Varnal v. Oregon Lien Service, Inc.

Filing 95

OPINION and ORDER - Varnal's motion 67 for partial summary judgment on his First, Second, Fourth and Sixth Claims for Relief is DENIED. Danish Marine's motion 61 for partial summary judgment on Varnal's Fifth Claim for Relief is GRANTED. Signed on 1/11/10 by Magistrate Judge John V. Acosta. (peg)

11

I N T H E UNITED STATES DISTRICT C O U R T F O R T H E D I S T R I C T OF O R E G O N

P A T R I C K A. VARNAL, Plaintiff,

CV. 08-994-AC OPINION AND O R D E R

v.
D A N I S H M A R I N E R E P A I R CO., a n O r e g o n corporation, a n d O R E G O N LIEN S E R V I C E , INC., an O r e g o n corporation, Defendant.

A C O S T A , M a g i s t r a t e Judge: P l a i n t i f fP a t r i c k V a r n a l ( " V a r n a l " ) filed t h i s a c t i o n o n A u g u s t 2 5 , 2 0 0 8 , s e e k i n g to e n j o i n t h e public sale o f his boat, the Yacht Ariel (the " Y a c h t " ) , scheduled to occur o n September 2, 2008. The p a t i i e s a m i c a b l y r e s o l v e d t h i s i s s u e b y a g r e e i n g t o a S t i p u l a t e d P r e l i m i n a r y I n j u n c t i o n filed A u g u s t 2 8 , 2 0 0 8 , which enjoined D a n i s h M a r i n e Repair Co. ("Danish Marine") and Oregon Lien Services, Inc., ( " O r e g o n L i e n " y f r o m c o n d u c t i n g a p o s s e s s o r y l i e n f o r e c l o s u r e s a l e u n t i l f u r t h e r o r d e r o f t h i s court. (Stipulated Prelim. Inj. at 2, August 28, 2008.)

lThe c l a i m s a g a i n s t O r e g o n L i e n w e r e d i s m i s s e d w i t h p r e j u d i c e p u r s u a n t to a j o i n t m o t i o n f i l e d b y V a r n a l and O r e g o n L i e n o n A p r i l 2 9 , 2 0 0 9 . ( J u d g m e n t M a y 2 0 , 2 0 0 9 . ) Page - 1 - OPINION AND O R D E R
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Varnal also a s s e l i e d claims for breach o f contract, conversion and unfair trade practices in h i s c o m p l a i n t . V a r n a l t h e n r e q u e s t e d a n d r e c e i v e d l e a v e t o file a s u p p l e m e n t a l c o m p l a i n t . O n JanualY 16, 2009, Varnal filed a supplemental complaint asserting a claim for intentional interference w i t h contract. L e s s t h a n t e n m i n u t e s l a t e r , V a r n a l filed a s e c o n d s u p p l e m e n t a l

c o m p l a i n t a s s e r t i n g t h e s a m e c l a i m for i n t e n t i o n a l i n t e r f e r e n c e w i t h c o n t r a c t a n d a n a d d i t i o n a l c l a i m for negligence in storage. C u n e n t l y b e f o r e t h e c o u r t a r e V a r n a l ' s m o t i o n for s u m m a r y j u d g m e n t o n h i s F i r s t C l a i m for R e l i e f for Declaratory Judgment, Second Claim for R e l i e f f o r Breach o f Contract, Fourth C l a i m for R e l i e f f o r Unlawful Trade Practices, and Sixth Claim for R e l i e f f o r Negligence in Storage. D a n i s h M a r i n e h a s f i l e d i t s o w n m o t i o n for s u m m a r y j u d g m e n t o n V a r n a l ' s F i f t h C l a i m for R e l i e f for Intentional Interference w i t h Contract. T h e c o u r t finds t h a t V a r n a l ' s c l a i m for d e c l a r a t o r y j u d g m e n t i s m o o t i n l i g h t o f t h e s t i p u l a t i o n o f t h e p a r t i e s a n d h i s m o t i o n for s u m m m y j u d g m e n t o n t h i s c l a i m i s d e n i e d . G e n u i n e i s s u e s o f material fact e x i s t w i t h regard to Varnal' s b r e a c h o f contract, unlawful trade practices and negligence storage claims. Accordingly, s u m m m y j u d g m e n t against these claims are denied as well. I n the absence o f any evidence suppOliing the allegations made in V a r n a l ' s Fifth Claim for Relief, D a n i s h M a r i n e ' s motion for s u m m m y j u d g m e n t o n V a r n a l ' s intentional interference with contract claim is granted. 2 Background Varnal purchased the Yacht in September 2007 and, shortly thereafter, arranged for Skeeter

2The p m i i e s h a v e consented to jurisdiction by magistrate j u d g e in accordance w i t h 28 U . S . c . § 636( c ) ( I ) . P a g e -2- O P I N I O N A N D O R D E R {SIB}

Kershaw ("Kershaw") o f N a u t e k Marine, to conduct a survery o f the Yacht. Kershaw recommended various repairs and improvements in his survey dated October 1 6 , 2 0 0 7 . (Varnal Aff. dated August 25, 2008 ("First Varnal Aff.") ~ ~ 2-3.) Varnal immediately alTanged for the replacement o f t h e port and starboard stays by a rigging contractor, who left the old stays o n the bulkhead. (First Varnal Aff.
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3.) Varnal then arranged for Danish Marine to perform additional upgrades and repairs. Varnal

delivered the Yacht to Danish Marine on January 25, 2008, along w i t h K e r s h a w ' s survey. (First Varnal Aff.
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4.)

Varnal remembers requesting that Danish Marine paint the hull, replace a port light, inspect the Yacht, and provide a written estimate o f other work recommended by Danish Marine, and that Danish Marine quoted $895 as the cost for these services with no charge for the haul out. (First Varnal Aff. ~ 4.) J e n y Miller ("Miller"), President o f Danish Marine, testified that the quote o f $ 8 9 5 was limited to the preparation and painting o f t h e bottom o f the Yacht only. Miller represents that he informed Varnal that he charged $69.00 a n hour for labor at the initial meeting and that Varnal did not object to this rate. (Miller Aff.
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6.)

