author: KAREN R. BAKER, Judge. D.P. MARSHALL JR., Judge,

text:
    2009 Ark. App. 513
    John J. BRONAKOWSKI and Judith C. Bronakowski, Appellants, v. John R. LINDHURST and Lisa Lindhurst, Appellees.
    No. CA 08-1151.
    Court of Appeals of Arkansas.
    June 24, 2009.

      Davis Law Firm, by: Steven B. Davis, Harrison, for appellants.
    The Law Offices of Christopher O’Hara Carter, P.A., by: Christopher O’Hara Carter, Yellville, for appellees.
   KAREN R. BAKER, Judge.

| 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 | ^nothing but dirt.” Mrs. Lindhurst identified some of the trees that had been removed as two feet in diameter and sixty-feet tall. She expressed her opinion that those trees were irreplaceable in either her lifetime or her daughter’s lifetime. Regarding the effect that the razing of the trees had on the valuation of her property, she testified Mr. Bronakowski’s removal of the trees on their lot had caused the value of the land to them on a personal level to decrease. More specifically, she testified that the purpose behind the purchase of the land for a future retirement home no longer existed. She stated, “We had picked this piece of property as I had mentioned, as a totally wooded lot. That was the plan, that was our retirement plan where we have some privacy. That was taken away from us.” She explained that she had searched with her husband for two years for a replacement piece of property, but they had not been successful in finding such a property. It was her belief that the Bronakowskis’ actions were intentional, as the Corps of Engineers white line markers were clear and not easily missed. In her opinion, not only had the Bronakowskis’ actions destroyed the aesthetic quality and diminished the value of the land to them, but it had also destroyed her and Mr. Lindhurst’s expectations that they could live out their retirement years peacefully on Lot 75. Mrs. Lindhurst felt that under the circumstances, they were unable to enjoy their property with the company of the Bronakowskis as neighbors. As a result, they planned to sell Lot 75.

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.

Mr. Carter testified that his relationship with the Bronakowskis changed following an incident around Thanksgiving 2006. That Thanksgiving weekend, as Mr. Carter and his wife were walking along McBride Road, they heard a car coming from behind them accelerating as it came toward them. The Carters moved quickly toward the ditch. When Mr. Carter turned around, he saw that the driver of the accelerating vehicle was Mr. Brona-kowski. Mr. Carter explained that Mr. Bronakowski came so close to him with his car that if he “had stuck [his] hand out [he] would have lost [his] hand and broken [his] arm.” Mr. Bronakowski and Mr. Carter had not spoken since this incident.

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. Swyhart’s brother. However, Mr. Swyhart testified that in November of 2005, Mr. Bronakowski approached Swy-hart in Swyhart’s yard, and “he slid to a stop, jumped out of his car, waiving a piece of paper and started threatening [Mr. Swyhart] and telling [Mr. Swyhart] to “stay out of his G* *d* * *ed business.” Mr. Bronakowski left Swyhart’s property that day. Mr. Swyhart testified that subsequently, on several occasions, Mr. Bro-nakowski would try to “veer over in [his] lane” to try and run him off the road. As a result, Mr. Swyhart filed a formal complaint at the sheriffs office against the Bronakowskis. Mr. Swyhart testified that he would agree with the letter from Mark Cutrer of the Arkansas Forestry Commission that four tenths of an acre of the Lindhursts’ timber acreage was gone; however, he did not agree that the value of the timber cut was only $592.85. He further testified that he was certain that the Bronakowskis knew that they were cutting trees on the Lindhursts’ property.

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 on the sale over and above the cost of the improvements he claimed. In 2002 or 2003, the Bronakowskis purchased Lot 74, which was located between Lots 67 and 68 and the waterfront. He testified that when he purchased Lot 74, it had nothing to do with getting a better view for the house that sat on Lot 67 and 68. He testified that in 2003, he and other persons cleared an area of land along the road. He testified that they all thought the land went straight down instead of at a curve. He admitted to mistakenly cutting down some of the Lindhursts’ trees. He said that he apologized to Mr. Lindhurst after the incident and that Mr. Lindhurst responded, “no problem.” He admitted that between that incident and October 2005, he cut down more trees before he had it surveyed. However, he later had | flMr. Henderson survey Lot 74, and Mr. Henderson told Mr. Bronakowski that he was “in the wrong.” Mr. Bronakowski admitted to cutting two big “trees at the bottom of the hill before [he] had it surveyed.” He agreed that the forestry report showed that four-tenths of an acre had been cleared, which would be sixty feet over on the Lindhursts’ property, but he denied that he removed the trees. Instead, he stated that Mr. Swyhart and his friends were the people that had cleared that portion of the Lindhursts’ property. And, all he did “was burn.” He stated that he did not touch the property after the survey was complete and that he was sorry that he cut the trees down. Mr. Bronakowski testified that he was unaware of the location of the survey markers at the bottom of the property until the surveyor placed them there at the time of his survey. He also testified that he was unsure of where his property cornered with the Corps of Engineers’ property. He disputed that Mr. Swyhart ever showed him any survey markers at the bottom of the property. When asked if in his opinion he owed the Lindhursts anything for the destruction of the trees on their property, he responded, “Not a thing.”

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, however, failed to renew the motion for a directed verdict at the close of the evidence. In Superior Federal Bank v. Mackey, 84 Ark.App. 1, 20, 129 S.W.3d 324, 336 (2003), this court held:

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.”
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, 102 Ark. App. 237, 284 S.W.3d 104 (2008) (finding that Prendergast was procedurally barred from raising the issue of sufficiency of the evidence to support a jury award for punitive damages where Prendergast made no directed-verdict motion on the claim for punitive damages, nor did he object to the jury being instructed on punitive damages). Because the Bronakowskis failed to renew their motion for a directed verdict at the close of the evidence, they waived any challenge to the sufficiency of the evidence. However, had they properly preserved this issue for our review we note that sufficient evidence supported the trial court’s decision to submit the issue of punitive 1 ^damages to the jury. Certainly, the jury could and did find from the testimony presented that the Bronakowskis intentionally cut trees from and caused the clearing of the Lindhursts’ property in order to obtain a view from their lots to the lake. Additionally, the evidence supports the conclusion that the Bronakowskis undertook these actions despite being repeatedly warned to stay off of the Lin-dhursts’ property and that they ultimately profited from their wrongful actions.

