Opposition Brief — Time Warner Entertainment Co. v. Six Flags Over Georgia, LLC

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No. 02-978

Jn The FEB 12 2003

Supreme Court of the Unitep States

TIME WARNER ENTERTAINMENT

COMPANY, L.P., et al.,

Petitioners,

SIX FLAGS OVER GEORGIA, LLC, et al.,

Respondents.

On Petition For A Writ Of Certiorari

To The Court Of Appeals

Of The State Of Georgia

BRIEF FOR SIX FLAGS OVER GEORGIA, LLC,

ET AL., INOPPOSITION

JAMES E. BUTLER, JR. EMMET J. BONDURANT II

GEORGE W. FRYHOFER III Counsel of Record

BUTLER, WOOTEN, FRYHOFER, H. LAMAR MIXSON

DAUGHTERY & SULLIVAN MICHAEL B. TERRY

2719 Buford Highway JOSHUA F. THORPE

Atlanta, Georgia 30324 BONDURANT, MIXSON &

(404) 321-1700 ELMORE, LLP

3900 One Atlantic Center

GERALD DAVIDSON, JR.

: 1201 W. Peachtree St., NW

EESOM S TUCKER, LAA Atlanta, Georgia 30309

6700 Sugarloaf Parkway

Duluth, Georgia 30097

(678) 775-6853

Counsel for Respondents

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 349-2831

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6 of the Rules of this Court,

Respondents Six Flags Over Georgia, LLC (“Flags”), Six

Flags Fund, Ltd. (L.P.) (“Fund”), and George DeRoy, as

Trustee of Six Flags Claims Trust, state the following:

Respondent Fund owns 99% of the membership

interests in Respondent Flags. No publicly held company

directly owns 10% or more of the membership interests in

Flags.

Respondent Fund is a limited partnership. Its manag-

ing general partner is the Salkin Family Trust, created by

declaration of trust dated May 15, 1980, Avram Salkin and

Dorothy Salkin, co-trustees. The only corporate general

partner of Fund is SFG, Inc., a California corporation,

which is the non-managing general partner and owns a

0.1% partnership interest in Fund. SFOG Acquisition A,

Inc. owns a 17.1% special limited partnership interest in

Fund, and SFOG Acquisition B, L.L.C. owns an 8.2%

special limited partnership interest in Fund. Upon infor-

mation and belief, Six Flags Inc. (formerly known as

Premier Parks Inc.) and AOL Time Warner Inc. may

directly or indirectly own some or all of SFOG Acquisition

A, Inc. and SFOG Acquisition B, L.L.C. AOL Time Warner

Inc. and Six Flags Inc. are publicly held.

TABLE OF CONTENTS

Page

CORPORATE DISCLOSURE STATEMENT.............. i

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CONSTITUTIONAL AND STATUTORY PROVI-

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STATEMENT OF THE CASE...................ccccsecesseeeeees 4

REASONS FOR DENYING THE WRIT.................... 13

I. PETITIONERS’ ABANDONMENT OF THEIR

FEDERAL DUE PROCESS CHALLENGE IS

AN ADEQUATE AND INDEPENDENT STATE

GROUND DEPRIVING THIS COURT OF JU-

FRETTING vsc0sicsiconeniniseneniaaiaauaa anaes 13

A. The Abandonment Rule Is Well-Established

And Regularly Applied...................ceceeeeeees 14

B. Federal Courts Find Waiver Under Similar

POCRD, ..0ccisviinssevereiecscpeeieanneeas 16

C. Petitioners Misstate The Holdings Of The

Court Of Appeals And The Arguments Of

ERO PATIOS .....<sseriveriensssenensaneenaenaenyeeans 18

II. THE COURT OF APPEALS CONDUCTED A

PROPER DE NOVO REVIEW UNDER BMW.... 22

A. The Use Of Treble Damages Statutes For

The Third Guidepost Analysis Is Proper....... 24

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TABLE OF CONTENTS -— Continued

Page

B. The Court Of Appeals Was Not Required

~ To Compare This Case 'To Other Punitive

Verdicts Where Statutes Satisfied The

NN, cic tancacugdenditvsnirbentinsnersensseen 28

III. THE REQUEST FOR GVR IN LIGHT OF

: STATE FARM IS MERITLESG........................ 29

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RESPONDENTS’ APPENDICEG................. cece eeeeeeee la

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TABLE OF AUTHORITIES

Page

CASES

Arford v. Blalock, 199 Ga. App. 434 (1991)................. 23, 28

BMW of N. Am. v. Gore, 517 U.S. 559 (1996)............ passim

Blane v. American Inventors Corp., 934 F. Supp.

Pe Ce I, RO scirchstionenenscidnesvinkesebencouessanmesvanenesnian 26

Browning-Ferris Indus. v. Kelco Disposal, Inc., 492

Se ia ics ioccakconuckinmiciveeaicilecimisuasiniaihaciadeeinuaawiee 25

Byrne v. Reardon, 196 Ga. App. 735 (1990).............:ceeeeee 28

Clark v. MetroHealth Found., Inc., 90 F. Supp. 2d

ee ee Be insttiedisencisevcnntnciinniiiniatereniannencanees 25

Coleman v. Thompson, 501 U.S. 722 (1991)............ ee 16

Cooper v. Aaron, 368 U.S. 1 (1GGE).........ccsccccsevecssesessevensse 30

Cooper Indus., Inc. v. Leatherman Tool Group, Inc.,

Ars Se CITED istirtinenncesersinadcceinnakinaseouieansctinnsan passim

David v. Caterpillar, Inc., 185 F. Supp. 2d 918 (C.D.

a AEN ccccuccliaciapstachi shia dichiniesesaphdaceduabieasnadiialeisamenciiaasdialenigell 25

Dixon v. MARTA, 242 Ga. App. 262 (2000) ................ ee 15

Dowell v. Department of Veterans’ Affairs, No. 3:95-

CV-606-S, 1997 U.S. Dist. LEXIS 22777, at *8

Cae i IIT PiiicesssisensctnnsBbeneccunptnbibtuseuenscdidianetcs 26

EEOC v. AIC Sec. Investigations, 55 F.3d 1276 (7th

es Pcie ci ccna beni daetaaleiesib bhi a tasteless 25

EEOC v. CEC Entertainment, Inc., No. 98-C-698-X,

2000 U.S. Dist. LEXIS 13934, at *52 (W.D. Wisc.

TABLE OF AUTHORITIES - Continued

Page

Elliott v. McDaniel, 224 Ga. App. 848 ( 1996), rev’d

on other grounds, 269 Ga. 262 (1998)......ccccccccccccecececee. 28

Evans v. State, 159 Ga. App. 706 (1981)....ccccccccccceccecceeees.. 15

Fontroy v. Owens, 23 F.3d 63 (3rd Cir. 1994).................... 21

Fox Film Corp. v. Muller, 296 U.S. 207 (1935)..........0....... 13

Francis v. Henderson, 425 U.S. 536 (1976) .........0..00.0....... 17

Gaines v. Crompton & Knowles Corp., 190 Ga. App.

Oe CRD sesisccessoninntniesbsiabeupiiiceiniih lines eens 23

Georgia Ry. & Elec. Co. v. Decatur, 297 U.S. 620

€ GID cirvxscvoessncsnhcaiidintobitiuianbbiwaeeeecavmasie teeta ene 21

Greenwood v. FAA, 28 F.3d 971 (9th Cir. |_| Eee 17

Hanson v. State, 232 Ga. App. 352 (1998) ........cccccc00000055... 27

Harrell v. Bedgood, 121 Ga. App. 16 (1970) cecccceccececceceeess. 15

Haskins v. Jones, 142 Ga. App. 153 (1977) eecccccccccecceceeeeee. 15

Immuno, AG ov. Moore-Jankowski, 77 N.Y.2d 235,

cert. denied, 500 U.S. 954 (1991) ...ce.ccccccccccccccccccecceceeeen. 21

In re Air Crash Disaster at Stapleton Int'l Airport,

Denver, Colo., on November 15, 1987, 720

F.Supp. 1505 (D. Col. 1989), rev’d in part on

other grounds, 964 F.2d 1059 (10th Cir. 1992).............. 26

Indiana ex rel. Anderson v. Brand, 303 U.S. 95

FOR vissiininovoinchieseesitsstidelbilipiadentiate cet tence ta oar a 21

International Longshoremen’s Ass’n, AFL-CIO v.

Davis, 476 U.S. 380 (1986)...........cccccccssscssesessesescesecceces 13

Jenkins v. State, 240 Ga. App. 102 (1999) ..........c00.006....... 15

Jeppsen v. Piper, Jaffray & Hopwood, 879 F. Supp.

1130 (D. Utah 1995)

TABLE OF AUTHORITIES — Continued

Page

Kent v. A.O. White, Jr. Consulting Engineers, P.C.,

SES Cie. Rape, GE Ce initia ccssnciiabaaditinteesdntianiniens 16

Lambrix v. Singletary, 520 U.S. 518 (1997) ......... eee 13

Ligon v. Bartis, 254 Ga. App. 154, cert. denied, 123

BR COR, "FE Carer icecisanisciesscsaccennsabichansbincslaniamautiaiiaseascaeias 16

Loyola Fed. Sav. Bank & Fickling, 58 F.3d 603

CTRGie Cem, Bi vecisiccsusscceinscusnccasteasienusiedilebainnanionnel: 23

Loyola Fed. Sav. & Loan Asss’n v. Fickling, 783

WH. Sep. GF CITA Goa, Be Psi acrscincntinaessatessetncccnsessaones 23

McKeever v. State, 118 Ga. App. 386 (1968) ...................65. 15

Management by Design, Inc. v. Lakeview Utils.,

Ene., BBB ie. ROG. THE CIR ecsvistieninneniicnceneiaies 16

_ Mercer v. Woodard, 166 Ga. App. 119 (1983)..................... 15

Michigan v. Long, 463 U.S. 1032 (1983)............... ee eeeeeeee 13

Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).......... 21

Mills Acquisition Co. v. MacMillan, Inc., Del. Supr.,

GED A.DE DDE Ca piciciseseirvscccectiieniataebgedbiiinand 23

Moore v. Winn-Dixie Stores Inc., 214 Ga. App. 157

(1994), overruled on othr grounds, Robinson uv.

Kroger Co., BOS Ge. TOG (IGG T) scvessserssioresiesstorevesseesosnsons 15

O’Kelley v. Hayes, 1382 Ga. App. 134 (1974)... eeeeeee 15

Ore vo. Gre, 448 UR. BRB CRG TED cecesctecetsssnteostsaeeenaiie 21

Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1

(TIDE Jicisseevicatsasenuvesienssssatiatiaiidaieaiainaanaaal 24, 29

Pioneer Commer. Funding Corp. v. Am. Fin. Mortg.

Corp., GO Pa. DD. & © GRR SE CIGD) ncecevececsseescassesecsesssesees 25

Robinson v. Kroger Co., 268 Ga. 735 (1997) .............ccceee0e 16

vii

TABLE OF AUTHORITIES -— Continued

Page

Sochor v. Florida, 504 U.S. 527 (1992)........:scseeesereeeereeeees 13

St. John v. Coisman, 799 So. 2d 1110 (Fla. Dist. Ct.

App. 2001) .....ssssscessseessssssesssssssnssssssesnsasnsnsanenesasesnenenensnens 25

State Farm Mutual Automobile Insurance Co. v.

Campbell, Docket No. 01-1289........-.:-:essesseesseeeees passim

Street v. New York, 394 U.S. 576 (1969) ........:scceeeeeeeeeeeeees 21

Taylor v. State, 177 Ga. App. 624 CRIED cncccocseccsncesesssesenes 15

Texas Indus., Inc. v. Radcliff Materials, Inc., 451

U.S. 630 (1981)... cccccccsesssseseeseeteeseesesnnenensneneeseneeenes 25

United States v. Belgarde, 300 F.3d 1177 (9th Cir.

DOOD) ....zrcccecssccesssccssscccscssscrscssvccesensesssssscnsssessesensnsesnsssones 18

United States v. Citrin, 972 F.2d 1044 (9th Cir.

1992)......ccccccccsccssssccesssscssesscvevseccecenserssscssenssessesssszonsassnsees 26

United States v. Dunkel, 927 F.2d 955 (7th Cir.

1991) .....cccccccccsscccsccrosescvceescscccsscvccesevorsenescoosonsessosssssoeeoeos 17

United States v. Hugelmeyer, 774 F. Supp. 559 (D.

AYiz. 1991) ..........esssescccccesssssscscsseceecessreccsssscnseesesterseeesenens 26

United States v. Zannino, 895 F.2d 1 (1st Cir. 1990)......... 17

United States Tobacco Co. v. Cornwood Co., Docket

No. 02-603, cert. denied, Jan. 13, 2003.............-eeeseeeees 26

Varner v. Illinois State Univ., 226 F.3d 927 (7th Cir. .

