Moses Motion And Brief Reconsideration

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

] ] ] ] ]

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

PLAINTIFF'S MOTION FOR RECONSIDERATION AND MEMORANDUM SUPPORTING PLAINTIFF'S MOTION COMES NOW Plaintiff, by and through its undersigned attorney, and hereby moves this Honorable Court for reconsideration of: (1) the Court's GRANT of summary judgment to Defendants; and (2) the Court's DENIAL of summary judgment to Plaintiff. Plaintiff requests reconsideration because, in granting summary judgment to Defendants, the Court committed reversible error by: (a)

applying only an ownership standard, rather than a possession standard, in determining whether or not Plaintiff had standing to bring this action;

(b)

holding that Plaintiff has failed to show possession of property that is contiguous to Plaintiff's recorded plat, even though, as a matter of law, "[p]ossession under a duly recorded deed will be construed to extend to all the contiguous property embraced in the deed";

(c)

failing to view the facts in the light most favorable to Plaintiff, the non-moving party, and improperly resolving factual disputes, which are properly left for a fact-finder; and

(d)

holding that Plaintiff only alleged an "ephemeral interest" and an "undefinable interest," which was insufficient to rise to the level of possession required by Georgia law, when Plaintiff identified an expressly-defined property interest from the Covenant;

(e)

holding that OCGA § 51-9-10, for unlawful interference to a rightof-way, "at most, will grant a plaintiff a cause of action against those which interfere with the plaintiff's right of access to a public right-of-way which adjoins the plaintiff's property."

In support of Plaintiff's Motion for Reconsideration, Plaintiff also files this Memorandum Supporting Plaintiff's Motion.

2

MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR RECONSIDERATION I.

INTRODUCTION The Court relied heavily on Pope v. Pulte Home Corporation1 in granting summary

judgment for Defendants. Specifically, the Court required that Plaintiff, in order to have standing: (a) have the right to dispose of the property at issue; and (b) have the right to exclude others from using the property.2 However, these requirements correspond to ownership and not to possession.3 By applying the Pope requirements to determine Plaintiff's possessory interest, the Court imported the ownership standard into a possession analysis, thereby effectively abrogating standing based on possession. The Court also incorrectly noted that Plaintiff failed to define a property interest, and such an "undefinable interest" was insufficient to confer standing.4 The record shows that Plaintiff clearly defined his interest as the right to prevent others from damaging property within the subdivision.5 More specifically, Plaintiff defined his interest as the right to prevent others from damaging property that adjoins his lot.6 The damage to property within the subdivision affects the value and the desirability of Plaintiff's property.7 Such an interest is expressly 1

246 Ga. App. 120 (2000).

2

Order, 2006-0131976-CV, October 9, 2006, ¶¶ 15, 20, and 23.

3

Pope v. Pulte Home Corporation, 246 Ga. App. 120 (2000) ("The owner has the rights to possess, use and dispose of the property and the corresponding right to exclude others from using the property.") (emphasis supplied) 4

Order, ¶¶ 21 and 23.

5

Complaint, ¶¶ 34-35 and 87-97.

6

Plaintiff's Motion for Summary Judgment and Memorandum Supporting Plaintiff's Motion ("Plaintiff's Summary Judgment Motion"), pp. 11-15. 7

Traton's Second Admissions, ¶¶ 25 and 27-55. 3

recognized in the Covenant that runs with the land.8 Thus, such an interest is both: (a) definable; and (b) actually defined in the Covenant, which grants to Plaintiff a legal property interest. Additionally, the Court failed to view all facts in the light most favorable to Plaintiff. For example, when viewed in the light most favorable to Plaintiff, the factual inquiry of whether or not the parties intended to obligate Plaintiff to maintain and possess the damaged property should have been resolved in favor of Plaintiff for purposes of summary judgment. Resolving this factual inquiry in favor of the non-moving party resulted in incorrectly granting summary judgment for Defendants. Additionally, the Court was required to view all of the admissions by Defendants, counsel for Defendants, and the Homeowners' Association in the light most favorable to Plaintiff. All of these statements, when viewed in the light most favorable to Plaintiff, evidences that Plaintiff did, in fact, have possession of the damaged property. Lastly, the Court incorrectly notes that "OCGA § 51-9-10, at most, will grant a plaintiff a right or cause of action against those which interfere with the plaintiff's right of access to a public right-of-way which adjoins the plaintiff's property."9 This is contrary to the plain language and structure of the trespass statutes, which expressly authorize "the possessor to recover damages from any person who wrongfully interferes with such possession in any manner."10 For at least these reasons, Plaintiff respectfully requests reconsideration of the Court's 8

Declaration of Covenants, Conditions, and Restrictions for Lakefield Manor Subdivision, pp. 12 ("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, and shall inure to the benefit of each owner thereof.") (emphasis supplied). 9

Order, ¶ 27, emphasis supplied.

