Dutton v. Carolina Power & Light Co

Filing 95

ORDER denying 56 Motion for Summary Judgment. Signed by Honorable R Bryan Harwell on 6/25/2012.(hcic, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Gladys S. Melton, by Ernie Dutton
her power of attorney, on behalf of
other persons similarly situated,

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Plaintiff,
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v.
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Carolina Power & Light Co.,
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Defendant.
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____________________________________)

Civil Action No.: 4:11-cv-00270-RBH

ORDER

Plaintiff Gladys S. Melton, by Ernie Dutton her power of attorney, on behalf of other
persons similarly situated (“Plaintiff”) filed this suit against Defendant Carolina Power & Light
Company d/b/a Progress Energy Carolinas, Inc. (“PEC” or “Defendant”), seeking class action status1
and alleging that Defendant exceeded the scope of easements it holds over Plaintiff’s property and
over the property of similarly situated individuals. This matter is before the Court on Defendant’s
Motion for Partial Summary Judgment, Doc. # 56. For the reasons discussed below, Defendant’s
Motion for Partial Summary Judgment is denied.
Undisputed Facts
In her Class Action Complaint, Plaintiff claims that Defendant has allowed
telecommunications companies, for a fee, to use the fiber optic cable installed in its easements for
general telecommunications. [See Second Am. Compl. Doc. # 46, ¶¶ 23, 32, 37, 51.] Plaintiff argues
that Defendant’s use of the fiber optic cable for general telecommunications exceeds the scope of

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Plaintiff has moved to certify the class. [See Mot. for Class Certification, Doc. # 69.] The
Court’s ruling on this motion is addressed in a separate order. [See Order on Class
Certification, Doc. # 94.]

the easements at issue, and that neither Plaintiff nor similarly situated individuals have been
compensated for this use. [Id.] Based on Defendant’s alleged activity outside the province of these
easements, Plaintiff asserts claims for unjust enrichment, trespass, injunction, and declaratory
judgment. [See id. at ¶¶ 78–104.]
In the Motion at issue, Defendant argues that Plaintiff’s unjust enrichment claim fails a as
a matter of law because “the parties’ rights and responsibilities in this case are governed . . . by
reference to the terms of the various express, written easements . . . .” [Mot. For Summ. J., Doc. #
56-1, at 3.]
Standard of Review
The court shall grant summary judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is
appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth
specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S.
317, 322 23 (1986).
If a movant asserts that a fact cannot be disputed, it must support that assertion either by
“citing to particular parts of materials in the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials;” or by “showing . . . that an
adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
Accordingly, to prevail on a motion for summary judgment, the movant must demonstrate
that: (1) there is no genuine issue as to any material fact; and (2) that he is entitled to judgment as

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a matter of law. As to the first of these determinations, a fact is deemed “material” if proof of its
existence or non-existence would affect disposition of the case under applicable law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence
offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In
determining whether a genuine issue has been raised, a court must construe all inferences and
ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc.,
369 U.S. 654, 655 (1962).
The existence of a mere scintilla of evidence in support of the non-movant’s position is
insufficient to withstand a summary judgment motion. Id. at 252. Likewise, conclusory allegations
or denials, without more, are insufficient to preclude the granting of the summary judgment motion.
Ross v. Commc’n Satellite Corp., 759 F.2d 355, 365 (4th Cir.1985). “Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”
Anderson, 477 U.S. at 248.
Discussion
In construing all inferences and ambiguities against Defendant, as it must, this Court cannot
say that Plaintiff fails to set forth an unjust enrichment claim as a matter of law.
When “a plaintiff has an adequate remedy at law, equitable relief” in the form of a claim for
unjust enrichment “is not normally in order.” Barrett v. Miller, 283 S.C. 262, 264, 321 S.E.2d 198,
199 (Ct. App. 1984) (emphasis added). Further, as Judge Cameron Currie recently held in Palmetto
Health Credit Union v. Open Solutions Inc., No. 3:08-cv-3848, 2010 WL 2710551 at *4 (D.S.C. July
7, 2010), recovery under a theory of unjust enrichment is available where an express contract does

