Opinion
Case No. 2:02 CV 1093 ST.
June 3, 2003.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR ATTORNEY'S FEES AND COSTS
On December 20, 2003, Kern River Gas Transmission Co ("Defendant") filed a Motion to Dismiss or for Summary Judgment. On January 28, 2003, A.J. Reed Enterprises ("Plaintiff") responded to Defendant's Motion and filed a Cross-Motion for Partial Summary Judgment. On March 10, 2003, Defendant filed its Reply and response to Plaintiff's Cross-Motion for Summary Judgment. On March 27, 2003, Plaintiff filed its Reply. On May 21, 2003, Defendant filed a Motion for Attorney's fees and Costs.
Because Defendant attached materials outside the Amended Complaint, the Court will construe the Defendants's Motion as one for Summary Judgment. Upon consideration of the motions, memoranda, and being otherwise fully informed, for the reasons set forth below, the Court will GRANT Defendant's Motion for Summary Judgment and DENY Defendant's Motion to Attorney's Fees and Costs:
I. PLAINTIFF'S OBJECTION TO MORGAN, YEAMANS BORLA'S AFFIDAVITS:
While not styled as Motions to Strike, the Court will construe Plaintiff's objections to the affidavits of Kirk Morgan, Richard Yeamans, and James Borla as Motions to Strike. Federal Rule of Civil Procedure 56(e) states that "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." An affidavit that does not measure up to the standards of Rule 56(e) is subject to a Motion to Strike. Fed.R.Civ.Pro. 12(f).
The Court DENIES Plaintiff's Motion to Strike the affidavits of Morgan, Yeamans and Borla. The Court finds the affidavits are not duplicative, or irrelevant, and they appear to be based on personal knowledge. The Court further DENIES Plaintiff's objections to the exhibits supporting each affadavit.
II. SUMMARY JUDGMENT MOTIONS
Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In reviewing the record, the Court views the evidence and draws any inferences therefrom in the light most favorable to the party opposing summary judgment. Coosewoon v. Meridian Oil Co., 25 F.3d 920, 929 (10th Cir. 1994). Accepting all of the facts in the light most favorable to nonmoving party, considering each party's motion, the Court finds as follows:
A. Statute of Limitations:
"`Generally, a cause of action accrues `upon the happening of the last event necessary to complete the cause of action.' However, in certain instances, the discovery rule `may operate to toll the period of limitations `until the discovery of facts forming the basis for the cause of action.'" Safsten v. LDS Social Services, Inc., 942 P.2d 949, 952 (Utah Ct.App. 1997) (internal citation omitted). In the case of Hom v. Utah Department of Public Safety, 962 P.2d 95, 101-02 (Utah Ct.App. 1998), the Utah Court of Appeals explained:
Utah Courts will apply the discovery rule in three exceptional situations: (1) in situations where the discovery rule is mandated by statute; (2) in situations where a plaintiff does not become aware of the cause of action because of the defendant's concealment or misleading conduct; and (3) in situations where the case presents exceptional circumstances and the application of the general rule would be irrational or unjust, regardless of any showing that the defendant has prevented the discovery of the cause of action.1. Breach of Contract Claims
Pursuant to Utah Code Ann. § 78-12-23, actions based on written contracts are subject to a six-year statute of limitations. This matter commenced with the filing of a Complaint on October 2, 2002. If the discovery rule does not apply in this case, then the statute of limitations started to run in 1993 and Plaintiff's claim is clearly barred. The Plaintiff argues that the discovery rule applies based on statute and concealment.
Plaintiff cites Utah Code. Ann. § 78-12-26(1) in support of its argument that tolling is mandated by statute. This statute states in relevant part, "when waste or trespass is committed by means of underground works upon any mining claim, the cause of action does not accrue until the discovery. . . ." § 78-12-26(1). This case does not involve a mining claim and therefore § 78-12-26(1) is inapplicable and the statute of limitations does not toll.
The Court further finds the Plaintiff failed to make out a prima face case of concealment. The discovery rule applies to toll the statute of limitations period where the plaintiff establishes "prima face case that defendant actively concealed the existence of a cause of action and that, given defendant['s] actions, `a reasonable plaintiff would not have discovered the claim earlier." Hom, 962 P.2d at 102. The undisputed facts show that the original easement entered into by the parties reflects both parties' understanding that the pipeline centerline described in the easement was preliminary and could be adjusted within the 120-foot existing easement. Further, after completion of the pipeline, on November 18, 1991, Plaintiff inspected the property and acknowledged, in writing, its satisfaction of the construction cleanup, restoration and repair work. Additionally, on August 24, 1993, Defendant recorded the adjusted, as-built easement. Pursuant to the Utah Code Ann. § 57-3-102(1), recording imparts notice. Further, Utah Code Ann. § 57-4a-2 states "[a] recorded document imparts notice of its contents regardless of any defect, irregularity, or omission in its execution, attestation, or acknowledgment." As such, Plaintiff was on notice as of August 24, 1993. Additionally, the Court finds given the parties communications, Plaintiff could have reasonably discovered the facts underlying the cause of action in time to commence an action within the statute of limitations. The Court therefore finds the statute of limitations has run in this case. Therefore, the Court GRANTS Defendant's Motion for Summary Judgment with regard to the contract causes of action.
