WEST v. LOUISVILLE GAS & ELECTRIC COMPANY

Filing 83

ENTRY ON DEFENDANT LOUISVILLE GAS & ELECTRIC COMPANY'S PARTIAL MOTION TO DISMISS - 36 Motion to Dismiss for Failure to State a Claim is DENIED. See Entry for details. Signed by Judge Richard L. Young on 1/8/2018. (LBT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
STEPHEN R. WEST,

)
)
Plaintiff,
)
)
v.
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)
LOUISVILLE GAS & ELECTRIC
)
COMPANY,
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CHARTER COMMUNICATIONS, INC.,
)
INSIGHT KENTUCKY PARTNERS II, L.P., )
TIME WARNER CABLE,
)
)
Defendants.
)
)
)
LOUISVILLE GAS & ELECTRIC
)
COMPANY,
)
)
Cross Claimant,
)
)
v.
)
)
CHARTER COMMUNICATIONS, INC.,
)
INSIGHT KENTUCKY PARTNERS II, L.P., )
TIME WARNER CABLE,
)
)
Cross Defendants.
)

4:16-cv-00145-RLY-TAB

ENTRY ON DEFENDANT LOUISVILLE GAS & ELECTRIC
COMPANY’S PARTIAL MOTION TO DISMISS
The present action filed by Plaintiff, Stephen R. West, against Defendants,
Louisville Gas & Electric Company, Charter Communications, Inc., Insight Kentucky
Partners II, L.P., and Time Warner Cable, arises out of a dispute over the scope of an
easement covering Plaintiff’s land. Louisville Gas & Electric Company (“LGEC”) seeks
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to dismiss two of Plaintiff’s claims from the Amended Complaint—criminal trespass
(Count Three) and conversion (Count Seven)—based, in part, on the court’s previous
Entry which addressed LGEC’s first motion to dismiss. (Filing No. 18). For the reasons
stated below, the court DENIES the motion.
I.

Background
The court assumes the parties’ familiarity with the facts set forth in its previous

Entry, (see Filing No. 18), and so the court will only provide a brief summary here.
Plaintiff owns a parcel of real estate (the “Property”) in Jeffersonville, Indiana.
(Filing No. 33, Amended Complaint at ¶ 8). Located on the Property is a 248-foot tall
tower that LGEC owns and utilizes to run electric utility lines between Kentucky and
Indiana. (Id. at ¶ 9). In 2000, LGEC contracted with Time Warner Cable 1 (“TWC”) to
run fiber optic cables across the already existing infrastructure owned by LGEC. (Id. at ¶
17). The rights of the parties with respect to the Property and the fiber optics are
governed by an easement and supplemental agreement, though the parties dispute their
scope and application.
LGEC maintains that the original 1938 Easement (the “Easement”) is controlling.
The Easement provides there be:
[A] right of way and perpetual easement to maintain, operate, renew, repair,
and remove a line or lines of poles and towers and all necessary equipment,
wires, cables, and appurtenances in connection therewith, for the
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LGEC actually contracted with Insight which was a subsidiary of Time Warner Cable, Inc. It
appears that there technically is no legal entity named “Time Warner Cable” as Charter
Communications, Inc. completed the acquisition of TWC through a merger in 2016. (See Filing
No. 55, Defendant Charter Communications, Inc. Motion to Dismiss at 1 n. 1). However, the
parties refer to TWC in their briefing and so the court does the same.
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transmission, distribution and delivery of electrical energy to the Grantee and
other persons and concerns and to the public in general for light, heat, power,
telephone and/or other purposes . . . .
(Filing No. 33-1, Exhibit A). And so the story goes, according to LGEC, that the
Easement unambiguously permits the placement of fiber optic cables because it allows
for the “delivery of electrical energy” for “other purposes.”
Plaintiff views the situation differently. Plaintiff points out that in 1976,
Plaintiff’s predecessor-in-interest entered into a Supplemental Deed of Easement (the
“1976 Supplemental Agreement”) with the Ohio Valley Transmission Corporation, a
subsidiary of LGEC. The 1976 Supplemental Agreement reads, in part:
Grantors hereby convey and re-convey to the Company all rights heretofore
acquired by the Company or its predecessors, including the perpetual right,
privilege and easement to enter upon, construct, reconstruct, replace,
upgrade, maintain, operate, and/or remove, one or more lines for the
transmission of electrical energy, together with any and all towers, poles,
guys, stubs, anchors, foundations, and other necessary equipment, fixtures
and appurtenances over, across, and within the existing 100 feet wide
easement, a part of or all of which crosses the property of Grantors . . . .
(Filing No. 33-3, Exhibit C). According to Plaintiff, the 1976 Supplemental
Agreement—which allegedly clarifies the “other purposes” phrase that exists in the
Easement—supersedes the Easement and re-defines the rights of the parties.
Accordingly, Plaintiff argues that the 1976 Supplemental Agreement does not permit the
placing of the fiber optic cables within LGEC’s existing infrastructure.
LGEC previously filed a Motion to Dismiss (Filing No. 7) arguing that the
Easement expressly permitted the placement of fiber optic cables across the infrastructure
as a matter of law. The court denied LGEC’s Motion. (Filing No. 18). In its Entry, the
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court noted that both parties had presented reasonable yet conflicting interpretations of
the language within the Easement. (Id. at 6). As such, it declined to find that Plaintiff
could not make out his claims as a matter of law.
After the court’s denial, Plaintiff amended his complaint and added (among
others) claims of criminal trespass and conversion against all Defendants. It is these two
claims that form the basis for LGEC’s present motion.
II.

