Zuma Seguros, C.A. v. World Jet Delaware, Inc. et al

Filing 98

ORDER on 55 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge Jonathan Goodman on 9/25/2017. (jf00)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 15-22626-CIV-GOODMAN
[CONSENT CASE]
ZUMA SEGUROS, CA,
Plaintiff,
v.
WORLD JET OF DELAWARE, INC.,
Defendant.
_______________________________/
ORDER ON SUMMARY JUDGMENT MOTION
This is a case about a plane. Specifically, it is about the sale of a 1987 British
Aerospace, Hawker BAE-125-800A, Serial Number 258068, registration N606
(“aircraft”). However, no one is able to “pack up” or “fly away” 1 on this grounded
aircraft. In fact, “leaving on a jet plane” 2 is out of the question until the parties resolve
their comparatively unpleasant dispute over the purchase of the aircraft. 3

1

FRANK SINATRA, Come Fly With Me, on COME FLY WITH ME (Capitol Records 1958).

PETER, PAUL, AND MARY, Leaving on a Jet Plane, on ALBUM 1700 (Warner Bros.Seven Arts 7340 1967).
2

This is not a run-of-the-mill lawsuit in which parties make allegations to support
their claims or defenses. Instead, this lawsuit is more acrimonious than a garden-variety
dispute that has morphed into litigation. For example, the Court was presented with a
motion to strike an amended witness list because it added Plaintiff Zuma Seguros, CA’s
(“Plaintiff” or “Zuma”) attorney, Gerardo Vazquez (“Vazquez”), who was then
3

World Jet moves for summary judgment on all counts of Zuma’s Complaint
arising out of this aircraft sale gone awry. [ECF No. 55]. By way of summary, Defendant
argues that Plaintiff lacks standing to bring this lawsuit because the purchase
agreement for the aircraft was never assigned to Plaintiff. Alternatively, Defendant
argues that if the purchase agreement was assigned to Plaintiff, then Plaintiff defaulted
on a separate written agreement between Plaintiff and Defendant that mapped out
specific payment terms. Defendant also argues that any other document extending the
final payment date was fabricated.
Plaintiff counters that (1) a valid assignment under Florida law was made; (2) the
final payment date for the aircraft was extended; and (3) Defendant breached the
purchase agreement by denying Plaintiff access to the aircraft’s maintenance and log
books. Plaintiff also claims that World Jet fraudulently induced Plaintiff to purchase the
aircraft when World Jet lacked ownership. This lack-of-ownership theory is also
asserted in Zuma’s breach of contract claim.

currently representing Plaintiff. [ECF No. 60]. The Court determined that Vazquez is a
necessary witness and disqualified him from representing Plaintiff at trial. [ECF No. 96].
Aside from that, Defendant World Jet of Delaware, Inc. (“Defendant” or “World Jet”)
also claims that Plaintiff’s counsel submitted a fraudulent document and committed
spoliation of the evidence. [ECF Nos. 88; 96]. These events and accusations are atypical
from the more-traditional “he said/she said” swearing match that this Court usually
confronts in a lawsuit about a contract’s formulation or interpretation. World Jet’s
motion for sanctions for fraud on the court is still pending. [ECF No. 88].
2

As outlined above, there are still significant factual disputes remaining in this
case. Because of this, the Court denies in large part Defendant’s summary judgment
motion as these factual determinations are reserved for a jury at trial.
I.

Background

Plaintiff sued Defendant for the state-law claims of breach of contract,
accounting, and fraudulent inducement, and sued World Jet’s President, Defendant
Don Whittington (“Don”) for fraudulent misrepresentation. [ECF No. 1]. However, Don
was dismissed as a defendant for lack of service. [ECF Nos. 1, p. 8; 16]. World Jet filed
an answer and affirmative defenses to the Complaint. [ECF No. 6]. World Jet also
moved to strike Zuma’s expert witness disclosure, report, and the trial testimony of
proposed expert Mark Connell, a motion which the Court granted. [ECF Nos. 54; 93].
World Jet now moves for summary judgment on the remaining counts, claiming
that it is not liable and that Zuma is not entitled to damages. [ECF No. 55]. World Jet
filed a statement of undisputed facts. [ECF No. 57]. In support of its motion, World Jet
filed the affidavits of Don; William Whittington (“William”); the General Manager of
World Jet, Steven Dennis (“Dennis”); Zuma’s discovery responses; and the transcript
and exhibits from Zuma’s designated corporate representative’s, Keith Silverstein
(“Silverstein), deposition. [ECF Nos. 55-1; 55-2; 55-3; 55-5; 55-7; 55-9; 56].
Zuma filed an opposition response to World Jet’s summary judgment motion.
Embedded in this 59-page document was its statement of disputed facts and supporting
3

exhibits. 4 [ECF No. 61]. Zuma included JC Partners Corp. (“JC”) president, Luis
Urdaneta’s (“Urdaneta”), and Vazquez’s affidavits. [ECF No. 61, pp. 14-16, 19-24].
Zuma also filed an email concerning a bill of sale for the aircraft, the bill of sale, a letter
sent from Vazquez to Don, and other documents and contracts relating to the purchase
of and payment for the aircraft. [ECF No. 61, pp. 17-18, 25-32, 40-59]. In Zuma’s
response to World Jet’s summary judgment motion, Zuma withdrew its accounting
count and its request for attorneys’ fees. [ECF No. 61, pp. 2, 11].
Zuma also filed an amended witness list, adding Vazquez as a fact witness. [ECF
No. 59], which World Jet moved to strike. [ECF No. 60]. After reviewing the fully
briefed motion, the Court denied Zuma’s motion but disqualified Vazquez from
representing Zuma at trial. [ECF Nos. 66; 71; 77; 96].
World Jet filed its reply to Zuma’s opposition response and included the
transcripts from the depositions of Vazquez, the former president of Zuma (Jesus
Camargo), Silverstein, and Urdaneta. [ECF Nos. 85; 85-1; 85-2; 85-3; 85-4; 85-5]. World
Jet included in its reply a motion to strike Urdaneta’s and Vazquez’s affidavits, which
the Court denied. [ECF Nos. 85; 86; 89; 90; 94].
Although World Jet has also filed a sanctions motion regarding Zuma’s alleged
fabricated document extending the final payment deadline for the aircraft, the Court

The statement of undisputed facts appears at pages 33-39 of Zuma’s response.
[ECF No. 61, pp. 33-39].

