Paradise Lost, LLC v. Oglethorpe Power Corporation
332 Ga. App. 693
Ga. Ct. App.2015Background
- Sewell Creek Energy Facility is a gas-fired peaking plant (four combustion turbines) that began operating in 2000 near Polk County; plaintiffs are nearby landowners claiming nuisance (noise/vibration).
- Plaintiffs sued in 2007; Georgia Supreme Court held the plant is a permanent nuisance and that claims accrue once harm is observable, limiting recovery to harms observable within four years before suit unless a new type of harm arose within that period. Oglethorpe Power Corp. v. Forrister resolved threshold issues and returned some claims for trial.
- Parties agreed to a two-phase trial: Phase 1 (consolidated) to decide whether an adverse change in the nature of noise occurred within the limitation period; juries in Phase 1 found such a change occurred. The court then held individual trials on liability and damages for specific plaintiffs.
- Evidence at trial included resident testimony describing new noises (booms, rumbles, screeches, vibrations), acoustical engineers’ recordings and frequency charts showing a new noise spike post-2003, and contemporaneous logs showing increased noise entries beginning July 25, 2005.
- Plaintiffs produced real estate appraiser testimony quantifying diminution in property value; defendants produced a competing appraisal. Jury awarded damages (including punitive damages and attorney fees) to some plaintiffs; defendants appealed and Paradise Lost, LLC separately appealed exclusion of "discomfort and annoyance" damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an adverse change in the nature of noise occurred within the 4-year limitations period | Forristers and others: testimony and acoustic evidence show a new, different noise and vibrations during the limitation period | Oglethorpe/Smarr: testimony inconsistent; noise change is only degree/extent, not a new type; some witnesses absent at times so observations unreliable | Any evidence supported the jury's finding of an adverse change; verdict affirmed under "any evidence" standard |
| Whether specific date (July 25, 2005) for first adverse change was supported | Forristers: logs, testimony, and plant activity charts show marked increase beginning July 25, 2005 | Oglethorpe/Smarr: log entry for that date nonspecific ("ran") so no basis for that date | Defendants invited the verdict form; combined evidence permitted jury to mark July 25, 2005; finding upheld |
| Admissibility and sufficiency of expert evidence for diminution-in-value damages | Forristers: certified appraiser used accepted methodology and provided percent reductions; lay opinions also probative | Oglethorpe/Smarr: expert unreliable under Daubert/OCGA standards; evidence insufficient | Trial court did not abuse discretion admitting experts; jury award fell within evidence range; damages affirmed |
| Whether a non-resident LLC (Paradise Lost) may recover "discomfort and annoyance" damages and whether LLC must "occupy" property to recover | Paradise Lost: discomfort/annoyance is a distinct nuisance damage recoverable by corporate entity that occupies property for its purposes; occupancy ≠ residence | Oglethorpe/Smarr: such damages are emotional-distress–type and unavailable to corporate owners or non-resident owners | Court: discomfort and annoyance is a recognized nuisance element separable from diminution; corporations (and LLCs) may recover it; occupancy does not require residence. Trial court erred excluding these damages; remand for retrial on damages |
Key Cases Cited
- Oglethorpe Power Corp. v. Forrister, 303 Ga. App. 271 (Ga. Ct. App. 2010) (prior appellate decision setting out underlying facts and procedural history)
- Oglethorpe Power Corp. v. Forrister, 289 Ga. 331 (Ga. 2011) (Georgia Supreme Court holding plant a permanent nuisance and explaining accrual/limitations rule for new harms)
- Swift v. Broyles, 115 Ga. 885 (Ga. 1902) (nuisance damages include discomfort/annoyance to occupier; measures of damages explained)
- Baltimore & Potomac R.R. v. Fifth Baptist Church, 108 U.S. 317 (U.S. 1883) (corporate plaintiff may recover for annoyance and discomfort to its members from interference with property use)
- Brooks v. Freeport Kaolin Co., 253 Ga. 678 (Ga. 1985) (punitive-damage claims based on harms occurring within four years are not barred by statute of limitations)