10

OCGA § 51-9-3, emphasis supplied. 4

Order GRANTING Defendants' and DENYING Plaintiff's Motions for Summary Judgment. II.

FACTS The following are the facts that should have been taken as true and viewed in the light

most favorable to Plaintiff for purposes of summary judgment. Much of these facts were admitted by Defendants and served as the basis for Plaintiff's Motion for Summary Judgment. On May 27, 2004, Plaintiff purchased his home from one of the Traton entities11 (hereinafter collectively referred to as "Traton"). Plaintiff's home is situated within the Lakefield Manor subdivision.12 Traton Corp. has indicated that it is the developer for the Lakefield Manor subdivision.13 Subsequent to Plaintiff's purchase of his home, contractors delivered additional materials to construction sites within the Lakefield Manor subdivision.14 Given the ongoing construction within the Lakefield Manor subdivision, Traton also functions as the Home Owners' Association (HOA).15 11

Letter from Traton's Attorney, December 8, 2005, Attached to Plaintiff's Motion for Summary Judgment as Exhibit A. 12

Admitted by Defendant; see, Complaint and Answer, ¶ 28, Attached to Plaintiff's Motion for Summary Judgment as Exhibits B and C. See, also, 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 Exhibits D and E. 13

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 Exhibits F and G. See, also, Video Footage of Board of Zoning Appeals, April 13, 2005 (Traton agent represents to Cobb County governmental body that it is responsible for the development of the Lakefield Manor subdivision), available for viewing at . 14 15

Admitted by Defendant, Traton's First Admissions, ¶ 5.

Traton's Second Admissions, ¶ 60. See, also, Declaration of Covenants, Conditions and Restrictions for Lakefield Manor Subdivision ("Covenant") (stating that the Declarant is Poston 5

During that construction process, construction trucks repeatedly drove over Plaintiff's yard, thereby damaging the yard.16 Plaintiff complained to Traton about damage to his yard,17 and requested Traton to discontinue driving over Plaintiff's property.18 In fact, Plaintiff called Traton on more than one occasion,19 but Traton did not return Plaintiff's phone calls.20 Since Traton did not return Plaintiff's phone calls,21 Plaintiff filed a grievance against Traton, using Traton's Internet form.22 On behalf of Traton, Mr. Rick Foster replied by email23 and copied one or more officers of Traton in his reply.24 In that email, Mr. Foster expressly stated that Traton would not fix the yard.25 Adding insult to injury, in addition to refusing to repair the damage, Traton cited Plaintiff's damaged yard as being in violation of the subdivision Covenant.26 In other words, Traton damaged Plaintiff's yard, and then cited that very damage as a violation of the Covenant.

Properties, Inc., which is an affiliate of Traton Corp), Attached to Plaintiff's Motion for Summary Judgment as Exhibit H. 16

Admitted by Defendant, Traton's Second Admissions, ¶¶ 95 through 103.

17

Admitted by Defendant, Traton's Second Admissions, ¶ 24.

18

Admitted by Defendant, Traton's First Admissions, ¶ 15.

19

Admitted by Defendant, Traton's First Admissions, ¶ 18.

20

Admitted by Defendant, Traton's First Admissions, ¶ 19.

21

Admitted by Defendant, Traton's First Admissions, ¶ 19.

22

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 Exhibits I and J. 23

Admitted by Defendant, Foster's First Admissions, ¶ 20.

24

Admitted by Defendant, Foster's First Admissions, ¶ 21.

25

Admitted by Defendant, Foster's First Admissions, ¶ 22.

