thompson observed watermelons that were split. The watermelons were further observed by cutting the melons to examine them. During these events Thompson told Reiter that Thompson was glad that Sunshine Fruit Company was "riding" the watermelons, meaning waiting to determine the price until delivery at the ultimate destination. Otherwise Sunshine Fruit Company would not have bought the watermelons that were in the questionable condition as Thompson observed them on the second day. Some of these substandard watermelons were observed by Phillip Allen when loading the trailer and in conversation with the unnamed driver. As expected, this load of watermelons was in poor condition at the place and time that it was delivered. This was confirmed by an inspection that was performed at the place of ultimate delivery. Phillip Allen was made aware of the problem with that load. Phillip Allen told Larry Thompson that he, Phillip Allen, was going to have to contact the Inspector and asked that Thompson provide Allen with a copy of the inspection report. Thompson mailed Allen a copy of the inspection report. Thompson told Allen that some arrangement would have to be made to gain the best financial outcome with the questionable load of watermelons that could be achieved or that the watermelons would have to be dumped. It was resolved between Thompson and Allen that an individual in Pittsburgh, Pennsylvania, would be responsible for making some disposition with the questionable load of watermelons and this was accomplished by that individual in Pittsburgh, Pennsylvania. It is unclear who would pay for freight. Concerning the freight costs, Petitioner made no claim at hearing that the freight costs should be borne by Sunshine Fruit Company, and Petitioner and Sunshine Fruit Company failed to prove the amount of freight costs that had been incurred. However, based upon testimony by Dale Swain, a dealer in agricultural products in the region, it is inferred that the custom and practice employed in selling watermelons in 1993, to include watermelons sold by Petitioner to Sunshine Fruit Company, called for the deduction of freight expenses from the price paid for the watermelons. Watermelons Swain purchased from Petitioner in July 1993 were of acceptable quality. It was established that the cost of harvesting the subject watermelons would be borne by the producer, Pauline Allen. Phillip Allen established that the price per pound for both medium and large watermelons was 3.5 . It is undisputed that the load amounting to 41,180 pounds at 3.5 per pound was worth $1,441.30. Nor is there any contention concerning the fact that Sunshine Fruit Company has paid $740 to the Petitioner for the watermelons in question. At hearing, Petitioner asserted that the second load, the load with problems, weighed at the scales in Florida before the transport in the amount 47,600 pounds. At 3.5 per pound the claimed value was $1,666.00. The at-scale value was not the agreed upon arrangement. The actual amount which was paid for the problem second load as delivered was not established at the hearing, but it can be inferred that the amount is less than $1,666.00 based upon facts that were presented at hearing.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Final Order be entered which dismisses the complaint calling for the payment of additional monies in the amount of $2,367.30. DONE and ENTERED this 18th day of March, 1994, in Tallahassee, Florida. CHARLES C. ADAMS, 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 18th day of March, 1994. APPENDIX CASE NO. 93-6173A The following discussion is given concerning the Respondent Sunshine Fruit Company's findings of fact: Unnumbered Paragraph 1 is subordinate to facts found with the exception that it is not clear in the record whether both loads are to be paid for within two weeks of passing inspection. Unnumbered Paragraphs 2 and 3 are not supported by the record. Unnumbered Paragraph 4 constitutes legal argument. COPIES FURNISHED: Phillip Allen 695 North Maylen Lacanto, FL 34461 Allen Reiter 3535 Recker Highway Winter Haven, FL 33880 Richard E. Straughn, Esquire Post Office Box 2295 Winter Haven, FL 33883-2295 Meritor Savings, F.A. Post Office Box 193 Winter Haven, FL 33882 Brenda Hyatt, Chief Department of Agriculture Bureau of Licensure and Bond 508 Mayo Building Tallahassee, FL 32399-0800 Bob Crawford, Commissioner Department of Agriculture The Capitol, Plaza Level Tallahassee, FL 32399-0810
