United States District Court, N.D. Alabama, Western Division
MEMORANDUM OPINION  AND ORDER
H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE
October 24 2016, Plaintiffs Randy Bowman
(“Bowman”) and Skyland Aviation, Inc.
“Plaintiffs”) filed an amended complaint
asserting the following claims against Defendants Hodge
Management Group, LLC (“Hodge Mgmt.”), Jerry
Hodge (“Hodge”), Bank of America, N.A.
(“BOA”), Air Bear, Inc. (“Air Bear”),
Bryan Danial (“Daniel”) and Banc of America
Leasing & Capital, LLC (“BALCAP”)
(collectively, “Defendants): (1) quantum meruit/implied
contract, (2) unjust enrichment, (3) fraudulent
misrepresentation/suppression, (4) breach of warranty of
authority, (5) intentional interference with business
relations, (6) conspiracy. (Doc. 28). Defendants move for
summary judgment pursuant to Federal Rule of Civil Procedure
56, arguing there is no genuine issue of material fact and
Defendants are entitled to judgment as a matter of law. (Doc.
39). Additionally, Bowman moves pursuant Rule 56, for an
order granting partial summary judgment in his favor as to
Defendants Hodge and Air Bear's lability on Count 1 for
quantum meruit/implied contract. (Doc. 42). The motions are
fully briefed and ripe for review. (Docs. 39-43, 47-50). As
explained more fully below, Bowman's motion for summary
judgment (doc 42) is DENIED; Defendants'
motion for summary judgment (doc. 39) is GRANTED IN
PART AND DENIED IN PART.
Standard of Review
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Rule 56
“mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 447 U.S. 317, 322 (1986).
The moving party bears the initial burden of proving the
absence of a genuine issue of material fact. Id. at
323. The burden then shifts to the nonmoving party, who is
required to “go beyond the pleadings” to
establish there is a “genuine issue for trial.”
Id. at 324. (citation and internal quotation marks
omitted). A dispute about a material fact is genuine
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Court must construe the evidence and all reasonable
inferences arising from it in the light most favorable to the
non-moving party. Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157, (1970); see also Anderson, 477
U.S. at 255 (all justifiable inferences must be drawn in the
non-moving party's favor). Any factual disputes will be
resolved in Plaintiff's favor when sufficient competent
evidence supports Plaintiff's version of the disputed
facts. See Pace v. Capobianco, 283 F.3d 1275,
1276-78 (11th Cir. 2002) (a court is not required to resolve
disputes in the non-moving party's favor when that
party's version of the events is supported by
insufficient evidence). However, “mere conclusions and
unsupported factual allegations are legally insufficient to
defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per
curiam) (citing Bald Mtn. Park, Ltd. v. Oliver, 836
F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere
‘scintilla' of evidence supporting the opposing
party's position will not suffice; there must be enough
of a showing that the jury could reasonably find for that
party.” Walker v. Darby, 911 F.2d 1573, 1577
(11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
applicable Rule 56 standard is not affected by the filing of
cross-motions for summary judgment. See Gerling Global
Reinsurance Corp. of Am. v. Gallagher, 267 F.3d 1228,
1233 (11th Cir. 2001). Indeed, the Eleventh Circuit has
explained that “[c]ross-motions for summary judgment
will not, in themselves, warrant the court in granting
summary judgment unless one of the parties is entitled to
judgment as a matter of law on facts that are not genuinely
disputed.” United States v. Oakley, 744 F.2d
1553, 1555 (11th Cir.1984) (citation omitted).
Summary Judgment Facts
Air Bear, Inc.'s Corporate Structure
Bear, Inc. (“Air Bear”) is a corporation whose
purpose is to own airplanes. (Doc. 43-1 at 23 (85:13-15)).
Air Bear is part of a series of companies owned and/or
controlled by Jerry Hodge, including Hodge Management Group,
LLC that hires employees and Jerry Hodge Investment, LLC that
leases the airplanes. (Id. (86:3-7)). Hodge also
owns Air Bear and serves as Chairman of its Board of
Directors. (id. (85:8-8, 88:16-18)). Hodge is Air
Bear's President and has authority to sign contracts on
its behalf. (Id.at 13, 22 (47:10-14, 82:15-16)).
Daniel is Air Bear's Chief Pilot and has been since
approximately April 2014. (Doc. 43-1 at 12 (41:9-17)).
