Moses Appeal Brief

CASE NUMBER S07A0780 IN THE SUPREME COURT OF GEORGIA CHRISTOPHER MOSES Plaintiff-Appellant, v. TRATON CORP., et al. Defendants-Appellees.

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Supreme Court Case Number S07A0780

APPELLANT'S APPEAL BRIEF Sam S. Han Georgia Bar Number 322284 SAM HAN, P.C. 330 Bloombridge Way Marietta, GA 30066 Phone: (404) 514-8237 email: [email protected] Counsel for Plaintiff-Appellant Charles B. Pekor Georgia Bar Number 570601 Daniel E. DeWoskin Georgia Bar Number 220327 PEKOR & DeWOSKIN, LLC 270 Peachtree Street, NW Suite 1060 Atlanta, GA 30303 Phone: (404) 221-8887 email: [email protected] Counsel for Plaintiff-Appellant

APPELLANT'S APPEAL BRIEF COMES NOW Christopher Moses, Appellant, by and through his undersigned attorney, and hereby appeals the lower court's GRANT of summary judgment to Appellees and DENIAL of summary judgment to Appellant. I. JURISDICTION The Supreme Court of Georgia has jurisdiction over this matter because the requested relief includes an injunction, which is considered an extraordinary remedy.1

This is a direct appeal

from a grant of summary judgment,2 and is properly before this Court in accordance with OCGA § 5-6-34(a)(1). II.

JUDGMENT APPEALED, DATE OF ENTRY, AND PROCEDURAL HISTORY Being appealed is the Order granting Defendants' Cross-

Motion for Summary Judgment and denying Plaintiff's Motion for Summary Judgment.3

The Order is dated October 9, 2006, served on

counsel on October 10, 2006, and post-marked October 16, 2006.

A

Notice of Appeal was timely filed with the Superior Court of Cobb County on November 1, 2006, in accordance with the statutory procedure set forth in OCGA § 5-6-34(a)(1).

The required fee was

timely paid, in accordance with Rule 5 of the Rules of the Supreme Court of Georgia, through the Court's electronic payment system on February 12, 2007.

1

Constitution of the State of Georgia, Sec. VI, Para. III, Cl. (5). 2 OCGA § 9-11-56(h). 3 Record ("R."), p. 1118-1127 (Order, Civil Action File No. 05-18395-35). 1

III. STATEMENT OF FACTS The following facts are supported by evidence of record.

4

The lower court was required to view these facts in the light most favorable to Plaintiff-Appellant, who is the non-moving party on the Cross-Motion for Summary Judgment.

Much of these

facts, if not all, were omitted or ignored by the lower court. On May 27, 2004, Appellant purchased his home from one of the Traton entities (hereinafter collectively referred to as "Traton").5

Appellant's home is situated within the Lakefield

Manor subdivision.6

Traton is the developer for the Lakefield

7

Since the purchase of his home, Appellant

Manor subdivision.

has always maintained immaculate care of the lawn that is 8

attached to his home, including the right-of-way that is part of his yard.9 4

The right-of-way is visibly indistinguishable from

Transcript of Motions Hearing ("T."), p. 44, lines 1-5 ("44:15"). 5 R. 1407; T. 4:1-4; T. 14:6-7. R. 303 (Letter from Traton's Attorney, December 8, 2005, Attached to Plaintiff's Motion for Summary Judgment as Exh. A); R. 308, 322 (Admitted by Defendant; see, Complaint and Answer, ¶ 24, Attached to Plaintiff's Motion for Summary Judgment as Exhs. B and C). 6 R. 1408; T. 4:1-4; T. 14:8-9. R. 308, 323 (Admitted by Defendant; see, Complaint and Answer, ¶ 28). See, also, R. 335, 346 (Plaintiff's First Request for Admissions and Defendant's Response to First Request for Admissions (collectively "Traton's First Admissions"), ¶ 2, Attached to Plaintiff's Motion for Summary Judgment as Exhs. D and E). 7 R. 1409; T. 4:6-9; T. 14:9-12. R. 368, 399 (Admitted by Defendant, Plaintiff's Second Request for Admissions to Defendant Traton Corp. and Traton Corp.'s Amended Responses and Objections to Plaintiff's Second Request for Admissions (collectively "Traton's Second Admissions"), ¶ 17, Attached to Plaintiff's Motion for Summary Judgment as Exhs. F and G). 8 T. 19:2-4; T. 58:11-22. R. 68 (Affidavit of Christopher Moses in Support of Plaintiff's Opposition to Defendants' Motion to Dismiss ("First Moses Affidavit"), ¶¶ 19-20). 9 T. 61:8-9 (The right of way extends thirteen (13) feet beyond 2

his recorded lot, and contiguous with Appellant's recorded lot.

10

Subsequent to Appellant's purchase of his home, contractors delivered additional materials to construction sites within the Lakefield Manor subdivision.11

Given the ongoing construction

within the Lakefield Manor subdivision, Traton also functions as the Home Owners' Association (HOA).12 During that construction process, construction trucks repeatedly drove over Appellant's yard, thereby damaging the yard.13