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, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996).

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 malicious or 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, 335 Ark. 232, 240-41, 980 S.W.2d 240, 244 (1998).

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. In light of these facts, we |, ¿conclude that the verdict granting the Lindhursts punitive damages of $25,000 is not so great as to shock the conscience of the court. In fact, we find it is impossible to say that an award of punitive damages, which the jury could have concluded was at least $5,000 less than the profit gained by the tortfeasers in committing the wrong, exceeds what is necessary to sufficiently deter others from comparable conduct in the future.

The Bronakowskis next assert that the award was in excess of the due process standards established by BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). In Gore, the United States Supreme Court held that the due process clause of the Fourteenth Amendment prohibits a state from imposing grossly excessive punishment on a tortfeasor. Routh Wrecker Service, 335 Ark. at 242, 980 S.W.2d at 245 (citing Gore, 517 U.S. at 582, 116 S.Ct. 1589). In Gore, “[t]he Court set out three guidelines for determining when an award would violate due process: (1) the degree of reprehensibility of the defendant’s conduct, (2) the award’s ratio to the actual harm inflicted on the plaintiff, and (3) a comparison of the punitive damages to the civil or criminal penalties that could be imposed for comparable conduct. The Court said that there was no mathematical bright line for determining gross exces-siveness and that ‘low awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages.’ ” Routh Wrecker, supra (quoting 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, 84 Ark.App. at 21, 129 S.W.3d at 337 (citing State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003)).

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 noticed that the tops of some of his trees had been cut and grass clippings had been dumped on his lot. He then told the Bro-nakowskis to stay off of his property. They did not. The record demonstrates that some clearing had been done a little at a time over a period of several years. In October of 2005 the Bronakowskis once again failed to heed the Lindhursts’ warning to stay off their property. Instead, Mr. Bronakowski told Mrs. Lindhurst to “sue [him],” and within a couple of days, the bulldozers were back on the Lin-dhursts’ property and the clearing continued.

|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, 248 Ark. 105, 449 S.W.2d 952 (1970) (stating that in an action to quiet title to lands, where the first of two sons murdered the father and mother, title of all lands of father and mother who were murdered vested in son who did not murder them); see also Middleton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001) (stating that it is a familiar principle of law that one who 11swrongfully kills another is not permitted to share in the other’s estate, to collect his life insurance, or otherwise profit by the crime; one who wrongfully kills will not be allowed to profit by it).

Generally, the law regards real property as unique. See generally Shelton v. Keller, 24 Ark.App. 68, 748 S.W.2d 153 (1988); see also Arkansas State Highway Commission v. Sargent, 241 Ark. 783, 791, 410 S.W.2d 381, 386 (1967) (stating that “in considering testimony based on comparable sales, it must be remembered that no two tracts of real estate are identical” and that “[rjeasonable latitude must be allowed in evaluating sales and adjusting or compensating for differences in similar lands”). The property at issue here was unique and distinct lakefront property. The Lin-dhursts intended to use this property for a retirement home, and the Bronakowskis’ conduct rendered it unsuitable to the Lin-dhursts for that purpose.

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, 517 U.S. at 582, 116 S.Ct. 1589 (citing TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 448, 458, 118 S.Ct. 2711, 125 L.Ed.2d 366 (1993)). Indeed, low awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages. Id. A higher ratio may also be justified in cases in which the injury is |inhard to detect or the monetary value of noneco-nomic harm might have been difficult to determine. Id. In Gore, the Court noted that in most cases, the ratio will be within a constitutionally acceptable range, and re-mittitur will not be justified on this basis. Id. at 583, 116 S.Ct. 1589. While we acknowledge that the Supreme Court has noted that few awards exceeding a single-digit ratio would satisfy due process, State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003), “we have approved ratios greater than a single digit” in certain cases. See Jim Ray, Inc. v. Williams, 99 Ark.App. 315, 260 S.W.3d 307 (2007) (acknowledging this court’s approval of ratios greater than a single digit in cases of extreme emotional distress or humiliation, a significant disparity of bargaining power, ongoing racial animus that destroyed a business, and a “nightmarish” situation involving an improper arrest). See, e.g., Routh Wrecker Serv., 335 Ark. at 241-42, 980 S.W.2d at 244-45 (1998); Aon Risk Serv. v. Mickles, 96 Ark.App. 369, 379, 242 S.W.3d 286, 294 (2006); Superior Federal Bank v. Jones & Mackey Constr. Co., LLC, 93 Ark.App. 317, 330, 219 S.W.3d 643, 653 (2005).

The award must, however, “be based on the facts and circumstances of the defendant’s conduct and the harm to the plaintiff.” Campbell, 538 U.S. at 425, 123 S.Ct. 1513. Furthermore, not only did the Bro-nakowskis knowingly remove trees from the Lindhursts’ lakefront property, the removal of these trees greatly benefitted the Bronakowskis by providing a view of the lake on Lots 67, 68, and 74. This allowed them to profit from the view on the sale of Lots 67 and 68 while still enjoying the view from Lot 74; the timber cut is irreplaceable in the parties’ lifetimes; and the purpose behind the Lindhursts’ purchase of this retirement property is thwarted. Under these facts, the $25,000 award of punitive Undamages is not breathtaking, nor does it “raise a suspicious judicial eyebrow,” see Gore, 517 U.S. at 583, 116 S.Ct. 1589. We conclude that the award is not so grossly excessive as to violate due process.

