rate is 10 percent per annum. Complainant was required to pay a $300.00 handling fee to file its formal complaint. Pursuant to 7 U.S.C. § 499e(a), the party found to have violated Section 2 of the Act is liable for any handling fees paid by the injured party.

Order

Within 30 days from the date of this Order, Respondent shall pay Complainant as reparation $10,039.50, with interest thereon at the rate of 10% per annum from January 1, 2000, until paid, plus the amount of $300.00. Copies of this Order shall be served upon the parties.

Done at Washington, DC.

ANTHONY VINEYARDS, INC. v. SUN WORLD INTERNATIONAL, INC.

PACA Docket No. R-98-143.

Ruling on Respondent's Petition for Reconsideration.

Filed January 8, 2003.

PACA-R Equitable estoppel defense Complaint, amendment of, when new counsel Attorney fees, prevailing party awarded - American rule, attorney fees English rule, attorney fees PACA, attorney fee awards to prevailing merchant, dealer or broker only in an oral hearing.

The prevailing party in a PACA reparation action may be awarded attorney's fees upon a properly filed request after hearing (7 CFR § 47.19(d)). The question of which party is the prevailing party is one that depends upon the facts of the case. Where Respondent prevailed on two of the three issues presented at the hearing and limited Complainant's recovery to 32% of the amount actually litigated at the hearing, Respondent is determined to be the prevailing party, and is awarded attorney's fees and expenses, reduced by 32%..

Patricia J. Ryan, for Complainant.

Stephen P. McCarron, for Respondent.

Andrew Y. Stanton, Presiding Officer.

Decision and Order filed by William G. Jenson, Judicial Officer.

In this reparation proceeding under the Perishable Agricultural Commodities Act, 1930, as amended (7 U.S.C. § 499a et seq.), a Decision and Order

14(...continued)

v. Producers Marketing Association, Inc., 22 Agric. Dec. 66 (1963).

62 Agric. Dec. 342

(hereinafter, "Decision") was issued on February 7, 2001, awarding reparation to Complainant in the amount of $132,026.19 plus interest, and $300.00 as reimbursement for Complainant's handling fee. The Decision also awarded fees and expenses to Respondent in the amount of $53,782.55 plus interest. Complainant filed a Petition for Reconsideration and, on November 28, 2001, a Ruling on Petition for Reconsideration (hereinafter, "Ruling") was issued, awarding Complainant $186,971.40 plus interest, and $300.00 as reimbursement for Complainant's handling fee. The Ruling also awarded fees and expenses to Complainant in the amount of $93,485.70 plus interest.

Respondent filed a Petition for Reconsideration of the November 28, 2001, Ruling in which it makes several assertions of error. Complainant filed an Opposition to Petition for Reconsideration.

Respondent contends that the Ruling erroneously awarded Complainant $27,516.65 as damages for Respondent's overcharges for supplies and services, reversing the denial of such claim in the Decision. Respondent argues that Complainant's claim should be dismissed on the grounds of equitable estoppel. Respondent states that when the claim for overcharges was made in the formal complaint, Complainant did not allege a specific amount, but asserted that Complainant would "amend the Complaint to allege the precise amount of the overcharges once it receives a breakdown of such overcharges from the PACA auditors." Respondent states that Complainant never did amend the complaint to include the specific amount of alleged overcharges prior to the hearing or at the hearing and did not mention the issue in its brief. Respondent claims that circumstances warranting equitable estoppel are present, citing In re: S.E.L. International Corporation, 51 Agric. Dec. 1407 (1992), asserting that Complainant, by its words, acts, conduct or acquiescence, caused Respondent to believe that Complainant had abandoned the claim for overcharges, that Complainant's words and conduct, indicating that it had abandoned the claim, were done willfully or negligently, and that Respondent relied on Complainant's representations that the claim was abandoned by not presenting any evidence with respect to this issue.

The $27,516.65 claimed by Complainant for overcharges comes from the finding of the Department's auditors, which was made after the filing of the formal complaint and was included in the Report of Investigation served upon both parties. The finding was referred to in the Ruling (at page 3) as follows:

The audit further showed Sun World received discounts totaling $10,991.41 for its early payment of grape supply invoices. These discounts were not passed on to Anthony Vineyards. Sun World charged complainant $4,459.30 more than its actual cost for the supplies

it invoiced complainant.

Sun World overcharged complainant $12,065.94 for hauling the grapes from the field to its central facility. This was due to Sun World charging Anthony Vineyards for hauling a full truck when there was other grower's product on the truck. The USDA accounting allowed actual cost for the supply and hauling charges.

Respondent relies upon S.E.L. for the elements of equitable estoppel, but the decision in that case specifically makes reference to the fact that it is applying the law of the 11th Circuit (51 Agric. Dec. at 1419). In the case at hand, we must apply the standard for equitable estoppel utilized in the Circuit where Respondent is engaged in business, the 9th Circuit. That standard is set forth in United States v. Hemmen, 51 F.3d 883, 892 (9th Cir. 1995), as follows:

The traditional elements of equitable estoppel are that: (1) the party to be estopped knows the facts, (2) he or she intends that his or her conduct will be acted on or must so act that the party invoking estoppel has a right to believe it is so intended, (3) the party invoking estoppel must be ignorant of the true facts, and (4) he or she must detrimentally rely on the former's conduct. Watkins v. United States Army, 875 F.2d 699, 709 (9th Cir.1989) (en banc), cert. denied, 498 U.S. 957, 111 S.Ct. 384, 112 L.Ed.2d 395 (1990).