Discussion
LGEC moves pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss

Plaintiff’s claims of criminal trespass and conversion. LGEC argues that Plaintiff cannot
prove as a matter of law that LGEC had the requisite mens rea given the court’s prior
ruling. If LGEC’s interpretation of the easement turns out to be erroneous, then Plaintiff
might have a claim for civil trespass or conversion but not for one that is criminal.
Further, LGEC argues that Plaintiff cannot make out a claim for criminal trespass as a
matter of law because LGEC had a contractual right to utilize the easement.
A.

Legal Standard

Dismissal is appropriate under Rule 12(b)(6) where the plaintiff fails “to state a
claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When ruling on a
Rule 12(b)(6) motion, a district court must accept all well-pleaded factual allegations and
draw all reasonable inferences in favor of the plaintiff. See West Bend Mut. Ins. Co. v.
Schumacher, 844 F.3d 670, 675 (7th Cir. 2016). “A complaint should not be dismissed
unless ‘it is clear that no relief could be granted under any set of facts that could be

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proved consistent with the allegations.’” Cushing v. City of Chi., 3 F.3d 1156, 1159 (7th
Cir. 1993) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
B.

Criminal Trespass

Plaintiff brings his criminal trespass claim against LGEC under the Indiana Crime
Victim’s Relief Act (“ICVRA”), which permits the victim of certain crimes to bring a
civil action against the person who caused the loss for treble damages. See Palmer
Dodge, Inc. v. Long, 791 N.E.2d 788, 791 (Ind. Ct. App. 2003). One of the crimes listed
in the ICVRA is criminal trespass. See Ind. Code § 34-24-3-1. A person commits a
criminal trespass when, “not having a contractual interest in the property, knowingly or
intentionally enters the real property of another person after having been denied entry by
the other person or that person’s agent.” Ind.Code § 35-43-2-2(b)(1). The plaintiff
“must prove by a preponderance of the evidence that the defendant committed a criminal
act, even though his conviction is not a condition precedent to recovery.” Harco, Inc. of
Indianapolis v. Plainfield Interstate Family Dining Associates, 758 N.E.2d 931, 945 (Ind.
Ct. App. 2001) (citation omitted).
The dispositive question at this stage of the proceedings is whether Plaintiff has
plausibly alleged that LGEC knowingly or intentionally, without having a contractual
right, entered Plaintiff’s property after having been denied entry. Plaintiff has alleged
that LGEC did not have a contractual interest to install fiber optic cables (Complaint at ¶
42), knowingly and intentionally ran the fiber optic cables across Plaintiff’s property (Id.
at ¶ 43), and ran such cables after having been denied permission. (Id.). These
allegations show that it is at least plausible that LGEC committed a criminal trespass onto
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Plaintiff’s property. See Gordon v. Bank of New York Mellon Corp., 964 F.Supp.2d 937,
943-44 (N.D. Ind. 2013) (denying a defendant’s motion to dismiss where plaintiff had
plausibly alleged violations under the ICVRA).
LGEC contends that Plaintiff cannot make out a claim for criminal trespass as a
matter of law because the court’s previous Entry precludes a finding of the requisite mens
rea for criminal trespass. In support of this position, LGEC points the court to Indiana
authority holding that a reasonable, albeit mistaken, interpretation of an ambiguous
contract will preclude a finding of the required mens rea. See e.g. NationsCredit
Commercial Corp. v. Grauel Enterprises, Inc., 703 N.E.2d 1072, 1078 (Ind. Ct. App.
1998). But the holding in NationsCredit came after there were factual findings,
specifically after a bench trial. Id. at 1074. Here, there have been no factual findings as
doing so would be impermissible at this point in the proceedings. In re Consolidated
Industries, 360 F.3d 712, 717 (7th Cir. 2004) (citation omitted). Until there is a finding
that LGEC acted in accordance with a reasonable interpretation of the easement, Plaintiff
is permitted to pursue his claim. 2
LGEC also contends that Plaintiff cannot make out his claim from criminal
trespass as a matter of law because LGEC has a contractual interest in the property. It is
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Contrary to what appears to be LGEC’s position, the court did not find in its previous Entry
that LGEC reasonably interpreted the Easement when it installed fiber optic cables. That is a
factual finding and the court has not made any factual findings. While the court did say that
LGEC presented a reasonable interpretation of the Easement, there has been no finding that, in
fact, that is LGEC’s interpretation of the Easement. If after discovery LGEC believes the
evidence shows a reasonable interpretation, then—as Plaintiff even states in his brief—LGEC
can move for summary judgment. (Filing No. 46, Plaintiff’s Response at 8). Simply put,
LGEC’s arguments at this point of the proceeding are premature.
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true that, as the grantee of the Easement, LGEC has some contractual interest in the
property. But Indiana law is clear that where a contractual interest ends, a trespass
begins. See Taylor v. State, 836 N.E.2d 1024, 1028 (Ind. Ct. App. 2005); see also Bozzo
v. State, 55 N.E.3d 920, at *3 (Ind. Ct. App. 2016) (unpublished table decision)
(affirming conviction for criminal trespass where student remained in campus building
after hours). Plaintiff’s contention is that LGEC’s contractual interest is limited only to
the maintenance of electrical energy, not fiber optics, and thus anything installed beyond
electrical energy is the point at which a criminal trespass begins. While that contention
might not hold up at the end of the case, at this point, Plaintiff has at least made out a
plausible claim for criminal trespass. 3
This is not to say proving such claim will be an easy task. On the pleadings and
attachments before the court, it seems to be an uphill battle for Plaintiff with respect to
his criminal trespass claim. Moreover, the parties are aware that the ICVRA is to be
narrowly construed, see Nance v. Miami Sand & Gravel, LLC, 825 N.E.2d 826, 839 (Ind.
Ct. App. 2005), and that Indiana law disfavors the use of the criminal trespass statute to
try disputed rights in real property. Steele v. State, 132 N.E. 739, 740 (Ind. 1921), cited
with approval in Charles Downey Family Ltd. Partnership v. S & V Liquor, Inc., 880

