Equitable Gathering Equity, LLC et al v. Fountain Place, LLC
MEMORANDUM OPINION AND ORDER denying defendant Fountain Place, LLC's 188 , 190 MOTIONS for judgment as a matter of law, except insofar as the Count Four negligence and Count Five trespass claims are dismissed as time barred; and directing that this action is stricken from the docket. Signed by Judge John T. Copenhaver, Jr. on 3/15/2012. (cc: attys) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
EQT GATHERING EQUITY, LLC,
a Delaware limited liability company, and
EQT PRODUCTION COMPANY
a Pennsylvania corporation,
Civil Action No. 2:09-0069
FOUNTAIN PLACE, LLC,
MEMORANDUM OPINION AND ORDER
Pending are defendant Fountain Place, LLC’s (“Fountain
Place”) motions (1) for judgment as a matter of law, and (2) for
judgment as a matter of law as to Counts Three, Four, and Five of
the amended complaint based solely on the statute of limitations,
filed December 1, 2012.
The Subject Property and the Chain of Title
Much of the discussion in this section constitutes
undisputed factual background taken from the record and prior
rulings of the court.
Prior to 1944, Island Creek Coal Company (“Island
Creek”) was the owner in fee of the property in Logan County
which is the subject of this dispute (“the subject property”).
In an “Agreement of Lease” dated April 13, 1944 (“CCC lease”),
Island Creek leased to Columbian Carbon Company (“CCC”) 30,380
acres of oil and gas rights on parcels that included the subject
(Agd. Stip. of Facts ¶ 2 (Mar. 10, 2009); id., ex. B
at 1 (“CCC Lease at ---”)).
CCC was given broad rights to explore for, produce and
transport oil and gas on the subject property, “together with
adequate and appropriate rights of way and easements for such
(CCC Lease ¶¶ 2, 3).
This easement-creating language,
as a matter of law, gave rise to an obligation on the part of
Island Creek, and its successors under the CCC lease, to avoid
interfering with the nonpossessory easement rights granted to CCC
and its successors.
See, e.g., Newman v. Michel, 224 W. Va. 735,
740, 688 S.E.2d 610, 615 (2009) (stating that “‘[a]n easement
creates a nonpossessory right to enter and use land in the
possession of another and obligates the possessor not to
interfere with the uses authorized by the easement.’”) (quoting
Restatement (Third) of Property § 1.2(1) (2000)); Kell v.
Appalachian Power Co., 170 W. Va. 14, 17, 289 S.E.2d 450, 453
(1982)(“The grantor-owner of the land retains the right to make
any reasonable use of the land subject to the easement so long as
that use is not inconsistent with the rights of the grantee.”);
John W. Fisher, II, A Survey of the Law of Easements in West
Virginia, 112 W. Va. L. Rev. 637, 642 (2010).
The easement granted by the CCC lease was appurtenant
This is evidenced, in part, from the language
employed in the CCC lease:
This lease and all the terms, provisions and
covenants herein contained shall extend and inure to
and be binding upon and for the benefit of the
successors and assigns of the respective parties hereto
. . . .
(CCC Lease ¶ 22).
Irrespective of that continuing character,
however, the successors in interest to Island Creek and CCC were
explicitly bound to the easement grant in the chain of title.
On December 16, 1965, Island Creek sold to GeorgiaPacific Corporation (“Georgia-Pacific”) its surface rights to
See, e.g., Newman, 224 W. Va. at 742, 688 S.E.2d at 617
(2009) (“The main features of an easement appurtenant are that
there must be both a dominant and servient estate; the holder of
the easement must own the dominant estate; the benefits of the
easement must be realized by the owner of the dominant estate;
and these benefits must attach to possession of the dominant
estate and inhere to and pass with the transfer of the title to
the dominant estate.”); see also id. (“Many jurisdictions,
including this Court, have shown a strong constructional
preference for finding easements to be appurtenant rather than in
gross.”). Inasmuch as the easement in question is properly
characterized as appurtenant, it runs with the land.
most of the land it owned in Logan County, including the subject
property (“Georgia-Pacific Deed”).
The Georgia-Pacific Deed
provided that the conveyance was subject to “[t]he right, title
and interest of . . . [CCC] and its successor, Cities Service
Company, under . . . [the CCC Lease] . . . and [a] January 16,
1955 [lease] . . . .”
(Georgia-Pacific Deed ¶ 2).