Appellant complained to Traton about damage to his yard,14

and requested Traton to discontinue driving over Appellant's property.15

In fact, Appellant called Traton on more than one

occasion,16 but Traton did not return Appellant's phone calls.17 Since Traton did not return Appellant's phone calls,18 Appellant filed a grievance against Traton, using Traton's the curb into Appellant's yard). T.58:11-12; T. 65:21. R. 1123-1125 (Order, ¶¶ 20 ("right-ofway adjacent to his property"), 23, and 28 ("right-of-way adjoining Plaintiff's property")). 11 R. 1410; T. 4:10-13; T. 14:12-14. R. 107, 119 (Admitted by Defendant, Traton's First Admissions, ¶ 5). 12 R. 1411; T. 4:6-9; T. 14:14-21. R. 371, 403 (Traton's Second Admissions, ¶ 60). See, also, R. 423-461 (Declaration of Covenants, Conditions and Restrictions for Lakefield Manor Subdivision ("Covenant") (stating that the Declarant is Poston Properties, Inc., which is an affiliate of Traton Corp), Attached to Plaintiff's Motion for Summary Judgment as Exh. H). 13 R. 1412; T. 4:13-17; T. 14:21-23. R. 373-374, 407(Admitted by Defendant, Traton's Second Admissions, ¶¶ 95-103). 14 R. 1413; R. 368, 400 (Admitted by Defendant, Traton's Second Admissions, ¶ 24). 15 R. 1413; T. 15:1-4. R. 336, 348 (Admitted by Defendant, Traton's First Admissions, ¶ 15). 16 R. 1414; T. 4:22-25; T. 5:19-21; T. 15:5-7. R. 336, 349 (Admitted by Defendant, Traton's First Admissions, ¶ 18). 17 R. 1414; T. 5:20-21; T. 15:5-7. R. 336, 349 (Admitted by Defendant, Traton's First Admissions, ¶ 19). 18 R. 1415; T. 15:8-10. R. 336, 349 (Admitted by Defendant, 3 10

Internet form. 20

email

19

On behalf of Traton, Mr. Rick Foster replied by

and copied one or more officers of Traton in his reply.

21

In that email, Mr. Foster expressly stated that Traton would not fix the yard.22

Adding insult to injury, in addition to refusing

to repair the damage, Traton cited Appellant's damaged yard as being in violation of the subdivision Covenant.23

In other words,

Traton damaged Appellant's yard, and then cited that very damage as a violation of the Covenant. Given Traton's unreasonable posture, Appellant filed a complaint with the Better Business Bureau ("BBB"),24 in which Appellant expressly noted the destruction of his yard.25

Rather

than calling Appellant to discuss these issues, Traton responded to Appellant through its attorneys,26 and demanded that Appellant stop contacting Traton.

Traton's First Admissions, ¶ 19). R. 1415; T. 15:8-10. R. 465, 473 (Admitted by Defendant, Plaintiff's First Request for Admissions to Defendant Rick Foster and Defendant Rick Foster's Responses to Plaintiff's First Request for Admissions (collectively, "Foster's First Admissions"), ¶ 15, Attached to Plaintiff's Motion for Summary Judgment as Exhs. I and J). 20 R. 1416; T. 15:11-13. R. 466, 474 (Admitted by Defendant, Foster's First Admissions, ¶ 20). R. 67 (First Moses Affidavit, ¶¶ 11-15). 21 R. 1416; T. 15:11-13. R. 466, 474 (Admitted by Defendant, Foster's First Admissions, ¶ 21). 22 R. 1417; T. 15:14-15. R. 466, 474 (Admitted by Defendant, Foster's First Admissions, ¶ 22). 23 R. 1418-1420; T. 6:11-17; T. 11:16-18; T. 15:16-21. R. 368370, 400-402 (Admitted by Defendant, Traton's Second Admissions, ¶¶ 25 and 27-55). R. 66-67 (First Moses Affidavit, ¶¶ 4-8). 24 R. 1421; T. 5:21-23; T. 15:22-23. R. 337, 351 (Admitted by Defendant, Traton's First Admissions, ¶ 31). 25 R. 1421; T. 5:23-25. R. 375, 409 (Admitted by Defendant, Traton's Second Admissions, ¶¶ 116-118). 26 R. 1422; T. 6:2-3; T. 15:23-25. R. 337, 351 (Admitted by Defendant, Traton's First Admissions, ¶ 33). 4 19

Since Traton neither promised to fix the damage that it had caused, nor promised to refrain from further entering onto Appellant's property, Appellant had no other option but to seek legal recourse.

As such, Appellant filed this lawsuit in Cobb

County Superior Court on October 13, 2005.27

As a courtesy, a

copy of the Complaint was emailed to Traton's attorney on October 28

13, 2005,

and Traton was aware of this lawsuit by October 14,

29

2005.

Despite being aware of this lawsuit, and despite knowing that the subject-matter of this lawsuit included damage to Appellant's yard,30 Traton nevertheless directed its agents to enter onto the damaged portion of the yard31 and do further damage to the yard.32 27

Traton photographed the subsequent entry and the

R. 1423; T. 7:9-10; T. 15:25-16:1. R. 337, 351 (Admitted by Defendant, Traton's First Admissions, ¶ 34). See, also, R. 6-15 (Complaint). 28 R. 1424; T. 7:10-12; T. 16:2-3. R. 337, 351-352 (Admitted by Defendant, Traton's First Admissions, ¶ 35). 29 R. 1424; T. 7:17-19. R. 337, 352 (Admitted by Defendant, Traton's First Admissions, ¶ 36). 30 R. 1425-1426; T. 11:19-12:5; T. 15:3-8. See, R. 179-180 (Defendants' Request for Entry Onto Land to Inspect, Attached to Plaintiff's Motion for Summary Judgment as Exh. K). 31 R. 1425-1426; T. 11:19-12:5; T. 15:3-8. R. 376-377, 410-411 (Admitted by Defendant, Traton's Second Admissions, ¶¶ 133-138). See, also, R. 490 (Letter from Traton, January 13, 2006, Attached to Plaintiff's Motion for Summary Judgment as Exh. L ("Traton directed that an individual stand in the grass allegedly damaged to photograph the degree of 'damage' . . .")). 32 R. 1425-1426; T. 11:19-12:5; T. 18:4-19:17. See, R. 493-510 (Pictures from Traton, Attached to Plaintiff's Motion for Summary Judgment as Exh. M (showing Traton agents mowing Plaintiff's lawn)). See, also, R. 512-513 (Email Message from Traton to its Attorney, October 19, 2005, Attached to Plaintiff's Motion for Summary Judgment as Exh. N ("The first six pictures are before pictures taken 10/14/05, the last 9 were taken this morning." A comparison of the before and after pictures shows that Traton's agent tampered with the evidence 5

use of their lawn equipment on the damaged yard.

33

Those

photographs were sent to Appellant by Traton's attorneys.

34

Despite Traton's egregious behavior and lousy customer service, Appellant nevertheless attempted to reasonably dispose of this matter.

