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Edward P. Morse and Morse v. Seg Us 95

September 2, 2011


The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge



Pending before the Court in the above-entitled matter is the Defendant's Partial Motion for Summary Judgment. The parties have filed responsive briefing and the matters are now ripe for the Court's review. Having fully reviewed the record herein, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, the Motion shall be decided on the record before this Court without oral argument.


The Plaintiffs, Edward P. Morse and Morse Family, LLC #1, own three adjoining parcels of real property in northern Idaho which, in 2006, had been planned for commercial development as the Honeysuckle Plaza subdivision. (Dkt. 1.) In April of 2006, Plaintiffs and Defendant SEG US 95, LLC ("SEG") entered into a Ground Lease Agreement ("Ground Lease") for the parcel located on the southeast corner of Honeysuckle Avenue and U.S. 95 in Kootenai County, Idaho ("Leased Property"). The parties anticipated SEG would construct a building on the Leased Property that would then be subleased to Walgreens Co. The terms of this Ground Lease is the subject of the parties' disputed in this case.

After the Ground Lease was executed, on April 25, 2007, Plaintiffs recorded a Plat for the land upon which the Leased Property is a part of that described easements for access, utilities, and a common reserved access driveway for all of the Honeysuckle Plaza subdivision. (Dkt. 1.) Thereafter, on February 26, 2008, Walgreens and SEG entered into a sublease agreement. On October 16, 2008, Plaintiffs and SEG executed a Memorandum of Lease. Ultimately, SEG constructed a building on the Leased Property which, Plaintiffs argue, encroaches upon some of the easements as recorded in the Plat. As a result, Plaintiffs initiated this action by filing their Complaint raising claims for 1) Breach of Ground Lease, 2) Trespass, Nuisance and/or Encroachment of Morse Family Reversionary Interest, 3) Trespass, Nuisance and/or Encroachment of Mr. Morse's Reversionary Interest, 4) Trespass, Nuisance, and/or Encroachment of Morse Family, 5) Interference with Contract Rights of Morse Family, and 6) Injunctive Relief. (Dkt. 1.) SEG filed an Answer denying the allegations and raising Counterclaims for 1) Breach of Contract and 2) Breach of the Covenant of Quiet Enjoyment. (Dkt. 7.) SEG has filed the instant Motion seeking partial summary judgment in its favor on its Counterclaim for Breach of Contract and against Plaintiffs on their First, Second, Third, Fifth, and Sixth causes of action. (Dkt. 30.)*fn1 The Court finds as follows.


Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56 provides, in pertinent part, that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion." Fed. R. Civ. P. 56(a).*fn2 "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).

The party moving for summary judgment has the initial burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, 477 U.S. 242, 247-48 (1986). Once the moving party has met this initial burden, the nonmoving party has the subsequent burden of presenting evidence to show that a genuine issue of fact remains. The party opposing the motion for summary judgment may not rest upon the mere allegations or denials of her pleading, but must set forth specific facts showing that there is a genuine issue for trial.

Id. at 248. If the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial" then summary judgment is proper as "there can be no 'genuine issue of material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).*fn3

Moreover, under Rule 56, it is clear that an issue, in order to preclude entry of summary judgment, must be both "material" and "genuine." An issue is "material" if it affects the outcome of the litigation. An issue, before it may be considered "genuine," must be established by "sufficient evidence supporting the claimed factual dispute . . . to require a jury or judge to resolve the parties' differing versions of the truth at trial." Hahn v. Sargent, 523 F.3d 461, 464 (1st Cir. 1975) (quoting First Nat'l Bank v. Cities Serv. Co. Inc., 391 U.S. 253, 289 (1968)). The Ninth Circuit cases are in accord. See, e.g., British Motor Car Distrib. V. San Francisco Automotive Indus. Welfare Fund, 883 F.2d 371 (9th Cir. 1989).

According to the Ninth Circuit, in order to withstand a motion for summary judgment, a party (1) must make a showing sufficient to establish a genuine issue of fact with respect to any element for which it bears the burden of proof; (2) must show that there is an issue that may reasonably be resolved in favor of either party; and (3) must come forward with more persuasive evidence than would otherwise be necessary when the factual context makes the non-moving party's claim implausible.

Id. at 374 (citation omitted). Of course, when applying the above standard, the court must view all of the evidence in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Hughes ...

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