Whitaker Farms, LLC v. Fitzgerald Fruit Farms, LLCWhitaker Farms, LLC v. Fitzgerald Fruit Farms, LLC
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
BROWN, Judge.
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 crop insurance.1 Lennon maintained his own packing facility, including
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 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 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 cuts through 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.”
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
After receiving permission from a superior court judge, the sheriff cut the lock. The next morning, Hynes returned to the property and re-locked the gates; both Hynes and Whitaker acknowledged that they spoke at least eight times that day, but could not recall the details of any of those calls though 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 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 claims for unjust enrichment and attorney fees under
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] was in 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. In the second phase of the bifurcated trial on the issue of attorney fees, counsel for Fitzgerald
Case No. A18A1420
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 Farms failed to provide evidence that Whitaker 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.
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
2. Whitaker Farms next contends that there is no evidence to support an award of attorney fees under
“Under Georgia law, expenses of litigation and attorney fees may be awarded, pursuant to
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 reductions for 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 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 his rates were reasonable given the complexity of the case and “aggressive nature” of the opponent. The trial court reduced the amount of attorney fees awarded by the jury to the amount requested by Fitzgerald Farms and proved by counsel.
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 cross-appeal 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
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 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 issues that 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
(b) Under
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 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
Judgment affirmed in Case No. A18A1420; reversed in Case No. A18A1421.
Miller, P. J., and Goss, J., concur.