“Here, Wilson sought alternative recovery under several different statutes for the appellants' conduct, specifically asserting that the transaction was an unconscionable loan or, in the alternative, if the jury decided that the transaction was not a loan, a fraudulent sale. Therefore, the trial court did not err in refusing to require Wilson to elect her remedies prior to trial.”
How later courts described this case
- “Here, Wilson sought alternative recovery under several different statutes for the appellants' conduct, specifically asserting that the transaction was an unconscionable loan or, in the alternative, if the jury decided that the transaction was not a loan, a fraudulent sale. Therefore, the trial court did not err in refusing to require Wilson to elect her remedies prior to trial.”
- “[A] plaintiff is not required to elect between ... alternative claims before the case is submitted to the jury” (citation and internal quotation marks omitted)
- “a plaintiff is not required to elect between . . . alternative claims before the case is submitted to the jury” (internal quotation marks and citation omitted)
Written by the judges who cited it.
The opinion
THOMPSON, Associate Judge,
with whom SCHWELB, Senior Judge joins, concurring:
I join the opinion of the court because Judge Blackburne-Rigsby’s detailed analysis has persuaded me that the punitive damages awards in this case were not so large as to be constitutionally excessive. I write separately, however, to explain why, on the particular facts of this case, I am left feeling that the size of the punitive awards amounts to an unwarranted windfall for appellee Wilson (who was poised to lose her home, in which she had about $100,000 in equity, even before appellants became involved, and who recovered or stands to recover from appellants over $3 million through the punitive damages awards, in addition to $140,000 in compensatory damages).
There can be no dispute that appellants recognized and preyed on Wilson as a financially distressed and vulnerable homeowner, and for that they richly deserve the sting of a punitive damages judgment. But the record also indicates that Wilson was willing to execute documents that she knew mis-described the transaction as she understood it. As the opinion of the court recounts, Wilson was asked to sign documents whose title “indicated a sale of her home when she intended only to obtain a loan to stop the foreclosure.” See ante at 43. She signed the documents upon being informed that the “sale was only a ‘legal fiction’ ... necessary to speed up the process.” Id. Apparently, Wilson was willing to agree without protest to a deceptive charade in order to obtain the funds she needed. If that is the case, then, in my view, her complicity somewhat diminishes the comparative reprehensibility of appellants’ conduct (though, I agree, not enough to entitle appellants to escape entirely the punitive damages awards). There is also the fact (which is of particular note in the wake of the so-called sub-prime mortgage crisis involving not only predatory lenders but also borrowers who irresponsibly took out loans they knew they would be unable to repay) that Wilson told appellants she could afford to pay $1,800 per month and then, for whatever reason, “failed to make any of the ... payments.” See ante at 43 (emphasis added). I believe courts would do well to consider instructing juries, in circumstances such as those here, that notwithstanding the deterrent purpose of punitive damages, victim complicity is a factor which may be considered in assessing such damages.
That is not the state of our law, however. The size of the punitive awards was for the jury to determine under the standards prescribed, and so I agree that the awards must stand undisturbed.