2. Trespass
The statute of limitations on a trespass cause of action is three years. Utah Code Ann. § 78-12-26(1). The timing of the statute of limitations depends on whether the trespass is characterized as permanent or continuing. See Breiggar Properties, L.C., v. H.E. Davis Sons, Inc., 52 P.3d 1133, 1135 (Utah 2002). In Walker Drug Co. Inc., v. La Sal Oil Co., 902 P.2d 1229, 1232 (Utah 1995), the court states that "`[w]here a nuisance [or trespass] is of such character that it will presumably continue indefinitely it is considered permanent, and the limitations period runs from the time the . . . [trespass] is created.' However, `if the . . . [trespass] may be discontinued at any time it is considered continuing in character.'" (internal citation omitted).
The Court notes that Plaintiff did not address Defendant's argument that the trespass action is permanent. Rather, Plaintiff argues the trespass was concealed and therefore the discovery rule applies. For the reasons stated above, the Court finds that Plaintiff failed to prove concealment. Additionally, the Court finds the trespass is permanent, and the limitations period began to run from the time the trespass was created. The uncontested facts before this Court establish that the act of trespass-the completion of the pipeline-occurred on November 18, 1991, which was the date Plaintiff inspected and approved the site. Additionally, Plaintiff was aware of the possibility of the location of the pipeline moving and could have reasonably conducted an independent investigation into when and if the location had changed. Accordingly, any claim of trespass must have been brought by November 18, 1994. The Court therefore finds Plaintiff failed to bring the action within the time required by the statute of limitations. The Court GRANTS Defendant's Motion for Summary Judgment on the trespass cause of action.
3. Due Process Taking without Just Compensation
Defendant argues Plaintiff's fourth cause of action is barred by the four-year statute of limitations in Utah Code Ann. § 78-12-25, which states that actions "upon a contract, obligation, or liability not founded upon an instrument in writing" must be "commenced at any time within four years after the last charge is made or the last payment is received." Further, Defendant is correct in arguing that where federal law is deficient, it is permissible to look to the state-law statute of limitations. Sheets v. Lindsey, 783 F. Supp. 577,579 (Utah 1991). Because Plaintiff failed to address this point in their opposition, Plaintiff effectively concedes this point. Accordingly, the Court GRANTS Defendant's Motion for Summary Judgment on the taking cause of action.
B. Damages in Reliance on Centerline Description
Defendant argues this cause of action is barred by the statute of limitations and that Plaintiff failed to state a claim upon which relief could be granted. The Court notes that because Plaintiff did not address this issue in its opposition, Plaintiff effectively concedes these points. Further, the Court finds Plaintiff has failed to properly plead a cause of action. The fifth cause of action only describes damages but fails to state any claim or prima facie elements to support any claim. The Court therefore GRANTS Defendant's Motion for Summary Judgment on the fifth cause of action.
CONCLUSION
Based upon the above, the Court GRANTS Defendant's Motion for Summary Judgment in its entirety. For the same reasons the Court DENIES Plaintiff's Motion for Partial Summary Judgment. Plaintiff's case is therefore dismissed in its entirety.
III. DEFENDANT'S MOTION FOR ATTORNEY'S FEES
Defendant cites Utah Code Ann. § 78-27-56 and 28 U.S.C. § 1927 in support of its Motion for Attorney's Fees and Costs. Utah Code Ann. § 78-27-56 states, "[i]n civil actions, the court shall award reasonable attorney's fees to a prevailing party if the court determines that the action or defense to the action was without merit and not brought or asserted in good faith. . . ." Plaintiff also asserts fees against Plaintiff's counsel personally pursuant to 28 U.S.C. § 1927. 28 U.S.C. § 1927 states in relevant part, "[a]ny attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorney's fees reasonably incurred because of such conduct."
The Court does not find bad faith on the part of Plaintiff in bringing this cause of action. However, it would note that in the future, attention to the statute of limitations would be helpful before filing a Complaint. Further, the Court finds there are no circumstances warranting fees against Plaintiff's counsel personally. Accordingly, the Court DENIES Defendant's Motion.
SO ORDERED.