Morning brain exercise.
Group,
Here is one for you. I've been doing this 27 years and have never seen this one.
Materialman supplies materials to Sub-subcontractor A on Project. Sends NTO,timely, etc.
Materialman also supplies materials to Subcontractor B on Project. A is not a sub to B. Materialman sends NTO timely, etc.
Materialman is unpaid by Sub-Subcontractor A and needs to record a lien. Problem is, 90 days has run.
Materialman is also owed money from Subcontractor B, and 90 days has not run.
A and B are working under the same direct contractor on the same project for the same owner.
Can Materialman record a lien and include the debt owed by Sub-Subcontractor A? after all, his last day of delivery is within 90 days, just not for that particular customer.
I read 713.09 closely, but it really addresses 2 improvements. Then I read the definition of Improvement and it includes buildings... "or any part thereof" which leads me to think that one building can be comprised of multiple improvements. I can therefore see the basis for answering the question as "Yes", do you see a basis for answering the question "No"?
Timothy R. Moorhead, Esq.
[cid:image002.jpg@01CEB84A.8BAD6390]
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
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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Tim,
I don't think so. Fla. Stat. 713.10 and the Claim of Lien statutory form contemplates that the lienor will list the person it has a contract with and the amount of the contract and net unpaid. In your scenario, you would need to list two contracting parties, two first dates of work, two last dates of work, two contract values and two net amounts unpaid by two different upstream subcontractors. I don't think that's feasible or proper under 713. Interesting question though.
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@01CEB84E.88C86F40]
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Timothy Moorhead
Sent: Monday, September 23, 2013 10:49 AM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Morning brain exercise.
Group,
Here is one for you. I've been doing this 27 years and have never seen this one.
Materialman supplies materials to Sub-subcontractor A on Project. Sends NTO,timely, etc.
Materialman also supplies materials to Subcontractor B on Project. A is not a sub to B. Materialman sends NTO timely, etc.
Materialman is unpaid by Sub-Subcontractor A and needs to record a lien. Problem is, 90 days has run.
Materialman is also owed money from Subcontractor B, and 90 days has not run.
A and B are working under the same direct contractor on the same project for the same owner.
Can Materialman record a lien and include the debt owed by Sub-Subcontractor A? after all, his last day of delivery is within 90 days, just not for that particular customer.
I read 713.09 closely, but it really addresses 2 improvements. Then I read the definition of Improvement and it includes buildings... "or any part thereof" which leads me to think that one building can be comprised of multiple improvements. I can therefore see the basis for answering the question as "Yes", do you see a basis for answering the question "No"?
Timothy R. Moorhead, Esq.
[cid:image004.jpg@01CEB84E.8753F7B0]
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
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.
IRS CIRCULAR 230 NOTICE: To ensure compliance with recently enacted U.S. Treasury Department regulations, we hereby advise you that, unless otherwise expressly stated, any and all tax advice contained in this communication has neither been written nor intended by the sender or this firm for the use of any taxpayer for the purpose of evading or avoiding tax penalties that may be imposed pursuant to U.S. law. Furthermore, unless otherwise expressly indicated, the use of any tax advice contained in this communication has neither been written nor intended by the sender or this firm for the purpose of promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, and such taxpayer should seek advice on the taxpayer's particular circumstances from an independent tax advisor.
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Good Point. The equity of it also seems to run to "No" as the correct answer too, but I am having a time trying to justify it since the law seems to address only situations where we have one prime contract.
Timothy R. Moorhead, Esq.
[cid:image004.jpg@01CEB84F.56E88810]
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
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.
IRS CIRCULAR 230 NOTICE: To ensure compliance with recently enacted U.S. Treasury Department regulations, we hereby advise you that, unless otherwise expressly stated, any and all tax advice contained in this communication has neither been written nor intended by the sender or this firm for the use of any taxpayer for the purpose of evading or avoiding tax penalties that may be imposed pursuant to U.S. law. Furthermore, unless otherwise expressly indicated, the use of any tax advice contained in this communication has neither been written nor intended by the sender or this firm for the purpose of promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, and such taxpayer should seek advice on the taxpayer's particular circumstances from an independent tax advisor.
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.
From: Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com]
Sent: Monday, September 23, 2013 11:18 AM
To: Timothy Moorhead; clc-discussion@lists.flabarrpptl.org
Subject: RE: Morning brain exercise.
Tim,
I don't think so. Fla. Stat. 713.10 and the Claim of Lien statutory form contemplates that the lienor will list the person it has a contract with and the amount of the contract and net unpaid. In your scenario, you would need to list two contracting parties, two first dates of work, two last dates of work, two contract values and two net amounts unpaid by two different upstream subcontractors. I don't think that's feasible or proper under 713. Interesting question though.
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@01CEB84F.56E88810]
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Timothy Moorhead
Sent: Monday, September 23, 2013 10:49 AM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Morning brain exercise.
Group,
Here is one for you. I've been doing this 27 years and have never seen this one.
