I am going with Michael on this one.  The GC used the wrong specification.  If the owner contracted for a tile roof, why would he be liable for shingles that were specially fabricated due to a contractor error?

Timothy R. Moorhead, Esq.
[cid:image001.jpg@01CF533E.817267B0]
Wright, Fulford, Moorhead & Brown, P.A.
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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Ed Kinberg
Sent: Tuesday, August 09, 2016 2:03 PM
To: Reese J. Henderson, Jr.; 'Gibbons, Michael'; 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Lien rights for non-conforming goods?

I agree with Reese.  If the manufacturer had not role in the error, i.e. they were made to the requested spec, it will have lien rights.

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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr.
Sent: Tuesday, August 09, 2016 1:36 PM
To: 'Gibbons, Michael' <Michael.Gibbons@lowndes-law.commailto:Michael.Gibbons@lowndes-law.com>; 'Randall Gilbert' <rgilbert@theconstructionlawyers.commailto:rgilbert@theconstructionlawyers.com>; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] 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@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Tuesday, August 09, 2016 1:19 PM
To: 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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  (Biohttp://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@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image005.jpg@01D1F24A.086BA8B0]

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Randall Gilbert
Sent: Tuesday, August 09, 2016 12:11 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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.comhttp://www.theconstructionlawyers.com/

Randall Gilbert, Esq.

Web#2:      www.TheTitleLawyers.comhttp://www.thetitlelawyers.com/

Board Certified Construction Lawyer

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[Randall Gilbert][cid:image003.gif@01CD3F4A.EF94F960]

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[v4.30]

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
Partner – Construction Industry Practice Group
Florida Bar Board Certified in Construction Law
Holland & Knight LLP
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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Tuesday, August 09, 2016 2:09 PM
To: 'Reese J. Henderson, Jr.' Reese.Henderson@gray-robinson.com; 'Randall Gilbert' rgilbert@theconstructionlawyers.com; clc-discussion@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  (Biohttp://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@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image004.jpg@01D1F24A.44B3C9B0]

From: Reese J. Henderson, Jr. [mailto:Reese.Henderson@gray-robinson.com]
Sent: Tuesday, August 09, 2016 1:58 PM
To: Gibbons, Michael; 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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@lowndes-law.com]
Sent: Tuesday, August 09, 2016 1:53 PM
To: Reese J. Henderson, Jr.; 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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  (Biohttp://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@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image005.jpg@01D1F24A.44B3C9B0]

From: Reese J. Henderson, Jr. [mailto:Reese.Henderson@gray-robinson.com]
Sent: Tuesday, August 09, 2016 1:36 PM
To: Gibbons, Michael; 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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-mailmailto:Reese.Henderson@gray-robinson.com | Websitehttp://www.gray-robinson.com | Biohttp://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr | vCardhttp://www.gray-robinson.com/docs/Reese%20Henderson.vcf

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This e-mail is intended only for the individual(s) or entity(s) named within the message. This e-mail might contain legally privileged and confidential information. If you properly received this e-mail as a client or retained expert, please hold it in confidence to protect the attorney-client or work product privileges. Should the intended recipient forward or disclose this message to another person or party, that action could constitute a waiver of the attorney-client privilege. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited by the sender and to do so might constitute a violation of the Electronic Communications Privacy Act, 18 U.S.C. section 2510-2521. If this communication was received in error we apologize for the intrusion. Please notify us by reply e-mail and delete the original message without reading same. Nothing in this e-mail message shall, in and of itself, create an attorney-client relationship with the sender.

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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Tuesday, August 09, 2016 1:19 PM
To: 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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  (Biohttp://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@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image005.jpg@01D1F24A.44B3C9B0]

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Randall Gilbert
Sent: Tuesday, August 09, 2016 12:11 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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.comhttp://www.theconstructionlawyers.com/

Randall Gilbert, Esq.

Web#2:      www.TheTitleLawyers.comhttp://www.thetitlelawyers.com/

Board Certified Construction Lawyer

Web#3:      www.TheCorporateLawyers.comhttp://www.thecorporatelawyers.com/

[Randall Gilbert][cid:image003.gif@01CD3F4A.EF94F960]

Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same.