Daniel's duties included, among other things, piloting
Air Bear's airplanes and overseeing their maintenance,
scheduling, and cleaning. (Doc. 41-5 at 13 (46:5-14)). Daniel
occasionally receives correspondence addressed to Air Bear.
(Doc. 41-3 at 35 (133:15-22)). Further, Daniel is involved in
Air Bear's purchases and sales of aircrafts -
specifically the gathering of information. (Doc. 41-5 at
13-14 (47:4-6; 48:2-6; 48:20-49:20)). For example, when Air
Bear wants to purchase or sell an aircraft, Hodge and Daniel
discuss the aircraft's price, condition, and maintenance.
(Id. at 14 (50:12-17)). Daniel also communicates
with brokers representing aircrafts that Air Bear may want to
purchase or sell, (id.at 14, 16 (50:18-22; 51:8-12;
57:14-58:6)), and occasionally provides Hodge with aircraft
listings and similar information he (Daniel) believes Air
Bear should see or may be interested in, (doc. 41-3 at 10-11,
13 (36:15-37-6; 39:19-21; 40:10-15; 40:16-41:2; 45:13-19)).
Hodge is “ultimately in charge” of Air Bear's
aircraft transactions and oversees Daniel's performance
as Chief Pilot. (Doc. 41-3 at 17, 20. 33-34 (62:1-4;
75:11-13; 127:22-128:1; 128:18-129:11).
Air Bear, Inc.'s Introduction to Randy Bowman
Bowman (“Bowman”) has worked in the aircraft
sales industry for over thirty years. (Doc. 41-4 at 8
(27:21-28:10)). During that time, Bowman has been involved in
approximately seventy transactions for both buyers and
sellers. (Id. at 9 (32:1-6)). Early in his career as
a paid employee of Jet East, Bowman would flip airplanes for
a profit and get paid a percentage from the gross of the
sale. (Doc. 41-4 at 9 (31:1-32:6)). Bowman did this about
sixty times during his career. (Id.). Of those sixty
transactions, Bowman was never paid for helping his employer
purchase an aircraft. (Id. at 10 (34:1-4)). Outside
of acting as a retained employee, Bowman has only acted as a
broker for two other transactions: the King Air, discussed
below, and a citation Bravo. (Doc. 41-4 at 14 (49:21-50:6)).
For the Citation, he had an acquisition agreement with his
client that entitled him to a $35, 000.00 commission if the
plane sold. (Id.at 16 (58:9-59:13)). Prior to the
King Air transactions, Bowman had not been involved in any
aircraft deals since 2005. (Id. at 25 (96:4-9)). At
his deposition, Bowman was unable to identify a specific time
where he acted as a buyer's broker and was paid a
percentage of the sale price as his commission. (Doc. 41-4 at
2012, Bowman assisted in an aircraft purchase transaction
involving Hodge, Daniel, and Air Bear. (Doc. 41-5 at 6
(18:3-16)). Specifically, Bowman assisted Express Jets, the
broker who represented the seller of a King Air C-90 (the
“King Air”) that Air Bear purchased on or about
November 5, 2012. (Doc. 41-5 at 8-9 (28:12-29:11); doc. 41-4
at 14-15 (52:22-53:19)). Daniel testified that since Bowman
sold Air Bear the King Air in 2012, he (Daniel) understood
Bowman is an aircraft broker. (Doc. 41-3 at 6 (17:3-10)).
to relates to this transaction, around the end of the summer
of 2012, Daniel was instructed to inquire about Air Bear
purchasing the King Air. (Doc. 41-3 at 15 (18-23)).
Thereafter, Daniel contacted Bowman about Air Bear purchasing
the King Air and (at Hodge's request) relayed Hodge's
belief that the aircraft was overpriced. (Id. at
15-16 (55:22-56:19; 56:23-57:2)). During this time, Daniel
forwarded Hodge information and communications he received
from Bowman. (See doc. 31-1 at 184-187). Bowman is
referred to as a “broker” in at least one of
these communications with Hodge. (See id.; doc. 41-3
at 15 (53:9-14)). Although Hodge did not remember sending the
Letter of Intent to Bowman (because he likely gave it to his
in-house counsel to handle), Hodge testified he should have
known Bowman's role in the King Air purchase. (Doc. 41-5
at 9 (29:4-23)).
