                              FIRST DIVISION
                                DOYLE, C. J.,
                         PHIPPS, P. J., and BOGGS, J.

                   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/


                                                                       July 1, 2015




In the Court of Appeals of Georgia
 A15A0374. OGLETHORPE POWER CORPORATION et al. v. BO-018
     THE ESTATE OF JAMES FORRISTER et al.
 A15A0375. OGLETHORPE POWER CORPORATION et al. v. BO-019
     THE ESTATE OF JAMES FORRISTER et al.
 A15A0376, A15A0377, A15A0522. PARADISE LOST, LLC v. BO-020,21,
     OGLETHORPE POWER CORPORATION et al., and vice 25
     versa.

      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 SE2d

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. 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 SE2d 641) (2011). The cases return to us after a

consolidated jury trial on the threshold issue of the statute of limitation, and two

                                          2
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). 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). 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). 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. It further held:



                                            3
      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).

      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


                                           4
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 in

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 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.


                                          5
(Citations and punctuation omitted.) Grubb v. Woodglenn Properties, 220 Ga. App.

902, 903 (1) (470 SE2d 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 a

recording of sounds from the plant in 2012 for the jury. He then played for the jury

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



                                          6
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

      1
        At oral argument, Oglethorpe and Smarr suggested that appellees’ witnesses
tailored their testimony at trial to the Supreme Court’s ruling in Forrister. But one of
the plaintiffs died before that opinion was issued, and he testified by video deposition
in 2007 that the nature or type of noise changed for the worse starting in 2004, and
that testimony was presented to the jury.

                                           7
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
      weight to be given evidence on disputed facts. These are questions for
      the jury. Whether their verdict is contrary to the evidence, or contrary to
      its weight, or decidedly and strongly against its weight, is a question the
      law vests in the trial judge’s discretion. He may grant a new trial on
      these grounds, but this court has no such power. Where the trial judge
      approves the verdict, the sole question for determination by this court is
      whether there is any evidence sufficient to authorize it. There being
      some evidence to support the jury’s verdict as to damages for nuisance,
      we find no reversible error.


City of Lawrenceville v. Heard, 194 Ga. App. 580, 582-583 (391 SE2d 441) (1990).

      Appellants rely upon Floyd County v. Scott, 320 Ga. App. 549, 552-553 (740

SE2d 277) (2013), but that decision is inapplicable to the issues here as established

by our Supreme Court. In Scott, the county connected a “drainage tie-in” to an

existing underground culvert in 2003. Id. at 550. The plaintiffs alleged in their

original 2011 complaint that flooding of their property began almost immediately

after construction in 2003, and one plaintiff testified that she observed water on the

                                          8
property when it rained. Id. Plaintiffs later amended their complaint to deny any

flooding before 2009, and to allege that the harm to their property began in 2009

when trees began falling due to root damage from flooding. Id. at 550-551. We

reversed the trial court’s denial of summary judgment, holding that plaintiffs’ earlier

allegations and testimony constituted admissions against interest. Their claim for

increased flooding as a result of the county’s work accordingly accrued more than

four years before their complaint was filed and was barred by the statute of limitation.

Id. at 552-553 (1).

      Here, in contrast, our Supreme Court has already held that summary judgment

was inappropriate as to claims for adverse changes in the nature of the noise within

the limitation period. And, though the evidence presented at trial was in conflict,

some evidence supports the jury’s verdict. We therefore must affirm under our “any

evidence” standard of review.



                                 Case No. A15A0375

      2. In this appeal, Oglethorpe and Smarr appeal from the jury’s verdict in the

individual claims of Ronda Forrister and the Estate of James Forrister. They assert



                                           9
that the evidence was insufficient to support the jury’s verdict. We find that the

evidence was adequate to support the verdict, and we therefore affirm.

      (a) Oglethorpe and Smarr contend that the Forristers failed to produce evidence

of a new nuisance within the limitation period. But the evidence of a new nuisance,

or an adverse change in the nature of the noises and vibrations produced by the plant,

was supported by evidence very similar if not identical to that presented in the

consolidated trial. The Forristers and others once again testified that the noises and

vibrations produced by the plant became worse during the limitation period. One

neighbor, who is an aircraft mechanic with experience maintaining jets and turbines,

explained that “as the engine gets older you’ll get different sounds because flanges

and everything start leaking as any engine gets older and any machine gets older, the

sounds will change. These machines now are 12, 13 years old.” Two expert witnesses

once again testified regarding the changes in the sound from the plant, and again

played recordings and displayed charts for the jury. One expert also attributed the

change in the noise to “wear and tear over time.” As we noted in Division 1, supra,

though the evidence presented at trial was in conflict, some evidence supports the

jury’s verdict. Therefore, we must affirm under our “any evidence” standard of

review.

                                         10
      (b) In a related enumeration of error, Oglethorpe and Smarr contend that the

jury’s finding of an adverse change as of a specific date was unsupported by the

evidence. The parties agreed to a provision in the special verdict form to be

completed if the jury determined that the Forristers suffered damages based upon a

change after February 7, 2003: “When after February 7, 2003 did an adverse change

first occur? _______, 20 __.” As part of its verdict, the jury filled in the blank with

“July 25, 2005.”