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, 356 Ark. 268, 149 S.W.3d 325 (2004). These comparable sanctions represent the notice component in our due-process review. Jim Ray, Inc., 99 Ark.App. at 324, 260 S.W.3d at 312 (citing Superior Federal, 93 Ark.App. at 330, 219 S.W.3d at 653). In this case, when the punitive damages are compared to the civil or criminal penalties that could be imposed for comparable conduct, the ratio of punitive damages to compensatory damages becomes less significant. The most severe criminal charge the Bronakowskis could face for their conduct is, they concede, criminal mischief in the first degree under Arkansas Code Annotated section 5-38-203 (Repl.2006). The Bronakowskis further admit that if the amount of actual damages is more than $500, as was stipulated in this case, then criminal mischief in the first degree can be a Class C felony. See Ark.Code Ann. § 5-38 — 203(b)(1). The maximum fine for a Class C felony is $10,000. See Ark.Code Ann. § 5-4-201(a)(2) (Supp.2007). Each of the Bronakowskis could have been charged with a Class C felony and with a potential fine of $10,000 for the cutting of the trees in the most recent incident. Moreover, the Bronakowskis concede that Arkansas Code Annotated section 15-p2-101(a)(l)PJ and (2) (Repl.2003) requires that any person who desires to cut and remove any timber shall cause the land to be surveyed and marked or rely in good faith on an existing marked line or established corner. A violation of this provision is a misdemeanor, and the person shall be fined, for each offense, in any sum not less than $25 nor more than $300, and may be imprisoned in the county jail not more than six months. Ark.Code Ann. § 15-32-101(d). Moreover, the testimony reveals at least three incidents since 2003. While the Bro-nakowskis did not stipulate to the specific amount of damages they caused during the earlier incidents, this is irrelevant to our review. The due process notice requirement is satisfied when, prior to engaging in the conduct, the potential sanctions are known.

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.

VAUGHT, C.J., agrees.

MARSHALL, J., concurs.

D.P. MARSHALL JR., Judge,

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 values (usually) tend to increase over time — as demonstrated by the $23,000.00 profit that 123the Lindhursts were under contract to make on their lot even after Mr. Bronakowski’s clearing. After considering all material facts in favor of the Lindhursts under the governing state law, however, the punitive damages do not shock my conscience or demonstrate a jury driven by passion or prejudice. Routh Wrecker Service, Inc. v. Washington, 335 Ark. 232, 240-41, 980 S.W.2d 240, 244 (1998).

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, 517 U.S. 559, 574-75, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996); Jim Ray, Inc. v. Williams, 99 Ark.App. 315, 321, 260 S.W.3d 307, 310 (2007). Our review is de novo. Jim Ray, 99 Ark.App. at 321, 260 S.W.3d at 310.

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, 99 Ark.App. at 321-23, 260 S.W.3d at 311. Nor was this a calculated decision to market a product that would hurt people, the high end. E.g., Arrow Int’l, Inc. v. Sparks, 81 Ark.App. 42, 55-56, 98 S.W.3d 48, 57-58 (2003). I agree with the court: as absentee landowners, the Lindhursts were vulnerable in a way that the law should recognize to the Bronakowskis’ repeated trespasses. I agree that the harm done was more than purely economic: the Lindhursts’ retirement plans were torpedoed. I agree too that the Bronakowskis profited from their wrong: they have a better |24lake view from their new home-site; and by creating a lake view for their former home before selling it, they made more money than they otherwise would have.

Reprehensibility is the most important guidepost. Jim Ray, 99 Ark.App. at 322, 260 S.W.3d at 311. In light of our cases on the range of reprehensible conduct, and all the particulars here, Mr. Bronakowski’s repeated and intentional clearing was of middling reprehensibility.

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, 538 U.S. 408, 424-25, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). But this ratio must give pause.

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, 538 U.S. at 425, 123 S.Ct. 1513; Gore, 517 U.S. at 582, 116 S.Ct. 1589. Our court has also recognized that this kind of case might arise. Jim Ray, 99 Ark.App. at 323, 260 S.W.3d at 312. We relied in part in Jim Ray on a Seventh Circuit case that confronted a similar situation—Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672 (7th Cir.2003). We should look again to that decision in evaluating this case.

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 in punitive damages. 347 F.3d at 674. The ratio was more than 37 to 1. The Seventh Circuit approved this ratio, concluding that it was necessary to punish and deter the hotel and deter others. 347 F.3d at 676-77.

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.” 347 F.3d at 677. The parties stipulated to the Lindhursts’ loss in terms of lumber. But that modest amount — less than $600.00— does not reflect either the actual value of sixty-foot trees or the resulting loss of privacy and neighborhood harmony to which the Lindhursts were looking forward in retirement. Second, the law should not allow the Bronakowskis to profit from their wrong. 347 F.3d at 677. They got a better lake view for their new house and a lake view for their old one. The law should deter them, and others, from similar self help.

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, 347 F.3d at 677. When confronted with his wrongdoing, Mr. Bronakowski told Mrs. Lindhurst “sue me.” Without the prospect of punitive damages in the range awarded here, that retort will be a safe haven.

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, 517 U.S. at 583, 116 S.Ct. 1589.

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 for “sanctions” satisfies the notice element of due process inherent in this guidepost. Jim Ray, 99 Ark.App. at 324, 260 S.W.3d at 312.

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, 538 U.S. at 418, 123 S.Ct. 1513 (internal quotation omitted). We consider the analysis under all the guideposts. The reprehensibility of Mr. Bronakowski’s conduct is “[p]erhaps the most important indi-cium of the reasonableness” of the award. Gore, 517 U.S. at 575, 116 S.Ct. 1589. Mr. Bronakowski’s repeated clearing was reprehensible. It was in the middle of the range of reprehensible acts illustrated by our cases. While the ratio guidepost seems to promise the greatest objectivity because it is a matter of numbers, the Court has repeatedly rejected the notion that a certain ratio will always offend the Constitution. Campbell, 538 U.S. at 425, 123 S.Ct. 1513. This case demonstrates the wisdom of that flexible standard. A single-digit award would neither punish the Bronakowskis in an appropriate measure nor deter future similar misconduct by others. For the reasons articulated in Mathias, this kind |Mof huge ratio is constitutionally permissible in this kind of small-dollar case. The comparable-penalties guidepost supports a substantial re-mittitur. It is, however, the least important guidepost. Campbell, 538 U.S. at 428, 123 S.Ct. 1513. And we must evaluate the award by considering carefully all three guideposts as one whole.

