               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                              IN THE DISTRICT COURT OF APPEAL

                                              OF FLORIDA

                                              SECOND DISTRICT


LEXON INSURANCE COMPANY,                      )
                                              )
              Appellant,                      )
                                              )
v.                                            )      Case No. 2D16-1533
                                              )
CITY OF CAPE CORAL, FLORIDA; and              )
COCO OF CAPE CORAL, LLC,                      )
                                              )
              Appellees.                      )
                                              )

Opinion filed November 29, 2017.

Appeal from the Circuit Court for Lee
County; Jay B. Rosman, Judge.

John H. Pelzer of Greenspoon Marder,
P.A., Fort Lauderdale; Victor Kline of
Greenspoon Marder, Orlando; Robert E.
Ferencik, Jr. and Laura A. Baker of
Ferencik Libanoff Brandt Bustamante and
Goldstein, P.A., Fort Lauderdale; and
Bruce L. Mass of Harris Beach PLLC,
Pittsford, New York, for Appellant.

Edmond E. Koester and Alex R. Figares
of Coleman, Yovanovich & Koester, P.A.,
Naples, for Appellee Coco of Cape Coral,
LLC.

E.A. "Seth" Mills, Jr. and S. Jordan Miller
of Mills Paskert Divers P.A., Tampa, for
Amicus Curiae The Surety and Fidelity
Association of America.
Debbie Sines Crockett of Cheffy
Passidomo, P.A., Tampa; and Lisha Bowen
of Lisha Bowen, P.A., Tampa, for Amicus
Curiae United Policyholders.

No appearance for remaining Appellee.


MORRIS, Judge.

               Lexon Insurance Company appeals a final judgment entered in favor of

Coco of Cape Coral, LLC (Coco), in Coco's action for breach of $7.7 million surety bond

contracts in connection with the development of a subdivision in Cape Coral, Florida, by

Priority Developers, Inc. (Priority). On appeal, Lexon argues, among other things, that

Coco's claims are barred by the five-year statute of limitations, which Lexon argues

began to run in 2007 when Priority abandoned the project and thus breached the surety

bonds.1 We agree, and because this issue is dispositive of the action, we decline to

further comment on the other issues raised in this appeal. Accordingly, we reverse the

decision of the trial court.

               I. Facts

               On January 31, 2005, the City of Cape Coral adopted Ordinance 14-05, a

development order that governs the commercial and residential development of 446.09

acres. The project at issue in this appeal consists of the development of a single-family

subdivision called the Village at Entrada. Priority hired contractors who began work on

the subdivision improvements in 2005. The site plan permit authorizing the

development of the subdivision was scheduled to expire on September 8, 2007.



               1TheSurety and Fidelity Association of America filed an amicus brief in
support of Lexon, and United Policyholders filed an amicus brief in support of Coco.


                                          -2-
             Ordinance 14-05 required Priority, as the developer, to "provide a surety

bond or certified check in an amount of the estimated cost to complete all required site

improvements, as determined by the City." In June 2006, Lexon issued two subdivision

bonds totaling $7.7 million. This amount represented the cost to complete the

remaining work on the subdivision at the time the bonds were issued. The bonds

provided as follows:

                     NOW, THEREFORE, THE CONDITION OF THIS
             OBLIGATION IS SUCH, that if the said Principal [Priority]
             shall construct, or have constructed, the improvements
             herein described, and shall save the Obligee [the City]
             harmless from any loss, cost or damage by reason of its
             failure to complete said work, then this obligation shall be
             null and void, otherwise to remain in full force and effect, and
             the Surety, upon receipt of a resolution of the Obligee
             indicating that the improvements have not been installed or
             completed, will complete the improvements or pay to the
             Obligee such amount up to the Principal amount of this bond
             which will allow the Obligee to complete the improvements.

             The City stopped completing inspections on the project in late 2006 and

the contractor stopped work on the project in March 2007, both due to nonpayment by

Priority. Photographs taken by the City's inspector on June 13, 2007, confirmed that the

contractor was no longer working on the project, and the City's computer system

indicated "that the site plan was closed" on that date. BankAtlantic, the lender on the

project, obtained a foreclosure judgment against Priority in 2009.

             On October 27, 2010, the City contacted Lexon, representing that the City

"would like to place a claim to have the outstanding work on this project completed" and

asking Lexon to notify the City "on the next step in this procedure." Lexon responded

by letter on November 8, 2010, requesting information from the City in order for Lexon

to review the request. The City did not provide the requested information to Lexon or



                                           -3-
move forward on the claim because, by this time, the City was receiving interest from

potential buyers of the project. In March 2012, Coco purchased the project for $6.2

million. On July 23, 2012, the City adopted Resolution No. 21-12 demanding that Lexon

fulfill its obligations under the bonds.

