Travelers Casualty and Insurance Company of America, Appellant,
Community Asphalt Corporation, Appellee.
final until disposition of timely filed motion for rehearing.
Appeal from a non-final order from the Circuit Court for
Miami-Dade County, Lower Tribunal No. 15-17911 Williams
Ebelini Hart, and George H. Knott and Kristie A. Scott (Fort
Myers), for appellant.
& Kravitz, P.A., and Ian T. Kravitz (Fort Lauderdale),
SUAREZ, C.J., and EMAS and LOGUE, JJ.
Subcontractor sued a Surety for amounts unpaid by the General
Contractor. The Surety moved to dismiss for improper venue.
The motion to dismiss maintained that the lawsuit was not
filed in the county required by the venue selection clause of
the subcontract between the General Contractor and the
Subcontractor. The trial court denied the motion. We have
jurisdiction to review this non-final order. See
Fla. R. App. P. 9.130(a)(3)(A). We affirm the order on all
issues raised, and write only to explain why the
subcontract's venue selection clause does not control.
AND PROCEDURAL HISTORY
General Contractor entered into a contract with the Collier
County Board of County Commissioners to perform a
construction project on an airport runway in the County.
Among other things, the contract required the General
Contractor to provide a public payment bond and public
performance bond underwritten by a surety. In compliance with
this mandate, the General Contractor retained the Surety. In
conformance with the public bond statute, the bond
underwritten by the Surety refrained from restricting the
venue of lawsuits based upon it. See §
255.05(1)(e), Fla. Stat. (2015).
General Contractor then entered into a subcontract with the
Subcontractor to furnish asphalt paving for the project. The
subcontract included a provision restricting venue to Lee
County: "The parties hereby agree that the venue for any
legal action brought against the contractor or the
contractor's surety in connection with this Subcontract
shall be in a state court of competent jurisdiction in Lee
Subcontractor later brought suit against the Surety in
Miami-Dade County, seeking to enforce a claim against the
public payment bond under the public bond statute for amounts
unpaid by the General Contractor. The complaint also noted
that the General Contractor breached the subcontract. But the
Subcontractor did not name the General Contractor as a party
to the lawsuit.
response, the Surety moved to dismiss for improper venue. It
argued that pursuant to the subcontract's venue selection
clause, the proper venue was Lee County. The Subcontractor
disagreed. It argued that the public bond statute rendered
the subcontract's venue selection clause unenforceable.
The Subcontractor further explained why Chapter 47, Florida
Statutes, authorized venue in Miami-Dade County in this case.
The trial court ultimately agreed with the Subcontractor and
denied the Surety's motion to dismiss for improper venue.
The Surety appealed.
decide the proper venue for an action brought by a
subcontractor against a surety on a public payment bond,
where the public bond statute provides that such an action
may be brought in any county authorized by Chapter 47, where
the statute further prohibits any provision in a payment bond
that restricts venue, where the subcontract restricts venue,
and where the principal on the bond (the general contractor)
is not named in the subcontractor's action. Because this
issue requires us to interpret the public bond statute, our
standard of review is de novo. See Borden v. ...