Charter Air Center, Inc. v. Miller, 76-1520
| Decision Date | 01 July 1977 |
| Docket Number | No. 76-1520,76-1520 |
| Parties | CHARTER AIR CENTER, INC., a Florida Corporation, and William P. Cousins, Appellants, v. J. Fred MILLER, III, Appellee. |
| Court | Florida District Court of Appeals |
Selig I. Goldin, Goldin & Cates, Gainesville, for appellants.
Daryl J. Brown, Rosin, Abel, Band, Rosin & Brown, Sarasota, for appellee.
Appellants/defendants, Charter Air Center, Inc., and William P. Cousins, appeal a final judgment entered pursuant to a jury verdict awarding appellee/plaintiff, J. Fred Miller, III, $11,000 plus interest compensatory damages and $7,000 punitive damages.
Miller and Charter Air entered into a written contract for sale to Miller of a 1975 Piper airplane with certain specifications. Randolph Dodson, a salesman for Charter Air, conducted all the negotiations with Miller, and Dodson signed the contract for Charter Air. In early June, 1975, Miller delivered an $11,000 check made to Charter Air as down payment for the airplane. On August 1, 1975, Miller cancelled his order and requested the return of his deposit. Cousins, the president and sole stockholder of Charter Air, did not refund the down payment.
Miller subsequently filed a one-count complaint against Charter Air and Cousins seeking compensatory and punitive damages. Pertinent portions of the complaint are:
5) That prior to entering into said written agreement, Defendants and each of them represented to Plaintiff that Defendant, Charter Air Center, Inc., was an authorized and reputable Piper dealer in good standing and capable of ordering from the Piper Aircraft Company the aircraft that is the subject matter of this action, and that the subject aircraft would be promptly ordered as soon as Plaintiff paid the required down payment.
7) That Defendants received the down payment as paid by Plaintiff, but made no effort whatsoever, as of this date, to order the subject aircraft, and that, in fact, Defendant, Charter Air Center, Inc., had previously lost its Piper franchise and was not even capable of ordering the aircraft as of the date of the written agreement.
8) That Defendants and each of them enticed Plaintiff to enter into the subject written agreement and pay the subject down payment, without ever having the capability or intent of ordering the subject aircraft, and with the specific intent of defrauding Plaintiff out of the subject down payment and converting the said down payment to their own uses and purposes.
10) That in breach of the aforementioned written agreement, Defendants and each of them have failed and refused to return to Plaintiff his aforesaid down payment, and have failed and refused to deliver the certain Piper aircraft to Plaintiff within the specified time.
12) That, as a direct and proximate result of the aforementioned fraudulent misrepresentation of Defendants and each of them, Plaintiff has suffered actual damages in the amount of Eleven Thousand Dollars ($11,000.00), plus interest from June 4, 1975, and that Plaintiff is also entitled to recover punitive damages from Defendants and each of them in an amount exceeding Ten Thousand Dollars ($10,000.00).
13) That Plaintiff has performed all conditions precedent to bringing this action and that performance was due to Plaintiff, pursuant to said written agreement, in Sarasota County, Florida.
Cousins and Charter Air answered and filed affirmative defenses and a counterclaim for breach of contract against Miller.
We hold that as a matter of law appellee is not entitled to punitive damages from either Charter Air or Cousins or to compensatory damages from Cousins. Appellants have not raised on appeal the question of whether Charter Air is liable for compensatory damages, and the verdict reached by the jury on this issue will not be disturbed.
It is well established that punitive damages may be properly awarded only where the basis for the action is a tort "which involve(s) ingredients of malice, moral turpitude, or wanton and outrageous disregard of the plaintiff's rights." 9 Fla.Jur. Damages § 119 (1956). Appellee argues in the case before us that he is entitled to punitive damages based on two causes of action in tort: fraudulent representation and conversion. A close reading of the complaint and transcript of the proceedings in light of the applicable case law reveals, however, that appellee has neither specifically alleged nor proved the elements of a cause of action for fraudulent representation or conversion. See Ramel v. Chasebrook Construction Co., 135 So.2d 876 (Fla.2d DCA 1962). The elements of fraudulent representation are: a false statement pertaining to a material fact, knowledge that it is false, intent to induce another to act on it, and injury by acting on the statement. 14 Fla.Jur. Fraud and Deceit (1975). Appellee did not allege nor show that he relied on the allegedly false statement that Charter Air was a Piper dealer and could deliver the airplane. Furthermore, the evidence uncontrovertibly establishes that although Charter Air was not a Piper dealer it had the capability of delivering the airplane ordered by Miller and that it had actively negotiated with both a Piper franchiser and a Piper dealer for delivery of the model airplane ordered by appellee. Therefore, even if appellee had relied on a misrepresentation, he suffered no damages or injury from that reliance. The essential element of conversion is wrongful deprivation of property to a person entitled to possession. Star Fruit Co. v. Eagle Lake Growers, Inc., 160 Fla. 130, 33 So.2d 858 (Fla.1948). Appellee alleged in his complaint that the conversion was accomplished by a wrongful taking of the deposit and by misuse of these funds. Nevertheless conversion has not been established in the case before us since appellee has not shown that he was wrongfully deprived of funds under either of those theories. Appellee admits that he voluntarily paid over the down payment to Charter Air and did not bring out evidence of any act committed by Cousins or by agents of Charter Air which would constitute a wrongful taking. Appellee also failed to introduce any facts to support his allegation that Cousins individually or as an agent for Charter Air converted the down payment by using the funds for his own purpose. Moreover, appellee did not...
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