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Lien rights for non-conforming goods?

RG
Randall Gilbert
Tue, Aug 9, 2016 10:27 PM

To All, Thank you all for your over 40+ responses and citations to various laws which were very helpful especially §713.06(1) Fla. Stat.  which I find particularly on-point.

As to Michael Gibbons’ “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)?”

·        The answer is the MANUFACTURER says their request to see the plans were denied by the GC, that they “thought it weird,” but manufactured exactly what was ordered by the GC as set forth in their PO with the GC.  The OWNER played no part in the order being incorrectly placed by the GC and there is no estoppel/waiver/consent/unclean hands defense to be argued regarding the Owner.  This is simply an issue caused entirely by the GC between two innocent parties.  My supposition is that the GC figured no one would catch the error in the energy factor being 300% less than what was specified and approved in the publicly filed and permitted set of plans, and the GC just ordered much cheaper windows.  In other words, non-conforming goods.
Perry, if your motion (made at the end of your trial) was written on the issue would you share it?

Belinda, a big thank you for the Hawaiian Inn case, which other cases have cited, and for the benefit of all I am quoting below…

·        “When an owner avails himself of the services of an architect for the purpose of preparing plans and specifications and thereafter enters into a contract for construction in accordance with those plans and specifications the owner is entitled, in the absence of an agreed change, acquiescence or estoppel, neither of which are sustained by the evidence sub judice, to expect and require construction in accordance with the plans and specifications. It being clear from the record that the paint (and other materials, specifically caulking) used by the painting subcontractor was not as specified we find insufficient basis for the assertion and foreclosure of mechanic's liens: The portions of the final judgments so providing, in favor of appellee Robert Myers Painting, Inc. and against appellant Hawaiian Inn of Daytona Beach, Inc. are reversed.”  Hawaiian Inn of Daytona Beach, Inc. v. Robert Myers Painting, Inc., 363 So. 2d 125, 126 (Fla. 1st DCA 1978)

·        “ Florida law is clear that “[b]efore the lienor may recover, the owner's contract must call for the furnishing of the particular item. Where the contract is written, the plans and specifications must reflect the *1231 furnishing of the particular materials.” 1 S. Rakusin, Florida Mechanics' Lien Manual 3.02 A.1. (Supp.1988). Where the written contract is at variance with the claim of lien, mechanics' lien jurisdiction will not lie. See Hawaiian Inn of Daytona Beach, Inc. v. Robert Myers Painting, Inc., 363 So.2d 125 (Fla. 1st DCA 1978) (where paint and other materials used by subcontractor were not in accordance with plans and specifications, there was no basis for assertion and foreclosure of mechanics' lien), cert. denied, 370 So. 2d 461 (Fla. 1979); Morris & Esher, Inc. v. Olympia Enters., Inc., 200 So.2d 579 (Fla. 3d DCA 1967) (to determine whether amounts reflected in claim of lien covered lienable items, court must consider terms of direct contract between owner and contractor.” Lofter v. Rashide, 523 So. 2d 1230, 1230–31 (Fla. 3d DCA 1988)

·        “ In this case the homeowner's direct contract with Strickland called for a Katolight generator, but the generator actually delivered was an Onan. The homeowner argues that this nonconformity defeats Newman's claim of lien. “Where the written contract is at variance with the claim of lien, Mechanic's Lien jurisdiction will not lie.” Lofter v. Rashide, 523 So.2d 1230, 1231 (Fla. 3d DCA 1988) (citing Hawaiian Inn of Daytona Beach, Inc. v. Robert Myers Painting, Inc., 363 So.2d 125 (Fla. 1st DCA 1978); Morris & Esher, Inc. v. Olympia Enters., Inc., 200 So.2d 579 (Fla. 3d DCA 1967)). We think the owner is estopped from invoking the nonconformity under the circumstances of this case. Upon delivery of the generator the homeowner immediately determined that it was nonconforming but made a conscious decision to accept the generator in exchange for a credit on the price. There is no indication of any such circumstances in the above cited cases.  Keller v. Newman Sons, Inc., 756 So. 2d 120, 122 (Fla. 3d DCA 2000).

·        “An example of a situation in which there are no lien rights would be that of a contractor ordering the electrical subcontractor to put lights in a room where the plans and specifications do not call for lights. The owner has not ordered this change, and is not aware of it. The contractor has ordered the change because it makes the room easier for the contractor to work in. The electrical subcontractor will not have lien rights for those extra lights, but may recover the reasonable value of the lights from the contractor.”  8 Fla. Prac., Constr. Law Manual §8:76 (2015-2016 ed.)
APPLICABLE STATUTES

·        “For the purpose of perfecting her or his lien under this part, every lienor, including laborers and persons in privity, shall record a claim of lien which shall state … The labor, services, or materials furnished and the contract price or value thereof.  Materials specially fabricated at a place other than the site of the improvement for incorporation in the improvement but not so incorporated and the contract price or value thereof shall be separately stated in the claim of lien.”  §713.08(1)(c) Fla. Stat.

