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Date: 03-11-2019

Case Style:

Charles Greenhill and Amphib, Inc. v. Richard M. Vartanian and Platinum Fighter Sales, Inc.

Case Number: 17-3526

Judge: Easterbrook

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney: Eric Y. Choi, John Joseph Scharkey and Andrew Gordon May

Defendant's Attorney: Karing Kerkonian

Description:




Hermann Göring, head of the
Luftwaffe in World War II, remarked: “When I saw those
Mustangs over Berlin, I knew that the war was lost.” The P-
51 Mustang fighter entered service in January 1942, and
long-range variants introduced late in 1943 could escort Allied
bombers to Germany and back. (With external fuel
tanks, they had a range exceeding 1,600 miles.) More than
2 No. 17-3526
15,500 Mustangs were built; the plane served as this nation’s
main fighter until jets succeeded it during the Korean War.
Some Mustangs remained in military use in other nations
until 1984. The picture below shows one of the long-range
versions. Surviving aircraft are collector’s items, “warbirds”
lovingly rebuilt and maintained by private aficionados, displayed
in museums, and occasionally flown at air shows.
One is in the collection of the Smithsonian’s National Air
and Space Museum. The Federal Aviation Administration
has more than 100 airworthy Mustangs on its register today.
This suit is about one of them—or perhaps two of them.
No. 17-3526 3
In 1965 Richard Vartanian bought a Mustang that had
flown in the Royal Canadian Air Force but had been in private
hands since 1960. Its serial number was 44-74543. He
stored it at a car dealership until 1973 or 1974, when he
moved it to a hangar at Fulton County Airport in New York.
In 1985 Vartanian decided to move the plane to California,
but his representative could not find it. Vartanian suspected
Wilbur Martin, who had promised to restore the plane on
Vartanian’s behalf. In April 1985 Vartanian’s lawyer
4
No. 17-3526
demanded that Martin return the plane and, when that did not
occur, Vartanian personally complained to the FAA, the FBI,
and law-enforcement agencies in Los Angeles, Chicago, and
New York that the plane may have been stolen.
Martin denied taking Vartanian’s plane but conceded
buying some Mustang parts from Waterman Brown, one of
Vartanian’s associates. Martin later registered with the FAA
(which administers the federal system of aircraft ownership)
a Mustang having serial number 44-63655. Martin asserts
that it had been cobbled together using parts from a plane of
his that had crashed in Nicaragua plus components that he
had acquired from several sources, including Brown.
In 1998 Martin sold the plane bearing SN 44-63655 to
Amphib, Inc., a corporation controlled by Charles Greenhill.
Vartanian learned about this transaction in 2002 or 2003 by
reading an article in Air Classics magazine that incorrectly
identified the serial number of Greenhill’s plane as 44-74543
(which, recall, had been a mached to Vartanian’s plane) and
specified its provenance as one that the Royal Canadian Air
Force had sold as military surplus. In 2004 Vartanian hired
another lawyer to investigate. He obtained the FAA’s file on
the plane, which showed the sale to Greenhill in 1998, and
prepared the complaint for a tort action against Martin and
Greenhill. But this lawyer died before filing the suit, and
Vartanian did not follow up.
In 2009 Vartanian wrote a lemer to the United States
Amorney for the Northern District of Illinois contending that
his Mustang had been stolen by Martin in 1984 and that
Martin used the serial number of the plane destroyed in Nicaragua
to conceal his crime. The United States Amorney declined
to prosecute but urged Vartanian to retain counsel to
No. 17-3526 5
pursue civil relief. Vartanian did nothing further until after
learning from a historian in 2013 that there were irregularities
in the serial numbers of several of Martin’s planes. In
February 2014 Vartanian sent Greenhill a lemer demanding
that he turn over the plane purchased from Martin. Greenhill
responded in 2015 with this suit under the diversity jurisdiction,
seeking a declaratory judgment that he owns the plane.
Vartanian and his corporation Platinum Fighter Sales filed
counterclaims seeking that relief for themselves, because a
thief cannot convey good title, plus an order that Greenhill
or Amphib hand the plane over to them. But the district
judge concluded that the time to accuse Martin of theft had
expired long ago. 2017 U.S. Dist. LEXIS 186706 (N.D. Ill. Nov.
13, 2017).
Although the judge’s opinion states that plaintiffs are entitled
to a declaratory judgment, the court did not enter one.
Instead it entered this decision on the form used for judgments
under Fed. R. Civ. P. 58:
Judgment is entered in favor of Plaintiff and against Defendant
on Plaintiffs’ complaint for declaratory relief [1], and on Defendants’
counterclaims for conversion and declaratory relief [14].
A document providing that “[j]udgment is entered” does not
satisfy Rule 58. A judgment must provide the relief to which
the prevailing party is entitled. See, e.g., Hyland v. Liberty
Mutual Fire Insurance Co., 885 F.3d 482 (7th Cir. 2018); Cooke
v. Jackson National Life Insurance Co., 882 F.3d 630 (7th Cir.
2018); ReytblaD v. Denton, 812 F.2d 1042 (7th Cir. 1987); Azeez
v. Fairman, 795 F.2d 1296 (7th Cir. 1986). This document does
not do that. It shows that the district court is done with the
case, which permits an appeal, but it does not resolve the
parties’ dispute. The judgment also does not show that it
6 No. 17-3526
was reviewed and approved by the judge, although Rule
58(b)(2) provides that the judge, not a clerk, must approve
decisions of this kind.
The district judge failed to resolve two subjects on which
the parties’ appellate briefs disagree. First, who receives the
relief? The judgment refers to “Plaintiff”, but there are two
plaintiffs. The corporate plaintiff (Amphib) is the registered
owner of the airplane, but some of the district court’s opinion
suggests that relief is being awarded to Greenhill. Second,
although plaintiffs’ initial complaint sought a declaratory
judgment that they own the airplane against the world
(a standard outcome of a quiet-title action), at oral argument
on appeal they recognized that this suit concerns personal
property rather than real estate and disclaimed entitlement
to relief broader than a declaration that their rights are superior
to Vartanian’s. Neither the district court’s opinion nor its
judgment distinguishes these possibilities.
These shortcomings led us to remand the case with instructions
to enter a proper declaratory judgment. The district
court promptly complied. The revised judgment provides
that Amphib owns the aircraft free of any claim by
Vartanian. It does not insulate Amphib from other persons’
potential claims or bestow any ownership rights on Greenhill.
This eliminates two of the parties’ appellate controversies
but still requires us to address Vartanian’s contention
that the district court should have decided whether Martin
stole the plane in or before 1984.
Although federal law provides a registration system for
aircraft, state law supplies the rules for determining ownership.

