La Pesca Grande Charters v. Moran

La Pesca Grande Charters v. Moran

Opinion

 [*711]  GRIFFIN, C.J.

This is a consolidated appeal of orders dismissing a number of counts of a complaint with prejudice for failure to state a cause of action. We have jurisdiction to review the order to the extent that two parties, Michael Moran and Ron Bowling, have been eliminated from the lawsuit.

The action arises from the sale of a fifty-foot yacht called the "Taurus" for $ 250,000. The boat was purchased in June 1994 by La Pesca Grande Charters, Inc. ["LPG Charters"], a Texas corporation formed by Marie and Ron Groba ["the Grobas"] to operate the Taurus as a charter boat. The seller of the boat was Wild Dog, Inc. ["Wild [**2]  Dog"]. Ron Bowling ["Bowling"] is the president of Wild Dog, Inc. Michael H. Moran d/b/a Marine Surveying Associates ["Moran"] was hired by the Grobas, allegedly upon Bowling's recommendation, to conduct an inspection of the Taurus prior to the purchase. Apparently, as the boat was en route to Texas after the sale, it caught fire and was badly damaged.

The suit below was brought by LPG Charters in May 1995. The named defendants in the third amended complaint ["the complaint"] were Wild Dog, Bowling and Moran. The complaint contained a total of six counts -- two against each defendant. We find no error in the dismissal of the claims against Moran or the dismissal of the contract claim against Bowling. The question that has detained us is whether the lower court erred in dismissing the fraud claim against Bowling.

Count VI of the third amended complaint was styled as an action for fraud against Bowling. The representations allegedly made by Bowling included the following:  [*712]  (a) that the engines had been recently rebuilt and had only 400 hours on them; (b) that the boat contained new turbos; (c) that the hull was in sound, seaworthy condition; and (4) that the fire extinguisher [**3]  system was in sound working order. The complaint alleges that the representations were made by Bowling to induce LPG Charters to purchase the boat and that, as a proximate result of these representations, LPG Charters suffered damages. The damages that were sought in this count were the same damages sought in the count for breach of contract: those sums needed to "repair fire damage" and make "structural, mechanical and other repairs." The trial court dismissed the count based on the following analysis:

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