12-001967
Action Sod And Landscape, Llc vs.
Terra Bella And Associates, Inc., And Great American Insurance Company, As Surety
Status: Closed
Recommended Order on Wednesday, September 5, 2012.
Recommended Order on Wednesday, September 5, 2012.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8ACTION SOD AND LANDSCAPE, LLC, )
14)
15Petitioner, )
17)
18vs. ) Case No. 12 - 1967
25)
26TERRA BELLA AND ASSOCIATES, )
31INC., AND GREAT AMERICAN )
36INSURANCE COMPANY, AS SURETY, )
41)
42Respondents. )
44)
45RECOMMENDED ORDER
47Pursuant to notice, a hearing was con ducted in this case on
59August 17, 2012 , by video teleconference at sites in Miami and
70Tallahassee, Florida , before Administrative Law Judge June C.
78McKinney of the Divi sion of Administrative Hearings, pursuant to
88the authority set forth in s ections 120.569 and 120.57(1),
98Florida Statutes .
101APPEARANCES
102For Petitioner : Barbara Callado , President
108Action Sod and Landscape, LLC.
113Post Office Bo x 833143
118Miami, F loridaa 33283 - 3143
124For Respondent: D ennis Hall , President
130Terra Bella and Associates, Inc.
135Post Offic Box 22397
139Hialeah, F lorida 33002
143For Respondent : Great Americ an Insurance Company
151No Appearance
153STATEMENT OF THE ISSUE
157Whether the Respondent Terra Bella and Associates, Inc. ,
165owes the Petitioner $17, 806.20 for sod purchased from
174Petitioner , Ac tion Sod and Landscape, LLC.
181PRELIMINARY STATEMENT
183Th is is an action under the Agricultural Bond and L icensure
195Law , sections 604.15 - 604 .34, Florida Statutes. On or about
206February 22, 2012, Action Sod and Landscape, LLC , ( " Petitioner "
216or " Action Sod " ) filed a complaint with the Florida Department
227of Agricult ure and Consumer Services ( " Department " ) alleging
237that Terra Bella and Associates, Inc. , ( " Respondent " or " Terra
247Bella " ) and Great American Insurance Company, as Surety
256(hereinafter " Co - Respondent " or " Great American " ) are indebted
266to Petitioner in the sum of $ 16,756. 20 for sod sold to
280Respondent during the period from November 2011 to December
2892011. Respondent filed an answer denying the claim and disputing
299the allegations .
302O n May 31, 2012 , t his matter was forwarded to the Division
315of Administrative Hearin gs to conduct a formal hearing. On
325June 13, 2012 , the undersigned issued an Order scheduling the
335hearing. This matter was set for hearing on August 17, 2012,
346and t he final hearing was held by v ideo teleconference at the
359scheduled time and date. Both par ties appeared at hearing.
369At the final hearing, Petitioner testified on her own
378behalf . Respondent also testified on his own behalf and
388presented the testimony of Ricky McIntosh. Respondent ' s
397Composite Exhibit 1 was offered and received into evidence.
406The proceeding was recorded but not transcribed.
413Petitioner timely filed a Proposed R ecomm ended O rder , which has
425been duly considered in preparation of this Recommended Order.
434Terra Bella did not file a post - hearing submittal.
444FINDINGS OF FACT
4471. Acti on Sod is a 25 - year - old business that sells plants
462and sod for lawn and landscaping.
4682. Terra Bella is a construction landscape maintenance
476company that has been in existence since 2004.
4843. Great American was the surety for Terra Bella during
4942011.
4954. In the lat t er part of 2011, Action Sod sold and
508invoiced Terra Bella the following sod orders: Invoice 114825
517on November 16, 2011 , for Vero Beach in the amo unt of $1,979.50;
531Invoice 114828 for Parkland Heron Bay on November 16, 2011 , in
542the amount of $ 1,979.50; Invoice 114875 for Parkland on November
55416, 2011, in the amount of $2,268.40 ; Invoice 115360 for Pickup
566at Okechobbe Farm on November 21, 2011 , in the amount of
5771,455.20; Invoice 116151 for Harron Beach on November 29, 2011,
588in the amount of 3,85 2.00; Invoice 116350 for Enin 5613480172 on
601December 1, 2011, in the amount of $3,852.00; and Invoice 116880
613for Pickup at Okechobbe Farm on December 6, 2011, in the amount
625of $1,369.60 .
6295. Action Sod expected payment of each invoice within 30
639days from date of pick up or delivery.
6476. After Barbara Callado Lopez ( " Lopez " ) , Action Sod ' s
659President and Director, did not receive payment for the
668outstanding November and December invoices totaling $ 26,396.90 ,
677she called Terra Bella repeated ly to request payme nt.
6877. On January 24, 2012, Terra Bella paid Action Sod
697$9 , 640.00 for Invoices 113134, 113750, 114132, and 114626 ,
706leaving an outstanding balance of $16,756.20 .
7148. On February 22, 2012 , Action Sod filed a claim against
725Terra Bella with the Department because $16,756.20 had not been
736paid. Action Sod ultimately amended the claim to $16,806.20 to
747include the remaining monies owed for sod purchased plus the
757$50.00 filing fee for a claim .