Specifically, on October 14, 2005, Appellant

offered to dismiss this case if Traton would meet the following requests: (1) (2) (3) (4)

Issue an apology for failing to respond to Appellant's phone calls and email messages; Completely repair the damage done to the yard; To the best of its ability, instruct Traton's subcontractors to refrain from driving over Appellant's yard; and Rescind its accusation that the yard was not being properly maintained.35

Traton rejected Appellant's offer.

Given Traton's refusal

to reasonably resolve this matter, Appellant initiated discovery. During the course of discovery, Traton served on Appellant a Request for Entry onto Land for Inspection.36

In other words,

recognizing that Appellant was in possession of the land, and had the right to exclude others from entering onto the land, Traton officially requested permission from Appellant to enter onto Appellant's property.

Appellant denied Traton's request.

and manipulated the very subject-matter of this litigation)). R. 1427-1445; T. 12:6-7; T. 17:24-18:1; T. 18:4-19:17. R. 376377, 410-411 (Admitted by Defendant, Traton's Second Admissions, ¶¶ 133-138). 34 R. 1427-1445; T. 12:7-9; T. 18:1-19:17. R. 377, 411 (Admitted by Defendant, Traton's Second Admissions, ¶ 143). 35 R. 1446-1449; See, R. 515-517 (Email Message to Traton, October 14, 2005, Attached to Plaintiff's Motion for Summary Judgment as Exh. O). 36 See, R. 179-180 (Defendants' Request for Entry Onto Land to Inspect, Attached to Plaintiff's Motion for Summary Judgment as Exh. K). 6 33

In a second attempt to dispose of this matter, Appellant offered to dismiss the lawsuit if Traton was "agreeable to making reasonable efforts to reach a mutually-acceptable resolution."37 Specifically, Appellant, through counsel, stated: "[u]pon receiving confirmation that Traton is willing to dialogue with [Appellant], [Appellant] has agreed to dismiss the action without 38

prejudice."

No other demands were made in conjunction with

Appellant's request for a reasonable dialogue.

In other words,

Appellant agreed to dismiss the action if Defendants-Appellees would simply meet with Appellant to rationally discuss this matter. Despite Appellant's generous offer, Traton refused to rationally discuss this matter with Appellant, giving as its reason that it did not want "word to get around that all you have to do is file a lawsuit to get the head man at Traton to meet with you . . . ."39 Despite the ongoing discovery, in yet another effort to resolve this without further escalating costs, Appellant presented his third settlement offer to Traton on February 13, 2006.40

In that offer, Appellant requested the following:

(1) 37

Face-to-face meeting with Traton officers (Bill Poston,

R. 1450; R. 378, 412 (Admitted by Defendant, Traton's Second Admissions, ¶ 152). 38 R. 1451; R. 378, 413 (Admitted by Defendant, Traton's Second Admissions, ¶ 153). 39 R. 1452; R. 519 (Email Exchange between Traton Officers, December 8, 2005, Attached to Plaintiff's Motion for Summary Judgment as Exh. P). 40 R. 1456-1458; R. 657-661 (February 13, 2006, Email from Plaintiff to Traton, Attached to Plaintiff's Motion for Summary Judgment as Exh. S). 7

Dale Bercher, Millburn Poston, etc.); Admission of wrong by Traton, and issue written apology to Appellant; Repair of damaged yard to Appellant's satisfaction; Promise to refrain from future damage; Promise to fix future damage that can be attributed to Traton; and Payment of out-of-pocket litigation expenses (~$500) (but not any costs for attorney time).41

(2) (3) (4) (5) (6)

Appellant's third offer was rejected.42

Thus, rather than

rationally dialoguing with Appellant, Traton deliberately chose to continue with discovery, which Traton certified would cost an estimated $2,950,000.00.43 Despite Traton's ability to stop the continued ingress onto Appellant's property by Traton's agents, Traton continued to approve of the unauthorized entries, and, in fact, expressly directed its agents to enter onto Appellant's yard.44

Traton

never disciplined any of its agents for entering onto Appellant's property.45

41

Traton never disciplined any of its agents for

R. 1459; R. 657 (February 13, 2006, Email from Plaintiff to Traton). 42 R. 1460; R. 663-665 (February 27, 2006, Email from Traton to Plaintiff, Attached to Plaintiff's Motion for Summary Judgment as Exh. T). 43 R. 1461; T. 21:12-21. R. 668-669 (Defendants' Response to Plaintiff's Motion to Add Defendants and Amend Complaint, pp. 23 (Traton's attorneys certified to this lower court that compliance with discovery was "estimated to cost $2,950,000.00"), Attached to Plaintiff's Motion for Summary Judgment as Exh. U). 44 R. 1425-1426; T. 11:19-12:5; T. 15:3-8. R. 376-377, 410-411 (Admitted by Defendant, Traton's Second Admissions, ¶¶ 133-138). See, also, R. 490 (Letter from Traton, January 13, 2006, Attached to Plaintiff's Motion for Summary Judgment as Exh. L ("Traton directed that an individual stand in the grass allegedly damaged to photograph the degree of 'damage' . . .")). 45 R. 1462; T. 21:22-25. R. 340-341, 357-358 (Admitted by Defendant, Traton's First Admissions, ¶¶ 69 and 74). 8

damaging the property

46

(i.e., running over a portion of

Appellant's property with a lawn mower and further damaging the yard). Although Traton instructed its agents to enter onto Appellant's property:47 (1) (2) (3)

Traton of its Traton of its Traton of its

does not assume responsibility for the actions 48 employees. does not assume responsibility for the actions 49 agents. does not assume responsibility for the actions contractors.50

In fact, it appears that Traton refuses to accept responsibility for anything. Notwithstanding the numerous unauthorized entries onto Appellant's property by Traton's agents, Traton has never instructed its contractors to refrain from driving over Appellant's property.51 On Sunday, September 10, 2006, just two (2) days after the hearing for both Appellant's and Appellees' motions for summary judgment, Appellant was house-sitting for Mr. Ryan Chao, one of 52