See 49 U.S.C. §44108(c)(1); Shacket v. Philko Aviation,
Inc., 841 F.2d 166, 169 (7th Cir. 1988). The district court apNo.
17-3526 7
plied Illinois law, and neither side has asked us to use the
law of some other state. The district court classified Vartanian’s
claim as one for conversion, which is subject to a
five-year period of limitations under 735 ILCS 5/13-205. Observing
that Vartanian accused Martin of theft in 1985 and
2009, and was on the verge of suing in 2004, the judge concluded
that the five-year period had long expired, which
blocked Vartanian from contending that Amphib’s title to
the plane is derived from any theft by Martin.
Vartanian’s appellate position incorporates elements of
the discovery doctrine with elements of equitable estoppel.
The discovery rule in Illinois provides that a period of limitations
starts to run when the injured party “knows or reasonably
should know” of the injury and its cause.
Knox College
v. Celotex Corp., 88 Ill. 2d 407, 414–16 (1981). Vartanian
knew in 1985 that his Mustang had vanished; he suspected
Martin from the outset and had plenty of time to investigate.
Indeed, he did investigate, and in Illinois having enough information
to start an investigation also starts the period of
limitations. See LaSalle National Bank v. Skidmore, Owings &
Merrill, 262 Ill. App. 3d 899, 902–04 (1994). Yet for more than
30 years, during which he complained to federal and state
prosecutors, Vartanian did not commence civil litigation
against Martin, Greenhill, or Amphib.
His current arguments have less to do with the discovery
rule than with the doctrine of equitable estoppel (which Illinois
calls fraudulent concealment)—the rule that a wrongdoer
who actively tries to prevent suit cannot invoke the
statute of limitations when suit finally comes. Playing games
with serial numbers, and failing to admit wrongdoing, come
within that doctrine, Vartanian asserts. Yet Vartanian knew
8 No. 17-3526
long ago what serial number Martin was using; he was not
thrown off the scent. Illinois starts the period of limitations
no later than actual discovery, even if the potential defendant
tried unsuccessfully to conceal the offense. See 735 ILCS
5/13-215. And Illinois does not defer the limitations period
until an admission of wrongdoing. See Kheirkhahvash v. Baniassadi,
407 Ill. App. 3d 171, 182 (2011). That would effectively
abolish all statutes of limitations, for wrongdoers rarely
own up to their transgressions.

It does not help Vartanian to characterize the events as a
continuing violation. The disappearance of his Mustang was
a discrete event, and the fact that discrete wrongs have continuing
consequences does not extend the time to sue. See,
e.g., National Railroad Passenger Corp. v. Morgan, 536 U.S. 101,
110–15 (2002); Turley v. Rednour, 729 F.3d 645, 654–55 (7th
Cir. 2013) (concurring opinion); Belleville Toyota, Inc. v. Toyota
Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 348–49 (2002). The
statute of limitations expired long ago, just as the district
court concluded.
That does not mamer, Vartanian asserts, because even if
he cannot pursue a conversion claim against Greenhill, Amphib
cannot obtain any relief against him without proving
that Martin is not a thief. Illinois would not apply a statute of
limitations to a defense against a quiet-title action, Vartanian
insists. We know from the district court’s corrected judgment
that this is not a quiet-title action (the court did not
award Greenhill or Amphib rights against the world).
What’s more, having lost his conversion claim, Vartanian
lacks any way to show that his rights are superior to Amphib’s,
the only mamer resolved by the judgment the district
court entered on remand.
No. 17-3526 9
Still more: Even if Illinois would not apply a statute of
limitations, the doctrine of laches would remain. Between
1985 and the beginning of this suit Waterman Brown died,
and the parties’ inability to obtain his evidence would cause
prejudice that is amributable to Vartanian’s long delay. Four
other potential witnesses died in the decades between 1985
and the filing of Vartanian’s counterclaim; they might have
addressed topics such as whether Vartanian abandoned the
plane between 1965 and 1985. All of the principals (Vartanian,
Greenhill, and Martin) are in their 80s and experiencing
difficulty remembering events of decades ago. Important
business records from the 1960s through the 1990s cannot be
located. It is too late for the judicial system to make a reliable
decision about what happened to Vartanian’s plane (or parts
of it) and which components of Greenhill’s plane might be
traced to the Mustang that the Royal Canadian Air Force
sold as surplus in 1960.

Outcome: AFFIRMED

Plaintiff's Experts:

Defendant's Experts:

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