15-003566 Jwd Trees, Inc. vs. Landscape Service Professionals, Inc., And The Gray Insurance, As Surety Status: Closed Recommended Order on Friday, March 4, 2016.

Summary: Respondent's obigation to pay Petitioner $42,567.80 (includes Pet's filing fee for claim filed with Department) where it accepted tender of trees and did not timely revoke its acceptance or timely notify Petitioner of any alleged nonconformity.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JWD TREES, INC.,

Petitioner,

vs. Case No. 15 - 3566

LANDSCAPE SERVICE PROFESSIONALS,

INC., AND THE GRAY INSURANCE, AS

SURETY,

Respondents.

_______________________________/

RECOMMEN DED ORDER

Pursuant to notice, a final hearing in this cause was held

in Fort Myers, Florida, on December 10, 11, and 21, 2015, before

Lynne A. Quimby - Pennock, a designated Administrative Law Judge of

the Division of Administrative Hearings (Division).

APP EARANCES

For Petitioner: Sonia M. Diaz, Esquire

Coleman, Hazzard & Taylor, P.A.

Suite 304

2640 Golden Gate Parkway

Naples, Florida 34105

For Respondent: Mark John Labate, Esquire

Mark J. Labate, P.A.

2748 East Commercial Boulevard

Fort Lauderdale, Florida 33308

STATEMENT OF THE ISSUE S

Whether Petitioner, JWD Trees, Inc., is entitled to payment

from Landscape Service Professionals, Inc . , and the Gray

Insurance Company, as Surety, pursuant to sections 604.15 t hrough

604.34, Florida Statutes (2014) , for the purchase of trees; and,

if so, what amount.

PRELIMINARY STATEMENT

On May 4, 2015, JWD Trees, Inc. (JWD ) , filed an Agricultural

Produc ts Dealer Claim Form (claim) with the Florida Department of

Agriculture and C onsumer Services (Department), alleging that

Landscape Service Professionals, Inc. (Landscape) and its sur ety,

The Gray Insurance Company (Insurance Company) , owed JWD payment

for 210 slash pine trees. The claim was for a total of

$42,567.80 (210 slash pine trees, shipping costs and applicable

taxes). JWD is also claiming a $50.00 filing fee for filing the

claim. The Department provided Notice of the claim to Landscape

and the I nsurance Company. Respondent Landscape answered the

Complaint on June 12 . By letter dated June 16 , the Department

referred the matter to the Division to schedule an evidentiary

hearing.

The matter was initially scheduled for hearing on August 31,

in For t Myers, Florida. The final hearing was continued twice

and rescheduled for December 10 and 11, and completed on

December 21.

At the hearing, JWD presented th e testimony of

J. W. Drott, III ( president, JWD); Dennis Boddison (vice -

president, JWD); Joh n Ne mcovic; and C. Way Hoyt, who was accepted

as an exp ert certified arborist. JWDÓs E xhibits 1 through 5, 7

through 13, 15, 17 through 19, 21, 22, 25 through 32, 36, 37, 46,

48, 55, 57, and 58 were admitted in evidence. JWD presented

Lynn GriffithÓs deposi tion testimony in lieu of in - person

te stimony at the hearing (Exhibit 55 ). Respondents presented the

testimony of Sandra Benton, Steven Grant, Guy Michaud, Leo Urban,

William ÐBillÑ Schall, and John Harris, who was accepted as an

expert. RespondentsÓ E xh ibits 7, 10, 16, 18, 21a, and 40 were

admitted in evidence.

A Joint Pre - Hearing Stipulation provided undisputed facts.

As appropriate, those facts may be found below.

The four - volume final hearing T r anscript was filed on

January 29 , 2016. A Notice o f Filing Transcrip t was issued on

February 1 , directing the parties to file any proposed

recommended o rders (PROs) on February 8 . The parties timely

filed proposed recommended orders (PR Os) on the established due

date . Each PRO has been carefully conside red in the preparation

of this Recommended Order.

Unless otherwise indicated, citations are to Florida

Statutes 2015.

