Lawson Heirs Incorporated v. Skyway Towers, LLC et al
Filing
105
MEMORANDUM OPINION AND ORDER granting 72 MOTION by Skyway Towers, LLC for summary judgment on the issue of punitive damages. Signed by Judge John T. Copenhaver, Jr. on 7/11/2018. (cc: counsel of record; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
LAWSON HEIRS INCORPORATED,
a Virginia corporation
Plaintiff,
v.
Civil Action No. 2:17-cv-2198
SKYWAY TOWERS, LLC, a
Delaware limited liability
Company, and DELORSE FRY FARLEY,
and HOWARD LEE FARLEY JR.,
husband and wife,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is the motion for summary judgment on the
issue of punitive damages sought herein by plaintiff against
defendant Skyway Towers, LLC (“Skyway”), which motion was filed
by Skyway on May 21, 2018.
I.
Factual and Procedural Background
This case arises out of construction of a cellular
communications tower by Skyway on a plot of land that plaintiff,
Lawson Heirs Incorporated (“Lawson”), alleges is at least
partially owned by Lawson and partially owned by other
defendants Howard Lee Farley, Jr. and Delorse Fry Farley
(together, “Farley defendants”).
Compl. ¶¶ 5-10.
1
Lawson owns property adjacent to property owned by the
Farley defendants.
See Email LH 0318 Ex. H Pl.’s. Resp. Def.’s
Mot. Summ. J. (“Pl.’s Resp.”).
In 2015, Defendant Skyway was
seeking a site to build a cellular communications tower for use
by Verizon Wireless.
See Email LH 0252 Ex. 1 Def.’s Mot. Summ.
J. (“Def.’s Mot.”); Email LH 0261 Ex. 2 Def.’s Mot.; McMillen
Dep. 16. Ex. 11 Def.’s Mot.; Def.’s Mem. Supp. Mot. Summ. J. 2
(“Def.’s Mem.”).
One of the potential build sites was located
solely on the Lawson property, and a second was seemingly
located on the Farley property.
Email LH 0261 Ex. 2 Def.’s
Mot.; see Email LH 0252 Ex. 1 Def.’s Mot.
In November of 2015,
the site that was ostensibly on the Farley property was selected
as the final construction site.
Email LH 0261 Ex. 2 Def.’s Mot.
On November 19, 2015, Ken Kuszpit, a representative
of Strategis, LLC (“Strategis”), the selection contractor hired
by Skyway, contacted Lawson representative Charles Howard, and
informed Lawson that Mr. Farley ensured that the selected site
was fully on the Farley lot.
Id.; see McMillen Dep. 16.
Mr.
Kuszpit stated that “we will naturally confirm that [assertion]
with a survey.”
Email LH 0261.
On December 11, Mr. Howard
emailed Mr. Kuszpit expressing an interest in the location of
the selected site, stating: “Given the importance of the
property boundary with Mr. Farley, and inasmuch as the chosen
2
site may be but a stones [sic] throw away from said boundary,
[Lawson] would like to see the results of the recent boundary
survey.”
Email LH 0012 Ex. C Pl.’s Resp.
On December 14, 2015,
Mr. Howard informed Mr. Kuszpit that he had been “research[ing]
old maps going back to 1927 and all show the boundary with
Farley . . . as following the ridge line going south towards the
highway.”
Email LH 0011 Ex. C Pl.’s Resp.
Skyway contracted with Robert McMillen of McMillen
Consulting in November or December 2015 to conduct the surveys
of the selected site.1
McMillen Dep. 13, 16-17, 24.
Because Mr.
McMillen is not a licensed surveyor in West Virginia, he
associated with a Mr. Whitman,2 of Encompass Energy Services, who
stamped the final survey.
2; Pl.’s Resp. 3.
See McMillen Dep. 43-46; Def.’s Mem.
The site selected by Skyway for the tower had
no setback from the western edge of the Farley property, so Mr.