The jury’s punitive award is “strong medicine.” Gore, 517 U.S. at 576-77, 116 S.Ct. 1589. But the egregiousness of Mr. Bronakowski’s repeated conduct, coupled with our law’s need to punish and deter similar conduct — especially when the compensatory damages are modest, convinces me that the $25,000.00 award is not grossly excessive. Our charge is “to police a constitutionally acceptable range, not a fixed point.” Jim Ray, 99 Ark.App. at 321, 260 S.W.3d at 310-11. This award is at the far edge of the constitutionally acceptable range for this kind of case. But it is not so large that it “enter[s] the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment.” Gore, 517 U.S. at 568, 116 S.Ct. 1589.

      . 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.


source: Caselaw Access Project

author: /s/ John D. Minton, Jr. Chief Justice

license: Public Domain

text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Joshua Michael ROBINSON, Respondent.
    No. 2010-SC-000569-KB.
    Supreme Court of Kentucky.
    Nov. 18, 2010.
   OPINION AND ORDER

The Board of Governors of the Kentucky Bar Association has recommended that Joshua Michael Robinson (KBA No. 89189) be suspended from the practice of law for thirty days for ethical violations charged in KBA File No. 17240. Robinson was admitted to practice law in Kentucky in 2002 but was suspended by order of this Court for non-payment of bar dues in December 2008 and has never been restored to membership. According to the Board, Robinson was also automatically suspended on April 20, 2010, under Kentucky Rules of Supreme Court (SCR) 3.166, after entering a guilty plea to a charge of Unlawful Wounding (a felony offense) in a West Virginia state court. Robinson’s bar roster address is listed as: 271 West Short Street, Suite 512; Lexington, Kentucky 40507. We agree with the Board’s recommendation.

On March 31, 2008, Lloyd Hallock paid Robinson $500.00 in cash to represent him in a case before the Madison District Court. Hallock also paid Robinson an additional $500.00 in cash before May 15, 2008. Hallock tried unsuccessfully several times to contact Robinson by telephone about the status of his case. Robinson sent Hallock some text messages that did not provide significant information about the case or any work that Robinson was doing on it. Robinson missed a scheduled court hearing on at least one occasion. Ultimately, he never appeared in court on Hallock’s behalf. Hallock hired another attorney to represent him in the Madison District Court case.

Shortly after Robinson was suspended for failure to pay bar dues in early December 2008, Hallock filed against Robinson a bar complaint, which the KBA received around the end of December 2008. Robinson responded to the bar complaint and provided a letter from Hallock in which Hallock indicated that Robinson had refunded $700.00 to Hallock and that Robinson had done some work on Hallock’s case that Hallock was unaware of when he filed the bar complaint. The letter also indicated that Hallock did not wish to go forward with his bar complaint after receiving the partial refund, which he characterized as “reasonable given the circumstances of our dispute.” The KBA contacted Hallock about the partial refund; and, according to a KBA memorandum in the record, “Mr. Hallock indicated that while he was generally not happy about it all, he did take what he could get as a refund.”

Despite Hallock’s purported wish not to proceed with the bar complaint, the Board states that “[o]nce a complaint is filed and investigated, consistent with SCR 3.160(1), the matter will be presented to the Inquiry Commission. A post-complaint ‘understanding’ between a Complainant and a Respondent does not alter the requirements of SCR 3.160(1).”

As proceedings continued, the KBA made numerous attempts to request documentation from Robinson, serve him with the Complaint and the Charge, and remind him of his obligation to file an answer. Despite apparent difficulties in serving or locating Robinson, Robinson eventually communicated with the KBA by telephone and indicated he would file a motion for leave to file a late answer; but, as the Board noted in its findings of fact, Robinson never filed an answer to the Charge:

By letter dated August 25, 2009, [Robinson] was requested to provide specific documentation regarding the account in which he deposited the advance fee paid by Mr. Hallock. The mailing sent to [Robinson’s] bar roster address was returned unclaimed on September 14, 2009. Service by Sheriff of the request and reminder letter was unsuccessful and was returned on October 7, 2009. Service was made upon the Executive Director on October 14, 2009, resulting in mailings to [Robinson’s] bar roster address and an alternate address being returned on October 18 and 23, 2009.
The request and reminder letter were signed for and by [Robinson] at an alternate address in Charleston, West Virginia, on November 12, 2009. [Robinson’s] bar roster address remains the address in Lexington, Kentucky[,] as reflected on his Response to the Complaint received June 1, 2009. Both the initial request for information and reminder letter informed Respondent that his failure to respond to the request for information could result in an additional charge of misconduct under SCR 3.130-8.1(b). Respondent did not tender a written response to the letter requesting information regarding where the advance fee received from Mr. Hallock had been deposited.
Service
The Complaint was mailed to [Robinson] on January 14, 2009[,] and was signed for by someone other than [Robinson.] Service by Sheriff was initiated on March 13, 2009, and while not returned, was acknowledged by [Robinson] in his Response filed June 1, 2009.
The Charge was sent to [Robinson’s] alternate address in Charleston, West Virginia, on March 26, 2010[,] and was returned unclaimed. Because the Sheriffs earlier return of the investigative letter reflected that [Robinson] was “Not Found in Fayette County” at his bar roster address, the Charge was also served on [Robinson] by Executive Director, pursuant to SCR 3.175(2)[,] on March 26, 2010[,] at his bar roster address. The Executive Director’s return of service reflects that delivery was'not successful. When an Answer was not timely filed, a reminder letter was sent to [Robinson] on April 15, 2010[,] at his bar roster address and was returned marked “Unable to Forward.” A reminder letter with a copy of the Charge was also sent to [Robinson] on April 15, 2010[,] at his alternate address in Charleston, West Virginia. This letter was not returned.
During the evening of April 27, 2010, [Robinson] left a voice message indicating he received a letter dated April 15th that mentioned a default being entered against him and stated that he wanted to submit something. [Robinson] was called the next morning at a number left in his message. [Robinson] indicated that the letter he received reflected this file number. [Robinson] was informed that, as indicated in the last paragraph of the letter, should he wish to file a late Answer, he would need to file a Motion with the Inquiry Commission with a tendered Answer. [Robinson] indicated that he would do so.
The Charge and reminder letter were served on [Robinson] by Executive Director, pursuant to SCR 3.175(2)[,] on June 9, 2010[,] at [Robinson’s] alternate address and another address in Charleston, WV, that was provided by the postal service on an earlier returned mailing. The Executive Director’s return of service reflects that notice was not successful in that one of the mailings was returned marked “Unable to Forward[,]” and the other was returned marked “unclaimed.” Respondent has not tendered or filed an Answer to the Charge.