       Having agreed to the inclusion of a blank directing the jury to specify a day

and date in the verdict form, Oglethorpe and Smarr “will not be heard to complain of

error induced by [their] own conduct, nor to complain of errors expressly invited by

[them] during the trial of the case.” (Citations and punctuation omitted.) Clark v.

Stafford, 239 Ga. App. 69, 72 (2) (522 SE2d 6) (1999) (appellant elected to give jury

option of only two choices of location of boundary line in special verdict form). “And

under our holding in Clark [they] cannot now challenge the sufficiency of the

evidence underlying a finding proposed by the verdict form.” Dover v. Higgins, 287

Ga. App. 861, 867 (2) (652 SE2d 829) (2007). Moreover, “[a] jury’s verdict is

presumed to be valid and should, if possible, be construed as such.” (Citation and

punctuation omitted.) Voxcom, Inc. v. Boda, 221 Ga. App. 619, 620 (472 SE2d 155)

                                          11
(1996) (in awarding interest for breach of contract in amount less than that stipulated

by parties as one year’s severance, jury could have found breach occurred at later

date).

         Oglethorpe and Smarr argue from the “Forrister log” – a typed transcription of

notations that the Forristers kept regarding their perception of noise from the plant

– that there is no evidence of an adverse change on July 25, 2005 because the notation

for that date simply reads “ran” with no other description of the noise. But it appears

from the log that nothing was recorded for ten days before July 25, and that July 25

marks a beginning point of significant changes in the log: the entries were made much

more frequently from that date until the end of September and the warm weather. In

addition, before that date the log contains only two entries noting volume: one for

“very loud” for one day in July, 2004, and “loud” on July 2, 2005. From July 25, the

Forristers noted the plant running daily until July 28, 2005, and the entries noting

“loud,” “ran loud,” “real loud,” and “very loud” became far more frequent,

comprising almost half the entries made for the rest of the year. Taken in conjunction

with Mrs. Forrister’s testimony that she noticed a change for the worse in 2005, and

charts presented by Oglethorpe and Smarr showing a significant increase in plant

activity shortly after the middle of July 2005, this is evidence from which the jury

                                           12
could conclude that July 25 marked the beginning of a substantial, adverse change in

the nature of the noise from the plant.



      (b) Oglethorpe and Smarr next argue that the Forristers presented no evidence

of damages for diminution in value of their property, contending that their expert

witness on the issue of value failed to meet the standard of Daubert v. Merrell Dow

Pharmaceuticals, 509 U. S. 579 (113 SCt 2786, 125 LE2d 469) (1993) and former

OCGA § 24-9-67.1 [now OCGA § 24-7-702,]2 and that the evidence was in any event

insufficient. We disagree.

      Questions concerning the admissibility of expert opinion generally are
      committed to the sound discretion of the trial courts, and questions of
      the admissibility of expert opinions under former OCGA § 24-9-67.1 are
      no different. Whether an expert opinion ought to be admitted under
      former OCGA § 24-9-67.1 is a question that is especially fit for
      resolution by a trial court because it requires a consideration of the facts
      and data upon which the opinion is based, whether the opinion is a
      product of reliable principles and methods, and whether the opinion was



      2
       Both OCGA § 24-7-701 (b), dealing with lay witness testimony, and OCGA
§ 24-7-702, dealing with expert opinion testimony, were recodified in essentially the
same language as that of the former Georgia Evidence Code. Our analysis therefore
remains the same. Hankla v. Postell, 293 Ga. 692 n.1 (749 SE2d 726) (2013).

                                          13
      reached by a reliable application of those principles and methods to the
      facts of the case.


(Citations, punctuation, and footnote omitted.) Harper v. Ameris Bank, 326 Ga. App.

67, 69 (2) (755 SE2d 872) (2014). There, the witness whose testimony was at issue

was a certified real estate appraiser in Georgia, had extensive experience appraising

properties, and his conclusions were subject to thorough and sifting

cross-examination. Challenges to the factual basis of his opinions or his knowledge

and expertise with regard to certain issues went to the weight, not the admissibility,

of his testimony, and permitting him to testify was not an abuse of discretion. 326 Ga.

App. at 69-70 (2).

      Here, the witness likewise testified that he was a certified real estate appraiser,

with 22 years of experience in and around Polk County, particularly in the appraisal

of rural property. He described at length the methodology he used to arrive at a

reduction in value for the property at issue as a result of the nuisance and his reasons

for employing it, and testified to a percentage reduction in value as to each parcel of

property owned by the Forristers, varying between 35 and 45 percent depending upon

proximity to the plant, improvements, and marketability.




                                          14
      As in Harper, supra, Oglethorpe and Smarr’s contentions go to the factual basis

of the witness’ opinions, not his qualifications or methodology. They conducted a full

and searching cross-examination of this witness, in which they challenged his

methodology in detail. They also presented their own real estate appraiser, who

testified to a range of reduction in value between 0 and 20 percent, based upon his

own observations and experience. His methodology was likewise attacked on cross-

examination.