26

Admitted by Defendant, Traton's Second Admissions, ¶¶ 25 and 27 through 55. 6

Given Traton's unreasonable posture, Plaintiff filed a complaint with the Better Business Bureau ("BBB"),27 in which Plaintiff expressly noted the destruction of his yard.28 Rather than calling Plaintiff to discuss these issues, Traton responded to Plaintiff through its attorneys,29 and demanded that Plaintiff stop contacting Traton. Since Traton neither promised to fix the damage that it had caused, nor promised to refrain from further entering onto Plaintiff's property, Plaintiff filed this lawsuit in Cobb County Superior Court on October 13, 2005.30 As a courtesy, a copy of the Complaint was emailed to Traton's attorney on October 13, 2005,31 and Traton was aware of this lawsuit by October 14, 2005.32 Despite being aware of this lawsuit, and despite knowing that the subject-matter of this lawsuit included damage to Plaintiff's yard,33 Traton nevertheless directed its agents to enter onto the damaged portion of the yard34 and tamper with the evidence.35 Traton photographed the

27

Admitted by Defendant, Traton's First Admissions, ¶ 31.

28

Admitted by Defendant, Traton's Second Admissions, ¶¶ 116 through 118.

29

Admitted by Defendant, Traton's First Admissions, ¶ 33.

30

Admitted by Defendant, Traton's First Admissions, ¶ 34. See, also, Complaint.

31

Admitted by Defendant, Traton's First Admissions, ¶ 35.

32

Admitted by Defendant, Traton's First Admissions, ¶ 36.

33

See, Defendants' Request for Entry Onto Land to Inspect, Attached to Plaintiff's Motion for Summary Judgment as Exhibit K. 34

Admitted by Defendant, Traton's Second Admissions, ¶¶ 133 through 138. See, also, Letter from Traton, January 13, 2006, Attached to Plaintiff's Motion for Summary Judgment as Exhibit L ("Traton directed that an individual stand in the grass allegedly damaged to photograph the degree of 'damage' . . ."). 35

See, Pictures from Traton, Attached to Plaintiff's Motion for Summary Judgment as Exhibit M (showing Traton agents mowing Plaintiff's lawn). See, also, Email Message from Traton to its Attorney, October 19, 2005, Attached to Plaintiff's Motion for Summary Judgment as Exhibit N ("The first six pictures are before pictures taken 10/14/05, the last 9 were taken this morning." A 7

subsequent entry and their tampering with the evidence,36 and those photographs were sent to Plaintiff by Traton's attorneys.37 Despite Traton's egregious behavior and lousy customer service, Plaintiff nevertheless attempted to reasonably dispose of this matter. Specifically, on October 14, 2005, Plaintiff offered to dismiss this case if Traton would meet the following requests: (1) (2) (3) (4)

Issue an apology for failing to respond to Plaintiff'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 Plaintiff's yard; and Rescind its accusation that the yard was not being properly maintained.38

Traton rejected Plaintiff's offer. Given Traton's refusal to reasonably resolve this matter, Plaintiff initiated discovery. In a second attempt to dispose of this matter, Plaintiff offered to dismiss the lawsuit if Traton was "agreeable to making reasonable efforts to reach a mutually-acceptable resolution."39 Specifically, Plaintiff, through counsel, stated: "[u]pon receiving confirmation that Traton is willing to dialogue with Chris [Plaintiff], he [Plaintiff] has agreed to dismiss the action without prejudice."40 No other demands were made in conjunction with Plaintiff's request for a reasonable dialogue. Despite Plaintiff's generous offer, Traton refused to rationally discuss this

comparison of the before and after pictures shows that Traton's agent tampered with the evidence and manipulated the very subject-matter of this litigation). 36

Admitted by Defendant, Traton's Second Admissions, ¶¶ 133 through 138.

37

Admitted by Defendant, Traton's Second Admissions, ¶ 143.

38

See, Email Message to Traton, October 14, 2005, Attached to Plaintiff's Motion for Summary Judgment as Exhibit O. 39

Admitted by Defendant, Traton's Second Admissions, ¶ 152.

40

Admitted by Defendant, Traton's Second Admissions, ¶ 153. 8

matter with Plaintiff, 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 . . . ."41 Upon discovering additional facts, Plaintiff filed a Motion to Add Defendants and Amend Its Complaint ("Motion to Add Defendants").42 The Supplemental and Second Amended Complaint, which accompanied the Motion to Add Defendants, included the following Counts: (1) (2) (3) (4) (5) (6) (7) (8) (9) (10)

Trespass, under O.C.G.A. §§ 51-9-1 and 51-9-3; Continuing Trespass, under O.C.G.A. § 51-9-6; Liability for Torts of Independent Employee, under O.C.G.A. § 51-2-4; Liability for Torts of Contractors, under O.C.G.A. § 51-2-5; Civil Conspiracy; Breach of Contract; Breach of Fiduciary Duty; Officers' Personal Liability for Corporate Action; Litigation Expenses, under O.C.G.A. § 13-6-11; and Punitive Damages, under O.C.G.A. § 51-12-5.1.43