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing and at the subsequent deposition, the following facts are found: At all times pertinent to this proceeding, Petitioners were producers of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1983). At all times pertinent to this proceeding, Respondent Sales was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 207 by the Department and bonded by Hartford Insurance Company of the Southeast (Hartford) in the sum of $20,000 - Bond No. RN 4429948. At all times pertinent to this proceeding, Respondent Hartford was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983). On June 11, 1985 Respondent Sales, through its agent William C. Summers (Summers), contracted with Petitioners to load several loads of watermelons on trucks furnished by Respondent Sales at Petitioners' watermelon field. Petitioner agreed with Summers to load a good quality watermelon ranging in weight from seventeen (17) pounds and up, with an occasional watermelon weighing less than seventeen (17) pounds. The price agreed upon was $0.03 per pound with the sale being final upon loading, weighing and acceptance by Summers. Before loading any watermelons, Summers along with Petitioners Shivers inspected the field of watermelons for size and quality and to estimate how many watermelons were available for shipment. On June 11, 1985 Petitioners began loading the first load of watermelons the only load in dispute, in accordance with the agreement. Summers was present on several occasions, for periods of approximately thirty (30) minutes each time, during the time of loading and on occasions would instruct Petitioner Sullivan who was packing, to put watermelons, both large and small which Sullivan had rejected, back on the truck for shipment. Petitioner finished loading the first load of watermelons on June 11, 1985 which was weighed and accepted and paid for by Summers on June 12, 1985. The net weight was 43,260 pounds for a total amount of $1,297.80. On June 12, 1985, Summers issued a check jointly to Petitioners on Respondent Sales' checking account which Summers signed for the sum of $1,297.80 but later "stopped for payment" on this check and Respondent Sales has since refused to pay Petitioners this amount. Although Sullivan advised Summers that a range in weight of 17 pounds and up was too wide for a load of watermelons to be classified as medium, Summers advised Sullivan to load watermelons weighing 17 pounds and up. After Petitioners started loading the second load, Summers instructed Sullivan to only pack watermelons ranging in weight from 17 to 24 pounds which Sullivan did and Petitioners were paid for this second load without incident. The evidence was insufficient to prove that the watermelons in question had been rejected at destination due to the wide range of weights or for any other reason. 13, The evidence is clear that Summers was acting for Respondent Sales and had authority to purchase and accept the watermelons in dispute. The only reason Respondent Sales' refused to pay was the alleged nonconformance as to size.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent Sales be ordered to pay to the Petitioners the sum of $1,297.80. It is further RECOMMENDED that if Respondent Sales fails to timely pay the Petitioner as ordered, then Respondent Hartford be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1983). Respectfully submitted and entered this 13th day of March, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 13th day of March 1986. COPIES FURNISHED: Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301 Robert Chastain, General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 Ron Weaver, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Joe W. Kight, Chief License and Bond Mayo Building Tallahassee, Florida 32301 Terry McDavid, Esquire 200 North Marion Street Lake City, Florida 32055 Steve Shiver and Jody Sullivan Route 1, 8ox 474 Mayo, Florida 32066 A. J. Sales Company Post Office Box 7798 Orlando, Florida 32854 Hartford Insurance Company of the Southeast 200 East Robinson Street Orlando, Florida 32801
Findings Of Fact On April 22, 1988, an indemnity bond was executed between D & S as principal and Fidelity as surety. The effective dates of the bond were from April 22, 1988 to April 21, 1989. The bond was required under Sections 604.15-604.30, Florida Statutes, in order for D & S to become licensed as a dealer in agricultural products. The purpose of the bond is to secure the faithful accounting for and payment to producers of all agricultural products handled or purchased by D & S. In September 1987, Junior Martin met with Cliff Price and Buddy Session regarding the Spring 1988 watermelon crop in LaBelle, Florida. Junior Martin was the grower. Cliff Price was the harvester, and Buddy Session