In this diversity of citizenship action brought pursuant to 28 U.S.C. § 1382(a)(1), defendants, Julius Jennings Wade, Jr., James H. Wade, Margaret Godley (“Godley”), Godley, Inc., and Wade and Wade, Attorneys at Law, appeal from the district court’s order awarding Plaintiff Pauli Anderson (“Anderson”) $111,200.53 in compensatory damages and $500,000 in punitive damages for their fraudulent representations in connection with an option contract arising under Kentucky law. For the reasons that follow, we AFFIRM the district court’s judgment.
I. BACKGROUND
The present case arises from an option contract entered into by Anderson of Bristol, Virginia with Godley of Mecklenburg County, North Carolina. For $15,000, Anderson.purchased a $3 million option to acquire 24,700 acres of land in Knott, Perry and Breathitt counties in eastern Kentucky in 1993. Godley and her since deceased husband were the principal shareholders of Godley, Inc., a closely held family corporation formed for the specific purpose of holding title to the land in question. Godley claimed title to the land by virtue of the so-called De-Groot Patents, a series of patents (or tracts) issued to W.H. DeGroot & Company by the Commonwealth of Kentucky in 1870. Before Anderson entered into the option contract with Godley, however, the DeGroot Patents had been declared facially void. Bessie Berry, et al. v. Cyprus Coal Company, et al, No. 84-53 (E.D.Ky. March 20, 1992), aff'd. Berry v. Cyprus Coal,
Nevertheless, on April 30, 1993, slightly more than one month after this Court’s decision in the Cyprus Coal litigation, Anderson and his business associates met with the Wades in their law office in Charlotte, North Carolina to discuss the proposed purchase of the property in question through the acquisition of the stock of Godley, Inc. At the meeting, Julius Wade assured Anderson and his business associates that Godley would provide good title and title insurance for the property. Anderson and David Michael Middleton, a mortgage broker whom Anderson had retained to underwrite the transaction, informed the Wades about their interest in developing the crude oil and timber on the property. At the meeting, Anderson also looked through an engineering consultant’s report (“Skelly Loy report”) that the Wades had placed on the table near him about the abundant natural resources to be found on the property. At no time during the meeting did the Wades disclose to Anderson the fact that Godley did not have valid title to the property.
Anderson entered into the option contract with Godley on May 7, 1993. Under the terms of the contract, Anderson paid $15,000 for an option to purchase the stock of Godley, Inc. for $3 million, and thereby acquire 24,700 acres of land in eastern Kentucky. Anderson agreed to forfeit the
After entering into the option contract with Godley, Anderson, through Mr. Burton Theriault and his wife, Mrs. Lee Theriault, of Leeway Marketing, entered into an agreement on May 14, 1993 with Dr. Won Ming Song of S.D.D. International Investment & Trade Corporation (“S.D.D.”) for S.D.D. to broker timber for him from the land in question in exchange for $11,100,000. Under the agreement, S.D.D. was to resell the timber to China Timber Import and Export Service (“China Timber”). To secure the transaction, S.D.D. deposited $296,000 as a performance bond with China Timber. In addition, Anderson hired C.C. Canada Forestry Co. to determine the type and quantity of the timber found on the property. During May of 1993, Anderson also contracted the services of Gregory Childress, who investigated the potential use of crude oil found on the property. In addition, Anderson retained the services of the Middleton Group to underwrite this project and to determine the extent of the mineral and natural resources on the land.