On November 12, 1968, Columbian Fuel Corporation
(“CFC”), the successor in interest to CCC under the CCC Lease,
The rights of CCC and CFC under the CCC Lease were
ultimately transferred from a predecessor entity to plaintiff EQT
Production Company (“EPC”), a Pennsylvania corporation engaged in
the production and sale of natural gas.
EPC’s fellow plaintiff
in this action is EQT Gathering Equity, LLC (“EGE”), a Delaware
limited liability company with its principal place of business in
Fountain Place alleges, and plaintiffs concede,
that one of EPC’s predecessors in interest, in existence at least
between approximately 1997 through perhaps as early as 2001, was
an entity known as Eastern States Oil & Gas, Inc. (“Eastern”).
On December 20, 1996, Georgia-Pacific conveyed several
parcels of the subject property to Monterra Development
Corporation (“Monterra Development”).
The conveyance was made
subject to “[a]ll easements, rights of way . . . and other . . .
encumbrances of record” and “[p]rior . . . conveyances of mineral
rights or mineral leases of every kind and character.”
ex. D at 2 and I).
Eleven days later, on December 31, 1996,
Monterra Development sold the subject property to Monterra
Marketplace, with the “conveyance . . . made subject to existing
. . . private rights and easements . . . .”
(Id. ¶ 5; id., ex. E
On August 27, 1999, Monterra Development filed a
voluntary petition for relief under Chapter 11 of the Bankruptcy
On September 10, 1999, Monterra Marketplace did likewise.
On February 8, 2001, Monterra Marketplace, while still in
bankruptcy, conveyed the subject property to Fountain Place.
In re: Monterra Market Place, No. 2:99-bk-21651 (Bankr. S.D. W.
Va. Aug. 27, 1999).
Fountain Place has never alleged that it is
somehow free of the obligations found in the CCC Lease.
In paragraph 9 of the amended complaint, the following
[Plaintiffs have been conducting activities on the
subject property] pursuant to a certain lease dated
November 6, 1987, between Island Creek Coal Company, as
original lessor, and Cities Services Oil and Gas
Corporation, as original lessee and EPC’s predecessor
in interest (the “Lease”; said land covered by the
Lease is sometimes hereinafter referred to as the
“Leased Premises”). The Lease amended a certain lease
between Island Creek Coal Company and Columbian Carbon
Company, EPC’s predecessor in interest.
(Am. Compl. ¶ 9).
In its answer, Fountain Place responds to the
allegation as follows:
With respect to the allegations contained in Paragraph
9 of Plaintiffs’ complaint, said Defendant admits there
is a memorandum giving notice of a lease that is
recorded in the Office of the Clerk of the County
Commission of Logan County, in Lease Book 36, at Page
205. The contents of that lease is unknown to this
Defendant, but Defendant does allege that all rights
under said lease are subject to the provisions of that
certain lease dated April 13, 1944, between Island
Creek Coal Company and Columbia Carbon Company which
said Lease is recorded in the aforesaid Clerk’s office
in Lease Book 25, at page 253.
(Ans. at ¶ 5).
Inasmuch as the parties have not indicated that
the referenced amendments have any effect on the CCC lease as it
relates to this action, the court deems the allegation in the
amended complaint to be immaterial.
Background of the Parties’ Dispute
EPC owns, and EGE operates, the DC-4 pipeline
(“pipeline” or “DC-4"), a six-inch gas transmission facility that
crosses over the subject
The evidence at trial,
viewed in the light most favorable to plaintiffs, revealed that
both Monterra Marketplace and Fountain Place deposited fill over
the pipeline without plaintiffs’ permission.
respecting Monterra Marketplace, Ricky Dalton testified that, in
the spring of 1998, Monterra Marketplace deposited 25 to 30 feet
of fill material over the pipeline.
(Tr. at 121).
Respecting Fountain Place, David Jewell, a
superintendent for plaintiffs who worked in their pipeline
integrity department, stated as follows concerning an event that
occurred on the subject property in November 2001:
During Thanksgiving, most of my folks went hunting. And
one of my operators notified me that there was a dozer
working on top of the line, and I went to the site to
see what was going on, and the dozer was pushing dirt
covering it. And I had a talk with him and asked him
not to do that. I tried to explain the hazards and the
dangers of that.
