CHARLESTON — The West Virginia Supreme Court of Appeals issued a memorandum decision in an appeal involving Windstream Communications.
The petitioners, Ronald Kimberling, Michael Corlis, Deborah Corlis, Larry G. Hutcheson, Deborah Hutcheson and D.A. Allen, appealed the Braxton Circuit Court's decision not to certify them as a class and to grant a motion for partial summary judgment on their trespass claim in July 2017, according to the Oct. 10 memorandum decision.
The Supreme Court felt the appeal would not be aided by oral argument because there were no questions of law or prejudicial error.
The petitioners claim Windstream relied on Monongahela Power Company's rights-of-way to enter the property of the petitioners to install cable.
The petitioners then filed a complaint for trespassing with Braxton Circuit Court and sought to have a class certified for a class-action lawsuit against Windstream, however, a Braxton Circuit judge, denied the motion for class certification and granted the request for summary judgment at the same time.
The petitioners then appealed the orders, claiming that the circuit court was wrong to grant summary judgment because there were "material disputes" regarding whether Windstream could enter their property via Mon Power rights-of-way.
They also argued that the circuit court wrongfully denied the motion for class certification.
The Supreme Court ruled that while the petitioners alleged that the pole attachment agreement “required” that respondent obtain new easements, the court found that these facts "do not degrade the easements between Mon Power and the landowners."
"Those easements permitted entry onto the land 'for the construction, maintenance, alteration or removal of an electric distribution system and telephone system including all necessary rights to add additional wires...'" the decision states. "We agree with the circuit court that respondent’s use did not exceed the authority of the easements and therefore did not constitute trespass, which we have defined as 'an entry on another man’s ground without lawful authority, and doing some damage, however inconsiderable, to his real property.'"
The Supreme Court ruled that Braxton Circuit Court did not err when it granted the motion for summary judgment.granting respondent’s motion for summary judgment.
The Supreme Court noted in the decision that because it found that the court didn't err in granting summary judgment, they would not consider the denial for class certification.
Chief Justice Margaret L. Workman; Justice Beth Walker; Justice Paul T. Farrell, sitting by temporary assignment; Justice Tim Armstead; and Justice Evan H. Jenkins participated in the decision.
Justice Allen H. Loughry II is suspended and did not participate.
The petitioners were represented by Larry O. Ford and Sean W. Cook.
Windstream is represented by Seth P. Hayes and Dale H. Harrison.
West Virginia Supreme Court of Appeals Case number: 17-0763