Varnal expected that he would receive and sign a w o r k order authorizing the specific work to be performed o n the Yacht, the date the w o r k would be done, and the price for the work, but r e p r e s e n t s t h a t t h e " s c o p e o f w o r k w a s n e v e r firmly e s t a b l i s h e d i n a n y w r i t t e n w o r k o r d e r . " ( V a r n a l Aff. dated January 27, 2009 ("Second Varnal Aff.") ~ 2, Varnal Aff. dated March 21, 2009 ("Third Varnal Aff.") ~ 13.) A t this time, Varnal expected that the repairs to the Yacht would be finished sometime i n April 2008 t o allow h i m to enjoy the Yacht for the season. (Varnal Dep. 92:14-20.) In a n affidavit, Varnal represents that Miller assured him that the refinishing and painting o f the hull would be completed i n April 2008. (Third Varnal Aff. P a g e -3- O P I N I O N A N D O R D E R
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13.) {SIB}

Danish Marine was not in the habit o f writing up contracts with customers. Instead, Alisha Delong ("Delong"), Office Manager for Danish Marine, would provide a customer with a work order, which they would fill out, sign and return. The work order would then govern the work to be performed on the boat. (Delong Dep. 9:3-8.) Danish Marine did not require a credit application nor did it check a customer's credit before beginning work on a boat. (Delong Dep. 15:2-22.) D e l o n g t e s t i f i e d t h a t s h e p r o v i d e d V a r n a l w i t h a b l a n k w o r k o r d e r ( " W o r k Order") a f t e r his conversation with Miller and that Varnal "left with that work order and, at a later time, brought it back to me signed and filled out." (Delong Dep. 9:9:24-10:3.) Delong later clarified that she filled i n the name and phone number on the Work Order; that Bryan Smith, a Danish Marine employee who worked on the Yacht, completed the description o f the work, in part, from Kershaw's survey and, i n part, from his conversation with Varnal; and that Varnal added his fax number and signature to the Work Order. (Delong Dep. 10:14-11:6.) Smith remembers discussing the items on Work Order several times with Varnal while on the Yacht. (Smith Dep. 12:2-18.) Varnal admits to seeing the Work Order but is "doubtful" that it is his signature on the document, and he has "no recollection o f having signed it." (Second Varnal Aff. '112.) The Work Order listed ten items from Kershaw's survey that needed to be addressed: I) 2) 3) 4) 5) 6) R e p l a c e d e t e r i o r a t e d a n c h o r rode Install GFI r e c e p t a c l e Provide two mounted USCG app fire extinguishers Replace engine fuel lines to USCG specs Install two SS clamps on all exhaust fittings Install two SS clamps on all below water line connections
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Page -4- OPINION AND ORDER

7) 8) 9) 10)

Service e x h a u s t m u f f l e r Replace frame seals and prove all are water tight (portlight/window frame) Back stay chain plates are leaking - seal all Replace c o m p a s s

(Wade Sponsoring Aff. Ex. 101.) The Work Order listed the following items as additional repair requests: "repair shore paineI' cover, re-wire battery box, re-place battery charger, re-build cabin heater flue, re-pair broken hatch board, sound p r o o f engine room." (Wade Sponsoring Aff. Ex. 101.) Smith understood that Varnal was planning to replace the anchor rode himself and that Danish Marine was not responsible for the repair o r replacement o f the auto navigation system. (Smith Dep. 3 9 : 1 4 - 1 6 ; 7 3 : 1 0 - 2 5 . ) A l s o , h e r e m e m b e r s V a r n a l e x p r e s s i n g c o n c e r n t h a t t h e h a t c h b o a r d s were leaking water and that Varnal wanted the hatch boards to be fixed first. (Smith Dep. 82:6-16.) Shortly after delivering the Yacht to Danish Marine, Varnal returned to his residence i n Leawood, Kansas. (First Varnal Aff.
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4.)

Both Delong and Smith testified that Varnal subsequently changed the work to be performed o n the Yacht i n phone conversations and email correspondence. (Delong Dep. 13 :25-14:25, 18: 1015, 19:8-10; Smith Dep. 13:25-14:9.) Varnal agreed that he had numerous conversations with Danish Marine discussing the need for additional repairs to the Yacht. (First Varnal Aff. ~ 5, Vamal Depo. 76:5-16.) Specifically, he stated that he probably spoke to Danish Marine o n the phone about repairing the manual override switch for the bilge pump. (Varnal Dep. 75:11-23.) Varnal states that he called Miller several times in February 2008, requesting a written estimate for parts and labor. (First Varnal Aff. ~ 5.) I t is undisputed that Varnal received an estimate f r o m Danish Marine dated Februmy 5 , 2 0 0 8 , in the amount of$2,701.51 which set fOlih the cost o f Page -5- OPINION AND ORDER
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the pmis needed for the repairs to the Yacht (the "February Estimate"). Varnal found the February Estimate to b e confusing because i t lacked details about what needed to be done and did not include l a b o r e s t i m a t e s . ( F i r s t V a r n a l A f f . ~5.) H e d i d , h o w e v e r , m a k e p r o g r e s s p a y m e n t s i n t h e a m o u n t o f $482.00 o n Februmy 1 2 , 2 0 0 8 , and $376.00 o n M a r c h 1 , 2 0 0 8 . I n l a t e M a r c h 2 0 0 8 , V a r n a l r e c e i v e d a n i n v o i c e f r o m D a n i s h M a r i n e d a t e d M a r c h 7, 2 0 0 8 , s h o w i n g a t o t a l a m o u n t d u e o f $ 8 , 5 9 3 . 5 3 ( t h e " I n v o i c e " ) , and a s e c o n d w r i t t e n i n v o i c e d a t e d M a r c h 5, 2008, setting f o r t h t h e labor charges necessmy to complete the requested w o r k (the " M a r c h Estimate").3 (First Varnal Aff. ~ 6, Wade Sponsoring Aff. Exs. 103 and lOS.) T h e March Estimate c o n t a i n e d t h e a d d i t i o n a l w o r k o f i n s t a l l i n g t h r e e m o r e p o l i l i g h t s ; a s e c o n d s o l a r v e n t ; i n s p e c t i n g and repairing, i f necessmy, the fuel tank; rebuilding the cabin heater chim ney and flue; finding and i n s u l a t i n g t h e e n g i n e a n d i n t e r i o r w i r i n g ; r e m o v i n g t h e horn; i n s t a l l i n g a n e w t r a n s d u c e r , r a d a r b r a c k e t , a n d R A M V H F r e m o t e ( i n c l u d i n g all a c c e s s o r i e s a n d wiring); a n d i n s u l a t i n g t h e e n g i n e room. Varnal noted that the M a r c h Estimate duplicated, to s o m e degree, the Februmy Estimate and also listed a d d i t i o n a l m a t e r i a l s f o r additional w o r k r e c o m m e n d e d b y D a n i s h Marine. ( F i r s t V a r n a l A f f . ~ 6.) V a r n a l c o u l d n o t r e c o n c i l e the F e b r u m y E s t i m a t e a n d the M a r c h E s t i m a t e w i t h t h e I n v o i c e a n d w a s concerned b e c a u s e i t s e e m e d to b e contrary to t h e u n d e r s t a n d i n g h e h a d w i t h D a n i s h M a r i n e t h a t i t " w o u l d n o t p r o c e e d w i t h w o r k b e y o n d w h a t I h a d asked h i m to d o w i t h o u t s u b m i s s i o n b y h i m

3When questioned a b o u t the difference between the dates o n the documents and t h e dates t h e y w e r e received by Varnal, D e l o n g explained that t h e computer system she uses to generate i n v o i c e s a n d e s t i m a t e s a u t o m a t i c a l l y i n p u t s t h e d a t e t h e d o c u m e n t w a s c r e a t e d a n d t h a t she n e g l e c t e d to c h a n g e t h a t d a t e o n c e V a r n a l ' s i n v o i c e s a n d e s t i m a t e s w e r e f i n a l i z e d a n d printed. ( D e l o n g D e p . 39:1-41:1.)

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to me o f an estimate and m y written approval." (First Varnal Aff.

~6.)

