LOSALunlimited, LLC v. Southern Aircraft Sales et al

Filing 65

MEMORANDUM OPINION AND ORDER GRANTING defendants Southern Aircraft Sales and Sid Hall's 45 Motion for summary judgment. Signed by Honorable William Keith Watkins on 10/24/08. (Attachments: # 1 civil appeals checklist)(djy, )

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION L O S A L Unlimited, LLC, P l a in tif f , v. S O U T H E R N AIRCRAFT SALES, et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) ) C A S E NO. 3:05-CV-1144-WKW M E M O R A N D U M OPINION AND ORDER B e f o re the court is Defendants Southern Aircraft Sales and Sid Hall's Motion for S u m m ary Judgment (Doc. # 45), which is accompanied by a brief and an evidentiary s u b m is s io n (Doc. # 46). Plaintiff LOSAL Unlimited, LLC, filed a Submission in Opposition to Summary Judgment Motion (Doc. # 50), which includes a brief and evidence.1 After c a re f u l consideration of the arguments of counsel, the relevant law and the record as a whole, th e court finds that Defendants' Motion for Summary Judgment is due to be granted. I. JURISDICTION AND VENUE T h e court properly exercises subject matter jurisdiction over this action pursuant to 2 8 U.S.C. 1332(a). The parties do not contest personal jurisdiction or venue, and the court f in d s adequate allegations of each. The court refers to Plaintiff as "LOSAL," and to Defendants individually as "Southern Aircraft" and "Mr. Hall" and collectively as "Defendants." 1 I I . STANDARD OF REVIEW S u m m a ry judgment should be granted only "if the pleadings, the discovery and d is c lo s u re materials on file, and any affidavits show that there is no genuine issue as to any m a te ria l fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 5 6 (c ). Under Rule 56, the moving party "always bears the initial responsibility of informing th e district court of the basis for its motion." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1 9 8 6 ). "[T]he court must view all evidence and make all reasonable inferences in favor of th e party opposing summary judgment." Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1 9 9 5 ). The movant can meet this burden by presenting evidence showing there is no genuine is s u e of material fact, or by showing that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. C e lo te x Corp., 477 U.S. at 322-23. O n c e the moving party has met its burden, "an opposing party may not rely merely on a lle g a tio n s or denials in its own pleading; rather, its response must by affidavits or as o th e rw is e provided in this rule set out specific facts showing a genuine issue for trial." F ed . R. Civ. P. 56(e)(2). To avoid summary judgment, the nonmoving party "must do more th a n simply show that there is some metaphysical doubt as to the material facts." Matsushita E le c . Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A genuine factual dispute e x is ts if "a reasonable jury could return a verdict for the non-moving party." Damon v. F le m in g Supermarkets, Inc., 196 F.3d 1354, 1358 (11th Cir. 1999) (internal quotation marks 2 an d citation omitted). After the nonmoving party has responded to the motion for summary ju d g m e n t, the court must grant summary judgment if there is no genuine issue of material fa ct and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). I I I . BACKGROUND A . Facts V ie w e d in the light most favorable to LOSAL, the facts material to resolution of the s u m m a ry judgment motion are as follows.2 This case arises out of LOSAL's purchase of a 1 9 7 6 Beechcraft Sundowner aircraft from Defendants. Patrick J. Salatto III ("Mr. Salatto") a n d Joseph F. Lovvorn ("Mr. Lovvorn") are the sole owners and principals of LOSAL. (S a la tto Aff. at 1 (Ex. to Pl. Summ. J. Resp.).) While completing their training to receive p riv a te pilot certificates from the Federal Aviation Administration ("FAA"), Mr. Salatto and M r. Lovvorn formed LOSAL for the purpose of purchasing an aircraft. (Salatto Aff. at 1.) M r . Salatto and Mr. Lovvorn's search for an aircraft led them to Southern Aircraft, a business w h ic h buys and sells aircrafts. (Salatto Aff. at 1; Hall Aff. at 1 (Ex. to