4

4

will reserve its ruling on that motion for a separate order. This Order deals exclusively
with World Jet’s summary judgment motion.
II.

Facts
A.

Undisputed Facts

JC entered into a purchase agreement with World Jet to purchase the aircraft
(“Purchase Agreement”). [ECF Nos. 1-1; 57, p. 1; 61, p. 33]. JC made some payments
toward purchasing the aircraft, and the aircraft was delivered to JC in September 2011.
[ECF Nos. 55, pp. 2, 4; 61, pp. 14-16]. JC did not pay the remaining amounts due under
the Purchase Agreement. [ECF Nos. 55, pp. 2, 4; 61, pp. 14-16].
It is undisputed that there is no written assignment of the Purchase Agreement
indicating that JC assigned to Zuma the rights to buy the aircraft from World Jet. [ECF
Nos. 57, p. 1; 61, p. 33].
However, there is a written agreement between World Jet and Zuma, dated
October 25, 2013 (“October 25th Agreement”), where the parties agreed to payment
terms for the remaining amounts due for the aircraft. [ECF No. 1-2]. The October 25th
Agreement states that $713,401.40 was the remaining balance for the aircraft purchase.
[ECF No. 1-2].
The October 25th Agreement states that Zuma would pay World Jet $200,000.00
as a partial payment for the aircraft on November 9, 2013, (a check in that amount was
in World Jet’s possession on the day of signing) and the remainder would be due on
5

December 21, 2013. [ECF No. 1-2]. The October 25th Agreement also states that “if the
balance is not paid in full, the aircraft will be repossessed and the [Purchase Agreement]
will be null and void” and if “a default does ensue, all monies paid to [World Jet] will
be retained for default of the agreement.” [ECF No. 1-2].
The balance of the payment was not made on or before December 21, 2013. [ECF
Nos. 57, p. 4; 61, pp. 35-36].
The parties agree that World Jet would not convey ownership of the aircraft to
Zuma until Zuma paid World Jet the full remaining balance of the purchase price. [ECF
Nos. 57, p. 7; 61, pp. 37-38].
B.

Disputed Facts
Did JC Assign the Purchase Agreement to Zuma?

World Jet claims that it never knew about, consented to, or assigned any rights
to the aircraft to Zuma, let alone signed any agreement concerning an assignment. [ECF
No. 57, p. 2]. World Jet claims the October 25th Agreement indicates that Zuma
guaranteed payment for JC. [ECF Nos. 1-2; 57, p. 2].
Zuma claims instead that JC orally assigned to it the rights to the Purchase
Agreement and that Zuma did not guarantee payment for JC. [ECF No. 61, pp. 33-34].
Zuma relies on Urdaneta’s affidavit, which states that “JC Partners assigned the Plaintiff
full use and rights available to JC Partners under the purchase agreement.” [ECF No. 61,

6

p. 15]. Zuma claims that the October 25th Agreement “clearly states that Plaintiff was in
operational control of the Aircraft[.]” [ECF No. 61, p. 34].
Did World Jet Own the Aircraft when the October 25th Agreement Was
Signed?
Zuma claims that World Jet sold it the aircraft, and took Zuma’s $200,000
deposit, even though William (not World Jet) owned the aircraft at the time the October
25th Agreement was executed. [ECF No. 61, p. 37]. Zuma filed a bill of sale dated
September 18, 2013 addressed to William that was executed and sent to the FAA. [ECF
No. 61, pp. 37, 44].
But World Jet claims that “William Whittington never applied for registration of
the Aircraft and never paid any money for the Aircraft” and that the bill of sale was sent
to the FAA “by an escrow agent in error.” [ECF No. 57, p. 6].
World Jet claims that the aircraft was not conveyed to William at all relevant
times to this action and the aircraft was instead registered to World Jet at the United
States Civil Aircraft Registry. [ECF No. 57, p. 6].
Did Zuma Default on the October 25th Agreement or Was the Deadline for
Final Payment Extended?
World Jet claims that Zuma defaulted on the Purchase Agreement by not
rendering final payment by December 21, 2013, as indicated by the October 25th
Agreement. [ECF No. 57, p. 4].

7

However, Zuma disputes the default assertion. It relies on a document on World
Jet’s letterhead that contains Don’s signature to prove that the December 21, 2013
deadline for final payment set in the October 25th Agreement was extended (“Extension
Document”). [ECF No. 1-3].
Zuma claims that Don drafted this document in the form of a letter, which states,
“Mr. Ruperto Rosales of [Zuma] has agreed to pay between two & three hundred
thousand dollars for the month of January, 2014 for the [aircraft]. The remaining
balance which is approximately five hundred and fifty thousand dollars is to be paid on
February 14, 2014.” [ECF No. 1-3]. Zuma claims that it was “ready and able to make
payment” on February 14, 2014. [ECF No. 61, p. 36].
Zuma also relies on Urdaneta’s and Vazquez’s affidavits in support of the
extended-deadline theory. [ECF Nos. 61, pp. 16, 20-22]. Specifically, Zuma indicates in
its statement of disputed facts that Vazquez “had specific conversations regarding
closing the transaction between Plaintiff and World Jet on February 14, 2014, in which,
World Jet made no mention of default or the alleged December 21, 2013 deadline[.]”
[ECF No. 61, p. 35].
World Jet claims that it never agreed to any extension and the Extension
Document “is a fabricated and fraudulent document, is not on the letter head of [World
Jet], and the signature purporting to be that of [Don] is a forgery.” [ECF No. 57, p. 4].