In May of 1993, Anderson also got in touch with Christen W. Burkholder, an attorney in Bristol, Virginia, to review the option contract for him. In the course of his conversation with Anderson, Burkholder learned that one of Anderson’s business associates had inspected the property and heard that Godley had lost a case involving the Cyprus Mining Company. Researching the matter on May 14, 1993, Burkholder came across this Court’s opinion in the Cypress Coal litigation finding Godley’s title claim to be facially void, and immediately informed Anderson about it. Burk-holder then called Julius Wade requesting a written assurance concerning the validity of Godley’s title to the property. After leaving various messages, Burkholder faxed a letter to Julius Wade on May 24, 1993 advising him that he had a copy of this Court’s opinion in the Cyprus Coal litigation. Julius Wade immediately called Burkholder to assure him that the Cyprus Coal litigation had no effect on Godley’s title to the property because it merely involved the narrow issue of trespass law. After an angry exchange in which Julius Wade denied that Godley’s title to the property was facially void, Burkholder told him that Anderson wanted Godley to return Anderson’s deposit and pay for his out-of pocket expenses. Julius Wade refused. Subsequently, Burkholder had conversations with Julius Wade on May 27 and 28, 1993, but there was no change in Julius Wade’s position. On May 27, 1993, Anderson’s mortgage broker, Middleton, also spoke with Julius Wade, who again insisted that Godley’s title was valid and was unaffected by the Cyprus Coal litigation.
Burkholder then sent Julius Wade a letter on June 4, 1993 asking for the return of Anderson’s deposit of $15,000 and itemizing Anderson’s out-of-pocket costs, including statements from Anderson’s business associates. Thereafter, Anderson did not exercise his right to purchase the property under the option contract, thus forfeiting his deposit of $15,000. Consequently, Anderson’s transaction with Dr. Song of S.D.D. to market the timber from the property fell through, resulting in the forfeiture of S.D.D.’s performance bond with China Timber.
Afterwards, on June 18, 1993, Defendants sold another option on the Godley, Inc. stock to John F. Wolcott, Sr., as agent for the Foundation of Advancement, Edu
On April 27, 1994, Anderson, proceeding pro se, filed a three-count complaint against Defendants seeking compensatory and punitive damages. Count I alleged a violation of the Racketeer Influenced and Corrupt Organizations Act of 1970 (“RICO”), 18 U.S.C. § 1962, and conspiracy to violate 18 U.S.C. § 1962(a)-(c). Count II alleged a Kentucky common-law claim of intentional misrepresentation by Defendants regarding their claimed title to the property in light of the Cyprus Coal litigation. Count III alleged misrepresentations that induced Anderson to enter into a contractual relationship. Thereafter, Anderson moved for partial summary judgment on his claim that Defendants had knowledge that the DeGroot Patents had been adjudicated as null and void, and that there was no reasonable basis for them to believe otherwise. In a memorandum opinion and order dated December 1, 1995, the district court granted Anderson’s motion for partial summary judgment on this basis. On May 8, 1997, the district court granted Defendants’ motion for summary judgment regarding Anderson’s RICO claim asserted in Count I.
During discovery, Defendants repeatedly refused to respond to Anderson’s discovery requests in an adequate manner. As a result of Defendants’ repeated violations of court orders compelling discovery, the magistrate judge, in a report and recommendation dated August 13, 1997, recommended as sanctions that the district court grant Anderson a default judgment on the issue of Defendants’ liability on his remaining state law claims pleaded in Counts II. and III. Subsequently, the district court, in a memorandum opinion and order entered on September 29, 1997, adopted the magistrate judge’s report and recommendation, granting in part and denying in part Anderson’s motion for sanctions against Defendants for discovery violations based upon their obstructionist tactics. In defaulting Defendants on the issue of liability, the district court found in pertinent part:
The following are the specific grounds for the Court’s acceptance of the Magistrate’s Report and Recommendation: (1) the defendants have repeatedly failed to respond adequately to Anderson’s discovery requests, which were ordered by the Court to be answered and were propounded back on December 12,1995; (2) although the defendants had been warned on three separate occasions that failure to comply with the Federal Rules of Civil Procedure and/or orders of the Court could result in default judgment, they still refused to cooperate with discovery; (3) lesser sanctions have already been imposed and were unsuccessful; (4) any sanction short of default judgment on the remaining issues of liability*755 would permit the defendants to benefit from their obstructionist tactics; and (5) another discovery order would only serve to multiply the proceedings and add to the defendants’ mockery of the discovery process. Based on the above, the Court finds that only the harsh sanction of default judgment on the issue of liability will serve to deter future litigants from engaging in this type of behavior, adequately punish these defendants, and preserve the integrity of the court.
Paull Anderson v. Julius Jennings Wade, Jr., et al., No. 94-111, slip op. at 7-8 (E.D.Ky. September 29, 1997).
