Jun 11, 2015 — LLC (“ACG”), and its CEO, Mario Abad, for breach of contract, Abad remarked the plane was in “good shape,” and the parties agreed.

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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 14 -11243 ________________________ D.C. Docket No. 1:12-cv-20607 -RSR THE DEMOCRATIC REPUBLIC OF THE CONGO , Plaintiff -Appellee , versus AIR CAPITAL GROUP, LLC and MARIO ABAD , Defendant -Appel lants . ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (June 11, 2015) Before MARTIN and FAY, Circuit Judges, and GOLDBERG, * Judge. __________________ *Honorable Richard W. Goldber g, United States Court of Intern ational Trade Judge, sitting by designation. Case: 14-11243 Date Filed: 06/11/2015 Page: 1 of 33 Democratic Republic of the Co v. Air Capital Group, LLC, et al Doc. 1108461216 Dockets.Justia.com

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2 GOLDBERG, Judge: A vintage aircraft, a Miami executive, and a central African head of state. With a cast like that , one might con fuse this case for a Bond film. But the matter before us is no work of fiction Šit is the true story of an airplane maintenance check gone south and the weeks -long trial that followed . And the star of the show is not a tuxedoed spy, but the Florida Deceptive and Unfair Trade Practices Act (fiFDUTPAfl) , a law that protect s consumers from predatory business schemes. See Fla. Stat. §§ 501.20 1Œ501.23 . The Democratic Republic of the Congo (fiDRCfl) sued Air Capital Group, LLC (fiACGfl), and its CEO , Mario Abad, for breach of contract, fr aud, and FDUTPA violations. The DRC won a jury verdict , and the defendants now appeal aspects of the judgment , including jurisdiction, their liability under the FDUTPA , and monetary damages. We reject each of these challenges, however, because the trial court had proper jurisdiction and correctly interpreted Florida law . We thus affirm and close the book on a saga that began in a Kinshasa apartment . Case: 14-11243 Date Filed: 06/11/2015 Page: 2 of 33

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3 BACKGROUND A. The Workscope Agreement Charles Deschryver had a problem. 1 As the Logistical A ssistant to Joseph Kabila, president of the DRC, Deschryver was charged to care for the president ™s aircraft, including a four -engine Boeing 707 -100 (the fiplanefl or fi707fl) . By early 2010, t he plane was due for a fiC -check,fl or heavy maintenance. Deschryve r searched from Ethiopia to Saudi Arabia to find a shop that would do the job , but without success . Then i n June 2010, Deschryver found what he thought he was looking for. At a flat in Kinshasa (the DRC ™s capital), Deschryver met with Stavros Papaioannou, the CEO of Hewa Bora Airlines, and with two executives from ACG , Mario Abad and Jaime Sanchez. Papaioannou suggested that ACG could do the C-check for Kabila ™s 707 , and Abad agreed . Deschryver was delighted by the news, and soon after the meeting ended, Abad and Sanchez inspected the plane at the airport. Abad remarked the plane was in figood shape,fl and the parties agreed that ACG would fix the 707 in Florida. Soon thereafter , Abad sent Deschryver a workscope agreement (the fiWorkscopefl or fiA greementfl) . The Workscope said that ACG would perform the C-check, apply airworthiness directives (fiADsfl) to the plane ™s engines, and finish 1 The facts that follow represent plaintiff ™s version of the evidence. See Shannon v. Bellsouth Telecomms., Inc. , 292 F.3d 712, 715 (11th Cir. 2002). Case: 14-11243 Date Filed: 06/11/2015 Page: 3 of 33