FINDING S OF FACT

The Parties

1. JWD is a Florida licensed dealer in agricultural

products pursuant to chapter 604, Florida Statutes. JWD Ós

primary business is buying and selling trees, but it also

operates a tree farm in Lee County , Florida. JWD is principally

located in North Fort Myers, Florida. J. W. Drott, III, is the

president and Dennis Boddison is the vice - president of JWD Trees.

2 . Mr. Drott has 20 years of experience in buying and

selling trees. Mr. Boddison has 16 years of experience in the

tree business.

3. Respondent Landscape is a Florida licensed dealer in

agricultural product s , pursuant to chapter 604. Lan dscape is a

ful l - service landscape business located in Tamarac, Florida.

Sandy Benton is the president and Tom Benton is vice - president of

Landscape. Ms. Benton started Landscape in February 1998.

4. Respondent Insurance Comp any filed a denial of the claim

and was re presented at hearing by LandscapeÓs counsel.

5. Southeastern Shade is a registered nursery and has been

in the business of growing trees for approximately nine years.

John Nemcovic and his wife, Shelley, own and operate Southeastern

Shade. Southeaster n Shade supplied the 278 slash pines that JWD

brokered to Landscape.

6. JWD and Landscape had a prior business relationship.

JWD was on LandscapeÓs list of pre - approved vendors.

The Setting

7. At all relevant times, Landscape was a contractor

responsib le for installing landscaping at the Palm Beach County

Solid Waste Authority (SWA) site on Jog Road in Palm Beach

County , Florida. Landscape was vetted for the SWA project, which

was a big project for Landscape.

8. In September 2014, Ed Conk, 1/ Landscap eÓs plant buyer ,

sought bids on a list of plants for the SWA job. The list

included slash pine trees. According to the bid sheet, the slash

pines were to be 16 feet, 18 feet , and 20 feet i n height, and in

quantities of 1 76, 1 6 7 , and 118 respectively. Th ere was nothing

in the request for bids, or JWDÓs actual bid that addressed how

long the slash pine trees were hardened off, or whether or how

they had been root pruned.

9. On or about October 1, 2014, Mr. Drott, on behalf of

JWD, submitted a written bid to Mr. Conk to provide 461 slash

pines. 2/ Landscape accepted the JWD bid, but only ordered 210

slash pines. Other slash pines were bought through other vendors

and delivered to the SWA site.

10. The 210 slash pines were delivered over the course of

thre e days: November 11, 12 , and 13, 2014. Authorized personnel

of Landscape received, inspected , and accepted the 210 slash pine

trees. No problems or concerns were expressed regarding the

delivery or condition of the slash pines.

11. A week later, Mr. Conk ordered 68 additional slash pine

trees from JWD. JWD delivered the additional slash pines on

November 19, 2014.

The Dispute Giving Rise to t his Proceeding

12. LandscapeÓs personnel documented receipt of the initial

slash pines over a three - day per iod: November 11, 12, and 13,

2014. Once the slash pines were unloaded , they were Ðlaid it on

the ground and my water truck watered them down.Ñ The personnel

also documented the planting of the slash pines; however , the

exact location of JWDÓs trees in the SWA site map was not clearly

established. The slash pines were planted at the SWA site either

on the day of delivery or the day after delivery.

13. There was an irrigation system in place for watering

the newly planted trees; however, it was not fully functional

when the initial slash pines were planted. A water truck was

used to water the trees. The SWA site had significant rainfall

at times, and the ground was underwater during part of the

pertinent period. It is unclear when the additional slash pine

trees were planted: either on the day of delivery (November 19)

or the following day (November 20).

14. Several weeks after the slash pines were planted, some

of the slash pines started to deteriorate. Mr. Drott was

notified that there was a beetle issue with the slash pines in

early December 2014. Mr. Drott contacted Mr. Conk. Mr. Drott

advised Mr. Conk to get the affected trees out of the area and to

put a spray program in effect immediately to address the beetle

infestat ion .

