Equitable Gathering Equity, LLC et al v. Fountain Place, LLC

Filing 176

MEMORANDUM OPINION AND ORDER directing that plaintiffs be precluded from relying upon the continuing tort exception. Signed by Judge John T. Copenhaver, Jr. on 11/9/2011. (cc: attys) (tmh) (Modified "exemption" to "exception" to conform to filed document on 11/9/2011) (skh).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
EQT GATHERING EQUITY, LLC,
a Delaware limited liability company, and
EQT PRODUCTION COMPANY
a Pennsylvania corporation,
Plaintiffs
v.

Civil Action No. 2:09-0069

FOUNTAIN PLACE, LLC,
Defendant.
MEMORANDUM OPINION AND ORDER

On September 6, 2011, the court resolved the parties’
motions for summary judgment.

On September 9, 2011, counsel

appeared for the pretrial conference.

At that time the court

noted the recent invocation of statute of limitations and laches
defenses by defendant Fountain Place, LLC (“Fountain Place”).
Counsel were given leave to brief the matter.

The final

submission on the issue was received October 14, 2011.

I.

The court does not revisit the factual or legal
discussions found in the memoranda opinions and orders previously
entered.

A familiarity with their contents is assumed and

further detail is provided herein only as context warrants.

Fountain Place contends that it placed no fill dirt
over the pipeline in question at any time after acquiring the
subject property on February 8, 2001.

It additionally asserts

that its predecessor in title, Monterra Market Place, Inc.,
through a related entity, Monterra Development Corporation,
ceased all construction activities on the subject property on or
before January 19, 1999.

It thus asserts that plaintiffs’ claims

in this action, which were not instituted until January 26, 2009,
are barred by the applicable statute of limitations.

Plaintiffs assert that the limitations period has not
expired.

They contend that the torts in question, which are

claims for negligence and trespass, are of a continuing nature
and the limitations period has not accrued.

(See Resp. Br. at 3

(“Fountain Place had a duty to remove/remedy the trespass and
interference with EQT’s pipeline and related easement.

Fountain

Place’s continued breach of this duty (failure to remove the
trespass and interference with the pipeline and easement) is ‘a
continuing breach of duty causing a continuing or repeated injury
[and] the statute of limitations does not begin to run until the
date of the last injury.’”) (quoting Graham v. Beverage, 211 W.
Va. 466, 476, 566 S.E.2d 603, 613 (2002)).

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On September 23, 2011, the court directed counsel to
meet and confer in an attempt to reach a stipulation respecting
(1) the last date by which Monterra Market Place, Inc., or
Monterra Development Corporation might have placed fill material
on the pipeline, and (b) the last date by which Fountain Place
might have done likewise.
agreement.

The parties were unable to reach

Their respective positions appear below:
Last Fill Date
by Monterras

Party
Plaintiffs

February 8, 2001

Fountain Place

January 19, 1999

Last Fill Date
by Fountain Place
May 25, 20071
No Fill Placed

Having reviewed the record, the court concludes that
the accrual date is fact bound.

This precludes judgment as a

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This date is expressed with some uncertainty.
explanation concerning it is as follows:

Plaintiffs

EQT believes that Fountain Place put some fill material
over the subject pipeline between February 8, 2001 and
November 26, 2005. EQT further believes that Fountain
Place put additional fill material over the subject
pipeline after November 26, 2005. EQT bases its belief
in this regard on the testimony of David Jewell.
Although EQT cannot offer any definitive last date that
Fountain Place, or someone acting on its behalf, might
have place[d] fill material over the subject pipeline,
EQT believes that it might have been on or before May
25, 2007. However, because the pipeline was not
relocated until January, 2008, EQT cannot say for
certain whether any additional fill material was placed
over the subject pipeline by Fountain Place, or someone
acting on its behalf, up until the date of relocation.
(Jt. Stip. at 2).
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matter of law on the limitations defense.

The matter may be

presented to the jury with appropriate proposed instructions and
interrogatories.

The parties briefing raises one subsidiary legal issue,
however, that is capable of resolution now.

It is plaintiffs’

contention that the limitations period has either not accrued at
all or did not accrue until 2008 when the pipeline was relocated.
The view is based upon plaintiffs’ theory that the failure to
remove the trespass, presumably thousands of cubic yards of fill
material, constitutes a continuing tort within the exception to
the usual limitation accrual rules.

II.

The applicable limitation provision for tortious damage
to property is West Virginia Code § 55-2-12(a).

Syl. pt. 1,

Family Savings and Loan, Inc. v. Ciccarello, 157 W. Va. 983, 207
S.E.2d 157 (1974); State ex rel. Ashworth v. Road Comm’n, 147 W.
Va. 430, 128 S.E.2d 471 (1962); Powderidge Unit Owners Ass'n v.
Highland, 196 W. Va. 692, 704, 474 S.E.2d 872, 884 (1996).

The

statute prescribes a two-year period within which to institute an
action after accrual of the right to bring it.

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W. Va. Code § 55-

2-12(a).

It is generally the case that a tort claim accrues when

the injury occurs.

But exceptions to the rule abound.

See Graham v.

Beverage, 211 W. Va. 466, 476, 566 S.E.2d 603, 613 (2002)
(stating, “[T]here are numerous exceptions to this general
rule.”).

One settled exception is for those torts of a

continuing nature.

This carve out, however, is often

misconstrued by injured parties as applying more broadly than
intended.

The nature of the exception is illustrated by

comparing two West Virginia cases.

The first is Handley v. Town of Shinnston, 169 W. Va.
617, 289 S.E.2d 201 (1982).

In Handley, the plaintiffs’ home was

damaged by a leaking water line.