Despite the ongoing discovery, in yet another effort to resolve this without further escalating costs, Plaintiff presented his third settlement offer to Traton on February 13, 2006.44 In that offer, Plaintiff requested the following: (1) (2) (3) (4) (5) (6)

Face-to-face meeting with Traton officers (Bill Poston, Dale Bercher, Millburn Poston, etc.); Admission of wrong by Traton, and issue written apology to Plaintiff; Repair of damaged yard to Plaintiff'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

41

Email Exchange between Traton Officers, December 8, 2005, Attached to Plaintiff's Motion for Summary Judgment as Exhibit P. 42

Plaintiff's Motion to Add Defendants and Amend Its Complaint, and Brief in Support of Plaintiff's Motion, Attached to Plaintiff's Motion for Summary Judgment as Exhibit Q. 43

Supplemental and Second Amended Complaint, Attached to Plaintiff's Motion for Summary Judgment as Exhibit R. 44

February 13, 2006, Email from Plaintiff to Traton, Attached to Plaintiff's Motion for Summary Judgment as Exhibit S. 9

attorney time).45 Plaintiff's third offer was rejected.46 Thus, rather than rationally dialoguing with Plaintiff, Traton deliberately chose to continue with discovery, which Traton certified would cost an estimated $2,950,000.00.47 Despite Traton's ability to stop the continued ingress onto Plaintiff's property by Traton's agents, Traton continued to approve of the unauthorized entries. Traton never disciplined any of its agents for entering onto Plaintiff's property.48 Traton never disciplined any of its agents for tampering with evidence49 (i.e., running over a portion of Plaintiff's property with a lawn mower and further damaging the yard). Although Traton instructed its agents to enter onto Plaintiff's property:50 (1) (2) (3)

Traton does not assume responsibility for the actions of its employees.51 Traton does not assume responsibility for the actions of its agents.52 Traton does not assume responsibility for the actions of its contractors.53

In fact, it appears that Traton refuses to accept responsibility for anything. Notwithstanding the numerous unauthorized entries onto Plaintiff's property by Traton's 45

February 13, 2006, Email from Plaintiff to Traton.

46

February 27, 2006, Email from Traton to Plaintiff, Attached to Plaintiff's Motion for Summary Judgment as Exhibit T. 47

Defendants' Response to Plaintiff's Motion to Add Defendants and Amend Complaint, pp. 2-3 (Traton's attorneys certified to this Court that compliance with discovery was "estimated to cost $2,950,000.00"), Attached to Plaintiff's Motion for Summary Judgment as Exhibit U. 48

Admitted by Defendant, Traton's First Admissions, ¶¶ 69 and 74.

49

Admitted by Defendant, Traton's First Admissions, ¶ 80.

50

See, Foster's First Admissions, ¶¶ 30 through 37.

51

Admitted by Defendant, Traton's First Admissions, ¶ 83.

52

Admitted by Defendant, Traton's First Admissions, ¶ 85.

53

Admitted by Defendant, Traton's First Admissions, ¶ 87. 10

agents, Traton has never instructed its contractors to refrain from driving over Plaintiff's property.54 On Sunday, September 10, 2006, just two (2) days after the hearing for both Plaintiff's and Defendants' motions for summary judgment, Plaintiff was house-sitting for Mr. Ryan Chao, one of his neighbors, who was away on vacation.55 Mr. Chao had requested that Plaintiff watch his pets and take care of his home during his absence.56 On the afternoon of September 10, 2006, Plaintiff noticed a plastic bag attached to Mr. Chao's mailbox.57 Plaintiff took the bag off of Mr. Chao's mailbox.58 Inside the bag, Plaintiff 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").59 On the back of the first page of Defendants' Cross Motion was a hand-written letter from Mr. Mark Calhoun to Mr. Ryan Chao.60 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. Plaintiff called Mr. Ryan Chao and requested permission to keep a copy and the original

54

Admitted by Defendant, Traton's First Admissions, ¶ 96.

55

Affidavit of Christopher Moses in Support of Plaintiff's Memorandum in Opposition to Defendants' Cross Motion for Summary Judgment (hereafter "Moses Affidavit"), ¶ 3, attached to Plaintiff's Motion to Supplement the Record as Exhibit A. 56

Moses Affidavit, ¶ 4.