planned to become a dealer before harvest. During the meeting, Junior Martin and Buddy Session entered into a verbal agreement which contained the following terms: a) Junior Martin would sell Buddy Session all of the shippable melons in his fields on a per pound basis at market price on the day of shipment; b) Junior Martin would harvest and load the melons on trucks furnished by Buddy Session; c) settlement was to be made within a reasonable time after shipment; and d) settlement would include any adjustment for failure of the melons to meet the quality or grade contracted for by Buddy Session. Such adjustments could be made by Junior Martin taking less cash or giving Buddy Session replacement melons. In the interim period between the planting and the harvesting of the crop, the farms run by Junior Martin were incorporated and became Stacys Farms, Inc. Buddy Session formed D & S Product, Inc. during the same time frame. The verbal agreement between the two individuals was accepted by both the corporations who continued to transact business under its terms. The harvesting of the crop began in May 1988. The market price began at ten cents per pound but quickly dropped to nine cents. From May 15, 1988 through May 20, 1988, the producer and the dealer in these proceedings acted under the terms of the verbal agreement without controversy. During harvest, load tickets were prepared on site by Junior Martin's harvester, Cliff Price. Each load ticket reflected the number of pounds of melons loaded, the size and variety of melon, the date, market price, the driver's name and the trailer license number. Due to a mistake in loading as to the size of melons shipped from the loading dock on May 19, 1988, D & S assigned one of its own employees to the loading dock. The employee's job was to oversee the loading process and to make sure that the correct size of melons were loaded on the proper trucks. D & S owned the melons at the time they were placed on the trucks on May 21, 1988. D & S was not acting as Stacys Farms agent in the sale of melons. On May 21, 1988, a number of loads were purchased by D & S at the market rate of nine cents per pound. The loads in dispute which were loaded on this date are: 46,060 lbs. of medium Crimson watermelons loaded onto Trailer P78 Ohio, and shipped May 21, 1988. 40,020 lbs. of medium Crimson watermelons loaded onto Trailer 92102 S/T ILL, and shipped May 21, 1988. 53,800 lbs. of large Greys loaded onto Trailer BG133M Fla, and shipped May 21, 1988. 48,000 lbs. of medium Crimsons loaded onto Trailer T03286KY, and shipped May 21, 1988. 49,120 lbs. of medium Greys loaded onto Trailer TH50695 PA, and shipped May 21, 1988. 42,840 lbs. of large Crimsons loaded onto trailer C5XZ2676310, and shipped May 21, 1988. The total amount in dispute for these loads is $23,200.60. D & S contends that the melons shipped in the loads in dispute were below the quality or size for which it contracted. As a result, D & S contends it suffered a loss of $21,987.56. A review of D & S' business records show that Trailer P78 Ohio was also referred to upon occasion as 8878 Ohio. The load number was 88135. It appears from office notes made by D & S by a person who is ill with cancer (Petitioner's Exhibit #5) that the trouble with these melons was that the customer wanted large melons, not medium ones. (The notation states, "trouble NL".) Nevertheless, the load was accepted by the customer, Tom Lange. The purchase price paid by Lange was more than the price paid by D & S. The one hundred and fifty dollars less than the amount billed by D & S was a result of the sizing difference. Stacys Farms was accurate in its billing regarding the size of melons loaded, and D & S' on site employee accepted them and allowed the medium melons to be shipped. D & S owes Stacys Farms $4,145.40 for this load. D & S' business records show that the melons loaded on Trailer 92102 S/T ILL. were referred to as load number 88129. The load was received and paid for by D & S customer E.W. Kean. D & S' business record has two numbers transposed in the weight entry on the computer printout. The bill of lading and the load ticket reflect the correct weight. Again, Petitioner's Exhibit #5 shows a notation of "trouble NL". Medium melons were shipped as reflected on the load ticket. A reasonable inference exists that D & S' customer wanted large melons as opposed to medium melons. The load was accepted by E.W. Kean, and the price billed of $3,800.00 was paid in full. D & S' on site employee accepted the load and allowed the medium melons to be shipped. Stacys Farms believed the medium melons were ordered and did not