686 F.3d 303 (5th Cir. 2012), 11-60394, Marlow, L.L.C. v. BellSouth Telecommunications, Inc.

Docket Nº:11-60394.
Citation:686 F.3d 303
Opinion Judge:LESLIE H. SOUTHWICK, Circuit Judge:
Party Name:MARLOW, L.L.C., Plaintiff-Appellant, v. BELLSOUTH TELECOMMUNICATIONS, INCORPORATED, Defendant-Appellee.
Attorney:Vicki R. Leggett, Patrick Holt Zachary (argued), Zachary & Leggett, P.L.L.C., Hattiesburg, MS, for Plaintiff-Appellant. Hans J. Germann (argued), Nissa J. Imbrock, Theodore Livingston, Mayer Brown, L.L.P., Chicago, IL, Ambreen A. Delawalla, AT& T Southeast, Atlanta, GA, J. Stevenson Ray, Butler, ...
Judge Panel:Before STEWART, ELROD, and SOUTHWICK, Circuit Judges.
Case Date:June 27, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 303

686 F.3d 303 (5th Cir. 2012)

MARLOW, L.L.C., Plaintiff-Appellant,

v.

BELLSOUTH TELECOMMUNICATIONS, INCORPORATED, Defendant-Appellee.

No. 11-60394.

United States Court of Appeals, Fifth Circuit.

June 27, 2012

Page 304

[Copyrighted Material Omitted]

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Vicki R. Leggett, Patrick Holt Zachary (argued), Zachary & Leggett, P.L.L.C., Hattiesburg, MS, for Plaintiff-Appellant.

Hans J. Germann (argued), Nissa J. Imbrock, Theodore Livingston, Mayer Brown, L.L.P., Chicago, IL, Ambreen A. Delawalla, AT& T Southeast, Atlanta, GA, J. Stevenson Ray, Butler, Snow, O'Mara, Stevens & Cannada, P.L.L.C., Ridgeland, MS, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before STEWART, ELROD, and SOUTHWICK, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

In this diversity suit, a landowner seeks injunctive and compensatory relief from a telephone company for a trespass and for slandering its title to certain property. The district court granted summary judgment to the telephone company. We disagree with that court's conclusion that the telephone company had a constructive license but agree that it is not liable for slander of title. We AFFIRM in part,

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REVERSE in part, and REMAND for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In 2002, the defendant BellSouth Telecommunications, Inc., a telephone company licensed to conduct business in Mississippi, obtained two easements from Earl Burkett on homestead property in Forrest County, Mississippi. Earl's wife Helen did not join in the conveyances. One easement was over a 10' by 315' strip under which underground cable would be buried. The other was an easement on a 40' by 42' parcel, adjoining the other easement, on which BellSouth would place cabinets, a power pedestal, a cross-connect box, and other fixtures above ground. Both easements were properly recorded in the county land records. 1

In December 2006, the Burketts conveyed the land by warranty deed to the plaintiff Marlow, L.L.C. In March 2010, Marlow sent BellSouth a letter demanding the removal of its equipment on the basis that the 2002 easements were void due to the absence of Helen Burkett's signature. In April 2010, Marlow filed suit in the Chancery Court of Forrest County seeking confirmation of title, injunctive relief, and damages for trespass. BellSouth removed the action to the United States District Court for the Southern District of Mississippi.

Once in federal court, Marlow filed an amended complaint, adding claims for slander of title and punitive damages based on BellSouth's attempt in 2010 to cure the deficient easements by obtaining Helen Burkett's signature on additional easements. After BellSouth's answer was filed, Marlow moved for partial summary judgment, requesting the court declare the easements void. In February 2011, the court granted the motion. The court concluded that the 2002 easement was on homestead property and required the joinder of both spouses. See Miss.Code Ann. § 89-1-29. That ruling is not contested.

BellSouth then moved for summary judgment on all of Marlow's remaining claims, namely, for trespass, injunctive relief, slander of title, and punitive damages. Marlow responded and moved for a permanent injunction. In May 2011, the district court granted BellSouth's motion and denied Marlow's. The court interpreted a Mississippi statute as granting BellSouth a " constructive license" to remain on Marlow's land, thereby barring injunctive relief. The court also held that Mississippi's prior trespass doctrine prevented Marlow from collecting compensatory damages for a trespass. Finally, the district court rejected Marlow's slander of title and punitive damages claims, finding there was no evidence BellSouth acted with malice in obtaining Helen Burkett's signature on the 2010 easements. This timely appeal by Marlow followed, challenging each of the conclusions we just described.

DISCUSSION

" We review a grant of summary judgment de novo, applying the same standard as the district court." Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir.2008). Summary judgment is appropriate " 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).

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I. Constructive License

The district court held that BellSouth had a constructive license 2 across the Marlow property based on the court's interpretation of this statute:

Telegraph and telephone companies or associations shall be responsible for any damages which any person shall sustain by the erection, continuance, and use of telegraph and telephone lines and the fixtures thereof. In any action for the recovery thereof brought by any owner or possessor of land over or along which such line may run, damages shall be assessed for the permanent continuance of such line and fixtures, and on payment thereof the right to continue and use such line and fixtures shall exist as if by leave and license of the owner of the land.

Miss.Code Ann. § 77-9-715. The district court held that this statute granted BellSouth a " constructive license to leave its lines and fixtures in place" once compensation was paid. The court rejected Marlow's argument that the statute applied only when telephone lines had been placed on public rights-of-way.

Sitting in diversity, we employ the methods of statutory interpretation used by the relevant state's courts. See Keenan v. Donaldson, Lufkin & Jenrette, Inc., 529 F.3d 569, 572-73 (5th Cir.2008). In Mississippi, " [t]he primary rule of construction is to ascertain the intent of the legislature from the statute as a whole and from the language used therein." DePriest v. Barber, 798 So.2d 456, 458 (Miss.2001) (quotation marks and citation omitted). The Mississippi Supreme Court has said it " resorts to the canons of statutory interpretation only where a statute is ambiguous or silent on a specific issue." Lutz Homes, Inc. v. Weston, 19 So.3d 60, 62 (Miss.2009). When the statute is ambiguous, " the court, in determining the legislative intent, may look not only to the language used but also to its historical background, its subject matter, and the purposes and objects to be accomplished." DePriest, 798 So.2d at 458 (quotation marks and citation omitted).

Marlow argues that the statutory section on which BellSouth relies cannot be understood without considering the two immediately preceding sections of the Code that were adopted at the same time. Those sections, Marlow insists, provide the necessary context that reveal the limited reach of Section 77-9-715. As we will explain, these three sections were adopted

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together a century and a half ago and have remained largely unchanged.

We first quote the prior two sections. The first authorizes telephone companies to erect their lines along public roads and similar property:

All companies or associations of persons incorporated or organized for the purpose of constructing telegraph or telephone lines shall be authorized to construct the same, and to set up and erect their posts and fixtures along and across any of the public highways, streets, or waters, and along and across all turnpikes, railroads, and canals, and also through any of the public lands. Such lines, posts and fixtures shall be so constructed and placed as not to be dangerous to persons or property, and as not to interfere with the common use of such roads, streets, or waters, or with the convenience of any landowner more than may be unavoidable. In case it shall be necessary to cross any highway, such lines, posts and fixtures...

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