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  1. #1
    Registered Anarchy Powerboats's Avatar
    My Boats:
    Join Date
    Jun 2004
    Phoenix, Havasu, Newport

    Kirkaldy vs Kachina Powerboats judgement> we won

    It takes alot out of you to litigate with someone, it's not just the time or the money but the other costs like having to explain to everyone what is going on a million times or having to keep quiet when you just want to tell everyone what is really happening and for that I am glad this is over.
    The short story is we won, not on all fronts but on the ones that mattered to us. We won the judgement but that isn't what I want the boating community to see as much as the testimony from the trial that we have to wait on to be transcribed, I wont even try to spin it, I want you guys to read it in it's raw form and make your own determinations. I'm trying to save other boaters from going through what I had to, missing a whole summer of boating waiting for my boat to be finished 73 days after the promised date and when I did get it, it wasnt done in an acceptable manner.
    We were awarded a settlement amount, it doesn't touch what my costs were on the case much less any repairs on the boat but I think I will just leave the defects as is for a few years and tell the story to all those who want to know about it.
    I am no longer under any gag order from my attorney so I will answer any questions you may have, I am also posting the judgement and underscoring important language in it. As soon as the transcript of the entire trial is done I will post it as well.

    Michael K. Jeanes, Clerk of Court
    *** Electronically Filed ***
    10/17/2007 8:00 AM
    CV 2006-002445 10/15/2007
    Docket Code 019 Form V000A Page 1
    After a Trial to the Bench on October 3, 2007 and October 4, 2007, the Court took this
    matter under advisement and asked for further briefing on one issue, and promised a quick
    decision and order. This is that order.
    The Plaintiff sued Defendant for breach of contract, consumer fraud, common law fraud,
    and misrepresentation all involving the Defendant’s building of a 34 foot custom boat for
    Plaintiff. Defendant filed a counterclaim for breach of contract, breach of the covenant of good
    faith and fair dealing and unjust enrichment all related to an agreement for Plaintiff to provide
    lighting services for Defendant at boat shows.
    At Trial, both Plaintiff’s and Defendant’s experts agreed that there were several defects to
    the gelcoat surface of the boat. They differ only on some of the specific problems and the manner
    best employed to fix the defects. Defendant’s expert believes the problems could be fixed for
    $1,200.00. The Plaintiff testified he received a quote to repair the gelcoat for $20,000.00.
    Plaintiff’s experts thought the costs of repair would be $40,000.00.
    It is clear that Plaintiff and Defendant contracted for a boat free of defects. That is not
    what Plaintiff got. The Defendant therefore is liable to Plaintiff for the amount of money it
    would cost to make the boat defect free.
    CV 2006-002445 10/15/2007
    Docket Code 019 Form V000A Page 2
    It is Plaintiff’s burden to prove damages resulting from a breach of his contract with the
    Defendant. Frankly, on this point, the evidence varies dramatically and without apparent good
    reason. The damages the Court will award Plaintiff for repairs to the defects in gelcoating are
    $8,000.00. The Court arrives at this number based on the testimony of Defendant’s expert of the
    cost to re-coat a similar boat.
    Plaintiff’s claim for damages includes a claim for loss of use but he offered no testimony
    about the amount of these damages. Thus, this claim fails.
    The Court finds for the Defendant on Plaintiff’s claims for consumer fraud, common law
    fraud and misrepresentation.
    Next, as to Defendant’s counterclaim for breach of contract and breach of the covenant of
    good faith and fair dealing, the Court finds in favor of Plaintiff. Defendant claims Plaintiff
    breached an agreement (Exhibit 10) that required him to provide “work” in exchange for a
    $25,000.00 discount to the purchase price of the boat. The agreement provides that “‘work’
    includes customer assisting, maintaining, and covering expenses (within reason) for 10 (ten) boat
    shows throughout the course of the next two years following the completion of the customer’s
    boat. Boat shows may be substituted for any other trade show as seen necessary by builder.”
    It is undisputed that the boat was delivered in August 2005. Before September 2007, it is
    undisputed that Defendant had asked Plaintiff to do less than ten boat shows. Plaintiff testified
    that he remained willing to perform under the agreement, and in fact, offered in writing to do so
    (see Exhibit 12). Also undisputed was Plaintiff’s testimony that he was willing to send someone
    other than himself to complete the lighting work to be done after he filed the current action.
    Defendant argues that Plaintiff’s actions, in posting negative opinions about it on the
    internet, constituted a breach or that he “terminated his right to perform further lighting services”
    by his conduct. While it may be understandable that Defendant wanted nothing more to do with
    Plaintiff and did not want his services after he had sued it and posted many negative things about
    it on the internet, in the face of his express willingness to perform, an argument of repudiation
    implied by conduct must fail.
    Finally, as to Defendant’s counterclaim for unjust enrichment, Plaintiff admits he
    performed work that he described as having a value of $22,000.00 in exchange for a $25,000.00
    discount on the price of the boat. Unjust enrichment, an equitable claim, requires proof that
    Plaintiff was unjustly enriched at the expense of Defendant, Defendant provided services that
    benefited Plaintiff (the building of the boat at a discount), and that it would be inequitable to
    allow Plaintiff to retain the benefit without paying for it. Blue Ridge Sewer Improvement Dist.
    CV 2006-002445 10/15/2007
    Docket Code 019 Form V000A Page 3
    v. Lowry and Assoc. Inc., 149 Ariz. 373, 375, 718, P.2d 1026, 1028 (App. 1986). Defendant has
    met its burden on each of these elements and is awarded $3,000.00 on its unjust enrichment
    Based upon the above findings of fact, the Court finds in favor of Plaintiff on his breach
    of contract claim and awards $8,000.00 in damages and finds for Defendant on the remainder of
    Plaintiff’s claims. The Court also finds in favor of Plaintiff on Defendant’s counterclaims for
    breach of contract and breach of the covenant of good faith and fair dealings, but finds for
    Defendant on its counterclaim for unjust enrichment in the amount of $3,000.00. The net result
    is an award in an amount of $5,000.00 to Plaintiff.
    Both counsel are discouraged from applying for attorneys fees absent evidence that their
    client offered to resolve this case for an amount of money more favorable to the other side than
    results by today’s decision.
    Attached Files Attached Files