Appellant's neighbors, who was away on vacation. 46

Mr. Chao had

R. 1463; T. 21:25-22:2. R. 341, 359 (Admitted by Defendant, Traton's First Admissions, ¶ 80). 47 R. 1464; T. 22:2-7. See, R. 466-467, 476-477 (Foster's First Admissions, ¶¶ 30-37). 48 R. 1464; T. 22:2-7. R. 341, 360 (Admitted by Defendant, Traton's First Admissions, ¶ 83). 49 R. 1464; T. 22:2-7. R. 342, 360 (Admitted by Defendant, Traton's First Admissions, ¶ 85). 50 R. 1464; T. 22:2-7. R. 342, 361 (Admitted by Defendant, Traton's First Admissions, ¶ 87). 51 R. 1465; T. 22:10-13. R. 342, 362 (Admitted by Defendant, Traton's First Admissions, ¶ 96). 52 R. 1107 (Affidavit of Christopher Moses in Support of Plaintiff's Memorandum in Opposition to Defendants' Cross Motion 9

requested that Appellant watch Mr. Chao's pets and take care of Mr. Chao's home during his absence.

53

On the afternoon of

September 10, 2006, Appellant noticed a plastic bag attached to Mr. Chao's mailbox.54 mailbox.55

Appellant took the bag off of Mr. Chao's

Inside the bag, Appellant found a copy of Defendants'

Brief in Opposition to Plaintiff's Motion for Summary Judgment and in Support of Defendants' Cross Motion for Summary Judgment (hereafter "Defendants' Cross Motion").

56

On the back of the

first page of Defendants' Cross Motion was a hand-written letter from a law enforcement officer, Mr. Mark Calhoun, to Mr. Chao.57 Officer Calhoun is: (a) (b) (c)

the husband of Ms. Tammy Calhoun, whom Appellant has moved to add as a Defendant in this matter;58 a law enforcement officer;59 and a resident of same subdivision as Appellant and bound by the same Covenants that grant Appellant the property rights in the right-of-way in front of Appellant's home.60

In that hand-written letter, Officer Calhoun indicated that the mailbox, and the right-of-way within which the mailbox is situated, was Officer Calhoun's property, and any entry onto that property would be considered a trespass.

That letter was

submitted to the lower court for consideration, but the lower

for Summary Judgment (hereafter "Second Moses Affidavit"), ¶ 3, attached to Plaintiff's Motion to Supplement the Record as Exh. A). 53 R. 1107 (Second Moses Affidavit, ¶ 4). 54 R. 1107 (Second Moses Affidavit, ¶ 5). 55 R. 1107 (Second Moses Affidavit, ¶ 6). 56 R. 1107 (Second Moses Affidavit, ¶ 7). 57 R. 1107 (Second Moses Affidavit, ¶ 8). 58 R. 1108 (Second Moses Affidavit, ¶ 11). 59 R. 1108 (Second Moses Affidavit, ¶ 12). 60 R. 1108 (Second Moses Affidavit, ¶ 13). 10

court chose to ignore that evidence as being immaterial.

61

As of today: (a) Traton has not rescinded its threat to impose monetary fines on Appellant for the damaged property being in violation of the subdivision Covenants; (b) Traton has refused to refrain from entering onto Appellant's property; and (c) Traton has refused to repair the damage done to Appellant's property. The lower court erred by failing to view all of the aboverecited facts in the light most favorable to the Appellant, and granting Appellees' Cross-Motion for Summary Judgment based on its errant view that Appellant neither had legal nor factual possession of the damaged land. IV.

ENUMERATION OF ERRORS

(a)

In determining standing to bring an action for trespass, the lower court ignored both clear statutory provisions and precedent from the Supreme Court of Georgia;

(b) 61

(1)

Contrary to clear statutory language, the lower court erroneously required ownership of real property for standing to bring a trespass action, when only bare possession was necessary for standing;

(2)

The lower court failed to recognize possession of property by Appellant, despite clear statutory language conferring possession of the property to Appellant;

(3)

The lower court nullifies OCGA § 51-9-10 for unlawful interference with a right-of-way by requiring that Appellant have a right to dispose of the right-of-way and a right to exclude others from the right-of-way;

(4)

The lower court decision overrules Georgia Supreme Court precedent, which recognizes that owners of land that is contiguous to a right-of-way have rights which do not belong to the public generally;

The lower court disregarded the standard for summary

R. 1126 (Order, ¶ 30). 11

judgment and engaged in impermissible fact-finding; (1)

The lower court ignored Appellant's undisputed facts, which showed that Appellant was in actual possession of the property at issue;

(2)

The lower court engaged in impermissible fact-finding on summary judgment, rather than viewing all facts in the light most favorable to the non-moving party, Plaintiff-Appellant;

(c)

The lower court misconstrued the Covenants, which granted to Appellant a property interest in the damaged property thereby conferring to Appellant standing to bring an action for trespass;

(d)

The lower court erred by holding that newly-submitted evidence did not identify any material issue of fact, when the newly-submitted evidence demonstrated actual possession of property by Appellant.

(e)

The lower court erred by failing to grant summary judgment for Appellant, when all of the undisputed facts, admitted by Defendants-Appellees, conclusively established each and every element of Appellant's claim for trespass.

V. ARGUMENT The lower court committed reversible error by: (a) erroneously requiring ownership of land, when all that is necessary is bare possession; (b) erroneously failing to view any of the material facts relating to actual possession in the light most favorable to the non-moving party; (c) erroneously finding that the Covenant provides an "undefinable right," when the Covenant expressly defines a property right that is granted to Appellant; and (d) erroneously dismissing newly-submitted evidence as being immaterial, when the newly-submitted evidence showed actual possession of the damaged property by Appellant. Additionally, the lower court committed reversible error by denying summary judgment to Appellant, because all of the 12

undisputed facts, as admitted by Defendants-Appellees, conclusively established each and every element of Appellant's trespass claim. (a)

In determining standing to bring an action for trespass, the lower court ignored both clear statutory provisions and precedent from the Supreme Court of Georgia The plain language of the trespass statutes, the structure

of Georgia's statutory scheme, and the precedent from the Supreme Court of Georgia require only bare possession of property in order to have standing to bring a trespass action.62

However, the

lower court improperly required a heightened standard that was akin to ownership in determining whether or not Appellant had standing to bring a trespass action.

