Fat Boy, LLC v. KCS International, Incorporated, No. 11-1352 (4th Cir. 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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1352 FAT BOY, LLC, Plaintiff - Appellant, v. KCS INTERNATIONAL, INCORPORATED, d/b/a Cruisers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 Affirmed by unpublished per curiam opinion. 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 Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Fat Boy, LLC ( Fat Boy ) brought an action against KCS International, rescission, Inc. breach ( KCS ) of for express warranties,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 3 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. 4 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 Carolina which Statute does Frauds] not but of Frauds, satisfy which is the valid which 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. 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 7

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