Johnson v. P'ship

• Decision Date: 05 July 2016
• Docket Number: C/A No. 3:15-cv-01727-CMC
• Parties: Stanley Johnson, individually and on behalf of all others similarly situated, Plaintiff, v. Time Warner Entertainment-Advance/Newhouse Partnership d/b/a/ Time Warner Cable, and Time Warner Cable Southeast LLC d/b/a Time Warner Cable, Defendants.
• Court: U.S. District Court — District of South Carolina

Stanley Johnson, individually and on behalf of all others similarly situated, Plaintiff, v. Time Warner Entertainment-Advance/Newhouse Partnership d/b/a/ Time Warner Cable,and Time Warner Cable Southeast LLC d/b/a Time Warner Cable, Defendants.

C/A No. 3:15-cv-01727-CMC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION

July 5, 2016

Opinion and Order Denying Second Motion for Summary Judgment (ECF No.109)

This matter is before the court on Defendants' Third Motion for Summary Judgment (ECF No. 109). For the reasons set forth below, the motion is denied.¹

BACKGROUND

As explained in the order denying Defendants' Second Motion for Summary Judgment:

Through this action, Plaintiff Stanley Johnson ("Johnson"), seeks recovery on behalf of himself and others similarly situated for alleged unauthorized placement of cable transmission lines and related equipment ("Cable Lines") on or under land he purchased on July 1, 2014. . . . Relief is sought under various legal theories, all of which depend on the dual premises that (1) Defendants Time Warner Entertainment Advance/Newhouse Partnership and Time Warner Cable Southeast, LLC (collectively "Time Warner Cable"), or their predecessors in interest, placed the Cable Lines on or under the Property without authorization prior to Johnson'spurchase and (2) the Cable Lines remained on the property without authorization after Johnson's purchase.

For purposes of this order, the court distinguishes between two types of lines: "Trunk Lines," which are capable of carrying signals to multiple subscribers; and "Service Lines," which carry the signal from the Trunk Line[s] to an individual subscriber's residence or other individual location. Johnson's challenge is primarily if not exclusively directed to the presence of Trunk Lines running over (and possibly under) his property.

ECF No. 102 at 1-2 (footnote omitted).

Time Warner Cable's Second Motion for Summary Judgment advanced two related theories: (1) "placement of the lines was authorized because service was requested by and provided to a tenant [("Tenant")] of the property," with the landowner's consent, from roughly 1994 to 2002; and (2) the cable service provider was not required to remove the lines after service ended until a reasonable time after the landowner objected to the continued presence of the lines (which request was made by Johnson in early 2015). Id. at 2-3 (summarizing opening arguments). On reply in support of that motion, Time Warner Cable appeared to concede Trunk Lines serving other properties were present on the Property before Tenant requested service in 1994. It, nonetheless, argued the earlier presence was irrelevant because Johnson may not assert a claim for any pre-1994 trespass and the lines were present by permission thereafter (based on Tenant's request for service with landowner's consent) until Johnson objected to their presence. Id. at 4. It also pointed to an "absence of evidence that the original placement was non-permissive." Id. at 5. Finally, Time Warner Cable argued Johnson's position as to absence of authority predating 1994 was 'self-defeating because a twenty-plus year trespass would establish an easement by prescription which ripened prior to Johnson's purchase" in 2014. Id. at 5.

The court found Time Warner Cable's opening arguments ineffective, despite a number of favorable assumptions, because they focused on authorization of Trunk and Service Linesnecessary to provide service to Tenant's residence, rather than Trunk Lines necessary to provide service to customers downstream of the Property. Id. at 6-7.² Noting the absence of "authority for [Time Warner Cable's] specific premise that Tenant's request for service authorized placement or presence of Trunk Lines for the purpose of serving downstream customers[,]" the court held it could not "find that Time Warner Cable is entitled to judgment as a matter of law on this point or the dependent argument that Time Warner Cable could not be required to remove previously authorized lines without being given a reasonable time to relocate the lines." Id. at 7 (emphasis in original)).

