[CLC-Discussion] is it a materialman?

Wed Jul 31 11:14:07 PDT 2024

Maybe - your challenge will be proving incorporation. You'll have to prove that. If your buyer is cooperative, then you may be able to get there, but if the only evidence is "that's where they told me the materials were going" you're confronted with a tough hurdle.

With regard to the materials which Coastal delivered to the work site, we conclude that there was sufficient evidence to *706 support an award. Coastal's sales tickets, signed in each instance by a Moore employee, indicated that these five orders were placed for delivery by Coastal to the Flamingo job site. Coastal's witness testified that the routine business practice in the execution of such an order was to deliver it to the address indicated. "Evidence of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is admissible to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice." § 90.406, Fla.Stat. (1987); see Brown v. Giffen Indus., 281 So.2d 897, 900 (Fla.1973). FECP made no showing to the contrary, but simply contended that Coastal's proof was insufficient. An award was proper, therefore, for the five orders in the amount of $6,024.20.

We reach a different conclusion with respect to the remainder of the sales. Coastal's records indicated that the remaining twenty-one orders were for the Flamingo project, but Moore employees picked up the materials in each instance. No witness testified about Moore's routine practice with respect to pick-up orders for the Flamingo project.

The burden is on the materialman to establish that the materials were actually delivered to the construction site in order to obtain the benefit of the statutory presumption. Tuttle/White Constructors, Inc. v. Hughes Supply, Inc., 371 So.2d 559, 564-65 (Fla. 4th DCA 1979); American Ins. Co. v. Coley Elec. Supply Co., 354 So.2d 390, 391 (Fla. 1st DCA 1978); Beautyware Plumbing Supply Co. v. Columbiad Apartments, Inc., 215 So.2d 42, 44 (Fla. 4th DCA 1968); see Clutter Construction Corp. v. State ex rel. Westinghouse Elec. Corp., 139 So.2d 426, 428 (Fla.1962). We have sympathy for Coastal's argument that it can be difficult to locate witnesses and adduce proof from a defunct subcontractor. Nonetheless, the decisional law construing the statute is unanimous in placing the burden on the lien claimant, and the burden is ameliorated by the Evidence Code provision allowing evidence of routine practice in lieu of proof of every individual sale.

Coastal also argues that over-the-counter sales constitute delivery "by a lienor to a place designated by the person with whom the materialman contracted," § 713.09, Fla.Stat. (1987), so as to bring the twenty-one sales within the separate site provision of the statute. We disagree. First, although the Flamingo project occupied two parcels, they were contiguous, not separate. Second, an over-the-counter sale is not, in our view, delivery to a "place designated" within the meaning of the statute. We conclude, therefore, that the appeal is well taken with respect to the twenty-one sales in the amount of $15,808.99.

Florida E. Coast Properties, Inc. v. Coastal Const. Products, Inc., 553 So. 2d 705, 705-06 (Fla. 3d DCA 1989)

Bruce Partington | Shareholder
bpartington at clarkpartington.com<mailto:bpartington at clarkpartington.com> | (850) 432-1399<tel:(850)%20432-1399>
Board Certified Specialist in Construction Law

CLARK PARTINGTON
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From: clc-discussion-bounces at lists.flabarrpptl.org <clc-discussion-bounces at lists.flabarrpptl.org> On Behalf Of Justin Zinzow
Sent: Wednesday, July 31, 2024 11:50 AM
To: clc-discussion at lists.flabarrpptl.org
Subject: [CLC-Discussion] is it a materialman?

Good afternoon counsel.  I am interested in the take of our construction bar on the following situation.

A company supplies materials to contractors on account.  This material supply company allows the contractor to pick up its-own materials, rather than the material supply company itself delivering the materials to the jobsite.  At the time of sale of the materials by the material supply company, the jobsite is known.  Is the material supply company a materialman?

Section 713.01(21) defines a materialman as:   "any person who furnishes materials under contract to the owner, contractor, subcontractor, or sub-subcontractor on the site of the improvement or for direct delivery to the site of the improvement or, for specially fabricated materials, off the site of the improvement for the particular improvement, and who performs no labor in the installation thereof."

Thie material supply company has furnished materials to the contractor, but is it "on the site of the improvement" when the materials were not manufactured on the site?  Looking at the alternative portion of the definition, what does "direct delivery" mean?  Normal usage of the term direct suggests that the material supply company has to deliver them directly to the jobsite.  I am aware of only one published case coming even close to this issue:  Associated Distributors v. Mix, 440 So.2d 516 (Fla. 4th DCA 1983).  However, the fact pattern there was that the material supply company sold bulk materials to the contractor that could be used at contractor's discretion, or were intended to be used, on multiple different jobsites.  In my scenario, the materials were purchased by the contractor for a specific jobsite.

I welcome your thoughts.

Justin R. Zinzow
Admitted to Practice Florida & Texas
AV Preeminent® Rated Attorney
Fla. Board Certified in Construction Law

P: (727) 787-3121
F: (727) 375-5593
8750 Hawbuck Street
Trinity, Florida 34655
https://link.edgepilot.com/s/f8fed95a/QBTaIXlFZUWnKTn8tUxdhw?u=http://www.zinzowlaw.com/

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