2000), cert. denied, 533 U.S. 902 (2001) ......-.eseeereeeees 21

Webb v. Webb, 451 U.S. 493 (1981) .........cecceeesereeeeneeeeeeeees 21

Williams v. Service Corp. Int’l, 218 Ga. App. 10, 459

S.E.2d G21 (1995) ......ccccceceeessseseseeeeeeesenenseeeeeessesenenenes 23

Williams v. State, 219 Ga. App. 167 (1995) .......::ssseeeeeeee

viii

TABLE OF AUTHORITIES — Continued

Page

STATUTES

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I UF MIIPIITET Seth tccssiseucenasseisshoubieciadenadadcacaseceammmmannbant 27

TIN Ui IIIT iscxicihsi sinienscdia ciinsekatbialadnaaskeatiinledsbumimeiiadmal 27

Rit NII disc cinsniccangcdeielinands dteiehaiestessniiiielalinaas 27

SN TE SPELT snincecntadacshenvdnnstesneilesiabientensmseuentaeatnciane 27

ns 27

is Se OIE eh irk ehinissSccettaicsieduaetgnneteantadcoheamaddioucnanen 23

RULES

Uy er 14

Court of Appeals Rule 27(¢)(2).............ccccccecssssssssceccceceeeeees 14

Court of Appeals Rule 27(¢)(3).............ccccceeesessssnsenseeees 14, 15

SPORE SUITE sachs Vadetsidinsitiaisiaiivnenschoniicseseassabiaulladiiataasc dace ces 17

OTHER AUTHORITIES

Restatement (Second) Torts § 874 cmt. C..........c.ccccceeeeeceees 22

BRIEF FOR SIX FLAGS OVER GEORGIA,

LLC, ET AL., INOPPOSITION

Respondents Six Flags Over Georgia, LLC (“Flags”),

Six Flags Fund, Ltd. (L.P.) (“Fund”), and George DeRoy, as

Trustee of Six Flags Claim Trust, respectfully submit this

brief in opposition to the petition for a writ of certiorari.

INTRODUCTION

The Petition does not accurately describe the Court of

Appeals’ opinions and the record evidence. Petitioners

assert that the ten-judge “Whole Court” of the Georgia

Court of Appeals unanimously “defied” this Court’s GVR

by holding on remand that Petitioners’ due process chal-

lenge to the size of the punitive damages award had been

abandoned under Georgia’s appellate rules. Pet. 2. Peti-

tioners label this state law holding as “pretext” and

“entirely imaginary.” Pet. 13, 17. Petitioners then claim

that the Georgia Supreme Court violated its own rules by

declining to review this state law finding. Pet. 21. In truth,

as the opinion below reveals, the abandonment holding

was based upon Petitioners’ failure to preserve the issues

under well-established rules of appellate procedure prom-

ulgated in 1965 and enforced regularly thereafter. It is

Petitioners’ characterization of this case and assertions of

“defiance” that are “entirely imaginary.”

Petitioners’ exaggerations perhaps result from recog-

nition that this express abandonment holding by the

Georgia Court of Appeals is an adequate and independent

state law ground for affirmance that deprives this Court of

jurisdiction.

Even though Petitioners’ failure to preserve any

constitutional challenge was dispositive, the Court of

Appeals alternatively conducted the very de novo review of

the BMW uv. Gore factors that Petitioners now claim never

occurred. Compare Pet. App. 12a, 12a-16a (Court of Ap-

peals: “we also review the punitive damages award de

novo and apply the Gore guideposts”) with Pet. 13 (Peti-

tion: “the court refused to conduct the de novo review

required by federal law and dictated by this Court’s

GVR.”). In its thorough analysis, the Court of Appeals

concluded: “[a]pplying a de novo standard of review and

weighing the Gore guideposts, we find that the award of

punitive damages under these circumstances does not

violate appellants’ federal due process rights.” Pet. App.

16a. Contrary to Petitioner’s hyperbole, those findings are

not defiant, novel or incorrect. Indeed, given that the

punitive damages award in this intentional tort case was

only 1.3 times the amount of the actual damages, the

Court of Appeals’ holding is not remotely remarkable, and

certainly nothing that warrants review by this Court.

Petitioners also claim to be victims of a unanimous

Georgia jury and unanimous Georgia trial and appellate

judges because they were supposedly “big out-of-state

companies” and Respondents were “local interests.” Pet. 1-

2. Again, the truth is quite the opposite. Petitioners them-

selves chose the venue for this suit when they sued Respon-

dents in state court in a suburb of Atlanta, Georgia,

resulting in the assertion of counterclaims by Respon-

dents. Petitioners chose that forum to adjudicate this

dispute because Petitioners — all subsidiaries of what was

Time Warner Inc. — are not truly out-of-state companies.

Time Warner Inc.’s CNN, TBS, TNT, Cartoon Network,

Turner Entertainment, Atlanta Braves, Atlanta Hawks,

and Atlanta Thrashers operations (among others) are

headquartered in Atlanta, Georgia. Petitioners’ corporate

representative at trial was an Atlanta resident, and their

main witness in the punitive damages phase of the trial

was Ted Turner, an Atlanta icon and the largest individual

shareholder and Vice-Chairman of the Board of Time

Warner Inc.

By contrast, Respondent DeRoy and the managing

General Partner of Respondent Fund are from California

and the corporate general partner of Fund was a Califor-

nia corporation. The trial representative and primary

witness for Respondents was a resident of Los Angeles, as

the Georgia jury was informed. Petitioners lost this case

on the merits because of the overwhelming evidence that

they cheated their partners — not because they were “out-

of-state companies.”

Petitioners’ recitation of the record evidence similarly

differs so substantially from the record and the appellate

opinions that it might as well be describing an entirely

different case. As the Court of Appeals twice held, the

record evidence in this case demonstrates that Petitioners

“consciously and intentionally disregarded” their fiduciary

duties to Respondents when Petitioners “carried out a plan

to depress the value” of the Six Flags Over Georgia

amusement park “by under-investing in it and then

withholding information so that [they] could acquire the

park at a discount.” Pet. App. 55a, 33a. This was a

“scheme to devalue their partners’ investment for their

own benefit” and “a premeditated plan surreptitiously

executed over a period of years.... the very definition of

‘reprehensible.’” Pet. App. 13a-14a. As a result of that

“especially reprehensible” intentional tort, the jury, which

found that Petitioners had specifically intended to harm

their partners, imposed a punitive damages award that

reflected the scale of Petitioners’ wrongdoing but was only

1.3 times the now admitted and paid compensatory dam-

ages. Pet. App. 12a, 22a & n.3.

The Court of Appeals affirmed, “[a]fter closely scruti-

nizing over 80 volumes of record and transcript.” Pet. App.

13a. After GVR to consider the effect of Leatherman, the

whole court (ten judges) of the Court of Appeals again

unanimously affirmed, concluding that

“(Gjiven the amount of intentional economic dam-

age inflicted by the appellants, corporate entities

with collective assets measured in billions of dol-

lars, we believe the award of punitive damages

was reasonably calculated to punish them and to

deter such conduct in the future.”

Pet. App. 15a.

Petitioners’ alternative request for another GVR is no

better than their argument for reversal. The pendency in

this Court of State Farm v. Campbell affords no reason to

GVR this case again. The extraterritoriality arguments

that dominate Campbell are not at issue here.’

JURISDICTION

As discussed fully in the Reasons for Denying the Writ

(see infra pp. 13-21), this Court lacks jurisdiction under 28

U.S.C. § 1257(a) because the federal questions Petitioners

now raise were not presented to or decided by the Court of

Appeals in the first instance, and were waived and aban-

doned under state law, as the Georgia Court expressly

held. Resp. App. 1a.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The relevant provisions of federal and Georgia stat-

utes and of the United States Constitution are reproduced

at Resp. App., infra, la-12a.

STATEMENT OF THE CASE

Unlike Petitioners’ statement, which relies for “factual

support” largely on citations to a brief Petitioners filed

' Petitioners concede that Campbell is different from this case

because “State Farm also presents an ‘extra-territoriality issue,” (Pet.

25) which is absent from this case. In fact, even the allegedly common

(but waived) “BMW guidepost” issues in this case are vastly different

than those presented in Campbell, as described infra at 29-30.

below (Pet. App. 60a-70a),’ the following statement is fully

: supported by citations to the opinions of the Court of

Appeals and the trial record.

1. Between 1991 and 1997, Petitioners flagrantly

abused their positions as general partner (or entities

controlling that partner) of the Six Flags theme park in

Atlanta, Georgia, by engaging in various intentional,

wrongful acts in clear contravention of the fiduciary duties

they owed to their partners. At the heart of Petitioners’

scheme was a plan to depress “the value of the park by

under-investing in it and then withholding information so

that it could acquire the park at a discount” once the

partnership agreement between Petitioners and Respon-

dents ended in 1997. Pet. App. 33a. The evidence showed a

“scheme to devalue their partners’ investment for their own

benefit,” “a premeditated plan surreptitiously executed over

a period of years,” and an “intentional breach of its fiduci-

ary duty [that] revealed a callous indifference to the finan-

cial well-being of its limited partners” through conduct that

was “deceitful, self-serving and financially damaging” and

“especially reprehensible.” Pet. App. 12a-14a.

Secret internal memoranda and presentations re-

vealed that Petitioners consciously planned to “milk” the

Georgia park by decreasing capital expenditures as the

partnership agreement approached expiration. Pet. App.

29a.‘ Petitioners assert that they were required by the

? Page limitations defeat any attempt to list, much less debunk, all

of Petitioners’ factual misstatements.

* The park was owned by Flags, a limited partnership. Petitioners

were the general partner of Flags and entities that owned and con-

trolled that general partner and were making the decisions for Flags.

Fund was the sole limited partner of Flags.

* Time Warner states that it “satisfied its contractual duty to invest

$800,000 per year,” suggesting that capital improvements were made

with Petitioners’ funds (Pet. 7), but “all capital expenditures” in fact

(Continued on following page)

partnership agreement to invest only $800,000 per year in

capital improvements to the park, but the Court of Ap-

peals explicitly rejected that interpretation of the partner-

ship agreement as a matter of state law.’ As the Court of

Appeals explained, not only did Petitioners’ devious

strategy constitute an objective violation of Petitioners’

fiduciary “duty to act in good faith in making [capital

improvement] decisions,” but “the evidence shows that

[Petitioners themselves] never interpreted the capital

expenditures provision to mean they only had to invest

$800,000 per year.” Pet. App. 37a, 40a (emphasis added).

To the contrary, Petitioners’ top officer acknowledged and

recognized that Petitioners had a duty to “maximize the

performance” of the park. Pet. App. 40a.

A clear illustration of Petitioners’ scheme was their

calculated decision, shown by their own 1995 confidential

memorandum, to delay the installation of “Batman the

Ride” in order to reduce Respondents’ “leverage in

negotiating with other potential strategic partners in 1998

and beyond.” Pet. App. 30a. Starving the park of capital

expenditures, such as the Batman ride, depressed the

park’s value by almost $150 million, inducing weak offers

from competing bidders. This allowed Petitioners to secure

the park at a lower price in 1997. Pet. App. 29a-32a, 53a-

S4a.

The damage to Petitioners’ partners was severe. The

jury awarded approximately $149 million on the claim

that Petitioners intentionally drove down the value and

“(came] from the park’s [i.e., Respondent Flags’) surplus operating

cash.” Pet. App. 26a.

* There was also no evidence supporting Petitioner’s argument

about this “$800,000” provision. Indeed, the contrary testimony of

Respondent’s witness Salkin, who negotiated the partnership agree-

ment, was uncontradicted. Simply put, “minimum” does not mean

“maximum”, as it must for Petitioners to have prevailed.

the prospective purchase price of the park.* The size and

evidentiary support for this compensatory damages award

cannot be challenged in this Court because Petitioners

paid that award in full after losing on appeal below. Pet. 9.

Nevertheless, Petitioners claim that “respondents have

never explained how the installation of a $9 million ride

could somehow increase the value of the Six Flags park by

$150 million overnight.” Pet. 20. First, that is a gross

misstatement of this part of Respondents’ damages claim.

Pet. App. 26a-3la. Second, the devaluation claim was

explained repeatedly at trial, through several expert

witnesses. The Court of Appeals recognized that the

mechanics of the valuation were relatively straightforward,

as “[clapital investment in an amusement park, especially

in major thrill rides, fuels EBITDA (i.e., “earnings before

interest, taxes, depreciation, and amortization”) growth,

which in turn increases the value of the park.” Pet. App.

29a. For example, the Batman ride was the most

successful capital expenditure in the history of the Six

Flags parks and had driven up EBITDA by 37 to 54

percent in the first year after it was installed at Time

Warner’s wholly owned parks in Chicago, New Jersey, Los

Angeles, and St. Louis. Pet. App. 30a; PX 817 at 2; PX 970;

PX 484 at 8. Amusement parks are valued, bought, and

sold at a multiple of EBITDA, thus multiplying the effect

of capital expenditures on value. Pet. App. 29a. This

evidence flatly discredits the continued suggestion that

appropriate capital expenditures — which were not limited

to the Batman ride — could not boost the park’s value by

almost $150 million.

* See Pet. App. 29a-32a, 53a-54a (Court of Appeals discussions of

how withheld capital expenditures resulted in the figure for decreased

park value awarded by the jury).

In addition to depressing the value and earnings of

the park, Petitioners actively sabotaged Respondents’

attempt to conduct a competitive auction for the park,

chilling the interest of other bidders and inducing weak

bids, by withholding and distorting financial information

necessary to allow other prospective bidders to value the

park accurately. Pet. App. 30a-31a; see also PX 20 (internal

instructions to be “niggardly” in responding to Fund’s

requests for financial information and to “flatten out”

projections). In violation of their fiduciary duties to Re-

spondents, Petitioners bought land “immediately adjacent”

- to the park, “thus limiting the park’s expansion opportuni-

ties” (Pet. App. 25a-26a); they used “confidential business

information” from the park to “stud[y] the feasibility of

developing a competing park” (Pet. App. 26a); they signed

employment contracts including non-competition clauses

with “key park executives” that would become effective

after the partnership ended (Pet. App. 27a); and they

“deferred” substantial maintenance and failed to make $7

to 10 million of “basic repairs” (ibid.). Petitioners’ malevo-

lent role in this process (most of which was revealed only

by this litigation) undercuts any suggestion that Respon-

dents voluntarily accepted Petitioners as “their fiduciary

for another 30 years.”’ Pet. 6.

