                                                                                       ACCEPTED
                                                                                   03-17-00571-CV
                                                                                         21588604
                                                                         THIRD COURT OF APPEALS
                                                                                   AUSTIN, TEXAS
                                                                                  1/3/2018 4:23 PM
                                                                                 JEFFREY D. KYLE
                                                                                            CLERK
                            No. 03-17-00571-CV
                                   In the
                                                                    FILED IN
                          Third Court of Appeals             3rd COURT OF APPEALS
                                                                 AUSTIN, TEXAS
                                 at Austin
                                                             1/3/2018 4:23:50 PM
                      ____________________________             JEFFREY D. KYLE
                                                                     Clerk
                             FALL AIR, INC.,
                                            Appellant,
                                     v.
                              PAUL SISSONS,
                                            Appellee,
                     _____________________________
                   On Appeal from the 425th District Court
                       of Williamson County, Texas
                    ______________________________

                      APPELLANT’S REPLY BRIEF
                     ______________________________

Frederick C. Morello, Esq.         Robert J. Wood, Jr.
FREDERICK C. MORELLO, PA           State Bar No. 00788712
Florida State Bar No. 0714933      robert@mylawteam.com
111 N. Frederick Ave., 2nd Flr.    T. Blake Edwards
Daytona Beach, FL 32113            State Bar No. 24050553
Phone: 386-252-0754                blake@mylawteam.com
Fax: 386-252-0921                  LINDQUIST WOOD EDWARDS, LLP
Email: live2freefly@gmail.com      1700 Pacific Avenue, Suite 2280
                                   Dallas, TX 75201
                                   Phone: 214-382-9789
                                   Fax: 214-953-0410



                    ORAL ARGUMENT REQUESTED
                          TABLE OF CONTENTS
                                                                     Page

TABLE OF CONTENTS…………………………………………………………. ii

INDEX OF AUTHORITIES……………………………………………………... iv

SUMMARY OF ARGUMENT………………………………………………….... 1
ARGUMENT……………………...……………………………………………..... 2

      I.     SISSONS’ APPELLEE’S BRIEF DOES NOT ADDRESS
             THE FACTS AND ISSUES RAISED IN APPELLANT’S
             BRIEF AND DOES NOT SATISFY TEX. R. APP. P. 38.2(a)(2)....... 2

      II.    DESPITE SISSONS’ CLAIM TO THE CONTRARY, THE
             TRIAL COURT ERRED IN GRANTING SUMMARY
             JUDGMENT ON PLAINTIFF’S DTPA AND BREACH OF
             FIDUCIARY DUTY CLAIMS BECAUSE SISSONS DID
             NOT ADDRESS THOSE CLAIMS IN HIS MOTION FOR
             SUMMARY JUDGMENT………………………………………...… 5

      III.   DESPITE HIS BURDEN TO DO SO, SISSONS STILL
             FAILED TO (1) ESTABLISH THE DATE PLAINTIFF’S
             CLAIMS ACCRUED, AND (2) NEGATE THE DISCOVERY
             RULE………………………………………………………………... 9

      IV.    SISSONS’ ARGUMENT TO REBUT FRAUDULENT
             CONCEALMENT RELIES SOLELY UPON THE INJURY
             BEING ONE FRACTURED CT BLADE IN THE RIGHT
             ENGINE. SISSONS FAILED TO ADDRESS OR REBUT
             PLAINTIFF’S ARGUMENT ON THE APPLICATION OF
             THE FRAUDULENT CONCEALMENT DOCTRINE. THE
             “INJURY” SISSONS IS BEING SUED FOR IS THE
             INSTALLATION OF PARTS THAT WERE PROHIBITED
             IN BOTH ENGINES AND WHICH HE FALSELY ATTESTED
             TO MEETING THE MANUFACTURER AND FAA
             STANDARDS…………………………………………………….... 13