(Tr. at 47 (emphasis added); see also id. at 61 (witness adopting
counsel’s characterization and reiterating that there was no
“doubt in . . . [his]
mind that they were working, pushing dirt
over that pipeline . . . .”)).
As is indicated by Mr. Jewell’s testimony, and the
record at multiple other places (see, e.g., Tr. at 6, 29, 42-43,
191, 193), the fill placement appears to have been deemed by
plaintiffs to create an unsafe condition, affecting both the
integrity of DC-4 and those persons and properties in its
At least one defense witness, formerly employed by
both Monterra Marketplace and
Fountain Place, agreed.
e.g., Tr. at 144 (question on cross examination to Ricky Dalton
asking if he knew “it was unsafe to work around an active
pipeline” and his response being “[y]es, sir.”).
of negotiations between plaintiffs and Fountain Place attempting
to agree upon terms governing relocation of the pipeline, EGE
unilaterally moved the facility to a safer location in 2008 at a
cost of $158,131.80.2
On January 26, 2009, plaintiffs instituted this action.
On April 15, 2011, they filed, as noted earlier, an amended
Counts One and Two involve a pipeline different from
Those two claims, along with Fountain Place’s
counterclaim, were fully adjudicated by a March 5, 2010,
memorandum opinion and order.3
The parties at trial stipulated to this amount as the
judgment to which plaintiffs would be entitled, with interest
running from the date of the judgment, if Fountain Place was
found liable on any one or more of Counts Three, Four, and Five.
In a March 5, 2010, memorandum opinion and order, the court
dismissed the counterclaim, dismissed Count One as moot, and
granted plaintiff’s judgment as a matter of law respecting the
declaratory relief sought in Count Two. See EQT Gathering
Equity, LLC v. Fountain Place, LLC, No. 2:09-0069, slip op.
(S.D. W. Va. Mar. 5, 2010). Count Two involved another
pipeline located elsewhere on the property, namely, BR-886/1875.
Plaintiffs asserted that Fountain Place engaged in activities
requiring relocation of that pipeline as well, demanding $45,000
to bury or relocate the facility. The March 5, 2010, memorandum
opinion directed that Fountain Place pay for the burial or
relocation work associated with BR-886/1875.
Count Three alleges that Fountain Place, through the
alleged fill placement, “altered the status quo of the DC-4
Pipeline . . . .”
(Compl. ¶ 38).
Plaintiffs assert that this
alleged status quo change, along with Fountain Place benefitting
from it by not having to incur the relocation expense, gives rise
to a right of reimbursement under Quintain Development, LLC v.
Columbia Natural Resources, Inc., 210 W. Va. 128, 556 S.E.2d 95
(2001), and its progeny.
Counts Four and Five allege tort claims
for negligence and trespass respectively.
On November 15, 2011,
the court entered the proposed integrated pretrial order, which
essentially tracks Counts Three, Four, and Five.
On November 15, 2011, trial commenced.
On November 17,
2011, the jury returned its answers to the agreed special
interrogatories as follows:
Did Monterra Development or Monterra Marketplace, or
someone acting on the behalf and at the direction of
either of them, place dirt over the DC-4 pipeline?
If you answered "YES" to question 1 above, what is
the last date that the placement of dirt by either
of the Monterra entities occurred AND the date EQT
knew, or by the exercise of reasonable diligence
should have known, of that placement?
DATE OF DIRT PLACEMENT
DATE EQT KNEW, OR BY
SHOULD HAVE KNOWN,
OF THE PLACEMENT
Did Fountain Place, or someone acting on its
behalf and at its direction, place dirt over the
If you answered "YES" to question 2 above, what is the
last date that the placement of dirt by Fountain Place
occurred AND the date EQT knew, or by the exercise of
reasonable diligence should have known, of that
November 21, 2001
DATE OF DIRT PLACEMENT
November 21, 2001
DATE EQT KNEW, OR BY
SHOULD HAVE KNOWN,
OF THE PLACEMENT
* * *
Do you find by a preponderance of the evidence that
Fountain Place negligently placed dirt over the
pipeline and thereby proximately caused the damages
claimed by EQT?
Do you find by a preponderance of the evidence that
Fountain Place trespassed upon EQT's easement by
placing dirt over the pipeline and thereby proximately
caused the damages claimed by EQT?
Do you find by a preponderance of the evidence that
Fountain Place placed dirt over the pipeline and
thereby disturbed the status quo to the extent that it
became reasonably necessary that EQT relocate its
(Spec. Interrogs. at 1-2).
