that's an ass packing versus spring like pack of regulations the first one that court sided hears seven c now for forty six point two why one is that the one that applies to consignment sold the fruit receive payment for all of the fruit so no consignments that regulation simply does not apply the second specific receiver that's correct you on that that section is under the section for records of market receivers and at this court may no ppaca licenses  producers or brokers or agents under certain sections and that section deals with market receivers which s and s packing is not as soon as packing is man let me ask you this but the records do require that you have to have good records accurate records right yesterday and so all the blueberries were sold a sundial yes for do we are there any documents in the record that reflects yes are the the commission was to be paid to own the net sales price received by s n s ok or is that standard in the industry to get a commission for documents produced by sun bell made a part of the record i can do some research and try to come up with exactly what they're called judge anderson but  proceeding were all of these documents produced the judicial officer asked for more evidence if i remember correctly and did they get more evidence did that judicial officer actually get all of the not commands did not did not they got a sampling of our records is honest they were looking to see whether our records did comply with  their regulations so they did not request our full sales records and they were not produced that was not an issue raised in the initial complaint the the grower was complaining of certain deductions the grower never complained that the sales prices  more and i don't know if they were ever satisfied with what they were looking for or not but more records were produced and in the district court yes ma'am the full records were produced in the district court in the district court trial in the district court trial we agreed in the pretrial order which was approved by the court we agreed that the issue before the court was whether the grower received what it was due under the contract and so we offered in the court received without objection our for all of our records for all of those sales to show exactly what we got what we packed what we sold what we got fork and what we distributed to our growers including springlike and  so that was not before the secretary in their initial proceeding it was offered and accepted in the district court trial so the full records  each particular week and they show the units they call them cases in the settlement sheet which are the same thing as a unit or flat and  came to as in is it does not show the weight but you can calculate the weight per pound because we know the weight of the several kinds of flat you know the fla it seems to me the contract is ambiguous as to whether you can do that district codes seem to assume that you are required to distribute on the basis of the number of pounds each  by the flat i think they use different terms for use but basically by the unit which is same thing as a plat is that yes or ok and the same thing is a case th prices my assessment of and i didn't find a whole lot of low but mostly common sense indicates that only if the s only if your records did not permit it least a reasonable certainty which the florida law requires permit the calculation on ascertaining the damages with reasonable certainty only if your records can't show with reasonable certainty what the actual price was there will and sellers sold will and by only then would it be appropriate to  had some language that said that the best evidence should be used and where the actual records are available that is the best evidence rather than the market news reports you cite right and you are wrong on the commission that you can charge two commissions the paragraph in the contract gave you a right to use your marketing part but it does not give you a right to have our commission and agents and then pay a commission and that regulation i came eminent number that regulation says that any charge for a commission like that has to be with the permission of the grow and it seems to me your contract does not give you permission to do more than use marketing partners it doesn't give you  reparation proceedings that is a u s d a proceedings form a promise facia case for the facts found there so as this case came up to judge hodges the damages the pricing the records issue had has produced a trial to overcome them for work where do you are what's your authority for that for again for ninety nine g subparagraph see and that tells us how much deference is due to the apply the wrong wiki elations and and if the judicial officer didn't have all the documents how much deference should the court have given me to the facts first as to the wrong regulations i take issue with that because well this wasn't the parties who are not doing this on consignment  that's a good question because the definition of consignment is to turn something over to somebody else to sell here but that wouldn't then we never have a growers agent buy that difficult no your honor because here's the circumstances in not know the price at which it was going to be sold they made no effort to negotiate prices they didn't even check prices to see if they were going to be retaining a fair price so there way they use the term marketing partner no they're not a marketing partner or simply a broker and it was turned over to them no business arrangement whatsoever here it is now there was a business arrangement between a related company that had nothing to do is actually a grower that was owned by the same individual there's no relationship there and so they simply turned over that's just a consignment so but more importantly owner that really doesn't get back to the fundamental thing that is son as soon as packing by package by the statutory provisions is required to truly and correctly account and properly pay council i'm going to get you right to the needy greedy it seems to me that sun bells settlement sheets provide everything that the district go it needs to find out what the actual price was that sun b sun so those blue jays phone number one am i not right on that proposition you know i think there's several propositions that let me see if i can answer what i understand your question to be and if i missed something come back and ask me with respect let's start maybe the back of it for risk with respect to defaulting to market price right because i think that that is obviously very  the district co and a and s and s packing had every opportunity in the world to bring in whatever evidence they wanted of market price they brought none you law is it not true what i said about the loan namely that you would not be warranted in disregarding the actual sales price that son bell  barest unless you couldn't tell what that price plus your own are we go back to the then we need to go back to the contract itself because in the contract as soon as packing contract did to sell the blueberries for the best