THIRD DIVISION DOYLE, P. J., GOBEIL, J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
June 29, 2023
In the Court of Appeals of Georgia A23A0438. WHITAKER FARMS, LLC v. FITZGERALD FRUIT FARMS, LLC.
GOBEIL, Judge.
In the second appearance of these parties before this Court, Whitaker Farms,
LLC appeals from a jury verdict granting punitive damages and attorney fees to
Fitzgerald Fruit Farms, LLC (“Fitzgerald Farms”). On appeal, Whitaker Farms asserts
that the trial court committed evidentiary errors that allowed the jury to hear
inadmissible evidence; incorrectly directed the jury to take certain facts as
established, when they were in fact in dispute; erroneously denied its motions for a
directed verdict and for a new trial on punitive damages; erroneously allowed
uncapped punitive damages; and incorrectly charged the jury in the first phase of the trial. For the reasons set forth below, we affirm the jury’s verdict as to punitive
damages and associated attorney fees.
Following a jury trial, we construe the evidence in the light most favorable
toward the prevailing party and resolve all conflicts against the non-prevailing party.
Intl. Images, Inc. v. Smith, 171 Ga. App. 172, 172 (318 SE2d 711) (1984). As
described in our previous opinion in this case, these parties proceeded to a jury trial
after Fitzgerald Farms sued Whitaker Farms for trespass after Whitaker Farms’s
property manager locked the gates to the peach orchard where Fitzgerald Farms was
harvesting peaches. Whitaker Farms, LLC v. Fitzgerald Fruit Farms, LLC, 347 Ga.
App. 381 (819 SE2d 666) (2018) (“Whitaker I”).
Briefly, the evidence at the first trial, as described in Whitaker I, showed that
Sean Lennon, the owner of Fitzgerald Farms, had worked for Carroll Farms since
high school, and began working for Carroll Farms full-time in 2003 after completing
his education. 347 Ga. App. at 381. Carroll Farms was owned by Lennon’s teacher
and her son Walter “Hynes” Barnes. Id. Sometime in 2006, Hynes and his mother
agreed to allow Lennon to grow Baby Gold peaches on a 20-acre tract of Carroll
Farms. Id. The parties had an “oral handshake deal” for Lennon to lease the 20-acre
tract for the economic life of the peaches (10-15 years). Id. At some point, a written
2 lease was executed, and Lennon obtained crop insurance for at least 2013 to 2016. Id.
& n. 1.
Unbeknownst to Lennon, in October 2015, Hynes sold 290 acres of Carroll
Farms, including the 20-acre tract used by Lennon, to Curtis Whitaker (“Curtis”) and
his company, Whitaker Farms. Id. at 382. At closing, Hynes and his mother signed
an affidavit stating that the property was subject to no leases. Id. Hynes stayed on to
manage the property for Whitaker Farms. Id. After the sale, Lennon and his workers
began to prepare to harvest the peaches on Lennon’s 20-acre tract. Id. Lennon and his
workers were on the property consistently from December 2015 through July 2016
and observed Hynes on the property, who never spoke to them. Id. On August 3,
2016, Lennon’s crew moved equipment onto the property for the next day’s harvest.
Id. at 382-383. At some point the next day, the workers realized that all the gates to
the orchard had been locked; Lennon’s lock had been removed and replaced with a
combination lock that Lennon’s workers could not open. Id. at 383. Lennon’s workers
were locked inside the orchard. Id.
Lennon’s workers contacted Lennon, who immediately texted Hynes to ask if
he could unlock the gate. Id. Hynes advised that Lennon needed to contact Curtis, the
new owner of the property, which Lennon did, leaving a voice mail asking Curtis to
3 contact him. Id. Lennon also called the Sheriff’s Office. Id. at 383. Hynes called
Curtis himself to inform him that Lennon was trying to get into the orchard. Id. Curtis
did not contact Lennon and did not respond to Lennon’s call, believing Lennon to
have no right to harvest peaches on the property. Id. at 383-384. Eventually, the
sheriff cut the lock, allowing Lennon’s workers to leave the property. Id. at 384.
Fitzgerald Farms sought injunctive relief to access the orchard immediately to salvage
the harvest, and Curtis executed an application for a criminal arrest warrant against
Lennon to keep him off the property. Id. Fitzgerald Farms was granted a temporary
restraining order to access the peaches, but the crop was ruined by the time the
workers arrived. Id.
