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A broker or agent also owes a fiduciary duty of full disclosure. COM Abintus as Above. In most cases, users can join for jdi dating llc — this gives them access to the website and allows them to browse the profiles of other caballeros. Since Being Singe Limited Sinch Singelringen AB Singldout, Inc. This entry was posted in by. Catch Matchmaking Catholic Sites CatholicMatch. Required to maintain a comprehensive privacy program. MeetMindful MeetMoi meetOne GmbH Meez Megalove MejorAmor. However, Isaacman's email to Kerr in jdi dating llc December clearly indicates that he el the seller would pay Kerr's commission, and Isaacman admitted in his deposition that he did not have complete faith from day one that Kerr was representing only Isaacman's that is, JDI's interests but Isaacman said he had no reason at the time of closing to think Kerr was acting contrary to his interests. In addition, if the business offers a free trial, the business must disclose the cancellation procedure to the consumer before the paid portion of the subscription begins, with it being sufficient to make the disclosure at the time of the free trial offer rather than immediately before the paid north begins.
United States District Court, N. Roe PC, Pittsburg, PA, for Plaintiff. Michael James Schofield, Jeremy Chase Branning, Clark Partington Hart etc. Jon Kerr, Litchfield, CT, pro se. CASEY RODGERS, District Judge. This case was tried before the court without a jury. JDI asserts that the aircraft seller, Jet Management, Inc. JDI seeks damages from all defendants, rescission of the purchase agreement, and disgorgement of Kerr's commission. Rule 52 Standards At trial, following the close of the plaintiff's evidence, Jet and Southern moved for judgment on partial findings pursuant to Federal Rule of Civil Procedure 52 c , arguing that JDI had failed to set forth sufficient evidence to support its claims. Thus, the court resolves the disputed issues on the basis of the preponderance of the evidence, without drawing any special inferences in favor of the plaintiff. Farmer, , 1086 5th Cir. That ruling stands, and the court therefore will enter final judgment in favor of Southern for the reasons stated on the record at trial. The court now considers the claims against the remaining parties, Jet and Kerr. In rendering judgment following a nonjury trial, Rule 52 a requires the district court to make specific findings of fact and to state conclusions separately. Thus, in accordance with the requirements of Rule 52 a , having heard and considered all of the testimony, evidence, and arguments presented at trial, the court now enters the following findings of fact and conclusions of law. Isaacman, who is now a licensed pilot and seasoned aircraft owner, had never owned or flown a plane in 2005; this transaction was his first aircraft purchase. Isaacman was initially interested in an aircraft offered for sale by Jon Kerr. Emails confirm that Isaacman and Kerr were engaged in discussions related to that aircraft in September 2005. Although Isaacman's interest turned to different airplanes, he continued to rely on Kerr's assistance to identify a suitable aircraft for him to purchase. In November 2005, Kerr identified the Cessna Citation 650 offered for sale by Jet, which suited Isaacman's needs. The aircraft had recently undergone a Phase 1-5 inspection process at Southern. Emails show that on November 21, 2005, Kerr informed Isaacman of the Cessna Citation 650 and informed Watkins, Jet's representative, that Isaacman was interested in it. The next day, November 22, Kerr sent an email informing Isaacman's attorney, Dulac, about this aircraft, and Kerr began arranging financing. Email correspondence shows that within four days of identifying this aircraft, Kerr was discussing a fee arrangement with Watkins. Kerr and Watkins both testified that aircraft brokers often have trouble getting paid so they attempt to obtain payment for themselves from either side. Kerr had no written agency or broker agreement with Isaacman or JDI. He testified that he was instructed to communicate with Isaacman's attorney, Dulac, because Isaacman was very busy. As negotiations continued, Kerr informed Dulac that he believed the recently performed Phase 1-5 inspection was sufficient to qualify as a pre-purchase inspection for the aircraft but that the aircraft's flight and logbooks should be audited. Dulac, however, had already begun preparing the purchase agreement and in his opinion, it was quicker and more efficient to proceed directly with a purchase agreement. I'm not competent to measure or quantify that risk. The next day, November 29, 2005, negotiations continued. Kerr continued discussing a possible as-is purchase, the deposit, and his own potential fee with Watkins. The terms are as is with a logbook research and someone coming to see the plane books and records, to verify all work performed. However, on the same day, email discussions between Kerr, Dulac, and Isaacman reflect that Isaacman was not interested in accepting an as-is purchase with only a records check. Kerr reported that the Cessna Service Center in Newburgh, New York, had confirmed that the recently performed Phase 1-5 inspections would qualify as a pre-purchase inspection, and he attached a quote from the Newburgh service center, confirming a quick turnaround, apparently for a logbook and cursory aircraft review. Especially surprises in the air. Kerr assured Isaacman he would be in Newburgh to monitor the inspection process. Kerr would be paid if the deal closed. Kerr did not send back a final agreement with his next email but suggested they discuss the matter in the morning. No written fee agreement was introduced at trial. On December 5, 2005, JDI and Jet entered into the aircraft purchase agreement, drafted by Isaacman's attorney, Dulac. JDI agreed to bear the cost of moving the aircraft to the service center as well as the cost of the inspection and records review. Specifically, if JDI was not satisfied with the aircraft based on the results of the inspection, it retained the option to refuse to purchase the aircraft, in which case the deposit would be refunded, or to decline to purchase until the seller cured any airworthiness discrepancies. The agreement provided that on the date of closing and delivery, the buyer would execute a delivery acceptance form for the aircraft, acknowledging that the aircraft conformed to the requirements of the agreement. The agreement obligated the seller to deliver the plane in an airworthy condition, with a standard Certificate of Airworthiness issued by the FAA, with all systems operating in good order, and