      The appropriate standard for assessing the admissibility of the opinion
      of the expert is not whether it is speculative or conjectural to some
      degree, but whether it is wholly so; clearly, [the witness’] testimony was
      not wholly speculative or conjectural. Moreover, even if his opinion was
      based on inadequate knowledge, that went to the credibility of the
      witness rather than the admissibility of the evidence. [Appellants] ha[ve]
      not shown that [the witness’] testimony was not the product of reliable
      principles and methods. We discern no abuse of the trial court’s
      discretion in qualifying him as an expert or allowing his testimony.


(Citations and footnotes omitted.) Savannah Cemetery Group v. DePue-Wilbert Vault

Co., 307 Ga. App. 206, 213 (3) (704 SE2d 858) (2010).

      Moreover, “a witness need not be an expert or dealer in real property, but may

testify as to its value if he has had an opportunity for forming a correct opinion.


                                         15
OCGA § 24-9-66 [now OCGA § 24-7-701 (b)].” (Citation and punctuation omitted.)

Dept. of Transp. v. Jordan, 300 Ga. App. 104, 106 (684 SE2d 141) (2009). “[A]

nonexpert can offer an opinion of the value of real property, even if that opinion is

based on hearsay. . . . The fact that the opinions were based upon hearsay goes merely

to their weight and not their admissibility.” (Citations and punctuation omitted.)

Perry v. Perry, 285 Ga. App. 892, 893 (1) (648 SE2d 193) (2007) (reversing trial

court’s grant of new trial as to damages; lay witness’ opinion of value was probative

even if based on hearsay.) See also Harper, supra, 326 Ga. App. at 69-70 (2) (“Direct

testimony as to market value is in the nature of opinion evidence. One need not be an

expert or dealer but may testify as to its value if he has had an opportunity for

forming an opinion.” (Citation and footnote omitted.)

      [A] trial court’s approval of a jury’s verdict as to damages creates a
      presumption of correctness that cannot be disturbed on appeal absent
      compelling evidence, and a reviewing court is powerless to interfere
      unless it is clear from the record that the verdict of the jury was
      prejudiced or biased or was procured by corrupt means. The jury’s
      award was well within the range of the undisputed and competent
      evidence before it.


(Citations and punctuation omitted.) Jordan, supra, 300 Ga. App. at 106-107. The

jury appears to have thoughtfully considered the testimony of both real estate

                                         16
appraisers in arriving at their verdict, as they awarded damages for diminution in

value in an amount greater than that proposed by Oglethorpe and Smarr’s expert but

less than that testified to by the Forristers’ expert. This award was well within the

range of the evidence, and we will not disturb it on appeal.

      (d) Oglethorpe and Smarr challenge the sufficiency of the evidence as to

punitive damages. In the first portion of the bifucated trial, the jury found that

Oglethorpe and Smarr “showed a willful and wanton disregard for Plaintiffs’ property

rights” and that the Forristers therefore were entitled to punitive damages. After a

separate hearing on the issue of punitive damages, the jury found that Oglethorpe and

Smarr did not act with a specific intent to cause harm, and awarded damages in the

amount of $250,000. See OCGA § 51-12-5.1 (g).

      Punitive damages may be awarded in a case of nuisance when clear and

convincing evidence shows that the defendant’s actions demonstrate “willful

misconduct, malice, fraud, wantonness, oppression, or that entire want of care which

would raise the presumption of conscious indifference to consequences.” (Citation,

punctuation, and footnote omitted.) Tyler v. Lincoln, 272 Ga. 118, 120 (1) (527 SE2d

180) (2000). To support the award of such damages,



                                         17
      [t]here must be aggravating circumstances or outrage, such as spite,
      malice, or a fraudulent or evil motive on the part of the defendant, or
      such a conscious and deliberate disregard of the interests of others that
      the conduct may be called wilful or wanton. In this sense, conscious
      indifference to consequences means an intentional disregard of the
      rights of another, knowingly or wilfully.


(Citations omitted.) COMCAST Corp. v. Warren, 286 Ga. App. 835, 839 (2) (650

SE2d 307) (2007). And “a jury may award punitive damages even where the clear and

convincing evidence only creates an inference of the defendants’ conscious

indifference to the consequences of their acts.” (Citation, punctuation, and footnote

omitted.) Weller v. Blake, 315 Ga. App. 214, 219-220 (3) (a) (726 SE2d 698) (2012).

      Construed to support the jury’s verdict, the record shows that, while the plant

was under construction, Oglethorpe and Smarr sent a letter to surrounding residents,

including the Forristers, assuring them that “[n]oise and visual impact studies will

insure that the plant will be as unobtrusive as possible.” Witnesses testified that low-

frequency noise in gas turbines was recognized as a problem in the combustion

turbine industry as early as the 1960s, that an article “Beware Low Frequency Noise”

appeared in a power industry publication as early as 1973, and that an engineering

standard including low-frequency noise was published as early as 1974. Moreover,


                                          18
the technology to ameliorate low-frequency noise was available in the 1990s, before

the Sewell Creek facility was built, and use of that technology was “simple

engineering best practice to protect the community.”

