Lead Opinion
| íAppellants, John and Judith Brona-kowski, appeal from a Marion County jury award of punitive damages in the amount of $25,000 for the cutting of trees on John and Lisa Lindhursts’ property. On appeal, the Bronakowskis assert that the trial court erred as a matter of law in denying their motion for judgment notwithstanding the verdict, remittitur, or a new trial. We disagree and affirm.
The parties stipulated to the following facts: that the Bronakowskis are the owners of Lot 74 in the Hillcrest Subdivision in Marion County, Arkansas, on the shore of Bull Shoals Lake; that the Lindhursts are the owners of Lot 75, also in Hillcrest Subdivision; that the Bronakowskis or their agents cut trees on the Lindhursts’ property; and that $592.85 is the fair market value of the stumpage of the trees, The Lindhursts’ permanent residence was linear St. Louis, Missouri. When looking for a place to retire, the Lindhursts purchased Lot 75 in the Hillcrest Subdivision in October 1994. Mrs. Lindhurst explained that they purchased Lot 75 specifically because it was “totally wooded.” They planned to build a home and retire to this property and had decided to build their retirement home in the middle of the lot, in the midst of the wooded area “where [they] would feel like [they] were in hundreds of acres.” It was their goal to have complete privacy. When asked if they had ever cut any trees on the lot, Mrs. Lin-dhurst responded that they had not.
On October 8 or 9 of 2005, while at home in Missouri, Mrs. Lindhurst received a call from Larry and Joanne Carter, their neighbors in the Hillcrest Subdivision. The Carters called to inform the Lin-dhursts that the Bronakowskis had hired someone to clear Lot 75 and that this clearing was ongoing at that time. Mrs. Lindhurst immediately called Mr. Brona-kowski. She testified that during this call Mr. Bronakowski “got angry” with her. During a second call Mr. Bronakowski did not give Mrs. Lindhurst an opportunity to resolve the matter; rather, during the conversation he told her to “sue [him].” When asked about the aerial photographs of Lot 74, Mrs. Lindhurst testified that on Lot 74, upon which the Bronakowskis planned to build a home, a lake view had “absolutely” been opened up.
After learning of the tree cutting and Ms. Lindhurst’s telephone conversation with Mr. Bronakowski, the Lindhursts traveled to their property in order to view and evaluate the effect of the Bronakow-skis’ actions on Lot 75. She described what they discovered as “total destruction.” She stated that “about a third of [the lot] on the Bronakowskis’ side was
Larry Carter testified that he lived in Springfield, Missouri, and also had a home neighboring the Lindhursts’ property in the Hillcrest Subdivision. Mr. Carter was familiar Lwith the history of the Hillcrest Subdivision, as he had owned property there since 1968. He testified that the Childers, neighbors of the Carters, sold their Hillcrest property to the Bronakow-skis. Mr. Carter was familiar with the property as he had visited the Childers when they lived there. Carter testified that there was no view of the lake from the Childers’ front porch. It was during negotiations between the Childers and the Bro-nakowskis that Mr. Carter met the Brona-kowskis.
At one point, the Carters owned Lot 73, next to Lot 74, which the Bronakowskis now owned. The Carters had Lot 73 surveyed at the time of purchase and again when they sold the property. When the second survey was complete, Mr. Brona-kowski and Mr. Carter discussed the location of the corner of Lots 73 and 74, the fact that the survey pin was clearly visible from the road, and the fact that the Corps of Engineers corner was clearly marked. Lots 74 and 75 were both 220 feet wide along the Corps of Engineers white line.
Because the Carters owned the lot across the road from the Lindhursts’ lot, Mr. Carter testified that he was interested in purchasing Lot 75 from the Lindhursts. Around October 2005, after the Bronakow-skis cut the trees on Lot 75, Mr. Carter contacted the Lindhursts and expressed his desire to purchase Lot 75. Mr. Carter prefaced his offer with the fact that despite his interest in the lot, he did not want to get involved in a property dispute or a lawsuit. When asked if the removal of the trees on the Lindhurst property greatly improved the view of the lake from the house that the Bronakowskis lived in originally, Mr. Carter agreed that there was no question that it had. Moreover, Mr. Carter | ^responded “yes” when asked if the clearing improved the view of the lake on Lot 74, where the Bronakowskis’ current house was located. Mr. Carter stated that his opinion was based on his familiarity with the views from Lots 73, 74, and 75.
