or arguments i want to thank the court for that we're asking the court today to reverse the rule fifty nine ruling by the district court and reduce the punitive damages to two hundred fifty thousand dollars or five hundred thousand dollars at most the jury returned a verdict in this case for five hundred thousand dollars and emotional distress damages six thousand dollars and economic loss and three million dollars in punitive damages we'd ask for the punitive to be lowered based on two reasons one is that the punitive damages are excessive under the due process clause and the lessons learned from the safe from the state farm case and secondly under the georgia specific intent to harm statute which it's commonly called punitive damages are capped at two hundred fifty thousand i'd like to start with the constitutional due process arguments and i'd like to ask the court to consider two lessons that were learned by the state farm case by the u s supreme court in two thousand and three the first lesson was from that case is that if you have a really large compensatory damages ward the ratio should go closer to one to one and in this case we believe given the facts of this case and i'm mindful that when the court is considering punitive damages it's a heavily fact specific inquiry based on the facts of that case but we believe based on the record in the facts of this case with a five hundred six thousand compensatory damages award the ratio should be one to one or very close to one to one  the second lesson that i had from state farm that asked the court to consider is that when you have a very large compensatory award and in this case ninety eight percent of it is a motional distress damages that should be discounted when the court considers the ratio and the amount of punitive damages but didn't know he didn't have and we said that when the jury separately considers the compensatory from the punitive damages there's not the risk that would be inherent if it were considering both together i agree judge and aren't we bound by that and i agree you're bound by that but you here though if you consider punitive just on the six thousand economic loss and used a ratio you wouldn't come anywhere close to three million or frankly anywhere close to you know five hundred thousand or two hundred fifty thousand right but but i don't think we can consider it just on the six thousand dollars that's that's really my question to you right i mean if we have previously said and i think we have that when the jury considers that compensatory separately from the punitive is as occurred here then you don't have the danger conflation or a double counting of what would turn out to be punitive damages and so if that's the case don't we have to consider the whole compensatory amount including the emotional damages as part of the compensatory damages i believe you do but i believe still under state farm that you discount the emotional distress because there's a punitive element to emotional distress and the risk when you have that large of an award for on notional distress with that punitive element i'm not saying is peanut damages but there's a punitive element to emotional distress that has to be taken into account so there's not a duplications between compensatory and punitive and we believe given the facts of this case and a five hundred thousand a motion of distress award given the facts of this case that three million dollars there's certainly a duplications that emotional distress and deterrence and that punitive element that has to be in every emotional distress award and that's a reason for the duplicate and we believe under state farm given both that large compensatory award a factor in this case this is different than just a typical wrongful foreclosure escrow balance to speed first of all the plaintiff in this case this was an investment property this was not the principal residence this was one of fourteen investment properties to the communications between homeward residential were all to adam again it's not even the plaintiff it was the son  obviously it was although it was to the son it was clearly being indicated to the plaintiff here and there's evidence that she was so distressed by the whole situation she had projectile vomiting and other kinds of problems so i'm not sure that gets you anywhere i mean she's the owner of the property he might be managing it but obviously it's getting the information whatever it is that your client does or says is getting to her and that the record in the evidence and the case judge you're right is that her son was giving periodic updates to the mother who was living in florida not at the property and again it wasn't the principal residence and it's her livelihood i mean you know it was one of fourteen property but you were  doing it other properties as well i mean there were multiple properties where this was occurring judge the record and the record in this case was they said they were having problems on the other properties there's nothing in the record specifically about what seven and but there was they said it on time that your client was yes services yes judge not so the other six the the evidence in the record was they were having other problems but none of the specifics were discussed about what the problems work at all and that farge what the problems were whether they were even the same problem at all was not in the record they just said generally they were having other problems you got to convince us the judge  actually aust in the record fifteen to thirty thousand dollars us i'd like to turn to the specific intent to harm judge roy looked at the record in this case in the first time and of his first opinion and said there was no specific intent to harm in the first opinion in this case he looked at the same record that he looked at the second time so clearly but he let you explain that by saying there are two different