The court declined to consider Time Warner Cable's reply arguments on the merits for two reasons. First, those arguments were not raised until reply and, second, they addressed issues beyond the scope of the limited discovery that had been allowed. Id. at 8 (addressing arguments Johnson had failed to adduce evidence that placement of lines prior to 1994 was unauthorized or, alternatively, that Time Warner Cable was entitled to an easement by prescription and noting "[d]iscovery to date has . . . been limited, in part by the court's oral ruling on Time Warner Cable's original motion for summary judgment and in part by Time Warner Cable's discovery responses suggesting Time Warner Cable was relying on Tenant's authorization rather than an absence ofevidence as to whether the initial placement was authorized."). As to the issue of authorization, the court noted possible inferences favorable to Johnson that might arise from the absence of certain evidence or Time Warner Cable and its predecessor's practices regarding easements. Id. As to the issue of prescriptive easement, the court noted factual and legal issues requiring further development. Id. at 9 (noting "discovery may be needed as to whether there have been changes in the physical cables or nature and extent of usage of those cables over the relevant period as well as legal argument on the impact of any such changes on the existence and scope of a prescriptive easement.").

DISCUSSION

I. MOTION FOR SUMMARY JUDGMENT

Time Warner Cable now seeks summary judgment on two grounds similar to those raised in its reply in support of its Second Motion for Summary Judgment. First, it argues Johnson has failed to adduce evidence "that the prior landowner did not acquiesce in the presence of cable infrastructure on the property[.]" ECF No. 109-1 at 1 (addressing what it characterizes as common element of all claims). Second, it argues "the uncontroverted record establishes Time Warner Cable's entitlement to a prescriptive easement because it constructed its facilities in the early 1980's based on a belief that it had the right to piggyback on utility easements." Id. at 2.

A. STANDARD

Summary judgment should be granted 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). It is well established that summary judgment should be granted "only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts." Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987).

The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact, and the court must view the evidence before it and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

Rule 56(c)(1) provides as follows:

(1) A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).

A party "cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). Therefore, "[m]ere unsupported speculation . . . is not enough to defeat a summary judgment motion." Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).

B. FAILURE TO ADDUCE EVIDENCE OF NON ACQUIESCENCE

Time Warner Cable's Opening Argument. In its opening brief, Time Warner Cable notes Johnson has the burden of proving the presence of lines "was non-permissive from the standpoint of his predecessor in title." ECF No. 190-1 at 10 (emphasis added). It then argues Johnson has "not adduced any evidence from which the finder of fact could conclude that the prior landowners did not acquiesce in the presence of the cable facilities on the property[,]", despite having the opportunity for discovery on this issue. Id.. at 11 (emphasis added).

In support of this argument, Time Warner Cable cites a South Carolina law treatise for the proposition "lack of permission is an essential element of a cause of action for trespass." Id. at 10 (citing SC Jurisprudence CIVIL § 4-41). It also cites a Texas decision for the premise a landowner bears the burden of proving lack of consent. Id. (citing Envtl. Processing Sys. v. FPL Farming Ltd., 457 S.W.3d 414, 424 (Tex. 2015). In its introduction, Time Warner Cable cites two South Carolina cases requiring proof of unauthorized entry to establish trespass. Id. at 9-10 (citing Ravan v. Greenville Cnty., 434 S.E.2d 296, 306 (S.C. Ct. App. 1993); Willoughby v. Ne. R. Co., 11 S.E. 339, 347 (S.C. 1890)). Time Warner Cable does not, however, cite any authority for the more specific proposition that Johnson must prove non-acquiescence in order to establish the challenged entry was "unauthorized," or without permission or consent.³

Johnson's Response. In his response, Johnson agrees that "trespass will not lie where the landowner has granted permission." ECF No. 114 at 7. Characterizing Time Warner Cable's arguments as requiring him to "disprove speculation that a prior owner of the Property granted permission," Johnson points to "ample facts giving rise to a triable issue concerning non-permissive use." Id. He notes, inter alia, that the 1989 Pole Attachment...