Whitaker Farms, LLC v. Fitzgerald Fruit Farms, LLC

• Court: Court of Appeals of Georgia
• Decided: October 1, 2025
• Docket: A23A0438
• Status: Published

Opinion

THIRD DIVISION DOYLE, P. J., GOBEIL and PADGETT, JJ.

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

October 1, 2025

In the Court of Appeals of Georgia A23A0438. WHITAKER FARMS, LLC v. FITZGERALD FRUIT FARMS, LLC.

GOBEIL, Judge.

This is the third appearance of this case in this Court. Fitzgerald Farms, LLC

sued Whitaker Farms, LLC for trespass, punitive damages, and attorney fees, and

Whitaker Farms countersued. In Whitaker I, we affirmed the original jury verdict

awarding $150,000 in compensatory damages and $272,000 in attorney fees to

Fitzgerald Farms. Whitaker Farms, LLC v. Fitzgerald Fruit Farms, LLC, 347 Ga. App.

381 (819 SE2d 666) (2018) (“Whitaker I”). We determined, however, that the trial

court erred in precluding punitive damages, and we thus remanded the case to the trial

court to conduct a punitive damages trial. Id. at 389 (4) (b). The trial court conducted

such trial, and in Whitaker II, we affirmed the second jury verdict awarding $500,000 in punitive damages and $200,000 in attorney fees to Fitzgerald Farms. Whitaker

Farms, LLC v. Fitzgerald Fruit Farms, LLC, 368 Ga. App. 563 (890 SE2d 454) (2023)

(“Whitaker II”). Thereafter, the Supreme Court granted certiorari and vacated our

opinion in Whitaker II. Whitaker Farms, LLC v. Fitzgerald Fruit Farms, LLC, 320 Ga.

208 (908 SE2d 531) (2024) (“Whitaker III”). On remand, the Supreme Court has

instructed us to consider whether the erroneous admission of certain evidence was

harmful such that a new trial on punitive damages is required. Id. at 220 (4). For the

reasons set forth below, we find that the error was not harmless. We thus vacate the

jury verdict, and remand the case to the trial court for a new trial on the issue of

punitive damages.

This case stems from an incident that occurred in August 2016. We will discuss

the evidence from the punitive damages trial in more detail below (and the background

facts are well summarized in our previous opinions) but, briefly, Fitzgerald Farms

(owned by Sean Lennon, or “Lennon”), brought an action against Whitaker Farms

(owned by Curtis Whitaker, or “Whitaker”). Lennon asserted that he had the right

to use a 20-acre tract of land located on Whitaker Farms’s property, based on an

agreement made between Lennon and Walter “Hynes” Barnes, the son of the tract’s

2 previous owner, that was later reduced to a written lease. Lennon alleged Whitaker

Farms trespassed on this tract of land by locking Fitzgerald Farms’s employees into

and later out of a peach orchard that was ready for harvest. Fitzgerald Farms sought

no less than $90,000 in actual damages, $250,000 in punitive damages, and attorney

fees pursuant to OCGA § 13-6-11. Before trial, the trial court determined that

Fitzgerald Farms could not seek punitive damages because Whitaker was not the

person who actually committed the actions constituting the trespass. The parties

proceeded to a jury trial (the “original jury trial”), and the jury awarded Fitzgerald

Farms $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. On appeal, we found that the

trial court erred by withdrawing the issue of punitive damages from the jury and in

refusing to instruct the jury on punitive damages. Whitaker I, 347 Ga. App. at 389 (4)

(b). We otherwise affirmed the jury’s verdict. Id. at 385-388 (1), (2), (3).

On remand, the parties proceeded to a second trial (the “punitive damages

trial”), which took place over five days in January 2022. At the conclusion of the

punitive damages trial, the jury awarded Fitzgerald Farms $500,000 in punitive

3 damages and $200,000 in attorney fees. On appeal, we affirmed this verdict in full.

