Crowe et al v. BellSouth Telecommunications, Inc. et al

Filing 37

MEMORANDUM OPINION AND ORDER denying 32 Motion for Summary Judgment. Signed by Honorable Wallace Capel, Jr on 6/26/2009. (Attachments: # 1 Civil Appeals Checklist)(wcl, )

IN THE UNITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION R O B E R T H. CROWE, et al., ) ) P l a i n t if f s , ) ) v. ) CIVIL ACTION NO. 3:08cv179-WC ) B E L L S O U T H TELECOMMUNICATIONS, ) IN C ., et al., ) ) D e f e n d a n ts . )

MEMORANDUM OPINION AND ORDER
I. IN T R O D U C T IO N P la in tif f s, Robert H. Crowe and Emma C. Crowe, bring this lawsuit based on an a lle g e d trespass of their property by Defendants BellSouth Telecommunications, Inc., and S tar Construction, LLC. Pending before the Court is Defendants' Motion for Summary Ju d g m e n t (Doc. #32). Plaintiffs filed a Response (Doc. #33) and Defendants filed a Reply (D o c. #34). P u rsu a n t to 28 U.S.C. § 636(c), both parties have consented to the conduct of all p ro c e ed in g s and entry of a final judgment by the undersigned United States Magistrate Judge. P ls .' Consent to Jurisdiction (Doc. #15); Defs' Consent to Jurisdiction (Doc. #16). For the re a s o n s discussed below, the Motion for Summary Judgment (Doc. #20) is DENIED.

II.

J U R IS D IC T I O N AND VENUE J u ris d ic tio n over this action is proper pursuant to 28 U.S.C. § 1332 (diversity) and 28

U .S .C . § 1441(a) (removal jurisdiction). III. STANDARD OF REVIEW U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any, show that there is no genuine issue as to any material fact a n d that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. C a tre tt, 477 U.S. 317, 322 (1986). "An issue of fact is `genuine' if the record as a whole c o u ld lead a reasonable trier of fact to find for the nonmoving party. An issue is `material' if it might affect the outcome of the case under the governing law." Redwing Carriers, Inc. v . Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir.1996) (quoting Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 248 (1986)). T h e party asking for summary judgment "always bears the initial responsibility of in f o rm in g the district court of the basis for its motion, and identifying those portions of `the p le a d in g s , depositions, answers to interrogatories, and admissions on file, together with the a f f id a v its , if any,' which it believes demonstrate the absence of a genuine issue of material f a ct." Celotex, 477 U.S. at 323 (quoting Rule 56(c)). The movant can meet this burden by p re s e n t in g evidence showing there is no dispute of material fact, or by showing the non-

2

m o v in g party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-23. O n c e the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to in t e rr o g a to r ie s , and admissions on file,' designate `specific facts showing that there is a g e n u in e issue for trial.'" Celotex, 477 U.S. at 324. To avoid summary judgment, the n o n m o v in g party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1 9 8 6 ). On the other hand, a court ruling on a motion for summary judgment must believe th e evidence of the non-movant and must draw all justifiable inferences from the evidence in the non-moving party's favor. Anderson, 477 U.S. at 255. After the non-moving party has re sp o n d e d to the motion for summary judgment, the court must grant summary judgment if th e r e is no genuine issue of material fact and the moving party is entitled to judgment as a m a tte r of law. See Fed. R. Civ. P. 56(c). IV . FACTS T h e Court has carefully considered all deposition excerpts and documents submitted in support of the pleadings, and the statement of uncontested facts contained within the M o t io n for Summary Judgment. The submissions of the parties, viewed in the light most f a v o r a b le to the non-moving party, establish the following facts: In 2006, Defendant Star Construction, LLC, at the direction of Defendant BellSouth

3

T e lec o m m u n ica tio n s, Inc., topped and cut various trees on Plaintiffs' property in m a in t e n a n c e of telephone lines. V. D IS C U S S IO N D e f en d a n ts argue summary judgment is appropriate because their actions did not c o n s titu t e a trespass because as they have an easement on Plaintiffs' land. Defendants also a r g u e that even if Plaintiffs could prove a trespass had occurred, they cannot establish dam ages. A. E a sem en t

D e f en d a n ts argue they have acquired an easement on Plaintiffs' land by implication a n d /o r prescription. 1. E a s e m e n t by implication

In order to establish an easement by implication, Alabama law requires a showing of " n o t only original unity of ownership, Brewer v. Avinger, 208 Ala. 411, 94 So. 590 (1922), b u t also that the use be open, visible, continuous, and reasonably necessary to the estate g ra n te d ." Helms v. Tullis, 398 So. 2d 253, 255 (Ala. 1981). Further, Defendants must show th a t the open, visible, continuous, and reasonably necessary use was consistent with the n a tu re of the property. Miller v. Harris, 945 So. 2d 1072, 1075 (Ala. Civ. App. 2006). In a d d itio n , "[a]n implied easement requires that the easement be reasonably necessary, but it is a question of fact in each particular case whether the right in question constitutes a n e c es s ity to the property conveyed." Pinkston v. Hartley, 511 So. 2d 168, 169 (Ala. 1987).