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[v4.30]

Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same.

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Cloud Storage: The firm discourages the use of 3rd party cloud storage services for client confidential information because we are unable to confirm that such services provide adequate security. Notwithstanding the foregoing, should a client direct the firm to utilize a cloud storage service, the firm shall not be responsible for any harm occasioned by the disclosure of confidential information occurring as a consequence thereof.

[v4.30]

Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same.

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Cloud Storage: The firm discourages the use of 3rd party cloud storage services for client confidential information because we are unable to confirm that such services provide adequate security. Notwithstanding the foregoing, should a client direct the firm to utilize a cloud storage service, the firm shall not be responsible for any harm occasioned by the disclosure of confidential information occurring as a consequence thereof.

[v4.30]

NOTE: This e-mail is from a law firm, Holland & Knight LLP (“H&K”), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.

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-mailmailto:Reese.Henderson@gray-robinson.com | Websitehttp://www.gray-robinson.com | Biohttp://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr | vCardhttp://www.gray-robinson.com/docs/Reese%20Henderson.vcf

Facebookhttps://www.facebook.com/GrayRobinsonLaw | LinkedInhttps://www.linkedin.com/company/grayrobinson-p-a- | Twitterhttps://twitter.com/grayrobinsonlaw

From: Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com]
Sent: Tuesday, August 09, 2016 2:09 PM
To: Reese J. Henderson, Jr.; 'Randall Gilbert'; clc-discussion@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  (Biohttp://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@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image001.jpg@01D1F24A.AB17F230]

From: Reese J. Henderson, Jr. [mailto:Reese.Henderson@gray-robinson.com]
Sent: Tuesday, August 09, 2016 1:58 PM
To: Gibbons, Michael; 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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-mailmailto:Reese.Henderson@gray-robinson.com | Websitehttp://www.gray-robinson.com | Biohttp://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr | vCardhttp://www.gray-robinson.com/docs/Reese%20Henderson.vcf

Facebookhttps://www.facebook.com/GrayRobinsonLaw | LinkedInhttps://www.linkedin.com/company/grayrobinson-p-a- | Twitterhttps://twitter.com/grayrobinsonlaw
From: Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com]
Sent: Tuesday, August 09, 2016 1:53 PM
To: Reese J. Henderson, Jr.; 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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  (Biohttp://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@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image001.jpg@01D1F24A.AB17F230]

From: Reese J. Henderson, Jr. [mailto:Reese.Henderson@gray-robinson.com]
Sent: Tuesday, August 09, 2016 1:36 PM
To: Gibbons, Michael; 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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-mailmailto:Reese.Henderson@gray-robinson.com | Websitehttp://www.gray-robinson.com | Biohttp://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr | vCardhttp://www.gray-robinson.com/docs/Reese%20Henderson.vcf

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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Tuesday, August 09, 2016 1:19 PM
To: 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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  (Biohttp://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@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image002.jpg@01D1F24A.AB17F230]

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Randall Gilbert
Sent: Tuesday, August 09, 2016 12:11 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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.comhttp://www.theconstructionlawyers.com/

Randall Gilbert, Esq.

Web#2:      www.TheTitleLawyers.comhttp://www.thetitlelawyers.com/

Board Certified Construction Lawyer

Web#3:      www.TheCorporateLawyers.comhttp://www.thecorporatelawyers.com/

[Randall Gilbert][cid:image003.gif@01CD3F4A.EF94F960]

Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same.

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[v4.30]

Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same.

Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail.

Cloud Storage: The firm discourages the use of 3rd party cloud storage services for client confidential information because we are unable to confirm that such services provide adequate security. Notwithstanding the foregoing, should a client direct the firm to utilize a cloud storage service, the firm shall not be responsible for any harm occasioned by the disclosure of confidential information occurring as a consequence thereof.

[v4.30]

Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same.

Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail.