Whitaker II, 368 Ga. App. at 572 (4).

The Supreme Court granted certiorari on whether statements Whitaker made

during a settlement negotiation were properly admitted under OCGA § 24-4-408

(“Rule 408”), which governs the admissibility of settlement offers and statements

made during settlement negotiations. Whitaker III, 320 Ga. at 208. At the punitive

damages trial, Lennon testified that he and Whitaker met one-on-one before a

deposition, and Lennon believed that the two “were going to come away with an

agreement, a settlement[.]” However, according to Lennon, Whitaker threatened him

with criminal prosecution, and told him that he “thrived” off of this type of litigation

and intended to make an example out of Lennon. Whitaker II, 368 Ga. App. at 566 (1)

(a). We held that this testimony was admissible because it was relevant to the limited

purpose of Whitaker’s intent and state of mind toward Lennon, which was relevant

to the punitive damages question. Id. at 567-568 (1) (a). The Supreme Court disagreed

with this reasoning, finding that Whitaker’s statements were admitted for the purpose

of proving Whitaker Farms’s liability for punitive damages, which is forbidden under

Rule 408. Whitaker III, 320 Ga. at 218-220 (3). Accordingly, the Supreme Court

4 vacated Whitaker II and remanded the case to this Court to “address whether the

erroneous admission of the evidence was harmful such that a new trial on punitive

damages is required.” Whitaker III, 320 Ga. at 220 (4).

Under the harmless error doctrine, we must assess whether evidentiary errors

are actually harmful before reversing the judgment of the trial court. See OCGA § 24-

1-103 (a) (“Error shall not be predicated upon a ruling which admits or excludes

evidence unless a substantial right of the party is affected . . . .”); OCGA § 9-11-61.

“When we consider whether an error was harmless, we review the record de novo and

weigh the evidence as we would expect reasonable jurors to have done so.” Altine v.

Eastside Med. Ctr., LLC, 372 Ga. App. 475, 476 (904 SE2d 396) (2024) (citation and

punctuation omitted). “The test for determining nonconstitutional harmless error is

whether it is highly probable that the error did not contribute to the verdict.” Id. at

480 (citation and punctuation omitted). On appeal, the burden is on the appellant to

establish not only error, but also harm to require reversal. Lamb v. Javed, 303 Ga. App.

278, 282 (2) (692 SE2d 861) (2010).

Based upon our review of the punitive damages trial record in this case, we

cannot conclude that it is highly probable that this erroneously admitted evidence did

5 not contribute to the verdict. In order to achieve a verdict for punitive damages,

Fitzgerald Farms was required to prove by clear and convincing evidence that

Whitaker Farms’s actions (via Whitaker’s actions) showed willful misconduct, malice,

fraud, wantonness, oppression, or that entire want of care which would raise the

presumption of conscious indifference to consequences. OCGA § 51-12-5.1 (b).

In assessing the question on appeal, certain parts of the record are worth

highlighting. First, after informing the jury that this trial was being held strictly on the

issue of punitive damages, the trial court read to the jury a series of stipulated factual

statements describing the original dispute and highlighted that Whitaker Farms was

found by a previous jury to be liable for trespass and interference with Fitzgerald

Farms’s peach crop that resulted in damages to Fitzgerald Farms. The jury then heard

from several witnesses, including Lennon, who testified about how he came to lease

the 20 acres on what became the Whitaker Farms property. He explained that he had

worked for its previous owner, Carroll Farms, for many years and made a deal with

Hynes (part owner of Carroll Farms’s owner and its manager) to grow a specific type

of peach on those acres. Lennon also purchased a separate tract of land previously

owned by Hynes at a foreclosure sale. The jury heard that Whitaker and Hynes were

6 unhappy about Lennon’s purchase of the latter acreage, as Whitaker had tried to

purchase it himself, and Hynes was hoping to one day have a chance to buy it back

from Whitaker.