By an order dated January 8, 1998, the district court then directed the magistrate judge to conduct a hearing on damages and to issue a report and recommendation on the same. After a hearing on April 29 and 30,1998, the magistrate judge issued a report and recommendation on March 3, 2000. Ruling that Anderson had to prove his compensatory damages by “clear and convincing evidence,” the magistrate judge found that Anderson was only entitled to compensatory damages of $15,000 for the return of his deposit for the option contract. In addition, the magistrate judge, finding that the Supreme Court of Kentucky in Williams v. Wilson,
Thereafter, Anderson filed his objections to the magistrate’s report and recommendation. On June 15, 2000, the district court, in a revised memorandum opinion and order, accepted in part and rejected in part the magistrate’s report and recommendation. Specifically, the district court, ruling that Anderson had to prove his compensatory damages by a preponderance of the evidence, found that Anderson was entitled to compensatory damages in the amount of $111,200.53. In addition, the district court, applying the Kentucky common-law punitive damages standard, found that Anderson was entitled to $500,000 in punitive damages. On August 14, 2000, the district court entered an order denying Defendants’ motion to alter or amend the judgment of June 15, 2000. Defendants now timely appeal.
II. DISCUSSION
A. Standard of Review
A federal court in a diversity action under 28 U.S.C. § 1332 applies the substantive law of the state in which it sits. Erie R. Co. v. Tompkins,
B. Analysis
1. The district court did not err in awarding Anderson $111,200.53 in compensatory damages.
As a result of the default judgment, Defendants were liable on Anderson’s claims of intentional misrepresentation as alleged in Counts II and III of his complaint. Here, Anderson’s intentional misrepresentation claims were treated as claims for fraud under Kentucky common law.
Contrary to Defendants’ claim, the district court did not err when it ruled that Anderson was required to show compensatory damages with “reasonable certainty” by a preponderance of the evidence. Here, the magistrate judge misstated the law when she ruled that Anderson had to prove his compensatory damages by clear and convincing evidence. As the district court properly stated:
The determination of the extent of that injury is judged under a distinct and separate standard.
As a practical matter, damages were not determined at the time default judgment was granted. This indicates the distinct and separate nature of these two determinations. To recover on a claim of fraud, a plaintiff must prove, by clear and convincing evidence, that an injury existed, (citations omitted.) Once that threshold matter is determined in the plaintiffs favor, the Court moves on to the separate determination of the extent of the damages. Injury and damages are not legal equivalents, and are therefore judged under different standards.
Paull Anderson v. Julius Jennings Wade, Jr., et al., No. 94-111, slip op. at 10-11 (E.D. Ky. June 14, 2000). See also Louisville & N.R. Co. v. Kelly’s Adm’x,
In this case, the district court did not err in finding that Anderson established by a preponderance of the evidence that he was entitled to $112,200.53 in compensatory damages. See Dempsey v. Marshall, 344 S.W.2d 606, 607 (Ky.Ct.Ap.1961) (holding that damages for fraudulent representations inducing a contract include not only what the purchaser has actually parted with in the bargain, but also “the benefits of his bargain, by permitting him to show what the property would have been worth had it been as represented”); Sanders v. Chesmotel Lodge,
2. Anderson was also properly awarded $500,000 in punitive damages.
Before addressing whether there was sufficient evidence to support the punitive damage award, we must first consider the standard by which to review a punitive damages award under Kentucky law. In 1988, the Kentucky General Assembly, as part of a broad tort reform legislation, enacted a statute codified at Kentucky Revised Statute [“KRS”] 411.184 modifying Kentucky law with respect to punitive damages (“Kentucky’s punitive damages statute”). See Williams v. Wilson,
(1) As used in this section and KRS 411.186, unless the context requires otherwise:
(a) “Oppression” means conduct which is specifically intended by the defendant to subject the plaintiff to cruel and unjust hardship.
(b) “Fraud” means an intentional misrepresentation, deceit, or concealment of material fact known to the defendant and made with the intention of causing injury to the plaintiff.