Varnal testified t h a t Miller

admitted that the Invoice was confusing and t h a t he could not " m a k e sense" o f the estimates and the Inyoice. (Third Varnal Aff.
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14.) About this time, Miller directed his employees t o stop working

o n the Yacht based o n V a r n a l ' s failure to pay. (Smith Dep. 61 :5-25.) I n e a r l y A p r i l 2 0 0 S , V a r n a l h i r e d A l i z o n M a z o n , o f M a z o n & A s s o c i a t e s , to s u r v e y t h e Y a c h t a n d d e t e l m i n e w h a t w o r k h a d b e e n p e r f o r m e d by D a n i s h M a r i n e , w h a t w o r k w a s s t i l l n e e d e d , a n d whether the w o r k performed and identified as additional proposed work b y Danish Marine was necessalY. (First Varna1 Aff. ~7.) The draft survey, dated April 14, 200S,< did n o t specifically a n s w e r V a r n a l ' s q u e s t i o n s but d i d l i s t s i x 5 i t e m s t h a t r e q u i r e d i m m e d i a t e a t t e n t i o n , n i n e i t e m s needing timely attention and eight items characterized as maintenance items ("Mazon Draft Survey"). (Leo Aff. Exh. H a t 6-S.) While not identifYing whether the w o r k was authorized by Varnal or performed by Danish Marine, M a z o n noted that the wiring to the main 11 OVA C panel and battely charger was n o t adequately protected, that the heater installation w a s substandard and amatuerish, and that there were inadequate fire extinguishers (less than three) aboard and mounted, all needing immediate attention. (Leo Aff. Exh. H a t 6.) She also recOimnended immediate action t o repair a number o f l i g h t s that were not operational and the outboard fuel primer bulb, which could n o t pass the Coast Guard flame exposure test, and to obtain and install a carbon dioxide and smoke detector. (Leo Aff. Exh. H at 6.) The items needing timely attention included replacing and providing proper drainage for the water heater pressure valve; replacing pipe, fittings, valves, vinyl

4Varnal did n o t recieve the final version o f t h i s survey until June 12, 200S. (First Varnal Aff.
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7.)

5Mazon listed a n inadequate number o f fire extinguishers o n board twice i n her list o f seven items needing immediate attention. (Leo Aff. Exh. H a t 6.) P a g e -7- OPINION AND ORDER {SIB}

hoses, lifelines and vinyl coverings w i t h new or better suited products; relocating the fuel t a n k vent; installing an anti-siphon loop in the engine raw water discharge system; fitting three seacocks with handles; labeling the 12V panel correctly; and repairing or replacing the manual switch for the bilge pump. (Leo Aff. Exh. H a t 7.) A t the end o f the Mazon Draft Survey, Mazon specifically noted that: O w n e r h a s D a n i s h M a r i n e p e r f o r m i n g m a n y m a j o r i m p r o v e m e n t s a n d upgrades. N e w b a t t e r i e s , b a t t e r y s w i t c h , battery c a b l e s a n d battery c h a r g e r w l r e m o t e p a n e l h a v e b e e n installed. N e w f o r w a r d l o w e r s h r o u d c h a i n p l a t e s h a v e b e e n installed. A n e w V H F h a s b e e n i n s t a l l e d . One o f f o u r n e w p o r t l i g h t s h a s b e e n i n s t a l l e d . A n e w i n v e r t e r h a s b e e n i n s t a l l e d . B l i s t e r e d a r e a s o f t h e hull h a v e b e e n p e e l e d a n d e p o x y b a r r i e r c o a t h a s b e e n applied. O n e b a c k s t a y c h a i n p l a t e h a s b e e n r e m o v e d a n d remounted. All w o r k i s n o t yet completed to include flat panel electronics, radar, GPS chartplotter, etc. (Leo Aff. Exh. H a t 10.) Throughout April 2008, Danish Marine continued to attempt to collect the amounts it felt was due and owing based o n the Invoice. In an April 10, 2008, email, Delong advised Varnal that Danish Marine needed payment to continue w i t h the w o r k remaining o n the Yacht. (Wade Sponsoring Aff. Ex. 106.) Varnal then made a third partial payment i n the amount o f $ 8 2 8 o n April 1 5 , 2 0 0 8 . Delong followed up with a second email dated April 23, 2008, informing Varnal that: I talked to Bryan and he said it would take h i m between 3 and 3.5 Ill'S p e r window depending on the time it takes to get the old one out and the hole clea[n]ed up. He has not installed the transducer or the remaining portlights. We need an additional payment o f $ 6 , 0 6 7 .53 (this is yourremaining balance minus the bottom paint) before we can resume working o n your boat. This amount is labor and materials that Danish Marine has paid o u t o n your boat. Please let me know h o w you would like to p r o c e e d r e g a r d i n g this matter. (Wade Sponsoring Aff. Ex. 107.) O n May 2 7 , 2 0 0 8 , apparently i n response to a "customer report" from Danish Marine that indicated a n unpaid balance o f $ 6 , 4 1 1 . 0 3 , Varnal made a fOUlih payment o f $ 4 9 6 . 5 0 . (First Varnal Aff. 'il8.) A t this time, Varnal had paid nearly all o f what he thought was

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due, based on M a z o n ' s survey and the original "estimate" of$2,701.51. (First Varnal Aff. '1l8.) Varnal traveled to POliland, Oregon, o n June 17, 2008, to inspect the Yacht. He found the Yacht floating in the water and recognized that some o f the work he authorized had been properly c o m p l e t e d . I n h i s first a f f i d a v i t , h e s p e c i f i e d t h a t t h e i n s t a l l a t i o n o f a p l a t e o n t h e t r a n s o m , a n e w compass, and one o f the two solar vents provided by Varnal, as well as repairing the main hatch, preparing the bottom o f the Yacht for painting, and removing graphics from the Yacht, h a d been accomplished. (First Varnal Aff. '1l9.) In his third affidavit, Vamal indicated that he authorized, and had no objection to the charges for, installation o f a solar vent, n e w batteries, a n invelier and a b a t t e r y charger; c l e a n i n g , c a l k i n g , sealing, and painting the hull below the water line; and

replacement o f a n existing pOli light with a larger version. (Third Aff. '1l 15.)6 Then, at his deposition, Varnal admitted to authorizing additional work noted on the Invoice, including installing a port chain place backstay (Varnal Dep. 58:13-24), a BC/AC switch (including the cutting o f holes)(Varnal Dep. 6 9 : 6 - I l ) , a shaft zinc (Varnal Dep. 70:16-71:4), and n e w invelier cables (including a route to batteries and a lugs fuseblock for inverter)(Varnal Dep. 72:19-23); as well as doubling-up the SS hose clamps (Varnal Dep. 56:22-57:8), wiring the fuse for the inverter (Varnal Dep. 80:15-21), removing and reinstalling o f the chain plate attached to the pOli side pOli light (Varnal Dep. 81 :2-7), and clearing the old wires and rerouting n e w wires to the battery. (Varnal Dep. 82: 16-20). Varnal made no claim in his deposition that these repairs had not been completed or any specific claim that the amounts charged for these services were not reasonable. At the same time, Varnal had complaints about various items. First, V a m a l was concemed

6The cOUli recognizes that Varnal complains that the bottom painting and port light w o r k was n o t completed when he inspected the Yacht on June 17, 2008, but is now not objecting t o the charges r e l a t e d to t h o s e i t e m s . P a g e -9- O P I N I O N A N D O R D E R {SIB}

that some o f the work he authorized had n o t been completed. (First Varnal Aff.