McMillen testified that he “tried to go the extra mile to
determine where that property line was,” and agreed that “if
[he] was off, even by a matter of inches, [the site] would be
1
Specifically, Skyway hired an engineering company, GDP, which
in turn selected McMillen to conduct the site survey. McMillen
Dep. 16-17.
2 Mr. McMillen testified that the surveyor licensed in West
Virginia was named William J. Whitman, and plaintiff refers to
Mr. Whitman as William J. Whitman, II. McMillen Dep. 45; Pl.’s
Resp. 3 n. 2. Defendant refers to Mr. Whitman as Robert J.
Whitman. Def.’s Mem. 2.
3
encroaching on the other parcel of property.”
Id. at 26.
However, he denied that “anyone had made [him] aware that there
was some issue as to where this western boundary line was
located, [or] that [Lawson] thought it might be on their
property.”
Id. at 25-26.
Mr. Farley represented to Mr.
McMillen that the western edge of his property, the edge that is
the subject of this suit, “was the fence line all the way up to
the gate.
there.”
And then it shot up over the hill to an old stump up
Id. at 18.
In the course of the survey, Mr. McMillen conducted
both fieldwork, wherein he physically inspected the property,
and deed work, wherein he researched the chain of deeds
describing the plot, in order to determine the property
boundaries.
Id. 19-22.
To “set the corners” of the Farley
land, Mr. McMillen testified that he used a deed for the Lawson
plot, because “it was the only one that had bearing distances on
it,” though, he stated, there were still “some problems” with
the Lawson deed.
Id. at 22.
Specifically, he stated the Lawson
deed “didn’t line up with the physical -- the physical
locations,” and “the deed kicks too far to the -- to the west.”
Id.
Mr. McMillen produced his original survey drawing on
4
December 14, 2015 locating the western edge of the cellular
tower site as falling precisely on the western edge of the
Farley property.
See LH 0014-0016 Ex. C Pl.’s Resp.
On February 22, 2016, the survey of the Farley
property boundary was sent to Lawson representative Charles
Howard.
Email LH 0010 Ex. 3 Def.’s Mot.
In that email, Mr.
Kuszpit stated that the cellular tower site “abuts [Lawson]
property but is on the Farley’s property.”
Id.
That same day,
Mr. Howard informed Mr. Kuszpit that Lawson was going to have
its “own surveyor mark the boundary very soon.”
Ex. E Pl.’s Rep.
Email LH 0293
On May 31, 2016, Lawson representative Larry
George emailed Strategis representative Ryan Johnson informing
Skyway that the Lawson surveyor had “completed his work and
determined that at least part, if not all, of the proposed tower
and its infrastructure are situated on [Lawson] land.”
0320 Ex. H Pl.’s Resp.
Email LH
Approximately one hour later, Mr.
Johnson requested the copy of the Lawson surveyor’s work for
review.
Email LH 0319-0320 Ex. H Pl.’s Resp.
Though a complete survey was not produced, some
documents from Lawson’s surveyor, Roger Tackett, were provided
to Skyway on May 31, 2016.
Def.’s Mem. 3-4.
5
After reviewing
the site and a number of deeds tracing back to 1894,3 Mr. Tackett
came to the opinion that the Lawson property line did not follow
the fence, as Mr. Farley asserted, but instead matched the
topographical features of the land; Mr. Tackett described the
“center of the point, knob, and ridge as the division line of
the property.”
Email LH 0303-304 Ex. G Pl.’s Resp; 1894 Deed LH
0379 Ex. G Pl.’s Resp. (including references to boundaries going
“straight up the hill”).
Mr. George then stated his belief that “the next step
is for [Lawson] to contact Mr. Farley directly and share our
position with him,” said he would “send him a letter in the
coming week,” and asserted that Lawson was “relying on the
description of the boundary in the April 27, 1934 Deed,” one of
the deeds describing the property that was reviewed by Mr.
Tackett.
Email LH 0318 Ex. H Pl.’s Resp.
Mr. Johnson responded
that he would “have [Lawson’s] surveyor review all their
documentation” and advise the Farley defendants of the
forthcoming letter.
Id.
