06-003219 Lionel Lagrow vs. Chapman Fruit Company And The Ohio Casualty Insurance Company, As Surety Status: Closed Recommended Order on Wednesday, November 7, 2007.

Summary: Petitioner failed to prove that the contract required that Respondent harvest the fruit; and even if such an obligation existed, there was an insufficient crop to harvest.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LIONEL LAGROW , )

)

Petitioner , )

)

vs. ) Case No. 06 - 3219

)

CHAPMAN FRUIT COMPANY , INC., )

AND THE OHIO CASUALTY INSURANCE )

COMPANY, AS SURETY , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on July 31, 2007, by telephone conference before Carolyn S.

Holifield, Administrative Law Judge of the Division of

Administrative Hearings. The parties and wi tnesses were in

Sebring, Florida , and the Administrative Law Judge was in

Tallahassee, Florida.

APPEARANCES

For Petitioner: W. James Kelly, Esquire

Kelly, Brush, Pujol, and Coyle, P.A.

Post Office Box 2480

Lakeland, F lorida 338 06

For Respondent: Kenneth B. Evers, Esquire

Kenneth B. Evers, P.A.

424 W est Main Street

Post Office Drawer 1308

Wauchula, Florida 33873 - 1308

STATEMENT OF THE ISSUE

The issue is whether Respondent owes Petitioner $13,853.00

for failure to harvest Petitioner ' s 2004 Valencia orange crop,

as alleged in the C omplaint.

PRELIMINARY STATEMENT

Petitioner, Lionel LaGrow (hereinafter referred to as

"Petitioner" or "Mr. LaGrow") , filed a Complaint with the

Commissioner of Agriculture on or about June 7, 2006. The

Complaint alleged that Respondent, Chapman Fruit Company, Inc.,

is indebted to Petitioner for $13,853.00 for its failure to pick

Petitioner ' s fruit pursuant to the C ontract between the parties.

Respondent filed an answer to the Complain t in which it denied

the validity of Petitioner ' s claim.

The matter was initially transmitted to the Division of

Administrative Hearings on August 24, 2006. Pursuant to notice,

the matter was set for hearing on October 31, 2006, in Sebring,

Florida. The hearing was convened as noticed, but was adjourned

after Petitioner failed to appear at the hearing. Thereafter,

on November 6, 2006, the undersigned issued a Recommended Order

of Dismissal.

The Recommended Order of Dismissal notified the parties of

thei r right to submit written exceptions to the Recommended

Order of Dismissal. Petitioner timely sent a letter to the

Commissioner of Agriculture, indicating that he (Petitioner) had

not received actual notice of hearing. The Commissioner of

Agriculture the n remanded the matter to the Division of

Administrative Hearings for further proceedings. An evidentiary

hearing on the notice issue d was conducted on January 22, 2007.

Following that hearing, an Order Rescinding the Recommended

Order of Dismissal and Re opening the Case was issued. The final

hearing on the underlying Complaint was scheduled for June 12,

2007, but was continued at the request of Respondent. The

matter was then rescheduled and held as noted above.

At hearing, Petitioner testified on his o wn behalf and

called one witness. Respondent presented the testimony of one

witness. The parties ' Joint Exhibits 1 through 6 and

Respondent ' s Exhibit 1 were received into evidence. The record

was left open to allow Respondent to late - file its exhibit. The

exhibit was filed and is deemed a part of the record in this

case.

No t ranscript of the proceeding was provided. Both parties

timely filed P roposed R ecommended O rders which have been

considered in preparation of this Recommended Order.

FINDINGS OF F ACT

1. Petitioner, Lionel LaGrow , is a resident of Highlands

County, Florida.

2. Respondent, Chapman Fruit Company, Inc. (hereinafter

" Respondent " or " Chapman " ), is a Florida corporation with its

principal place of business in Hardee County, Florida. Chapman

is a duly licensed fruit buyer in the State of Florida and is

owned by Ray Chapman (hereinafter referred to as " Mr. Chapman " ).

3. Mr. LaGrow owns and operates a 26 - acre grove in

Highlands County, Florida. At all times relevant to this

proceedi ng, Mr. LaGrow ' s grove contained varieties of citrus

referred to as " Earlies ," " Mids , " and " Valencias. " The Earl ies

and Mid s varieties are picked early in each fruit season and the

Valencias are picked late in each fruit season.

4. At all times relevant to this proceeding Reggie Cooper

(hereinafter referred to as " Mr. Cooper " ) was an employee of

Chapman. Mr. Cooper was authorized by Chapman to enter into

binding agreements and to make arrangements for and supervise

the picking and hauling of Mr. LaGrow ' s citrus.