Defs. Summ. J. Br.).) S o u thern Aircraft's sole shareholder is Mr. Hall. (Hall Aff. at 1.) Mr. Salatto had several telephone conversations with Mr. Hall regarding the purchase o f a Beechcraft Sundowner aircraft, a type of aircraft with which Mr. Hall claimed a "An issue of fact is `material' if, under the applicable substantive law, it might affect the outcome of the case." Hickson Corp. v. Northern Crossarm Co., 357 F.3d 1256, 1259 (11th Cir. 2004). Evidence relied upon by the parties, but omitted from this section, either is not material or, as the court forewarned in a prior Order, is not "admissible on its face," cannot "be reduced to admissible form" or does not comply with Federal Rule of Civil Procedure 56(e). (Order at 1 (Doc. # 64).) 2 3 " p a rtic u la r expertise." (Salatto Aff. at 1.) Mr. Salatto, along with Mr. Lovvorn, also met w ith Mr. Hall at Southern Aircraft on at least two occasions. On the second occasion, Mr. S a la tto and Mr. Lovvorn decided to purchase the aircraft at issue, contingent upon a fa v o rab le "pre-buy inspection." (Salatto Aff. at 2.) Mr. Hall told Mr. Salatto and Mr. L o v v o rn that they should "[l]et [his] guy," Luther E. Herndon ("Mr. Herndon"), perform the p re -b u y inspection.3 (Salatto Aff. at 2; Salatto Dep. at 51-52 (Ex. to Pl. Summ. J. Resp.); see a ls o Pl. Summ. J. Resp. at 2-3.) Mr. Salatto and Mr. Lovvorn agreed. Mr. Herndon reported that the aircraft was in good condition and was airworthy.4 (Salatto Aff. at 2.) B a se d on Mr. Herndon's inspection, Mr. Salatto and Mr. Lovvorn entered into an A i r c r a f t Purchase Order with Southern Aircraft to buy the 1976 Beech C23, Registration n u m b e r N9185S, Serial Number M1799, for $56,750. On July 29, 2002, Mr. Hall executed the Aircraft Purchase Order on behalf of Southern Aircraft, and, on August 1, 2002, Mr. S a la tto , as a member of LOSAL, executed the purchase order on behalf of LOSAL. (See A ircra ft Purchase Order (Ex. A to Defs. Summ. J. Br.).) Shortly after purchase, the aircraft was delivered to LOSAL at the Auburn Airport. (S a la tto Aff. at 2; Salatto Dep. at 47.) During their ownership of the aircraft, Mr. Salatto and Defendants dispute that Mr. Herndon worked for or was associated with Southern Aircraft (see Hall Aff. at 2), but, for present purposes, the court credits LOSAL's facts. As provided in the Federal Air Regulations ("FARs"), "[t]he owner or operator of an aircraft is primarily responsible for maintaining that aircraft in an airworthy condition." 14 C.F.R. 91.403; (Defs. Summ. J. Br. at 4.) Although the parties have not cited the FAR which defines "airworthy," that term is defined in 14 C.F.R. 3.5(a) as an aircraft which "conforms to its type design and is in a condition for safe operation." 4 3 4 M r. Lovvorn stored it in Auburn, Alabama, in a hanger "shielded from the elements." (S alatto Aff. at 2.) Airframe and engine logs accompanied the aircraft at the time of purchase.5 In an e n try dated May 28, 2002, an FAA-certified airframe and powerplant technician detailed a m a jo r overhaul of both the airframe and the engine. (Exs. C & D to Defs. Summ. J. Br.; D e f s. Summ. J. Br. at 5 n.2.) In the airframe log, the technician certified that "this aircraft h a s been inspected in accordance with a 100[-hour] inspection and was determined to be in a n airworthy condition." (Ex. C to Defs. Summ. J. Br.) In the engine log, the technician m ad e an identical entry as to airworthiness. (Ex. D to Defs. Summ. J. Br.) The next entry in both logs, dated June 10, 2002, which was entered by a different technician, records that th e engine and aircraft were inspected in accordance with the FAA's required annual in s p e c tio n with no defects noted and with approval for "return to service." (Exs. C & D to Defs. Summ. J. Br.) After LOSAL's purchase of the aircraft, Mr. Herndon performed two additional in s p e c t io n s on the aircraft, the results of which are recorded in the airframe and engine logs. F irs t, on March 24, 2003, he performed an annual inspection on the aircraft and determined th e aircraft to be airworthy. (Exs. C & D to Defs. Summ. J. Br.) Second, on September 18, 2 0 0 3 , Mr. Herndon performed a 100-hour inspection on both the airframe and the engine. As pointed out by Defendants, the aviation industry is governed by the FAA, and "virtually every aspect of aviation" is covered by the FARs, which are located principally at 14 C.F.R. 43 and 14 C.F.R. 91. (Defs. Summ. J. Br. at 4.) An aircraft's logs are an essential part of the FAA's governance of the aviation industry. 