Materialman supplies materials to Sub-subcontractor A on Project. Sends NTO,timely, etc.
Materialman also supplies materials to Subcontractor B on Project. A is not a sub to B. Materialman sends NTO timely, etc.
Materialman is unpaid by Sub-Subcontractor A and needs to record a lien. Problem is, 90 days has run.
Materialman is also owed money from Subcontractor B, and 90 days has not run.
A and B are working under the same direct contractor on the same project for the same owner.
Can Materialman record a lien and include the debt owed by Sub-Subcontractor A? after all, his last day of delivery is within 90 days, just not for that particular customer.
I read 713.09 closely, but it really addresses 2 improvements. Then I read the definition of Improvement and it includes buildings... "or any part thereof" which leads me to think that one building can be comprised of multiple improvements. I can therefore see the basis for answering the question as "Yes", do you see a basis for answering the question "No"?
Timothy R. Moorhead, Esq.
[cid:image006.jpg@01CEB84F.56E88810]
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
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.
IRS CIRCULAR 230 NOTICE: To ensure compliance with recently enacted U.S. Treasury Department regulations, we hereby advise you that, unless otherwise expressly stated, any and all tax advice contained in this communication has neither been written nor intended by the sender or this firm for the use of any taxpayer for the purpose of evading or avoiding tax penalties that may be imposed pursuant to U.S. law. Furthermore, unless otherwise expressly indicated, the use of any tax advice contained in this communication has neither been written nor intended by the sender or this firm for the purpose of promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, and such taxpayer should seek advice on the taxpayer's particular circumstances from an independent tax advisor.
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Thank you all for your input. Matter closed.
Timothy R. Moorhead, Esq.
[cid:image001.jpg@01CEB854.573DE1C0]
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
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.
IRS CIRCULAR 230 NOTICE: To ensure compliance with recently enacted U.S. Treasury Department regulations, we hereby advise you that, unless otherwise expressly stated, any and all tax advice contained in this communication has neither been written nor intended by the sender or this firm for the use of any taxpayer for the purpose of evading or avoiding tax penalties that may be imposed pursuant to U.S. law. Furthermore, unless otherwise expressly indicated, the use of any tax advice contained in this communication has neither been written nor intended by the sender or this firm for the purpose of promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, and such taxpayer should seek advice on the taxpayer's particular circumstances from an independent tax advisor.
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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Timothy Moorhead
Sent: Monday, September 23, 2013 10:49 AM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Morning brain exercise.
Group,
Here is one for you. I've been doing this 27 years and have never seen this one.
Materialman supplies materials to Sub-subcontractor A on Project. Sends NTO,timely, etc.
Materialman also supplies materials to Subcontractor B on Project. A is not a sub to B. Materialman sends NTO timely, etc.
Materialman is unpaid by Sub-Subcontractor A and needs to record a lien. Problem is, 90 days has run.
Materialman is also owed money from Subcontractor B, and 90 days has not run.
A and B are working under the same direct contractor on the same project for the same owner.
Can Materialman record a lien and include the debt owed by Sub-Subcontractor A? after all, his last day of delivery is within 90 days, just not for that particular customer.
I read 713.09 closely, but it really addresses 2 improvements. Then I read the definition of Improvement and it includes buildings... "or any part thereof" which leads me to think that one building can be comprised of multiple improvements. I can therefore see the basis for answering the question as "Yes", do you see a basis for answering the question "No"?
Timothy R. Moorhead, Esq.
[cid:image002.jpg@01CEB854.573DE1C0]
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
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.
IRS CIRCULAR 230 NOTICE: To ensure compliance with recently enacted U.S. Treasury Department regulations, we hereby advise you that, unless otherwise expressly stated, any and all tax advice contained in this communication has neither been written nor intended by the sender or this firm for the use of any taxpayer for the purpose of evading or avoiding tax penalties that may be imposed pursuant to U.S. law. Furthermore, unless otherwise expressly indicated, the use of any tax advice contained in this communication has neither been written nor intended by the sender or this firm for the purpose of promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, and such taxpayer should seek advice on the taxpayer's particular circumstances from an independent tax advisor.
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I have actually ran into this same thing, but same sub, different POs for the materials. Court said they are different contracts subject to different timing. So were barred as to the first batch of materials but not as to the second.
Laurie B. Sams
Van Winkle & Sams, P.A.
3859 Bee Ridge Road, Suite 202
Sarasota, FL 34233
(941) 923-1685
fax (941) 923-0174
lauriesams@comcast.net
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On Sep 23, 2013, at 10:49 AM, Timothy Moorhead wrote:
Group,
Here is one for you. I’ve been doing this 27 years and have never seen this one.
Materialman supplies materials to Sub-subcontractor A on Project. Sends NTO,timely, etc.
Materialman also supplies materials to Subcontractor B on Project. A is not a sub to B. Materialman sends NTO timely, etc.
Materialman is unpaid by Sub-Subcontractor A and needs to record a lien. Problem is, 90 days has run.