·        “Persons who are not in privity with an owner and who perform labor or services or furnish materials constituting a part of an improvement under the direct contract of another person shall have rights to a lien on real property as provided in s. 713.06.”  §713.02(4) Fla. Stat. 

o  “Furnish materials” means supply materials which are incorporated in the improvement including normal wastage in construction operations; or specially fabricated materials for incorporation in the improvement, not including any design work, submittals, or the like preliminary to actual fabrication of the materials; or supply materials used for the construction and not remaining in the improvement, subject to diminution by the salvage value of such materials; and includes supplying rental equipment, but does not include supplying handtools. The delivery of materials to the site of the improvement is prima facie evidence of incorporation of such materials in the improvement. ….. §713.01(13) Fla. Stat.

o  “Direct contract” means a contract between the owner and any other person.  §713.01(9) Fla. Stat.

o  “Improvement” means any building, structure, construction, demolition, excavation, solid-waste removal, landscaping, or any part thereof existing, built, erected, placed, made, or done on land or other real property for its permanent benefit. §713.01(15) Fla. Stat.

·          “A materialman or laborer, either of whom is not in privity with the owner, or a subcontractor or sub-subcontractor who complies with the provisions of this part and is subject to the limitations thereof, has a lien on the real property improved for any money that is owed to him or her for labor, services, or materials furnished in accordance with his or her contract and with the direct contract and for any unpaid finance charges due under the lienor's contract. … The total amount of all liens allowed under this part for furnishing labor, services, or material covered by any certain direct contract must not exceed the amount of the contract price fixed by the direct contract except as provided in subsection (3).” §713.06(1) Fla. Stat.

·        “Direct contract” means a contract between the owner and any other person.  §713.01(9) Fla. Stat.

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]

From: Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com]
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: 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@01D1F25B.E68051D0]

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:image004.jpg@01D1F25B.E68051D0]

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

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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@01D1F25B.E68051D0]

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]

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[v4.30]

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[v4.30]

