United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. United States District Judge.
is the motion for summary judgment on the issue of punitive
damages sought herein by plaintiff against defendant Skyway
Towers, LLC (“Skyway”), which motion was filed by
Skyway on May 21, 2018.
Factual and Procedural Background
case arises out of construction of a cellular communications
tower by Skyway on a plot of land that plaintiff, Lawson
Heirs Incorporated (“Lawson”), alleges is at
least partially owned by Lawson and partially owned by other
defendants Howard Lee Farley, Jr. and Delorse Fry Farley
(together, “Farley defendants”). Compl.
owns property adjacent to property owned by the Farley
defendants. See Email LH 0318 Ex. H Pl.'s. Resp.
Def.'s Mot. Summ. J. (“Pl.'s Resp.”). In
2015, Defendant Skyway was seeking a site to build a cellular
communications tower for use by Verizon Wireless. See Email
LH 0252 Ex. 1 Def.'s Mot. Summ. J. (“Def.'s
Mot.”); Email LH 0261 Ex. 2 Def.'s Mot.; McMillen
Dep. 16. Ex. 11 Def.'s Mot.; Def.'s Mem. Supp. Mot.
Summ. J. 2 (“Def.'s Mem.”). One of the
potential build sites was located solely on the Lawson
property, and a second was seemingly located on the Farley
property. Email LH 0261 Ex. 2 Def.'s Mot.; see Email LH
0252 Ex. 1 Def.'s Mot. In November of 2015, the site that
was ostensibly on the Farley property was selected as the
final construction site. Email LH 0261 Ex. 2 Def.'s Mot.
November 19, 2015, Ken Kuszpit, a representative of
Strategis, LLC (“Strategis”), the selection
contractor hired by Skyway, contacted Lawson representative
Charles Howard, and informed Lawson that Mr. Farley ensured
that the selected site was fully on the Farley lot.
Id.; see McMillen Dep. 16. Mr. Kuszpit stated that
“we will naturally confirm that [assertion] with a
survey.” Email LH 0261. On December 11, Mr. Howard
emailed Mr. Kuszpit expressing an interest in the location of
the selected site, stating: “Given the importance of
the property boundary with Mr. Farley, and inasmuch as the
chosen site may be but a stones [sic] throw away from said
boundary, [Lawson] would like to see the results of the
recent boundary survey.” Email LH 0012 Ex. C Pl.'s
Resp. On December 14, 2015, Mr. Howard informed Mr. Kuszpit
that he had been “research[ing] old maps going back to
1927 and all show the boundary with Farley . . . as following
the ridge line going south towards the highway.” Email
LH 0011 Ex. C Pl.'s Resp.
contracted with Robert McMillen of McMillen Consulting in
November or December 2015 to conduct the surveys of the
selected site. McMillen Dep. 13, 16-17, 24. Because Mr.
McMillen is not a licensed surveyor in West Virginia, he
associated with a Mr. Whitman,  of Encompass Energy Services, who
stamped the final survey. See McMillen Dep. 43-46; Def.'s
Mem. 2; Pl.'s Resp. 3. The site selected by Skyway for
the tower had no setback from the western edge of the Farley
property, so Mr. McMillen testified that he “tried to
go the extra mile to determine where that property line was,
” and agreed that “if [he] was off, even by a
matter of inches, [the site] would be encroaching on the
other parcel of property.” Id. at 26. However,
he denied that “anyone had made [him] aware that there
was some issue as to where this western boundary line was
located, [or] that [Lawson] thought it might be on their
property.” Id. at 25-26. Mr. Farley
represented to Mr. McMillen that the western edge of his
property, the edge that is the subject of this suit,
“was the fence line all the way up to the gate. And
then it shot up over the hill to an old stump up
there.” Id. at 18.
course of the survey, Mr. McMillen conducted both fieldwork,
wherein he physically inspected the property, and deed work,
wherein he researched the chain of deeds describing the plot,
in order to determine the property boundaries. Id.
19-22. To “set the corners” of the Farley land,
Mr. McMillen testified that he used a deed for the Lawson
plot, because “it was the only one that had bearing
distances on it, ” though, he stated, there were still
“some problems” with the Lawson deed.
Id. at 22. Specifically, he stated the Lawson deed
“didn't line up with the physical -- the physical
locations, ” and “the deed kicks too far to the
-- to the west.” Id. Mr. McMillen produced his
original survey drawing on December 14, 2015 locating the
western edge of the cellular tower site as falling precisely
on the western edge of the Farley property. See LH 0014-0016
Ex. C Pl.'s Resp.