Materialman is also owed money from Subcontractor B, and 90 days has not run.
A and B are working under the same direct contractor on the same project for the same owner.
Can Materialman record a lien and include the debt owed by Sub-Subcontractor A? after all, his last day of delivery is within 90 days, just not for that particular customer.
I read 713.09 closely, but it really addresses 2 improvements. Then I read the definition of Improvement and it includes buildings… “or any part thereof” which leads me to think that one building can be comprised of multiple improvements. I can therefore see the basis for answering the question as “Yes”, do you see a basis for answering the question “No”?
Timothy R. Moorhead, Esq.
<image002.jpg>
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
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.
IRS CIRCULAR 230 NOTICE: To ensure compliance with recently enacted U.S. Treasury Department regulations, we hereby advise you that, unless otherwise expressly stated, any and all tax advice contained in this communication has neither been written nor intended by the sender or this firm for the use of any taxpayer for the purpose of evading or avoiding tax penalties that may be imposed pursuant to U.S. law. Furthermore, unless otherwise expressly indicated, the use of any tax advice contained in this communication has neither been written nor intended by the sender or this firm for the purpose of promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, and such taxpayer should seek advice on the taxpayer’s particular circumstances from an independent tax advisor.
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Laurie B. Sams
Van Winkle & Sams, P.A.
3859 Bee Ridge Road, Suite 202
Sarasota, FL 34233
(941) 923-1685
fax (941) 923-0174
lauriesams@comcast.net
CONFIDENTIALITY NOTE: This transmittal may be a confidential attorney-client communication or may otherwise
be privileged or confidential. If it is not clear that you are the intended recipient, you are hereby notified that you have
received this transmittal in error. In that case, any review, dissemination, distribution or copying of this transmittal is
strictly prohibited. If you suspect that you have received this communication in error, please notify us immediately by
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Tim, I would also recommend checking out Stock Building Supply v. Soares de Costa, 76 So. 3d 313 (3d DCA 2012). It deals with a similar fact pattern but the supplier has 2 contracts with sub and GC, not sub and sub, and court says they are 2 different contracts requiring 2 separate NTOs.
Thanks, April
[Description: H:\HTML Signature Block\Kirwin Norris Logo.gif]http://www.kirwinnorris.com/
April A. Atkins
Partner | Florida Board Certified in Construction Law
Kirwin Norris, P.A.
15 West Church Street
Suite 301
Orlando, Florida 32801
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Facsimile: 407-740-6363
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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Timothy Moorhead
Sent: Monday, September 23, 2013 11:24 AM
To: Gibbons, Michael; clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Morning brain exercise.
Good Point. The equity of it also seems to run to "No" as the correct answer too, but I am having a time trying to justify it since the law seems to address only situations where we have one prime contract.
Timothy R. Moorhead, Esq.
[cid:image003.jpg@01CEB85F.7D820540]
Wright, Fulford, Moorhead & Brown, P.A.
505 Maitland Avenue
Suite 1000
Altamonte Springs, FL 32701
(407) 425-0234
(407) 425-0260 (fax)
Board Certified in Construction Law
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From: Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com]
Sent: Monday, September 23, 2013 11:18 AM
To: Timothy Moorhead; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: RE: Morning brain exercise.
Tim,
I don't think so. Fla. Stat. 713.10 and the Claim of Lien statutory form contemplates that the lienor will list the person it has a contract with and the amount of the contract and net unpaid. In your scenario, you would need to list two contracting parties, two first dates of work, two last dates of work, two contract values and two net amounts unpaid by two different upstream subcontractors. I don't think that's feasible or proper under 713. Interesting question though.
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/
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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 Timothy Moorhead
Sent: Monday, September 23, 2013 10:49 AM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Morning brain exercise.
Group,
Here is one for you. I've been doing this 27 years and have never seen this one.
Materialman supplies materials to Sub-subcontractor A on Project. Sends NTO,timely, etc.
Materialman also supplies materials to Subcontractor B on Project. A is not a sub to B. Materialman sends NTO timely, etc.
Materialman is unpaid by Sub-Subcontractor A and needs to record a lien. Problem is, 90 days has run.
Materialman is also owed money from Subcontractor B, and 90 days has not run.
A and B are working under the same direct contractor on the same project for the same owner.
Can Materialman record a lien and include the debt owed by Sub-Subcontractor A? after all, his last day of delivery is within 90 days, just not for that particular customer.
I read 713.09 closely, but it really addresses 2 improvements. Then I read the definition of Improvement and it includes buildings... "or any part thereof" which leads me to think that one building can be comprised of multiple improvements. I can therefore see the basis for answering the question as "Yes", do you see a basis for answering the question "No"?
Timothy R. Moorhead, Esq.
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Wright, Fulford, Moorhead & Brown, P.A.
505 Maitland Avenue
Suite 1000
Altamonte Springs, FL 32701
(407) 425-0234
(407) 425-0260 (fax)
Board Certified in Construction Law
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