5. Mr. LaGrow and Chapman entered into a Pick and Haul

Contract (hereinafter referred to as "Contract") dated

November 9, 2001, by which Mr. LaGrow agreed to sell , and

Chapman agreed to purchase , fruit grown on the 26 - a cre tract

located in Highla nds County, Florida , for shipping seasons

2001 - 2002, 2002 - 2003, and 2003 - 2004. The Contract did not

provide prices within the Agreement itself for picking and

hauling the fruit. The parties verbally agreed to prices for

picking and hauling at the time of each year ' s harvest.

6. The Contract , as written , was a " Delivered - In "

Contract, meaning that Mr. LaGrow retained the right to arrange

for picking and hauling the fruit at any time during the term of

the Contract.

7. Mr. Cooper made arrangements for an d supervised the

picking and hauling of Mr. LaGrow ' s citrus. After the citrus

was picked, Chapman provided Mr. LaGrow statements that

accurately and fairly account for all fruit harvested by

Chapman ' s contracted harvester. The statements showed the gross

income, the costs of picking and h aul ing , as well as other

expenses , and the net income to Mr. LaGrow.

8. The parties followed the procedure described in

paragraph 7 , beginning in November 2001 of the 2001 - 2002 citrus

shipping season through the harvest ing of the Earlies and Mids

in the 2003 - 2004 fruit season.

9. There were 3 , 531 boxes of Earlies and Mids harvested by

Chapman ' s contractor in November 2001 for the 2001 - 2002 citrus

shipping season from the LaGrow property. When multiplied by

the total p ounds of solids (19,881.16), a gross purchase price

of $15,904.93 resulted. Pick ing and h aul ing in the amount of

$2.00 per box was deducted leaving $8,180.86 payable to

Mr. LaGrow. Chapman tendered a check in the amount of $8,180.86

to Mr. LaGrow.

10. There were 3 , 103 boxes of Valencias harvested by

Chapman ' s contractor in March 2002 for the 2001 - 2002 citrus

shipping season from the LaGrow property. When multiplied by

the total pounds of s olids (21,085.57), a gross purchase price

of $20,031.29 resulted . P icking and hauling in the amount of

$2.20 per box was deducted leaving $13,134.87 payable to

Mr. LaGrow. Chapman tendered a check in the amount of

$13,134.87 to Mr. LaGrow.

11. There were 1 , 785 boxes of Earlies and Mids harvested

by Chapman ' s cont ractor in the 2002 - 2003 citrus shipping season

from the LaGrow property. When multiplied by the total pounds

of solids (11,063.98), a gross purchase price of $10,068.22

resulted. P icking and hauling in the amount of $2.86 per box

was deducted leaving $4, 628.44 payable to Mr. LaGrow. Chapman

tendered a check in the amount of $4,628.44 to Mr. LaGrow.

12. There were 1 , 594 boxes of Valencias harvested by

Chapman ' s contractor in the 2002 - 2003 citrus shipping season

from the LaGrow property. When multiplied by the total pounds

of solids (10,582.23), a gross purchase price of $10,053.12

resulted. P icking and hauling in the amount of $2.77 per box

was deducted leaving $5,601.87 payable to Mr. LaGrow. Chapman

tendered a check in the amount of $5,601.87 to Mr. LaGrow.

13. There were 316 boxes of Earlies and Mids harvested by

Chapman ' s contractor in the 2003 - 2004 citrus shipping season by

Chapman ' s contractor from the LaGrow property. When multiplied

by the total pounds of solids (1,847.46), a gross purchase price

of $1,385.59 resulted. P icking and hauling in the amount of

$3.55 per box was deducted leaving $252.57 payable to

Mr. LaGrow. Chapman tendered a check in the amount of $252.57

to Mr. LaGrow.

14. There were no problems or disputes between Chapman a nd

Mr. LaGrow regarding the harvesting of the citrus until the

2003 - 2004 Valencia crop was to be picked.

15. All harvesting of Mr. LaGrow 's fruit during the

Contract period was performed by Chapman ' s contracted harvester.

There was no fruit harvested fr om the LaGrow property by any one

other than Chapman ' s contracted harvester during the Contract

period.

16. During the Contract period there was a steady decline

in production from the LaGrow grove property. From the first

year of the Contract to the second year of the Contract there

was a nearly 51 percent reduction in the number of net boxes

harvested. From the second year of the Contract to the third

year of the Contract , with respect to the Earlies and Mids ,

there was an 82.3 percent reduction in the number of net boxes

harvested.

17. There were an insufficient number of boxes of Valencia

oranges on the LaGrow property available for harvest in 2004.

Had Chapman harvested, or arranged to harvest the 2004 Valencia

crop, once picking and hauling cha rges were applied, a negative

balance ow ed would have resulted.