8

Was Inspection of the Aircraft’s Records Required?
World Jet claims that it did not breach any contract because “[i]nspection of the
Aircraft and log books or maintenance records was not a condition precedent to the
timely remittance of payment to [World Jet].” [ECF No. 57, p. 5]. Zuma disputes this
statement and claims instead that “Plaintiff needed to verify the existence of the log
books and other books and records of the airplane, as an airworthy aircraft is a
condition of the Purchase Agreement.” [ECF No. 61, p. 36].
Both parties agree that Vazquez met with Don on February 14, 2014. However,
whereas World Jet claims that Vazquez demanded physical possession and custody of
the log books and maintenance records of the aircraft, Zuma claims that Vazquez met
with Don to ensure the existence of and to inspect the log books and maintenance
records on the alleged extended closing date for payment. [ECF Nos. 57, p. 6; 61, p. 37].
II.

Legal Standard

The Court “shall grant summary judgment 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.” Fed. R. Civ. P. 56(a). When “the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.”
Scott v. Harris, 550 U.S. 372, 380 (2007) (internal citation and marks omitted). If the
movant establishes the absence of a genuine issue, then the non-movant must “do more

9

than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
For issues on which the opposing party will have the burden of proof at trial, the
movant can prevail by merely pointing out that there is an absence of evidence to
support the non-movant’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).
“By its very terms, this standard provides that the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no genuine issue of
material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986) (emphasis in
original). “Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment. Factual disputes
that are irrelevant or unnecessary will not be counted.” Id. at 248.
An issue of fact is genuine “if the record taken as a whole could lead a rational
tier of fact to find for the nonmoving party.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646
(11th Cir. 1997). In applying this standard, the district court must view the evidence and
all factual inferences in the light most favorable to the party opposing the summary
judgment motion. Id. at 646 (internal citation omitted). Conclusory allegations,
subjective beliefs, opinions, and unsupported assertions, however, are insufficient as a
matter of law to withstand summary judgment. See Mayfield v. Patterson Pump Co., 101
F.3d 1371, 1376 (11th Cir. 1996).
10

III.

Analysis
A.

Breach of Contract

In the Complaint, Zuma alleges that World Jet breached the Purchase Agreement
because William (as opposed to World Jet) owned the aircraft -- which means that World
Jet could not therefore sell Zuma an aircraft it did not own. Furthermore, Zuma claims
that World Jet’s refusal to provide it access to the aircraft’s log books and maintenance
records breached the Purchase Agreement’s airworthiness requirement. [ECF No. 1, p.
6]. World Jet, in support of its contention that it is not liable to Zuma for breach of
contract, argues that (1) Zuma lacks standing and is not a real party of interest; (2) the
aircraft was not sold to William; and (3) denial of access to the log books and
maintenance records was not a breach of the October 25th Agreement. 5

In a footnote, World Jet contends that Silverstein had no knowledge in support of
Zuma’s claims, that his deposition testimony was hearsay, that he engaged in
“discovery misconduct[,]”and that because of this, “Zuma did not produce a witness
that could competently testify.” [ECF No. 55, p. 5 n. 5].
5

The Undersigned is unclear on what World Jet is asking the Court to do. Is it
asking the Court to strike Silverstein as a witness or is it asking the Court to sanction
Zuma for this alleged “discovery misconduct?” [ECF No. 55, p. 5 n. 5]. Is this footnote
actually a de facto and untimely motion to compel better answers at a deposition? Or is it
merely a request for the Court to disregard the testimony of Silverstein in support of
World Jet’s contention that it is not liable for breach of contract? The Court will not
guess at the relief World Jet may be seeking.
Regardless, based on Urdaneta’s and Vazquez’s affidavits, it is evident that
Zuma produced witnesses with knowledge about the alleged breach of contract. World
Jet has also had the opportunity to take Urdaneta’s and Vazquez’s depositions, in
addition to Camargo’s deposition. Based on the filings in connection with World Jet’s
11

Standing
World Jet argues that Zuma lacks standing to sue for breach of contract because
it is undisputed that (1) JC and World Jet are the only parties to the Purchase
Agreement and (2) there is no written assignment of JC’s rights under the Purchase
Agreement to Zuma. [ECF No. 55, p. 8; 56, pp. 34-37; 61 p. 33]. 6

summary judgment motion, it is evident that Zuma has produced witnesses with
knowledge of the events underlying this action.
The Court will not consider World Jet’s argument about Silverstein because a
footnote is the incorrect place for substantive arguments on the merits. See Mazzeo v.
Nature’s Bounty, Inc., No. 14-60580, 2014 WL 5846735, at *2 n. 1 (S. D. Fla. Nov. 12, 2014)
(not considering argument raised in a footnote). Courts have deemed arguments raised
in this fashion waived. See Mock v. Bell Helicopter Textron, Inc., 373 F. App’x 989, 992
(11th Cir. 2010) (deeming argument waived because it was raised in passing and only in
a footnote). A party can, of course, mention in a footnote a substantive argument raised
earlier or elsewhere in the body of the motion or memorandum. But it cannot drop a
cryptic remark only in a footnote and expect a Court to evaluate it as a new substantive
argument.
However, Zuma also says in its response that the October 25th Agreement
between Zuma and World Jet, where Zuma agreed to pay $713,401.40 to World Jet, was
“the execution of the Assignment by Zuma.” [ECF No. 61, p. 3]. Is Zuma now arguing
that the October 25th Agreement is a de facto written assignment of JC’s rights under the
Purchase Agreement? The Court does not know because Zuma has not clearly
articulated its position.
6

Zuma’s statement here is confusing and seems directly contrary to paragraph 3
of Zuma’s response to World Jet’s statement of undisputed facts, where it “[a]greed that
there was no written assignment of the Agreement.” [ECF No. 61, p. 33]. Zuma cannot
have it both ways: either there was a written assignment of the Purchase Agreement or
there was not.
12

Standing is the constitutional requirement that asks “whether the litigant is
entitled to have the court decide the merits of the dispute or of particular issues.” Warth
v. Seldin, 422 U.S. 490, 498 (1975); see Nedeau v. Gallagher, 851 So. 2d 214, 215 (Fla. 1st
DCA 2003) (“Standing depends on whether a party has a sufficient stake in a justiciable
controversy, with a legally cognizable interest which would be affected by the outcome
of the litigation” and the “interest cannot be conjectural or merely hypothetical” and
“the claim should be brought by, or on behalf of, the real party in interest.”) (internal
citations omitted).
World Jet also argues that because Zuma is not a party to the Purchase
Agreement, the sole allegedly valid contract, Zuma does not have a cognizable interest
that would affect the outcome of the litigation. Essentially, because there is no written

