16-000064 Huntsman Tree Supplier, Inc. vs. Greenway Nursery, Inc., And Auto Owners Insurance Company, As Surety Status: Closed Recommended Order on Tuesday, April 12, 2016.

Summary: Respondent owes Petitioner $3,950 for two deliveries of landscape trees, plus the $50 filing fee for its complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HUNTSMAN TREE SUPPLIER, INC.,

Petitioner,

vs. Case No. 16 - 0064

GREENWAY NURSERY, INC., AND AUTO

OWNERS INSURANCE COMPANY, AS

SURETY,

Respondents.

_______________________________/

RECOMMENDED ORDER

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

on March 9, 2016, before Lawrence P. Stevenson, a duly -

designated Administrative Law Judge of the Division of

Administrative Hearings (ÐDivisionÑ) , in Lake City, Florida.

APPEAR ANCES

For Petitioner: Michelle Huntsman, pro se

Huntsman Tree Supplier, Inc.

13823 29th Road

Lake City, Florida 32024

For Respondent, Greenway Nursery, Inc.:

Brian D. Love , pro se

Greenway Nursery, Inc.

12091 S outheast 30th Street

Morriston, Florida 32668

For Respondent, Auto - Owners Insurance Company

Brett Little, Esquire

Brett Little, P.A.

5216 S outhwes t 91st Terrace

Gainesville, Florida 32608

STATEMENT OF THE ISSUE S

Whether Respondent , Greenway Nursery, Inc. (ÐGreenwayÑ), is

liable to Petitioner , Huntsman Tree Supplier, Inc. (ÐHuntsmanÑ) ,

for the purchase of landscaping trees, and , if so, in what

amount.

PRELIMINARY STATEMENT

On September 11, 2015, Huntsman filed an Agricultural

Products Dealer Claim Form (ÐComplaintÑ) against Greenway and

its insurer, Auto - Owners Insurance Company , with the Florida

Department of Agriculture and Co nsumer Services (ÐDepartmentÑ),

seeking payment for an assortment of landscaping trees. By

letter dated October 21, 2015, the Department provided notice of

the Complaint to Greenway and its insurer. On or about

November 10, 2015, Greenway answered the Co mplaint, admitting

liability for some , but not all of the trees. On January 4,

2016, the Department referred the matter to the Division for the

assignment of an Administrative Law Judge and the conduct of a

formal evidentiary hearing.

The case was schedu led for hearing on March 9, 2016, on

which date the hearing was convened and completed.

At the hearing, Huntsman presented the testimony of

Michelle Huntsman, one of its owners. Huntsman offered no

exhibits at the hearing, but Ms. Huntsman affirmed the va lidity

of the two billing documents submitted with the Complaint. No

objection was offered to the authenticity of these documents or

to their consideration in the writing of this Recommended Order.

Greenway presented the testimony of its principal, Brian D.

Love. GreenwayÓs Exhibits 1 and 2 were admitted into evidence.

Auto - Owners Insurance Company presented no witnesses and offered

no exhibits into evidence.

No t ranscript of the final hearing was ordered. On

March 17, 2016, Huntsman timely filed a let ter summarizing its

position. No other post - hearing documents were filed.

Unless otherwise stated, all statutory references are to

the 2015 edition of the Florida Statutes.

FINDING S OF FACT

Based on the oral and documentary evidence adduced at the

final hearing, and the entire record in this proceeding, the

following F indings of F act are made:

1. Huntsman is a Florida corporation for profit , located

in Lake City , and engaged in the business of commercial tree

farming. Its owners are Ja mes and Michelle H untsman.

Mr. Huntsman is the president of the company and Ms. Huntsman is

the secretary.

2. Greenway is a Florida corporation for profit , located

in Morriston , and engaged in the business of commercial nursery

and landscaping. Its owner and president is Brian D. Love.

3. At issue in this proceeding are two deliveries of trees

from Huntsman to Gr e enway, one on March 12, 2015 , and one on

June 23, 2015. The invoice for the March 12 delivery indicates

that it was billed to Greenway. It is for 12 East Pala tka holly

trees, 65 gallons each. The trees a re billed at the rate of

$240 each, for a total bill of $2,880. The invoice indicates

that Greenway took delivery of the trees by customer pick - up.

4. The invoice for the June 23 delivery also states that

it was billed to Greenway. The invoice includes one ligustrum,

eight feet in height, for $200; one 2.5 - inch DBH 1/ slash pine for

$130; two 4 - inch live oaks with a height of 14 to 16 feet for

$250 ea ch; and one cypress for $240. The total amount of the

invoi ce is $1,070. Again, the invoice indicates that Greenway

took delivery by picking up the trees.

5. All of the trees in both invoices were destined for a

landscaping project at Adena Golf and Country Club in Ocala

(ÐAdenaÑ). Both parties were involved in planting trees in

different areas of the Adena property.

6. The partiesÓ course of dealing until June 2015 , was not

completely explained at the hearing. It was clear that Huntsman

would directly bill Greenway for the trees and that Greenway

would take d elivery of the trees by pick - up. It was unclear

whether Huntsman expected to receive payment directly from Adena

or whether Greenway would pay Huntsman for the trees from

payments Greenway received from Adena. In any event, Greenway

accepted the billings and took delivery of the trees in each

instance, thus accepting ultimate responsibility for payment to

Huntsman.

