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Miller Act Time Limit Doesn't Negate Payment Condition

Tuesday, May 01, 2012 04:42 am


Conditions Precedent -- Payment -- Miller Act

U.S. f/u/o Cemex Constr. Materials Fla., LLC v. EPB Enterprises, LLC, 2012 U.S. Dist. Lexis 32328 (M.D. Fla. March 12, 2012)

The futility doctrine excuses a party from performing a condition precedent if such performance would be futile--but that was not the case here.

Cemex Construction Materials Florida, LLC (Cemex) provided materials to a U.S. Air Force project in Avon Park, Florida but did not receive payment because of allegedly unsatisfied conditions precedent in one of the project subcontracts. Cemex sought $44,000 plus $50,000 in interest, arguing that either the payment condition had been met or that enforcement of the condition was futile. A district court disagreed.

Subcontractor EPB Enterprises, LLC (EPB) subcontracted with John Carlo, Inc [...]

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