Even so, the undisputed evidence points to the fact that there was no written
assignment, including Zuma’s repeated acknowledgment that there was no writing,
which is evident in Vazquez’s and Urdaneta’s affidavits; Zuma’s deposition transcript;
and Zuma’s response to World Jet’s statement of undisputed facts, etc.
Thus, the Court interprets Zuma’s vague and possibly inconsistent statement
above to mean that the October 25th Agreement was World Jet’s written
acknowledgment of JC’s oral assignment of the Purchase Agreement to Zuma. Stating
that there is evidence that World Jet acknowledged the oral assignment is entirely
different from stating that the October 25th Agreement is the assignment. Either way,
World Jet disputes the assignment’s legal validity.
In any event, the parties have not briefed the Court about whether World Jet’s
acknowledgment (or lack thereof) would affect the validity of the assignment. The
Court will therefore not consider this potential argument to determine standing.
13

document where JC assigned its rights under the Purchase Agreement to Zuma, World
Jet assumes that there is no valid assignment.
Under Florida law, to state a cause of action for breach of contract, the movant
must demonstrate the existence of a contract which it has a right to enforce, breach of
that contract, and damages flowing from such breach. Abbott Labs., Inc. v. Gen. Elec.
Capital, 765 So. 2d 737, 740 (Fla. 5th DCA 2000); Carpenter Contractors of Am., Inc. v.
Fastener Corp. of Am., Inc., 611 So. 2d 564, 564 (Fla. 4th DCA 1992).
Factual Disputes about the Assignment
To dispute World Jet’s contention that Zuma lacks standing, Zuma filed
Urdaneta’s affidavit, where the president of JC avers that JC “assigned to Plaintiff full
use and rights available to [JC] under the purchase agreement.” [ECF No. 61, p. 15].
Zuma claims that JC’s oral assignment is sufficient to give it standing to sue for breach
of contract because it acquired all of JC’s rights under the Purchase Agreement, and
thus, now stands in JC’s shoes as a party. [ECF No. 61, pp. 4, 15-16].
World Jet submits factual evidence, emails between Urdaneta and Zuma
regarding the aircraft’s repairs that were sent after the October 25th Agreement,
indicating that JC had not given up its rights under the Purchase Agreement. [ECF No.
55, pp. 8-9]. However, in its response, Zuma offers other emails between World Jet and
Zuma, also after the October 25th Agreement, indicating that Zuma had control over
the aircraft as the assignee under the Purchase Agreement. [ECF No. 61, pp. 4, 17].
14

Also, to contradict Urdaneta’s affidavit, indicating there was an assignment, World Jet
submits Steven Dennis’ affidavit, indicating there was not an assignment. [ECF No. 553, p. 2].
These are all factual disputes which a fact finder (not a judge in a summary
judgment order) must determine at trial. However, if the Court assumes that the oral
assignment occurred but the oral assignment is invalid under Florida law, then there is
no need for this case to go to a jury.
Thus, the Court must consider World Jet’s legal argument and determine
whether under Florida law an oral assignment of an aircraft purchase agreement
violates the statute of frauds. If it does, then Zuma would lack standing to sue for
breach of contract. If it does not, then World Jet is not entitled to summary judgment on
this basis. As explained below, Florida law does not bar oral assignments of otherwise
valid contracts.
Statute of Frauds
An aircraft is a “good” under the Florida Uniform Commercial Code. Thus, the
applicable statute of frauds is Florida Statute § 672.201(1). Section 672.201(1) provides
Except as otherwise provided in this section a contract for the sale of
goods for the price of $500 or more is not enforceable by way of action or
defense unless there is some writing sufficient to indicate that a contract
for sale has been made between the parties and signed by the party
against whom enforcement is sought or by his or her authorized agent or
broker. A writing is not insufficient because it omits or incorrectly states a
term agreed upon but the contract is not enforceable under this paragraph
beyond the quantity of goods shown in such writing.
15

Fla. Stat. § 672.201(1).
World Jet claims that under the statute of frauds, the Purchase Agreement
“cannot be orally modified,” which it argues would include JC’s assignment of its rights
to Zuma. [ECF No. 55, p. 7, (citing McCollum Aviation, Inc. v. CIM Associates, Inc., 446 F.
Supp. 511 (S.D. Fla. 1978)]. However, Zuma does not claim that there was an oral
modification of the Purchase Agreement. Instead, it argues that its agreement with JC
was an oral assignment of the Purchase Agreement.
An assignment has been defined as “a transfer or setting over of property, or of
some right or interest therein, from one person to another.” Cont'l Cas. Co. v. Ryan Inc.
E., 974 So. 2d 368, 376 (Fla. 2008) (internal quotation omitted). Essentially, it is the
“voluntary act of [t]ransferring an interest.” DeCespedes v. Prudence Mut. Cas. Co., 193 So.
2d 224, 227 (Fla. 3d DCA 1966) Once transferred, the assignor no longer has a right to
enforce the interest because the assignee has obtained all “rights to the thing assigned.”
Price v. RLI Ins. Co., 914 So. 2d 1010, 1013–14 (Fla. 5th DCA 2005) (quoting Lauren Kyle
Holdings, Inc. v. Heath–Peterson Constr. Corp., 864 So. 2d 55, 58 (Fla. 5th DCA 2003)).
Zuma, as the assignee, claims that it has acquired all the rights of the assignor, JC,
under the Purchase Agreement.
In support of the oral assignment’s validity in this case, Zuma cites cases where
oral assignments of service contracts and rental agreements were upheld under Florida
law. Boulevard Nat'l Bank of Miami v. Air Metal Indus., Inc., 176 So. 2d 94, 97–98 (Fla.
16

