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.

Summary: Petitioner failed to prove that it was entitled to any additional payment from dealer for sale of sod. The Complaint should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ACTION SOD AND LANDSCAPE, LLC, )

)

Petitioner, )

)

vs. ) Case No. 12 - 1967

)

TERRA BELLA AND ASSOCIATES, )

INC., AND GREAT AMERICAN )

INSURANCE COMPANY, AS SURETY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was con ducted in this case on

August 17, 2012 , by video teleconference at sites in Miami and

Tallahassee, Florida , before Administrative Law Judge June C.

McKinney of the Divi sion of Administrative Hearings, pursuant to

the authority set forth in s ections 120.569 and 120.57(1),

Florida Statutes .

APPEARANCES

For Petitioner : Barbara Callado , President

Action Sod and Landscape, LLC.

Post Office Bo x 833143

Miami, F loridaa 33283 - 3143

For Respondent: D ennis Hall , President

Terra Bella and Associates, Inc.

Post Offic Box 22397

Hialeah, F lorida 33002

For Respondent : Great Americ an Insurance Company

No Appearance

STATEMENT OF THE ISSUE

Whether the Respondent Terra Bella and Associates, Inc. ,

owes the Petitioner $17, 806.20 for sod purchased from

Petitioner , Ac tion Sod and Landscape, LLC.

PRELIMINARY STATEMENT

Th is is an action under the Agricultural Bond and L icensure

Law , sections 604.15 - 604 .34, Florida Statutes. On or about

February 22, 2012, Action Sod and Landscape, LLC , ( " Petitioner "

or " Action Sod " ) filed a complaint with the Florida Department

of Agricult ure and Consumer Services ( " Department " ) alleging

that Terra Bella and Associates, Inc. , ( " Respondent " or " Terra

Bella " ) and Great American Insurance Company, as Surety

(hereinafter " Co - Respondent " or " Great American " ) are indebted

to Petitioner in the sum of $ 16,756. 20 for sod sold to

Respondent during the period from November 2011 to December

2011. Respondent filed an answer denying the claim and disputing

the allegations .

O n May 31, 2012 , t his matter was forwarded to the Division

of Administrative Hearin gs to conduct a formal hearing. On

June 13, 2012 , the undersigned issued an Order scheduling the

hearing. This matter was set for hearing on August 17, 2012,

and t he final hearing was held by v ideo teleconference at the

scheduled time and date. Both par ties appeared at hearing.

At the final hearing, Petitioner testified on her own

behalf . Respondent also testified on his own behalf and

presented the testimony of Ricky McIntosh. Respondent ' s

Composite Exhibit 1 was offered and received into evidence.

The proceeding was recorded but not transcribed.

Petitioner timely filed a Proposed R ecomm ended O rder , which has

been duly considered in preparation of this Recommended Order.

Terra Bella did not file a post - hearing submittal.

FINDINGS OF FACT

1. Acti on Sod is a 25 - year - old business that sells plants

and sod for lawn and landscaping.

2. Terra Bella is a construction landscape maintenance

company that has been in existence since 2004.

3. Great American was the surety for Terra Bella during

2011.

4. In the lat t er part of 2011, Action Sod sold and

invoiced Terra Bella the following sod orders: Invoice 114825

on November 16, 2011 , for Vero Beach in the amo unt of $1,979.50;

Invoice 114828 for Parkland Heron Bay on November 16, 2011 , in

the amount of $ 1,979.50; Invoice 114875 for Parkland on November

16, 2011, in the amount of $2,268.40 ; Invoice 115360 for Pickup

at Okechobbe Farm on November 21, 2011 , in the amount of

1,455.20; Invoice 116151 for Harron Beach on November 29, 2011,

in the amount of 3,85 2.00; Invoice 116350 for Enin 5613480172 on

December 1, 2011, in the amount of $3,852.00; and Invoice 116880

for Pickup at Okechobbe Farm on December 6, 2011, in the amount

of $1,369.60 .