in compliance with all mandatory service bulletins and airworthiness directives under Federal Aviation Regulations. The agreement included a disclaimer of all other warranties. The purchase agreement did not reference payment of Kerr's brokerage fees. Pre-purchase Aircraft Survey The aircraft was flown to the Cessna Service Center in Orlando for a pre-purchase aircraft survey, which experts agreed is not a formal inspection. The December 5, 2005, aircraft survey customer agreement signed by Isaacman requested a standard aircraft survey with some additional tests requested, and it named Kerr and Mary Scales, Kerr's administrative assistant, as the customer contacts for the buyer. Farney testified that it is standard practice at the Orlando service center to recommend the Phase 1-5 inspections because not every issue can be identified on a pre-purchase a survey; however, he also confirmed that he did not imply to Kerr that Southern's Phase 1-5 was insufficient such that Isaacman should not rely on it. Farney, on behalf of Cessna, kept both buyer that is, Kerr, as the customer contact and seller informed of the survey results as the process progressed. Kerr, Dulac and Isaacman all received and reviewed this report. Neither contract option required the seller to correct every discrepancy; the seller was required to correct only those considered airworthy. Dulac suggested they speak with someone knowledgeable about the technical aspects of the aircraft to guide Isaacman on how to proceed. Isaacman, aware that Kerr was not a mechanic, contacted Paul Schulte and Russell Lash of New World Aviation in Pennsylvania, the company chosen to manage the aircraft after its purchase, and asked them to review the report. Isaacman responded that the owner had agreed to fix all items at his expense; Isaacman was satisfied that the issues identified were common repairs. These emails, which were not copied to Kerr or Dulac, further illustrate a basic misunderstanding on Isaacman's part about the contract terms. Kerr asked Watkins to call Farney about this, as Jet was the party responsible under the contract for ensuring that airworthiness repairs were completed; Watkins said he would. Kerr's fee arrangement with Watkins undoubtedly gave him a strong incentive to ensure that the cost of the airworthy repairs remained as low as possible, and, indeed, Kerr asked Watkins if anything could be done to keep the cost low. Watkins was waiting for Isaacman's election on whether to proceed with the airworthy repairs. On Monday, December 12, 2005, Isaacman elected to proceed with the purchase and authorized Jet to proceed with the repairs. The pre-purchase inspection and repair process involved Cessna first identifying items needing repair and marking those deemed airworthiness issuesthe December 8 reportand then a period during which repairs would be validated and completed. Additionally, the experts agreed that issues often arise during the review of the aircraft's historical records. Here, Isaacman had purchased a records review as part of the pre-purchase survey. According to the experts, some issues found in a plane's records may be noted as airworthy discrepancies initially but may be later eliminated from the list after clarification of the issue by the aircraft's owner or one familiar with the aircraft's document history. Tony Vecchio, Jet's Director of Maintenance, and James Wallace, President of Southern, who had previously worked for 23 years as the General Manager of Cessna, traveled to Orlando to participate in this validation process. Isaacman did not send an aircraft mechanic to monitor the survey on JDI's behalf but relied on Kerr and Cessna, the manufacturer and the one ultimately responsible for the inspection. Kerr testified that he, Dulac, and Isaacman agreed that James Wallace was a qualified Cessna mechanic capable of supervising the inspection. The next day, December 15, Kerr again assured Isaacman all was going very smoothly. As part of the validation process, Cessna generated a second discrepancy report dated December 13, 2005 sent on December 16 , which listed 114 discrepancies on the aircraft. The report was sent to Kerr on December 16. Email exchanges between Watkins and Kerr show their frustration over the added discrepancies on this list. Notes from Watkins indicate he was working with Cessna to resolve the issues. Watkins testified that he wanted to clear up some of the paper work and parts traceability issues on the report with Cessna before Isaacman saw this intermediate list. Although Kerr had no independent recollection of sending the report to Isaacman or Dulac, he testified that he and his secretary were in the habit of forwarding everything to Dulac, Isaacman's attorney. Isaacman was unclear about when he received this report but admitted he had seen it. This made the deposit nonrefundable, subject to the seller's timely completion of required corrective work. I am providing this form with the understanding that it does not undermine any of my rights under the purchase agreement. I don't think they missed anythinggreat job on their part. In this case, I have not only identified and negotiated at a wholesale price the aircraft, but also... Kerr also suggested to Isaacman that Kerr's company could manage the aircraft for JDI. In a lengthy response, Isaacman regretted not discussing these issues sooner, as he preferred to work out details up front. Isaacman informed Kerr he had already promised the management of the plane to New World Aviation. Isaacman felt the requested commission was too high, and thus he attempted to negotiate for a lower fee by advising Kerr of his intent to sell the plane and buy another within twelve months and expressing a desire to use Kerr for those transactions as well. I'd rather be straightforward and upfront about everything. In fact, Kerr and Watkins both understood that the repair cost would come out of Kerr's own potential commission from Jet, and this likely was Kerr's motivation for turning to Isaacman in late December for part of his commission. Watkins testified that the items deferred were deemed not airworthy or, in other words, optional to repair and that all airworthiness discrepancies were repaired. The records indicate that James Wallace of Southern faxed the Cessna bill and the final discrepancy report 25 pages total to Kerr's assistant, Mary Scales, at Kerr's office on December 28, 2005, at 10:51 a. There is no document showing that the report was forwarded on to Dulac and Isaacman, but Kerr stated that Dulac received the final report from his assistant, Mary Scales. In Dulac's deposition testimony, he said he did not receive it until early January 2006, which