Monday, December 2, 2013

Crime and Punishment?

Carpentier v. Tuthill, 2013 VT 91

Let’s jump to the heart of it. 

Plaintiff lived with her grandchildren in a subsidized apartment complex.  She contacted a salvage company to see if it would buy her totaled car.  The owner of the salvage company showed up personally, told plaintiff he would buy the car, and left.  When he returned to pick up the car, he propositioned plaintiff.  He then called plaintiff twenty times over the next several days. 

Owner returned to plaintiff’s apartment and offered her $200 for sex.  Plaintiff refused and asked him to leave, which he eventually did.  Plaintiff reported the behavior to the police.

The next morning, plaintiff found Owner in her apartment.  He grabbed her breasts and ground against her.  Plaintiff believed he was going to rape her.  When she finally broke free, Owner told her that when he returned, she would have sex with him for money. 

Owner was arrested and charged with numerous crimes based on these events.  Before arraignment on those charges, Owner killed himself.  This ended the criminal action, but plaintiff sued Owner’s probate estate in civil court for assault and battery, false imprisonment, and intentional infliction of emotional distress. 

At the beginning of the case, the parties agreed to a prejudgment writ of attachment, subject to defendant’s opportunity to challenge it later—how that works we’ll find out later. 

The trial court split up (or bifurcated if you like fancy-lawyer talk) the liability and punitive-damages phases of the trial.  Plaintiff prevailed on all three counts and the jury awarded her $30,000 in compensatory damages. 

During the punitive-damages phase of the trial, plaintiff introduced evidence of Owner’s prior convictions for rape, attempted rape, and two violations of probation.  The evidence included affidavits regarding incidents that occurred in the late 1970s.  Plaintiff introduced an inventory of Owner’s estate; defendant countered with testimony from the estate’s special administrator regarding expenses and the expected salability of the estate’s real property.  The jury awarded plaintiff $150,000 in punitive damages, and defendant appealed.

While all this was working its way through the system, defendant sought a license to sell the real property that was subject to the writ of attachment.  Although the probate court opined that the attachment didn’t get priority because it was secured after Owner’s death, the probate court nonetheless denied defendant’s request for a license to sell due to the potential buyers being Owner’s personal friends and the likelihood that the sale price would be below fair market value.  No appeals were taken.    

Defendant, while the other case was on appeal, filed another motion for a license to sell in the probate court, and also tried to get the civil court to rule that the attachment was void based on the probate court’s earlier ruling.  The civil court denied that motion, and defendant appealed.

But in the meantime, the probate court granted the license to sell.  The superior court allowed defendant to deposit $259,806 of the sale proceeds with the court as substitute collateral for the attachment.

And that circuitous route brings us to the SCOV’s door.

Defendant’s first argument is that the prior-convictions evidence was not relevant and was barred propensity evidence. 

The SCOV notes that defendant apparently failed to raise a relevance argument below, but even if he had and it was preserved, he still loses—the evidence was relevant to the jury’s assessment of how reprehensible Owner’s conduct was. 

Punitive damages awards require proof of two essential elements: (1) outrageously reprehensible wrongful conduct, and (2) malice.  In determining reprehensibility, the SCOV notes, repetition is an important consideration.  A repeat offender usually deserves more punishment than a first-time offender—with the former, it’s exponentially more unlikely that it’s a mistake.

Simply put, the SCOV notes that prior similar conduct is very much relevant to punitive damages.  Similar to its use in criminal sentencing, where similar prior conduct is an aggravating factor, the SCOV explains:  “So too in the civil context, an individual’s acts may be considered more reprehensible, and thus subject to a heightened penalty, because they are repetitive.”

Defendant argues that the age of the convictions means they can’t be used to impeach a witness, and therefore shouldn’t be admissible in the punitive-damages-award context.  The SCOV explains that “defendant cites no authority for this proposition, and the supposed analogy between reprehensibility and credibility is not apparent.”  Though the convictions’ temporal remoteness bears on how compelling that evidence is, it doesn’t make them irrelevant. 

Most readers will be familiar with the axiomatic prohibition on he-done-it-before-so-he-probably-done-it-again style evidence.  Defendant argues that the prior-convictions evidence violated this bar.  But propensity evidence can be introduced for a variety of reasons when it’s offered for another purpose than showing propensity.  On this point, the SCOV notes that the jury had already found that Owner committed the acts during the liability phase of the trial.  The convictions in this case, the SCOV opines, “were used to show the degree of reprehensibility, a permissible ‘other purpose’ under the rule.”

The SCOV disagrees with defendant’s argument that there must be temporal proximity for the prior-bad-acts evidence to be admissible.  The SCOV notes that the close-in-time requirement applies to evidence used to show a “plan,” and not to evidence used, as in this case, to show a degree of reprehensibility. 

And with that, the SCOV rejects defendant’s evidentiary arguments. 

Defendant’s next argument is that the punitive damages award was excessive and the trial court erred in denying his remittitur motion.  The SCOV reviews for abuse of discretion and finds none. 

Defendant’s argument that the award exceeds the value of the estate goes nowhere because it’s based on evidence that wasn’t presented to the jury.  The SCOV notes that plaintiff presented evidence that the estate was worth $473,000 and defendant presented evidence that it was worth less.  The SCOV reasons that the determination of the appropriately punitive amount was the jury’s job.  The SCOV also notes that the “award was well within the bounds of the evidence presented at trial.”

Defendant’s five-times-the-compensatory-damages-is-excessive argument likewise doesn’t gain much traction.  The SCOV notes that there is no “mathematical bright line” regarding the constitutionality of a punitive-damages award.  (This is a good thing because lawyers notoriously suck at math.) 

Here, the SCOV reasons that the factors to consider in punitive-damages awards—whether the conduct caused physical or financial damages; the degree to which health or safety of others is disregarded; whether the conduct is repetitive or isolated; and whether the conduct was calculated and intentional or accidental—all support the award in this case.  Owner physically assaulted plaintiff, simulated sex acts, offered her money for sex, and engaged in repeated misconduct against her.  He’d also engaged in similar activity in the past. 

Regarding the ratio-based argument, the SCOV notes that “the award here was well within the range of ratios recognized by the Supreme Court as presumptively within the bounds of due process.”  This is a single digit multiplier and various courts have upheld similar awards as a matter of course.  No error.

The SCOV also rejects defendant’s argument that the jury was punishing Owner for prior misconduct.  The trial court specifically instructed the jury that it was only to use the prior convictions to determine reprehensibility in the present case.  And the SCOV assumes that the jury did as it was told.  Let’s hope it wasn’t this jury.

Defendant’s final challenge is to the writ of attachment.  His argument is that the civil court lacked authority to attach property under the probate statutes, the attachment has no priority,  and the probate court had so ruled that way—so res judicata, y’all!  Defendant also argues that the attachment must be vacated under the estate-distribution statute.  This should be interesting, right?

Wrong.  As sometimes happens, the SCOV declines to address these arguments substantively, reasoning that defendant waived its right to challenge the attachment.  The rules require a defendant to challenge a writ of attachment before entry of final judgment.  In this case, that didn’t happen.  So it’s a done deal.  The parties’ agreement that defendant could challenge the writ “at a later time” did not absolve defendant of the requirement to comply with the rules in general.    

Of note is the only footnote in this case.  Defendant had attempted to argue on appeal that punitive damages against an estate are unwarranted because it serves no deterrent purpose—the tortfeasor is dead.  The SCOV reasons that argument wasn’t made below and was therefore waived.  Remember that if you find yourself defending an estate, boys and girls.     

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