[CLC-Discussion] Lien rights for non-conforming goods?

Tue Aug 9 14:28:28 PDT 2016

I like the concept of researching the rule before opining.

Since we don’t have the facts, it’s hard to say if the Hawaiian case applies. In that case the painting company intentionally used a cheaper product with the GC’s approval.  In the case we are discussing, we don’t have any facts in that regard.  It remains my opinion that, if the manufacturer did not know or have reason to know, the court will enforce the lien.

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From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Robert Worman
Sent: Tuesday, August 09, 2016 4:59 PM
To: William L. Grant <WGrant at shutts.com>; 'Reese J. Henderson, Jr.' <Reese.Henderson at gray-robinson.com>; '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?

Here’s a novel idea-When in doubt, let’s look to the case law attached.  I think Hawaiian Inn controls under Randal’s facts.

Regards,

Robert B. Worman
Worman & Sheffler, P.A.
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rworman at wormanlaw.com<mailto:rworman at wormanlaw.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 William L. Grant
Sent: Tuesday, August 09, 2016 2:14 PM
To: 'Reese J. Henderson, Jr.' <Reese.Henderson at gray-robinson.com<mailto:Reese.Henderson at gray-robinson.com>>; 'Gibbons, Michael' <Michael.Gibbons at lowndes-law.com<mailto:Michael.Gibbons at lowndes-law.com>>; 'Randall Gilbert' <rgilbert at theconstructionlawyers.com<mailto:rgilbert at theconstructionlawyers.com>>; clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] Lien rights for non-conforming goods?

The facts as presented say otherwise:  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).

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William L. Grant
Partner, Board Certified in Construction Law

________________________________
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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 Reese J. Henderson, Jr.
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: [CLC-Discussion] 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
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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
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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/>

        [cid:image003.jpg at 01D1F263.6EB93290]

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,

Address:    1720 Harrison Street, Penthouse B

                   Hollywood, FL 33020

Office:       (954) 620-5000

Fax:           (954) 620-5105

Web#1:      www.TheConstructionLawyers.com<http://www.theconstructionlawyers.com/>

Randall Gilbert, Esq.

Web#2:      www.TheTitleLawyers.com<http://www.thetitlelawyers.com/>

Board Certified Construction Lawyer

Web#3:      www.TheCorporateLawyers.com<http://www.thecorporatelawyers.com/>

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