Kirkaldy vs Kachina Powerboats judgement> we won
10-17-2007, 12:54 PM
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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
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2006-002445 10/15/2007
Docket Code 019 Form V000A Page 1
CLERK OF THE COURT
HONORABLE CHRISTOPHER WHITTEN T. Soto
Deputy
KENNETH W KIRKALDY K ALAN HOLCOMB
v.
KACHINA BOATS INC MICHAEL V MOORE
MINUTE ENTRY
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.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
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.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
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
claim.
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.
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
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2006-002445 10/15/2007
Docket Code 019 Form V000A Page 1
CLERK OF THE COURT
HONORABLE CHRISTOPHER WHITTEN T. Soto
Deputy
KENNETH W KIRKALDY K ALAN HOLCOMB
v.
KACHINA BOATS INC MICHAEL V MOORE
MINUTE ENTRY
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.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
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.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
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
claim.
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.
Platinum Member
10-17-2007, 01:12 PM
#4
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VIP Member
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!!
Congrats on the victory and I'm sure that this will cause quite a few people to not buy a Kachina!!
__________________
Happily retired and living in Heavens waiting room.
Happily retired and living in Heavens waiting room.
Last edited by OldSchool; 10-17-2007 at 01:17 PM.
10-17-2007, 01:16 PM
#5
Charter Member
Charter Member
Ken,
congrats, I know it's not alot of money, but sometimes it's the principle of the matter that counts.
Dean
congrats, I know it's not alot of money, but sometimes it's the principle of the matter that counts.
Dean
__________________
Everything is for sale @ a certain $$
Everything is for sale @ a certain $$
10-17-2007, 06:32 PM
#9
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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.
