Seawatch at Marathon Condominium Association, Inc., Appellant/Cross-Appellee,
The Guarantee Company of North America, USA, et al., Appellees/Cross-Appellants.
final until disposition of timely filed motion for rehearing.
Appeals from the Circuit Court for Monroe County Lower
Tribunal No. 17-233-M, Mark H. Jones, Judge.
Morris LLP, and Joseph A. Battipaglia, and Michael J. Shuman,
Etcheverry Harrison, LLP, and Edward Etcheverry, and Jeffrey
S. Geller (Fort Lauderdale); Fergeson Skipper, P.A., and
David S. Maglich, and Douglas R. Bald (Sarasota), for
SALTER, MILLER, and GORDO, JJ.
Seawatch at Marathon Condominium Association, Inc.
("Seawatch" or "Owner"), appeals, and
Guarantee Company of North America, USA
("Guarantee" or "Surety") and Complete
Aluminum General Contractors, Inc. ("CAGC" or
"Principal"), cross-appeal, a final declaratory
judgment. Following the default of the Principal on a
multi-million dollar construction contract, the Surety
rendered an election under the terms of the applicable
standard performance bonds. The Owner filed suit, seeking a
declaration regarding its rights and responsibilities. In the
final judgment, the lower tribunal determined that, under the
terms of the bonds, the takeover Surety was permitted to
utilize the defaulting Principal as its completion
contractor. The court further found the Surety was not
required to maintain a Florida contracting license, and its
election was conditional as it added unstipulated terms.
Thus, notwithstanding its reluctant embroilment in
litigation, the Surety remained obligated under the bonds.
For the reasons explicated below, we discern no error and
AND PROCEDURAL HISTORY
relevant facts are undisputed. On October 23, 2014, Seawatch
entered into a $5.4 million construction contract, engaging
CAGC to serve as the contractor for the renovation of three
condominium buildings located in Marathon, Florida. Guarantee
executed three standard American Institute of Architects A312
surety bonds to secure CAGC's performance under the
construction contract, for the benefit of Seawatch.
2017, after discovering certain defects in the renovations,
Seawatch declared CAGC in default and effected a termination
of the contract. Thereafter, Seawatch requested Guarantee to
"promptly make an election under Paragraph 4" of
the performance bonds.
the satisfaction of specified conditions precedent, under
Paragraph 4, the Surety was required to promptly, at its own
expense, exercise one of the following series of options:
4.1 Arrange for the CONTRACTOR, with consent of the OWNER, to
perform and complete the Contract; or
4.2 Undertake to perform and complete the Contract itself,
through its agents or through independent contractors; or
4.3 Obtain bids or negotiated proposals from qualified
contractors acceptable to the OWNER for a contract for
performance and completion of the Contract, arrange for a
contract to be prepared for execution by the OWNER and the
contractor selected with the OWNER'S concurrence, to be
secured with performance and payment bonds executed by a
qualified surety equivalent to the Bonds Issued on the
Contract, and pay to the OWNER the amount of damages as
described in ...