[ DO NOT PUBLISH ] IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 12

- 11357

________________________ D. C. Docket No. 5:09

- cv - 00373

- WTH

- TBS DELTA RF TECHNOLOGY, INC., Plaintiff

- Counter Defendant

- Appellant,

versus RIIMIC, LLC, a Florida limited liability corporation, d.b.a. Sunair Electronics,
Defendant

- Counter Claimant

- Appellee.

________________________ Appeal from the United States District Court for the Middle District of Florida

_________________________ (August 5, 2013) Before MARTIN and BLACK , Circuit Judges , and EDENFIELD , * District Judge

. PER CURIAM:

* Honorable B. Avant Edenfield, United States District Judge for the Southern District of Georgia, sitting by designation.

Case: 12-11357 Date Filed: 08/05/2013 Page: 1 of 52 Delta RF Technology, Inc. (Delta) appeals the district court’s entry of judgment in favor of RIIMIC, LLC (Sunair) following a four

- day bench trial. This
case arises from a cont ract obligating Delta to manufacture high

- powered radio amplifier s for Sunair. Although Delta contracted with Sunair for production of the amplifiers, the goods were ultimately to be delivered to Sunair’s customer, Simave. Sunair refused to pay Delta for two of the units because , after installation, the amplifiers ove rheated and caused the radios to fail. Delta subsequently brought a breach of contract claim against Sunair; Sunair denied the alleged breach and filed counterclaims against Delta. The district court entered judgment for Sunair. On appeal, Delta raises the following issues : (1) whether the district court erred in finding that Simave’s acceptance of the radios was a condition precedent to payment by Sunai r, (2) whether the district cour t erred in finding that design
defects in the amplifiers caused the r adios to fail , and (3) whether the district court erred in concluding Delta breached its express warranty against manufacturer’s defects

. 1 After review and having had the benefit of oral argument , we affirm the district court. 2

1 Because the district court did not clearly err in finding that Su nair’s payments to Delta were conditioned upon payment by Simave, Delta’s argument that Sunair accepted the amplifiers is irrelevant.

2 Delta also argues, citing International Engineering Services, Inc. v. Scherer Construction & Engineering of Central F l orida , LLC , 74 So. 3d 531 (Fla. 5th DCA 2011), that the district court erroneously shifted the entire risk of loss to Delta. Delta did not present this case to the district court before it entered its findings and conclusions, even though Delta had an

Case: 12-11357 Date Filed: 08/05/2013 Page: 2 of 53 Standard of Review Following a bench trial, we review the district court’s findings of fact for clear error and its conclusions of law de novo

. A.I.G. Uruguay Compania de Seguros, S.A. v. AAA Cooper Transp. , 334 F.3d 997, 1003 (11th Cir. 2003). “Clear error is a highly def erential standard of review,” Morrissette

- Brown v. Mobile Infirmary Med. Ctr ., 506 F.3d 1317, 1319 (11th Cir. 2007) (quotations omitted) , and the standa rd “plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply becaus e it is convinced that it would have decided the case differently,” Anderson v

. City of Bessemer City , 470 U.S. 564, 573 (1985).
Issue One The district court found that “all of the contract documents (as well as the other evidence presented at trial) ma [de] it clear that payment by Simave was a condition precedent to payment by Sunair . . . to Delta.” Delta argues this finding

was erroneous. We have reviewed the contract documents and the record, and we conclude that the evidence supports the district court’s finding. For instance, one of the contract documents, purchase order BO

- 361, stated that payment was due either after “delivery to customer,” or “customer acceptance,” whichever occurred first. Although Delta claims “customer” did not refer to Simave, it is clear from the
opportunity to do so. Regardless, International Engi neering is a construction law case and D elta has offered no compelling justification for applying its reasoning here.

Case: 12-11357 Date Filed: 08/05/2013 Page: 3 of 54 record that t he parties used the term “customer” interchangeably with the term “Sunair’s customer” to refer to Simave. Another contract document, purchase order 223 , also conditioned payment to Delta upon receipt of funds from Simave. Accordingly, under our deferential standard of review, we cannot say the district court’s finding was clear ly erroneous

. See Morrissette

- Brown , 506 F.3d at 1319

. Issue Two
D elta next contends the district court erred in finding that the proxim ate cause of the radios’ failure was a design defect, rather than shipping damage.
T he record , however, supports the district court’s finding . There was an abundance of evidence presented at trial that the amplifiers had overheating issues, and that tho se issues were caused by the amplifiers’ improper design. While there was also evidence that the units could have been damaged during shipping, which the district court acknowledged, Sunair demonstrated that the defect was most likely caused by design fla ws, especially since the overheating problems manifested before shipping. Accordingly, the district court did not clearly err in finding that defects in the amplifiers caused the radios to fail. Issue Three Delta’s final argument is that its warranty against manufacturing defects and construction defects did not cover the damage sustained by the units.

Case: 12-11357 Date Filed: 08/05/2013 Page: 4 of 55 Delta’s argument is meritless. Sunair’s breach of express warranty claim was based on purchase order BO

- 361, which stated that the amplifie rs “would meet or exceed performance spec[ifications]” as set forth in the proposal and the “NATO Solicitation.” The evidence before the district court established that the units did not meet the se specifications. Accordingly, the distric t court did not err in concluding that Delta breached its warranty, and that the warranty was not effectively disclaimed in the contract documents. Conclusion For the foregoing reasons, we affirm the district court’s entry of judgment in favor of Sunair. AFFIRMED. Case: 12-11357 Date Filed: 08/05/2013 Page: 5 of 5