The jury also heard from Justin Hammock, a corporal with the Meriwether

County’s Sheriff’s Office, that Whitaker was aware of Lennon’s claim to use the 20-

acre tract. In April 2016, Whitaker tried to make a criminal complaint against Lennon

for uprooting some trees on that tract, but Hammock informed him that it was a civil

matter. Hammock and his supervisor testified that Whitaker was adamant about

arresting Lennon for these actions despite being told repeatedly that nothing criminal

had occurred.

According to Lennon, he and his employees took all of their normal measures

to prepare for the 2016 peach harvest, doing everything in the open as they always had

done, and making no attempt to conceal their actions. Lennon testified about the day

of the trespass, where Hynes locked several Fitzgerald Farms employees inside of the

orchard and then refused to unlock the gate. Lennon texted Hynes and asked him to

open the gate, but Hynes responded that Lennon would have to talk to Whitaker, the

new owner of the property. Hynes shared Whitaker’s phone number with Lennon.

7 Lennon then called Whitaker and left a voicemail, Whitaker never responded. Hynes

testified that he informed Whitaker about Lennon’s message, but Whitaker took no

action. Lennon testified that he had to get a court order so his employees could be

freed. He also requested an injunction so he could return to harvest his crop without

fear of further interference by Whitaker Farms. And the jury heard that, despite his

knowledge of Lennon’s claim to those 20 acres, Whitaker opposed the injunction,

allowing the peaches to rot on the trees before the matter could be resolved. The jury

also heard that Whitaker Farms could not have harvested those peaches even if they

had wanted to; Hynes testified that they did not have the manpower to do so, nor a

buyer for that specific type of peach.

Further, Whitaker filed a counter lawsuit for more than one million dollars and

swore an application for a criminal warrant against Lennon. Lennon testified about the

distress he and his wife suffered due to their fear of criminal charges coming against

him. Ultimately, due to the stress of the situation, Lennon decided to relinquish the

land and the peach trees on that orchard to Whitaker Farms.

During the punitive damages trial, the jury heard the forbidden evidence about

a meeting between Lennon and Whitaker. Specifically, Lennon testified that he met

8 with Whitaker and believed they could come to a settlement, to “just part ways” and

“eat . . . whatever fees or costs we had incurred[.]” However, Whitaker told him it

was within his (Whitaker’s) right to bring up the criminal charges again and that

Lennon should think about his family. Lennon testified that Whitaker told him that

he “thrived” off of this type of litigation and that he had bankrupted another person

with similar litigation. Lennon testified that he offered to walk away from the litigation

and that Whitaker responded by saying that he was going to make an example out of

Lennon.

The jury heard about more actions taken by Whitaker after the original trespass.

For example, Whitaker Farms chainsawed the trees on the Fitzgerald Farms acres,

rendering them essentially dead as crop trees. Whitaker also allowed many acres of

Whitaker Farms to go to waste, failing to maintain the acres previously used by

Fitzgerald Farms and other parts of the farm. During Whitaker’s cross-examination,

the jury heard about Whitaker’s deposition, in which he refused to rule out attempting

to bring new criminal charges against Lennon.

The jury also heard directly from Whitaker, who testified that he purchased the

land at issue and what remained of Carroll Farms in October 2015. He denied knowing

9 about Lennon’s lease over the 20-acre tract at the time of the purchase, stating that

he believed Lennon to be an employee of Hynes’s. Whitaker testified that he learned

about Lennon’s connection to the tract in spring 2016 after Lennon took down some

trees on that land. He agreed that the sheriff’s deputies referred him to civil court to

resolve the dispute and that he asked them to tell Lennon to stay off the property, but

he denied insisting upon Lennon’s arrest. Whitaker testified that he believed the issue

was resolved — because the deputies told him they would speak to Lennon, and then

he did not see or hear about Lennon on the property again until August.