      But, despite common knowledge in the industry of problems with low-

frequency noise in gas turbines and the availability of the technology to ameliorate

it, Oglethorpe and Smarr did not take any substantial steps to reduce low-frequency

noise. The project manager for Oglethorpe acknowledged that Oglethorpe had a

pressing need for additional generator capacity to close a “gap” in its power supply

caused by greater demand in the summer months. He also acknowledged that “we

came a little late to the marketplace” in purchasing turbines for the Sewell Creek

facility at a time of high demand, and had to take the only turbines available, without

any low-frequency noise guarantee. The expert who testified on behalf of Oglethorpe

and Smarr at trial was called in before the plant was built “to evaluate some gas

turbine machines that they had just bought.” Evaluating them only on the basis of

“some measurements that their other consultant had made,” he concluded that the

low-frequency noise was in “a gray area so I called it marginally acceptable.” This

expert acknowledged that the technology to reduce low-frequency noise was available

at the time, but it “costs a lot more money.” Although the purchase contract for the

                                          19
turbines provided for “further noise attenuation measures . . . subject to a change

order process after further modeling and field tests are performed,” the expert

acknowledged that he was never asked to do any further tests. Instead, Oglethorpe

and Smarr elected to use a less-expensive noise reduction system that was ineffective

at reducing the low-frequency noise, “too lightweight,” and “a terrible mistake from

an engineering standpoint.”

      Oglethorpe and Smarr’s expert acknowledged that, had he been asked, he

would have recommended design changes similar to those he recommended for

another peaking power plant constructed shortly afterwards. He also acknowledged

that, while the design of the second plant “worked beautifully” and there have been

no noise complaints there, the Sewell Creek facility in contrast is “not even

marginally acceptable.” But Oglethorpe’s project manager insisted on cross-

examination that “we had no reason to” consider invoking the change order provision

of the contract because the plant was “acceptable,” even though “marginally” so, and

in his opinion it remained “acceptable” as of the day of his trial testimony. And while

this witness testified on direct that Oglethorpe’s and Smarr’s investigation showed

that “there were no issues that came up” with the turbines and that they “were no big

deal in sound issues,” he acknowledged immediately afterwards on cross-examination

                                          20
that Oglethorpe and Smarr “did not do any due diligence on whether the . . . machine

was noisy or not.” He also acknowledged that they received the report from their

expert witness in time to make modifications to the contract and ameliorate any noise

issues.

      In sum, evidence was presented that, despite assurances to their neighbors that

the plant would be “as unobtrusive as possible,” and despite knowledge in the

industry of noise problems associated with gas-fired turbines, Oglethorpe and Smarr,

apparently motivated by time and expense concerns, chose to purchase turbines

without a noise guarantee, failed to involve their expert in a timely fashion and

limited his involvement, and failed to take noise abatement actions allowed under the

purchase contract despite the expert’s warning that the noise level was only

“marginally acceptable.” The jury could infer from this evidence that Oglethorpe’s

and Smarr’s actions showed “that entire want of care that would raise the presumption

of conscious indifference to consequences.” OCGA § 51-12-5.1 (b). See Wildcat

Cliffs Builders, LLC v. Hagwood, 292 Ga. App. 244, 246-247 (1) (663 SE2d 818)

(2008), citing Ponce de Leon Condos v. Di Girolamo, 238 Ga. 188, 189-190 (1) (232

SE2d 62) (1977); see also John H. Smith, Inc. v. Teveit, 175 Ga. App. 565, 568 (1) (b)

(333 SE2d 856) (1985) (failure of builder to install appropriate sediment control

                                         21
devices despite recommendation from county authorized jury to find that defendant

acted with conscious indifference to consequences and to award punitive damages.)

       Oglethorpe and Smarr contend that they cannot be assessed punitive damages

for actions which they undertook outside the limitation period. But in Brooks v.

Freeport Kaolin Co., 253 Ga. 678, 680 (III) (3) (324 SE2d 170) (1985), construing

the same four-year statute of limitation for damages to realty applicable here, our

Supreme Court held: “Insofar as the punitive-damage claim is based on damages to

realty occurring within four years of suit, it is not barred by the statute of limitation.”

(Emphasis supplied.) And in its opinion in Forrister, as in Brooks, our Supreme Court

characterized the permissible claims as claims for damages accruing within the

statutory period, not claims based upon the source or origin of the nuisance causing

the damages. See Forrister, supra, 289 Ga. at 336-337 (3). And we have held that

evidence of a nuisance outside a limitation period is “relevant to the issue of bad faith

and the award of attorney fees. [Cits.]” City of Roswell v. Bolton, 271 Ga. App. 1, 6

(3) (608 SE2d 659) (2004) (evidence more than six months prior to ante litem notice).

       Oglethorpe and Smarr also argue that they complied with industry standards

and therefore should not be liable for punitive damages, citing Stone Man v. Green,

263 Ga. 470, 472 (435 SE2d 205) (1993). But such compliance, while tending to

                                            22
show a lack of evidence supporting the award of punitive damages, does not

absolutely preclude such an award if the evidence shows “willful misconduct, malice,

fraud, oppression, or that entire want of care which would raise the presumption of

a conscious indifference to the consequences.” (Citations and punctuation omitted.)

