Relentless Air Racing v. Airborne Turbine Ltd. CA2/6

Filed 3/25/13 Relentless Air Racing v. Airborne Turbine Ltd. CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

RELENTLESS AIR RACING, LLC, 2d Civil No. B237191 (Super. Ct. No. CV090342) Plaintiff, Cross-defendant and (San Luis Obispo County) Respondent,

v.

AIRBORNE TURBINE LTD. PARTNERSHIP,

Defendant, Cross-complainant and Appellant.

Here a jury found defendant breached a contract to provide a Federal Aviation Administration (FAA) airworthiness certificate for an airplane defendant sold to plaintiff. We affirm. FACTS In April 2004, Airborne Turbine Ltd. Partnership (Airborne) sold a former French military jet to the predecessor of Relentless Air Racing, LLC (Relentless).1 The jet is known to the parties as the "Paris Jet." The contract required Airborne to obtain a standard category airworthiness certificate (certificate) for the jet from the FAA. The certificate would allow the jet to be used as a charter aircraft to generate revenues. Relentless paid $175,000 and took possession of the jet.

1 Relentless and its predecessor entity are collectively referred to as "Relentless."

Airborne had difficulty obtaining the FAA certificate because of the jet's type of engines. Nevertheless, Wayne Fulton, a principal in Airborne, kept assuring Relentless that he could obtain the certificate. As early as 2005, Relentless's principal, Kevin Eldredge, urged Fulton to "unwind" the agreement. Eldredge wanted Airborne to repurchase the Paris Jet for the original purchase price plus the amount Relentless spent in restoring it. Instead, the parties entered into a new agreement on October 3, 2007. Under the new contract, Relentless agreed to purchase a helicopter from Airborne for $165,000. The purchase price was paid by a promissory note. The contract provides that payment in full on the note is due within 30 days of the date "the FAA releases the Standard Category Airworthiness for [the] Paris Jet." The contract further provides: "If Standard Category Certificate for Paris #027 cannot be attained on or before March 31st, 2008, [t]he promissory note for this sale will be reduced by $5000.00 each month starting April 1st, 2008 until FAA issues Standard Category Airworthiness for Paris Jet #027 OR [Airborne] agrees to purchase Paris Jet #027 for $204,540.00." The contract prohibits Relentless from assigning the contract or any interest therein. Relentless took possession of the helicopter subject to a security agreement giving Airborne a lien on the helicopter to secure its purchase price. The security agreement provides that if the helicopter is sold or transferred, the entire purchase price will become due. On December 31, 2008, Fulton sent Eldredge an e-mail. The e-mail states that in March 2008 Fulton told Eldredge about his efforts to obtain the FAA certificate for the Paris Jet. The e-mail further states: "Despite [Airborne's] repeated efforts before and after that time, the stalemate situation has not changed--persons and entities beyond [Airborne's] control are delaying and frustrating the transfer of the Paris Jet Type Certificate to the new designated Holder, and this is preventing [Airborne] from being able to deliver to