Opinion
Rehearing Denied Feb. 25, 1975.
Harry H. Haddock, Denver, for plaintiff-appellant.
Seavy & Jensen, Alan N. Jensen, Pueblo, for defendants-appellees.
SILVERSTEIN, Chief Judge.
On November 1, 1971, Modbilt Homes, Inc., (Modbilt) agreed to purchase three modular homes from Sure-Built, Inc., (Sure-Built) for $33,428.20. Along with its order, Modbilt paid a 50 percent down payment of $16,714.10. The contract provided that Modbilt would pick up the homes in Walsenburg, Colorado, on February 1, 1972, and pay the remaining balance upon delivery. On February 1, 1972, the three units had not been completed. Thereafter, a dispute arose between the parties concerning the work remaining to be done and Modbilt's obligation, if any, to pay the balance due before the work was finished.
On March 31, 1972, Modbilt commenced this action against Sure-Built and the named individuals who were either officers or directors of Sure-Built. The court ordered defendants to deposit $16,714.10 into the registry of the court, pending determination of the action. The amount was so deposited. Following trial to the court, the complaint against the individual defendants was dismissed and judgment was entered in favor of Modbilt against Sure-Built for $27,114.10 (comprised of return of the down payment plus $10,400 for loss of profits) as damages for breach of contract. Further, upon determining that the $16,714.10 deposit had been made on behalf of the individual defendants out of the personal funds of defendant Joseph Crump, the court ordered that such funds should be released to that defendant. Modbilt appeals. We affirm.
As grounds for reversal, Modbilt raises four allegations of error: (1) The trial court's refusal to find the individual defendants guilty of fraud, (2) its failure to award Modbilt exemplary damages, (3) its refusal to award all the special damages claimed by Modbilt, and (4) its release of the $16,714.10 to Joseph Crump.
I.
At the close of the trial, the trial court found that the transactions involved were between the two corporations and that Modbilt had failed to meet its burden of proving, by a preponderance of the evidence, both its claim of fraud and its claim of individual liability on the part of the officers and directors. In its brief Modbilt fails to refer to any evidence in the record which would support its fraud claim, and cites no cases in support of its contention. Our review of the record likewise discloses no evidence to support this claim.
II.
As regards the claim for exemplary damages, the applicable statute, s 13--25--127(2), C.R.S.1973 (1971 Perm.Supp., C.R.S.1963, 52--1--28(2)), provided that '(e)xemplary damages against a defendant shall only be awarded in a civil action when the plaintiff proves beyond a reasonable doubt the commission of a wrong under the circumstances set forth in 13--21--102 (C.R.S.1963, 41--2--2).' The circumstances set forth in s 13--21--102, C.R.S.1973 (C.R.S.1963, 41--2--2), are those of 'fraud, malice or insult, or wanton and reckless disregard of the injured party's rights and feelings.' Modbilt having failed to demonstrate, with the requisite certainty, any of the designated circumstances, the denial of exemplary damages was not error.
III.
As regards the trial court's refusal to award special damages, Modbilt sought damages for loss of profits, time and expense, attorney fees, and for interference with plaintiff's business. From the evidence, the trial court found that for breach of contract Modbilt was entitled to recover from Sure-Built the $16,714.10 down payment plus a net of $10,400 for loss of profit on the three modular homes. The court found in favor of Sure-Built on Modbilt's other claims of damages.
The determination of the amount of damages was a matter within the province of the trier of fact and when, as here, there is evidence to support its findings as to the amount of damages, this finding will not be disturbed on review. Linley v. Hanson, 173 Colo. 239, 477 P.2d 453. Here there was insufficient evidence to support any damages other than those awarded by the court.
IV.
Finally, we disagree with Modbilt's contention that the trial court erred in releasing to one of the individual defendants the $16,714.10 previously deposited in the registry of the court. At a hearing on this issue, Joseph Crump testified, and the trial court found, that the $16,714.10 deposited in the court registry was, in fact, deposited by defendant Joseph Crump on behalf of the named individual defendants to avoid their being held in contempt of a previous court order, and that these monies were the personal funds of defendant Joseph Crump and his wife Berta G. Crump, and not corporate funds. The trial court then ordered that, since Modbilt's complaint against the individual defendants had been dismissed, the deposit should be released to Joseph Crump.
Modbilt contends that the corporate veil should have been pierced and the deposited funds of the individual defendants should have been applied to the judgment against Sure-Built. However, our examination of the record indicates that the court properly determined that the individually named defendants were not personally liable for any of the alleged damages. Therefore, there was no basis for requiring the deposited funds to be applied to the judgment against Sure-Built, and the release of said funds to Joseph Crump was not error.
Judgment affirmed.
PIERCE and SMITH, JJ., concur.