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TM Wireless Communication Services, Inc. v. All Commerce, Inc.

Florida Court of Appeals, Third District

May 16, 2018

TM Wireless Communication Services, Inc., Appellant,
v.
All Commerce, Inc., Appellee.

         Not 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.

          Mesa & Associates and Manuel Arthur Mesa, for appellant.

          Wermuth Panell & Ortiz PLLC and J. Michael Wermuth and Andres R. Cordova, for appellee.

          Before SUAREZ, FERNANDEZ and LUCK, JJ.

          PER CURIAM.

         This 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.

         Factual Background and Procedural History

         All 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.

         All 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 worked.

         Based 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.

         Once 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.

         TM 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.[1] 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 counterclaims.

         The 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 ...


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