In operating the Park, Petitioners missed no opportu-

nity to profit at the expense of their partners. They

charged more than $4 million of luxury expenses to the

partnership in violation of the partnership agreement;

they overcharged the partnership by almost $1.4 million

for an obsolete minor attraction that was installed instead

" Petitioners’ scheme worked: Fund had no viable alternative to

signing a new management contract with the Petitioners as high

bidder. Pet. App. 25a, 28a. However, one of the express conditions of

this new contract was the preservation of Flags’ and Funds’ claims

against Petitioners. Pet. App. 28a; PX 719.

of the EBITDA-boosting Batman ride; and they surrepti-

tiously took a $2.8 million sponsorship fee from Coca-Cola

and used it to finance Petitioners’ investment in the Six

Flags Parks chain, reaping a $26.3 million windfall for

Petitioners from a partnership asset. Pet. App. 32a, 54a.

Contrary to Petitioners’ assertion that their conduct

was “barely even tortious” (Pet. 17), the Court of Appeals

found it was “especially reprehensible” (Pet. App. 12a) and

that Petitioners were “aware” they owed a fiduciary duty

to Respondents “but consciously and intentionally disre-

garded that duty,” Pet. App. 55a.

2. This lawsuit was originally filed by Petitioner Six

Flags Theme Parks Inc. (a subsidiary of Petitioner Time

Warner Entertainment Company, L.P.), and Fleg’s general

partner, Petitioner Six Flags Over Georgia, Inc. Pet. App.

28a. Petitioners — not Respondents — chose Gwinnett

County, Georgia as the forum. The trial court realigned

and added parties. bid. After a six-week trial, the jury

found all four Petitioners liable, awarding $197.3 million

in compensatory damages. The jury found by special

interrogatory that each Petitioner had acted with “specific

intent to harm” and imposed $257 million in punitive

damages, a ratio of only 1.3 to 1. Pet. App. 22a & n.3.

In their initial appeal, Petitioners made only a vague

and cursory challenge to the constitutionality of the

* Contrary to Petitioners’ assertion that “the trial court suppressed

evidence that the parties’ purpose in entering the partnership was to

create a tax shelter” (Pet. 7 n.5), Petitioners “presented their own

expert testimony covering those points” and cross-examined Respon-

dents’ chief witness about them. Pet. App. 43a-44a. Petitioners also

refer to excluded “evidence” that “plainly” shows the Coca-Cola funds

were not used to finance the Six Flags acquisition (Pet. 7 n.5), but the

Court of Appeals affirmed the exclusion of that alleged proof because

Petitioners “plainly” violated a court order to produce the information.

Pet. App. 47a.

punitive damages award. Their argument for constitu-

tional excessiveness consumed only two sentences of their

60-page appellate brief. They cited BMW of N. Am. v. Gore,

517 U.S. 559 (1996), but solely as limiting the amount of

punitive damages in cases involving “purely economic”

harm, and made no mention at all of any of the BMW

guideposts, even though the third guidepost argument

forms the basis for Question 2 of their current Petition in

this Court.° Resp. App. 14a.

3. The Court of Appeals affirmed. Nearly half of the

court’s 49-page opinion carefully documented and ex-

plained the calculated and outrageous nature of Petition-

ers’ conduct. See Pet. App. 21a-34a, 37a-41a, 52a-56a. The

Court of Appeals concluded that Petitioners had engaged

in “willful misconduct,” delineating instances in which

Petitioners “took money belonging to [Respondents],” “kept

secret profits derived from the sale of a partnership asset,”

and “engaged in self-dealing conduct that specifically

harmed [Respondents].” Pet. App. 55a, 33a. The court also

took into account the extremely low ratio — 1.3 to 1 — of

punitive to compensatory damages, but explained that it

did “not mechanically look to the ratio.” Pet. App. 56a.

In its initial opinion, the Court of Appeals said noth-

ing about BMW's third guidepost or anything about BMW

at all. Ibid. This is because Petitioners never asked that

court to perform an analysis under the third or any other

guidepost.

The Court of Appeals rejected Petitioners’ argument

that Georgia law did not recognize a claim for aiding and

abetting a breach of fiduciary duty. The Court of Appeals

found that Petitioners had “conceded” the existence of “an

aiding and abetting theory pf liability” by submitting jury

® Petitioners’ Reply Brief similarly devoted only two sentences to

conceivably federal issues. See Resp. App. 16a.

charges on the aiding and abetting theory and by failing

properly to enumerate as error on appeal the finding of

liability on that ground. Pet. App. 34a-36a. After consider-

ing the substance of Petitioners’ argument, the court noted

that “[wJere we required to address this issue,” it would

have affirmed. Ibid. Because of Petitioners’ failure to

comply with state procedural rules, however, the court

concluded that it “lacks the jurisdiction to consider” it. Pet.

App. 36a.

After affirmance, Petitioners filed a motion for recon-

sideration with the Court of Appeals, in which they again

failed to raise any of the questions presented in their

current Petition. With respect to the alleged excessiveness

of the punitive damages, Petitioners included only a

citation to BMW but offered nothing about its potential

relevance or its “guideposts.” Resp. App. 19a.

4. After the Court of Appeals denied their Motion for

Reconsideration, Petitioners sought a discretionary grant

of certiorari from the Georgia Supreme Court, which was

denied. Pet. 9.

5. Petitioners sought certiorari from this Court and,

alternatively, a GVR in light of Cooper Indus., Inc. v.

Leatherman Tool Group, Inc., 532 U.S. 424 (2001). On

October 1, 2001, this Court granted a GVR in light of

Cooper. Pet. App. 59a.

6. On remand, the Georgia Court of Appeals asked

for re-briefing and re-argument. On March 29, 2002, the

whole (ten judge) Court of Appeals unanimously affirmed.

The Court held that Petitioners had abandoned their

alleged federal constitutional challenges under well-

established Georgia law and procedural rules. Neverthe-

less, the Court of Appeals conducted a thorough de novo

review under BMW. In that review, the Court stated:

“[A]lthough the harm to Flags and Fund was

primarily economic, it was caused by conduct we

find especially reprehensible. Appellants’ inten-

tional breach of its fiduciary duty revealed a cal-

lous indifference to the financial well-being of its

limited partners and their individual investors.

After carefully scrutinizing over 80 volumes of

record and transcript during the first appeal, we

found that the evidence adduced supported the

jury’s conclusion that appellants acted in concert

to breach SFOG’s fiduciary duty to its business

partners. Six-and-a-half pages of our [prior] pub-

lished opinion are dedicated to describing appel-

lants’ scheme to devalue their partners’ investment

for their own benefit.”

* * *

“Appellants’ conduct toward its partners and

those who invested in the limited partnership

was part of a premeditated plan surreptitiously

executed over a period of years. Appellants’ con-

duct was deceitful, self-serving, and financially

damaging. More importantly, however, appel-

lants’ conduct was a breach of fiduciary duty, a

violation of a confidential relationship of trust

requiring the utmost in good faith.”

* * *

“Appellants’ conduct was, in short, the kind of be-

havior we find ‘deserving of reproof, rebuke, or

censure; blameworthy’ — the very definition of ‘rep-

rehensible.’”

Pet. App. 12a-13a (emphasis added).

With respect to Petitioners’ belated third guidepost

argument, the Court of Appeals identified several Georgia

statutes imposing double or treble penalties for “compara-

ble corporate misbehavior.” Pet. App. 16a. Because the

punitive damages here were only 1.3 times compensatory

damages, the court held that those statutes provided “fair

notice not only of the kind of conduct that would subject

them to punishment, but also of the severity of the penalty

that might be imposed.” Ibid.

Petitioner sought a discretionary grant of certiorari

from the Georgia Supreme Court. The Georgia Supreme

Court denied the petition, and denied the motion for

reconsideration. Pet. App. 17a.

REASONS FOR DENYING THE WRIT

I. PETITIONERS’ ABANDONMENT OF THEIR

FEDERAL DUE PROCESS CHALLENGE IS AN

ADEQUATE AND INDEPENDENT STATE

GROUND DEPRIVING THIS COURT OF JU-

RISDICTION

This Court will not review judgments of state courts

that rest on adequate and independent state law grounds.

Michigan v. Long, 463 U.S. 1032, 1040-41 (1983). In this

context, an adequate and independent state ground doctrine

is jurisdictional, because, if the state law determination is

sufficient to sustain the judgment, “any opinion of this

Court on the federal question would be purely advisory.”

Lambrix v. Singletary, 520 U.S. 518, 522 (1997).

Thus, where, as here, a state court indicates with

“requisite clarity” that petitioner’s claims were rejected on

state law grounds, this Court will refuse to address the

federal claim supposedly raised below. Sochor v. Florida, 504

U.S. 527, 533 (1992); International Longshoremen’s Ass’n,

AFL-CIO v. Davis, 476 U.S. 380, 387 (1986). “[RJespect for

the independence of state courts, as well as avoidance of

rendering advisory opinions, have been the cornerstones of

this Court’s refusal to decide” such cases. Michigan v.

Long, 463 U.S. at 1040.

The alternative holding rejecting Petitioners’ federal

due process claim on the merits does not affect this analy-

sis. “[WJhere the judgment of a state court rests upon two

grounds, one of which is federal and the other nonfederal

in character, [the] jurisdiction [of this Court] fails if the

non-federal ground is independent of the federal ground

and adequate to support the judgment.” Fox Film Corp. v.

Muller, 296 U.S. 207, 210 (1935).

A. The Abandonment Rule Is Well-Established

And Regularly Applied

To preserve a claim of error in the Georgia appellate

courts requires two steps: (1) identifying the claim of error

in the “Enumeration of Errors” (Rule 27(a\2)) and (2)

providing meaningful argument, supported by legal

authority and citation to record evidence, for each enu-

meration of error. Rule 27(c)(2)-(3). Resp. App. la-3a.

Petitioners failed on all counts as to any allegation of

federal constitutional excessiveness.

Petitioners did not include constitutional excessive-

ness as an enumeration of error at all, and they devoted

only two sentences of a 60 page brief to the issue. Pet. App.

1la-12a." Petitioners’ initial appellate brief did not men-

tion, inter alia: the first guidepost of BMW; the second

guidepost of BMW; the third guidepost of BMW; their new

argument that treble damages statutes cannot satisfy the

third guidepost; their new argument that alleged infirmi-

ties in the compensatory award rendered the punitive

award excessive; or their new argument that a comparison

to other punitive damages cases was required. Under Rule

27 of the Georgia Court of Appeals, the finding of waiver

was not only entirely proper: it was inescapable.

Originally adopted in 1965, Court of Appeals Rule

27(c\2) provides: “Unsupported Claim of Error Treated as

Abandoned. Any enumeration of error which is not sup-

ported in the brief by citation of authority or argument

* In the Court of Appeals, Petitioners requested, received permis-

sion to, and then filed a brief double the 30 page limit. Resp. App. 32a-

34a. The only language addressing constitutional issues was: “The

punitive damages also violate the Due Process Clauses of the Georgia

and United States Constitutions. Resp. App. 14a. As in BMW of North

America, Inc. v. Gore, 517 U.S. 599 (1996), the injury here ‘was purely

economic in nature,’ and Defendants’ conduct ‘evinced no indifference to

or reckless disregard for the health and safety of others.’ Id. at 576.”

shall be deemed abandoned.” Resp. App. 3a. Rule 27(c)(3)

provides: “Each enumerated error shall be supported in

the brief by specific reference to the record or transcript.

In the absence of such reference, the Court will not ...

consider such enumeration.” Resp. App. 3a. Numerous

Georgia cases have applied Rule 27 and found arguments

abandoned because they were not adequately supported in

the brief. See, e.g., Dixon v. MARTA, 242 Ga. App. 262, 266

(2000) (cited by the Court of Appeals (Pet. App. 12a),

“appellate judges should not be expected to take pilgrim-

ages into records in search of error without the compass of

citation and argument”); Harrell v. Bedgood, 121 Ga. App.

16, 17 (1970) (four sentences in brief insufficient argument

to support an enumeration of error); Mercer v. Woodard,

166 Ga. App. 119, 129 (1983) (a single sentence of argu-

ment is “deficient”); Taylor v. State, 177 Ga. App. 624, 628

(1986) (bare citation to a single authority, without mean-

ingful explanation of its relevance or applicability, is not

enough to preserve any arguments arising out of that

authority); Haskins v. Jones, 142 Ga. App. 153, 153 (1977)

(holding enumerations of error abandoned for insufficient

argument); Evans v. State, 159 Ga. App. 706 (1981) (mere

statement of defendant’s contention not sufficient argu-

ment to support enumeration of error); O’Kelley v. Hayes,

132 Ga. App. 134 (1974) (same); McKeever v. State, 118 Ga.

App. 386, 391 (1968) (single sentence insufficient argu-

ment to support enumeration, which is deemed aban-

doned); Jenkins v. State, 240 Ga. App. 102, 103 (1999)

(“This court requires that appellants support enumera-

tions of error with argument and citations to authority.

Mere conclusory statements such as those made here are

not the type of meaningful argument contemplated by that

rule.”); Williams v. State, 219 Ga. App. 167, 168 (1995);

Moore v. Winn-Dixie Stores, Inc., 214 Ga. App. 157, 158

(1994) (“Any issue reasonably contained within an

enumeration of error as to which there has not been any

argument or citation of authority made in appellant’s brief

is deemed abandoned on appeal.”) (citations omitted),

overruled on other grounds, Robinson v. Kroger Co., 268

Ga. 735 (1997); Management by Design, Inc. v. Lakeview

Utils., Inc., 233 Ga. App. 711 (1998); Ligon v. Bartis, 254

Ga. App. 154, cert. denied, 123 S. Ct. 702 (2002).