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4 other tasks for a flat fee of $2,255,872.30. Deschryver signed the A greement for the fiRepublic Democratic of Congo ,fl and he stamped the seal of the Presidency of the Re public on the signature block. ACG prepared its first invoice for the DRC on July 30, 2010 . The DRC requested the invoices because fithey needed some sort of documentation to be able to go to their gove rnment and get payments fl from the Ministry of Finance. The DRC paid the first $1 mill ion installment on July 12 , and the plane arrived in Florida on July 31. B. Oral Agreements to Replace Engines Three and Four Unwelcome difficulties arose soon after the plane reached Miami. While doing the C -check , ACG ™s fitechnical people discovered that one of the engines did not have appropriate paperwork and needed to be replaced.fl Aba d and Sanchez returned to the D RC to discuss the matter with Deschryver , and on September 10 or 11, the parties orally agreed to replace engine number three. Deschryver asked that the new engine come fiwith all the documents, QEC [quick engine change equipment ], all the AD and all the airworthiness directives and all the service in order, a 707 engine.fl The price for the engine would be $250,000. Then, when Deschryver visited Miami in late September, he learned that engine four also needed replacing . In its stead, Deschryver wanted fia 707 engine Case: 14-11243 Date Filed: 06/11/2015 Page: 4 of 33

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5 with all the service built in, all the AD, full QEC, full overhaul with all the documents.fl Like engine three, engine four would cost $250,000. C. A String of Broken Promises By October 28 , 2010, the DRC had paid $4 million toward the cost of repairs. Just d ays before , ACG ™s chief financial officer Antonio Neuman had asked for more money even though the company held over $2 million in reserve, allegedly to cover future charges. Deschryver was bewilderded by the mounting costs but paid the money anyway , and Abad reassured Deschryver that the replacement engines would soon arrive from Ireland. Abad added that he would do a test flight on December 12 and deliver the plane by December 16. Yet n othing happened the way Abad said it would. When the engines arrived from Ireland, ACG learned that neither were properly documented. As a result, the engines were unusable, and ACG agreed with ABX Air, Inc. (fiABXfl) , to buy replacements . Antonio Neuman signed the contract with ABX, which set the price of each new engine at $49,500. The replacement engines, which carried serial numbers 645402 (fi402fl) and 669706 (fi706fl) , were not serviceable upon delivery . Meanwhile, the December 16 deadline for delivery slipped past . When it did, Abad repeated that the work would finish soon, this time by January Šbut Abad had no personal knowledge that the project was near completion . In reliance Case: 14-11243 Date Filed: 06/11/2015 Page: 5 of 33

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6 on Abad ™s statements, Jean Tshiumba from the DRC Civil Aviation Authority and technical engineer Zacharie Nakwaya departed to inspect the 707 and collect it from ACG . But w hen Tshiumba and Nakwaya arrived in Miami on January 10, 2011, their hopes were dashed. As he inspected the replacement engines, Nakwaya found that 402 was completely disassembled and that 706 was closed and unserviceable. Both were choked with dust and nests. Furthermore, the engines were configured for a DC8 airplane, not for a Bo eing 707, which meant installation would take longer than anticipated . And Tshiumba, for his part, reported that the engines were not mounted and there was fino avionics equipment installedfl on the aircraft. The plane was unfit to fly, despite Abad ™s earlier assurances. D. The Liens and the Audit On April 21, Abad sent Deschryver more bad news. Bonus Tech, the com pany servicing the plane ™s original engines, had filed a lien on the engines for $147,861.42. A few weeks later, Abad reported that Commercial Jet, Inc., which was performing the C -check, planned to file its own lien on the plane. The news irked Deschryver, because the DRC had already paid $5 million for the repairs, and Abad kept fi on telling [Deschryver] that the aircraft [was] ready.fl The DRC forked over another $1,381,531.64 to keep the work going. Case: 14-11243 Date Filed: 06/11/2015 Page: 6 of 33

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8 corrosion and other damage in the engine, the DRC chose to reject it . ACG ke pt engine 402 for its inventory. Then in December, the parties met to discuss engine 706. While moving to a new facility, the c ompany servicing 706 , the Turbine Engine Center, had misplaced the engine ™s records. The DRC had requested the records since June, and the y now threatened to reject 706 unless the documents turned up within 48 hours. The DRC rejected the engine when ACG failed to find the r ecords in the time allotted . F. The Lawsuit The DRC lodged a civil complaint against ACG, Abad, and others on February 14, 2012. Six counts were alleged, including fraudulent inducement, breach of contract, fraud in the purchase and repair of engines 402 and 706, fraud in the purchase and installation o f Stage III hush kits ( to quiet engine noise), a viol ation of the FDUTPA , and replevin. The trial began over a year later on July 2, 2013. At trial, expert witness John Zappia testified about damages. As part of his testimony, he presented a chart listing twe nty-six line items. In lines 4 through 23, part of 24, and 26, Zappia recounted the costs of ACG ™s alleged breach of contract. The estimated damages from the breach totaled $1,175,415.04. Case: 14-11243 Date Filed: 06/11/2015 Page: 8 of 33

