dissenting. I agree with the majority that there is no merit to Prendergast’s first and third points. I, however, disagree with the majority’s and the concurrence’s conclusion that most of Prendergast’s challenge to the punitive damage award was not preserved and that the majority’s decision that the award was proper.
First, I note that Prendergast did make a directed-verdict motion. In it, he argued that Williams was not entitled to damages because his reliance on the deed was not reasonable. If he argued that no damages should be awarded, why does he also have to argue that punitive damages are also not appropriate? In Arkansas, it is axiomatic that “in the absence of an award for damages for the underlying cause of action, punitive damages are improper.” Bell v. McManus, 294 Ark. 275, 277, 742 S.W.2d 559, 560 (1988).
However, even assuming that the directed-verdict motion was insufficient, Prendergast’s motion for a new trial sufficiently preserved his argument concerning the excessiveness of the punitive damages. My review of the case law suggests that this is a distinction without a difference. In Advocat, Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003), the supreme court found that the appellant had failed to renew its directed-verdict motion, yet found that the excessiveness of the punitive damages was preserved for review because the appellant made a post-trial motion. Significantly, in evaluating whether the damages were excessive, the supreme court first examined the evidence to determine whether punitive damages were appropriate. I believe we did the very same thing in Superior Federal Bank v. Mackey, 84 Ark. App. 1, 129 S.W.3d 324 (2003). By the majority indulging in this manner of pseudo-precision when analyzing preservation in this area of the law, this court is filling for the bar a position equivalent to the tailor in The Emperor’s New Clothes.
Even more indefensible is the majority’s conclusion that even though “Prendergast sets out some of the elements required for a due process challenge to the punitive-damages awards . . . neither in the trial court nor in his appeal before us does he specifically make a constitutional argument.” The majority reaches this remarkable conclusion even though Prendergast makes an argument based on factors enumerated in State Farm Mutual Insurance Co. v. Campbell, 538 U.S. 408 (2003), albeit as quoted — with proper attribution — in Superior Federal Bank v. Jones & Mackey Construction, 93 Ark. App. 317, 219 S.W.3d 643 (2005). It should be obvious to every person with a law degree that Campbell, a case out of the United States Supreme Court, involves construction of the United States Constitution. Accordingly, by citing Campbell Prendergast is making a constitutional argument. Ordinarily, the appellate courts of this state disdain exalting form over substance. Velek v. State (City of Little Rock), 364 Ark. 531, 222 S.W.3d 182 (2006); Romes v. State, 356 Ark. 26, 144 S.W.3d 750 (2004); Nettles v. City of Little Rock, 96 Ark. App. 86, 238 S.W.3d 635 (2006). I lament that the majority did not take to heart the writing of one of our learned colleagues earlier this term when Judge Marshall stated “doctrinal labels are not controlling; the substance of the argument made is.” Miller v. Cothran, 102 Ark. App. 61, 280 S.W.3d 580 (2008) (quoting “We must think things not words[.]” Oliver Wendell Holmes Jr., Law in Science and Science in Law, 12 Harv. L. Rev. 443, 460 (1899)).
By holding that Prendergast has not preserved a “constitutional” argument, the majority has excused itself from analyzing the reprehensibility of Prendergast’s conduct in the exact way that Prendergast argued this point to the trial court and now argues on appeal, despite his citation of unquestionably relevant authority. This is remarkable. While I am well familiar with the convention established by appellate courts of this state whereby we decline to consider arguments when an appellant fails to cite authority or make convincing argument, see, e.g., Northport Health Servs., Inc. v. Owens, 82 Ark. App. 355, 107 S.W.3d 889 (2003), this is the first time I have seen an appellant’s argument barred where he has done both! I believe that we owe Prendergast the same effort we expended in Jim Ray, Inc. v. Williams, 99 Ark. App. 315, 260 S.W.3d 307 (2007) (super en banc) (citing Cooper Indus. Inc. v. Leatherman Tool Group, Inc., 532 U.S.424 (2001)).