1965) (finding that written assignment of an account receivable is not required under
Florida law); Mangum v. Susser, 764 So. 2d 653, 655 (Fla. 1st DCA 2000) (“as to the
‘unlawful’ assignment issue [of the lease agreement], [defendant] has cited no authority
(and our own research has found none) which requires, as [defendant] contends, that
the assignment be in writing to be ‘lawful.’”); see also Stewart v. Hooters of Am., Inc., 432
F. App’x 903, 905–06 (11th Cir. 2011) (holding that the district court did not err in
finding a valid oral assignment of a services contract under Florida law).
In these cases, the lack of formality of the assignment is dependent on the
validity of the underlying contract. For instance, in Mangum, the First District Court of
Appeal found that the oral lease for a rental property that extended beyond one-year
did not violate the statute of frauds, thus an oral assignment of this valid lease was also
permissible. 764 So. 2d at 655. In Stewart, the Eleventh Circuit held that “Florida law
requires written assignments only when specified by either contract or by statute[,]”
and in that case, because, the “original contract was in writing in compliance with the
Statute of Frauds[,]” the oral assignment was also valid. 432 F. App’x at 906 n. 3.
The Court agrees with Zuma that Florida law does not require written
assignments where the underlying contract is otherwise valid. However, the cases cited
by Zuma are not governed by Article II of the UCC, which involve sale of goods
contracts. Although the Court was unable to find a Florida-specific case, an opinion
from the First District Court of Appeals of Indiana is persuasive on this issue. In First
17

National Bank of Milltown v. Schrader, the Indiana Appellate Court held that no formality
is required for an assignment of a retail installment contract, which was governed by
Article II of the UCC, and that such assignments for sale of goods contracts may be oral.
176 Ind. App. 391, 394, 375 (1978). Thus, the Court finds that Florida law regarding the
informality of assignments is equally applicable to sale of goods contracts. Therefore,
World Jet is incorrect that the alleged assignment, based solely on its oral nature,
violates Florida law.
World Jet’s Impermissible FAA Recordation Argument
Instead of citing cases to support its argument that an oral assignment is per se
invalid under Florida law, World Jet’s reply sets forth a completely different argument
that focuses on an aircraft’s special recordation requirements. World Jet states that
“[w]hile an interest in an ordinary chattel may, perhaps, be assignable orally, that is not
the case with aircraft.” [ECF No. 85, p. 6]. World Jet explains that “[a]ircraft are
regulated by statute. §329.01, Fla. Stats. and §329.10, Fla. Stats” and that “14 CFR §47.3
mandates registration and an aircraft must be registered in the name of the owner, 49
USC §44101- 44103; 14 CFR §47.3(b) & 14 CFR §47.5(b)[.]” [ECF No. 85, p. 6]. World Jet
argues, “[u]ntil an interest affecting ownership of a civil aircraft is recorded in the
federal registry, it is valid only against those with actual notice. See: 49 U.S.C. §
44108(a).” [ECF No. 85, p. 6].

18

However, the Court cannot consider this argument -- that the assignment was
invalid because it was not written and recorded as required by federal regulations -because it was not, for all practical purposes, asserted in World Jet’s original motion.
Thus, Zuma did not have the opportunity to properly respond to this recordation
argument. Owens v. Bureau of Prisons, 255 F. App’x. 383, 383 n. 4 (11th Cir. 2007)
(affirming dismissal of habeas petition and holding that “we decline to address the new
arguments that are presented for the first time in his reply brief”) (citing United States v.
Martinez, 83 F.3d 371, 377 n. 6 (11th Cir. 1996)); United States v. Matute, No. 06‐20596‐CR,
2013 WL 6384610, at *2 (S.D. Fla. Aug. 20, 2013) (finding that reply violated Southern
District of Florida Local Rule because it improperly raised new and additional
arguments in support of the original motion), report and recommendations adopted, 2013
WL 6212170 (S.D. Fla. Nov. 27, 2013); S.D. Fla. L. R. 7.1(c) (“reply memorandum shall be
strictly limited to rebuttal of matters raised in the memorandum in opposition”).
To be sure, the recordation argument was briefly mentioned in a footnote in
World Jet’s motion: “It is also noteworthy that Zuma never recorded any instrument
documenting its claimed interest in the aircraft with the FAA (see 14 CFR §47.11(a)). As
such, any claimed interest of Zuma cannot be recognized.” [ECF No. 55, p. 8 n. 7]. But as
the Court has previously mentioned in this Order, burying a substantive argument in a
footnote (only) is impermissible and waives the argument. Mazzeo, 2014 WL 5846735, at
*2 n. 1; see also Mock, 373 F. App’x at 992.
19

The text of the motion includes only the statement that “Zuma did not file any
instrument in the Civil Aircraft Registry maintained by the FAA documenting any
claimed interest in the Aircraft (Zuma Depo., P. 37, L. 12 – 24); which Zuma could have
done in accordance with 14 CFR §47.5(d) as a purported assignee.” [ECF No. 55, p. 8].
The statement that Zuma could have recorded the assignment does not clearly and
unequivocally assert that Zuma must have done so to have a valid assignment, and
World Jet does not cite any law stating this much in the text of its motion.
Because World Jet has failed to assert in its motion additional arguments to the
assignment’s purported legal invalidity, 7 World Jet has not met its burden of proving
entitlement to summary judgment based on Zuma’s alleged lack of standing under
Florida law.
Bill of Sale to William
World Jet next contests Zuma’s allegation that World Jet breached the Purchase
Agreement because it purported to sell the aircraft, and took Zuma’s $200,000 deposit,
when it did not own the aircraft. Zuma argues that William (not World Jet) owned the
aircraft when the October 25th Agreement was executed.
Specifically, paragraph 19 of the Complaint states that “according to a title search
of the FAA records, World Jet had executed an Aircraft Bill of Sale on September 18,
Because the Court has determined that an oral assignment is generally
permissible under Florida law and World Jet has not proven entitlement to summary
judgment based on standing, there is no need for the Court to consider Zuma’s
alternative argument that an equitable assignment occurred.
7