To All, Thank you all for your over 40+ responses and citations to various laws which were very helpful especially §713.06(1) Fla. Stat. which I find particularly on-point. As to Michael Gibbons’ “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)?” · The answer is the MANUFACTURER says their request to see the plans were denied by the GC, that they “thought it weird,” but manufactured exactly what was ordered by the GC as set forth in their PO with the GC. The OWNER played no part in the order being incorrectly placed by the GC and there is no estoppel/waiver/consent/unclean hands defense to be argued regarding the Owner. This is simply an issue caused entirely by the GC between two innocent parties. My supposition is that the GC figured no one would catch the error in the energy factor being 300% less than what was specified and approved in the publicly filed and permitted set of plans, and the GC just ordered much cheaper windows. In other words, non-conforming goods. Perry, if your motion (made at the end of your trial) was written on the issue would you share it? Belinda, a big thank you for the Hawaiian Inn case, which other cases have cited, and for the benefit of all I am quoting below… · “When an owner avails himself of the services of an architect for the purpose of preparing plans and specifications and thereafter enters into a contract for construction in accordance with those plans and specifications the owner is entitled, in the absence of an agreed change, acquiescence or estoppel, neither of which are sustained by the evidence sub judice, to expect and require construction in accordance with the plans and specifications. It being clear from the record that the paint (and other materials, specifically caulking) used by the painting subcontractor was not as specified we find insufficient basis for the assertion and foreclosure of mechanic's liens: The portions of the final judgments so providing, in favor of appellee Robert Myers Painting, Inc. and against appellant Hawaiian Inn of Daytona Beach, Inc. are reversed.” Hawaiian Inn of Daytona Beach, Inc. v. Robert Myers Painting, Inc., 363 So. 2d 125, 126 (Fla. 1st DCA 1978) · “ Florida law is clear that “[b]efore the lienor may recover, the owner's contract must call for the furnishing of the particular item. Where the contract is written, the plans and specifications must reflect the *1231 furnishing of the particular materials.” 1 S. Rakusin, Florida Mechanics' Lien Manual 3.02 A.1. (Supp.1988). Where the written contract is at variance with the claim of lien, mechanics' lien jurisdiction will not lie. See Hawaiian Inn of Daytona Beach, Inc. v. Robert Myers Painting, Inc., 363 So.2d 125 (Fla. 1st DCA 1978) (where paint and other materials used by subcontractor were not in accordance with plans and specifications, there was no basis for assertion and foreclosure of mechanics' lien), cert. denied, 370 So. 2d 461 (Fla. 1979); Morris & Esher, Inc. v. Olympia Enters., Inc., 200 So.2d 579 (Fla. 3d DCA 1967) (to determine whether amounts reflected in claim of lien covered lienable items, court must consider terms of direct contract between owner and contractor.” Lofter v. Rashide, 523 So. 2d 1230, 1230–31 (Fla. 3d DCA 1988) · “ In this case the homeowner's direct contract with Strickland called for a Katolight generator, but the generator actually delivered was an Onan. The homeowner argues that this nonconformity defeats Newman's claim of lien. “Where the written contract is at variance with the claim of lien, Mechanic's Lien jurisdiction will not lie.” Lofter v. Rashide, 523 So.2d 1230, 1231 (Fla. 3d DCA 1988) (citing Hawaiian Inn of Daytona Beach, Inc. v. Robert Myers Painting, Inc., 363 So.2d 125 (Fla. 1st DCA 1978); Morris & Esher, Inc. v. Olympia Enters., Inc., 200 So.2d 579 (Fla. 3d DCA 1967)). We think the owner is estopped from invoking the nonconformity under the circumstances of this case. Upon delivery of the generator the homeowner immediately determined that it was nonconforming but made a conscious decision to accept the generator in exchange for a credit on the price. There is no indication of any such circumstances in the above cited cases. Keller v. Newman Sons, Inc., 756 So. 2d 120, 122 (Fla. 3d DCA 2000). · “An example of a situation in which there are no lien rights would be that of a contractor ordering the electrical subcontractor to put lights in a room where the plans and specifications do not call for lights. The owner has not ordered this change, and is not aware of it. The contractor has ordered the change because it makes the room easier for the contractor to work in. The electrical subcontractor will not have lien rights for those extra lights, but may recover the reasonable value of the lights from the contractor.” 8 Fla. Prac., Constr. Law Manual §8:76 (2015-2016 ed.) APPLICABLE STATUTES · “For the purpose of perfecting her or his lien under this part, every lienor, including laborers and persons in privity, shall record a claim of lien which shall state … The labor, services, or materials furnished and the contract price or value thereof. Materials specially fabricated at a place other than the site of the improvement for incorporation in the improvement but not so incorporated and the contract price or value thereof shall be separately stated in the claim of lien.” §713.08(1)(c) Fla. Stat. · “Persons who are not in privity with an owner and who perform labor or services or furnish materials constituting a part of an improvement under the direct contract of another person shall have rights to a lien on real property as provided in s. 713.06.” §713.02(4) Fla. Stat.  o “Furnish materials” means supply materials which are incorporated in the improvement including normal wastage in construction operations; or specially fabricated materials for incorporation in the improvement, not including any design work, submittals, or the like preliminary to actual fabrication of the materials; or supply materials used for the construction and not remaining in the improvement, subject to diminution by the salvage value of such materials; and includes supplying rental equipment, but does not include supplying handtools. The delivery of materials to the site of the improvement is prima facie evidence of incorporation of such materials in the improvement. ….. §713.01(13) Fla. Stat. o “Direct contract” means a contract between the owner and any other person. §713.01(9) Fla. Stat. o “Improvement” means any building, structure, construction, demolition, excavation, solid-waste removal, landscaping, or any part thereof existing, built, erected, placed, made, or done on land or other real property for its permanent benefit. §713.01(15) Fla. Stat. · “A materialman or laborer, either of whom is not in privity with the owner, or a subcontractor or sub-subcontractor who complies with the provisions of this part and is subject to the limitations thereof, has a lien on the real property improved for any money that is owed to him or her for labor, services, or materials furnished in accordance with his or her contract and with the direct contract and for any unpaid finance charges due under the lienor's contract. … The total amount of all liens allowed under this part for furnishing labor, services, or material covered by any certain direct contract must not exceed the amount of the contract price fixed by the direct contract except as provided in subsection (3).” §713.06(1) Fla. Stat. · “Direct contract” means a contract between the owner and any other person. §713.01(9) Fla. Stat. 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 Gilbert][cid:image003.gif@01CD3F4A.EF94F960] From: Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com] 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: Lien rights for non-conforming goods? Reese, I believe your interpretation of “in accordance with” is overly narrow and restrictive. And Randall’s facts illustrate why. Why should a lienor have lien rights here when the product fabricated is cut to the wrong dimensions and cannot be used to actually improve Owner’s property. The issue can be (and typically is) avoided by the fabricator working off permitted drawings and specs that are included in the direct contract. Side question here for Randall: This should have been caught in the Shop Drawing and submittal process. How did the windows get fabricated without approved shop drawings (presumably signed off by Architect)? Michael R. Gibbons (Bio<http://lowndes-law.com/our-people/michael-r-gibbons>) Shareholder Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 N. Eola Drive Orlando, FL 32801 Phone: 407-418-6378 Fax: 407-843-4444 email: michael.gibbons@lowndes-law.com<mailto:michael.gibbons@lowndes-law.com> website: http://www.lowndes-law.com<http://www.lowndes-law.com/> [cid:image004.jpg@01D1F25B.E68051D0] 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.org<mailto: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-mail<mailto:Reese.Henderson@gray-robinson.com> | Website<http://www.gray-robinson.com> | Bio<http://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr> | vCard<http://www.gray-robinson.com/docs/Reese%20Henderson.vcf> Facebook<https://www.facebook.com/GrayRobinsonLaw> | LinkedIn<https://www.linkedin.com/company/grayrobinson-p-a-> | Twitter<https://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.org<mailto: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 (Bio<http://lowndes-law.com/our-people/michael-r-gibbons>) Shareholder Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 N. Eola Drive Orlando, FL 32801 Phone: 407-418-6378 Fax: 407-843-4444 email: michael.gibbons@lowndes-law.com<mailto:michael.gibbons@lowndes-law.com> website: http://www.lowndes-law.com<http://www.lowndes-law.com/> [cid:image004.jpg@01D1F25B.E68051D0] 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.org<mailto: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-mail<mailto:Reese.Henderson@gray-robinson.com> | Website<http://www.gray-robinson.com> | Bio<http://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr> | vCard<http://www.gray-robinson.com/docs/Reese%20Henderson.vcf> Facebook<https://www.facebook.com/GrayRobinsonLaw> | LinkedIn<https://www.linkedin.com/company/grayrobinson-p-a-> | Twitter<https://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. 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From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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<mailto: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 (Bio<http://lowndes-law.com/our-people/michael-r-gibbons>) Shareholder Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 N. Eola Drive Orlando, FL 32801 Phone: 407-418-6378 Fax: 407-843-4444 email: michael.gibbons@lowndes-law.com<mailto:michael.gibbons@lowndes-law.com> website: http://www.lowndes-law.com<http://www.lowndes-law.com/> [cid:image005.jpg@01D1F25B.E68051D0] From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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<mailto: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 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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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. 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Attached image Attached image Attached image Attached image Attached image
FD
Fred Dudley
Wed, Aug 10, 2016 12:27 PM

I agree with Tim, and one further thing: if the windows don’t meet the energy rating requirements, they are non-compliant with the Florida Building Code.

