DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
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
[June 30, 2021]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carol-Lisa Phillips, Judge; L.T. Case No. CACE 09-24341
(25).
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.
2
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.”
3
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 not in breach of any obligation.
In this regard, this case is similar to Edwards v. Landsman,
51 So. 3d
1208 (Fla. 4th DCA 2011), where an automobile dealer brought claims for
replevin and breach of contract against a purchaser of a used vehicle based
upon a conditional sales contract, which required the purchaser to return
the vehicle if not approved for financing. The court issued a prejudgment
writ of replevin, and the dealer recovered the vehicle. The purchaser then
answered and filed a counterclaim for conversion, alleging that she had
completed the purchase and had a right superior to the dealer in the
vehicle. Further, the dealer had wrongfully obtained possession of the
vehicle through its replevin action and through threats to the purchaser
that she would be arrested for theft. The dealer moved to dismiss the
complaint, and the trial court dismissed the conversion count.
On appeal, we concluded that the purchaser could bring a conversion
action to contest a wrongful replevin. We said:
4
Florida law permits a counterclaim for conversion where the
defendant in a replevin action alleges that the replevin was
wrongful even after the trial court grants a prejudgment writ
of replevin. See Int’l Fid. Ins. Co. v. Prestige Rent–A–Car, Inc.,
715 So. 2d 1025, 1029 (Fla. 5th DCA 1998) (“Causes of action
for prejudgment writ of replevin and wrongful replevin are
separate and distinct. Even when a party has employed the
proper procedure in obtaining a prejudgment writ of replevin,
there can still be a subsequent finding that the replevin was
wrongful.”). Although Florida’s replevin statutes provide a
remedy for a defendant who ultimately prevails on a final
judgment after a prejudgment replevin writ had deprived the
defendant of possession throughout the proceedings, the
statutes also provide that they “shall not preclude any other
remedies available under the laws of this state.” §§ 78.20–.21,
Fla. Stat. (2010). Florida case law suggests—and we agree—
that such remedies include a conversion counterclaim to the
replevin action. See Rem–Con Commc’ns, Inc. v. United Am.
Bank of Memphis,
668 So. 2d 320, 321–22 (Fla. 2d DCA 1996)
(reversing a summary judgment against a defendant on a
counterclaim for wrongful repossession/conversion to a
replevin claim); Lease Fin. Corp. v. Nat’l Commuter Airlines,
Inc.,
462 So. 2d 564, 567 (Fla. 3d DCA 1985) (“Thus, [the
defendant] can also take advantage of any remedies available
under . . . general tort law as it exists in this state.”).
Id. at 1213–14. As there were sufficient facts to support the purchaser’s
claim of ownership of the vehicle superior to the dealer and wrongful
replevin of the vehicle by the dealer, we reversed dismissal of the
conversion action.
Similarly, in this case the act of conversion of the aircraft was
independent of the breach of contract, just as the replevin of the vehicle in
Edwards was independent of the conditional sale contract and an
alternative remedy for the dealer’s act of possessing the vehicle. The facts
alleged by appellant are sufficient to show its right of possession, in that
it was not in default of its obligations. It also alleged that the appellee and
the other defendants simply “stole” the jet without any pretense of
authority. This was “[a]n act of willful interference with the personal
property of another which is inconsistent with the rights of the person
entitled to the use, possession or ownership of the property[.]” Seibel v.
Soc’y Lease, Inc.,
969 F. Supp. 713, 718 (M.D. Fla. 1997) (quoting Dairy
5
Farm Leasing Co. v. Haas Livestock Selling Agency, Inc.,
458 N.W. 2d 417,
419 (Minn. App. 1990)).
Appellee relies on Mayo v. Allen,
973 So. 2d 1257 (Fla. 1st DCA 2008)
as supporting the trial court’s decision in this case. In Mayo, the seller of
an RV repossessed the vehicle after the purchaser defaulted. When the
purchasers sued the seller for conversion for the value of personal
belongings in the vehicle plus the value of repairs and the original down
payment they had made, the trial court granted judgment in favor of the
seller, because he had a right to repossess the vehicle upon default by the
purchasers, which was affirmed on appeal. Appellee argues that Mayo
supports summary judgment in this case, because appellant breached
various terms of the LPA. However, no affidavits or record evidence
supports a finding that appellant defaulted on the LPA. Furthermore,
Mayo appears to have been determined upon a full trial and not summary
judgment. Mayo simply provides no support for the summary judgment
in this case.
We also reject the alternative arguments made by appellee. It claims
that we should affirm for lack of a transcript of the summary judgment
hearing. A transcript of a summary judgment hearing is not necessary to
review a summary judgment, as the record consists of the motions and
supporting and opposing papers. See Pash, Tr. of Herbert and Minnie
Pasch Fam. Tr., dated May 12, 1996 v. Mahogany Way Homeowners Ass’n,
Inc.,
310 So. 3d 430, 434 n.1 (Fla. 4th DCA 2021); Shahar v. Green Tree
Servicing LLC,
125 So. 3d 251, 254 (Fla. 4th DCA 2013).
Alternatively, appellee argues that we should affirm because appellant
improperly commingled claims in the conversion count against appellee
and other Whittington defendants. Not only was this never raised in
appellee’s amended motion for summary judgment, but in our review of
the complaint we do not find that it suffers from defects which would allow
us to affirm on a tipsy coachman principle. Moreover, the trial court
determined that the conversion count only applied to appellee. As a result,
any reference to “Whittington defendants” in that count is a reference only
to appellee. We also find no merit in appellee’s estoppel argument.
For these reasons, we reverse the summary judgment and remand for
further proceedings.
LEVINE, C.J., and CIKLIN, J., concur.
* * *
6
Not final until disposition of timely filed motion for rehearing.
7
