BILTMORE CONSTRUCTION COMPANY, INC., APPELLANT,
v.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., APPELLEE

Fla. 2d DCA | 1990-11-21
No. 90-00339
LEHAN, A.C.J., and FRANK, J., concur.
572 So. 2d 532 Florida District Court of Appeal, Second District (1990) Positive Treatment
Cited by 5 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Biltmore Construction sued Demarest Company and its surety National Union on a performance bond for breach of a subcontract. The trial court granted summary judgment for National Union, finding Biltmore had sued the wrong Demarest entity and failed to plead the principal's default. The appellate court reversed, holding that Biltmore adequately pleaded the condition precedent and that the surety could still be liable despite the principal's potential lack of personal jurisdiction.


Holding

The court reversed the summary judgment, holding that Biltmore adequately pleaded the condition precedent by alleging Demarest's material breach of the subcontract and attaching the relevant documents, and that the surety remains liable even though the principal cannot be sued due to lack of personal jurisdiction, as this is a defense personal to the principal.


Headnotes

[1] A surety may be held liable on a performance bond even if the principal is not liable due to a defense personal to the principal, such as lack of personal jurisdiction.

[2] A plaintiff's failure to serve the correct corporate entity, which had been dissolved prior to service, is a fatal defect in the action against that entity.

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Key Quotes

“Demarest may not be liable for breach of the subcontract for lack of personal jurisdiction; however, this defense is not available to National Union. Consequently, National Union may be held liable on the performance bond.”

Establishes the key legal principle that a surety can be liable even when the principal has a personal defense preventing its own liability

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Facts & Procedural History

In 1982, Biltmore entered into a subcontract with Demarest I, and National Union issued a performance bond. Demarest I later changed its name to D.T.D…

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Opinion of the Court
PARKER, Judge.

PARKER, Judge.

Biltmore Construction Company, Inc. (Biltmore) appeals a final summary judgment entered against it and in favor of National Union Fire Insurance Company of Pittsburgh, Pa. (National Union). We reverse.

The following dates are important in understanding the facts in this case. 05/08/64 — Demarest Co., Inc. (Demarest I) was chartered within this state;

04/15/82 — Biltmore entered into a subcontract with Demarest I;

06/10/82 — Performance bond executed by Demarest I, through National Union, in favor of Biltmore;

12/21/82 — Demarest Co., Inc. (Demarest II) chartered within this state;

01/10/83 — Demarest I changed its corporate name to D.T.D., Inc.;

11/10/83 — D.T.D., Inc. was involuntarily dissolved by the state.

In 1984, Biltmore filed a complaint against Demarest Co., Inc. for failure to perform the subcontract and against National Union on the performance bond. Service of process, however, was completed upon the registered agent for Demarest II. Demarest Co., Inc. and National Union answered the complaint, admitting the existence and execution of the bond. Three years after the filing of the complaint National Union amended its answer to include the affirmative defense that Biltmore had sued Demarest II, which was not the principal under the subcontract and bond. National Union filed a motion for summary judgment on the grounds that Biltmore had sued Demarest II for breach of contract even though Demarest II did not exist at the time the subcontract and bond were executed and also based on Biltmore’s failure to plead Demarest I’s nonperformance of the contract, a condition precedent to National Union’s liability as surety. The trial judge granted the motion for summary judgment and entered a final summary judgment in favor of National Union. It is this judgment which is now before this court on appeal.

First, Biltmore argues that the entry of summary judgment was improper because a genuine issue of material fact existed regarding whether the Demarest Company named in the suit was the same entity which entered into the contract at issue in this case. Biltmore relies upon the affidavit of one of its officers which essentially states that the only Demarest Company Inc. with which Biltmore did business pursuant to the subcontract and bond was the same Demarest Company, Inc. sued in this action and that J. Wade Tucker and Margery Lewis were the individuals with whom Biltmore dealt throughout the course of events relevant to this cause of action. This affidavit was for the purpose of contravening certifications from the Department of State which were already in the record. These certifications showed the following: Demarest Company, Inc. (De-marest I) (charter # 281212) was chartered in Florida on May 8, 1964; that corporation changed its name to D.T.D., Inc. on January 10, 1983; that corporation was involuntarily dissolved on November 10, 1983; De-marest Company, Inc. (Demarest II) (charter # G14437) was chartered in Florida on December 21, 1982; J. Wade Tucker was president of that corporation; and Margery H. Lewis was vice president and secretary of that corporation. It is evident from these certifications that Demarest I had to be the party to the subcontract entered into on April 15, 1982, and the obligee under the performance bond executed on June 10, 1982, because it was the only corporation in existence during these times. It is also evident that the service of process effected on the registered agent on August 14, 1984, could not have been on Demarest I because it had been involuntarily dissolved by that time. The affidavit submitted by Biltmore does not contest any of the Department of State’s certifications. Accordingly, there is no issue of fact to be resolved regarding whether the correct corporation was served. Clearly, Biltmore failed to serve Demarest I which was the party under the contract and bond sued upon in this action.

