[CLC-Discussion] Lien rights for non-conforming goods?
Belinda Bacon
bbacon at bellsouth.net
Tue Aug 9 12:02:51 PDT 2016
See headnote 2 in attached “ancient” case - there, of course, is wiggle room for both sides - both owner and manufacturer were wronged by the contractor.
Belinda A. Bacon, Esq., P.E.
Belinda Bacon, P.A.
Fla. Bar Board-Certified
Construction Lawyer
Partner
Construction Law Group
Navarro Hernandez, PL
66 W. Flagler St., Suite 600
Miami, FL 33130
belinda at nhlawpl.com
main: 305-447-8707
direct: 305-424-2615
cell: 305-794-9053
> On Aug 9, 2016, at 2:49 PM, Ed Kinberg <ejk at uslegalteam.com> wrote:
>
> I agree.
>
>
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> From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr.
> Sent: Tuesday, August 09, 2016 2:33 PM
> To: 'Gibbons, Michael' <Michael.Gibbons at lowndes-law.com>; 'Randall Gilbert' <rgilbert at theconstructionlawyers.com>; clc-discussion at lists.flabarrpptl.org
> Subject: Re: [CLC-Discussion] Lien rights for non-conforming goods?
>
> Michael,
>
> The hypothetical states that the GC provided incorrect specifications to the manufacturer, but we don’t have enough facts to know if there was any way for the manufacturer to know that they were incorrect. Your question to Randall about a shop drawing process – this was construction of a house, so we cannot assume there was any such process. For all we know, the owner is a residential developer working with a GC, and the GC ordered the “wrong” window off of a menu of acceptable windows the owner typically uses in its homes. In other words, we don’t know that the manufacturer “should have known”. What we do know is the owner hired the GC and the GC screwed up. So as far as I am concerned, without knowing more, the Owner’s remedy is against the GC with whom it has a contract. The manufacturer has a lien because, as far as we know, the manufacturer did everything it was required to do to comply with the contract and the lien law. Why should the manufacturer eat the loss if it did nothing wrong?
>
>
> 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: Gibbons, Michael [mailto:Michael.Gibbons at lowndes-law.com <mailto:Michael.Gibbons at lowndes-law.com>]
> Sent: Tuesday, August 09, 2016 2:09 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?
>
>
>
> 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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> <image001.jpg>
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> From: Reese J. Henderson, Jr. [mailto:Reese.Henderson at gray-robinson.com <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
> 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: Gibbons, Michael [mailto:Michael.Gibbons at lowndes-law.com <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/>
>
> <image001.jpg>
>
>
> From: Reese J. Henderson, Jr. [mailto:Reese.Henderson at gray-robinson.com <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 <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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> <image002.jpg>
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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 <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,
> Address: 1720 Harrison Street, Penthouse B
> Hollywood, FL 33020
>
> Office: (954) 620-5000
> Fax: (954) 620-5105
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> Web#1: www.TheConstructionLawyers.com <http://www.theconstructionlawyers.com/>
> Randall Gilbert, Esq.
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