misrepresent the size purchased from them. D & S owes $1,616.80 to Stacys Farms for this load. The large Greys on Trailer BG133M Fla, were received by D & S' customer, Winn-Dixie in Jacksonville. Thirteen of the melons were cut open at the delivery site for inspection purposes prior to acceptance. The customer determined that the quality was not as good as represented at the time the shipment was ordered. The customer agreed to pay D & S $800.00 for the load. As the quality of these melons was below the quality contracted for, D & S does not have to pay the price placed on the loading ticket for these melons. In settlement under the oral agreement, D & S is entitled to an offset of $391.50, the remaining portion of the freight bill once the $800.00 paid is deducted. The medium Crimsons loaded onto Trailer T03286KY were accepted by D & S customer Maddox Brothers Produce, Inc. A government inspection of melons in warehouse bins of Taylor Produce three days later which purportedly came from the same trailer from Maddox Brothers were rejected by the second receiver. A drop in market price had also occurred in the interim. The customer paid $1,400.00 to D & S for the load. As there is no reliable evidence that the inspected melons were the same melons as those originally accepted three days before by Maddox Brothers, D & S owes Stacys Farms $4,320.00 for the melons. All of the other medium Crimsons loaded on May 21, 1988 appeared to be of acceptable quality. The uncorroborated hearsay regarding the origin of the inspected melons in Kentucky, especially after a market drop, is insufficient proof that Stacys Farms did not meet the terms of its verbal agreement with D & S regarding quality of shipped melons. D & S owes $4,320.00 for the melons. The computer records at D & S do not show the 49,120 lbs. of medium Greys loaded on Trailer TH50695PA pursuant to instructions from Tom Killmon. At the time the melons were loaded, Tom Killmon was a licensed buyer for D & S, but he also ran an independent melon business. Tom Killmon's business records reflect that he purchased the melons from D & S at nine and one-half cents per pound. The office memo referred to as Petitioner's Exhibit #5 acknowledges the load and that it received a government inspection. Tom Killmon's records reflect that he was paid for the melons but that he had not paid D & S. D & S owes $4,420.80 to Stacys Farms for the melons. Large Crimsons were loaded onto Trailer CSXZ676130 and shipped to Quebec as load number 88124. According to Petitioner's Exhibit #5, some trouble existed concerning the purchase by D & S' customer and the price of the melons was reduced by approximately $876.00. This later turned out to be $869.35. The business records show that the number of melons actually shipped to Montreal by D & S was less than the number of pounds represented on the bill of lading. At the point of destination only 38,443 lbs. of melons arrived. The quantity of melons and the freight flat rates were adjusted accordingly by the customer. For some reason, the purchase rate of $.123 per pound was reduced to $.11 per pound. There was no proof provided to establish whether the reduction in price had anything to do with the quality of the melons. Because a seal was placed upon the load at Stacys Farms prior to the shipment of the product by rail, a reasonable inference exists that the loading ticket accurately reflects the amount of melons purchased by D & S from Stacys Farms. The sum of $3,855.60 should be paid to Stacys Farms for this load.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Department of Agriculture and Consumer Services enter a Final Order requiring D & S to make payment to Stacys Farms in the amount of $17,967.10. In the event D & S does not comply with the Department's order within fifteen days from the date it becomes final, Fidelity should be ordered to provide payment under the conditions and provisions of the agricultural products bond. The bond only provides for payment up to $10,000.00. DONE and ENTERED this 8th day of January, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 8th day of January, 1990. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are addressed as follows: Rejected. Contrary to fact. See HO #4-#5. Rejected. Improper conclusion. See HO #5. Rejected. Improper summary. Rejected. The weight to be given to testimony is within the sole discretion of the Hearing Officer. Accepted. Rejected. Irrelevant. See HO #9. Rejected. Irrelevant and immaterial to the complaint. Rejected. Irrelevant. See HO #9. Respondent D & S' proposed findings of fact are addressed as follows: Rejected as to Buddy Session's status. Otherwise accepted. See HO #3 and #5. Rejected as to the term "top quality" in first sentence. Contrary to fact. Rejected as to last two sentences. Contrary to fact. See HO #4. Accepted. Rejected. Irrelevant. Accept the first sentence. The rest is rejected. Contrary to fact. Improper conclusion. See HO #8. Rejected. Outside the terms of the complaint and the proceeding. Also, improper conclusion based upon insufficient evidence. