Opinion
Civil No. CL17-3408
07-17-2017
Re: Gregory Richardson, et ux. v. Virginia Electric and Power Company, etc. and T-Mobile Northeast LLC, etc.
EVERETT A. MARTIN JR. JUDGE Joshua E. Baker, Esq.
Waldo & Lyle, P.C.
301 West Freemason Street
Norfolk, Virginia 23510 Richard J. Cromwell, Esq.
McGuire Woods LLP
101 West Main Street, Suite 9000
Norfolk, Virginia 23510 Andrew M. Williamson, Esq.
Blank Rome LLP
1825 Eye Street NW
Washington, D.C. 20006 Dear Gentlemen:
The Richardsons filed a complaint against the present defendants and others on September 11, 2014 (CL14-6418; the "2014 action"), seeking just compensation for an inverse condemnation. The Richardsons complained that the defendants had, without authority, installed and maintained cellular telephone facilities on their property. During the pendency of that action I ruled by the order of July 30, 2015, that the 1958 easement granted to the Virginia Electric and Power Company ("VEPCO") could not be apportioned for the installation of cellular telephone equipment as that was a use of the property it did not receive from its grantor. I also ruled by the order and letter of May 1, 2015, that any claim for damage based upon the installation of cellular telephone equipment in 2002 and 2009 was barred by the statute of limitations, and that no damage was done to the Richardsons' property by the connection of the new cable to the pole and the installation of new antennas on the pole in August of 2012. By the order of November 16, 2015, I ruled no damage was done by the installation of the 1 ¼" underground cable in August of 2012, and I noted the Richardsons had not sued for trespass, i.e., the mere entry upon their land.
The Richardsons suffered a nonsuit of their claims against T-Mobile Northeast LLC ("T-Mobile") over objection on September 29, 2015. By order of December 2, 2015, the court dismissed the Richardsons' claims against VEPCO with prejudice as being barred by the statute of limitations. No party appealed.
The Richardsons have filed the present action against both defendants for trespass, unjust enrichment, and ejectment. They also claim VEPCO has overburdened the easement. They request an injunction against both defendants. The defendants have filed a joint demurrer and plea in bar.
Trial by Jury on the Special Plea
The prayer of the Richardsons' complaint, paragraphs 10-13, demanded jurors be impaneled to determine damages and "the amount of revenue, profits and compensation to be disgorged from" the defendants. They did not demand a jury on all issues triable by a jury. Rule 3:21(c).
The defendants filed their special plea on April 11. On May 8, they gave notice of a hearing on the special plea to be held on June 12. Even though evidence had been adduced at two hearings on a special plea in the 2014 action, the Richardsons made their demand for a jury at the beginning of the hearing. As lawyers for T-Mobile from Washington, D.C. and Philadelphia were attending the hearing, and as granting the demand would have caused them wasted time and effort and T-Mobile wasted expense, I found the demand came too late. Rule 3:21(d).
The Claims against VEPCO
With one exception, all of the facts and present allegations against VEPCO existed at the dismissal of the 2014 action. All of those claims arose out of the same series of occurrences: the 2002 installation of cellular telephone equipment on the pole, and improvements and modifications of that equipment in 2009 and 2012. The claims could have been brought in the 2014 action; nothing prevented the Richardsons from joining these claims. Code of Virginia ("Code") §§ 8.01-272, 8.01-281(A); Rule 1:4(k); The Funny Guy v. Lecego, 293 Va. 135, 795 S.E.2d 887 (2017). I find all claims against VEPCO in this action based on the activities of 2002, 2009, and 2012 are barred by Rule 1:6.
The one exception is the alleged entry of VEPCO employees onto the Richardsons' property since December 2, 2015, to perform maintenance on the cellular telephone equipment on the pole. "The doctrine of res judicata applies to all matters which existed at the time of giving the judgment . . . , and which the party had the opportunity of bringing before the court." Shenandoah Valley R.R. Co. v. Griffith, 76 Va. 913, 925 (1882). With respect to this allegation, I find from the evidence at the hearing on June 12, 2017, that no such entries have occurred.
The Claims against T-Mobile
Res Judicata
T-Mobile is in a different position because the Richardsons suffered a nonsuit against it before the court entered the final order in the 2014 action. A limited form of res judicata nonetheless applies.
The order of May 1, 2015, overruled the defendants' plea in bar "as to the installation of the 1 ¼" fiber optic cable and SUSTAINED [it] as to the other activities of T-Mobile on the plaintiffs' property in 2012 that were disclosed at the hearing of April 23." In my letter of May 1, 2015, which was incorporated into the order of that date, I found: "You agree that any claim for damage to the plaintiffs' property by the 2002 and 2009 construction is barred by the statute of limitations."