David Swyhart testified that he also lived in the Hillcrest Subdivision. He explained that he met Mr. Lindhurst twelve to fourteen years ago. Swyhart testified that he could see the Lindhursts’ property from his front porch and that he was aware of where the boundaries of most of the lots were located. He first met the Bronakowskis eight or nine years prior to the trial. He and Mr. Bronakowski played cards, fished, played golf, and cooked out together. He explained that before purchasing Lot 74, the Bronakowskis lived in a house on Lots 67 and 68. He agreed that he and Mr. Bronakowski spent a lot of time together. Mr. Swyhart related an incident that occurred when they were sitting on the porch of the Bronakowskis’ home on Lots 67 and 68. Mr. Swyhart testified that he had teased Mr. Bronakow-ski about having “the prettiest view of 8 mail boxes [he] had ever seen.” It was | (¡because the “whole side of the road from the resort property clear up to Vance road [was] all timber” that Mr. Swyhart had encouraged the Bronakowskis to buy Lot 74. Mr. Swyhart testified that he and the Bronakowskis walked the boundaries of Lot 74 together, and that together they identified where the survey pins were located. There was no question in Mr. Swy-hart’s mind that the Bronakowskis knew where the survey pins for Lot 74 were located.
Eventually, the Bronakowskis did buy Lot 74. Mr. Swyhart testified that he and Mr. Bronakowski did some clearing on Lot 74 and that they cleared trees across the line onto the Lindhursts’ property. Their goal was to try and get a lake view for the Bronakowskis; however, their efforts were rather unsuccessful. Afterwards, while visiting on the front porch, Mr. Bronakow-ski told Mr. Swyhart that he had “knocked out a few more trees.” Mr. Swyhart knew that the trees Mr. Bronakowski referred to were those located on the Lindhursts’ property. When asked if there were any other occasions when Mr. Bronakowski told Swyhart about removing more trees, Swyhart responded, “I don’t know if it ever came up again.... I think it might have.”
Mr. Swyhart testified that in October 2005, he saw the bulldozers on the Lin-dhursts’ property, which was when Mr. Swyhart learned that the Bronakowskis were building a new home. Mrs. Lin-dhurst, in fact, called Mr. Swyhart to “ask what was going on” on her property. Mr. Swyhart testified that he told Ms. Lin-dhurst to call Mr. Bronakowski about it. She did. During the call, she advised Mr. Bronakowski to “stay off [her] property.” Mr. Swyhart testified that within a day or so, he heard the bulldozers again. When he approached one of the workers and gave him the phone with Mrs. Lindhurst on the line, the |7worker informed her that he had been instructed to clean up the Lindhursts’ property. Mr. Swyhart testified that the Bronakowskis had not spoken to him or to his wife in the past three years. The Bronakowskis had ceased speaking to the Swyharts following a disagreement between Mr. Bronakowski and
Mr. Lindhurst testified that when visiting his property in 2003, he noticed that the tops of some trees had been cut and grass clippings had been dumped on his property. At that point, he told the Bro-nakowskis to stay off of his property. In October 2005, he and Mr. Bronakowski had what he described as a heated conversation, during which Mr. Lindhurst again told Mr. Bronakowski to stay off of his property. When Mr. Lindhurst arrived on the property after learning of the 2005 tree cutting, he discovered “[a] lot of | «devastation.” He took measures such as taping off the property with caution tape and taking numerous photographs. He testified that he had not given anyone permission to clear any of the timber from his property. He stated that not all of the property had been cleared at once by the bulldozers. It appeared to him that the clearing had been “done a little at a time, methodically.”
