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
▬▬▬▬▬▬▬▬▬▬▬▬
13046 Racetrack Road #236
Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.comhttp://www.fairconstructionliens.com
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The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.
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@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
[cid:image002.jpg@01CD3F3F.2106DD80]
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Andrea Fair
Sent: Thursday, May 31, 2012 2:44 PM
To: clc-discussion@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
▬▬▬▬▬▬▬▬▬▬▬▬
13046 Racetrack Road #236
Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.comhttp://www.fairconstructionliens.com
[cid:image003.jpg@01CD3F3F.2106DD80]
The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.
Need to make sure that fabricator is responsible for installing the shutters (i.e., a subcontractor) as well as supplying them to the jobsite so that your client has lien rights and is not a supplier to a supplier without lien rights. Take a look at the definition of “materialman” at 713.01 as there may be an issue there as well on your facts.
Michael R. Gibbons (Biohttp://lowndes-law.com/our-people/michael-r-gibbons)
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
450 South Orange Avenue, 8th Floor
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/
[cid:image003.jpg@01CD3F3F.FAF34970]
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Andrea Fair
Sent: Thursday, May 31, 2012 2:44 PM
To: clc-discussion@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
▬▬▬▬▬▬▬▬▬▬▬▬
13046 Racetrack Road #236
Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.comhttp://www.fairconstructionliens.com
[cid:image001.jpg@01CC8816.941390B0]
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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@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Larry Leiby
Sent: Thursday, May 31, 2012 2:08 PM
To: Andrea Fair; clc-discussion@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@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
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Andrea Fair
Sent: Thursday, May 31, 2012 2:44 PM
To: clc-discussion@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
▬▬▬▬▬▬▬▬▬▬▬▬
13046 Racetrack Road #236
Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.com
The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.
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@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
[cid:image001.jpg@01CD3F42.56FDAFB0]
From: Ryan P. Hatler [mailto:rhatler@cphlaw.com]
Sent: Thursday, May 31, 2012 3:21 PM
To: Larry Leiby; Andrea Fair; clc-discussion@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@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Larry Leiby
Sent: Thursday, May 31, 2012 2:08 PM
To: Andrea Fair; clc-discussion@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@mkpalaw.commailto:leiby@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
[cid:image001.jpg@01CD3F42.56FDAFB0]
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Andrea Fair
Sent: Thursday, May 31, 2012 2:44 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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
▬▬▬▬▬▬▬▬▬▬▬▬
13046 Racetrack Road #236
Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.comhttp://www.fairconstructionliens.com
[cid:image002.jpg@01CD3F42.56FDAFB0]
The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.
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
mailto:www.fcbarneslaw.com www.fcbarneslaw.com
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Larry Leiby
Sent: Thursday, May 31, 2012 3:31 PM
To: Ryan P. Hatler; Andrea Fair; clc-discussion@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@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@cphlaw.com]
Sent: Thursday, May 31, 2012 3:21 PM
To: Larry Leiby; Andrea Fair; clc-discussion@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@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Larry Leiby
Sent: Thursday, May 31, 2012 2:08 PM
To: Andrea Fair; clc-discussion@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@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@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Andrea Fair
Sent: Thursday, May 31, 2012 2:44 PM
To: clc-discussion@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
▬▬▬▬▬▬▬▬▬▬▬▬
13046 Racetrack Road #236
Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.com
cid:image001.jpg@01CC8816.941390B0
The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.
I concur. Also, the “fabricator” may be a Materialman if they are not installing the shutters in which case your client is out of the box because they do not meet the definition of a Lienor either as a Subcontractor or Materialman.
Since your client supplies no labor, they can only possibly be a Materialman. However, they did not supply their materials “on” the site of the improvement or “for direct delivery” since fabrication would seem to kill that position. What’s left is the “specially fabricated” exception to delivery to qualify. Without something making the aluminum unique to the particular project such as color or some other quality, perhaps a particular finish or dimension that is somehow unusual, I think you would be dead in the water. Just keeping track of where it goes is not going to be enough.
Timothy R. Moorhead, Esq.
Wright, Fulford, Moorhead & Brown, P.A.