(c) “Malice” means either conduct which is specifically intended by the defendant to cause tangible or intangible injury to the plaintiff or conduct that is*758 carried out by the defendant both with a flagrant indifference to the rights of the plaintiff and with a subjective awareness that such conduct will result in human death or bodily harm.
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(f) “Punitive damages” includes exemplary damages and means damages, other than compensatory and nominal damages, awarded against a person to punish and to discourage him and others from similar conduct in the future. (2) A plaintiff shall recover punitive damages only upon proving, by clear and convincing evidence, that the defendant from whom such damages are sought acted toward the plaintiff with oppression, fraud or malice.
(5) This statute is applicable to all cases in which punitive damages are sought and supersedes any and all existing statutory or judicial law insofar as such law is inconsistent with the provisions of this statute.
KRS 411.184. Further, KRS 411.186 provides:
(1) In any civil action where claims for punitive damages are included, the jury or judge if jury trial has been waived, shall determine concurrently with all other issues presented, whether punitive damages may be assessed.
(2) If the trier of fact determines that punitive damages should be awarded, the trier of fact shall then assess the sum of punitive damages. In determining the amount of punitive damages to be assessed, the trier of fact should consider the following factors:
(a) The likelihood at the relevant time that serious harm would arise from the defendant’s misconduct;
(b) The degree of the defendant’s awareness of that likelihood;
(c) The profitability of the misconduct to the defendant;
(d) The duration of the misconduct and any concealment of it by the defendant; and
(e) Any actions by the defendant to remedy the misconduct once it became known to the defendant.
(3) KRS 411.184 and this section are applicable to all cases in which punitive damages are sought.
KRS 411.186.
Following the enactment of the Kentucky punitive damages statute, the Kentucky Supreme Court in Williams invalidated KRS 411.184(l)(c), but expressed “no opinion herein as to the constitutionality of KRS 411.184(2).”
Based upon these pronouncements of the Kentucky Supreme Court, we thus apply the Kentucky punitive damages statute to the present case, with the exception of KRS 411.184(l)(c). Specifically, pursuant to KRS 411.184(2), Anderson has the burden of proving punitive damages by clear and convincing evidence that Defendants “acted toward the plaintiff with oppression, fraud or malice.” As applied to this case, Anderson has to show that he was entitled to punitive damages as a result of Defendants’ fraud. As defined by KRS 411.184(l)(b), “fraud” is “an intentional misrepresentation, deceit, or concealment of material fact known to the defendant and made with the intention of causing injury to the plaintiff.”
In this case, the district court applied the common law standard stated in Horton in awarding punitive damages in this case. In pertinent part, the district court stated:
In order to recover punitive damages, the plaintiff must show outrageous conduct evidencing fraud, evil intent, or reckless indifference to the rights of others. Horton v. Union Light, Heat & Power Co.,690 S.W.2d 382 , 389 (Ky. 1985). In this case, the record clearly shows that the defendants have consistently acted with “reckless indifference to the rights of others.” Id. In addition to the fraudulent acts committed, and the misrepresentations made, to entice the plaintiff into the option contract; [sic] the defendants have also flagrantly violated discovery orders in an attempt to prevent Plaintiffs recovery in this case. The plaintiff has also offered proof that the defendants have violated a number of the Revised Rules of Professional Conduct, issued by the North Carolina Bar. Finally, while a claim for punitive damages can be sustained solely based on the actions listed above; the record contains extensive evidence that the defendants continued to attempt to peddle their worthless title to the land after their encounter with the plaintiff.