The Town of Shinnston had

installed the line on the property prior to plaintiffs’ purchase.
Plaintiffs noticed the leak in 1972 and alerted the town.

The

leak continued till 1976, when the line broke and caused a breach
in plaintiffs’ yard.

Plaintiffs complained to the town again.

The town repaired the breach but the line continued leaking until
its removal in 1978.

The breach expanded and slipped thereafter,

which caused a large hole to develop in plaintiffs’ yard.
foundation shifted as well.

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The

In 1979, plaintiffs instituted an action against the
town arising from the damage to their yard.
dismissed the action on limitations grounds.

The circuit court
The Supreme Court

of Appeals of West Virginia reversed, observing as follows:
In this case it is clear that the damage did not
occur all at once but increased as time progressed;
each injury being a new wrong. “[W]here a tort involves
a continuing or repeated injury, the cause of action
accrues at, and limitations begin to run from the date
of the last injury, or when the tortious overt acts
cease.”
Donald Handley's deposition indicates that the
damage to the property continued even after the suit
was filed. If the tortious act in this case did indeed
cease, it was not until 1978, when the leaking
waterline was removed from the appellants' property.
Handley, 169 W. Va. at 619, 289 S.E.2d at 202 (emphasis added)
(citations omitted).

In contrast to the circumstances in Handley are those
in Hall's Park Motel, Inc. v. Rover Construction, Inc., 194 W.
Va. 309, 460 S.E.2d 444 (1995).

In 1981, certain private and

public entities excavated a pit to serve as a sewage lift
station.

The pit was next to an adjoining parcel, on which sat

Hall’s Park Motel.

The motel was damaged in 1981 when land near

and beneath it started to slip and subside.

Still in 1981, the

motel owners filed an informal, $40,000 claim for damages which
was turned over to the alleged tortfeasors’ insurer.

No further

action was taken by the motel’s owners until 1991, when they

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instituted a civil action.

The circuit court dismissed the case

as time barred.

The motel’s owners appealed, asserting that the
property damage was continuing in nature and within the
applicable limitations period.

The supreme court of appeals

affirmed the dismissal, stating as follows:
In the present case, it is clear that Hall's Park
Motel, Inc., is complaining about the discrete and
completed act of . . . [one of the tortfeasors] in
constructing the lift station in question. The
complaint says: “As a direct and approximate [sic]
result of the negligent, careless and reckless
construction by the defendants, the plaintiff's motel
and real property was severely damaged . . . . ” A fair
reading of the complaint and the other documents in the
case shows that the action, in essence, is founded on a
discrete and completed act of negligent commission, not
on a continuing negligent act of omission, as was the
case in the Town of Shinnston case.
Hall’s Park, 194 W.Va. at 313, 460 S.E.2d at 314 (emphasis
added).
To the extent that the differences between the cases
are not evident, the decision in Ricottilli v. Summersville
Memorial Hospital, 188 W.Va. 674, 425 S.E.2d 629 (1992), distills
the matter to its essence:
[T]he concept of a continuing tort requires a showing
of repetitious, wrongful conduct. Moreover, as this
Court explained . . . , a wrongful act with
consequential continuing damages is not a continuing
tort.
Ricottilli, 188 W. Va. at 677, 425 S.E.2d at 632.
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With respect to plaintiffs’ negligence claim, the
breach of duty, if any, by either Fountain Place or its
predecessor in title occurred at the time the fill was placed.
No further duty or injury arose following that date.

The breach

occurred, and the injury was complete, when the filling ceased.
It was at that time that the wrongful act occurred and plaintiffs
were charged with pursuing their rights within two years
thereafter.
law.

This view is supported by West Virginia negligence

See Roberts v. West Virginia American Water Co., 221 W. Va.

373, 378, 655 S.E.2d 119, 124 (2007) (“Appellant is claiming
damages for the single, discrete act of constructing and
installing the waterline and not for any continuing malfunction
of the installation or further misconduct of Appellees.

Thus the

last tortuous act or omission alleged by Appellant to have been
committed by any Appellee was in 1999 when the waterline
installation was completed.”).
trespass claim.

The same is true respecting the

See, e.g., Miller v. Lambert, 196 W. Va. 24, 30,

467 S.E.2d 165, 171 (1995)(dealing with separate continuing
trespasses in different years and noting, “We have stated that
the continuing tort theory is inapposite where the plaintiff
claims fixed acts by the defendant which do not involve a
continuing wrong.

In the present case, the trespass occurred

first in 1983 and subsequently in 1986.
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Even where a tort

involves a continuing or repeated injury, the cause of action
accrues at the date of the last injury.”).

Based upon the foregoing discussion, the court
concludes that plaintiffs’ may not rely upon the continuing tort
exception.

The usual date-of-injury accrual rule will apply for

purposes of calculating whether plaintiffs’ claims were filed
within the applicable two-year period.2

III.

Based upon the foregoing, it is ORDERED that plaintiffs
be, and they hereby are, precluded from relying upon the
continuing tort exception.

2

The court does not at this time address the laches defense.
The supreme court of appeals has observed that “laches is a delay
in the assertion of a known right which works to the disadvantage
of another, or such delay as will warrant the presumption that
the party has waived his right.” Grose v. Grose, 222 W. Va. 722,
728, 671 S.E.2d 727, 733 (2008)(internal quotation marks and
citations omitted). The proponent of the defense must
demonstrate a “lack of diligence by the party causing the delay
and prejudice to the party asserting it.” Id. The matter is
better determined following development of the entire evidentiary
record at trial. It may be that the court will consider
application of the equitable defense, if necessary, after
receiving the jury’s verdict.
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The Clerk is directed to forward copies of this written
opinion and order to all counsel of record.
ENTER:

November 9, 2011

John T. Copenhaver, Jr.
United States District Judge

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