No. 03-17-00571-CV
Appellant’s Reply Brief              ii
      V.     IT IS UNKNOWN WHY SISSONS IS ARGUING AND
             CITING CASE LAW ON AN “INFORMAL” OR “SPECIAL
             RELATIONSHIP” FIDUCIARY DUTY. PLAINTIFF HAS
             REQUESTED THIS COURT TO DECLARE THE RELATIONSHIP
             BETWEEN IA AND AIRCRAFT OWNER A FIDUCIARY
             RELATIONSHIP AS A MATTER OF LAW, LIKE THE
             ATTORNEY-CLIENT RELATIONSHIP…………………………. 15

PRAYER ……………………………………...………………………………… 16
CERTIFICATE OF COMPLIANCE…………………………………………….. 18

PROOF OF SERVICE…………………………………………………………… 18




No. 03-17-00571-CV
Appellant’s Reply Brief         iii
                          INDEX OF AUTHORITIES


STATE CASES
G&H Towing Co. v. Magee,
347 S.W.3d 293 (Tex. 2011)………………………....…………………......…..…. 5

Jacobs v. Satterwhite,
65 S.W.3d 653 (Tex. 2001)……………………………………………………....... 5

Salinas v. Gary Pools, Inc.,
31 S.W.3d 333 (Tex. App.—San Antonio 2000, no pet.) ………………………..... 6

LaGloria Oil and Gas Co. v. Carboline Co.,
84 S.W.3d 228 (Tex. App.—Tyler 2001, pet. denied)………………………..…… 6

Cluck v. Mecom,
401 S.W.3d 110 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) …….…...... 6

Dernick Resources, Inc. v. Wilstein,
312 S.W.3d 864 (Tex. App.—Houston [1st Dist.] 2009, no pet.) ……….……... 6, 7

Science Spectrum, Inc. v. Martinez,
941 S.W.2d 910 (Tex. 1997) …………………………………………..…….…..... 8

STATUTES
TEX. R. APP. P. 38.2(a)(2)……………………………………………….……….… 2
TEX. BUS. & COM CODE § 17.565…………………………………………...……... 6




No. 03-17-00571-CV
Appellant’s Reply Brief               iv
                          SUMMARY OF ARGUMENT

      If the purpose of an Appellee’s Brief is to regurgitate what was argued below

at Summary Judgment, then Sissons’ Appellee’s Brief is a model brief. However, if

the purpose of an Appellee’s Brief is to address and rebut the facts and issues raised

in the Appellant’s Brief, then Appellee’s Brief completely misses the mark. In this

case, Sissons has ignored the following facts and issues raised in Appellant’s Brief:

         • Plaintiff did not discover, until May 2014, that the compressor turbine
           blades (“CT blades”) of both engines of the aircraft owned by Plaintiff
           (the “Aircraft”) were installed too short;

         • Plaintiff’s injuries in this case are having to re-install the CT blades that
           were installed too short after Sissons improperly certified they were
           installed correctly;

         • the Aircraft’s right engine (the “Right Engine”) failure on June 8, 2009
           had nothing to do with blade length;

         • the Right Engine failure was the result of a single blade cracking as a
           result of High Cycle Fatigue (“HCF”);

         • the other 57 CT blades in the Right Engine did not fail on June 8, 2009;

         • neither the left engine of the Aircraft (the “Left Engine”), nor the 58 CT
           blades contained therein, failed on June 8, 2009; and

         • there is no evidence or allegation that Sissons did anything wrong with
           respect to the Right Engine failing because of a CT blade fracture on
           June 8, 2009.

      In fact, the following words are missing completely from Sissons’ Brief:

“short” (blades), “left engine,” or “other engine.” The injury Sissons is being sued
for is authorizing the installation of short blades in both engines, which did not cause

either engine to fail.

       Approximately 90% or more of Sissons’ Brief is a recitation of case law,

without any application of the facts of those cases to this case. Sissons’ Brief relies

upon the same old argument that Plaintiff’s injury in this case was either the Right

Engine failing or a cracked CT blade. However, Sissons fails to explain how an

engine failure or cracked CT blade translates to an injury that the CT blades in both

engines were installed too short after he attested that they were installed in

accordance with Pratt and Whitney and FAA standards on FAA Form 337. Sissons

completely ignores the facts that (1) the evidence he submitted to the Trial Court

proves that the cracked CT blade had nothing to do with improper blade length and

(2) the Left Engine did not fail.

