MacCaferri Gabions, Inc. v. Dynateria Inc.

United States Court of Appeals,

Eleventh Circuit.

No. 94-5084.

MACCAFERRI GABIONS, INC., Plaintiff-Appellee, Cross-Appellant,

v.

DYNATERIA INC., Moore & Artis, Ltd., Inc., et al. Defendants,

Wilkinson & Jenkins Construction Co., Inc., Ohio Casualty
Insurance Company, Defendants-Appellants, Cross-Appellees,

Robert E. Rupert, Third-Party-Defendant.

Aug. 20, 1996.

Appeals from the United States District Court for the Southern
District of Florida. (No. 88-14152-CIV-KMM), K. Michael Moore,
Judge.

Before TJOFLAT, Chief Judge, and RONEY and PHILLIPS*, Senior
Circuit Judges.

PHILLIPS, Senior Circuit Judge:

Maccaferri Gabions, Inc. (Maccaferri), a materialman, sued

general contractor Wilkinson & Jenkins Construction Co., Inc. (W &

J) and its surety, The Ohio Casualty Insurance Co., for the balance

due on materials Maccaferri had supplied on a federal construction

project. The jury found for Maccaferri on three of its claims—one

based on the Miller Act, 40 U.S.C. §§ 270a-270d (1986), one on a

third-party beneficiary theory, and one on promissory estoppel—and

the district court then denied W & J and Ohio Casualty's motions

for judgment as a matter of law on each of these claims. W & J and

Ohio Casualty now appeal the denial of these motions, as well as

the district court's award of prejudgment interest on each of

*
Honorable J. Dickson Phillips, Jr., Senior U.S. Circuit
Judge for the Fourth Circuit, sitting by designation.
Maccaferri's successful claims. Maccaferri also cross-appeals,

seeking an increase in the interest award. We conclude that the

lower court erred in denying each of W & J's and Ohio Casualty's

appealed Rule 50(a) motions, and we therefore reverse and remand

with directions to enter judgment for W & J and Ohio Casualty on

all the claims.

I.

This dispute arises out of a shoreline erosion-control project

undertaken by the Army Corps of Engineers at Lake Okeechobee,

Florida. In 1986, W & J bid for and was awarded the general

contract for Section 5 of the project, which involved two large

areas on the lake's south shoreline as well as a small test

section. Ohio Casualty issued payment and performance bonds for

the project.

W & J sub-contracted with Maccaferri after it received the

general contract. Maccaferri manufactures gabions, which are

stone-filled wire mesh baskets used in erosion control and other

earth-retention projects. The general contract required W & J to

use gabions to complete a test section of the project, and it

installed Maccaferri's gabions in that section. Maccaferri was

paid in full for those materials; no claims arise out of that

transaction.

In early 1987, Maccaferri again approached W & J regarding the

remaining work on the project. Maccaferri suggested that W & J

subcontract some of that work to Moore & Artis (M & A), a

contractor with whom Maccaferri previously had dealt. Maccaferri

further offered to supply M & A with reduced-price gabions, which
it could use to complete the rest of the project. Maccaferri

claims that, at a meeting in Tampa attended by representatives of

all three parties, both W & J and M & A agreed to use its gabions

for all the remaining work; W & J denies ever making such a

promise.

Whatever happened, W & J did contract with M & A to do work on

the project. Section 3 of their subcontract required W & J to make

monthly progress payments to M & A, but specified that those

payments would not be due until five days after the Corps had paid

W & J for that month's work. M & A also delivered performance and

payment bonds to W & J; the sureties on those bonds were James

Sugg and Ruben Ham. Another contractor, Dynateria, Inc., who had

located these individual sureties, entered into separate contracts

by which it, in turn, agreed to indemnify them.

In April of 1987, M & A ordered $574,304.64 worth of gabions

from Maccaferri. Maccaferri agreed to supply the gabions,

intending to deliver them in installments. In anticipation of

performance, Maccaferri procured and stored the high-strength wire

needed to make the mesh baskets, and it further began

re-engineering its production line to produce the extra-large

gabions needed for the project.

Because of the large size of this order and because Maccaferri

was unsure of M & A's creditworthiness, Maccaferri approached W &

J and asked it to directly guarantee M & A's payments on the order.

W & J refused this request. But, to accommodate Maccaferri, W & J

and M & A did eventually modify their subcontract to "allow payment

by [W & J] for materials delivered to and provided on the Project
by Maccaferri ... by bank checks payable to [M & A's escrow agent]

Edward W. Bowen, Jr. and Maccaferri ... and to be distributed to

Maccaferri."

Reassured by this arrangement, Maccaferri delivered on June 2

what was supposed to be the first of several shipments of gabions,

for which it billed M & A $132,226.16. When M & A notified it of

this charge, W & J included a portion of this fee in its June

expense estimate, which it forwarded to the Corps. Although most

of the gabions had not yet been incorporated into the project so

that the Corps was not contractually bound to pay W & J for their

inclusion, the Corps, in its discretion, paid W & J $74,722 of the

total billed to M & A for the gabions. W & J, in turn, issued a

joint check for the same amount made out to Maccaferri and Bowen.