57

Moses Affidavit, ¶ 5.

58

Moses Affidavit, ¶ 6.

59

Moses Affidavit, ¶ 7.

60

Moses Affidavit, ¶ 8. 11

of the hand-written letter from Mr. Mark Calhoun.61 Mr. Ryan Chao granted Plaintiff permission to keep the letter that was addressed to him.62 Mr. Mark Calhoun is: (a) (b) (c)

the husband of Ms. Tammy Calhoun, whom Plaintiff has moved to add as a Defendant in this matter;63 a law enforcement officer;64 and a resident of same subdivision as Plaintiff and bound by the same Covenants that grant Plaintiff the property rights in the right-of-way in front of Plaintiff's home.65

Given all of these facts, which must be viewed in the light most favorable to Plaintiff, the non-moving party on the cross-motion for summary judgment, the Court erred by granting Defendants' Cross-Motion for Summary Judgment. III.

LEGAL AUTHORITY Plaintiff, Defendants, and the Court all agree that Plaintiff has standing to bring an action

for trespass if Plaintiff can show either: (a) ownership; or (b) possession. Additionally, all appear to be in agreement that ownership is distinct from possession. Also, all are in agreement that Plaintiff is not the owner. As such, all agree, if Plaintiff can show possession or a right of possession, then Plaintiff has standing. Here, the Court erred in granting summary judgment to Defendants because: (a) it was error to apply an ownership standard to a possession case; (b) it was error to find that the Covenant provides an "undefinable right," when the Covenant expressly defines a property right that is granted to Plaintiff; (c) it was error to view the facts in the light

61

Moses Affidavit, ¶ 9.

62

Moses Affidavit, ¶ 10.

63

Moses Affidavit, ¶ 11.

64

Moses Affidavit, ¶ 12.

65

Moses Affidavit, ¶ 13. 12

most favorable to Defendants, the moving party, instead of viewing the facts in the light most favorable to Plaintiff, the non-moving party; and (d) it was error to hold that Plaintiff's rights in the right-of-way were limited, "at most, . . . to the plaintiff's right of access to the public right-ofway." A.

The Court Erroneously Applied an Ownership Standard in a Possession Case

The Court erroneously uses a standard for ownership, when Plaintiff's cause of action arises from his right of possession. Specifically, citing a truncated portion of a quote from Pope, the Court held that Plaintiff's claim for trespass ". . . is conditioned upon the right of the Plaintiff 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 possession. Specifically, Pope recites that "[t]he owner has the rights to possess, use and dispose of the property and the corresponding right to exclude others from using the property." As such, the Court applied the wrong standard to determine whether or not Plaintiff had "bare possession" of the land. 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."67 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 manner."68 As such, the statutory language is clear that bare possession, without more, is sufficient to confer standing to the possessor. To effectively require ownership, rather than bare 66

Pope, 246 Ga. App. 120 (2000), internal quotations omitted.

67

Emphasis supplied.

68

Emphasis supplied. 13

possession, in determining whether Plaintiff has standing to bring this action is legal error. The application of an ownership standard to possession effectively abrogates an entire statutory provision and overrules a line of cases based on possession.69 Specifically, importing the ownership requirement from Pope to a possession analysis effectively abrogates OCGA § 519-10 for unlawful interference with a right-of-way, since 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 right-of-ways are owned by the county. In view of all of the appellate decisions that uphold standing by individuals to bring a trespass action for unlawful interference with a rightof-way, without a corresponding right to dispose of the property or a right to exclude others from using the property, a broad reading of Pope cannot be sustained. Here, Plaintiff has alleged a trespass by Defendants based on Plaintiff's possession of the real property, and not based on Plaintiff's ownership. Applying the heightened requirement of ownership is contrary to the plain language of the statute, the structure of the statutory scheme, and the cases that uphold that bare possession is sufficient to confer standing. The Court committed reversible error by applying the ownership requirement, even though Plaintiff expressly indicated, both in writing and during oral arguments, that Plaintiff had standing due to Plaintiff's possession of the damaged property. B.

