United States v. Thomas Smith ( 2013 )


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  •                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 13a0339n.06
    
                                               No. 12-5659
                                                                                            FILED
                                                                                        Apr 08, 2013
                              UNITED STATES COURT OF APPEALS
                                                                                  DEBORAH S. HUNT, Clerk
                                   FOR THE SIXTH CIRCUIT
    
    
    SIX L’S PACKING CO., INC.,                       )
                                                     )
           Plaintiff-Appellee,                       )
                                                     )
    v.                                               )
                                                     )
    JAMES ERIC BEALE; JAMES R. BEALE,                )
    dba Sunfresh Farms,                              )    ON APPEAL FROM THE UNITED
                                                     )    STATES DISTRICT COURT FOR THE
           Defendant-Appellants,                     )    MIDDLE DISTRICT OF TENNESSEE
                                                     )
    and                                              )
                                                     )
    J.E. BEALE PRODUCE, INC.; KATTIA                 )
    MARIA BISCHOFF-BEALE; SUNFRESH                   )
    FARMS, INC.; SUNFRESH, INC.,                     )
                                                     )
           Defendants.                               )
    
    
    
    
           Before: CLAY, COOK, and ROTH, Circuit Judges.*
    
    
           COOK, Circuit Judge. Six L’s Packing Co. (“Six L’s”) sued James R. Beale d/b/a Sunfresh
    
    Farms (“JR Beale” or “Sunfresh”) and salesman James Eric Beale (“JE Beale” or “salesman Beale”)
    
    under the Perishable Agricultural Commodities Act (“PACA” or “Act”), 7 U.S.C. §§ 499a-499t.
    
    Sunfresh appeals the district court’s grant of summary judgment to Six L’s, as well as its denial of
    
    
    
           *
             The Honorable Jane R. Roth, Senior Circuit Judge for the United States Court of Appeals
    for the Third Circuit, sitting by designation.
    No. 12-5659
    Six L’s v. JR Beale, et al.
    
    
    Sunfresh’s PACA-based counterclaim. JE Beale appeals the district court’s judgment against him
    
    individually under the Act. We AFFIRM the district court’s grant of summary judgment to Six L’s
    
    and its denial of Sunfresh’s counterclaim, but REVERSE its individual liability judgment.
    
    
                                                      I.
    
    
    A. The Parties
    
    
            As licensed PACA merchants, Six L’s and Sunfresh buy and sell fresh produce. 7 U.S.C. §§
    
    499a-499d. JR Beale runs Tennessee-based Sunfresh with his son, JE Beale, as his salesman. Within
    
    certain pre-set limits, salesman Beale could buy and sell produce without obtaining his father’s
    
    approval. Salesman Beale does not, however, own an interest in Sunfresh or issue invoices on its
    
    behalf; he also lacks signatory authority for the company’s accounts.
    
    
            When ordering tomatoes from Six L’s, salesman Beale would usually email Six L’s sales
    
    representative, Carlo Laporta, the quantity of tomatoes for purchase, a pick-up date from Six L’s
    
    warehouse in Immokalee, Florida, and a numbered Purchase Order (“PO”). Six L’s would then place
    
    the reserved quantity of gas-green tomatoes1 into a ripening room for up to eight days before pick-up.
    
    The market value of the produce on the pick-up date set the contract price.
    
    
    
    
            1
           In commercial practice, produce suppliers use ethylene—a tasteless, odorless gas produced
    by many types of produce, including tomatoes—to hasten and ensure the tomatoes’ uniform ripening.
    
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    No. 12-5659
    Six L’s v. JR Beale, et al.
    
    
            Six L’s preprinted invoices included the statement: “All sales FOB no grade contracts.
    
    PACA good delivery standards apply.” PACA “good delivery standards” require that, upon reaching
    
    their destination, no greater than 15% of tomatoes exhibit defects (such as bruising or discoloration).
    
    7 C.F.R. § 46.44.
    
    
    B. Six L’s Unpaid Invoices
    
    
            1. Invoice #242127
    
    
            In November 2009, JE Beale ordered 1,178 cases of tomatoes from Six L’s with an invoice
    
    totaling $26,629.10 (invoice # 242127). A truck picked up the shipment at Six L’s loading dock in
    
    Immokalee on December 1 and delivered the produce to Sunfresh’s customer, General Produce, Inc.
    
