114 So. 3d 311
Fla. Dist. Ct. App.2013Background
- Boran Craig Barber Engel Construction Co. sued East Coast Metal Decks, Inc. in Collier County for breach of contract; East Coast was the subcontractor on two public works projects in Brevard and Sarasota Counties.
- East Coast asserted a third-party claim against Boran’s surety, Safeco Insurance Company of America, seeking to enforce bonds on the projects.
- East Coast moved to transfer the Collier County action to Brevard County where related litigation by material suppliers had been filed.
- The trial court denied transfer, relying on a subcontract venue clause designating Collier County and on section 255.05(5) concerning payment bonds, plus a finding no substantial risk of inconsistent results.
- The appellate court affirmed, holding the contractual venue provision waived challenges to venue, section 255.05(5) was applicable (not Brevard-only), and no transfer was required; it also addressed appellate attorneys’ fees.
- On the fees issue, the court conditioned Boran’s entitlement to appellate fees on Boran ultimately prevailing on the significant issues in the trial court; East Coast’s request for fees was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the subcontract's venue clause waives inconvenient-venue challenges | Boran argues the clause permits Collier County as venued venue. | East Coast contends transfer is permissible due to convenience or other factors. | Yes; contractual venue waiver valid, transfer denied. |
| Whether section 255.05(5) requires bringing the action in Brevard or Sarasota | Boran contends payment-bond provision allows Brevard/Sarasota only. | East Coast argues Brevard/Sarasota are mandatory for bonds. | No; section 255.05(5) is applicable and does not require Brevard/Sarasota. |
| Whether transfer would cause inconsistent results between Collier and Brevard actions | Boran asserts no need for transfer since actions are distinct and venue is proper. | East Coast argues potential inconsistency warrants transfer. | No; insufficient likelihood of inconsistent results. |
| Whether Boran is entitled to appellate attorneys’ fees | Boran seeks prevailing-party fees under contract if successful on appeal. | East Coast challenges fee entitlement or amount under contract and case law. | Boran is the prevailing party on appeal; East Coast’s fee request denied; Boran’s fees may be conditioned on ultimate success in the trial court. |
| What standard governs review of the denial of the transfer and related fee ruling | Boran asserts abuse-of-discretion standard, given venue clause and facts. | East Coast argues standard and analysis align with contractual venue analysis. | Abuse-of-discretion review applies; court upheld denial of transfer and conditional fee ruling. |
Key Cases Cited
- Interval Mktg. Assocs. v. Sea Club Assocs. IV, 468 So.2d 262 (Fla. 2d DCA 1985) (contractual venue provisions may control where suit may be brought)
- Se. Office Supply & Furniture Co. v. Barley, 427 So.2d 1139 (Fla. 5th DCA 1983) (venue clauses can effectively waive inconvenient venue challenges)
- Carlson-Se. Corp. v. Geolithic, Inc., 530 So.2d 1069 (Fla. 1st DCA 1988) (distinguishes mandatory vs. permissive venue rules)
- Palm Beach Cnty. Canvassing Bd. v. Harris, 772 So.2d 1273 (Fla. 2000) (statutory language on venue and alternatives; ‘shall’ vs ‘may’ distinctions)
- Moritz v. Hoyt Enterprises, 604 So.2d 807 (Fla. 1992) (prevailing party on significant issues governs fee entitlement)
- Brass & Singer, P.A. v. United Auto. Ins. Co., 944 So.2d 252 (Fla. 2006) (limits conditional appellate fees in context of insurance disputes)
- Aksomitas v. Maharaj, 771 So.2d 541 (Fla. 4th DCA 2000) (endorsed conditional appellate fees following Moritz; influenced by policy)
- Sabina v. Dahlia Corp., 678 So.2d 822 (Fla. 2d DCA 1996) (requires ultimate prevailing party status on trial for interlocutory fees)
- Dienstl v. Castle Builders U.S. Inc., 49 So.3d 1272 (Fla. 2d DCA 2010) (illustrates conditional appellate fee approach post-Aksomitas)
- Sherwood Partners, LLC v. Wickman, 26 So.3d 590 (Fla. 2d DCA 2010) (applies traditional approach to appellate fees after nonfinal rulings)
- Cline v. Gouge, 587 So.2d 625 (Fla. 4th DCA 1988) (precedent regarding interlocutory appeals and fee allocation)