20

2013, to a certain William Whittington (assumed to be a family member of D.
Whittington). Said Bill of Sale was filed with the FAA Registry as Doc. ID# 0375 as early
as October 17, 2013 to William Whittington evidencing transfer [of] title of the
Aircraft[.]” [ECF No. 1, p. 5; 1-4]. Zuma also filed the bill of sale with its response to
World Jet’s summary judgment motion. [ECF No. 61, p. 44].
World Jet claims that the title search report produced by the vendor AEROtitle is
hearsay and, despite Zuma’s contention, it actually proves that World Jet was the
registered owner of the aircraft, as it explicitly says “Registered Owner: World Jet of
Delaware, Inc.” [ECF Nos. 1-4, p. 1; 55, p. 10]. World Jet also contends that the report
says that a registration application must be filed to effectuate a change in the
registration record. World Jet argues that this language in the title search report is
consistent with the substantive requirements to effectuate a change of registration, 14
CFR 47.5 & 47.31, which require both the filing of a bill of sale and a registration
application. [ECF No. 55, p. 10]. World Jet argues that the aircraft was never registered
to William because William never applied for registration, which is confirmed by
William’s affidavit. [ECF Nos. 55, pp. 10-11; 55-2, pp. 1-2]. World Jet also says that the
bill of sale was sent to the FAA in error by an escrow agent. [ECF No. 55-1, p. 6].
In response, Zuma takes the position that there is no requirement to register an
aircraft for the sake of proving ownership, and that a registration is required only to
operate the aircraft. [ECF No. 61, p. 7]. Zuma also submits an email that Barbara
21

Kennard, a broker liaison of Amstal Corporation, sent to World Jet on October 24, 2013,
the day before the October 25th Agreement was signed, regarding the bill of sale
addressed to William. [ECF No. 61, p. 18]. Zuma claims that this email, and World Jet’s
lack of response to it (as none was produced in discovery), proves that World Jet did
not dispute that William owned the aircraft. [ECF No. 61, p. 7].
Based on the AEROtitle search results, the bill of sale, and Ms. Kennard’s email,
World Jet’s argument is not convincing. It is clear that there are ample factual and legal
disputes regarding the ownership of the aircraft. Consequently, World Jet is not entitled
to summary judgment on this point.
Denial of Access to Log Books and Maintenance Records
Parol Evidence Rule
World Jet next argues that denying access to the aircraft’s log books and
maintenance records could not possibly amount to a breach because Zuma had no right,
contractual or otherwise, to access these records. World Jet explains that the right to an
inspection was not a provision in the Purchase Agreement or the October 25th
Agreement.8 It argues that the Court would impermissibly violate the parol evidence
rule if it were to add this provision into the agreements where none exists.

To be consistent with its argument that the Purchase Agreement was not
assigned to Zuma, World Jet describes the October 25th Agreement as the “Guaranty
Agreement.”

8

22

The parol evidence rule is “not a rule of evidence, but rather is a substantive rule
of law.” Knabb v. Reconstruction Fin. Corp., 144 Fla. 110, 130 (1940). Where a written
agreement is unambiguous, the parol evidence rule bars the introduction of extrinsic
evidence that would contradict or affect the construction of the document. Olive v.
Tampa Educ. Cable Consortium, 723 So. 2d 883, 884 (Fla. 2d DCA 1998) (citing Sears v.
James Talcott, Inc., 174 So. 2d 776 (Fla. 2d DCA 1965)). However, parol evidence is
admissible to prove the elements of an agreement where the writing is facially
ambiguous. Newbern v. Am. Plasticraft, Inc., 721 So. 2d 351, 352 (Fla. 2d DCA 1998).
Zuma is not asking the Court to consider extrinsic evidence to rewrite, alter, or
add to the Purchase Agreement or the October 25th Agreement. Instead, Zuma agrees
that the Purchase Agreement unambiguously and unequivocally states that the “aircraft
shall be delivered in an airworthy condition.” [ECF Nos. 1-1, p. 1; 61, pp. 8-9].
Zuma claims that under FAA regulation 14 C.F.R. 91.403, maintenance records of
an aircraft are required to certify and continue the airworthiness of an aircraft. [ECF No.
61, pp. 7-8]. This regulation states that “the owner or operator of an aircraft is primarily
responsible for maintaining that aircraft in an airworthy condition[.]”14 C.F.R. 91.403.
Zuma claims that “without the opportunity to have absolute confirmation that these
records exist, Zuma was unable to confirm whether or not World Jet was in compliance
with the conditions of the Purchase Agreement by delivering an airworthy aircraft[.]”
[ECF No. 61, p. 8]. It is undisputed that World Jet did not permit Zuma to inspect the
23

maintenance records and log books. Zuma claims that it could not close on the aircraft
purchase because of World Jet’s breach.
The Court agrees with Zuma that the parol evidence rule is inapplicable here
because Zuma is not asking the Court to consider any extrinsic evidence to alter the
interpretation of an unclear contract term. The airworthiness provision is unequivocally
in the Purchase Agreement, and as I previously determined, the oral assignment, if one
exists, which is yet to be determined by a jury, is not invalid as a matter of law. Further,
World Jet does not contest in its motion or reply that Zuma’s interpretation of the
“airworthiness” provision and what is required to prove airworthiness is erroneous as a
matter of law. World Jet merely states that the Court cannot rewrite the agreements to
“make a better deal for than [sic] was made by the parties.” [ECF No. 85, p. 4].
By recognizing that a contract provision may support Zuma’s breach of contract
claim, the Court is not rewriting the agreement or making a dispositive ruling that
World Jet breached the contract. Instead the Court is simply finding that World Jet has
not met its burden of proving entitlement to summary judgment on the breach of
contract claim based on the parol evidence rule.
Default
World Jet alternatively claims that there was no need for it to permit Zuma to
inspect the aircraft’s maintenance and log books because by February 14, 2014, the date
of the inspection request, Zuma had already defaulted on the October 25th Agreement.
24