15. On Janu ary 7, 2015, Mr. Boddison, Mr. Conk,

Mr. Nemcovic, and Guy Michaud, LandscapeÓs foreman for the SWA

site , conducted an SWA site visit. Mr. Nemcovic thought the

beetle problem was causing the slash pines to deteriorate.

Mr. Boddison noted that the SWA s ite was cut out of a large

native pine wood flat, with a large retention area. Mr. Boddison

also questioned Mr. Conk and Mr. Michaud about how the trees were

unloaded, how they were handled and planted, and since there was

an evident beetle infestation, w hat was being done as

preventative maintenance.

16. In March 2015, Lynn Griffith, an agricultural

consultant , conducted an SWA site visit. Mr. Griffith noted that

a majority of the pines were health y , but there were some that

were not doing well; that some had holes in them indicative of a

pine beetle infestation. Upon receiving a written report from

Mr. Griffith in mid - March 2015, Mr. Drott provided the report to

Mr. Conk.

17. In early April 2015, Landscape invited a Palm Beach

County extension agen t William Schall, the SWA project landscape

architect Leo Urban, representatives of the prime contractor,

Mr. Griffith, and selected Landscape employees to conduct a site

visit at the SWA site. Mr. Drott was not invited to the

inspection. Three dead tre es were pulled out during this

inspection. Only one of the dead trees was attributed to JWD.

18. Mr. Schall admitted that he did not know of other

stress factors on the SWA site, and had only been told (by

Landscape personnel) about how the trees we re handled.

Mr. Schall acknowledged that the SWA site was a prior pine tree

area, and that pine beetles could be in the area. Further, he

observed that at least one of the trees was planted too deep,

which could add stress to newly planted trees.

19. M r. Urban confirmed that there was an engineering

problem at the SWA site, and the retention basin held water for

longer periods of time than it should have. Mr. Urban confirmed

that the SWA site was a prior pine forest. Additionally, during

the April 201 5 SWA site visit, Mr. Urban pointed out to Landscape

personnel that there were four pines planted close to standing

water. Landscape moved those four pines.

20. When Mr. Griffith was invited to the April 2015 SWA

site visit, he was under the impression t hat all the interested

parties would be there. Neither JWD nor Mr. Nemcovic w as

present. Mr. Griffith theorized potential factors leading to the

demise of the slash pine trees: once water stress is introduced

to newly transplanted trees, especially fiel d - grown trees as is

this case, it is hard for the trees to recover; the over - watering

of the newly transplanted trees may have inadvertently washed

away a significant amount of the spray that was used to tr eat the

beetle infestation; or poor roots. Mr. Gr iffith observed, from

two trees ÐyankedÑ out of the ground, Ðvery little in the way of

new root initiation.Ñ He went on to speculate that it was

possible that any roots could have rotted off from over -

irrigation, could have been knocked off during the unl oading and

planting of the trees, or could have been ripped off when the

trees were pulled. However , no pathology diagnosis was conducted

to determine what, if any, root disease was present or if the

roots suffered from over watering.

21. In April 2015, Mr. Drott received communications from

Landscape indicating that the cause of the slash pine trees

demise was attributed to the lack of hardening off or root

issues. This was Mr. DrottÓs first notice that Ðhardening offÑ

of the roots, and not the be etle infestation , was the cause of

the slash pines Ó demise.

22. Mr. HoytÓs review of the case materials was extensive.

He reviewed LandscapeÓs discovery responses, including the daily

job reports, two reports by Mr. Griffith, Mr. SchallÓs report,

and p hotographs that were provided by JWD and Landscape. He

participated in an SWA site visit in September 2015 , as well as a

site visit and interview of the principals of Southeastern Shades

in October 2015. He attended LandscapeÓs expert deposition and

read his report, and inspected root balls and photographs of root

balls , which Landscape purported to be from JWD. Mr. Hoyt also

spoke with other JWD customers. He also attended the three - day

hearing.

23. Slash pine trees are very sensitive and can be eas ily

stressed. Stress can be caused by a variety of factors

including: transplanting; harsh handling; bark exposure to

sunlight, including superficial wounds to the bark; too much or

too little water; or planting too deeply. The stress will cause

a tree to emit chemicals that attract beetles, which inhabit the

trees and may kill a stressed tree within a week or two of the

infestation.

