[CLC-Discussion] Lien rights for non-conforming goods?
ken.richie at hklaw.com
ken.richie at hklaw.com
Tue Aug 9 11:28:20 PDT 2016
Interesting issue. I like Michael’s argument that 713.06(1) prevails with the language, “is furnished in accordance with his or her contract and with the direct contract.” The windows were not in accordance with the direct contract. Let us know the outcome of the hearing!
Kenneth R. Richie | Holland & Knight
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From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Tuesday, August 09, 2016 2:09 PM
To: 'Reese J. Henderson, Jr.' <Reese.Henderson at gray-robinson.com>; 'Randall Gilbert' <rgilbert at theconstructionlawyers.com>; clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Lien rights for non-conforming goods?
Reese,
I believe your interpretation of “in accordance with” is overly narrow and restrictive. And Randall’s facts illustrate why. Why should a lienor have lien rights here when the product fabricated is cut to the wrong dimensions and cannot be used to actually improve Owner’s property. The issue can be (and typically is) avoided by the fabricator working off permitted drawings and specs that are included in the direct contract.
Side question here for Randall: This should have been caught in the Shop Drawing and submittal process. How did the windows get fabricated without approved shop drawings (presumably signed off by Architect)?
Michael R. Gibbons (Bio<http://lowndes-law.com/our-people/michael-r-gibbons>)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons at lowndes-law.com<mailto:michael.gibbons at lowndes-law.com>
website: http://www.lowndes-law.com<http://www.lowndes-law.com/>
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From: Reese J. Henderson, Jr. [mailto:Reese.Henderson at gray-robinson.com]
Sent: Tuesday, August 09, 2016 1:58 PM
To: Gibbons, Michael; 'Randall Gilbert'; clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: RE: Lien rights for non-conforming goods?
Mike,
The statute you cited says “in accordance with his or her contract and with the direct contract”, not “in compliance with the requirements of . . . .” Otherwise, it would be very easy to defeat liens for specially fabricated materials if the owner could find one feature technically out of compliance. Under the stated hypothetical, the fabricator shipped what was ordered. Absent a case saying to the contrary, my understanding is “in accordance with” simply means the supplier’s contract is in the chain of contracts leading to the owner and, in the hypothetical, it clearly is in the chain of contracts.
Reese J. Henderson, Jr. | Shareholder
Florida Bar Board Certified in Construction Law
Florida Supreme Court Certified Circuit Civil Mediator
G R A Y | R O B I N S O N
50 North Laura Street, Suite 1100 | Jacksonville, Florida 32202
T: 904-598-9929 | F: 904-598-9109 | D: 904-632-8459
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From: Gibbons, Michael [mailto:Michael.Gibbons at lowndes-law.com]
Sent: Tuesday, August 09, 2016 1:53 PM
To: Reese J. Henderson, Jr.; 'Randall Gilbert'; clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: RE: Lien rights for non-conforming goods?
Don’t think so, Reese. The issue is not whether the specially fabricated materials were incorporated or not. The issue is whether a supplier or sub (i.e, non-privity lienor) has lien rights when the materials (specially fabricated or otherwise) do NOT conform to the requirements of the direct contract between Owner and GC. In Randall’s facts, he made it clear that the materials (while complying with the terms of the subcontract) do not comply with the terms of the direct or owner contract.
It would appear the underlying rationale for the statutory limitation on the lien rights is that the lienor should not be permitted to encumber the Owner’s real property with a Claim of Lien when the performance by the Lienor (here specially fabricated materials) does not conform to the Owner’s contractual requirements and hence doesn’t benefit Owner.
Michael R. Gibbons (Bio<http://lowndes-law.com/our-people/michael-r-gibbons>)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons at lowndes-law.com<mailto:michael.gibbons at lowndes-law.com>
website: http://www.lowndes-law.com<http://www.lowndes-law.com/>
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From: Reese J. Henderson, Jr. [mailto:Reese.Henderson at gray-robinson.com]
Sent: Tuesday, August 09, 2016 1:36 PM
To: Gibbons, Michael; 'Randall Gilbert'; clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: RE: Lien rights for non-conforming goods?
My friend Michael is incorrect. See § 713.01(13); see also Aquatic Plant Management, Inc. v. Paramount Engineering, Inc., 977 So.2d 600 (Fla. 4th DCA 2007). Assuming, of course, the windows really were specially fabricated for this project.
Reese J. Henderson, Jr. | Shareholder
Florida Bar Board Certified in Construction Law
Florida Supreme Court Certified Circuit Civil Mediator
G R A Y | R O B I N S O N
50 North Laura Street, Suite 1100 | Jacksonville, Florida 32202
T: 904-598-9929 | F: 904-598-9109 | D: 904-632-8459
E-mail<mailto:Reese.Henderson at gray-robinson.com> | Website<http://www.gray-robinson.com> | Bio<http://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr> | vCard<http://www.gray-robinson.com/docs/Reese%20Henderson.vcf>
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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 Gibbons, Michael
Sent: Tuesday, August 09, 2016 1:19 PM
To: 'Randall Gilbert'; clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] Lien rights for non-conforming goods?
Per 713.06(1), the answer appears to be “no”.
Michael R. Gibbons (Bio<http://lowndes-law.com/our-people/michael-r-gibbons>)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons at lowndes-law.com<mailto:michael.gibbons at lowndes-law.com>
website: http://www.lowndes-law.com<http://www.lowndes-law.com/>
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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 Randall Gilbert
Sent: Tuesday, August 09, 2016 12:11 PM
To: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: [CLC-Discussion] Lien rights for non-conforming goods?
1. OWNER contracts with GC for installation of Windows.
2. GC orders windows from MANUFACTURER/MATERIALMAN.
3. MANUFACTURER specially fabricates Windows and delivers same to OWNER’S house.
4. Assume the windows are manufactured exactly how the GC ordered them, but that the GC provided incorrect specifications to the MANUFACTURER.
5. Upon delivery, OWNER fires GC.
6. OWNER further advises MANUFACTURER that the windows are all the wrong dimensions and wrong energy ratings (in other words non-conforming goods that do not conform with the plans).
7. The Windows have not been installed.
8. Based on the above facts, does the MANUFACTURER/MATERIALMAN have lien rights against the OWNER for non-conforming goods?
Sincerely yours,
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Web#3: www.TheCorporateLawyers.com<http://www.thecorporatelawyers.com/>
[Randall Gilbert][cid:image003.gif at 01CD3F4A.EF94F960]
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