Horowitch v. Diamond Aircraft Industries, Inc., 6:06-CV-1703-0rl-19KRS.

• Decision Date: 17 September 2007
• Docket Number: No. 6:06-CV-1703-0rl-19KRS.,6:06-CV-1703-0rl-19KRS.
• Citation: 526 F.Supp.2d 1236
• Parties: Alan HOROWITCH, Plaintiff, v. DIAMOND AIRCRAFT INDUSTRIES, INC., Defendant.
• Court: U.S. District Court — Middle District of Florida

526 F.Supp.2d 1236

Alan HOROWITCH, Plaintiff, v. DIAMOND AIRCRAFT INDUSTRIES, INC., Defendant.

No. 6:06-CV-1703-0rl-19KRS.

United States District Court, M.D. Florida, Orlando Division.

September 17, 2007.

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Christopher Charles Cathcart, Marc P. Ossinsky, Ossinsky & Cathcart, P.A., Winter Park, FL, Jennifer B. Dempsey, William V. Custer, Powell Goldstein, LLP, Atlanta, GA, for Plaintiff.

David C. Schwartz, Chatham, NJ, Hala A. Sandridge, L. Robert Bourgeois, Fowler, White, Boggs & Banker, PA, Tampa, FL, James A. Washburn, Petrina A. Hall, Thomas J. Strueber, McKenna, Long & Aldridge, LLP, Atlanta, GA, for Defendant.

ORDER

PATRICIA C. FAWSETT, Chief Judge.

This case comes before the Court on the following:

1. Dispositive Motion For Partial Summary Judgment And Memorandum Of Law In Support Thereof of Plaintiff Alan Horowitch (Doc. No. 91, filed July 5, 2007);

2. Motion For Summary Judgment And Memorandum Of Law In Support of Defendant Diamond Aircraft Industries, Inc. (Doc. No. 93, filed July 5, 2007) 3. Response To Plaintiffs Summary Judgment Motion of Defendant Diamond Aircraft Industries, Inc. (Doc. No. 98, filed Aug. 6, 2007);

4. Response to Diamond Aircraft Industries, Inc.'s Motion For Summary Judgment And Memorandum Of Law In Support of Plaintiff Alan Horowitch (Doc. No. 100, filed Aug. 17, 2007).

Background

This case comes before the Court on cross motions for summary judgment. Plaintiff Alan Horowitch seeks summary judgment in his favor on Counts I and II of his Second Amended Complaint (Doc. No. 91 at p. 1, filed July 5, 2007), and Defendant Diamond Aircraft Industries, Inc. seeks summary judgment in its favor on all four counts of the Complaint (Doc. No. 93 at p. 1, filed July 5, 2007). Both parties have filed respective oppositions to these motions for summary judgment. (Doc. No. 98, filed Aug. 6, 2007; Doc. No. 100, filed Aug. 17, 2007.)

I. Pleadings

According to Plaintiff, this case arose out of an agreement for Defendant to sell Plaintiff an aircraft. (See Doc. No. 58 at pp. 4-6, ¶¶ 21-29,¹ filed May 25, 2007.) Plaintiff alleges: anticipatory repudiation of an aircraft sales contract and demands specific performance (Count I); or, in the alternative, breach of contract (Count II); breach of the implied covenants of good faith and fair dealing (Count. III); and deceptive trade practices (Count IV). (Id. at pp. 7-13, ¶¶ 137-71.)

Defendant denies all four of Plaintiffs claims. (Doc, No. 45² at pp. 8-14, ¶¶ 30-71, filed Apr. 2, 2007.) Further, Defendant asserts the following affirmative defenses: (1) Plaintiff fails to state a claim upon which relief can be granted under the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"); (2) Plaintiff has contractually waived and released his claims against Diamond Aircraft, except for the return of his deposit in the amount of $20,000; and (3) Plaintiff agreed in the contract that Diamond Aircraft could change the price and specifications without notice. (Id. at pp. 14-15, ¶¶ 1-3.)

II. Material Facts as to Which There Is No Genuine Dispute

Defendant issued a press release in January of 2003, advertising its plans to build a single engine light aircraft known as the D-Jet. (Doc. No. 93 at p. 2; Doc. No. 100-2 at pp. 2-3, ¶ 2.) A copy of this press release was identified by Peter Maurer, President of Diamond Aircraft. (Doc. No. 102-2 at p. 11; Doc. No. 102-3 at pp. 140-41; Doc., No. 102-11 at p. 22.) Defendant issued several other press releases in 2003, (Doc. No. 102-4 at pp. 151-54; Doc. No. 102-11 at pp. 24-25, 27), and included information about the D-Jet on its website (Doc. No. 102-3 at pp. 149-50; Doc. No. 102-11 at p. 23). Defendant projected the D-Jet's first flight in 2004 and initial deliveries to customers in 2006. (Doc. No. 93 at pp. 2-3; Doc. No. 100-2 at p. 3, ¶ 3.) Defendant's projected price target at this time for the D-Jet was under one million dollars. (Doc. No. 92-19 at p. 4.)