Requiring ownership, and

wholly ignoring possession, constituted legal error. (1)

Contrary to clear statutory language, the lower court erroneously required ownership of real property for standing to bring a trespass action, when only bare possession was necessary for standing

The lower court erroneously required ownership, when only bare possession was required for standing to bring a trespass action. OCGA §§ 51-9-2 recites that "[t]he bare right to possession of lands shall authorize their recovery by the owner of such right, as well as damages for the withholding of such right."63 Additionally, OCGA § 51-9-3 recites that "[t]he bare possession of land shall authorize the possessor to recover damages from any person who wrongfully interferes with such possession in any 62 63

See, e.g., OCGA §§ 51-9-2 and 51-9-3. Emphasis supplied. 13

64

As such, the statutory language is clear that bare

manner."

possession, without more, is sufficient to confer standing to the possessor.

Stated differently, ownership is not the prerequisite

for standing. Citing only a truncated portion of a quote from Pope v. Pulte Home (hereafter "Pope"),65 the lower court held that Appellant's claim for trespass ". . . is conditioned upon the right of the Appellant to possess, use and dispose of the property, and the corresponding right to exclude others from using the property."

66

However, a careful reading of the entire

quote from Pope shows that Pope applies to ownership, and not Specifically, Pope recites that "[t]he owner has the

possession.

rights to possess, use and dispose of the property and the corresponding right to exclude others from using the property." As such, the lower court effectively required ownership of property, rather than "bare possession," as a precondition to a claim for trespass. Requiring the heightened showing of ownership, rather than bare possession, in determining whether Appellant had standing to bring an action for trespass, effectively nullified the statutory language that "bare possession" was sufficient to confer standing.

The lower court committed reversible error by imposing

such a heightened ownership standard, and wholly disregarding 64

Emphasis supplied. Pope v. Pulte Home Corporation, 246 Ga. App. 120 (2000). It is worthwhile to note that Defendants-Appellees also mis-quote Pope. T. 31:22-32:10. 66 Pope, 246 Ga. App. 120 (2000), internal quotations omitted. 14 65

possession, in determining standing. (2)

The lower court failed to recognize possession of property by Appellant, despite clear statutory language conferring possession of the property to Appellant

Appellant based his standing to bring this action on his possession, and not on ownership, of the property in dispute.

67

The lower court refused to recognize that Appellant had possession of the property in dispute, despite clear statutory language that conferred possession of the property to Appellant. Under Georgia law, "[p]ossession under a duly recorded deed will be construed to extend to all the contiguous property embraced in the deed."68

As such, if the damaged property is

contiguous to Appellant's property in the recorded deed, then that possession is "construed to extend to all the contiguous property embraced in the deed." Here, Appellant's property is part of a platted subdivision known as the Lakefield Manor Subdivision.69

With respect to

Appellant's property and the Subdivision, such property is platted pursuant to a final plat recorded and in the Records of Cobb County, Georgia.70

The recorded plat, which includes

Appellant's property, clearly delineates the boundary lines of Appellant's property or Lot in the Lakefield Manor Subdivision.71 It is undisputed that the damaged property, which is the subject-matter of this lawsuit, is adjacent to Appellant's 67 68 69 70 71

T. 33:21-24. OCGA § 44-5-167. R. 1119 (Order, ¶ 5). R. 1119 (Order, ¶ 5). R. 1119 (Order, ¶ 6). 15

72

recorded Lot.

In short, the damaged property is contiguous to

Appellant's property in a duly recorded deed in Cobb County, Georgia.

Thus, as a matter of law, Appellant is deemed to be in

possession of the damaged property, since that property is contiguous to Appellant's property in the recorded deed.

Such

possession is sufficient to confer standing, since only bare possession is necessary to bring an action for trespass. Despite finding that Appellant's property in his duly recorded deed was contiguous to the damaged right-of-way, which was also shown in the deed, the lower court nevertheless found that Appellant did not have possession of the damaged land.

This

was reversible error, since, as a matter of law, Appellant's possession extends to the contiguous right-of-way. (3)

The lower court nullifies OCGA § 51-9-10 for unlawful interference with a right-of-way by requiring that Appellant have a right to dispose of the right-of-way and a right to exclude others from the right-of-way

The lower court erroneously held that Appellant had no standing to bring an action under OCGA § 51-9-10, which recites: "The unlawful interference with a right of way or a right of common constitutes a trespass to the party entitled thereto."73 The lower court's erroneous holding was based on its finding that Appellant had neither "a right to dispose of the property[,]"74 nor a "right to exclude others from using the

72

R. 1122-1125 (Order, ¶¶ 20, 23, and 27). OCGA § 51-9-10. 74 R. 1124 (Order, ¶ 23, quoting from Pope, 246 Ga. App. 120 (2000)). 16 73

75

property."

However, as noted above, the "right to dispose of

the property" and the "right to exclude others from using the property" are related to ownership and not to bare possession. Importing the ownership requirement from Pope effectively abrogates OCGA § 51-9-10 for unlawful interference with a rightof-way.76

The reason being that individuals neither have the

right to "dispose of the [right-of-way]," nor the right to "exclude others from using the [right-of-way]," because all rights-of-way are owned by the county. The lower court committed reversible error by requiring that Appellant have the right to dispose of the right-of-way and the right to exclude others from using the right-of-way in order to have standing to bring a trespass action.

The imposition of such

a heightened requirement nullifies OCGA § 51-9-10.