18. Mr. Cooper, on behalf of Chapman, made multiple

attempts to arrange for harvesting of the 2004 Valencia crop,

including , but not limited to, contacting M.E. Stephens, IV, who

declined t o harvest the fruit based on the quantity available

for harvest. For the same reason, other harvesters advised

Mr. Cooper that they could not harvest the LaGrow 2004 Valencia

crop. Though unsuccessful, Mr. Cooper ' s efforts to have the

crop harvested were reasonable under the circumstances.

19. Mr. Cooper never told Mr. LaGrow that because of the

quantity of the Valencia oranges in 2004, he was unable to find

a contractor to harvest the fruit.

20. Although it became apparent that Mr. Cooper had not

arrang ed for the Valencia oranges to be harvested, Mr. LaGrow

never contacted Mr. Chapman or Mr. Cooper.

21. Under the subject Contract , Mr. LaGrow could harvest

or make arrangements to have the Valencia oranges harvested.

However, Mr. LaGrow failed to take st eps in 2004 to have the

Valencia oranges harvested and sold.

22. Mr. LaGrow ' s Complaint contends that Chapman owes him

$13,853.00 for failing to harvest and sell the Valencia oranges

in the 2004 season.

23. In Petitioner ' s P roposed R ecommended O rder, he se eks

$9,586.50 in " damages. "

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to Sections 120.569 and 120.57, Florida

Statutes (200 7 ).

25. At all times relevan t to this proceeding, Mr. LaGrow

was a " producer " pursuant to Subsection 601.03(29) , Florida

Statutes (2006) , 1/ and Chapman was a " buyer " pursuant to

Subsection 601.03(6) , Florida Statutes .

26. The burden of proof is on the party asserting the

affirmative of an issue before an administrative tribunal.

Department of Banking and Finance v. Osborne Stern and Co. ,

670 So. 2d 932 (Fla. 1996); Florida Department of Transportation

v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1 st DCA 1981). As

Petitioner, Mr. L aGrow bears the burden of demonstrating by a

preponderance of the evidence that Chapman is indebted to him

for the 2004 Valencia oranges that were not harvested.

Petitioner has failed to meet his burden.

27. The preponderance of the evidence establishe d that the

Contract between Mr. LaGrow and Chapman did not obligate Chapman

to harvest or arrange to harvest the fruit during the Contract

period. Further, the evidence established that pursuant to the

Contract , LaGrow was at all times free to make arrang ements for

harvest ing any of the citrus on his property, including the 2004

Valencia crop.

28. Assuming arguendo that the Contract required Chapman

to harvest and sell all the citrus on the LaGrow property,

P etitioner did not establish that the 2004 Valen cia crop would

have netted the price he claims Chapman owes him.

29. The undisputed evidence established that the citrus

production from the LaGrow property was in a state of continuing

decline during the Contract period as evidenced by the

harvesting of o nly 316 boxes of Earlies and Mids in the

2003 - 2004 season. The undisputed evidence also established that

there was a similar decline in the quantity of Valencia fruit

available to be harvested in 2004 and that had it been

harvested, it would have resulted in a negative balance owed.

30. In summary, Chapman had no legal obligation to harvest

the 2004 Valencia crop. Moreover, even if there were such an

obligation to harvest, the quantity of fruit was insufficient to

permit harvest, thus relieving Chapman of any obligation with

respect to same and rendering performance by Chapman impossible.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is:

RECOMMENDED that the Commissioner of Agriculture enter a

final order dismissing Pe titioner ' s Complaint .

DONE AND ENT ERED this 7th day of November , 2007 , in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Ap alachee 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 7th day of November , 2007 .

ENDNOTE

1/ All references are to 200 6 Florida Statutes, unless

otherwise indicated.

COPIES FURNISHED :

Christopher E. Green

Department of Agriculture and

Consumer Services

Office of Citrus License and Bond

Mayo Building, M - 38

Tallahassee, Florida 32399 - 0800

Douglas Gibbe

The Ohio Casualty Insurance Company

136 North Third Street

Hamilton, Ohio 45025

W. James Kelly, Esquire

Kelly, Brush, Pujol & Coyle, P.A.

Post Office Drawer 2480

Lakeland, Florida 33806

Kenneth B. Evers, Esquire

Kenneth B. Evers, P.A.

424 West Main Str eet

Post Office Drawer 1308

Wauchula, Florida 33873 - 1308

Richard Ditschler, General Counsel

Department of Agriculture and

Consumer Services

407 South Calhoun Street, Suite 520

Tallahassee, Florida 32399 - 0800

Honorable Charles H. Bronson

Commissi oner of Agriculture

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

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.