Opinion
CIVIL ACTION, NO. 01-2315, SECTION "K"(1).
August 14, 2001
ORDER AND REASONS
Before the Court is a Motion for Preliminary Injunction filed by Tower Asset Sub, Inc. "TAS") and SpectraSite Communications, Inc. (SCI") (referred to collectively as "SpectraSite") which came for hearing on August 1, 2001. This matter arises out of a dispute over the terms of a lease for certain property upon which SpectraSite's telecommunication tower sits. Albert Coleman, pro se defendant, contends inter alia, that SpectraSite has not paid taxes SpectraSite's predecessor agreed to pay. As a result, Mr. Coleman blocked access to the tower and cut-off the power to it. In response, plaintiffs sought and were granted after an informal hearing held by phone on August 1, 2001 a Temporary Restraining Order in which Mr. Coleman was enjoined from disrupting the electric power supply to the telecommunication tower; blocking access to the tower; and threatening or causing bodily harm to those with lawful business on the leased premises.
The subject hearing was conducted to determine whether a preliminary injunction should issue. The Court heard the testimony, reviewed the evidence presented, heard the arguments of counsel and Mr. Coleman, reviewed the pleadings, memoranda and the relevant law. The Court, for the reasons that follow, shall enter a preliminary injunction.
Standard for Preliminary Injunction
A preliminary injunction is an extraordinary equitable remedy that may be granted only if a plaintiff establishes the following four elements:
(1) a substantial likelihood of success on the merits; (2) a substantial threat that plaintiff will suffer irreparable injury if the injunction is denied; (3) that the threatened injury outweighs any damage that the injunction might cause defendants; and (4) that the injunction will not disserve the public interest.Sugar Busters LLC v. Brennan, 177 F.3d 258, 265 (5th Cir. 1999). As such, the decision to grant a preliminary injunction is to be treated as the exception rather than the rule. State of Texas v. Seatrain Int'l. SA., 518 F.2d 175, 179 (5th Cir. 1975). Plaintiffs must carry the burden of proving all four factors. Black Fire Fighters Ass'n v. City of Dallas. Tex., 905 F.2d 63, 65 (5th Cir. 1990). Thus, the first inquiry is whether plaintiffs have a substantial likelihood of success on the merits.
SpectraSite presented sufficient evidence to show a likelihood of success on the merits that there is a valid enforceable lease which was assigned by SpectraSite's predecessor, Nextel, to SpectraSite which entitles SpectraSite access to the premises. Furthermore, the type of self-help taken by Mr. Coleman is not sanctioned under the law. A landlord is required to resort to the judicial process to take possession of leased premises and may not engage in self-help except when a lessee has unjustifiably abandoned the leased premises. Gennings v. Newton, 567 So.2d 637, 642 (La.App. 4th Cir. 1990). In Gennings, the court noted that "Padlocking a tenant out of his apartment constitutes the tort of wrongful eviction or trespass and the tenant may recover damages from the landlord."
The next criteria is whether there is the substantial threat that SpectraSite would suffer irreparable injury should the Court deny this motion for a preliminary injunction. When the tower's electric power is shut off, SpectraSite's telecommunication tenants on the tower loose wireless coverage in the area surrounding the tower, including 911 emergency service. This action would damage SpectraSite's reputation and goodwill with its carriers, as well as damage to the consumers in the service area. These injuries would be difficult to quantify. Thus, as the Fifth Circuit noted in Lakedreams v. Taylor, 932 F.2d 1103, 1109 (5th Cir. 1991), it has recognized that when economic rights are especially difficult to calculate, a finding of irreparable harm may be appropriate. In this instance, the Court finds there is a substantial threat of irreparable injury should Mr. Coleman not be enjoined from prohibiting access to the tower and shutting off its power.
As to the third criteria, the threatened injury to SpectraSite, interruption of service, outweighs any damage that the injunction might cause Mr. Coleman. It appears to the Court at this juncture that the sole damage that might occur to Mr. Coleman are tax payments and late fees that he has paid because of SpectraSite's alleged erroneous failure to do so. Thus, any injury to Mr. Coleman that might be found can easily be quantified.
Finally, it is self-evident that the injunction will not disserve the public interest, rather it would serve the public interest considering a disruption in phone service would be deleterious to the phone using public.
Considering then the four factors, it is clear that the preliminary injunction should issue. Accordingly,
IT IS ORDERED that Motion for Preliminary Injunction filed by Tower Asset Sub, Inc. "TAS") and SpectraSite Communications, Inc. (SCI") is GRANTED.
IT IS FURTHER ORDERED that Defendant Albert R. Coleman, as well as his agents, servants, employees, attorneys, corporations and any other such person or entitites in active concert or participation with him be and hereby is (a) enjoined from disrupting the electric power supply to Plaintiff's telecommunication tower; (b) enjoined from blocking access to Plaintiff's telecommunication tower; and (c) from threatening or causing bodily harm to those with lawful business on the leased premises, pending a final resolution of this case.
IT IS FURTHER ORDERED that the bond in the sum of $1000.00 previously posted for the payment of such costs and damages as may be incurred or suffered by any party who may be found to be wrongfully restrained or enjoined for the issuance of the Temporary Restraining Order of July 27, 2001 shall continue in place.