Merritt et al v. Marlin Outdoor Advertising, Ltd. et al

Filing 185

ORDER denying 183 Motion for Reconsideration. Signed by Judge William T. Moore, Jr on 8/3/2012. (loh)

FILED
U.S. DISTRIV

COURT

IN THE UNITED STATES DISTRICT COURT FOVANAHmV
THE SOUTHERN DISTRICT OF GEORGI
LOI2AUG3 PH 14: 12
SAVANNAH DIVISION
THOMAS G. !VIERRITT and
CL
WATERWAY ON THE OGEECHEE,
INC.,
Plaintiffs,
me

CASE NO. CV410-053

MARLIN OUTDOOR ADVERTISING,
LTD. and WALTER M. CZURA,
Defendants.

ORDER
Before the Court is Plaintiffs Thomas G. Merritt and
Waterway on the Ogeechee's

("Waterway") Motion for

Reconsideration. (Doc. 183.) In the motion, Plaintiffs
ask this Court to reconsider its prior order (Doc. 178)
limiting the damages Plaintiffs can recover in this case to
the appropriate rental value of the actual land wrongfully
possessed.

Seeing no reason to disturb its prior order,

Plaintiffs' motion is DENIED.
However, the Court will, yet again, attempt to explain
to Plaintiffs why their wildly novel position regarding
damages is incorrect. First, the law is clear that mesne
profits do not include income generated from improvements
constructed on the property by the party in wrongful
possession. See Winn v. Raney, 153 Ga. 641, 113 S.E. 8, 9-

10 (1922) ( 11 [M] esne profits are to be assessed upon the
value of the property as it stood when the defendant's
title accrued, and the plaintiff is prohibited from
recovering as rnesne profits the increase of income
resulting from the improvements made by the defendant in
good faith.") . What appears to be lost on Plaintiffs is
the fact that the profit in mesne profits are monies
received by the party in wrongful possession for removing
items of value from the land, such as timber, crops,
turpentine, and other mineral or agricultural resources.
See, e.g., Cunningham v. Morris, 19 Ga. 583

(1856)

Plaintiff has been unable to point to any single case where
a plaintiff was awarded as damages the actual profits the
party in wrongful possession generated from improvements
made to the property. This failure is simple—no such cases
exist.' While Plaintiffs make a rather cute attempt to
correlate growing crops to billboards by stating they are
both nourished by the very soil beneath them, this absurd
syllogism is both incorrect and laughable.
Plaintiffs place an undue weight on the simple
statement that mesne profits are broader than the mere
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Plaintiffs should not take the absence of any case on
point as an indication that the law is unsettled in this
area. Rather, it is more likely that the opposite is true:
the law is so settled that no party has even bothered to
raise such a fatuous argument.

rental value of the land, but may include extra damages as
the particular circumstances demand. (Doc. 183 at 3-4.)
What this Court finds amazing is how Plaintiffs continue
their gross and absurd misreading of this passage. Of
course mesne profits are broader than rent, they include
both damage done to the property and the profits obtained
from the removal of agricultural and mineral resources. On
this point the Court will try to be perfectly clear so as
to not cause Plaintiffs any additional confusion: mesne
profits do not include actual prof its generated from
improvements constructed on the property by the party in
wrongful possession.
Furthermore, the Court is not even sure if Plaintiffs
took the time to actually read its prior order. In their
Motion for Reconsideration, Plaintiffs contend that the
jury should hear evidence that the income Defendants
derived was caused by the location of the land where the
billboards were located. (Doc. 183 at 3.) The Court
stated in its prior order that such evidence was admissible
to establish the appropriate rental value of the land.
(Doc. 178 at 5-6.) However, Plaintiffs now come forward
with this ''pie in the sky" argument that the jury can award
them the actual profits if Plaintiffs can show that they

C]

were caused by the location of the sign .2 (Doc. 183 at 3.)
This notion is so out of touch with the law that the Court
will not even attempt to respond, but only note that it
appears Plaintiffs are just making it up as they go along.
In even making this argument, Plaintiffs appear to be
confusing themselves because they seem to recognize the
correct state of the law—that the damages are calculated
according to the rental value of the land wrongfully
possessed. However, Plaintiffs have continuously stated
that what they want is not the rental value, but the
entirety of the profits Defendants generated. Otherwise
there would be no reason to even be discussing Plaintiffs'
inane arguments—it appears that Defendants paid rent for
the land upon which the billboards were located. This, of
course, means that Plaintiffs' damages are pretty close to
negligible when compared with the over $400,000 they seek.
Second, and at the risk of sounding redundant,
Plaintiffs completely misunderstand the law of unjust
enrichment.

Even assuming this is a valid claim in this

2

Of course the profits were, in some respect, caused by the
location of the sign. The location of a billboard is
always a cause of the profit. For example, there may be a
billboard on the North Pole, but its location would not
generate any advertising revenue. But, to say that
Plaintiffs are entitled to all the profits caused by the
location of the sign is just ludicrous.
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case, 3 Plaintiffs are incorrect in reasoning that they can
recover all the profits generated by the billboards. The
benefits Plaintiffs conferred were not completed
billboards, but rather the land upon which Defendants
constructed the billboards. Therefore, the value of the
benefit is the rental value of the land, not the income
generated from the advertising space.4
The Court has long questioned why this case is
consuming a significant portion of its time and resources.
Quite simply, there appears to be little money to be had by
Plaintiffs. Yet, Plaintiffs continue to trudge along by
misreading cases and twisting their holdings in their vain
search for El Dorado. For their part, Defendants have
offered the Court little assistance, instead being content
to watch Plaintiffs' clumsy attempt to lead this Court out
of the desert. For its part, the Court has attempted to
help Plaintiffs along the way by explaining to them the
error of their ways, alas, to no avail. In an attempt to

3 Unfortunately, the Court has not had occasion to pass on
this issue because Defendants, surprisingly, failed to file
any dispositive motions in this case.
4 To answer Plaintiffs' taxi cab hypothetical, of course the
owner's damages would be limited to the rental value of the
vehicle, assuming it was returned in the same state and the
owner elected to sue under an unjust enrichment theory.
However, the Court notes that this hypothetical is so far
afield from the facts in this case to render it practically
useless in this discussion.
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help end their futile search, the Court must tell
Plaintiffs that their
is

Motion for Reconsideration (Doc, 183)

DENIED.
tsp

SO ORDERED this .-?day of August 2012.

WILLIAM T. MOORE, JR.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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