Barger v. Garden Way, Inc., 231 Ga. App. 723, 728 (7) (499 SE2d 737) (1998) (full

concurrence in Division 7), cert. denied, 231 Ga. App. 907 (1998); see also General

Motors Corp. v. Moseley, 213 Ga. App. 875, 885 (8) (a) (447 SE2d 302) (1994)

(“[N]othing in Stone Man precludes an award of punitive damages where,

notwithstanding the compliance with applicable safety regulations, there is other

evidence showing culpable behavior.”) Some evidence supported the jury’s award,

and we will not disturb it.

      (e) Finally, Oglethorpe and Smarr challenge the sufficiency of the evidence as

to attorney fees, arguing that evidence of a “bona fide controversy” prohibits their

award under OCGA § 13-6-11. But the existence of a bona fide controversy negates

the possibility of a statutory award only “[w]here bad faith is not at issue.” Lamb v.

State Farm Mut. &c. Ins. Co., 240 Ga. App. 363, 365 (1) (522 SE2d 573) (1999).

      The issue of attorney fees under OCGA § 13-6-11 is a question for the
      factfinder and an award will be upheld if any evidence is presented to


                                         23
      support the award. OCGA § 13-6-11 provides for expenses of litigation
      where the defendant has acted in bad faith, has been stubbornly litigious,
      or has caused the plaintiff unnecessary trouble and expense. Bad faith
      warranting an award of attorney fees must have arisen out of the
      transaction on which the cause of action is predicated. Moreover, we
      have noted that there may be bad faith in carrying out the provisions of
      the contract sufficient to support the award. Finally, despite the
      existence of a bona fide controversy as to liability, a factfinder may find
      that defendant acted in the most atrocious bad faith in his dealing with
      the plaintiff.


(Citations and punctuation omitted.) Burlington Air Express v. Georgia-Pacific

Corp., 217 Ga. App. 312, 312-313 (457 SE2d 219) (1995). And bad faith may be

found in a defendant’s conduct if “it is not prompted by an honest mistake as to one’s

rights or duties but by some interested or sinister motive.” (Citations and punctuation

omitted.) Fletcher v. C. W. Matthews Contracting Co., 322 Ga. App. 751, 756 (1) (d)

(746 SE2d 230) (2013).

      Here, as noted above with respect to punitive damages, some evidence of bad

faith was produced. After assuring local residents that the plant would be “as

unobtrusive as possible,” Oglethorpe and Smarr, apparently motivated by self-

interest, ignored noise issues that were common knowledge in the industry and failed

to take timely action to ameliorate them. “Since the record contains some evidence

                                          24
of bad faith, [the] argument regarding the existence of a bona fide controversy is

irrelevant. [Cit.]” Burlington, supra, 217 Ga. App. at 314. We therefore affirm the

judgment of the trial court denying JNOV or new trial to Oglethorpe and Smarr.

                  Case Nos. A15A0376, A15A0377, and A15A0522

       3. In Case No. A15A0376, Paradise Lost, LLC (“Paradise Lost”) appeals from

the jury verdict in its favor in the trial of its individual claim for damages. This appeal

presents a question of first impression in Georgia: may a limited liability company

recover nuisance damages for “discomfort and annoyance” when it is a non-resident

owner? We conclude that such damages are recoverable, and we therefore reverse the

trial court’s rulings on this point and remand for a new trial.

       Paradise Lost is one of the landowners near the Sewell Creek Energy Facility.

After the first-stage jury trial in which the jury found a change in the character of the

nuisance since February 2003, the parties tried the nuisance claims of Paradise Lost

to a second jury. Before trial, Oglethorpe and Smarr filed a motion in limine seeking

to bar evidence of damages recoverable by Paradise Lost for “discomfort and

annoyance” because it did not “occupy” the property. At the hearing on the motion,

Oglethorpe and Smarr expanded their argument to include the contention that these

damages were analogous to damages for intentional infliction of emotional distress

                                            25
and therefore were not recoverable by a corporation. The trial court stated that it

would allow evidence of any discomfort and annoyance on the part of members of the

LLC, but that it was not inclined to allow such an award as an element of damages.

After further briefing, the trial court granted the motion in limine orally and later in

a brief written order, and declined to reconsider the ruling at trial. Paradise Lost

enumerates as error this order in limine, as well as the refusal to give its Request to

Charge No. 13 on the issue of damages or to include these damages in the special

verdict form.

      A charge on a given subject is justified if there is even slight evidence
      from which a jury could infer a conclusion regarding that subject. A trial
      court may deny a specific request to charge if any portion of the request
      is inapt or incorrect, because a request to charge must be correct, legal,
      apt, even perfect, and precisely adjusted to some principle involved in
      the case. Nevertheless, a trial court must instruct a jury on the law as to
      every controlling, material, substantial and vital issue in the case. The
      failure to charge on a properly asserted and legally cognizable theory of
      recovery, whether requested or not, or attention be called to it or not, is
      harmful as a matter of law.


(Citations and punctuation omitted.) Hendley v. Evans, 319 Ga. App. 310, 311 (2)

(734 SE2d 548) (2012). And, while the contents of a special verdict form are

reviewed only for an abuse of discretion, Sims v. Heath, 258 Ga. App. 681, 687 (7)

                                          26
(577 SE2d 789) (2002), the form must nevertheless be “adequately crafted to elicit

a decision on the issues before the court.” (Citations and punctuation omitted.)

