                Case: 12-13811       Date Filed: 01/21/2014      Page: 1 of 3


                                                                      [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 12-13811
                               ________________________

                       D.C. Docket No. 8:09-cv-02301-JSM-TGW

LOOKOUT MOUNTAIN WILD
ANIMAL PARK, INC.,
                                                                          Plaintiff-Appellant,

                                            versus

STEARNS ZOOLOGICAL RESCUE &
REHAB CENTER, INC., d.b.a Dade City’s
Wild Things, et al.,

                                                                      Defendants-Appellees.


                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                           _________________________

                                    (January 21, 2014)

Before TJOFLAT and ANDERSON, Circuit Judges, and Bucklew,* District Judge.



____________
*Honorable Susan C. Bucklew, United States District Judge for the Middle District of Florida,
sitting by designation.
               Case: 12-13811     Date Filed: 01/21/2014    Page: 2 of 3




PER CURIAM:

      We have had the benefit of oral argument in this case, and have also

carefully considered the briefs and relevant parts of the record. We conclude that

the judgment of the district court should be affirmed. We cannot conclude that the

district court erred in granting judgment as a matter of law in favor of the

defendants with respect to plaintiff’s tort claims – i.e., their claims for conversion,

civil theft and fraud in the inducement. With respect to the latter claim, we readily

conclude that there is no evidence of a pre-contractual misrepresentation.

Moreover, there is insufficient evidence that any of defendants’ promises were

made with present intent not to perform.

      We conclude that plaintiff’s claims for conversion and civil theft fail for

multiple reasons. With respect to the necessary element of plaintiff’s right to

possess the property at issue, we conclude that plaintiff is collaterally estopped by

the jury verdict that the defendant corporation is the rightful owner of the property.

Alternatively, we conclude that no reasonable jury could find that defendants either

converted the property or committed civil theft. There was very strong evidence

that the animals and equipment were donated to the defendant corporation, as the

jury found with respect to all of the property except the two white-handed

Gibbons. All of the relevant forms with respect to the animals now at issue


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indicated that the animals had been donated. And, with respect to equipment

which Kenneth Stearns transported to the location of Dade City Wild Things, Dr.

Bloome was present when the equipment was loaded onto Stearns’ tractor-trailer

and also was present for a considerable time after the equipment was placed in the

shed or hospital at Dade City Wild Things. With respect to Dr. Bloome’s office

and medical equipment which was later removed from that shed or hospital and

allegedly discarded, there was thus strong evidence that Dr. Bloome either agreed

at the time of loading Kenneth Stearns’ tractor-trailer that this equipment would be

donated to defendant, or acquiesced therein after it arrived. At most, there might

have been issues of fact with respect to whether defendant breached an agreement

with respect to same, but no reasonable jury could find that any defendant

converted the property or committed civil theft. Finally, we are also not persuaded

that plaintiff has identified any tortious acts that are sufficiently independent of the

alleged breach of contract to render the tort claims viable. See Tiaro Condo Ass’n

v. Marsh & McClennan Co., 110 So.2d 399 (Fla. 2013); id. at 407-10 (Pariente, J.,

concurring).

      Accordingly, the judgment of the district court is AFFIRMED.




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