Fat Boy, LLC v. KCS International, Inc
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:08-cv-04000-DCN. Copies to all parties and the district court/agency. [998776372].[11-1352]
Appeal: 11-1352
Document: 27
Date Filed: 01/31/2012
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1352
FAT BOY, LLC,
Plaintiff - Appellant,
v.
KCS INTERNATIONAL, INCORPORATED, d/b/a Cruisers Yachts,
Defendant/Third Party Plaintiff - Appellee,
and
CAPE FEAR YACHT SALES OF NORTH CAROLINA,
Defendant,
and
BRUNSWICK CORPORATION,
Third Party Defendant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:08-cv-04000-DCN)
Submitted:
January 18, 2012
Decided:
January 31, 2012
Before WILKINSON and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
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Paul V. Degenhart, DEGENHART & DEGENHART LAW, LLC, Columbia,
South Carolina, for Appellant. David B. Marvel, PRENNER MARVEL,
P.A., Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Fat Boy, LLC (“Fat Boy”) brought an action against KCS
International,
rescission,
Inc.
breach
(“KCS”)
of
for
express
warranties, and negligence.
breach
warranty,
of
contract
breach
of
and
implied
On appeal, Fat Boy challenges the
district court’s decision to grant KCS judgment as a matter of
law on its breach of contract claim.
record and find no reversible error.
We have reviewed the
Accordingly, we affirm.
In October 2004, George M. Lee, III, the sole member
of
Fat
Boy,
purchased
a
2004
455
Cruisers
Motor
Yacht
manufactured by KCS from Cape Fear Yacht Sales (“Cape Fear”).
The yacht was covered by the Cruisers Yachts Limited Warranty
(“Limited Warranty”).
complained
to
KCS
Lee was dissatisfied with the yacht and
of
water
leaks,
floating
bulkheads,
and
difficulty shutting the doors.
As a result, Lee sent the yacht
to
of
the
KCS
factory
a
number
times
for
repair,
and
KCS
ultimately agreed to replace the 2004 yacht with a 2006 model,
at no cost to Lee.
The 2006 yacht was also covered by the
Limited Warranty.
In 2007, Lee experienced numerous problems with the
2006 yacht, complaining to KCS of extensive water leaks, rust
spots,
doors
generator,
that
and
a
would
not
shut
properly,
broken
DVD
player.
KCS
a
malfunctioning
provided
warranty
service on the 2006 yacht, including two service trips to the
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KCS factory, at no cost to Fat Boy or Lee.
demanded that KCS repurchase the 2006 yacht.
Thereafter, Lee
When KCS refused,
Lee filed the instant lawsuit against KCS and Cape Fear. ∗
At the close of Fat Boy’s case, KCS moved for judgment
as a matter of law as to all claims.
KCS’s
motion
contract
and
with
respect
breach
of
to
Fat
implied
The district court granted
Boy’s
claims
warranties,
of
finding
breach
of
that
the
alleged oral contract failed to satisfy the Statute of Frauds,
and the Limited Warranty contained a valid disclaimer excluding
all implied warranties.
Following a three-day trial, the jury
found that KCS had not breached its express warranty.
Fat Boy
appeals only that portion of the court’s order that granted KCS
judgment as a matter of law on its breach of contract claim.
We review the grant of a motion for judgment as a
matter of law de novo, and view the facts in the light most
favorable
to
the
nonmoving
party.
A
Helping
Hand,
Baltimore Cnty., 515 F.3d 356, 365 (4th Cir. 2008).
LLC
v.
“Judgment
as a matter of law is proper only if there can be but one
reasonable conclusion as to the verdict.”
Prods.,
Inc.,
335
F.3d
325,
331
(4th
Ocheltree v. Scollon
Cir.
2003)
(internal quotation marks and citation omitted).
∗
(en
banc)
“Such a motion
Cape Fear subsequently became insolvent and was dismissed
from the case.
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is properly granted if the nonmoving party failed to make a
showing on an essential element of his case with respect to
which he had the burden of proof.”
Wheatley v. Wicomico Cnty.,
390 F.3d 328, 332 (4th Cir. 2004) (internal quotation marks and
citation omitted); see Fed. R. Civ. P. 50(a)(1).
On appeal, Fat Boy argues that the district court’s
ruling was erroneous because KCS failed to plead the Statute of
Frauds as an affirmative defense as required by Fed. R. Civ. P.
8(c), thereby waiving the defense.
However, Fat Boy did not
present this claim before the district court, and issues raised
for the first time on appeal generally will not be considered.
See Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993);
Nat’l
1988).
Wildlife
Fed.
v.
Hanson,
859
F.2d
313,
318
(4th
Cir.
Exceptions to this rule are made only in very limited
circumstances,
such
as
where
refusal
to
consider
the
newly-
raised issue would constitute plain error or would result in a
fundamental miscarriage of justice.
Muth, 1 F.3d at 318.
We
find that such exceptional circumstances do not exist, and Fat
Boy has waived appellate review of this issue.
Fat Boy next contends that the district court erred in
dismissing
its
breach
of
contract
claim
because
the
alleged
transaction falls within an exception to the Statute of Frauds.
According
to
exception
set
Fat
Boy,
forth
in
the
contract
Section
5
at
issue
36-2-201(3)(b)
satisfies
of
the
the
South
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Carolina
which
Statute
does
Frauds]
not
but
Date Filed: 01/31/2012
of
Frauds,
satisfy
which
is
the
valid
which
Page: 6 of 7
provides
requirements
in
other
of
that
“a
[the
respects
contract
Statute
is
of
enforceable
. . . if a party against whom enforcement is sought admits in
his pleading, testimony or otherwise in court that a contract
was made.”
S.C. Code Ann. 36-2-201(3)(b) (1976).
In support of
this contention, Fat Boy first cites testimony by Lee himself:
“Jim Viestenz agreed to buy me a new boat, and it was his call.”
Fat Boy also points to the testimony of KCS representative Ken
Hayes in response to a question by plaintiff’s counsel.
Counsel
inquired of Hayes, “I believe your testimony was that when Mr.
Lee was dissatisfied with the 2004 model, that you replaced it
with a two year newer model.
Is that correct?”, to which Hayes
responded, “Yes.”
We find Fat Boy’s argument to be meritless.
Fat Boy’s
reference to Lee’s testimony that an oral contract existed is
ill-advised,
admission
as
of
an
Section
oral
36-2-201(3)(b)
contract
by
plainly
the
“party
contemplates
against
whom
enforcement is sought,” not the party seeking to enforce the
oral contract.
Moreover, Hayes’s testimony merely establishes
that KCS agreed to replace the 2004 yacht with a newer model
pursuant to the manufacturer’s express warranty.
not
allege
testimony
that
or
KCS
otherwise
otherwise
in
court
6
“admitted
that
a
in
Fat Boy does
[its]
contract
pleading,
was
made.”
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Accordingly, we find that the district court did not err in
awarding KCS judgment as a matter of law as to Fat Boy’s breach
of contract claim.
We
dispense
affirm
with
oral
the
judgment
argument
of
the
because
district
the
facts
court.
and
We
legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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