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. Rejected. Argumentative. Improper summary. Contrary to fact. See HO #4. Rejected. Contrary to fact. See HO #17. Rejected. Contrary to fact. See HO #17. Rejected. Contrary to fact. See HO #13-#18. Copies furnished: Marilyn G. Sears Stacys Farms, Inc. 1201 Riverbend Drive LaBelle, Florida 33935 Philip L. Burnett, Esquire PHILIP L. BURNETT, P.A. Post Office Box 2258 Fort Myers, Florida 33902 Fidelity & Deposit Company of Maryland Post Office Box 1227 Baltimore, Maryland 21203 Fidelity & Deposit Company of Maryland Honorable Doyle Conner Post Office Box 25857 Commissioner of Agriculture Tampa, Florida 33622 The Capitol Tallahassee, FL 32399-0810 Ben F. Pridgeon, Jr., Chief Bureau of License and Bond Mallory Horne, Esquire Department of Agriculture General Counsel and Consumer Services Department of Agriculture Lab Complex and Consumer Services Tallahassee, Florida 32399-1650 Mayo Building Tallahassee, FL 32399-0800
Findings Of Fact The Respondents, F. H. Dicks, III; F. H. Dicks, IV; and F. H. Dicks Company, are wholesale dealers in watermelons which they purchase and sell interstate. The Respondents' agents during the 1991 melon season in the Lake City area were Harold Harmon and his son, Tommy Harmon. The Harmons had purchased watermelons in the Lake City area for several year prior to 1991, and the Petitioner had sold melons through them to the Respondents for two or three seasons. The terms of purchase in these prior transactions had always been Freight on Board (FOB) the purchaser's truck at the seller's field with the farmer bearing the cost of picking. The terms of purchase of the melons sold by Petitioner to Respondents prior to the loads in question had been FOB the purchaser's truck at the seller's field with the farmer bearing the cost of picking. One of the Harmons would inspect the load being purchased during the loading and at the scale when the truck was weighed out. After the Harmons left the area, their work was carried on by Jim Coffee, who the Harmons introduced to Mr. Shiver as their representative. Once the melons were weighed and inspected, the melons belonged to the Respondents. Price would vary over the season, but price was agree upon before the melons were loaded. Settlement had always been prompt, and the Harmons enjoyed the confidence of the local farmers. On July 8, 1991, load F 276 of 45,840 pounds of watermelons was sold by Petitioner to Respondents for 4 per pound. They were weighed and inspected by Coffee. These melons were shipped to West Virginia where they were refused by the buyer. The melons were inspected in Charleston, WV, on July 12, 1991. This inspection revealed 10% transit rubs, 12% decay, and 22% checksom. These melons were subsequently shipped to Indianapolis, IN, for disposal. The Respondents deducted the freight on this load in the amount of $2,459.76 from moneys owed the Petitioner on other transactions. On July 9, 1991, two loads of watermelons, F 277 and F 278, were sold to the Respondents. Load F 277 weighed 46,200 pounds and Load F 278 weighed 45,830 pounds. Both loads were inspected by Coffee. Mr. Shiver had negotiated a price of 4 per pound for F 278 and 3.5 per pound for F 277. Load F 278 was received by the Respondents at their facility in Yamassee, SC, where it was government inspected on July 11, 1991. It was found to be in very bad shape. It was bartered to the trucking company by the Respondents in exchange for the freight charges. Load F 277 was also received by the Respondents, who accepted 38,000 pounds of 45,830 pounds of melons shipped. On July 10, 1991, load F 279 of 42,180 pounds was sold for 3.5 per pound, and shipped to the Respondents in Yamassee, SC, for repacking and shipment to Baltimore, MD. They were weighed and inspected by Coffee before shipment. This load was rejected without any inspection by the Respondents. The Petitioners received $1,330 for load F 277, nothing for loads F and 279, and Respondents retained $2,459.76 from prior transactions for freight charges on load F 276. Under the terms of the sale, FOB purchaser's truck at grower's field, the Respondents bore the cost of transportation. The Respondents also