SECOND DIVISION

MILLER, P. J.,

BROWN and GOSS, 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.

http://www.gaappeals.us/rules

September 26, 2018

In the Court of Appeals of Georgia

A18A1420, A18A1421. WHITAKER FARMS, LLC v.

FITZGERALD FRUIT FARMS, LLC; and vice versa.

BROWN, Judge.

Whitaker Farms, LLC appeals following a jury verdict in favor of Fitzgerald

Fruit Farms, LLC on Fitzgerald Farms’ complaintseeking damages for trespass after

Whitaker Farms’ property manager locked the gates to the peach orchard where

Fitzgerald Farms was harvesting peaches. In Case No. A18A1420, Whitaker Farms

contends that the trial court erred in denying its motion for a directed verdict and

motion for judgment notwithstanding the verdict on the trespass claim, and awarding

Fitzgerald Farms attorney fees. Fitzgerald Farms cross-appeals in Case No.

A18A1421, arguing that the trial court erred by not allowing the jury to consider an

award of punitive damages. For reasons that follow, we affirm the trial court’s denial
of Whitaker Farms’ motion for a directed verdict and motion for judgment

notwithstanding the verdict, but reverse the trial court’s refusal to allow the jury to

consider an award of punitive damages. 

Construed in favor of the verdict, Hagan v. Keyes, 329 Ga. App. 178 (764

SE2d 423) (2014), the evidence shows that Sean Lennon, the owner of Fitzgerald

Farms, began working for Carroll Farms in high school. Carroll Farms was a peach

and cattle farm in Meriwether County owned by Lennon’s math teacher, Elizabeth

“Kay” Carroll Barnes, and her son, Walter “Hynes” Barnes; Hynes ran the business

and managed the family’s farm properties. Throughout high school and college,

Lennon worked at Carroll Farms during the summer months. After obtaining a

master’s degree in 2003, Lennon began working full-time farming peaches at Carroll

Farms. Sometime around 2006, Hynes and Kay agreed to allow Lennon to grow Baby

Gold peaches on a 20-acre tract of their farm after he was approached by a Canadian

canning company looking for people to grow Baby Gold peaches for use in baby

food. Lennon testified that the parties had an “oral handshake deal” for him to lease

the 20-acre tract for the economic life of the peach trees (10-15 years), and that

Lennon and Kay later signed a written lease agreement so that Lennon could obtain

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crop insurance.1 Lennon maintained his own packing facility, including a commercial

packing shed and a forced air cooler, which cools the peaches rapidly because “they

can’t tolerate [the summer] heat for that long”; Fitzgerald Farms has the only forced

air cooler in Meriwether County. 

Unbeknownst to Lennon, in October 2015, Hynes and Curtis Whitaker, the

owner of Whitaker Farms, agreed that Whitaker Farms would buy 290 acres of

Carroll Farms, including the 20-acre orchard on which Fitzgerald Farms had been

farming peaches for over a decade and a separate 95-acre tract, as well as the Carroll

Farms “business.”2 At closing, both Hynes and Kay signed an Owner’s Affidavit

swearing that the property was “subject to no leases, tenancies, adverse possession,

occupancy rights, licenses, or similar claims by third parties.” Hynes never advised

1 A copy of the written lease could not be found, but evidence was presented

that Lennon maintained crop insurance on the Baby Gold orchard for at least 2013-

2016, and both Lennon and Hynes confirmed that Lennon could not have obtained

crop insurance without a written lease. And, acreage reportsfor the years 2009-2016,

produced by the United States Department of Agriculture, Farm Service Agency, list

Lennon as “other tenant” of the farm/tract of land on which he grew the Baby Golds. 

2 Hynes testified that he and Whitaker have been friends for approximately 15

years. In late 2014, the bank foreclosed on another piece of property owned by the

Barnes family. Hynes and Whitaker discussed that Whitaker would bid on the

property and that “‘at some point Curtis Whitaker would allow [Hynes] to buy it

back.’” Whitaker did not win the bid. Hynes confirmed that Lennon or Fitzgerald

Farms won the bid. 

