Moses Mot And Brief For Leave To File Supplemental Brief

THE SUPERIOR COURT FOR THE COUNTY OF COBB STATE OF GEORGIA CHRISTOPHER MOSES Plaintiff, v. TRATON CORP., and RICK FOSTER Defendants.

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Civil Action File

No.05-1-8395-35 JURY TRIAL DEMANDED

PLAINTIFF'S MOTION FOR LEAVE TO SUPPLEMENT THE RECORD IN PLAINTIFF'S OPPOSITION TO DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT DUE TO THE DISCOVERY OF NEW EVIDENCE

In accordance with O.C.G.A. §§ 9-11-56(e) and 56(f), Plaintiff, Christopher Moses, files this Motion for Leave to File a Supplemental Brief in Opposition to Defendants' Cross-Motion for Summary Judgment. The basis for this motion is that on September 10, 2006, only two (2) days after the hearing for Plaintiff's Motion for Summary Judgment and Defendants' CrossMotion for Summary Judgment, new evidence was discovered, which supports Mr. Moses' position that he has a property interest in the right-of-way in front of his home. Specifically, the newly-discovered evidence is a hand-written letter dated September 10, 2006, from Mr. Mark Calhoun (attached as Exhibit A to the Affidavit of Christopher Moses in Support of Plaintiff's Memorandum in Opposition to Defendants' Cross Motion for Summary Judgment). Mr. Mark Calhoun is: (a) (b) (c)

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

In that hand-written letter, Mr. Calhoun indicated that entry onto the right-of-way in front of his home constitutes a trespass by the entrant. Insofar as this letter was written by Mr. Calhoun on September 10, which is two days after the hearing date, Plaintiff respectfully submits that he could not have presented this evidence on or before the date of the hearing. Additionally, Mr. Calhoun's letter will aid in the resolution of Defendants' Cross Motion for Summary Judgment, insofar as it presents facts that evidence the intent of the parties to the Covenants, which grant Mr. Moses a property interest in the right-of-way in front of his home. In view of this newly-discovered evidence, Plaintiff moves this Court for leave to file Plaintiff's Supplemental Brief in Opposition to Defendants' Motion for Summary Judgment, which is attached hereto.

Respectfully submitted September 11, 2006.

SAM HAN, P.C. Sam S. Han, Ph.D.

Sam S. Han, Ph.D. SAM HAN, P.C. 330 Bloombridge Way Marietta, GA 30066 Phone: (404) 514 - 8237 email: [email protected]

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THE SUPERIOR COURT FOR THE COUNTY OF COBB STATE OF GEORGIA CHRISTOPHER MOSES Plaintiff, v. TRATON CORP., et al. Defendants.

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Civil Action File JURY TRIAL DEMANDED No.05-1-8395-35

CERTIFICATE OF SERVICE AND FILING This is to certify that on this day I filed with the Court and served the within and foregoing PLAINTIFF'S MOTION FOR LEAVE TO SUPPLEMENT THE RECORD IN PLAINTIFF'S OPPOSITION TO DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT DUE TO THE DISCOVERY OF NEW EVIDENCE by first class mail to: Kevin Moore, Esq. Moore Ingram Johnson & Steele 192 Anderson Street Marietta, Georgia 30060 Respectfully submitted September 11, 2006.

SAM HAN, P.C. Sam S. Han, Ph.D.

Sam S. Han, Ph.D. SAM HAN, P.C. 330 Bloombridge Way Marietta, GA 30066 Phone: (404) 514 - 8237 email: [email protected]

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THE SUPERIOR COURT FOR THE COUNTY OF COBB STATE OF GEORGIA CHRISTOPHER MOSES Plaintiff, v. TRATON CORP., and RICK FOSTER Defendants.

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Civil Action File

No.05-1-8395-35 JURY TRIAL DEMANDED

PLAINTIFF'S BRIEF IN SUPPORT OF ITS MOTION TO SUPPLEMENT THE RECORD IN PLAINTIFF'S OPPOSITION TO DEFENDANTS' CROSS MOTION FOR SUMMARY JUDGMENT I.

