02-000215 Andy D. Andrews, D/B/A A. D. Andrews Nursery vs. P. S. L. Landscape Services, Inc. And Cumberland Casualty And Surety Company Status: Closed Recommended Order on Tuesday, April 30, 2002.

Summary: Petitioner showed that it had properly shipped plant materials which were improperly rejected and that payment was refused by Respondent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANDY D. ANDREWS, )

d/b/a A. D. ANDREWS NURSERY, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0215

)

P. S. L. LANDSCAPE SERVICES, )

INC. AND CUMBERLAND CASUALTY )

AND SURETY COMPANY, )

)

Respondents. )

______________ __________________)

RECOMMENDED ORDER

A hearing was held pursuant to notice in the above - styled

cause on March 21, 2002, before Stephen F. Dean, assigned

Administrative Law Judge of the Division of Administrati ve

Hearings, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Andy D. Andrews, pro se

A. D. Andrews Nursery

Post Office Box 1126

Chiefland, Florida 32644

For Respond ent: No appearance.

STATEMENT OF THE ISSUE

Is Petitioner entitled to compensation for the sale of

agricultural products, and, if so, how much?

PRELIMINARY STATEMENT

The Petitioner sold plant materials to the Respondent,

who received them and paid fo r them with a check. Thereafter,

the Respondent stopped payment on the check. The Petitioner

filed a petition with the Department of Agriculture pursuant

to Chapter 604, Florida Statutes. The Department determined

that the case involved disputed issues of fact and referred

the case to the Division of Administrative Hearings. The case

was noticed for hearing for March 21, 2002, by notice dated

February 28, 2002. The case was heard as noticed.

At hearing, the Petitioner testified, and presented the

testi mony of Dennis Deming and Mathew Teal Pomeroy. The

Petitioner introduced into the record Petitioner's Exhibits 1 -

5. The Respondent did not appear although notice was provided

to both P.S.L. Landscape Services, Inc., and Cumberland

Casualty and Surety Com pany. The Petitioner advised at

hearing that he was not ordering a transcript or filing post

hearing pleadings.

FINDINGS OF FACT

1. On or about August 28, 2001, Petitioner sold F.O.B.

(Free on Board) at Petitioner's farm to P.S.L. Landscape

Services Inc. (hereafter, PSL), 16 Crepe Myrtle trees 14 feet

tall and 5 Live Oak trees 2.5 - 3.0 inches in Diameter Breast

High for a total costs, including tax, of $4,208.20.

2. These trees were dug and wrapped in accordance with

the standards of the American Associa tion of Nurseryman in the

afternoon of August 30, 2001. The tree roots balls were 40

inches in diameter, and the root balls were placed in wire

baskets lined with burlap. The trees were placed upon a

flatbed truck with the tops of the trees resting on a rack,

and the entirety of the trees, except the roots, covered with

a plastic screening material used for this purpose to keep the

leaves from becoming wind burned in transit.

3. The trees were transported overnight to PSL where

they were received Broward County the following morning at

8:00 a.m.

4. The trees were received and signed for by a

representative of PSL, Randy Smith. The documents

accompanying the shipment were introduced as part of

Petitioner's Composite Exhibit 1. The first of these

documen ts signed by Smith states:

Attention: We do not replace trees. If

trees are not in satisfactory condition

when received, do not accept them. So

please take care of your trees. Refer to

watering guide in our catalog.

5. The second document sig ned by Smith provides in bold

type at the bottom of the page:

6. DO NOT REFUSE TO UNLOAD THE TRUCK. If

there is a serious problem and you question

the merchandise, call our office

immediately. Our number is 352 493 2496.

6. PSL provided the freig ht company two checks, one to

the freight handler for the freight and the other for 4,208.20

to Petitioner. This check was delivered to the Petitioner by

the freight company and deposited by the Petitioner in due

course.

7. The Petitioner was notified se veral days later that a

stop payment order had been received on the check for

$4,208.20 by PSL. This was the first time the Petitioner was

aware of a problem with the merchandise. PSL had not

contacted the Petitioner about any problem with the shipment.

8. When Mr. George Kijewski of PSL was contacted

regarding the stop payment order, he responded that the trees

had wilted. He wrote a letter dated December 21, 2001, to the

Department of Agriculture in which he stated:

Our firm ordered material from A.D. Andrews

Nursery for one of our projects. Two Live

Oaks were not number one as ordered. The

Crepe Myrtle came in bone dry, not wet as

the nursery states. The nursery dug up the

plant material ordered and left items in

the field until they were loaded on to truck

for delivery. They never went to holding

area prior to loading to get watered or

hardened off. When we got them they were

wilting . . . [.]

9. Mr. Deming was present when the trees were prepared.

Mr. Kijewski was not present when the trees were prepared.