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9.) Specifically,

he noted that installation o f certain electrical equipment, the painting o f the hull, and the repair o f damaged electrical wiring and the transom leak, all authorized by Varnal, had not been completed as o f J u n e 1 7 , 2 0 0 8 . (First Varnal Aff.
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9, Third Varnal Aff.

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12.)

V a r n a l was a l s o c o n c e r n e d a b o u t t h e f a c t t h a t D a n i s h M a r i n e h a d p e r f o r m e d r e p a i r s a n d purchased parts not authorized by Varna!. (First Varnal Aff.
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9.) Varnal denies authorizing the

p u r c h a s e o f t l n ' e e a d d i t i o n a l portlights, a sounder, a transducer, a n a n c h o r l i n e a n d a n c h o r c h a i n a n d t h e d i s a b l i n g o f t h e a u t o n a v i g a t i o n system, t h e r e m o v a l o f t h e L o r a n , s o u n d p r o o f i n g w o r k a n d t h e installation o f a teak panel, all items o f w o r k performed by Danish Marine. (First Varnal Aff. Third Varnal Aff.
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9,

13, 15, Varnal Depo. 79:1-21.)

Finally, V a m a l e x p r e s s e d c o n c e r n a b o u t w i t h t h e q u a l i t y o f t h e w o r k p e r f o r m e d b y D a n i s h M a r i n e . (First V a r n a l Aff.
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9.) Specifically, Varnal was n o t satisfied with the manner i n which

Danish Marine removed and replaced electrical wiring, which resulted in damage to the wiring. (First Varnal Aff. ~ 9.) Varnal also noted that Danish Marine had removed the bulkhead stays/chain plates, which exposed portions o f the Yacht to the weather. (First Varnal Aff. ~ 9, Third Varnal Aff.
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12.) A d d i t i o n a l l y , V a r n a l c o m p l a i n e d a b o u t t h e m a n n e r i n w h i c h D a n i s h M a r i n e i n s t a l l e d a
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portlight, and inverter and the back stays to the mast. (Third Varnal Aff.

15.)

Varnal discussed his concerns about Danish M a r i n e ' s perfOlmance with Miller and explained to Miller that billing for w o r k n o t yet completed was not a good business practice. (First Varnal Aff.
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10, Second Varnal Aff.

~2.)

Varnal also did not think that he should be charged for time spent by

Danish Marine discussing with Varnal what needed to be done to the Yacht or the t i m e spent ordering parts. (Varnal Dep. 54:9-24.) P a g e -10- O P I N I O N A N D O R D E R {SIB}

Varnal suggested a compromise and intended to offer to pay Danish Marine for the value o f the authorized and properly performed repairs, which he believed would be between $1,800 and $2,500. (First Varnal Aff.
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10.) Miller rejected any attempts at a compromise. (First Varnal Aff.

10.) At this point, Varnal directed Danish Marine to stop all work on the Yacht, including the
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painting and pOltlight work. (Second Varnal Aff.

3, Third Varnal Aff.

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14.)

In early July, 2008, Varnal received a Notice o f Foreclosure Sale from Oregon Lien Service indicating that the Yacht was scheduled to be sold at an auction on August 8, 2008, to pay for $7,636.03 due and owing Danish Marine ($6586.03 for services and $1,050 for storage). (First Vamal Aff.
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I I , Ex. F.) The auction date was subsequently reset for September 2 , 2 0 0 8 . (First

Varnal Aff. ~ I I , Ex. G.). Varnal filed this action on August 25, 2008, seeking to enjoin the public sale o f the Yacht. The parties resolved this issue by agreeing to a Stipulated Preliminaty Injunction filed August 28, 2008, which enjoined Danish Marine and Oregon Lien from conducting the sale until fmther order o f this court. (Stipulated Prelim. Inj. at 2, August 28, 2008.) V a r n a l ' s legal counsel asked Mazon to conduct a second survey ("Second Survey") o f the Y a c h t for the p u r p o s e o f determining w h e t h e r D a n i s h M a r i n e c o m p l e t e d t h e w o r k l i s t e d in the I n v o i c e , evaluating the w a t e l t i g h t n e s s o f hull p e n e t r a t i o n s , and p r o v i d i n g h e r i m p r e s s i o n o f the condition and value o f the Yacht. (Leo Aff. Exh. I at I . ) In the Second Survey dated November 10 2008, Mazon listed all o f the items billed i n the Invoice, indicating whether each item was verified, fair and reasonable, and then provided the following summaty: I n t h i s s u r v e y o r ' s o p i n i o n , t h e work c o m p l e t e d w a s p e r f o r m e d i n a w o r k m a n l i k e manner and to current ABYC standards. · Some wiring is not yet completed so that wiring is not technically ABYC compliant at this time. Page -11- OPINION AND ORDER
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· W i r i n g t o b e c o m p l e t e d i s t o the b a t t e l y charger. · T h e D C s w i t c h p a n e l i s n ' t s c r e w e d d o w n y e t (this o n l y r e q u i r e s 4 screws). · The wiring in fi'ont o f t h e engine i s n ' t yet loomed up as requested. However, this s h o u l d n o t be d o n e u n t i l all o f t h e e l e c t r i c a l w o r k is c o m p l e t e d . · T h e w o r k o u t l i n e d i n e s t i m a t e # 5 9 [ M a r c h E s t i m a t e ] i s n o t yet c o m p e t e d . Installation o f electronics in this estimate will require considerably m o r e w i r i n g to be installed. · While not evelY labor operation could be directly confirmed, t h e general scope w a s completed, i t w a s completed i n a workmanlike manner, a n d the overall invoice a m o u n t is j u d g e d to b e fair a n d reasonable. (Leo Aff. Exh. I a t 4.) In N o v e m b e r 2 0 0 8 , V a r n a l d e p o s i t e d t h e s u m o f $ 1 0 , 5 6 1 . 0 7 w i t h t h e c o u r t i n e x c h a n g e f o r D a n i s h M a r i n e ' s release o f the Yacht to Varnal pursuant to a stipulation and o r d e r entered o n N o v e m b e r 19, 2008. (Stipulated Order dated Nov. 19, 2008.) A t this point, D a n i s h Marine completed t h e w o r k o f painting the hull and installing the additional portlights. (Third Varnal Aff.