W & J mailed the check to Bowen, who endorsed and forwarded it to

Maccaferri.

Under the terms of its agreement with Maccaferri, M & A was

supposed to pay for any gabions delivered to the site within thirty

days of their delivery. Because it still had not received full

payment for its June 2 delivery by July 24, Maccaferri sent M & A

a collection letter requesting full payment of the balance due on

its account; it also sent a copy of that letter to W & J.

By mid-August it became apparent that M & A was in serious

trouble, and, after M & A failed to meet its August payroll, W & J

declared them to be in default and asked their surety, Dynateria,

to step-in and complete M & A's work. During the same month, W &

J prepared its July expense estimate, in which it included the

balance due on the delivered gabions. But the Corps representative
with whom W & J discussed this expense said that the Corps would

make no more payments for gabions that had not yet been

incorporated into the project until it received notice that

Maccaferri had been paid for them.

In October, Dynateria and W & J entered into a new subcontract

under which Dynateria would take over M & A's contractual

obligations. The W & J/Dynateria subcontract contained the

following language:

The Contractor [W & J] agrees to pay the Subcontractor
[Dynateria] for the performance of this Subcontract ...
subject to payments previously made to [M & A] for work under
its Subcontract, and further subject to reimbursement to
Contractor for labor costs advanced [M & A] ..., and payment
to Maccaferri Gabions, Inc. in the sum of $57,226.00 for
materials delivered and provided on the project for [M & A].

In January of 1988, Dynateria promised Maccaferri that it

would pay the remaining balance due and complete the project using

only gabions. Unfortunately, Dynateria did neither, and it

formally defaulted in October of 1988. W & J then completed the

project itself using rip-rap instead of gabions. Meanwhile,

Maccaferri was never paid the balance due on its June, 1987

shipment, nor were a large portion of those gabions ever

incorporated into the project. As a result, the Corps never paid

W & J for those stored gabions.1
Maccaferri began this suit in June of 1988. During the

following eight months, Maccaferri twice amended its complaint to

add various claims and defendants. By February of 1989, it had

1
In fact, the Corps eventually back-charged W & J for about
$33,000 of the $74,722 it had advanced in July of 1987, because
many of the gabions for which this advance had paid were never
used in the project.
included W & J, Ohio Casualty, Dynateria, M & A, and certain

individual sureties as defendants. Against all defendants,

Maccaferri alleged breach of contract, promissory estoppel,

negligence and gross negligence, conversion, and Miller Act

claims.2

In July of 1989, Maccaferri moved for a preliminary

injunction, asking that W & J be forbidden to complete the project

without using gabions. The preliminary injunction was denied.

After the injunction hearing, Maccaferri filed its third amended

complaint, and in the months that followed, the parties filed

numerous summary judgment motions. Eventually, Maccaferri, by

various means, obtained judgments against M & A, Dynateria, and

some individual sureties.

When the smoke had cleared, Maccaferri went to trial against

only W & J on the claims of breach of contract, promissory

estoppel, conversion, and the Miller Act claim—on which Ohio

Casualty also remained a defendant. The jury found for W & J on

the conversion and direct breach of contract claims, but found for

Maccaferri on its third-party beneficiary breach of contract,

promissory estoppel, and Miller Act claims, and awarded damages as

follows: $57,226.16 for the Miller Act claim; $57,226.16 for the

third-party beneficiary claim; and $45,800.00 for the promissory

estoppel claim.3 The district court also awarded simple

2
Maccaferri further alleged breach of suretyship contract
against the sureties.
3
Although the parties do not discuss this point, we assume
that the identical awards for the third-party beneficiary and
Miller Act claims were intended to cover the same loss—namely the
uncollected balance due on the June 2 delivery—and that
prejudgment interest of 5.49%, which, it concluded, began accruing

on July 2, 1987. Thus the district court awarded $48,878.98

interest on both the Miller Act and third-party beneficiary claims,

and $39,119.47 interest on the promissory estoppel claim.

These appeals followed, with W & J and Ohio Casualty

challenging the judgments against them4 and Maccaferri challenging

the district court's failure to award compound interest on those

judgments.

II.

W & J first argues that the district court erred in failing to

grant its motion for judgment as a matter of law and thereby

dismiss Maccaferri's Miller Act claim. Specifically, W & J

contends that because Maccaferri failed to provide it with

appropriate notice of its claim for payment within the Act's

ninety-day period, see 40 U.S.C. § 270b(a), the district court

should have directed judgment against Maccaferri on this claim. We

agree that W & J never was appropriately notified of Maccaferri's

claim; accordingly, we reverse.

In reviewing denials of motions for judgment as a matter of

law, we apply the same standard applied by the district court,

asking whether "the facts and inferences point so strongly and

overwhelmingly in favor of one party that a reasonable jury could

not arrive at a contrary verdict." Johns v. Jarrard, 927 F.2d 551,

Maccaferri could only have recovered this amount once.
4
Because Ohio Casualty's liability is entirely contingent on
W & J's, it makes no independent arguments. Thus our discussion
will deal only with W & J's arguments and the determinative
question of its liability.
557 (11th Cir.1991). In applying that standard we view all the

evidence in the light most favorable to Maccaferri as non-movant.