  2. #2
    Registered Jigsaw89's Avatar
    Join Date
    Apr 2004
    New Jersey

    Thumbs up

    CONGRATS on your bitter-sweet victory!! The award isn't a lot of money, but you stuck it out and proved your point!

    I for one will never buy a Kachina...


  3. #3
    Platinum Member Platinum Member CigDaze's Avatar
    My Boats:
    Cigarette 35 Cafe Racer
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    Jun 2001
    St. Petersburg, FL
    Congratulations! Bet you're super glad to get that behind you!

  4. #4
    VIP Member VIP Member OldSchool's Avatar
    My Boats:
    Cigarette CC and Boston Whaler currently
    Join Date
    Dec 2001
    Wow. After all of the time, money and heartache that this caused you, wouldn't it just have been easier to beat the guy to a pulp????

    Congrats on the victory and I'm sure that this will cause quite a few people to not buy a Kachina!!
    Last edited by OldSchool; 10-17-2007 at 01:17 PM.
    I can't talk about it right now, it's being handled by the Postal Inspector. Those guys don't mess around!

  5. #5
    Charter Member Charter Member Dean Ferry's Avatar
    My Boats:
    2006 Hustler 388, 2004 Hustler Talon 25, 1999 30 Spectre cat and 2007 21' hydrostream voyager w/ Merc. 225 EFI
    Join Date
    Nov 2000
    Merritt Is. Fl. USA
    congrats, I know it's not alot of money, but sometimes it's the principle of the matter that counts.
    Everything is for sale @ a certain $$

  6. #6
    Registered User
    My Boats:
    just a baja and a 12' Jon Boat with Twins
    Join Date
    Feb 2005
    St. louis, East Sider
    At least you won. I am sure the money wasn't the biggest issue anyway. Congrats!

  7. #7
    Registered Playn's Avatar
    Join Date
    Jan 2001
    Congrats Ken

  8. #8
    Gold Member Gold Member damdonzi's Avatar
    My Boats:
    Intrepid ~ Boston Whaler ~ Kayaks ~ Windsurfers ~ Assorted Tub Toys
    Join Date
    Jul 2003
    Kittery Point Maine
    Congrats. Wasn't there another lawsuit against them that was won by another OSO member as well?

  9. #9
    Registered Anarchy Powerboats's Avatar
    My Boats:
    Join Date
    Jun 2004
    Phoenix, Havasu, Newport
    Quote Originally Posted by damdonzi View Post
    Congrats. Wasn't there another lawsuit against them that was won by another OSO member as well?
    Im not sure, Im just glad i stuck to my guns and saw this through. This is by no means the big news of this case, the damning evidence will be the testimony and how easily the lies will be unraveled. It should be only a few weeks and ill have that to post as well.

  10. #10
    Join Date
    Sep 2006
    So Ken, if you are such a martyr in this lawsuit, would you mind at all if the evidence portion of the testimony gets posted as well?

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