United States District Court, W.D. Missouri, Central Division
NANETTE K. LAUGHREY UNITED STATES DISTRICT JUDGE.
March 31, 2014, the Court ruled that Defendants, Sho-Me Power
Electric Cooperative (“Sho-Me Power”) and Sho-Me
Technologies (“Sho-Me Tech”), were both liable
for crossing the class members' land to operate their
commercial telephone business without first obtaining
commercial telecommunications easements from the landowners.
Doc. 396. It found liability based on both trespass and
unjust enrichment. Plaintiffs elected at trial to proceed on
their unjust enrichment claim, and a jury awarded Plaintiffs
$79, 014, 140 in actual damages. Doc. 619.
Sho-Me Defendants appealed. On appeal, the Eighth Circuit
reversed this Court's grant of summary judgment on the
unjust enrichment claim but affirmed the grant of summary
judgment on the trespass claim. Barfield v. Sho-Me Power
Elec. Coop., 852 F.3d 795, 799-804 (8th Cir. 2017). The
Eighth Circuit ordered the matter remanded, giving the
landowners a right to pursue damages on their trespass claim
if they elected to do so.
second trial, a jury found Plaintiffs' damages for the
trespass to be $129, 211, 337 and awarded Plaintiffs punitive
damages in the amount of $1, 300, 000. Doc. 859. Before the
matter was submitted to the jury, however, Defendants filed a
Rule 50(a) motion. For the reasons set forth below,
Sho-Me's Rule 50(a) motion is denied.
Power placed fiber optic cable on its electric transmission
easement across the class members' land for
telecommunications purposes. Neither Sho-Me Power nor Sho-Me
Tech had an easement to cross the class member's land for
the purpose of commercial telecommunications. Nonetheless,
the fiber optic system was intentionally developed to have
far more capacity than Sho-Me Power needed to meet its own
internal telecommunication needs, because Sho-Me Power
planned to lease its excess capacity to Sho-Me Tech for a
commercial telecommunications business. P29; Doc. 867, Tr.
221:10-21, 225:2-14; 219:15-220:1. Sho-Me Tech then entered
into multiple contracts, with various entities, for
telecommunications services on Sho-Me Power's fiber optic
network. Doc. 867, Tr. at 228:5-10; P47; Doc. 868, Tr. at
300:2-302:21. At the time of trial, Sho-Me Tech's
revenues were approaching $320 million annually. Doc. 868,
Tr. at 288:12-17-22; P56.
Sho-Me Power had the right to condemn property for electric
transmission and even telecommunications purposes related to
its electric services, it had no right to condemn property
for commercial telecommunications. Indeed, Missouri law
prohibited it from operating a commercial telecommunications
business at all. Nevertheless, Sho-Me Power created Sho-Me
Tech to operate a commercial telecommunications business.
P31; Doc. 868, Tr. at 292:2-11. Sho-Me Tech had no employees
and was for all intents and purposes operated by Sho-Me
Power. Doc. 868, Tr. at 351:10-23. Much of the revenue
generated by Sho-Me Tech's extensive telecommunications
business was transferred to Sho-Me Power, permitting Sho-Me
Power to reduce its customers' electric rates. Doc. 868,
Tr. 294:10-13. Sho-Me Power provides the lowest-priced
wholesale electric service in Missouri and the third
lowest-priced wholesale electric service in the United
States. Doc. 870, Tr. 672:14-23. Sho-Me Tech has been
described as the best investment Sho-Me Power ever made. Doc.
868, Tr. 355:2-4.
Motion for Judgment as a Matter of Law Standard
Rule of Civil Procedure 50 provides that a court may enter
judgment as a matter of law against a party after the party
has been fully heard if there is no legally sufficient
evidentiary basis for that party's claims. Fed.R.Civ.P.
50(a)(1). “[T]he law places a high standard on
overturning a jury verdict because of the danger that the
jury's rightful province will be invaded when judgment as
a matter of law is misused.” Bavlsik v. Gen.
Motors, LLC, 870 F.3d 800, 805 (8th Cir. 2017)
(quotation marks and citation omitted). “Judgment as a
matter of law is proper only when the evidence is such that,
without weighing the credibility of the witnesses, there is a
complete absence of probative facts to support the
verdict.” Browning v. President Riverboat
Casino-Mo., Inc., 139 F.3d 631, 634 (8th Cir. 1998).
argue for judgment as a matter of law as to both compensatory
damages and punitive damages.