5 5 A t the conclusion of his inspection, Mr. Herndon certified that both the airframe and the en g ine were airworthy. (Exs. C & D to Defs. Summ. J. Br.) On January 31, 2004, Mr. Lovvorn was flying the aircraft. As he was approaching the A u b u rn Airport, Mr. Lovvorn detected oil blowing on the windshield. (Lovvorn Dep. a t 47-48.) After landing the aircraft, he obtained the services of Auburn University Aviation to determine the source of the oil leak, and one of its technicians, Paul Polhemus ("Mr. P o lh e m u s" ), located a crack in the engine case. (Lovvorn Dep. at 49-50.) Subsequently, in c o n n e ctio n with the work being performed on the aircraft by Auburn University Aviation, M r. Polhemus, an FAA-certified airframe and powerplant and inspection authorization tec h n icia n , prepared a report dated August 8, 2005, in which he documented problems with c o rro s io n , some of it extensive, on various components of the aircraft's airframe, including th e right wing, right fuel tank cap and lip, firewall, tail section, and cabin side panels. (Ex. E to Defs. Summ. J. Br.) In a later-filed affidavit, Mr. Polhemus attests that, based on the " c ra c k ed engine case" and the other problems he identified with the airframe, "[t]he aircraft w a s not airworthy as of that date, i.e., August 8, 2005." (Polhemus Aff. 3, 5 (Ex. F to Defs. Summ. J. Br.).) He says, however, that, "[w]ith regard to the engine's cracked case, [ h e ] ha[s] no opinion as to whether any problems with the engine would have existed in or a b o u t August 2002 which may have led to the cracked case or which would have rendered th e aircraft not airworthy." (Polhemus Aff. 6.) Also, "[w]ith regard to the various p ro b le m s of the airframe" listed in his report, Mr. Polhemus "ha[s] no opinion as to whether 6 th e problems . . . would have existed in or about August 2002 to such an extent as to render the aircraft not airworthy at that time." (Polhemus Aff. 7.) B. Relevant Procedural History A f te r incurring substantial expense for the repair of the aircraft's engine,6 LOSAL c o m m e n c e d this litigation on December 2, 2005. It twice has amended the complaint, most re c e n tly on June 22, 2007. The Third Amended Complaint, which is the operative complaint, s e ts forth four causes of action for (1) fraud and suppression (Count One), (2) breach of c o n tra c t (Count Two), (3) breach of express and implied warranties (Count Three), and (4) n eg lig en ce or wantonness (Count Four). (3d Am. Compl. (Doc. # 26).) Defendants are n a m e d in all counts.7 The crux of Count One is that Defendants intentionally misrepresented " to [LOSAL] that the aircraft was airworthy, had just received a complete engine overhaul, a n d had been subject to and passed a recent annual inspection," (3d Am. Compl. 4), and th a t they "fraudulently concealed" the condition of the aircraft "by providing [LOSAL] with a false annual inspection report dated September 23, 2003" (3d Am. Compl. 7). In Counts T w o and Three, LOSAL alleges that Defendants breached the purchase contract and express w a rra n tie s by selling to LOSAL an aircraft that "did not conform to the description provided b y [them]," that description again being that the "aircraft was airworthy, had recently Repairs to the engine totaled $16,000. (Pl. Summ. J. Resp. at 5-6.) The airframe, however, has not been repaired because Mr. Salatto and Mr. Lovvorn considered the repairs to be cost prohibitive. (Salatto Dep. at 81-82.) Consequently, the overhauled engine has not been reinstalled in the aircraft. (Lovvorn Dep. at 86; Salatto Dep. at 81-82.) Also named as a defendant is Sixteen Juliette, Inc., d/b/a Dawson Aviation. (3d Am. Compl. at 1.) Sixteen Juliette presently is in default. (Entry of Default (Doc. # 62).) 