price available they were going to be the seller less whole left aside you didn't make that argument in the judicial officer you did not make that argument in the district kill it and you ba filed based on a reparation order that case said or says that because the moving porter party was seeking to obtain summary judgment for reparation order that was based on market price just like this one the in one of the other brokers and they specifically found as a matter of fact that land who had received the best price so they held they had done their job there's no evidence here of any attempt by s n s packing to do anything other than just simply turn the blueberries over to somebody else and it resulted in their records and you know you go back to and you were asking also about the settlement sheets from  the settlement sheets from sunbelt the sunbelt settlement sheets show all of the cube all of the blueberries there's no differentiation between what what springlike produced or anybody else including their own for that week everybody is going to say paid the same price so you take the average of the wheat that's also discussed in the lime two case because that is standard procedure in the vegetable or fruit marketing industry through the prices really cool pricing is not the same thing though as pooled weighing because here's what happened in this case and here's what supports the district court's determination as in you were asking this question before by using the in they are there and i use the term pool way and i don't think that's even necessarily a term they sold spring lake's blueberries we don't know what size flats they were put in they were paid by the flat agreed that's a sit subsidiary issue in this case but that doesn't have anything to do at all with the an ability to find out from the records what price on bound got the  sale to sunbelt getting sun bell's prices and then distributing that in that particular week it was five five hundred seventy five dollars and fifty cents and in that week he distributed those those dollars according to the pounds of blueberries that spring lake would if they had been paid by the pound then we go back to again and i'd like to point this out section four ninety nine before which is part of this the pakistan shoot says that in addition to the violation for failing to keep adequate records they also violated by failing to perform a specification or duty express or implied arising out of its relationship with apple even that is spring you know springlike statute requires them to in other words conform with their contract their contracts i know you didn't get the thrust of my question you you say there's a real difference between the pool and you wanted them to do that way and the putin they actually did and my said here's what we got they did not address the issue of again being able to trace that back they also didn't address and still have never addressed the issue of their contract to obtain the best price when all they did was turn him over that's why the price paid by sun bell is not indicative and the hearing officer had to go to the market news they could have come in with other evidence of that is not cannot find that you made that much  and i am a little bit of that disadvantage i was contacted by spring lake city by sugar hill and i don't want to step over anything that may involve ok don't reach of  a what could have been a client relationship it's not but but in but the bottom line is that's a different case different hearing officer different set of records thirdly different hearing officer  but a very you have to admit it's very similar case in gothenburg but it involved a lot of other issues that were not before the district court in this case it men involved other issues but they were able to iran i've had a price without going to the market news price right and again that could have been done with additional evidence here but in fact mr mills testimony was he didn't do anything to determine price he just took whatever price came from sunbelt and that's putting  case as to the use of those prices and again if you look at the other cases involving this where market news has been used there was a question of fact but again without any contrary evidence other than the unreliable evidence of that they pointed out here there was anything else that could be done with that i know that i'm only extended time to support have any other questions  to carry out their contract duty to obtain the best price and i know we've heard a lot of argument but that was simply not a claim started at at either level  then simply comment on the responding to the sugarhill case that was tried before hearing officer it was a it wasn't oral hearing  witnesses testified documents were received all of the records were received and they were in fact the same records this was another grower put it another as an escrow or the cases were followed within the same week one went the documentary procedure the springlike yes the other went the oral hearing procedure that was the sugarhill case so the same records came in to document all of the sales that were made and all of the prices there were received so we think it's significant and we think it's persuasive authority for the for the positions that we've tried to set out sugarhill actually allowed double i think it is persuasive authority can i just go back to clear up some confusion in my mind it was my understanding all of the growers come in with their logs and they way out how many pounds they're contributing to the big amount that's going to ultimately ultimately get sent to sundown when it comes back and you say they get paid by the flat doesn't the number of pounds if they originally contributed control what they're getting paid or not it's my understanding it did not they were paid by the unit by the flat and the experience was that the unit the flat always a weighed with a look they were a narrow range and so for purposes of their contract they agreed that we're going to pool everything and we're going to be paid by the unit and so the actual weights really didn't enter into it well who how do you answer that hypothetical that in fact if you do it that way because of the different claim shell sizes there could be a distortion of the amount that a particular grower gets that's right hypothetically it could happen here it could be to a growers advantage it could lead to a growers disadvantage but everybody was treated the same don't we need to send this case back after dealing with the market news price  issue to number one determine whether a contract was violated when you distributed the sun bells mine is amongst your fourteen growers per play at perth flat as opposed to did they didn't argue a lot of what they are going now but i thought they did argue that it should have been per pound and the district courts seem to talk about it one real real clear but he seemed to suggest it should have been purpose did they not argue per pound in the in the district court judge i don't think so i think they just argued that the court needed to affirm