Mr. Deming described the manner in which the trees were dug,

prepared for shipment, and shipped. The Crepe Myrtles were

dug using a tree spade; the root balls were placed in burlap -

lined wire baskets; and the trees placed on the trailer be d

where they were secured and covered with a plastic screen to

protect them from wind in transit. The Oaks were handled in a

similar manner.

10. The trees were not watered; however, the area had

received approximately 1.5 inches of water in the seven day s

prior to shipment. The roots were wet enough to cause the

burlap to be damp. The shipping documents do not reflect any

wilting or problems although the documents, as quoted above,

advised that product should not be received if not in good

shape. No no tes were made upon receipt reflecting the alleged

poor condition of the trees.

11. The trees were sold F.O.B. at Chiefland, and were

the property of PSL when loaded.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

13. The provisions of Chapter 604, Florida Statutes,

establish a procedure for recovery from a surety in the sale

of agricultural products and goods. Chapter 672, Florida

Statutes, is that portion of the Unif orm Commercial Code (UCC)

applicable to the sales of goods. Section 672.105(1), Florida

Statutes, defines goods as all things which are movable at the

time of identification to the contract for sale other than the

money in which the price is to be paid, i nvestment securities

and things in action. "Goods" also includes the unborn young

of animals and growing crops . . .[.] The trees in question

in this case are goods. Section 672.103(1), Florida Statutes,

defines buyer and seller. The seller in this cas e was the

Petitioner, and the buyer was PSL.

14. Section 672.201, Florida Statutes, addresses the

formal requirements for a written contract. Generally,

contracts for the sale of more than $500 of goods must be in

writing to be enforceable unless the c ontract to be enforced

is with respect to goods for which payment has been made and

accepted or which have been received and accepted in

accordance with Section 672.606, Florida Statutes. PSL

tendered payment which was received by the freight handler,

who was not affiliated with PSL. The exception for the

requirement of a written contract is established.

15. The contract called for sale Free on Board in

Chiefland. Title transferred when the goods were loaded on

the truck at the Petitioner's farm. See S ection 672.401(2),

Florida Statutes.

16. Section 672.606, Florida Statutes, provides

regarding buyer's rights upon improper delivery that if the

goods fail to conform to the contract, the buyer may reject

the whole; or accept the whole, or accept any com mercial unit

or units and reject the rest. The goods were inspected and

received in Broward County by PSL. No question regarding the

quality or condition of the goods was raised upon their

receipt.

17. Section 672.602, Florida Statutes, provides that

b uyer's rejection must be within a reasonable time after

tender of the goods or their delivery, and it is ineffective

unless the buyer seasonably notifies the seller. PSL did not

reject any of the trees upon receipt, and did not notify

seller.

18. PSL sto pped payment on the check which it had

tendered in payment for the goods. It did so without good

cause and contrary to its obligations under its contract with

the Petitioner.

19. As indicated above, the facts of this case establish

the contract and it is enforceable without being in writing

against the PSL.

21. PSL stopped payment on the goods, and asserts that

it "rejected" the goods. Section 672.602(2)(b), Florida

Statutes, provides that if the buyer has taken physical

possession of the goods . . . th e buyer has a duty after

rejection to hold them with reasonable care at the seller's

disposition for a time sufficient to permit the seller to

remove them.

22. PSL did not give notice seasonably of its rejection,

and it did not handle the goods it had r eceived in a manner

consistent with its asserted rejection.

23. When the buyer wrongfully rejects goods, the measure

of damages for non - acceptance or repudiation by the buyer is

the difference between the market price at the time and place

for tender, and the unpaid contract price together with any

incidental damages provided in Section 672.710, Florida

Statutes, less any expenses saved by the seller in consequence

of the buyer's breach.

24. There were no expenses saved in the consequence of

PSL's breac h. The market price was the contract price. There

was no money paid on the contract. The Petitioner did not

present any evidence of incidental expenses. PSL owes the

Petitioner the contract amount of $4,208.20. In the absence

of payment, the surety mu st make good that amount.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED:

That the Department enter a final order adopting these

findings and conclusions of law, directing PSL to pay to

Petitioner $4,2 08.20 within 14 days of receipt of its final

order; and, if PSL fails to abide by the Department's order,

directing the surety to make good on its bond in the amount of

$4,208.20.

DONE AND ENTERED this 30th day of April, 2002, in

Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

A dministrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 27 8 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of April, 2002.

COPIES FURNISHED:

Andy D. Andrews

A. D. Andrews Nursery

Post Office Box 1126

Chiefland, Fl orida 32644

Brenda D. Hyatt, Bureau Chief

Department of Agriculture

541 East Tennessee Street

Tallahassee, Florida 32308

George Kijewski

P.S.L. Landscaping Services, Inc.

Post Office Box 9421

Port St. Lucie, Florida 34985

Deborah A. Meek

Cumberland Casualty & Surety Company

4311 West Waters Avenue

Suite 401

Tampa, Florida 33614

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.