ways to establish specific intent under the law and he really only looked at the first way because he was doing it based on your motion and for whatever reason he didn't look at the second line he said i did then when he came back he said ok now now i realize i need to look at it under the the second way as well and focus on that and when i focused on that i realized that there was sufficient evidence where a reasonable jury could return a verdict so i mean where do you where is the  that the error is he cited the same standard in both cases then the second opinion he did consider the second prong of the standard and he misapplied that standard in his second opinion and this is where he misapplied it he focused on the wrongful act and was there specific intent to harm the about as if the wrongful act is really bad you can reasonably in for a specific intent to harm all the cases under georgia law even in the second prong require that you focus on the harm there's got to be a specific intent to cause the harm there's no evidence in this case in the record at all that homeward was substantially certain that it's wrongful actions would c severe emotional distress not at all the judge where the judge erred in the second opinion was considering the wrongful act and not that knowledge in the specific intent to harm that the harm is mcginnis there is nothing in this record that homewood residential knew that by foreclosing on investment property and sending collection letters that were wrongful that mrs mcginnis would suffer severe emotional distress there's only one letter it's twelve eighty one in the record where adam mcginnis writes in and says you're causing undue stress to us doesn't mention mrs mcginnis at all and it it could the us could be adam and his wife could be adam and his sister and that's the only piece of evidence that imports any knowledge on homework residential that it was causing severe i mean a lot of stress there are some actions that one can undertake that one can reasonably assume and should now well inflict substantial emotional distress would you agree with me i agree and if that was the test i would one hundred percent it's substantially certain and specific intent to harm under georgia law reasonabl certain that the acts will result in severe distress i agree but that that would mean in this case without any knowledge imported to him word that every single wrongful foreclosure in the state of georgia automatically give you specific help you don't agree and i'll tell you why and maybe you want to respond to that in this case there was a tacit admission of an erroneous calculation and a substance a subsequent decrease in the as amount and then following that there was a continual failure to justify another increase and an insistence that she pay regardless of the fact that she that the bank had previously established that there had been an error with no explanation as to why she should have to pay in addition there was testimony during the trial that christopher del bean blindly insisted that homewards escrow analysis was correct even though he had not seen the document that had not attempted to calculate the escrow his position was the plaintiff was required to pay any amount of homework demanded regardless of whether it appeared reasonable or an error simply because that is what she agreed to under the note and mortgage and that's not accurate i mean it seems to me that there this is different from a foreclosure action where you're sending notices of foreclosure etc and there's no indication that it's wrong or there is or there is an indication that it's wrong you investigate and you find nothing wrong feel about it here you found it was wrong and continued to contact her and insist that she pay the increase and i can respond to that and i would bet my time that we're go ahead and ok so my response on that is exactly why i judge oil second opinion plus an error that judge you're right that is wrongful conduct that's reckless and you could argue it's intentional conduct but that's not the test of a specific intent to harm specific intent to harm is that you intend for that person to have severe emotional distress or in an action marine that you intended to pollute that neighborhood or in the rutherford case that you intended to put that person in jail you're right judge they were wrong on the escrow they were wrong in the wrongful foreclosure but that is not evidence of a specific intent to cause the harm that specific intent for the wrongful act which you agree with me is that that activity regardless of your view of it or how you're characterizing it that that activity is not activity that occurs in every foreclosure action and sell if we have held the punitive damages award here we would not be setting a precedent that allowed for punitive damages in every foreclosure case i and this case i think if the  wrong for wrongful foreclosure case because there's no evidence that homeward had any belief and this is a standard that homework believed that the consequences of its wrongful act would cause that specific harm in every wrongful foreclosure there would be some but just like judge royal said some level of emotional distress anyone that lost their house i think it is common sense but where is the specific intent to cause mrs mcguinness when it never talked to or never sent one letter that they intended they were substantially certain that she would have said be or emotional distress there is nothing in the record it does an intentional infliction of emotional distress it rose to that level it rose to the p damage level but specific intent to harm it would be the first case under georgia law that we've ever seen that without any knowledge of the harm that would occur this the heart and the severe emotional distress would if she would wrote in and said i'm in the hospital or this is killing me or they went behind adam mcginnis is