    (“GPI”), in Atlanta. GPI received and accepted the produce on December 2, but reported some
    
    problems with 640 cases of Florida Silk tomatoes. That same day, GPI requested a USDA inspection
    
    of the tomatoes, which occurred within the hour. Per Sunfresh and GPI’s instructions, USDA
    
    inspectors examined only the 640 boxes of Florida Silks, as GPI had already sold the rest of the
    
    order. The USDA inspection certificate, which listed the shipment status as “unloaded,” reported
    
    a 23% “checksum.”2 Asserting breach of contract, Sunfresh proposed to pay $17,701.10 rather than
    
    the invoiced $26,629.10. Six L’s rejected this offer.
    
    
    
    
            2
                The defect average is called the “checksum.”
    
                                                     -3-
    No. 12-5659
    Six L’s v. JR Beale, et al.
    
    
            2. Invoices #242380 and #242381
    
    
            On December 1, 2009, before the GPI load problems devolved into an invoice dispute, JE
    
    Beale emailed Laporta, placing two orders on Sunfresh’s behalf: one for 800 cases of “Silk”
    
    tomatoes (PO #17523), and a second for 400 cases of “Velvet” tomatoes (PO #17524). The
    
    salesmen’s email exchange did not include a pick-up date. Seven days later, JE Beale sent another
    
    email to Laporta, directing him to “keep [Sunfresh’s] orders cool” because his “original customer
    
    backed out today.” Two days later, Sunfresh picked up 240 of the 800 Silk cases and 160 of the 400
    
    Velvet cases, paying Six L’s the December 8 price per case: $23.95 (Silk) and $21.95 (Velvet). Four
    
    days after the partial pick-up, Six L’s warned Sunfresh that it would hold the remaining 800 cases
    
    of tomatoes for two more days. When Sunfresh failed to pick up the produce, Six L’s resold the
    
    tomatoes at a case rate 12 dollars below the contract price (Silks at $11.95 and Velvets at $9.95 per
    
    case), billing Sunfresh for the difference. Invoices #242380 and #242381, charging Sunfresh $6,720
    
    and $2,880 for the Silks and Velvets, reflect those charges.
    
    
            3. Invoice #243406 and Settlement Attempts
    
    
            Six L’s final invoice (#243406) concerns a December 21, 2009 order for 360 cases of green
    
    bell peppers. Sunfresh admits that it owes Six L’s the full invoice amount for this purchase, and
    
    further reports that it attempted to settle its account when it offered partial payment for the other
    
    three disputed transactions. Specifically, on November 4, 2010, Sunfresh’s attorney sent a letter to
    
    Six L’s counsel, along with a check for $13,915.10. Sunfresh agreed to pay the $1,614 owed for the
    
                                                    -4-
    No. 12-5659
    Six L’s v. JR Beale, et al.
    
    
    bell peppers, $17,701.10 for the $26,629.10 invoice, and nothing for the abandoned tomatoes. It
    
    deducted $5,400 that Six L’s allegedly owed on Sunfresh’s invoice #17204, resulting in its
    
    settlement offer of $13,915.10. Six L’s returned the check, refusing partial repayment.
    
    
    C. Sunfresh’s Invoice
    
    
            Sunfresh’s counterclaim stems from a sale of 54 cantaloupe bins to Six L’s (invoice #17204).
    
    The parties agree that Six L’s never paid for the order, but dispute nearly everything else related to
    
    the sale. Six L’s instructed Sunfresh to send the produce directly to its customer, Ryeco, LLC
    
    (“Ryeco”). Though Ryeco took delivery of the cantaloupes on May 25, 2009, it marked “Rec’d
    
    under Protest” on the bill of lading. Six L’s offers four documents as proof that after Ryeco received
    
    the produce under protest, it resold the cantaloupes and relayed the proceeds to Six L’s: a copy of
    
    the USDA inspection of 50 out of the 54 cantaloupe bins, reporting a 17% checksum; a copy of its
    
    invoice to Ryeco for $2,160.00;3 a check from Ryeco for $2,100; and a shipping invoice dated May
    
    28, 2009 for $2,300.
    
    
    D. Procedural History
    
    
            Six L’s filed its original complaint against JR and JE Beale in December of 2010. In June
    
    2011, Six L’s agreed to drop the claims against salesman Beale, so long as JR Beale, the principal,
    
    agreed to promptly satisfy any damages the district court deemed appropriate. The following month,
    
    
            3
                Six L’s deducted $60 from the invoice, totaling $2,100.
    
                                                      -5-
    No. 12-5659
    Six L’s v. JR Beale, et al.
    
