Coon v. Charles W. Bliven & Co., Inc.
| Decision Date | 23 June 1976 |
| Docket Number | No. 75-1306,75-1306 |
| Citation | 534 F.2d 44 |
| Parties | Afton M. COON et al., Plaintiffs-Appellants, v. CHARLES W. BLIVEN & COMPANY, INC., et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Arthur Roth, Charlotte J. Barkan, Miami, Fla., for plaintiffs-appellants.
Richard C. Waller, Miami, Beach, Fla., for Fronapfel.
Horace H. Bente, pro se.
Shutts & Bowen, Miami, Fla., for White, and others.
Thomas H. Anderson, Karl V. Hart, Miami, Fla., for Herbert & Hazel White.
Appeal from the United States District Court for the Southern District of Florida.
Before TUTTLE, AINSWORTH and CLARK, Circuit Judges.
This is a diversity case arising out of the purchase of a yacht, the "NEW HORIZON," by appellants Afton and Vera Coon, a retired couple from Alaska. Following their acquisition of this vessel in Florida, appellants discovered its condition to be such as to require extensive and costly repairs to enable it to make the return trip to Alaska. They then instituted the instant suit for fraudulent misrepresentation against the "NEW HORIZON" 's previous owners, the Whites, against Charles W. Bliven & Co., the yacht brokerage firm which arranged the sale of the vessel, and against Horace Bente, the Bliven and Co. employee with whom appellants had dealt. In addition, appellants sued the marine surveyor, Joseph Fronapfel, who had inspected the yacht and certified it to be in satisfactory condition, for negligence.
Following extensive pretrial discovery proceedings and hearings, the district court granted summary judgment in favor of defendants Bliven & Co., Bente, and the Whites, but found that there were issues of fact as to defendant Fronapfel's negligence in conducting the marine survey of the "NEW HORIZON," and consequently denied Fronapfel's motion for summary judgment, ultimately setting the trial of that case for early July, 1974. When counsel for appellants failed to answer the calendar call on the appointed day, the district court dismissed the case for failure to prosecute with reasonable diligence. The Coons have appealed from the district court's grant of summary judgment as to the Whites, Bente and Bliven and Co., and from its dismissal of the suit against Fronapfel for failure to prosecute. Following a brief summary of the relevant facts, we deal with each of these actions by the district court in turn.
Appellants are a retired couple from Alaska, who traveled to Ft. Lauderdale, Florida in May 1972, to look for a boat to take back with them to Alaska. They selected Bliven & Co., a yacht brokerage firm, from an ad in a yachting magazine, and went to Bliven's local office to inquire about finding a suitable vessel to purchase. There they met appellee Bente, who shortly thereafter took them to see the "NEW HORIZON," owned by appellees Herbert and Hazel White. Some discussion ensued concerning the purpose for which the Coons were buying a boat, and the general condition of the "NEW HORIZON," which Mr. White assured appellants was sound. Back at the Bliven & Co. office, Mr. Coon told Bente they could not offer more than $45,000 for the vessel. Bente advised the Coons to make an offer for $45,000, giving a check for $4,500 as a deposit, and making the ultimate purchase contingent on a marine survey satisfactory to the Coons.
On May 18, 1972, the Coons executed an "Offer to Purchase and Deposit Receipt," which stated, inter alia, that the offer was for the vessel " 'where is' and 'as is' free and clear of all liens and encumbrances and is subject to a survey to be made by me to my satisfaction by myself and/or my agent." Furthermore, the agreement provided, "I also understand that Charles W. Bliven & Co. has offered me this vessel on behalf of the owners in good faith, but cannot guarantee the accuracy of such information and that I will instruct my agents to check such details as I desire validated." Appellee White countersigned this document in acceptance of the offer.
At the Coons' request, Bente then procured the services of appellee Fronapfel to conduct a trial run and marine survey of the "NEW HORIZON" prior to consummation of the sale. Fronapfel conducted a trial run of the vessel, with appellants on board, and surveyed the boat both in and out of the water. He prepared and submitted a written report, including a list of exceptions, for the Coons, but generally recommended the vessel for purchase. At this point, appellants apparently became somewhat concerned about their financial ability to afford whatever repairs would be needed. It is clear from the record, for example, that at one point during the time at which Fronapfel was conducting the drydock portion of his survey at a local marine shipyard, one of the assistant yard supervisors was present and gave an estimate of what it would cost to repair the ship's cap railing, which was deteriorating from rust and dry rot at several places. In Coon's presence, the shipyard assistant estimated it would cost $100 per linear foot, or about $13,000, to sandblast, treat, and replace the entire cap rail.
Fronapfel assured appellants, however, that this particular shipyard's repair costs were usually high, and that they could probably arrange for repairs within their budget, either by going to a smaller shipyard or by contracting out the work to an independent carpenter. After the Coons continued to express doubts to Bente, however, he went to the Whites, who lowered their asking price to $43,000. Bente reported this to the Coons and told them that he knew of someone who would take care of the repairs for a fixed price. Bente then brought the Coons together with a Felino Rodriguez, who looked the boat over and contracted to fix certain specified items for $2,600. At an unspecified date after that, the Coons accepted the new purchase price of $43,000, paying the balance of the money due after signing the contract with Rodriguez.
Once started on the repair work, Rodriguez discovered that the railing could not be patched; the rust and dry rot were so extensive that the whole rail had to be replaced. Furthermore, the hull was in extremely bad repair, and the gas tank showed extensive signs of leakage. Rodriguez informed the Coons he could not complete the contract for what he had estimated, and they released him from it. They then had the vessel surveyed at a local shipyard, resulting in an estimate of approximately $37,000 to make the needed repairs. Appellants then instituted this suit for damages for negligence by Fronapfel and misrepresentation by the other parties.
Herbert and Hazel White.
In their motion for summary judgment below, the Whites asserted that assuming arguendo that there were misrepresentations as to the condition of the vessel, as a matter of...
To continue reading
Request your trial
-
Jackson v. Washington Monthly Co.
...Inc., supra note 11, 537 F.2d at 212 (lesser sanctions adequate in "all but the most flagrant circumstances"); Coon v. Charles W. Bliven & Co., 534 F.2d 44, 49 (5th Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 491, 50 L.Ed.2d 588 (1976); Mann v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 4......
-
Fulton v. Van Slyke
...to appear or other aggravating factors to warrant dismissal. Ali v. A & G Co., Inc., (2nd Cir.1976) 542 F.2d 595; Coon v. Charles W. Bliven & Co., Inc., (5th Cir.) 534 F.2d 44 cert. den. (1976) 429 U.S. 980, 97 S.Ct. 491, 50 L.Ed.2d 588. See also Bush v. United States Postal Service, (4th C......
-
Caldwell v. Martin Marietta Corp.
...only in cases of intentional misconduct. Boazman v. Economic Laboratory, Inc., 537 F.2d 210 (5th Cir. 1976); Coon v. Charles W. Bliven & Co., 534 F.2d 44 (5th Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 491, 50 L.Ed.2d 588 (1976); 5 J. Moore Federal Practice P 41.11(2) (2d ed. 1976). The re......
-
Czarnecki v. Roller
...another). Addressing this issue under facts identical to those of the instant case, the former Fifth Circuit held in Coon v. Charles W. Bliven & Co, 534 F.2d 44 (5th Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 491, 50 L.Ed.2d 588 (1976), that where a buyer had secured the services of an ind......