Marlow LLC v. Bellsouth Telecomms., Inc.

MARLOW LLC PLAINTIFF

v. BELLSOUTH TELECOMMUNICATIONS, INC.; And BELLSOUTH TELECOMMUNICATIONS, INC.d/b/a AT&T MISSISSIPPI DEFENDANTS

CIVIL ACTION NO. 2:10cv135-KS-MTP

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI HATTIESBURG DIVISION

Dated: October 16, 2012

MEMORANDUM OPINION AND ORDER

This matter is before the Court on remand from the United States Court of Appeals for the Fifth Circuit. See Marlow, L.L.C. v. BellSouth Telecommunications, Inc., 686 F.3d 303 (5th Cir. 2012). In Marlow, the Fifth Circuit reviewed this Court's decision granting summary judgment in favor of BellSouth Telecommunications, Inc. ("BellSouth") on Marlow LLC's ("Marlow") claims of and for trespass, slander of title, injunctive relief, and punitive damages. This Court found that BellSouth had a constructive license to place, maintain, and utilize telecommunications equipment on property owned by Marlow pursuant to Mississippi Code Annotated § 77-9-715,¹ which negated Marlow's request for damages and injunctive relief. (See Mem. Opinion and Order [122] at pp. 17-18.) Marlow's request for punitive damages and slander of title claim were rejected in the absence of proof of "malice" on the part of BellSouth in attempting to obtain easements on Marlow's property. (See Mem. Opinion and Order[122] at pp. 18-19.)

On appeal, the Fifth Circuit affirmed in part, reversed in part, and remanded for further proceedings. See Marlow, 686 F.3d at 305-06. "Summary judgment against Marlow's claims for slander of title and punitive damages was appropriate . . ." without any evidence that BellSouth acted with malice in seeking to obtain the easements. Id. at 314. However, BellSouth was found not to possess a constructive license to place and maintain its equipment on Marlow's property under Section 77-9-715. See id. at 312. The Fifth Circuit held that Section 77-9-715 only applied where "public ways" were at issue, such as where telephone lines are placed in the right-of-way of a public road. Id. Thus, this Court's constructive license holding was reversed and the case was remanded for further proceedings, including the resolution of BellSouth's alternative argument that it has a prescriptive easement on Marlow's property. See id. at 312, 314.

For the reasons stated below, the Court finds that BellSouth has not established its right to a prescriptive easement and that the case should be set for trial.

I. FACTUAL AND PROCEDURAL HISTORY

A detailed history of this dispute is not required given the Court's prior rulings. (See Orders [69], [122].) Thus, the Court will address below only those matters pertinent to the issue of BellSouth's claimed prescriptive easement.

In 1996, BellSouth installed a 5-feet high, 4-feet wide and 1 1/2-feet deep cross-connect box (the "1996 Cross-Connect Box"), on a 3.24 acre parcel of land owned by Earl Burkett and Helen L. Burkett (the "Subject Property"). The Subject Property is situated at or near the intersection of Highway #42 and Springfield Road in Forrest County, Mississippi. No evidence has been presented showing that BellSouth had acontractual or statutory right to install the 1996 Cross-Connect Box on the Subject Property.

BellSouth attempted to obtain two separate easements on the Subject Property in 2002. The first putative easement ("First Easement") was executed by Earl Burkett and granted BellSouth the right "to construct, operate, maintain, add, and/or remove such systems of communications, facilities or related services" it required in a "10 FEET BY 315 FEET LONG" strip of land. (See Doc. No. [111-2].) The second putative easement ("Second Easement") was also executed by Earl Burkett and granted BellSouth the same rights in a "40 FEET BY 42 FEET" parcel of land. (See Doc. No. [111-4].)² The 1996 Cross-Connect Box is located within the parcel of land described in the Second Easement. BellSouth paid Earl Burkett $315.00 for the First Easement and $5,000.00 for the Second Easement.

On December 22, 2006, the Subject Property was conveyed to Marlow by Earl Burkett and Helen L. Burkett by Warranty Deed. (See Doc. No. [45-1].) In March of 2010, Marlow sent a letter to "AT&T--Legal/Right of Way Acquisition", advising that "an easement" on the Subject Property was void because Helen L. Burkett, Earl Burkett's spouse, did not execute the easement as required for it to be effective under Mississippi Code Annotated § 89-1-29.³ (See Doc. No. [111-1].)Marlow's letter further indicated that it did not consent to the continued use of the easement and threatened litigation if such use continued.