7 6 7 re c eiv e d a complete engine overhaul [and] had been subjected to and passed a recent annual in s p e c tio n ." (3d Am. Compl. 10-11, 15-16.) Also included in Count Three is a claim that th e aircraft did not conform to the warranties of merchantability and fitness for a particular p u rp o s e which LOSAL says were implied terms of the contract. (3d Am. Compl. 17-18.) F in a lly, in Count Four, LOSAL avers that Defendants "negligently or wantonly sold th e aircraft to [LOSAL] in an unsafe and unreasonably dangerous condition." (3d Am. C o m p l. 19.) Continuing, LOSAL alleges that Sixteen Juliette, "acting in concert with" or " u n d e r the direction of" Defendants, "performed or undertook to perform and failed to p ro p e rly perform, an annual inspection on the aircraft pursuant to which [Sixteen Juliette] c e rtif ie d that as o[f] September 23, 2003 the aircraft was airworthy when in fact it was not." (3 d Am. Compl. 19.) Similarly, LOSAL alleges that Defendants "negligently or wantonly f a ile d to confirm the accuracy of the information relayed to [LOSAL] about the condition of th e aircraft prior to sale," and that Defendants' negligence or wantonness proximately caused th e aircraft's engine case to crack. (3d Am. Compl. 19.) LOSAL requests as relief co m p en sato ry and punitive damages. (3d Am. Compl. at 6.) Having answered the Third Amended Complaint and conducted discovery, Defendants f ile d the instant Motion for Summary Judgment on all claims against them. LOSAL re sp o n d e d by asking for an extension of time to respond to Defendants' motion and for leave 8 to reopen discovery to designate a new expert witness.8 (Pl. Mot. for Extension of Time (D o c . # 49).) The court denied LOSAL's motion, emphasizing, among other things, that "[ t]h is action has been fraught with delay, culminating in the court's mandate that `[n]o fu rth er extensions will be permitted.'" (Order (Doc. # 56) (citing Doc. # 44).) The court n o w turns to the merits of the summary judgment motion. IV. DISCUSSION D e f en d a n ts seek summary judgment on multiple grounds, including that the fraud and b re a ch of contract claims are barred by the statute of limitations, that all implied warranties a re properly disclaimed, and that the evidence is lacking on one or more elements of each c la im . (Defs. Summ. J. Br. at 9-10, 15-16.) Notwithstanding these multiple arguments, the su m m a ry judgment motion can be decided on a single issue. The factual predicate u n d e rlyin g each of LOSAL's claims fraudulent misrepresentation, fraudulent suppression, b r e a c h of contract, breaches of express and implied warranties, and negligence or wantonness is that, when LOSAL purchased the aircraft from Defendants on August 1, 2002, the a irc ra f t was not airworthy, had not recently received a complete engine overhaul, and had not LOSAL identified Mr. Polhemus as a potential expert witness in January 2008 (see Ex. E to Defs. Summ. J. Br.), but sought a new expert in light of Mr. Polhemus's affidavit, which Defendants filed on May 30, 2008, in support of their Motion for Summary Judgment. (See Pl. Mot. for Extension of Time 6.) 8 9 p a ss e d a recent annual inspection.9 Stated differently, without such evidence, LOSAL cannot d e m o n stra te an essential element of each of its claims, namely, (1) that Defendants m is re p re s e n te d the condition of the aircraft prior to its sale to LOSAL, see Hughes v. Hertz C o r p ., 670 So. 2d 882, 885 (Ala. 1995) (fraudulent misrepresentation); (2) that Defendants f a ile d to disclose material facts about the condition of the aircraft, see Mason v. Chrysler C o r p ., 653 So. 2d 951, 954 (Ala. 1995) (fraudulent suppression); (3) that Defendants sold L O S A L an aircraft on terms different from those for which LOSAL bargained, see Ex parte J a c ks o n County Bd. of Educ., ___ So. 2d ___, 2008 WL 3877736, at *3 (Ala. Aug. 22, 2008) (b re a ch of contract); (4) that the express representations made by Defendants about the c o n d itio n of the aircraft failed their essential purposes, see Lipham v. General Motors Corp., 6 6 5 So. 2d 190, 192 (Ala. 1995) (breach of express warranty); (5) that the aircraft was