[ DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 1 2

- 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., Defendant s - 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,* D istrict 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: 1 of 32 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 defen dants with respect to plaintiff’s tort claims

– i .e., their claims for conversi on, civil theft and fraud in the inducement. With respect to the latter claim, we readily conclude that there is n o 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 conversio n and civil theft fail for multipl e 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. Altern atively, 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 wit h 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

Case: 12-13811 Date Filed: 01/21/2014 Page: 2 of 33 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. Bloom e 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 respe ct 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 equip ment 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

co nverted 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. Case: 12-13811 Date Filed: 01/21/2014 Page: 3 of 3