The Court Erred by Holding that Plaintiff did not Possess Property that is Contiguous to Plaintiff's Recorded Plat, Even Though, as a Matter of Law, Possession Under a Duly Recorded Deed Will Be Construed to Extend to All the Contiguous Property Embraced in the Deed

Plaintiff's property is part of a platted subdivision known as the Lakefield Manor

69

See, e.g., Clayton County v. Billups Eastern Petroleum Co., 104 Ga. App. 778 (1961). 14

Subdivision.70 With respect to Plaintiff's property and the Subdivision, such property is platted pursuant to a final plat recorded and in the Records of Cobb County, Georgia.71 The recorded plat, which includes Plaintiff's property, clearly delineates the boundary lines of Plaintiff's property or Lot in the Lakefield Manor Subdivision.72 It is undisputed that the damaged property, which is the subject-matter of this lawsuit, is adjacent to Plaintiff's recorded Lot.73 Under Georgia law, "[p]ossession under a duly recorded deed will be construed to extend to all the contiguous property embraced in the deed."74 Given that the damaged property is contiguous to Plaintiff's property, duly recorded in Cobb County, Georgia, the law construes possession of Plaintiff's property to extend to all the contiguous property embraced in the deed. Despite this, the Court found, as a matter of law, that Plaintiff did not have possession. This is reversible error, since, as a matter of law, Plaintiff's possession is construed to extend to the contiguous right-of-way. C.

The Court Erred by Failing to View All Facts in the Light Most Favorable to Plaintiff

Plaintiff based his standing on possession and not ownership. In support of his position, Plaintiff provided facts to show that he has actual possession of the damaged property. 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

70

Order, ¶ 5.

71

Order, ¶ 5.

72

Order, ¶ 6.

73

Order, ¶¶ 20, 23, and 27.

74

OCGA § 44-5-167. 15

claimant and so exclusive as to prevent actual occupation by another."75 Additionally, the question of whether Plaintiff had sufficient control or possession of property is a question of fact that should have properly been left for a fact-finder.76 As such, the Court committed reversible error by making factual determinations, which are properly the role of a fact-finder, and not viewing all facts in the light most favorable to Plaintiff. Plaintiff's evidence that shows cultivation, use, or occupation of the land should have been viewed in the light most favorable to Plaintiff. These facts include:

75

(1)

Plaintiff's affidavit, in which Plaintiff notes his immaculate maintenance of his yard, including the damaged property.77 This fact shows Plaintiff's maintenance and cultivation of the yard, which is evidence of actual possession. This fact should have been viewed in the light most favorable to Plaintiff.

(2)

The acknowledgement of the Homeowners' Association that the damaged land is Plaintiff's land.78 This acknowledgement, that Plaintiff possessed the damaged land (i.e., "your land"), should have been viewed in the light most favorable to Plaintiff.

(3)

Defendant's acknowledgement that Plaintiff's neighbors considered the damaged property to be Plaintiff's property.79 The neighbors' belief that the damaged property was Plaintiff's property is evidence of actual possession. This fact should have likewise been viewed in the light most favorable to Plaintiff.

(4)

Defendant's own accusations that the damaged property was Plaintiff's property.80

OCGA § 44-5-165.

76

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"). 77

Affidavit of Christopher Moses in Support of Plaintiff's Opposition to Defendants' Motion to Dismiss, ¶¶ 19-20. 78

Traton's Second Admissions, ¶¶ 25 and 27-55.

79

Traton's Second Admissions, ¶¶ 25, 55, 72, 78, 95, and 100-103.

80

Traton's Second Admissions, ¶¶ 25, 55, 72, 78, 95, and 100-103. 16

Defendants' position, that Plaintiff possessed the damaged property, is evidence of Plaintiff's actual possession. Thus, this fact should have been viewed in the light most favorable to Plaintiff. (5)

Defendants' Request for Entry Upon Land for Inspection, in which Defendants and counsel for Defendants requested permission from Plaintiff to enter upon the damaged land for inspection.81 This fact evidences Defendants' acknowledgment that permission was necessary to enter onto the land, thereby evidencing Plaintiff's possession of the land. This fact should have been viewed in the light most favorable to Plaintiff.

(6)

Plaintiff's refusal to grant access to the land evidences Plaintiff's possession of the land. The Court was required to view this facts in the light most favorable to Plaintiff.

(7)

The actions of the parties to the Covenant, namely, the threat by the Homeowners' Association to impose monetary fines on Plaintiff if Plaintiff failed to maintain the right-of-way.82 This fact evidences the parties' intent, that the Covenant impose an obligation to Plaintiff to maintain the right-of-way.83 Since intent is a question of fact,84 the Court was required to view this fact in the light most favorable to Plaintiff.