not m e rc h a n ta b le or fit for its particular purpose, see Ala. Code 7-2-314 and 7-2-315 (breach o f implied warranty of merchantability and fitness for a particular purpose); and (6) that D e f en d a n ts sold the aircraft to LOSAL in an "unsafe and unreasonably dangerous condition" LOSAL does not dispute that its claims share this factual predicate. Indeed, each count of the Third Amended Complaint, as well as LOSAL's brief opposing summary judgment and evidentiary submission, focuses on Defendants' representations made to LOSAL with respect to the condition of the aircraft at the time of sale and the alleged falsities of those representations, which LOSAL says constitutes fraud, negligence and wantonness and a breach by Defendants to furnish an aircraft to LOSAL that conformed to those representations. (See 3d Am. Compl. 4, 7, 10-11, 15-16, 17-18, 19; Pl. Summ. J. Resp. at 11, arguing that "[t]he evidence . . . supports the conclusion that at the time of sale to LOSAL, [Defendants] knew the aircraft was corroded and/or was not airworthy"; Pl. Summ. J. Resp. at 16, contending that Defendants breached their agreement to provide LOSAL with an aircraft that was "airworthy, had recently had a complete engine overhaul, and had recently passed a complete annual inspection"; see also Pl. Mot. Ext. Time 6 (Doc. # 49), whether corrosion on the airframe existed at the time the aircraft was purchased by LOSAL is a "central issue in this case.") 9 10 o r "failed to conduct a proper inspection" which would have uncovered the complained-of d e f ic ie n c ie s , (see 3d Am. Compl. 19 (negligence and wantonness).) Distilled to its essence, the single issue is whether LOSAL has presented evidence w h ic h creates a genuine issue of material fact as to whether the aircraft's deficiencies which M r. Polhemus said rendered the aircraft unairworthy on August 8, 2005, existed three years e a rlie r when LOSAL bought the aircraft. LOSAL says that it has, but, as explained below, th e court disagrees. L O S A L recognizes that Mr. Polhemus's affidavit contains attestations contrary to w h a t LOSAL anticipated Mr. Polhemus would say at trial. (Pl. Summ. J. Resp. at 13; Pl. M o t. Extension Time 6.) In his affidavit, reiterating that he performed his inspection of the a irc ra f t on August 8, 2005, Mr. Polhemus expresses "no opinion" as to whether the corrosion o f the aircraft's airframe or problems with the engine "would have existed in or about A u g u s t, 2002 to such an extent as to render the aircraft not airworthy at that time." (P o lh e m u s Aff. 4-7.) LOSAL, however, says that there is contrary evidence which creates a jury issue as to whether the aircraft was airworthy on August 1, 2002, the date of purchase. L O S A L points to the affidavits of Mr. Salatto and Mr. Lovvorn, as well as to Mr. Lovvorn's d e p o sitio n testimony. (Pl. Summ. J. Resp. at 13, 15.) Namely, Mr. Lovvorn attests, "I have h e a rd Mr. Polhemus specifically say that the airframe corrosion would have existed prior to th e time that LOSAL bought the plane on August 1, 2002, and that a properly done annual a n d /o r pre[-]buy inspection would have detected that corrosion." (Lovvorn Aff. at 1 (Ex. 11 to Pl. Summ. J. Resp.).) Similarly, Mr. Salatto says, "Mr. Polhemus stated on more than one o c c as io n in my presence that the corrosion would have been present when we bought the a irp la n e and that it should have been `caught' when prior inspections were performed on the airplan e." (Salatto Aff. at 2.) LOSAL argues that Mr. Polhemus's oral statements to Mr. S alatto and Mr. Lovvorn are sufficient to create a jury issue on the question of the aircraft's a irw o rth in e ss on August 1, 2002. D ef en d an ts, though, argue that, because LOSAL seeks to introduce Mr. Polhemus's sta tem e n ts through Mr. Lovvorn and Mr. Salatto, the statements are hearsay and do not fit w ith in any exception to the hearsay rule, and, thus, may not be considered on summary ju d g m e n t . (Defs. Summ. J. Reply Br. at 1-3 (Doc. # 61); see also Defs. Mots. Strike at 1 (D o c s. # 53-54).) Countering Defendants' objection, LOSAL says that Mr. Lovvorn's and M r. Salatto's testimonies