February 22, 2016, the survey of the Farley property boundary
was sent to Lawson representative Charles Howard. Email LH
0010 Ex. 3 Def.'s Mot. In that email, Mr. Kuszpit stated
that the cellular tower site “abuts [Lawson] property
but is on the Farley's property.” Id. That
same day, Mr. Howard informed Mr. Kuszpit that Lawson was
going to have its “own surveyor mark the boundary very
soon.” Email LH 0293 Ex. E Pl.'s Rep. On May 31,
2016, Lawson representative Larry George emailed Strategis
representative Ryan Johnson informing Skyway that the Lawson
surveyor had “completed his work and determined that at
least part, if not all, of the proposed tower and its
infrastructure are situated on [Lawson] land.” Email LH
0320 Ex. H Pl.'s Resp. Approximately one hour later, Mr.
Johnson requested the copy of the Lawson surveyor's work
for review. Email LH 0319-0320 Ex. H Pl.'s Resp.
a complete survey was not produced, some documents from
Lawson's surveyor, Roger Tackett, were provided to Skyway
on May 31, 2016. Def.'s Mem. 3-4. After reviewing the
site and a number of deeds tracing back to 1894,
Tackett came to the opinion that the Lawson property line did
not follow the fence, as Mr. Farley asserted, but instead
matched the topographical features of the land; Mr. Tackett
described the “center of the point, knob, and ridge as
the division line of the property.” Email LH 0303-304
Ex. G Pl.'s Resp; 1894 Deed LH 0379 Ex. G Pl.'s Resp.
(including references to boundaries going “straight up
George then stated his belief that “the next step is
for [Lawson] to contact Mr. Farley directly and share our
position with him, ” said he would “send him a
letter in the coming week, ” and asserted that Lawson
was “relying on the description of the boundary in the
April 27, 1934 Deed, ” one of the deeds describing the
property that was reviewed by Mr. Tackett. Email LH 0318 Ex.
H Pl.'s Resp. Mr. Johnson responded that he would
“have [Lawson's] surveyor review all their
documentation” and advise the Farley defendants of the
forthcoming letter. Id. Skyway's surveyor
rechecked and revised the survey drawings at least once in
response to Lawson's concerns. McMillen Dep. 57-60. A
complete survey was never given to Skyway by Lawson and the
record does not indicate that any further communication
regarding the property took place between early June of 2016
and December of 2016. See Def.'s Mem. 3; Emails LH
0318-0321 Ex. H Pl.'s Resp.
November 2016, construction began on the site that was
ostensibly leased by Skyway from the Farley defendants,
without giving notice to Lawson. Behuniak Dep. Ex. B
Pl.'s Resp. 122, 125-26. On December 9, 2016, shortly
after construction had begun, Lawson sent Skyway a cease and
desist letter reasserting its belief that the subject tower
was to be constructed at least partially on Lawson land and
requiring that Skyway “cease and desist from any
further unauthorized entry and trespass on the lands.”
Cease and Desist Letter (“Letter”) Ex. 6
Def.'s Mot.; see Option and Lease Agreement Ex. F
Pl.'s Resp. The letter further stated Lawson “is
open to entering a lease with the appropriate entity for the
construction and operation of this tower.” Id.
Following this letter, Skyway engaged legal counsel, Robert
Grant, to correspond with Lawson. Def.'s Mem. 3; see
Email LH 0371-0372 Ex. 7 Def.'s Mot.
phone call between Mr. Grant and Lawson representative Mr.
George that took place on December 15, 2016, Mr. Grant again
sought to obtain a copy of the survey completed by
Lawson's surveyor by email on December 22, 2016. Email LH
0371 Ex. 7 Def.'s Mot. On December 28, 2016, Mr. George
provided Mr. Grant with the same documents that had been
previously given to Skyway in support of Lawson's
assertions, including the 1894 deed, which described what is
now the Farley property. Email LH 0369-0379 Ex. J. Pl.'s
Resp.; Documents LH 0373-0387 Ex. J Pl.'s Resp. Mr.
George summarized that Lawson's position of using the
ridge as the property line was based primarily on the
language in the 1894 deed. LH 0370 Ex. J Pl.'s Resp. Mr.
George further advocated for this position because
“most of the old property lines in the coal fields
follow creeks and ridges, etc.” Id. Skyway
again had its surveyor check and confirm that the leased area
was entirely contained on the Farley defendants' property
in response to Lawson's concerns. See Emails LH
0019-0020, 00368-369 Ex. J. Pl.'s Resp.
their correspondence and the receipt of a cease and desist
letter, construction was resumed, and on February 24, 2017,
Lawson's representative Mr. George sent the following
email to Mr. Grant:
[W]e seem to be having some miscommunication about the
Skyway cell tower in Logan County, WV. I understood that
Skyway had agreed to provide a new boundary line plat which
we could review before any further construction occurred . .
. . I was just advised by our land manager/engineer that a
contractor is on site with two men operating a backhoe to
level the site on the lands of [Lawson]. I can send you a
picture if you like. Please advise your client to cease and
desist all construction activity on [Lawson] lands and to
remove all equipment and persons from the same. The failure
to do so will bring immediate legal action in the Circuit
Court of Logan County.
Email LH 0019 Ex. J Pl.'s Resp. Construction continued
and the subject tower was completed by March of 2017.
Behuniak Dep. 132. Thereafter, Lawson ...