Cloud Storage: The firm discourages the use of 3rd party cloud storage services for client confidential information because we are unable to confirm that such services provide adequate security. Notwithstanding the foregoing, should a client direct the firm to utilize a cloud storage service, the firm shall not be responsible for any harm occasioned by the disclosure of confidential information occurring as a consequence thereof.

[v4.30]

Reese,
I think the issue has been fully briefed.  Great subject of discussion but not sure I have anything to add.  Though plenty will differ, I like the Owner’s side of this statutory interpretation question.

Michael R. Gibbons  (Biohttp://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@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image001.jpg@01D1F24D.37D9CFC0]

From: Reese J. Henderson, Jr. [mailto:Reese.Henderson@gray-robinson.com]
Sent: Tuesday, August 09, 2016 2:33 PM
To: Gibbons, Michael; 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.org
Subject: RE: 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-mailmailto:Reese.Henderson@gray-robinson.com | Websitehttp://www.gray-robinson.com | Biohttp://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr | vCardhttp://www.gray-robinson.com/docs/Reese%20Henderson.vcf

Facebookhttps://www.facebook.com/GrayRobinsonLaw | LinkedInhttps://www.linkedin.com/company/grayrobinson-p-a- | Twitterhttps://twitter.com/grayrobinsonlaw
From: Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com]
Sent: Tuesday, August 09, 2016 2:09 PM
To: Reese J. Henderson, Jr.; 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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  (Biohttp://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@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image007.jpg@01D1F24D.37BA60E0]

From: Reese J. Henderson, Jr. [mailto:Reese.Henderson@gray-robinson.com]
Sent: Tuesday, August 09, 2016 1:58 PM
To: Gibbons, Michael; 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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-mailmailto:Reese.Henderson@gray-robinson.com | Websitehttp://www.gray-robinson.com | Biohttp://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr | vCardhttp://www.gray-robinson.com/docs/Reese%20Henderson.vcf

Facebookhttps://www.facebook.com/GrayRobinsonLaw | LinkedInhttps://www.linkedin.com/company/grayrobinson-p-a- | Twitterhttps://twitter.com/grayrobinsonlaw
From: Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com]
Sent: Tuesday, August 09, 2016 1:53 PM
To: Reese J. Henderson, Jr.; 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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  (Biohttp://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@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image007.jpg@01D1F24D.37BA60E0]

From: Reese J. Henderson, Jr. [mailto:Reese.Henderson@gray-robinson.com]
Sent: Tuesday, August 09, 2016 1:36 PM
To: Gibbons, Michael; 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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-mailmailto:Reese.Henderson@gray-robinson.com | Websitehttp://www.gray-robinson.com | Biohttp://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr | vCardhttp://www.gray-robinson.com/docs/Reese%20Henderson.vcf

Facebookhttps://www.facebook.com/GrayRobinsonLaw | LinkedInhttps://www.linkedin.com/company/grayrobinson-p-a- | Twitterhttps://twitter.com/grayrobinsonlaw

This e-mail is intended only for the individual(s) or entity(s) named within the message. This e-mail might contain legally privileged and confidential information. If you properly received this e-mail as a client or retained expert, please hold it in confidence to protect the attorney-client or work product privileges. Should the intended recipient forward or disclose this message to another person or party, that action could constitute a waiver of the attorney-client privilege. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited by the sender and to do so might constitute a violation of the Electronic Communications Privacy Act, 18 U.S.C. section 2510-2521. If this communication was received in error we apologize for the intrusion. Please notify us by reply e-mail and delete the original message without reading same. Nothing in this e-mail message shall, in and of itself, create an attorney-client relationship with the sender.

Please be advised that this law firm may be acting as a debt collector and is attempting to collect a debt and any information provided will be used for that purpose.
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Tuesday, August 09, 2016 1:19 PM
To: 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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  (Biohttp://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@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image008.jpg@01D1F24D.37BA60E0]

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Randall Gilbert
Sent: Tuesday, August 09, 2016 12:11 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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.comhttp://www.theconstructionlawyers.com/

Randall Gilbert, Esq.

