Two missing seats net $575,000 verdict for plane buyer

When NASCAR’s Braun Racing went looking in 2008 for a plane to shuttle pit crews and their families from race to race, it wanted 30 seats. But it fell for a 27-seat 1994 Dornier 328-100 turboprop with low total airtime and only one prior owner, Pacific Gas & Electric.

When the seller, Concord-based Spitfire Aviation Parts, said that it could add two seats, Braun plunked down $3.625 million for the soon-to-be 29-seater. Only then did the parties learn that installing the seats would cost upwards of $100,000.

And when Spitfire balked, Braun sued.

“This was the only aircraft like this that the manufacturer ever made,” said Josh Durham of Poyner Spruill in Charlotte, who represented Braun Racing.   “Everybody’s thought going into the deal was that it was originally a 30-seat aircraft, that two or three seats had been removed that could fairly easily be put back. It was an odd bird, I guess. ”

After eight days of trial, a jury awarded Braun Racing $575,000 in February of this year.   The verdict is now on appeal.

“We feel that the verdict was not supported by the evidence in relation to the damages award,” said Spitfire’s attorney James Williams of Daughtry Woodard Lawrence & Starling in Smithfield. “We’re in the very early stages of the appeal and look forward to working through that process. ”

Spitfire claimed that PGE represented the plane as originally configured for 29 seats and that it would be easy to re-install seats, according to Durham. Spitfire had an estimate from AvCraft Support Services in Myrtle Beach of approximately $45,000 for installation of the seats.

The deal was structured so that Spitfire would buy the plane from PGE for $2.75 million and then immediately sell it to Braun for $3.625 million. But after getting a 27-seat plane at a 29-seat price, Braun sued to recover the $875,000 difference.

According to Durham, Braun Racing based its damage claim on the Uniform Commercial Code measure for the sale of a non-conforming good:  the value of the good at the time of delivery versus what it should have been.

“They went to the jury saying that there’s no real difference in value between what it was worth versus what it should have been worth if it had two extra seats,” Durham said. “We said that we paid one price for the plane because we thought we were getting it with 29 seats, and when Spitfire bought it from PG&E the same day, they bought it for $875,000 less. So in other words, they paid price X for a 27-seat aircraft, and then immediately sold it to us at a markup as a plane with two additional seats. That’s the best evidence of a similar sale. ”

Durham doesn’t know how the jury came to a final award of $575,000, though he suspects that it took Braun’s claim for $875,000 and subtracted some of Spitfire’s costs.   The jury had awarded Spitfire approximately $79,000 in maintenance costs owed by Braun (reduced later to $46,000 by the court) and $136,000 in damages on a third-party claim against Avcraft.

As for the odd bird, Todd Braun held on to it for a while after selling the race team in 2010.   “All the way through, Todd tried to resolve the case by saying ‘We’ll settle if you can get an estimate of what it’s going to cost to install these two seats and get them installed,’” Durham said.   “He ultimately sold it at a tremendous loss — approximately one-third of what he paid for it originally.   The first thing the buyer did was to add more seats to the aircraft.   He’s now flying the plane in Europe. ”

  Verdict Report Type of Action: Breach of contract

Injuries Alleged:  Damages arising from the purchase of an airplane to be used for race team

Name of case: Braun Racing Aviation, LLC v. Spitfire Aviation Parts, Inc.

Court: N.C. Superior Court, Iredell County

Case No.:  10-CVS-805

Tried Before:  Jury

Name of judge: Christopher W. Bragg

Amount:  $575,000

Date of Verdict:  February 15, 2012

Attorneys for Plaintiff:  Lee A. Spinks and Joshua B. Durham, Poyner Spruill, (Charlotte)

Attorneys for Defendants: Brien D. Stockman, Law Offices of Brien D. Stockman (Logan, Kan.);  James C. Williams, William Joel Starling, Jr., Daughtry Woodard Lawrence & Starling (Smithfield)

Copyright 2012 Dolan Media Newswires