7649. On February 29, 2012, Lopez went to Terra Bella ' s
776office reques ting payment. The parties had a heated argument
786about the sod and monies owed. Lopez requested payment in the
797amount of $16,756.20. Terra Bella provided a counter offer to
808Action Sod of $13,006.20, which was calculated by subtracting
818$750.00 for pallets returned and $3 , 000.00 for the sod that
829didn ' t pass inspection and had to be replaced.
83910. Even though Lopez was dissatisfied with the offered
848amount of $13,006.20, she accepted it. Terra Bella paid Action
859Sod $13,006.20 with c heck #5098 , which stated in the memo
871section, " Final Payment of Agreed Upon Open Bal. "
87911. During the meeting, Lopez also signed six Final Waiver
889and Release of Lien forms for the following properties: Vero
899Lago, LLC,; The Ranches at Cooper City, LLC; Parkland Reserve,
909LLC; Mi ami Dade Aviation Department; Heron Bay; and Monterra
919Clubhouse. The waivers neither provided invoice numbers nor
927identified and described the property locations as listed on the
937invoices. Each waiver provided in relevant part the following :
947The undersi gned lienor, received FINAL
953payment and her e by waives and releases it s
963lien and right to claim a lien for labor,
972services, equipment, or materials furnished
977to Terra Bella & Associated, Inc. , though
984February 29, 2012 , on the . . . project. . .
995to the follo wing property . . .
100312. Action Sod cashed check #5098 and therefore Terra
1012Bella is not indebted to Petitioner for any sod sold in November
1024and December of 2011 .
1029CONCLUSIONS OF LAW
103213. The Division of Administrative Hearings has
1039jurisdiction over the su bject matter of this proceeding and the
1050parties thereto pursuant to Sections 120.569 and 120.57(1),
1058Florida Statutes.
106014. Section 604.15 provides in pertinent part:
1067For the purpose of ss 604.15 - 604.34, the
1076following words and terms, when used, shall
1083be construed to mean:
1087(1 ) " Agricultural products " means the
1093natural products of the farm, nursery,
1099grove, orchard, vineyard, garden, and apiary
1105(raw or manufactured); sod; horticulture;
1110hay; livestock; milk and milk products;
1116poultry and poultry products; t he fruit of
1124the saw palmetto (meaning the fruit of the
1132Serenoa repens); limes (meaning the fruit
1138Citrus aurantifolia, variety Persian,
1142Tahiti, Bearss, or Florida Key limes); and
1149any other nonexempt agricultural products
1154produced in the state, except tobacc o,
1161sugarcane, tropical foliage, timber and
1166timber byproducts, forest products as
1171defined in s. 591.17 , and citrus other than
1179limes.
1180(2) " Dealer in agricultural products " means
1186any person, partnership, corporation, or
1191other business entity, whether itinerant or
1197domiciled within this state, engaged within
1203this state in the business of purchasing,
1210receiving, or soliciting agricultural
1214products from the producer or the producer ' s
1223agent or representative for resale or
1229processing for sale; acting as an agent for
1237such producer in the sale of agricultural
1244products for the account of the producer on
1252a net return basis; or acting as a
1260negotiating broker between the producer or
1266the producer ' s agent or representative and
1274the buyer.
1276* * *
1279(9) " Producer " means any grower of
1285agricultural products produced in the state.
129115. Based on the findings of fact herein, Terra Bel l a is a
1305dealer in agricultural products and Action Sod is a producer
1315pursuant to section 604.15(2) and (9 ).
132216. Dealers in agricultural products are required to be
1331licensed by the Department. § 604.16, Fla. Stat. In order to
1342be licensed, dealers must de liver a surety bond or certificate
1353of deposit to the Department, which " shall be conditioned to
1363secure the faithful accounting for and payment to producers or
1373their agents or representatives of the proceeds of all
1382agricultural products handled or purchased by such dealer. "
1390§ 604.20(1), Fla. Stat. Terra Bella has a surety bond issued by
1402Great American Insurance Company .
140717. Producers are permitted to file a complaint against
1416dealers and their sureties for damage claimed as a result of the
1428breach of this condition. § 604.21(1), Fla. Stat.
143618. The complainant in a proceeding initiated pursuant to
1445section 604.21(1) has the burden of proving by a preponderance
1455of the evidence the entitlement to the amounts sought to be
1466recovered. See Florida Dep ' t of Trans p . v. J.W.C. Co., Inc. ,
1480396 So. 2d 778, 787 (Fla. 1st DCA 1981). However, even though
1492the complainant bears the ultimate burden of proving the truth
1502of the claim, once the complainant has made a prima facie case
1514of entitlement to recover, the dealer has t he obligation to come
1526forward with evidence to refute that entitlement. See id .
153619. Action Sod carried it s burden of proving a prima facie
1548case that Terra Bella purchased $16,756.20 of sod and owed t he
1561monies to Action Sod when the claim was filed .