of Air Bear's purchase of the King Air, Daniel and Hodge
received a document titled “Seller's Disbursement
Instruction's” that specifies $ 30, 000.00 is to be
paid to Express Jets (the seller's broker). (Doc. 41-3 at
189; doc. 41-4 at 19 (70:22-71:9)). Bowman, working for
Express Jets, was paid a commission (part of the $ 30,
000.00) resulting from Air Bear's purchase of the King
Air. (Doc. 41-4 at 15 (53:20-54:5)). Daniel knew this, and
Hodge assumed the individual working for Express Jets would
be paid a commission. (Doc. 41-3 at 19: (69:10-19; 70:2-8);
doc. 41-5 at 6, 9 (19:1-23; 31:21-32:1)). Daniel also
testified that it is typical for a broker representing a
seller or buyer to receive a commission. (Doc. 43-1 at 22
(82:16-84:8)). Although Daniel and Bowman discussed numerous
aspects of the King Air transaction, Air Bear never paid a
commission to Bowman for the purchase of the King Air. (Doc.
41-5 at 6 (19:1-7)). Bowman's commission for the King Air
was entirely as a seller's broker and paid entirely by
Bull Mountain Aviation, the seller. (Doc. 41-4 at 27-28
Air Bear purchased the King Air, Bowman and Daniel maintained
a friendly, professional relationship to discuss the aircraft
market and the future needs of Hodge and Air Bear. (Doc. 41-4
at 22 (83:16-23; 84:1-11); doc. 43-1 at 38 (147:4-148:3)).
When Bowman asked, Daniel told Bowman it was acceptable for
him to forward information about aircrafts listed for sale,
which Bowman did on multiple occasions. (Doc. 41-3 at 40
(154:9-17); see e.g., doc. 41-3 at 203-210). Daniel
occasionally requested follow-up information from Bowman
about these aircrafts, (doc. 41-3 at 40-41 (156:12-157:12;
159:16-19), and Bowman generally responded to Daniel's
request for information, (doc. id. at 42
The BOA Challenger 300
became interested in purchasing a Bombardier Challenger 300
when he toured one his friend owned. (Doc. 41-5 at 18
(67:1-68:6)). Hodge liked the aircraft's headroom,
spacious bathrooms, and flight range. (Id.
(68:7-19)). Hodge told Daniel to send him information
regarding Challenger 300s for sale. (Id. (67:7-11)).
2014, BALCAP owned and marketed for sale a private business
jet aircraft known as a Bombardier Challenger 300, serial
number 20121 (the “BOA Challenger 300” or
“Aircraft”). (Doc. 41-1 at 2). To market the
Aircraft, BALCAP retained Leading Edge Aviation Solutions
(“LEAS”) as its exclusive agent. (Id;
doc. 41-2 at 27-30).
December 1, 2014, Bowman emailed Daniel listing information
for the BOA Challenger 300. (Doc. 41-3 at 214-221). At the
time, Air Bear was not looking for a larger aircraft.
(Id. at 44 (169:4-18)). Bowman's email was the
first time Air Bear, Hodge, and Daniel learned of the
Challenger 300. (Id. at 43-44 (168:22-169:3)).
Daniel forwarded Bowman's email regarding the BOA
Challenger 300 to Hodge and stated that the “broker on
our king air sends me these deals on planes that he thinks
are steals every now and again.” (Doc. 41-3 at 222).
addition to the listing for the BOA Challenger 300, Bowman
sent Daniel three other listings for Challenger 300s. (Doc.
41-3 at 36 (138:16-139:23)). Two of the three other listings
could be considered “comparables.” (Id.
at 36-37 (139:4-141:3). The third listing was not considered
a comparable because of its high total flight hours, but
nevertheless provided some evidence of the Challenger 300
market. (Id. at 36-37 (140:1-141:1)).
requested additional information regarding some of the
Challenger 300 listings Bowman provided, including:
o On January 14, 2015, Bowman emailed Daniel a listing for a
2004 Challenger 300 (i.e., the one that was not a
comparable). (Doc. 41-3 at 223). In an emailed response,
Daniel asked if the aircraft had damage history and why it
was so cheap. (Id.). Bowman explained, via email,
that there was no known damage, but that it had an earlier
serial number. (Id.).
o On March 16, 2015, Daniel responded to an email from Bowman
and requested Bowman “[s]end [him] the 300 stuff
again.” (Doc. 41-3 at 232). Bowman responded,
“will do” and sent Daniel the information ...