24. Based on the totality of his review, Mr. Hoyt opined

that a combination of factors contributed to the SWA slash pines

to deterioration: excess watering, planting to deep, rough

handling, and the beetles. His testimony is found credible.

25. Mr. HarrisÓ opinion centered on only one possible

explanation for the trees Ó demise: a failure to have an adequate

root system o r an inability of the roots to generate new growth.

26. Landscape personnel were unable to definitively

identify the dead trees as being trees supplied by JWD. There

were photographs introduced at the hearing that were initially

marked as being from one supplier , then changed to another.

There is a lack of clarity in identifying which supplier actually

supplied the now demised trees.

27. Landscape has not paid for, and refuses to pay for the

210 slash pine trees reflected in JWDÓs i nvoice no. 16707. The

total amount of the invoice is $42,567.80. The additional 68

slash pines were on invoice no. 16818, which has been paid, and

these are not the subject of this case.

28. JWD is entitled to payment in the amount of $42,567.80

for the slash pine trees it provided to Landscape. Besides the

amount set forth above, JWD claims the sum of $50.00 paid for the

filing of the claim against Landscape and its bond. The total

sum owed to JWD by Landscape is $42,617.80.

CONCLUSIONS OF LAW

29. The Division has jur isdiction over the parties and the

subject matter of this proceeding. §§ 120.569, 120.57(1), &

604.21(6), Fla. Stat.

30. The Department is the state agency responsible for

licensing dealers in agricultural products and investigating and

taking action on complaints against such dealers. §§ 604.15

through 604.34, Fla. Stat.

31. The definition of Ðagricultural productsÑ includes the

Ðnatural products of the . . . farm [and] nursery . . . produced

in the state[.]Ñ § 604.15(1), Fl a . Stat . The trees brokere d by

JWD are Ðagricultural productsÑ within the meaning of section

604.15(1).

32. The definition of a Ðdealer in agricultural productsÑ

includes any , Ðcorporation . . . engaged within this state in the

business of purchasing, receiving, or soliciting agri cultural

products from the producer . . . for resale or processing for

sale[.]Ñ § 60 4.15(1), Fla. Stat . Landscape is a dealer in

agricultural products within the meaning of section 604.15(1).

33. Any business claiming to be damaged by any breach of

the conditions of an agreement made with a dealer in agricultural

products may file a complaint with the Department against the

dealer and against the surety company. See § 604.21(1)(a), Fla.

Stat .

34. The burden of proof in an administrative proceeding is

o n the party asserting the affirmative of an issue. DepÓt of

Banking & Fin., Di v. of Sec. & Inv. Prot. v. Osbo rne, Stern &

Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d

292 (Fla. 1987); Evans Packing Co. v. DepÓt of Agric. & Consumer

Se rvs. , 550 So. 2d 112 (Fla. 1st DCA 1989). In this case,

Petitioner must prove by a preponderance of the evidence that it

provided goods or services to Respondent and that Respondent

failed to pay for such goods or services.

35. JWD bears the burden of pr oving the allegations of its

complaint by a preponderance of the evidence. See DepÓt of

Banking & Fin., Div. of Sec. & Inv. Prot. v. Osborne Stern & Co. ,

supra , (ÐThe general rule is that a party asserting the

affirmative of an issue has the burden of pre senting evidence as

to that issue . Ñ); Fla. DepÓt of Transp. v. J.W.C. Co. , 396 So. 2d

778, 788 (Fla. 1st DCA 1981); Vero Beach Land Co., LLC v. IMG

Citrus, Inc. , Case No. 08 - 5435 (Fla. DOAH Mar. 4, 2009; Fla. DACS

July 20, 2009), affÓd , IMG Citrus, Inc. v. Westchester Fire Ins.

Co. , 46 So. 3d 1014 (Fla. 4th DCA 2010) .

36. JWD Trees has satisfied its burden. As set forth in

the Findings of Fact, Respondent Landscape owes JW Trees

$42,567.80 for 210 slash pine trees.

