### *The H on. Charles B. Kornmann, United States District Judg e

for the District of South Dakota, sitting by designation. _____________ No. 95-4078WM

_____________
James D. Forster and Joann * Forster, * * Appellees, * * On Appeal from the United v. * States District Court for * the Western District of * Missouri. Patrick W. Boss and Janet L. * Boss, * * Appellants. *

___________ Submitted: June 14, 1996 Filed: October 11, 1996

___________ Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN, Circuit Judge, an d KORNMANN, District Judge.

*

___________ RICHARD S. ARNOLD, Chief Judge.

This case arises out of the sale of property fronting on the Lake of the Ozark s in Missouri. The plaintiffs are the buyers of the property , Jame s D. Forster and Joann Forster. The defendants are the sellers , Patrick W. Boss and J anet L. Boss. The District Court awarded plaintiffs bothdamages, for fraud and breach of contract, and injunctive relief

. Defendants appeal, arguing that plaintiffs are receiving what amounts to a double recovery: an

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injunction that makes them whole plus damages to compensate them for the loss of the very rights that the injunction has guaranteed. We agree with this contention in pa rt, and accordingly affirm in part, reverse in part, and remand for further proceedings.

When defe ndants, the Bosses, agreed to sell the property to th e Forsters, they represented that the Forsters could obtain a permit for a boat dock in front of their newly acquired property. In fact, unknown to the Forsters, the sellers had a boat-dock permit of their own that made it impossible for the Forsters to obtain the permit they had been promised. The defendants do not contest the finding made b elow that they were guilty of frau d in this respect. And, in fact, when the plaintiffs applied t o Union Electric Company (which created the lake and has the right to grant permits) for a permit, their application was den ied on the ground that the sellers, the defendan ts, already had a conflicting permit. To compensate the plaintiffs for this fraud, the jury awarded $12,250 in compensator y damages and $10,000 in punitive damages.
The other claim for damages on which the plaintiffs prevailed had to do with a swim dock. When the property was sold , defendants promised that the ywould remove their swim dock from in front of the transferre d property
. They did not keep this promise. The jury awarded $2,500 i n compensatory damages to the plaintiffs on account of this breach o f contract.

On appeal, defendants argue first that there was no sufficien t evidence to support the damages verdicts. We disagree. The verdict for $12,250 on the fraud claim finds ample support in the record. In fact, th e testimony was that the value of the property tra nsferred without the boatdock permit was $43,000 less than it would have been with the permit. The record would have supported a much greater award than was actually given by the jury. As to t he swim dock, the evidence is less specific, but the defendants' failure to remove their swim dock, s o plaintiffs could install
one

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of th eir own in front of the transferred property, was one of a list o f items in respect of which evidence tended to show that plaintiffs did not receive full value from the sale. The total amo unt of damages ascribed to the ent ire list was $40,000. No specific figure was given for the swi m dock, but it was of some substantial value, and we do not believe that the juryexceeded its brief in returning a verdict for the relatively smal l amount of $2,500. Certainly there was a breach of contract with respect to the swim dock. This much is now conceded. We do not think that th e inability to ascribe a more precise value to this item requires the verdic t to be set aside.

The maj or issue on appeal arises because damages were not the onl y relief secured by the plaintiffs. They also got a permanent injunctio n ordering defendants to remove the offending swim dock. In addition, and most important, they got their boat-dock permit from Union Electric. Unio n
was a party defendant in the District Court. It took no active part in th e trial, except to enter into a stipulation agreeing that if the Court shoul d hold plaintiffs entitled to a permit under their contract with defendants, Union would grant the permit to plaintiffs and revoke the permit previousl y granted to defendants. This in fact occurred, so plaintiffs now have thei r permit and defendants have lost theirs. No future permit may be granted to defendants that would interfere with plaintiffs' rights.

In this situation, defendants argue that the injunction has mad e plaintiffs whole. They have both their swim dock and their boat-doc k permit. Thus, the property transferred to them has exactly th e characteristics defendants agreed it would have: it has a boat-dock permi t attached to it, and it is not encumbered by defendants' swim dock. I f plain tiffs also receive, as damages, money to compensate them for th e difference in the value of the property as promised and the value of the property as transferred, they have received a do uble recovery. Plaintiffs have, in effect,

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rece ived not only damages for fraud and breach of contract, but als o specific performance. They have both the money and the property, and are in a better position than they would have been in had there been no fraud or breach of contract in the first place. We find this argument compelling. Plaintiffs point out that unde r Missouri law the meas ure of damages for fraud in connection with the sale of land is the difference between the value of the land on the date of sal e as represented, and t he value of the land on the date of sale as actually
conve yed. The sale took place in 1991. At that time, according to th e jur y, the land as represented was worth $12,250 more than the land a s convey ed. Nothing that happened thereafter, for example, an injunctio n guaranteeing plaintiffs their boat-dock permit, can change those facts