On March 17, 2003, Plaintiff signed a two-page document entitled "Aircraft and Accessories Price List and Order Form," attached to Plaintiff's Second Amended Complaint as Exhibit "A." (Doc. No. 93 at p. 3; Doc. No. 100-2 at p. 3, ¶ 4.) On March 17, 2003, Plaintiff faxed this agreement and a letter to Defendant. (Doc. No. 93 at pp. 3-4; Doc. No. 100-2 at p. 6, ¶ 14; Doe. No. 101-2 at pp. 47-48; Doc. No. 101-7 at p. 4.) At the time that Plaintiff signed the contract, the D-Jet was still in the process of being developed by Defendant. (Doc. No. 93 at p. 3; Doc. No. 100-2 at p. 4, ¶ 6.)

Pursuant to the contract, Plaintiff paid to Defendant a deposit of $20,000. (Doc. No. 93 at p. 3, Doc. No. 100-2 at p. 5, ¶ 13.) After receiving this deposit, Defendant assigned Plaintiff the fourth North American delivery position for the D-Jet. (Doc. No. 93 at p. 4; Doc. No. 100-2 at p. 6, ¶ 16.) Defendant signed and returned the contract to Plaintiff in June 2004. (Doc. No. 93 at p. 4; Doc. No. 100-2 at p. 7, ¶ 17.) Defendant also sent Plaintiff a confirmation letter on June 14, 2004. (Doc. No. 58 at p. 5, ¶ 27; Doc. No. 45 at p. 7, ¶ 27; Doc. No. 58-3 at p. 2.)

From mid-2003 to mid-2005, Defendant's European affiliate worked to develop the D-Jet from its original concept, selecting an engine and avionics system for the D-Jet. (Doc. No. 93 at p. 4; Doc, No. 100-2 at p. 7, ¶ 18.) On January 14, 2005, Jeff Owen, formerly an Executive Vice-President and Sales Manager at Diamond Aircraft, (Doc. No. 102-19 at pp. 13-15), sent an internal information bulletin to Defendant's distribution centers. (Doc. No. 102-3 at pp. 125-26; Doc. No. 102-20 at pp. 84-85; Doc. No. 102-11 at p. 20.) This memorandum indicated that the JET pricing was "currently undergoing review" and stated that "Din the interim, and from this date, Diamond will only accept orders for DA42 and D-JET delivery positions conditional on the new price being applicable to the order." (Doc. No. 102-11 at p. 20.) Then on March 31, 2006, Defendant sent another internal information bulletin to its distribution centers. (Doc. No. 102-3 at pp. 136-37; Doc. No. 102-21 at pp. 112-13; Doc. No. 102-11 at p. 21.) This bulletin, stated, "Effective immediately, Diamond will no longer accept D-Jet order position reservations on the currently published forms." (Doc. No. 102-11 at p. 21.) The bulletin continued to say that new order documentation would be revised and published soon and that: Diamond would maintain a log of customers wishing to place an order for the D-Jet. (Id.)

After finalizing the specific options to be included in the D-Jet, Defendant announced a price of $1.38 million in July 2006. (Doc. No. 93 at p. 5; Doc. No. 100-2 at pp. 9-10, ¶ 25.) On August 31, 2006, Defendant sent to Plaintiff and its other deposit holders a letter outlining the pricing and changes to the aircraft. (Doc. No. 93 at p. 5; Doc. No. 100-2 at p. 10, ¶ 26; Doc. No. 58-4 at pp. 2-6.) In this letter, Defendant explained that Plaintiff could maintain his delivery position for a D-Jet priced at $1.38 million by signing the accompanying documentation or recover his deposit of $20,000 and relinquish his delivery position. (Doc. No. 93 at p. 5; Doc. No. 100-2 at p. 10, ¶ 27; Doc. No. 102-13 at pp. 6-28.) Plaintiff declined to enter into this agreement. (Doc. No. 93 at p. 5; Doc. No. 100-2 at p. 10, ¶ 28.) Instead, Plaintiff brought suit against Defendant, alleging breach of contract and deceptive trade practices. (Doc. No. 93 at p. 5; Doc. No. 100-2 at pp. 10-11, ¶¶ 29-30.)

Standard of Review

A party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is only appropriate when "the evidence is such that a reasonable jury could [not] return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The moving party has the burden of proving that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In determining whether the moving party has satisfied its burden, the court considers all inferences drawn from the underlying facts in the light most favorable to the party opposing the motion and resolves all reasonable doubts against the moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. The court may not weigh conflicting evidence or weigh the credibility of the parties. Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 919 (11th Cir. 1993). If a reasonable fact finder could draw more than one inference from the facts and that inference creates an issue of material fact, a court must not grant summary judgment. Id.

Analysis

Both Plaintiff and Defendant have moved for summary judgment on the breach of contract issue,³ and Defendant has moved for summary judgment also on the issues of breach of the implied covenants of good faith and fair dealing, appropriate remedies, and deceptive trade practices. (See Doc. No. 91 at p. 1; Doc. No. 93 at p. 1.)

I. Breach of Contract

A. Applicable Law

Jurisdiction in this case is premised on diversity citizenship. (Doc. No. 58 at p. 1, ¶ 2; Doc. No. 45 at p. 2, ¶ 2.) The Court must therefore apply state substantive law to Plaintiffs breach of contract claim. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Because the parties have agreed that Florida law governs the instant dispute, the Court applies Florida law to interpret the contract without conducting its own choice of law analysis. (See Doc. No. 58-2 at p. 3, ¶ 12; Doc. No. 91 at p. 14 & n. 6; Doc. No. 93 at p. 6 (citing Florida law)); see also Roger Kennedy Constr., Inc. v. Amerisure Ins. Co., No....