n

13, 17.) T h e c o n t r o v e r s y c o n t i n u e d . I n e a r l y D e c e m b e r , 2008, D a n i s h M a r i n e a d v i s e d V a m a l t h a t

b e f o r e the Y a c h t c o u l d b e s a f e l y t r a n s p o r t e d t h e m a s t w o u l d h a v e t o b e s t e p p e d . D a n i s h M a r i n e offered to complete this t a s k for $500 and to load the Yacht o n a trailer for an additional $180, and demanded a deposit o f $2000 before it w o u l d perform these tasks. (Wade Aff. Exh. A at 2.) O n December 1 1 , 2 0 0 8 , V a r n a l ' s counsel requested "disclosure o f what w o u l d be required in order to m a k e t h e v e s s e l r e a d y for s h i p m e n t " , r e q u e s t e d a p r o m p t r e s p o n s e , a n d i n d i c a t e d t h a t he h a d ' h o p e d t o a v o i d t h e p r o l i f e r a t i o n o f c l a i m s . " ( W a d e Aff. E x h . A a t 2 - 3 . ) I n r e s p o n s e , c o u n s e l f o r D a n i s h M a r i n e a d v i s e d t h a t D a n i s h M a r i n e h a d d e c i d e d i t d i d n o t w a n t t o d e a l w i t h V a r n a l any l o n g e r ,

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refused to answer any questions about the condition o f the Yacht, referred Varnal to t h e two surveys p r e p a r e d o n h i s b e h a l f b y M a z o n , and a s s u r e d t h a t D a n i s h M a r i n e w o u l d d e l i v e r t h e Y a c h t t o V a r n a l o r h i s r e p r e s e n t a t i v e p u r s u a n t t o t h e t e r m s o f t h e s t i p u l a t e d o r d e r . ( W a d e Aff. E x h . A a t 1 - 2 . ) T h i s w a s f o l l o w e d u p w i t h a n e m a i l from D a n i s h M a r i n e ' s c o u n s e l s t a t i n g that: T h e b o a t m a y b e p i c k e d u p a t a n y t i m e w i t h r e a s o n a b l e notice. D a n i s h M a r i n e will remove the boat from the w a t e r at no charge. Your client is responsible for e v e l y t h i n g e l s e n e c e s s a r y t o m o v e the b o a t . D a n i s h M a r i n e w a n t s t h e b o a t r e m o v e d a t the earliest possible time. D a n i s h Marine cannot be expected [to] expend further t i m e a n d m a t e r i a l s o n t h e b o a t w i t h o u t a deposit. I want to make this velY clear. T h e boat is available t o be m o v e d at any time with n o t i c e . P l e a s e l e t u s k n o w w h e n y o u r c l i e n t w i s h e s t o m o v e it. I f y o u r c l i e n t b e l i e v e s t h e r e i s o t h e r w o r k n e c e s s m y t o r e a d y t h e b o a t for t h e m o v e , D a n i s h M a r i n e w i l l cooperate w i t h whomever is to perform the w o r k so that they have reasonable access to it. ( W a d e A f f . Exh. B.) U p o n receiving custody o f t h e Yacht and towing? it to A & D Yacht R e p a i r Service in late 2008, Varnal repOited that the w o o d laminate floor o f t h e vessel had suffered w a t e r damage w h i c h w i l l cost $1 ,700 to repair. (Varnal Aff. 'il18.) Miller testified that he personally inspected the Yacht i n early 2 0 0 8 and n o t i c e d t h a t t h e w o o d e n f l o o r o f t h e c a b i n w a s d i s c o l o r e d and d a m a g e d a t t h a t time. H e s t a t e d t h a t h e t h e r e a f t e r m a i n t a i n e d the c o v e r a n d e n t r y o f t h e b o a t t o p r e v e n t l e a k a g e i n t o t h e c a b i n a n d p r o t e c t t h e c a b i n f l o o r f r o m a d d i t i o n a l d a m a g e . ( M i l l e r Aff. ' i l 2 . ) O n J a n u a r y 1 5 , 2 0 0 9 , D a n i s h M a r i n e filed a m o t i o n s e e k i n g s u m m m y j u d g m e n t o n i t s F i r s t Counterclaim i n w h i c h i t sought to recover t h e agreed charges for labor and materials provided o r the reasonable value thereof. After hearing oral argument, the COUIt granted the m o t i o n to a limited

?The Yacht h a d to b e t o w e d because the batteries were n o t connected. (Third Varnal Aff. 'iI 17.) Page -13- OPINION AND O R D E R

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extent, finding that " p l a i n t i f f would be liable to defendant under a quantum meruit theOlY for the value o f services defendant performed o n p l a i n t i f f s yacht or liable to defendant to the extent that defendant's services enhanced the y a c h t ' s value." (Order, March 6, 2009.) The court expressly declined to determine the reasonable value o f the services, the amount Varnal owes for the services, whether the services were authorized by Varnal or increased the value o f the yacht i n any way, and whether Danish Marine owes Varnal any monies for damage to the yacht. (Order, March 6 , 2 0 0 9 . ) Varnal and Danish Marine then filed the cross-motions for patiial summaty judgment currently b e f o r e t h e court. Varnal concedes the existence o f a contract, b u t contends that the terms o f the contract are i n dispute. (Second Varnal Aff. '113.) He also admits that it is likely that some additional s u m is due t o D a n i s h M a r i n e d e s p i t e t h e fact t h a t D a n i s h M a r i n e b i l l e d f o r w o r k w h i c h V a r n a l d i d n o t a u t h o r i z e and for w o r k i t did not do. (Second Varnal Aff. '114.) Varnal asselis that any sums due should be offset by the damage suffered by the Yacht while in the custody o f Danish Marine. (Second Varnal Aff. '114.)
Legal Standard

Summaty j u d g m e n t is appropriate " i f the pleadings, the discovery and disclosure materials o n file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter o f law." FED. R. CIV. P. 56(c) (2008). Summary j u d g m e n t is n o t proper i f material factual issues exist for trial. Warren v. City a / C a r l s b a d , 58 F.3d

4 3 9 , 4 4 1 (9th Cir. 1995).
T h e moving party has the burden o f establishing the absence o f a genuine issue o f material fact. Celotex CO/po v. Catrett, 477 U.S. 3 1 7 , 3 2 3 (1986). I f t h e moving party shows the absence o f P a g e -14- O P I N I O N A N D O R D E R
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a genuine issue o fmaterial fact, the nonmoving party must go beyond the pleadings and identifY facts which show a genuine issue for trial. Id. at 324. A nonmoving party catmot defeat summaty j u d g m e n t by r e l y i n g o n t h e a l l e g a t i o n s i n t h e c o m p l a i n t , o r w i t h u n s u p p o r t e d c o n j e c t u r e o r conclusOlY statements. H e r n a n d e z v. Spacelabs Medical, Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Thus, summaty j u d g m e n t should be entered against " a party who fails to make a showing sufficient to e s t a b l i s h t h e e x i s t e n c e o f a n e l e m e n t e s s e n t i a l to t h a t p a t t y ' s c a s e , a n d o n w h i c h t h a t p a r t y w i l l bear the burden o f p r o o f a t trial." Celotex, 477 U.S. at 322. T h e c o u r t m u s t v i e w t h e e v i d e n c e i n t h e l i g h t m o s t f a v o r a b l e t o t h e n o n m o v i n g party. B e l l
v. Cameron Meadows L a n d Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable doubt as to

the existence o f a genuine issue o f fact should be resolved against the moving party. Hector v.
Wiens, 533 F.2d 429, 432 (9th Cir. 1976). Where different ultimate inferences may be drawn,

summary judgment is inappropriate. Sankovich v. Life Ins. Co. o / N o r t h A m e r i c a , 638 F.2d 136, 140 (9th Cir. 1981). However, deference to the nonmoving party has limits. The nonmoving patty must s e t fOlth "specific facts showing a g e n u i n e issue for trial." FED. R. CIV. P. 56(e) (2008) (emphasis added). The "mere existence o f a scintilla o f evidence i n support o f the p l a i n t i f f s position [is] insufficient."
A n d e r s o n v. L i b e r t y Lobby, Inc., 477 U.S. 242, 252 (1986). Therefore, where "the record taken as

a whole could n o t lead a rational trier o f fact to find for the nonmoving party, there is no genuine issue for trial." M a t s u s h i t a Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal q u o t a t i o n s m a r k s omitted).
Discussion