5. Action Sod expected payment of each invoice within 30

days from date of pick up or delivery.

6. After Barbara Callado Lopez ( " Lopez " ) , Action Sod ' s

President and Director, did not receive payment for the

outstanding November and December invoices totaling $ 26,396.90 ,

she called Terra Bella repeated ly to request payme nt.

7. On January 24, 2012, Terra Bella paid Action Sod

$9 , 640.00 for Invoices 113134, 113750, 114132, and 114626 ,

leaving an outstanding balance of $16,756.20 .

8. On February 22, 2012 , Action Sod filed a claim against

Terra Bella with the Department because $16,756.20 had not been

paid. Action Sod ultimately amended the claim to $16,806.20 to

include the remaining monies owed for sod purchased plus the

$50.00 filing fee for a claim .

9. On February 29, 2012, Lopez went to Terra Bella ' s

office reques ting payment. The parties had a heated argument

about the sod and monies owed. Lopez requested payment in the

amount of $16,756.20. Terra Bella provided a counter offer to

Action Sod of $13,006.20, which was calculated by subtracting

$750.00 for pallets returned and $3 , 000.00 for the sod that

didn ' t pass inspection and had to be replaced.

10. Even though Lopez was dissatisfied with the offered

amount of $13,006.20, she accepted it. Terra Bella paid Action

Sod $13,006.20 with c heck #5098 , which stated in the memo

section, " Final Payment of Agreed Upon Open Bal. "

11. During the meeting, Lopez also signed six Final Waiver

and Release of Lien forms for the following properties: Vero

Lago, LLC,; The Ranches at Cooper City, LLC; Parkland Reserve,

LLC; Mi ami Dade Aviation Department; Heron Bay; and Monterra

Clubhouse. The waivers neither provided invoice numbers nor

identified and described the property locations as listed on the

invoices. Each waiver provided in relevant part the following :

The undersi gned lienor, received FINAL

payment and her e by waives and releases it s

lien and right to claim a lien for labor,

services, equipment, or materials furnished

to Terra Bella & Associated, Inc. , though

February 29, 2012 , on the . . . project. . .

to the follo wing property . . .

12. Action Sod cashed check #5098 and therefore Terra

Bella is not indebted to Petitioner for any sod sold in November

and December of 2011 .

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the su bject matter of this proceeding and the

parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes.

14. Section 604.15 provides in pertinent part:

For the purpose of ss 604.15 - 604.34, the

following words and terms, when used, shall

be construed to mean:

(1 ) " Agricultural products " means the

natural products of the farm, nursery,

grove, orchard, vineyard, garden, and apiary

(raw or manufactured); sod; horticulture;

hay; livestock; milk and milk products;

poultry and poultry products; t he fruit of

the saw palmetto (meaning the fruit of the

Serenoa repens); limes (meaning the fruit

Citrus aurantifolia, variety Persian,

Tahiti, Bearss, or Florida Key limes); and

any other nonexempt agricultural products

produced in the state, except tobacc o,

sugarcane, tropical foliage, timber and

timber byproducts, forest products as

defined in s. 591.17 , and citrus other than

limes.

(2) " Dealer in agricultural products " means

any person, partnership, corporation, or

other business entity, whether itinerant or

domiciled within this state, engaged within

this state in the business of purchasing,

receiving, or soliciting agricultural

products from the producer or the producer ' s

agent or representative for resale or

processing for sale; acting as an agent for

such producer in the sale of agricultural

products for the account of the producer on

a net return basis; or acting as a

negotiating broker between the producer or

the producer ' s agent or representative and

the buyer.

* * *

(9) " Producer " means any grower of

agricultural products produced in the state.

15. Based on the findings of fact herein, Terra Bel l a is a

dealer in agricultural products and Action Sod is a producer

pursuant to section 604.15(2) and (9 ).

