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CONTINENTAL FRUIT CO. v. THOMAS J. GATZIOLIS & CO.

July 25, 1991

CONTINENTAL FRUIT CO., Plaintiff,
v.
THOMAS J. GATZIOLIS & CO., INC., WILLIAM T. GATZIOLIS, ALEX D. MOGLIA and MIDWEST BANK & TRUST CO., Defendants



The opinion of the court was delivered by: DUFF

 BRIAN BARNETT DUFF, UNITED STATES DISTRICT JUDGE

 The parties are before this court on plaintiff's motion for a preliminary injunction. The motion is fully briefed and the court conducted a hearing at which the parties argued their positions and presented evidence on July 12, 1991. The court, having heard the arguments and considered the memoranda and evidence submitted in this matter, is now prepared to rule on the pending motion.

 Facts1

 Continental Fruit Co. and the Gatziolis company had a business relationship which began in January, 1990 and ended in May, 1991 when Gatziolis assigned all of its assets to Alex D. Moglia for the benefit of its creditors, with the agreement that Moglia will liquidate Gatziolis' assets and distribute the proceeds (less Moglia's fee) to Gatziolis' creditors.

 During the course of their relationship, Continental made nearly a hundred shipments of produce to Gatziolis. Gatziolis has not paid for the last eight of those shipments and owes Continental $ 74,108. There is no evidence in the record indicating that Continental and Gatziolis had a formal agreement regarding payment terms. However the course of dealing between the parties, as evidenced by Gatziolis' records (which the parties agreed are accurate), demonstrates that, of the shipments for which Gatziolis paid, approximately fourteen percent were paid within thirty days. Nearly eighty percent were paid within forty days.

 Gatziolis kept its business account at Midwest Bank and Trust Co. The uncontroverted testimony at the hearing on this matter indicated that all the proceeds of its sales of commodities (including those delivered by Continental) were deposited in that account. Gatziolis also had a loan with Midwest. When Gatziolis notified its creditors, including Midwest, of its assignment for the benefit of creditors, Midwest immediately set-off the money on deposit in Gatziolis' bank account and applied it to Gatziolis' loan obligation.

 Continental claims that Congress has granted it an interest superior to that of Midwest and Gatziolis' other creditors, and seeks an order from this court enjoining any further dissipation of Gatziolis' assets and requiring all the defendants to relinquish those assets they have already taken from the Gatziolis estate.

 Discussion

 The statute upon which Continental relies is the Perishable Agricultural Commodities Act (PACA), 7 U.S.C. § 499a et seq. (1984). Congress first enacted the statute in 1930 to regulate the interstate and foreign shipment and handling of perishable agricultural commodities. It amended the statute in 1984 to add § 499e(c) which provides that a buyer of perishable agricultural commodities holds the produce and any related inventory and accounts receivable in trust for the benefit of all the buyer's unpaid sellers. Congress passed the amendment because it found that:

 
[A] burden on commerce in perishable agricultural commodities is caused by financing arrangements under which commission merchants, dealers, or brokers, who have not made payment for perishable agricultural commodities purchased, contracted to be purchased, or otherwise handled by them on behalf of another person, encumber or give lenders a security interest in such commodities, or on inventories of food or other products derived from such commodities, and any receivables or proceeds from the sale of such commodities or products and that such arrangements are contrary to the public interest. This [Act] is intended to remedy such burden on commerce in perishable agricultural commodities and to protect the public interest.

 7 U.S.C. § 499e(c)(1) (1984). PACA § 499e(c)(2) provides that:

 
Perishable agricultural commodities received by a commission merchant, dealer, or broker in all transactions, and all inventories of food or other products derived from perishable agricultural commodities, and any receivables or proceeds from the sale of such commodities or products, shall be held by such [entity] in trust for the benefit of all unpaid suppliers or sellers of such commodities . . . until full payment of the sums owing in connection with such transactions has been received by such unpaid suppliers [or] sellers. . . . (Emphasis added).

 Trust assets are to be maintained in a non-segregated, floating trust, and may be commingled with non-trust assets. 7 C.F.R. part 46.46(c). Those holding trust assets must maintain them so that they are "freely available to satisfy outstanding obligations to ...


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