Varnal moves for summary judgment o n his First Claim for R e l i e f for DeciaratOlY Judgment, Page -15- OPINION A N D O R D E R
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Second Claim for R e l i e f for Breach o f Contract, Fourth Claim for R e l i e f for Unlawful Trade Practices, and Sixth Claim for R e l i e f for Negligence in Storage. Danish Marine has filed its o w n motion for summary judgment on V a r n a l ' s Fifth Claim for R e l i e f f o r Intentional Interference with Contract. Neither p a t t y seeks sununary judgment on the FOUlth Claim for R e l i e f f o r Conversion.

1. V a r n a l ' s Motion for Pattial Summary Judgment
A. First Claim for R e l i e f - Declaratory Judgment I n his First Claim for Relief, Varnal asserts that Danish M a r i n e ' s attempt to sell the Yacht under Oregon l a w violates the United States Constitution, which vests exclusive jurisdiction over maritime liens and payment claims asserted against a vessel i n this court and that the Maritime Lien Act (42 U.S.C. § 30301) preempts and supercedes any contrary provision o f Oregon law. Varnal sought a temporary restraining order or an injunction prohibiting the sale o f the Yacht pending further order o f this court, the appointment o f a qualified marine surveyor repOlt t o the court and p a t t i e s o n t h e s c o p e o f w o r k p e r f o r m e d a n d r e a s o n a b l e n e s s o f e x p e n s e s b i l l e d by D a n i s h M a r i n e , a n d a n accounting o f the reasonable value due Danish Marine for w o r k properly performed and billed. Varnal concedes that his claim for declaratory judgment, which asks the COUlt to determine that federal law governs Danish M a r i n e ' s attempt to asselt and foreclose on a lien interest in the Yacht and to enjoin the state foreclosure process, may be "mooted by the acquiescence o f t h e parties, but nonetheless should be resolved at this stage o f the proceedings." (PI. ' s Mem. Supp. Mot. Pattial Sunun. J. 10.) In its opposition brief, Danish Marine also notes that this claim is likely m o o t based o n t h e s t i p u l a t e d injunction. The r e l i e f requested by Varnal in his claim for declaratolY judgment has already been granted b y v i t t u e o f the Stipulated Preliminaty Injunction filed August 28, 2008, which enjoined D a n i s h P a g e -16- O P I N I O N A N D O R D E R
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Marine and Oregon Lien from conducting the sale until further order o f this court, the transfell'ing o f custody o f the Yacht to Varnal, and the preparation o f a survey b y Mazon. Additionally, Danish M a r i n e c o n c e d e s i n its S e c o n d A m e n d e d A n s w e r t h a t t h i s c o u r t h a s o r i g i n a l j u r i s d i c t i o n o v e r t h i s action and that federal l a w applies to any maritime lien claims asserted by Danish Marine against the Yacht. The court finds that V a r n a l ' s First Claim for R e l i e f is n o w moot. V a r n a l ' s motion for summalY judgment o n this claim is denied. 8 B. Second Claim for R e l i e f - Breach o f Contract V a r n a l a s s e r t s t h a t D a n i s h M a r i n e b r e a c h e d its c o n t r a c t w i t h h i m i n a n u m b e r o f p a r t i c u l a r s , including: 1) failing t o provide specific estimates, including a defined scope o f work, a due date or time for performance and re-delivery o f the Yacht, definite price terms, and other terms needed for performance o f work in a businesslike and workmanlike manner; 2) failing to perform the work in a workmanlike manner and in accordance with implied warranties; 3) n o t completing all necessalY work; 4) failing to do w o r k within the scope o f its claim for payment; 5) damaging systems aboard the Yacht unrelated to the work it was t o perform; and 6) refusing to provide documentation supporting the work claimed to be completed, including material costs and labor. Varnal alleges that

' V a r n a l a l l e g e s i n h i s c o m p l a i n t t h a t t h i s c o u r t h a s j u r i s d i c t i o n o v e r t h i s a c t i o n " p u r s u a n t to 28 U.S.C. § 1331 in that the questions presented arise under the Statutes and Constitution o f the United States, and 28 U.S.C. § 1333 and 46 U.S.C. [§] 30301 granting exclusive jurisdiction o f q u e s t i o n s r e l a t i n g to f o r e c l o s u r e o f m a r i t i m e l i e n s c l a i m e d a g a i n s t v e s s e l s d o c u m e n t e d u n d e r t h e laws o f the United States, and further, under jurisdiction for a DeclaratOlY Judgment under the [United] States Declaratory Judgment Act, 28 U.S.C. § 2201 and over closely related state claims u n d e r 2 8 U.S.C. § 1 3 6 7 . " ( C o m p l . ' i l 2 . ) I t w o u l d a p p e a r t h a t t h e a m i c a b l e r e s o l u t i o n o f t h e F i r s t Claim for R e l i e f by the parties, making the claim moot, eliminates the grounds for federal jurisdiction alleged i n the complaint. However, the court finds that, even in the absence o f the First Claim for Relief, it continues to have admiralty j u r i s d i c t i o n o v e r V a r n a l ' s claim for breach o f contractunderN. Pac. Steamship Co. v. Hall Bros. Marine Ry. a n d Shipbuilding Co., 249 U.S. 119, 127 ( l 9 l 9 ) ( A contract for the repair o f a vessel placed in navigable waters falls within this cOUli's admiralty jurisdiction.). Page -17- OPINION A N D O R D E R
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he has payed all amounts and performed all obligations under the contract. "Contracts f o r t h e repair o f ships are governed by admiralty law." P o i n t A d a m s Packing Co. v. Astoria Marine Constr. Co., 594 F.2d 763, 766 (9th Cir. 1979)(citing N Pac. Steamship Co. v. Hall Bros. Marine Ry. a n d Shipbuilding Co., 249 U.S. 119, 127 (1919)). In contract actions requiring the application o f federal maritime law, courts apply federal common l a w and, where appropriate, l o o k to the Uniform Commercial Code for guidance. Flores v. American Seafoods Co., 335 F.3d 904, 910 (9th Cir. 2003)(when federal maritime law govems an action, comts are t o apply federal common l a w in interpreting the contracts.); Interpool L t d v. Char Yigh Marine S.A., 890 F.2d 1453, 1459 (9th Cir. 1989)("In maritime commercial transactions, the Uniform Commercial Code is taken as indicative o f the federal common l a w o f admiralty."). State l a w may supplement federal admiralty only w h e n the matter at hand is o f local concern and the "state l a w does n o t actually conflict with federal l a w or intelfere with the uniform lVorking o f the maritime legal system." Pac. Merch. Shipping A s s 'n. v. AublY, 918 U.S. F.2d 1409, 1422 (9th Cir. 1990)(emphasis i n original). V a r n a l ' s breach o f contract claim relies on the existence o f a contract and a breach o f the e x p r e s s o r implied terms o f that contract. Under the Uniform Commercial Code (the "Code"), a contract is fOlmed by an offer and acceptance o f that offer. u . C . C . § 2-204(1). Generally, a contract for the sale o f goods at a price i n excess o f $ 5 , 0 0 0 must be signed by the party against which it is to be enforced. U.C.C. § 2-201(1). However, conduct by b o t h parties recognizing the existence o f a contract is sufficient to establish a contract, even where one or more terms are left open. U.C.C. § 2-204. Both parties concede that a contract for the repair and restoration o f the Yacht exists. The P a g e - 1 8 - OPINION A N D O R D E R {SIB}