bore the risk of loss on sales which they made and which were rejected. On the two loads which were not inspected by government inspectors, F and F 277, the Petitioner is entitled to the sales price for the melons. Although there is evidence to support the Respondents' contention that the produce was not within grade specifications, the Respondent had accepted the produce. Contrary to Respondents' assertion that the produce coming from the same field on the same day would all be bad, these loads were not loaded on the same day. Further, most of one of the loads received on the same day from the same field was accepted. Lastly, as stated above, all the loads were inspected by Respondent prior to acceptance. The Respondents owe the Petitioners $1,833.60 on load F 276, $1,570.80 on load F 277, 1833.20 on load F 278, and 1476.30 on load F 279. This is a total of $6,713.90. The Respondents improperly retained $2,359.76 for freight charges, but did pay the Petitioners $1,330 for load F 277. The total owed by the Respondents to the Petitioners is $9,073.66, of which Respondents have already paid $1,330.00. The Respondents still owe the Petitioners $7,743.66 less $32 for the watermelon assessment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: Respondent be given 30 days to settle with the Petitioner in the amount of $7,711.66 and the Petitioner be paid $7,711.66 from Respondent's agricultural bond if the account is not settled. DONE and ENTERED this 6th day of October, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1992. COPIES FURNISHED: Terry McDavid, Esquire 128 South Hernando Street Lake City, FL 32055 F. H. Dicks, III c/o F. H. Dicks Company P.O. Box 175 Barnwell, SC 29812 Bob Crawford, Commissioner Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Department of Agriculture Division of Marketing, Bureau of Licensure and Bond 508 Mayo Building Tallahassee, FL 32399-0800 South Carolina Insurance Company Legal Department 1501 Lady Street Columbia, SC 29202 Victoria I. Freeman Seibels Bruce Insurance Companies Post Office Box One Columbia, SC 29202 Richard Tritschler, Esquire Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: At all times pertinent to this proceeding, Petitioner was a producer of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes, (1983). At all times pertinent to this proceeding, Respondent Rentz was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 4103 by the Department, and bonded by Respondent Nationwide in the sum of $14,000 - Bond No. LP 505 761 0004. At all times pertinent to this proceeding, Respondent Nationwide was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983). Petitioner harvested, loaded and shipped sixteen (16) loads of watermelons to various receivers on instruction from Respondent Rentz during the 1985 watermelon season but only four (4) loads were in dispute on the date of the hearing with a claim of $3,807.98. 1/ Petitioner in previous watermelon seasons loaded and shipped watermelons for Respondent Rentz and on all occasions, including the 1985 season, had been paid for the watermelons either in cash by Respondent Rentz or by check drawn on Respondent Rentz's account. The invoicing of all loads of watermelons shipped by Petitioner for Respondent Rentz was done by Respondent Rentz and payments made by the various receivers were made to Respondent Rentz. Petitioner's understanding that Respondent Rentz was acting as a buyer and not a broker was credible and supported by Respondent Rentz's actions subsequent to the watermelons being loaded and shipped. 2/ Although Respondent Rentz contended that he was acting as a broker, the more credible evidence shows that Respondent Rentz was acting as a buyer and that risk of loss passed to him upon shipment, with all remedies and rights for Petitioner's breach reserved to him. For purposes of Sections 604.15-604.30, Florida Statutes, the Department's policy is to consider a person a broker, requiring only a minimum bond ($13,000.00) for licensure, when that person does not take title to the product and whose function is to bring buyer and seller together and assist them in negotiating the terms of the contract for sale but not to invoice or collect from the buyer.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent Rentz be ordered to pay to the Petitioner the sum of $3,807.98. It is further RECOMMENDED that if Respondent Rentz fails to timely pay the Petitioner as ordered, then Respondent Nationwide be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1983). Respectfully submitted and entered this 15th day of April, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1986.