was after the December 29 closing date the copy in Dulac's file shows it was faxed from Cessna to MacConnell at New World Aviation on January 4 and then forwarded to Dulac by New World Aviation. Kerr testified that he instructed Mary Scales to forward everything to Dulac and that it was her practice to do so; Scales agreed that it was her practice to forward all information to Dulac, though she could not recall whether she had forwarded the report that day. Notably, the repair bill was page number 3 of the 26-page final report packet faxed to Kerr's office, and clearly both Dulac and Isaacman knew the exact amount of the repair bill prior to closing. Isaacman recited the total in an email to Dulac at 5:05 p. By agreement of the parties, Isaacman paid the Cessna bill and was reimbursed at closing. While it is possible that Mary Scales faxed only the bill to Isaacman and Dulac, extracted from the 26-page fax, it is more likely, in the court's view, that Kerr's office forwarded the entire final discrepancy report, which included the bill, to Dulac prior to closing in the ordinary course of business, regardless of whether Dulac actually saw it prior to closing. Watkins was at his office that day, and he had advised Dulac that he was available for consultation if needed. Isaacman, Dulac, and Watkins all participated in the closing by telephone, and Kerr attended in person in Delaware. According to Kerr, no one inquired about the final report, though they had to have known of its existence by this time, and he assumed they had received it. Isaacman admitted in his deposition testimony that he had seen the items that were listed on the final report and knew these problems existed prior to closing; he just had not seen the final report with comments showing that some of the items had been deferred and not repaired. At closing, Kerr conducted a walk-around inspection of the aircraft and noticed and reported a problem with the front nose tire tread. Watkins testified he had noted this as well and had been concerned about it but ultimately did not fix it because it was not considered an airworthy problem. Kerr testified that he called Dulac and Isaacman about the problem because he considered it significant, and was told to proceed with closing in spite of it. Kerr also testified that Watkins agreed to fix it at Jet's expense. Isaacman admitted that Kerr reported this problem to him and Dulac before the deal closed but he was not concerned about it; the closing proceeded as scheduled. He also flew to Florida and California and back within the first few days after closing. The pilots did not ground the aircraft or deem it unairworthy but continued on the scheduled trips. According to Isaacman, he first learned that some items on the deficiency list had been deferred instead of repaired when he received an email from New World Aviation upon landing in California a day or two after the closing. Isaacman denied having previously seen the final inspection report and expressed surprise at finding that it listed many items as deferred instead of repaired prior to closing. In his deposition, however, Isaacman admitted he knew of the problems that existed with the plane he had assumed everything would be fixed but had not seen the final report showing that some items were deferred instead of repaired. After the initial flights, Isaacman had New World Aviation inspect the aircraft. On January 12, 2006, New World mechanics compiled a list of 46 items needing repair and its chief inspector grounded the plane on the basis of these discrepancies. After obtaining a special ferry permit, New World transported the plane to the Cessna service center in Newburgh, New York. At JDI's expense, the Cessna Newburgh service center performed a complete Phase 1-5 inspection process and repaired all outstanding deficiencies by February 15, 2006. Opinions on Airworthiness JDI submitted the expert opinion of James MacConnell. MacConnell decided that the problems were too numerous. He thus grounded the plane in mid-January and sent it to the Cessna Newburgh service center for repairs and a new complete Phase 1-5 inspection. Although MacConnell conceded Cessna Orlando's pre-purchase inspection survey was quite extensive for a survey, he nonetheless felt that a Phase 1-5 inspection would have been a more appropriate pre-purchase inspection. MacConnell explained that there is no certified inspection known as a pre-buy and said that a survey inspection, such as Isaacman purchased from Cessna Orlando, is based on conjecture and opinion. At trial, MacConnell agreed with the testimony of other mechanics that there was nothing improper about the seller overseeing the inspection and participating in the validation process to ensure the inspection facility did not replace items that did not need replacing or to answer questions about the aircraft's logbooks and maintenance records. MacConnell explained the Phase 1-5 inspection process generally, stating that the Phase 1-4 inspections are due every 24 months and the Phase 5 extended inspection program is due every 36 months. He acknowledged there had been only 25 to 30 hours of flight time between Southern's Phase 1-5 inspection begun in late summer 2005 and the Cessna Orlando pre-purchase survey in December 2005; yet he stressed there was a surprising number of deficiencies noted by Cessna Newburgh. According to MacConnell, the items deferred and not repaired at the Orlando Cessna Service Center rendered the plane unairworthy. One of his major concerns involved the main cabin door. Cessna Orlando had replaced a secondary seal on the door, but MacConnell, relying on a report generated subsequent to the closing, deemed the door an airworthy issue because it was stiff to operate. The door operated safely, albeit not as smooth as the customer wanted. MacConnell noted additional concerns, including items such as the worn nose tire, landing gear indicator lights that would not dim, a fuel gage that had reported an incorrect reading, loose flap handle covers, and a broken connector on the copilot's side window, among others. Although the nose tire was worn beyond limits at delivery and had to be replaced, Isaacman accepted the plane with full knowledge of the problem. MacConnell acknowledged that the inability to dim the landing gear indicator lights would only annoy a pilot. The faulty fuel gauge indicator light was on an auxiliary tank, not the main tank, and MacConnell acknowledged that it was an intermittent problem. Garner stated that Cessna Orlando missed one airworthy discrepancy, that is, wear and deterioration in the main cabin door. Garner noted that Cessna Orlando's records check failed to disclose