Fred R. Dudley, Managing Member
Board Certified Construction Lawyer
Dudley, Sellers, Healy & Heath, P. L.
SunTrust Financial Center, Suite 301
3522 Thomasville Road
Tallahassee, Florida 32308
Cell: (850) 294-3471
Direct: (850)692-6368
dudley@mylicenselaw.com

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 2:38 PM
To: Ed Kinberg EJK@uslegalteam.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?

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
tmoorhead@wfmblaw.commailto:tmoorhead@wfmblaw.com
www.wfmblaw.comhttp://www.wfmblaw.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 Ed Kinberg
Sent: Tuesday, August 09, 2016 2:03 PM
To: Reese J. Henderson, Jr.; 'Gibbons, Michael'; 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto: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/WMLOGO.png]http://uslegalteam.com

Ed Kinberg, Attorney at Law
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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
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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@01D1F2E1.056F03E0]

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]

I agree with Tim, and one further thing: if the windows don’t meet the energy rating requirements, they are non-compliant with the Florida Building Code. Fred R. Dudley, Managing Member Board Certified Construction Lawyer Dudley, Sellers, Healy & Heath, P. L. SunTrust Financial Center, Suite 301 3522 Thomasville Road Tallahassee, Florida 32308 Cell: (850) 294-3471 Direct: (850)692-6368 dudley@mylicenselaw.com 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 2:38 PM To: Ed Kinberg <EJK@uslegalteam.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? 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 tmoorhead@wfmblaw.com<mailto:tmoorhead@wfmblaw.com> www.wfmblaw.com<http://www.wfmblaw.com> CONFIDENTIALITY NOTICE: This e-mail transmission (and/or the attachments accompanying it) may contain confidential information belonging to the sender which is protected by the attorney-client privilege. The information is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. 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Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail. From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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<mailto: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/WMLOGO.png]<http://uslegalteam.com> Ed Kinberg, Attorney at Law 1990 W New Haven Ave Ste. 201 Melbourne, Florida 32904 (321) 255-2332 (321) 255-2351 [https://zwmlegal.com/emailsig/pri.jpg]<http://www.primerus.com/law-firms/widerman-malek-melbourne-florida-fl.htm?params=zies-widerman-malek-melbourne-florida-fl.htm> NOTICE: This message and any attachments are solely for the use of the intended recipient. They may contain privileged and/or confidential information, attorney work product, or other information protected from disclosure. If you are not an intended recipient, you are hereby notified that you received this email in error. Any review, dissemination, distribution or copying of this email and any attachment is strictly prohibited. If you are not the intended recipient of this email, please contact Widerman Malek at the above-referenced number, and delete the message and any attachment from your system. Thank you. From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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<mailto:Michael.Gibbons@lowndes-law.com>>; 'Randall Gilbert' <rgilbert@theconstructionlawyers.com<mailto:rgilbert@theconstructionlawyers.com>>; clc-discussion@lists.flabarrpptl.org<mailto: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 E-mail<mailto:Reese.Henderson@gray-robinson.com> | Website<http://www.gray-robinson.com> | Bio<http://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr> | vCard<http://www.gray-robinson.com/docs/Reese%20Henderson.vcf> Facebook<https://www.facebook.com/GrayRobinsonLaw> | LinkedIn<https://www.linkedin.com/company/grayrobinson-p-a-> | Twitter<https://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.org<mailto: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<mailto: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 (Bio<http://lowndes-law.com/our-people/michael-r-gibbons>) Shareholder Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 N. Eola Drive Orlando, FL 32801 Phone: 407-418-6378 Fax: 407-843-4444 email: michael.gibbons@lowndes-law.com<mailto:michael.gibbons@lowndes-law.com> website: http://www.lowndes-law.com<http://www.lowndes-law.com/> [cid:image002.jpg@01D1F2E1.056F03E0] From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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<mailto: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 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. 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]
Attached image Attached image Attached image Attached image
FD
Fred Dudley
Wed, Aug 10, 2016 12:29 PM

I don’t see it as a matter of the manufacturer “eating the loss;” it still has a cause of action against the contractor for any failure to pay for what was ordered for delivery.

Fred R. Dudley, Managing Member
Board Certified Construction Lawyer
Dudley, Sellers, Healy & Heath, P. L.
SunTrust Financial Center, Suite 301
3522 Thomasville Road
Tallahassee, Florida 32308
Cell: (850) 294-3471
Direct: (850)692-6368
dudley@mylicenselaw.com

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 2:43 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:image005.jpg@01D1F2E1.48321460]

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:image006.jpg@01D1F2E1.48321460]

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.