This

constitutes legal error. (4)

The lower court decision overrules Georgia Supreme Court precedent, which recognizes that owners of land that is contiguous to a right-of-way have rights which do not belong to the public generally

The lower court overrules precedent from the Supreme Court of Georgia by failing to recognize that owners of land that is contiguous to a right-of-way have rights which do not belong to the public generally. In Clayton County v. Billups Eastern Petroleum Co. (hereafter "Billups"),77 "the Supreme Court held that . . . if 75

R. 1123 (Order, ¶ 20, quoting from Pope, 246 Ga. App. 120 (2000)). 76 T. 45:22-46:14. 77 104 Ga. App. 778 (1961). 17

[the Appellant's] property be depreciated in value by his being deprived of some right of use or enjoyment growing out of and appurtenant to his estate as the direct consequence of the construction and use of the public improvement, his right of action is complete, and he may recover to the extent of the injury sustained."78 The Billups decision, which was expressly cited by Plaintiff-Appellant in the lower court proceedings, held that an individual, who did not own the right-of-way, had standing to bring an action against the county, who did own the right-of-way. As such, Billups demonstrates how a bare possessor can assert an action for trespass against an owner. Similar to Billups, here, Appellant expressly noted that Appellant benefited from the enhanced value of his home due to the adjacent right-of-way, and that the damage to the right-ofway deprived him of the right of enjoyment of his home.

79

Even

Appellees conceded that the condition of the right-of-way affected the value of Appellant's home. "right of action [wa]s complete."

80

As such, Appellant's

Despite this, the lower court

held that Appellant's rights were insufficient to confer standing.

Such a holding cannot be reconciled with the Supreme

Court's decisions that are cited in Billups. 78

Clayton County v. Billups Eastern Petroleum Co., 104 Ga. App. 778 (1961). 79 T. 49:13-16; T. 50:3-8. R. 1054 (Plaintiff's Opposition to Defendants' Cross-Motion for Summary Judgment, p. 10); R. 70 (First Moses Affidavit, ¶¶ 43-45). 80 T. 41:11-21 ("[The right-of-way] is the area that you maintain because you want to make sure it looks nice, because it is your 18

(b)

The lower court disregarded the standard for summary judgment and engaged in impermissible fact-finding Summary judgment is appropriate only when all the facts and

reasonable inferences from those facts, viewed in a light most favorable to the non-moving party, show that there is no triable issue as to each essential element in the case.81 Here, the lower court failed to view the facts presented by Appellant, the non-moving party, in the light most favorable to Appellant, all of which were supported by evidence of record.

As

such, the lower court wholly disregarded the standard for summary judgment. (1)

The lower court ignored Appellant's undisputed facts, which showed that Appellant was in actual possession of the property at issue

Appellant based his standing on possession and not ownership of the real property at issue.

Under Georgia law, "[a]ctual

possession of lands may be evidenced by enclosure, cultivation, or any use and occupation of the lands which is so notorious as to attract the attention of every adverse claimant and so exclusive as to prevent actual occupation by another."82 In support of his position, Appellant produced evidence of actual possession.

The lower court was required to view

Appellant's evidence (showing cultivation, use, or occupation of the land) in the light most favorable to Appellant, and make all reasonable inferences in favor of Appellant.

house or in your subdivision"). Clifton v. Murray, 223 Ga. App. 756, 758 (1996); R. 1120 (Order, ¶ 11). 82 OCGA § 44-5-165, emphasis supplied. 19 81

Appellant's facts, which evidenced possession, and which were conspicuously absent from the Order, included: (1) Appellant's affidavit, in which Appellant noted his immaculate maintenance of his yard, including the damaged property.83 This fact shows Appellant's maintenance and cultivation of the yard, which is evidence of actual possession.84 (2) The acknowledgement by the Homeowners' Association, that the 85 damaged land is Appellant's land. This acknowledgement evidences that Appellant had actual possession of the damaged land (i.e., "your land"). (3) Appellee's admission that Appellant's neighbors considered the damaged property to be Appellant's property.86 The neighbors' belief that the damaged property was Appellant's property is evidence of actual possession. (4) Appellee's own accusations that the damaged property was Appellant's property.87 Appellees' position, that Appellant possessed the damaged property, is evidence of Appellant's actual possession. (5) Defendants' Request for Entry Upon Land for Inspection, in which Appellees and counsel for Appellees requested Appellant's permission to enter upon the damaged land for inspection.88 This fact evidences Appellees' acknowledgment that permission was necessary to enter onto the land, thereby evidencing Appellant's actual possession of the land. (6) Appellant's refusal to grant access to the land, which evidences Appellant's actual possession of the land and Appellant's right to exclude Appellees.89 (7) The actions of the parties to the Covenant, namely, the 83

T. 58:11-22. R. 68 (First Moses Affidavit, ¶¶ 19-20). Seignious v. MARTA, 252 Ga. 69, 72-73 (1984) ("The maintenance [of property] satisfies the requirement of possession . . . "). 85 T. 58:11-22. R. 368-370, 400-402 (Traton's Second Admissions, ¶¶ 25 and 27-55). 86 T. 58:11-22. R. 368-370, 372-374, 400, 402, 404-4-5, 407 (Traton's Second Admissions, ¶¶ 25, 55, 72, 78, 95, and 100103). 87 T. 58:11-22. R. 368-370, 372-374, 400, 402, 404-4-5, 407 (Traton's Second Admissions, ¶¶ 25, 55, 72, 78, 95, and 100103). 88 R. 179-180 (Defendants' Request for Permission to Enter Upon Land for Inspection). 89 T. 51:10-22. 20 84

threat by the Homeowners' Association to impose monetary fines on Appellant if Appellant failed to maintain the right90 of-way. This fact evidences the intent of the parties to the Covenant, namely, that the Covenant impose an obligation on Appellant to maintain the right-of-way.91 Since intent is a question of fact,92 the lower court was required to view this fact in the light most favorable to Appellant. All of these facts were provided to the lower court: (a) in Plaintiff-Appellant's Motion for Summary Judgment;93 (b) in Plaintiff-Appellant's Opposition to Defendants-Appellees' CrossMotion for Summary Judgment;

94

(c) during oral arguments;

Plaintiff's Motion for Reconsideration.96

95

and (d)

The lower court wholly

ignored all of these facts in its erroneous determination that ownership was required for standing. By contrast, the following facts were presented to the lower court by Defendants-Appellees to show that Appellant did not have possession of the property in dispute: nothing.97