                                    ARGUMENT

I.     SISSONS’ APPELLEE’S BRIEF DOES NOT ADDRESS THE FACTS
       AND ISSUES RAISED IN APPELLANT’S BRIEF AND DOES NOT
       SATISFY TEX. R. APP. P. 38.2(a)(2).

       TEX. R. APP. P. 38.2(a)(2) states that, “When practicable, the appellee’s brief

should respond to the appellant’s issues or points in the order the appellant presented

those issues or points.” Despite this Rule, Sissons’ Brief fails to address the facts,

issues, and points raised in Appellant’s Brief. Regurgitation of summary judgment

arguments (which is what Sissons did in his Brief) does not satisfy the purpose of an

No. 03-17-00571-CV
Appellant’s Reply Brief                    2
Appellee’s Brief. Below are just some of the facts raised in Sissons’ Brief which are

inaccurate and/or misleading and issues and points from Appellant’s Brief which

Sissons chose to ignore in his Brief.

      Sissons’ Brief at pages 1-2 states that both engines were inspected in May

2011, but that statement is inaccurate. A reading of C.R. 247-248 does not support

that assertion. Only one set of blades in the Right Engine (the engine that failed)

were inspected as of that date. (see also Court Order that only the blades of the Right

Engine were inspected. (C.R. 278-279)). The Right Engine was never released to

Plaintiff during the Florida Case. (C.R. 250).

      Sissons’ Brief at page 1 states that, “Appellant admits the condition of the

blades is not something the Appellee was capable of discovering,” citing C.R. 72-

76. That citation is a cherry picking of Mr. Nardi’s (owner of Fall Air) deposition

where he explained the theory in the Florida Case that a suspected blade swap may

have occurred in trying to discover the cause of the fractured blade. If a blade swap

had occurred, Mr. Nardi admitted in his deposition in Sissons’ case that Sissons

would not have found a blade swap in Century Turbine’s records. However, when

Plaintiff’s expert confirmed there was no blade swap in examining the cause of the

fractured blade, that theory in the Florida Case went down the toilet. Sissons ignores

the fact that during the second inspection in May, 2014, Plaintiff’s expert uncovered

the fact that the CT blades were improperly installed below minimum length (C.R.

No. 03-17-00571-CV
Appellant’s Reply Brief                   3
248) (which had nothing to do with the Right Engine’s catastrophic failure, caused

by a cracked CT blade). This was the first discovery by Plaintiff of the “injury”

caused by Sissons, finding improper parts were installed which was corroborated by

the work sheets of Century Turbines that Sissons reviewed prior to examining FAA

Form 337. (C.R. 248-250, 258-267, 280-283, 304, 314-319, 393, 395, 403).

      The fact that the CT blades were installed too short in both engines was

admitted by Sissons’ counsel to the Trial Court at the summary judgment hearing.

(R.R. Vol. II, p. 21). Sissons never explains how one cracked CT blade in one engine

translates into short blades being installed in both engines, where there was no CT

blade fracture or failure of any CT blade in the Left Engine. Sissons never explains

how the expert report by Sherry Labs (C.R. 127-129; 135-137) he relied upon at

summary judgment, concluding the CT blade fracture was due to HCF, equates to

short blades being installed in both engines. Simply stated, the fractured blade in

the right engine was one “injury,” the installation of short blades in both engines was

a distinct and separate “injury.”

      Absent from the facts is how or when Sissons learned the CT blades were

installed below minimum standards in both engines (R.R. Vol. II, p. 21); likewise

absent is why he did not see this in Century Turbine’s paperwork (which he would

have reviewed before executing the FAA Form 337), which paperwork reflected the



No. 03-17-00571-CV
Appellant’s Reply Brief                   4
blades were installed below minimum standards. (C.R. 249, 258-267, 280-283, 304,

314 – 319, 393, 395, 403).