3
Whitaker that Lennon “had planted a 20-acre peach orchard [on the property] and had

farmed it every year for a decade” because he “didn’t feel like it was necessary. The

land was sold, and there was no lease.”3 After the purchase, Hynes agreed to manage

the property for Whitaker Farms and testified that he works as a contractor. 

Several months after the sale, Lennon and his workers began to prepare for the

2016 harvest, which included regularly spraying the Baby Gold peach trees in the

“Jones Chapel Baby Gold Tract” from December 2015 through July 2016. Lennon

3 Hynes did not tell Whitaker about Lennon’s Baby Gold orchard until April

2016, when Hynessaw that Fitzgerald Farms had “pushed up” 270 experimental trees

that Lennon had planted on the property sometime after 2006. Lennon explained that

after he planted the Baby Gold peach trees in 2006, he planted a test block of

experimental trees which he never harvested because the “trees never cropped.” When

those trees were nine-years old, Lennon decided to “push[] them up.” Lennon

explained that it is important to “push up” non-producing trees because “as part of

being a good steward to the land and just being a good farmer, you just don’t want to

leave things growing up there . . . they’ll just rot” and become infested with insects

which will then invade a neighboring vigorous orchard. When Whitaker found out

from Hynes that Lennon had “pushed up” the experimental trees, he reported the

incident to the Sheriff, complaining that Lennon or his crew damaged “200, 220

peach trees” on his property. A deputy advised Whitaker that the issue was a civil

matter because Lennon and Hynes “entered into an agreement and . . . owned these

trees together from my understanding at that time . . . they both had ownership of the

trees. . . . [A]s far as damaging the trees, . . . it’s part of Mr. Lennon’s property.”

When the deputy referred Whitaker to the magistrate court, he recalled that Whitaker

became “somewhat abrasive” because Lennon was not going to be arrested

immediately. 

4
testified that he never observed Whitaker in the orchard during that time, but that

Hynes drove by the packing shed at least a dozen times every day, never stopping to

say a word. On August 3, 2016, “the day before harvest,” Lennon and his workers

moved their equipment to the orchard so they would be ready to begin picking the

following morning. The following morning, a crew of approximately 25-28 workers

gathered at the orchard to begin harvesting the peaches. Levi Jackson, a Fitzgerald

Farms employee, testified that while he was working that morning, he observed

Hynes driving “down the road that cutsthrough the orchard.” Jackson left the orchard

with the first load of peaches, dropped them at Fitzgerald Farms’ packing shed and

then returned to the orchard to pick up a second load; at that time, all of the gates to

the orchard were unlocked. When Jackson tried to leave the property with the second

load, he found that all three gates to the orchard had been locked and he observed

Hynes driving away from one of the gates. According to Jackson, “our lock was took

off of [the gate], and it had a combination lock on it.” For his part, Hynes testified

that he never saw anyone picking peaches on August 4, 2016, and that he changed the

lock to a combination lock because “[e]very lock on the farm ha[d] been changed to

a combination lock.” 

5
When Jackson realized he and the workers were locked in the orchard, he

called Lennon. Lennon immediately texted Hynes asking if he could unlock the gate

and Hynes texted back: “‘You will need to talk to Curtis Whitaker that now owns it.

I will send you his number.’” Lennon left a voice mail for Whitaker4

and also called

the sheriff’s office. The record reflects that Hynes immediately called Whitaker to

advise that he had given Whitaker’s phone number to Lennon and that Lennon

“would like to get in the gate at the blackberries.” Whitaker testified that he and

Hynesspoke for ten minutes about Hynes “going to the market to buy more produce”

and that Hynes mentioned something about the locked gate, “but [Whitaker] didn’t

pay any attention to it.” According to Hynes, Whitaker said “he would get with

[Lennon].” Whitaker acknowledged that he never called Lennon back and “never

instructed Mr. Lennon to go complete the harvest on my property.” Whitaker testified

that he did not “think [Lennon] had any right to be out there picking peaches” on

4 Whitaker testified at trial that he could not recall whether he heard Lennon’s

voice mail late that night or the following morning, but stated that he knew who

Lennon was “because he was the guy that I understood that worked for Hynes as an

employee that bulldozed our experimental trees.” Whitaker, in his deposition

testimony, which was read to the jury, testified that he did not return Lennon’s call

because he “really didn’t even know who [Lennon] was. I mean, I don’t even know

who he is. Plus at this point in time I don’t think – you know, I don’t think it would

be good for he and I to have a conversation.” Whitaker clarified “this point in time”

as being the date of his deposition as well as August 4, 2016.

