Ogg v. Mediacom, L.L.C.

• Citation: 142 S.W.3d 801
• Decision Date: 22 June 2004
• Docket Number: No. WD 63033.,WD 63033.
• Parties: Gary W. OGG and Janice Ogg, Appellants, v. MEDIACOM, L.L.C., Respondent.
• Court: Court of Appeal of Missouri (US)

142 S.W.3d 801

Gary W. OGG and Janice Ogg, Appellants, v. MEDIACOM, L.L.C., Respondent.

No. WD 63033.

Missouri Court of Appeals, Western District.

June 22, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 27, 2004.

Application for Transfer Denied September 28, 2004.

Appeal from the Circuit Court, Clay County, Larry D. Harman, J Farrell Douglas Hockemeier, Richmond, Dale K. Irwin, Co-Counsel, Kansas City, Jonah Orlofsky, Chicago, IL, for appellants.

Jerome T. Wolf, Lee Mills Baty, Co-Counsel, Kansas City, MO, for respondent.

Before JOSEPH M. ELLIS, Chief Judge, PATRICIA BRECKENRIDGE, Judge and HAROLD L. LOWENSTEIN, Judge.

JOSEPH M. ELLIS, Chief Judge.

This is an appeal from a final order and judgment of the Circuit Court of Clay County entering summary judgment against appellants Gary and Janice Ogg ("the Oggs") and in favor of respondent Mediacom, LLC ("Mediacom") on the Oggs' civil suit against Mediacom for trespass. In that suit, the Oggs sought class action status, injunctive and equitable relief, actual and punitive damages, and an award of attorney's fees and expenses.¹ We reverse the trial court's grant of summary judgment to Mediacom and remand for further proceedings not inconsistent with this opinion.

Standard of Review

As stated by the Missouri Supreme Court in Harjoe v. Herz Financial, the standard of review governing this case, which was decided on cross-motions for summary judgment, is as follows:

When considering appeals from summary judgments, the Court will review the record in the light most favorable to the party against whom judgment was entered. Additionally the non-movant is afforded the benefit of all reasonable inferences contained in the record. Review is de novo. Because the trial court makes its decision based upon the record submitted and the law, this Court need not defer to the order of the trial court granting summary judgment. Generally, summary judgment allows a trial court to enter judgment for a party where they have demonstrated a right to a judgment as a matter of law based upon facts about which there is no genuine dispute. The key to summary judgment is the undisputed right to judgment as a matter of law; not simply the absence of a fact question.

108 S.W.3d 653, 654 (Mo. banc 2003) (internal citations and quotation marks omitted). "To succeed on summary judgment, a defendant must show: (1) undisputed facts negating any of plaintiffs' required elements; (2) the plaintiffs, after adequate time for discovery, cannot produce evidence sufficient to find one of plaintiffs' required elements; or (3) there is no genuine dispute as to each fact necessary to support a properly-pleaded affirmative defense." Chouteau Auto Mart, Inc. v. First Bank of Mo., 55 S.W.3d 358, 360 (Mo. banc 2001) (emphasis omitted).

Facts, Background, and Procedural History of the Case

The Oggs own, operate, and live on a family farm in an unincorporated area of Ray County, Missouri. Mediacom is a publicly-traded Delaware limited liability company which sells cable television and related services, such as broadband Internet access, to what are primarily rural municipalities throughout Missouri and over twenty other states. As of April 1, 2002, Mediacom was the nation's eighth-largest cable television company.

In January and February, 1999, a subcontractor hired by Mediacom placed approximately 933 feet of fiber optic cable on the Oggs' property.² Mediacom never sought permission to do this from the Oggs, nor did it obtain an easement from the Oggs or compensate them for this use of their property. The fiber optic cable was run along the edge of one of the Oggs' farm fields, about fifteen to thirty feet from the paved edge of a state public highway (Missouri State Route 10) which forms the southern boundary of the Oggs' farm. A portion of the fiber optic cable, measuring approximately 204 feet in length, was strung aerially from and connected to poles located on the Oggs' property. These poles, which were erected in 1947 and support several electrical power transmission cables, are maintained and operated by Platte Clay Electric Cooperative, Inc. ("Platte Clay Electric") under a prescriptive easement it has held for decades. Mediacom hung this section of fiber optic cable from the poles approximately twelve to fourteen feet off the ground, some six feet lower than the pre-existing electrical power cables, which are at least eighteen to twenty feet above the ground. The remaining section of the fiber optic cable, which is about 729 feet long, was buried underground within the public highway right-of-way associated with Route 10.³