Web#2:      www.TheTitleLawyers.comhttp://www.thetitlelawyers.com/

Board Certified Construction Lawyer

Web#3:      www.TheCorporateLawyers.comhttp://www.thecorporatelawyers.com/

[Randall Gilbert][cid:image003.gif@01CD3F4A.EF94F960]

Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same.

Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail.

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[v4.30]

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I agree.

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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr.
Sent: Tuesday, August 09, 2016 2:33 PM
To: 'Gibbons, Michael' Michael.Gibbons@lowndes-law.com; 'Randall Gilbert' rgilbert@theconstructionlawyers.com; clc-discussion@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-mailmailto:Reese.Henderson@gray-robinson.com | Websitehttp://www.gray-robinson.com | Biohttp://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr | vCardhttp://www.gray-robinson.com/docs/Reese%20Henderson.vcf

Facebookhttps://www.facebook.com/GrayRobinsonLaw | LinkedInhttps://www.linkedin.com/company/grayrobinson-p-a- | Twitterhttps://twitter.com/grayrobinsonlaw
From: Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com]
Sent: Tuesday, August 09, 2016 2:09 PM
To: Reese J. Henderson, Jr.; 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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  (Biohttp://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@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image001.jpg@01D1F24D.3C6D61A0]

From: Reese J. Henderson, Jr. [mailto:Reese.Henderson@gray-robinson.com]
Sent: Tuesday, August 09, 2016 1:58 PM
To: Gibbons, Michael; 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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-mailmailto:Reese.Henderson@gray-robinson.com | Websitehttp://www.gray-robinson.com | Biohttp://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr | vCardhttp://www.gray-robinson.com/docs/Reese%20Henderson.vcf

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From: Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com]
Sent: Tuesday, August 09, 2016 1:53 PM
To: Reese J. Henderson, Jr.; 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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  (Biohttp://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@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image001.jpg@01D1F24D.3C6D61A0]

From: Reese J. Henderson, Jr. [mailto:Reese.Henderson@gray-robinson.com]
Sent: Tuesday, August 09, 2016 1:36 PM
To: Gibbons, Michael; 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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-mailmailto:Reese.Henderson@gray-robinson.com | Websitehttp://www.gray-robinson.com | Biohttp://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr | vCardhttp://www.gray-robinson.com/docs/Reese%20Henderson.vcf

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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Tuesday, August 09, 2016 1:19 PM
To: 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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  (Biohttp://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@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image002.jpg@01D1F24D.3C6D61A0]

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Randall Gilbert
Sent: Tuesday, August 09, 2016 12:11 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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.comhttp://www.theconstructionlawyers.com/

Randall Gilbert, Esq.

Web#2:      www.TheTitleLawyers.comhttp://www.thetitlelawyers.com/

Board Certified Construction Lawyer

Web#3:      www.TheCorporateLawyers.comhttp://www.thecorporatelawyers.com/

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[v4.30]

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[v4.30]

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[v4.30]

Because as between 2 innocent parties, the supplier who didn't know the spec
was wrong, and the owner, whose contractor screwed up, the legislature has
elected to allocate the risk to the owner?

Steven F. Thompson, Esq.
STEVEN F. THOMPSON, P.A.
412 E. Madison St., Ste 900
Tampa, Fl. 33602
813-387-1821
Fax 813-387-1824

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From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Timothy
R. Moorhead
Sent: Tuesday, August 09, 2016 2:27 PM
To: Ed Kinberg; Reese J. Henderson, Jr.; 'Gibbons, Michael'; 'Randall
Gilbert'; clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Lien rights for non-conforming goods?

I am going with Michael on this one.  The GC used the wrong specification.
If the owner contracted for a tile roof, why would he be liable for shingles
that were specially fabricated due to a contractor error?

Timothy R. Moorhead, Esq.
cid:image001.jpg@01CF533E.817267B0
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

mailto:tmoorhead@wfmblaw.com tmoorhead@wfmblaw.com

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From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Ed
Kinberg
Sent: Tuesday, August 09, 2016 2:03 PM
To: Reese J. Henderson, Jr.; 'Gibbons, Michael'; 'Randall Gilbert';
clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Lien rights for non-conforming goods?