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Whitaker Farms property and when asked why he did not return Lennon’s call, he

stated “[w]ell, . . . I was going from one place, I think, to another, and I don’t know

that I would pick up the phone and call someone that had bulldozed my peaches. I

thought that issue was behind me, and it had been three or four months.” 

After receiving permission from a superior court judge, the sheriff cut the lock.

The next morning, Hynesreturned to the property and re-locked the gates; both Hynes

and Whitaker acknowledged that they spoke at least eight times that day, but could

notrecall the details of any of those callsthough Whitaker testified, “[w]hen someone

steals your peaches you, you know, are going to have a lot of conversation about

that.” 

On August 5, 2016, Fitzgerald Farms filed a verified complaint for temporary

restraining order against Hynes asking the court for authorization to complete the

peach harvest and advising that the matter required immediate attention because any

delay could result in the crop being ruined. Fitzgerald Farms’ attorney emailed a copy

of the complaint to Hynes on the same day and Hynes immediately forwarded that

email to Whitaker. On August 9, 2016, Whitaker executed an application for criminal

arrest warrant seeking to keep Lennon off the property. Three days later, a judge

granted Fitzgerald Farms’motion for temporary restraining order and Hynes unlocked

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the gates at the direction of Whitaker’s attorney, Virgil Brown. By that time, the

peaches were “overripe,” “decay[ed]” and damaged by insects; the crop was ruined. 

Fitzgerald Farms’ verified complaint included a claim for trespass, and was

later amended to include claimsfor unjust enrichment and attorney fees under OCGA

§ 13-6-11, and sought “actual damages” in the amount of not less than $90,000 and

punitive damages. On September 6, 2016, Whitaker Farms moved to intervene in the

action and filed an answer and counterclaim. The court granted the motion to

intervene and, shortly thereafter, Hynes was dismissed without prejudice by consent

of the parties, and Fitzgerald Farms withdrew its claim for unjust enrichment. The

trial courtruled that Fitzgerald Farms could notseek punitive damages, reasoning that

Whitaker 

didn’t lock the workers in the field. . . . [W]hile it may very well be that

Mr. Whitaker ratified [Hynes’] conduct, that ratification in my mind

certainly wouldn’t allow the jury to extrapolate from that a claim for

punitive damages. If [Hynes] wasin the case, I would let a claim against

him for punitive damages go to the jury, but not this. 

Following a trial on the claims asserted, a jury found in favor of Fitzgerald

Farms in the amount of $150,000 in actual damages, found against Whitaker Farms

on its counterclaim, and concluded that Fitzgerald Farms was entitled to attorney fees.

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In the second phase of the bifurcated trial on the issue of attorney fees, counsel for

Fitzgerald Farms testified that his client had incurred attorney fees of $244,159, plus

expenses of $2,174.63, and an estimated $150,000 for trial, but that Fitzgerald Farms

wasseeking to recover $272,929.20. The jury awarded Fitzgerald Farms $400,000 in

attorney fees pursuant to OCGA § 13-6-11.

5 After the trial court entered judgment in

favor of Fitzgerald Farms in the amount of $550,000, Whitaker Farms filed a motion

for judgment notwithstanding the verdict and motion for new trial. Following a

hearing, the trial court denied Whitaker Farms’motions, but reduced the attorney fees

award to $272,000.6

Case No. A18A1420

5 During the bifurcated portion of the trial on attorney fees, Lennon testified

that in an effort to settle the matter, he met with Whitaker in January 2017. Whitaker

refused to settle, stating “‘I’m going to make an example of you. I’m going to make

a point. . . . I thrive off this type of litigation. . . . I have been in this type of litigation

before and that individual had to file bankruptcy.’” Whitaker also indicated that “he

was litigating with a blank check and for [Lennon] to keep that in mind.” 

