02-003109 Rolling Meadow Ranch, Inc. vs. Golden Gem Growers, Inc., And Fidelity And Deposit Company Of Maryland Status: Closed Recommended Order on Friday, October 25, 2002.

Summary: Supplier showed fruit dealer failed on account to supplier and owes supplier $109,712.84. Division has no jurisdiction to enforce contract provision for fees and costs.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROLLING MEADOW RANCH, INC., )

)

Petitioner, )

)

vs. ) Case No. 02 - 3109

)

GOLDEN GEM GROWERS, INC., and )

FIDELITY AND DEPOSIT COMPANY OF )

MARYLAND, )

)

Respondents. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing of this case on September 26, 2002, in

Winter Haven, Florida, on behalf of the Division of

Administrative Hearings (DOAH).

APPEARA NCES

For Petitioner: Brandon J. Rafool, Esquire

1519 Third Street Southeast

Winter Haven, Florida 33880

For Respondents: No Appearance

STATEMENT OF THE ISSUE

The issue is whether Respondent, Go lden Gem Growers, Inc.

(Golden Gem), owes Petitioner the money alleged in the Amended

Complaint based on two written contracts between Petitioner and

Golden Gem.

PRELIMINARY STATEMENT

On April 29, 2002, Petitioner filed an Amended Complaint

with the Offic e of Citrus License and Bond, Florida Department

of Agriculture and Consumer Services (Department) pursuant to

Section 601.66, Florida Statutes (2001). (All references to

statutes are to Florida Statutes (2001) unless otherwise

stated.) The Amended Compl aint seeks payment of the balance

allegedly due from Golden Gem based on fruit accounted but

unpaid for and based on fruit for which Golden Gem has not

accounted.

By letter dated August 1, 2002, the Department referred the

matter to DOAH to conduct an a dministrative hearing. Neither of

the Respondents in this case appeared at the administrative

hearing.

At the hearing, Petitioner presented the testimony of three

witnesses and submitted four exhibits for admission into

evidence. The identity of the wi tnesses and exhibits and any

attendant rulings, are set forth in the official record of this

proceeding. Petitioner did not request a transcript of the

administrative hearing.

FINDINGS OF FACT

1. During the citrus growing season of 2000 - 2001, Golden

Gem was a citrus fruit dealer defined in Subsection 601.03(8)

and was licensed and bonded in accordance with Chapter 601.

Golden Gem operated a packinghouse in Alturas, Florida, and

regularly purchased citrus fruit for sale in the fresh fruit

market. Fid elity & Deposit Company of Maryland (Fidelity) is

the surety on the fruit dealer's bond issued to Golden Gem for

the 2000 - 2001 season.

2. On September 14, 2000, Petitioner and Golden Gem

entered into Contract No. AS - 7199. The contract provided, in

rele vant part, that Petitioner was to deliver Valencia oranges

and other citrus fruit to Golden Gem and that Golden Gem was to

handle, pack, ship, sell, and market the fresh fruit provided by

Petitioner.

3. On May 9, 2001, Petitioner and Golden Gem entered into

Contract No. AS - 7208. The contract provided, in relevant part,

that Petitioner was to deliver Valencia oranges to Golden Gem

and that Golden Gem was to handle, pack, ship, sell, and market

the fresh fruit provided by Petitioner.

4. Contracts AS - 71 99 and AS - 7208 require Golden Gem to

detail and account for all the Valencia oranges delivered by

Petitioner and packed by Golden Gem. Each contract provides for

attorney's fees to the prevailing party.

5. Petitioner delivered 115,740 boxes of Valencia o ranges

to Golden Gem and Golden Gem processed all 115,740 boxes.

Golden Gem packed the oranges into 182,650 cartons but accounted

to Petitioner for only 159,731 cartons.

6. Golden Gem collected $1,172,715.40 for 159,731 cartons

of Petitioner's Valencia oranges. Golden Gem was entitled to

deduct expenses for packing, shipping, and handling in the total

amount of $630,475.10. Golden Gem owed a net payment to

Petitioner of $542,240.30. Golden Gem paid $518,284.82 to

Petitioner. The balance owed for the fruit accounted for by

Golden Gem is $23,955.48.