Paull Anderson v. Julius Jennings Wade, Jr., et al., No. 94-111, slip op. at 28-29 (E.D. Ky. June 14, 2000). Although the district court erred in applying the common-law standard in determining punitive damages in this case, we nonetheless affirm the award because there was clear and convincing evidence in the record showing that Defendants’ fraudulent acts and misrepresentations enticing Plaintiff into the option contract warranted the imposition of punitive damages under KRS 411.184(2). See City Management Corp. v. U.S. Chemical Co., Inc.,
Here, there was clear and convincing evidence that Defendants behaved fraudulently at their initial meeting with Anderson. As the district court found, Defendants did not address the defective nature of their title to the land, but “engaged in a presentation that highlighted the natural and mineral resources present on the land,” making available to Anderson “the Skelly Loy report detailing the natural resources on the land in question.” Paull Anderson v. Julius Jennings Wade, Jr., et al., No. 94-111, slip op. at 29 (E.D. Ky. June 14, 2000). Moreover, the district court noted that the option contract references the timber studies contained in the report. The district court also found that Defendants sought to perpetrate the fraud before and after the illegality of Defendants’ actions came to light. As the district court noted:
*760 Finally, the record shows that the defendants attempted to resell their bogus title three additional times. First, on November 12, 1992, Defendants tried to peddle their title to one Dr. Harbor. See Plaintiffs exhibit no. 29. After that, the defendants were able to sell Plaintiff an option contract. Shortly after that deal fell through due to the discovery of the flawed title, Defendants attempted to sell the land to a non-profit foundation on September 3, 1993. See Plaintiffs exhibit nos. 14-17, 19, 90. Finally, in 1995, Defendants again tried to sell their defective title to the Wolford Brothers [sic]. See Plaintiffs exhibit nos. 80-88, 94, 95. This sale attempt included a letter from Defendant Wade, vouching that his client had good title to the land. See Plaintiffs exhibit no. 82.
Id. at slip op. 31-32. Thus, there was clear and convincing evidence that Defendants acted toward Anderson with fraud as defined by KRS 411.184(l)(b).
In addition to this evidence, the district court also found that Defendants engaged in flagrant violations of the discovery orders to prevent Anderson’s recovery in this case. Without citing any case law, Defendants contend that citing their discovery violations as a basis for the punitive damages award was improper because it “results in a double penalty for the same conduct,” since these violations already resulted in a default judgment of liability as sanctions for their misconduct. Because Defendants’ claim is not supported with any authority, it is deemed waived for appellate review. Figueroa-Rubio v. INS,
Moreover, in awarding punitive damages, the district court also considered evidence that Defendants Julius Jennings Wade, Jr., James Wade, and their law firm Wade and Wade, violated a number of the Revised Rules of Professional Conduct, issued by the North Carolina Bar Association. Contrary to Defendants’ objection, the issue about the Wades’ misconduct as lawyers was raised and developed in the district court. Although Defendants argue that the Wades were not subject to the North Carolina Bar Association Rules of Professional Conduct, as cited by the district court, because they were not approved by the North Carolina Supreme Court until July 24, 1997, we note that similar rules were in effect during the time period prior to their formal adoption by the North Carolina Supreme Court. Further, even if violations of the North Carolina Bar Association Rules of Professional Conduct may not give rise to a cause of action in North Carolina, the Wades do not dispute that their conduct was in violation of the Rules of Professional Conduct, nor that violations of the rules may serve as evidence supporting a punitive damages award in a fraud action under Kentucky law. See In re Baker,
Thus, notwithstanding the district court’s failure to apply the Kentucky punitive damages statute, we uphold its award of $500,000 in punitive damages on the basis that Anderson established by clear and convincing evidence that Defendants acted toward him with fraud so as to satis
III. CONCLUSION
In this case, we conclude that the district court did not err in finding that Anderson established by a preponderance of the evidence that he was entitled to $112,200.53 in compensatory damages. Although the district court erred in not applying the Kentucky punitive damages statute set forth in KRS 411.184, Anderson was properly awarded $500,000 in punitive damages because he established by clear and convincing evidence that Defendants acted toward him with fraud, as defined by the statute, and the amount of the award was justified by the factual circumstances of this case. Accordingly, we AFFIRM the district court’s judgment.
Notes
. Anderson also introduced evidence that on November 12, 1992, before offering the property to him, Defendants sought to sell the property to another buyer, making the same assurances that Godley had valid title to the property.
. As a pro se litigant, Plaintiff was entitled to a liberal construction of his pleadings and filings seeking compensatory and punitive damages. Boswell v. Mayer,
. We note that the North Carolina State Bar disbarred Julius J. Wade, Jr. on March 8, 1994 and James H. Wade on January 19, 2001 for various acts of misappropriation of funds unrelated to this case.