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Georgia Northeastern R.R. Co. Inc. v. Lusk

The plaintiff was not entitled to attorneys' fees pursuant to O.C.G.A. § 13-6-11 because a genuine controversy existed and there was no evidence of bad faith.

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The Georgia Northeastern Railroad Co. “Railroad” appeals from the denial of its motion for judgment notwithstanding the verdict in Larry Lusk’s action to recover damages based on the erosion of his property caused by the accumulation of debris beneath a trestle owned by the Railroad. The jury found that the Railroad had committed a continuing, abatable nuisance and trespass and awarded Lusk $5,400 in compensatory damages, representing the diminution in the fair market value of his land; $182,755 for the estimated cost of repair, and $74,238 in litigation expenses. On appeal, the Railroad contends that the trial court erred by 1 denying its motion in limine to exclude evidence of restoration damages; 2 denying its motions for directed verdict and JNOV on the issue of compensatory damages because a portion of the injury occurred outside the four-year statute of limitation; and 3 denying its motions for directed verdict and JNOV on the issue of Lusk’s entitlement to attorney fees under OCGA § 13-6-11. We affirm the awards of compensatory and restoration damages but reverse the award of attorney fees.

Appellate review of the denial of a motion for JNOV is governed by the “any evidence” test.1

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