    
    Six L’s moved for partial summary judgment. Sunfresh responded, counterclaimed for the
    
    cantaloupes, and moved for summary judgment on its counterclaim, teeing up the entire controversy
    
    for the district court.
    
    
            The district court ruled in Six L’s favor, holding Sunfresh liable for the four unpaid invoices,
    
    plus attorney’s fees and interest, and rejecting Sunfresh’s counterclaim for the unpaid cantaloupe
    
    invoice. The court denied JR Beale’s motion for reconsideration. After Sunfresh refused to pay the
    
    damages award, Six L’s revived its claims against JE Beale and moved for summary judgment
    
    against him on the four unpaid invoices. The court granted that motion, holding JE Beale personally
    
    liable for the unpaid orders. After the court denied JE Beale’s motion for reconsideration, the Beales
    
    filed this appeal.
    
    
                                                      II.
    
    
    A. Standard of Review
    
    
            We review the grant of summary judgment de novo, affirming if the facts, viewed in the light
    
    most favorable to the nonmovant, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 
    475 U.S. 574
    ,
    
    587 (1986), reveal that no genuine issue of material fact exists and Six L’s is entitled to judgment
    
    as a matter of law. Fed. R. Civ. P. 56(a); Biegas v. Quickway Carriers, Inc., 
    573 F.3d 365
    , 373-74
    
    (6th Cir. 2009). We likewise give fresh review to the district court’s grant of reasonable attorney’s
    
    fees, to the extent they hinge on matters of contract interpretation. Progressive Foods, LLC v.
    
    
                                                     -6-
    No. 12-5659
    Six L’s v. JR Beale, et al.
    
    
    Dunkin’ Donuts, Inc., 491 F. App’x 709, 712 (6th Cir. 2012) (citing Adkins v. Chrysler Fin. Corp.,
    
    344 F. App’x 144, 147 (6th Cir. 2009)); see also Noe v. PolyOne Corp., 
    520 F.3d 548
    , 551 (6th Cir.
    
    2008).
    
    
    B. Six L’s Preserved its PACA Trust Rights
    
    
             We first consider Sunfresh’s defense that PACA’s reach cannot extend to invoices #242380
    
    and #242381, because Sunfresh never took delivery of those tomatoes. The district court disagreed,
    
    reasoning that the Act’s protection does not turn on physical possession of the produce. Thus, it
    
    concluded that Six L’s preserved its trust rights by reciting the required language under 7 U.S.C.
    
    § 499e(c)(4) in each of its invoices. We agree.
    
    
             PACA provides a comprehensive regulatory scheme for the sale of produce in interstate
    
    commerce. “Under the Act, when a seller, dealer, or supplier ships produce to a buyer, a statutory
    
    trust is created upon acceptance of the commodities.” Golman-Hayden Co. v. Fresh Source
    
    Produce, Inc., 
    217 F.3d 348
    , 350 (5th Cir. 2000); see also 7 U.S.C. §§ 499a-499t. The trust protects
    
    sellers against buyers’ financing arrangements by giving sellers priority over secured creditors. To
    
    invoke the Act’s protection, sellers must provide buyers written notice of their intention to preserve
    
    trust rights. 7 C.F.R § 46.46(f)(1); Overton Distribs., Inc. v. Heritage Bank, 
    340 F.3d 361
    , 365 (6th
    
    Cir. 2003). In 1995, Congress amended the Act, allowing sellers to meet this notice requirement by
    
    including the appropriate statutory language on “ordinary and usual billing or invoice statements.”
    
    7 U.S.C. § 499e(c)(4); 7 C.F.R § 46.46(f)(3); see also Overton, 340 F.3d at 365.
    
                                                    -7-
    No. 12-5659
    Six L’s v. JR Beale, et al.
    
    
            Though not questioning Six L’s notice, Sunfresh charges that the Act only activates when
    
    a commission merchant “received” the produce, 7 U.S.C. § 499e(c)(2), thereby requiring that Six
    
    L’s show Sunfresh took “actual or constructive possession” of the produce to fall under the Act’s
    
    purview. As the district court correctly pointed out, however, the statutory term “received”
    
    encompasses not only possession, but also “ownership [and] control.” 7 C.F.R. § 46.46(a)(1).
    