I agree with Reese.  If the manufacturer had not role in the error, i.e.
they were made to the requested spec, it will have lien rights.

http://uslegalteam.com

Ed Kinberg, Attorney at Law
1990 W New Haven Ave Ste. 201
Melbourne, Florida 32904
(321) 255-2332  (321) 255-2351

<http://www.primerus.com/law-firms/widerman-malek-melbourne-florida-fl.htm?p
arams=zies-widerman-malek-melbourne-florida-fl.htm>

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From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Reese J.
Henderson, Jr.
Sent: Tuesday, August 09, 2016 1:36 PM
To: 'Gibbons, Michael' Michael.Gibbons@lowndes-law.com; 'Randall Gilbert'
rgilbert@theconstructionlawyers.com; clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] 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@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons,
Michael
Sent: Tuesday, August 09, 2016 1:19 PM
To: 'Randall Gilbert'; clc-discussion@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@lowndes-law.com
michael.gibbons@lowndes-law.com

website:  http://www.lowndes-law.com/ http://www.lowndes-law.com

From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Randall
Gilbert
Sent: Tuesday, August 09, 2016 12:11 PM
To: clc-discussion@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@01CD3F4A.EF94F960

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[v4.30]

All,

Let’s not forget that the so-called purpose of lien rights is to protect subs, material suppliers and laborers.  Perhaps, the argument on behalf of the manufacturer should begin with that caveat.  My “vote” is with Reese.  If the manufacturer’s contract with the GC specified the wrong windows, and the windows were specially manufactured for the project, I think the lien should be allowed.  The GC’s prime contract should have a provision requiring the GC to dispose of or bond off the lien.  If the problem was created by GC’s mistake, the GC should be responsible for the loss.  As Reese points out, the Owner simply enforces its (presumed) contract rights against the GC.  Hey, an equitable result happens occasionally.

Thanks for the metal stimulation and look forward to hearing the result.

Regards,

Bill

William James Tinsley, Jr.
Phelps Dunbar LLP
100 South Ashley Drive, Suite 1900
Tampa, FL 33602
Direct: 813-472-7590
Mobile: 973-464-3292
Fax: 813-472-7570
Email: william.tinsley@phelps.com

http://www.phelpsdunbar.com[cid:image005.gif@01D1F25E.49B08D90]http://www.phelpsdunbar.com/http://www.phelpsdunbar.com

CONFIDENTIALITY NOTICE - This e-mail message, including any attachments, is private communication sent by a law firm, Phelps Dunbar LLP, and may contain confidential, legally privileged information meant solely for the intended recipient. If you are not the intended recipient, any use, distribution, or copying of this communication is strictly prohibited. Please notify the sender immediately by replying to this message, then delete the e-mail and any attachments from your system. Thank you.

From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr.
Sent: Tuesday, August 09, 2016 2:33 PM
To: 'Gibbons, Michael'; 'Randall Gilbert'; clc-discussion@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-mailmailto:Reese.Henderson@gray-robinson.com | Websitehttp://www.gray-robinson.com | Biohttp://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr | vCardhttp://www.gray-robinson.com/docs/Reese%20Henderson.vcf

Facebookhttps://www.facebook.com/GrayRobinsonLaw | LinkedInhttps://www.linkedin.com/company/grayrobinson-p-a- | Twitterhttps://twitter.com/grayrobinsonlaw
From: Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com]
Sent: Tuesday, August 09, 2016 2:09 PM
To: Reese J. Henderson, Jr.; 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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  (Biohttp://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@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image001.jpg@01D1F25C.74608290]

From: Reese J. Henderson, Jr. [mailto:Reese.Henderson@gray-robinson.com]
Sent: Tuesday, August 09, 2016 1:58 PM
To: Gibbons, Michael; 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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-mailmailto:Reese.Henderson@gray-robinson.com | Websitehttp://www.gray-robinson.com | Biohttp://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr | vCardhttp://www.gray-robinson.com/docs/Reese%20Henderson.vcf