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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:image007.jpg@01D1F2E1.48321460]

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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[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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[v4.30]

I don’t see it as a matter of the manufacturer “eating the loss;” it still has a cause of action against the contractor for any failure to pay for what was ordered for delivery. Fred R. Dudley, Managing Member Board Certified Construction Lawyer Dudley, Sellers, Healy & Heath, P. L. SunTrust Financial Center, Suite 301 3522 Thomasville Road Tallahassee, Florida 32308 Cell: (850) 294-3471 Direct: (850)692-6368 dudley@mylicenselaw.com 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 2:43 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-mail<mailto:Reese.Henderson@gray-robinson.com> | Website<http://www.gray-robinson.com> | Bio<http://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr> | vCard<http://www.gray-robinson.com/docs/Reese%20Henderson.vcf> Facebook<https://www.facebook.com/GrayRobinsonLaw> | LinkedIn<https://www.linkedin.com/company/grayrobinson-p-a-> | Twitter<https://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<mailto: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 (Bio<http://lowndes-law.com/our-people/michael-r-gibbons>) Shareholder Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 N. Eola Drive Orlando, FL 32801 Phone: 407-418-6378 Fax: 407-843-4444 email: michael.gibbons@lowndes-law.com<mailto:michael.gibbons@lowndes-law.com> website: http://www.lowndes-law.com<http://www.lowndes-law.com/> [cid:image005.jpg@01D1F2E1.48321460] 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.org<mailto: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-mail<mailto:Reese.Henderson@gray-robinson.com> | Website<http://www.gray-robinson.com> | Bio<http://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr> | vCard<http://www.gray-robinson.com/docs/Reese%20Henderson.vcf> Facebook<https://www.facebook.com/GrayRobinsonLaw> | LinkedIn<https://www.linkedin.com/company/grayrobinson-p-a-> | Twitter<https://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.org<mailto: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 (Bio<http://lowndes-law.com/our-people/michael-r-gibbons>) Shareholder Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 N. Eola Drive Orlando, FL 32801 Phone: 407-418-6378 Fax: 407-843-4444 email: michael.gibbons@lowndes-law.com<mailto:michael.gibbons@lowndes-law.com> website: http://www.lowndes-law.com<http://www.lowndes-law.com/> [cid:image006.jpg@01D1F2E1.48321460] 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.org<mailto: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-mail<mailto:Reese.Henderson@gray-robinson.com> | Website<http://www.gray-robinson.com> | Bio<http://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr> | vCard<http://www.gray-robinson.com/docs/Reese%20Henderson.vcf> Facebook<https://www.facebook.com/GrayRobinsonLaw> | LinkedIn<https://www.linkedin.com/company/grayrobinson-p-a-> | Twitter<https://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.org<mailto: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<mailto: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 (Bio<http://lowndes-law.com/our-people/michael-r-gibbons>) Shareholder Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 N. Eola Drive Orlando, FL 32801 Phone: 407-418-6378 Fax: 407-843-4444 email: michael.gibbons@lowndes-law.com<mailto:michael.gibbons@lowndes-law.com> website: http://www.lowndes-law.com<http://www.lowndes-law.com/> [cid:image007.jpg@01D1F2E1.48321460] From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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<mailto: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 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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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. 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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]
Attached image Attached image Attached image Attached image Attached image
FD
Fred Dudley
Wed, Aug 10, 2016 12:31 PM

Well stated, Steve!

Fred R. Dudley, Managing Member
Board Certified Construction Lawyer
Dudley, Sellers, Healy & Heath, P. L.
SunTrust Financial Center, Suite 301
3522 Thomasville Road
Tallahassee, Florida 32308
Cell: (850) 294-3471
Direct: (850)692-6368
dudley@mylicenselaw.com

From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Steve Thompson
Sent: Tuesday, August 09, 2016 3:07 PM
To: 'Timothy R. Moorhead' tmoorhead@wfmblaw.com; 'Ed Kinberg' EJK@uslegalteam.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?

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
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WITHOUT THE EXPRESS CONSENT OF STEVEN F. THOMPSON, P.A.. THANK YOU.

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto: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.orgmailto: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
tmoorhead@wfmblaw.commailto:tmoorhead@wfmblaw.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 Ed Kinberg
Sent: Tuesday, August 09, 2016 2:03 PM
To: Reese J. Henderson, Jr.; 'Gibbons, Michael'; 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.orgmailto: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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Ed Kinberg, Attorney at Law
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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
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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@01D1F2E1.97B993A0]

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]