              On October 23, 2012, the City filed this action against Lexon for breach of

contract and for declaratory relief. The City then assigned its claims to Coco, which was

substituted as plaintiff in the action on January 23, 2014. After a bench trial in

November 2015, the court memorialized its findings in a letter to the parties and entered

judgment on the bonds for Coco and against Lexon on March 1, 2016. The trial court

rejected Lexon's claim that the statute of limitations had expired before the City filed its

complaint in October 2012. The court found that the lawsuit was timely filed and that

              surety bonds are a type of insurance contract[] and are
              breached once wrongful denial of a claim occurs. . . . The
              bonds contain no deadline by which claims must be made.
              Under Cape Coral Ordinance 14-05, the bond principal's
              obligations were not due for ten years from the adoption of
              the Ordinance, January 31, 2005.

The trial court also made additional rulings which we do not address because they are

not relevant to the dispositive issue on which we reverse.

              II. Analysis

              On appeal, Lexon contends that the trial court erred in concluding that the

statute of limitations did not bar Coco's claim because, Lexon argues, "the time to sue

on a bond commences when the principal breaches its underlying obligation." Lexon

argues that the five-year statute of limitations applicable to a claim for breach of contract

began to run in March 2007 because that is the date Priority abandoned the project and

the City's cause of action under the bonds accrued.



                                            -4-
              A legal action on a contract must be commenced within five years, and the

cause of action accrues when the last element constituting the cause of action occurs.

§§ 95.11(2)(b), 95.031(1), Fla. Stat. (2012). "Florida case law consistently holds that a

cause of action for breach of contract accrues and the limitations period commences at

the time of the breach." Tech. Packaging, Inc. v. Hanchett, 992 So. 2d 309, 313 (Fla.

2d DCA 2008). "Generally, 'the issue of whether [a] claim is barred by the statute of

limitations is a question of law subject to de novo review.' " Access Ins. Planners, Inc.

v. Gee, 175 So. 3d 921, 924 (Fla. 4th DCA 2015) (alteration in original) (quoting Beltran

v. Vincent P. Miraglia, M.D., P.A., 125 So. 3d 855, 859 (Fla. 4th DCA 2013)). But "[t]he

occurrence of a breach . . . is question of fact." Id. The question in this case centers on

when the City's, now Coco's, cause of action accrued against Lexon on the surety

bonds.

              "[S]uretyship has been described as 'a contractual tripartite relationship in

which one party (the surety) guarantees to another party (the obligee) that a third party

(the principal) will perform a contract in accordance with its terms and conditions. The

surety promises the obligee to answer the debt, default, or miscarriage of the principal.' "

Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So. 2d 1216, 1226 (Fla.

2006) (quoting Edward Etcheverry, Rights and Liabilities of Sureties, in Florida

Construction Law and Practice at 8-7 (5th ed. 2006)). Thus, the surety's liability to the

obligee is based on the liability of the principal. Am. Home Assurance Co. v. Larkin Gen.

Hosp., Ltd., 593 So. 2d 195, 198 (Fla. 1992); see 72 C.J.S. Principal and Surety § 86

(2017) ("On a breach by the principal of the contract or condition secured, the surety is

liable.").




                                           -5-
              In Federal Insurance Co. v. Southwest Florida Retirement Center, Inc.,

707 So. 2d 1119, 1121-22 (Fla. 1998), the court held that the statute of limitations for an

action on a surety bond began to run when the contractor defaulted, which under the

facts of the case was when the work was accepted by the obligee, not when the obligee

discovered latent defects in the work nine years later. The court noted that it was the

principal's "default" that "constituted a breach," rejecting the obligee's argument that

"the statute of limitations did not begin to run against [the surety] until" the surety was

"called upon to cure the default." Id. at 1121 n.5.

              "With respect to a claim arising from a bond, it is . . . well settled that the

date of accrual occurs at the time of the breach of the bond." U.S. v. Cocoa Berkau,

Inc., 990 F.2d 610, 613 (Fed. Cir. 1993). In Cocoa Berkau, the "critical issue on appeal

[was] which event, the default . . . by the bond principal or the default of payment of . . .

damages by the bond surety, constituted the breach of the bond which fixed liability for

purposes of triggering the statute of limitations." Id. The government argued that the

breach occurred when the surety refused payment under the bond after the government

demanded payment, but the appellate court disagreed.

              The court looked to the language of the bond "stipulating the relevant

obligations of the bond principal and its surety." Id. Specifically, the bond provided that

upon default of the principal, the principal or surety shall pay damages to the obligee "as

may be demanded." Id. The court stated that the bond "placed an obligation on the

bond principal to" perform a certain action and that the "bond was breached, and thus

the government's right of action accrued, when the principal failed to" perform that

action, "not when the surety failed to pay liquidated damages." Id. "[The surety's] duty




                                             -6-
as bond surety to pay liquidated damages arose as a consequence of the default . . . by

the principal, not on a demand for the damages by the government." Id.

