Right Rudder Swings Back
Last week, I wrote about the response from the county in the Right Rudder lawsuit. In that article, I mentioned that the county filed a counter suit and is suing Right Rudder for not leaving. They are seeking what amounts to an eviction.
On October 10th, Right Rudder filed its response.. and it is a good one.
As expected, Right Rudder agrees to a lot of what the county states... they had a contract.. its in Florida.. and so on. They disagree that Right Rudder was in violation of the contract.
In this filing, Right Rudder is starting to make its defense. They are claiming that 1) the contract was wrongfully terminated 2) the county's actions regarding subleases constitute a waiver 3) county's actions towards the Part 141 claim constitute a waiver 4) the county has breached the provision it seeks to now enforce.... and then they demand a jury trial.
Whoa.. Getting interesting. Let's take a look.
Right Rudder's first defense is that the contract was wrongfully terminated. As a reminder, the county terminated the contract because it claimed that Right Rudder was in violation for not sending the subleases of hangars to the county for approval and for not maintaining a Part 141 flight school certificate. The county claims that those violations were notified and not cured by the deadline and as such, they terminated the contract.
Right Rudder claims in its response that the leases were never required to be approved by the county, that there was an agreement in place that Right Rudder could operate the airport as it desired. That they have operated the airport for years and had notified the county they were subleasing, and the county had indicated that their approval was not necessary. Once they were asked, they submitted them under protest, but then the county never approved them in a timely manner (as the contract states). They claim that the county also admitted at a county commission meeting that they did not actually approve or deny the leases supplied by Right Rudder.
Right Rudder then claims that it is not a breach that they no longer have the Part 141 certification. The contract states that they need to obtain the certification. It does not use the words "maintain it". They obtained it, held it for a year and let it expire. During that year and the time since, they have not had a single student ask for Part 141 flight school. The claim they notified the county that it would expire and the county did not have any objection to that.
Something to note.. I was reading some contracts the county has signed previously. I came across the contract for the Safe Haven baby box. In that contract, the county agrees to "procure and maintain" monitoring services for the baby box. So there is language in contracts with the county that clearly state obtain and maintain. Not far fetched for Right Rudder to claim they were not required to "maintain" the certification
Defense #2 and #3 are similar to one another. Each claims that the county's actions constitute a waiver of the contract terms. Defense 2 is the subleases. Defense 3 is the Part 141.
In both of these arguments, they claim that because the county failed to acknowledge for years the breach of contract it now claims (while maintaining they are not breaches), that the county waived those issues. It is an intriguing argument. If the county never expressed concern about or challenged the Part 141 certificate expiration when they were notified about it, then how can they come back a couple years later and claim that it is a breach of contract now? Same with the subleases.... if they never approved them previously when given to them, why is it a violation if they were not approved now? Overlooking the alleged violations for years and never saying anything until recently?
Defense #4 is alleging that the county itself broke the contract. The argument here is that if Right Rudder was required to submit leases under the contract for approval, approval by the county cannot be unreasonably withheld, per the contract. They allege that since the county never attempted to approve or deny the leases Right Rudder did supply, that the county did not follow the terms of the contract by approving/denying them quickly... and it is the County that is in actual violation of the contract.
Interesting.
Now, we will see if the judge grants the trial by jury as requested or if she rules in favor of the county on the dismissal and the eviction and closes the case.