505 Maitland Avenue
Suite 1000
Altamonte Springs, FL 32701
(407) 425-0234
(407) 425-0260 (fax)
Board Certified in Construction Law
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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Andrea Fair
Sent: Thursday, May 31, 2012 2:44 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] question re: supplier furnishing materials tofabricator'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
▬▬▬▬▬▬▬▬▬▬▬▬
13046 Racetrack Road #236
Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.com
cid:image001.jpg@01CC8816.941390B0
The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.
I have looked at an almost identical situation for a client at length awhile back. I believe my conclusion was that you cannot do anything to preserver lien rights that cannot, by statute, exist in the first place. We revised their contract/purchase order terms to create other ways to secure payment.
One option we explored was creating an LLC that bascially incorporated the entire supply chain from raw material to finished product which could be shipped directly to job sites, thus qualifying that entity as a material supplier. This obviously only works where the relevant entities do enough business together to make this make sense.
Robert E. Doan
Board Certified Construction Attorney
Supreme Court Certified Circuit Civil Mediator
Silverman, Vorhis & Doan
311 NE 1st Street
Gainesville, FL 32601
PH: 352-337-8373
Fax: 352-505-6188
Email: robert@lawgainesville.com
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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Andrea Fair
Sent: Thursday, May 31, 2012 2:44 PM
To: clc-discussion@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
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FAIR•LAW•PLLC
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13046 Racetrack Road #236
Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.comhttp://www.fairconstructionliens.com
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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
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
fred.dudley@hklaw.com mailto:fred.dudley@hklaw.com | www.hklaw.com http://www.hklaw.com/
Sent from my BlackBerry Wireless Handheld
From: Fred Barnes [mailto:Fred@fcbarneslaw.com]
Sent: Thursday, May 31, 2012 03:59 PM
To: 'Larry Leiby' Leiby@mkpalaw.com; 'Ryan P. Hatler' rhatler@cphlaw.com; 'Andrea Fair' amf@fairconstructionliens.com; clc-discussion@lists.flabarrpptl.org clc-discussion@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.commailto:www.fcbarneslaw.com
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Larry Leiby
Sent: Thursday, May 31, 2012 3:31 PM
To: Ryan P. Hatler; Andrea Fair; clc-discussion@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@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@cphlaw.com]
Sent: Thursday, May 31, 2012 3:21 PM
To: Larry Leiby; Andrea Fair; clc-discussion@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@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Larry Leiby
Sent: Thursday, May 31, 2012 2:08 PM
To: Andrea Fair; clc-discussion@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@mkpalaw.commailto:leiby@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@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Andrea Fair
Sent: Thursday, May 31, 2012 2:44 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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
▬▬▬▬▬▬▬▬▬▬▬▬
13046 Racetrack Road #236
Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.comhttp://www.fairconstructionliens.com
[cid:image001.jpg@01CC8816.941390B0]
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I had a similar situation for a metal roofing supplier. For future deliveries - we advised our client that the best way to insure collection was COD as the lien rights were questionable.
James S. Lupino, Esquire
Hershoff Lupino & Yagel, LLP
90130 Old Highway
Tavernier, FL 33070
(305) 852-8440 - Telephone
(305) 852-8848 - Facsimile
jlupino@tropicalaw.commailto:jlupino@tropicalaw.com
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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Larry Leiby
Sent: Thursday, May 31, 2012 3:31 PM
To: Ryan P. Hatler; Andrea Fair; clc-discussion@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@mkpalaw.commailto:leiby@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
[cid:image001.jpg@01CD3FC5.E1BCB3C0]
From: Ryan P. Hatler [mailto:rhatler@cphlaw.com]mailto:[mailto:rhatler@cphlaw.com]
Sent: Thursday, May 31, 2012 3:21 PM
To: Larry Leiby; Andrea Fair; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org]mailto:[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Larry Leiby
Sent: Thursday, May 31, 2012 2:08 PM
To: Andrea Fair; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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@mkpalaw.commailto:leiby@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
[cid:image001.jpg@01CD3FC5.E1BCB3C0]
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Andrea Fair
Sent: Thursday, May 31, 2012 2:44 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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
▬▬▬▬▬▬▬▬▬▬▬▬
13046 Racetrack Road #236
Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.comhttp://www.fairconstructionliens.com
[cid:image002.jpg@01CD3FC5.E1BCB3C0]
The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.