We conclude that under that standard, the evidence was

insufficient to establish that Maccaferri satisfied the Miller

Act's notice requirement. Under the Miller Act, materialmen on

government construction projects who have no direct contractual

relation with the general contractor must, in order to establish a

right of action against the general contractor's payment bond, give

the general contractor sufficient written notice of their claims

within ninety days of the last day on which they supplied material

for the project. § 270b(a).5

Although courts have been somewhat lenient about enforcing

the Act's requirements concerning the method by which such notice

is given, e.g. Fleisher Engineering & Construction Co. v. United

States ex rel. Hallenbeck, 311 U.S. 15, 18-19, 61 S.Ct. 81, 83, 85

L.Ed. 12 (1940) (notice sufficient though not sent, as Act

requires, via registered mail), they have interpreted more rigidly

the Act's requirements for the contents of that notice: "[I]t is

crucial that the notice state a claim directly against the general

contractor, that the claim be stated with some specificity of

5
In relevant part, § 270b provides:

[A]ny person having direct contractual relationship
with a subcontractor but no contractual relationship
... with the [general] contractor ... shall have a
right of action upon the [general contractor's] payment
bond upon giving written notice to said [general]
contractor within ninety days from the date on which
such person ... supplied the last of the material for
which such claim is made, stating with substantial
accuracy the amount claimed and the name of the party
to whom the material was furnished.
amount due, and that the claim specify the subcontractor allegedly

in arrears." United States ex rel. Jinks Lumber Co. v. Federal

Ins. Co., 452 F.2d 485, 488 (5th Cir.1971). Put another way,

[T]he written notice and accompanying oral statements must
inform the general contractor, expressly or impliedly, that
the supplier is looking to the general contractor for payment
so that "it plainly appears that the nature and state of the
indebtedness was brought home to the general contractor."

United States ex rel. Kinlau Sheet Metal Works v. Great Am. Ins.

Co., 537 F.2d 222, 223 (5th Cir.1976) (quoting Houston Fire & Cas.

Ins. Co. v. United States ex rel. Trane Co., 217 F.2d 727, 730 (5th

Cir.1954)). This strictness as to the contents of the notice is

driven by the purpose of the notice requirement itself, which is to

protect the general contractor by fixing a date beyond which,

absent notice, it will not be liable for the subcontractor's debts.

Id. at 223-24 n. 1.

Here, the parties do not dispute the underlying facts; but

they disagree as to whether Maccaferri's actions within the

statutory period constitute adequate notice under the Act. The

parties agree that Maccaferri last supplied gabions to M & A on

June 9, 1987. Accordingly, it had until September 7 to notify W &

J of its claim.

Maccaferri points to several occurrences during the statutory

period and claims that each one, and all of them by their combined

force, put W & J on notice of its claim. Maccaferri first argues

that its June 24 collection letter to M & A, a copy of which it

sent to W & J, satisfied the notice requirement. The letter was

addressed to M & A and was to the point:

Our idea of a good collection letter is that it should be
brief, friendly, and successful. This letter is brief,
 friendly, and it's [sic] success depends on you. The amount
past due is $132,226.16. Thank you.

We conclude that sending a copy of this letter to W & J was

insufficient under § 270b(a) to inform W & J that Maccaferri was

asserting a claim directly against it. Kinlau is instructive on

this point. In that case, a supplier mailed the general contractor

monthly statements showing the amount the subcontractor owed it.

It also eventually mailed the general contractor a copy of a

collection letter it had sent to the subcontractor. The district

court held that neither the monthly statements nor the copied

collection letter constituted sufficient notice to the general

contractor under § 270b(a) and on appeal, the Fifth Circuit

specifically affirmed this determination. Kinlau, 537 F.2d at 224.

Here, as in Kinlau, a collection letter addressed to the

subcontractor, M & A, though copied to general contractor W & J,

did not notify W & J that Maccaferri was looking to it for payment

of M & A's debt. Accordingly, the copied collection letter was

legally insufficient to satisfy the Act's notice requirement. See

id.

Maccaferri next claims that the joint-check arrangement

between W & J and M & A also constituted sufficient statutory

notice to W & J. Specifically, Maccaferri claims that three

different aspects of this arrangement—separately and

together—satisfy the notice requirement. First, it suggests that

the existence of the agreement itself put W & J on notice that

Maccaferri would be looking to it for its payments. Second,

Maccaferri claims that W & J's and M & A's modification of their

subcontract to permit the joint checks put W & J on notice. Third,
Maccaferri suggests that actual payment via joint check constituted

notice.

These arguments are meritless. First, as several courts have

specifically held, a joint-check arrangement between a general

contractor and its subcontractor does not by nature constitute

Miller Act notice to the general that an unpaid materialman is

making a specific claim for payment. United States ex rel. San

Joaquin Blocklite v. Lloyd E. Tull, Inc., 770 F.2d 862, 865 n. 4

(9th Cir.1985); Bowden v. United States ex rel. Malloy, 239 F.2d
572, 577 (9th Cir.1956); United States ex rel. Brothers Builders

Supply v. Old World Artisans, 702 F.Supp. 1561, 1567 (N.D.Ga.1988);

United States ex rel. Fordham v. P.W. Parker, Inc., 504 F.Supp.