pertaining to the substance of Mr. Polhemus's oral statements c o n stitu te present sense impressions and, therefore, are excepted from the hearsay rule. A lte rn a tiv e ly, LOSAL contends that Mr. Lovvorn's and Mr. Salatto's "testimon[ies] about w h a t they had been told by [Mr.] Polhemus would be admissible at trial if Polhemus testified liv e in accordance with his affidavit, based on Rule 801(d)(1) of the Federal Rules of E v id e n c e ." (Pl. Summ. J. Resp. at 13 n.1.) For the reasons to follow, the court is u n p e r s u a d e d by both of LOSAL's arguments. " `H e a rs a y' is a statement, other than one made by the declarant while testifying at the tria l or hearing, offered in evidence to prove the truth of the matter asserted." Fed. R. Evid. 12 8 0 1 (c ). The general rule is that hearsay is not admissible, Fed. R. Evid. 802, but there are e x c e p tio n s , see, e.g., Fed. R. Evid. 803 & 804. One exception is for a present sense im p r e s sio n . Rule 803(1) provides that, regardless of the availability of the declarant as a w itn e ss , "[a] statement describing or explaining an event or condition made while the d e c la r a n t was perceiving the event or condition, or immediately thereafter[,]" is "not e x c lu d e d by the hearsay rule." Fed. R. Evid. 803(1). "The underlying theory of this e x c ep tio n is that the `substantial contemporaneity of the event and the statement negate the lik elih o o d of deliberate or conscious misrepresentation.'" United States v. Scrima, 819 F.2d 9 9 6 , 1000 (11th Cir. 1987). The reason Rule 803(1) is inapplicable is straightforward. Mr. Salatto's and Mr. L o v v o rn 's attestations do not shed light on whether Mr. Polhemus's statements describing th e condition of the aircraft were "made while [he] was perceiving the . . . condition or im m e d ia te ly thereafter," Scrima, 819 F.2d at 1000. Neither Mr. Salatto nor Mr. Lovvorn s p e c if ie s when, in relation to Mr. Polhemus's inspection of the aircraft, the alleged s ta te m en ts were made. Apparently, in an attempt to cure this obvious deficiency, LOSAL c ite s the deposition testimony of Mr. Lovvorn as "establish[ing] that the first conversation L O S A L had with Polhemus concerning the corrosion he had found was while Auburn U n iv e r s it y Aviation was in the process of reinstalling the overhauled engine" and that, th e re f o re , "Polhemus's statements would describe and explain his perceptions and would h a v e been substantially contemporaneous with those perceptions." (Pl. Resp. to Defs. Mots. 13 S trik e at 3 (Doc. # 60), citing Lovvorn Dep. at 84-85.) In his deposition testimony, though, M r. Lovvorn does not identify Mr. Polhemus as the speaker, or anyone else for that matter. M r. Lovvorn refers only to "they," testifying that, after he (Mr. Lovvorn) delivered the o v e rh a u le d engine to Auburn Aviation for reinstallation in the aircraft, "they" said the "plane h a [ d ] been in a crash" and "they" said the aircraft had "corrosion." (Lovvorn Dep. at 84-85.) N o t only does Mr. Lovvorn fail to identify with whom he spoke, but assuming for the sake o f argument that the individual was Mr. Polhemus, as LOSAL claims in its brief, Mr. L o v v o rn also fails to pinpoint when Mr. Polhemus made the statements in relation to his in s p e c t io n of the aircraft. Mr. Lovvorn's deposition testimony upon which LOSAL relies, th e r e f o r e , is insufficient to bring the statements within the ambit of the present sense im p re ss io n exception to the hearsay rule. In other words, there is no evidence from which it can be determined whether Mr. Polhemus's alleged statements to Mr. Salatto and Mr. L o v v o rn were sufficiently contemporaneous with Mr. Polhemus's inspection of the aircraft to constitute present sense impressions. LOSAL's reliance on Rule 801(d)(1) also is unavailing. True, the statements Mr. P o lh e m u s allegedly made to Mr. Salatto and Mr. Lovvorn with respect to his opinion about th e onset of the aircraft's corrosion would be admissible to impeach Mr. Polhemus if he te s tif ie d at trial and his trial testimony was inconsistent with these earlier statements. See F e d . R. Evid. 