Facebookhttps://www.facebook.com/GrayRobinsonLaw | LinkedInhttps://www.linkedin.com/company/grayrobinson-p-a- | Twitterhttps://twitter.com/grayrobinsonlaw
From: Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com]
Sent: Tuesday, August 09, 2016 1:53 PM
To: Reese J. Henderson, Jr.; 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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  (Biohttp://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@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image001.jpg@01D1F25C.74608290]

From: Reese J. Henderson, Jr. [mailto:Reese.Henderson@gray-robinson.com]
Sent: Tuesday, August 09, 2016 1:36 PM
To: Gibbons, Michael; 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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-mailmailto:Reese.Henderson@gray-robinson.com | Websitehttp://www.gray-robinson.com | Biohttp://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr | vCardhttp://www.gray-robinson.com/docs/Reese%20Henderson.vcf

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Please be advised that this law firm may be acting as a debt collector and is attempting to collect a debt and any information provided will be used for that purpose.
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Tuesday, August 09, 2016 1:19 PM
To: 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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  (Biohttp://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@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image002.jpg@01D1F25C.74608290]

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Randall Gilbert
Sent: Tuesday, August 09, 2016 12:11 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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.comhttp://www.theconstructionlawyers.com/

Randall Gilbert, Esq.

Web#2:      www.TheTitleLawyers.comhttp://www.thetitlelawyers.com/

Board Certified Construction Lawyer

Web#3:      www.TheCorporateLawyers.comhttp://www.thecorporatelawyers.com/

[Randall Gilbert][cid:image003.gif@01CD3F4A.EF94F960]

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[v4.30]

Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same.

Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail.

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[v4.30]

Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same.

Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail.

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[v4.30]

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.
2707 West Fairbanks Avenue
Suite 200
Winter Park, FL 32789
407 843-5353
rworman@wormanlaw.commailto:rworman@wormanlaw.com
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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of William L. Grant
Sent: Tuesday, August 09, 2016 2:14 PM
To: 'Reese J. Henderson, Jr.' Reese.Henderson@gray-robinson.com; 'Gibbons, Michael' Michael.Gibbons@lowndes-law.com; 'Randall Gilbert' rgilbert@theconstructionlawyers.com; clc-discussion@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).

[Shutts_Logo.jpg]

William L. Grant
Partner, Board Certified in Construction Law

Shutts & Bowen LLP
300 South Orange Avenue, Suite 1000 | Orlando, FL 32801
Direct: (407) 835-6732 | Fax: (407) 425-8316
E-Mailmailto:WGrant@shutts.com | Biography http://www.shutts.com/lawyer/william-l-grant | V-Cardhttp://www.shutts.com/index.php?vcard&id=1069 | Websitehttp://www.shutts.com

Please consider the environment before printing this email

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@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@lists.flabarrpptl.orgmailto:clc-discussion@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
T: 904-598-9929 | F: 904-598-9109 | D: 904-632-8459
E-mailmailto:Reese.Henderson@gray-robinson.com | Websitehttp://www.gray-robinson.com | Biohttp://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr | vCardhttp://www.gray-robinson.com/docs/Reese%20Henderson.vcf

Facebookhttps://www.facebook.com/GrayRobinsonLaw | LinkedInhttps://www.linkedin.com/company/grayrobinson-p-a- | Twitterhttps://twitter.com/grayrobinsonlaw
From: Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com]
Sent: Tuesday, August 09, 2016 1:53 PM
To: Reese J. Henderson, Jr.; 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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  (Biohttp://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@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image004.jpg@01D1F25F.4C7D25A0]

From: Reese J. Henderson, Jr. [mailto:Reese.Henderson@gray-robinson.com]
Sent: Tuesday, August 09, 2016 1:36 PM
To: Gibbons, Michael; 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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-mailmailto:Reese.Henderson@gray-robinson.com | Websitehttp://www.gray-robinson.com | Biohttp://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr | vCardhttp://www.gray-robinson.com/docs/Reese%20Henderson.vcf

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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Tuesday, August 09, 2016 1:19 PM
To: 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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  (Biohttp://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@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

    [cid:image004.jpg@01D1F25F.4C7D25A0]

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Randall Gilbert
Sent: Tuesday, August 09, 2016 12:11 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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.comhttp://www.theconstructionlawyers.com/

Randall Gilbert, Esq.

