Hidden Brook Air, Inc. v. Thabet Aviation Intern., 99 Civ.11865 CM GAY.
| Decision Date | 31 October 2002 |
| Docket Number | No. 99 Civ.11865 CM GAY.,99 Civ.11865 CM GAY. |
| Citation | 241 F.Supp.2d 246 |
| Parties | HIDDEN BROOK AIR, INC., Plaintiff, v. THABET AVIATION INTERNATIOAL INC., Clermont Levasseur, 161768 Canada Inc., and Raytheon Aircraft Company Defendants. |
| Court | U.S. District Court — Southern District of New York |
Ronald S. Rolfe, Cravath, Swaine & Moore, New York City, for Plaintiff.
Gerald Benvenuto, Traub Eglin Lieberman Straus, Hawthorne, NY, for Defendants.
This case begins with the aborted sale of a "Beach King Air 350" twin-prop airplane, referred to by its serial number FL-165. Plaintiff Hidden Brook Air, Inc. ("Hidden Brook") alleges that defendants Clermont Levasseur and his closely-held corporation, 161768 Canada, Inc. (collectively "Levasseur Defendants") breached a contract to buy FL-165, and that defendant Raytheon Aircraft Corporation ("Raytheon") tortiously induced that breach of contract. The Levasseur Defendants, in turn, counterclaim that it was Hidden Brook, not they, that breached the contract. Hidden Brook moves for summary judgment on all claims, and Raytheon moves for summary judgment on Hidden Brook's tortious interference with contractual relations claim.
For the reasons stated below, I must deny all parties' motions. amenable to summary judgment, however, which should shorten the trial. I also take this opportunity to make several rulings of law that need not await trial.
The following facts are undisputed unless otherwise noted.
Hidden Brook is a corporation that owns and maintains an aircraft for Marshall Field, IV ("Field"). Field is the corporation's President and sole shareholder. Hidden Brook owned and maintained a twin-prop airplane, known by its serial number FL-165, which it had purchased in 1997 from the airplane's manufacturer, Raytheon. In late 1998, Hidden Brook decided to sell FL-165 and acquire a jet to replace it. The corporation hired Robert Abrams ("Abrams"), an individual with experience in the sale and marketing of aircrafts, to help it complete the sale. Abrams advertised the aircraft in several publications and on the Internet.
Defendants Clermont Levasseur and 161768 Canada, Inc. ("Levasseur Defendants") own and maintain various aircrafts. In early 1999, they wanted to purchase a Beech King Air 350. Toward that end, they opened discussions with that model aircraft's manufacturer, Raytheon. More specifically, they began negotiations with William J. Spencer ("Spencer"), a Raytheon sales director, for the purchase of a "New Ultra Quiet Super King Air 350" known by the identification number FL259. On or around June 7,1999, Raytheon offered to sell FL-259 for $5 million. The Levasseur Defendants did not accept the offer.
Raymond Thabet ("Thabet") is the President and sole shareholder of the Canadian corporation Thabet Aviation Some issues are Inc. His corporation locates planes for buyers, prepares the necessary documentation, and if necessary arranges for the importation of the purchased plane into Canada from the United States. Thabet performed such services for the Levasseur Defendants several times prior to the events at the center of this case. In April of 1999, for example, Thabet located an aircraft in Minnesota, arranged for the pre-purchase inspection, opened an escrow account, negotiated with the seller, registered the aircraft in Canada, and purchased the aircraft in his own name on behalf of 161768 Canada, Inc. Thabet was not involved in the Levasseur Defendants' negotiations with Spencer concerning the purchase of FL-259.
In late May 1999, Thabet learned through one of Abrams's advertisements that FL-165 was for sale. He contacted the Levassuer Defendants and told them that he had found a plane they might be interested in purchasing. The Levassuer Defendants told Thabet to gather more information, so he contacted Abrams. Thabet was to receive a $50,000 commission from the Levasseur Defendants if he introduced them to a plane that they ultimately purchased.
After contacting Abrams, Thabet advised "M. Levasseur," by fax dated June 1, that Hidden Brook's asking price was $4.2 million. What was attached to the fax is in dispute. Hidden Brook (based solely on Thabet's testimony) claims that Thabet sent two draft offers to the Levasseur Defendants for them to review, one at a price of $3.95 million and one at $4 million. The Levasseur Defendants contend that they received only the draft offer for $3.95 million.