back and it went to harass or they talked to our son they made a mistake it was a wrongful foreclosure it was then date messed up the escrow balances and didn't have the right to do it that's what the jury found and that's what the court found but our belief that is not enough for a specific intent to harm you so it's republican which is a case in our breeze it's a case involving punitive damages in that case the compensatory damages awarded was five hundred thousand dollars same as this case and the important fact is that it was five hundred thousand dollars all an emotional distress damages and this court said quote the district court pointed out that the ratio between the punitive and compensatory damages in this case is in the neighborhood of four to one a range which is supreme court is found to be instructive although the librarians received substantial compensatory damages given the facts of the case the ratio does not indicate the punitive damage award violates due process so there's two lessons to take from that first not a one to one ratio even though they were no economic damages no physical injuries only emotional distress damages this court said that's not one the one lesson number two is that you include the emotional distress damages the court didn't say we're just going to discount the five hundred thousand dollars and then do a ratio which technically be zero because there were no other damages you included and that makes sense because emotional damages are real damages but were higher than four to one in this case aren't we are at five point nine to one so yes but that's still within the range wanted to single digit ratio it's not double digit which is what the supreme court is warranted yet it's also within the range of other cases this court has dealt with goldsmith versus back the elevator company that was a nine point civic intent to cause harm i want to take issue first with an evidentiary question opposing counsel was quoting a letter that adam had sent to homework saying that you look at the damage you're causing to us and that doesn't mention jane we could have been his wife it does this is that eighty nine dash twenty three exhibit twenty three quote your company has caused us under stress and continue to harass us please call adam or jane mcginnis so right there we have that the word change again is in there at record eighty nine eighteen we have called transcripts one in the chain of events was the letter dated it occurred the the letter that i was just referring to in this series of events where is it so that was december two thousand and nine so in october two thousand and nine hundred takes over the loans they mediately increase the escrow by two hundred percent adam starts calling what they start calling him every day they start around thanksgiving of two thousand and nine calling him daily in december he sends out letter this continues for years even after the foreclosure they were still harassing them day by day if you look at the prior court of appeals opinion and the evidence in this yes my name is adam mcginnis and i've got my mother on the other line she's going to state her name for you mom state your name jane martha jane seem again this and these calls are kafkaesque i mean they have someone you call them you say here the problem i've been telling you over and over this is wrong the person says you have to speak to lunch specials so they transfer him to lunch specialist james online the one specialist you get a recording and so who do you call in that so they they call over and over if you read these calls you'll see that they're clearly being harassed i mean this is the common experience that iran has when you're dealing with this have automated system and the important part is that the jury heard this evidence these are audiotapes that were played they saw and heard the tone the demeanor all these things made it so that the jury knew and can make a finding that homer knew what was going on and found that the act was specific intent and i think the prior court opinion when it was reviewing intentional fli only a mistake and yet they callously proceed for closure that this is the evidence in the record and this court when it's reviewing a district court's decision on a motion for a new trial must defer to the district courts observations about courtroom demeanor about tone all of these issues and now let me address some of the specific garden supposing counsel made it out how much specificity do you need to add to need to know that you know for example that jane the guinness was adam and jane are telling them you've got this wrong and they just continue to act they have no justification when you sort of what we know you know they have no justification we're talking about the response what's the effect of it right what he's telling the madam is telling them you're causing undue stress an arm does says it right in his letter and that they continue to act and that's that's all you need for specific intent and there's one last case that i want to address on this issue that prior court opinion compared the facts of our gori or the georgia court of appeal said the gorier and a former employee of a c b testified they informed greentree that it was foreclosing on the wrong track of property given this testimony and the fact that green tree nevertheless proceed with foreclosure defendants presented evidence that allow a jury to infer green trees conduct intentionally caused harm and that's what we have here we're not going to have a signed confession that says yeah i really wanted to take this property from this person i wanted to harm them but under the restatement you don't have to have that you just have to have knowledge that you're acting wrong and in the absence of justification that's a finding the jury can make what about the distinction that homework is drawing that while there may have been this one letter