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LGEC also argues that Plaintiff cannot prove that he denied LGEC entry prior to installation of
the fiber optic cables. Putting aside that this argument is waived as it was raised for the first time
in LGEC’s reply brief, Mendez v. Perla Dental, 646 F.3d 420, 423-24 (7th Cir. 2011), Plaintiff
has alleged that he denied LGEC permission to amend and expand the scope of the easement
through oral and written communication and that he posted a no trespassing sign. (Complaint ¶
43). Whether Plaintiff has sufficient proof of these assertions is a separate question. At this
point, he’s at least alleged a plausible claim sufficient to withstand a motion to dismiss.
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N.E.2d 322, 328 (Ind. Ct. App. 2008). Be that as it may, Plaintiff has at least plausibly
alleged a criminal trespass and so the court declines to dismiss this claim.
C.

Conversion

LGEC also moves to dismiss Plaintiff’s claim for conversion because, like
criminal trespass, Plaintiff cannot prove that LGEC had the requisite mens rea given the
court’s prior ruling. But before even getting to the merits, this argument fails because
Plaintiff has not pled criminal conversion; rather, plaintiff has pled tortious conversion,
for which proof of mens rea is not required. Computers Unlimited, Inc. v. Midwest Data
Systems, Inc., 657 N.E.2d 165, 171 (Ind. Ct. App. 1995). This is evidenced by the fact
that Plaintiff pled separate counts for both “Trespass” and “Criminal Trespass” yet only
pled one count for “Conversion.” Had Plaintiff wanted to plead criminal conversion, he
would have added another count for “criminal conversion.” Plaintiff’s characterization
that LGEC’s actions were “intentional, willful, malicious, and oppressive” forms the
basis of a claim for punitive damages, not a claim for criminal conversion. Moreover, the
ICVRA is not referenced under the count for conversion, yet it is referenced under the
count for criminal trespass. All of this shows that Plaintiff pled a claim for tortious—and
not criminal—conversion. 4

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For the same reasons discussed in footnote 2, the court declines Defendant’s request to bar
Plaintiff from seeking punitive damages with respect to Plaintiff’s conversion claim.
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III.

Conclusion
For the reasons stated above, the court DENIES LGEC’s Partial Motion to

Dismiss. (Filing No. 36).
SO ORDERED this 8th day of January 2018.

Distributed Electronically to Registered Counsel of Record.

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