Aerolineas Dominicanas, S. A. v. Brown Aviation Services, Inc., 78-2724

• Decision Date: 06 July 1979
• Docket Number: No. 78-2724,78-2724
• Citation: 598 F.2d 416
• Parties: AEROLINEAS DOMINICANAS, S. A., etc., Plaintiff-Appellant, v. BROWN AVIATION SERVICES, INC., etc., et al., Defendants, Atlas Aircraft Corporation, etc., Defendant-Appellee. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 416

598 F.2d 416

AEROLINEAS DOMINICANAS, S. A., etc., Plaintiff-Appellant, v. BROWN AVIATION SERVICES, INC., etc., et al., Defendants, Atlas Aircraft Corporation, etc., Defendant-Appellee.

No. 78-2724 Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

July 6, 1979.

Peter M. Lopez, Miami, Fla., for plaintiff-appellant.

Aronovitz & Weksler, Bernard B. Weksler, Miami, Fla., for Atlas Aircraft Corp.

Appeal from the United States District Court for the Southern District of Florida.

Before GOLDBERG, RONEY and TJOFLAT, Circuit Judges.

PER CURIAM:

Aerolineas Dominicanas, S.A., appeals from a partial summary judgment granted in this diversity action, which it brought in the Southern District of Florida. Aerolineas charges that one of the three appellees, Brown Aviation Services, Inc., breached a contract with Aerolineas, and that the other two appellees Mr. Garland Brown and the Atlas Aircraft Corp. defrauded Aerolineas and conspired with Brown Aviation to defraud Aerolineas. The contract, according to Aerolineas, called for it to pay Brown Aviation $123,500 in return for a specified airplane, in good mechanical condition and equipped in a certain way, and several accessories. Aerolineas says that when the plane was delivered it was defective and that the accessories were not delivered at all; it says that it had to pay $98,000 to put the plane in the condition in which Brown Aviation was supposed to deliver it. In the meantime, Aerolineas asserts, it had paid Brown Aviation and Garland Brown the $123,500, apparently through a conditional letter of credit. In order to obtain the payment, Aerolineas claims Brown and Brown Aviation had Atlas Aircraft Corporation falsely appraise the airplane; on the basis of that false appraisal, Aerolineas says, the $123,500 was paid to Brown Aviation.

Count I of Aerolineas's complaint charged Brown Aviation with breach of contract and asked for $98,000 compensatory damages. Summary judgment was not granted on Count I and it is not before us. The district court did grant summary judgment on Counts II and III. Those counts claimed damages against, respectively, Garland Brown and Atlas Aircraft, for both fraud and conspiracy to defraud Aerolineas. Count II asked for $119,500 compensatory damages against Garland Brown; Count III asked for $120,000 compensatory damages from Atlas. ¹

At the pretrial conference, Aerolineas's counsel conceded that the damages requested in Counts II and III were excessive. Apparently for this reason alone, the district court granted summary judgment for the defendants on those two counts. This was error. Although Aerolineas's counsel...