BUCKEL CORP., A FLORIDA CORPORATION, AND COMMODORE CLUB II, APPELLANTS,
v.
FIDELITY & DEPOSIT COMPANY OF MARYLAND AND JONES & BRAIDO, INC., APPELLEES
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This case addresses whether a payment bond with a handwritten notation referencing performance becomes a performance bond. A developer and condominium association sued a contractor's surety after construction defects were discovered more than one year after completion, but the surety obtained summary judgment based on a one-year contractual limitation on claims. The court reversed, finding factual ambiguities about the bond's true nature that precluded summary judgment.
The court reversed summary judgment, holding that merely calling a payment bond a performance bond cannot make it so without additional factual allegations. The court found that the complaint failed to state a cause of action because it did not allege that the handwritten reference was added at execution or that parties agreed to a formal performance bond, and remanded for amendment and development of the true facts.
[1] A handwritten interlineation on a printed form bond does not, by itself, transform the bond into a different type of bond than that which is printed.
[2] A party should be permitted to amend its complaint to add facts that may establish a cause of action, even if the original complaint did not state a cause of action.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the complaint characterizes as a performance bond that which is obviously only a payment bond, yet the answer admits the execution of a payment and performance bond”
Identifies the central factual ambiguity that precluded summary judgment resolution
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Join FLexlaw to unlock all legal intelligenceJones & Braido, Inc. contracted to build a condominium project for Buckel Corp. After construction was completed and units sold as condominiums, the d…
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GRIMES, Chief Judge.
This is an appeal from a summary judgment exonerating a surety company from liability to the appellants.
Jones & Braido, Inc. (contractor) entered into a contract to build a condominium apartment project for Buckel Corp. (developer). After the completion of construction and the sale of the apartment units as condominiums, the developer and the condominium association sued the contractor for damages allegedly due to faulty construction. The complaint contained no allegations that the contractor had failed to pay for labor or materials incorporated into the project. Appellants joined Fidelity & Deposit Company of Maryland (surety) as a defendant.
A copy of a bond issued by the surety was attached to the complaint. The bond is a printed form of payment bond written for the contractor with respect to the construction of the project. While the complaint calls it a performance bond, nothing in the bond suggests that it is anything more than a payment bond except for the handwritten interlineation “& Performance” placed after the printed title “Payment Bond.” However, the surety, in its answer, not only admits the allegation that it issued a performance bond but specifically makes such a statement in an affirmative defense. The surety successfully moved for summary judgment on the ground that the bond provided that no suit could be brought on the bond after one year “from the performance of the labor or completion of delivery of the materials and supplies.” The complaint affirmatively showed that the construction had been completed more than a year prior to the filing of the suit.
We are thus faced with a dilemma: the complaint characterizes as a performance bond that which is obviously only a payment bond, yet the answer admits the execution of a payment and performance bond. There is nothing to tell us how the handwritten reference to performance happened to appear upon the copy of the bond attached to the complaint, and the record does not reflect whether a premium for a performance bond was paid. In view of the fact that this case reaches us on summary judgment, we believe it prudent to reverse so as to permit the true facts to be developed.
As it now stands, the complaint does not state a cause of action against the surety. Merely calling a payment bond a performance bond cannot make it so. There are no allegations that the handwritten reference to performance was added at the time of the execution of the bond or that the parties agreed that a formal performance bond would be forthcoming. Therefore, the appellants should be permitted to amend their complaint to add such additional facts as they might be able to prove in order to determine if they can state a cause of action. By the same token, the surety should not be held to its original pleadings which admit the existence of a performance bond but should be permitted to file an amended answer asserting the facts it believes to be correct.
REVERSED and REMANDED.
HOBSON and SCHEB, JJ., concur.
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Griffin Builders Supply, Inc. v. Jones, 384 So. 2d 265 (Fla. 2d DCA 1980)…genuine issues of material fact as to the correct interpretation of the contract, thus precluding summary judgment. Tampa Electric Co. v. Florida Power Corp., 267 So. 2d 110 (Fla. 2d DCA 1972). See Buckel Corp. v. Fidelity & Deposit Co. of Maryland, 370 So. 2d 824 (Fla. 2d DCA 1979). When the wording of an agreement is ambiguous and parties suggest different interpretations, the issue of proper interpretation becomes one of fact precluding grant of summary judgment. Westchester Fire Ins. Co. v. In-sink-erator…
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Frazier v. Schenck, 503 So. 2d 444 (Fla. 2d DCA 1987)…udgment enlighten us sufficiently to hold that there was a basis for entry of summary final judgment for defendants. Therefore, we deem it prudent to reverse so as to permit the true facts to be developed. See Bucket Corp. v. Fidelity & Deposit Co., 370 So. 2d 824 (Fla. 2d DCA 1978). Accordingly, we vacate the summary final judgment and remand for further proceedings in the trial court. FRANK and SANDERLIN, JJ., concur.…
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