IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40111
WILLIAM DUNCAN; BRIAN D SUTCLIFFE
Plaintiffs-Appellees
versus
HOUSE OF BOATS INCORPORATED
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(C-95-CV-481)
April 16, 1998
Before WISDOM, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
This is an appeal from a bench trial of claims for damages to
a fishing vessel suffered when it was hauled for repairs. We
AFFIRM in part and REVERSE in part.
William Duncan, the co-owner, delivered Empty Pockets, his
charter fishing vessel, to the House of Boats boatyard to locate
and repair a leak. He signed work authorization forms for the
wooden hull, forty-eight foot vessel and left. The following
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
morning the under structure of Empty Pockets collapsed as the keel
took its weight in the blocking process.
Duncan later sued asserting claims of fraud, negligence and
breach of contract. The fraud claim rests on Duncan’s assertion
that the owner of the boatyard promised that he would take care of
the problem if Duncan would not file a claim with the insurer of
the House of Boats and that defendant did not intend to honor the
promise when it was made. Duncan also asserted that the defendant
had breached its written work authorization agreement, was
negligent in handling the vessel thus damaging the boat, and was
negligent in securing it in storage, allowing it to be stripped of
valuable equipment.
The district court found fraud, negligence and breach of
contract and awarded Duncan $37,000 in actual damages for the loss
of the vessel, $13,000 for equipment stripped from the boat,
$36,000 in punitive damages and $14,800 in attorneys’ fees. The
judgment and the confusing assertion of multiple theories of
recovery offer an array of difficult legal issues, including the
interplay of tort and contract, and the applicability of the
statute of frauds for a purchase of goods inhering in the claimed
representations following the damage to the boat in the blocking
operation. We need not enter this swamp, given our view of the
case.
Whether Empty Pockets was old, in failing health and met its
natural demise or was healthy, but mishandled, was sharply
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disputed. We are persuaded that there is sufficient evidence to
support the findings of ordinary negligence or a breach of the
written work order, but no more, and the actual damages and
attorneys’ fees awarded are properly sustained on these findings of
negligence.
The record will not, however, support an award of punitive
damages on the facts of this case. There is no relevant evidence
of reckless or wanton behavior or that any promise was deceitful or
a cause of the damage.
The award of punitive damages is reversed, and the judgment is
affirmed in all other respects.
AFFIRMED in part and REVERSED in part.
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