The Georgia Court of Appeals broke no new ground

here.

Petitioners argue that the holding of Kent v. A.O.

White, Jr., Consulting Engineers, P.C. indicates that the

waiver rules are not consistently applied. Pet. 16. But the

Kent case was a short-lived aberration that never reflected

or became the law in Georgia. As noted above, numerous

pre-Kent cases held that a waiver resulted from failure to

properly present an argument in a brief. See supra at 15-

16. Kent held (without argument on the issue and without

recognizing any of the prior cases), that the defendant

would receive a de novo review of the BMW guideposts

despite waiving such review by requesting abuse of discre-

tion review. 253 Ga. App. 492, 498 (2002). When this case

appeared before the Court of Appeals the second time, the

waiver issue was actually briefed and argued, the prior

cases were put before the court, and the nature of a GVR

examined. The Court overruled Kent and reiterated the

long-standing rules of waiver and abandonment in Geor-

gia, from which Kent was an unsupported departure.

Moreover, Petitioners could not have relied upon Kent in

“refraining” from raising a federal due process challenge:

Petitioners filed the brief in which they abandoned any

such arguments on September 20, 1999; Kent was not

decided until January 29, 2002.

B. Federal Courts Find Waiver Under Similar

Facts

Petitioners’ claim that their waiver was “imaginary” is

also belied by the fact that federal courts find waiver

under similar circumstances and rules. In Coleman uv.

Thompson, 501 U.S. 722, 745-46 (1991), this Court held

that where the state procedural rule upon which the

waiver of federal claims was predicated had a federal

counterpart, “a proper respect for the States required that

federal courts give to the state procedural rule the same

effect they give to the federal rule.” See also Francis uv.

Henderson, 425 U.S. 536, 541-42 (1976) (“There is no

reason to... give greater preclusive effect to procedural

defaults by federal defendants than to similar defaults by

state defendants. To hold otherwise would reflect an

anomalous and erroneous view of federal-state relations.”).

Georgia Court of Appeals Rule 27(c) has a federal

counterpart: FRAP 28(a)(9). Resp. App. 3a-4a. Applying

that rule, Federal courts regularly refuse to consider

issues supported only by cursory argument in a lengthy

brief raising numerous issues. See United States v. Dunkel,

927 F.2d 955, 956 (7th Cir. 1991) (“A skeletal ‘argument,’

really nothing more than an assertion, does not preserve a

claim. Especially not when the brief presents a passel of

other arguments, as Dunkel’s did. Judges are not like pigs,

hunting for truffles buried in briefs.”) (emphasis added)

(citations omitted); Greenwood v. FAA, 28 F.3d 971, 977

(9th Cir. 1994) (in rejecting under Rule 28(a)(9) a claimed

constitutional violation, the Ninth Circuit held that “[wle

review only issues which are argued specifically and

distinctly in a party’s opening brief. We will not manufac-

ture arguments for an appellant, and a bare assertion does

not preserve a claim, particularly when, as here, a host of

other issues are presented for review.”) (emphasis added)

(citations omitted); United States v. Zannino, 895 F.2d 1,

17 (1st Cir. 1990) (“issues adverted to in a perfunctory

manner, unaccompanied by some effort at developed

argumentation, are deemed waived.... It is not enough

merely to mention a possible argument in the most skele-

tal way, leaving the court to do counsel’s work. . . .. Conse-

quently, a litigant has an obligation to spell out its

arguments squarely and distinctly, or else forever hold its

peace”). See also United States v. Belgarde, 300 F.3d 1177,

1181 n.1 (9th Cir. 2002) (“[F.R.A.P.] 28(a)(9)(A) requires an

appellant to state in his or her argument, ‘contentions and

the reason for them, with citations to the authorities and

parts of the record on which the appellant relies.’ Belgarde

did not do this ... and as such abandoned any such issue

on appeal.”).

C. Petitioners Misstate The Holdings Of The

Court Of Appeals And The Arguments Of

The Parties

Petitioners apparently recognize that the authorities

cited above deprive this Court of jurisdiction and doom

their challenge to the Court of Appeals abandonment

holding. Straining to escape that ruling, Petitioners

contend that the unanimous Court of Appeals and the

Georgia Supreme Court concocted an “entirely imaginary”

waiver as a “pretext” to express “defiance” and “antago-

nism” towards this Court and its GVR order, “denounced”

this Court, and refused to act in “good faith.” Pet. 2, 3, 13,

17, 21. Petitioners misstate the holding of the Court of

Appeals, clear Georgia law, and the arguments of the

parties.

Petitioners assert that the Court of Appeals “defied

this Court’s directives” and “refused to conduct the de novo

review required by federal law and dictated by this Court’s

GVR.” Pet. at 13 (emphasis added). But, after finding that

the federal due process challenge had not been preserved

under Georgia’s appellate rules, the Court of Appeals went

on to review the punitive damages award de novo and

apply the Gore guideposts. Pet. App. 12a. The multi-page,

detailed de novo review that followed culminated in this

finding: “[a]Jpplying a de novo standard of review and

weighing the Gore guideposts, we find that the award of

punitive damages under these circumstances does not

violate appellants’ federal due process rights.” Pet. App.

16a. The Court of Appeals expressly performed the very

analysis that Petitioners claim it “defiantly” refused to

undertake.

To fuel this image of the “defiant” Georgia courts,

Petitioners claim that the Court of Appeals “denounced

this Court’s punitive damages jurisprudence” and criti-

cized it as a “‘dangerous development’” and as “an imper-

fect ... attempt to evaluate punitive damages.” Pet. 2, 13.

That language, however, came not from the Court of

Appeals itself, but instead from law review articles it cited

(Pet. App. 8a, 10a-11la n.6) as part of its balanced, schol-

arly analysis (Pet. App. 6a-10a) of whether the Georgia

Supreme Court would use Cooper’s de novo standard of

review in evaluating claims of excessiveness of punitive

damages under Georgia common law. For the federal

Constitutional analysis, however, the Court of Appeals

faithfully followed BMW and Cooper. Pet. App. 12a-16a.

To support their contention that the waiver was

“entirely imaginary” (Pet. 13), Petitioners erroneously

claim that, in the previous appearance of this case in this

Court, Respondents asserted only a waiver argument

“different than that embraced by the court of appeals.”

Pet. 15 n.9. That is also incorrect. At that stage, Respon-

dents argued that no federal constitutional issue was pre-

served (see, e.g., Resp. App. 21a-22a) (petitioners’ arguments

below were “inadequate to constitute the proper presentation

of any federal constitutional concerns they might have

had.... ”). Respondents also argued that “[iJn their briefs

in that court .. . Petitioners made only vague challenges to

the punitive damages award ... [and] included only two

sentences alleging any due process violations.... In

reference to the alleged excessiveness of the punitive

damages, Petitioners included only a naked citation to

BMW but offered no discussion of its potential relevance.”

Resp. App. 2la-22a. Those are exactly the fatal failures

upon which the Court of Appeals based the waiver holding

that now controls this Court’s disposition of this case. Pet.

App. lla-12a.

Using ellipses to alter the meaning of a quote, Peti-

tioners assert that Respondents conceded “the proper

presentation of some due process claims under BMW.” Pet.

15, quoting 2001 Resp. at 18. There was no such conces-

sion. After arguing that no BMW claims were preserved

(2001 Resp. at 7, 9, 27, Resp. App. 21a-22a), Respondents

focused in on the alternative argument: “Nor could the

proper presentation of some due process claims under

BMW adequately preserve separate ones.” 2001 Resp. at

18 (emphasis in original). Resp. App. 22a.

Petitioners incorrectly assert that “even in opposing

petitioners’ certiorari petition in the Georgia Supreme

Court, respondents could not bring themselves to defend

the court of appeals’ waiver holding.” Pet. 15. To the

contrary, Respondents argued to the Georgia Supreme

Court that “[t]he Court of Appeals’ findings on these issues

are unassailable.” Resp. App. 24a. Respondents empha-

sized that the abandonment holding “relies on settled

principles of Georgia law,” and was “neither novel nor

certworthy.” Resp. App. 25a-26a. And Respondents argued

that “the whole court’s ruling also reaffirmed_the long-

standing rule under Georgia law that an argument not

made in an appellant’s brief is abandoned and is not

preserved for review.” Resp. App. 28a.

Absurdly, Petitioners argue that the Court of Appeals

did not find a waiver of the BMW claim in the case’s first

appearance before that Court. Pet. 14-15. But the Court of

Appeals did not then rule on or find a waiver of the BMW

challenge because Petitioners had not yet raised the issue.

Pet. App. 56a. “This Court has frequently stated that when

‘the highest state court has failed to pass upon a federal

question, it will be assumed that the omission was due to

want of proper presentation in the state courts, unless the

aggrieved party in this Court can affirmatively show the

contrary.” Webb v. Webb, 451 U.S. 493, 495 (1981) (quoting

Street v. New York, 394 U.S. 576, 582 (1969)).

Petitioners argue that the waiver holding was suspect

because the Court of Appeals did not hold the state com-

mon law excessiveness claim to be waived. Pet. 15-16. The

answer: Petitioners enumerated common law excessive-

ness as error and devoted pages of their initial brief to

common law excessiveness, in stark contrast to the two

throw-away sentences arguably devoted to federal consti-

tutional excessiveness. Resp. App. 14a.

Petitioners argue that this Court’s GVR holding

“umplied a determination that petitioners’ BMW claims...

were properly preserved.” Pet. at 16. That is not the law.”

Proper preservation under rules of the Court of Appeals of

Georgia is a matter of Georgia law. Even if this Court had

expressly held that such claims were properly preserved

under Georgia procedural rules (which it did not), the

Georgia courts would remain free to disagree as to this

matter of state law after remand. See Georgia Ry. & Elec.

Co. v. Decatur, 297 U.S. 620 (1936); Indiana ex rel. Ander-

son v. Brand, 303 U.S. 95, 109 (1938); Orr v. Orr, 440 U.S.

268, 284 n.13 (1979).

" See Fontroy v. Owens, 23 F.3d 63, 66 (3d Cir. 1994) (GVR in light

of intervening Supreme Court case was not a decision on the contention

that the petitioner had waived the issue governed by that case, and

GVR could not be construed as “deciding the waiver issue.”)); Varner v.

Illinois State Univ., 226 F.3d 927, 936-37 (7th Cir. 2000) (although case

was remanded for consideration of new Supreme Court authority,

nothing in GVR order precluded court on remand from concluding

defendant had waived that argument), cert. denied, 533 U.S. 902 (2001).

This Court has held that, upon remand, appellate courts “remain free”

to base their decisions on independent state law grounds. Milkovich v.

Lorain Journal Co., 497 U.S. 1, 10 n.5 (1990). See Immuno, AG v. Moor-

Jankowski, 77 N.Y.2d 235, 251-52 (after GVR, court must consider

intervening authority, but may base its decision upon independent state

law grounds), cert. denied, 500 U.S. 954 (1991).

Il. THE COURT OF APPEALS CONDUCTED A

PROPER DE NOVO REVIEW UNDER BMW

Despite finding abandonment, the Court of Appeals

alternatively performed a thorough de novo review under

BMW, properly applying each guidepost.

The First Guidepost. Petitioners briefly assert (one

paragraph) that their conduct was not “reprehensible”

under the first BMW guidepost. Pet. 17-18. This conten-

tion is misplaced in an intentional tort case in which the

jury found by special interrogatory that each Petitioner

acted with “a specific intent to harm.” Pet. App. 22a n.3.

The Court of Appeals’ painstaking review of the record and

the multiple, intentional bad acts and schemes supporting

its conclusion that the conduct of the Petitioners was

“especially reprehensible” (Pet. App. 12a), are discussed in

detail at pp. 3, 5-12, supra.

Petitioners’ claim that the corporate “parents” had no

notice that they could be liable for aiding and abetting

their subsidiaries in a tortious scheme (Pet. 18-19) to

divert hundreds of millions of dollars to the “parent”

corporations is particularly specious.” The evidence

showed that the directions to “take money belonging to”

Respondents came from the “parent” corporations, the

money went to the “parent” corporations, Pet. App. 24a,

25a, 28a, and the “parent” corporations admitted they

“knew they had a duty to maximize the performance of the

partnership parks”. Pet. App. 40a, 24a. The Restatement

* In addition, Petitioners’ notice claim is independently barred by

their waiver at trial of any objection to aiding-and-abetting liability. As

the Court of Appeals held, Petitioners waived this issue under state law

in two ways: by failing to object at trial to the submission of this case to

the jury on a theory of aiding-and-abetting liability (and in fact

submitting their own charges on that theory), and by failing to “enu-

merate[ ] as error the jury's finding of liability on this theory.” Pet. App.

34a-36a.

LAO LE RAYE mir

(Second) Torts § 874, comment c, provides for liability for

aiding a breach of fiduciary duty. A Georgia statute gave

notice that “in all cases” one who procures the commission

of an actionable wrong “is a joint wrongdoer and may be

subject to an action either alone or jointly with the person

who actually committed the injury.” O.C.G.A. § 51-12-30

(emphasis added). Resp. App. 4a. Moreover, several pub-

lished Georgia cases had imposed liability for aiding and

abetting a breach of fiduciary duty prior to this case, but

simply had not stated in so many words that Georgia

recognizes this tort." “It is bedrock law that the conduct of

one who knowingly joins with a fiduciary ... in breaching

a fiduciary duty, is equally culpable.” Mills Acquisition Co.

v. MacMillan, Inc., Del. Supr., 559 A.2d 1261, 1284 n.33

(1989). But even beyond that, the “parents” cannot rea-

sonably have believed that they were immune from liabil-

ity for directing their subsidiaries to breach fiduciary

duties where the parents enjoyed the proceeds of the

misconduct.