              The court went on to hold that a demand by the government for payment

"was merely a procedural step for obtaining the damages and did not in itself create the

liability." Id.; cf. U.S. v. Ins. Co. of N. Am., 83 F.3d 1507, 1510 (D.C. Cir. 1996) (holding

that demand for payment was a prerequisite to commencement of statute of limitations

where bond expressly stated that obligee "shall make a written demand" as a condition

precedent to surety's liability). The court in Cocoa Berkau further noted that the

              government's interpretation that its right of action accrues
              only when demand for liquidated damages is made on the
              surety would subvert the purpose of the statute of limitations,
              which is intended to ensure that actions are brought in a
              timely fashion, before they become stale. . . . The accrual of
              a right of action should occur upon default by a liable party,
              not when a creditor takes steps to procure performance.

990 F.2d at 614 (citations omitted).

              We find the reasoning of Cocoa Berkau persuasive. The surety bond in

this case placed an obligation on the principal, Priority, to construct improvements on

the project. When Priority failed in its obligation to construct those improvements, the

City's right of action on the bond accrued. See id.; see also N.J. Div. of Taxation v.

Selective Ins. Co. of Am., 944 A.2d 667, 674 (N.J. Super. Ct. App. Div. 2008) ("[A] claim

against a surety arises upon the principal's default." (quoting Ark. State Highway

Comm'n v. Union Indem. Ins. Co., 748 S.W.2d 338, 339 (Ark. 1988))); 72 C.J.S.

Principal and Surety § 85 ("[T]he liability of a surety accrues on the breach of the

contract."). Lexon's duty to pay under the bond arose as a consequence of Priority's

failure to construct the improvements, not as a result of the City's demand for damages.




                                            -7-
The language in the bond referring to Lexon's "receipt of a resolution" by the City sets

forth the procedure by which the City is to seek payment under the bond, but it is not the

fact that created Lexon's liability. Under the facts of this case, Lexon became liable

when Priority failed to construct the improvements.2 To hold that the statute of

limitations commenced when the City passed a resolution demanding payment in 2012

would be contrary to the purpose of the statute of limitations and would allow the City to

wait to bring a claim against Priority as late as 2017, ten years after Priority failed in its

obligation under the bonds. See Major League Baseball v. Morsani, 790 So. 2d 1071,

1078 (Fla. 2001) ("[A] main purpose of the statute of limitations is to protect defendants

from unfair surprise and stale claims.").

                We disagree with the trial court's conclusion that because "surety bonds

are a type of insurance contract," they "are breached once wrongful denial of a claim

occurs." While a surety contract is a type of insurance contract, "the surety relationship

possesses characteristics that are unique and distinct from the traditional liability

insurance relationship." Dadeland Depot, Inc., 945 So. 2d at 1226. Because the unique

nature of the surety contract bases the surety's liability to the obligee on the liability of

the principal, the default of Priority, the principal, was the act that breached the bonds

and started the running of the statute of limitations for purposes of Lexon's liability to the

City or Coco.

                By noting that that the "principal's obligations were not due for ten years

from the adoption of the Ordinance, January 31, 2005," the trial court suggested that



                2The date that a contractor abandons a project commences the statute of
limitations for a breach of contract claim against the contractor. See Alexander v.
Suncoast Builders, Inc., 837 So. 2d 1056, 1058-59 (Fla. 3d DCA 2002).


                                             -8-
Priority would not be in breach of the bond until January 2015. The trial court relied on

language in the ordinance that provides in pertinent part that "[t]he physical

development authorized under this Development Order shall terminate in ten years . . . ,

unless an extension is approved by" the city council. However, it is clear that Priority

stopped its work in March 2007 and there is no indication that Priority ever resumed its

obligations. Further, the trial court's interpretation that Priority had until 2015 to

complete its obligation would allow the City to bring a claim against Lexon as late as

2020, when the evidence is clear that Priority breached the bond in 2007. This

language does nothing more than address when the City's authorization of the project

expires; it has no bearing on when Priority breached the bonds.

              In sum, the City's or Coco's cause of action accrued at the earliest in

March 2007, when Priority stopped development of the project, or at the latest in

September 2007. The City's action filed in October 2012 was filed beyond the five-year

statute of limitations and was therefore time-barred. Accordingly, we reverse and

remand for the trial court to enter judgment in favor of Lexon.

              Reversed and remanded.




LUCAS, J., and CASE, JAMES R., ASSOCIATE SENIOR JUDGE, Concur.




                                             -9-