Fountain Place now moves for judgment as a matter of
law in two separate filings.
The first motion for judgment as a
matter of law asserts that (1) plaintiffs’ proof at trial only
established that Fountain Place was “working over” DC-4 and, “at
best, [placed] a de minimis” amount of fill material thereon, (2)
plaintiffs failed to present expert testimony that the fill
material “created a risk of serious harm to the pipeline's
integrity causing it to be relocated,” (3) plaintiffs failed to
demonstrate that they relocated the pipeline due to either an
express or implicit request from Fountain Place, and, (4)
inasmuch as the three claims are governed by a two-year
limitations period, relief is barred based upon the jury finding
that plaintiffs knew, or by reasonable diligence should have
known, of Fountain Place’s fill placement by November 21, 2001.
(Def.’s Mot. for Judg. at 1-2).
The second motion for judgment
as a matter of law merely elaborates upon the limitations
Federal Rule of Civil Procedure 50(b) provides as
If the court does not grant a motion for judgment
as a matter of law made under Rule 50(a), the court is
considered to have submitted the action to the jury
subject to the court's later deciding the legal
questions raised by the motion. No later than 28 days
after the entry of judgment -- or if the motion
addresses a jury issue not decided by a verdict, no
later than 28 days after the jury was discharged -- the
movant may file a renewed motion for judgment as a
matter of law . . . . In ruling on the renewed motion,
the court may:
(1) allow judgment on the verdict, if the
jury returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter
(Fed. R. Civ. P. 50(b)).
The applicable federal standard governing a Rule 50(b)
motion is summarized as follows:
Under Fed.R.Civ.P. 50(b), the question is whether a
jury, viewing the evidence in the light most favorable
to [the nonmovant], “could have properly reached the
conclusion reached by this jury.” If reasonable minds
could differ about the result in this case, we must
affirm the jury's verdict. . . .
Bryant v. Aiken Regional Medical Centers Inc., 333 F.3d 536, 543
(4th Cir. 2003) (citations omitted); International Ground Transp.
v. Mayor And City Council Of Ocean City, 475 F.3d 214, 218-19
(4th Cir. 2007)(“When a jury verdict has been returned, judgment
as a matter of law may be granted only if, viewing the evidence
in a light most favorable to the non-moving party (and in support
of the jury's verdict) and drawing every legitimate inference in
that party's favor, the only conclusion a reasonable jury could
have reached is one in favor of the moving party.”); Tools USA
and Equipment Co. v. Champ Frame Straightening Eqpt. Inc., 87
F.3d 654, 656-57 (4th Cir. 1996) (citations omitted) (“Champ
argues that the district judge erred in denying its motions for
judgment as a matter of law with respect to both liability and
A court may only grant a motion for judgment as a
matter of law (formerly j.n.o.v.) if, viewing the evidence in the
light most favorable to the non-moving party and drawing every
legitimate inference in that party's favor, the court
“determine[s] that the only conclusion a reasonable trier of fact
could draw from the evidence is in favor of the moving party.”);
Hetzel v. County of Prince William, 89 F.3d 169, 171 (4th Cir.
The court first addresses Fountain Place’s late-rising
See EQT Gathering Equity, LLC v. Fountain
Place, LLC, No. 2:09-0069, 2011 WL 5419452, at *1 (S.D. W. Va.
Nov. 9, 2011) (noting that during the September 9, 2011, pretrial
conference the court discussed with counsel “the recent
invocation of statute of limitations and laches defenses by
defendant Fountain Place, LLC . . . .”).
At the time of the
pretrial conference, and until the trial of this action, it was
essentially assumed that, at the least, plaintiffs’ two tort
claims for trespass and negligence were subject to the two-year
limitations period found in West Virginia Code section 55-212(a).
Id. at *2 (“The . . . limitation provision for tortious
damage to property is West Virginia Code § 55–2–12(a).”).
Despite the two-year limitations provision, plaintiffs
believed at the time of the pretrial conference that they might
properly avail themselves of the continuing tort exception.
(“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.”).