World Jet states that Zuma was in default because the October 25th Agreement
required the balance of the aircraft to be paid by December 21, 2013. It is undisputed
that the full amount owed for the aircraft was not remitted on that date.
The October 25th Agreement states that “if the balance [due for the aircraft] is
not paid in full, the aircraft will be repossessed and the [Purchase Agreement] will be
null and void[,]” and if “a default does ensue, all monies paid to [World Jet] will be
retained for default of the agreement.” [ECF No. 1-2]. As a result, World Jet claims that
it is not liable because “[i]nspection of the Aircraft and log books or maintenance
records was not a condition precedent to the timely remittance of payment to [World
Jet].” [ECF No. 57, p. 5].
Zuma disputes the default assertion. It relies on the Extension Document to
prove that the December 21, 2013 deadline for final payment set in the October 25th
Agreement was extended to February 14, 2014. [ECF No. 1-3]. This document,
seemingly drafted by Don, states, “Mr. Ruperto Rosales of [Zuma] has agreed to pay
between two & three hundred thousand dollars for the month of January, 2014 for the
[aircraft]. The remaining balance which is approximately five hundred and fifty
thousand dollars is to be paid on February 14, 2014.” [ECF No. 1-3]. Plaintiff claims that
on February 14, 2014, the day it sought inspection of the maintenance records and log
books, it was “ready and able to make payment” in compliance with the Extension
Document. [ECF No. 61, p. 36].
25

Zuma also relies on Urdaneta’s and Vazquez’s affidavits in support of the
extended deadline. [ECF No. 61, pp. 16, 20-22]. Specifically, Zuma indicates in its
statement of disputed facts that Vazquez “had specific conversations regarding closing
the transaction between Plaintiff and World Jet on February 14, 2014, in which, World
Jet made no mention of default or the alleged December 21, 2013 deadline[.]” [ECF No.
61, p. 35].
But World Jet disputes all of this, contending that it never agreed to any
extension and that the Extension Document “is a fabricated and fraudulent document,
is not on the letter head of [World Jet], and the signature purporting to be that of [Don]
is a forgery.” [ECF No. 57, p. 4]. It relies on Don’s affidavit, where he avers that the
Extension Document “is a forgery. I know my own signature and the signature [of the
document] is not my signature and I did not authorize anyone to sign [it].” [ECF No. 551, p. 4].
In World Jet’s reply, it states that although it requested the original Extension
Document, which Zuma’s representatives and lawyers and Urdaneta promised to
provide, the original Extension Document has been lost or destroyed. [ECF No. 85, pp.
3-4]. World Jet states that although the Extension Document is “a crucial document, one
that would be dispositive of the claimed payment extension, [and] a document that is
disputed, [it] is no longer available for inspection and testing.” [ECF No. 85, p. 4].

26

In sum, Defendant is claiming that Plaintiff defaulted on an agreement by failing
to timely pay the remainder of the monies owed for the aircraft, that the Extension
Document is falsified, and that Plaintiff’s other supporting evidence (affidavits,
testimony, etc.) is perjured or fabricated. Predictably, Plaintiff argues the opposite: that
(1) the Extension Document is a true agreement; (2) the statements made supporting
this agreement are also truthful; and (3) the date it attempted to complete payment was
timely.
Deciding whether to believe Don’s averments over that of Urdaneta’s and
Vazquez’s involves resolving a factual dispute. This is for the jury to do, not for the
Court on summary judgment.
To be sure, a jury could conclude that Plaintiff has no credibility and that its
contentions about the Extension Document’s existence are without merit because,
perhaps in part, the original Extension Document cannot be located, which prevents
Defendant from employing a handwriting expert to explore the Extension Document’s
authenticity. However, a jury might also conclude otherwise and find Plaintiff’s story
credible, based in part on the testimony and first-knowledge of its own lawyer,
Vazquez. “The contradiction presents a classic swearing match, which is the stuff of
which jury trials are made.” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253 (11th
Cir. 2013).

27

Therefore, based upon the Extension Document submissions by Zuma
(contradicting World Jet’s own version of a scenario generating a purported default by
Zuma), the Court finds that World Jet’s failure to allow Zuma to inspect the aircraft’s
records could reasonably sustain a jury verdict for the non-movant on the breach of
contract claim. See Celotex, 477 U.S. at 322-23; Tyson, 121 F.3d at 646.
B.

Fraudulent Inducement

Zuma includes a count for fraudulent inducement based on World Jet’s
representation “to Zuma that it would obtain ownership to the aircraft upon making a
$200,000 payment and following through with the terms of the Purchase Agreement,
including paying the remaining amount due.” [ECF No. 61, p. 10].
The elements of a claim for fraudulent inducement are: “‘(1) a false statement of
material fact; (2) the maker of the false statement knew or should have known of the
falsity of the statement; (3) the maker intended that the false statement induce another’s
reliance; and (4) the other party justifiably relied on the false statement to its
detriment.’” Sena v. Pereira, 179 So. 3d 433, 435–36 (Fla. 4th DCA 2015) (quoting Prieto v.
Smook, Inc., 97 So. 3d 916, 917 (Fla. 4th DCA 2012)).
Here, Zuma contends that the alleged fraudulent statement (i.e., that World Jet
owned the aircraft) occurred in both the Purchase Agreement and the October 25th
Agreement. [ECF Nos. 1-1; 1-2; 61, p. 10]. Zuma claims that World Jet “made this
representation knowing that it was false, as [World Jet] had consummated the sale of
28

the Aircraft to a third party eight days before making the representation to Plaintiff on
October 25, 2013.” [ECF No. 1, p. 8]. The alleged third party buyer that Zuma refers to in
the Complaint is William, as evidenced by the bill of sale and the AEROtitle search
record. [ECF Nos. 1-4; 61, p. 44].
Zuma claims that World Jet intended for it to rely on the agreements’ indication
that it had title to the aircraft 9 to induce the $200,000 deposit. Indeed, Zuma says that it
would have not entered into the October 25th Agreement and paid the deposit to its
detriment if it had known that World Jet did not own the aircraft. As previously
discussed, World Jet disputes this allegation; it contends that the aircraft was not
conveyed to William at all relevant times and that the aircraft was instead registered to
World Jet at the United States Civil Aircraft Registry. [ECF Nos. 55, pp. 10-11; 55-1, p. 6;
55-2, pp. 1-2].
To prevail on summary judgment, World Jet must prove that, based on the
undisputed facts, Zuma cannot prevail on a fraudulent inducement claim at trial. World
Jet’s summary judgment position is that the fraudulent representation Zuma
purportedly relied on was not attributed to any particular person and that Zuma has
testified that the transfer of the ownership would not occur until full payment was
rendered. [ECF No. 56, p. 86]. In fact, Zuma agrees with World Jet’s statement. Zuma
The Court examined the agreements and finds that the alleged indication that
World Jet owned the aircraft is implicit in the agreements. There is no specific provision
explicitly stating in precise terms that World Jet has title to the aircraft. Nevertheless,
the context establishes that World Jet was in fact making this representation.
9

