## Facts

- 2P Commercial Agency S.R.O. (a Czech company) arranged to buy 400 Apple iPhones for delivery to Prague from SRT USA, Inc.; Len A. Familant was involved in the dealings.
- Familant represented he could obtain European-specification iPhones at prices below then-current market prices.
- A July 13, 2011 purchase order listed SRT as supplier and goods sender and was signed by 2P’s representative and Familant; an invoice on SRT letterhead directed an initial deposit.
- 2P attempted payment on July 14, 2011, but the transfer failed due to incorrect bank information; 2P successfully transferred funds on July 19, 2011.
- Delivery did not occur by the original date (July 19). 2P agreed to accept later deliveries on several dates in late July and early August, but no delivery occurred.
- 2P canceled the order around August 8–10, 2011, later indicated it would still accept shipment in mid-August, and ultimately never received the phones.
- SRT refunded only $5,000 of the deposit; 2P obtained substitute goods from another supplier at additional cost.
- Familant executed a written personal guarantee, up to $300,000, tied to SRT’s failure to deliver goods or make payment; he did not pay under the guarantee and claimed it was invalid.
- 2P sued for (1) CISG breach of contract, (2) FDUTPA violations, and (3) breach of Familant’s personal guarantee; default judgment was entered against SRT, and Familant sought summary judgment on all claims against him.

## Issues

1. Whether genuine disputes of material fact precluded summary judgment on Familant’s potential liability related to the CISG-governed sale (including whether he acted only as an agent or otherwise incurred obligations).
2. Whether the FDUTPA claim against Familant was unsupported as a matter of law because it merely restated a contract dispute or lacked evidence of deceptive or unfair conduct.
3. Whether the personal guarantee was unenforceable as a matter of law for lack of consideration, fraudulent inducement, or ambiguity/indefiniteness.

## Decision

- The court denied Familant’s motion for summary judgment on all counts.
- The court found material factual disputes regarding Familant’s role and relationship to SRT and the legal characterization of his conduct in the transaction.
- The court declined to resolve, at summary judgment, Familant’s CISG arguments tied to contract formation and the effect of shifting delivery dates and communications.
- The court held the FDUTPA theory could not be rejected as a matter of law because the record raised fact questions about alleged representations and reliance beyond a simple nonperformance dispute.
- The court held the guarantee claim could not be dismissed as a matter of law because disputes remained concerning consideration, alleged inducement, and interpretation in context.

## Legal Principles

- Summary judgment is improper where the record permits competing inferences on material facts related to liability, intent, reliance, and the parties’ course of dealing.
- In CISG disputes, formation and remedy defenses turning on the parties’ communications, performance efforts, and extensions of time commonly present fact questions not suited to summary disposition.
- A statutory unfair-or-deceptive-trade claim is not defeated solely because a contract exists; alleged misrepresentations and reliance may create triable issues distinct from nonperformance.
- Challenges to a written personal guarantee based on consideration, fraud in the inducement, and asserted ambiguity often require factfinding where the guarantee was executed in connection with a commercial transaction and the parties contest what was said and intended.

## Conclusion

The court allowed the CISG, FDUTPA, and personal-guarantee claims against Familant to proceed because genuine disputes of material fact existed about his role in the transaction, the parties’ conduct and communications, and the validity and meaning of the guarantee.


2P Commercial Agency S.R.O. v. Familant, No. 2:11-cv-652-FtM-29SPC, 2013 WL 246650 (M.D. Fla. Jan. 23, 2013)