In the November 9, 2011, memorandum opinion and order,
the court concluded that (1) the accrual date for plaintiffs’
claims was fact bound, and (2) plaintiffs could not rely upon the
continuing tort exception to the limitations period otherwise
applicable to their claims for negligence and trespass.4
This ruling is now coupled with a jury finding
Special interrogatory 2A reflects that, by
November 21, 2001, plaintiffs knew or in the exercise of
reasonable diligence should have known, of the fill placement by
Inasmuch as plaintiffs instituted this action on
January 26, 2009, their trespass and negligence claims are time
It is, accordingly, ORDERED that the Fountain Place’s
motions for judgment as a matter of law be, and they hereby are,
granted to the extent that they request dismissal of the Count
The court declined to address Fountain Place’s laches
defense at that time. The Supreme Court of Appeals of West
Virginia 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. Fountain Place has demonstrated neither requirement.
Four negligence and Count Five trespass claims based upon
expiration of the two-year limitations period governing those
tort causes of action.
That adjudication leaves for consideration only the
Count Three status-quo claim.
Fountain Place asserts that the
claim is subject to the same two-year limitations period
governing the negligence and trespass causes of action.5
Plaintiffs, for the first time at trial, and in their posttrial
briefing, rely upon the 10-year limitation period found in West
Virginia Code section 55-2-6.
Section 55-2-6 states materially
Every action to recover money, which is founded upon .
. . any contract . . . shall be brought within the
following number of years next after the right to bring
the same shall have accrued, that is to say: . . . . if
it be upon any other contract in writing under seal,
within ten years; if it be upon an award, or upon a
contract in writing, signed by the party to be charged
thereby, or by his agent, but not under seal, within
ten years . . . .
W. Va. Code § 55-2-6.
Fountain Place contends specifically as follows
respecting the limitations defense:
The so called "status quo" claim being derived from the
alleged negligent act and/or trespass act of fill dirt
being placed on the pipeline is likewise subject to the
usual date of injury accrual rule for calculating
It is noted that the jury returned a verdict in Fountain
Place’s favor respecting the negligence claim.
whether Plaintiffs claims were filed within the
applicable two year period.
(Memo. in Supp. at 2).
No authority is cited for that
The decision in Quintain is the starting point for
divining the applicable limitations period.
At issue in Quintain was the relocation of a 16-inch
natural gas pipeline owned by Columbia Natural Resources, Inc.
The pipeline crossed certain parcels through easements
obtained by CNR's predecessor in interest.
The relevant language
creating the easements provided, in part, as follows:
“It is expressly understood and agreed that the rights
and privileges hereby granted shall not interfere with
the proper and reasonable use of said premises for the
mining and removal of coal and other minerals therefrom
or the cutting and removing of timber from said
premises.” . . .
“The said grantors, their heirs or assigns, to
fully use and enjoy the said premises, except for the
purposes hereinbefore granted to the said United Fuel
Gas Company, a corporation, which hereby agrees to pay
any damages which may arise in the future from the
maintaining, operating and removing of said pipe line .
. . .”
Id. at 131, 556 S.E.2d at 98 (quoted source omitted).
Quintain later obtained certain leasing rights to mine
coal in the area.
It demanded that CNR move the pipeline at
CNR’s cost inasmuch as the conveyance was interfering with
Quintain’s planned mining operations.
CNR was willing to move
the pipe line but demanded that Quintain pay all associated
As in this case, there is no question that the status-quo
claim found in Quintain was based upon the breach of a written
instrument creating certain easements.
This excerpt from
Quintain illustrates the point:
We have determined . . . that the language of the right
of way deeds over the Vinson and Baach tracts do
require CNR to relocate its pipeline to facilitate
mining. . . . We have also determined in this opinion
that, under the Vinson and Baach deeds, CNR was not
required to bear the financial burden of relocating its
pipeline from those tracts. Consequently, Quintain
cannot show that CNR exceeded the scope of the Vinson
or Baach easements merely by its refusal to pay for the
Id. at 137, 556 S.E.2d at 104 (emphasis added); see also id. at
132, 556 S.E.2d at 99 (“The circuit court concluded that certain
language contained in the two deeds granting easements over the
Vinson and Baach tracts clearly established that the parties to
the two deeds intended the coal estate to be the dominant estate.
Based upon this conclusion, the circuit court granted the
injunction directing CNR to relocate its pipeline at its own
It is thus apparent that the obligations and duties
imposed in Quintain arose not from tort but rather contract.
This court has likewise understood the contractual-based nature
of the Quintain status quo claim since the earliest points of
See, e.g., EQT Gathering Equity, LLC v.