Skyway’s surveyor rechecked and
revised the survey drawings at least once in response to
Lawson’s concerns.
McMillen Dep. 57-60.
3
Mr. Tackett identified nine deeds that
defendants’ property. Deed List LH 0378
deeds are dated April 6, 1894; April 28,
February 26, 1934; April 27, 1934; April
1961; August 9, 1972; and June 18, 1997.
6
A complete survey was
relate to the Farley
Ex. 8 Def.’s Mot. These
1900; June 14, 1900;
5, 1945; November 6,
Id.
never given to Skyway by Lawson and the record does not indicate
that any further communication regarding the property took place
between early June of 2016 and December of 2016.
See Def.’s
Mem. 3; Emails LH 0318-0321 Ex. H Pl.’s Resp.
In November 2016, construction began on the site that
was ostensibly leased by Skyway from the Farley defendants,
without giving notice to Lawson.
Resp. 122, 125-26.
Behuniak Dep. Ex. B Pl.’s
On December 9, 2016, shortly after
construction had begun, Lawson sent Skyway a cease and desist
letter reasserting its belief that the subject tower was to be
constructed at least partially on Lawson land and requiring that
Skyway “cease and desist from any further unauthorized entry and
trespass on the lands.”
Cease and Desist Letter (“Letter”) Ex.
6 Def.’s Mot.; see Option and Lease Agreement Ex. F Pl.’s Resp.
The letter further stated Lawson “is open to entering a lease
with the appropriate entity for the construction and operation
of this tower.”
Id.
Following this letter, Skyway engaged
legal counsel, Robert Grant, to correspond with Lawson.
Def.’s
Mem. 3; see Email LH 0371-0372 Ex. 7 Def.’s Mot.
After a phone call between Mr. Grant and Lawson
representative Mr. George that took place on December 15, 2016,
Mr. Grant again sought to obtain a copy of the survey completed
by Lawson’s surveyor by email on December 22, 2016.
7
Email LH
0371 Ex. 7 Def.’s Mot.
On December 28, 2016, Mr. George
provided Mr. Grant with the same documents that had been
previously given to Skyway in support of Lawson’s assertions,
including the 1894 deed, which described what is now the Farley
property.
Email LH 0369-0379 Ex. J. Pl.’s Resp.; Documents LH
0373-0387 Ex. J Pl.’s Resp.
Mr. George summarized that Lawson’s
position of using the ridge as the property line was based
primarily on the language in the 1894 deed.
Resp.
LH 0370 Ex. J Pl.’s
Mr. George further advocated for this position because
“most of the old property lines in the coal fields follow creeks
and ridges, etc.”
Id.
Skyway again had its surveyor check and
confirm that the leased area was entirely contained on the
Farley defendants’ property in response to Lawson’s concerns.
See Emails LH 0019-0020, 00368-369 Ex. J. Pl.’s Resp.
Despite their correspondence and the receipt of a
cease and desist letter, construction was resumed, and on
February 24, 2017, Lawson’s representative Mr. George sent the
following email to Mr. Grant:
[W]e seem to be having some miscommunication about the
Skyway[] cell tower in Logan County, WV. I understood
that Skyway had agreed to provide a new boundary line
plat which we could review before any further
construction occurred . . . . I was just advised by
our land manager/engineer that a contractor is on site
with two men operating a backhoe to level the site on
the lands of [Lawson]. I can send you a picture if
you like. Please advise your client to cease and
desist all construction activity on [Lawson] lands and
8
to remove all equipment and persons from the same.
The failure to do so will bring immediate legal action
in the Circuit Court of Logan County.
Email LH 0019 Ex. J Pl.’s Resp.
Construction continued and the
subject tower was completed by March of 2017.
132.
Behuniak Dep.
Thereafter, Lawson filed this suit on April 3, 2017.
In its complaint, Lawson alleges a claim against
Skyway for trespass, a claim against all defendants for
ejectment, and petitions for ascertainment and designation of
the boundary line.
Compl. ¶¶ 11-29.
