[CLC-Discussion] Lien rights for non-conforming goods?
Steve Thompson
sthompson at thompsonbrookslaw.com
Wed Aug 10 06:42:38 PDT 2016
Yes, but couldn't the same thing be said for the Owner? Wouldn't the
Owner have a cause of action against the Contractor for breach of contract?
In the end, it seems that if there is no case law directly on point, then
the court will have to assess either the Owner or the Material Supplier for
the Contractor's mistake. The argument could be advanced that the Owner was
in the best position to select a Contractor and should therefore bear the
burden of the contractor's mistake between two innocent parties. Of course,
the same could be said for the Material Supplier (i.e. they chose to do
business with the Contractor). However, given the intent of ch 713
expressed by the legislature to protect Material Suppliers, I come down on
the side of the Material Supplier.
Caveat: I am not entirely unbiased since I primarily represent
Subcontractors and Material Suppliers.
Steven F. Thompson, Esq.
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From: clc-discussion-bounces at lists.flabarrpptl.org
[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Fred
Dudley
Sent: Wednesday, August 10, 2016 8:29 AM
To: Reese J. Henderson, Jr.; 'Gibbons, Michael'; 'Randall Gilbert';
clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Lien rights for non-conforming goods?
I don’t see it as a matter of the manufacturer “eating the loss;” it still
has a cause of action against the contractor for any failure to pay for what
was ordered for delivery.
Fred R. Dudley, Managing Member
Board Certified Construction Lawyer
Dudley, Sellers, Healy & Heath, P. L.
SunTrust Financial Center, Suite 301
3522 Thomasville Road
Tallahassee, Florida 32308
Cell: (850) 294-3471
Direct: (850)692-6368
dudley at mylicenselaw.com
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 2:43 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
<mailto:Reese.Henderson at gray-robinson.com> E-mail |
<http://www.gray-robinson.com> Website |
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| <http://www.gray-robinson.com/docs/Reese%20Henderson.vcf> vCard
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<https://www.linkedin.com/company/grayrobinson-p-a-> LinkedIn |
<https://twitter.com/grayrobinsonlaw> Twitter
From: Gibbons, Michael [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
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 ( <http://lowndes-law.com/our-people/michael-r-gibbons>
Bio)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: <mailto:michael.gibbons at lowndes-law.com>
michael.gibbons at lowndes-law.com
website: <http://www.lowndes-law.com/> http://www.lowndes-law.com
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
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
<mailto:Reese.Henderson at gray-robinson.com> E-mail |
<http://www.gray-robinson.com> Website |
<http://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr> Bio
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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
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 ( <http://lowndes-law.com/our-people/michael-r-gibbons>
Bio)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: <mailto:michael.gibbons at lowndes-law.com>
michael.gibbons at lowndes-law.com
website: <http://www.lowndes-law.com/> http://www.lowndes-law.com
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
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
<mailto:Reese.Henderson at gray-robinson.com> E-mail |
<http://www.gray-robinson.com> Website |
<http://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr> Bio
| <http://www.gray-robinson.com/docs/Reese%20Henderson.vcf> vCard
<https://www.facebook.com/GrayRobinsonLaw> Facebook |
<https://www.linkedin.com/company/grayrobinson-p-a-> LinkedIn |
<https://twitter.com/grayrobinsonlaw> Twitter
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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 1:19 PM
To: 'Randall Gilbert'; 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 ( <http://lowndes-law.com/our-people/michael-r-gibbons>
Bio)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: <mailto:michael.gibbons at lowndes-law.com>
michael.gibbons at lowndes-law.com
website: <http://www.lowndes-law.com/> http://www.lowndes-law.com
From: 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
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/>
Randall Gilbertcid:image003.gif at 01CD3F4A.EF94F960
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