that the engine mounts and bolts had been changed, and thus, the age of these parts could not be verified. Garner explained that under industry standards, such a record-keeping defect rendered the plane unairworthy. According to Scanlon, all airplanes have a good deal of built-in redundancy with multiple pieces of equipment capable of performing the same tasks. Thus, in his opinion, the failure of one piece of equipment does not necessarily mean that the aircraft is unairworthy. Basing his opinion on the master MEL for the Cessna Citation III and his review of the evidence, Scanlon testified that he believed the aircraft was airworthy when delivered at closing on December 29, 2005. Scanlon reviewed the final discrepancy report and thoroughly explained how each problem identified by JDI was not an airworthy issue at the time of closing. Regarding the cabin door, Scanlon said that to be airworthy the door must function so it can be opened quickly, and it must hold pressure. His review of the record indicated that all complaints about the door prior to delivery related to closing the door and, in his opinion, difficulty in closing the door does not indicate an air safety concern once the door is closed. He further noted that Cessna Orlando replaced a secondary door seal which, in his opinion, was not an airworthiness concern because it was not the main seal. Scanlon testified that none of the items deferred and not repaired on the final report affected the plane's airworthiness status. He further concluded that the seller went beyond its obligation by authorizing and paying for several items that he did not consider airworthiness concerns. While Scanlon initially noted a problem tracing the engine mounts in the aircraft's maintenance records, he testified that he had since learned from Herb Michael, Southern's chief inspector that the engine mounts were in fact new within the last year, which was within the 10,000 hour limit for the parts, eliminating any airworthiness problem in the documentation. They participated in the verification process during the pre-purchase survey and the records review at Cessna Orlando. Vecchio and Michael each testified that from their experience and observations of the aircraft and its records, the plane was airworthy when it left Orlando, and the cabin door was working satisfactorily when the plane left Southern. Michael had been in and out of the plane a number of times for various inspections at Southern and had not noticed a problem with the door's operation. He testified that Cessna Orlando repaired a seal on the door frame, which he explained was a secondary seal to keep rain water from entering the plane; it was not the main pressurization seal. Vecchio stated if there was any question that the door was an airworthy item when it left Orlando, he would have expected it to be written up by Cessna. Consistent with the opinion of all the mechanics who testified, Vecchio said that Cessna is known for doing more work than is necessary and charging more for that work. Neither Vecchio nor Michael advised or heard anyone attempt to influence a Cessna mechanic to hide any discrepancies on this aircraft. Both testified that when a mechanic identifies an airworthy problem, it is always noted and there is no negotiation over whether to report it. They each testified that discussions may occur regarding the best option for resolving a discrepancy, such as whether a part should be repaired or replaced, because there are ways to keep costs down, but, as Michael testified, a discrepancy is either fixed or the owner is required to sign off that it has not been repaired. The record establishes that there had been less than 6 months and only 25-30 flight hours since Southern had performed a Phase 1-5 on this aircraft. In response, Farney told Kerr that was not the same as having the inspection done by Cessna reputed to be the gold standard , but he testified that he did not mean to imply that the recently performed inspection was unreliable. According to Farney, he and Kerr spoke frequently about the scope of the work and what was happening during the survey inspection process, and he verified that the cabin door was operational. Farney stated that the work Cessna performed on the aircraft during the pre-purchase survey inspection was airworthy, and as far as he was aware, Cessna Orlando repaired all the airworthiness issues it discovered. CONCLUSIONS OF LAW There is no dispute that Florida law governs this diversity suit. Breach of Contract and Implied Covenants Breach of contract requires proof of three elements: 1 a valid contract; 2 a material breach; and 3 damages. Butland, , 876 Fla. JDI argues that Jet breached the aircraft purchase agreement by interfering with the pre-purchase inspection process, contrary to its duty of good faith and fair dealing, resulting in its delivery of an aircraft with significant defects. Mark Andrew of Palm Beaches, Ltd. The purpose of the implied duty of good faith is to protect the reasonable commercial expectations of the parties, and it usually becomes an issue when there is an express contractual obligation over which one party has sole discretion. The evidence does not support JDI's claim that Jet interfered with the pre-purchase inspection process. Isaacman, Kerr, and Dulac agreed that Jim Wallace, a mechanic at Southern, was qualified to oversee the pre-purchase survey. The evidence shows that Cessna mechanics found more discrepancies as the pre-purchase process progressed, a common occurrence in the industry, and that Jet, which was responsible for payment of airworthy repairs, proceeded to validate and authorize repair of those discrepancies deemed airworthy by Cessna mechanics, in accordance with the common industry practice. All of the mechanics who testified agreed that it is common practice for sellers and buyers in the aircraft market to engage in this type of haggling over the cost of repairs and the best method of repair. Additionally, all agreed that record-keeping discrepancies can often be cleared up with further discussion and examination of the aircraft's records by someone already familiar with them, i. Although judgment and opinion surely played a part in Cessna's inspection, there is no evidence in this record from which to even infer that anyone from Jet convinced a Cessna mechanic to change or ignore an airworthy designation. The aircraft purchase agreement required Jet to deliver the aircraft in an airworthynot perfectcondition on the day of closing. The agreement simply warranted that the aircraft would be delivered in an airworthy condition with an FAA certificate of airworthiness. The court is convinced from the evidence