DISTRICT COURT, BOULDER COUNTY, COLORADO
Court Address:
1777 6TH Street ,'. ,.
Boulder, Colorado 80302
Plaintiffs:
MICHAEL J. URBANA
v.
Defendants:
o COURTUSEONLY 0
STEPHEN A. MESPLE, an individual, and WILDWOOD
GUITARS, INC., a Colorado corporation.
Attorney Name: Joaquin G. Padilla, No. 28079 Case Number:
Kenneth A. Padilla, No. 5632
Firm Name: Padilla & Padilla, PLLC Courtroom/Div. No.: 3
Address: 1753 Lafayette Street
Denver, Colorado 80218
Phone Number: (303) 832-7145
Facsimile: (303) 832-7147
E-mail: Jo adillalawoffices.com
COMPLAINT AND JURY DEMAND
Plaintiff, Michael J. Urbana, by and through his attorneys, Padilla & Padilla,
PLLC for his Complaint and Jury Demand against the Defendants Stephen A. Mesple and
Wildwood Guitars states and avers as follows:
PARTIES
1. Plaintiff Michael J. Urbana (hereinafter "Plaintiff or "Mr. Urbana") is an
individual residing at 243 S. Cherry Street, Denver, Colorado 80246.
2. Upon information and belief, Defendant Stephen A. Mesple resides in Boulder
County, Colorado.
3. Upon information and belief, Defendant Wildwood Guitars, Inc. (hereinafter
"Wildwood") is a corporation existing pursuant to the laws of the State of Colorado with
offices located at 804 Main Street, Louisville, Colorado 80027.
4. Upon infonnation and belief, Wildwood designated the following as its
registered agent with the Colorado Secretary of State:
a. Steve Mesple
804 Main Street
Louisville, Colorado 80027.
JURISDICTION AND VENUE
5. This Court properly has jurisdiction over the subject matter of this Complaint.
This Complaint seeks damages arising from the Defendants' breach of contract, breach of
warranties, concealment, misrepresentations, and breach of the Colorado Consumer
Protection Act. Pursuant to Article VI, Section 9, of the Constitution of the State of
Colorado, the District Court located in and for Boulder County, Colorado, is a trial court
of record with general jurisdiction and has original jurisdiction of all civil, probate, and
criminal cases, except as otherwise provided by law.
6. This Court properly has personal jurisdiction over the parties to this cause of
action. The Defendants transact business in Colorado, and this cause of action arises
from such business. Pursuant to C.R.S. §13-1-124, any person, whether or not a resident
of the State of Colorado, submits themselves to the jurisdiction of the Courts of Colorado
concerning any cause of action arising from their transaction of any business within the
State of Colorado.
7. Venue is proper under C.R.C.P. 98 because this action arises out ofa contract for
goods sold in Boulder County, and that was to be perfonned in Boulder County and the
tortious acts took place in Boulder County.
GENERAL ALLEGATIONS
8. Mr. Urbana purchased the following guitars from Wildwood:
a. 1957 Les Paul Junior (Serial No.7 0293);
b. 1956 Les Paul Special (Serial No. 614670);
c. 1958 Les Paul Special (Serial No.8 4771);
d. 1954 Les Paul Gold Top (Serial No.4 1430);
e. 1958 Les Paul Custom (Serial No.8 3796);
f. 1963 Fender Telecaster (Serial No. LOI547);
g. 1963 Gibson SG (Serial No. 82382); and
h. 1962 Gibson SG (Serial No. 79974).
9. Mr. Urbana paid $134,000.00 for the above-referenced guitars.
10. At all times material to this Complaint, Mr. Urbana's communications with
Defendants occurred with Defendant Stephen A. Mesple (hereinafter "Mr. Mesple").
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11. The guitars sold by Wildwood to Mr. Urbana are damaged and contain numerous
defective conditions, which significantly decrease the guitars' value.
12. Neither Mr. Mesple nor Wildwood disclosed the defective conditions of the
guitars to Mr. Urbana.
13. Defendants represented to Mr. Urbana that the guitars were in excellent condition
and were being sold to Mr. Urbana at wholesale prices and at greatly discounted prices
than their true market value.
