Czarnecki v. Roller

• Decision Date: 15 November 1989
• Docket Number: No. 88-1667-CIV.,88-1667-CIV.
• Citation: 726 F. Supp. 832
• Court: U.S. District Court — Southern District of Florida
• Parties: Robert CZARNECKI, Plaintiff, v. Laurence ROLLER, Woods and Oviatt, Inc., Merrill-Stevens Dry Dock Co., Jack Reynolds, Inc., New Horizons Marine Surveyors, Defendants.

726 F. Supp. 832

Robert CZARNECKI, Plaintiff, v. Laurence ROLLER, Woods and Oviatt, Inc., Merrill-Stevens Dry Dock Co., Jack Reynolds, Inc., New Horizons Marine Surveyors, Defendants.

No. 88-1667-CIV.

United States District Court, S.D. Florida, Miami Division.

November 15, 1989.

Alex F. Lankford, III, Mobile, Ala., Michael R. Karcher, Miami, Fla., for plaintiff.

Rae M. Crowe, Mobile, Ala., G. Morton Good, Richard J. McAlpin, Miami, Fla., Jack Reynolds, Sunrise, Fla., Roger L. Shaffer, Ft. Lauderdale, Fla., for defendants.

MEMORANDUM OPINION; ORDER GRANTING IN PART AND DENYING IN PART MERRILL-STEVENS DRY DOCK COMPANY'S MOTION FOR SUMMARY JUDGMENT; AND ORDER GRANTING LAURENCE ROLLER'S MOTION FOR PARTIAL SUMMARY JUDGMENT

SPELLMAN, District Judge.

THIS CAUSE comes before the Court upon Defendant Merrill-Stevens Dry Dock Company's hereinafter referred to as "Merrill-Stevens" Motion for Summary Judgment filed with this Court on May 30, 1989, and Defendant Laurence Roller's Motion for Partial Summary Judgment filed with this Court on September 8, 1989.

Merrill-Stevens seeks summary judgment as to Count I fraudulent misrepresentation; Count II fraudulent concealment; Count III conspiracy as it pertains to fraudulent misrepresentation and fraudulent concealment; Count IV negligence; and Count V breach of fiduciary duty.¹ Upon review of Merrill-Stevens' Motion for Summary Judgment, Plaintiff's Memorandum in Opposition, and Merrill-Stevens' Reply thereto, it is the opinion of this Court that partial summary judgment should be entered in favor of Merrill-Stevens.

Laurence Roller seeks summary judgment as to Count I; Count III conspiracy as it pertains to fraudulent misrepresentation; and Count VII breach of implied warranty of merchantability and breach of warranty for a particular purpose. Upon careful review of Roller's Motion for Partial Summary Judgment, Plaintiff's Memorandum in Opposition, and Roller's Reply thereto, it is the opinion of this Court that Roller is entitled to summary judgment as to Counts I, III and VII.²

BACKGROUND

This is a diversity action arising out of the purchase of a Bertram yacht, the M/V IMPULSE/XANADU,³ by Plaintiff Robert Czarnecki. The controversy between the parties revolves around a prior sinking or submersion of the yacht which Plaintiff learned of subsequent to the sale.⁴ Plaintiff instituted this action against Roller, the previous owner of the M/V IMPULSE/XANADU; Woods and Oviatt, Inc., and Merrill-Stevens, yacht brokerage firms; and against Jack Reynolds, Inc., and New Horizons, independent marine surveyors.

STANDARD FOR MOTIONS FOR SUMMARY JUDGMENT

Rule 56(c), Federal Rules of Civil Procedure, provides that summary judgment shall be rendered "forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." A ruling on a summary judgment motion should be guided by the substantive evidentiary standard of proof that would apply at the trial on the merits. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is mandated against a party who, after adequate time for discovery and upon motion, fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In ruling on a motion for summary judgment, it is the Court's obligation to view the facts in the light most favorable to the non-moving party and to allow the non-moving party the benefit of all reasonable inferences to be drawn from the evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Thrasher v. State Farm Fire & Cas. Co., 734 F.2d 637, 638 (11th Cir.1984). If there is no genuine issue of material fact, summary judgment is proper because it avoids needless and costly litigation and promotes judicial efficiency. Trustees of Plumbers Local No. 519 Health and Welfare Trust Fund v. Garcia, 677 F.Supp. 1554, 1556 (S.D.Fla.1988). However, because summary judgment is an extreme remedy, it should not be granted unless the moving party has established the right to judgment beyond controversy.

FACTS

This Court finds that there is no genuine issue of material fact as to the following:

1. Woods and Oviatt, Inc., listed the yacht M/V IMPULSE/XANADU for sale on behalf of Laurence Roller.

2. Plaintiff approached Merrill-Stevens requesting assistance in the purchase of a pleasure yacht.

3. Merrill-Stevens located the M/V IMPULSE/XANADU for Plaintiff.

4. Merrill-Stevens showed Plaintiff the M/V IMPULSE/XANADU.

5. Plaintiff negotiated the purchase of the yacht through Scott Hasselbring, a broker with Merrill-Stevens, and Roller negotiated through Jeff Stanley, a broker with Woods and Oviatt.

