Lawson Heirs Incorporated v. Skyway Towers, LLC et al

Filing 125

MEMORANDUM OPINION AND ORDER the 48 MOTION by Skyway Towers, LLC for partial protective order is denied without prejudice to its renewal after the issue of trespass is resolved. Signed by Judge John T. Copenhaver, Jr. on 8/16/2018. (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 a partial protective order,
filed by defendant Skyway Towers, LLC on January 22, 2018.
This case arises out of construction of a cellular
communications tower by defendant Skyway Towers, LLC (“Skyway”)
on a plot of land that is alleged to be partially owned by
plaintiff and partially owned by other defendants Howard Lee
Farley, Jr. and Delorse Fry Farley.

Compl. ¶¶ 5-10.

Plaintiff Lawson Heirs Incorporated (“LHI”) represents
that Skyway’s agent was made aware that LHI believed the subject
plot straddled the property line and encroached onto its land
prior to construction.

Id. at ¶¶ 9-10.

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Nevertheless, in

December of 2016, Skyway entered onto the plot to begin
construction of the cellular communications tower.

Id. ¶ 12.

LHI sent a cease and desist letter on December 9, 2016,
demanding that Skyway leave its property immediately and refrain
from further entry.

Id. at ¶ 13.

Skyway has remained on the

property, has placed heavy equipment, and began earth moving
activities, thereby allegedly causing injury to plaintiff’s real
property.

Id.

On April 3, 2017, LHI brought this suit alleging

trespass and ejectment; seeking ascertainment and designation of
a boundary line pursuant to W. Va. Code § 55-4-31; and
requesting punitive damages against Skyway.
On January 4, 2018 plaintiff filed its second amended
notice of video deposition of defendant Skyway.

ECF No. 35.

Therein, the plaintiff requested:
[T]he deponent, the authorized representative of
Defendant Skyway, is directed to be prepared and offer
testimony on behalf of said defendant on the subjects
set forth below:
1. Communications with other parties regarding the
Cell Tower and Lease in issue;
2. All leases, contracts or other agreements between
Skyway Towers, LLC, and cellular providers or
other entities generating revenues from the Cell
Tower/Lease in question, including but not
limited to Verizon;
3. Skyways’ financial position; and
4. All surveys and title searches conducted by or on
behalf of Skyway Towers, LLC, relative to the
Cell Tower/Leases Premises in question.

2

Deponent is commanded to produce copies of the
following documents:
1. All leases between Skyway Towers, LLC and
property owners in the State of West Virginia for
the past three (3) years;
2. All contracts or other agreements between Skyway
Towers, LLC and Verizon or any other cellular
provider relating to the Cell Tower in question;
3. Audited financial statements for Skyway Towers,
LLC for the past three (3) years; and
4. Tax returns for Skyway Towers, LLC for the past
three (3) years.
Id.

Skyway now moves for a partial protective order, pursuant

to Fed. R. Civ. P. 26(c)(1), to “protect[] the disclosure of
certain portions of information and documentation . . . sought
within the Notice of Deposition to Defendant Skyway.”

Def.’s

Mot. 1.
By order entered this day, the court, inter alia,
bifurcated this case for the purposes of trial, so that a jury
may first determine the disputed boundary line between the
adjoining parcels of land.

After such boundary line is

ascertained, if there is indeed a trespass onto plaintiff’s
property, then the issue of damages shall be undertaken and
determined at a separate trial.

The court notes that Skyway’s

now pending motion is concerned with the discovery of
information related to damages, which may or may not be relevant
pending the outcome of the initial trial.

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02/15/2016

Last day to file Report of Parties= Planning
Meeting. See L.R. Civ. P. 16.1.

02/22/2016

Scheduling conference at 4:30 p.m. at the Robert C.
Byrd United is ORDERED that defendant’s motion be,
Accordingly, it States Courthouse in Charleston, before
the undersigned, unless canceled. Lead counsel
and it hereby directed to without prejudice to its renewal after
is, denied appear.
02/29/2016
Entry of scheduling order.
the issue of trespass is resolved.
03/08/2016
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
The Clerk is directed to transmit this of this
The Clerk is requestedto transmit copiesOrder andorder
Notice to all counsel of record and to any unrepresented
to all counsel of record and any unrepresented parties.
parties.
ENTER: January 5, 2016
DATED: August 16, 2018
John T. Copenhaver, Jr.
United States District Judge

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