157120. Terra Bella, nonetheless, produced sufficient evidence
1578to refute monies still being owed . A ccord and satisfaction
1589results when: (1) the parties mutually intend to effect a
1599settlement of an existing dispute by entering into a superseding
1609agreement; and (2) there is actual performance in accordance
1618with the new agreement. Compliance with the new agreement
1627discharges the prior obligations. Wolowitz v. Thoroughbred
1634Motors, Inc ., 765 So . 2d 920 (Fl a. 1st DCA 2000 ) .
164921. In this matter, t he record is clear that each prong
1661for the test of accord and satisfaction was met. O n
1672February 29, 2012, a dispute existed between Action Sod and
1682Terra Bella as to the amount of monies owed. At hearing,
1693Petitioner contend ed that Terra Bella still owes Action Sod
1703$2,824.8 0. However, the contention is rejected. T he record
1714shows that the parties reach ed an accord and r esolved the
1726dispute with an agreed amount of $13,006.20 , which was paid with
1738check #5098 . The fact that the check #5098 stated " Final
1749Payment of Agreed Upon Open Bal " further demonstrates the
1758agreement between the parties . Additionally, Action Sod signed
1767waiver and releases of final payments as superseding agreements .
1777Together the waivers and the accompanying payment of $13,006.20
1787discharge Terra Bella ' s pr ior obligation . Therefore, Terra
1798Bella is insulated from liability because Action Sod accept ed
1808the renegotiated amount , signed the waivers, and cashed check
1817#5098 , which constitutes accord and satisfaction .
1824RECOMMENDATION
1825Based on the foregoing Findings of Fact and Conclusions of
1835Law, it is RECOMMENDED that the Department of Agriculture and
1845Consumer Services enter a final order dismissing the complaint
1854of Action Sod and Landscape against Terra Bella and Associates.
1864DONE AND ENTERED this 5 th day of Septe mber , 20 12 , in
1877Tallahassee, Leon County, Florida.
1881S
1882JUNE C. McKINNEY
1885Administrative Law Judge
1888Division of Administrative Hearings
1892The DeSoto Building
18951230 Apalachee Parkway
1898Tallahassee, Florida 32399 - 3060
1903(850) 488 - 9675
1907Fax Filing (850) 921 - 6847
1913www.doah.state.fl.us
1914Filed with the Clerk of the
1920Division of Administrative Hearings
1924this 5 th day of September , 20 12 .
1933COPIES FURNISHED :
1936Christopher E. Green, Esquire
1940Department of Agriculture and
1944Consumer Services
1946Offi ce of Citrus License and Bond
1953Mayo Building, M - 38
1958Tallahassee, Florida 32399 - 0800
1963Lorena Holley, General Counsel
1967Department of Agriculture and
1971Consumer Services
1973Suite 520
1975407 South Calhoun Street
1979Tallahassee, Florida 32399 - 0800
1984Honorable Adam Putnam
1987Commissioner of Agriculture
1990Department of Agriculture and
1994Consumer Services
1996The Capital, Plaza Level 10
2001Tallahassee, Florida 32399 - 0810
2006Barbara Callado , President
2009Action Sod and Landscape, LLC
2014Post Office Box 833143
2018Miami, Florida 33283 - 3143
2023Dan Hurr elbrink
2026Great American Insurance Company
2030580 Walnut Street
2033Post Office Box 2119
2037Cincinnati, Ohio 45201 - 3180
2042Dennis Hall, President
2045Terra Bella and Associates, Inc.
2050PO Box 22397
2053Hialeah, Florida 33002
2056NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2062All parties h ave the right to submit written exceptions within
207315 days from the date of this Recommended Order. Any exceptions
2084to this Recommended Order should be filed with the agency that
2095will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 09/05/2012
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 08/28/2012
- Proceedings: (Petitioner's) Action Sod and Landscape, LLC Proposed Recommended Order filed.
- Date: 08/17/2012
- Proceedings: CASE STATUS: Hearing Held.
- Date: 08/14/2012
- Proceedings: Respondent's Hearing Exhibits (exhibits not available for viewing) filed.
- PDF:
- Date: 06/21/2012
- Proceedings: Agency's court reporter confirmation letter filed with the Judge.
- PDF:
- Date: 06/20/2012
- Proceedings: Undeliverable envelope returned from the Post Office. Remailed Notice of Hearing to correct address on June 21, 2012.
- PDF:
- Date: 06/14/2012
- Proceedings: Undeliverable envelope returned from the Post Office. 6/18/12 Corrected address of R. McIntosh and remailed IO, NOH, and PHO.
- PDF:
- Date: 06/13/2012
- Proceedings: Notice of Hearing by Video Teleconference (hearing set for August 17, 2012; 9:00 a.m.; Miami and Tallahassee, FL).
Case Information
- Judge:
- JUNE C. MCKINNEY
- Date Filed:
- 05/31/2012
- Date Assignment:
- 06/01/2012
- Last Docket Entry:
- 01/03/2013
- Location:
- Miami, Florida
- District:
- Southern
- Agency:
- ADOPTED IN TOTO
Counsels
-
Barbara Callado, President
Address of Record -
Christopher E. Green, Esquire
Address of Record -
Dennis Hall, President
Address of Record -
Dan Hurrelbrink
Address of Record