Carlson-Southeast Corp. v. Geolithic, Inc., CARLSON-SOUTHEAST

• Decision Date: 09 September 1988
• Docket Number: CARLSON-SOUTHEAST,No. 88-145,88-145
• Citation: 13 Fla. L. Weekly 2107,530 So.2d 1069
• Parties: 13 Fla. L. Weekly 2107 CORPORATION and Seaboard Surety Company, Appellants, v. GEOLITHIC, INC., Appellee.
• Court: Florida District Court of Appeals

Page 1069

530 So.2d 1069

13 Fla. L. Weekly 2107

CARLSON-SOUTHEAST CORPORATION and Seaboard Surety Company, Appellants, v. GEOLITHIC, INC., Appellee.

No. 88-145.

District Court of Appeal of Florida First District.

Sept. 9, 1988.

Robert C. Gilbert of Shea & Gould, Miami, for appellants.

Alexandra Krueger Hedrick and Joanne L. Martin of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellee.

JOANOS, Judge.

Carlson-Southeast Corporation and Seaboard Surety Company appeal an interlocutory order denying their motion to transfer for improper venue. The issues raised in this appeal are: (1) whether, pursuant to sections 713.23 and 713.24, Florida Statutes, venue for a suit claiming an interest in a payment bond is proper only in the county where the bond is recorded; and (2) whether the course of conduct between the parties in this case overcame the general presumption of section 47.051, Florida Statutes, that payment is to be made where the creditor resides. We affirm.

On June 20, 1986, Carlson-Southeast Corporation (Carlson), the general contractor for construction of a large regional distribution and milk processing facility for Publix Supermarkets, entered into a subcontract with Geolithic, Inc. (Geolithic), whereby Geolithic would provide and install the concrete panels which comprise the exterior walls of the building. The construction project is located in Broward County, Florida. Carlson posted a $33.7 million payment bond issued by Seaboard Surety Company (the surety) pursuant to section 713.23, Florida Statutes, ¹ to insulate the Publix property from the filing of mechanics' liens.

In July 1987, Geolithic filed an action in Duval County against Carlson and the surety seeking damages in excess of $200,000 for breach of the subcontract between Carlson and Geolithic. Geolithic also made a claim against the payment bond issued by the surety. When suit was filed, the payment bond had not been recorded in any county. Some four and a half months later, on November 19, 1987, Carlson recorded the bond in Broward County.

Geolithic's principal place of business and only permanent office is in Duval County. The subcontract did not contain a provision prescribing the place where payment was to be made, but it did provide that final payment was due to Geolithic thirty days after completion of the work. Geolithic sent its employees to the Broward County job site, and when the work was completed, the Geolithic employees returned to Duval County.

As provided by the contract, Geolithic received monthly draws against the total contract price. The first payment was sent to Geolithic in Duval County, and the second, third, and fourth draw checks were delivered to Geolithic at the job site. Carlson instituted a joint check writing procedure for the fifth and sixth draws, in which checks were made payable to Geolithic jointly with Geolithic's subcontractors and materialmen, and most were delivered to the Broward County job site. One joint check in the amount of $17,608.77, payable to Geolithic and its subcontractor Southeast Erectors, was sent to Duval County. The final payment was due to Geolithic only. In addition to this final payment Geolithic sought payment relating to additional work, and damages under the subcontract.

Carlson and the surety filed answers and affirmative defenses to the complaint, alleging, among other things, that venue was improper in Duval County. Carlson and the surety also alleged that Duval County was an inconvenient forum, but did not pursue this issue. Subsequently, Carlson and Southeast filed a motion to transfer for improper venue, pursuant to Florida Rule of Civil Procedure 1.060(b).

In response to Geolithic's interrogatories, Carlson and the surety stated that venue would be proper in Broward, Hillsborough, Leon, or Orange Counties, but not in Duval, because (1) Carlson is a Massachusetts corporation with offices in Hillsborough and Leon Counties, and Seaboard is a New York corporation with an office in Orange County; (2) the cause of action accrued in Broward County where the facility was constructed, and where Geolithic performed under its subcontract with Carlson; and (3) since the subcontract was silent as to place of payment by Carlson to Geolithic and the majority of payments were delivered to Geolithic in Broward County, the parties' course of conduct created an exception to the general rule that payment was to be made where the creditor is located. In supplemental answer to Geolithic's interrogatory, Carlson and the surety alleged that venue is proper only in Broward County, pursuant to sections 713.23 and 713.24, Florida Statutes, since Geolithic claimed an interest in the payment bond issued by Seaboard and deposited in Broward County.