The Nature of the Trespass
first ask the Court to reconsider its earlier ruling that the
trespass is temporary, not permanent. Doc. 847, at 11-17. If
the trespass is permanent, the measure of damages would be
the difference in fair market value before and after the
trespass, rather than the fair market rental value. According
to Defendants, the Plaintiffs did not present evidence of the
before-and-after fair market value, and Defendants therefore
argue that only nominal damages were
Missouri law, an appropriation that is “capable of
actual, physical repair, ” “readily removable,
” and “only slight and amenable to
restoration” is temporary, not permanent. Sterbenz
v. Kansas City Power & Light Co., 333 S.W.3d 1, 8-9
(Mo.Ct.App. 2010) (citation omitted). In such a case,
“recovery for permanent damage is not
permissible.” Id. Thus, in Beetschen v.
Shell Pipe Line Corp., the Missouri appellate court
found that a fence impermissibly erected above a properly
authorized pipeline constituted a temporary and continuing
trespass because it “may be removed and the land
restored to its former condition without in any wise
interfering with the crude oil flowing through the pipe
line.” 248 S.W.2d 66, 73 (Mo.Ct.App. 1952)
(“Beetschen I”). In affirming the
finding that the trespass was temporary, the Missouri Supreme
Court noted that “all trespasses to land incidental to
the maintenance of” the authorized purpose of the
easement-in other words, all uses that are “not an
integral part of the . . . purpose for which private property
may be condemned, ” are temporary. Beetschen v.
Shell Pipe Line Corp., 363 Mo. 751, 759 (Mo. 1952)
contrast, a permanent trespass is one in which “injury
to real property is extensive or permanent, not easily [or
fully] remedied by repair . . . .” Sterbenz,
333 S.W.3d at 9 (citation omitted). A trespass is also
considered permanent where “the appropriation was in
fact necessary for the very public purpose for which the
easement could have been acquired in a condemnation
proceeding.” Beetschen I, 253 S.W.2d at 788.
the Defendants' trespass involved no physical structure
that would have to be removed to terminate the
trespass. In fact, the trespass is readily abatable:
to halt the trespass, Defendants would need only to cease
commercializing the fiber optic cable on the class
members' land. The trespass can stop without interfering
with the communications for electric transmission-the only
authorized use of the easement.
argue, however, that because Sho-Me Tech had the authority to
condemn land for commercial telecommunications purposes, its
use of Sho-Me Power's cables for telecommunications is
“necessary for the very public purpose for which the
easement could have been acquired in a condemnation
proceeding, ” and therefore, as a matter of law, cannot
be abated. But the evidence showed that the cable at issue is
merely one part of an information superhighway, a
“mesh” of cables that is not necessarily or
predictably used by Sho-Me Tech at any given time. Doc. 867,
Tr. at 226:7-228:23 (“We have multiple routes that we
can choose . . . .”). The use of the cable across
Plaintiffs' land for commercial telecommunications
purposes therefore cannot be deemed “necessary”
to the “public purpose” that Tech may serve.
Moreover, Defendants fail to direct the Court to any actual
evidence supporting their claims that they cannot
cost-effectively run Sho-Me Tech's commercial telephone
business without trespassing, particularly given Sho-Me
Tech's regular transfer of proceeds to Sho-Me Power.
See Doc. 847, at 7 (citing only Doc. 311-1, a
redline of a class notice, in support of this argument).
the agreement governing Sho-Me Tech's usage of Sho-Me
Power's fiber optic cable can be terminated on six
months' written notice, and Sho-Me Power totally controls
Sho-Me Tech. Therefore, it is up to Sho-Me Power, an entity
without the power of condemnation, to determine how long
Sho-Me Tech will conduct its telecommunications business. As
such, it cannot be said that Sho-Me Tech's trespass will
Defendants have failed to show that they have been prejudiced
by Plaintiffs' claim for temporary trespass as opposed to
a claim for permanent trespass. By definition, the damages
for permanent trespass would be higher. This is confirmed by
every case concerning a permanent trespass reviewed by the
Court. In each, it was the landowner who wanted the trespass
to be permanent and the trespasser who wanted it to be
temporary. It also is confirmed by Dr. Kilpatrick's
testimony, which showed the before-and-after fair market
value damages to be substantially higher than the damages for
these reasons, the Court will not alter its ruling that the