Fitzgerald Farms sued for trespass and attorney fees, seeking not less than
$90,000 in actual damages and punitive damages. Id. at 384. Before the trial began,
the trial court ruled that Fitzgerald Farms could not seek punitive damages against
Whitaker Farms, reasoning that Curtis was not the person who locked Lennon’s
workers in the orchard,1 and although he may have ratified Hynes’s actions, that
would not allow the jury to extrapolate a claim for punitive damages. Id. The jury
1 Hynes was initially named as the defendant in the action, but Whitaker Farms was allowed to intervene and Hynes was dismissed without prejudice at the consent of the partes. Whitaker I, 347 Ga. App. at 384.
4 found in favor of Fitzgerald Farms, awarding it $150,000 in compensatory damages
and $400,000 in OCGA § 13-6-11 attorney fees, which was reduced by the trial court
to $272,000. Id. at 384-385. Both parties appealed, and we affirmed the verdicts for
liability and attorney fees, id. at 385-388 (1), (2), (3), but reversed the trial court’s
ruling that withdrew the issue of punitive damages from the jury, id. at 389 (4) (b).
We found that the actions taken by Curtis, including keeping the gates locked while
the peaches rotted and executing the arrest warrant application against Lennon, were
“sufficient evidence of ‘conscious indifference’ to authorize a jury to award punitive
damages.” Id. at 389 (4) (b).
On remand, the parties prepared for a new trial on the issue of punitive
damages. Whitaker Farms filed several motions in limine seeking to exclude certain
evidence, including as relevant to this appeal (1) “evidence relating to any actions,
events, or statements that occurred after the end of the purported lockout on August
4, 2016”; and (2) “evidence regarding settlement communications or discussions.”
Fitzgerald Farms sought to include facts established at the first trial to limit the issues
for the jury at the second trial. Fitzgerald Farms argued that the facts as described in
Whitaker I constituted the “law of the case” and Whitaker Farms could not use the
second trial to relitigate facts concerning its liability.
5 The trial court held a hearing on these motions but reserved its ruling. Before
trial, the court sent to counsel for both sides a draft of the findings from the previous
trial and preliminary instructions it intended to read to the jury. Whitaker Farms
objected to several of the trial court’s proposed instructions. Before the trial began,
the trial court ruled on the motions in limine. As relevant here, the trial court denied
Whitaker Farms’s motion to exclude evidence of events that occurred after the
lockout, finding Curtis’s actions to let the peach orchard rot after the conflict with
Lennon to be relevant to his intent. The trial court also denied Whitaker Farms’s
motion to exclude a statement made by Curtis to Lennon during an alleged settlement
negotiation. Throughout the discussion of Whitaker Farms’s motions in limine, the
parties discussed extensively what facts were found by the first jury and what could
or could not be relitigated at the second trial.
At the opening of the trial, the court explained to the jury that there was a
previous trial in the case, and what the verdict was in that trial, including the damages
awarded to Fitzgerald Farms. The trial court explained:
Whether or not punitive damages should be awarded in this case is now a matter for this jury, in your sole discretion, to determine. In situations such as this, we are not required to retry the entire case and you have
6 been empaneled to decide the limited issue of punitive damages and any issues related to the claim for punitive damages.
The court then read 27 facts that the jury was “to take to be factually correct without
the need to hear additional testimony or evidence[.]” At the conclusion of the first
phase of the trial, the jury found that Fitzgerald Farms was entitled to punitive
damages. The case then proceeded to the second phase to determine the amount of
punitive damages, with the jury returning a verdict of $500,000 in punitive damages
for Fitzgerald Farms and indicating that attorney fees were warranted. The third phase
of the trial was then initiated to determine the amount of attorney fees, which the jury
found to be $200,000. This appeal followed.
1. Whitaker Farms contests the denial of two of its motions in limine.
(a) First, Whitaker Farms argues that the trial court erred in admitting
statements made during a settlement conference. At trial, Lennon testified that, before
his deposition, he met with Curtis one-on-one with their attorney’s knowledge.
Lennon expected that the two would “come away with an agreement, a settlement .
. .” and asked if the two could just walk away from the dispute, each paying their own
costs. After the conversation began cordially, Curtis reminded Lennon about Curtis
seeking a criminal arrest warrant against Lennon for trespassing on his property, and
7 told Lennon that he “thrived off this type of litigation” and had bankrupted a person
in the past. Curtis also commented that Lennon had made him very angry and Curtis
was going to make an example out of Lennon. Curtis testified that Lennon’s account
of the conversation was “unequivocally not true.” Rather, Curtis stated that they
reached a tentative agreement where Lennon would pay him annually for the orchard,
but the deal never came to fruition.