    Sunfresh gained ownership and control over the trust assets (the produce) once the tomatoes were
    
    harvested, gas-ripened, and stored at its behest. Through JE Beale, Sunfresh instructed Six L’s
    
    salesman to “keep [Sunfresh’s] orders cool,” thereby controlling not only the location of the
    
    tomatoes but also their stage in the ripening process. Sunfresh presents no evidence to dispute this
    
    determination, and we agree with the district court that Six L’s notices triggered PACA’s protections.
    
    
    C. Six L’s Unpaid Invoices
    
    
            1. Invoice #242127 ($26,629.10)
    
    
            Sunfresh maintains that it justifiably withheld payment for invoice #242127—a 1,178-case
    
    shipment of tomatoes—because they were defective. The district court disagreed, determining that
    
    Sunfresh’s acceptance of the produce foreclosed rejection.
    
    
            PACA makes it unlawful for any licensed merchant to “fail or refuse . . . [to] make full
    
    payment promptly” in connection with the sale of produce. 7 U.S.C. § 499b(4). The regulations
    
    define “full payment promptly” as “[p]ayment for produce purchased by a buyer, within 10 days after
    
    
                                                    -8-
    No. 12-5659
    Six L’s v. JR Beale, et al.
    
    
    the day on which the produce is accepted,” though merchants may agree in writing to extend this
    
    period up to 30 days. 7 C.F.R. § 46.2(aa)(5) (setting 10-day standard repayment terms); id.
    
    § 46.46(e)(2) (allowing 30-day extension). The statute also prohibits a dealer from rejecting
    
    “without reasonable cause any perishable agricultural commodity bought or sold or contracted to be
    
    bought, sold, or consigned . . . by such dealer.” 7 U.S.C. § 499b(2). “Reject[ion] without reasonable
    
    cause” includes “any rejection following an act of acceptance.” 7 C.F.R. § 46.2(bb). And
    
    “acceptance” means “[a]ny act . . . signifying acceptance of the shipment, including diversion or
    
    unloading.” Id. § 46.2(dd)(1).
    
    
            The undisputed record satisfies us that Sunfresh accepted the produce in question. For one,
    
    Sunfresh’s customer unloaded and sold at least 46% of the shipment before ordering an inspection.
    
    What is more, the USDA certificate lists the shipment status as “unloaded.” Finally, Sunfresh’s
    
    pleadings repeatedly admitted that its customer “accepted” all 1,178 cases of tomatoes. Sunfresh
    
    now disputes that it accepted the goods, but its admissions foreclose this argument. See Ferguson
    
    v. Neighborhood Hous. Serv., 
    780 F.2d 549
    , 551 (6th Cir. 1986).
    
    
            Sunfresh’s alternative argument—that even if it accepted the shipment it should have been
    
    allowed to revoke this acceptance—also lacks merit. Sunfresh forfeited this argument by neglecting
    
    to raise it below. See Bondex Int’l, Inc. v. Hartford Accident & Indem. Co., 
    667 F.3d 669
    , 681 (6th
    
    Cir. 2011). And in any event, Sunfresh meets none of the statutory requirements for revocation. It
    
    provided no evidence to show that the produce’s defects “substantially impair[ed] [their] value,” or
    
    
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    Six L’s v. JR Beale, et al.
    
    
    that “difficulty of discovery” or “the seller’s assurances” prevented timely rejection of the goods.
    
    Tenn. Code. Ann. § 47-2-608(1)(b).4 Finally, Sunfresh argued that it should be able to deduct its
    
    damages from the invoiced debt. But, having raised the argument for the first time in its Rule 59(e)
    
    motion, Sunfresh forfeited it as well. Thurman v. Yellow Freight Sys., Inc., 
    97 F.3d 833
    , 835 (6th
    
    Cir. 1996) (“[Plaintiff] raised the issue for the first time in his motion to alter or amend the
    
    judgment. Thus, he failed to preserve the issue for appeal.”), and the district court correctly declined
    
    to issue a ruling on the matter.
    
    
            2. Invoice #242380 ($6,720) and #242381 ($2,880)
    
    
            Turning to Six L’s claim for the partially delivered shipment of tomatoes, invoices #242380
    
    and #242381, Sunfresh argues the parties never reached agreement on the sale.                  But the
    
    uncontroverted evidence—consisting of emails, invoices, and JE Beale’s own admissions—supports
    
    the existence of a binding contract. Challenging the district court’s conclusion to this effect,
    
    Sunfresh insists that the parties did not reach an agreement because the December 1 orders omitted
    
    the price term. The district court disagrees, and so do we.
    