Except for the price, the two draft offers were not materially different. In particular, both draft offers stated: "WE HEREBY OFFER TO PURCHASE THE AIRCRAFT DESCRIBED BELOW ON BEHALF OF OUR CUSTOMER CLERMONT LEVASSEUR," and included several terms and conditions. They provided, for example, that (1) $200,000 was to be put in escrow upon acceptance of the offer, (2) Hidden Brook was to correct any major deficiency found during an inspection of FL-165, (3) title was to be free and clear of all liens and encumbrances at closing, (4) all original aircraft records were to be handed over with the plane, and (5) the plane was to be delivered with all systems and avionics in good working condition. In addition, the offers stated that "IF THE AIRCRAFT SUCCESSFULLY PASSES THE PREPURCHASE INSPECTION, WILL PURCHASE THE AIRCRAFT."
Hidden Brook claims, again based on Thabet's deposition testimony, that the Levasseur Defendants authorized Thabet to send Hidden Brook the higher offer, for $4 million. Levasseur testified that he authorized Thabet to offer $3.95 million, which was the only offer he knew about. There is no dispute that Levasseur authorized some offer to be sent, or that Thabet sent Hidden Brook the $4 million offer, signed by him and dated June 1. Field ultimately countersigned the offer. He testified the signature on the document was his, although he did not recall signing it.
On June 6, Clermont Levasseur, his wife Therese Levasseur (161768 Canada's Secretary and Treasurer), his son Thomas Levasseur (161768 Canada's Vice-President and pilot), and Thabet flew to Poughkeepsie, New York to take a look at FL165. Field and Abrams were present representing Hidden Brook. The Levasseur Defendants spoke with Field about some of the plane's features and inspected its exterior and interior. Everyone agreed it was in excellent condition. Clermont Levasseur told Abrams he should speak with Thabet to "move the plane." This was the only actual contact between the Levasseur Defendants and Hidden Brook.
The next day, June 7, Thabet sent a fax to "M.C. Levasseur." The fax's cover sheet explained that Thabet had opened a trust account with an escrow agent and that he was preparing a formal purchase contract "similar to what I signed June 1" (i.e. the offer to purchase FL-165) but with four additional terms: (1) delivery of the aircraft to Quebec, (2) the "[t]ransfer of guarantees," (3) inclusion of a "gravel kit" with the plane, and (4) the condition that final payment be made six days "after receiving `export license' document." [Hidden Brook Decl. Ex. 16]
Thabet's fax also contained a copy of a document he had sent to Aero Space Reports, the escrow agent, as well as a copy of the fully executed offer for $4 million, signed by both Thabet and Field. The document sent to the escrow agent also contained the $4 million figure, stating "[t]he price for the aircraft is $4,000,000.00 US." [Hidden Brook Decl. Ex. 16] In addition, it stated, [Hidden Brook Decl. Ex. 16]
Levasseur claims he first saw the $4 million figure when he received this June 7 fax. There is no evidence, however, that he protested, or attempted to retract the offer on the ground that it was not authorized. Indeed, around the time this fax was sent, Thabet, with the Levasseur Defendants' knowledge, took additional steps to culminate the purchase of Hidden Brook's airplane. To induce Hidden Brook to take the plane off the market, Thabet obtained $200,000 from 161768 Canada and wired it to the escrow agent. Thabet also sent a fax to Abrams concerning the four additional terms that he had mentioned in his June 7 fax to the Levasseur Defendants. And on or about June 7, Robert Philpott, a consultant and occasional pilot for Hidden Brook, flew the plane to South Carolina for its formal inspection by Stevens Aviation. The inspection took place on or around June 7-9.
On or about June 11, Thabet faxed Abrams a purchase agreement for FL-165 signed by Thabet (hereinafter "the purchase agreement"). The fax cover sheet stated: [Hidden Brook Decl. Ex. 19] The purchase agreement provided that the purchaser (Thabet Aviation International, Inc.) would pay $4 million for FL-165-an amount that Levasseur had known about since June 7. At some point, Philpott signed the purchase agreement on behalf of Hidden Brook. He testified that he did not remember precisely when he did so, but it was at some time when he was at Stevens Aviation awaiting FL-165's export certification. [Hidden Brook Decl. Ex. 2, Philpott Dep. 37]
At Thabet's request, the purchase agreement contained a term that was not in the offer to purchase. This new term obligated Hidden Brook to pay $50,000 to "the broker designated by the purchaser"who, of course, was Thabet. Hidden Brook was indifferent as between $4 million...
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