In other words,

Appellees only addressed ownership and not possession. Despite the lower court's claim that the undisputed facts were viewed in the light most favorable to Appellant, 90

98

the lower

T. 58:11-22. R. 368-370, 400-402 (Traton's Second Admissions, ¶¶ 25 and 27-55). 91 Lowry v. Norris Lake Shores Development Corp., 231 Ga. 549 (1974) ("Covenants will be enforced according to the intent of the parties"). 92 Worth v. State, 179 Ga. App. 207 (1986) (Intent is a question of fact). 93 R. 275-282 (Plaintiff's Motion for Summary Judgment and Memorandum in Support of Plaintiff's Motion (herafter "Plaintiff's Motion for Summary Judgment"), pp. 2-9). 94 R. 1048-1054 (Plaintiff's Opposition to Defendants' CrossMotion for Summary Judgment, pp. 4-10). 95 T. 58:11-22; T. 69:8-13. 96 R. 1130-1152 (Plaintiff's Motion for Reconsideration and Memorandum Supporting Plaintiff's Motion). 97 T. 51:25-52:2; T. 69:8-13. 98 R. 1124-1125 (Order, ¶¶ 24, 28, and 29). 21

court could not have viewed the facts in the light most favorable to Appellant.

Especially when: (i) the Order recites only four

of Appellant's facts,99 none of which included the above-recited facts that were advanced by Appellant and properly supported by evidence of record;100 and (ii) the Order recites no facts to show that Appellant did not have possession of the property in 101

dispute.

The lower court committed reversible error by disregarding the legal standard for summary judgment, and failing to view all of these facts in the light most favorable to Appellant. (2)

The lower court engaged in impermissible fact-finding on summary judgment, rather than viewing all facts in the light most favorable to the non-moving party, Plaintiff-Appellant

The question of whether Appellant had sufficient control or possession of property is a question of fact that should have 99

R. 1118-1119 (Order, ¶¶ 1-4). It is worthwhile to note that there are over fifty (50) facts recited in Plaintiff's Motion for Summary Judgment, and a plethora of other facts recited in Plaintiff's Opposition to Defendants' Cross-Motion for Summary Judgment, much of which are based on Defendants' own admissions. The absence of almost all of these facts from the lower court's Order can only be explained by the fact that these facts, which support Plaintiff's position, were not viewed in the light most favorable to Plaintiff. This constitutes reversible error. 100 Of these four facts, at least one of them is clearly not viewed in the light most favorable to Plaintiff. Specifically, the lower court finds that Defendants "allow[ed], or otherwise, permit[ed] representatives of the Lakefield Manor Homeowners Association to allegedly maintain a certain portion of Plaintiff's property by cutting the grass on one occasion." See, R. 1119 (Order, ¶ 4). This is incongruous with Plaintiff's allegation that Defendants damaged Plaintiff's property by encroaching onto Plaintiff's property with lawn equipment. See, R. 30 (First Amended Complaint, ¶¶ 102-103). 101 None of the facts recited in the Order address possession. Rather, the facts recited by the lower court only address ownership. 22

properly been left to a jury.

102

Even though the lower court was

required to relinquish such fact-finding exercises to a jury, the lower court nevertheless made fact determinations on summary judgment.

Moreover, even though all of Appellant's facts

evidenced possession, and none of Appellees' facts evidenced lack of possession, the lower court still gave credence to Appellees' absence of facts. By engaging in the fact-finding exercise of whether or not Appellant did, in fact, have possession of the damaged property, the lower court committed reversible error. (c)

The lower court misconstrued the Covenants, which granted to Appellant a property interest in the damaged property thereby conferring to Appellant standing to bring an action for trespass The Order erroneously recites: Regardless of the requirements contained within the Declaration of Covenants of the Lakefield Manor Subdivision to maintain certain areas or property within the Subdivision, whether located upon the property of the Appellant or adjacent to it, such an undefinable interest does not rise to the level of possession required by Georgia law in order to maintain 103 an action for trespass. Here, the lower court erred for two reasons.

First,

Appellant had shown not only a definable interest, but a defined interest, which was expressly recited in the Covenant.

Second,

Appellant had shown that the expressly-defined interest rose to the level of "bare possession," which was the only requirement to 102

Housing Authority of Atlanta v. Famble, 170 Ga. App. 509, 520 (1984); Friendship Baptist Church, Inc. v. West, 265 Ga. 745, 746 (1995) (If the possession is not clearly evident, as in enclosure or cultivation, then "possession becomes a question of fact for the jury"). 23

maintain an action for trespass.

104

The Covenant expressly recites: Declarant hereby declares that all of the properties described on Exhibit 'A' referenced above shall be held, sold and conveyed subject to the following easements, restrictions, covenants, and conditions, which are for the purpose of protecting the value and desirability of, and which shall run with, the real property and be binding on all parties having any right, title or interest in the described properties or any part thereof, their heirs, successors and assigns, 105 and shall inure to the benefit of each owner thereof. As such, the express language of the Covenant: (a) granted Appellant a property interest insofar as the interest "shall run with the real property"; (b) bound all of the property within the subdivision, including the rights-of-way; and (c) granted Appellant a right to protect the value and desirability of the all the real property within the subdivision, including the rights-of-way. Additionally, the express language of the Covenant recites that it "shall be enforceable by . . . each Owner, his legal representatives, heirs, successors and assigns."106

As such, the

Covenant expressly granted Appellant standing to enforce the rights that were conveyed to Appellant through the Covenant. other words, if any of the property rights defined by the Covenant were violated, then Appellant had a right to "recover damages from any person who wrongfully interferes with such

103 104 105 106

R. 1124 (Order, ¶ 23), emphasis supplied. See, OCGA §§ 51-9-2 and 51-9-3. T. 48:7-18. R. 423-424 (Covenant, pp. 1-2). R. 441 (Covenant, Article VIII, p. 19). 24

In

107

possession in any manner."

As an example, Appellant can neither dispose of nor exclude others from using his neighbor's Lot, since Appellant is not the owner.