of record that Jet delivered the aircraft in conformance with the contract. In fact, the only evidence of a possible airworthy defect in the aircraft at the time of delivery was a bald nose tire, which JDI had full knowledge of and agreed to accept and according to Kerr, Watkins agreed to fix. The court accepts the testimony of Jet's well-qualified expert, Scanlon, that there were no other airworthy defects at the time of delivery. During trial, Scanlon addressed each deferred defect that JDI's expert, MacConnell, had indicated was a concern and credibly explained why none of the items presented an airworthiness problem. Notably, Scanlon rejected the primary concern about the main cabin door being difficult to close on grounds that no one had reported difficulty opening the door, which would have been an airworthy problem. Additionally, Scanlon relied on the fact that no pilots had noted airworthy defects or grounded the plane on Isaacman's trips immediately after closing. According to Scanlon, if the pilots thought the door was not closing or sealing properly, as noted in the later reports from Cessna Newburgh, they would have noted the problem and immediately grounded the plane instead of flying it to Delaware for the closing or on Isaacman's first trips after closing. Also, the door was working satisfactorily according to Michael of Southern and Farney of Cessna Orlando. The court finds that the aircraft was delivered in an airworthy condition, fulfilling the express warranty of airworthiness required in the contract, and Jet did not breach a duty of fair dealing. To the extent JDI claims breach of implied warranties of merchantability, the claim is without merit because all implied warranties were effectively waived. A seller may exclude implied warranties by an express and conspicuous provision referring to either the implied warranty of merchantability or implied warranty of fitness. The disclaimers of implied warranties in the aircraft purchase agreement are plain and conspicuous, set forth in a separate paragraph with bold font and capital lettering. Additionally and notably, JDI accepted the aircraft at closing after a reasonable opportunity to inspect it. Acceptance of goods occurs when the buyer, after a reasonable opportunity to inspect them, signifies that the goods are conforming or will be accepted despite a nonconformity; or if the buyer fails to make an effective rejection after having a reasonable opportunity to inspect the goods. An acceptance with knowledge of a nonconformity cannot be revoked because of that nonconformity. Furthermore, when a buyer has examined goods before entering into the contract or has refused to examine the goods, there is no implied warranty with respect to defects that the examination should have revealed. JDI was permitted ample time to inspect prior to the deposit becoming nonrefundable, at any time during Cessna's performance of the survey and repair work, and again upon delivery on the day of closing. JDI ordered and paid for the independent inspection undertaken at the Cessna Orlando service center, specified the nature of the inspection to be completed, and relied on that independent process. Instead of sending a mechanic from New World Aviation to personally inspect the aircraft or to monitor the inspection process, JDI relied on Kerr, knowing he was not a mechanic, as well as Wallace. The elements of tortious interference with a contractual relationship are 1 the existence of a contract; 2 the defendants' knowledge of the contract; 3 the defendants' intentional procurement of the contract's breach or interference with the contractual relationship; 4 the absence of any justification or privilege; and 5 damages. Essig, , 544 Fla. According to JDI, the evidence at trial established that Kerr was in fact an agent of Jet at the same time he served as JDI's agent, unbeknownst to JDI, and that Jet thereby interfered with the agency relationship between JDI and Kerr. Mathews, , 62 Fla. Also, where a third party interferes with the agent of another with knowledge that the agent is violating his obligations to the principal, the third party may be held jointly liable with the agent for the secret profits. This joint liability applies unless the third party reasonably believes that the other principal acquiesced in the double employment. Dual agency, therefore, is not prohibited as a matter of law as long as the principals are fully advised and consent. However, to find a dual agency relationship, there must be evidence of control by the principal over the agent. Holman, , 424 n. The court cannot conclude by a preponderance of the evidence at trial that Kerr was in fact acting as Jet's secret agent during the pre-purchase inspection process. Isaacman initially had assumed that the seller would pay Kerr's fee. According to Watkins, aircraft brokerage fees are structured in different ways, depending on the deal; sometimes the buyer pays and other times the commission fee is split between buyer and seller. Here, JDI's attorney, Dulac, instructed Kerr early in the process to first see what fee he could obtain from the seller before asking Isaacman for a commission, which is precisely what Kerr did. There is no evidence that Jet instructed Kerr to keep their fee arrangement a secret. Watkins explained at trial that the broker's fees are usually set forth in the aircraft purchase agreement but that Dulac rejected the idea of including Kerr's fee in the purchase agreement, indicating that Dulac was aware of the arrangement. Dulac's knowledge is appropriately imputed to Isaacman. See generally, Anderson v. Walthal, , 294 Fla. JDI argues that the emails from Watkins, asking Kerr to hold off on showing the buyer Isaacman the December 16 discrepancy list, coupled with the fact that Isaacman did not receive the final December 28 list prior to closing, indicate that Jet exercised some measure of control over Kerr. This is sheer speculation on JDI's part. Isaacman signed the acceptance form on December 19, making the deposit nonrefundable, at the urging of his attorney, Dulac, not Kerr. Isaacman additionally admitted that he saw the intermediate discrepancy list showing all of the problems with the airplane but said he did not see the final list noting that some items were deferred instead of repaired. Watkins explained that his concern with the buyer seeing the December 16 list right away was merely that he knew some of the discrepancies could be cleared up first. Watkins explained that some record-keeping and parts-tracking questions show up as discrepancies initially but can be eliminated after further clarification by the seller, who is more familiar with the aircraft's