Generally, a nonsuit of an earlier action leaves the situation as if the earlier action had never been filed. Temple v. Mary Washington Hospital, 288 Va. 134, 762 S.E.2d 751 (2014). However, there is at least one significant exception. "'[T]he action' subject to a plaintiff's nonsuit request is comprised of the claims and parties remaining in the case after any other claims and parties have been dismissed with prejudice or otherwise eliminated from the case." Dalloul v. Agbey, 255 Va. 511, 514, 499 S.E.2d 279, 281 (1998). By the order of May 1, 2015, the court eliminated from the case all claims of damage done in 2012 except the entry onto the land and the installation of the 1 ¼" fiber optic cable under the ground. I found there was no damage caused by the connection of the new cable to the pole and the replacement of the six antennas atop the pole and that ruling, even if erroneous, is now res judicata. Dalloul, supra. By your agreement, you eliminated from the case the damage done in 2002 and 2009.
However, res judicata under Dalloul does not include the doctrine of bar.
Waiver
The Richardsons pleaded in paragraph 5 of the 2014 action: "A property owner may waive her tort claim and sue under a theory of implied contract based on the Respondent's failure to pay just compensation when it has taken or damaged the owner's property pursuant to Article I, § 11 of the Virginia Constitution." T-Mobile claims this waiver bars the present action. The Richardsons argue, in effect, the nonsuit of the 2014 action withdrew the waiver.
"A waiver is the intentional relinquishment of a known right, and there must be both knowledge of the existence of the right and an intention to relinquish it." Dey v. Martin, 78 Va. 1, 7 (1883) (emphasis in original). It is difficult to imagine a better example of a waiver than the above statement, which was in a pleading drafted by a licensed attorney.
By the 18th Century, a plaintiff alleging a defendant had tortiously appropriated his personal property could waive his action in tort (e.g., trespass de bonis asportatis or trover and conversion) and sue instead on an undertaking (assumpsit) implied by law. There were advantages in doing so: more simplicity in pleading at a time precision was required, a more favorable limitation period, and survival of the action against executors. J. H. Baker, An Introduction to English Legal History 373-74 (4th ed. 2002); Raven Red Ash Coal Co. v. Ball, 185 Va. 534, 541-42, 39 S.E.2d 231, 234-35 (1946).
Since 1977, a plaintiff has been able to sue in both tort and contract in one action. Code § 8.01-272. Thus this discussion is both anachronistic and an oddity.
The Supreme Court extended assumpsit to certain cases of use and occupation of land in Raven Red Ash Coal, supra, and to inverse condemnation in Nelson County v. Coleman, 126 Va. 275, 101 S.E. 413 (1919). There is authority that: "The plaintiff's election to waive the tort, once made, is final; he is bound by it, and if he brings assumpsit he will not afterwards be permitted to sue in tort." Burk's Pleading and Practice §91, at 180-81 (4th ed. 1952). However, in the case cited in support of this statement the plaintiff prosecuted his assumpsit to judgment and then sued in tort.
Professor Corbin observed the cases were "not harmonious" on the binding effect of the waiver of tort and suit in assumpsit when the plaintiff nonsuited the assumpsit. He believed the initial waiver should not conclusively bind the plaintiff after a nonsuit unless allowing the suit in tort would be unjust to the defendant. J. Corbin, "Waiver of Tort and Suit in Assumpsit," 19 Yale Law Journal 221, 239-40 (1910). This is in accord with Virginia law on the election of remedies, i.e., a plaintiff ought not be bound by an election unless he has gained some advantage or the defendant has suffered some disadvantage thereby. Pollard & Bagby v. Thalheimer, 169 Va. 529, 194 S.E. 701 (1938). T-Mobile does not claim any prejudice by the Richardsons' actions.
I overrule the plea of waiver.
Trespass
A cause of action for trespass accrues when the first measurable damage occurs. Code § 8.01-230; Forest Lakes Commun. Assoc. v. United Land Corp., 293 Va. 113, 795 S.E.2d 875 (2017); Virginia Hot Springs Co. v. McCray, 106 Va. 461, 56 S.E. 220 (1907). Unlike those cases, in which a defendant had built a permanent structure on its own land and there was a more or less continual flow of sediment or pollutants from the structure, here damage was done on each occasion employees of VEPCO and T-Mobile dug into the Richardsons' land and walked across it to install equipment on the pole. We have here a "series of separate causes of action, each with its own set of damages." Forest Lakes, supra, 293 Va. at 125, 795 S.E.2d at 881. The trespass claims based on the installations in 2002 and 2009 are also barred by the statute of limitations.
I thus need not determine if the Richardsons had a possessory interest in the land that would give them standing to sue for trespass in 2002.
The trespass claim remaining in this action, walking on the Richardsons' land in 2012 to attach the cable to the pole, may have caused inconsiderable damage, but it is actionable. Cooper v. Horn, 248 Va. 417, 423, 448 S.E.2d 403, 406 (1994). The writ quare clausum fregit specified one general damage if no other special loss could be claimed: "the treading down and bruising his herbage." 3 Blackstone, Commentaries on the Laws of England 209-10 (1768).