The Inquiry Commission charged Robinson with four counts of professional misconduct:

• violation of SCR 3.130-1.3 (failure to act with reasonable diligence and promptness in representing client);
• violation of SCR 3.130-1.4(a) (failure to keep client reasonably informed of matter or promptly comply with reasonable request for information);
• violation of SCR 3.130-8.1(b) (knowingly failing to respond to lawful demand for information from disciplinary authority); and
• violation of SCR 3.175(l)(a) (failure to maintain with Director current address at which attorney may be communicated with by mail).

The Board voted unanimously to find Robinson guilty of all four charges. Taking into account the facts of this case, Robinson’s disciplinary history, and recent KBA cases involving similar facts, the Board voted unanimously to recommend that Robinson be suspended for thirty days, ordered to complete successfully the Ethics and Professional Enhancement Program, and ordered to pay the costs of this action.

Neither Robinson nor the Office of Bar Counsel (OBC) has filed a notice of review under SCR 3.370(8), nor do we elect to review the decision of the Board under SCR 3.370(9), meaning that we adopt the decision of the Board under SCR 3.370(10). Therefore, Robinson is found guilty of all charges in this case (KBA File No. 17240) and subject to the disciplinary sanctions recommended by the Board.

Accordingly, the Court ORDERS:

1) Joshua Michael Robinson is suspended from the practice of law for thirty days from the date of entry of this order;

2) Robinson must successfully complete the Ethics and Professional Enhancement Program (EPEP) within one year of the date of this Opinion and Order. Robinson must not apply for CLE credit of any kind for attendance at the EPEP and will furnish a release and waiver to the OBC to review his records with the CLE Commission for one year from the completion of the EPEP to verify that Robinson has not reported any hours to the CLE Commission based on his EPEP attendance; and

3) Robinson must pay the costs associated with this proceeding in the amount of $352.54, for which execution may issue from this Court upon finality of this Opinion and Order. SCR 3.450.

All sitting. All concur.

ENTERED: November 18, 2010.

/s/ John D. Minton, Jr. Chief Justice

      . SCR 3.166(1) provides, in pertinent part, that:
      Any member of the Kentucky Bar Association who pleads guilty to a felony ... in this State or in any other jurisdiction, shall be automatically suspended from the practice of law in this Commonwealth_ The suspension shall take effect automatically beginning on the day following the plea of guilty or finding of guilt by a judge or jury or upon the entry of judgment whichever occurs first.
      Robinson entered his guilty plea to the charge of Unlawful Wounding on April 19, 2010.
      We note that SCR 3.166(6) provides that "[djisciplinary proceedings against such attorney shall be initiated by the Inquiry Commission pursuant to SCR 3.160, unless already begun or unless the suspended attorney designs under terms of disbarment.” The record before us does not disclose whether the Inquiry Commission has initiated separate disciplinary proceedings arising out of Robinson's guilty plea to the Unlawful Wounding charge.

      . According to the West Virginia state court judgment, an Unlawful Wounding conviction could subject a defendant to a one to five year sentence of imprisonment under West Virginia law. SCR 3.166(1) defines a felony as "an offense for which a sentence to a term of imprisonment of at least one (1) year is authorized by law.”

      . The Board’s findings indicate that Hallock tried several times to contact Robinson by telephone without clearly stating whether attempts to contact Robinson by telephone were successful and that Robinson sent Hallock text messages that did not impart any significant information about Hallock’s case. Robinson filed a response to the bar complaint in which he disputed allegations that he never answered his telephone, but he did not file an answer to the charge lodged against him. It appears to us that the Board implicitly found that Hallock’s attempts to obtain significant information on his case by calling Robinson on the telephone were unsuccessful and that Robinson’s only response to Hallock’s repeated attempts to reach him by telephone was to send text messages that did not impart significant information about Hallock’s case. We reach this conclusion, in part, because Robinson filed no response to the charge.

      . SCR 3.160(1) states:
      After review by Bar Counsel pursuant to subparagraph (3) of this Rule, any sworn written statement of complaint against an attorney for unprofessional conduct shall be filed with the Disciplinary Clerk who shall promptly notify the attorney by certified mail, sent to the address maintained by the Director pursuant to SCR 3.175, or other means consistent with the Supreme Court Rules and Civil Rules, of the complaint, and that he/she has twenty (20) days to respond to the complaint. Upon completion of the investigation by the Office of Bar Counsel the matter shall be assigned to an Inquiry Commission panel by rotation.
      SCR 3.160(3) requires Bar Counsel to determine, among other matters, if the matter can be appropriately resolved by alternative disposition and if the complaint states an ethical violation.

      . Five members of the Board were absent and did not vote. All sixteen members of the Board who heard the case voted to find Robinson guilty of all four charges.

