FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Lee County; Jay B. Rosman, Judge.
H. Pelzer of Greenspoon Marder, P.A., Fort Lauderdale; Victor
Kline of Greenspoon Marder, Orlando; Robert E. Ferencik, Jr.
and Laura A. Baker of Ferencik Libanoff Brandt Bustamante and
Goldstein, P.A., Fort Lauderdale; and Bruce L. Mass. of
Harris Beach PLLC, Pittsford, New York, for Appellant.
E. Koester and Alex R. Figares of Coleman, Yovanovich &
Koester, P.A., Naples, for Appellee Coco of Cape Coral, LLC.
"Seth" Mills, Jr. and S. Jordan Miller of Mills
Paskert Divers P.A., Tampa, for Amicus Curiae The Surety and
Fidelity Association of America.
Sines Crockett of Cheffy Passidomo, P.A., Tampa; and Lisha
Bowen of Lisha Bowen, P.A., Tampa, for Amicus Curiae United
appearance for remaining Appellee.
Insurance Company appeals a final judgment entered in favor
of Coco of Cape Coral, LLC (Coco), in Coco's action for
breach of $7.7 million surety bond contracts in connection
with the development of a subdivision in Cape Coral, Florida,
by Priority Developers, Inc. (Priority). On appeal, Lexon
argues, among other things, that Coco's claims are barred
by the five-year statute of limitations, which Lexon argues
began to run in 2007 when Priority abandoned the project and
thus breached the surety bonds. We agree, and because this issue
is dispositive of the action, we decline to further comment
on the other issues raised in this appeal. Accordingly, we
reverse the decision of the trial court.
January 31, 2005, the City of Cape Coral adopted Ordinance
14-05, a development order that governs the commercial and
residential development of 446.09 acres. The project at issue
in this appeal consists of the development of a single-family
subdivision called the Village at Entrada. Priority hired
contractors who began work on the subdivision improvements in
2005. The site plan permit authorizing the development of the
subdivision was scheduled to expire on September 8, 2007.
14-05 required Priority, as the developer, to "provide a
surety bond or certified check in an amount of the estimated
cost to complete all required site improvements, as
determined by the City." In June 2006, Lexon issued two
subdivision bonds totaling $7.7 million. This amount
represented the cost to complete the remaining work on the
subdivision at the time the bonds were issued. The bonds
provided as follows:
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH,
that if the said Principal [Priority] shall construct, or
have constructed, the improvements herein described, and
shall save the Obligee [the City] harmless from any loss,
cost or damage by reason of its failure to complete said
work, then this obligation shall be null and void, otherwise
to remain in full force and effect, and the Surety, upon
receipt of a resolution of the Obligee indicating that the
improvements have not been installed or completed, will
complete the improvements or pay to the Obligee such amount
up to the Principal amount of this bond which will allow the
Obligee to complete the improvements.
City stopped completing inspections on the project in late
2006 and the contractor stopped work on the project in March
2007, both due to nonpayment by Priority. Photographs taken
by the City's inspector on June 13, 2007, confirmed that
the contractor was no longer working on the project, and the
City's computer system indicated "that the site plan
was closed" on that date. ...