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Travelers Casualty and Insurance Co. of America v. Community Asphalt Corp.

Florida Court of Appeals, Third District

June 7, 2017

Travelers Casualty and Insurance Company of America, Appellant,
v.
Community Asphalt Corporation, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Lower Tribunal No. 15-17911 Williams Thomas, Judge.

          Knott Ebelini Hart, and George H. Knott and Kristie A. Scott (Fort Myers), for appellant.

          Malka & Kravitz, P.A., and Ian T. Kravitz (Fort Lauderdale), for appellee.

          Before SUAREZ, C.J., and EMAS and LOGUE, JJ.

          LOGUE, J.

         A 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.

         FACTS AND PROCEDURAL HISTORY

         The 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).

         The 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 County, Florida."

         The 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.

         In 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.

         ANALYSIS

         We must 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. ...


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