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Kocurek v. Wagner

Supreme Court of Alaska

March 3, 2017

MARVIN KOCUREK, Appellant,
v.
RICHARD WAGNER, Appellee.

         Appeal from the Superior Court No. 3AN-13-06181 CI of the State of Alaska, Third Judicial District, Anchorage, Eric A. Aarseth, Judge.

          Jeffrey G. Pickett, Law Office of Jeffrey G. Pickett, Anchorage, for Appellant.

          No appearance by Appellee Richard Wagner.

          Before: Stowers, Chief Justice, Winfree, Maassen, and Bolger, Justices. [Fabe, Justice, not participating.]

          OPINION

          STOWERS, Chief Justice.

         I. INTRODUCTION

         An artifact collector appeals a superior court's decision to deny his motion for a new trial and amendment of judgment where the jury found that a collection of artifacts from Zacatecas, Mexico, [1] had been wrongfully converted and awarded him $5, 000 in damages. He alleges that there was no evidentiary basis for the jury's damages award and that the superior court's reasons for denying his motion were erroneous. But because the superior court did not abuse its discretion by concluding that the jury's verdict was not against the weight of the evidence and because the facts do not require us to disturb the jury's verdict in the interests of justice, we affirm.

         A. Facts

         In the early 1970s or mid-1980s, Marvin Kocurek purchased approximately 225 pre-Columbian artifacts from a mining engineer named Clayton R. Rasmussen. According to a handwritten note that Kocurek kept with the collection of artifacts, Rasmussen had acquired the artifacts in 1936 or 1937 near Zacatecas, Mexico, and received customs clearance to bring the collection into the United States in 1937. Kocurek's note does not indicate the amount he paid for the collection, but according to witness testimony at trial, he paid $50, 000 for the collection in some combination of cash and trade.

         Kocurek packed the artifacts with paper towels, toilet paper, and clothing in an ammunition box that he stored with his prized possessions at the bottom of a bedroom closet. The artifacts were rarely shown to anyone. Kocurek had the items photographed sometime during the 1980s but never had them appraised.

         Kocurek's son, Eric Kocurek, assisted his father in managing some of Kocurek's personal finances and business affairs. In August 2011 Kocurek granted power of attorney to Eric. Cognitive assessments in April 2012 and April 2013 indicated that Kocurek had some problems with short-term memory, and in April 2012 Eric began the process of moving his father to Texas to live with family.

         During the fall of 2012 Eric accepted an offer by Richard Wagner, who had been a business and personal acquaintance of Kocurek for several years, to help salvage and sell several pieces of scrap metal on Kocurek's Alaska property and to split the profits. At some point while Wagner was working on the scrap project, he and Kocurek examined the collection of artifacts in the ammunition box. Wagner then called some friends in Arizona who were familiar with the antiquities trade and asked whether they knew anything about the value of a collection like Kocurek's. Through various connections, Wagner learned that a smaller collection of artifacts like Kocurek's had been confiscated by the Mexican government when the owner tried to sell it. Wagner relayed this information to Kocurek and suggested to Kocurek that "if the government finds out you have this stuff, they will take it." He also told Kocurek that his collection had significant value and offered to broker a deal with the United States State Department to get Kocurek a return on the money he had invested in the collection before it was confiscated or otherwise compromised.

         At trial the parties disputed whether this conversation amounted to a contract between Kocurek and Wagner. Eric testified that he overheard the conversation and told Wagner that he and his father were not selling the artifacts. Wagner, however, testified that Kocurek asked him to help sell the artifacts after he told Kocurek about his plan to "dispose[] of his own collection of artifacts. According to Wagner:

I asked Marvin [Kocurek] what he was going to do with his large salvage yard of all these massive amounts of collectibles, and he didn't know. And he told me that his son had been trying to get him to sell the stuff off. And I said: Marvin, you can't take it with you. So he, in turn, asked me if I would help him. And I agreed to that.

         After Kocurek and Wagner discussed the value and potential sale of Kocurek's artifacts, Wagner began to execute a convoluted plan to sell the collection without risking confiscation by the Mexican government. Kocurek and Wagner talked with one of Wagner's friends, Carlos Lopez, and together they devised a scheme to clandestinely ship Kocurek's collection to Mexico and then offer it for sale to the United States government. Wagner would broker the deal through some attorneys he knew in Las Vegas. Wagner asked his friend Roxy Weatherton to fly from Minnesota to Alaska at his expense to help him with his plan for Kocurek's artifacts.

         One of the elements of the plan was that the government would buy Kocurek's collection for the amount Kocurek originally paid for it, with three-percent interest, compounded, over a 40-50 year period; this amounted to approximately $232, 544.29. Wagner asserted that the basic outline of the plan was drawn up in a written agreement that Kocurek and Wagner signed with Weatherton as the witness. This alleged written contract was not available at trial.

         Wagner testified that he generally followed the agreement with Kocurek. In October 2012 Weatherton and Kocurek packed the artifact collection from Kocurek's ammunition box into a plastic Wal-Mart tote to disguise it. Then the tote was put into a surplus People Mover bus and driven to the Port of Anchorage, where it was consigned to a barge sailing to the Port of Seattle. At some point, Wagner and Weatherton took photographs of the collection in Anchorage for record-keeping purposes.