Well stated, Steve! Fred R. Dudley, Managing Member Board Certified Construction Lawyer Dudley, Sellers, Healy & Heath, P. L. SunTrust Financial Center, Suite 301 3522 Thomasville Road Tallahassee, Florida 32308 Cell: (850) 294-3471 Direct: (850)692-6368 dudley@mylicenselaw.com From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Steve Thompson Sent: Tuesday, August 09, 2016 3:07 PM To: 'Timothy R. Moorhead' <tmoorhead@wfmblaw.com>; 'Ed Kinberg' <EJK@uslegalteam.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? 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 THE ABOVE MAY CONTAIN OR CONSTITUTE A CONFIDENTIAL AND PRIVILEGED COMMUNICATION. IF YOU ARE NOT THE INTENDED RECIPIENT, OR IF YOU HAVE OTHERWISE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY THE OFFICE OF STEVEN F. THOMPSON, P.A. BY TELEPHONE AT (813) 387-1821 [collect] AND INFORM THE OFFICE OF THE ERROR; AND PLEASE DESTROY OR DELETE THIS MESSAGE. THIS MESSAGE MAY NOT BE REVIEWED, PRINTED, DISPLAYED, OR RE-TRANSMITTED WITHOUT THE SENDER'S CONSENT. ALL RIGHTS PROTECTED. THERE MAY BE NO FURTHER DISTRIBUTION OR PUBLICATION OF THIS COMMUNICATION OR ITS CONTENTS WITHOUT THE EXPRESS CONSENT OF STEVEN F. THOMPSON, P.A.. THANK YOU. ________________________________ From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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<mailto: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 tmoorhead@wfmblaw.com<mailto:tmoorhead@wfmblaw.com> www.wfmblaw.com<http://www.wfmblaw.com> CONFIDENTIALITY NOTICE: This e-mail transmission (and/or the attachments accompanying it) may contain confidential information belonging to the sender which is protected by the attorney-client privilege. The information is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. Any unauthorized interception of this transmission is illegal. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission. 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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. From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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<mailto: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/WMLOGO.png]<http://uslegalteam.com> Ed Kinberg, Attorney at Law 1990 W New Haven Ave Ste. 201 Melbourne, Florida 32904 (321) 255-2332 (321) 255-2351 [https://zwmlegal.com/emailsig/pri.jpg]<http://www.primerus.com/law-firms/widerman-malek-melbourne-florida-fl.htm?params=zies-widerman-malek-melbourne-florida-fl.htm> NOTICE: This message and any attachments are solely for the use of the intended recipient. They may contain privileged and/or confidential information, attorney work product, or other information protected from disclosure. If you are not an intended recipient, you are hereby notified that you received this email in error. Any review, dissemination, distribution or copying of this email and any attachment is strictly prohibited. If you are not the intended recipient of this email, please contact Widerman Malek at the above-referenced number, and delete the message and any attachment from your system. Thank you. From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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<mailto:Michael.Gibbons@lowndes-law.com>>; 'Randall Gilbert' <rgilbert@theconstructionlawyers.com<mailto:rgilbert@theconstructionlawyers.com>>; clc-discussion@lists.flabarrpptl.org<mailto: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 E-mail<mailto:Reese.Henderson@gray-robinson.com> | Website<http://www.gray-robinson.com> | Bio<http://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr> | vCard<http://www.gray-robinson.com/docs/Reese%20Henderson.vcf> Facebook<https://www.facebook.com/GrayRobinsonLaw> | LinkedIn<https://www.linkedin.com/company/grayrobinson-p-a-> | Twitter<https://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.org<mailto: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<mailto: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 (Bio<http://lowndes-law.com/our-people/michael-r-gibbons>) Shareholder Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 N. Eola Drive Orlando, FL 32801 Phone: 407-418-6378 Fax: 407-843-4444 email: michael.gibbons@lowndes-law.com<mailto:michael.gibbons@lowndes-law.com> website: http://www.lowndes-law.com<http://www.lowndes-law.com/> [cid:image002.jpg@01D1F2E1.97B993A0] From: clc-discussion-bounces@lists.flabarrpptl.org<mailto: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<mailto: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 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. 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]
Attached image Attached image Attached image Attached image
ST
Steve Thompson
Wed, Aug 10, 2016 1:42 PM 
Yes, but couldn't the same thing be said for the Owner?  Wouldn't the

Owner have a cause of action against the Contractor for breach of contract?
In the end, it seems that if there is no case law directly on point, then
the court will have to assess either the Owner or the Material Supplier for
the Contractor's mistake.  The argument could be advanced that the Owner was
in the best position to select a Contractor and should therefore bear the
burden of the contractor's mistake between two innocent parties.  Of course,
the same could be said for the Material Supplier (i.e. they chose to do
business with the Contractor).  However, given the intent of ch 713
expressed by the legislature to protect Material Suppliers, I come down on
the side of the Material Supplier.

Caveat: I am not entirely unbiased since I primarily represent
Subcontractors and Material Suppliers.

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

THE ABOVE MAY CONTAIN OR CONSTITUTE A  CONFIDENTIAL
AND PRIVILEGED COMMUNICATION. IF YOU ARE NOT THE INTENDED
RECIPIENT, OR IF YOU HAVE OTHERWISE RECEIVED THIS COMMUNICATION
IN ERROR, PLEASE NOTIFY THE OFFICE OF STEVEN F. THOMPSON, P.A. BY TELEPHONE
AT (813) 387-1821 [collect] AND INFORM THE OFFICE OF THE ERROR;
AND PLEASE DESTROY OR DELETE THIS MESSAGE. THIS MESSAGE MAY NOT
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DISTRIBUTION OR PUBLICATION OF THIS COMMUNICATION OR ITS CONTENTS
WITHOUT THE EXPRESS CONSENT OF STEVEN F. THOMPSON, P.A.. THANK YOU.

From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Fred
Dudley
Sent: Wednesday, August 10, 2016 8:29 AM
To: Reese J. Henderson, Jr.; 'Gibbons, Michael'; 'Randall Gilbert';
clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Lien rights for non-conforming goods?

I don’t see it as a matter of the manufacturer “eating the loss;” it still
has a cause of action against the contractor for any failure to pay for what
was ordered for delivery.

Fred R. Dudley, Managing Member

Board Certified Construction Lawyer

Dudley, Sellers, Healy & Heath, P. L.