      . See generally Kentucky Bar Association v. Wallace, 112 S.W.3d 385 (Ky.2003); Kentucky Bar Association v. Glidewell, 241 S.W.3d 316 (Ky.2007); Kentucky Bar Association v. Whitlock, 275 S.W.3d 179 (Ky.2008); Kentucky Bar Association v. O’Brien, 220 S.W.3d 686 (Ky.2006).


text:
    INQUIRY COMMISSION, Movant, v. Donald Lynn RICHARDSON, KBA Member No. 58120, Respondent.
    No. 2010-SC-000570-KB.
    Supreme Court of Kentucky.
    Nov. 18, 2010.
   OPINION AND ORDER

The Inquiry Commission of the Kentucky Bar Association (hereinafter KBA) requests that Respondent, Donald Lynn Richardson, KBA Member No. 58120, be temporarily suspended from the practice of law in the Commonwealth of Kentucky pursuant to Supreme Court Rule (SCR) 3.165(1). Richardson’s Bar Roster address is 541 Buttermilk Pike, Suite 101, Crescent Springs, Kentucky 41017. The Inquiry Commission, in its petition to this Court, states that it has probable cause to believe that Richardson has been misappropriating or otherwise improperly dealing with funds that he holds for others. See SCR 3.165(Z )(a). Richardson has not currently filed a response to the Inquiry Commission’s allegations. Having reviewed the petition and the supporting evidence and Richardson’s failure to file a response, we agree there is probable cause to find Richardson has misappropriated or otherwise improperly dealt with funds held on behalf of his clients and, thus, grant the petition.

In support of its petition, the Inquiry Commission has brought to the attention of this Court a verified complaint by Eric W. Richardson (no relation to Respondent), an attorney representing Fifth Third Mortgage Company (hereinafter Fifth Third) in a civil action filed in Hamilton County, Ohio. In this complaint, the following factual scenario is presented.

Donald Lynn Richardson owned and operated a company known as Commitment Title Agency (hereinafter Commitment Title), and this company entered into an arrangement with Fifth Third to provide real estate closing services. The funds for a closing would be transferred to an escrow account by Fifth Third for Commitment Title to hold as escrow agent until completion of the closing. At that time, Fifth Third would provide Commitment Title with instructions for the disbursement of those funds to the proper party. According to the terms of the agreement, Commitment Title was not authorized to decline to remit the funds held in escrow once given instructions by Fifth Third, nor was Commitment Title allowed to take action regarding the escrow funds contrary to the obligation to disburse them timely as directed by Fifth Third.

Five closings were conducted pursuant to this agreement between May 5 and May 13, 2010. In each instance, Fifth Third transferred the funds to the specified escrow account. The total amount of funds held in escrow by Commitment Title was approximately $1,124,034.68. As the five closings were completed, Fifth Third learned that the funds had not been remitted as directed for these transactions. Fifth Third’s civil complaint avers that Richardson and Commitment Title “have used the funds to purchase real and personal property, to pay personal debts and to otherwise convert the funds to their own use.” In order to avoid foreclosure on the homes, Fifth Third paid out an additional $1.1 million and filed a civil action in Hamilton County, Ohio to recoup the funds. The Ohio court issued a temporary restraining order on July 2, 2010, and a preliminary injunction on July 21, 2010. Both orders froze the assets of Richardson and Commitment Title up to the amount of the missing funds. In addition, both orders entered a finding that “Fifth Third has demonstrated a substantial likelihood that it will prevail on its claims.”

The sole explanation given regarding Commitment Title’s failure to disperse the funds was contained in a letter dated June 11, 2010, written by R. Scott Croswell, who was then serving as counsel for both Richardson and Commitment Title. In that statement, it is averred that “[d]ue to [Commitment Title Agency’s present financial condition, they are unable to transfer funds necessary to satisfy these obligations.”

Given the evidence supporting the Inquiry Commission’s petition and Richardson’s failure to respond as to the merits of the complaints, we find probable cause exists to believe, pursuant to SCR 3.165(l)(a), that Richardson has misappropriated or otherwise improperly dealt with funds held on behalf of his clients and, thus, hereby grant the petition for temporary suspension.

ACCORDINGLY, IT IS HEREBY ORDERED AS FOLLOWS:

1. Respondent, Donald Lynn Richardson, KBA Member No. 58120, is temporarily suspended from the practice of law in the Commonwealth of Kentucky pending further orders of this Court.
2. Disciplinary proceedings against Richardson shall be initiated by the Inquiry Commission, pursuant to SCR 3.160, unless already begun or unless Richardson resigns under terms of disbarment.
B. Pursuant to SCR 3.165(5), Richardson shall, within twenty (20) days of the date of entry of this order, notify all clients in writing of his inability to continue to represent them and shall furnish copies of such letters of notice to the Director of the KBA.
4. Pursuant to SCR 8.165(6), Richardson shall immediately, to the extent possible, cancel and cease any legal practice advertising activities in which he is engaged.

All sitting. All concur.

ENTERED: November 18, 2010.

/s/ John D. Minton, Jr. Chief Justice

      . Fifth Third Mortgage Company v. Donald L. Richardson & Commitment Title Agency, Inc., case no. A-10-6229.

      . As of July 9, 2010, counsel for Fifth Third was informed that Croswell no longer represents Richardson and Commitment Title in the civil matter.


author: COMBS, Judge:

text:
    James E. PHILLIPS, C.P.A., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-CA-000551-DG.
    Court of Appeals of Kentucky.
    Oct. 22, 2010.

      John W. Tullís (argued), Owensboro, KY, for appellant.
    Jack Conway, Attorney General of Kentucky, Nicole Wade (argued), Special Assistant Attorney General, Henderson, KY, for appellee.
    Before TAYLOR, Chief Judge; COMBS and NICKELL, Judges.
   OPINION

COMBS, Judge:

Following a jury trial in Henderson District Court, James E. Phillips, a certified public accountant doing business in the City of Henderson, was convicted of violating a city ordinance by willfully failing to file an occupational license return. On appeal, the Henderson Circuit Court affirmed his conviction. The matter is now before us upon an order granting discretionary review. Kentucky Rule(s) of Civil Procedure (CR) 76.20. After hearing oral arguments and reviewing the briefs and the pertinent law, we reverse the judgment of conviction.