Mr. Bronakowski testified that he and his wife purchased their house on Lots 67 and 68 in the Hillcrest Subdivision for $102,000 in 2000 or 2001. They sold the house on Lots 67 and 68 in September 2007 (two months prior to the trial) for $175,000. He testified that he put $40,000 into the house on Lots 67 and 68, but admitted to making a profit of $30,000
Judith Bronakowski testified that in 2004 — prior to clearing the land on Lot 74 to build their house — Mr. Swyhart had organized clearing on Lot 74 with his friends and family members. She also testified that she and Mr. Bronakowski decided to build a home on Lot 74 in the summer of 2005. She admitted that they did not have a survey done before clearing the land. After she and Mr. Bronakowski cleared trees from the Lindhursts’ property in 2005, she received a message that Mrs. Lindhurst had tried to fax her at work when she was out of town. Mrs. Bronakowski returned Mrs. Lindhurst’s call, and she stated | inthat the first couple of conversations she had with Mrs. Lin-dhurst were amicable. She told Mrs. Lin-dhurst that they planned to have a survey done. After the survey was concluded, the next telephone call between Mr. Brona-kowski and the Lindhursts was less than amicable. She stated that she and Mr. Bronakowski were “astonished” when they saw the survey and realized the extent of their encroachment on the Lindhursts’ property. She admitted that she and Mr. Bronakowski were not happy with their view of the lake from Lots 67 and 68, which was why they purchased Lot 74.
At the conclusion of the testimony and evidence, the jury after deliberation returned with a verdict in favor of the Lin-dhursts. The jury awarded $592.85 in compensatory damages and $25,000 in punitive damages. The Bronakowskis filed a motion for judgment notwithstanding the verdict or alternatively for remittitur or a new trial. Their motion was deemed denied. This appeal followed.
I. Insufficient Evidence To Support the Punitive Damages Award
On appeal, the Bronakowskis first contend that there was insufficient evidence to support an award of punitive damages. At the close of the Lindhursts’ case, counsel for the Bronakowskis made a motion for a directed verdict. In that motion he stated:
I need to make a motion now. Judge for purposes of making a record I need to make a directive verdict motion on punitive damages of plaintiffs complaint. The plaintiffs haven’t set forth a lick of proof to show some sort of conspiracy, plan, anything along those- lines that my client has been acting in a way punitive damages are appropriate or be obtained. My client silently fell in these trees when no one else to know about it and in order to make something work here they just haven’t met their burden of proof and the Courts directive on the punitive damage portion of this complaint.
|nThe trial court denied the motion, stating- that “There’s enough for the jury to decide.” Counsel for the Bronakowskis,
The supreme court has also recently held that an appellant waives its right to question the sufficiency of the evidence to support a punitive-damage award if it does not make the proper directed-verdict motions. Advocat, Inc. v. Sauer,353 Ark. 29 , 49,111 S.W.3d 346 , 357 (2003):
Appellants’ first argument that there was insufficient evidence to support the award of punitive damages in this case is not preserved for this court’s review. Arkansas Rule of Civil Procedure 50(e) requires that where “there has been a trial by jury, the failure of a party to move for a directed verdict at the conclusion of all the evidence, because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.”
[[Image here]]
Because the appellants failed to renew their motion for directed verdict following the conclusion of the Sauer Estate’s rebuttal, they waived any question pertaining to the sufficiency of the evidence to support the jury’s award of punitive damages.
See also Prendergast v. Craft,
II. Punitive Damages Award Was Excessive Under State Law and the Standards Set Forth by the Supreme Court in Gore
Second, the Bronakowskis assert that the punitive-damages award was excessive under state law and violated their due process rights as established by BMW of North America, Inc. v. Gore,
Under state law, when considering the issue of remittitur, we follow this standard of review:
When considering the issue of remittitur of punitive damages, we review the issue de novo. See Smith v. Hansen,323 Ark. 188 ,914 S.W.2d 285 (1996). We consider the extent and enormity of the wrong, the intent of the party committing the wrong, all the circumstances, and the financial and social condition and standing of the erring party. See United Ins. Co. of America v. Murphy,331 Ark. 364 ,961 S.W.2d 752 (1998); McLaughlin v. Cox,324 Ark. 361 ,922 S.W.2d 327 (1996). Punitive damages are a penalty for conduct that is maliciousor perpetrated with the deliberate intent to injure another. See United Ins. Co., swpra. When punitive damages are alleged to be excessive, we review the proof and all reasonable inferences in the light most favorable to the appellees, and we determine whether the verdict is so great as to shock the conscience of this court or to demonstrate passion or prejudice on the part of the trier of fact. See Houston v. Knoedl, 329 Ark. 91 ,947 S.W.2d 745 (1997); Collins v. Hinton,327 Ark. 159 ,937 S.W.2d 164 (1997). It is important that the punitive damages be sufficient to deter others from comparable conduct in the future. See McLaughlin v. Cox, supra.
