Cote Corporation v. Thoms Transport

Opinion

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 00-1424

COTE CORPORATION,

Plaintiff, Appellee,

v.

THOMS TRANSPORT COMPANY, INC.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Margaret J. Kravchuk, U.S. Magistrate Judge]

Before

Torruella, Chief Judge, Selya and Boudin, Circuit Judges.

William C. Nugent on brief for appellant. Peter M. Garcia and Skelton, Taintor & Abbott on brief for appellee.

August 29, 2000 Per Curiam. After a thorough review of the record

and of the parties’ submissions, we affirm. The lower court

found that the fair market value of the destroyed property

was $165,000, and given that the uncontroverted evidence

showed that was the cost of replacing the property, we see

no error in the court’s conclusion. See Ferrell v. Cox, 617

A.2d 1003, 1007 (Me. 1992) (uncontroverted evidence

presented by owner as to fair market value of property

supported award of damages). To the extent appellant argues

the evidence only demonstrated the retail fair market value

of the property, not the wholesale value, the argument is

forfeited since it was first raised in the reply brief. See

Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 299 (1st

Cir. 2000). Furthermore, the argument is meritless, since

the uncontroverted testimony established that as a

wholesaler, appellee would have had to pay $165,000 in order

to replace the property. Finally, we see no error in the

court’s calculation of appellee’s post-accident damages,

especially since the court explicitly reduced the amounts in

question by appellee’s profit margin. See Titcomb v. Saco

Mobile Home Sales, Inc., 544 A.2d 754, 758 (Me. 1988)

(property owner not required to prove damages to a

“mathematical certainty”). Affirmed. 1st Cir. Loc. R. 27(c).

-3-