6 The trial court granted Whitaker Farms’ motion for new trial as to attorney

fees only, conditioned on Fitzgerald Farms’ refusal to accept a reduced judgment in

the amount of $422,000 (general damages of $150,000 and reduced attorney fees of

$272,000). Fitzgerald Farmsfiled a notice of acceptance of reduced OCGA § 13-6-11

attorney fees award and modified judgment. The notice of acceptance statesthat “the

jury award of $150,000 in damagesremains unchanged.” The trial courtsubsequently

entered a modified judgment in the amount of $422,000, which also noted that the

original $150,000 damage award remained unchanged. 

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1. Whitaker Farms contends that the trial court erred in denying its motion for

a directed verdict and motion for judgment notwithstanding the verdict on Fitzgerald

Farms’ claim for trespass because there was no evidence presented at trial that

Whitaker Farms’ ratified Hynes’ “unauthorized wrong.” In support of this claim,

Whitaker Farms argues that Fitzgerald Farmsfailed to provide evidence thatWhitaker

Farms received a certain, direct tangible and valuable benefit from the unauthorized

act. This argument is without merit.

“The standard of appellate review of a trial court’s denial of a motion for a

directed verdict or motion for judgment notwithstanding the verdict is the any

evidence test.” (Citation and punctuation omitted.) Bailey v. Annistown Road Baptist

Church, 301 Ga. App. 677, 685 (5) (689 SE2d 62) (2009). In general, an employer

is not responsible for the torts of its independent contractor. OCGA § 51-2-4. An

exception to this rule exists, however, “[i]f the employer ratifies the unauthorized

wrong of the independent contractor.” OCGA § 51-2-5 (6). See also Jones v. Ceniza,

257 Ga. App. 806, 808 (1) (572 SE2d 362) (2002). Whitaker Farms’ claim fails

because it presumes that receipt of a benefit is the only way to prove ratification by

an employer. Ratification can be either express, or implied from: (1) slight acts of

confirmation by the employer; (2) silence or acquiescence of the employer; or (3)

10
where the employer receives and holds the benefits of an unauthorized wrong. See

Merritt v. Marlin Outdoor Advertising, 298 Ga. App. 87, 91 (2) (b) (679 SE2d 97)

(2009); Medley v. Boomershine Pontiac-GMC Truck, 214 Ga. App. 795, 798-799 (4)

(449 SE2d 128) (1994); Kelley v. Carolina Life Ins. Co., 48 Ga. App. 106 (171 SE

847) (1933). See also Greenwald v. Kersh, 265 Ga. App. 196, 198-201 (1) (593 SE2d

381) (2004) (general contractor’s acceptance of work by independent contractor

amounted to ratification of tortious act); Chipley v. Beeler, 122 Ga. App. 781, 782 (1)

(178 SE2d 767) (1970) (homeowner ratified conduct of county by accepting the

work). “Whether ratification occurred is usually a question for the jury.” Medley, 214

Ga. App. at 798 (4). 

In this case, there was ample evidence for the jury to conclude that Whitaker

Farms, as owner of the property, ratified Hynes’ wrongful conduct. Whitaker 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, Whitaker neither instructed Hynes to

unlock the gates on August 4 – thus allowing Lennon and his workers to return to the

property – nor stopped Hynesfromrelocking the gate the following morning. Instead,

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Whitaker ignored Lennon’s phone call and Fitzgerald Farms’ complaint for a

temporary restraining order, and proceeded to file a criminal arrest warrant against

Lennon to keep him off the property. The verdict was supported by the record. See

Stinespring v. Fields, 139 Ga. App. 715, 717 (1) (229 SE2d 495) (1976) (trial court

correctly denied motion for directed verdict where there was evidence supporting

ratification). 

2. Whitaker Farms next contends that there is no evidence to support an award

of attorney fees under OCGA § 13-6-11 because (a) the award was based on mere

guesswork; (b) the associate attorney representing Fitzgerald Farms did not testify;

and (c) fees were awarded on Fitzgerald Farms’ abandoned claim for unjust

enrichment. We disagree. 

