## Facts

- Metropolitan Dade County owned a public construction project in Miami; Recchi America, Inc. was the general contractor and J.J. Shane, Inc. was a subcontractor.
- The subcontract included Article XIII(a), stating the subcontractor relied on the owner’s financial responsibility and that payment “is to be made from funds received from Owner by Contractor.”
- Shane completed work but did not receive full payment from Recchi.
- It was undisputed the owner had not paid Recchi, and Recchi was in separate litigation seeking that payment.
- Shane sued Recchi for breach of contract and sought recovery against Aetna Casualty & Surety Co. under Recchi’s payment bond.
- Recchi asserted Article XIII(a) made owner payment a condition precedent to any duty to pay Shane, rendering the lawsuit premature.
- A jury returned a verdict for Recchi; the trial court entered final judgment against Shane and taxed attorney’s fees and costs against Shane.

## Issues

1. Whether the subcontract clause tying payment to “funds received from Owner by Contractor” unambiguously created a condition precedent to the contractor’s duty to pay the subcontractor.
2. Whether, given undisputed nonpayment by the owner, the subcontractor’s action for payment was prematurely filed and required dismissal without prejudice.

## Decision

- The appellate court reversed the final judgment and the award of attorney’s fees and costs.
- The court held Article XIII(a) plainly and unambiguously made owner payment a condition precedent to Recchi’s duty to pay Shane.
- Because the owner had not paid Recchi when suit was filed, Shane’s action had not yet accrued and was premature.
- The court remanded with instructions to dismiss the case without prejudice.

## Legal Principles

- In Florida, owner payment to a contractor is not ordinarily presumed to be a condition precedent to payment of a subcontractor, absent clear contractual language.
- Parties may shift the risk of owner nonpayment to the subcontractor through an unambiguous provision making owner payment a condition precedent.
- A clause expressly linking subcontractor payment to funds actually received from the owner may be enforced as a condition precedent rather than a provision merely setting the time for payment.
- When a claim is filed before a contractual condition precedent occurs, the proper remedy is dismissal without prejudice rather than a merits judgment.

## Conclusion

The court enforced the subcontract’s unambiguous risk-shifting payment clause as a condition precedent and held the subcontractor’s nonpayment claim was premature because the owner had not paid the contractor, requiring reversal and dismissal without prejudice.


J.J. Shane, Inc. v. Aetna Cas. & Sur. Co., 723 So. 2d 302 (Fla. Dist. Ct. App. 3d Dist. 1998)