Ex Parte The Maintenance Group, Inc.
The Aviation Department, LLC, et al. In re: MARC Transport LLC
Circuit Court, CV-15-901973
PETITION FOR WRIT OF MANDAMUS
Maintenance Group, Inc. ("Maintenance"), petitions
this Court for a writ of mandamus directing the Madison
Circuit Court to enter an order dismissing the claims against
it based on lack of personal jurisdiction. We grant the
petition and issue the writ.
Factual Background and Procedural History
case arises from the sale of an aircraft. In February 2014,
MARC Transport LLC ("MARC"), a Delaware
limited-liability company with its principal place of
business in Georgia, entered into an agreement to purchase a
Hawker Beechjet aircraft ("the aircraft") from
Pelican Bay Equipment Leasing, LLC ("Pelican Bay"),
a Nevada limited-liability company with its principal place
of business in Florida. MARC was assisted in its purchase of
the aircraft by The Aviation Department, LLC
("TAD"), a Delaware limited-liability company with
its principal place of business in Georgia, and TAD's
principal, Timothy Fitch, a resident of Georgia. TAD is an
aircraft-management and flight-services company, and TAD and
MARC had entered into an agreement pursuant to which TAD was
to supply the maintenance, pilot services, flight scheduling,
and storage of an aircraft once one was purchased by MARC.
TAD and Fitch located the aircraft in Fort Myers, Florida,
and undertook to broker the purchase of the aircraft on
MARC's behalf. Pelican Bay retained JetBrokers, Inc.
("JetBrokers"), a Nevada corporation, to represent
it in the sale of the aircraft.
purchase agreement gave MARC the right to conduct a
pre-purchase inspection of the aircraft, which the parties
agreed would be performed by Maintenance at its facility in
Georgia. The inspection identified a list of maintenance
issues, known in the industry as "discrepancies."
Maintenance estimated that it would cost approximately $170,
000 to correct all the discrepancies. Pelican Bay agreed to
correct the discrepancies.
purchase of the aircraft was closed on March 27, 2014, in
Delaware. Pelican Bay flew the aircraft from Florida to
Delaware for delivery. Fitch accepted delivery in Delaware on
MARC's behalf and flew the aircraft to Georgia. Fitch and
TAD then arranged for the aircraft to fly to Huntsville,
Alabama, to transport MARC's officers as the first
passengers following the purchase of the aircraft. The
aircraft has been routinely flown to and from Huntsville
since its purchase.
November 4, 2015, MARC sued Maintenance, TAD, Fitch, and
Pelican Bay in the Madison Circuit Court. The lawsuit alleged
that the discrepancies discovered in the pre-purchase
inspection had not been corrected by Pelican Bay before
closing. MARC asserted claims of breach of contract against
TAD and Pelican Bay and asserted claims of negligence, fraud,
and civil conspiracy against all defendants. The complaint
included the following specific factual allegations:
"9. In or around October of 2013, MARC's affiliate
eLab Consulting Services Inc. ('eLab') entered into a
business relationship with Fitch and/or TAD, to provide
charter aircraft services.
"10. Beginning in or around October of 2013, Fitch
and/or TAD provided charter aircraft services to eLab,
primarily utilizing a Hawker Beechjet aircraft, and many
flights were coordinated between Huntsville, Alabama and
Atlanta, Georgia due to the business operations of eLab and
its affiliated entities.
"11. On or about December 13, 2013, eLab formed MARC for
the purpose of acquiring an aircraft. At the time of this
pleading, MARC is a wholly-owned subsidiary of eLab.
"12. In or around December of 2013, Fitch and/or TAD
attempted to negotiate the sale of a Hawker Beechjet aircraft
previously chartered by eLab for acquisition by MARC;
however, the parties were ultimately unable to reach
agreement on the terms of sale for the aircraft.
"13. Thereafter, Fitch and/or TAD undertook to locate
another Hawker Beechjet aircraft for acquisition by MARC.
"14. Effective January 1, 2014, TAD and MARC entered
into an Aircraft Maintenance Agreement, providing for the
management of MARC's aircraft by TAD, including
maintenance, pilot services, flight scheduling, and storage
of the aircraft, among other aviation services.
"15. On or about February 6, 2014, Fitch and/or TAD
located the subject N848TC [the aircraft] for possible
acquisition by MARC. As of February 6, 2014, [the aircraft]
was owned and operated by Pelican Bay and was purportedly
based at the Page Field airport ... in Fort Myers, Florida.
"16. Upon information and belief, Pelican Bay retained
JetBrokers to represent it in the sale of [the aircraft].