Glisson v. Glisson, 265 Ga. 239, 240 (4) (454 SE2d 508) (1995).The appropriate

measure of damages is a question of law, and the trial court’s decision in this regard

is reviewed under the “plain legal error” standard. McMillian v. McMillian, 310 Ga.

App. 735, 738 (713 SE2d 920) (2011).

      (a) We first consider the nature of the “discomfort and annoyance” damages

sought by Paradise Lost. In their appellate brief, Oglethorpe and Smarr characterize

this element of damages as equivalent to a claim for emotional distress, and rely upon

decisions from other jurisdictions holding that damages for emotional distress cannot

be recovered by an entity other than a natural person. They further assert that

“Georgia courts have equated discomfort and annoyance with emotional distress,”

citing City of Warner Robins v. Holt, 220 Ga. App. 794, 797 (3) (470 SE2d 238)

(1996). This is not, however, a correct statement of Georgia law.

      In Holt, the purported equation was made by the defendant, which, like

Oglethorpe and Smarr, sought to characterize the disputed damages as “emotional

distress.” Id. This court recited instead the language of “discomfort, loss of peace of

mind, unhappiness and annoyance” from City of Columbus v. Myszka, 246 Ga. 571,

                                          27
573 (6) (272 SE2d 302) (1980).3 Cases addressing this issue demonstrate that

“discomfort and annoyance” in the context of nuisance is not a species of emotional

distress, but a distinct element of nuisance damages, as found in our Code and those

cases which rely on the Restatement of Torts (2d).

      Nuisance damages generally are provided for by OCGA § 41-1-4: “A private

nuisance may injure either a person or property, or both, and for that injury a right of

action accrues to the person who is injured or whose property is damaged.” Georgia

courts have relied upon the Restatement (Second) of Torts § 929 for further

explanation of the elements of nuisance damages. GE v. Lowe’s Home Ctrs, 279 Ga.

77, 78 (1) n.4 (608 SE2d 636) (2005) (specifically noting damages for loss of use of

land); Klingshirn v. McNeal, 239 Ga. App. 112, 117 (4) (520 SE2d 761) (1999)

(restoration costs).

      Section 929 provides:

      Harm to Land From Past Invasions4

      3
      This language was taken from a plaintiff’s petition in Mayor &c. of
Waynesboro v. Hargrove, 111 Ga. App. 26 (2) (140 SE2d 286) (1965), cited in
Myszka, supra.
      4
        Restatement (Second) of Torts § 930 provides for the recovery of damages for
future invasions. But, as our Supreme Court observed in Forrister, supra, “the
plaintiffs here are limited to filing one cause of action for the recovery of past and

                                          28
      (1) If one is entitled to a judgment for harm to land resulting from a past
      invasion and not amounting to a total destruction of value, the damages
      include compensation for

      (a) the difference between the value of the land before the harm and the
      value after the harm, or at his election in an appropriate case, the cost of
      restoration that has been or may be reasonably incurred,

      (b) the loss of use of the land, and

      (c) discomfort and annoyance to him as an occupant.

The comment to (1) (c) elaborates further:

      Comment on Subsection (1), Clause (c):

      e. Discomfort and other bodily and mental harms. Discomfort and
      annoyance to an occupant of the land and to the members of the
      household are distinct grounds of compensation for which in ordinary
      cases the person in possession is allowed to recover in addition to the
      harm to his proprietary interests. He is also allowed to recover for his
      own serious sickness or other substantial bodily harm but is not allowed
      to recover for serious harm to other members of the household, except
      so far as he maintains an action as a spouse or parent, under the rules
      stated in §§ 693 and 703. The owner of land who is not an occupant is
      not entitled to recover for these harms except as they may have affected
      the rental value of his land.




future damages caused by a permanent nuisance.” 289 Ga. at 335 (3).

                                          29
      Georgia decisions on damages are consistent with the Restatement. In Swift v.

Broyles, 115 Ga. 885, 887 (42 SE 277) (1902),5 our Supreme Court held:

      Where there is such a wrongful interference with the comfortable
      enjoyment of property by a person in possession, no precise rule for
      ascertaining the damage can be given, as, in the very nature of things,
      the subject-matter affected is not susceptible of exact measurement;
      therefore the jury are left to say what, in their judgment, the plaintiff
      ought to have in money, and what the defendant ought to pay, in view
      of the discomfort or annoyance to which the plaintiff and his family
      have been subjected by the nuisance.


Id. at 887-888. The court further explained that, while the owner of the property is

entitled to damages for diminution in value, the occupier may recover for deprivation

of “unrestricted use and full enjoyment of the same. [Cits.]” Id. at 887. While

suggesting that any depreciation in the rental value of the property could be one

factor in determining such damages, id., the Swift court went on to say that this is not

necessarily the only measure of damages that can be applied, as rental values might

increase for other reasons, and the true measure is whether “his enjoyment of the




      5
       Swift remains a leading case on damages for nuisance, cited as recently as
Davis v. Overall, 301 Ga. App. 4, 6 (1) (686 SE2d 839) (2009).

                                          30
comforts of his home has been wrongfully interfered with to his legal injury.” Id. at

889.