Additionally, Lawson seeks
punitive damages against Skyway contending that Skyway, “in
trespassing upon and causing damage to plaintiff’s property, . .
. acted in bad faith, vexatiously, wantonly, willfully and/or
oppressive reasons and in reckless disregard of the rights of
others.”
Compl. ¶¶ 30-32.
Skyway now seeks summary judgment on
the issue of punitive damages only.
Def.’s Mot. 1.
The record
indicates that both Lawson and Skyway remain unwavering in their
opposing beliefs about the true location of the boundary line
between the two properties.
II.
Governing Standard
Summary judgment is appropriate only “if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
9
Fed.
R. Civ. P. 56(a).
“Material” facts are those necessary to
establish the elements of a party’s cause of action.
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also News &
Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d
570, 576 (4th Cir. 2010) (same).
A “genuine” dispute of material
fact exists if, in viewing the record and all reasonable
inferences drawn therefrom in a light most favorable to the nonmoving party, a reasonable fact-finder could return a verdict
for the non-moving party. Anderson, 477 U.S. at 248.
III.
Discussion
Punitive damages may be awarded “[i]n actions of tort,
where gross fraud, malice, oppression, or wanton, willful, or
reckless conduct or criminal indifference to civil obligations
affecting the rights of others appear.”
Syl. pt. 4, Mayer v.
Frobe, 40 W. Va. 246, 22 S.E. 58 (W. Va. 1895).
Demonstrating
reckless conduct that justifies an award of punitive damages
“has long required more than a showing of simple negligence.”
Bennett v. 3 C Coal Co., 180 W. Va. 665, 379 S.E.2d 388, 394
(1989).
Rather,
[W]anton negligence is a “[r]eckless indifference to
the consequences of an act or omission, where the
party acting or failing to act is conscious of his
conduct and, without any actual intent to injure, is
aware, from his knowledge of existing circumstances
and conditions, that his conduct will inevitably or
probably result in injury to another.”
10
Stephens v. Rakes, 235 W. Va. 555, 566, 775 S.E.2d 107, 118
(2015) (quoting Stone v. Rudolph, 127 W.Va. 335, 345, 32 S.E.2d
742, 748 (1944)).
Punitive damages may be awarded for actions in
trespass where the alleged trespass is willful, but if it is
committed through “inadvertence or mistake, or in good faith,
under an honest belief that the trespasser was acting within his
legal rights, it is an innocent trespass,” and punitive damages
are not warranted.
See Syl. pt. 4, Reynolds v. Pardee & Curtain
Lumber Co., 172 W. Va. 804, 310 S.E.2d 870 (1983).
An award of
punitive damages is reserved for "extreme and egregious bad
conduct" -- it "is the exception, not the rule," and "the level
of bad conduct on the part of the defendant must be very high in
order to meet the punitive standard."
Perrine v. E.I. du Pont de
Nemours & Co., 225 W. Va. 482, 694 S.E.2d 815, 909-10 (2010).
Lawson asserts that it raised concerns over the
boundary line between its property and the Farley defendants’
property by “clearly inform[ing] Skyway” of its belief “that the
cell tower construction . . . encroached upon its property.”
Pl.’s Resp. 9.
Therefore, because Skyway had knowledge of
Lawson’s concerns, yet proceeded to move forward with
construction, Lawson believes that punitive damages are
warranted if a trespass did, in fact, occur.
11
Id.
Lawson adds:
Although [Skyway] was clearly aware of these issues
and the undeniable facts casting doubt upon its chosen
location, the undisputed facts show that Skyway
nonetheless willfully and intentionally proceeded to
enter upon the designated site and engage in major
construction operations in November of 2016 and
refused to cease and desist when directly confronted
by [Lawson] in early December 2016.
Id.
Notwithstanding these allegations, the record
demonstrates that Skyway took efforts to survey the property to
determine the boundary line multiple times, both before and
after Lawson had raised its concerns with the purported
boundary.
See McMillen Dep. 19-26, 57-60.