    II.   DESPITE SISSONS’ CLAIM TO THE CONTRARY, THE TRIAL
          COURT ERRED IN GRANTING SUMMARY JUDGMENT ON
          PLAINTIFF’S DTPA AND BREACH OF FIDUCIARY DUTY CLAIMS
          BECAUSE SISSONS DID NOT ADDRESS THOSE CLAIMS IN HIS
          MOTION FOR SUMMARY JUDGMENT.
          Apparently recognizing that granting a summary judgment on a claim not

addressed in the summary judgment motion is, as a general rule, reversible error,1

Sissons urges this Honorable Court to affirm the Trial Court’s dismissal of Plaintiff’s

claims for violations of the Texas Deceptive Trade Practices Act (“DTPA”) and

breach of fiduciary duty (the “Newly-Filed Claims”), even though Sissons did not

address those claims in his Motion for Summary Judgment. 2 According to Sissons,

the limitations period for the Newly-Filed Claims is the same as the limitations

period for the original claims on which he moved for summary judgment (the

“Earlier-Filed Claims”). Thus, Sissons asserts that since he proved entitlement to

the limitations defense on the Earlier-Filed Claims (which he did not), the Newly-

Filed Claims were properly dismissed even if not addressed in his Motion for

Summary Judgment. See Appellee’s Brief at pp. 21-22.

1
  G&H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011); Jacobs v. Satterwhite, 65 S.W.3d
653, 655–56 (Tex. 2001).
2
  The Newly-Filed claims were included in Plaintiff’s First Amended Petition that was filed after
Sissons filed his Motion for Summary Judgment, and Sissons opted not to amend that Motion.
(Second Supp. 9-10; C.R. 7-14).

No. 03-17-00571-CV
Appellant’s Reply Brief                        5
       The problem with this argument is that Sissons focused solely on the

limitations period for the respective claims (i.e. 2 and 4 years), without addressing

whether the Earlier-Filed Claims and Newly-Filed Claims “accrued” at the same

time. In attempting to establish when Plaintiff’s Earlier-Filed Claims accrued,

Sissons asserted in his Motion for Summary Judgment and continues to assert in his

Appellee’s Brief that that the discovery rule did not apply to the Earlier-Filed

Claims. See Appellee’s Brief at pp. 4, 11-14. Sissons argues that Plaintiff’s injury

was “not inherently undiscoverable” and, as a result, “there is no basis for application

of the discovery rule to toll the accrual of any limitations period.” (C.R. 12-13); see

also Appellee’s Brief at p. 9.

       Sissons ignores, however, that the discovery rule is built into the DTPA and

thus “always applies to DTPA claims.” Salinas v. Gary Pools, Inc., 31 S.W.3d 333,

336 (Tex. App.—San Antonio 2000, no pet.) (emphasis added); see also LaGloria

Oil and Gas Co. v. Carboline Co., 84 S.W.3d 228, 238 (Tex. App.—Tyler 2001, pet.

denied); TEX. BUS. & COM CODE § 17.565. Similarly, “the Texas Supreme Court

has held that a fiduciary’s misconduct is inherently undiscoverable.” Cluck v.

Mecom, 401 S.W.3d 110, 118 (Tex. App.—Houston [14th Dist.] 2011, pet. denied)

(emphasis added).3


3
  A breach of fiduciary duty of disclosure (Sissons failed to disclose that the repairs were not made
in accordance with Pratt & Whitney standards ) is also tantamount to concealment for limitations

No. 03-17-00571-CV
Appellant’s Reply Brief                          6
       Based on his belief that the discovery rule has no application in this case,

Sissons made no attempt to establish the date on which Plaintiff discovered or in the

exercise of reasonable diligence should have discovered the occurrence of Sissons’

wrongful conduct. As a result, Sissons made no attempt to establish when Plaintiff’s

DTPA or breach of fiduciary duty claims accrued. He is thus disingenuous in

arguing to this Honorable Court that his purported entitlement to a limitations

defense on fraud and negligence somehow translates to the same defense on

Plaintiff’s DTPA and breach of fiduciary duty claims.