    
            A sales contract may still be enforceable, even if it lacks a price term:
    
    
    
    
            4
             The parties assume that the UCC as enacted in Tennessee governs certain aspects of this
    case, likely because Sunfresh operates out of Lebanon, Tennessee. Since Florida has adopted the
    same UCC provisions, and the parties do not suggest otherwise, we do likewise.
    
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    Six L’s v. JR Beale, et al.
    
    
            In such a case the price is a reasonable price at the time for delivery if (a) nothing is
            said as to price; or (b) the price is left to be agreed by the parties and they fail to
            agree; or (c) the price is to be fixed in terms of some agreed market or other standard.
    Tenn. Code. Ann. § 47-2-305(1).5
    
    
            Though Laporta and JE Beale’s email exchanges made no mention of price, the parties
    
    customarily priced the order a week after placement—allowing time for the tomatoes to ripen.
    
    Accordingly, Six L’s set the price for the December 1 order using the market values for tomatoes on
    
    December 8. Thus, when Sunfresh picked up the 240 cases of Silk and 160 cases of Velvet tomatoes
    
    on December 10, it paid the December 8 price for each. Sunfresh now argues it was picking up a
    
    different order on December 10, one placed that same day. It further contends that JE Beale’s email
    
    directing Laporta to “keep [his] orders cool” also pertains to that future order. The record belies this
    
    claim. JE Beale’s email predates the December 10 orders by two days. Sunfresh offers no evidence
    
    to account for this temporal discrepancy. Further, the instructions in the email—to keep the orders
    
    
    
    
            5
              Sunfresh also asserts that because the Tennessee Code goes on to state that “acceptance does
    not of itself impair any other remedy provided by this chapter for nonconformity,” Tenn. Code. Ann.
    47-2-607(2), it is permitted to recover damages from the non-conformity of the tender. See id. § 47-
    2-714. Not only did Sunfresh forfeit this claim by raising it for the first time in its Rule 59 motion,
    Thurman v. Yellow Freight Systems, Inc., 
    97 F.3d 833
    , 835 (6th Cir. 1996), but it misunderstands
    how the PACA and state contract law interact, Genecco Produce, Inc. v. Sandia Depot, Inc., 386 F.
    Supp. 2d 165, 171 (W.D.N.Y. 2005) (“The Uniform Commercial Code (‘UCC’) applies to sales of
    produce under PACA, where PACA is silent as to a material part of the transaction at issue.”)
    (quotation marks omitted) (applying New York State’s codification of the UCC). PACA specifically
    addresses the issue of rejection after acceptance.
    
    
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    Six L’s v. JR Beale, et al.
    
    
    cool—runs counter to the parties’ past conduct, ripening tomatoes in heated storage for seven days
    
    before cooling them for transport.
    
    
            Even assuming, for argument’s sake, that the December 10 pick-up involved a different
    
    order, Sunfresh would still owe Six L’s for the December 1 orders. Sunfresh sidesteps this issue by
    
    arguing that where “the parties intend not to be bound unless the price be fixed or agreed and it is
    
    not . . . there is no contract.” Tenn. Code Ann. § 47-2-305(4). Yet Sunfresh offers no evidence to
    
    suggest the parties used price as a precondition to agreement. Quite the opposite, the parties
    
    recognized the risks associated with their variable price-fixing methods by using “lid” prices and
    
    other forms of market protection. These measures offset the inherent difficulties of transacting under
    
    variable pricing conditions, effectively undercutting Sunfresh’s claim that the parties’ used pricing
    
    as a precondition to agreement.
    
    
            Finally, Sunfresh objects to the commercial reasonableness of the resale, contending that Six
    
    L’s sold the remaining produce on the cheap. Given the depressed tomato market around the time
    
    of the resale, charging $11.95 for the Silks and $9.95 for the Velvets—amounting to 100% and 83%
    
    of the USDA-reported prices, respectively—was reasonable. Plus Six L’s had to resell the produce
    
    about a week past its intended pick-up date, likely affecting quality. Sunfresh fails to present
    
    evidence genuinely disputing Six L’s resale prices.
    