that that you sat that indicated that jane was in distress and she was on the one phone call you referenced that most of this was going from how mordred to adam does that matter to you it was one it doesn't matter and two that the evidence is more and that  more letters and phone calls that just given is example is if you look at the trial exhibits there are multiple calls what's happening and then to the reason why doesn't matter is that sufficient evidence i mean it is that we're not there we're not here all sitting deciding for ourselves whether this is true or not even deciding  as the district court it would do we're deciding whether the district court properly looked at the evidence and exercised its discretion on that issue and so you know i don't know how opposing counsel and say well you've got this evidence but don't don't don't weigh it don't look at it that's something a jury does in the first instance and then the district court does in the second instance of at two levels of deference you defer to the jury's decision making and you further the district court system making and that's enough i mean i don't know how many times they had to tell them you're doing something wrong once should be enough and they kept going and they even continued after the foreclosure and that's an important fact and the level of punitive damages because it shows that their attitude under del bean's testimony and especially if you watch the video i mean he's quite cold about it we say what if you them you know a thousand dollars ten times as much as required so it doesn't matter the bars agree to pay for it and he said quote i don't i don't base my decisions about the bar tells me it's based on what i decide and a jury is allowed to look at that and say yeah they they did intend to cause us harm the last point i want to make is about the procedural argument that we've raised this is an important part of our law the case that i think helps sum up where we are in this case as well in the prior appeal take i haven't read the instructions there what's yes ok was there any objection to the to the instruction on punitive damages under georgia law there was not your honor in fact homewards own instruction is exactly the same instruction that we re is if an actor knows the consequences of stanley certain to result from his act and still goes ahead is true as a law as if he in fact desired the result is the same thing that this court relied on an actual marine first continental no objection and this is in fact how much instruction  yes judge wheat yes sir we agreed with that instruction that instruction was the instruction under georgia law for a specific intent to harm and it's the second prong that this case was decided upon correct correct and we believe in reviewing the evidence the court misapplied the standard and he hears our point the court the jury held a b and c if it was a for the jury but they were reviewing that yes and w yet understand ok this is the issue jennifer that the jury found and the court found knowing in action is wrong and proceeding with conscious and difference that's what the act are substantially certain to result from and what happened here is the court in the first opinion looked and saw that there was no evidence that homework intended to cause that severe emotional distress the judge when we believe it misapplied the standard look at the knowledge of the wrongful act and not the intent to cause the specific harm in other words that you're argument is that the judge was stuck with his first observation about the harm yes we believe the joyal got it right the first time and and the second opinion he looked at the wrongful act and not the constant not the specific consequence an action marine we agree action marine applies here and action moraine the continental company had internal memos and knowledge that they were intending to pollute the neighborhood there is no evidence in this case whatsoever that homered residential intended to cause severe emotional distress to ms in the guinness there is a lot of evidence that the escrow balance was wrong even though they did incur they did redo it and a much corrected it entirely there's also evidence the wrongful foreclosure occurred but where's the evidence that homework residential and indeed the costs of the or emotional distress to miss mcginnis they did not there's nothing in the record the actual marine case is right on point so are other cases in the georgia law where you've got to specifically intend to cause that harm not just that your wrongful act was so bad and so it's a dichotomy between act in the harm and that's where we   we believe there's a different standard between specific intent to harm and punitive damages and specific intent to harm means you had to specifically intend to cause that damage and that's what georgia the policy in georgia has said we have a cap of two hundred fifty thousand and do exceed that cap you have to specifically intend to cause that harm not just that your actions are knowing and wrongful also i guess one point i didn't raise that i wanted to raise the was six thousand dollars of emotional distress but under georgia law if the award is only a motion of distress you can't award punitive there was some and we're not saying punitive to wrong here because there was some  dollars but we believe that georgia policy should be relevant when you're considering whether to lower the punitive zur not georgia laws already spoken that emotional distress damages should not either not be considered or should be discounted when you're considering punitive again the record is what it is and we're not disputing it but three million dollars given the facts of this case with five hundred six thousand compensatory award we believe is excessive under state farm and we believe it's excessive under the georgia statute for specific intent to harm thank you the case wilcox versus