[CLC-Discussion] question re: supplier furnishing materialsto fabricator's warehouse

Thu May 31 18:25:51 PDT 2012

Absent proof of delivery of the aluminum stock directly to the job site of the property to be liened the supplier lienor does not have the benefit of the statutory presumption of "incorporation"...one of the essential elements of proof in a lien foreclosure action. So, unless the supplier has some direct proof that its materials were ACTUALLY incorporated (like manhole covers with the manuf name forged into it, etc.) the supplier will be unable to prevail and is left to an adverse award of atty fees (and a possible malpractice claim agt its atty).

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301

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From: Fred Barnes [mailto:Fred at fcbarneslaw.com]
Sent: Thursday, May 31, 2012 03:59 PM
To: 'Larry Leiby' <Leiby at mkpalaw.com>; 'Ryan P. Hatler' <rhatler at cphlaw.com>; 'Andrea Fair' <amf at fairconstructionliens.com>; clc-discussion at lists.flabarrpptl.org <clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] question re: supplier furnishing materialsto fabricator's warehouse

This is definitely one that calls for Barry Kalmanson to weigh in, but he’s on vacation.

FREDERICK C. BARNES, ESQ.
500 North Maitland Avenue, Suite 305
Maitland, Florida  32751
Telephone:  407-865-9200
Facsimile:  407-865-9209
www.fcbarneslaw.com<mailto:www.fcbarneslaw.com>

From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Larry Leiby
Sent: Thursday, May 31, 2012 3:31 PM
To: Ryan P. Hatler; Andrea Fair; clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] question re: supplier furnishing materialsto fabricator's warehouse

I don’t have a case at the tip of my tongue but the words in the definition of materialman are what give me significant pause.  Tracking the materials down later does not seem to comport with the statute.  That is why suppliers put job sites on counter pick up orders.

Larry R. Leiby, Esq.
Malka & Kravitz, P.A.
1300 Sawgrass Corp. Pkwy., Suite 100
Ft. Lauderdale, FL  33323
Phone:  954-514-0984
Fax:      954-514-0985     e-mail:  leiby at mkpalaw.com

Board Certified in Construction Law
Fla. Supreme Court Certified Circuit Court Civil Mediator

Member, Leiby Alexander Brandt ADR Group, LLC
Member, JAMS Global Engineering and Construction Panel
Fellow, College of Commercial Arbitrators

[Description: JAMSadr.com.jpg]

From: Ryan P. Hatler [mailto:rhatler at cphlaw.com]
Sent: Thursday, May 31, 2012 3:21 PM
To: Larry Leiby; Andrea Fair; clc-discussion at lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] question re: supplier furnishing materialsto fabricator's warehouse

Wouldn’t the affidavit she prepared and the process she describes below to have her client track the material to particular job sites be sufficient to satisfy the requirements of the statute?

From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Larry Leiby
Sent: Thursday, May 31, 2012 2:08 PM
To: Andrea Fair; clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] question re: supplier furnishing materialsto fabricator's warehouse

A Materialman who does not deliver to the site or sell for direct delivery to the site is not a materialman who has lien rights.  See F.S. 713.01 (20).  A materialman who sells to a fabricator with no understanding that the materials are for a specific site has a problem with the definition of a lienor.

Larry R. Leiby, Esq.
Malka & Kravitz, P.A.
1300 Sawgrass Corp. Pkwy., Suite 100
Ft. Lauderdale, FL  33323
Phone:  954-514-0984
Fax:      954-514-0985     e-mail:  leiby at mkpalaw.com<mailto:leiby at mkpalaw.com>

Board Certified in Construction Law
Fla. Supreme Court Certified Circuit Court Civil Mediator

Member, Leiby Alexander Brandt ADR Group, LLC
Member, JAMS Global Engineering and Construction Panel
Fellow, College of Commercial Arbitrators

[Description: JAMSadr.com.jpg]

From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Andrea Fair
Sent: Thursday, May 31, 2012 2:44 PM
To: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: [CLC-Discussion] question re: supplier furnishing materials to fabricator's warehouse

I have a client who is a supplier.  He furnishes aluminum to a fabricator at the fabricator’s warehouse.  After the aluminum is fabricated into hurricane shutters, the materials are then delivered to various jobsites for incorporation into the improvements.  My client hasn’t been paid so, for all future deliveries, I have prepared an Affidavit for the fabricator to sign, testifying where the materials are going, who he has a contract with, who the GC is, who the owner is, and attaching the NOC.  He also knows he will need to monitor the situation to make sure the materials are actually delivered to and incorporated into the improvements (assuming the exception re: specially fabricated materials doesn’t apply).  However, for the materials my client has already furnished and which have already been fabricated and incorporated into the improvements, is there any method or mechanism to demand that information from the fabricator so my client can possibly preserve his lien rights, serve a NTO, record a lien, etc.?  I know I can sue the fabricator and get the info via discovery but that will take too long for purposes of trying to preserve lien rights.  Thank you all for your input.  -Andrea

Andrea M. Fair-Purcell
Board Certified Construction Attorney
▬▬▬▬▬▬▬▬▬▬▬▬
FAIR•LAW•PLLC
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13046 Racetrack Road #236
Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.com<http://www.fairconstructionliens.com>

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