       The Supreme Court ultimately reversed the trial court, holding that jury

instructions allowing separate damages for depreciation of rental value, comfortable

enjoyment, and physical discomfort and pain, were duplicative and allowed an award

of double damages. Id. at 890-891. But this was not because damages for comfortable

enjoyment were not recoverable, but because the trial court erroneously instructed the

jury to make a separate award for each. See id. at 889-890. Instead, our Supreme

Court held that all these elements were factors that the jury could take into account

in a single award. Id.6

       In Jones v. Royster Guano Co., 6 Ga. App. 506 (65 SE 361) (1909), this court

relied on Swift and further elaborated on “inconvenience and discomfort” damages.

It reversed the trial court’s refusal to allow both market value damages and

       6
        In Stanfield v. Waste Mgmt. &c. Inc. 287 Ga. App. 810, 812 (1) (652 SE2d
815) (2007), this court cited Swift for the proposition that “[t]he law is equally clear
that a plaintiff may not recover for both discomfort and diminution of value. [Cit.]”
But this ignores Swift’s holding that this is merely one of many measures of damages.
Moreover, Stanfield’s narrow reading of Swift appears to be dicta: the plaintiffs were
appealing the grant of a directed verdict as to their trespass claim, not a nuisance, as
the jury had found against them on the nuisance claim. We held that, since their only
claim for damages had been decided against them, the grant of a directed verdict was
harmless error. Id.

                                          31
inconvenience and discomfort damages. 6 Ga. App. at 510-512. It noted that rental

value is but one measure of damages to the owner’s use of the property, and that

when the owner also occupies the property he may recover “the reasonable value of

the use.” Id. at 512. Jones was relied upon recently in City of Atlanta v. Murphy, 194

Ga. App. 652 (1) (391 SE2d 474) (1990), which involved an abatable nuisance but

distinguished damages to realty from discomfort and annoyance to the owner and his

family, and held that the damages award was not a double recovery. Segars v.

Cleveland, 255 Ga. App. 293 (564 SE2d 874) (2002), a permanent nuisance case, in

turn relies upon Murphy to hold that “[d]amages for discomfort and annoyance caused

to the owner . . . are separate and distinct from damage to the value of the realty. An

award of damages for discomfort and annoyance is for the enlightened conscience of

the jury and should not be disturbed if there is any evidence to support it.” (Citations

omitted.) Id. at 296 (1).

      (b) We must next consider whether discomfort and annoyance as an element

of nuisance damages may be asserted by a limited liability company. The United

States Supreme Court has held that the members of a religious corporation may have

such a claim. In Baltimore & Potomac R. v. Fifth Baptist Church, 108 U. S. 317, 329-

330 (2 SCt 719, 27 LE 739) (1883), the church, a religious corporation created under

                                          32
a general incorporation act7, sued a railroad company after it built an engine yard and

machine shop on property next to the existing church building. The Supreme Court

acknowledged that nuisance damages for “annoyance and discomfort” were

recoverable, and further noted:

      The right of the plaintiff to recover for the annoyance and discomfort to
      its members in the use of its property, and the liability of the defendant
      to respond in damages for causing them, are not affected by their
      corporate character. Private corporations are but associations of
      individuals united for some common purpose, and permitted by the law
      to use a common name, and to change its members without a dissolution
      of the association. Whatever interferes with the comfortable use of their
      property, for the purposes of their formation, is as much the subject of
      complaint as though the members were united by some other than a
      corporate tie. Here the plaintiff, the Fifth Baptist Church, was
      incorporated that it might hold and use an edifice, erected by it, as a
      place of public worship for its members and those of similar faith
      meeting with them. Whatever prevents the comfortable use of the
      property for that purpose by the members of the corporation, or those
      who, by its permission, unite with them in the church, is a disturbance
      and annoyance, as much so as if access by them to the church was
      impeded and rendered inconvenient and difficult. The purpose of the
      organization is thus thwarted. It is sufficient to maintain the action to


      7
       In Georgia today, such a religious corporation would be considered a nonprofit
corporation under OCGA § 14-3-101. See OCGA § 14-5-40.

                                          33
      show that the building of the plaintiff was thus rendered less valuable
      for the purposes to which it was devoted.


Id. at 329-330. This decision has been relied on frequently in Georgia: in our

Supreme Court as recently as 1938, Warren Co. v. Dickson, 185 Ga. 481, 483 (2)

(195 SE 568) (1938), and in the Court of Appeals as recently as 1972. Thomas v.

Campbell, 126 Ga. App. 675, 678 (191 SE2d 619) (1972) (Hall, P. J., dissenting).

Swift, supra, relies on Fifth Baptist Church with reference to “annoyance” damages,

as does Jones, supra. City Council of Augusta v. Boyd, 70 Ga. App. 686, 689-690 (29

SE2d 437) (1944), also relies on Fifth Baptist Church to allow a householder to

recover for the annoyance and discomfort of his family members, quoting from that

Supreme Court decision at some length:

      The plaintiff was entitled to recover because of the inconvenience and
      discomfort caused to the congregation assembled, thus necessarily
      tending to destroy the use of the building for the purposes for which it
      was erected and dedicated. The property might not be depreciated in its
      salable or market value . . . . But, as the court below very properly said
      to the jury, the congregation had the same right to the comfortable
      enjoyment of its house for church purposes that a private gentleman has
      to the comfortable enjoyment of his own house, and it is the discomfort
      and annoyance in its use for those purposes which is the primary
      consideration in allowing damages.