         Wagner and Weatherton then met with Alan Mulliner, an attorney at Alverson, Taylor, Mortensen & Sanders, a Las Vegas law firm, about additional steps that Wagner needed to take to successfully execute his plan. Wagner testified that he and Weatherton described the contract with Kocurek, provided Mulliner with a box of photographs that Kocurek had given to Wagner, and requested a copy of the notes that Mulliner had taken during their three-hour meeting. Wagner then called Kocurek to tell him that "the plan was basically in motion." Wagner retrieved the People Mover bus from the Port of Seattle and drove it to Mohave Valley, Arizona, where Wagner's friend Lopez met them. Lopez took possession of the bus to drive it across the border to Mexico, where, in accordance with Wagner's plan, he was to wait with it until Wagner and his attorney had a deal with the United States State Department to purchase the artifacts.

         In the meantime, Kocurek's family moved Kocurek to Texas to live with his sister Alice Kocurek. Wagner regularly updated Kocurek on his progress, and when Wagner called after Kocurek's move to Texas, he told Kocurek that he had not heard anything from the State Department. During this telephone call, Alice picked up the phone, demanding to know what Wagner was doing with the artifacts. After Wagner explained the plan, Alice said that she had a copy of the receipt that showed when Kocurek purchased the artifacts and told Wagner that Kocurek did not want to sell the items and that they wanted them back. According to Wagner, Alice said that the receipt was dated before the effective date of the Antiquities Act, [2] though she could not verify this at trial. Alice later testified that Wagner told her that the law firm in Las Vegas had the artifacts, a fact Wagner disputed. Wagner told Alice that he would return the collection but expected some compensation for assisting Kocurek with the plan to find a buyer for the artifacts. Wagner provided her with the contact information for the Las Vegas firm.

         Around the same time, Eric hired a private investigator to try to find Lopez at an address in Mexico Wagner provided to him, but the investigator was unable to locate the town, Lopez, or the artifacts. Kocurek's collection was last accounted for in Mexico, and its location was unknown at the time of trial.

         From January to March 2013, Kocurek's Alaska attorney, Wayne Dawson, and Wagner's Las Vegas attorney, Mulliner, exchanged several letters about the artifacts. In one letter, Dawson asserted that Wagner had represented to Kocurek that the Las Vegas firm had possession of the artifacts and was trying to broker a sale of the items. He stated that the artifacts "have an appraised value in excess of $100, 000" and requested that the firm protect the artifacts until Kocurek could make arrangements to have them returned to Alaska. He also asserted that Wagner removed the items from Kocurek's home without authorization. Mulliner responded to the letter, stating that "this law firm has never taken possession of specific artifacts belonging to Mr. Kocurek that originate from the Zacatecas Region of Mexico" and that he would discuss Dawson's letter - specifically the accusation that Wagner removed the items without permission - with Wagner.

         A week later, on March 4, Mulliner sent a letter in which he disputed that his client took Kocurek's artifacts without permission and stated that Wagner had an agreement with Kocurek to "broker the sale of the artifacts in exchange for a 20% commission/finder's fee plus reimbursement for any and all expenses related thereto." The letter also stated that if Kocurek wanted to resolve the dispute "amicably, " Wagner would accept a settlement payment from Kocurek "in the amount of $ 100, 000[]... [which] represents the estimated commission from the sale of the artifacts plus related expenses." Dawson responded on March 12, 2013, asserting that Kocurek was an elderly man suffering from dementia and was unable to knowingly enter into the contract Wagner described. He demanded that Wagner provide evidence of his "status as a licensed and bonded dealer in antiquities" given Wagner's demand for the $ 100, 000 commission payment. He also requested the location and insurance information for the artifacts. Having received no response to his letter, Kocurek filed suit against Wagner on April 3, 2013, in the Alaska Superior Court in Anchorage.[3]

         B. Proceedings

         The jury heard evidence about the value of Kocurek's collection over the course of a six-day trial, during which Wagner represented himself and participated telephonically. The evidence included an estimate of the value of the artifact collection based on letters between Kocurek and the Las Vegas firm; testimony from both plaintiff and defense witnesses about what Kocurek allegedly paid for the artifacts; testimony from Kocurek's sister about valuation of four pieces from the collection at an Antiques Roadshow event; and a 2013 Sotheby's sales list and catalogue.

         The March 4, 2013 letter from Mulliner to Dawson was read into evidence. The letter included the terms of the alleged agreement between Kocurek and Wagner, noting that Wagner was entitled to a "20% commission/fmder's fee plus related expenses." The letter also included the terms of Wagner's settlement offer: "[Wagner] is willing to accept payment from Mr. Kocurek in the amount of $100, 000.00. This figure represents the estimated commission from the sale of the artifacts plus related expenses." The March 12, 2013 letter from Dawson to Mulliner, which was also read into evidence, referenced the $100, 000 commission: "[B]ased upon your ...


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