The Second Guidepost. Petitioners’ second guidepost

argument rests on the claim that the compensatory award

was, itself, excessive and thus was punitive rather than

“compensatory.” Thus, Petitioners claim, the allowable

* Williams v. Service Corp. Int'l, 218 Ga. App. 10, 459 S.E.2d 621

(1995) (denial of motion to dismiss claims for aiding and abetting torts

including breach of fiduciary duty affirmed); Gaines v. Crompton &

Knowles Corp., 190 Ga. App. 863 (1989) (jury award of resulting profits

of entity that aided breach of fiduciary duty authorized under Georgia

law); Arford v. Blalock, 199 Ga. App. 434 (1991) (party who induced

fiduciary to breach fiduciary duty liable for punitive damages). See

Loyola Fed. Sav. Bank v. Fickling, 58 F.3d 603, 608 (llth Cir. 1995)

(affirming verdict under Georgia law for assisting general partner’s

breach of fiduciary duty to limited partner); Loyola Fed. Sav. & Loan

Ass'n v. Fickling, 783 F.Supp. 620, 625-26 & n.2 (M.D.Ga. 1992)

(denying summary judgment on claim of assisting breach of fiduciary

duty under Georgia law).

punitive damages ratio should be “lower.” (Pet. 19-20). But

the affirmed compensatory award, now paid by Petitioners

and not subject to challenge in this Court, was, as found

by the Court of Appeals, “well within the range of evi-

dence” and calculated to a “reasonable certainty.” Pet. App.

54a. Accordingly, the entitlement of Respondents to that

amount as compensatory damages has been conclusively

established, and the factual predicate to the argument

therefore fails. Moreover, whatever the validity of Peti-

tioners’ argument in the abstract, it is moot here because

the 1.3 to 1 ratio is already far “lower” than that allowed

by many decisions of this and other Courts. See Pacific

Mutual Life Ins. Co. v. Haslip, 499 U.S. 1 (1991) (punitive

damages four times compensatory damages within consti-

tutional boundaries).

The Third Guidepost. Petitioners’ substantive argu-

ments under the third guidepost also have no merit. In

BMW, this Court set forth as its third guidepost

“[clomparing the punitive damages award and the civil or

criminal penalties that could be imposed for comparable

misconduct.” 517 U.S. at 583. The Court of Appeals found

Petitioner’s conduct to be comparable to conduct that

violates several Georgia statutes, including the Georgia

RICO statute. Pet. App. 15a-16a. Each of the statutes

punishing comparable conduct provides for either double

or treble the compensatory damages as a penalty (and

some also call for jail time). Jd. Because the ratio here was

1.3 to 1, the Court of Appeals properly held that these

statutory penalties, provided for comparable misconduct,

satisfied the third guidepost. Id.

A. The Use Of Treble Damages Statutes For

The Third Guidepost Analysis Is Proper

Petitioners’ entirely new and unsupported argument

that treble damages statutes cannot satisfy the third guide-

post of BMW (Pet. 23) is contrary to existing authority. See,

Pra UR, CEO Siete HENS Aaa nt

e.g., EEOC v. CEC Entertainment, Inc., No. 98-C-698-X,

2000 U.S. Dist. LEXIS 13934, at *52 (W.D. Wisc. 2000)

(performing BMW analysis and upholding three to one

ratio, noting that “‘statutes routinely provide for double

and treble damages awards to deter and punish.’ For

instance, the ADEA provides for double damages in cases

of willful violations.”); EEOC v. AIC Sec. Investigations, 55

F.3d 1276, 1287 (7th Cir. 1995) (punitive damages not

excessive where “award is three times the amount of

compensatory damages, and statutes routinely provide for

double and treble damages awards to deter and punish.”);

Pioneer Commer. Funding Corp. v. Am. Fin. Mortg. Corp.,

50 Pa. D & C 4th 31, 69 (2000) (looking to analogous treble

damages statute under third guidepost, and remitting

punitive damages to 3:1).'* See also St. John v. Coisman,

799 So. 2d 1110, 1122-23 (Fla. Dist. Ct. App. 2001).

Indeed, the very concept of a proportionality/ratio

requirement had its “pedigree” in the long acceptance of

treble damages awards. BMW, 517 U.S. at 580-81. As this

Court noted in another punitive damages case, “[a]wards

of double or treble damages authorized by statute date

back to the 13th century.” Browning-Ferris Indus. v. Kelco

Disposal, Inc., 492 U.S. 257, 274 (1989). In keeping with

this ancient tradition, many state and federal statutes set

the penalty as “treble” the amount stolen or damages

caused as punishment and to deter misconduct. See Texas

Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639

(1981) (“The very idea of treble damages reveals an intent

“* See also Clark v. MetroHealth Found., Inc., 90 F. Supp. 2d 976,

986 (N.D. Ind. 2000) (punitive damages ratio of 3:1 or less reasonable

“nearly as a matter of law” given prevalence of treble damages awards);

David v. Caterpillar, Inc., 185 F. Supp. 2d 918 (C.D. Ill. 2002) (where

conduct was not particularly reprehensible, ratio would be reduced to

3:1 in light of discussion in BMW about long-time acceptance of treble

damages).

Ltn ge) RO 4 te dm Oo

to punish past, and to deter future, unlawful conduct, not

to ameliorate the liability of wrongdoers.”) This Court has

never held that trebling of large compensatory awards

implicated due process, and in fact recently denied certio-

rari in a treble damages case where the compensatory

damages were $350 million and the total award exceeded

$1 billion. United States Tobacco Co. v. Conwood Co.,

Docket No. 02-603 (certiorari denied, January 13, 2003).

Based on this history, the use of treble damages statutes to

satisfy the notice requirement of BMW is entirely appro-

priate, particularly where, as here, the appellate court

looks to treble damages statutes governing “comparable”

misconduct.” Indeed, if treble damages statutes did not

* Notice of the potential ratio to the damages caused is sufficient

notice to satisfy due process no matter how large the damages trebled.

See, e.g., United States v. Citrin, 972 F.2d 1044, 1051 (9th Cir. 1992)

(treble damages provision does not provide for penalty “disproportioned

to the offense” and thus does not violate due process); Dowell v.

Department of Veterans’ Affairs, No. 3:95-CV-606-S, 1997 U.S. Dist.

LEXIS 22777, at *8 (W.D.Ky. May 6, 1997) (“due process rights are not

offended by the existence of a treble damages provision.”); Blane uv.

American Inventors Corp., 934 F. Supp. 903, 910 (M.D.Tenn. 1996) (“the

Act’s treble damages provision does not violate Defendants’ due process

rights.”); Jeppsen v. Piper, Jaffray & Hopwood, 879 F. Supp. 1130, 1138

(D.Utah 1995) (award of treble damages with no review for excessive- ;

ness does not violate due process); Jn re Air Crash Disaster at Stapleton ;

Int'l Airport, Denver, Colo., on November 15, 1987, 720 F. Supp. 1505,

1518 (D.Col. 1989) (because it is proportional to actual damages,

trebling does not present the due process concerns of punitive damages

awards), rev'd in part on other grounds, 964 F.2d 1059 (10th Cir. 1992);

United States v. Hugelmeyer, 774 F.Supp. 559, 562 (D.Ariz. 1991)

(treble damages do not violate due process even where amount to be F

trebled is a “relatively large sum of money” — contrary argument is

“jllogical”).

* Petitioners’ argument that the statutes are not “comparable”

would turn this Court into an arbiter of what is “comparable” under

state law. See BMW, 517 U.S. at 577 (“only state courts may authorita-

tively construe state statutes.”). The Court of Appeals correctly and

specifically found that Petitioners “took money belonging to [appellees).”

(Continued on following page)

provide constitutionally sufficient notice of liability up to

three times the actual damages, then all treble damages

statutes would be unconstitutional.

Petitioners then argue that insufficient notice is

provided by treble damages statutes “when applicable law

does not limit compensatory damages to foreseeable

injury.” Pet. 23. That argument was never raised, even in

Petitioners’ briefing and argument on remand, and has not

been preserved. That argument is also inconsistent with

the holding of the Court of Appeals that the “evidence was

sufficient to allow the jury to calculate damages to Fund

caused by appellants with reasonable certainty.” Pet. App.

54a. Moreover, the damages were clearly “foreseeable” — in

fact, they were exactly what Petitioners intended when

they acted with “specific intent to harm” (Pet. 22a) and

implemented their “premeditated plan surreptitiously

executed over a period of years” to “depress the value of

their [partners’) investment” for Petitioners’ own financial

benefit, conduct the Court of Appeals found “especially

reprehensible”. Pet. App. 12a, 13a.

Pet. 55a. This is plainly comparable to theft. In Georgia, “(tJheft by

taking in breach of a fiduciary obligation is a felony offense.” Hanson v.

State, 232 Ga. App. 352, 354 (1998); see O.C.G.A. §§ 16-8-2, -3. Resp.

App. 4a-5a. As such, it is a serious crime, punishable by a 15-year

prison term. See O.C.G.A. § 16-8-12(aX(2). Resp. App. 6a. Petitioners

committed more than two acts of theft against both Flags and Fund,

meaning that their conduct could fall under Georgia’s RICO statute. Sez

O.C.G.A. §§ 16-14-1 et seg. Resp. App. 9a. Accordingly, their conduct

could trigger a prison term of up to 20 years and/or a fine as large as

three times their pecuniary gain. See O.C.G.A. § 16-14-5. Resp. App. 9a

The civil penalty for a RICO violation includes treble damages. See

0.C.G.A. § 16-14-6(c). Resp. App. lla. The Court of Appeals correctly

analogized to these statutes.

B. The Court Of Appeals Was Not Required To

Compare This Case To Other Punitive Ver-

dicts Where Statutes Satisfied The Third

Guidepost

Petitioners next argue that the Court of Appeals erred

in not comparing this award to supposedly analogous

punitive damages cases under the third guidepost. Pet.

24.” Petitioners do not explain why the third guidepost,

which calls for a comparison to “civil or criminal penalties

that could be imposed for comparable misconduct”, cannot

be satisfied by comparison statutory penalties, rather than

past jury awards. Statutes (and no cases) were all this

Court examined in the third guidepost portions of BMW,

517 U.S. at 583-86, and Cooper, 532 U.S. at 442. Lower

courts were directed to give “substantial deference” to

“legislative pronouncements” in a third guidepost analysis.

BMW, 517 U.S. at 583. But in any event, such a review

would not have assisted Petitioners, since a comparison to

Georgia cases would still compel affirmance.”

" Petitioners’ claim that the Court of Appeals held it need not

examine other cases on the third guidepost (Pet. 24) misconstrues the

holding. The Court was specifically following BMW, Pet. App. 14a n.9

(citing BMW [Gore], 517 U.S. at 580-83), and discussing the second, and

not the third guidepost.

* The Georgia Courts have repeatedly affirmed punitive damages

awards in breach of fiduciary duty cases with a much higher ratio to

the compensatory award than the 1.3 to 1 ratio here. See Byrne v.

Reardon, 196 Ga. App. 735 (1990) (ratio of 100:1 affirmed in breach of

fiduciary duty case); Arford v. Blalock, 199 Ga. App. 434 (1991) (party

who induced fiduciary to breach duty liable for punitive damages: 5:1

ratio approved and verdict reinstated); Elliott v. McDaniel, 224 Ga.

App. 848 (1996), rev’d on other grounds, 269 Ga. 262 (1998) (punitive

damages with 10:1 ratio affirmed in breach of fiduciary duty and

misappropriation of corporate opportunity case); EF Hutton & Co. v.

Weeks, 166 Ga. App. 443 (1983) (punitive damages with 2.2:1 ratio

affirmed in breach of fiduciary duty case).

As this Court held in Haslip, 499 U.S. at 23-24, a 4:1

compensatory-to-punitive ratio does not “cross the line into

the area of constitutional impropriety.” Based upon Haslip,

Petitioners certainly were on notice that punitive damages

of up to four times the harm they intentionally inflicted on

their partners could be the result of their intentional torts.

Ill. THE REQUEST FOR GVR IN LIGHT OF STATE

FARM IS MERITLESS

Petitioners request a GVR in light of State Farm

Mutual Automobile Insurance Co. v. Campbell, Docket No.

01-1289 (“Campbell”) in which argument was heard on

December 9, 2002. Even if Petitioner had not abandoned

all federal constitutional challenges to the award, there

would still be no basis for another GVR in this case.

In Campbell, the Utah Supreme Court affirmed a

verdict for $145 million in punitive damages, based on a

compensatory damages award of $911.25 in pecuniary

damages and $1,000,000 in general (emotional) damages —

a ratio of 145:1 between punitive damages and total

compensatory damages.

This ratio makes Campbell irrelevant to this case and

its 1.3 to 1 ratio. Even if this Court were to adopt the 5:1

“cap” on the ratio of punitive to compensatory damages

suggested by the petitioner in Campbell at oral argument,

it would not impact this case.

Further, as Petitioners concede, the present case does

not contain the “extraterritoriality” issue which is the focal

point of Campbell. Pet. 25. In fact, here the jury was

expressly instructed not to award punitive damages for

extraterritorial acts: “punitive damages ... are awarded

... solely ... for conduct which causes harm or threatens

to cause harm to the rights of persons within the State of

Georgia.” Resp. App. 33a (emphasis added). There is no

basis to GVR this case again.