1066, 1070 n. 3 (D.Md.1980).6 Accordingly, W & J's and M & A's

modification of their own subcontract to reflect the joint-check

agreement must also fail to supply the requisite notice.

Furthermore, the actual issuance of joint checks does not provide

any more notice than the joint-check arrangement itself. See

6
In United States ex rel. Light & Power Utilities Corp. v.
Liles Construction Co., 440 F.2d 474 (5th Cir.1971), the court
flirted with the joint-check question presented here in holding
that a joint-check arrangement does not create a direct contract
between the general and the materialman. This is significant,
because, under the Act, the existence of a direct contractual
relationship obviates any need for notice. Although Liles
certainly offers implicit support for the idea that a joint-check
arrangement does not constitute notice—otherwise, it would not
matter whether it created a direct contractual relationship or
not—it does not specifically address the notice requirement. See
also United States ex rel. State Electric Supply v. Hesselden
Constr. Co., 404 F.2d 774 (10th Cir.1968) (neither joint-check
arrangement itself nor the issuing of joint checks establishes
direct contract relationship between the general and the
materialman; no discussion of notice). Here, neither party
contends that the joint-check arrangement created a direct
contractual relationship between W & J and Maccaferri.
Bowden, 239 F.2d 572 (no notice despite issuance of joint checks).

Thus, no aspect of the joint-check arrangement provided W & J with

the required notice of Maccaferri's claim.

The final event that Maccaferri suggests could constitute

Miller Act notice is W & J's preparation of its monthly payment

estimate for July of 1987, in which it took account of the

delivered gabions. Maccaferri contends that W & J's preparation of

this estimate somehow suggests it had Miller Act notice of its

claims. We disagree, and conclude, as did the Eighth Circuit in

United States ex rel. American Radiator & Standard Sanitary Corp.

v. Northwestern Engineering Co., 122 F.2d 600, 603 (8th Cir.1941),

that a supplier's submission of invoices that ultimately were

incorporated into the general's payment estimate do not, without

more, constitute notice under § 270b(a). Because a general's mere

awareness of a materialman's outstanding charges against its

subcontractor does not automatically notify the general that the

materialman is looking to it for payment, we believe the Eighth

Circuit's position is sound. Accordingly, we conclude that W & J's

use of Maccaferri's invoices in compiling its payment estimate did

not somehow amount to notice of its claims under § 270b(a).

Finally, Maccaferri urges that the "confluence of

circumstances" present here—the collection letter, the joint check

arrangement and payment, and the payment estimate—all combine to at

least raise a jury question as to whether W & J received proper

notice. We disagree. What is missing here is exactly what §

270b(a) was meant to provide: a clear indication from the

materialman that it expects the general contractor to pay the
balance due on the subcontractor's debt. See Jinks Lumber, 452

F.2d at 488 (prescribing content of § 270b(a) notice).

Accordingly, we conclude that there is no evidence from which a

rational jury could have concluded that Maccaferri satisfied the

Miller Act's notice requirement, see Fed.R.Civ.P. 50(a). The

district court therefore erred in not granting W & J's motion for

judgment as a matter of law as to Maccaferri's Miller Act claim.

III.

W & J next argues that the district court erred in failing to

grant its Rule 50(a) motion as to Maccaferri's claim that it was a

third-party beneficiary of W & J's subcontracts with M & A and

Dynateria. Because we conclude that, as a matter of Florida law,

Maccaferri could not recover as a third-party beneficiary of either

contract, we agree with W & J and, accordingly, reverse as to that

claim.

As explained above, Maccaferri's third-party beneficiary

claims were based on two of W & J's subcontracts, those with M & A

and Dynateria. We will examine these separately.

A.

We look first at the W & J subcontract with M & A, which

requires that we consider both the original subcontract and the

joint-check agreement by which the parties partially modified the

original. Maccaferri argues that by virtue of the modification, W

& J assumed M & A's duty to pay Maccaferri directly for all

materials it delivered to the job site. But W & J argues that,

when read together, the two documents merely constitute a standard

joint-check agreement, whereby the parties allowed W & J to pay
that portion of M & A's charges attributable to Maccaferri's

gabions via a joint check made out to both Maccaferri and M & A's

escrow agent, Bowen.

We approach this question by looking first to basic rules of

contract construction. Under Florida law, as generally, where the

language of an agreement is unambiguous, the legal effect of that

language is a question of law and, as such, may be declared by the

court. Smith v. State Farm Mutual Automobile Ins. Co., 231 So.2d

193, 194 (Fla.1970); Orkin Exterm. Co. v. F.T.C., 849 F.2d 1354,

1360 (11th Cir.1988). But, where a contract is reasonably

susceptible to more than one interpretation, it is ambiguous and

its meaning is a question for the jury. Hoffman v. Terry, 397

So.2d 1184 (Fla.Dist.Ct.App.1981); Thunderbird Ltd. v. First Fed.