STATEMENT OF FACTS For the sake of brevity, Plaintiff recites herein only those facts that are relevant to the

newly-discovered evidence. On Sunday, September 10, 2006, I was house-sitting for Mr. Ryan Chao, one of my neighbors, who was away on vacation.1 Mr. Chao had requested that I watch his pets and take care of his home during his absence.2 On the afternoon of September 10, 2006, I noticed a plastic bag attached to Mr. Chao's mailbox.3 I took the bag off of Mr. Chao's mailbox.4 Inside the bag, I 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

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Affidavit of Christopher Moses in Support of Plaintiff's Memorandum in Opposition to Defendants' Cross Motion for Summary Judgment (hereafter "Moses Affidavit"), ¶ 3, attached hereto as Exhibit A. 2 Moses Affidavit, ¶ 4. 3 Moses Affidavit, ¶ 5. 4 Moses Affidavit, ¶ 6. 4

"Defendants' Cross Motion").5 On the back of the first page of Defendants' Cross Motion was a hand-written letter from Mr. Mark Calhoun to Mr. Ryan Chao.6 In that hand-written letter, Mr. Mark Calhoun indicated that the mailbox, and the right-ofway within which the mailbox is situated, is Mr. Calhoun's property, and any entry onto that property would be considered a trespass. I called Mr. Ryan Chao and requested his permission to keep a copy and the original of the hand-written letter from Mr. Mark Calhoun.7 Mr. Ryan Chao granted me permission to keep the letter that was addressed to him.8 Mr. Mark Calhoun is: (a) (b) (c)

the husband of Ms. Tammy Calhoun, whom Mr. Moses has moved to add as a Defendant in this matter;9 a law enforcement officer;10 and a resident of same subdivision as Mr. Moses and bound by the same Covenants that grant Mr. Moses the property rights in the right-of-way in front of Mr. Moses' home.11

Insofar as a law enforcement officer and the husband of a potential Defendant believes that homeowners have a property right in the right-of-way, this evidence is both relevant and sufficient to overcome Defendants' Cross Motion for Summary Judgment, since all evidence must be viewed in the light most favorable to the non-moving Party.

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Moses Affidavit, ¶ 7. Moses Affidavit, ¶ 8. 7 Moses Affidavit, ¶ 9. 8 Moses Affidavit, ¶ 10. 9 Moses Affidavit, ¶ 11. 10 Moses Affidavit, ¶ 12. 11 Moses Affidavit, ¶ 13. 6

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II.

ARGUMENT AND CITATION OF AUTHORITY A.

Legal Standard for Summary Judgment

Summary Judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.12 In considering a motion for Summary Judgment, all facts must be viewed in the light most favorable to the non-moving party.13 Here, for Defendants' Cross Motion for Summary Judgment, Mr. Moses is the non-moving party. As such, all facts must be viewed in the light most favorable to the non-moving party.

B.

Legal Standard for Supplementing the Record

O.C.G.A. § 9-11-56(e) recites that "the Court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits." O.C.G.A. § 9-1156(f) recites: "Should it appear from the affidavits of a party opposing the motion that he cannot, for reasons stated, present by affidavit facts essential to justify his opposition, the court may, . . . Order a continuance to permit affidavits to be obtained." The statutory scheme permits supplementation of the record by further affidavits, should the Court be inclined to permit such supplementation.

C.

The Newly-Discovered Evidence Should Be Considered Due to its Significance

Mr. Moses has not delayed in presenting this newly-discovered evidence. Specifically, Mr. Moses had no opportunity to present Mr. Mark Calhoun's letter at the hearing on September 8, 2006, since the letter was written and delivered by Mr. Calhoun on September 10, 2006, two 12

OCGA § 9-11-56(c); McCoy v. West Building Materials of Georgia, Inc., 232 Ga. App. 620 (1998).