history and records. Watkins simply wanted time to engage in that validation process prior to the buyer seeing all of the items listed. Witnesses for both JDI and Jet with experience in the pre-purchase inspection process agreed that the validation of noted deficiencies is an ordinary and natural part of the process. By asking Kerr to hold off on showing the December 16 report to Isaacman, Watkins was not thereby exercising control or influence over Kerr but doing his own job to monitor and correct the discrepancies for the seller. The record thus fails to establish that Watkins intended to interfere with Kerr's agency with JDI by causing Kerr to fail to disclose the final report. Additionally, contrary to JDI's contention, there is no evidence that Jet used Kerr to minimize the repair costs. Kerr had no contact with or influence over the Cessna service center mechanics' independent airworthiness determinations, and Kerr's recommendation that Isaacman forego an expensive Phase 1-5 inspection because the process had been performed a few months earlier was reasonable according to the trial experts. For instance, JDI's own expert, Garner, stated that he would have repeated the full inspection only if it had not been completed within the past 12 months, and JDI's expert MacConnell stated the Phase 1-4 is required every 24 months and the Phase 5 inspection every 36 months. Here, Southern had completed the Phase 1-5 less than six months prior to the purchase agreement. Chuck Farney from Cessna admitted that his suggestion of a new Phase 1-5 inspection was simply a routine recommendation. Undoubtedly, it is an expensive inspection that is good for Cessna's business. Based on the evidence, the court is not persuaded that Jet used Kerr to minimize Jet's repair cost or that Jet otherwise interfered with Kerr's fiduciary obligation to his principal. Conspiracy A civil conspiracy requires a showing of 1 an agreement between two or more parties; 2 to do an unlawful act, or a lawful act by unlawful means; 3 an overt act in pursuance of the conspiracy; and 4 damages. Rescission Rescission is a harsh remedy, typically disfavored by the courts. Instruction of Dade County, , 142 Fla. Rescission may be appropriate, however, where there is evidence of fraud, mutual mistake, a false representation, or other ground for rescission; the party seeking to rescind has notified the other party of the rescission; and there is no adequate remedy at law. See Staaldam Beheer B. ASAP Installations, LLC, No. April 28, 2010 slip op. Sam Senter Farms, Inc. The court finds no conduct on the part of Jet amounting to fraud or a false representation that would support rescission of the aircraft purchase agreement, and in any event, an adequate remedy at law exists through a breach of contract claim and damages. Breach of Fiduciary Duty JDI asserts a breach of fiduciary duty by Kerr. The elements of a claim for breach of fiduciary duty are: 1 the existence of a fiduciary duty; 2 breach of that duty; and 3 damages. Eaker, , 353 Fla. A broker or agent owes a fiduciary duty of loyalty. Fraser Yachts, , 1156 7th Cir. Field, , 786 Fla. A broker or agent also owes a fiduciary duty of full disclosure. See Young, 548 So. Self-dealing is inconsistent with a broker's duty to a client. Morgan, , 1294 Fla. Pyms Suchman Real Estate Co. Thus, mere negligence is not sufficient to demonstrate a breach of fiduciary duty. See generally Maliner v. JDI argues that Kerr breached his fiduciary duty as JDI's broker in this transaction by failing to disclose his fee agreement with Jet and failing to disclose material facts of deferred deficiencies in the aircraft in order to complete the transaction to his own financial gain. The facts show that JDI's attorney, Dulac, told Kerr to seek a fee first from the seller, and although Kerr did not directly disclose his agreement with Jet to Isaacman personally, he had been instructed to deal with Dulac and Watkins testified that it was Dulac who did not want the fee arrangement memorialized in the purchase agreement. In fact, according to Isaacman, he initially had understood that Kerr would receive a commission from the seller. Common sense dictates that Kerr would not receive a commission from either party if the transaction was not completed. After making his arrangement with the seller as Dulac had suggested, Kerr did not seek a fee from Isaacman until he saw his potential fee from Jet diminishing by half due to the rising cost of repairs. Although Kerr then asked Isaacman for a large commission without mentioning his arrangement with Jet, the facts do not demonstrate he was engaged in bad faith or self-dealing. The split fee arrangement in this case did not render Kerr a secret agent of Jet or compromise Kerr's loyalties to Isaacman, and there is no evidence that the fee arrangement caused Kerr to exert influence over mechanics contrary to Isaacman's interests. Thus, there was no breach of loyalty from the split-fee arrangement and no resulting damages to JDI. The allegation that Kerr failed to disclose the final discrepancy report from Cessna is more troubling. There is no documentary evidence proving that Kerr or his office forwarded the final report to Dulac, and Isaacman testified that he might not have proceeded with the transaction had he seen the final discrepancy report showing 21 items deferred instead of repaired. However, rejecting the plane at closing on the basis of unrepaired non-airworthy items was not a viable contract option for Isaacman. Kerr believed the report had been sent to them and testified that they did not ask to see it nor did they mention they had not received it on the day of closing. Notably, Dulac, who did not testify at trial, allowed Isaacman to go ahead with the closing without seeing the final report; both Dulac and Isaacman knew the final report existed and had clearly seen the bill for the repairs. Importantly, the court has found that the plane was delivered in an airworthy condition. Under the purchase agreement, Isaacman had no option to walk away from the deal at closing absent the existence of an outstanding airworthiness deficiency. Kerr called Isaacman at closing to inform him of the bald nose tire he discovered, which was the one outstanding item of any airworthy concern on the plane and thus something that could have derailed the entire deal. Thus, Kerr's act of reporting this defect demonstrates good faith on his part and is inconsistent with one trying to close the deal irrespective of Isaacman's best interests. Such negligence does not rise to a breach of fiduciary duty. See Messer, 833 F. Fraud The essential elements of fraud under Florida law are 1 a false statement