UN2JC Air 1, LLC v. Whittington

324 So.3d 1

UN2JC AIR 1, LLC, Appellant,

v.R.D. Don WHITTINGTON, James Desalvo, World Jet, Inc., World Jet Ii, Inc., and World Jet of Delaware, Inc., a foreign corporation, Appellees.

No. 4D20-1449

District Court of Appeal of Florida, Fourth District.

[June 30, 2021]

Marc Anthony Douthit of Douthit Law, LLC, Miami Lakes, for appellant.

Bruce David Green of Bruce David Green, P.A., Fort Lauderdale, for appellee World Jet, Inc.

Warner, J.

In appellant UN2JC's action for conversion, the trial court granted summary judgment to appellee, World Jet, Inc., on the basis that the tort action was not independent of a breach of contract claim. Because appellee was not a party to the underlying contract and the conversion action against it was independent of the breach of contract, we reverse.

Appellant UN2JC is a Nevada limited liability company which sought to obtain a jet for air ambulance use. An airplane broker connected appellant with Don Whittington who owned several corporations in the aviation industry, including World Jet of Delaware, Inc. ("WJD") and appellee, World Jet, Inc.

In February 2005, appellant entered into a lease purchase agreement ("LPA") for a Learjet. The agreement showed WJD as the "Lessor/Owner" and appellant as the "Lessee/Purchaser." Its provisions included monthly payments, required insurance, and a representation that at the time of delivery, the aircraft would have an operational certificate from the FAA. The agreement also provided that WJD would continue to retain ownership of the jet until all payments under the LPA were made.

In addition, a Final Aircraft Delivery Receipt and Repair Addendum was agreed to by the parties, and additionally, appellee. This agreement itemized needed repairs to be made at WJD's expense. It authorized appellant to obtain repairs identified in the agreement and to deduct the repairs from the monthly payments due to WJD. Appellant received the aircraft on May 12, 2005.

Appellant had multiple repairs made to the aircraft which totaled over $100,000. When the time came to make the June payment, appellant notified WJD that no payment would be forthcoming because of the credit due appellant for the balance of the repairs. WJD contested the commercial reasonableness of the repairs and their cost.

On June 16, 2005, WJD retook possession of the aircraft by flying it out of a repair facility without notice to appellant, resulting in the next fifteen years of litigation. First, WJD sued appellant for declaratory judgment, alleging a breach of the LPA by appellant for failing to provide necessary insurance and a breach of the Repair Addendum by failing to pay for repairs and obtaining commercially unreasonable cost estimates. As well, it contended that appellant permitted the aircraft to be piloted by an unapproved pilot. WJD sought a declaration that it had the right to terminate the contract.

Appellant answered, raising multiple affirmative defenses, and filing a counterclaim against WJD and a third-party claim against Whittington and another director of WJD. The counterclaim/third-party claim alleged that Whittington and his entities concealed major defects in the jet which had to be repaired at substantial expense, and appellant was deducting the cost of those repairs from the monthly payment due. One evening, the aircraft was stolen from the repair center when, unbeknownst to appellant, someone from the Whittington entities came to the hangar and flew off with the jet. When confronted, Whittington told appellant that the jet would be returned if appellant waived reimbursement for all but $15,000 of the repair costs.

Several years later, appellant filed an action against Whittington and several of his entities, including appellee. As to appellee, appellant claimed that appellee breached the repair addendum as well as the LPA. It sued for breach of contract and fraud. Later, appellant filed a third amended complaint against all of the Whittington defendants, including appellee. As to appellee, the complaint added a cause of action for conversion, alleging that appellee was the record title owner of the jet. However, both WJD and appellee were also referred to as sellers under the Repair Addendum. Appellant alleged that it had fully complied with all the terms of the two agreements and that it was the lawful possessor of the jet when it was taken by appellee and the other Whittington defendants who "without any bona fide justification or excuse of any kind whatsoever, stole the Aircraft from [appellant]." The third amended complaint continued to allege a breach of contract against appellee, alleging a breach of both agreements.

The court consolidated the earlier declaratory judgment action and counterclaim against WJD with the third-party complaint against appellee. On a motion for partial summary judgment, the court entered judgment on the breach of contract count against appellee, concluding that appellee was not a party to the LPA, and therefore not a party to the agreement.

Appellee then moved for summary judgment, and amended summary judgment, on the conversion count, arguing that the independent tort doctrine barred the conversion claim, because the same set of facts were alleged in appellant's counterclaim against WJD for breach of contract. According to appellee, because the damages claimed in that count were the same as in the conversion count against appellee, the conversion count should be barred. Appellant responded that the court had found that appellee was not a party to the breach of contract, and without privity of contract the independent tort doctrine did not apply. Furthermore, conversion was an independent tort and thus the breach of contract action did not bar appellant from asserting the cause of action.

After a hearing, the court entered an order granting the amended motion for partial summary judgment on the conversion count and later entered final summary judgment, as all claims against appellee were disposed of by the summary judgment orders. Appellant then filed this appeal.

The standard of review of an order granting summary judgment is de novo. Restoration Constr., LLC v. SafePoint Ins. Co. , 308 So. 3d 649, 651 (Fla. 4th DCA 2020). Issues of law are subject to de novo review by the appellate court. Howard v. Savitsky , 813 So. 2d 978, 979 (Fla. 2d DCA 2002). The issue in this appeal turns on a question of law, and thus our review is de novo.

As a general principle of law, "a plaintiff may not recover in tort for a contract dispute unless the tort is independent of any breach of contract." Island Travel & Tours, Ltd., Co. v. MYR Indep., Inc. , 300 So. 3d 1236, 1239 (Fla. 3d DCA 2020) (citing Peebles v. Puig , 223 So. 3d 1065, 1068 (Fla. 3d DCA 2017) ). This principle is "rooted in the notion that, when a contract is breached, the parameters of a plaintiff's claim are defined by contract law, rather than by tort law." 223 So. 3d at 1068. This principle only applies, however, to the parties to the contract. Indem. Ins. Co. of N. Am. v. Am. Aviation, Inc. , 891 So. 2d 532 (Fla. 2004) ; Straub Cap. Corp. v. L. Frank Chopin, P.A. , 724 So. 2d 577 (Fla. 4th DCA 1998).

In this case, the court had previously determined in granting partial summary judgment that appellee was not a party to the LPA. Therefore, not being a party to the contract, the independent tort doctrine does not apply. While appellee argues that the count for conversion was similar to the breach of contract count in the suit against WJD, a reading of the allegations of the conversion count belies that argument. "Conversion is defined as ‘an act of dominion wrongfully asserted over, and inconsistent with, another's possessory rights in personal property.’ " Joseph v. Chanin , 940 So. 2d 483, 486 (Fla. 4th DCA 2006) (quoting Goodwin v. Alexatos , 584 So. 2d 1007, 1011 (Fla. 5th DCA 1991). The allegations of the complaint regarding the contract were meant to establish that appellant had not breached the contract and thus had a superior possessory interest to appellee and the other Whittington defendants, the essence of the conversion claim.

Furthermore, even if there were privity of contract, the allegations of the complaint were sufficient to show a tort independent of the contract. Appellant alleged that it had a superior interest, and appellees simply stole the jet, even though appellant was...