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.