801(d)(1)(A). This circuit has held, however, that potential impeachment e v id e n c e is not substantive evidence which can defeat a properly-supported motion for 14 s u m m a ry judgment. Macuba v. DeBoer, 193 F.3d 1316, 1325 (11th Cir. 1999). In M c M i llia n v. Johnson, 88 F.3d 1573 (11th Cir. 1996), upon which Macuba relies, the E le v e n th Circuit explained that, even if a declarant's out-of-court statement might be a d m is s ib le at trial for impeachment, "such impeachment evidence is not substantive evidence o f the truth of the statements . . . . Such potential impeachment evidence, therefore, may not b e used [at the summary judgment stage] to create a genuine issue of material fact for trial." Id . at 1584 (brackets added). Because LOSAL has established only that Mr. Polhemus's s ta te m e n ts might be admissible at trial for impeachment purposes, the statements cannot be u s e d to defeat Defendants' summary judgment motion. In sum, having carefully reviewed the evidence, the court finds that Mr. Polhemus's alleged statements to Mr. Salatto and Mr. L o v v o rn , as recounted in their affidavits and deposition testimony, are inadmissible hearsay w h ic h cannot be considered in ruling on the present summary judgment motion. In light of the foregoing ruling, the undisputed evidence establishes that LOSAL's o w n expert, Mr. Polhemus, "h[as] no opinion" as to whether on August 1, 2002, the problems h e identified with the airframe "would have existed . . . to such an extent as to render the a irc ra f t not airworthy at that time," or whether "any problems with the engine would have e x is te d . . . which may have led to the cracked case or which would have rendered the aircraft n o t airworthy." (Polhemus Aff. 6-7.) Thus, while Mr. Polhemus opines that, as of August 8 , 2005, the aircraft "was not airworthy" (Polhemus Aff. 5), his testimony cannot be relied 15 u p o n to create the necessary genuine issue of material fact as to the condition of the aircraft th re e years earlier at the time of purchase. The only other evidence relied upon by LOSAL is Mr. Salatto's attestation that during L O S A L ' s ownership of the aircraft, LOSAL kept the aircraft in Auburn, Alabama, in a h a n g e r "shielded from the elements." (Pl. Summ. J. Resp. at 13 (citing Salatto Aff. at 2).) T h e court, however, finds that this remaining evidence provides, at most, "[a] mere scintilla o f evidence," which "will not suffice to overcome a motion for summary judgment." 1 0 Y o u n g v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004); Fedolfi v. Banyan Air Servs., In c ., 258 F. App'x 274, 276 (11th Cir. 2007) (The party opposing a properly-supported su m m a ry judgment motion "must show more than a `mere scintilla of evidence'" to create a genuine issue of fact for trial.) Construing the evidence in the light most favorable to L O S A L , all LOSAL has shown is that on August 8, 2005, nearly three years after LOSAL p u rc h a s e d the aircraft, the aircraft was not airworthy or otherwise in the condition re p re se n te d by Defendants. Given nothing more than this showing, the court finds that D e f en d a n ts ' Motion for Summary Judgment is due to be granted. LOSAL presents absolutely no evidence to support its theory that Mr. Herndon discovered the aircraft's corrosion and engine problems when he conducted his inspections but, acting in concert with Defendants, did not disclose the defects to LOSAL. (See Pl. Summ. J. Resp. at 8, 15); United States v. Cardona, 302 F.3d 494, 497 (5th Cir. 2002) ("arguments in brief are not evidence"). Rather, the theory is based on nothing but mere speculation and, thus, warrants no discussion. Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) ("Speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a primary goal of summary judgment." (internal quotation marks omitted)). 10 16 V . CONCLUSION F o r the foregoing reasons, it is ORDERED that Defendants Southern Aircraft Sales a n d Sid Hall's Motion for Summary Judgment (Doc. # 45) is GRANTED. Done this 24th day of October, 2008. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE 17

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