With respect to the first and third elements, there is no doubt that both parties knew or should have known the facts that the Department's audit contained a finding that $27,516.65 was overcharged by Respondent - as that finding was part of the Report of Investigation. We do not conclude that the second element was present; that Complainant intended that its conduct, the failure to formally amend the complaint to note the amount of damages for overcharges found by the audit, would give Respondent the right to believe that Complainant was abandoning its claim. We believe Complainant assumed, with good reason, that Respondent was aware that the amount of the alleged overcharges was $27,516.65, so there was no reason for Complainant to formally amend its complaint. Further, we do not believe that Respondent detrimentally relied on Complainant's failure to amend the complaint, in view of the fact that the findings of the audit, showing the amount of the alleged damages as $27,516.65, were made known to Respondent. Respondent had the opportunity at the hearing to present evidence to attempt to rebut Complainant's claim for overcharges, but elected not to do so. Under these circumstances, equitable estoppel is not warranted.

62 Agric. Dec. 342

Respondent claims that the Decision erred in determining that Complainant's June 9, 1997, letter, filed on June 11, 1997, was an informal complaint that preserved jurisdiction over transactions that accrued within nine months prior to the date of filing. Respondent asserts that of the six allegations of wrongful conduct alleged in the letter, only the first was made with specificity. With respect to the remaining five allegations, Respondent contends Complainant did not provide any details but merely requested that the Department conduct an audit. Respondent argues that Complainant's letter did not comply with section 47.3(a)(2) of the Rules of Practice (7 C.F.R. § 47.3(a)(2)), as it did not contain "the essential details of the transaction complained of."

Complainant asserts that Respondent should not be permitted to raise the issue of whether Complainant's letter qualifies as an informal complaint, as it was not one of the findings made in the Ruling. However, the Ruling did discuss whether various transactions were within the Department's jurisdiction, and concluded that certain transactions did so qualify because they were referred to, in general terms, in Complainant's letter and accrued within nine months prior to June 11, 1997 (Ruling, at pages 1-3, 9). As the issue of the jurisdictional effect of Complainant's letter was addressed in the Ruling, Respondent is not precluded from raising the issue of whether the letter is a valid informal complaint for jurisdictional purposes.

However, we do not agree with Respondent's contention that Complainant's letter was not a valid informal complaint. While Respondent is correct that section 47.3(a)(2) of the Rules of Practice states that the informal complaint shall set forth the "essential details" of the transactions, that section also states that these details shall be set out "so far as practicable." Six L's Packing Company, Inc. v. Preciosa Packing House, Inc., 41 Agric. Dec. 1233 (1992). Complainant's June 9, 1997, letter is a five page document containing a wealth of detail about the alleged violations committed by Respondent. While the letter requests the Department to conduct an audit to obtain additional information, which eventually took place, the letter includes as much detail about Respondent's alleged violations as was possible at the time it was written. We conclude that Complainant's June 9, 1997, letter meets the criteria for a valid informal complaint as set forth in the Rules of Practice.

Respondent disputes the conclusion of the Decision that Complainant did not waive the contractual requirement that Respondent consult with Complainant prior to granting price adjustments in excess of 30%. Complainant argues, as it did with respect to the jurisdictional effect of its June 9, 1997, letter, that Respondent should not be permitted to raise this issue, as it was addressed in the Decision but not the Ruling, and Respondent should be limited

to only those issues discussed in the Ruling. Although we found that the Ruling discussed the jurisdictional effect of Complainant's letter, and that such issue may thus be addressed here, the Ruling never mentioned the waiver issue. If Respondent desired to contest the finding in the Decision that Complainant did not waive its contractual right to be consulted, Respondent could have filed a petition for reconsideration of the Decision, but elected not to do so. Respondent is precluded from raising the waiver issue at this time.

Even if the waiver issue were given consideration, Respondent has merely repeated the argument raised in its brief that Complainant failed to complain about not being consulted on many transactions where Respondent granted adjustments exceeding 30%. The Decision found that Complainant did complain about the failure to consult through communications by Complainant's then controller, Carla Dodd, with Respondent, and by the fact that, in May 1996, Complainant filed suit in state court regarding the 1995 growing season, alleging, among other things, Respondent's failure to comply with the consultation provisions of the contract, which were essentially the same provisions present for the 1996 growing season at issue here (Decision, at page 24). Respondent has not provided any basis for changing the finding in the Decision that Complainant did not waive the consultation requirement.

Respondent's final assertion of error is that, by concluding that Complainant was the prevailing party, and thus entitled to attorneys fees, the Ruling did not follow the precedent set in Newbern Groves, Inc. v. C. H. Robinson Company, 53 Agric. Dec. 1766, 1855 (1994), petition for reconsideration denied, 54 Agric. Dec.1444 (1995). Respondent notes that the conclusion in the Ruling was based solely on the fact that Complainant was awarded 34% (actually 36%) of the amount it originally claimed, compared to 25% awarded the complainant in Newbern Groves, which found that the respondent had prevailed. Respondent contends that additional factors should have been considered in determining the identity of the prevailing party. In response, Complainant argues that the principle enunciated in Newbern Groves, that under certain circumstances, the party that is awarded damages may not be the prevailing party, conflicts with a recent Supreme Court case, Buckhannon Bd. and Care Home, Inc. v. West Virginia Dep't. of Health and Human Resources, 532 U.S. 598, 121 S. Ct. 1835 (2001), which held that a prevailing party is the party in whose favor judgment is rendered, regardless of the amount of damages

'Respondent's assertion that Complainant was awarded 34% of its total claim of damages is based on a figure contained in the November 28, 2001, Ruling. However, the Ruling was in error, as the amount of reparation awarded therein, $186,971.40, constitutes about 36% of Complainant's claimed damages of $524,814.72.