Oglethorpe Power Corp. v. Estate of Forrister

• Citation: 332 Ga.App. 693,774 S.E.2d 755
• Decision Date: 01 July 2015
• Docket Number: A15A0522.,Nos. A15A0374,A15A0376,A15A0377,A15A0375,s. A15A0374
• Parties: OGLETHORPE POWER CORPORATION et al. v. The ESTATE OF James FORRISTER et al. Oglethorpe Power Corporation et al. v. The Estate of James Forrister et al. Paradise Lost, LLC v. Oglethorpe Power Corporation et al., and vice versa.
• Court: United States Court of Appeals (Georgia)

332 Ga.App. 693

774 S.E.2d 755

OGLETHORPE POWER CORPORATION et al.

v.The ESTATE OF James FORRISTER et al.

Oglethorpe Power Corporation et al.

v.The Estate of James Forrister et al.

Paradise Lost, LLC

v.Oglethorpe Power Corporation et al., and vice versa.

Nos. A15A0374

A15A0375

A15A0376

A15A0377

A15A0522.

Court of Appeals of Georgia.

July 1, 2015.

Certiorari Denied Oct. 5, 2015.

McNatt, Greene & Peterson, Hugh B. McNatt, Autry, Cole, Hanrahan, Hall & Cook, G. Mark Cole ; Balch & Bingham, Natalie M. C. Beasman, M. Anne Kaufold–Wiggins, for Appellants.

McRae, Stegall, Peek, Harman, Smith & Manning, for Appellees.

Alston & Bird, Jonathan E. Wells, amicus curiae (case nos. A15A0374, A15A0375, A15A0522).

Opinion

BOGGS, Judge.

These cases, involving claims of nuisance against the owner and operator of the Sewell Creek Energy Facility by numerous surrounding landowners, appear before us for the second time. The relevant facts are found in the first appearance of these litigants, Oglethorpe Power Corp. v. Forrister, 303 Ga.App. 271, 693 S.E.2d 553 (2010) :

[T]he Sewell Creek Energy Facility is a gas-fired “peaking” power plant which began operating in 2000. It is owned by Smarr EMC, and operated by Oglethorpe Power Corporation, both of which are power supply cooperatives formed and operated under OCGA § 46–3–170 et seq. The Sewell Creek facility does not operate continuously, but is designed to generate power only when energy usage exceeds the capacity generated by base and intermediate plants, such as on a hot summer afternoon when the use of air conditioning increases. The facility occupies 25 acres of a 160–acre site, located at the intersection of an underground gas line and an overhead high-capacity electricity transmission line in Polk County. Electricity is generated at Sewell Creek with four gas-fired combustion turbine units, which are variations of jet airplane engines, and which are used in peaking plants because they can be turned on and off in minutes to meet short-term energy demands.

Id. at 272, 693 S.E.2d 553. In Forrister, this court affirmed the trial court's denial of summary judgment to Smarr EMC (“Smarr”), the owner, and Oglethorpe Power Corporation (“Oglethorpe”), the operator, on the issue of the proper application of OCGA § 9–3–30(a), the statute of limitation for trespass or damage to realty. Our Supreme Court granted certiorari and affirmed in part and reversed in part, finding that summary judgment was appropriate as to some, but not all, of the landowners' claims, and providing guidance for trial on the remaining issues. Oglethorpe Power Corp. v. Forrister, 289 Ga. 331, 711 S.E.2d 641 (2011). The cases return to us after a consolidated jury trial on the threshold issue of the statute of limitation, and two subsequent jury trials on the individual claims of two of the landowners. We affirm in the consolidated appeal and one of the two individual appeals, but reverse in the third on the basis of error in the trial court's instructions on the elements of damages. We therefore dismiss the cross-appeals in that case as moot.

In Forrister, the Supreme Court held that the power plant is a permanent nuisance, and plaintiffs therefore “are limited to filing one cause of action for the recovery of past and future damages caused by a permanent nuisance. [Cits.]” Id. at 335(2), 711 S.E.2d 641. As a result, the court held that “the plaintiffs' action would be barred because they did not file their lawsuit until almost seven years after the Sewell Creek plant became operational—unless some new harm that was not previously observable occurred within the four years preceding the filing of their cause of action in 2007.” Id. at 336(3), 711 S.E.2d 641. As to any harm that changed only by degree, or “extent and amount” since the plant began operations, the trial court should have granted summary judgment. Id. at 337(3), 711 S.E.2d 641. But the Supreme Court agreed with the plaintiffs that summary judgment was inappropriate to the extent that “the record reveals a factual dispute regarding whether a new noise, not previously observable, began in 2004, which requires a trial to resolve.” Id. at 336(3), 711 S.E.2d 641. It further held:

To the extent the trial court found that a factual issue remains concerning whether there was an “adverse change in the nature ” of the noises and vibrations coming from the plant after the start of the 2004 operating season, the denial of summary judgment was appropriate. Such a change in the type of the noise would constitute a new harm that the plaintiffs did not observe before, and because it occurred within four years of their filing this lawsuit, they would not be precluded from filing suit to recover damages. See Restatement (Second) of Torts § 899, cmt.d. If the jury finds in favor of the plaintiffs, it may grant a single damages award for the harm caused by the new type of noise suffered during the four years before the suit was filed and for all future injuries from this permanent nuisance.

(Emphasis in original.) Id. at 336(3), 711 S.E.2d 641.

When the cases returned to the trial court, the parties agreed to a two-phase trial, with the first phase consisting of a consolidated trial on the threshold issue of whether a new harm occurred within the limitation period. In the first phase, the trial court submitted a special verdict to the jury in the following form: “We, the jury, find that there: ___ has/ ___ has not been an adverse change in the nature of the noise produced by the Sewell Creek energy facility since February 7, 2003.” The jury found that such an adverse change had occurred, and the trial court directed that the “cases will now move forward on individual trials to determine liability and damages.” The trial court denied judgment notwithstanding the verdict and a new trial, and Oglethorpe and Smarr appeal in Case No. A15A0374.

In Case No. A15A0375, Oglethorpe and Smarr appeal from the jury verdict on the individual claims of Ronda Forrister and the Estate of James Forrister. In Case No. A15A0376, plaintiff Paradise Lost, LLC appeals from the trial court's rulings on its individual claim for “discomfort and annoyance” as one of the elements of damages for nuisance. In Case Nos. A15A0377 and A15A0522, Oglethorpe and Smarr cross-appeal from the jury verdict on the claims of Paradise Lost, LLC.

Case No. A15A0374

1. Oglethorpe and Smarr assert as error the denial of their motions for directed verdict and judgment notwithstanding the verdict. Our standard of review of these claims is well established:

A directed verdict is proper only if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 9–11–50(a). In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the “any evidence” test. The standard for granting j.n.o.v. is the same as for directed verdict.

(Citations and punctuation omitted.) Grubb v. Woodglenn Properties, 220 Ga.App. 902, 903(1), 470 S.E.2d 455 (1996).

So viewed, the evidence presented at trial shows that individual landowners and users of the property testified that the nature or type of noise produced by the power plant had changed for the worse after 2003. They testified to a range of new noises that were not present in 2003 and before, including vibrations that came in “waves” and sounded like a train, rumbles or rumbling sounds, “small explosions” or booming noises, shaking that penetrated concrete walls, a high-pitched sound or “scream,” grinding “like two pieces of metal rubbing together,” a whining noise which one witness described as “totally different,” and “a squealing noise.”

Plaintiffs also presented the testimony of an acoustical engineer who played for the jury a recording of sounds from the plant in 2012. He then played segments of the 2012 sounds alternating with segments prepared from earlier 2001 recordings. He prepared charts for the jury showing lines representing different noise frequencies detected by his measuring equipment, and pointed out a noise that was present in 2012 but not in 2001. He also testified that this was “absolutely” a change in the character of the noise. He added that by taking many more samples he was able to conclude that the fluctuations in sound were unlikely to be random, and that “it is a 99 percent chance that something has changed at the plant.”

A second acoustical engineer also testified for the plaintiffs. He visited various properties around the plant approximately 30 times, beginning in 2001. He testified that he was called to the area in 2011 by property owners who reported that a new “screeching noise” or “tunnel sound” was occurring. At that time, the engineer heard a “whistle” that he had never heard before. He made a recording of the noise and created graphs depicting the various frequencies of sounds generated by the plant in 2002 and on that occasion in 2011. He testified that the later chart showed a new “spike” or line corresponding to the whistling noise that was not present in 2002.

Oglethorpe and Smarr argue that this evidence was insufficient to establish a change in the nature of the noises produced by the power plant, but merely one of “extent, amount, or degree.” They point to inconsistencies in the testimony of appellees' experts, as well as to contradictions in the testimony of the individual plaintiffs and witnesses.¹ They also point out that many of the witnesses and plaintiffs did not live on the property full time, or were absent for work or other purposes for substantial periods of time, thus impairing their ability to observe whether noises were new or had occurred before the limitation period but were simply unobserved.

However,

[t]his court does not pass upon the credibility of witnesses, nor the

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