Sav. & Loan Ass'n, 908 F.2d 787, 790 (11th Cir.1990); Fabrica

Italiana Lavorazione Materie Organiche v. Kaiser Aluminum & Chem.

Corp., 684 F.2d 776, 780 (11th Cir.1982). The initial question

whether a contract is or is not ambiguous is itself one of law.

Orkin, 849 F.2d at 1360; see 10A Charles A. Wright et al., Federal

Practice & Procedure § 2730.1 at 279 (1983) (stating rule in

context of summary judgment). Here, we conclude that on the matter

at issue, the relevant documents are, as a matter of law,

unambiguous, hence should have been, and may now be interpreted as

a matter of law.

Section 3 of the original W & J/M & A subcontract defined

those parties' relationship with respect to W & J's payments on the

subcontract. It provided, inter alia, for W & J to make monthly

progress payments to M & A during the course of its performance.
But it expressly limited W & J's payment duties as follows:

Such [progress] payments shall not become due to [M & A] until
5 days after [W & J] receives payment for such work from the
Owner. If [W & J] receives payment from the Owner for less
than the full value of materials delivered to the site but not
yet incorporated into the work, the amount due to [M & A] on
account of such materials delivered to the site shall be
proportionately reduced.

Later, W & J and M & A partially modified this agreement "to allow

payment by [W & J] for materials delivered to and provided on the

Project by Maccaferri" by joint checks payable to Maccaferri and M

& A's escrow agent, Bowen. The joint-check modification

incorporated by reference the original subcontract; thus, we must

construe the two documents together, giving effect, where possible,

to all their provisions. See Guaranty Fin. Servs. v. Ryan, 928

F.2d 994, 999-1000 (11th Cir.1991) (" "An interpretation that gives

a reasonable meaning to all parts of the contract will be preferred

to one that leaves portions meaningless' ") (quoting United States

v. Johnson Controls, Inc., 713 F.2d 1541, 1555 (Fed.Cir.1983)).

In determining whether these documents, read together, are

ambiguous, we first ask whether they are "reasonably susceptible"

to Maccaferri's suggested reading—that by them W & J undertook an

independent obligation to pay it directly for materials it supplied

to M & A. We conclude that the documents cannot support such a

reading for several reasons. First, Maccaferri's reading conflicts

with other contract provisions that establish the parties' relative

duties. Under Section 11(c) of the main subcontract, M & A

expressly "obligates" itself "[t]o pay for all materials furnished

... under this subcontract." Similarly, Section 12 provides that

M & A
 shall furnish to [W & J] releases of bond rights and lien
rights by persons who have furnished ... material ... in the
performance of this Subcontract, it being agreed that payment
of money otherwise due [M & A] need not be made by [W & J]
until such releases are furnished.

Thus the main subcontract clearly requires M & A, not W & J, to pay

materialmen such as Maccaferri, even allowing W & J to withhold

payment from M & A if it has not secured releases from those

materialmen. Thus reading the joint check agreement as Maccaferri

suggests would create a conflict between that agreement and these

sections of the contract; such a reading is strongly disfavored,

see Guaranty Financial, 928 F.2d at 1000 (" "nor should any

provision be construed as being in conflict with another unless no

other reasonable interpretation is possible' ") (quoting Johnson

Controls, 713 F.2d at 1555).

Maccaferri's reading would further alter W & J's obligations

under its subcontract with M & A by erasing, though only with

respect to Maccaferri, important limits on those obligations.

Specifically, under Section 3, which defines W & J's payment

obligations under the subcontract, W & J is only obligated to make

progress payments or final payments to M & A after it has itself

received the appropriate payment from the Corps. But Maccaferri's

suggested interpretation would read this limitation out of the

modified contract, at least with respect to itself, requiring W &

J to pay for it directly for materials whether or not the Corps

already has paid W & J for them.

Finally, although the parties could have used the joint-check

arrangement specifically to supersede conflicting provisions of the

subcontract, the text of the joint-check agreement contains no
language effecting such a change. Most critically, the joint-check

language itself is non-mandatory; it does not say, for example, "W

& J shall hereafter assume M & A's duty to pay all money owing to

Maccaferri for its deliveries to the project, all other provisions

of the Subcontract notwithstanding." It says rather that the

parties "agree to allow," not require, W & J to pay by joint check

for Maccaferri's charges. This is hardly language that signals a

thoroughgoing change in the parties' duties. Accordingly, we

conclude that these agreements do not support Maccaferri's

suggested reading. We further conclude that the only reasonable

reading of these documents, one which gives effect to all their

terms, is as follows: As W & J's duty to pay M & A accrued under

the subcontract—i.e., as it received the appropriate payments from

the government—it could pay for that portion of M & A's fee

attributable to Maccaferri's materials by joint check made out to

Maccaferri and Bowen.7

Having determined the meaning of the contract language in

question, we must now determine whether that language creates in

Maccaferri any presently-enforceable third-party rights against W

& J. We conclude that it does not.