37. JWD additionally seeks recovery of the filing fee paid

to the Department for the claim filed against Respondents on

May 4, 2015. JWD paid a $50 filing fee, which is specifically

recoverable against Respondent. See § 604.21(1)(a) , Fla. Stat.

(ÐIn the event the complainant is successful in proving the

claim, the dealer in agricultural products shall reimburse the

complainant for the $50 filing fee as part of the settlement of

the claim.Ñ) .

38. During PetitionerÓs opening statement, counsel

indicated that, in addition to the payment for the trees,

shipping, and filing fee, Petitioner was requesting interest on

the debt owed by Respondent. Nothing in the governing statute

mentions costs, generally, or interest, particularly. Petitioner

has cited no other authority for the undersigned to rec ommend

payment of interest accrued on the debt. Section 55.03(1),

Florida Statutes, Ðprovides only that a Òjudgment or decreeÓ

shall bear interest. Such does not include administrative

orders.Ñ Bank of Cent. Fla. v. DepÓt of Banking & Fin. , 470 So.

2d 74 2, 746 (Fla. 1st DCA 1985). ÐAlthough administrative orders

entered in adjudicatory proceedings are generally regarded as

quasi - judicial in nature . . . administrative orders are

generally regarded as not having the force or effect of a final

judgment or decree of a court.Ñ Id. (citations omitted).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that that a final order be entered by the

Department of Agriculture and Consumer Services:

A. Approving the c laim of JWD Trees, Inc., against

Landscape Professional Services, Inc., in the total amount of

$42,617.80 ($42,567.80 plus $50 filing fee); and if Landscape

Professionals Services, Inc., fails to timely pay JWD Trees,

Inc., as ordered, that Respondent, The Gray Insurance Company, as

S urety, be ordered to pay the Department of Agriculture and

Consumer Services as required by section 604.21, Florida

Statutes, and the Department reimburse the Petitioner as set out

in section 604.21, Florida Statutes; and

B. Ordering Landscape Professional Services, Inc., to pay

JWD Trees, Inc., reasonable co sts and attorney's fees.

Jurisdiction is retained to determine the amount of costs and

attorney's fees, if the parties are unable to agree to the

amount.

DONE AND ENTERED this 4th day of March , 2016 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 3 2399 - 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 4th day of March , 2016 .

ENDNOTE S

1/ Mr. Conk was terminated by Landscape and did not testify in this

proceedin g.

2/ JWDÓs bid included other trees, but only the slash pines are at

issue in this case.

COPIES FURNISHED:

Sandra R. Wilson - Benton

Landscape Service Professionals, Inc.

6115 Northwest 77th Way

Tamarac, Florida 33321

Tina Robinson

Department of Agr iculture and Consumer Services

Division of Consumer Services

Bureau of Mediation and Enforcement

2005 Apalachee Parkway

Tallahassee, Florida 32399 - 0800

Eric S. Olson, Esquire

Coleman, Hazzard & Taylor, P.A.

Suite 304

2640 Golden Gate Parkway

Naples, Flori da 34105

(eServed)

Sonia M. Diaz, Esquire

Coleman, Hazzard & Taylor, P.A.

Suite 304

2640 Golden Gate Parkway

Naples, Florida 34105

(eServed)

Mark John Labate, Esquire

Mark J. Labate, P.A.

2748 East Commercial Boulevard

Fort Lauderdale, Florida 33308

( eServed)

Lorena Holley, General Counsel

Department of Agriculture and Consumer Services

407 South Calhoun Street, Suite 520

Tallahassee, Florida 32399 - 0800

(eServed)

Honorable Adam Putnam

Commissioner of Agriculture

Department of Agriculture and Consum er Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

(eServed)

Paul J. Pagano, Bureau Chief

Bureau of Mediation and Enforcement

Dep ar t ment of Agriculture & Consumer Services

Rhodes Building, R - 3

2005 Apalachee Parkway

Tallahassee, Flor ida 32399 - 6500

(eServed)

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.