“Under Georgia law, expenses of litigation and attorney fees may be awarded,

pursuant to OCGA § 13-6-11, if the fact-finder determines the defendant has acted

in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary

trouble and expense.” (Citation, punctuation and footnote omitted.) Atlanta

Emergency Svcs. v. Clark, 328 Ga. App. 9, 13 (2) (761 SE2d 437) (2014). See also

Jones, 257 Ga. App. at 809 (5). “The question of attorney fees under OCGA § 13-6-

11 is a question for the jury.” KDS Properties v. Sims, 234 Ga. App. 395, 400 (5) (506

12
SE2d 903) (1998). This Court will affirm such an award if there is any evidence to

support it. See Mize v. McGarity, 293 Ga. App. 714, 720 (6) (667 SE2d 695) (2008)

(“intentional tort of trespass will support a claim for expenses of litigation and

attorney fees under OCGA § 13-6-11 [because] the intentional nature of the trespass

gives rise to the bad faith necessary for such recovery”) (citation, punctuation and

footnote omitted). 

Fitzgerald Farms’ principal attorney testified as to his experience and the

experience of his associate who performed a majority of the work, their billing rates,

the number of hours both spent on the case, as well as the amount anticipated in trial

fees. He presented invoices to support the fee request, stated that the incurred fees

were reasonable, and explained that the total amount included reductionsfor work on

the counterclaims as well as the claim for unjust enrichment. Counsel for Whitaker

Farms cross-examined the attorney about the reasonableness of his rates. 

There was ample evidence presented to support the award. Counsel testified as

to his associate’s involvement and confirmed that the fees did not include the claim

for unjust enrichment. As for Whitaker Farms’ complaint that the trial fees were

based on mere guesswork, defense-counsel never cross-examined or challenged the

attorney’s assessment on this issue. “Since this [testimony] was not objected to or

13
controverted by [Whitaker Farms], it authorized the jury to find that the fee charged

was reasonable in this case.” Carpet Transport v. Kenneth Poley Interiors, 219 Ga.

App. 556, 558 (2) (a) (466 SE2d 70) (1995).

3. Whitaker Farms last complains that the award of attorney fees was

unreasonable because it was “excessive[ly] out-of-market.” We disagree.

It is well established that a party’s “attorney himself is competent to testify as

to his opinion on reasonable fees.” (Citation and punctuation omitted.) Campbell v.

Bausch, 195 Ga. App. 791, 792 (2) (b) (395 SE2d 267) (1990). Compare Gray v.

King, 270 Ga. App. 855, 858 (2) (b) (608 SE2d 320) (2004) (no evidence as to

reasonableness of attorney fees presented even though testimony from own attorney

would have sufficed). As discussed in Division 2, supra, Fitzgerald Farms’ counsel

testified to his experience and his hourly rate, as well as the experience and hourly

rate of his associate. He explained that the associate, who was billed out at a lower

rate, did a majority of the work in the case, and testified that he specialized in

agriculture law and that the rates charged were reasonable. On cross-examination,

counsel explained that hisrates were reasonable given the complexity of the case and

“aggressive nature” of the opponent. The trial court reduced the amount of attorney

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fees awarded by the jury to the amount requested by Fitzgerald Farms and proved by

counsel. The award was supported by the evidence and was not unreasonable. 

Case No. A18A1421

4. In its cross-appeal, Fitzgerald Farms contends that the trial court erred in

withdrawing the issue of punitive damages from the jury and in refusing to instruct

the jury on punitive damages. We agree.

(a) We first address Whitaker Farms’ claim that Fitzgerald Farms’

unconditional acceptance of the reduced judgment bars it from asserting its crossappeal under InterAgency, Inc. v. Danco Financial Corp., 203 Ga. App. 418, 429 (6)

(417 SE2d 46) (1992) (physical precedent only), citing Sparks v. Aetna Ins. Co., 62

Ga. 198 (1879), and conclude that the cross-appeal is not barred. In InterAgency, the

plaintiff/cross-appellant accepted a write-off of the attorney fees award and then

sought to appeal the write-off. In this case, Fitzgerald Farms is not appealing the

reduction of the attorney fees award to which it agreed. Rather, it is appealing the

issue of punitive damages related to its trespass claim, which is in no way related to

its request for attorney fees under OCGA § 13-6-11. 

