               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                           No. 97-40111




WILLIAM DUNCAN; BRIAN D SUTCLIFFE
                                           Plaintiffs-Appellees

                              versus

HOUSE OF BOATS INCORPORATED
                                           Defendant-Appellant.




          Appeal from the United States District Court
               For the Southern District of Texas
                          (C-95-CV-481)


                          April 16, 1998

Before WISDOM, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

     This is an appeal from a bench trial of claims for damages to

a fishing vessel suffered when it was hauled for repairs.         We

AFFIRM in part and REVERSE in part.

     William Duncan, the co-owner, delivered Empty Pockets, his

charter fishing vessel, to the House of Boats boatyard to locate

and repair a leak.    He signed work authorization forms for the

wooden hull, forty-eight foot vessel and left.         The following

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
morning the under structure of Empty Pockets collapsed as the keel

took its weight in the blocking process.

      Duncan later sued asserting claims of fraud, negligence and

breach of contract.       The fraud claim rests on Duncan’s assertion

that the owner of the boatyard promised that he would take care of

the problem if Duncan would not file a claim with the insurer of

the House of Boats and that defendant did not intend to honor the

promise when it was made.      Duncan also asserted that the defendant

had   breached     its   written   work   authorization   agreement,    was

negligent in handling the vessel thus damaging the boat, and was

negligent in securing it in storage, allowing it to be stripped of

valuable equipment.

      The district court found fraud, negligence and breach of

contract and awarded Duncan $37,000 in actual damages for the loss

of the vessel, $13,000 for equipment stripped from the boat,

$36,000 in punitive damages and $14,800 in attorneys’ fees.             The

judgment and the confusing assertion of multiple theories of

recovery offer an array of difficult legal issues, including the

interplay of tort and contract, and the applicability of the

statute of frauds for a purchase of goods inhering in the claimed

representations following the damage to the boat in the blocking

operation.   We need not enter this swamp, given our view of the

case.

      Whether Empty Pockets was old, in failing health and met its

natural   demise    or   was   healthy,   but   mishandled,   was   sharply

                                      2
disputed.     We are persuaded that there is sufficient evidence to

support the findings of ordinary negligence or a breach of the

written work order, but no more, and the actual damages and

attorneys’ fees awarded are properly sustained on these findings of

negligence.

     The record will not, however, support an award of punitive

damages on the facts of this case.    There is no relevant evidence

of reckless or wanton behavior or that any promise was deceitful or

a cause of the damage.

     The award of punitive damages is reversed, and the judgment is

affirmed in all other respects.

     AFFIRMED in part and REVERSED in part.




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