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not govern the rights and responsibilities at issue.
Defendant relies almost exclusively on Judge Currie’s opinion in Palmetto Health Credit
Union to argue that because the written easement agreements cover the same subject matter as the
unjust enrichment claims – namely, the scope of the easements – the unjust enrichment claims must
fail. [Mot. For Summ. J., Doc. # 56-1, at 2–6.] This improperly categorizes Plaintiff’s argument.
Plaintiff’s actual argument is that because Defendant’s alleged use of the fiber optic cable at issue
is not covered at all by the express easements at issue, there is no express contract governing this
case. [See Second Am. Compl. Doc. # 46, ¶¶ 37, 42.] Thus, in addition to damages for trespass,
Plaintiff is entitled to recover the amount gained by Defendant at Plaintiff’s expense. See Ellis v.
Smith Grading & Paving, Inc., 294 S.C. 470, 473, 366 S.E.2d 12, 14 (Ct. App.1988) (“Unjust
enrichment is an equitable doctrine, akin to restitution, which permits the recovery of that amount
the defendant has been unjustly enriched at the expense of the plaintiff.”).
That Plaintiff’s unjust enrichment claim should go forward is supported by Palmetto Health
Credit Union, the very case on which Defendant extensively relies. As the court in that case noted,
“[a]lthough there can be no implied contract on a point fully covered by an express contract and in
direct conflict therewith, there may be an implied contract on a point not covered by an express
contract.” Palmetto Health Credit Union, No. 3:08-cv-3848, 2010 WL 2710551 at *4 (citing 66
Am.Jur.2d Restitution and Implied Contracts § 25 (2001)). The court also held that neither party in
the case “pointed to evidence of any benefit conferred on the other which was not conferred based
on the express contract.” Id.
Here, Plaintiff seeks damages for Defendant’s use of fiber optic cable for general
telecommunications. Assuming Plaintiff’s reading of the easements to be correct, general

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telecommunications is a point not covered by an express contract. See, e.g., Trevillyan v. APX Alarm
Sec. Sys., Inc., No. 2:10–1387, 2011 WL 11611, at *7, *9 (D.S.C. Jan. 3, 2011) (applying South
Carolina law and denying motion to dismiss unjust enrichment claim on grounds that express
contract governed conduct at issue, even though an actual breach of contract claim was alleged
covering the same conduct, because plaintiff was entitled to plead in the alternative). Particularly
telling here is that Plaintiff brought no claim for breach of the written easement.
Defendant, citing a South Carolina state court case, argues that “[i]t is well-settled that the
rights of an easement holder depend upon the interpretation of the grant in the easement,” Gressette
v. SCE&G, 370 S.C. 377, 382, 635 S.E.2d 538, 540 (2006).2 While true, this does not change the
proposition that when an easement holder’s actions exceed the authority granted by that easement,
or center around a point not covered by the express easement, a cause of action for unjust
enrichment may be available.3 See Palmetto Health Credit Union, No. 3:08-cv-3848, 2010 WL
2710551 at *4. This is evident in the South Carolina Supreme Court order cited by Defendant, which
actually reverses a grant of dismissal while noting that the plaintiffs brought, among other claims,
a cause of action for unjust enrichment. Id. at 378–79, 635 S.E.2d at 538–39..
Defendant also contends that there is no legal precedence to show that parties have ultimately

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Gressette involved a class action challenging a utility company’s conveyance of excess fiber
optic cable to third parties. Gressette, 370 S.C. at 378–79, 635 S.E.2d 538–39.

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Plaintiff has grouped the easements at issue in this case into various forms. It may very
well be that certain easement forms allow the challenged conduct. [See Order on Class Cert.,
Doc. # 94, at § II(A)(2).] Of course, in those instances, Plaintiff would have no claim against
Defendant. However, for purposes of this Motion, Defendant has not asked this Court to
determine whether, as a matter of law, any particular easement form would allow for general
telecommunications. Defendant has simply asked this Court to rule that, as a matter of law,
Plaintiff’s unjust enrichment claim summarily fails in total because the written easements
govern the conduct at issue. [See Mot. For Summ. J, Doc. # 56. At 5–6.]
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recovered for unjust enrichment in these types of easement cases. Even if Defendant is correct, at
this stage, the question is not whether Plaintiff may ultimately recover on unjust enrichment, or even
whether an unjust enrichment claim is meritorious. The question is simply whether an unjust
enrichment claim may legally move forward. See Fed. R. Civ. P. 56(a). Thus, believing all Plaintiff’s
evidence, and drawing all justifiable inferences in Plaintiff’s favor, this Court cannot say that
Plaintiff’s unjust enrichment claim fails as a matter of law. See Anderson, 477 U.S. at 255.
Defendant has therefore failed to meet its burden and the Motion at issue must be denied.
Conclusion
Based on the foregoing, it is ORDERED that Defendant’s Motion for Partial Summary
Judgment, Doc. # 56, is DENIED.
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
June 25, 2012

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