Cote Corporation v. Thoms Transport

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]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