Findings Of Fact D. L. Wadsworth buys watermelons in the field and sells them to parties to whom the melons are delivered. In 1984 he agreed to buy melons from Charles Shackelford. In conducting his business Wadsworth is not an agent for the grower nor does he act as broker between the grower and the person who ultimately takes delivery of the melons. There was obviously a misunderstanding on the part of Petitioner as to the exact role played by Wadsworth in his buying of watermelons. Shackelford testified that Wadsworth agreed to handle his watermelon crop for the 1984 harvest. Wadsworth, on the other hand, does not buy fields but only "loads" on a daily basis. The harvesting of the watermelons is done by an agent of the grower, not by Respondent. Respondent buys the melons which he loads and ships out. On June 1, 1984, Respondent bought two loads of melons from Petitioner for which he paid four cents per pound. This is the same price Wadsworth paid to other growers from whom he purchased melons on June 1. On June 2, 1984, Respondent bought three loads of watermelons from Petitioner. Petitioner testified that he asked Respondent on June 2 what melons were bringing and was told four cents per pound. Wadsworth denies quoting a price to Shackelford but acknowledges that even if melons were bringing four cents a pound in New York he could not pay four cents per pound in Wauchula and ship them to New York without losing money on every watermelon he bought. Petitioner also testified that Respondent ceased handling his melons after June 2, 1984, that Respondent told him he was sick and was going back to Brandon and that he (Respondent) was not going to handle any more watermelons. Respondent denied that he was sick during this period or that he could not be contacted. Respondent paid his motel bill in Wauchula on June 9, 1984. On June 5, 1984, Respondent gave Petitioner his check for the watermelons he had purchased and an invoice (Exhibit 1) which showed the price for one load on June 1 at four cents per pound and three loads on June 2 at three and a half cents per pound. Respondent did not receive any complaint from Petitioner until the Complaint that is the basis of this hearing was filed. To support his testimony that he paid all growers the same price for watermelons purchased, Respondent submitted a list of those growers from whom he bought watermelons on May 31 through June 3 showing that he paid four cents per pound on the first two days of that period and three and a half cents per pound the last two days (Exhibit 2).
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
Findings Of Fact Petitioners are growers of watermelons and qualify as "producers" under Section 604.15(5) F.S. Respondents Smith are broker-shippers of watermelons and qualify as "dealers" under Section 604.15(1) F.S. Respondent South Carolina Insurance Company is surety for Respondents Smith. Petitioners Brewton and Respondents Smith have had a good business relationship overall, including the 1992 growing season during which several loads of high quality watermelons were sold by the Brewtons through the Smiths. Of the several loads of melons sold, only one load, the one invoiced on June 18, 1992, is at issue. Regardless of oral agreements with varying conditions for other loads, the parties agreed as of June 18, 1992 that the load of June 18, 1992, invoice 2088, (R-5), would be paid for by Respondents Smith advancing harvest costs and agreeing to pay Petitioners for the load, minus the costs of harvesting, after Respondents had received payment from the recipient. At the time of loading, everyone concerned felt the June 18, 1992 load might have some problems with it, but every attempt was made to load only quality product. Petitioners and Respondents each had input on which specific melons were loaded. At that time, Mr. Rick Smith o/b/o Respondents Smith advised Mr. Dewey Brewton, III that because the quality of the load was borderline and as a result of its borderline condition the whole load could be rejected at its ultimate destination, Respondents Smith wanted Petitioners Brewton to protect the Respondents Smith on the quality of the melons. He also specifically advised Dewey Brewton, III that the whole load could be rejected. The parties then entered into an agreement, partly oral and partly written. Rick Smith and Dewey Brewton, III understood their agreement to mean that Petitioners would absorb any loss as a result of the quality of the watermelons from that point forward, but that Respondents would not come back