       In attempting to convince this Honorable Court to affirm summary judgment

on Plaintiff’s Newly-Filed Claims, Sissons further argues “harmless error.”

Specifically, Sissons argues that those claims in the Amended Petition are barred by

limitations, that there is no fiduciary duty owed by him to Plaintiff, and that as a

result those claims would be dismissed anyway. See Appellee’s Brief at pp. 22-23.

As an initial matter, Sissons failed to address when Plaintiff’s DTPA and breach of

fiduciary duty claims accrued. Therefore, he has not established his limitations

defense on those claims. Further, Sissons did not move for summary judgment on




purposes and “the statute of limitations for a breach of fiduciary duty claim does not begin to run
until the claimant ‘knew or should have known of facts that in the exercise of reasonable diligence
would have led to the discovery of the wrongful act.’” Dernick Resources, Inc. v. Wilstein, 312
S.W.3d 864, 878 (Tex. App.—Houston [1st Dist.] 2009, no pet.) citing Little v. Smith, 943 S.W.2d
414, 420 (Tex. 1997).

No. 03-17-00571-CV
Appellant’s Reply Brief                         7
the basis of him not being a fiduciary of Plaintiff, 4 and thus, likewise has not

established his entitlement to summary judgment on that issue.

       Sissons’ final argument on this issue is that Plaintiff waived its argument that

summary judgment on all of Plaintiff’s claims was improper when Sissons only

moved for summary judgment on the Earlier-Filed Claims. See Appellee’s Brief at

p. 22. There are several problems with this argument. First, Sissons cites no legal

authority in support of it. Although he cites as authority TEX. R. APP. P. 31.1, that

rule deals with “Filing the Record” and does not support his argument. Second,

Sissons fails to explain how Plaintiff would even raise this issue in the Trial Court.

In Plaintiff’s Response to Sissons’ Motion for Summary Judgment, all of Plaintiff’s

pending causes of action (including those added in the Amended Petition) were listed

for the Trial Court to see, along with case law governing the standard for summary

judgment and the movant’s burden on those causes. (C.R. 226, 228, 229). Plaintiff

also addressed in its summary judgment response and at the summary judgment

hearing how Plaintiff’s DTPA claim was distinct from the other claims pled, in that

it did not require a showing of “inherent undiscoverability” and/or “objective




4
  Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997) (“A motion for summary
judgment must itself expressly present the grounds upon which it is made, and must stand or fall
on these grounds alone.”).

No. 03-17-00571-CV
Appellant’s Reply Brief                        8
verifiability” and that “constructive notice” does not apply to a DTPA claim. (C.R.

237-239); (R.R. Vol. VII, pp.18-21).

       Yet, despite Sissons moving for summary judgment on some, but not all, of

Plaintiff’s claims, the Trial Court granted summary judgment on all claims a few

days after the hearing. How and why would Plaintiff be on notice that the Trial

Court would grant summary judgment on all claims if they were absent from

Sissons’ motion and requested relief, when there was no opportunity for Plaintiff to

object. Plaintiff first learned the Trial Court would address the Newly-Filed Claims

when it granted summary judgment on all claims, even those absent from Sissons’

motion.    Plaintiff did argue at the hearing that the concepts of “inherent

undiscoverability,” “objective verifiability” and constructive notice did not apply to

a DTPA claim in the amended petition. (R.R. Vol. II, pp. 18-21).

III.   DESPITE HIS BURDEN TO DO SO, SISSONS STILL FAILED TO (1)
       ESTABLISH THE DATE PLAINTIFF’S CLAIMS ACCRUED, AND (2)
       NEGATE THE DISCOVERY RULE.

       The entirety of Sissons’ argument concerning the date Plaintiff’s causes of

action accrued (Section II of his Brief) and his argument for why the discovery rule

does not apply in this case (Section III of his Brief) is based upon his underlying

assertion that Plaintiff’s “injury” occurred on June 8, 2009—the date a single blade




No. 03-17-00571-CV
Appellant’s Reply Brief                   9
in the Right Engine of the Aircraft failed as a result of HCF. Indeed, Sissons makes

the following references to Plaintiff’s “injury” in his Brief:

          • “Appellant’s injury, and hence when the causes of action accrued,

             occurred no later than June 8, 2009, when one of the engines failed

             in flight.”

