- 44 -
petitioner produced a product (sidewalks, driveways, and
foundations). The majority myopically focuses on the wet
concrete and not on the end product that petitioner produced.
Significantly, that product was completed with materials
purchased by petitioner and accepted by the customer in completed
form before petitioner was entitled to payment. Until such time
as the customer/developer accepted the finished product,
petitioner was at risk and responsible for the construction,
placement, and quality of the product. Finally, it is
significant that petitioner’s profit percentage (about 15
percent) was marked up on both materials (including concrete) and
labor.
The majority also attempts to minimize the possible effect
on petitioner’s income of the purchase and storage of sand,
gravel, re-bar, anchor bolts and rods, expansion anchors,
holddowns, straps, and piping for sewer and drainage (other
materials) used in producing the final product (sidewalks,
driveways, and foundations). It is my understanding of the facts
that only concrete suppliers were involved in asserting their
liens and were paid by a separate check from the developer
through petitioner in order to ensure that any suppliers’ liens
were satisfied. Even if a separate check was issued by the
developer to petitioner and the supplier jointly, petitioner had
the contractual relationship with all suppliers and claimed the
concrete and all other materials as cost of goods sold. In
Page: Previous 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 NextLast modified: May 25, 2011