concerning a specific material fact; 2 the maker's knowledge that the representation is false; 3 an intention that the representation induce another's reliance; and 4 consequent injury to the party who acts in justifiable reliance on the representation. Without justifiable reliance, there can be no actionable fraud. Yamamura, , 1057 Fla. Fraud may be based on either an intentional misrepresentation or an omission of material fact. Bank, , 1146 Fla. A failure to disclose calculated to induce a false belief violates principles of fair dealing and good faith. Davis, , 628 Fla. Davenport, , 953 Fla. Fraud is to be proven by a preponderance of the evidence in a civil action. See Beal Bank, SSB v. Kerr testified that his ordinary practice was to forward all documents to Isaacman and Dulac as a matter of course. He had instructed his assistant Mary Scales to follow this practice and he believed she had, though she could not specifically recall faxing the final report. See David, 656 So. This was to Isaacman's benefit, even though it was not in Kerr's personal interest because it diminished his fee from Jet. Chesser, , 718 Fla. The elements are 1 that the plaintiff conferred a benefit on the defendant, who has knowledge of it; 2 that the defendant voluntarily accepted and retained the benefit; and 3 circumstances exist showing it would be inequitable for the defendant to retain the benefit without paying the plaintiff its value. See Extraordinary Title Servs. Kerr knowingly accepted a broker's fee from JDI; however, because the circumstances demonstrate that he performed valuable services, Kerr was not unjustly enriched by the payment. JDI received an aircraft in airworthy condition upon delivery in conformance with the contract, and Kerr performed services in aid of JDI's purchase by helping to locate the aircraft, aiding in the negotiation of the transaction, and attending the closing. JDI did not enter into a written agreement with Kerr explicitly setting forth the duties or obligations of either party, and the court concludes that the misunderstanding that ensued was attributable not only to Kerr but also to Isaacman's own lack of diligence as well as to the conduct of Isaacman's agent, Dulac, whose knowledge must be imputed to Isaacman. The court concludes there was no unjust enrichment. Beacon Property Mgm't, Inc. FDUTPA is a separate cause of action intended to be an additional remedy, see Fla. Courtesy Pontiac GMC-Truck, Inc. Because the court has concluded that neither Jet nor Kerr engaged in a deceptive or fraudulent practice, this claim fails. La Gorce Country Club, Inc. It is clear that Isaacman did not get what he wanted, i. It is equally clear, however, that he did get what he bargained for, i. The miscommunication does not appear to have been born of fraud, and Dulac's knowledge of Kerr's fee arrangement is properly imputed to JDI. Without expressing any opinion on whether Kerr provided competent aircraft brokerage services to Isaacman, the court concludes there was no conscious intent to mislead, no lack of good faith, and consequently, no breach of fiduciary duty. Accordingly, based upon the law and the evidence presented at trial and duly considered by the court, and in the case of Southern for the reasons stated by the court at trial, it is hereby ordered that final judgment shall be entered in favor of all Defendants and against Plaintiff, with costs taxed against Plaintiff. JDI is a limited liability company existing under the laws of New Jersey and with its principal place of business in New Jersey; Defendant Jet Management, Inc. City of Prichard, , 1209 11th Cir. Miller, Federal Practice and Procedure § 2573. Subsequently, on December 7, 2005, United Bank Card, Inc. The court, therefore, will refer to JDI as the purchaser under the agreement. MacConnell described this as an ongoing inspection to assure the aircraft's safety and integrity as long as it is being used as a charter plane. Certification that an aircraft has undergone a successful and recent Phase 1-5 inspection process ensures the integrity and airworthiness of the aircraft. The evidence shows that Arden Doss of Avion Sales, LLC, was a financial backer of Jet who provided financing for this Cessna Citation 650, which Jet purchased from Flight Options, another aircraft dealer, in July 2005. Jet then deeded the title to Avion, delivered the plane to Southern for the Phase 1-5 inspection, and began searching for a buyer. To close the deal. Avion deeded the aircraft to Jet, and Jet, in turn, deeded the aircraft to JDI. Doss explained by deposition that there is a built-in incentive in this arrangement for Jet to sell the plane quickly because the longer Avion holds the plane and pays the interest, the higher the purchase price necessary for Jet to turn a profit. Let me know how you want to handle your customer. Watkins was apparently willing to permit Kerr to add his own fee on top of Jet's net price if Kerr wanted to. Kerr did not approach Isaacman himself about a commission until December 21, 2005. This document did not identify the buyer, and there is no indication Isaacman was aware of it. As the negotiations continued, it became clear that Isaacman was not interested in purchasing the plane in an as-is condition. If you want to make it new, you can spend a lot of money doing a lot of things. Isaacman stated at trial that he was not concerned about the cost, but obviously this was not clearly understood by either Kerr or Dulac, both of whom negotiated according to the industry standard of airworthiness. Their discussions with Isaacman during the negotiations naturally focused on obtaining the best purchase price. The as-is purchase price would have been lower, but instead, they negotiated for the seller to pay for airworthy discrepancies to satisfy what they believed were Isaacman's concerns. He also agreed that an opinion on airworthiness attests only to the condition of an individual item at that point in time; it could break the next day. Herb Michael, chief inspector at Southern, testified that he had never seen a purchase agreement where the seller was required to fix all items needing repair. He was the customer service representative at Cessna Orlando responsible for communications between the service center and the customer at the time of the inspection. JDI attempted to show that Kerr's intent, as evidenced in this email, was to maximize his own profit by working with Jet to bully the aircraft inspector into marginalizing or minimizing the needed repairs, resulting in JDI unwittingly accepting an aircraft with significant defects. Taken in context with the testimony of Kerr and Watkins, the court finds that the email