questions o f whether the contract w a s i n writing, as evidenced b y the Work Order, and the specific w o r k t o b e perfOlmed u n d e r t h e c o n t r a c t r e m a i n a t i s s u e . T h e p a t i i e s a r e d i a m e t r i c a l l y o p p o s e d o n t h e s e issues. Varnal represents that h e expected to receive specific estimates, including a defined scope o f w o r k , a d u e d a t e o r t i m e for p e r f o r m a n c e a n d r e - d e l i v e r y o f t h e Y a c h t , a n d d e f i n i t e p r i c e t e r m s f r o m D a n i s h Marine. T h e r e is no e v i d e n c e t h a t V a r n a l shared this e x p e c t a t i o n w i t h a n y o n e a t D a n i s h Marine. In fact, Varnal acted to the contrary by authorizing repair work, b o t h before and after the fact, o v e r t h e t e l e p h o n e w i t h o u t r e q u i r i n g s p e c i f i c e s t i m a t e s , d u e s d a t e o r p r i c e t e r m s , p a y i n g f o r t h e p e r f o r m a n c e o f s o m e o f t h e w o r k , a n d c o m p l a i n i n g t h a t D a n i s h M a r i n e d i d n o t c o m p l e t e a l l o f the w o r k requested.
I t w o u l d a p p e a r f r o m t h e W o r k O r d e r t h a t V a r n a l and D a n i s h M a r i n e e n t e r e d i n t o a w r i t t e n

agreement for the repairs l i s t e d o n t h e Work Order, which seems to encompass a number o f the s e r v i c e s r e n d e r e d o n the Y a c h t . B o t h D e l o n g a n d S m i t h r e p r e s e n t t h a t V a r n a l a s s i s t e d i n t h e preparation o f t h e W o r k O r d e r and signed the W o r k Order before h e r e t u m e d to Kansas. However, V a r n a l d i s p u t e s t h a t he e v e r s i g n e d t h e W o r k O r d e r o r t h a t he a u t h o r i z e d a l l o f r e p a i r s l i s t e d o n t h e W o r k Order. Varnal admits t h a t h e orally authorized a number o f repairs after returning to Kansas b u t h e fails t o identifY w h i c h specific repair items h e discussed w i t h D a n i s h Marine. Smith testified t h a t all o f t h e w o r k h e p e r f o r m e d o n t h e Y a c h t w a s p r e v i o u s l y a u t h o r i z e d b y V a r n a l e i t h e r o r a l l y o r i n w r i t i n g . ( S m i t h Dep. 8 5 : 1 1 - 1 4 . ) A d d i t i o n a l l y , c o n t r a d i c t i o n s i n V a r n a l ' s o w n t e s t i m o n y a d d to t h e c o n f u s i o n s u r r o u n d i n g t h e a g r e e d - u p o n scope o f D a n i s h M a r i n e ' s work. F o r example, Varnal c o m p l a i n s o n numerous

o c c a s i o n s t h a t D a n i s h M a t i n e i m p r o p e r l y c h a r g e d for t h e p a i n t i n g o f the h u l l p r i o r t o t h e c o m p l e t i o n

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of the work (even though the record makes it clear that Danish Marine did n o t expect to be paid for the w o r k until it was completed), b u t then recently indicates that he had no objection to the painting the hull. Similarly, Varnal asserts that he did n o t authorize soundproofing when soundproofing was listed o n the Work Order. The summmy chart prepared by V a r n a l ' s counsel also contradicts V a r n a l ' s t e s t i m o n y . F o r e x a m p l e , i n h i s d e p o s i t i o n V a r n a l a d m i t s to a u t h o r i z i n g t h e i n s t a l l a t i o n o f a port chain place backstay, a B C IAC switch and a shaft zinc, the doubling up o f the SS hose clamps, t h e c l e a r i n g o f o l d wires, a n d t h e r e r o u t i n g o f n e w b a t t e l y c a b l e s . T h e s u m m m y c h m t i n d i c a t e s t h a t Varnal did n o t authorize these repairs b u t merely asked for a written estimate o f the cost to a c c o m p l i s h t h e s e items. W h i l e t h e p a r t i e s a g r e e t h a t a s h i p r e p a i r c o n t r a c t e x i s t s , i t is u n c l e a r w h a t o b l i g a t i o n s D a n i s h Marine had under the terms o f t h a t contract. Accordingly, based o n the evidence currently before the court, the cOUlt is unable to determine whether Danish Marine completed the w o r k it was authorized to perform or charged for work that it was not authorized to perform. The COUlt finds that a genuine issue o f material facts exists with regard to the terms o f the contract and whether that contract was breached. Varnal' s motion for summmy judgment o n his breach o f contract claim is denied. C. Fourth Claim for R e l i e f - Oregon Unlawful Trade Practices Act In SUppOlt o f his claim under O r e g o n ' s Unlawful Trade Practices Act (the "Act"), Varnal alleges that: Between Februmy 5, and April 1 4 , 2 0 0 8 , Defendant Danish Marine entered into a c o u r s e o f d e a l i n g w i t h t h e P l a i n t i f f d u r i n g w h i c h i t r e p r e s e n t e d , t h r o u g h its o f f i c e r s and agents, that: (a) The work scheduled for completion b y Danish Marine would render the P a g e - 2 0 - OPINION A N D O R D E R {SIB}

vessel seaworthy and reasonably fit for its intended use. (b) That the work completed was properly performed so as to constitute a workmanlike repair to the conditions needing attention aboard the vessel. (c) That the work invoiced was competently performed and completed. (d) That the amounts invoiced were fairly priced for cost at a reasonable value for labor and materials which was i n accordance w i t h prevailing sums due i n the Portland, Oregon area for similar work performed. (Compl. ~27.) Varnal fUliher alleges that on April 22, 2008, after Danish Marine advised h i m that it was suspending work o n the Yacht, he learned that: (a) The work agreed to was n o t performed, in pati; (b) The work paid for was n o t performed, in part; (c) The work invoiced, and for which a deposit was requested, was not performed nor scheduled to be performed. (d) The amounts invoiced were inflated and contained components for which no goods nor services had been provided. The cOUli questions whether Varnal is able t o state a claim for violation o f the Act i n light o f decisions b y federal cOUlis that specific state consumer protection acts conflict w i t h maritime law and are, therefore, n o t applicable to admiralty actions. DeRossi v. N a t ' ! L o s s Mgmt, 328 F.Supp.2d 283 (D. Conn. 2004)("[B]ecause the damages provision o f CUTPA [Connecticut Unfair Trade Practices Act] regarding attorney's fees and punitive damages are not consistent with the standards established in admiralty law, the CUTPA claim is preempted. "), Geftman v. B o a t Owners A s s 'n o f
United States, No. C/A2:02-1461-18, 2003 WL 23333312 (D. S.C. Dec. 2, 2003)(Treble damages

and attorney fees provisions o f the South Carolina Unfair Trade Practices Act were inconsistent with federal admiralty law and, therefore, preempted.) In any event, it is evident that genuine issues o f