7. In its answer to the Complaint, and again at the final

hearing, Greenway admitted liability for the $2,880 stated in

the March 12 invoice. Mr. Love agreed to pay Huntsman that

amount within 15 days of entry of the final order in this case.

8. However, Greenway denied liability for the $1,070

stated in the June 23 invoice. Mr. Love stated that his company

was not liable for these trees bec ause they were not part of his

project with Adena. He stated that he installed these trees to

replace trees on the Adena property that had died, but that the

dead trees had not been the responsibility of his company.

9. Ms. Huntsman denied that the dead trees had been

installed in the area of the Adena property where her company

was working. She testified that AdenaÓs representative told her

that she should seek payment from Greenway because the June 23

tree delivery constituted Ðwarranty work.Ñ Greenwa y had planted

trees on the Adena property that had died, and Adena considered

Greenway the warrantor of those trees and therefore liable for

their replacement.

10. Based on all of the testimony, it appears that

Huntsman found itself in the middle of a d ispute between

Greenway and Adena as to whether Greenway had warranted the

trees that died, and became aware of the dispute only after it

had billed and delivered the trees to Greenway in accordance

with the parties usual course of dealing. The evidence w as

insufficient to establish that Huntsman had any responsibility

for , or prior knowledge of , the dead trees.

11. It will be left to one or the other of these parties

to take up the issue of payment with Adena. Fundamental

fairness dictates that this bur den should fall to Greenway.

Greenway had the warranty dispute with Adena that caused this

controversy. Greenway accepted the bill of lading and the

invoice for the June 23 shipment , and took delivery of the trees

in accordance with the parties usual cou rse of business. As the

innocent supplier of the trees, Huntsman should be made whole.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 , 120.57(1) , & 604.21(6), Fla. Stat.

13. 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.

14. The definition o f Ðagricultural productsÑ includes the

Ðnatural products of the farm, nursery, grove, orchard, vineyard,

garden and apiary . . . produced in the state[.]Ñ £ 604.15(1),

Fla. Stat. The trees grown by Huntsman are Ðagricultural

productsÑ within the meaning of section 604.15(1).

15. The definition of a Ðdealer in agricultural productsÑ

includes any Ðperson, partnership, corporation, or other business

entity . . . engaged within this state in the business of

purchasing, receiving, or soliciting agricultural p roducts from

the producer . . . for resal e or processing for sale[.]Ñ

§ 604.15(1), Fla. Stat. Greenway is a dealer in agricultural

products within the meaning of section 604.15(1).

16. 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. § 604.21(1)(a), Fla.

Stat.

17. As the Petitioner, Huntsman bears the burden to prove

the allegations o f its complaint by a preponderance of the

evidence. DepÓt of Banking & Fin., Div. of Sec. & Inv. Prot. v.

Osborne Stern & Co. , 670 So. 2d 932, 934 (Fla. 1996)(ÐThe general

rule is that a party asserting the affirmative of an issue has

the burden of presen ting evidence as to that issue . Ñ); Fla. DepÓt

of Transp. v. J.W.C. Co. , 396 So. 2d 778, 788 (Fla. 1st DCA

1981).

18. Huntsman has satisfied its burden. As set forth in the

Findings of Fact, Respondent Greenway owes Huntsman $2,880 for

the March 12, 2015 , delivery of trees and $1,070 for the June 23,

2015 , delivery of trees, for a total of $3,950.

19. Huntsman is also entitled to recover the $50 filing fee

paid to the Department for the complaint filed against

Respondents on September 11, 2015. § 604.21 (1)(a) , Fla. Stat.

(ÐIn the event the complainant is successful in proving the

claim, the dealer in agricultural products shall reimbu rse the

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

the claim.Ñ)

20. Huntsman is entitled to recover a total of $4,000 from

Greenway.

RECOMMENDATION

Based on the foregoing, it is, therefore,

RECOMMENDED that the Department of Agriculture and Consumer

Services enter a final order approving the claim of Huntsman

Tree Supplier, Inc. , against Greenway Nursery , Inc. , in the

amount of $4,000.

DONE AND ENTERED this 1 2 th day of April , 2016 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buildi ng

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 1 2 th day of April , 2016 .

ENDNOTE

1/ DBH is short for diameter at breast height, a standard method

of tree measurement.

COPIES FURNISHED:

W. Alan Parkinson, Bureau Chief

Bureau of Mediation and Enforcement

Department of Agriculture and

Consumer Services

Rhodes Building, R - 3

2005 Apalachee Parkway

Tallahassee, Fl orida 32399 - 6500

Jimmy Huntsman

Huntsman Tree Supplier, Inc.

13823 29th Road

Lake City, Florida 32024

Michelle Huntsman

Huntsman Tree Supplier, Inc.

13823 29th Road

Lake City, Florida 32024

Brian D. Love

Greenway Nursery, Inc.

12091 Southeast 30th S treet

Morriston, Florida 32668

Auto Owners Insurance Company

Bond Claim Department

6101 Anacapri Boulevard

Lansing, Michigan 48917 - 3988

Brett Little, Esquire

Brett Little, P.A.

5216 Southwest 91st Terrace

Gainesville, Florida 32608

(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 Consumer Services

The Ca pitol, 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.