SunTrust Financial Center, Suite 301

3522 Thomasville Road

Tallahassee, Florida 32308

Cell: (850) 294-3471

Direct: (850)692-6368

dudley@mylicenselaw.com

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 2:43 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
mailto:Reese.Henderson@gray-robinson.com E-mail |
http://www.gray-robinson.com Website |
http://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr Bio
|  http://www.gray-robinson.com/docs/Reese%20Henderson.vcf vCard

https://www.facebook.com/GrayRobinsonLaw Facebook |
https://www.linkedin.com/company/grayrobinson-p-a- LinkedIn |
https://twitter.com/grayrobinsonlaw Twitter

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  ( 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: 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.org
Subject: RE: Lien rights for non-conforming goods?

Mike,

The statute you cited says “in accordance with his or her contract and with
the direct contract”, not “in compliance with the requirements of . . . .”
Otherwise, it would be very easy to defeat liens for specially fabricated
materials if the owner could find one feature technically out of compliance.
Under the stated hypothetical, the fabricator shipped what was ordered.
Absent a case saying to the contrary, my understanding is “in accordance
with” simply means the supplier’s contract is in the chain of contracts
leading to the owner and, in the hypothetical, it clearly is in the chain of
contracts.

Reese J. Henderson, Jr. | Shareholder
Florida Bar Board Certified in Construction Law
Florida Supreme Court Certified Circuit Civil Mediator
G R A Y | R O B I N S O N

50 North Laura Street, Suite 1100 | Jacksonville, Florida 32202
T: 904-598-9929 | F: 904-598-9109 | D: 904-632-8459
mailto:Reese.Henderson@gray-robinson.com E-mail |
http://www.gray-robinson.com Website |
http://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr Bio
|  http://www.gray-robinson.com/docs/Reese%20Henderson.vcf vCard

https://www.facebook.com/GrayRobinsonLaw Facebook |
https://www.linkedin.com/company/grayrobinson-p-a- LinkedIn |
https://twitter.com/grayrobinsonlaw Twitter

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.org
Subject: RE: Lien rights for non-conforming goods?

Don’t think so, Reese.  The issue is not whether the specially fabricated
materials were incorporated or not.  The issue is whether a  supplier or
sub (i.e, non-privity lienor) has lien rights when the materials (specially
fabricated or otherwise) do NOT conform to the requirements of the direct
contract between Owner and GC.  In Randall’s facts, he made it clear that
the materials (while complying with the terms of the subcontract) do not
comply with the terms of the direct or owner contract.

It would appear the underlying rationale for the statutory limitation  on
the lien rights is that the lienor should not be permitted to encumber the
Owner’s real property with a Claim of Lien when the performance by the
Lienor (here specially fabricated materials) does not conform to the Owner’s
contractual requirements and hence doesn’t benefit Owner.

Michael R. Gibbons  ( http://lowndes-law.com/our-people/michael-r-gibbons
Bio)

Shareholder

Lowndes, Drosdick, Doster, Kantor & Reed, P.A.

215 N. Eola Drive

Orlando, FL 32801

Phone: 407-418-6378

Fax: 407-843-4444

email:  mailto:michael.gibbons@lowndes-law.com
michael.gibbons@lowndes-law.com

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

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.org
Subject: RE: Lien rights for non-conforming goods?

My friend Michael is incorrect.  See § 713.01(13); see also Aquatic Plant
Management, Inc. v. Paramount Engineering, Inc., 977 So.2d 600 (Fla. 4th DCA
2007).  Assuming, of course, the windows really were specially fabricated
for this project.

Reese J. Henderson, Jr. | Shareholder
Florida Bar Board Certified in Construction Law
Florida Supreme Court Certified Circuit Civil Mediator
G R A Y | R O B I N S O N

50 North Laura Street, Suite 1100 | Jacksonville, Florida 32202
T: 904-598-9929 | F: 904-598-9109 | D: 904-632-8459
mailto:Reese.Henderson@gray-robinson.com E-mail |
http://www.gray-robinson.com Website |
http://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr Bio
|  http://www.gray-robinson.com/docs/Reese%20Henderson.vcf vCard

https://www.facebook.com/GrayRobinsonLaw Facebook |
https://www.linkedin.com/company/grayrobinson-p-a- LinkedIn |
https://twitter.com/grayrobinsonlaw Twitter

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.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]