CONCLUSION

Allegations that the appellate courts of a state have

deliberately refused to carry out the mandate of this Court

are serious matters. See Cooper v. Aaron, 358 U.S. 1

(1958). Incorrect allegations of such misbehavior should

never be advanced. The courts of Georgia have faithfully

applied relevant federal law to this case and the resulting

judgment raises no issue worthy of this Court’s review.

The Petition should be denied.

JAMES E. BUTLER, JR.

GEORGE W. FRYHOFER III

BUTLER, WOOTEN, FRYHOFER,

DAUGHTERY,& SULLIVAN

2719 Buford Highway

Atlanta, Georgia 30324

(404) 321-1700

GERALD DAVIDSON, JR.

DAVIDSON & TUCKER, LLC

6700 Sugarloaf Parkway

Suite 500

Duluth, Georgia 30097

(678) 775-6853

February 12, 2003

Respectfully submitted,

EMMET J. BONDURANT II

Counsel of Record

H. LAMAR MIXSON

MICHAEL B. TERRY

JOSHUA F. THORPE

BONDURANT, MIXSON &

ELMORE, LLP

3900 One Atlantic Center

1201 W. Peachtree St., NW

Atlanta, Georgia 30309

(404) 881-4100

Counsel for Respondents

RESPONDENTS’ APPENDICES

———

APPENDIX A

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

UNITED STATES CODE

Title 28 - Judiciary and Judicial Procedure

Part IV - Jurisdiction and Venue

Chapter 81 - Supreme Court

* * *

§ 1257. State courts; certiorari

(a) Final judgments or decrees rendered by the

highest court of a State in which a decision could be had,

may be reviewed by the Supreme Court by writ of certio-

rari where the validity of a treaty or statute of the United

States is drawn in question or where the validity of a

statute of any State is drawn in question on the ground of

its being repugnant to the Constitution, treaties, or laws of

the United States, or where any title, right, privilege, or

immunity is specially set up or claimed under the Consti-

tution or the treaties or statutes of, or any commission

held or authority exercised under, the United States.

RULES OF THE COURT OF APPEALS OF THE

STATE OF GEORGIA

Rule 27. Structure and Content.

(a) Appellant. — The brief of appellant shall consist

of three parts:

1. Part One shall contain a succinct and accu-

rate statement of the proceedings below and the material

facts relevant to the appeal and the citation of such parts

of the record or transcript essential to a consideration of

the errors complained of, and a statement of the method

by which each enumeration of error was preserved for

consideration. Record and transcript citations must be to

the volume or part of the record or transcript and the page

numbers that appear on the appellate records or tran-

script as sent from the court below.

2. Part Two shall consist of the enumeration of

errors.

3. Part Three shall contain the argument and

citation of authorities. It shall also include a concise

statement of the applicable standard of review with

supporting authority for each issue presented in the brief.

(b) Appellee. — The brief of appellee shall be divided

in the following manner:

1. Part One shall point out any material inaccu-

racy or incompleteness of appellant’s statement of facts

and any additional statement of facts deemed necessary,

plus such additional parts of the record or transcript

deemed material. Failure to do so shall constitute consent

to a decision based on the appellant’s statement of facts.

Except as controverted, appellant’s statement of facts may

be accepted by this Court as true.

2. Part Two shall contain appellee’s argument

and the citation of authorities as to each enumeration of

error. It shall also include the standard of review if differ-

ent from that contended by the appellant.

The sequence of arguments in the briefs shall follow the

order of the enumeration of errors, and shall be numbered

accordingly.

2. Unsupported Claim of Error Treated as

Abandoned. Any enumeration of error which is not sup-

ported in the brief by citation of authority or argument

may be deemed abandoned.

3. References to Record or Transcript. i. Each

enumerated error shall be supported in the brief by

specific reference to the record or transcript. In the ab-

sence of such reference, the Court will not search for or

consider such enumeration.

ii. A contention that certain matters are not

supported by the record may be answered by reference to

particular pages where they appear.

iii. Reference to the record should be indicated

by specific volume or part of the record and by (R-Page

Number of the Record). Reference to the transcript should

be indicated by specific volume or part of the transcript

and by (T-Page Number of the Transcript). Reference to a

motion transcript should be indicated by (MT-Page Num-

ber of the Transcript and date of the hearing).

iv. No briefs or motions shall be filed under seal

unless counsel has moved the Court for permission to file

under seal and the Court has granted such motion.

FEDERAL RULES OF APPELLATE PROCEDURE

Rule 28. Briefs

(a) Appellant’s Brief. The appellant’s brief must

contain, under appropriate headings and in the order

indicated:

* * *

(9) the argument, which must contain:

(A) appellant’s contentions and the reasons for

them, with citations to the authorities and parts of

the record on which the appellant relies; and

(B) for each issue, a concise statement of the

applicable standard of review (which may appear in

the discussion of the issue or under a separate head-

ing placed before the discussion of the issue);

OFFICIAL CODE OF GEORGIA

* * *

§ 51-12-30. Procurer of wrong is joint wrongdoer.

In all cases, a person who maliciously procures an

injury to be done to another, whether an actionable wrong

or a breach of contract, is a joint wrongdoer and may be

subject to an action either alone or jointly with the person

who actually committed the injury.

* * *

§ 16-8-2. Theft by taking.

A person commits the offence of theft by taking when

he unlawfully takes or, being in lawful possession thereof,

unlawfully appropriates any property of another with the

intention of depriving him of the property, regardless of

the manner in which the property is taken or appropri-

ated.

§ 16-8-3. Theft by deception.

(a) A Person commits the offense of theft by decep-

tion when he obtains property by any deceitful means or

artful practice with the intention of depriving the owner of

the property.

(b) Aperson deceives if he intentionally:

(1) Creates or confirms another’s impression of

an existing fact or past event which is false and which the

accused knows or believes to be false;

(2) Fails to correct a false impression of an

existing fact or past event which he has previously created

or confirmed;

(3) Prevents another from acquiring information

pertinent to the disposition of the property involved;

(4) Sells or otherwise transfers or encumbers

property intentionally failing to disclose a substantial and

valid known lien, adverse claim, or other legal impediment

to the enjoyment of the property, whether such impedi-

ment is or is not a matter of official record; or

(5) Promises performance of services which he

does not intend to perform or knows will not be performed.

Evidence of failure to perform standing alone shall not be

sufficient to authorize a conviction under this subsection.

however, include falsity as to matters having no pecuniary

significance, or exaggeration by statements unlikely to

deceive ordinary persons in the group addressed.

* * *

§ 16-8-12. Punishment.

(a) A person convicted of a violation of Code Sections

16-8-2 to 16-8-9 shall be punished as for a misdemeanor

except:

(1) If the property which was the subject of the

theft exceeded $500.00 in value, by imprisonment for not

less than one nor more than ten years or, in the discretion

of the trial judge, as for a misdemeanor;

(2) If the property was taken by a fiduciary in

breach of a fiduciary obligation or by an officer or em-

ployee of a government or a financial institution in breach

of his or her duties as such officer or employee, by impris-

onment for not less than one nor more than 15 years, a

fine not to exceed the amount provided by Code Section

17-10-8, or both;

(3) If the crime committed was a violation of

Code Section 16-8-2 and if the property which was the

subject of the theft was a memorial to the dead or any

ornamentation, flower, tree, or shrub placed on, adjacent

to, or within any enclosure of a memorial to the dead, by

imprisonment for not less than one nor more than three

years. Nothing in this paragraph shall be construed as

to cause action taken by a cemetery, cemetery owner,

lessee, trustee, church, religious or fraternal organization,

corporation, civic organization, or club legitimately at-

tempting to clean, maintain, care for, upgrade, or beautify

a grave, gravesite, tomb, monument, gravestone, or other

structure or thing placed or designed for a memorial of the

dead to be a criminal act;

(4) (A) The provisions of paragraph (1) of this

subsection notwithstanding, if the property which was the

subject of the theft was a motor vehicle or was a motor

vehicle part or component which exceeded $100.00 in

value or if the theft or unlawful activity was committed in

violation of subsection (b) of Code Section 10-1-393.5 or in

violation of subsection (b) of Code Section 10-1-393.6 or

while engaged in telemarketing conduct in violation of

Chapter 5B of Title 10, by imprisonment for not less than

one nor more than ten years or, in the discretion of the

trial judge, as for a misdemeanor; provided, however, that

any person who is convicted of a second or subsequent

offense under this paragraph shall be punished by impris-

onment for not less than one year nor more than 20 years.

(B) Subsequent offenses committed under this

paragraph, including those which may have been commit-

ted after prior felony convictions unrelated to this para-

graph, shall be punished as provided in Code Section 17-

10-7;

(5) (A) As used in this paragraph, the term:

, RETA IS: SOEY RE nla BRON ALE Sar Teh A! seen

(i) “Destructive device” means a destructive

device as such term is defined by Code Section 16-7-80.

(ii) “Explosive” means an explosive as such term

is defined by Code Section 16-7-80.

MAAR Oe. eI mmaeenae

(iii) “Firearm” means any rifle, shotgun, pistol,

or similar device which propels a projectile or projectiles

through the energy of an explosive.

(B) If the property which was the subject of the

theft offense was a destructive device, explosive, or fire-

arm, by imprisonment for not less than one nor more than

ten years; or |

(6) Ifthe property which was the subject of the theft

is a grave marker, monument, or memorial to one or more

deceased persons who served in the military service of this

state, the United States of America or any of the states

thereof, or the Confederate States of America or any of the

states thereof, or a monument, plaque, marker, or memo-

rial which is dedicated to, honors, or recounts the military

service of any past or present military personnel of this

state, the United States of America or any of the states

thereof, or the Confederate States of America or any of the

states thereof, and if such grave marker, monument,

memorial, plaque, or marker is privately owned or located

on privately owned land, by imprisonment for not less

than one nor more than three years if the value of the

property which was the subject of the theft is $300.00 or

less, and by imprisonment for not less than three years

and not more than five years if the value of the property

which was the subject of the theft is more than $300.00.

(b) Except as otherwise provided in paragraph (4) of

subsection (a) of this Code section, any person who com-

mits the offense of theft by deception when the property

which was the subject of the theft exceeded $500.00 in

value and the offense was committed against a person who

is 65 years of age or older shall, upon conviction thereof, be

punished by imprisonment for not less than five nor more

than ten years.

involves the theft of a growing or otherwise unharvested

commercial agricultural product which is being grown or

produced as a crop, such offense shall be punished by a

fine of not less than $500.00 and not more than the maxi-

mum fine otherwise authorized by law. This minimum fine

shall not in any such case be subject to suspension, stay, or

probation. This minimum fine shall not be required in any

case in which a sentence of confinement is imposed and

such sentence of confinement is not suspended, stayed, or

probated; but this subsection shall not prohibit imposition

of any otherwise authorized fine in such a case.

* * *

——

§ 16-4-1. Short title.

This chapter shall be known and may be cited as the

“Georgia RICO (Racketeer Influenced and Corrupt Or-

ganizations) Act.”

§ 16-14-5. Criminal penalties and alternative fine.

(a) Any person convicted of the offense of engaging in

activity in violation of Code Section 16-14-4 is guilty of a

felony and shall be punished by not less than five nor more

than 20 years’ imprisonment or the fine specified in

subsection (b) of this Code section, or both.

10a

(b) In lieu of any fine otherwise authorized by law,

any person convicted of the offense of engaging in conduct

in violation of Code Section 16-14-4 may be sentenced to

pay a fine that does not exceed the greater of $25,000.00 or

three times the amount of any pecuniary value gained by

him from such violation.

amount of the fine authorized by subsection (b) of this

Code section.

(d) For the purposes of subsection (b) of this Code

section, “pecuniary value” means:

(1) Anything of value in the form of money, a

negotiable instrument, a commercial interest, or anything

else, the primary significance of which is economic advan-

tage; or

(2) Any other property or service that has a

value in excess of $100.00.

§ 16-14-6. Other civil remedies.

(a) Any superior court may, after making due provi-

sions for the rights of innocent persons, enjoin violations of

Code Section 16-14-4 by issuing appropriate orders and

judgments including, but not limited to:

(1) Ordering any defendant to divest himself of

any interest in any enterprise, real property, or personal

property;

(2) Imposing reasonable restrictions upon the

future activities or investments of any defendant including,

lla

but not limited to, prohibiting any defendant from engag-

ing in the same type of endeavor as the enterprise in

which he was engaged in violation of Code Section 16-14-4;

(3) Ordering the dissolution or reorganization of

any enterprise;

(4) Ordering the suspension or revocation of any

license, permit, or prior approval granted to any enterprise

by any agency of the state; or

(5) Ordering the forfeiture of the charter of a

corporation organized under the laws of this state or the

revocation of a certificate authorizing a foreign corporation

to conduct business within this state upon a finding that

the board of directors or a managerial agent acting on

behalf of the corporation, in conducting affairs of the

corporation, has authorized or engaged in conduct in

violation of Code Section 16-14-4 and that, for the preven-

tion of future criminal activity, the public interest requires

that the charter of the corporation be forfeited and that

the corporation be dissolved or the certificate be revoked.