Ordinance No. 17-05 was enacted by the City of Henderson on September 10, 2005, and took effect on January 1, 2006. The ordinance requires businesses to file a return and to pay an annual occupational license tax to the city. Sec. 21-38. The occupational license tax is measured as one percent (1%) of the net profits from business conducted in the city during the preceding year. Id.

Shortly after it was enacted, Phillips became convinced that the city’s new ordinance was flawed. He contacted city officials numerous times, but the city refused to modify any provision of the ordinance.

Phillips did not file a timely occupational license return in 2006. On January 14, 2007, a criminal complaint was filed against him for willful failure to file a return, a misdemeanor under the provisions of the ordinance. At his arraignment, he pled not guilty.

Phillips was tried on May 9, 2008. The evidence presented by the Commonwealth indicated that Phillips had conducted business in the city since 1981; that he was required to file a 2006 occupational license tax return under the ordinance; that he understood that he had a legal duty to file the occupational license tax return; and that he acted with the specific intent to avoid filing the return and to refuse paying the occupational license tax.

The jury found Phillips guilty of willfully failing to file the return with the intent to evade payment of the occupational license tax. It recommended that he serve 120 days in jail and that he pay a $500.00 fine. The district court suspended the jail sentence for a period of two years (over the protest of the Commonwealth) but imposed the recommended fine and court costs. On appeal, the Henderson Circuit Court affirmed the judgment of conviction. Phillips filed a motion for discretionary review, which we granted.

Phillips contends that the trial court erred by affirming his conviction. He argues that the ordinance should not have been enforced against him since it denied him due process of law; that the ordinance was unconstitutional as applied to him; that the Commonwealth failed to prove the elements of the offense charged; and that the trial court erred with respect to numerous evidentiary issues.

First, Phillips contends that the city’s ordinance — as applied — deprived him of due process of law. He argues that the trial court erred in failing to declare the ordinance unconstitutional — if not on its face, then at least as applied to him. Phillips claims that the city’s failure to appoint a Board of Occupational License Appeals (as described in section 21-48 of the ordinance) violates due process by depriving citizens of an administrative vehicle by which they can challenge “their claim and/or assessment as to whether or not a return is due, and/or a tax owed.” Appellant’s brief at 8. Thus, Phillips suggests that the ordinance is unconstitutional as applied because it failed to offer him a pre-deprivation hearing — a meaningful opportunity either to contest the ordinance’s requirements or to withhold a contested tax assessment.

Since the collection of a tax constitutes a deprivation of property, federal due process standards require state and local governments to offer taxpayers procedural safeguards against “unlawful exac-tions.” McKesson Corp. v. Div. of Alcoholic Beverages & Tobacco, 496 U.S. 18, 36, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990). Governments may meet this requirement by offering taxpayers one of three possible recourses: (1) a pre-deprivation remedy, which permits the taxpayer a meaningful opportunity to withhold the tax and to dispute the amount owed; (2) a post-deprivation remedy, which allows taxpayers to challenge the amount paid and to obtain a refund if it is determined that the tax was wrongfully collected; or (3) a combination of both. Id. at 36-37, 110 S.Ct. at 2250.

In this case, the ordinance provides both pre-deprivation and post-deprivation alternatives for contesting the “interpretation of this ordinance.” Sec. 21-43. It also provides for extensions to file a return and for a specific administrative mechanism to obtain a refund or a credit resulting from the finance department’s “re-examination and correction of returns as to which an overpayment or underpayment is claimed or found to have been made....” Sec. 21 — 41, 42.

On paper, the ordinance provided Phillips a fair opportunity to challenge his obligations under its provisions. He frequently corresponded with city officials, and he attended numerous meetings with them to discuss his personal interpretation of the newly enacted ordinance. However, the City never established the Boai'd of Occupational License Appeals. At the time Phillips contested the ordinance, the mayor had not named the members of the Board. To date, the members have never been appointed. Thus, Phillips did not have any opportunity to invoke the administrative pre-deprivation remedy guaranteed by the ordinance. The putative administrative remedy could not have been exhausted as a prerequisite for judicial relief. We conclude that Phillips was denied due process of law on this basis.

Next, Phillips presents a three-pronged argument in support of his contention that the Commonwealth failed to prove every element of the charged offense beyond a reasonable doubt. He contends: (1) that there has never been an adjudication indicating that he is responsible for a 2006 occupational license tax; (2) that the plain language of the ordinance absolves him of any responsibility to file a 2006 return; and (3) that even if he were responsible for filing a return and paying the 2006 occupational license tax pursuant to the ordinance, the Commonwealth failed to prove that he had the requisite intent to evade payment of the tax.

In a criminal prosecution, the Due Process Clause of the Fourth Amendment to the United States Constitution requires proof beyond a reasonable doubt of each fact necessary to prove the elements of a crime. Lisle v. Commonwealth, 290 S.W.3d 675 (Ky.App.2009). Phillips argues that the city has not shown through any civil proceedings that he is actually responsible for any tax or that in merely contesting his alleged duty to file the return, he necessarily or by implication did so with the intent to evade payment of a tax arguably due and owing.

Section 21-46(E) of the ordinance authorizes the city to file a civil action to enforce the collection of the occupational license tax due. However, there is no requirement that the city establish that taxes are due under Section 21-37 (pertaining to returns) or under Section 21 — 46 (pertaining to the penalties for willful failure by a business to make a return). Phillips was charged with failing to make a return. The ordinance classifies the willful failure to file a return as a Class A misdemeanor. The city’s failure to attempt to collect any tax due in a civil proceeding is irrelevant to this criminal proceeding, which involves the failure to file the return regardless of the existence of any tax arguably owed.