Routh Wrecker Service, Inc. v. Washington,
Here, the jury could have concluded that the Bronakowskis knowingly cleared four-tenths of an acre of the Lin-dhursts’ lot. The testimony supports the conclusion that the Bronakowskis knew the location of the property boundaries and corners and that the survey pin and the Corps of Engineers markers were clear and visible. There was also testimony that there was no clear view of the lake from the Bronakowskis’ lots before they cleared the Lindhursts’ property. The removal of the trees from the Lindhursts’ lot improved the view of the lake not only from the house that the Bronakowskis lived in at that time, but also greatly improved the view of the lake from the house where the Bronakowskis currently live. Mr. Brona-kowski admitted at trial that he cut down trees on the Lindhursts’ property. Mrs. Bronakowski admitted that they sold Lots 67 and 68 and bought Lot 74 because they were unhappy with the view they had of the lake. In addition to the improved view of the lake that the Bronakowskis enjoy from their new home, the jury could have concluded that the $30,000 profit, over and above the cost of improvements to the property, realized by the Bronakowskis on the sale of their home on Lots 67 and 68 was a direct result of their intentional wrongful clearing of the Lindhursts’ property.
The Bronakowskis next assert that the award was in excess of the due process standards established by BMW of North America, Inc. v. Gore,
11fiThe first guideline we consider is the degree of reprehensibility. In considering the degree of reprehensibility, the United States Supreme Court has expanded on the factors to be considered: whether the harm caused was physical as opposed to economic; whether the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; whether the target of the conduct was financially vulnerable; whether the target of the conduct involved repeated actions or was an isolated incident; and whether the harm was the result of intentional malice, trickery, or deceit, or mere accident. See Mackey,
It is certain that the Lindhursts suffered economic harm; however, the harm done here was not purely economic. The Lin-dhursts stipulated that the value of the trees, or stumpage, was $592.85, and this is the amount of compensatory damages they were awarded by the jury. In other words, had the Lindhursts decided to sell the trees for timber they could have expected to received $592.85 for the logs. When assessing the harm they have incurred the jury could take into account that some of the trees were sixty feet tall, and impossible to replace. Likewise they could take into account that clearing almost one half of the property of all vegetation rendered the Lindhursts’ desired use of the property (as a wooded setting for a future retirement home) impossible.
We acknowledge that the harm caused to the Lindhursts did not constitute bodily injury; we nevertheless conclude that the harm done here was much more than purely 11f,economic injury. The Bronakow-skis, on more than one occasion, entered the Lindhursts’ property and cleared, down to the dirt, approximately forty percent of the Lindhursts’ future retirement homesite. The Lindhursts testified that, given their intended use of the property, the privacy afforded by the trees on the lot was very important to them. In fact, they had never removed a tree from the lot; rather, they had planted additional trees. Some trees removed by Mr. Bronakowski were two feet in diameter and sixty feet tall; the value of these trees to the Lin-dhursts could not be calculated in terms of boardfeet. They were irreplaceable to the Lindhursts for precisely the same reason the trees were annoying to the Bronakow-skis — because they were blocking the neighbors’ view. The Bronakowskis’ actions forced the Lindhursts to give up their plans to retire to the property and ultimately to sell it.
Additionally, the tree cutting was not an isolated incident. Mr. Swyhart’s testimony supports the conclusion that on at least two other occasions the Bronakowskis knowingly cut trees on the Lindhursts’ property in order to improve their view. Mr. Lindhurst confirmed that there was an occasion, prior to October 2005, when he
|17Finally, there was testimony that the tree cutting was intentional and a result of malice on the part of the Bronakowskis and was not merely an accident. More than one witness testified that the Corps of Engineers markers were clearly marked. Testimony showed that Lot 74 had been previously surveyed by the Carters and that the Bronakowskis were aware of the location of the corner of Lot 74. Mr. Bronakowski admitted to cutting down trees on the Lindhursts’ lot in 2003. He also admitted that between the 2003 incident and October 2005, he cut down yet more trees on the Lindhursts’ property. Furthermore, the Lindhursts were absentee landowners and as such were particularly vulnerable to the Bronakowskis’ systematic assault on their property. They did not witness the cutting of their trees and were powerless to prevent it. They could only seek redress after the fact.