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material fact exist w i t h regard to this claim. V a r n a l ' s trade practices claim is based, in large patl, o n his allegations that Danish M a r i n e ' s services w e r e n o t completed o r n o t performed i n a w o r k m a n l i k e m a n n e r a n d t h a t the a m o u n t s charged for the services were inflated. The opinion o f M a z o n set forth i n the Second Survey that the general scope o f Danish M a r i n e ' s work " w a s completed, it was completed i n a workmanlike manner, and the overall invoice amount is judged to be fair and reasonable" raises, a t the velY least, a genuine issue o f material fact with regard to these allegations. Varnal is not entitled to summaty j u d g m e n t on his claim for r e l i e f under the Act. D. Sixth Claim for R e l i e f - Negligence in Storage I n h i s s e c o n d S u p p l e m e n t a l C o m p l a i n t , V a r n a l a l l e g e s t h a t D a n i s h M a r i n e f a i l e d to p r o t e c t the Yacht from water damage while i n its custody and failed t o clean or prepare the Yacht for transpoll once Varnal posted the cash deposit with the court i n early November, 2008. Once again, the COUll is n o t convinced that this claim can survive federal maritime law preemption. Contracts for the repair and storage o f a boat have been held to be maritime contracts subject to federal admiralty jurisdiction. Fletcher v. P o r t Marine Center, Inc., Civ. A. No. 8 9 0 l 9 7 4 - N , 1990 W L 25536 at *2 (D. Mass. Aug. 7, 1990)(,,[Clontracts for the storage o fvessels falls within the admiralty jurisdiction o f this court" and "general maritime law, not Massachusetts law, supplies the rule o f decision."), Am. E. Del'. CO/po v. Everglades Marina, Inc., 608 F.3d 123 (5th Cir. 1979) (action to recover damages to pleasure boats stored while owners were not using them arose i n admiralty),
Medema v. G a m b a ' s Marina Corp., 97 F.R.D. 14, 15-16 (D. Ill. 1982)("Admiralty jurisdiction exists

w h e r e t h e c o n t r a c t p r o v i d e s f o r s t o r a g e a n d r e p a i r o r o t h e r s e r v i c e . " ) (e m p h a s i s i n o r i g i n a l ) ; S c h u s t e r
v. Baltimore B o a t Sales, Inc., 471 F.Supp. 321, D. M d (1979)(court had admiralty jurisdiction over {SIB}

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contract action for damage to a sailboat stored for the winter). However, even i f the negligence claim snrvives, Varnal has failed to establish that he is entitled to summaty j u d g m e n t o n this claim. Varnal asserts that Danish M a r i n e ' s lack o f care resulted in water damage to the wood laminate floor o f the Yacht. Miller represents that the wooden floor o f the cabin was discolored and d a m a g e d w h e n h e first i n s p e c t e d t h e Y a c h t i n J a n u a t y 2 0 0 8 . T h i s c r e a t e s a g e n u i n e d i s p u t e w i t h regard to when the damage occurred and who is responsible for it. Varnal also argues that Danish Marine failed to clean or prepare the Yacht for transport before it relinquished custody o f the Yacht to Varnal's agent. Varnal has failed to establish that Danish Marine had an obligation or duty, contractual or otherwise, to clean and prepare the Yacht for transit. Varnal's motion for summary judgment on his negligence in storage claim is denied. II. Danish M a r i n e ' s Motion for Partial Summaty Judgment Danish Marine seeks summaty j u d g m e n t o n Varnal' s claim for intentional interference, which is included i n the first supplement complaint filed January 16, 2009, based on Danish M a r i n e ' s alleged failure to cooperate with the transportation o f the Yacht to another repair facility. Specifically, Varnal alleges that o n December 8, 2008, it confirmed that Schooner Creek would take custody o f the Yacht fi'om Danish Marine for transport to another facility, and that Schooner Creek cancelled the transport the next day after a conversation with Danish Marine. Danish Marine then demanded that Varnal pay the sum o f $500 to remove and secure the mast, and the sum o f $180 to load the Yacht, and advised Varnal that he must deposit the sum o f $ 2 , 0 0 0 before Danish Marine would make the Yacht ready for transport. With the exception o f the emails exchanged on December 11, and December 12, 2008, between counsel for Varnal and Danish Marine offered by Danish Marine, which address only Page -23- OPINION AND ORDER
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Danish M a r i n e ' s offer, and then withdrawal o f the offer, to prepare the Yacht for transpol1, there is no evidence in the record relevant to V a r n a l ' s intentional interference with contract claim. The e v i d e n c e e s t a b l i s h e s o n l y t h a t D a n i s h M a r i n e o f f e r e d to f a c i l i t a t e t h e t r a n s p o r t o f t h e Y a c h t a n d to make it available to Varnal and his agents at any time, subject to reasonable notice. While the allegations o f the complaint assert that Danish Marine interfered w i t h V a r n a l ' s attempt to transp011 the Yacht o n December 9, 2008, Varnal may not rely o n these allegations in opposition to Danish M a r i n e ' s m o t i o n f o r s u m m a t y j u d g m e n t o n t h i s claim. T h e F e d e r a l R u l e s o f C i v i l P r o c e d u r e m a k e it clear that: [w]hen a motion for summary judgment is properly made and supp011ed, a n opposing p a t t y m a y n o t r e l y m e r e l y o n a l l e g a t i o n s o r d e n i a l s i n its o w n p l e a d i n g ; r a t h e r its response must - by affidavits or as otherwise provided i n this rule - set out specific facts showing a genuine issue for trial. I f the opposing party does not respond, summary j u d g m e n t should, i f appropriate, be entered against that party. FED. R. ClV. P. 56(e)(2). Danish Marine is entitled to summaty j u d g m e n t on V a r n a l ' s claim for i n t e n t i o n a l i n t e r f e r e n c e w i t h contract.

Conclusion
V arnal' s motion for partial summary judgment o n his First, Second, F0U11h and Sixth Claims for R e l i e f is DENIED. Danish M a r i n e ' s motion for summaty judgment on Varnal' s Fifth Claim for R e l i e f is G R A N T E D . DATED this 11 th day o f January, 2010.

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