In the second prong of his argument, Phillips contends that the plain language of the ordinance absolves him of any duty to file the 2006 return. He argues that the ordinance can only be construed to mean that he was not required to file a return referencing the net profits of the business that he conducted in 2005. “Clearly, the ordinance makes a business file a return after their (sic) taxable year ends, and there can-be no taxable year that ends before 1 January 2006 [the ordinance’s effective date].... ” Appellant’s brief at 14. Phillips believes, therefore, that the end of his first taxable year following the effective date of the new ordinance (January 1, 2006) would not have occurred until December 31, 2006 — and thus that his first return would not have been due until April 16, 2007. Consequently, he could not have been convicted of failing to file a 2006 return.

Sec. 21-37(A) of the city’s ordinance provides, in part, as follows:

[E]very business entity and employer required to obtain an occupational license from the city shall file for the preceding taxable year a city Occupational License Return, properly signed and completed in proper detail, regardless of whether income is realized, a license liability exists, or the business is actively engaged during the tax year.

In essence, Phillips objects to the provisions of the new ordinance that seek to measure the amount of his 2006 occupational license tax by reference to his 2005 taxable income, arguing that 2005 precedes the effective date of the ordinance. After examining the language of the ordinance, including its definition of “taxable year,” we are persuaded that the circuit court did not err by accepting the city’s interpretation of its ordinance to require Phillips to file a 2006 return based on the 2005 net profits of his business. We see no legal impediment to the city’s decision to measure the occupational license tax in this manner.

In conjunction with this argument, Phillips contends that the Commonwealth failed to prove his willful intent to fail to make a return or to evade the 2006 occupational license tax. He cites his concerted efforts to convince the City to alter particular provisions of its ordinance. He believes that his ongoing dialogue with the city in which he tried to convince it that it was erroneous in construing the ordinance is proof that he lacked specific intent to evade payment.

The jury rejected Phillips’s argument. The Commonwealth showed that Phillips willfully failed and refused to file a timely occupational license return in 2006. Its proof showed that while Phillips counseled other business owners to file the return “under protest,” Phillips himself knowingly and voluntarily violated a known duty to file the return and to pay the license tax. However, the Commonwealth charged and argued on appeal that Phillips had failed to file the return with the intent to evade the tax that might have been owed. In essence, the Commonwealth im-permissibly imputed his intent to evade the tax from his intentional failure to file the return.

While Phillips undoubtedly failed to file the return, there is no corresponding proof that he intended to evade paying the tax. The ordinance provides as follows:

Sec.21-46 Penalties.
(F) In addition to the penalties prescribed in this section, any business entity or employer who willfully fails to make a return or willfully makes a false return, or who willfully fails to pay taxes owing or collected, with the intent to evade payment of the tax or amount collected, or any part thereof, shall be guilty of a Class A misdemeanor.

As it is written and punctuated, the ordinance sets forth three possible violations constituting a Class A misdemeanor. A person shall be guilty if he willfully:

(1) fails to make a return;
(2) makes a false return;
or
(3) fails to pay a tax owed or amount collected.

However, all three possible violations are modified by the phrase “with the intent to evade payment of the tax....” The placement of a comma after the word collected renders the phrase applicable to all three possible violations. If the comma were omitted, only the last violation (“fails to pay taxes owing or collected ... with the intent to evade payment”) would be modified or qualified by the phrase that is the crux of the mens rea in this case.

By its plain language, the ordinance envisions that an individual might commit these errors or omissions negligently or accidentally. Only when each one is accompanied by the critical element of criminal mens rea, namely the intent to evade payment, can the act be chargeable as criminal. We hold that the Commonwealth improperly imputed criminal mens rea to Phillips from his mere failure to file a return, an impermissible assumption of guilt flowing from that omission without proof of his actual mental state that would render that act criminal. Such a leap has no foundation in the law.

Next, Phillip contends that the trial court erred with respect to a number of evidentiary issues. The circuit court properly reviewed the trial court’s decisions to admit or to exclude evidence for an abuse of discretion. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575 (Ky.2000).

He argues that the trial court erred by permitting the Commonwealth to call several of his clients to testify. Phillips claims that the Commonwealth’s subpoena of these witnesses directly violated the accountant-client privilege. He also contends that he was forced to take the stand “to discuss the information that he had given his clients.” Appellant’s brief at 20. On appeal, the circuit court concluded that the testimony was entirely proper and that the district court did not abuse its discretion by permitting it.

Kentucky Revised Statute(s)(KRS) 325.440 provides that a licensed accountant shall not disclose any confidential information pertaining to a client without the client’s consent. The privilege is clearly personal to the client. Since the privilege does not belong to the accountant, Phillips had no standing to invoke it in order to object to the Commonwealth’s decision to subpoena the clients. Even to the extent that the information discussed at trial was arguably protected by the accountant-client privilege, the circuit court did not err in upholding the discretionary ruling of the trial court to permit the testimony of these witnesses — again, the parties to whom the privilege belonged. Therefore, there is no basis for Phillips’s argument that the Commonwealth’s decision to call these witnesses required him to take the stand in his own defense and to violate the privilege. He enjoyed no privilege that was jeopardized.

Phillips contends that the court erred with regard to several other evidentiary rulings in limiting the testimony of Margaret Keaton, a city finance department employee, and of Nancy Norris and Mike Hoersting, accountants and colleagues. He also cites as error the court’s permitting Charles McCollom, the county attorney, to testify against him. Since we are reversing this conviction on two other grounds, any discussion of these alleged evidentiary errors is moot and merits no analysis.

In summary, we conclude that Phillips’s conviction was improper on two grounds: (1) the ordinance was unconstitutional as applied to him due to the failure of the City to appoint the board of administrative appeal and (2) the Commonwealth improperly imputed criminal intent to evade payment of the tax from his failure to file a return without proving the requisite mens rea.

Accordingly, we reverse the judgment of conviction of the Henderson District Court.

ALL CONCUR.