Whitaker Farms argues that this testimony was inadmissible under OCGA § 24-
4-408 (b) and OCGA § 24-4-403 because the discussion was not relevant to Curtis’s
intent at the time of the tortious action (the locking of the gate) and was extremely
prejudicial to its case, as it formed a central part of Fitzgerald Farms’s case.
OCGA § 24-4-408 (b) states: “Evidence of conduct or statements made in
compromise negotiations or mediation shall not be admissible.” The statute, however,
“shall not require exclusion of evidence offered for another purpose, including, but
not limited to, proving bias or prejudice of a witness, negating a contention of undue
delay or abuse of process, or proving an effort to obstruct a criminal investigation or
prosecution.” OCGA § 24-4-408 (c). And “[b]y its terms, the rule forbids admission
of evidence only when it is offered to prove liability for or invalidity of the claim or
its amount.” Zurich American Ins. Co. v. Watts Indus., Inc., 417 F3d 682, 689 II (B)
8 (7th Cir. 2005) (citation and punctuation omitted).2 See also Christie v. Rainmaster
Irrigation, Inc., 299 Ga. App. 383, 390 (5) (682 SE2d 687) (2009) (applying the same
principles to Georgia’s previous version of the statute, OCGA § 24-3-37).
Accordingly, evidence coming out of settlement negotiations is admissible for other
purposes, including to show knowledge and intent. Zurich, 417 F3d at 689 II (B).
Here, where the trial court allowed the admission of Curtis’s statements during
something akin to a settlement negotiation for the limited purpose of proving Curtis’s
intent and state of mind,3 there was no abuse of discretion. See Efstathiou v. Reiss,
227 Ga. App. 735, 737 (4) (490 SE2d 426) (1997) (reviewing for abuse of discretion
the trial court’s decision to allow testimony referencing settlement negotiations in
order to bring the witness’s attention to a particular point in time). This is not a case
where Curtis’s admissions during the course of a settlement negotiation were used
2 Georgia courts follow federal guidance in interpreting Georgia’s rules of evidence. See State v. Almanza, 304 Ga. 553, 558 (2) (820 SE2d 1) (2018) (“The General Assembly was crystal clear in conveying its intent that Georgia’s new Evidence Code was primarily enacted to adopt the Federal Rules of Evidence.”) 3 Indeed, during the jury charge, the trial court instructed the jury that all of the evidence they heard concerning Curtis’s conduct after the lockout was “admitted for the sole purpose of demonstrating, if it does, [Curtis’s] intent to commit the tort of trespass and whether [Curtis’s] state of mind or motivations in connection with that tort meet the punitive damages standard.”
9 against him to prove his liability; rather, his demeanor was used as evidence of his
state of mind toward Lennon, which was relevant to the jury’s consideration of
whether to award punitive damages. See Cox v. Mayan Lagoon Estates, Ltd, 319 Ga.
App. 101, 104 (1) (b) (734 SE2d 883) (2012) (explaining that the purpose of the
former version of this rule, OCGA § 24-3-37, was to encourage settlements by
allowing parties to make admissions towards compromise).
We also find no abuse of discretion under OCGA § 24-4-403, which states:
“Relevant evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury or
by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” “[T]he exercise of discretion under Rule 403 is case-specific
and usually turns on the trial court’s assessment of the probative value and prejudicial
effect of the particular evidence at issue.” Nails v. State, 357 Ga. App. 515, 519 (1)
(851 SE2d 144) (2020) (citation and punctuation omitted). See also Cannon v.
Barnes, 357 Ga. App. 228, 230 (1) (850 SE2d 436) (2020) (“the balancing test of
OCGA § 24-4-403 . . . is a quintessentially fact-sensitive enterprise, and the trial
judge is in the best position to make such factbound assessments. Recognizing that
coign of vantage, we typically give the [trial] court wide latitude when evaluating the
10 delicate balance that Rule 403 requires”). Here, where the trial court found the
evidence at issue relevant to Curtis’s intent as it related to the punitive damages
standard, and instructed the jury to that end, we find no abuse of discretion.
(b) Whitaker Farms also asserts that the trial court’s ruling to allow evidence
of the condition of the property months and years after the lockout incident was
erroneous, specifically arguing that the evidence was inadmissible under Rule 403
because it was not relevant to the issue of whether Curtis’s actions at the time of the
trespass were worthy of punitive damages and it unfairly prejudiced Whitaker Farms
by portraying Curtis as a poor steward of the land.
At trial, Lennon testified about his observations of the peach orchard in spring
2017, the year after the lockout. He testified that Whitaker Farms was not taking care
of the crop and had cut the trees “to the point that they ruined the trees.” The jury was
shown pictures of the trees from when Lennon was tending the orchard to compare
to the trees afterwards.
