Montrose - Daily Press

MONTROSE — Arguing its opponents failed to prove the necessary elements of their cases, JetAway Aviation moved mid-trial for directed verdicts in its favor.

After hearing nearly five hours of argument, though, District Judge James Schum ruled Monday Montrose County and Montrose Regional Airport fixed-base operator Jet Center Partners (Black Canyon), had presented sufficient evidence to continue with the bulk of their claims.

He deferred pending further evidence a ruling as to whether JCP could claim injunctive relief under agreements between the county and JetAway.

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It was, Schum said several hours prior to making the ruling, highly unusual for a litigant to request a directed verdict before even presenting its main case.

JetAway operates next to the airport via a land lease and through-the-fence agreement. It’s at loggerheads with the county over what rights those agreements guarantee.

JetAway claims it can conduct all services for non-commercial jet traffic except for fuel sales, but the county says JetAway violated its agreements by conducting fixed-base operations off-airport and the disputed agreements were never intended to allow such conduct.

As the on-airport FBO, Jet Center Partners pays a hefty guaranty fee to Montrose County. It claims JetAway falsely represented itself as an FBO, which JCP and the county contend is defined by fuel sales.

JetAway’s conduct harmed JCP’s business, managing partner Kevin Egan claimed in testimony earlier Monday.

JetAway attorney Mark Haynes sought an immediate verdict on the county’s claim for injunctive relief; its own request for declaratory judgment and JCP’s claim of false advertising.

Haynes said the off-airport agreement made clear there were no third-party interests and JCP therefore lacked standing to claim anything under the county’s allegation of breach of contract.

Haynes and opposing counsel Brian Magoon tussled repeatedly over exceptions language contained in the off-airport agreement.

Section 3 (g) of the agreement, first entered into by STW Composites in 2001 and inherited by JetAway in 2004, states no businesses in the off-airport “park” can offer FBO services except park owners or those authorized to become park owners. JetAway is an authorized park owner because it is the successor in interest to STW, Haynes said.

Further, Haynes said, the agreement specifically defines what an FBO is, for purposes of the agreement, so defining an FBO by fuel sales is a moot point.

“The off-airport agreement is not ambiguous,” Haynes said.

Magoon later argued the 2001 agreement and 2004 assignment did not expand what business operations could occur at the STW property. The exceptions applied specifically to STW or its successors taking care of its own aircraft, self-feuling, and repairs. Magoon also said the agreement made it clear failure to comply with the county’s minimum standards could result in loss of access to the airport.

“The county would submit ... that agreement doesn’t allow STW or any of its successors to conduct FBO operations off the airport,” he said.

Schum hammered both men with questions. He asked Haynes why JetAway was relying on section 3 (g), but ignoring another sentence: “Notwithstanding the restrictions contained herein, the businesses identified on Exhibit A and their successors and assigns, shall be authorized to offer their respective services identified on Exhibit A.”

Schum said the agreement could be reasonably construed as limiting STW, and JetAway after it, to what was specified in Exhibit A (STW’s original operations).

“You conspicuously haven’t addressed this sentence,” Schum said. He asked whether it could be reasonably construed as an effort to define an FBO and what through-the-fence operations were permitted of someone other than STW or a second original park owner, Western Skyways.

Haynes said the agreement was written permissively, not restrictively, but Schum wanted to know how one could consider “authorized” as restrictive or permissive when “authorized” implied limitations.

Haynes said if that were the case, the agreement wouldn’t have needed to spell out much more.

Magoon said interpretation of the agreement came down to competing philosophies. JetAway’s he said, was that if an activity was not explicitly prohibited then it must be permitted. The county contends that unless activity is authorized, it cannot take place.

Schum asked Magoon whether, this time, JetAway could reasonably construe the agreement to mean STW could provide or operate an FBO.

Magoon conceded that the agreement was ambiguous after all.

Jet Center Partners attorney Tucker Trautman later told Schum that though the agreement might be ambiguous, the advertising through which JetAway allegedly injured JCP occurred after 2004, by which time minimum standards pertaining to FBOs were clear.

“We entered into a fair bidding process,” he said. “It specifically said there would be no off-airport FBO and that minimum standards would be enforced.”

Trautman said the evidence was clear JetAway engaged in “calculated” conduct to rob JCP of business and, therefore, JCP had standing to bring claims. He said JetAway’s business was a change in scope from STW’s, which meant that under the agreement, county minimum standards applied — and those standards require FBOs to be on-airport.

He told Schum both parties had agreed the county could change the agreement if that change was tied to a legitimate governmental function.

Contact Katharhynn Heidelberg at katharhynnh@montrosepress.com

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