          • “On the day that the engine catastrophically failed, June 8, 2009,

             Appellant knew that it had suffered an injury and that the engine

             failure was the result of a failed compressor turbine blade.”

          • “More than 6 years passed between the date Appellant knew that it

             suffered a catastrophic injury, in June 8, 2009, and the date Appellant

             filed its negligence and fraud claims in the Court Below, on November

             4, 2015.”

          • “The injury alleged to have been suffered occurred on June 8, 2009,

             when the engine catastrophically failed in flight.”

See Appellee’s Brief at pp. x, 1, 4, 9 (emphasis added).

      There are multiple flaws with Sissons’ claim that Plaintiff was “injured” on

June 8, 2009.

      First, the “injury” that is the subject of this lawsuit is Plaintiff having to re-

install—on both engines—the CT blades that were installed too short and below the



No. 03-17-00571-CV
Appellant’s Reply Brief                   10
manufacturer’s standards. The “injury” in this case (as opposed to the injury asserted

in the Florida Case against Century Turbines) is not, as Sissons would have this

Court believe, the Right Engine failing. Sissons’ argument that Plaintiff’s injury

occurred on the date the Right Engine failed could only possibly make sense if the

Right Engine failure was caused by short blades. But there is no evidence of that.

The only evidence before the Court is that the Right Engine failed as a result of HCF

and had nothing to do with blade length. (CR 104, 106, 107).

      Second, Sissons’ argument that claims against him began to accrue on the date

of the Right Engine failure presumes that he did something wrong in connection with

that engine failure. Indeed, Sissons claims in his Brief that, “Appellant uses much

of its brief in this Court trying to establish that it could not have known the exact

nature of Appellee’s alleged wrongdoing or full extent of its damages, and urging

this Court to find that accrual does not start until Appellant knew of the precise

nature of the alleged wrongdoing of Appellee.” See Appellee’s Brief (emphasis

added) at p. 7. But this is not a case of Plaintiff not knowing the “exact nature of

Sissons’ wrongdoing” as of the date of the Right Engine failure; this is a case of

Plaintiff having no reason to believe (and still having no reason to believe) that

Sissons did anything at all wrong in connection with that engine failure that was

caused by single fractured blade. Thus, it makes no sense for the Right Engine

failure to be the operative date for limitations purposes for the claims against

No. 03-17-00571-CV
Appellant’s Reply Brief                  11
Sissons. Sissons apparently believes that claims against the entity that did the work

on the engines (Century Turbines) accrue on the same date as the claims against him

(the inspector of the work). In doing so, Sissons wholly fails to recognize that the

wrongful acts of him and Century Turbines are different and the injuries suffered are

different.

      Third, Sissons’ argument completely ignores the fact that the Left Engine

(and all 58 CT blades contained therein) did not fail on June 8, 2009 or that the other

57 CT Blades in the Right Engine did not fail on June 8, 2009. In fact, despite

Plaintiff making these points in its Appellant’s Brief, Sissons did not mention the

Left Engine or short blades at all in his Appellee’s Brief.

      Fourth, Sissons’ argument presumes that engine failure and IA liability go

hand-in-hand. Without directly telling the Court in so many words, Sissons is

arguing that once an aircraft engine fails, the aircraft owner is on notice of claims

against an IA. But there can be engine failure without IA liability. Indeed, as noted,

there is no claim that Sissons did anything wrong with respect to the HCF that caused

the Right Engine failure. Likewise, there can be IA liability without engine failure.

Put another way, at the time the Right Engine failed, on what basis would Plaintiff

have sued Sissons? At that time, it had no idea that the CT blades were installed too

short and there was no basis for imposing liability on Sissons with respect to the

Right Engine failure.