All of these facts were provided to the Court in: (a) Plaintiff's Motion for Summary Judgment;85 (b) Plaintiff's Opposition to Defendants' Cross-Motion for Summary Judgment;86 and (c) during oral arguments.87 Despite the Court's claim that the undisputed facts were viewed

81

Defendants' Request for Permission to Enter Upon Land for Inspection.

82

Traton's Second Admissions, ¶¶ 25 and 27-55.

83

Lowry v. Norris Lake Shores Development Corp., 231 Ga. 549 (1974) ("Covenants will be enforced according to the intent of the parties"). 84

Worth v. State, 179 Ga. App. 207 (Intent is a question of fact).

85

Plaintiff's Motion for Summary Judgment and Memorandum in Support of Plaintiff's Motion, pp.2-9. 86

Plaintiff's Opposition, pp. 4-10.

87

Plaintiff is currently awaiting the hearing transcript, and shall supply the citations to the transcript immediately upon receiving the transcript. 17

in the light most favorable to Plaintiff,88 the Court could not have viewed all of the undisputed facts in the light most favorable to Plaintiff, when the Order recites only four (4) facts,89 none of which included these facts that were advanced by Plaintiff.90 The Court committed reversible error by failing to view all of these facts in the light most favorable to Plaintiff, and improperly making fact determinations that are solely within the role of the fact-finder. D.

The Court Erred in Holding that the Covenant Only Provided an "Undefinable Right"

The Order also 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 Plaintiff or adjacent to it, such an undefinable interest does not rise to the level of possession required by Georgia law in order to maintain an action for trespass.91 Here, the Court errs for two reasons. First, Plaintiff has shown not only a definable interest, but an interest in the real property that is expressly defined in the Covenant. Second,

88

Order, ¶¶ 24, 28, and 29.

89

Order, ¶¶ 1-4. It is also 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' Motion for Summary Judgment, much of which are based on Defendants' own admissions. The absence of almost all of these facts from the 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. 90

Of these four facts, one of them is clearly not viewed in the light most favorable to Plaintiff. Specifically, the 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, 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, First Amended Complaint, ¶¶ 102-103. 91

Order, ¶ 23. 18

Plaintiff has shown that the expressly-defined interest rises to the level of "bare possession," which is the only level required to maintain an action for trespass.92 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, and shall inure to the benefit of each owner thereof.93 As such, the express language of the Covenant: (a) grants Plaintiff a property interest insofar as the interest "shall run with the real property"; (b) binds all of the property within the subdivision; and (c) grants Plaintiff a right to protect the value and desirability of the all the real property within the subdivision. Additionally, the express language of the Covenant recites that it "shall be enforceable by . . . each Owner, his legal representatives, heirs, successors and assigns."94 As such, the Covenant expressly grants Plaintiff the right to enforce the rights that have been conveyed to Plaintiff through the Covenant. In other words, if any of the above-recited rights are violated, then Plaintiff has the right to "recover damages from any person who wrongfully interferes with such possession in any manner."95 The following example illustrates Plaintiff's interest in real property, which Plaintiff can

92

See, OCGA §§ 51-9-2 and 51-9-3.

93

Covenant, pp. 1-2.

94

Covenant, Article VIII, p. 19.

95

OCGA § 51-9-3, emphasis supplied. 19

neither "dispose of" nor "exclude others from using."96 Specifically, Plaintiff cannot dispose of his neighbor's Lot, since Plaintiff is not the owner. Additionally, Plaintiff cannot exclude others from using his neighbor's Lot, since Plaintiff is not the owner. However, if Plaintiff's neighbor is in violation of the Covenant, Plaintiff has a right to enforce the Covenant against his neighbor, even though the neighbor is the owner. The reason being that Plaintiff has a property interest in his neighbor's Lot, because the Covenant grants to Plaintiff a property right that "shall run with[] the real property."97 Additionally, the reason that Plaintiff can enforce the Covenant against his neighbor is because the Covenant grants Plaintiff a property interest to "protect[] the value and desirability of . . . the real property."98 As shown here, the Court committed reversible error by holding that Plaintiff's rights are "undefinable" when, in reality, those rights are expressly-defined in the Covenant. Additionally, the Court committed reversible error by holding that the interests defined in the Covenant "do[] not rise to the level of possession required by Georgia law" when, in reality, the Covenant expressly grants those property rights that are enforceable by Plaintiff. E.