7. Golden Gem owes Petitioner an additional $85,757.36 for

the proceeds of an additional 22,919 cartons of Valencia oranges

for which Golden Gem has not accounted to Petitioner. The

amount due is net aft er adjusting the gross price for handling

charges that Golden Gem is entitled to under the terms of the

contracts. Golden Gem owes Petitioner a total amount of

$109,712.84 for Valencia oranges that Petitioner delivered to

Golden Gem in the 2000 - 2001 shipp ing season.

8. Petitioner is the prevailing party. Petitioner

incurred reasonable attorney's fees of $10,570.00 and costs of

$398.24.

CONCLUSIONS OF LAW

9. DOAH has jurisdiction over the parties and the subject

matter of this proceeding pursuant to Se ction 120.57(1). DOAH

provided the parties with adequate notice of the administrative

hearing. Neither Golden Gem nor Fidelity appeared at the

hearing or otherwise submitted any evidence.

10. The burden of proof is on Petitioner. Florida

Department of Transportation v. J.W.C. Company, Inc. , 396 So. 2d

778 (Fla. 2d DCA 1981). Petitioner must show by a preponderance

of the evidence that it is entitled to the remedy claimed in the

Amended Complaint.

11. Petitioner satisfied its burden of proof. Golden Gem

is a licensed citrus fruit dealer that breached the relevant

contracts by failing to make proper payment and account for

fruit that Petitioner delivered to Golden Gem. Sections 601.03,

601.64, 601.65 and 601.69.

12. Sections 601.65 and 601.69 requi re Golden Gem to

account for all fruit delivered by Petitioner. Golden Gem has

breached its duty to account for every piece of fruit under

Sections 601.64 and 601.69.

13. Petitioner argues that it is entitled to attorney's

fees and costs pursuant to S ection 601.61(2). Section 601.61(2)

provides that if a dealer violates Chapter 601 the dealer is

liable to the injured party for the full amount of damages. In

Holly Hill Fruit Products, Inc. v. Bob Station, Inc. , 275 So. 2d

583 (Fla. 2d DCA 1973), the c ourt reversed the Department's

final order because the Department failed to adjudicate the

claimant's right to interest under the contract.

14. The contracts in this case authorize the prevailing

party to collect reasonable attorney's fees and costs. H owever,

fees and costs, unlike principal and interest, are not damages

within the meaning of Section 601.61(2). Fees and costs are

expenses incurred in collecting damages. The undersigned lacks

jurisdiction to enforce a contractual right to fees and cost s in

the absence of express statutory authority to do so.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department enter a Final Order

adopting the findings and conclusions in this Recommended Or der

and requiring Respondents to pay Petitioner the sum of

$109,712.84.

DONE AND ENTERED this 25th day of October, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL MANRY

Administrative Law Judge

Division of Administrat ive Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of Octob er, 2002.

COPIES FURNISHED :

Kathy Alves

Fidelity & Deposit Company of Maryland

Post Office Box 87

Baltimore, Maryland 21203

Golden Gem Growers, Inc.

Post Office Drawer 9

Umatilla, Florida 32784

Maggie Evans, Esquire

131 Waterman Avenue

Mount Dora , Florida 32757

Brenda D. Hyatt, Bureau Chief

Department of Agriculture

and Consumer Services

500 Third Street, Northwest

Post Office Box 1072

Winter Haven, Florida 33882 - 1072

Brandon J. Rafool, Esquire

Post Office Box 7286

Winter Haven, Florida 338 83 - 7286

Honorable Charles H. Bronson

Commissioner of Agriculture

Department of Agriculture

and Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

Richard Ditschler, General Counsel

Department of Agriculture

and Consume r Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

Brenda D. Hyatt

Bureau of License and Bond

Department of Agriculture

407 South Calhoun Street

Mayo Building, Mail Stop 38

Tallahassee, Florida 32399 - 0800

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.