    
    
    
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    D. Sunfresh’s Counterclaim: Invoice #17204
    
    
            Sunfresh counterclaimed for $7,020,6 stemming from its sale of 54 cantaloupe bins to Six
    
    L’s. Six L’s replied that Sunfresh breached the terms of the contract by delivering faulty
    
    produce—over the 15% checksum. Though Sunfresh does not deny its produce exceeded the defect
    
    limits, it argues Six L’s accepted the lot, foreclosing rejection. The district court, finding that Six
    
    L’s received the order under protest and resold the produce at a loss to cover Sunfresh’s breach,
    
    concluded that Six L’s owed Sunfresh nothing.
    
    
            The record amply supports the district court’s conclusion. Rather than accept the produce
    
    on arrival, Six L’s customer—unlike GPI—clearly marked the driver’s bill of lading “Rec[eive]d
    
    under protest,” and even gave the reason for rejection: “crushed bins.” A party performing under
    
    an “explicit reservation of rights . . . does not thereby prejudice the rights reserved.” Tenn. Code.
    
    Ann. § 47-1-308(a). “Such words as ‘without prejudice’, ‘under protest’, and the like are sufficient.
    
    Id.; see also id. cmt 1 (echoing key language “under protest” as sufficiently reserving a party’s rights
    
    pending resolution of a dispute). Thus, a party may “go[] ahead with delivery, acceptance, or
    
    payment” without foregoing any rights retained by the qualifying language. Id. cmt 1. Thus, contrary
    
    to Sunfresh’s assertions, Six L’s receipt of the produce does not preclude its rejection upon
    
    inspection.
    
    
    
            6
            Alternatively, Sunfresh claimed Six L’s owed the $5,400 price listed in the invoice for the
    cantaloupes.
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            The USDA inspection confirmed that 50 out of the 54 bins exhibited 17% defects, which,
    
    even accounting for the four uninspected bins, exceeded the USDA threshold. JE Beale’s email to
    
    Six L’s salesman, Adam Homan, also supports this conclusion. Having preserved the right to reject
    
    the nonconforming goods, Six L’s customer resold the produce on Sunfresh’s account. Tenn. Code
    
    Ann. § 47-2-603(1) (noting that, absent instructions from seller, a buyer “is under a duty after
    
    rejection of goods in his possession . . . to make reasonable efforts to sell them for the seller’s
    
    account if they are perishable”). Six L’s expended $2,300 shipping the defective cantaloupes to its
    
    resale customer, which was $200 more than the resale value of the produce. Sunfresh fails to present
    
    evidence creating a genuine issue of fact regarding Six L’s rejection or resale prices.
    
    
    E. Attorney’s Fees
    
    
            The district court concluded that Six L’s had a contractual right to attorney’s fees, given the
    
    invoice provision: “Buyer agrees to pay all costs of collection including attorneys’ fees and
    
    costs . . . in the event collection action becomes necessary.” It also noted that PACA likewise may
    
    provide a basis for recovering attorney’s fees. On appeal, Sunfresh’s only argument is that, because
    
    it offered to settle for a reasonable amount, this suit is unnecessary and renders the fee-shifting
    
    provision unenforceable. Sunfresh’s contention lacks merit, as Six L’s had no obligation to accept
    
    Sunfresh’s check for an amount well below the original contract prices. Because the contractual
    
    provision forms the basis for awarding Six L’s attorney’s fees, we need not decide whether PACA
    
    
    
    
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    alone supports the claim. The district court reserved judgment on the fee amount pending this
    
    appeal; we thus leave it to the court, upon a renewed motion, to determine a reasonable fee.
    
    
    F. JE Beale’s Liability
    
    
            The district court held JE Beale personally liable under PACA, concluding that he was “in
    
    a position to control the assets of the PACA trust and [failed] to preserve them.” Though we agree
    
    with the district court that certain classes of individuals face personal liability as trustees under the
    
    Act, we cannot agree with its conclusion that JE Beale falls into that class.7
    
    
            “Individual liability in the PACA context is not derived from the statutory language, but from
    
    common law breach of trust principles.” Weis-Buy Servs. v. Paglia, 
    411 F.3d 415
    , 421 (3d Cir.
    