14. Upon information and belief, at all times material to the claims herein,
Defendants were engaged in a joint venture, and each was agent, joint venturer and
representative of the other as to maters relating to the sale of the subject guitars.
15. Alternatively, upon information and belief, at all times material to this
Complaint, Mr. Mesple and Wildwood were the alter ego of each other and are liable for
each other's conduct as it relates to the sale of the guitars.
16. As a result of the acts and/or omissions of the Defendants, individually, or by and
through their employees, and agents, and the Defendants' general supervision thereof, the
Plaintiff has sustained damages, including by way of illustration, property damage,
diminished value of the guitars, past and future repair and mitigation expenses, cost of
repairs, cost of replacement, loss of use, loss of time, injuries and losses, aggravation,
inconvenience, annoyance and discomfort, and other consequential damages.
17. At all times material to this Complaint, each of the Defendants acted through his,
or its principals, officers, directors, employees, agents and other authorized
representatives and, as such, each is vicariously liable for their conduct, omissions and
wrongful acts.
18. The Defendants' tortious or otherwise wrongful conduct, described herein, arises
from circumstances of willful and wanton conduct, and was accompanied by a reckless
disregard of the rights and feelings of persons like the Plaintiff.
FIRST CLAIM FOR RELIEF
(Breach of Contract- Against Defendant Wildwood)
19. Plaintiff incorporates all other allegations in this Complaint by reference.
20. Plaintiff entered into a contract for the purchase of the subject guitars.
21. At all times, Plaintiff complied with the material terms of the contract, and all
other conditions precedent have occurred.
22. Defendant Wildwood's actions as complained herein constitute material breaches
of the contract.
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23. As a direct and proximate result of Wildwood's material breaches of the contract,
Plaintiff has suffered damages and losses in an amount to be proven at trial.
SECOND CLAIM FOR RELIEF
(Unjust Enrichment- Against All Defendants)
24. Plaintiff incorporates all other allegations in this Complaint by reference.
25. The Plaintiffs payments for the guitars conferred a benefit on Wildwood, and on
Mr. Mesple personally.
26. Defendants accepted these monies when they were not entitled to such monies as
they had not provided Plaintiff with the guitars as agreed upon and represented.
27. Based upon the Defendants' failures to provide the guitars as agreed upon and
represented, it would be inequitable for the Defendants to retain these monies.
28. Accordingly, Plaintiff is entitled to compensation for the value of the benefits
conferred upon and appreciated by the Defendants.
THIRD CLAIM FOR RELIEF
(Breach of the Colorado Consumer Protection Act, c.R.S. § 6-1-101 et seq.
Against All Defendants)
29. Plaintiff incorporates all other allegations in this Complaint by reference.
30. Upon information and belief, the Defendants represented to the Plaintiff, in
substance, that the guitars were suitable for their intended uses when these Defendants
knew they were not, and that the guitars had certain characteristics, ingredients, uses and
benefits when they did not, in violation ofC.R.S. § 6-1-105(1)(e).
31. Upon information and belief, the Defendants represented that the guitars were of
a particular standard or quality when they knew or should have known that they were of
another, in violation of C.R.S. § 6-1-105(l)(g). Upon information and belief, these
representations were made through verbal representations, conduct, signage, written
material, contracts, and/or warranty agreements, all or some of which were widely
distributed to the public and were approved by the Defendants.
32. Upon information and belief, the Defendants advertised their goods, services
and/or property with the intent not to sell them as advertised, in violation ofC.R.S. § 6-1
105(1)(i).
33. The Defendants failed to disclose material information concerning the subject
guitars, which information was known to the Defendants at the time of the guitars'
advertisement and sale, and the failure to disclose such information was intended to
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induce the Plaintiff to enter into the contract for the purchase of the guitars, in violation
ofC.R.S. § 6-1-105(1)(u).
34. The failure to disclose such material information was intended to induce the
Plaintiff to enter into the sales transactions for the purchase of the guitars.
35. Upon information and belief, the Defendants knowingly made false
representations and failed to disclose material information regarding the scope and
applicability of purported warranties applicable to the guitars, in violation of C.R.S. § 6
1-105(1 )(r).
