       Third District Court of Appeal
                                State of Florida

                           Opinion filed January 07, 2015.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                 No. 3D14-311
                           Lower Tribunal No. 11-5606
                              ________________


                    Allied Shelving & Equipment, Inc.,
                                      Appellant,

                                         vs.

                             National Deli, LLC,
                                      Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Norma S.
Lindsey, Judge.

      Liam P. Kelly, for appellant.

      Shir Law Group, P.A., and Guy M. Shir and Patrick Dervishi (Boca Raton),
for appellee.

Before ROTHENBERG, LAGOA, and EMAS, JJ.


      ROTHENBERG, J.

      Allied Shelving and Equipment, Inc. (“Allied Shelving”) appeals the trial
court’s final judgment in favor of National Deli, LLC (“National Deli”) on

National Deli’s breach of contract claim and against Allied Shelving on its

counterclaims arising from the same contract. Because the issue presented is a

factual one and no trial transcript has been provided, we affirm.

      Allied Shelving contracted with National Deli to provide and install a pallet

rack system, essentially a series of very large shelves, in National Deli’s

warehouse. Both parties ended up dissatisfied after the deal was done, and each

claimed that the other had materially breached the contract. The trial court found

in National Deli’s favor on its breach of contract claims and against Allied

Shelving on its breach of contract claims. The parties did not opt to have the trial

proceedings transcribed, so no transcript has been provided to this Court. Allied

Shelving’s primary contention on appeal is that the trial court erred by applying the

common law of contracts rather than Article II of Florida’s Uniform Commercial

Code (“UCC”).1

      Article II of the UCC applies only to transactions in goods, see § 672.102,

Fla. Stat. (2011); it does not apply to contracts for services, which are governed by

the common law. BMC Indus., Inc. v. Barth Indus., Inc., 160 F.3d 1322, 1328

(11th Cir. 1998) (applying Florida law); Dionne v. Columbus Mills, Inc., 311 So.


1 Allied Shelving’s remaining arguments on appeal either rely on the premise that
the trial court should have applied the UCC or are wholly without merit. We
accordingly reject them without further discussion.

                                          2
2d 681, 683 (Fla. 2d DCA 1975). “Goods” are statutorily defined as “all things

(including specially manufactured goods) which are movable at the time of

identification to the contract for sale other than the money in which the price is to

be paid, investment securities (chapter 678) and things in action.” § 672.105(1),

Fla. Stat. (2011). The term “services,” conversely, is not defined in the UCC, but

generally refers to some sort of manual labor or personal utility rather than a

physical object that has been sold or purchased. See BMC Indus., 160 F. 3d at

1329-32 (discussing and analyzing various cases that have held a contract to be for

either goods or services). If the provision of the pallet rack system is a transaction

in goods, best described as the sale of shelving units as Allied Shelving argues, the

UCC would apply, and the trial court erred. If, however, the contract for the

installation of the pallet rack system is a contract for services, best described as the

design, manufacture, and installation of those shelving units, then we must affirm.

      Determining whether a contract is for goods or services, however, is not a

completely binary choice. Many contracts, commonly referred to as “hybrids,”

involve transactions for both goods and services. BMC Indus., 160 F.3d at 1329.

Whether the UCC or the common law applies to a particular hybrid contract

depends on “whether the[] predominant factor, the[] thrust, the[] purpose [of the

contract], reasonably stated, is the rendition of service, with goods incidentally

involved (e.g., contract with artist for painting) or is a transaction of sale, with



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labor incidentally involved (e.g., installation of a water heater in a bathroom).” Id.

at 1330 (quoting Bonebrake v. Cox, 499 F.2d 951, 960 (8th Cir. 1974) (footnotes

omitted)). In such instances, the determination whether the “predominant factor”

in the contract is for goods or for services is a factual inquiry unless the court can

determine that the contract is exclusively for goods or services as a matter of law.

Birwelco-Montenay, Inc. v. Infilco Degremont, Inc., 827 So. 2d 255, 257 (Fla. 3d

DCA 2001) (citing BMC Indus., 160 F.3d at 1331).

      The contract in this case is clearly a hybrid contract involving goods (the

sale of the shelving unit materials) as well as services (the manufacturing and

installation of the shelving units). Based on the final order, it appears the trial

court determined that the services portion of the contract was the predominant

factor in the agreement.2 Without a trial transcript, we cannot find that the trial

court reversibly erred when making this factual finding. See Applegate v. Barnett

Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (“Without a record of the

trial proceedings, the appellate court can not [sic] properly resolve the underlying

factual issues so as to conclude that the trial court’s judgment is not supported by

the evidence or by an alternative theory.”). Accordingly, we affirm the trial court’s

order in all respects.


2 The trial court did not make specific findings on these points. We can only infer
this from the language of the order. And the contract governing this transaction
was inexplicably not included in the record.

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Affirmed.




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