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days after the date of the hearing. Additionally, insofar as Mr. Moses is filing this Motion for Leave and the corresponding Affidavit on the very next business day after the discovery of the new evidence, Mr. Moses cannot be accused of any delay in presenting this evidence to the Court. Insofar as Mr. Calhoun is both a law enforcement officer and a resident of Lakefield Manor, Mr. Calhoun's understanding of his property rights will aid this Court in its determination of whether or not to deny Defendants' Cross Motion for Summary Judgment. Specifically, insofar as Mr. Calhoun is an officer of the law, Plaintiff presumes that Mr. Calhoun is knowledgeable on what does or does not constitute trespass. Additionally, since Mr. Calhoun is a resident of Lakefield Manor, Mr. Calhoun's understanding of his property rights is evidence of the intent of the parties to the Covenants. Here, clearly, Mr. Calhoun considers that right-of-way in which his mailbox is situated to be his property. As such, Mr. Calhoun vehemently claims that any ingress onto that property, even to deposit a mailer on his mailbox, is a trespass. What makes this evidence even more compelling is that Mr. Calhoun is the husband of Tammy Calhoun, who Mr. Moses has moved to add to this lawsuit. As such, Mr. Calhoun speaks of the very property in which both he and Tammy Calhoun have coterminous interests. Given the significance of this evidence, Mr. Moses respectfully requests this Court for leave to supplement the record. Additionally, since all facts must be viewed in the light most favorable to the non-moving party, when Mr. Calhoun's letter is viewed in the light most favorable to Mr. Moses, it is clear

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Clifton v. Zemurray, 223 Ga. App. 756, 758 (1996). 7

that the parties to the Covenants intended the Covenants to grant each home owner a property interest in the right-of-way in front of their own homes.

III.

CONCLUSION The newly-discovered evidence supports Mr. Moses' position that the home owners have

a property right in the right-of-way in front of their respective homes. Since this evidence only came into existence after the date of the hearing, and since this evidence is being submitted without delay, this Court should GRANT Plaintiff's Motion to Supplement the Record. Additionally, since all facts must be viewed in the light most favorable to Mr. Moses, and since the newly-discovered evidence shows the intent of the parties to the Covenant to grant a property interest in the right-of-way in front of each home to its respective home owner, this Court should DENY Defendants' Cross-Motion for Summary Judgment. Respectfully submitted September 11, 2006.

SAM HAN, P.C. Sam S. Han, Ph.D.

Sam S. Han, Ph.D. SAM HAN, P.C. 330 Bloombridge Way Marietta, GA 30066 Phone: (404) 514 - 8237 email: [email protected]

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THE SUPERIOR COURT FOR THE COUNTY OF COBB STATE OF GEORGIA CHRISTOPHER MOSES Plaintiff, v. TRATON CORP., et al. Defendants.

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Civil Action File JURY TRIAL DEMANDED No.05-1-8395-35

CERTIFICATE OF FILING AND SERVICE This is to certify that on this day I filed with the Court and served the within and foregoing PLAINTIFF'S BRIEF IN SUPPORT OF ITS MOTION TO SUPPLEMENT THE RECORD IN PLAINTIFF'S OPPOSITION TO DEFENDANTS' CROSS MOTION FOR SUMMARY JUDGMENT by first class mail to: Kevin Moore, Esq. Moore Ingram Johnson & Steele 192 Anderson Street Marietta, Georgia 30060 Respectfully submitted September 11, 2006.

SAM HAN, P.C. Sam S. Han, Ph.D.

Sam S. Han, Ph.D. SAM HAN, P.C. 330 Bloombridge Way Marietta, GA 30066 Phone: (404) 514 - 8237 email: [email protected]

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Exhibit A Affidavit of Christopher Moses in Support of Plaintiff's Memorandum in Opposition to Defendants' Cross Motion for Summary Judgment

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