Ejectment
"[Ejectment] is concerned only with the ownership rights of the plaintiff, and the proof necessary to support the action consists of the documents which vest title in the owner and any other evidence related to the issue of title." Brown v. Haley, 233 Va. 210, 216, 355 S.E.2d 563, 567 (1987). T-Mobile has always admitted the Richardsons have fee simple title to all of the lot under and out of which its cables run.
"In order to recover possession of land by an action of ejectment, the claimant must be out of possession." Kennedy Coal v. Buckhorn Coal, 140 Va. 37, 48, 124 S.E. 482, 485 (1924); Burk's Pleading and Practice, supra, § 116, at 226. The Richardsons are in possession.
The object of this action is to compel T-Mobile to remove the cables that run under approximately twenty-five feet of the Richardsons' land and partly occupy perhaps twenty square feet where they come out of the ground and attach to the pole.
The closest case I have found is Benoit v. Baxter, 196 Va. 360, 83 S.E.2d 442 (1954). The common grantor of the parties owned some contiguous lots. A house had been constructed on lot 502-A and it encroached about six feet on lot 500-A. Through various conveyances Baxter acquired lot 502-A and Benoit 500-A. Benoit filed suit for an injunction to compel Baxter to remove the encroachment. Among Baxter's defenses was the adequacy of a legal remedy, ejectment, available to Benoit. The Supreme Court disagreed:
Neither title nor right of possession is in question here. Legal title to the land in question is established by appellants' deed, and appellees admit an encroachment thereon both in their pleadings and evidence. A verdict in ejectment would specify the estate found in the Benoits, . . . but it would not abate the trespass or remove the encroachment.196 Va. at 365, 83 S.E.2d at 445.
Western Union Tel. Co. v. Williams, 86 Va. 696, 11 S.E. 106 (1890), upon which the Richardsons greatly rely, was not an ejectment action, but one of trespass on the case for damages. The Supreme Court was not asked to decide if ejectment would lie for the removal of the telegraph poles, nor did it decide that issue.
I sustain the demurrer to the count for ejectment.
Unjust Enrichment
An action for unjust enrichment is on an unwritten contract implied in law. As such it has a three year statute of limitations. Code § 8.01-246(4); Tsui v. Sobral, 39 Va. Cir. 486 (Fairfax Co. 1996); Tao of Sys. Int. v. Analytical Servs. & Mat., Inc., 299 F. Supp.2d 565 (E.D. Va. 2004). Even though the plaintiffs call this a "conversion," they only seek damages for three years. A right of action for breach of contract accrues when the breach occurs. Code § 8.01-230.
In Count 7 of their petition (paragraph 92), the plaintiffs claim "T-Mobile has converted portions of the [Richardsons'] property to its own use and for its profit." Conversion would have a five year statute of limitations, Code § 8.01-243(B), but it does not lie for land. The Supreme Court of Virginia has held conversion lies for wrongful exercise of authority over "goods" or "property." Buckeye National Bank v. Huff, 114 Va. 1, 11, 75 S.E. 769, 775 (1912). At common law the action was only available for "goods." 3 Blackstone, supra, 152-53. Chancellor Tucker agreed: "In short, it lies in general for any personal property in which the plaintiff has a general or special property." 2 Commentaries on the Laws of Virginia 86-87 (1846). He also noted it would lie for articles once part of a freehold that had been severed, but he wrote nothing about the action lying for real property. Ibid. Professor Burks wrote: "The action lies only for the conversion of specific chattels, not of realty or things partaking of the nature thereof." Pleading and Practice, supra, § 156, at 265. --------
The lease (Plaintiff's Exh. 1 of June 12, 2017) between VEPCO and Voicestream GSM, a predecessor in interest to T-Mobile, was dated August 17, 2001. The rent for each site covered was to be paid annually in advance of the anniversary of the commencement of the lease, or, if the rent exceeded a certain amount, the lessee had the option of semi-annual payments. Paragraph 3(d). The first installation on the pole occurred in 2002.
As T-Mobile's unjust enrichment is alleged to arise from its unjust use of the property and its receipt of fees from customers (Petition, paragraphs 90-93), the Richardsons' claim against it accrued no later than when they purchased the land in 2004, and is barred by the statute of limitations. A new cause of action against T-Mobile does not arise upon each customer's payment of his monthly bill ("collected fees from its subscribers;" Memorandum in Reply, pg. 5), or the execution of a new contract between VEPCO and T-Mobile.
Injunction
Given the holding in Benoit, supra, I overrule the demurrer to the Richardsons' prayer for an injunction against T-Mobile.
An order reflecting these rulings is attached.
Sincerely yours,
/s/
Everett A. Martin, Jr.
Judge EAMjr./mls