However, if that neighbor failed to properly maintain his

lawn, then Appellant had a right to enforce the Covenant against that neighbor, even though the neighbor was the owner.108

The

reason being that Appellant had a property interest in his neighbor's Lot, because the Covenant granted to Appellant a right that "shall run with[] the real property."109

Additionally,

Appellant could enforce the Covenant against his neighbor because the Covenant granted to Appellant a property interest to "protect[] the value and desirability of . . . the real property."110 As shown here, the lower court committed reversible error by holding that Appellant's rights were "undefinable" when, in reality, those rights were expressly-defined in the Covenant. Additionally, the lower court committed reversible error by holding that the interests defined in the Covenant "d[id] not rise to the level of possession required by Georgia law" when, in reality, the Covenant expressly granted property rights that were enforceable by Appellant.

107

OCGA § 51-9-3, emphasis supplied. T. 49:3-9. This very example was provided to the lower court, and was ignored by the lower court in its erroneous holding that ownership, rather than possession, was required for standing. 109 T. 48:7-18. R. 423-424 (Covenant, pp. 1-2). 110 R. 423-424 (Covenant, pp. 1-2). 25 108

(d)

The lower court erred by holding that newly-submitted evidence did not identify any material issue of fact, when the newly-submitted evidence demonstrated actual possession of property by Appellant The lower court erred by disregarding the newly-submitted

evidence of actual possession.

The newly-submitted evidence

consisted of a document, written by a law enforcement officer, who indicated that encroachment onto the right-of-way in front of the officer's home, in Appellant's subdivision, would be considered trespass. This document evidences every homeowners' possession of the right-of-way in front of their respective homes in Appellant's subdivision.

This evidence was relevant to possession, and

should have been considered in the light most favorable to Appellant, rather than being discarded as immaterial. (e)

The lower court erred by failing to grant summary judgment for Appellant, when all of the undisputed facts, admitted by Defendants-Appellees, conclusively established each and every element of Appellant's claim for trespass Each and every element of Appellant's claim for trespass was

established by Defendants-Appellees' own admissions in judicio. Defendants-Appellees' only argument was that Appellant did not have standing to bring this action.

Insofar as Appellant had

possession of the damaged property at the time of filing the Complaint, Appellant established standing.

Also, insofar as

Appellant had conclusively established his claim for trespass by Defendants-Appellees' own admissions, summary judgment should have been granted to Appellant.

The lower court erred by failing

to grant summary judgment for Appellant. 26

VI.

CONCLUSION The lower court erred in granting summary judgment to

Appellees because the lower court: (a) erroneously required ownership when all that is necessary is bare possession; (b) erroneously failed to view any of the material facts relating to actual possession in the light most favorable to the non-moving party; (c) erroneously found that the Covenant provides an "undefinable right," when the Covenant expressly defines a property right that is granted to Appellant; and (d) erroneously dismisses newly-submitted evidence as being immaterial, when the newly-submitted evidence shows actual possession of the damaged property by Appellant. Appellant respectfully requests this Honorable Court to reverse the lower court's GRANT of Defendants-Appellees' CrossMotion for Summary Judgment, and remand with instructions to GRANT Plaintiff-Appellant's Motion for Summary Judgment. 28 February 2007. Respectfully submitted,

________________________ SAM HAN, P.C. Sam S. Han Sam S. Han Georgia Bar Number 322284 SAM HAN, P.C. 330 Bloombridge Way Marietta, GA 30066 Phone: (404) 514-8237 email: [email protected]

27

CASE NUMBER S07A0780 IN THE SUPREME COURT OF GEORGIA CHRISTOPHER MOSES Plaintiff-Appellant, v. TRATON CORP., et al. Defendants-Appellees.

] ] ] ] ]

Supreme Court Case Number S07A0780

CITATION OF AUTHORITIES CONSTITUTIONAL PROVISIONS Constitution of the State of Georgia, Sec. VI, Para. III, Cl. (5). .........................................................1 STATUTORY OCGA § OCGA § OCGA § OCGA § OCGA § OCGA § OCGA §

PROVISIONS 5-6-34(a)(1). .........................................1 44-5-165. ............................................21 44-5-167. ............................................16 51-9-10. .....................................13, 18, 19 51-9-2. ..........................................15, 26 51-9-3. ......................................15, 26, 27 9-11-56(h). ...........................................1

CASES Clayton County v. Billups Eastern Petroleum Co., 104 Ga. App. 778 (1961). .................................................19 Clifton v. Murray, 223 Ga. App. 756, 758 (1996). ............20 Friendship Baptist Church, Inc. v. West, 265 Ga. 745, 746 (1995) ............................................................25 Housing Authority of Atlanta v. Famble, 170 Ga. App. 509, 520 (1984) ......................................................25 Lowry v. Norris Lake Shores Development Corp., 231 Ga. 549 (1974). .....................................................23 Pope v. Pulte Home Corporation, 246 Ga. App. 120 (2000) ....... ....................................................15, 16, 18 Seignious v. MARTA, 252 Ga. 69 (1984) .......................22 Worth v. State, 179 Ga. App. 207 (1986) .....................23

CASE NUMBER S07A0780 IN THE SUPREME COURT OF GEORGIA CHRISTOPHER MOSES Plaintiff-Appellant, v. TRATON CORP., et al. Defendants-Appellees.

] ] ] ] ]

Supreme Court Case Number S07A0780

CERTIFICATION OF SERVICE AND FILING This is to certify that on this day I filed with the Supreme Court of Georgia one (1) original and seven (7) copies, and served one (1) copy of APPELLANT'S APPEAL BRIEF upon the following my mail, postage prepaid, and properly addressed as follows: J. Kevin Moore, Esq. Attorney for Appellees Moore Ingram Johnson & Steele 192 Anderson Street Marietta, Georgia 30060 28 February 2007. Respectfully submitted,

__________________________ Sam S. Han Sam S. Han Georgia Bar Number 322284 SAM HAN, P.C. 330 Bloombridge Way Marietta, GA 30066 Phone: (404) 514-8237 email: [email protected]