Here, Fitzgerald Farms’s theory of recovery was that Curtis and Whitaker
Farms should be liable for punitive damages because Curtis had malicious and bad
faith intentions when refusing Lennon access to the property. According to this
theory, Whitaker Farms’s non-interest in harvesting the peaches it so forcefully kept
11 away from Lennon showed its malice towards Fitzgerald Farms, as opposed to a good
faith effort to protect its own crops. Indeed, Whitaker Farms’s defense to the punitive
damages allegations was that it was acting only to protect its land and crops from
damage from a trespasser. As evidence relevant to a key issue, we see no abuse of
discretion in the trial court’s decision to allow this evidence to be presented to the
jury. See Murphy v. McCaughey, 262 Ga. App. 570, 573 (3) (586 SE2d 16) (2003)
(“all evidence that throws light on a material issue in the case should be admitted
unless its potential for prejudice outweighs its possible probative value”).
2. Whitaker Farms next contests the trial court’s instructions to the jury to take
certain facts as established. As described above, at the outset of the trial, the court
read 27 facts that the jury was to accept as true without the need to hear additional
evidence. Most of these facts were taken directly from Whitaker I, 347 Ga. App. at
381-384. Whitaker Farms argues that the statement of facts from Whitaker I does not
constitute the “law of the case” because we cannot know what the jury actually found
in the first trial. Rather, our opinion constituted merely a statement of the facts that
could have authorized the jury’s verdict, with the evidence viewed in the verdict’s
favor as required on appellate review. Whitaker Farms argues that stating the facts to
the jury saved no time in the second trial, as all but one witness from the first trial was
12 called to testify at the second trial, and it suffered prejudice because some of the
stated facts were disputed or contrary to actual evidence.
Here, under the law of the case, as established in Whitaker I, neither Whitaker
Farms nor the jury could revisit the issue of Whitaker Farms’s liability for trespass
against Fitzgerald Farms. See Kent v. A.O. White, 253 Ga. App. 492, 493 (1) (559
SE2d 731) (2002). In order to affirm the jury’s liability verdict in the first trial, we
held that the evidence showed that:
[Curtis] knew that (a) Lennon had occupied the Baby Gold orchard and harvested peaches on it for at least a decade; (b) Hynes had locked the gates of the peach orchard where Fitzgerald Farms was harvesting its peaches; and (c) any delay in harvesting could result in destruction of the crop. Nevertheless, [Curtis] neither instructed Hynes to unlock the gates on August 4 — thus allowing Lennon and his workers to return to the property — nor stopped Hynes from relocking the gate the following morning. Instead, [Curtis] ignored Lennon’s phone call and Fitzgerald Farms’[s] complaint for a temporary restraining order, and proceeded to file a criminal arrest warrant against Lennon to keep him off the property.
Whitaker I, 347 Ga. App. at 386 (1). These findings were required to meet the
standard for imputing liability to Curtis and Whitaker Farms from Hynes’s actions,
as the jury had to find that Curtis ratified Hynes’s wrongful conduct in order to hold
13 Whitaker Farms accountable for its employee’s actions. Id. at 385-386 (1). Without
these findings, we would not have been able to affirm the jury’s first verdict.
Accordingly, the factual statements with which Whitaker Farms takes issue
were properly included as law of the case to the jury, as they were part and parcel of
the jury’s trespass verdict that could not be re-litigated. And the record supports the
trial court’s decision that such direction to the jury was necessary. As is clear from
Whitaker Farms’s statement of the issues for the second trial in the consolidated pre-
trial order, Whitaker Farms intended to relitigate its liability for the trespass,
including statements that Curtis had no knowledge that Fitzgerald Farms had any
right to access the property, characterizing Fitzgerald Farms’s trespass damages as
mere claims of purported trespass. Further, the trial court, when reading these factual
statements to the jury, put them in context by making it clear what the purpose of the
second trial was — to decide the limited and sole issue of whether or not punitive
damages should be awarded in the case. Thus, we see no reversible error in the trial
court’s actions. See Kent, 253 Ga. App. at 493 (1) (affirming second jury verdict
where trial court read appellate opinion to the second jury; “[t]o charge the jury on
the law, and even the facts, as affirmed on appeal is not reversible error where such
facts have been precluded from relitigation under the law of the case”).
14 3. Whitaker Farms’s next two claims of error —that “in light of its erroneous
evidentiary rulings” and “[w]ithout the improper evidence” introduced at trial, the
trial court erred in failing to grant a direct verdict — are based on the premise that the
trial court’s evidentiary rulings were error, and thus meritless based on our discussion
above.
