Third District Court of Appeal
State of Florida
Opinion filed June 7, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-4
Lower Tribunal No. 15-17911
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Travelers Casualty and Insurance Company of America,
Appellant,
vs.
Community Asphalt Corporation,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, 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
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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
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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. E.-European Ins. Co., 921 So. 2d 587, 591 (Fla. 2006) (“This issue
involves a question of statutory interpretation and thus is subject to de novo
review.”).
The public bond statute provides that an action against a surety on a public
payment bond may be brought in any county authorized by Chapter 47. §
255.05(5) (“In addition to the provisions of chapter 47, any action authorized under
this section may be brought in the county in which the public building or public
work is being constructed or repaired.”). It further prohibits any provision in a
payment bond that restricts the venue of any proceeding relating to such bond. §
255.05(1)(e) (“Any provision in a payment bond issued on or after October 1,
2012, furnished for public work contracts as provided by this subsection . . . which
restricts the venue of any proceeding relating to such bond . . . is unenforceable.”).
In this case, the Subcontractor brought an action against the Surety based on
the public payment bond and the public bond statute. Thus, contrary to the Surety’s
argument, the Subcontractor’s cause of action against the Surety is based first and
foremost upon the surety bond. See Am. Ins. Co. v. Joyner Elec., Inc., 618 So. 2d
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799, 800 (Fla. 1st DCA 1993) (“[T]he ‘contract’ is the surety bond issued by [the
surety] which adopts the venue provisions of Chapter 47, Florida Statutes.”). To
the extent that Insurance Company of North America v. Jetstar Development, Inc.,
515 So. 2d 272 (Fla. 4th DCA 1987) holds that the subcontract is the operative
contract in these facts, we respectfully disagree with it.
Because the Subcontractor’s cause of action is based on the surety bond, the
venue selection clause in the subcontract will control the cause of action only if it
is read into the surety bond. Upon being read into the surety bond, however, the
venue selection clause becomes void pursuant to section 255.05(1)(e), which
expressly prohibits any provision in a surety bond that restricts venue. This
reasoning follows the language of the statute. To hold otherwise would make the
public bond statute’s prohibition on venue-restricting provisions in a bond a virtual
nullity because it could be evaded so easily.
In so ruling, we do not reach the issue of whether our holding would apply
to an action brought by a subcontractor against both the general contractor and the
general contractor’s surety. We note, without deciding, that such an issue may
involve different considerations. See Miller & Solomon Gen. Contractors, Inc. v.
Brennan’s Glass Co., 837 So. 2d 1182, 1184 (Fla. 4th DCA 2003) (“We recognize
that a plaintiff should not be permitted to thwart a venue provision in a contract by
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joining a contract claim with a separate cause of action. . . . Multiple suits would
split the action and open the door to conflicting results.”).
Affirmed.
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