(b) Any aggrieved person or the state may institute a

proceeding under subsection (a) of this Code section. In

such proceeding, relief shall be granted in conformity with

the principles that govern the granting of injunctive relief

from threatened loss or damage in other civil cases,

provided that no showing of special or irreparable damage

to the person shall have to be made. Upon the execution of

proper bond against damages for an injunction improvi-

dently granted and a showing of immediate danger of

significant loss or damage, a temporary restraining order

and a preliminary injunction may be issued in any such

action before a final determination on the merits.

ee ee

12a

violation of Code Section 16-14-4 shall have a cause of

action for three times the actual damages sustained and,

where appropriate, punitive damages. Such person shall

also recover attorneys’ fees in the trial and appellate

courts and costs of investigation and litigation reasonably

incurred. The defendant or any injured person may de-

mand a trial by jury in any civil action brought pursuant

to this Code section.

(d) Any injured person shall have a right or claim to

forfeited property or to the proceeds derived therefrom

superior to any right or claim the state or the county

(other than for costs) has in the same property or proceeds.

To enforce such a claim, the injured person must intervene

in the forfeiture proceeding prior to is final disposition.

(e) A conviction in any criminal proceeding under

this chapter shall estop the defendant in any subsequent

civil action or proceeding as to all matters proved in the

criminal proceeding.

13a

APPENDIX B

IN THE COURT OF APPEALS

STATE OF GEORGIA

TIME WARNER ENTERTAINMENT COMPANY, L.P.,

SIX FLAGS ENTERTAINMENT CORPORATION,

SIX FLAGS THEME PARKS INC., and

SIX FLAGS OVER GEORGIA, INC.,

Appellants/Defendants,

-against-

SIX FLAGS OVER GEORGIA, LLC, SIX FLAGS FUND,

LTD. (L.P.), and GEORGE DEROY, as Trustee of the

Six Flags Claims Trust,

Appellees/Plaintiffs.

Appeal No. A00A0120

BRIEF OF APPELLANTS

[September 20, 1999]

Walt M. Britt

Georgia Bar No. 083237

Chandler & Britt, LLC

4350 South Lee Street

Buford, GA 30518

(770) 271-2991

Evan R. Chesler

Keith R. Hummel

Cravath, Swaine & Moore

Worldwide Plaza

825 Eighth Avenue

New York, NY 10019-7475

(212) 474-1000

l4a

Attorneys for Appellants

Time Warner Entertainment

Company, L.P., Six Flags

Entertainment Corporation,

Six Flags Theme Parks Inc.,

and Six Flags Over Georgia, Inc.

* * *

[Page 59]

This award violates the Excessive Fines Clause of the

Georgia Constitution because, as in Colonial Pipeline Co.

v. Brown, 258 Ga. 115, 365 S.E.2d 827 (1988),

[Page 60]

there is no “sensible relation between punishment and

offense”. Jd. at 119-20, 365 S.E.2d at 831. Notably, Defen-

dants’ conduct involved no “personal injury or death” (or

even a risk of injury or death). Jd. at 122, 365 S.E.2d at

833. The punitive damages also violate the Due Process

Clauses of the Georgia and United States Constitutions.

As in BMW of North America, Inc. v. Gore, 517 U.S. 559

(1996), the injury here “was purely economic in nature”,

and Defendants’ conduct “evinced no indifference to or

reckless disregard for the health and safety of others”. Jd.

at 576.

15a

APPENDIX C

IN THE COURT OF APPEAL [sic]

STATE OF GEORGIA

TIME WARNER ENTERTAINMENT COMPANY, L.P,,

SIX FLAGS ENTERTAINMENT CORPORATION,

SIX FLAGS THEME PARKS INC., and

SIX FLAGS OVER GEORGIA, INC.,

Appellants/Defendants,

-against-

SIX FLAGS OVER GEORGIA, LLC, SIX FLAGS FUND,

LTD. (L.P.), and GEORGE DEROY, as Trustee of the

Six Flags Claims Trust,

Appellees/Plaintiffs.

Appeal No. A00A0120

REPLY BRIEF OF APPELLANTS

[October 22, 1999]

Walt M. Britt

Georgia Bar No. 083237

Chandler & Britt, LLC

4350 South Lee Street

Buford, GA 30518

(770) 271-2991

Evan R. Chesler

Keith R. Hummel

Cravath, Swaine & Moore

Worldwide Plaza

825 Eighth Avenue

New York, NY 10019-7475

(212) 474-1000

16a

Attorneys for Appellants

Time Warner Entertainment

Company, L.P., Six Flags

Entertainment Corporation,

Six Flags Theme Parks Inc.,

and Six Flags Over Georgia, Inc.

* cs *

[Page 29]

C. The Punitive Damages Are Excessive.

Plaintiffs incorrectly assert that the ratio of compen-

satory to punitive damages “insulates” the punitive

damages award. The actual ratio is much higher than

Plaintiffs claim because the compensatory damages award

is itself grossly excessive. (Dft. Br. at 51-57) In any event,

this ratio is not the legal standard for the validity of

punitive damages. BMW of N. Am., Inc. v. Gore, 517 U.S.

559, 582 (1996); Hospital Auth. of Gwinnett County v.

Jones, 261 Ga. 613, 614, 409 S.E.2d 501, 502-03 (1991).

17a

APPENDIX D

IN THE COURT OF APPEALS

STATE OF GEORGIA

TIME WARNER ENTERTAINMENT COMPANY, L.P,

SIX FLAGS ENTERTAINMENT CORPORATION,

SIX FLAGS THEME PARKS INC., and

SIX FLAGS OVER GEORGIA, INC.,

Appellants/Defendants,

-against-

SIX FLAGS OVER GEORGIA, LLC, SIX FLAGS FUND,

LTD. (L.P.), and GEORGE DEROY, as Trustee of the

Six Flags Claims Trust,

Appellees/Plaintiffs.

Appeal No. A00A0120

APPELLANTS’ MOTION FOR RECONSIDERATION

[July 21, 2000]

Walt M. Britt

Georgia Bar No. 083237

Chandler & Britt, LLC

4350 South Lee Street

Buford, GA 30518

(770) 271-2991

Evan R. Chesler

Keith R. Hummel

Cravath, Swaine & Moore

Worldwide Plaza

825 Eighth Avenue

New York, NY 10019-7475

(212) 474-1000

18a

Attorneys for Appellants

Time Warner Entertainment

Company, L.P., Six Flags

Entertainment Corporation,

Six Flags Theme Parks Inc.,

and Six Flags Over Georgia, Inc.

* * *

[Page 15]

XI. THE COURT SHOULD RECONSIDER ITS

DECISION WITH RESPECT TO ENUMERA-

TION OF ERROR NUMBERS TWELVE, THIR-

TEEN AND FOURTEEN

The Court appears not to have considered controlling

legal precedent cited by Defendants on pages 57-60 of

their opening brief and 28-30 of their reply brief that

mandate that the punitive damage award be stricken, or

at least vastly reduced. In particular, we note the rule

that, absent “circumstances of aggravation or outrage”,

Tri-County Inv. Group, Ltd. v. Southern States, Inc., 231

Ga. App. 632, 638, 500 S.E.2d 22, 27-28 (1998), or fraud,

see Wilson Welding Serv. v. Partee, 234 Ga. App. 619, 620,

507 S.E.2d 168, 170 (1998) (refusal to award punitive

damages appropriate where there was no “significant

amount of fraud”), punitive damages are not authorized.

Further, the Court has overlooked the dictates of O.C.G.A.

§ 51-12-5.1, which requires that “specific intent to cause

harm” had to be proved by clear and convincing evidence.

O.C.G.A. § 51-12-5.1(b). The trial court’s failure to instruct

the jury on the standard of proof for the specific-intent

finding was per se reversible error. See Hammett v. Rey-

nolds, 243 Ga. 669, 671-72, 256 S.E.2d 354, 356-57 (1979).

Finally, the Court has not, as is r2quired by

19a

[page 16]

O.C.G.A. § 51-12-12(a), set aside the award as violating

the Excessive Fines Clause of the Georgia Constitution

because there is no “sensible relation between punishment

and offense”, Colonial Pipeline Co. v. Brown, 258 Ga. 115,

119-22, 365 S.E.2d 827, 831-33 (1988), and the Due Proc-

ess Clauses of the Georgia and United States Constitu-

tions, see BMW of North America, Inc. v. Gore, 517 U.S.

559 (1996).

20a

APPENDIX E

No. 00-1875

IN THE

Supreme Court of the United States

TIME WARNER ENTERTAINMENT COMPANY, L.P., et al.,

Petitioners,

SIX FLAGS OVER GEORGIA, LLC, ef al.,

Respondents.

On Petition For A Writ Of Certiorari

To The Court Of Appeals Of The State Of Georgia

BRIEF FOR SIX FLAGS OVER GEORGIA, LLC,

ET AL., INOPPOSITION

JAMES E. BUTLER, JR. EMMET J. BONDURANT II

GEORGE W. FRYHOFER III Counsel of Record

BUTLER, WOOTEN, H. LAMAR MIXSON

SCHERFFIUS, FRYHOFER, MICHAEL B. TERRY

DAUGHTERY, & SULLIVAN JOSHUA F. THORPE

2719 Buford Highway BONDURANT, MIXSON &

Atlanta, Georgia 30324 ELMORE, LLP

(404) 321-1700 3900 One Atlantic Center

1201 W. Peachtree St., NW

Atlanta, Georgia 30309

(404) 881-4100

GERALD DAVIDSON, JR.

ANDERSEN, DAVIDSON & TATE

P.O. Box 2000

Lawrenceville, Georgia 30246

(770) 822-0900

Counsel for Respondents

[Page 7]

After their post-trial motion was denied, Petitioners

appealed to the Georgia Court of Appeals. In their briefs in

that court, no excerpts of which are included in the appen-

dix to the petition despite Petitioners’ obligations under

Rule 14.1(g)(i) of this Court, see infra p. 11 n.13, Petition-

ers made only vague challenges to the punitive damages

award. Under the heading “The Punitive Damages Are

Excessive,” Petitioners’ “Brief of Appellants” included only

two sentences alleging any due process violations. They

cited BMW only as limiting the amount

[Page 8]

of punitive damages in cases involving “purely economic”

harm; they made no reference at all to the “third guide-

post” argument that forms the basis for Question 1 of their

petition in this Court (reordered Question 2). Resp. App.

12a-13a. As for Question 2 of their petition in this Court

(reordered Question 3), at no time did Petitioners assert or

even insinuate to the Court of Appeals that the punitive

damages award was constitutionally infirm because they

lacked notice they could be liable for aiding and abetting

breaches of fiduciary duty. Finally, with respect to their

Question 3 (reordered Question 1), under the heading

“Standard of Review,” Petitioners elected not to urge that

de novo review was constitutionally required; instead

Petitioners requested the exact “abuse of discretion”

standard they now challenge. Petitioners stated that

“[t]his Court reviews for abuse of discretion rulings ... for

excessive damages.” Jd. at 12a (emphasis added).

22a

[Page 9]

In reference to the alleged excessiveness of the puni-

tive damages, Petitioners included only a naked citation to

BMW but offered no discussion of its potential relevance.

Resp. App. 17a-18a.

[Page 18]

Nor could the proper presentation of some due process

claims under BMW adequately preserve separate ones;...

* * *

[Page 27]

... Petitioners made only the briefest mention of due

process in their briefs in the Court of Appeals, and their

argument and their citation to BMW were limited exclu-

sively to the point that this case involves economic dam-

ages rather than threats to health and safety. Resp. App.

13a, 15a. This was clearly inadequate to constitute the

proper presentation of any federal constitutional concerns

they might have had about notice.

23a

APPENDIX F

IN THE SUPREME COURT OF GEORGIA

CASE NO. S02C1177

TIME WARNER ENTERTAINMENT COMPANY, L.P,

SIX FLAGS ENTERTAINMENT CORPORATION,

SIX FLAGS THEME PARKS, INC., and

SIX FLAGS OVER GEORGIA, INC.,

Defendants-Petitioners

vs.

SIX FLAGS OVER GEORGIA, LLC,

SIX FLAGS FUND, LTD. (L.P.),

and GEORGE DEROY, as Trustee

of the Six Flags Claims Trust,

Plaintiffs-Respondents

CASE NO. A00A0120 IN THE

GEORGIA COURT OF APPEALS

RESPONSE OF PLAINTIFFS TO DEFENDANTS -

SECOND PETITION FOR WRIT OF CERTIORARI

H. Lamar Mixson James E. Butler, Jr.

Ga. Bar No. 514012 Ga. Bar No. 099625

Michael B. Terry George W. Fryhofer III

Ga. Bar No. 702582 Ga. Bar No. 279110

Joshua F. Thorpe Joel O. Wooten, Jr.

Ga. Bar No. 710665 Ga. Bar No. 776350

24a

BONDURANT, MIXSON BUTLER, WOOTEN,

& ELMORE, LLP FRYHOFER,

3900 One Atlantic Center DAUGHTERY &

1201 West Peachtree Street, NW SULLIVAN, LLP

Atlanta, Georgia 30309 2719 Buford Highway

(404) 881-4100 Atlanta, Georgia 30324

(404) 321-1700

and

Gerald Davidson, Jr. P. O. Box 2766

Ga. Bar No. 206600 Columbus, GA ‘31902

DAVIDSON AND (706) 322-1990

TUCKER, LLC

6700 Sugarloaf Parkway

Suite 500

Duluth, Georgia 30097

(678) 775-6853 ATTORNEYS FOR

PLAINTIFFS-

RESPONDENTS

* * *

[Page 6]

Section I of the petition complains that every judge on

the whole Court of Appeals erred by finding that Time

Warner had abandoned its de novo constitutional chal-

lenge to the award of punitive damages by failing to

enumerate that alleged error on appeal or to cite authority

and argue in support of that proposition. The Court of

Appeals’ findings on these issues are unassailable. Fur-

ther, Time Warner expressly requested an abuse of discre-

tion review for the alleged excessiveness of the punitive

damages award — not a de novo constitutional challenge.