7
We note that the parties acted on this agreement as it
applied to charges due in June of 1987. In that month W & J
presented to the government its payment estimate, which requested
payment for M & A's charges, $74,947.98 of which was attributable
to gabions Maccaferri had delivered to the site. The government
paid this request in full, and after receiving this payment, W &
J issued a check payable to Bowen and Maccaferri for this amount.
Bowen endorsed the check and forwarded it to Maccaferri. Thus,
as W & J's duty to pay M & A was activated by its own receipt of
funds from the government, W & J—as allowed by the joint-check
arrangement—paid a portion of those funds by joint check, the
proceeds of which ultimately were distributed to Maccaferri.
 Under Florida law, a third party may enforce an agreement

between others only if it is an intended beneficiary, not an

incidental beneficiary, of that agreement. Metropolitan Life Ins.

Co. v. McCarson, 467 So.2d 277, 279 (Fla.1985). Furthermore, "[a]

party is an intended beneficiary only if the parties to the

contract clearly express, or the contract itself expresses, an

intent to primarily and directly benefit the third party." Caretta

Trucking, Inc. v. Cheoy Lee Shipyards, Ltd., 647 So.2d 1028, 1031

(Fla.Dist.Ct.App.1994). There can be no doubt that this agreement

did bestow some benefit on Maccaferri; by agreeing to allow

payments in the form of joint checks, the parties gave Maccaferri

greater assurance that it would actually receive whatever funds W

& J gave M & A to pay for Maccaferri's materials. Although it is

unclear whether this benefit was "primary" or "direct" enough under

Florida law to make Maccaferri a true third-party beneficiary of

this contract, we assume—only arguendo—that the agreement did

create a third-party beneficiary arrangement.

But as a third-party beneficiary of the W & J/M & A

subcontract, Maccaferri's rights against W & J not only sprang from

that agreement, but also were limited by its terms. To that

effect, Florida has announced the following rule: "It is clear

that a third-party beneficiary's right to enforce a contract cannot

"rise higher than the rights of the contracting party through whom

he claims.' " Maryland Casualty Co. v. Department of Gen. Servs.,

489 So.2d 54, 57 (Fla.Dist.Ct.App.1986) (quoting Crabtree v. Aetna

Casualty & Surety Co., 438 So.2d 102, 105 (Fla.Dist.Ct.App.1983));

see also 11 Fla.Jur.2d Contracts § 153, at 462 (1981) (stating this
general rule).

Based on this rule, W & J argued at trial and again on appeal

that Maccaferri could not, as a matter of law, recover against it

as a third party beneficiary. It points out that, as explained

above, M & A's right to receive progress payments for a period did

not accrue until after the government paid W & J the money due for

that period. Furthermore, the undisputed testimony at trial was

that, after paying W & J's June estimate, the government made no

more payments attributable to Maccaferri's gabions.8 In fact, the

government eventually back-charged W & J $33,000 for gabions

included in the June payment that never were incorporated into the

project. Thus, because the government never paid W & J for the

balance of the delivered gabions, W & J's duty to pay for

them—hence M & A's corresponding right to be paid for them—never

matured. As a result, Maccaferri's own right to look to W & J for

payment, which could be no greater than M & A's, see Maryland

8
When W & J prepared its July payment estimate, it
originally requested payment for the balance due Maccaferri.
According to the trial testimony of W & J's co-owner, William
Wilkinson, when W & J spoke with a Corps representative regarding
whether the Corps would pay for these gabions, which were on site
but had not been incorporated into the project, the
representative explained that the Corps would make no more
payments for such materials without first receiving proof that
Maccaferri already had been paid for them.

It appears that the Corps was concerned about releasing
any more funds for stored materials without being certain
that those materials would in fact be used in the project.
The Corps seems to have reasoned that if someone performing
the job had itself paid for the materials, it would be much
more likely to actually use them on the job. At any rate,
because neither M & A nor Dynateria ever paid Maccaferri for
these materials, Wilkinson explained, W & J never received a
payment notice that it could forward to the Corps. As a
result, the Corps never released funds to cover the gabions
that had been delivered, but not installed.
Casualty Co., 489 So.2d at 57, also never matured.

We agree with this analysis. Thus, to the extent that the W

& J/M & A subcontract, including the joint-check agreement, created

any third-party rights in Maccaferri, the limits those very

agreements placed on its rights prohibit Maccaferri from recovering

against W & J the unpaid balance due on the gabions it delivered.

B.

The other contract from which Maccaferri might have gained

third-party rights is the subcontract between W & J and Dynateria.

We conclude that this contract gave Maccaferri no rights against W

& J.

When M & A defaulted on its subcontract, W & J called on its

performance surety, Dynateria, to assume M & A's obligations. W &

J and Dynateria then entered into a written subcontract, under

which Dynateria essentially agreed to pick up where M & A left off.

W & J for its part promised to pay Dynateria for its work, but it

expressly conditioned its payment obligations as follows:

[W & J] agrees to pay [Dynateria] for the performance of this
Subcontract ... subject to payments previously made to [M & A]
for work under its Subcontract ..., and further subject to
reimbursement to [W & J] for labor costs advanced to [M & A]
in the sum of $13,150.00, and payment to Maccaferri Gabions,
Inc. in the sum of $57,226.00 for materials delivered to and
provided on the project for [M & A].