Yes, but couldn't the same thing be said for the Owner? Wouldn't the Owner have a cause of action against the Contractor for breach of contract? In the end, it seems that if there is no case law directly on point, then the court will have to assess either the Owner or the Material Supplier for the Contractor's mistake. The argument could be advanced that the Owner was in the best position to select a Contractor and should therefore bear the burden of the contractor's mistake between two innocent parties. Of course, the same could be said for the Material Supplier (i.e. they chose to do business with the Contractor). However, given the intent of ch 713 expressed by the legislature to protect Material Suppliers, I come down on the side of the Material Supplier. Caveat: I am not entirely unbiased since I primarily represent Subcontractors and Material Suppliers. Steven F. Thompson, Esq. STEVEN F. THOMPSON, P.A. 412 E. Madison St., Ste 900 Tampa, Fl. 33602 813-387-1821 Fax 813-387-1824 THE ABOVE MAY CONTAIN OR CONSTITUTE A CONFIDENTIAL AND PRIVILEGED COMMUNICATION. IF YOU ARE NOT THE INTENDED RECIPIENT, OR IF YOU HAVE OTHERWISE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY THE OFFICE OF STEVEN F. THOMPSON, P.A. BY TELEPHONE AT (813) 387-1821 [collect] AND INFORM THE OFFICE OF THE ERROR; AND PLEASE DESTROY OR DELETE THIS MESSAGE. THIS MESSAGE MAY NOT BE REVIEWED, PRINTED, DISPLAYED, OR RE-TRANSMITTED WITHOUT THE SENDER'S CONSENT. ALL RIGHTS PROTECTED. THERE MAY BE NO FURTHER DISTRIBUTION OR PUBLICATION OF THIS COMMUNICATION OR ITS CONTENTS WITHOUT THE EXPRESS CONSENT OF STEVEN F. THOMPSON, P.A.. THANK YOU. _____ From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Fred Dudley Sent: Wednesday, August 10, 2016 8:29 AM To: Reese J. Henderson, Jr.; 'Gibbons, Michael'; 'Randall Gilbert'; clc-discussion@lists.flabarrpptl.org Subject: Re: [CLC-Discussion] Lien rights for non-conforming goods? I don’t see it as a matter of the manufacturer “eating the loss;” it still has a cause of action against the contractor for any failure to pay for what was ordered for delivery. Fred R. Dudley, Managing Member Board Certified Construction Lawyer Dudley, Sellers, Healy & Heath, P. L. SunTrust Financial Center, Suite 301 3522 Thomasville Road Tallahassee, Florida 32308 Cell: (850) 294-3471 Direct: (850)692-6368 dudley@mylicenselaw.com 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 2:43 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 <mailto:Reese.Henderson@gray-robinson.com> E-mail | <http://www.gray-robinson.com> Website | <http://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr> Bio | <http://www.gray-robinson.com/docs/Reese%20Henderson.vcf> vCard <https://www.facebook.com/GrayRobinsonLaw> Facebook | <https://www.linkedin.com/company/grayrobinson-p-a-> LinkedIn | <https://twitter.com/grayrobinsonlaw> Twitter 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 ( <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: 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.org Subject: RE: Lien rights for non-conforming goods? Mike, The statute you cited says “in accordance with his or her contract and with the direct contract”, not “in compliance with the requirements of . . . .” Otherwise, it would be very easy to defeat liens for specially fabricated materials if the owner could find one feature technically out of compliance. Under the stated hypothetical, the fabricator shipped what was ordered. Absent a case saying to the contrary, my understanding is “in accordance with” simply means the supplier’s contract is in the chain of contracts leading to the owner and, in the hypothetical, it clearly is in the chain of contracts. Reese J. Henderson, Jr. | Shareholder Florida Bar Board Certified in Construction Law Florida Supreme Court Certified Circuit Civil Mediator G R A Y | R O B I N S O N 50 North Laura Street, Suite 1100 | Jacksonville, Florida 32202 T: 904-598-9929 | F: 904-598-9109 | D: 904-632-8459 <mailto:Reese.Henderson@gray-robinson.com> E-mail | <http://www.gray-robinson.com> Website | <http://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr> Bio | <http://www.gray-robinson.com/docs/Reese%20Henderson.vcf> vCard <https://www.facebook.com/GrayRobinsonLaw> Facebook | <https://www.linkedin.com/company/grayrobinson-p-a-> LinkedIn | <https://twitter.com/grayrobinsonlaw> Twitter 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.org Subject: RE: Lien rights for non-conforming goods? Don’t think so, Reese. The issue is not whether the specially fabricated materials were incorporated or not. The issue is whether a supplier or sub (i.e, non-privity lienor) has lien rights when the materials (specially fabricated or otherwise) do NOT conform to the requirements of the direct contract between Owner and GC. In Randall’s facts, he made it clear that the materials (while complying with the terms of the subcontract) do not comply with the terms of the direct or owner contract. It would appear the underlying rationale for the statutory limitation on the lien rights is that the lienor should not be permitted to encumber the Owner’s real property with a Claim of Lien when the performance by the Lienor (here specially fabricated materials) does not conform to the Owner’s contractual requirements and hence doesn’t benefit Owner. Michael R. Gibbons ( <http://lowndes-law.com/our-people/michael-r-gibbons> Bio) Shareholder Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 N. Eola Drive Orlando, FL 32801 Phone: 407-418-6378 Fax: 407-843-4444 email: <mailto:michael.gibbons@lowndes-law.com> michael.gibbons@lowndes-law.com website: <http://www.lowndes-law.com/> http://www.lowndes-law.com 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.org Subject: RE: Lien rights for non-conforming goods? My friend Michael is incorrect. See § 713.01(13); see also Aquatic Plant Management, Inc. v. Paramount Engineering, Inc., 977 So.2d 600 (Fla. 4th DCA 2007). Assuming, of course, the windows really were specially fabricated for this project. Reese J. Henderson, Jr. | Shareholder Florida Bar Board Certified in Construction Law Florida Supreme Court Certified Circuit Civil Mediator G R A Y | R O B I N S O N 50 North Laura Street, Suite 1100 | Jacksonville, Florida 32202 T: 904-598-9929 | F: 904-598-9109 | D: 904-632-8459 <mailto:Reese.Henderson@gray-robinson.com> E-mail | <http://www.gray-robinson.com> Website | <http://www.gray-robinson.com/attorneys/detail/1022/ReeseJ-HendersonJr> Bio | <http://www.gray-robinson.com/docs/Reese%20Henderson.vcf> vCard <https://www.facebook.com/GrayRobinsonLaw> Facebook | <https://www.linkedin.com/company/grayrobinson-p-a-> LinkedIn | <https://twitter.com/grayrobinsonlaw> Twitter 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. 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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 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] 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]
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