Lessor's Counterclaims Should Be Dismissed in Cell Tower Suit, Says STC Two

Plaintiffs STC Two and Global Signal asked the court to dismiss with prejudice counterclaims asserted by defendant Thomas Branham in a breach of contract lawsuit in U.S. District Court for Southern Ohio in Columbus. Branham failed to state a claim upon which relief can be granted and should be dismissed, STC Two said, said a Wednesday memorandum of law (docket 2:23-cv-00764).

Branham owns the property in Columbus where a cellsite has been operating “for decades” under a 1998 Sprint PCS site agreement that was amended in 2013. Under the lease, plaintiffs are authorized to maintain, operate and sublease the cell tower and related equipment at the site, said the motion. They filed their complaint after Branham “repeatedly and brazenly obstructed and/or prevented altogether” STC Two’s access to the cellsite in “blatant violation” of the lease,” it said.

In response to the lawsuit, Branham filed his answer and counterclaims, admitting he obstructed STC Two's access to the cellsite, said the motion. Branham “curiously asserted claims” against STC Two for trespass, preliminary and injunctive relief and breach of contract, and he installed a padlock on the gate of the metal fenced enclosure leading to the cellsite, said the motion.

The lease explicitly grants to plaintiffs a leasehold interest in the property, with a grant of easement for unrestricted rights of access and to electric and telephone facilities, said the motion. Branham’s assertion that the cellsite wasn't erected and placed within the boundaries of the easement is “unfounded and contradicted” by the lease and public record, it said. Branham obstructed STC Two’s use of the access and utility easement by storing vehicles, machinery and debris along the easement route, it said, in violation of the lease’s provision for plaintiffs’ access to the site 24 hours a day, seven days a week, the motion said.

In addition to Branham’s counterclaims, his “indifference” to lease terms, a “blatant lack of factual support” for counts asserted in the counterclaims “fail to meet the plausibility threshold” required to survive a Rule 12(b)(6) challenge, the motion said. Branham’s claim for trespass should be dismissed because plaintiffs are allowed to access the premises under the lease terms, it said. The cellsite location has existed for over 20 years as shown on the “sketch of site” in the PCS site agreement, it said.

Branham’s trespass claim is identical to his contract claim and therefore should be dismissed, said the plaintiffs. His trespass claim is “nothing more than an attempt to circumvent the operation of the Lease in a transparent attempt to rewrite the contract under the guise of an alleged tort,” the motion said. The counterclaims don’t allege Branham suffered any damages, nor do they distinguish between contractual and tort damages, so they should be dismissed, it said.

Defendant’s claim for preliminary and permanent injunctive relief is based on the “erroneous assertion” that the lease prohibits STC Two from accessing the premises except through the route shown in the memorandum of PCS site agreement, the motion said. “Even if this were the case,” Branham has “blocked or otherwise obstructed” the use of the route shown in the agreement and allowed the use of alternative routes across the property since 2005, plaintiffs said. The count should be dismissed for its “sheer contradictory nature” of relief requested, they said.

Branham didn’t sufficiently allege he performed his obligations under the lease, a perquisite for breach of contract, said STC Two. His assertion he installed a padlock on the gate leading to the property to block plaintiffs' access to the cellsite and acted in “good faith” according to the lease “cannot coexist,” the motion said. His assertion the tower is in the incorrect location, in violation of the lease, is “simply untrue and inconsistent with the public record,” STC Two said, referencing aerial images, maps and the mutually agreed upon sketch of the site in the agreement.

On the counterclaim that STC may have failed to provide an insurance certificate in violation of the lease, Branham didn’t say he requested a copy of an insurance certificate, a “condition precedent to his filing of this suit,” nor did he say how failure to provide a copy of the insurance certificate harmed him, the motion said.