The parties, of course, disagree as to the meaning of this

language. According to Maccaferri, the agreement anticipates that

W & J itself will pay M & A's debt to Maccaferri, and Dynateria

will thereafter reimburse W & J for that payment. W & J, on the

other hand, reads it as requiring Dynateria to discharge M & A's

unfulfilled duties, including its duty to reimburse W & J for money
previously advanced to M & A, and its duty to pay the balance due

on Maccaferri's account. Again, we find that the document is

unambiguous and will not reasonably support Maccaferri's proposed

reading. See Smith, 231 So.2d at 194. Thus, we may, and do,

declare its meaning as a matter of law. See id.; Orkin, 848 F.2d

at 1360. Again, we are mindful of the need to give effect to the

entire agreement and to avoid an interpretation that creates an

unnecessary conflict between its terms. See Guaranty Financial,

928 F.2d at 1000.

We read the agreement as expressly conditioning W & J's duty

to pay Dynateria on the latter's assumption of M & A's duties. To

that effect, it reduces the amount that will be due Dynateria by

amounts already paid to M & A and further conditions payment on

Dynateria's performance of two specific tasks: (1) reimbursement

of funds W & J advanced to M & A, and (2) payment of the balance

due to Maccaferri on its materials contract with M & A. Both of

these are actions that, had M & A not defaulted, would have been

due from it, but are now expected from its performance surety,

Dynateria.

The factual background from which the agreement arose, as

expressed by its own preface, confirms our understanding that

Dynateria was taking over M & A's duties, including its duty to pay

Maccaferri. The agreement recites the fact that M & A was

originally hired as the subcontractor, that it took out a

performance bond covering its work, that it defaulted on the

contract, and that Dynateria now wishes to subcontract with W & J

for performance under the same prime contract under which M & A
began its work. Furthermore, Section 11(c) of the new subcontract,

like the identical one in the W & J/M & A subcontract, specifically

requires Dynateria to "pay for all materials furnished ... under

this Subcontract"; such materials would, of course, include

Maccaferri's gabions.

Accordingly, it is clear under the plain language of the

subcontract that Dynateria, who was M & A's surety, intended to

take over M & A's duties under that subcontract; one of those

duties, as specified in the agreement, was to pay the balance due

Maccaferri. As a result the only promise in this agreement that

could have given rise to third-party rights in Maccaferri came not

from W & J, but from Dynateria. Thus, assuming it had such rights,

the only party against whom Maccaferri could enforce them is

Dynateria.

Maccaferri, of course, suggests a different reading of the

agreement. Maccaferri reads Section 3 of the agreement as

conditioning W & J's payment duties on Dynateria's reimbursement of

W & J for (1) costs W & J has advanced to M & A—which is consistent

with our own reading—and (2) W & J's own payment to Maccaferri for

the delivered materials. Thus, Maccaferri's reading suggests that

W & J has itself assumed M & A's duty to pay Maccaferri, and will

not pay Dynateria until it reimburses W & J for those materials

payments. Such a reading, while not grammatically impossible,

risks invalidating the agreement as a whole and conflicts with the

other contract provisions mentioned above.

First, Maccaferri's reading would possibly invalidate the

contract by rendering W & J's payment promise illusory. Reading
the language as making W & J's payment duties "subject to

[Dynateria's] reimbursement for" W & J's future payment of

Maccaferri's fees would make W & J's own payment of Maccaferri a

condition precedent to its duty to pay Dynateria. Put differently,

if W & J never paid Maccaferri—which it had no independent legal

obligation to do—then Dynateria could never reimburse W & J for

that payment, thus never triggering W & J's duty to pay Dynateria

for its work. Such a "promise" by W & J, to pay Dynateria under

conditions it alone controls, would be illusory and would not

constitute consideration for Dynateria's counter-promise to

perform. See Pan-Am Tobacco Corp. v. Department of Corrections,

471 So.2d 4, 5 (Fla.1984) (contract is illusory and unenforceable

"[w]here one party retains for itself the option of fulfilling or

declining to fulfill its obligations under the contract");

Restatement (Second) of Contracts §§ 77, 2 cmt. e (promise

conditioned on non-mandatory performance of promisor himself is not

consideration).

In other words, such an interpretation would destroy the

mutuality of obligation under the contract. Under Florida law, as

generally, a contract clause should not be interpreted in such a

way as to destroy mutuality of obligation and, thereby, invalidate

the contract. See American Medical Int'l v. Scheller, 462 So.2d 1,

8 (Fla.Dist.Ct.App.1984) (refusing to adopt interpretation of

contract that would render it void for lack of mutuality). If

instead, the language is read—as we conclude it must be—as

requiring Dynateria itself to pay Maccaferri in order to trigger W

& J's payment duty, then W & J cannot control the occurrence of a
condition precedent to accrual of its payment duty, thus making the

parties' promises mutual and non-illusory.

We also note that finding in this subcontract an undertaking

by W & J itself to pay Maccaferri would be inconsistent with the

duties of the parties specified elsewhere in the contract. As

mentioned above, Section 11(c) of the subcontract requires

Dynateria, not W & J, to pay all materialmen; furthermore, Section

12 requires Dynateria to deliver its work to W & J "free from all

claims, encumbrances, or liens," including those from materialmen.