"17. On or about February 10, 2014, Fitch, acting under
the instruction, and/or on behalf, of MARC, contacted
JetBrokers with the intent to negotiate the sale of [the
aircraft] and provided a draft Aircraft Purchase Agreement
and proposed purchase price.
"18. On or about February 11, 2014, JetBrokers responded
to MARC's initial proposal and provided Fitch with a
written acceptance of the proposed purchase price and a
listing of requested revisions for the draft Aircraft
"19. On or about February 14, 2014, MARC and Pelican Bay
executed the final Aircraft Purchase Agreement (the
'Agreement'). ... The terms of the Agreement included
a sales price of $800, 000 and upon payment of an escrow
amount of $100, 000, gave MARC the right to have [the
aircraft] inspected by an aircraft maintenance organization
agreed upon by both parties and listed in the Agreement.
"20. On or about February 14, 2014, MARC, through its
parent corporation eLab, tendered the payment of $100, 000 in
escrow per the terms of the Agreement.
"21. During the course of negotiations of the Agreement,
Fitch and/or TAD recommended that MARC retain [Maintenance]
to perform the pre-purchase aircraft inspection per the terms
of the Agreement. As a result, [Maintenance] was listed in
the Agreement as the entity which would conduct the
"22. MARC agreed to a payment of $19, 000 for
[Maintenance] to perform the pre-purchase aircraft inspection
pursuant to the terms of the Agreement. TAD later included
this $19, 000 amount in an invoice dated April 1, 2014 to
MARC through its parent corporation eLab, noting that it was
for [Maintenance]'s performance of the pre-purchase
"23. Upon information and belief, as of February 14,
2014, [Maintenance] was an FAA-certified Repair Station and
employed aircraft mechanics holding an FAA Airframe &
Powerplant (A&P) certificate.
"24. On or about February 16, 2014, Fitch and/or TAD
arranged for the transport of [the aircraft] from Fort Myers,
Florida to the Peachtree-De[K]alb airport in Chamblee,
Georgia ... to facilitate the pre-purchase aircraft
inspection by [Maintenance].
"25. On or about February 17, 2014, [Maintenance]
undertook to perform the pre-purchase aircraft inspection,
and thereafter on February 27, 2014, provided Fitch with a
pre-closing aircraft inspection report regarding [the
aircraft], including a list of maintenance issues known in
the industry as 'discrepancies'
('Discrepancies'). A copy of the pre-closing aircraft
inspection report (the 'Pre-Closing Inspection
Report') is attached hereto as Exhibit 2, and
incorporated herein by reference. The Pre-Closing Inspection
Report detailed approximately 49 Discrepancies, 41 of which
are listed as affecting the FAA airworthiness status of the
aircraft. The repair or replacement parts listed for
correction of the Discrepancies were either required to
maintain FAA airworthiness or recommended pursuant to the
aircraft maintenance manual and accepted industry practices.
[Maintenance] estimated the cost to correct all Discrepancies
in the Pre-Closing Inspection Report to be approximately
"26. Fitch advised MARC of the Pre-Closing Inspection
Report and the estimated cost of $170, 000.00 for repairs and
replacements. Based upon the number of Discrepancies and cost
to correct them, MARC instructed Fitch to advise Pelican Bay
of the Discrepancies, and to propose a discount of the total
sales price by the estimated $170, 000.00 cost.
"27. Fitch communicated MARC's proposal to discount
the total sales price by the estimated $170, 000.00 cost to
correct the Discrepancies to JetBrokers, who purportedly
advised Pelican Bay.
"28. On March 4, 2014, Fitch advised MARC that Pelican
Bay was unwilling to discount the sales price by the
estimated $170, 000.00 cost to correct the Discrepancies, but
was willing to correct all the items in the Pre-Closing
Inspection Report prior to closing.
"29. In addition, the Agreement provided that Pelican
Bay would be responsible for correcting airworthiness issues
identified in the pre-closing aircraft inspection. As a
result, each of the Discrepancies affecting FAA airworthiness
were again listed as being the responsibility of Pelican Bay
in the Agreement's Appendix B 'Preliminary Acceptance
Certificate' signed and initialed by both parties on
March 4, 2014. ...
"30. Based upon Fitch's affirmative statements to
MARC that Pelican Bay was willing to correct all the noted
Discrepancies in the Pre-Closing Inspection Report prior to
closing, and that the maintenance required would take
approximately ten (10) days to complete, MARC agreed to
proceed with the acquisition of [the aircraft], including
arranging for secured financing for the acquisition.
"31. Based upon statements by Fitch that the maintenance
regarding all noted Discrepancies in the Pre-Closing
Inspection Report had been completed, MARC proceeded with
closing and consummating the acquisition of [the aircraft] on
March 27, 2014, including closing of secured ...