United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
William O. Bertelsman, United States District Judge
matter is before the Court on various post-trial motions.
(Docs. 362, 365, 366, 379). The Court concludes that further
oral argument is unnecessary for the resolution of these
bitterly contested case arises out of a contract entered into
by plaintiff and defendant Columbia Gas Transmission, LLC
(“Columbia Gas”), granting an easement for
defendant to install a high-pressure gas transmission line
through plaintiff's property.
contract is dated August 12, 2015 and required, inter
alia, that Columbia Gas restore plaintiff's property
“as near as practical” to its original condition
after the completion of the construction. (Doc. 132-13).
actual laying of the line and the restoration was performed
by Columbia Gas as well as by various subcontractors. One of
these subcontractors was defendant Michels Corporation, which
performed certain clearing work pursuant to a subcontract
with Columbia Gas. Michels had no contract with plaintiff.
extensive pretrial proceedings, the case came on for a jury
trial before this Court on December 3, 2018, resulting in a
verdict on December 12, 2018. (Doc. 360). The jury found
against Columbia on plaintiff's breach of contract claim
and awarded her $50, 000 for economic damages and $150, 000
for serious emotional disturbance flowing from the breach of
principal issue at trial was whether Columbia Gas had
restored plaintiff's property “as near as
practical” to its original condition and, if not, how
much it would cost to do so. Plaintiff offered expert
testimony that the restoration performed was insufficient
because not enough topsoil was returned to the area in
question, and the expert opined that it would require another
$2 million to effect proper restoration.
to trial, the Court bifurcated plaintiff's negligence and
trespass claims against Michels. Michels paid into Court the
amount (as stated by plaintiff's counsel) of the
compensatory damages that plaintiff claimed Michels owed her
for improperly blowing woodchips onto plaintiff's
property outside of the right-of-way. (Doc.
addition, the Court denied plaintiff's motion to file a
fourth amended complaint, which sought to add a fraud claim
against Columbia Gas and a prayer for punitive damages
against Michels. (Docs. 200-2, 318).
motions now before the Court are: (1) plaintiff's renewed
motion for injunctive relief (Doc. 362); (2) Columbia
Gas's motion for judgment notwithstanding the verdict on
the emotional distress damages and for a set off as to breach
of contract verdict; (3) plaintiff's motion for new trial
(Doc. 366); and (4) Michels' renewed motion for summary
judgment (Doc. 379).
Court will address these motions seriatim.
Plaintiff's Renewed Motion for Injunctive
the jury returned its verdict in this matter, plaintiff
immediately filed a renewed motion for injunctive relief
seeking specific performance against Columbia Gas. (Doc.
362). This motion is not well taken.
issue of the cost of restoration of plaintiff's property
“as near as practical” was submitted to a jury in
this matter, and the jury awarded plaintiff $50, 000. While
plaintiff is disappointed with that figure, she may not
invoke the alternative remedy of specific performance.
not a case where specific performance is necessary because
plaintiff cannot be made whole by money damages - for
example, to enforce a contract for the purchase of a unique
piece of property, as in a case upon which plaintiff relies.
See BillyWilliams Builders and Developers ...