. We unders tand the argument but find it too simplistic. If the argumen t
were accepted, the entry of an injunction, or the obtaining of the boatdock permit in some o ther way, would be wholly irrelevant to the recovery of damages, even though one or the other of these events occurred on the day immediately following the sale. This does not make sense. It is true , of course, that the lapse of time was greater than one day here -- about three years, in fact. It is entirely possible that plaintiffs sustained some sort of damages because they had to wait fo r the complete fulfillment of the terms of the sale. The case, however, was not tried on that theory , and there is no evidence in this record on which damages of this interim kind could be calculated.

Plaintif fs argue that they sought redress for the violation of tw o separate legal rights : their right not to be defrauded and the "littoral rights" appurtenant to the purchased property. In the abstract, thi s proposition makes sense, but it breaks down when we consider it in th e practical context of this case. The very littoral rights that plaintiffs say are protected by the injunction -- the right to a boat-dock permit and the right to have defendants' swim dock moved -- are the same rights for the loss of

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which the award of damages is designed to compensate. We cannot escape th e proposi tion that the injunction has made plaintiffs whole in the ver y respect s for which they sought damages. To allow them to keep both th e compensatory damages and the injunction would be a double recovery.

Defendants cite Harris v. Union Electric Co. , 766 S.W.2d 80 (Mo .) (en banc), cert. denied , 492 U.S. 919 (1989), and th e citation is apt. There, plaintiffs had recove red damages on account of the inadequate description of ce rtain redemption rights in a prospectus for bonds issued by Unio n Electric. They subse quently sought an injunction in a separate action to preve nt Union Electric from redeeming the bonds. The Supreme Court o f Missouri held that such injunctive relief was im proper. The defect in the descr iption of plaintiffs' redemption rights had already been full y remedied by the recovery of damages. They had no right to the furthe r relie f of an injunction forbidding the redemption of the bonds. Unio n Electric had, so to speak, bought the right to redeem the bonds, despite the prospectus's inadequate description of the redemption rights, by payin g the damages awarded in the earlier action. Plai ntiffs seek to distinguish the case by emphasizing their point that the injunction in this case i s designed to protect their littoral rights, which, they insist, are entirel y separate from their right not to be defrauded. As we have alread y explained, we do not agree with this contention in the circumstances of th e present case. The damages award has already, in effect, paid plaintiffs in full for the deprivation of their littoral rights.

We conclu de that the case must be remanded for further proceedings. On remand, it will be up to plaintiffs to elect which remedy they want -- compens atorydamages or the injunction. We think, however, that the y should be allowed to retain the $10,000 award of punitive damages in eithe r event. Defendants' conduct in this case was abusive, and they do not argu e on appeal that the

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award of punitive dam ages was not based on sufficient evidence. Punitive damages ar e not designed to compensate anybody. They are designed t o punish misconduct and to deter future misconduct. The award of punitive damages , therefore, is not duplicative of the relief contained in th e injunction. It is al so clear that a court of equity may award injunctive rel ief and actual and punitive damages as an adjunct to its equit y jurisdiction. Martin v. Swenson , 335 F. Supp. 7 65 (W.D. Mo. 1971). If it is necessary under Missouri law for some compensatory damages to be awarde d in order to support any award of punitive damages, the District Court is instructed to award plaintiffs compensatory dama ges of one dollar on their fraud claim, plus the punitive damages of $10,000.

To the extent that it holds defendants liable, the judgment i s aff irmed. To the extent that it allows plaintiffs to receive bot h compensatorydamages and an injunction, the judgment is reversed. Th e cause is remanded for further proceedings consistent with this opinion.
KORNMANN, District Judge, concurring.

I concur. Most respectfully, I write separately only to express my opini on that plaintiffs elected a remedy. They sought and received a n injunction and the fruits of it, the boat dock p ermit. It would be unjust for plaintiffs to rec eive the dock permit, as they already have, keep it, and also recover damages for the claimed loss of the dock permit. M y
concern is that if plaintiffs are simply allowed to "give up" th e injunction, our decis ion may have little practical benefit for defendants who will already have lost the permit and will still owe the monetar y damages. It may be that the dock permit cannot be retrieved by defendants , despite the lifting of the injunction. In the alternative, I would have the District Court determine if plaintiffs have made the election, th e mandate being that pl aintiffs are not to be allowed to receive and retain the dock

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permit as well as the $12,250.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.