4

D ef en d an ts have failed to establish that each of these questions of fact are not in dispute. In f a c t, Defendants Motion fails to address each of these factual elements. F u r th e r, regardless of whether Defendants have shown their use to be "open, visible, c o n tin u o u s, and reasonably necessary," the question remains whether there was original unity o f ownership. Defendants fail to even allege unity of ownership. Plaintiffs maintain that th e re was no unity of ownership, since most of the telephone lines do not exist on their p ro p e rty. Here, prior to an entry of judgment, it would be appropriate for a finder of fact to d e te rm in e whether: (1) there had been unity of ownership; (2) the use was open, visible, c o n tin u o u s , and reasonably necessary; and (3) that the use was consistent with the nature of th e property. Therefore, summary judgment based on an implied easement is not appropriate. 2. E a s e m e n t by prescription

" T o establish an easement by prescription, the claimant must use the premises over w h ic h the easement is claimed for a period of twenty years or more, adversely to the owner o f the premises, under claim of right, exclusive, continuous, and uninterrupted, with actual o r presumptive knowledge of the owner." Bull v. Salsman, 435 So. 2d 27, 29 (Ala. 1983). D e f en d a n ts point to deposition testimony by Plaintiff to establish that use of the property has b e e n for a period of more than twenty years. (Doc. #32-2 at 9). Plaintiffs dispute

D e f e n d a n ts' claim, arguing that most of the land used by Defendants did not belong to P l a i n t if f s .

5

P la in tif f s' claims of trespass center on the cutting and destruction of trees located on th e ir property in 2006. To the extent the telephone lines do not sit on Plaintiffs' property, th e re can be no prescription. As to the portions of the lines and/or equipment that resided on P la in tif f s' property, there has been no showing that it was done without permission. "The p re su m p tio n is that the use is permissive, and the claimant has the burden of proving that the u s e was adverse to the owner." Bull, 435 So. 2d at 29. "A permissive use of lands does not rip e n into an adverse use until there has been a repudiation of the permissive use so as to a f f o rd the owner notice of an adverse claim." Aman v. Gilley, 2005 WL 2106377 (Ala. Civ. A p p . Sep. 2, 2005) (citing Cotton v. May, 301 So. 2d 168 (1974); Gonzalez v. Naman, 678 S o . 2d 1152 (Ala. Civ. App. 1996)). Here, it appears that the repudiation did not happen u n til 2006. Further, Defendants have not established that their possession was adverse. If it is e sta b lis h e d that Defendants' equipment trespassed on to Plaintiffs' land for an extended p e rio d of time, a trier of fact must determine whether the use of the property was adverse and f o r how long. In other words, there are far too many questions of material fact to be answered b e f o re a determination on this issue can be made. Accordingly, summary judgment is not a p p ro p r ia te . B. D am ages

Defendants argue that Plaintiffs cannot establish damages in this case. Specifically, D e f en d a n ts argue that, under Alabama law, in an action such as this, damages are measured

6

b y the difference between the value of the land immediately before and after the trespass. D e f en d a n ts claim that Plaintiffs seek compensation for trees that "were simply topped and rem ain living on the property," and that Plaintiffs have suffered no damages. (Doc. #32-2 a t 11-12). Plaintiffs agree with the method of determining damages, but argue that the trier o f fact should determine the amount of damages. Defendants cite this Court to Ryals v. Hunter, 638 So. 2d 2 (Ala. Civ. App. 1994), in support of their contention about how damages are measured in real estate cases. Indeed, th e Ryals court states: "The legal measure of damages to real estate in cases such as the p r e s e n t case is the difference between the value of the land immediately before the trespass a n d the value of the land immediately after the trespass." 1 Id. at 3. Defendants argue that, b e c au s e Plaintiffs' expert, George Barker, did not do a valuation of damages based on the v a l u e of Plaintiffs property before and after the trespass, they are unable to prove damages. H o w e v e r , the Ryals court went on to say that "the owner[] is entitled to give her o p in io n as to the value of the property before and after the trespass to establish the legal m e a s u re of damages." 2 Id. Indeed, it is clear under Alabama law that "a landowner can te stif y as to the value of his property, even if he is not an expert." Seale v. Pearson, 736 So. 2 d 1108, 1112-13 (Ala. Civ. App. 1999); see also Kerns v. Pro-Foam of South Alabama,

Similar to the case at bar, in Ryals, plaintiffs sued defendants for trespass and the cutting of trees. Id. at 2.
2

1

The Court notes that this quote appears in the very next sentence in the Ryals opinion, which itself is only about five sentences long. Neither party addressed this portion of the opinion, despite its relevancy.

7

In c ., 572 F. Supp. 2d 1303, 1307 (S.D. Ala. 2007) ("[t]he general rule is that an owner of real e s ta te is competent to testify as to its value.") (quoting Alabama Power Co. v. Cummings, 4 6 6 So. 2d 99, 102-03 (Ala. 1985)); S.S. Steele & Co., Inc. v. Pugh, 473 So. 2d 978 (Ala. 1 9 8 5 ); Wilkens v. Kaufman, 615 So. 2d 613, 615 (Ala. Civ. App. 1992) ("A person may tes tify to the value of his or her land, even if that person is not an expert."); Carson v. C a n a le s, 409 So. 2d 842, 843 (Ala. Civ. App. 1981) (trial court relied on plaintiff's testimony th a t market value of his house had fallen from $58,000 to $50,000 or $51,000 because of c ra c k e d walls, sagging kitchen floor, and chimney that smoked through walls). Thus, Defendants' contention that Plaintiffs are unable to establish damages at trial b e c a u s e they have no expert to testify as to the value of the land before and after the trespass is without merit. Accordingly, because Plaintiffs may testify at trial in an attempt to establish d a m a g e s , summary judgment is inappropriate. V I. CONCLUSION F o r the foregoing reasons, it is ORDERED that Defendants' Motion for Summary J u d g m en t (Doc. #32) is DENIED

DONE this 26th day of June, 2009. /s/ Wallace Capel, Jr. WALLACE CAPEL, JR. UNITED STATES MAGISTRATE JUDGE

8