There was evidence that prior to October 2005, the Bronakowski Lots 67 and 68 had no view of the lake. Mrs. Bronakow-ski admitted that they purchased Lot 74, which was in direct line with the lake from Lots 67 and 68, because they were not happy with their view of the lake from Lots 67 and 68. The jury could conclude from the evidence that the $30,000 profit the Bronakowskis received from the sale of Lots 67 and 68 was a direct result of the tree clearing on the Lindhursts’ property. It is well settled that no sane person should be permitted to profit by his own wrong or criminal acts. See Wright v. Wright,
Generally, the law regards real property as unique. See generally Shelton v. Keller,
The second guideline to consider is the ratio of the award to the actual harm inflicted on the Lindhursts. “Of course, we have consistently rejected the notion that the constitutional line is marked by a simple mathematical formula, even one that compares actual and potential damages to the punitive award.” Gore,
The award must, however, “be based on the facts and circumstances of the defendant’s conduct and the harm to the plaintiff.” Campbell,
The third guidepost in Gore is the disparity between the punitive damages award and the civil or criminal penalties authorized or imposed in comparable cases. See Union Pacific R.R. Co. v. Barber,
In addition, Arkansas Code Annotated section 18-60-102(a)(l) (Repl.2003) provides treble damages to be paid by any person who trespasses and cuts down, injures, destroys, or carries away any tree placed or growing for use or shade or any timber standing or growing on the land of another person. We conclude that the Bronakowskis had ample notice that their actions could result in a penalty of $25,000 punitive damages.
IssFor the foregoing reasons, we hold that the trial court did not err in denying the Bronakowskis’ motion for judgment notwithstanding the verdict, a new trial, or remittitur.
Affirmed.
Notes
. In response to a question on direct-examination, Mr. Bronakowski admitted that he made a $30,000 profit on the sale of the house on Lots 67 and 68; however, the record reveals that Mr. Bronakowski also testified that he purchased the house on Lots 67 and 68 for $102,000, sold it for $175,000, and claimed improvements of $40,000, resulting in a profit of $33,000.
. The concurring opinion notes that no one testified that the $30,000 profit that the Bro-nakowskis gained on the sale of their home was wholly attributable to the view and that property values tend to increase over time. While true, this observation overlooks the fact that the Bronakowskis actually received $73,000 more than they paid for their home (after putting $40,000.00 into it — per Mr. Bro-nakowski’s testimony, which the jury was not required to believe). Property values do tend to go up, but rarely does anyone recoup one hundred percent of the cost of improvements to an existing home. We find only that the jury could have concluded, on the evidence before it, that the additional $30,000 resulted from the Bronakowskis’ conduct.
. The concurrence takes issue with the conclusion that both the Bronakowskis had notice that they could each be subject to criminal penalties. Clearly, Mr. Bronakowski was the principle trespasser. We do not suggest that the proof established that Mrs. Brona-kowski was an accomplice beyond a reasonable doubt. This is not a criminal case. However, the facts that the clearing took place over a period of years, that the Brona-kowskis ultimately hired a bulldozer operator to clear a more substantial portion of the lot that the bulldozer continued the clearing after Mrs. Bronakowski’s telephone discussion with Mrs. Lindhurst is certainly suggestive of joint participation. We hold only that both of the Bronakowskis were on notice that they could be subject to the applicable criminal penalties.
Concurrence Opinion
concurring.
I concur in our judgment affirming the punitive damages awarded. But I do not join the court’s opinion because I part company with my colleagues on some of the analysis.
1. On the sufficiency of the evidence supporting punitive damages, I agree that the Bronakowskis waived this point by failing to seek a directed verdict at the close of all the evidence. If we could reach the merits, the evidence was more than sufficient to go to the jury.