against Petitioners for the costs Respondents had advanced on Petitioners' behalf or for the cost of the freight. To signify this, the words "grower protects shipper on quality" was written on the invoice. On or about June 22, 1992, Rick Smith informed Dewey Brewton, III that the entire June 18, 1992 load had been rejected by the first receiver. At that time, Dewey Brewton, III accepted Rick Smith's representation and did not require further proof of rejection at the first point of delivery or request an independent inspection at the first point of delivery. He also acquiesced in Respondents shopping around for a second buyer who might take all or some of the load originally sent out on June 18, 1992, and did not request the return of Petitioners' watermelons. At that time, Rick Smith also told Dewey Brewton, III that the load might have to be held on the truck a day or two to ripen some of the watermelons for a second point of delivery. He again indicated that the whole load could be rejected again when the load was sent on to a second receiver. Dewey Brewton, III specifically agreed to let the melons ripen "a day or so," and did not request any change in the grower protection plan initially agreed to between the parties. Respondents Smith were eventually able to market the melons to a second delivery point (consignee) in Michigan. That receiver complained that the melons started breaking down and he had to dump 735 melons. Pursuant to standard custom of the trade, Respondents accepted payment of $1,944.00 for the melons, subtracted $1,831.98 they had laid out in freight costs and also subtracted the $675.18 they had advanced on behalf of Petitioners to the harvester. Thus, Respondents sustained a net loss of $563.16. Respondents absorbed the $563.16 loss and did not require any repayment of harvesting costs advanced or any freight charges from Petitioners. Dewey Brewton, III testified that he originally understood that "grower protection" meant that Petitioners "would stand behind their quality product until the ultimate point," but that he had interpreted a comment by Mr. Rick Smith on June 22, 1992 to the effect that "the grower (Petitioners) agreed to 'ride' the watermelons and the shipper (Respondent) agreed to 'ride' the freight" to mean that the growers (Petitioners) no longer had any duty to cover their own losses on the June 18, 1992 load of watermelons after the first rejection and up to final sale to the second buyer. In light of Mr. Brewton's failure to change the written language concerning protection on the invoice, his knowledge from the day of initial shipment that the June 18, 1992 load was of dubious quality, his acceptance that the first recipient had rejected the load, and his agreement that Respondents could have a further waiting/ripening/shopping around period before ultimate sale, coupled with his knowledge from the very beginning that the June 18, 1992 load could be utterly rejected at any point so as to render the endeavor a complete loss to the Petitioners, Mr. Brewton's assumption that on June 22, 1992, Respondents Smith were voluntarily waiving their written agreement that "grower protects shipper on quality" was not reasonable. On June 22, 1992, the load had already been rejected once. At that stage, the outcome of the proposed sale was considerably more precarious than when the crop was loaded on June 18, 1992. It is also found Mr. Brewton's assumption that the agreement had been modified was not knowingly or intentionally induced by the Respondents and that the assumption was not contemporaneously conveyed to Respondents Smith so that they could disabuse Mr. Brewton of his error. Upon the foregoing, it is further found that the written initial agreement that "grower protects shipper on quality" was not altered on June 22, 1992 but continued in force.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the Department of Agriculture and Consumer Services enter a Final Order dismissing Petitioner's complaint. RECOMMENDED this 26th day of March, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1993. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda D. Hyatt, Chief Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Jacquelyn J. Brewton 8876 NW 115th Avenue Ocala, FL 34482 Dewey Brewton III 8876 NW 115th Avenue Ocala, FL 34482 Richard L. Smith Midwest Marketing Company P. O. Box 193 Vincennes, IN 47591 South Carolina Insurance Company Legal Department 1501 Lade Street Columbia, SC 29201-0000
Findings Of Fact 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.