Fountain Place, LLC, No. 2:09-0069, 2010 WL 816824, at *9 (S.D.
W. Va. Mar. 5, 2010) (discussing at length the CCC Lease language
in the course of adjudicating the Count Two Quintain claim
relating to BR-886/1875 earlier in this case).
It is thus apparent that the status quo claim is
founded upon a breach of the CCC lease, which permits plaintiffs
to locate DC-4 on the subject property and maintain it in a safe
and workmanlike manner.
That type of breach, as opposed to one
based in tort, is a significant consideration in light of longsettled West Virginia law.
For example, in Headley v.
Hoopengarner, 60 W. Va. 626, 55 S.E. 744 (1906), it is stated as
This is the ordinary oil and gas lease, with a
reversion to the grantors, for the purpose of mining
and operating for oil and gas, laying pipe lines,
building tanks, stations, and structures thereon, and,
in consideration thereof, to pay as royalty a
one-eighth part of all the oil produced and saved from
the leased premises. While we have some cases which
may be construed to hold that the ordinary oil lease,
investing the lessee with the right to remove all the
oil in place in the premises in consideration of a
certain stipulated royalty, is, in legal effect, a sale
of a portion of the land, yet these cases do not
conform to many others, which treat such contracts only
as leases, and a conveyance for a term of years, and
not to pass an estate in fee. We do not think the
lease in question can be so construed as to be other
than a contract which passes only an estate for years.
“A lease is a contract for the possession and profits
of lands and tenements on the one side, and the
recompense or rents on the other, or, in other words, a
conveyance to a person for life, years, or at will, in
consideration of a rent or other recompense.” 18 Am. &
Eng. Ency. Law (2d Ed.) 597.
Id. at 635, 55 S.E. at 748 (emphasis added); Harvey Coal & Coke
Co. v. Dillon, 59 W.Va. 605, 611, 53 S.E. 928, 931 (1905)(‘“A
lease is a contract for the possession and profits of lands and
tenements on the one side and the recompense or rents on the
other, or in other words, a conveyance to a person for life,
years or at will, in consideration of a rent, or other
recompense.”) (emphasis added)(citation omitted); see also United
States v. Gratiot, 39 U.S. 526, 538 (1840) (“The legal
understanding of a lease for years is, a contract for the
possession and profits of land for a determinate period, with the
recompense of rent. The contract in question is strictly within
this definition.”) (emphasis added).
Indeed, the supreme court of appeals has specifically
concluded, in at least one gas lease case, that section 55-2-6
governs the matter of a breach.
See Sansom v. Sansom, 148 W. Va.
603, 606-07, 137 S.E.2d 1, 4 (1964) (in an action by two lessors
against a third lessor for amounts received under gas lease by
third lessor as lessors' agent, supreme court of appeals citing
section 55-2-6 and noting, “There was no contract in writing
between the plaintiffs and the defendant in order for the ten
year statute of limitations to be applicable.
The action must be
based on a contract in writing and the obligation or liability
must grow immediately out of the written instrument, and not
Based upon the foregoing, the court concludes that the
Count Three status-quo claim is based upon a breach of the signed
and written CCC lease.
The cause of action is thus properly
construed as sounding in contract.
As such, the 10-year period
found in section 55-2-6 governs plaintiffs’ status quo claim.
Inasmuch as this action was filed within 10 years of the November
21, 2001, accrual date found by the jury, the status-quo claim is
Other Post Trial Contentions
It is next asserted that plaintiffs proved only that
Fountain Place was “working over” DC-4 and, “at best, [placed] a
de minimis” amount of fill material upon it.
(Mot. for Jgt. at
Sufficient evidence and the verdict are otherwise.
noted, David Jewell unequivocally stated that he personally
witnessed Fountain Place agents using a “dozer . . . pushing dirt
covering” the pipeline.
(Tr. at 47).
He also “tried to explain
the hazards and the dangers of that,” some indication respecting
the volume of dirt being pushed and the nature of the work being
Id.; see also id. at 61 (witness adopting counsel’s
characterization and reiterating that there was no “doubt in . .
mind that they were working, pushing dirt over that
pipeline . . . .”)).