Web#2:      www.TheTitleLawyers.comhttp://www.thetitlelawyers.com/

Board Certified Construction Lawyer

Web#3:      www.TheCorporateLawyers.comhttp://www.thecorporatelawyers.com/

[Randall Gilbert][cid:image003.gif@01CD3F4A.EF94F960]

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[v4.30]

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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http://legalteamusa.net/zwm-florida-today-business-of-the-year/

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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Robert Worman
Sent: Tuesday, August 09, 2016 4:59 PM
To: William L. Grant WGrant@shutts.com; 'Reese J. Henderson, Jr.' Reese.Henderson@gray-robinson.com; 'Gibbons, Michael' Michael.Gibbons@lowndes-law.com; 'Randall Gilbert' rgilbert@theconstructionlawyers.com; clc-discussion@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.
2707 West Fairbanks Avenue
Suite 200
Winter Park, FL 32789
407 843-5353
rworman@wormanlaw.commailto:rworman@wormanlaw.com
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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of William L. Grant
Sent: Tuesday, August 09, 2016 2:14 PM
To: 'Reese J. Henderson, Jr.' <Reese.Henderson@gray-robinson.commailto:Reese.Henderson@gray-robinson.com>; 'Gibbons, Michael' <Michael.Gibbons@lowndes-law.commailto:Michael.Gibbons@lowndes-law.com>; 'Randall Gilbert' <rgilbert@theconstructionlawyers.commailto:rgilbert@theconstructionlawyers.com>; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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).

[cid:image001.jpg@01D1F263.6EB93290]

William L. Grant
Partner, Board Certified in Construction Law

Shutts & Bowen LLP
300 South Orange Avenue, Suite 1000 | Orlando, FL 32801
Direct: (407) 835-6732 | Fax: (407) 425-8316
E-Mailmailto:WGrant@shutts.com | Biography http://www.shutts.com/lawyer/william-l-grant | V-Cardhttp://www.shutts.com/index.php?vcard&id=1069 | Websitehttp://www.shutts.com

Please consider the environment before printing this email

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@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@lists.flabarrpptl.orgmailto:clc-discussion@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
T: 904-598-9929 | F: 904-598-9109 | D: 904-632-8459
E-mailmailto:Reese.Henderson@gray-robinson.com | Websitehttp://www.gray-robinson.com | Biohttp://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr | vCardhttp://www.gray-robinson.com/docs/Reese%20Henderson.vcf

Facebookhttps://www.facebook.com/GrayRobinsonLaw | LinkedInhttps://www.linkedin.com/company/grayrobinson-p-a- | Twitterhttps://twitter.com/grayrobinsonlaw
From: Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com]
Sent: Tuesday, August 09, 2016 1:53 PM
To: Reese J. Henderson, Jr.; 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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  (Biohttp://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@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

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

From: Reese J. Henderson, Jr. [mailto:Reese.Henderson@gray-robinson.com]
Sent: Tuesday, August 09, 2016 1:36 PM
To: Gibbons, Michael; 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Tuesday, August 09, 2016 1:19 PM
To: 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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  (Biohttp://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@lowndes-law.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/

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

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Randall Gilbert
Sent: Tuesday, August 09, 2016 12:11 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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.comhttp://www.theconstructionlawyers.com/

Randall Gilbert, Esq.

Web#2:      www.TheTitleLawyers.comhttp://www.thetitlelawyers.com/

Board Certified Construction Lawyer

Web#3:      www.TheCorporateLawyers.comhttp://www.thecorporatelawyers.com/

[cid:image005.jpg@01D1F263.6EB93290][cid:image006.jpg@01D1F263.6EB93290]

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[v4.30]

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[v4.30]