final until disposition of timely filed motion for rehearing.
Appeals from the Circuit Court for Miami-Dade County Lower
Tribunal No. 14-2593, Antonio Marin, Judge.
& Associates and Manuel Arthur Mesa, for appellant.
Wermuth Panell & Ortiz PLLC and J. Michael Wermuth and
Andres R. Cordova, for appellee.
SUAREZ, FERNANDEZ and LUCK, JJ.
case arises out of a dispute over the sale of cellular
telephones from a reseller to a distributor in Latin America.
All Commerce, Inc., the reseller, sued TM Wireless
Communication Services, Inc., the distributor, for breach of
contract for failing to pay for the telephones All Commerce
shipped to TM Wireless. TM Wireless countersued for breach of
a joint venture agreement, breach of contract, and fraudulent
inducement. TM Wireless appeals the trial court's summary
judgment in favor of All Commerce on all claims, and the
award of attorney's fees to All Commerce. We affirm in
part, and reverse in part.
Background and Procedural History
Commerce approached TM Wireless about buying Nextel Hunwei
models U5300 and U6020 cellular telephones. TM Wireless was
interested because these telephones had a transferable Nextel
SIM card and push-to-talk feature, which allowed the
telephone to work similar to a "walkie-talkie" with
anyone else on the Nextel network.
Commerce gave two sample telephones, one for each model, for
TM Wireless to test and "confirm the agreement based on
sample approval." TM Wireless tested them in the United
States, and then sent them for testing to a potential
customer in South America. For both tests, the telephones
on the samples, TM Wireless agreed to buy the telephones.
When TM Wireless received the first shipment, however, the
telephones were locked - they would not accept the SIM card.
All Commerce agreed to unlock the telephones and had them
shipped to its service center.
the telephones were unlocked, TM Wireless distributed them to
retail customers in South America. The push-to-talk function,
however, did not work. Throughout April 2013, the parties
tried to resolve the problems with the telephones, but by May
TM Wireless determined the problems could not be fixed.
Wireless paid All Commerce all but $80, 923.35 of the total
amount invoiced for the telephones. After All Commerce
refused to take the telephones back, TM Wireless sold the
remaining phones at $26.25 each for a total of $183, 225. All
Commerce then filed the instant action against TM Wireless to
recover the remaining balance on their
invoices. TM Wireless responded with affirmative
defenses and a counterclaim alleging that the agreement to
sell the telephones was a joint venture between the two
companies, and not a sales contract as alleged by All
Commerce, and All Commerce breached the joint venture
agreement. Alternatively, TM Wireless claimed, even if the
agreement was a sales contract, All Commerce breached first
when it shipped telephones that did not conform to the
samples, and All Commerce fraudulent induced TM Wireless to
enter into the sales contract. TM Wireless pleaded its
fraudulent inducement and first-breach claims both as
affirmative defenses to All Commerce's complaint, and as
parties filed two rounds of cross-summary judgment motions.
In the first round, the focus was TM Wireless's
counterclaim that the agreement between the parties was a
joint venture (instead of a sales contract) that All Commerce
breached. The ...