                                         34
70 Ga. App. at 689, citing 108 U. S. at 335.8 We therefore conclude that a limited

liability company may have a cause of action for “discomfort and annoyance”

affecting the use of its property for the purposes intended by its members and those

they permit to join them.

      (c) Finally, we consider the question of whether Paradise Lost is an “occupant”

of its property for the purpose of damages for nuisance. Oglethorpe and Smarr

contended below – although they appear to have abandoned the argument in this

court9 – that “occupant” is the equivalent of “resident,” and that because Paradise

Lost does not reside upon the property, it cannot recover for damages for “discomfort

and annoyance.”




      8
        Oglethorpe and Smarr point to the statement in Northern Pac. R. Co. v.
Whalen, 149 U. S. 157, 163 (37 LE 686, 13 SCt 822) (1893), that “[a]s a corporation
cannot be said to have life or health or senses, the only ground on which it can obtain
either damages or an injunction . . . is injury to its property.” But in that case, the
Supreme Court held that a railroad had no cause of action in private nuisance for an
injunction against a tavern owner who sold intoxicating liquors to its workers and
incapacitated them for work. Id. at 162. The language with respect to damages is
therefore dicta.
      9
       In their brief on appeal, Oglethorpe and Smarr acknowledge that their
“original motion focused on Appellant’s status as a non-resident,” but they do not
address this issue. This appears to be at least a tacit acknowledgment that appellees’
original contention lacked merit, but we nevertheless address the question.

                                          35
       But Georgia law is clear that residence is not necessary for occupancy. In

McIntyre v. Scarbrough, 266 Ga. 824 (471 SE2d 199) (1996), our Supreme Court

rejected the interpretation proposed by Oglethorpe and Smarr below:

       The trial court found that the warranty deed required [appellant] to
       occupy the tract as a personal residence as a condition of her life estate,
       concluding that “occupy” meant to “to dwell in” according to Webster’s
       New Universal Unabridged Dictionary. Relying on the affidavits of
       record, the court found as a matter of law that [appellant] failed to
       occupy the property. However, the court’s definition of occupancy was
       too narrow.


       “Occupy” is more expansively defined in Black’s Law Dictionary, p.
       1231 (Rev. 4th ed. 1968) as “to hold possession of; to hold or keep for
       use; to possess.” Because one may occupy a residence by holding it or
       keeping it for use, the court erred in imposing a requirement that
       permanent physical presence was necessary to fulfill the occupancy
       requirement of the warranty deed.


Id. at 825 (1).

       In the context of prescription, “[a]ctual possession of lands may be evidenced

by enclosure, cultivation, or any use and occupation of the lands” which is notorious

and exclusive. OCGA § 44-5-165. See also Mathews v. Cloud, 294 Ga 415, 418 (2)

(754 SE2d 70) (2014) (repair of pond and dam sufficient to authorize jury to find


                                           36
possession even though land not enclosed or cultivated); Chamblee v. Johnson, 200

Ga. 838, 842 (1) (38 SE2d 721) (1946) (use of property occasionally for camping

purposes and summer home, and building retaining walls and cabin thereon,

sufficient to authorize jury to find adverse possession). This definition comports with

Comment (a) to Restatement (Second) of Torts § 157, cited by appellants: “By

‘occupancy’ is meant such acts done upon the land as manifest a claim of exclusive

control of the land, and indicate to the public that he who has done them has

appropriated it. Thus, the erection of maintenance of a substantial enclosure around

a tract of land usually constitutes an occupancy of the entire tract.” And in Fifth

Baptist Church, supra, church members and their guests did not reside at the property,

but only used the property for church and Sunday school purposes. This did not affect

the corporation’s claim for interference with “the comfortable use of the property for

that purpose by the members of the corporation.” 108 U. S. at 330.

      We therefore conclude that the trial court erred in removing the issue of

damages for “discomfort and annoyance” from consideration by the jury. Whether the

property was not used as a residence, whether individual members and others who

used the property were only occasionally there, and whether the evidence failed to

show annoyance or discomfort during the limitation period, are all questions to be

                                          37
considered by the jury in deciding the existence and, if so, the amount of damages,

not whether a claim for such damages may be submitted to the jury.10 We therefore

must reverse and remand for a new trial on the issue of damages.

      As a result of our reversal in Case No. A15A0376, Oglethorpe and Smarr’s

cross-appeals are dismissed as moot.

      Judgment affirmed in Case Nos. A15A0374 and A15A0375. Judgment reversed

and case remanded in Case No. A15A0376. Appeals in Case Nos. A15A0377 and

A15A0522 dismissed as moot. Doyle, C. J. and Phipps, P. J., concur.




      10
       We note that, on retrial, the jury should be instructed as to the specific
elements of nuisance damages and more specifically those of “discomfort and
annoyance” or “loss of enjoyment” damages, so as to avoid the risk of double
recovery as noted in Swift, supra.

                                        38
