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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2003
- **Citation:** 538 U.S. 977

## Text

No. 02-978

Jn The FEB 12 2003
Supreme Court of the Unitep States

¢

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

Petitioners,
V.

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.

ii

TABLE OF CONTENTS

Page
CORPORATE DISCLOSURE STATEMENT.............. i
TABLE OF CO ree iincesisccecinmivasieiainnbibarins ii
TABLE, OF ALTER e BING vinevccssisivesesigeinnvseeedines iv
TEU PEP BS cnnsvesnsvinsasncunsieeieeowaelemaeeananaee 1
SURREY 6 vtanvsvicvrsateernciccdeaaneee 4
CONSTITUTIONAL AND STATUTORY PROVI-
SIONS TE VOLE Bae oitinssicnisevetcosammeneaaaaaaanante 4
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

Re

lil

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
Tiles c ilciiskcuguvanetentesdncsesssevstneesseeve 30
RESPONDENTS’ APPENDICEG................. cece eeeeeeee la

i Ash Sate ei

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.

v

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
ee PIES OP HD anctienaniibiinaieinalichipimpitlidbtassnnaneninleadladnad 4
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

2

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

3

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

4

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.

5

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)

6

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.

7

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).

8

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.

9

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.

10

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.

11

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

12

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.

13

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).

14

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.”

15

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

16

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.

17

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

18

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.

19

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

20

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

21

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).

22

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

23

(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).

24

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

25

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).

26

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)

-
N!
2
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+
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*
=
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.

27

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.

28

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).

29

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

30

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

la

———
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

2a

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.

(c) General Provisions. — 1. Sequence of Argument.
The sequence of arguments in the briefs shall follow the

3a

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.

4a

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,

5a

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.

6a

(c) “Deceitful means” and “artful, practice” do not,
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,

7a

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

8a

(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

9a

punished by imprisonment for not less than five nor more
than ten years.

(c) Where a violation of Code Section 16-8-2 to 16-8-9
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.

(c) The court shall hold a hearing to determine the
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

(c) Any person who is injured by reason of any
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,
V.
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,

Or

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]

* * *

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0941%3A3. Public record. Not legal advice.