29

states that it knew that World Jet would not transfer ownership until Zuma paid World
Jet the remainder of the purchase price owed. [ECF No. 61, pp. 37-38].
It is undisputed that at the time the alleged fraudulent statements were made in
the agreements, the full purchase price for the aircraft was not paid. Because of this,
World Jet says that Zuma cannot prove the reliance element of fraudulent inducement
because it is undisputed that Zuma did not expect to own the aircraft before full
payment was rendered.
The Court disagrees with World Jet’s interpretation of the Complaint. It is clear
from the Complaint and Zuma’s response to the summary judgment motion that
Zuma’s position is that it relied on World Jet’s statements in the Purchase Agreement
and October 25th Agreement as to ownership of the aircraft. Based on this assurance,
Zuma remitted the $200,000 deposit to World Jet. Thus, Zuma’s reliance allegation is
not disproven by the undisputed fact that the deal would not be completed until full
payment was rendered.
After the October 25th Agreement was executed, Zuma was committed to
purchasing the aircraft and putting down actual money. Stated differently, Zuma’s skin
was in the game before the Purchase Agreement was fully performed. Furthermore,
World Jet does not cite any applicable legal authority to support its theory -- where a
deal is only partially performed, a buyer’s reliance on a seller’s fraudulent statements
for entering into an agreement is vitiated, and, as a result, the buyer’s deposit is
30

unrecoverable, notwithstanding a seller’s wrongdoing. Accordingly, the Court is not
persuaded by World Jet’s argument.
World Jet also argues for the first time in the reply that the fraudulent
inducement claim is barred by Florida’s independent tort doctrine because the fraud
claim is not independent of the breach of contract claim. See Lewis v. Guthartz, 428 So. 2d
222, 224 (Fla. 1982) (holding that there must be a tort “distinguishable from or
independent of [the] breach of contract” for a party to bring a valid claim in tort based
on a breach in a contractual relationship).
As the Court has previously discussed in this Order, it will not consider
arguments raised for the first time in a reply memorandum. Owens, 255 F. App’x. at 383
n. 4 (11th Cir. 2007); Matute, 2013 WL 6384610, at *2; S.D. Fla. L. R. 7.1(c). Therefore, the
Court will not consider World Jet’s new independent tort doctrine argument.
Because there are material disputes of fact about World Jet’s ownership of the
aircraft, as indicated by the AEROtitle search record and the bill of sale and World Jet’s
and William’s affidavits, and because Zuma submitted evidence to support its claim
that it relied on World Jet’s ownership of the aircraft before entering into the
agreements, Zuma’s fraudulent inducement claim cannot be disposed of in World Jet’s
favor in a summary judgment order.

31

C.

Damages

World Jet seeks a ruling from the Court that there is no evidence to support a
claim for damages. [ECF No. 55, pp. 19-20]. In making that argument, World Jet states
that “Zuma did not know whether the Aircraft was capable of being utilized for the
transportation of persons or cargo for hire or whether it was even equipped to conduct
such operations[;]” Zuma could not articulate a basis for any claim of lost profits; and
“Zuma has not identified an expert who will opine with respect to lost profits and the
means by which any such lost profits would be calculated.” [ECF Nos 43; 56, pp. 43,
117]. World Jet also says that Zuma is not entitled to damages because World Jet is not
liable for breach of contract or fraudulent inducement.
In response, Zuma states that, based on the oral assignment, Zuma has a right to
recover full damages under the Purchase Agreement, and the amount transferred to
World Jet currently totals $1,650,000.00, which includes the amount JC already paid.
[ECF No. 56, p. 116]. Zuma also states that it has personally paid $200,000 for acquiring
the aircraft. [ECF No. 61, p. 8].
World Jet contests this amount in its motion and says Zuma has remitted only
$164,000 to World Jet. [ECF No. 55, p. 20]. However, the Court is confused by this
statement because World Jet’s statement of undisputed facts represents that “other than
the moneys (U.S. $200,000.00) referred to in [the October 25th Agreement], no further
moneys were thereafter remitted to [World Jet] by Zuma.” [ECF No. 57, p. 4]. These two
32

statements seem inconsistent, or, at the least, require further explanation from World
Jet.
Defendant has therefore failed to discharge its burden on summary judgment by
simply concluding that Plaintiff is not entitled to damages because Defendant is not
liable and Plaintiff cannot establish damages at trial. Clark v. Coats & Clark, Inc., 929 F.2d
604, 608 (11th Cir. 1991) (“it is never enough simply to state that the non-moving party
cannot meet its burden at trial.”).
Furthermore, there are factual disputes about whether Zuma is entitled to
damages; what type of damages Zuma is entitled to; and, if damages are available, what
amounts should be awarded. Thus, the Court finds that this case is not yet ready for a
“no damages” determination on summary judgment. Instead, all the evidence,
including the disputes of fact as to the existence of recoverable damages, must be
presented and weighed by the jury. Therefore, the Court denies Defendant’s motion for
summary judgment on the issue of damages. See Ultra-Images, LLC v. Franclemont, No.
05-60538-CIV, 2007 WL 4557148, at *5–6 (S.D. Fla. Dec. 20, 2007) (denying defendants’
motion for summary judgment on damages as premature without hearing all the
evidence).
IV.

Conclusion

The Court denies in large part Defendant’s summary judgment motion on the
breach of contract and fraudulent inducement claims and damages because these
33

determinations arise from disputed facts which must be evaluated by a jury at trial.
However, the Court grants in small part summary judgment in favor of Defendant on
Plaintiff’s accounting claim and request for attorney’s fees based on Plaintiff’s voluntary
withdrawal.
DONE AND ORDERED in Chambers, in Miami, Florida, on September 25, 2017.

Copies Furnished to:
All Counsel of Record

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