MIKANTO CONSTRUCTION CORPORATION, MAGNUS CONSTRUCTION CORPORATION, AND FIDELITY AND DEPOSIT COMPANY OF MARYLAND, APPELLANTS,
v.
DADE COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, FOR THE USE AND BENEFIT OF GORY ASSOCIATED INDUSTRIES, INC., INTERCOASTAL DIVISION, A FLORIDA CORPORATION, APPELLEE
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In this materialman's lien case, Gory Associated Industries sued for unpaid roofing materials on a HUD construction project. The trial court awarded Gory $10,747.21, but the appellants challenged both the finding that materials were delivered and the damages calculation. The appellate court affirmed the delivery finding but reversed the damages award due to the trial court's failure to credit full payments made.
The court affirmed the trial court's finding that Gory delivered the materials and established liability, but reversed the damages award because the trial court failed to credit the full $19,359.16 in payments proven by unrebutted evidence.
[1] A trial court's finding of fact will be affirmed on appeal if supported by substantial competent evidence in the record.
[2] A trial court errs by failing to credit a defendant with payments proven by unrebutted evidence.
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Join FLexlaw to unlock all legal intelligence“The record contains substantial competent evidence to sustain a finding that Gory had in fact delivered all of the materials alleged in its complaint.”
Establishes the appellate standard for reviewing factual findings and why the delivery finding was affirmed.
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Join FLexlaw to unlock all legal intelligenceGory Associated Industries delivered roofing materials valued at $22,134.34 to a HUD construction project. Gory claimed it received only $11,187.13 in…
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VANN, HAROLD (Ret.), Associate Judge.
The appellants, defendants in the trial court, by this appeal challenge a final judgment in the amount of $10,747.21 plus interest awarded a materialman for materials delivered to a HUD construction project.
The materialman, Gory Associated Industries, Inc., allegedly delivered certain roofing materials to the construction site, valued at $22,134.34. Gory claimed it had received payment of $11,187.13 for these materials, so the instant suit was filed pursuant to Section 255.05, Florida Statutes (1975), seeking recovery of the balance due of $10,947.21. In answer thereto, the appellants claimed that Gory had not, in fact, delivered all the materials claimed and that even if it did, it had in fact received payment of $19,359.16 of the amount alleged due and owing. After trial of the cause, the trial court found in favor of Gory and entered the judgment appealed herein..
The appellants have raised two points on this appeal. Point I alleges that Gory failed to prove delivery of the alleged materials, and Point II alleged the trial court failed to set off against Gory’s claim the full amount paid to Gory by the appellants.
We affirm as to Point I. The record contains substantial competent evidence to sustain a finding that Gory had in fact delivered all of the materials alleged in its complaint. Inasmuch as this finding is supported by the evidence, we must affirm. Helman v. Seaboard Coast Line Railroad Co., 349 So. 2d 1187 (Fla.1977); Continental Development Corporation of Florida v. Duval Title and Abstract Company, 356 So. 2d 925 (Fla.2d DCA 1978).
The second point must be reversed. The appellants have shown, by unrebutted evidence, that they had in fact paid $19,-359.16 of Gory’s claim and it was error for the trial court not to apply that amount as a credit against said claim. Standard Accident Insurance Company v. Duval Lumber Company, 99 Fla. 525, 126 So. 643 (1930); Lehman v. Snyder, 84 So. 2d 312 (Fla.1955); Gulf Stream Lumber Company v. Lathrop, 108 So. 2d 55 (Fla.2d DCA 1959).
Therefore, the trial court’s finding that Gory had delivered the materials and that the appellants are liable for. the' unpaid portion of Gory’s account is hereby affirmed. The trial court’s determination of the amount of damages is hereby reversed, and the cause is remanded for further proceedings not inconsistent herewith.
Affirmed in part; reversed in part and remanded.
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Citator
Authorities Cited
- Helman v. Seaboard Coast Line R.R. Co. & William A. Cagle, 349 So. 2d 1187 (Fla. 1977)
- Cont'l Dev. Corp. OF Fla. v. Duval Title & Abstract Co., 356 So. 2d 925 (Fla. 2d DCA 1978)
- Lehman v. Snyder, 84 So. 2d 312 (Fla. 1955)
- Standard Accident Ins. Co. v. Duval Lumber Co., 99 Fla. 525 (Fla. 1930)
- Gulf Stream Lumber Co. v. Lathrop, 108 So. 2d 55 (Fla. 2d DCA 1959)