As to the day of the lockout, Whitaker testified that Hynes forwarded to him

Hynes’s exchange with Lennon about unlocking the gate. Whitaker also spoke to

Hynes on the phone shortly thereafter, and received the voicemail from Lennon asking

for Whitaker to call him. Whitaker testified that he did not remember if he heard the

voicemail that same day or the next day, but the message “didn’t have any sense of

urgency to it,” and he denied understanding the implications of what was happening

at the time He testified that he sought criminal charges against Lennon because he

wanted Lennon to stay off the property. He stated that he hired an attorney and

followed his advice regarding the civil and criminal litigation. Regarding the

10 improperly admitted testimony about what Whitaker told Lennon at their settlement

conference, Whitaker flatly denied making such statements. To the contrary,

Whitaker testified that he would have “liked to have had a walk-away” agreement

with Lennon. After this portion of the trial, the jury returned a verdict finding liability

for punitive damages against Whitaker Farms. The trial court then turned to the

amount of punitive damages that should be awarded, and later to attorney fees.

Based on this evidence and the rest of the evidence presented at the punitive

damages trial, we agree with Lennon that there were several different pieces of

evidence that likely influenced the jury’s verdict finding that Fitzgerald Farms was

entitled to punitive damages. Notably, there was evidence that Whitaker was aware

of Lennon’s claim to use the 20-acre tract – at the very least – months before the day

of the lockout. There was evidence that two law enforcement officers informed

Whitaker that his dispute with Lennon over the land was a civil matter rather than a

criminal one, and yet he still attempted to bring criminal charges against Lennon

twice, and refused to rule out bringing them again in his deposition. There was

evidence that Whitaker Farms could not have harvested and sold the contested

11 peaches even if it had wanted to, and yet Whitaker and Hynes prevented Lennon from

harvesting them and Whitaker sued him for their value.

However, this evidence was disputed. From his perspective, although Whitaker

knew Lennon was asserting a claim to the land, he did not agree that Lennon actually

had a right to those peaches. He stated that he subjectively believed that Lennon was

interfering with his land and his property, and he stated that he was advised by his

attorney that the criminal charges were the best way to keep Lennon off what he

believed to be his land. And the evidence about Whitaker’s knowledge of the actual

lockout is mixed. It is clear that Whitaker was aware Lennon was trying to get into a

gate and get in touch with him, but he denied understanding that people were locked

in the gate or that peaches were going to waste. Hynes may have understood these

facts, but it was not definitively established whether Whitaker did or did not, given his

denial. Further, Whitaker attributed many of his actions concerning the criminal

charges and the civil litigation to following the advice of his attorneys.

Given these disputes in the evidence presented to the jury, we find that the

impact of the improperly admitted evidence was likely significant. Whitaker’s alleged

statements that he thrived off of the continued litigation and intended to bankrupt or

12 make an example out of Lennon were direct evidence of malicious intent. Whereas

much of the other evidence of the motive behind Whitaker’s actions could be

attributed to miscommunication or ignorance. Indeed, Fitzgerald Farms pointed to

this evidence in both opening statements and closing arguments, noting during closing

arguments that these statements were “great evidence of intent[.]” And, as explained

in Whitaker III, the jury was instructed to consider this evidence specifically for the

forbidden purpose of deciding Whitaker Farms’s liability for punitive damages. 320

Ga. at 218-220 (3); see also Whitaker II, 368 Ga. App. at 567 (1) (a). Thus we do not

find that there was other evidence sufficiently strong enough to combat the forbidden

settlement conference evidence that would render its introduction harmless in this

case. See Altine, 372 Ga. App. at 480-481 (considering the overall strength of the case

when deciding that improperly admitted settlement negotiation evidence was

harmless; ultimately finding the forbidden evidence was subject to a limiting

instruction and was offset by other overwhelming evidence in support of the winning

party’s case).

13 Accordingly, we vacate the judgment entered on the jury verdict in this case and

remand the case for further proceedings not inconsistent with this opinion.

Judgment vacated and case remanded. Doyle, P. J., and Padgett, J., concur.