shows nothing more than mere puffery by Kerr intended at most to convince Watkins to negotiate vigorously with Cessna regarding the labor hours and resulting labor costs required to fix the airworthiness problems. While both Kerr and Watkins had an incentive to minimize labor costs, the court finds this email insufficient to establish a conspiracy between Kerr and Jet to defraud Isaacman, to coerce inspectors, or to cover up airworthy defects. Dulac said that Kerr called him Monday morning and told him that Isaacman was not available but wanted to go with just the airworthiness items being corrected. Isaacman's instruction that he wanted everything fixed but not requesting any renegotiation of the purchase agreement terms was somewhat ambiguous. By this time, the aircraft purchase agreement, expressly requiring the seller to fix only airworthy items, had already been executed and absent a renegotiation, the seller was only obligated to fix airworthy items. Jet would have remained responsible under the purchase agreement only for the cost of repairing items considered to be airworthy. However, this type of parsing the responsibility for the cost of repairs never occurred because of the basic misunderstanding between Isaacman, Dulac, and Kerr about the contract terms. According to Kerr, he did not offer to go to Orlando and instead only offered to be present when he thought the inspection would be at the Newburgh facility. Kerr said he was not asked to personally visit the Orlando facility and that both Isaacman and Dulac were aware that he was not a mechanic. There is no question Isaacman relied on the independent inspection process in making his decision to purchase the plane. Cessna Orlando was a qualified service center with no connection to either party. The court credits Kerr's testimony that he, Dulac and Isaacman agreed that James Wallace of Southern was qualified to attend and monitor the inspection. As noted previously, Isaacman also stood to gain a tax advantage by closing the deal prior to the end of the year. He maintained, however, that this was not a make or break consideration for him. Watkins explained that this email simply expressed his frustration over the validation process. He testified that many issues noted as discrepancies can be cleared up through the process and he wanted to clear up the problems to the extent possible before either Isaacman or his own backer saw the list. Context shows, however, that this reference was not an indication that items were not being disclosed or fixed but rather was an attempt to set a closing date and get the needed repairs finished. The related emails in this exhibit show that the work on the plane was progressing. Kerr and Watkins were attempting to schedule closing for December 23; Kerr was busy contacting Dulac, the bank, and Cessna to set the closing date. This was someone who I saw take charge, and... I appreciated the assistance. When he identified an aircraft I was interested in, I let him take the lead, knowing that I was going to pay some sort of commission at the end. However, Isaacman's email to Kerr in late December clearly indicates that he thought the seller would pay Kerr's commission, and Isaacman admitted in his deposition that he did not have complete faith from day one that Kerr was representing only Isaacman's that is, JDI's interests but Isaacman said he had no reason at the time of closing to think Kerr was acting contrary to his interests. According to Dulac, he and Isaacman had trusted Kerr to monitor the plane's conformity to the contract requirements, and when they asked for the final report on the day of closing, Kerr had assured them that all repairs had been completed. Kerr testified to the contrary at trial that he was not asked for the final report prior to closing, and he assumed Dulac and Isaacman had received it. There was no expert testimony presented at trial regarding the standard commission in the industry for this type of transaction. He also holds an extended certificate for inspection authorization, which allows him to perform annual inspections and complete return-to-service paperwork. MacConnell is currently employed at 26 North Aviation, a company in which Isaacman is an investor. No problems with the door had been reported on the flight from Cessna Orlando to Delaware or during the first few flights after closing. Pilots had complained that the door was stiff to operate but had not complained of the seal. Again, notably, no pilot grounded the plane over this issue. Rich concluded that this was possibly not a problem, or might not have shown up, when the aircraft was in Orlando. The report specifically refers to long-term wear on the main cabin door, but, as noted above, Cessna Newburgh's mechanic did not consider the issues with the door to have rendered the plane unairworthy. The court granted judgment in favor of Southern for the reasons stated on the record during trial. Scanlon was a commercial airline pilot for 25 years. Also, after working as an aircraft engineer for several aviation companies, including Cessna Citations, he began his own aircraft maintenance business, Certified Aviation Services Inc. His company employs 220 mechanics, has 35 airline customers, including commercial airlines. The company performs approximately 7,000 maintenance tasks per month and undergoes FAA mandated audits for quality and workmanship. His company has never been cited for a violation. The economic loss rule applies in two circumstances: 1 when the parties are in contractual privity and one party seeks to recover damages in tort for matters arising from the contract, and 2 when there is a defect in a product that causes damage to the product but no personal injury or damage. However, where there is conduct beyond the breach of contract that rises to the level of an independent tort, then the economic loss rule does not bar the tort claim. Nat'l Reserve Life Ins. JDI's tortious interference claim involves allegations of a secret dual agency and as such the claim presents additional conduct beyond the alleged breach of contract and thus the claim is not barred by the economic loss rule. Construct Corps, LLC, No. Dulac told him it varies by transaction but that it was not like a real estate transaction where the seller always pays the agent. Isaacman testified that he got the message at that point that the responsibility to pay a fee would fall on him, the buyer, in this situation. There is no indication within the record that Dulac advised Isaacman at this timeor at any timethat he had earlier suggested to Kerr that he approach the seller first for his commission.
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