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7th Circuit dismisses fiberoptic trespass case over non-final judgment

April 5, 2019

Lack of jurisdiction prompted the 7th Circuit Court of Appeals’ dismissal of an Indiana man’s claims against a utility company Thursday, after it concluded the conditional dismissal of his claims against the company rendered the judgment non-final.

Stephen West inherited a small plot of land in Jeffersonville that adjoins the Ohio River and serves as home to a nearly 300-foot-tall utility transmission tower. The tower carries power lines for Louisville Gas and Electric Company that run between Indiana and Kentucky. The lines are authorized by a utility easement entered into by West’s predecessors in 1938.

The easement generally grants LG&E the right to install and maintain towers and wires along and over West’s property “for the transmission, distribution and delivery of electrical energy” for gas and electric services.  

But when LG&E gave Charter Communications, Inc. permission to run fiberoptic cable carrying television and internet content and services across West’s property through the LG&E tower, West sued both Charter and LG&E seeking a declaratory judgment that the easement did not authorize the installation, asserting breach of contract, trespass, and unjust enrichment. However, the U.S. District Court for the Southern District of Indiana dismissed all claims against Charter when it concluded Charter’s use of the easement on West’s property was authorized.

West and LG&E then entered into an agreement providing that West would voluntarily dismiss his claims against LG&E, while reserving the right to revive them in the event the 7th Circuit Court of Appeals reversed the district court’s dismissal of the claims against Charter.

His appeal was dismissed however, when the 7th Circuit concluded it did not have appellate jurisdiction to hear the case because it was “manifestly not a final decision.”

Writing for the unanimous panel in Stephen West v. Charter Communications, Inc., 18-1906, Circuit Judge Ilana Rovner noted that despite the overlap in theory and claims against the Charter defendants, neither LG&E nor West asked for an entry of final or binding judgment resolving the claims against LG&E based on the rationale of the decision dismissing Charter.

“Instead, the parties presented the court with a stipulation of dismissal (without prejudice) which posited, with no substantive analysis, that West’s claims against LG&E had been rendered ‘moot’ by the dismissal of the claims against the Charter defendants,” Rovner wrote. “The district court’s decision rejecting the stipulation of dismissal explained why, in its view, the decision as to the Charter defendants did not (wholly) resolve the viability of the claims against LG&E, and West has given us no reason to doubt that the district court’s assessment was correct.

“This conditional dismissal of the claims against LG&E represents the very sort of attempt to manufacture appellate jurisdiction of which our precedents have consistently disapproved,” the panel continued.

The 7th Circuit also found the case at question to be a “start-over” case pursuant to Arrow Gear Co. v. Downers Grove Sanitary Dist., 629 F.3d 633, 636 (7th Cir. 2010).

“West and LG&E have attempted to construct a nominally final judgment and open the door to an immediate appeal by bringing the proceedings in the district court as to the remaining defendant, LG&E, to a close, but on terms that leave West’s options open as to LG&E depending on how he fares against the Charter defendants in this appeal,” Rovner wrote. “The resulting judgment is not, in practical effect, a final one, and that deprives us of appellate jurisdiction.

“Certainly, it is West’s right to preserve his claims against LG&E. But his refusal to surrender them unequivocally at this juncture makes clear that the judgment in this case is non-final.”

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