The Court Erred 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, Beyond a Right of Access to the Right-of-Way

Plaintiff, Defendants, and the Court all agree that Plaintiff is the owner of the land that is contiguous to the damaged right-of-way. However, the Court limits those rights to a right of access to the right-of-way, even though the Supreme Court expressly noted rights other than the right of access. Specifically, in Billups, the Supreme Court held that "if [the plaintiff's] property 96

Order, ¶¶ 15, 20, and 23.

97

Covenant, pp. 1-2.

98

Covenant, pp. 1-2. 20

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."99 Here, Plaintiff expressly noted that he benefited from the enhanced value of his home due to the adjacent right-of-way, and that the damage to the right-of-way deprived him of the right of enjoyment of his home.100 As such, Plaintiff's "right of action is complete." Despite this, the Court held that Plaintiff's rights in the right-of-way were "at most, . . . a right of access to a public right-of-way." Such a holding is contrary to the Supreme Court's holding in Billups, and constitutes reversible error. F.

The Court Erred by Holding that the Newly-Submitted Evidence did not Identify Any Material Issue of Fact

The Court erred by holding that the newly-submitted evidence, which was a statement by a law enforcement officer indicating that encroachment onto the right-of-way was a trespass, did not raise any material issue of fact. The newly-submitted evidence consisted of a document, written only two (2) days after this Court's hearing on the motions for summary judgment. The author of the document is a law enforcement officer who is also a resident of the same subdivision as Plaintiff. The officer wrote that any encroachment onto the right-of-way in front of his home would be considered trespass. This fact is material because it further evidences the intent of the parties to the Covenant. Even the law enforcement officer believed that he had a possessory interest in the right-of-way in front 99

Clayton County v. Billups Eastern Petroleum Co., 104 Ga. App. 778 (1961).

100

Plaintiff's Opposition, p. 10. 21

of his home.101 This additional fact should have been considered in the light most favorable to Plaintiff, rather than being discarded as being immaterial. G.

The Court Erred by Holding that Plaintiff's Argument Lacks Merit and is Without Support or Basis in Fact or Law.

The Court erred by holding that Plaintiff's arguments lacked merit and were without support or basis in fact or law.102 Specifically, all of Plaintiff's arguments were supported by facts that were admitted in judicio by Defendants. Additionally, Plaintiff provided ample statutory and case law for each of the arguments in Plaintiff's Motion for Summary Judgment and Plaintiff's Opposition to Defendants' Motion for Summary Judgment. The Court's failure to view all of Plaintiff's recited facts in the light most favorable to Plaintiff, despite the fact that almost all of those facts were based on Defendants' own admissions, is legal error. IV.

CONCLUSION The Court is required to view all facts, both those presented in written briefs and

presented during oral arguments, in the light most favorable to Plaintiff, who is the non-moving party for purposes of the Cross-Motion for Summary Judgment. The Court failed to resolve all of the facts in favor of Plaintiff, thereby committing reversible error. Additionally, the Court erred, as a matter of law, by applying an ownership analysis to standing when all that is necessary is for Plaintiff to show "bare possession." The Court also erred by holding that the Covenant provided only an "undefinable" right to Plaintiff, even when the express language of the 101

See, 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. 22

Covenant defined an enforceable right for Plaintiff. The Court further erred by holding that any interest defined by the Covenant was insufficient to rise to the level of a possessory interest under Georgia law, even though Georgia law only requires "bare possession" for standing to bring a suit for trespass. Lastly, the Court erred by holding that OCGA § 51-9-10 only grants a right of action for interferences with a right of access to a public right-of-way, even though the statute expressly provides a cause of action for interference "with such possession in any manner." Plaintiff respectfully requests that the Court GRANT Plaintiff's Motion for Reconsideration, GRANT Plaintiff's Motion for Summary Judgment, and DENY Defendants' Motion for Summary Judgment. 19 October 2006. 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]

102

Order, ¶¶ 21-30. 23

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

] ] ] ] ]

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

CERTIFICATE OF SERVICE AND FILING This is to certify that on this day I filed with the Court and served the within and foregoing: (1) PLAINTIFF'S MOTION FOR RECONSIDERATION AND MEMORANDUM SUPPORTING PLAINTIFF'S MOTION upon the following via first class mail, postage prepaid, and properly addressed as follows: J. Kevin Moore, Esq. Attorney for Defendants Moore Ingram Johnson & Steele 192 Anderson Street Marietta, Georgia 30060 19 October 2006. 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] 24