HABIB (PHIL) ASCHI AND CAROL ASCHI, APPELLANTS,
v.
CLEARWATER BAY MARINE WAYS, INC., A FLORIDA CORPORATION, APPELLEE
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The court reversed summary judgment for the defendant, holding that deposition testimony created a material factual issue regarding whether the plaintiffs' forbearance to sue constituted consideration for an alleged agreement to rescind a boat sale.
Summary judgment for defendant was improper because deposition testimony created a material factual issue as to whether plaintiffs' forbearance to sue constituted consideration and mutuality for the rescission agreement.
[1] Forbearance from suit on a claim of doubtful validity may constitute valid consideration for a contract if the forbearing party bona fide believes it has a fair chance of…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Forbearance from suit on a claim of doubtful validity may suffice [as consideration for an agreement] if a person bona fide believes that he has a fair chance of success in the lawsuit.”
Court citing Matey v. Pruitt to establish that forbearance can constitute consideration when the claim has doubtful validity but the party believes in fair chance of success.
Plaintiffs purchased a used boat from defendant and later alleged an agreement to rescind the sale due to the boat's unsatisfactory condition.…
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LEHAN, Judge.
We reverse the summary judgment in favor of defendant in this suit on an alleged agreement to rescind a sale of a used boat.
The summary judgment was apparently based upon the trial court’s conclusion that there was an absence of consideration and mutuality for that agreement. However, we conclude that defendant did not conclusively show the absence of an issue of material fact in that regard. “ ‘[I]f the record raises even the slightest doubt that an issue [of material fact] might exist,’ summary judgment is improper.” Anderson v. Rosetree Village Ass’n, Inc., 540 So. 2d 173, 174 (Fla. 2d DCA 1989) (quoting Snyder v. Cheezem Dev. Corp., 373 So. 2d 719, 720 (Fla. 2d DCA 1979). See also Andrews v. Dep’t of Natural Resources, 557 So. 2d 85, 89 (Fla. 2d DCA 1990). More particularly, deposition testimony in our view created an issue of material fact as to whether plaintiffs’ forbearance to sue defendant for the unsatisfactory condition of the boat constituted consideration and mutuality for the agreement. See Matey v. Pruitt, 510 So. 2d 351, 353 (Fla. 2d DCA), review denied, 518 So. 2d 1276 (Fla. 1987) and 520 So. 2d 585 (Fla. 1988) (“Forbearance from suit on a claim of doubtful validity may suffice [as consideration for an agreement] if a person bona fide believes that he has a fair chance of success in the lawsuit.”).
Reversed and remanded for proceedings consistent herewith.
SCHOONOVER, C.J., and ALTENBERND, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Watkins DRY Wall, Inc. v. Drummond Court Corp., 373 So. 2d 719 (Fla. 3d DCA 1979)
- Snyder v. Cheezem Dev. Corp., 373 So. 2d 719 (Fla. 2d DCA 1979)
- Anderson v. Rosetree Vill. Ass'n, Inc., 540 So. 2d 173 (Fla. 2d DCA 1989)
- Andrews v. Dep't of Natural Res., 557 So. 2d 85 (Fla. 2d DCA 1990)
- Matey v. Pruitt, 510 So. 2d 351 (Fla. 2d DCA 1987)