Trespass And Other Claims: Ever Wonder If Litigation Is Worth It?

by Pepper Hamilton LLP
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Flyboy Aviation Properties, LLC v. Franck (In re Flyboy Aviation Properties, LLC), 525 B.R. 510 (Bankr. N.D. Ga. 2015) –

A chapter 11 debtor operated a small private airport.  The debtor and an adjacent landowner had a long running dispute that led to the debtor suing the landowner pre-bankruptcy for trespass.  After the bankruptcy petition was filed, the case was removed to the bankruptcy court.  The court’s decision provided an extensive discussion of the back and forth between the parties.

The defendant claimed that he thought he had unfettered access to the airport, and in any event that it was appropriate for him to inspect the runway to insure it was properly maintained, show off planes to other pilots, and exit his aircraft and reposition it at the edge of the runway or to push it into one of the adjacent hangars.  The debtor’s principal disputed that the defendant had a right to access the airport and testified that these activities were extremely dangerous.

The various allegations included:

  • The gate to the airport was locked on occasion, preventing the defendant from using the airport.
  • There was a clubhouse at the airport. Early on the defendant apparently used the clubhouse six to eight hours a day.  In part, this related to a local chapter of an aircraft association that the defendant was involved in.  Later, the debtor objected to defendant’s use of the clubhouse.
  • When the debtor hosted a “flying” barbecue as a fundraiser for the association, the principal’s daughter collected entrance fees. The defendant initially refused to pay, and then called the daughter names.
  • At some point, the debtor’s principal told the defendant he could no longer come on the property. Various exchanges between the parties followed.
  • The defendant continued to enter the property on various occasions. For example, he went onto the runway to take pictures of grave stones.
  • A few airport customers and the principal’s daughter testified that the defendant harassed them.
  • When the debtor attempted to serve a complaint on the defendant to enjoin him from trespass, the debtor claimed that the defendant evaded service so that it took almost two months to serve the complaint.
  • The defendant hired a commercial pilot to fly his plane out of the airport – paying him $500. The pilot was unable to take off because the entrance to the airport was blocked by a golf cart and a closed gate.
  • Each side took pictures and videos of the other.

As an initial matter, the court addressed the defendant’s rights to access the airport.  In a prior decision the court found that the defendant had an “express easement … that allows use of the Airport Property until such time as the Airport is no longer used as an airport.”  In this decision the court concluded that the defendant’s easement was limited to use of the taxiways and runways for taxiing, taking off, and landing.  It did not extend to activity off the taxiways or runways and did not allow walking around generally.

Turning to the reciprocal trespass claims, the court noted that under state law unlawful interference with a right of way constituted trespass, even though done peacefully or by mistake.  State law did recognize an innocent trespasser doctrine so that unintentional and non-negligent entry would not necessarily give rise to liability.  Trespass damages are generally measured by the cost to repair and the difference in fair market value before and after the trespass.  However, a court may also award nominal damages for discomfort or annoyance.

In this case, the defendant entered the airport after being told to keep out.  The court listed a series of incidents, including viewing gravestones, looking at boats stored at the airport, and leaving a note on someone’s truck.  The court determined that he was within his rights to the extent that he was using the runway and taxiways for take off and landing, but the half dozen or so other occasions amounted to trespass.  (attending a holiday party, inspecting a suspicious light, inspecting grave stones, etc.)

However there was no reason to believe that this resulted in any actual damages or diminution of value.  Consequently the court awarded the debtor nominal damages of $100.

The court went through a similar analysis of the debtor’s actions in blocking the defendant.  The defendant claimed he suffered psychological damages which prevented him from enjoying his life-long love of flying.  However, the court only awarded $500 for the cost of hiring a pilot and $100 nominal damages for interference with the easement.

The court declined to award any damages for annoyance and discomfort because of the reciprocal nature of the mutual trespasses.

Next, each party attempted to assert a nuisance claim.  Under state law nuisance is something that causes “hurt, inconvenience, or damage to another” regardless of whether it was otherwise lawful.  However it “shall not be fanciful, or as would affect only one of fastidious taste, but it shall be such as would affect an ordinary, reasonable man.”

After reviewing a variety of case law, the court addressed a series of grievances raised by the debtor and concluded that, while they may have been “annoying or upsetting to the individuals involved and may have angered [the debtor’s principal],” they did not meet the test for a nuisance.  Similarly, the defendant failed to establish a claim for nuisance.  Most of his claims were more in the nature of trespass as opposed to nuisance.

The court similarly rejected claims for tortious interference because there was insufficient evidence of interference or resulting harm.

With respect to punitive damages claims, it was necessary to show “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.”  Since the purpose of punitive damages was solely to “punish, penalize, or deter defendant,” the court decided that the parties were sufficiently punished by the protracted litigation.  (Also because the airport was being sold, there was no need for a future deterrent effect.)

The court gave similar treatment to the request for attorney fees and expenses.  Neither side had “wholly clean hands and pure motive,” so the court used its discretion to deny the requests.

So, at the end of the day, the plaintiff received a damage award of $100, the defendant received a damage award of $600, and each was enjoined from interfering with the other’s rights.

It appears that the parties were sniping at each for more than five years, and each was convinced that it was entirely in the right.  Obviously the court did not agree, and the parties did not have much to show for litigation that spanned a few years.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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