Judge E. Trenton Brown III.

The Georgia Court of Appeals on Wednesday upheld a verdict of $150,000 for spoiled fruit and $272,000 in attorney fees for a peach grower who was locked out of his orchard at harvest time by a competitor.

On top of that, Judge Trent Brown ruled that the offending farmer's behavior was so rotten, the winner of the verdict can go back to Meriwether County Superior Court Judge Jack Kirby and seek punitive damages.

Brown, joined by Judges Yvette Miller and Stephen Goss, ruled that 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.” Brown added, “A conscious indifference to consequences relates to an intentional disregard of the rights of another.”

The winning lawyers are Nowell Berreth and Max Marks of Alston & Bird.

“It was a real shame what happened to those peaches,” Berreth said Thursday. “When they are ripe and ready, they need to be picked.”

Berreth heads the firm's agriculture law group. But he said Marks took point with witnesses and handled closing arguments at the weeklong trial. Marks scored so well with the jurors that they awarded $150,000 for the peaches and $400,000 for attorney fees, even though he only asked them for $272,000 for legal costs. So the judge bumped the fee award back to the requested amount.

Berreth and Marks represent Fitzgerald Fruit Farms and its owner, Sean Lennon. Through high school and college, Lennon had worked for Carroll Farms, owned by his high school math teacher “Kay” Carroll Barnes and her son, Walter “Hynes” Barnes, according to the opinion. Since 2006, Lennon had been growing Baby Gold peaches on a 20-acre tract of land inside Carroll Farms.

“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',” Brown wrote. “Fitzgerald Farms has the only forced air cooler in Meriwether County.” But in the summer of 2016, Lennon couldn't get his peaches to the cooler. He couldn't even get them out of the orchard. That previous autumn, the owners of the land had sold 290 acres to Whitaker Farms—including the 20 acres where Lennon grew his Baby Golds.

On Aug. 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, Brown said. “The following morning, a crew of approximately 25-28 workers gathered at the orchard to begin harvesting the peaches.”

While they were working, the gates were locked—trapping them inside with the peaches. When the workers realized they couldn't couldn't move the peaches out, they called Lennon, who immediately texted his old friend and Carroll Farms co-owner, Hynes Barnes. Barnes told him to call the new land owner, Curtis Whitaker. Whitaker never returned the call, according to Brown.

The next day, Lennon was able to secure an order from a judge to have the local sheriff cut the lock. But a day later, the orchard was locked again. Lennon's attorneys eventually won a court order to get his crew back in to pick the peaches, but that took a few days. That was too long for ripe peaches in the Georgia summer heat. “The crop was ruined,” Brown said.

Whitaker Farms was represented at trial by George Rosenzweig of Rosenzweig, Jones, Horne & Griffin in Newnan and was joined in the appeal by John Christy of Schreeder, Wheeler and Flint in Atlanta as appellate counsel.

“My client is examining all of its options at this time including filing a motion for reconsideration with the Court of Appeals,” Christy said. “We respectfully disagree with the court's determination that Fitzgerald Farms did not waive its right to appeal the denial of punitive of damages to it in the underlying case when it consented to the reduced judgment in connection  with Whitaker Farms' motion for new trial.  Alternatively, my client does not believe that when the totality of the facts are presented to a jury, they would support a punitive damages award.”

Christy also noted that the orchard was owned by his client, Whitaker Farms, and said the length of time the gate was closed was “relatively brief.”

In a footnote, Brown said Lennon testified that he met with Whitaker in January 2017 to try to settle the matter. Whitaker reportedly refused to settle, saying, “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.” Lennon also said Whitaker said “he was litigating with a blank check and for [Lennon] to keep that in mind.”

Lennon and his wife, Ashleigh, shared a statement through their attorneys.

“As a family farm, we had never experienced anything like this. The worry and stress was inescapable. It was my first thought of the day, and I spent many nights awake scared of what the future held. Ashleigh was very pregnant with our fourth child at the time, and our entire livelihood was on the line,” Lennon said. “One by one, as the jurors left the courtroom that day, each of them hugged and congratulated us, some with tears in their eyes. I will always be grateful for each member of our jury. We have seen many of them in the community since the trial, and they always express concern and say how sorry they are for what we went through.”

The case is Whitaker Farms v. Fitzgerald Fruit Farms, No. A18A1420. The cross appeal is No. A18A1421.