4. In related claims of error, Whitaker Farms contests the trial court’s charging
of the jury during the first phase of the trial. Punitive damages cases are tried in two
parts; first, the jury must decide if punitive damages are warranted by the evidence.
OCGA § 51-12-5.1 (d) (1). If yes, “the trial shall immediately be recommenced in
order to receive such evidence as is relevant to a decision regarding what amount of
damages will be sufficient to deter, penalize, or punish the defendant in light of the
circumstances of the case.” OCGA § 51-12-5.1 (d) (2). In this case, the trial court
charged the jury during the first phase of the trial that it was to determine whether to
impose punitive damages against Whitaker Farms. After stating Fitzgerald Farms’s
burden of proof (clear and convincing evidence) and the general requirements to find
punitive damages, the trial court went on to instruct the jury that, “[i]f you decide to
impose punitive damages, you should further specify whether you find that the
15 defendant acted with specific intent to cause harm.”4 The trial court instructed the jury
that they need only find specific intent to harm by a preponderance of the evidence
but that the defendant must be found to have been active, as opposed to passive, in
committing the wrong that caused the harm.
Whitaker Farms asserts that the trial court erred in allowing uncapped punitive
damages because Whitaker Farms was not an “active tortfeasor”; Hynes was the only
active tortfeasor. Whitaker Farms also argues that it was error to include instructions
concerning specific intent to harm in the first phase of the trial, as it was not relevant
to the first question of whether punitive damages should be awarded at all, and it
introduced a lower burden of proof that could have confused the jury as to their
obligations.
4 This language comes from the same statute covering punitive damages:
if it is found that the defendant acted, or failed to act, with the specific intent to cause harm . . . there shall be no limitation regarding the amount which may be awarded as punitive damages against an active tort-feasor but such damages shall not be the liability of any defendant other than an active tort-feasor.
OCGA § 51-12-5.1 (f). It is also found in Georgia’s pattern jury instructions. Suggested Pattern Jury Instructions, Vol. I: Civil Case (2022), § 66.711.
16 We agree with Fitzgerald Farms that Whitaker Farms could be considered an
active tortfeasor in light of the facts of this case. The trial court instructed the jury
that, to find specific intent to harm that would ultimately lead to uncapped punitive
damages, it would have to find that Whitker Farms was active, rather than passive in
committing the wrong that cause the harm to Fitzgerald Farms. In a trespass case,
“[e]very act which unlawfully interferes with a private property owner’s absolute
right to enjoy its property is a tort for which an action shall lie.” Pope v. Pulte Home
Corp., 246 Ga. App. 120, 120 (1) (539 SE2d 842) (2000). Thus, evidence showing
that Whitaker Farms acted after the initial lockout to keep Lennon and his workers
off the property would authorize the jury’s finding that it was an active tortfeasor in
this case.
Further, we see no reversible error in the trial court’s instructing the jury on
specific intent to cause harm in the first phase of the trial. “The review of allegedly
erroneous jury instructions is a legal question, and we therefore owe no deference to
the trial court’s ruling and apply the ‘plain legal error’ standard of review.” City of
College Park v. City of Sandersville, 361 Ga. App. 529, 533 (4) (864 SE2d 680)
(2021) (citation and punctuation omitted). Here, the trial court’s instructions were not
inaccurate, and there is no indication that the jury was in fact confused by the burdens
17 of proof stated for different findings. See id. (“Upon review, jury instructions must
be read and considered as a whole in determining whether the charge contained error.
Challenged segments cannot be considered in isolation to ascertain whether the
charge is accurate and fair and worked no prejudice to the complaining party.”)
(citation and punctuation omitted). And we must assume that the jury followed the
instructions as given concerning the burdens of proof for different findings. City of
Lawrenceville v. Alford, 366 Ga. App. 226, 228 (1) (881 SE2d 474) (2022).
Accordingly, we see no prejudice to Whitaker Farms based on the trial court’s jury
instructions. See Fassnacht v. Moler, 358 Ga. App. 463, 474-475 (1) (b) (855 SE2d
692) (2021) (trial court’s alleged error in instructing the jury on specific intent to
cause harm during Phase I of a punitive damages trial was not a substantial error
harmful as a matter of law because there was no indication that the jury charge was
confusing or misleading to the jury). Accordingly, we affirm the jury’s verdict for
punitive damages in this case.
Judgment affirmed. Doyle, P. J., and Senior Appellate Judge Herbert E. Phipps
concur.