6. Plaintiff hired independent surveyors, Jack Reynolds, Inc., and New Horizons Marine Surveyors, to survey the M/V IMPULSE/XANADU.

7. Jack Reynolds and New Horizons, as independent surveyors, inspected the hull and machinery of the yacht and submitted survey reports to Plaintiff.

8. No evidence of sinking was specifically looked for by the surveyors.

9. According to these survey reports, neither Jack Reynolds nor New Horizons detected any evidence that the yacht had sank or had been partially submerged, nor did the reports suggest that the yacht had previously been submerged.

10. Plaintiff submitted a bid to purchase the yacht.

11. Negotiations followed and an agreement upon a sale price was reached.

12. Plaintiff's contract to purchase the yacht was contingent upon a successful sea trial and survey.

13. Plaintiff or his agents, subsequently caused sea trials to be performed on the yacht.

14. The yacht performed to the satisfaction of both Plaintiff and the marine surveyors.

15. Plaintiff personally inspected the yacht, and based on his independent inspections, the inspections by the independent marine surveyors, and successful sea trials, found the yacht to be acceptable and completed the transaction.

16. Laurence Roller made no misrepresentations to Plaintiff regarding the history or condition of the yacht.

17. Plaintiff's decision to purchase the yacht was not made in reliance on any representation made by Merrill-Stevens, Laurence Roller, or Roller's broker, Woods and Oviatt, regarding the history or condition of the vessel.

MERRILL-STEVENS' MOTION FOR SUMMARY JUDGMENT

Count I—Fraudulent Misrepresentation

Plaintiff is unable to establish a prima facie case of fraudulent misrepresentation against Merrill-Stevens. To establish a cause of action for fraudulent misrepresentation, Plaintiff must demonstrate that: (1) Merrill-Stevens knowingly made false statements concerning material facts; (2) that Plaintiff relied on these statements; and (3) that Plaintiff was damaged as a result of relying upon these false representations. Hauben v. Harmon, 605 F.2d 920 (5th Cir.1979); Stowell v. Ted S. Finkel Inv. Servs., Inc., 641 F.2d 323 (5th Cir.), reh'g denied, 647 F.2d 1123 (1981).⁵

There is a genuine issue of material fact whether Merrill-Stevens knowingly made false representations regarding the history or condition of the M/V IMPULSE/XANADU. Plaintiff adduces evidence that during the course of negotiations, Jeff Stanley, a broker employed with Woods and Oviatt, advised Merrill-Stevens' broker, Scott Hasselbring, of the yacht's prior sinking.⁶ Stanley purportedly learned this through conversations with Michael Myles at Orange Beach Marina.⁷

While the M/V IMPULSE/XANADU was undergoing sea trials, Plaintiff purportedly overheard Stanley and Hasselbring discussing the sinking of a boat. Plaintiff approached them and asked whether they were discussing the M/V IMPULSE/XANADU and whether the M/V IMPULSE/XANADU had ever sunk before. Hasselbring denied that the M/V IMPULSE/XANADU had previously sunk. Plaintiff described the conversation as follows:

Prior to the purchase of the vessel, at the Merrill-Stevens Boat Yard, Fort Lauderdale, Florida, I overheard Scott Hasselbring, Merrill-Stevens, and Jeff Stanley, Woods and Oviatt, discussing the sinking of a boat. I asked both men whether the vessel XANADU had ever sunk. Scott Hasselbring stated no, that they were talking about another boat. This statement was made in the presence of Jeff Stanley who said nothing. I only asked whether my boat had previously been sunk when I overheard the conversation and simply wished to assure myself that my boat had never sunk.

Plaintiff Interrogatory Response No. 1 (emphasis added).

Plaintiff also refers to the deposition of Scott Hasselbring, wherein he states unequivocally that Plaintiff asked him directly whether the M/V IMPULSE/XANDADU had ever sank. The deposition reads in pertinent part:

Q: Do you recall if Mr. Czarnecki ever asked you, prior to the phone call of May 2, 1988, had the boat ever sunk?

A: Yes, I do.

* * * * * *

Q: Do you recall specifically what Mr. Czarnecki asked you?

A: Yes, I do.

Q: What was that?

A: Had this boat been sunk.

Q. Do you recall your answer to him?

A. I did not make an answer, as I have no knowledge that it did; but the surveyor who had inspected the vessel would be in a position to render more of an opinion. That why he's there.

Hasselbring Deposition, pp. 39-40 (emphasis added).

Merrill-Stevens asserts that its yacht broker, Scott Hasselbring, never represented that the M/V IMPULSE/XANADU had not previously been sunk or submerged. It does, however, concede that Plaintiff approached Hasselbring and Jeff Stanley after overhearing them converse about the sinking of a vessel. But Merrill-Stevens contends that Plaintiff merely inquired whether they were referring to the M/V IMPULSE/XANADU, whereupon he was told they were referring to a...