Despite the presence of this fiber optic cable on and above their property, the Oggs cannot purchase Mediacom's programming or other products. To begin with, the cable on the Oggs' property is not capable of providing service to the Oggs (or, for that matter, anyone else along the route chosen by Mediacom), as it is a fiber optic cable which transmits data via light pulses and home television sets and cable modems can generally only receive signals from a coaxial cable, which involves a different data transmission technology (radio frequency or RF). Even if the signals transmitted through the fiber optic cable were compatible with typical home television or computer components, cable television companies such as Mediacom are generally permitted to sell their programming and other services only within localities in which they have been granted a franchise by the appropriate governmental authority.⁴ Two nearby towns (Richmond and Excelsior Springs) have granted Mediacom such franchises,⁵ but as the Oggs live outside the boundaries of those towns, Mediacom does not sell them any programming or other services.

Mediacom ran its fiber optic cable across the Oggs' property, even though it does not and cannot sell services in that area, because of a facility consolidation program Mediacom instituted to lower its costs. Cable television operations require a "headend," a costly facility with an antenna, satellite dish, or some other signal-receiving device to gather data. From the headend, cable lines flow out to the homes in the franchise area served by the cable provider. As of December 31, 2000, Mediacom had 409 independent headend facilities located across the country.

Several years ago, Mediacom decided that it could lower its capital costs by eliminating many of its headend facilities through a fiber optic cable system. If a fiber optic cable is run from one headend to another, one of the two headends can be eliminated. One headend would continue to receive a signal via satellite dish, antenna, or some other device, but the other headend would no longer need a functioning signal-receiving device because it would get its signal from the remaining headend via the fiber optic cable. The fiber optic cable line linking two headend facilities in this manner is known as an "interconnect cable." It provides no programming or related services to any consumer, and its sole purpose is to enable the elimination of headends so that Mediacom can lower its fixed capital costs on a per-home basis. As described in its 2001 Annual Report to its shareholders:

We believe that fiber optics and advanced transmission technologies make it cost effective to consolidate our headend facilities, allowing us to realize operating efficiencies and resulting in lower fixed capital costs on a per home basis as we introduce new products and services.

Mediacom's headend consolidation plan required running a planned 10,000 miles of interconnect cables. By December 31, 2001, Mediacom had run over 3,000 miles of such cables, and thereby lowered the number of headends from 409 to 273. Mediacom planned to use more than 5,500 miles of additional interconnect cables to eliminate another 190 headends by June 2003, which would leave only 83 headends.

It is this headend consolidation process that led Mediacom to run an interconnect cable on the Oggs' property. Mediacom originally had headends in both Excelsior Springs and Richmond, and it sought to connect these two facilities and eliminate the Richmond headend. The Oggs' property lies along the route Mediacom selected for the Excelsior Springs to Richmond interconnect cable.

The Excelsior Springs to Richmond interconnect cable has been completed. The Excelsior Springs headend now services both Excelsior Springs and Richmond, and Mediacom no longer operates a headend facility in Richmond. The sole function of this interconnect cable is to connect two Mediacom facilities, thus lowering Mediacom's cost of doing business. While the Richmond-Excelsior Springs interconnect line runs across the property of numerous people, including that owned by the Oggs, none of the property owners who live outside those towns can or will be allowed to use Mediacom's services because they live outside of Mediacom's franchise areas. This interconnect cable has, therefore, been installed solely for the benefit of Mediacom and its shareholders, without providing any benefit whatsoever to the owners of the rural real estate on which it has been placed.

The Oggs brought suit against Mediacom for trespass. They subsequently filed a motion for partial summary judgment on the issue of Mediacom's liability, reserving the issue of damages for a trial. Mediacom cross-moved for summary judgment, seeking dismissal of the Oggs' case in its entirety.⁶ The trial court denied the Oggs' motion and granted Mediacom's motion, leading to this appeal.

Analysis

I.

"Trespass is the unauthorized entry by a person upon the land of another, regardless of the degree of force used, even if no damage is done, or the injury is slight." Crook v. Sheehan Enters., Inc., 740 S.W.2d 333, 335 (Mo.App. E.D.1987); see also Kitterman v. Simrall, 924 S.W.2d 872, 878 (Mo.App. W.D.1996) (noting that liability for trespass "exists whether or not done in good faith and with reasonable care, in...