Court of Appeals Brief of Appellants at 17 (filed Sept. 20,

1999). This is not simply “the omission of an adverb” or “a

supposed flaw in the body of [Time Warner’s] brief” as

Time Warner disingenuously claims. Petition at 9.

25a

[Page 17]

ARGUMENT AND CITATION OF AUTHORITY

I. THE COURT OF APPEALS’ CORRECT FIND-

ING THAT TIME WARNER ABANDONED ITS

DE NOVO CONSTITUTIONAL CHALLENGE

PROVIDES NO BASIS FOR A GRANT OF

CERTIORARI, ESPECIALLY WHEN THE

COURT OF APPEALS WENT ON TO CON-

SIDER AND DECIDE THAT VERY EXCES-

SIVENESS CHALLENGE ON THE MERITS

DESPITE THE ABANDONMENT.

The Court of Appeals’ finding that Time Warner

abandoned the very “de novo” constitutional challenge to

the punitive damages award for which the case was

remanded relies on settled principles of Georgia law. In

reaching this unanimous finding, the whole court noted

that Time Warner’s enumerations of error failed to contain

any allegation that the punitive damages violated any

provision of the state or federal constitution, were “consti-

tutionally excessive,” or implicated any species of due

process or other constitutional issue. Six Flags II, slip. op.

at 13. But the Court did not base its finding solely on the

enumerations failure. The Court noted that, even if the

alleged error were “adequately enumerated,” “the claim of

error [was] abandoned because [defendants] failed to cite

any relevant facts, give record citations, or present any

legal analysis supporting that assertion.” Slip op. at 14

(citing Court of Appeals Rule 27(c)(2), (3)).°

* Confronted with the Court of Appeals’ finding that Time Warner’s

enumerations and brief

a 424m 42 ie met ole a mm £4 46 4 SOS Oe em ee

26a

[Page 18]

These findings are neither novel nor certworthy. They

are based in the settled prirciple that litigation, even

appellate litigation, must corue to an end one day. Allowing

a litigant to raise issues on appeal that were improperly

enumerated and abandoned would be unfair and would

also tend to make the appeals process interminable.’

There is an even broader reason Time Warner should

be barred from asserting its claim for a de novo constitu-

tional challenge: Time Warner asked the Georgia Court of

Appeals to apply an “abuse of discretion” review to the

alleged excessiveness of the punitive damages award.

Specifically, Georgia Court of Appeals Rule 27(a) requires

appellants to set forth, for each issue raised, the “standard

of review” the appellate contends the Court should apply.

In its Court of Appeals Brief of Appellants in the initial

appeal, Time Warner expressly specified that the appro-

priate standard of review for its “excessiveness” issues was

“abuse of discretion.” Court of Appeals Brief of Appellants

at 17 (filed Sept. 20, 1999). “A party will not be heard to

complain of a ruling which it sought or to which it acqui-

esced.” Firstline Corp. v. Valdosta-

abandoned any claim to a de novo constitutional challenge. (Six Flags

II, slip op. at 13-14), Time Warner fails to identify a single instance

where it raised that issue in the Court of Appeals. Petition at 1, 11-15.

"In a bizarre twist, Time Warner seems to argue that plaintiffs

“abandoned” the capacity to assert Time Warner’s own “abandonment”

of the de novo constitutional challenge in this appeal. Pretermitting

whether a party’s conduct could ever preclude a court’s ability to enforce

its own rules of appellate procedure, it is clear plaintiffs “abandoned”

nothing — for the court or anyone else. Plaintiffs have repeatedly

asserted the untimeliness of Time Warner’s attempt to create a

constitutional challenge following its initial appeal when none thereto-

fore existed. See, e.g., Plaintiffs’ Response to Defendants’ First Petition

27a

for Certiorari (filed 8/28/00) at 2, (“it is too late for Time Warner to

claim a ‘constitutional’ question”): id., at 25-26 (“This Court may not

grant certiorari to review constitutional arguments ... not decided by

the Court of Appeals.”). Even defendants acknowledged plaintiffs’

argument. See Defendants’ Reply Brief in Support of First Petition for

Certiorari (filed 9/20/00) at 9 (“Plaintiffs are simply wrong when they

claim that defendants’ challenge to the punitive damages award in this

case as constitutionally excessive was waived.”).

[Page 19]

Lowndes County Indus. Auth., 236 Ga. App. 432, 434, 511

S.E.2d 538 (1999) (emphasis added); Spearman v. Georgia

Bldg. Auth., 224 Ga. App. 801, 805, 482 S.E.2d 463, 466

(Ga. App. 1997) (one may not “complain of a judgment,

order, or ruling that his own procedure or conduct aided in

causing”); Moody v. Dykes, 269 Ga. 217, 221, 496 S.E.2d

907, 911 (1998) (same).

Finally, the Court of Appeals’ finding that Time

Warner abandoned this issue provides no basis for a grant

of certiorari in this case because, despite Time Warner’s

procedural default, the Court of Appeals fully considered

and correctly decided the abandoned challenge on the

merits: “as a matter of judicial economy, we also review

the punitive damages award de novo and apply the Gore

guideposts.” Slip op. at 15. That substantive inquiry is

addressed in the next section.

But before returning to that final issue, plaintiffs

must address some of Time Warner’s more egregious

misstatements relating to Time Warner’s clear abandon-

ment of the challenge it belatedly makes. First, Time

Warner tries to leave the impression that the Court of

Appeals’ abandonment ruling broke some new ground. In

fact, the opposite is true. The Court of Appeals did not

announce or create any new principle that warrants

a a ee a Aa a eae ae

28a

review by this Court. On the other hand, Kent v. White, a

panel decision on which certiorari was never sought and

which the whole court overruled in part in its decision

below, did break new ground. See Kent v. A.O. White, Jr.

Consulting Engineer P.C., No. A01A0756 (Ga. Ct. App. Jan.

29, 2002). Kent had held that a Georgia Supreme Court

remand to the Court of Appeals for reconsideration in light

of new authority was to be viewed as a “sub silencio”

holding by the Georgia Supreme Court that the applica-

tion of the new authority had not been waived. Kent, slip

op. at 12. Because Kent’s inference of such a “sub-silencio”

holding contradicted a long line of authority from this

Court and the Court of Appeals, the Court of Appeals in

the unanimous whole court decision below

[Page 20]

overruled Kent v. White and merely returned to the well-

established status quo on those issues. See Six Flags II,

slip op. at 5-7.° Further, the whole court’s ruling also

reaffirmed the longstanding rule under Georgia law that

an argument not made in appellant’s brief is abandoned

and is not preserved for review.”

* See also South Ga. Med. Ctr. v. Washington, 269 Ga. 366, 368 (1998)

(issues not actually decided can be considered upon remand); Shadix v.

Carroll County, 274 Ga, 560, 563, 554 S.E.2d 465, 468 (2001) (“it is only

those issues actually considered and ruled upon by this Court that fall

within ‘law of the case’ doctrine.”); Morgan v. Guaranty Nat'l Cos., 268

Ga. 343, 345 n. 1 (1997) (disapproving a Court of Appeals holding that

the Supreme Court case established a rule of law “sub silentio”). See

also Middlebrooks v. Hillcrest Foods, Inc., 256 Ga.3d 1241, 1249 n. 5

(11th Cir. 2001) (in Georgia case, a trial court ruling on excessiveness of

punitive damages would be reviewed for abuse of discretion where the

challenge was not properly brought under federal due process clause so

as to invoke Cooper); Foster v. Time Warner Entm't Co., L.P., 250 F.3d

1189, 1194 n. 3 (8th Cir. 2001) (de novo review under Cooper is not

tr etree oregon ee

29a

required unless defendant properly raises a federal due process

challenge to the punitive damages).

* See Williams v. State, 219 Ga. App. 167, 168, 464 S.E.2d 404, 405 (Ga.

App. 1995) (“The claims asserted in appellant’s brief in support of this

enumeration are the sole claims preserved for appellate review as to

this matter. ‘Any issue reasonably contained within an enumeration of

error as to which there has not been any argument or citation of

authority made in appellant’s brief is deemed abandoned on appeal.’ ”)

(citation omitted) (emphasis supplied); Moore v. Winn-Dixie Stores, Inc.,

214 Ga. App. 157, 158, 447 S.E.2d 122, 123 (Ga. App. 1994) (“Any issue

reasonably contained within an enumeration of error as to which there

has not been any argument or citation of authority is deemed aban-

doned on appeal.”) (citations omitted), overruled on other grounds,

Robinson v. Kroger, 268 Ga. App. 735, 493 S.E.2d 403 (Ga. 1997)

(Jenkins v. State, 240 Ga. App. 102, 103 (1999) (“This court requires

that appellants support enumerations of error with argument and

citations to authority. Mere conclusory statements such as those made

here are not the type of meaningful argument contemplated by that

rule.”) See Peripety Group, Inc. v. Smith, 237 Ga. App. 158, 162, 514

S.E.2d 262, 266 (Ga. Ct. App. 1999) ((“{OJur review is limited to those

matters enumerated and argued by an appellant[.]’”) (citation

omitted); Ligon v. Bartis, 2002 Ga. App. LEXIS 212 (2902) (absence of

meaningful argument in brief authorizes Court of Appeals to treat

claim as abandoned). —

A, 4 oe 4 4 4 4 @ 2 MAMA 4 GA & 4 . @ GA 4 MA oe

30a

APPENDIX G

IN THE COURT OF APPEALS

STATE OF GEORGIA

TIME WARNER ENTERTAIN-

MENT COMPANY, L.P., SIX

FLAGS ENTERTAINMENT

CORPORATION, SIX FLAGS

THEME PARKS INC., and SIX

FLAGS OVER GEORGIA, INC.,

Appellants,

Case Number

VS. A00A0120

SIX FLAGS OVER GEORGIA,

LLC, SIX FLAGS FUND, LTD.,

(L.P.), and GEORGE DEROY, as

Trustee of the Six Flags Claims

Trust,

Appellees.

OP OP? OP Or OO? OO? WO? CO? CO? (CO? CO? COD COD? WO?

MOTION FOR EXPANSION OF PAGE LIMITS

[Page 1]

COME NOW Appellants/Defendants Time Warner

Entertainment Company, L.P., Six Flags Entertainment

Corporation, Six Flags Theme Parks Inc. and Six Flags

Over Georgia, Inc. and file this motion requesting, under

Court of Appeals Rules 23(e) and 41, an expansion of the

page limits for the parties’ briefs.

This is an appeal from a jury verdict in the amount of

$454,296,000. The case is a business dispute between the

partners that owned and operated the Six Flags Over

Georgia theme park (the “Park”). The limited partner,

Plaintiff Six

a Cow SUVS Va oat 4“ -k 4 @ . #2... <A awe A

3la

[Page 6]

* * *

In the light of the number of significant legal and

evidentiary errors involved in this case, and the unprece-

dented size of the jury verdict, Appellants respectfully

suggest that a 60-page limit for the parties’ briefs is

appropriate. Appellants request that they be permitted to

submit a single, joint Appellants’ Brief, not exceeding sixty

(60) pages; that Appellees be permitted to submit a single,

joint Appellees’ Brief not exceeding sixty (60) pages; and

that Appellants be permitted to submit a single, joint

Reply Brief not exceeding thirty (30) pages. Appellants

believe that such an extension is in the interest of justice

as it would permit all parties adequately to address the

numerous issues raised by this appeal and would assist

the Court in considering and resolving these issues.

Respectfully submitted, this 1st day of September,

1999.

CHANDLER & BRITT, LLC

Attorneys for Appellants

WALT M. BRITT

Georgia Bar Number 083237

COURT OF APPEALS

of the State of Georgia

ATLANTA, September 3, 1999

The Court of Appeals hereby passes the following order:

A00A0120. TIME WARNER ENTERTAINMENT

COMPANY, L.P. ET AL v. SIX FLAGS OVER GEORGIA,

LLC, ET AL

. <7 mm EH a4

32a

Upon consideration of the motien for permission to file

briefs in excess of 30 pages on behalf of the appellant in

the above styled case, it is ordered that said motion be

GRANTED.

Court of Appeals of the State of Georgia

Clerk’s Office, Atlanta, Sep -3, 1999

I certify that the above is a true extract from

the minutes of the Court of Appeals of

Georgia.

Witness my signature and the seal of said

court hereto affixed the day and year last

above written.

Clerk.

William L. Martin III

a «we 4 4AM e A 4 6 a «@

33a

APPENDIX G

IN THE SUPERIOR COURT OF GWINNETT COUNTY

STATE OF GEORGIA

SIX FLAGS OVER GEORGIA,

LLC, SIX FLAGS FUND, LTD.,

(L.P.), and GEORGE DEROY,

as Trustee of the Six Flags

Claims Trust,

Plaintiffs,

ve CIVIL ACTION

FILE NO.:

TIME WARNER ENTERTAIN- 97-A-1939-1

MENT COMPANY, L.P., SIX

FLAGS ENTERTAINMENT

CORPORATION, SIX FLAGS

THEME PARKS INC., and SIX

FLAGS OVER GEORGIA, INC., )

Defendants. )

Daily Transcript of proceedings before the

Honorable James W. Oxendine, Gwinnett County

Superior Court Judge, taken before Judy J.

Smith, Certified Shorthand Reporter and Notary

Public, on the 21st day of December, 1998.

* * *

I charge you that punitive damages, when authorized, are

awarded not as compensation to a plaintiff but solely to

punish, penalize or deter the defendant for conduct which

causes harm or threatens to cause harm to the rights of

persons within the state of Georgia.

[Pages 163-64]

* * *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.