On April 29, 2010, Marlow filed its Compliant to Confirm Title and to Remove Cloud, Doubt and Suspicion from Title to Real Property and for Other Relief against BellSouth in the Chancery Court of Forrest County, Mississippi. On May 25, 2010, BellSouth removed the proceeding to this Court on the basis of diversity of citizenship jurisdiction under Title 28 U.S.C. § 1332. (See Notice of Removal [1].) Marlow subsequently moved for partial summary judgment, requesting that the Court declare the First Easement and Second Easement void since Helen L. Burkett did not execute either easement, as required for the conveyance of homestead property under Section 89-1-29. On February 3, 2011, the Court ruled in favor of Marlow and held that the First Easement and Second Easement were "void as a matter of law and passed no title to Bellsouth." (See Mem. Opinion and Order [69] at p. 8.) The Court subsequently entered a Judgment Voiding Easements [76] in accordance with this ruling.

On March 24, 2011, BellSouth moved for summary judgment. BellSouth principally claimed that it had a constructive license to maintain telecommunications equipment on the Subject Property pursuant to Section § 77-9-715. BellSouth alternatively argued that it had a prescriptive easement with respect to the 1996 Cross-Connect Box on the Subject Property. The Court did not reach BellSouth's alternative argument since it found BellSouth's constructive license position well taken and accordingly granted summary judgment in its favor. (See Mem. Opinion and Order[122].) The appeal from the Court's grant of summary judgment is described above.

On August 23, 2012, a telephonic status conference was held between the Court and counsel for the parties. Pursuant to the conference, it was determined that the issue of BellSouth's purported prescriptive easement would be resolved before the case was set for trial. Counsel for the parties advised that no further briefing was needed on this issue.

II. DISCUSSION

A. Standard of Review

BellSouth initially raised its claim to a prescriptive easement as an affirmative defense. (See Answer [17] at p. 4.) The issue was then briefed in the context of BellSouth's Motion for Summary Judgment [97]. BellSouth argued that its prescriptive easement defeated Marlow's trespass claim (count two of the Amended Complaint [25]) and request for injunctive relief (count four of the Amended Complaint [25]) with respect to the 1996 Cross-Connect Box on the Subject Property. (See BellSouth's Mem. in Support of SJ [98] at pp. 12-15.) Accordingly, the existence vel non of a prescriptive easement in favor of BellSouth must be viewed through the prism of Federal Rule of Civil Procedure 56.

Federal Rule of Civil Procedure 56 provides that "[t]he 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 judgment as a matter of law." Fed. R. Civ. P. 56(a). "Where the burden of production at trial ultimately rests on the nonmovant, the movant must merely demonstrate an absence of evidentiary support in the record for the nonmovant's case." Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir.2010) (citation and internal quotation marks omitted), cert. denied, 131 S. Ct. 2972 (2011). "Where a party seeks summary judgment pursuant to an affirmative defense, such as . . . [BellSouth], the movant must establish all of the elements of the defense." Citigroup, Inc. v. Fed. Ins. Co., 649 F.3d 367, 371 (5th Cir. 2011) (citing Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)) (a defendant moving for summary judgment on an affirmative defense "must establish beyond peradventure all of the essential elements of the . . . defense"). If the movant meets his burden, the nonmovant "must come forward with specific facts showing that there is a genuine issue for trial." Cuadra, 626 F.3d at 812. "'An issue is material if its resolution could affect the outcome of the action.'" Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010) (quoting Daniels v. City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001)). "An issue is 'genuine' if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party." Cuadra, 626 F.3d at 812.

The Court is not permitted to make credibility determinations or weigh the evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). When deciding whether a genuine fact issue exists, "the court must view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party." Sierra Club, Inc., 627 F.3d at 138. However, "[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial." Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).

B. Analysis

The Court will apply Mississippi's substantive law to the prescriptive easementissue since diversity of citizenship is the basis for the Court's jurisdiction and since the merits of this case concern real property located in Mississippi. Cf. Consol. Cos., Inc. v. Lexington Ins. Co., 616 F.3d 422, 425-26 (5th Cir. 2010) ("Because this diversity case involves 'the interpretation of insurance policies issued in Louisiana for property located in...