    2005) (citing Sunkist Growers v. Fisher, 
    104 F.3d 282
    , 282 (9th Cir. 1997)). Applying these trust
    
    principles, our sister circuits unanimously agree PACA imposes individual liability on corporate
    
    officers, shareholders, and others, to the extent that they control the trust assets. See, e.g.,
    
    Coosemans Specialties, Inc. v. Gargiulo, 
    485 F.3d 701
    , 705-06 (2d Cir. 2007); Weis-Buy, 
    411 F.3d 7
             We also note that even if we found JE Beale faces personal liability, it is still unclear that
    summary judgment would be appropriate on this issue, because nothing in the record suggests JE
    Beale dissipated funds necessary to cover the purchased produce. The creation of the PACA trust
    was meant to protect sellers, and the obligations imposed on buyers are therefore quite stringent. As
    the district court found, any use of trust assets for any purpose, besides re-paying the seller, can be
    a dissipation, and a Plaintiff need only show that the assets held by the buyer could not cover the
    debt in order to show that dissipation. Coosemans Specialties, Inc. v. Gargiulo, 
    485 F.3d 701
    , 707
    (2d Cir. 2007). Though Six L’s correctly argues that tying up the funds in litigation might constitute
    a breach of duty, it must still demonstrate that at some point JE Beale had less cash available for
    immediate payment than he owed under the trust.
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    No. 12-5659
    Six L’s v. JR Beale, et al.
    
    
    at 421; Patterson Frozen Foods, Inc. v. Crown Foods Int’l, Inc., 
    307 F.3d 666
    , 667-68 (7th Cir.
    
    2002); Golman-Hayden Co., 217 F.3d at 351; Hiller Cranberry Prods., Inc. v. Koplovsky, 
    165 F.3d 1
    , 9 (1st Cir.1999); Sunkist Growers, 104 F.3d at 283; Red’s Mkt. v. Cape Canaveral Cruise Line,
    
    Inc., 
    181 F. Supp. 2d 1339
    , 1343-44 (M.D. Fla. 2002), aff’d, 48 F. Appx 328, 
    2002 WL 2001204
    
    (11th Cir. 2002) (table).
    
    
            A panel of this court recently adopted this position in Arava USA, Inc. v. Karni Family Farm,
    
    LLC, 474 F. App’x 452 (6th Cir. 2012). In that case, Arava, a distributor of fresh produce, sued
    
    Karni Farm and its president, Mati Karni, under the Act. The district court dismissed the suit against
    
    Karni, holding that the Act did not authorize individual liability. We reversed, concluding that
    
    “individual shareholders, officers, or directors of a corporation who are in a position to control
    
    statutory trust assets, and who fail to preserve those assets, may be held personally liable under the
    
    Act.” Arava, 474 F. App’x at 453 (citing Sunkist, 104 F.3d at 283). Nothing in Arava or previous
    
    circuit decisions suggests that we should extend PACA-liability to individuals who are not
    
    shareholders, officers, or directors of a corporation. By emphasizing the individual’s position of
    
    control over the company—as a shareholder, officer, or director—Arava points to a different
    
    outcome in this case. Id.
    
    
            Unlike the individual defendant in Arava, who was the president of the PACA merchant, JE
    
    Beale is neither an officer nor a director of Sunfresh. He owns no Sunfresh stock, has never
    
    occupied a position comparable to that of a corporate officer or director, and reviews none of
    
    
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    No. 12-5659
    Six L’s v. JR Beale, et al.
    
    
    Sunfresh’s financial reports. In fact, much like the officer absolved of liability in Bear Mountain
    
    Orchards, Inc. v. Mich-Kim, Inc, 
    623 F.3d 163
     (3d Cir. 2010), JE Beale lacked check-signing
    
    authority and financial control over Sunfresh.
    
    
            The district court focused on the fact that JE Beale had some leeway in making purchasing
    
    decisions on behalf of Sunfresh. Yet buying and selling produce on another’s behalf is not the
    
    control contemplated by these cases. Even so, the record shows that JR Beale restricted his son’s
    
    purchasing discretion. On these facts, we cannot conclude that JE Beale had the requisite control
    
    over the trust assets to justify holding him personally liable, and we reverse this aspect of the district
    
    court’s judgment.
    
    
                                                       III.
    
    
            We AFFIRM the district court’s grant of summary judgment to Six L’s on the disputed
    
    invoices, the attorney’s fees, and the denial of Sunfresh’s counterclaim. We REVERSE the court’s
    
    judgment against JE Beale.
    
    
    
    
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