Federal law provides guidance, albeit non-binding, on this issue. Federal courts

follow the longstanding rule reiterated by the Supreme Court in Donovan v. Penn

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Shipping Co., 429 U. S. 648 (97 SCt 835, 51 LE2d 112) (1977) (per curiam), “that a

plaintiff in federal court, whether prosecuting a state or federal cause of action, may

not appeal from a remittitur order he has accepted.” Id. at 650 (2, 3). The Donovan

rule, however, “does not prevent the appeal of issuesthat are separate or distinct from

the issue on which a plaintiff has accepted a remittitur.” Cohen v. Yale-New Haven

Hosp., 800 A2d 499, 504 (I) (Conn. 2002) (dismissing appeal where plaintiff

accepted remittitur reducing non-economic, compensatory damages judgment and

then sought additional non-economic, compensatory damages). See Utah Foam

Products Co. v. Upjohn Co., 154 F3d 1212, 1216 (I) (10th Cir. 1998) (pointing out

that Donovan permits party who has accepted remittitur on one cause of action to

appeal issues related to other causes of action not subject to remittitur order). While

we recognize that a plaintiff in state court is not bound by Donovan, the rationale for

the exception to its application, is persuasive. We therefore find, based upon the

particular facts and circumstances of this case, that Fitzgerald Farms’ claim for

attorney fees under OCGA § 13-6-11 is separate and distinct from its cause of action

16
for compensatory and punitive damages based on itstrespass claim. Accordingly, we

reject Whitaker Farms’ contention that this cross-appeal is barred.

7

(b) Under OCGA § 51-12-5.1 (b), punitive damages may be awarded in tort

actions where “it is proven by clear and convincing evidence that the defendant’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.” “A conscious indifference to consequences relates to an intentional

disregard of the rights of another.” Tyler v. Lincoln, 272 Ga. 118, 120 (1) (527 SE2d

180) (2000). See also Oglethorpe Power Corp. v. Sheriff, 210 Ga. App. 299, 301 (4)

(a) (436 SE2d 14) (1993). Trespass is an intentional act which will authorize a claim

for punitive damages. See Tyler, 272 Ga. at 120 (1). “Ordinarily, the imposition of

punitive damages is a question for the jury.” Baumann v. Snider, 243 Ga. App. 526,

530 (3) (532 SE2d 468) (2000). 

The actions taken by Whitaker Farms and its owner, as laid out in Division 1,

supra, are sufficient evidence of “conscious indifference” to authorize a jury to award

punitive damages. See Baumann, 243 Ga. App. at 530-531 (3) (reversing grant of

7 Had Fitzgerald Farms accepted a reduced compensatory damages award our

conclusion might be different. 

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motion for directed verdict on plaintiff’s claim for punitive damages in action for

trespass); T. G. & Y. Stores Co. v. Waters, 175 Ga. App. 884, 887-888 (3) (334 SE2d

910) (1985) (affirming denial of motion for directed verdict on claim for punitive

damagesin action for trespass). See also Langlois v. Wolford, 246 Ga. App. 209, 210-

212 (1) (539 SE2d 565) (2000) (affirming denial of motion for directed verdict on

punitive damages claim). Whitaker allowed the gatesto Fitzgerald Farms’ orchard to

remain locked while Fitzgerald Farms’ peach harvest rotted, and he not only refused

to unlock the gates despite Lennon’s pleas to finish harvesting the peaches, but

sought to have Lennon arrested and kept him off the property to prevent Fitzgerald

Farms from completing the harvest. The trial court’s ruling on this issue is reversed. 

Judgment affirmed in Case No. A18A1420; reversed in Case No. A18A1421.

Miller, P. J., and Goss, J., concur.

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