No. 03-17-00571-CV
Appellant’s Reply Brief                   12
      The bottom line is this: the uncontroverted summary judgment evidence is

that Plaintiff did not know that the CT blades in both engines were installed below

the manufacturer’s specifications until May, 2014 (C.R. 223, 247-49), and thus,

Plaintiff did not know of its “injuries” until that date. Rather than finding evidence

to rebut Plaintiff’s evidence in this regard, Sissons chose to focus on a completely

separate injury (Right Engine failure) caused by something completely unrelated to

blade length (a blade cracking from HCF) to establish the date Plaintiff’s claims

accrued. In doing so, Sissons misses the mark on limitations issues and fails to carry

his burden of demonstrating when Plaintiff’s claims accrued and negating the

discovery rule.

IV.   SISSONS’   ARGUMENT       TO     REBUT     FRAUDULENT
      CONCEALMENT RELIES SOLELY UPON THE INJURY BEING
      ONE FRACTURED CT BLADE IN THE RIGHT ENGINE. SISSONS
      FAILED TO ADDRESS OR REBUT PLAINTIFF’S ARGUMENT ON
      THE APPLICATION OF THE FRAUDULENT CONCEALMENT
      DOCTRINE. THE “INJURY” SISSONS IS BEING SUED FOR IS THE
      INSTALLATION OF PARTS THAT WERE PROHIBITED IN BOTH
      ENGINES AND WHICH HE FALSELY ATTESTED TO MEETING
      THE MANUFACTURER AND FAA STANDARDS.

      In arguing that fraudulent concealment does not apply in this case, Sissons

first cherry picks the deposition testimony of Mr. Nardi, Fall Air’s owner (see

Appellee’s Brief at pp. 15, 16), by citing to Plaintiff’s original theory of the Florida

Case that the part number of the broken blade in the Right Engine may have indicated



No. 03-17-00571-CV
Appellant’s Reply Brief                   13
a blade swap. If a blade swap was done by Century Turbines, by the vendor who

performed the work, Mr. Nardi explained that Sissons would not have seen it in any

documentation by Century Turbines. What Sissons does not address is Mr. Nardi’s

Affidavit. (C.R. 245-251). His affidavit explained that it was the second expert

examination in the Florida Case that revealed that Sissons misrepresented the Form

337 regarding the work being performed in accordance with Pratt and Whitney and

FAA standards and that short blades were installed in both engines. (See C.R. 247-

250).

        The fracture of the blade and Right Engine failure had absolutely nothing to

do with improper blade length. Improper blade length was a separate and distinct

injury to Plaintiff. The improper and unauthorized parts were installed in both

engines. The fractured blade had nothing to do with improper blade length. The

fracture was caused by HCF. (C.R. 127-129, 135-137). The injury of the short blade

installation was not uncovered until May 21, 2014. (C.R. 248). This was unrebutted

by any of Sissons’ evidence. The short blades did not cause any failure of either

engine. The “injury” Sissons was sued for was authorizing the installation of parts

that are prohibited by the manufacturer and the FAA in aircraft engines which

Sissons falsely attested to on Form 337 as meeting the manufacturer and FAA

requirements.



No. 03-17-00571-CV
Appellant’s Reply Brief                  14
      Sissons does not address case law cited by Plaintiff that Plaintiff’s reasonable

diligence to uncover fraud is a fact question for jury to determine (Appellant’s Brief

p. 37) or case law that fraud and/or concealment deal with issues of intent and state

of mind and are factual questions for a jury’s resolution. Factual disputes are not to

be resolved in favor of the movant at summary judgment.

V.    IT IS UNKNOWN WHY SISSONS IS ARGUING AND CITING CASE
      LAW ON AN “INFORMAL” OR “SPECIAL RELATIONSHIP”
      FIDUCIARY DUTY. PLAINTIFF HAS REQUESTED THIS COURT
      TO DECLARE THE RELATIONSHIP BETWEEN IA AND
      AIRCRAFT OWNER A FIDUCIARY RELATIONSHIP AS A
      MATTER     OF  LAW,   LIKE    THE  ATTORNEY-CLIENT
      RELATIONSHIP.