2. On excessiveness under state law, the punitives verdict passes muster for the reasons stated by the court with one exception. The record contains no evidence that the Bronakowskis’ $30,000.00 profit from the sale of their home on Lots 67 and 68 was wholly attributable to the lake view they secured by clearing about one third of the Lindhursts’ lot. No one testified about the dollar value of a lake view. It is a reasonable inference from the proof that some of the Bronakowskis’ profit was attributable to the view. But real property
3. On the federal due-process question, the award is at the constitutional line but — applying the three familiar guideposts — not over it. BMW of North America, Inc. v. Gore,
Reprehensibility. Mr. Bronakowski’s repeated acts of cutting trees on the Lin-dhursts’ lot, which culminated in a bulldozer scraping four-tenths of an acre down to the dirt, were in the middle range of reprehensible acts. This was not a routine commercial transaction polluted with trickery, the low end. E.g., Jim Ray,
Reprehensibility is the most important guidepost. Jim Ray,
Ratio. The Bronakowskis make their strongest push on this guidepost. The ratio between the compensatory and punitive damages is huge. About 42 to 1 — the greatest ratio (as far as I can tell) ever presented in an Arkansas case. Of course every punitive-damage award must be evaluated for constitutional reasonableness on its own facts. State Farm Mut. Auto. Ins. Co. v. Campbell,
We have before us, I conclude, the case that the Supreme Court has repeatedly hypothesized: small economic damages, coupled with hard to quantify noneconomic harm, caused by particularly egregious intentional acts. Campbell,
Mathias is the bed bug case. A Chicago hotel decided that, instead of solving the infestation, it would simply ignore the bug problem, giving refunds and moving guests | g^around when necessary. The jury awarded two guests $5,000.00 each in compensatory damages and $186,000.00 each
Mathias’s reasoning is persuasive here for three reasons. First, Mr. Bronakow-ski’s “behavior was outrageous but the compensable harm done was slight and at the same time difficult to quantify because a large element of it was emotional.”
Third, we should recognize that, absent the possibility of substantial punitive damages, plaintiffs situated like the Lindhursts will have difficulty paying for cases like this one. The game would not be worth the candle if (as the Bronakowskis suggest) punitive damages were capped at a single-digit ratio, approximately $5,300.00. Paying counsel on an hourly basis would likely consume almost all the damages, compensatory and punitive, leaving little for the injured parties. As a contingency-fee matter, the numbers are not enticing either. Considered as a matter of deterrence, one of the twin guiding purposes of | 2r,punitive damages, the economic realities of the litigation bear on what ratio comports with due process. Mathias,
Comparable Penalties. My disagreement with the court is deepest on this guidepost. I agree with the Bronakowskis that the highest criminal penalty available in the circumstances was $10,000.00. This is the penalty for first degree criminal mischief as a Class C felony because actual damages exceeded $500.00. Ark.Codé Ann. §§ 5 — 38—203(b)(1), 5-4-201(a)(2) (Repl.2006 & Supp.2007). I see no evidence of record, however, that Mrs. Bronakowski participated in planning these misdeeds or in clearing part of the Lindhursts’ land. So there should be no stacking a potential second felony penalty for her. As the court notes, Mr. Bronakowski could also face a fine of up to $300.00 and imprisonment for up to six months for cutting timber without a survey. Ark.Code Ann. § 15-32-101(d) (Repl.2003). Imprisonment for what happened here, it seems to me, is unlikely. Finally, the General Assembly has fixed an amount three times the compensatory damages as the proper penalty in trespass/timber-cutting cases. Ark.Code Ann. § 18-60-102(a)(l) (Repl. 2003). We owe all these legislative judgments “substantial deference.” Gore,
Beyond whether there was a second felony in prospect for Mrs. Bronakowski, I differ with the court on other points. The court speculates a bit by looking back to the prior |27instances of clearing. The record establishes that they happened, but it does not show the value of the timber cleared in those instances. We therefore cannot say with any certainty what amount of criminal penalties would apply beyond the modest fine of failing to survey before cutting. I am also unpersuaded by the court’s observation that the mere potential
Considering all the statutes, I see the comparable civil and criminal penalties as about $12,000.00. This guidepost therefore favors reducing the punitive award.
On de novo review, we must evaluate the punitive damages through the guideposts for reasonableness to ensure that they are “based upon an application of law, rather than a decisionmaker’s caprice.” Campbell,
The jury’s punitive award is “strong medicine.” Gore,