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9 Zappia also tes tified about damages from the replacement engines, comprising lines 1 through 3 and 25 of the chart. Included in this estimate were : (1) the costs of rep airing engine 706 ($121,676.15); (2) the costs of repairing engine 402 ($151,691.92); (3) the cost of the failed test flight, which would need to be performed again ($85,969.66 ); and (4) the purchase price of engines 402 and 706, which ACG still held ($1,178,048.50) .2 Zappia also recommended a recovery 25 of the damages summary. For each of these items , Zappia said he calculated the amount based on fithe difference between the value of the product or service that DRC paid for and the value of the prod uct or service that they received.fl At the close of the evidence, defendants moved for judgment as a matter of law. The court denied the motion. Then, on July 31, the court instructed the jury regarding liability and da mages. When addressing the FDUTPA, the court explained that the statute allowed only actual damages, or fithe difference in the market value of the product or service in the condition in which it was delivered and its market value in the condition it should have been delivered according to the agreement of the parties.fl The court did not instruct the jury regarding the apportionment of damages between defendants. 2 Zappia testified that the total damages from the replacement engines was $540,755.83. It is not cle Case: 14-11243 Date Filed: 06/11/2015 Page: 9 of 33

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10 The jury returned a verdict on August 1 , 2013. ACG was held liable for breach, and the jury awarded the entire amount Zappia recommended on that claim ($1,175,415.04). They also held ACG and Abad liable for fraud regarding the replacement engines. On the verdict sheet, the jury wrote that ACG had to pay $362,707.03, plus plaintiff could fipic k up [the] enginesfl from ACG . The jury also found ACG and Abad liable for a FDUTPA violation , and they awarded $720,848.04 from ACG on that count . The jury exacted no monetary damages from Abad on the fraud and FDUTPA claims . Later that month, the DRC moved to alter the judgment. Plaintiff argued that although the jury demanded no dama ges from Abad, ACG and Abad were jointly and severally liable on the engine fraud and FDUTPA claims. Defendants filed a motion of their own , but for remittitur and renewed judgment as a matter of law. They argued that plaintiff could not recover under FDUTPA because Zappia had not established the difference between the market price of contracted -for services and the value the DRC actually received. They also claimed that the FDUTPA award constituted a dou ble -recovery because it included line ite ms from both the breach and fraud claims. On March 19, 2014, t he court granted the DRC ™s motion to amend the judgment and denied ACG ™s motion for judgment as a matter of law. This appeal followed. Case: 14-11243 Date Filed: 06/11/2015 Page: 10 of 33

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11 DISCUSSION The defendants now attack multiple components of the result below , from the corner stone of jurisdiction to cupola of damages apportionment . We reject each argument and affirm in full. I. The DRC Has Constitutional Standing to Bring Its Claims To begin, d efendants allege that the trial court lacked jurisdiction to try the case . Citing quotes sprinkled throughout the record, they suggest that the DRC government Šthe plaintiff here Šhas nothing to do with the DRC ™s Office of the President and Joseph Kabila, who owns the 707 . If this were true, then the DRC would lack a stake in the litigation, and the court would have to dismiss the case for want of constitutional standing .3 We find defendant s™ cherry -picked political theory too fragile to support the argument. We agree, of course, that the Constitution extends the federal judicial power only to controversies between real parties in interest . See U.S. Const. a rt. III, § 2. Courts cannot decide claims where plaintiff s have suffered no invasion of a l egall y protected interest, or injury in fact. See Lujan v. Defenders of Wildlife , 504 Houston v. Marod Supermkts., Inc. , 733 F.3d 1323, . But here, plaintiff more than proved that it suffered an 3 fiWe review de novo basic questions concerning our subject matter jurisdiction, including standing.fl DiMaio v. Democratic Nat ™l Comm. , 520 F.3d 1299, 1301 (11th Cir. 2008). Case: 14-11243 Date Filed: 06/11/2015 Page: 11 of 33

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