      Plaintiff made clear in its Appellant’s Brief that it was not asking this

Honorable Court to declare a fiduciary duty based upon an “informal” or “special

relationship.” (See Appellant’s Brief at p. 45). Instead, Plaintiff has requested this

Honorable Court to declare a fiduciary duty as a matter of law between an aircraft

owner and an inspector designee of the FAA. Plaintiff understands the significance

of this request. However, imagine case law holding that there is no fiduciary duty

between an IA and the aircraft owner. The consequences to the public would be

devastating.    An aircraft is a dangerous instrumentality.        If an IA makes

representations on an FAA Form 337, the aircraft owners rely upon those

representations in making determinations that the aircraft is airworthy. This reliance



No. 03-17-00571-CV
Appellant’s Reply Brief                  15
upon the IA includes private aircraft and commercial airline owners. Sissons could

have done the inspection for Southwest Airlines.           There is no difference or

distinction as to what Sissons’ obligations are as an FAA designee when he inspects

a private or commercial aircraft.

      That relationship between IA and aircraft owner is no different than an

attorney-client relationship. The owners are not experts in aviation mechanics,

manufacturer’s and FAA requirements, but the IA is. The owners and the FAA rely

upon the IA to perform the inspection and decide to disapprove the work or to

approve it for flight of the aircraft. In an attorney-client relationship, typically one

person or entity is harmed as the client by the breach of that fiduciary relationship

and such harm is not property damage, physical injury or death. In the relationship

between IA and aircraft owner, the breach of the fiduciary duty can result in all the

above damages to the aircraft owner, crew, and passengers, along with damage to

the general public as a result of the aircraft crashing.

                                       PRAYER

      WHEREFORE, Plaintiff Fall Air, Inc. prays that this Court reverse the Trial

Court’s granting of summary judgment in favor of Defendant Paul Sissons, remand

the case to the Trial Court consistent with such a reversal, and grant Plaintiff all such

other and further relief to which it may be entitled.



No. 03-17-00571-CV
Appellant’s Reply Brief                    16
                          Respectfully Submitted,

                          /s/Frederick C. Morello
                          Frederick C. Morello
                                 Lead counsel
                          FREDERICK C. MORELLO PA
                          Florida State Bar No. 0714933
                          111 N. Frederick Ave., Second Floor
                          Daytona Beach, FL 32113
                          Phone: (386) 252-0754
                          Fax: (386) 252-0921
                          Email: live2freefly@gmail.com

                          Robert J. Wood, Jr.
                          State Bar No. 00788712
                          robert@mylawteam.com
                          T. Blake Edwards
                          State Bar No. 24050553
                          blake@mylawteam.com
                          LINDQUIST WOOD EDWARDS LLP
                          1700 Pacific Avenue, Suite 2280
                          Dallas, Texas 75201
                          (214) 382-9789 – phone
                          (214) 953-0410 – fax




No. 03-17-00571-CV
Appellant’s Reply Brief     17
                          CERTIFICATE OF COMPLIANCE

       This brief complies with Texas Rules of Appellate Procedure 9.4 because the
sections covered by the rule contain 4122 words. The font used in the body of the
brief is no smaller than 14 points, and the font used in the footnotes is no smaller
than 12 points.
                                             /s/Frederick C. Morello
                                             Frederick C. Morello

                              PROOF OF SERVICE

      I certify that on January 3, 2018, this Appellant’s Reply Brief was served on

Defendant’s counsel pursuant to Texas Rule of Appellate Procedure 9.5(b) as

follows:


             Mr. John J. Reenan (Via Electronic Filing and Email)
             jreenan@kmlawpllc.com
             Texas Bar No. 00789777
             Christopher S. Kilgore (Via Electronic Filing and Email)
             ckilgore@kmlawpllc.com
             Texas Bar No. 11398350
             Kilgore / McCown, PLLC
             2201 Main Street, Suite 212
             Dallas, Texas 75201
             (214) 296-4850
             (972) 532-6496 – facsimile



                                             /s/Frederick C. Morello
                                             Frederick C. Morello




No. 03-17-00571-CV
Appellant’s Reply Brief                 18