On December 16, 1987, the trial court entered an order denying Carlson's motion to transfer venue, finding the gravamen of the complaint was Carlson's alleged failure to make final payment under the subcontract. Since no place of payment was specified in the subcontract, the trial court found the final payment was due at the creditor Geolithic's principal place of business, which is Duval County. Carlson and the surety filed a motion for rehearing, which was denied January 12, 1988.

The venue issue raised in point one of this appeal requires consideration of the relationship of the bond provisions of sections 713.23 and 713.24, Florida Statutes (1985). A section 713.23 payment bond is a general contractor's bond designed to ensure payment of subcontractors and materialmen, and to exempt the property from mechanics' liens. Pursuant to section 713.23(1)(g)--

Any lienor shall have a direct right of action on the bond against the surety. No bond shall contain any provisions restricting the classes of persons protected thereby or the venue of any proceeding....

Section 713.23(2) provides, in part, that:

The bond shall secure every lien under the direct contract accruing subsequent to its execution and delivery, except that of the contractor. Every claim of lien, except that of the contractor, filed subsequent to execution and delivery of the bond shall be transferred to it with the same effect as liens transferred under s. 713.24....

Pursuant to the provisions of 713.24--

(1) Any lien claimed under part 1 may be transferred by any person having an interest in the real property upon which the lien is imposed or the contract under which the lien is claimed, from such real property to other security by either:

(a) Depositing in the clerk's office a sum of money, or

(b) Filing in the clerk's office a bond executed as surety insurer licensed to do business in this state, ...

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(3) Any party having an interest in such security or the property from which the lien was transferred may at any time, and any number of times, file a complaint in chancery in the circuit court of the county where such security is deposited for an order to require additional security, reduction of security, change or substitution of sureties, payment or discharge thereof or any other matter affecting said security. (Emphasis supplied.)

It is well settled that parties to a contract may agree as to venue and that such agreements will be enforced, Insurance Company of North America v. Jetstar Development, Inc., 515 So.2d 272, 273 (Fla. 4th DCA 1987), unless the action concerns an in rem proceeding, Publix Super Markets, Inc. v. Cheesbro Roofing, Inc., 502 So.2d 484 (Fla. 5th DCA 1987), or when it appears that multiple suits will be filed and enforcement of a venue provision could generate conflicting results in different courts. Halls Ceramic Tile, Inc. v. Tiede-Zoeller Tile Corp., 522 So.2d 111 (Fla. 5th DCA 1988); Girdley Construction Co. v. Architectural Exteriors, Inc., 517 So.2d 137 (Fla. 5th DCA 1987). Absent an express agreement regarding venue, it appears that the general venue provisions of Chapter 47 are controlling with respect to sections 713.23 and 713.24. See Coordinated Constructors v. Florida Fill, Inc., 387 So.2d 1006, 1007 (Fla. 3d DCA 1980); 3 S. Rakusin, Florida Mechanics' Lien Manual 67 (1974, Supp.1984).

Section 47.051, Florida Statutes (1985), which sets forth the venue provisions for actions against corporations, states:

Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located. Actions against foreign corporations doing business in this state shall be brought in a county where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located. (Emphasis supplied.)

When the cause of action is a breach of contract, the cause of action accrues where the act constituting the breach occurs. Perry Building Systems, Inc. v. Hayes & Bates, Inc., 361 So.2d 443, 444 (Fla. 1st DCA 1978); Coordinated Constructors v. Florida Fill, Inc., supra. Where the performance required under the contract is the payment of money and no place for payment is specified in the contract, payment is due where the creditor resides "because, in such instance, the debtor must seek the creditor." Coordinated Constructors, 387 So.2d at 1007, citing Croker v. Powell, 115 Fla. 733, 156 So. 146 (1934). Accord Perry Building Systems, 361 So.2d at 444-445.

In Coordinated Constructors, the general contractor, Coordinated, was a Florida corporation with its principal place of business in Broward County. Coordinated's surety was a foreign corporation. Florida Fill, a sub-subcontractor, was a Florida corporation with its principal place of business in Dade County. Florida Fill, the sub, filed suit in Dade County against Coordinated and its surety, for non-payment under its subcontract. Coordinated filed a motion to dismiss for...