It is further
apparent that Skyway took actions in reliance on the surveys and
examinations produced by Mr. McMillen regarding the boundary
line and its relation to the cellular tower construction site,
as Mr. Behuniak, the president and chief operating officer of
Skyway, testified repeatedly:
Q. And you were satisfied, after looking at these
[surveys], that the property was -- cell site wasn’t
located entirely on the Farley property?
A. We relied on our professional surveyor’s
determination.
. . . .
Q. Okay. So, potentially, we have a dispute over
title here, and one party contending that the cell
site extends onto their property, across a boundary
line, and there’s no notification to them that
construction is going forward?
A. No. At this point, our licensed surveyor had told
us we were okay, so we proceeded.
12
. . . .
A.
Our survey -- our surveyor told us we were fine.
. . . .
Q. All right. But as you sit here today -- and you
know that it’s possible that different maps get
attached to different e-mails, and there’s a document
collection process here that goes on. But as you sit
here today, you don’t have an independent opinion as
to which of these is the true property line?
A. I do, from our surveyor.
Q. Okay. And which one reflects the true property
line? Any of these maps that we’ve put in front of
you?
A. I would say, the one that’s attached to this one.
Q. Your answer is basically, whatever the surveyor
says; correct?
A. If I -Q. If I put Mr. McMillen in the chair and he says this
is the right one, that’s what you’re going to go with?
A. That’s what I’m going to go with.
Q. All right.
A. Rely on his professional -Q. All right. That’s fine.
Behuniak Dep. 8, 71, 125-26, 133, 147-48.
In light of Skyway’s reliance on the opinions of its
surveyor, the record does not indicate that, if a trespass did
occur, it was the result of anything other than “inadvertence or
mistake,” or that it was not done “in good faith, under an
honest belief that the trespasser was acting within his legal
rights.”
Syl. pt. 4, Reynolds 310 S.E.2d 870.
Skyway knew of
Lawson’s belief that the property line had been incorrectly
surveyed, see, e.g., Letter, but Skyway took steps to confirm
its survey even in the absence of any opposing survey
demonstrating a different boundary.
13
McMillen Dep. 57-60; see
THE DOW CHEMICAL COMPANY LONG TERM DISABILITY PROGRAM,
an Employee Welfare Benefits Plan,
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON,
a Massachusetts Corporation, and
DOES 1 THROUGH 10, inclusive,
Emails LH 0019-0020, 00368-369 Ex. J. Pl.’s Resp.
Defendants.
Skyway did not
have reason to believe that itsAND NOTICE
ORDER conduct would “inevitably or
probably result in injury” to Lawson. Stephens ORDERED that the
Pursuant to L.R. Civ. P. 16.1, it is 775 S.E.2d at
following dates are hereby fixed as the time by or on which
118. Considering theoccur:
certain events must precautions taken by Skyway and its
01/28/2016
Motions under F.R. Civ. P. 12(b), together with
reliance on the work of its surveyor, Lawson has not adequately
supporting briefs, memoranda, affidavits, or other
such matter in support thereof. (All motions
demonstrated any actions that rise to the high level of bad
unsupported by memoranda will be denied without
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
conduct required to receive punitive damages. See Perrine 694
02/08/2016
Last day for Rule 26(f) meeting.
S.E.2d at 909-10.
02/15/2016
Last day to file Report of Parties= Planning
Meeting. See L.R. Civ. P. 16.1.
IV. Conclusion
02/22/2016
Scheduling conference at 4:30 p.m. at the Robert C.
In accordance with the foregoing discussion it is before
Byrd United States Courthouse in Charleston,
the undersigned, unless canceled. Lead counsel
ORDERED the defendant’s to appear. summary judgment on the issue
directed motion for
02/29/2016
Entry of and it hereby is,
of punitive damages be, scheduling order. granted.
03/08/2016
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
The Clerk is requested to transmit this order to all
The Clerk is requested to transmit this Order and
counsel to all counsel any record and to any unrepresented
Notice of record and of unrepresented parties.
parties.
DATED: July 11, 5, 2016
DATED: January 2018
John T. Copenhaver, Jr.
United States District Judge
14
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