Thus because the contract otherwise requires Dynateria to pay all

materialmen, it would be strange for W & J itself to undertake such

a duty to one of Dynateria's primary materialmen, especially in the

rather indirect way Maccaferri argues it did.

Accordingly, we conclude that the only legally supportable

reading of Section 3 of the subcontract, in light of the entire

agreement, is that it obligated Dynateria, not W & J, to pay the

balance due Maccaferri under its materials contract with M & A.

Thus Maccaferri could not, as a possible third-party beneficiary of

Dynateria's promise, enforce that promise against W & J.

Because Maccaferri also cannot recover against W & J as an

intended beneficiary of the W & J/M & A subcontract, we conclude

that it was error to deny W & J's motion for judgment as a matter

of law on Maccaferri's third-party beneficiary claims.

IV.

W & J next claims that the district court erred in failing to

grant its Rule 50(a) motion with respect to Maccaferri's promissory

estoppel claim. Specifically, it contends that, because Maccaferri
introduced no evidence that W & J ever promised to complete the

Lake Okeechobee project using only gabions, Maccaferri cannot now

claim that it relied on such a non-existent promise in incurring

costs necessary to produce a large number of gabions for the

project. We agree with W & J that Maccaferri presented no evidence

of such a promise by W & J itself, hence conclude that the district

court erred in denying W & J's motion for judgment as a matter of

law on that claim.

Florida has adopted the familiar formulation of the

promissory estoppel rule stated in Section 90(1) of the Restatement

(Second) of Contracts:

A promise which the promisor should reasonably expect to
induce action or forbearance on the part of the promisee or a
third person and which does induce such action or forbearance
is binding if injustice can be avoided only by enforcing the
promise.

See W.R. Grace & Co. v. Geodata Servs., Inc., 547 So.2d 919, 924

(Fla.1989) (quoting § 90(1)). It is axiomatic that a plaintiff

cannot recover for reasonable, detrimental reliance on a promise

without proving that the defendant made the promise. See id.

(denying promissory estoppel claim for failure to sufficiently

prove existence of promise).

We have examined each item in the record to which Maccaferri

points as evidence of a promise by W & J to complete the entire

project using gabions and find no sufficient proof of any such

promise. First, Maccaferri claims that W & J made its promise to

use only gabions during preliminary contract negotiations between

it, W & J, and M & A. On this point, the testimonies of two

participants at these negotiations—William Wilkinson and George
Ragazzo, Maccaferri's special projects manager—were presented at

trial. Wilkinson admitted that the parties did negotiate regarding

the project and that M & A eventually quoted him a price for its

work. But Wilkinson never mentioned making any promise to

Maccaferri that the project would be completed with gabions only.

Interestingly, although Maccaferri's counsel examined Wilkinson

twice during the trial, he never questioned Wilkinson regarding

specific discussions at this meeting. Thus Wilkinson's testimony

does not disclose any promise on which Maccaferri could base its

estoppel claim.

Likewise, Ragazzo's testimony—which was read to the jury from

the transcript of an earlier proceeding—mentions no promises made

by W & J to Maccaferri. Although Ragazzo did testify that

"someone" promised him that the project would be completed entirely

with gabions, the only someone named in that portion of his

testimony is Dynateria. In the absence of proof that Dynateria was

somehow acting as W & J's agent when it made this statement, this

promise could not be found made by W & J itself. Thus Ragazzo's

testimony is no help to Maccaferri on this point.

Maccaferri further claims that a number of documents prove

that W & J promised to use its gabions for the entire project.9

9
The documents include: (1) the W & J/M & A subcontract,
which mentions gabions as one material that M & A could use in
its work; (2) M & A's purchase order for $574,304.64 worth of
gabions; (3) Maccaferri's letter informing W & J of the
specifications of the gabions it was supplying; (4) W & J's
certification to the Corps of Engineers that Maccaferri had
delivered $132,226.15 worth of gabions to the site; (5) the W &
J/M & A joint-check agreement; (6) Dynateria's letter to
Maccaferri promising to use the gabions to complete its work on
the project.
Although these documents reveal many things—that M & A contracted

with Maccaferri, that Maccaferri delivered gabions to the site,

that W & J knew the gabions had been delivered, etc.—they are

devoid of any reference to a promise by W & J on which Maccaferri

could have relied in amassing the materials needed to produce all

the gabions.

Because Maccaferri presented no evidence that W & J itself

ever promised to use only gabions in constructing the Lake

Okeechobee project, the district court erred in denying W & J's

motion for judgment as a matter of law on Maccaferri's promissory

estoppel claim.

V.

In view of our holdings that all of Maccaferri's claims should

have been dismissed as a matter of law, the parties' several claims

respecting the appropriate interest on the judgment now to be

vacated are moot.

VI.

For the reasons discussed above, we REVERSE the district

court's orders denying W & J's and Ohio Casualty's Rule 50(a)

motions and REMAND with directions to enter judgment in favor of W

& J and Ohio Casualty dismissing all of Maccaferri's claims.

SO ORDERED.