Our determination of this case does not end here. We must address whether Bilt-more’s allegations in the complaint were directed against the correct corporation. National Union argues that Biltmore failed to plead that the principal of the bond defaulted which was a condition precedent to its liability. National Union states in its brief that Biltmore’s “complaint alleged that Demarest II breached the subcontract. [Biltmore] never alleged default by the principal of the bond, Demarest I, which was a condition precedent to liability on the part of the surety. We cannot agree with National Union’s representations about the allegations in the complaint. Biltmore alleged the following in its complaint:

8. Demarest has performed a portion of its work but the work is defective and unworkmanlike. These defects include but are not limited to the following:
A. Supplying defective metal siding and accessories which did not meet the requirements of the subcontract agreement.

B. Performing its work under the subcontract in an unworkmanlike manner and in a manner which did not result in the end product meeting the requirements of the subcontract.

C. Failing to perform its work within the time requirements set forth in the subcontract.

D. Refusing to correct work damaged by its employees, agents and assigns on the job site.

9. The foregoing constitutes a material, substantial and continuing breach of Demarest’s subcontract.

Further, Biltmore specifically identified the subcontract and bond sued upon in this action and, in fact, attached those documents to the complaint. The subcontract and performance bond clearly identify De-marest I as the party and principal, respectively, to these documents. The record irrefutably demonstrates that Biltmore adequately pleaded the condition precedent to bringing the action.

Both parties agree that Demar-est, the principal, is not a necessary or indispensable party to this action by Bilt-more, the obligee, against the surety, National Union. See Ruth v. United States Fidelity & Guaranty Co., 83 So. 2d 769 (Fla.1955) (the principal is not a necessary or indispensable party to an obligee’s suit against a surety when the bond provides for joint and several liability). The parties, however, failed to address the general rule that a surety is not liable if the principal is not liable. OBS Co. v. Pace Constr. Corp., 558 So. 2d 404 (Fla.1990). An exception to this rule is that a surety may be liable when the principal is not liable because of a defense personal to the principal. Bear v. Duval Lumber Co., 112 Fla. 240, 150 So. 614 (1933). That is the situation that we have here. Demarest may not be liable for breach of the subcontract for lack of personal jurisdiction; however, this defense is not available to National Union. Consequently, National Union may be held liable on the performance bond. We find the trial court’s order granting summary judgment was error. Reversed and remanded.

LEHAN, A.C.J., and FRANK, J., concur.


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Citator

Cited By

  • OLD Republic Sur. Co. v. Reischmann, 713 So. 2d 434 (Fla. 2d DCA 1998)
    …der and more expensive to obtain. Affirmed. BLUE and QUINCE, JJ., concur. . Laramore v. Laramore, 64 So. 2d 662 (Fla.1953); Sessions v. Willard, 126 Fla. 848, 172 So. 242 (1937); Biltmore Constr. Co. v. National Union Fire Ins. Co. of Pittsburgh, 572 So. 2d 532 (Fla. 2d DCA 1990). . Section 627.428(1), Florida Statutes (1995) provides: (1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary…
  • …eminole County) action would move to have an indispensable party included. All seem to agree, however, that Weiss & Woolrich is not an indispensable party to that suit. See, e.g., Biltmore Constr. Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 572 So. 2d 532, 534 (Fla. 2d DCA 1990). [*649] Accordingly, we reverse the trial court’s order. We note that the trial court never decided the waiver issue. Thus, on remand, the trial court should reconsider Weiss & Woolrich’s complaint for arbitration and hold an…
  • …Larkin Gen. Hosp., Ltd., 593 So. 2d 195, 198 (Fla. 1992) (alteration added; citations omitted). Generally speaking, “a surety is not liable if the principal is not liable.” Biltmore Constr. Co., Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 572 So. 2d 532, 534 (Fla. 2d DCA 1990) (citation omitted), abrogation on other grounds recognized by Old Republic Sur. Co. v. Reischmann, 713 So. 2d 434 (Fla. 2d DCA 1998). Accordingly, even sureties such as Defendant “may assert the defenses and even the affirm…

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