16. Dealers in agricultural products are required to be

licensed by the Department. § 604.16, Fla. Stat. In order to

be licensed, dealers must de liver a surety bond or certificate

of deposit to the Department, which " shall be conditioned to

secure the faithful accounting for and payment to producers or

their agents or representatives of the proceeds of all

agricultural products handled or purchased by such dealer. "

§ 604.20(1), Fla. Stat. Terra Bella has a surety bond issued by

Great American Insurance Company .

17. Producers are permitted to file a complaint against

dealers and their sureties for damage claimed as a result of the

breach of this condition. § 604.21(1), Fla. Stat.

18. The complainant in a proceeding initiated pursuant to

section 604.21(1) has the burden of proving by a preponderance

of the evidence the entitlement to the amounts sought to be

recovered. See Florida Dep ' t of Trans p . v. J.W.C. Co., Inc. ,

396 So. 2d 778, 787 (Fla. 1st DCA 1981). However, even though

the complainant bears the ultimate burden of proving the truth

of the claim, once the complainant has made a prima facie case

of entitlement to recover, the dealer has t he obligation to come

forward with evidence to refute that entitlement. See id .

19. Action Sod carried it s burden of proving a prima facie

case that Terra Bella purchased $16,756.20 of sod and owed t he

monies to Action Sod when the claim was filed .

20. Terra Bella, nonetheless, produced sufficient evidence

to refute monies still being owed . A ccord and satisfaction

results when: (1) the parties mutually intend to effect a

settlement of an existing dispute by entering into a superseding

agreement; and (2) there is actual performance in accordance

with the new agreement. Compliance with the new agreement

discharges the prior obligations. Wolowitz v. Thoroughbred

Motors, Inc ., 765 So . 2d 920 (Fl a. 1st DCA 2000 ) .

21. In this matter, t he record is clear that each prong

for the test of accord and satisfaction was met. O n

February 29, 2012, a dispute existed between Action Sod and

Terra Bella as to the amount of monies owed. At hearing,

Petitioner contend ed that Terra Bella still owes Action Sod

$2,824.8 0. However, the contention is rejected. T he record

shows that the parties reach ed an accord and r esolved the

dispute with an agreed amount of $13,006.20 , which was paid with

check #5098 . The fact that the check #5098 stated " Final

Payment of Agreed Upon Open Bal " further demonstrates the

agreement between the parties . Additionally, Action Sod signed

waiver and releases of final payments as superseding agreements .

Together the waivers and the accompanying payment of $13,006.20

discharge Terra Bella ' s pr ior obligation . Therefore, Terra

Bella is insulated from liability because Action Sod accept ed

the renegotiated amount , signed the waivers, and cashed check

#5098 , which constitutes accord and satisfaction .

RECOMMENDATION

Based on 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 the complaint

of Action Sod and Landscape against Terra Bella and Associates.

DONE AND ENTERED this 5 th day of Septe mber , 20 12 , in

Tallahassee, Leon County, Florida.

S

JUNE C. McKINNEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5 th day of September , 20 12 .

COPIES FURNISHED :

Christopher E. Green, Esquire

Department of Agriculture and

Consumer Services

Offi ce of Citrus License and Bond

Mayo Building, M - 38

Tallahassee, Florida 32399 - 0800

Lorena Holley, General Counsel

Department of Agriculture and

Consumer Services

Suite 520

407 South Calhoun Street

Tallahassee, Florida 32399 - 0800

Honorable Adam Putnam

Commissioner of Agriculture

Department of Agriculture and

Consumer Services

The Capital, Plaza Level 10

Tallahassee, Florida 32399 - 0810

Barbara Callado , President

Action Sod and Landscape, LLC

Post Office Box 833143

Miami, Florida 33283 - 3143

Dan Hurr elbrink

Great American Insurance Company

580 Walnut Street

Post Office Box 2119

Cincinnati, Ohio 45201 - 3180

Dennis Hall, President

Terra Bella and Associates, Inc.

PO Box 22397

Hialeah, Florida 33002

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties h ave 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.