Ballas v. Spolyar

548 So. 2d 1168, 14 Fla. L. Weekly 2120, 1989 Fla. App. LEXIS 5010, 1989 WL 113018

• Court: District Court of Appeal of Florida
• Decided: September 8, 1989
• Docket: No. 88-03089
• Status: Published

Opinion

THREADGILL, Judge.

The trial court entered a final summary judgment against the appellant/buyer on his complaint for recision and damages for breach of contract arising out of the delivery of alleged inferior Christmas trees. The court also entered final summary judgment in favor of the appellee/seller on a counterclaim for the balance due under the contract. The trial court found that the appellant/buyer neither rejected the trees nor revoked his acceptance. Upon review, we conclude there are genuine issues of material fact concerning whether the appellant/buyer rejected the defective trees or revoked acceptance and whether the rejection or revocation of acceptance was within a reasonable time pursuant to the Uniform Commercial Code. These factual issues must be decided by the fact-finder and are not susceptible of resolution on summary judgment. Monroe v. Appelton, 419 So.2d 356 (Fla. 2d DCA 1982).

We therefore reverse the final summary judgment as it pertains to counts I and II of the complaint and as to appellees’ counterclaim and remand for further proceedings. In all other respects the final summary judgment is affirmed.

Affirmed in part; reversed in part.

RYDER, A.C.J., and LEHAN, J., concur.