36. The Defendants' violations of the provisions of C.R.S. § 6-1-105 occurred in the
course of their business, vocation or occupation. Furthermore, the making of the
misrepresentations and nondisclosures described above constituted bad faith conduct as
defined in C.R.S. § 6-1-113 that caused injury and property damage to the Plaintiff. The
Plaintiff reasonably relied upon these misrepresentations or nondisclosures to his
detriment.
37. The Defendants' violations significantly impacted the public as actual and/or
potential consumers of the Defendants' goods, services and/or property; alternatively, on
information and belief, the Defendants engaged in violations of C.R.S. § 6-1-105
substantially similar to those described above in transactions with other consumers,
including all other purchasers who were given the verbal representations, materials,
and/or other documents referred to above or were the subject of nondisclosures described
above.
38. The Plaintiff has suffered injuries in fact to his legally protected interests.
39. The Defendants' actions in violation ofC.R.S. § 6-1-101, et seq., caused the
Plaintiffs injuries, damages and losses, entitling him to actual damages and other
recoveries allowed under the law.
40. The Plaintiff is entitled to, and hereby demands as damages, three times the
amount of his actual damage, plus costs and attorneys' fees pursuant to C.R.S. § 6-1-113.
FOURTH CLAIM FOR RELIEF
(Breach oflmplied Warranty- Against All Defendants)
41. Plaintiff incorporates all other allegations in this Complaint by reference.
42. Defendants sold the subject guitars.
43. The guitars sold by these Defendants fail to comply with one or more of the
warranties implied by Colorado law, including, without limitation, that the guitars are
merchantable, that the guitars are suitable for their anticipated uses and particular
purposes.
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44. The breach of one or more of these implied warranties has caused property
damages and other damages to the Plaintiff, in an amount to be proven at triaL
45. Any alleged effort by Defendants to limit or disclaim these implied warranties is
ineffectual and void because, among other reasons, such limitation or disclaimer violates
Colorado's public policy; Defendants are estopped to assert such a limitation or
disclaimer because such disclaimer was not the product of any negotiation, and was not
clear, conspicuous and unambiguous, and was not the subject of a course of dealing, or
course ofperformance, or usage of trade.
46. Mr. Mesple is jointly liable for breaching implied warranties because it was
engaged in a joint venture with Wildwood.
JURY DEMAND
Plaintiff demands a jury trial on all issues so triable.
WHEREFORE, Plaintiff respectfully requests that this Court enter an order for judgment
against all Defendants, and as applicable to the separate claims made against the Defendants,
and that such judgment enter jointly and severally where the Defendants have acted jointly or
in concert as follows:
A. Entering judgment and awarding actual damages in Plaintiff's
favor and against Defendants in an amount to be determined at
trial, which includes compensatory damages, together with pre
and post judgment interest at the statutory rate, expert fees,
and deposition expenses, costs and attorneys' fees;
B. For the cost of repairing the guitars to a reasonably good condition;
C. For the cost of replacement of any defective elements;
D. For diminution in value to the guitars, after all repairs have been
completed;
E. F or the loss of use of the guitars, loss of time, as well as for all
annoyance, discomfort, inconvenience, and aggravation arising
from the injury to the guitars, and any required investigation and
repair efforts;
F. For specific restitution and payment to the Plaintiff in the amount
necessary for the Plaintiff to fund the cost of fulfilling such
promises and/or effecting such representations;
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G. For forensic investigation and analysis costs, including inspection
fees;
H. For punitive/exemplary damages against Defendants and in favor
of Plaintiff;
I. For treble damages, costs and attorneys' fees pursuant to C.R.S. §
6-1-113; and
J. Granting such other and further relief that the Court deems just and
proper.
Dated this 24th day of March, 2011.
Respectfully submitted,
PADILLA & PADILLA, PLLC
lsi Joaquin G. Padilla
Joaquin G. Padilla, #28079
1753 Lafayette Street
Denver, Colorado 80218
Attorneys for Plaintiff
In accordance with CR.CP. 121 §1-26(7), the
signed original ofthis document is onfile at Padilla
& Padilla, PLLC and will be made available for
inspection by other parties or the Court upon
request.
Plaintiffs Address
243 S. Cherry Street
Denver, Colorado 80246
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