721 P.2d 1208 (Colo.App. 1986), 84CA0242, Mari v. Wagner Equipment Co., Inc.

Docket Nº84CA0242.
Citation721 P.2d 1208
Opinion JudgePIERCE, Judge.
Party NameJoseph A. MARI, Plaintiff-Appellant and Cross-Appellee, v. WAGNER EQUIPMENT COMPANY, INC. a Colorado corporation, Defendant-Appellee and Cross-Appellant.
AttorneyJack Kintzele, Paula Tyo Englander, Denver, for plaintiff-appellant and cross-appellee., Joseph H. Miller, Jr., Sterling, for defendant-appellee and cross-appellant. Jack Kintzele, Paula Tyo Englander, Denver, for plaintiff-appellant and cross-appellee.
Judge PanelBERMAN and TURSI, JJ., concur.
Case DateMarch 06, 1986
CourtCourt of Appeals of Colorado, First Division

Page 1208

721 P.2d 1208 (Colo.App. 1986)

Joseph A. MARI, Plaintiff-Appellant and Cross-Appellee,

v.

WAGNER EQUIPMENT COMPANY, INC. a Colorado corporation, Defendant-Appellee and Cross-Appellant.

No. 84CA0242.

Court of Appeals of Colorado, First Division

March 6, 1986

Rehearing Denied (Wagner) April 10, 1986. Rehearing Denied (Mari) April 17, 1986. Certiorari Denied July 7, 1986.

Page 1209

Jack Kintzele, Paula Tyo Englander, Denver, for plaintiff-appellant and cross-appellee.

Joseph H. Miller, Jr., Sterling, for defendant-appellee and cross-appellant.

PIERCE, Judge.

In this action for conversion, exemplary damages, and outrageous conduct, the plaintiff, Joseph A. Mari, appeals from the trial court's entry of judgment notwithstanding the verdict setting aside the jury's award of exemplary damages on his claim for conversion, and from the trial court's dismissal of his claim for outrageous conduct. The defendant, Wagner Equipment Company, Inc., cross-appeals, arguing that the trial court erred in failing to dismiss plaintiff's claim for conversion and in improperly instructing the jury as to conversion. We affirm in part, reverse in part, and remand for reinstatement of the jury's verdict as to exemplary damages.

The evidence shows that plaintiff is the owner of a construction business in Sterling, Colorado. In 1980, he was developing an industrial park near Sterling, and in that process he used a piece of heavy equipment known as a scraper to move earth. Defendant is a heavy equipment dealer and has a repair shop in Sterling.

In August 1980, the transmission in plaintiff's old scraper (Scraper # 1) went out, and defendant's repair shop in Sterling advised plaintiff that he needed to get a rebuilt transmission. Defendant quoted plaintiff a price of $8,800 for this repair, and the defective transmission was taken out and exchanged for a rebuilt transmission, which was then installed in the scraper.

About a month later, plaintiff received a bill for $25,833.22 from defendant for the transmission repair. Plaintiff was displeased upon receiving this bill and went to defendant's office in Denver to inquire as to the reasonableness of the bill. Defendant's sales manager in Denver offered to reduce the transmission repair bill back to $8,800 if plaintiff would buy a new scraper.

On October 17, 1980, plaintiff entered into a sales contract with defendant for the purchase of a new scraper for $251,935,

Page 1210

F.O.B. Sterling, less an amount for the trade-in of Scraper # 1. On Friday, October 24, 1980, defendant delivered a new scraper (Scraper # 2) to plaintiff's jobsite near Sterling and picked up the trade-in Scraper # 1.

On Monday, October 27, 1980, while plaintiff was out of town for the day, plaintiff's wife received a phone call from defendant's Denver office, advising her that defendant had delivered the wrong scraper and that defendant would be coming to Sterling that day to pick up Scraper # 2 and to replace it with another scraper. Later that day defendant delivered another scraper (Scraper # 3) to plaintiff's jobsite near Sterling and picked up Scraper # 2. Plaintiff's wife was unable to contact plaintiff about...