This evidence, and the legitimate inferences to be
drawn therefrom, plainly support the jury’s response to special
interrogatory 5, namely, that “Fountain Place placed dirt over
the pipeline and thereby disturbed the status quo to the extent
that it became reasonably necessary that EQT relocate its
(Spec. Interrogs. at 2 (emphasis added)).
in the light most favorable to plaintiffs, the jury could
properly have reached its verdict as to the status-quo claim in
Fountain Place next contends that plaintiffs failed to
present expert testimony that the fill material “created a risk
of serious harm to the pipeline's integrity . . . .” (Def.’s Mot.
First, it is noteworthy that Fountain Place did not
object at trial to testimony and documentary evidence received
from plaintiffs on the point.
For example, Joe Gilmore testified
that the burial of noncoated pipe, such as the apparently bare
DC-4, results in speedier corrosion.
(Tr. at 6).
cross examination, Ricky Dalton conceded that it was unsafe to
work around an active gas pipeline.
Second, however, Fountain Place itself sponsored the
introduction of this same type of evidence.
exhibit 2 is a November 24, 2001, email from David Jewell to Joe
It states as follows:
I have been attempting to keep them from damaging our
facilities and I have attempted to warn them of the
safety factors involved in working on top of our P/L.
A couple of weeks ago I requested a letter of their
intentions and an acknowledgment of the safety issues.
. . .
Our well operator discovered them working on top of the
line again on Wed.
(Def.’s Ex. 2 at 1 (emphasis added).
Similarly, Fountain Place
secured the admission into evidence of exhibit 7, a September 24,
2007, letter from EGE Vice President and General Counsel David K.
Dewey, to Fountain Place’s principals, stating that “Fountain
Place’s encroachment over this natural gas pipeline is decidedly
inadvisable from a safety standpoint.”
(Def.’s Ex. 7 at 1).
Fountain Place’s exhibit 8, which is additional correspondence
between the aforementioned individuals dated February 6, 2008,
states that plaintiffs have begun relocating the pipeline “[d]ue
to the potential for safety issues created by Fountain Place’s
placement of substantial overburden on the line . . . .”
Ex. 8 at 1).
This and other evidence in the record amply supports
plaintiffs’ view that the relocation of DC-4 was necessary.
court would not, in any event, have permitted expert evidence
under the circumstances.
In Scott v. Sears, Roebuck & Co., 789
F.2d 1052 (4th Cir. 1986), our court of appeals observed as
Rule 702 makes inadmissible expert testimony as to a
matter which obviously is within the common knowledge
of jurors because such testimony, almost by definition,
can be of no assistance. . . . [S]o long as the jury,
by virtue of common experience, is capable of resolving
a factual issue, it will not be prevented from doing so
because of the absence of expert testimony.
Id. at 1055 (citing Salem v. United States Lines Co., 370 U.S.
31, 35 (1962)); 29 Charles A. Wright et al., Federal Practice &
Proc. § 6264 (1st ed. )(“[E]xpert testimony does not assist where
the jury has no need for an opinion because it easily can be
derived from common sense, common experience, the jury's own
perceptions, or simple logic.”).
The jury did not require the assistance of an expert
witness in order to understand that burying an active gas
pipeline under 30 feet of fill material, and then running
bulldozers over top of it, constituted a danger to the integrity
of the pipeline and those in its vicinity.
It was capable of
using its common sense, experience, and logic to appreciate, and
understand the significance of, such evidence.
The court concludes that, with the evidence and
legitimate inferences drawn therefrom viewed in the light most
favorable to plaintiffs, the jury could properly have found that
pipeline safety and integrity issues required the 2008 relocation
This same observation aids the disposition of Fountain
Place’s final contention, namely, that plaintiffs failed to
demonstrate that they relocated the pipeline due to either an
express or implicit request from Fountain Place. To the extent
such a request is necessary to impose liability on a status-quo
claim, the finding that Fountain Place deposited fill material
over DC-4, hence altering the status quo in a manner requiring
pipeline relocation, constitutes an implicit request for
relocation sufficient to support imposition of liability as to
Count Three. Fountain Place’s assertion thus lacks merit.
Based upon the foregoing discussion, it is ORDERED as
That defendant’s motions for judgment as a matter of
law be, and they hereby are, denied except insofar as
the Count Four negligence and Count Five trespass
claims be, and they hereby are, dismissed as time
That this action be, and it hereby is, stricken from
The Clerk is directed to forward copies of this written
opinion and order to all counsel of record.
March 15, 2012
John T. Copenhaver, Jr.
United States District Judge
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