Prendergast argued that in determining the appropriateness of a punitive-damage award, we should evaluate the conduct in light of five factors enumerated in Superior Federal Bank v. Jones & Mackey Construction, 93 Ark. App. 317, 219 S.W.3d 643 (2005). Those factors are: 1) whether the harm caused was physical as opposed to economic; 2) whether the tortious conduct evinced an indifference to or reckless disregard of the health or safety of others; 3) whether the target of the conduct had financial vulnerability; 4) whether the conduct involved repeated actions or was an isolated incident; 5) whether the harm was the result of intentional malice, trickery, or deceit, or mere accident. Id. With regard to Missouri Walnut, 1) any harm suffered was economic and not physical; 2) any alleged tortious conduct on the part of Prendergast did not demonstrate an indifference to or a reckless disregard of the health or safety of others; 3) there is no evidence that Missouri Walnut was ever the specific target of his conduct and there is no evidence of any financial vulnerability on Missouri Walnut’s part; 4) the conduct was an isolated incident and not a series of repeated actions; and 5) there was no evidence of any harm to Missouri Walnut that was the result of intentional malice, trickery, or deceit directed specifically at Missouri Walnut. Under these facts, I believe the inevitable conclusion is that the punitive-damage award to Missouri Walnut was excessive.
Looking next at the award to Williams, 1) the harm suffered was economic and not physical; 2) any alleged tortious conduct on the part of Prendergast did not demonstrate an indifference to or a reckless disregard of the health or safety of Williams or any other person; 3) there is no evidence that of any financial vulnerability on Williams’s part, notwithstanding his testimony that his business declined in the aftermath of his dealing with Prendergast; 4) the conduct was an isolated incident and not a series of repeated actions; and 5) while there was evidence of trickery and deceit, at best, Williams was willing to be deceived. It was undisputed that Prendergast was not the landowner of record as reflected in the plat book, and as Williams’s own testimony revealed, prior to his securing Prendergast’s signature on the timber deed, he knew that Prendergast did not live on the property that the trees were harvested. Again, the only logical conclusion is that the punitive-damage award to Williams was excessive. Finally, even assuming that the majority correctly claimed that it could only consider what it believed was a preserved argument, i.e., whether the award of punitive damages “shocks the conscience of the court,” I would still reverse. First, the only innocent victims in this case were Prendergast’s sisters, and they were well-compensated for their losses with statutorily mandated treble damages. Williams was certainly not victimized in this episode. First, he received full compensation for cutting the timber. Moreover, and more importantly, I cannot close my eyes to the fact that he was almost as culpable as Prendergast in this scheme. Williams procured Pren-dergast’s signature on an instrument that he drafted. Not only does this make Williams an accomplice, by drafting the timber deed, he was practicing law without a license. I find it remarkable that we allow this wrong-doing to be rewarded so handsomely. Cf. Preston v. Univ. of Ark. for Med. Sciences, 354 Ark. 666, 128 S.W.3d 430 (2003).
As for Missouri Walnut, it is a corporation that is not licensed to do business in Arkansas. Moreover, it deliberately chose to deal with Williams, not the individual (Prendergast) reflected on the unrecorded timber deed, and to remain blissfully ignorant of the identity of the true owner of the logs by ignoring the information in the plat book that it had in its possession, not to mention Arkansas law.1 (Emphasis added.) I submit that the conscience of this court should be shocked when a jury awards a substantial amount of damages to any business when the only reason they suffered “damages” was because they flouted the laws of the State of Arkansas.
Baker, J., joins.Arkansas Code Annotated section 15-32-407 (Repl. 2003) states:
(b) No conveyance, lien, mortgage, or transfer shall be valid except as to the parties thereto, until it is recorded or until it shall be filed with some deputy county timber inspector, who shall immediately forward the instrument to the inspector.
(c) The filing and recording of all instruments and papers shall have the same effect as notice as the recording of deeds and mortgages in the office of the recorder of deeds.