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8 practice notes
  • 134 P.3d 570 (Colo.App. Div. 5 2006), 04CA1458, Western Fire Truck, Inc. v. Emergency One, Inc.
    • United States
    • Colorado Court of Appeals of Colorado Fifth Division
    • 23 Marzo 2006
    ...verdict only if the evidence is such that reasonable persons could not reach the same conclusion as the jury. Mari v. Wagner Equip. Co., 721 P.2d 1208 (Colo.App.1986). In applying this standard, we must consider the evidence in the light most favorable to the verdict. Wesley v. United Servs......
  • 874 P.2d 1058 (Colo. 1994), 93SC172, Maryland Cas. Co. v. Messina
    • United States
    • Colorado Supreme Court of Colorado
    • 16 Mayo 1994
    ...belonging to another." Byron v. York Inv. Co., 133 Colo. 418, 424, 296 P.2d 742, 745 (1956); see also Mari v. Wagner Equip. Co., 721 P.2d 1208 (Colo.App.1986); Glenn Arms Assocs. v. Century Mortgage & Inv. Corp., 680 P.2d 1315 (Colo.App.1984). In People v. Wechsler, 854 P.2d 217 (C......
  • 97 P.3d 174 (Colo.App. 2003), 02CA0046, Carder, Inc. v. Cash
    • United States
    • Colorado Court of Appeals of Colorado Third Division
    • 20 Noviembre 2003
    ...unauthorized act of dominion or ownership exercised by one person over personal property belonging to another. Mari v. Wagner Equip. Co., 721 P.2d 1208 (Colo.App.1986). A party suffering only economic loss from the breach of an express or implied contractual duty may not assert a tort claim......
  • 137 B.R. 495 (Bkrtcy.D.Colo. 1991), 90-15055, In re Tague
    • United States
    • Federal Cases United States Bankruptcy Courts Tenth Circuit
    • 26 Septiembre 1991
    ...statute if the taking of property constitutes wanton and reckless disregard of the injured party's rights. See Mari v. Wagner Equip. Co., 721 P.2d 1208 [9] Given the dismissal of plaintiff's Section 523(a)(2) and (a)(4) claims on other grounds, the parties' preclusion arguments remain perti......
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8 cases
  • 134 P.3d 570 (Colo.App. Div. 5 2006), 04CA1458, Western Fire Truck, Inc. v. Emergency One, Inc.
    • United States
    • Colorado Court of Appeals of Colorado Fifth Division
    • 23 Marzo 2006
    ...verdict only if the evidence is such that reasonable persons could not reach the same conclusion as the jury. Mari v. Wagner Equip. Co., 721 P.2d 1208 (Colo.App.1986). In applying this standard, we must consider the evidence in the light most favorable to the verdict. Wesley v. United Servs......
  • 874 P.2d 1058 (Colo. 1994), 93SC172, Maryland Cas. Co. v. Messina
    • United States
    • Colorado Supreme Court of Colorado
    • 16 Mayo 1994
    ...belonging to another." Byron v. York Inv. Co., 133 Colo. 418, 424, 296 P.2d 742, 745 (1956); see also Mari v. Wagner Equip. Co., 721 P.2d 1208 (Colo.App.1986); Glenn Arms Assocs. v. Century Mortgage & Inv. Corp., 680 P.2d 1315 (Colo.App.1984). In People v. Wechsler, 854 P.2d 217 (C......
  • 97 P.3d 174 (Colo.App. 2003), 02CA0046, Carder, Inc. v. Cash
    • United States
    • Colorado Court of Appeals of Colorado Third Division
    • 20 Noviembre 2003
    ...unauthorized act of dominion or ownership exercised by one person over personal property belonging to another. Mari v. Wagner Equip. Co., 721 P.2d 1208 (Colo.App.1986). A party suffering only economic loss from the breach of an express or implied contractual duty may not assert a tort claim......
  • 137 B.R. 495 (Bkrtcy.D.Colo. 1991), 90-15055, In re Tague
    • United States
    • Federal Cases United States Bankruptcy Courts Tenth Circuit
    • 26 Septiembre 1991
    ...statute if the taking of property constitutes wanton and reckless disregard of the injured party's rights. See Mari v. Wagner Equip. Co., 721 P.2d 1208 [9] Given the dismissal of plaintiff's Section 523(a)(2) and (a)(4) claims on other grounds, the parties' preclusion arguments remain perti......
  • Request a trial to view additional results