Moses Petition For Writ Of Certiorari Final

IN THE SUPREME COURT STATE OF GEORGIA SUPREME COURT DOCKET NUMBER _____________ COURT OF APPEALS CASE NUMBER A07A1474 CHRISTOPHER MOSES Petitioner, v. TRATON CORP., et al. Respondent.

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Supreme Court Case No. ______________________

PETITION FOR WRIT OF CERTIORARI PETITIONER: Christopher L. Moses COUNSEL FOR PETITIONER: Sam S. Han Georgia Bar Number 322284 SAM HAN, P.C. 330 Bloombridge Way Marietta, GA 30066 +1 (404) 514-8237 [email protected] Robert K. Finnell Georgia Bar Number 261575 THE FINNELL FIRM Suite 200 PO Box 63 1 West Fourth Avenue Rome, GA 30161-3003 Charles B. Pekor Georgia Bar Number 570601 Daniel E. DeWoskin Georgia Bar Number 220327 PEKOR & DeWOSKIN, LLC Lenox Center 3355 Lenox Road, NE Suite 450 Atlanta, Georgia 30326

IN THE SUPREME COURT STATE OF GEORGIA CHRISTOPHER MOSES Petitioner, v. TRATON CORP., et al. Respondent.

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Supreme Court Case No. ________ Court of Appeals Case No. A07A1474

PETITION FOR WRIT OF CERTIORARI Pursuant to Rule 38(2) of the Rules of this Honorable Court, Petitioner hereby petitions this Honorable Court for a writ of certiorari to review the opinion and judgment in Moses v. Traton Corp. et al., Court of Appeals Case No. A07A1474,1 dated July 10, 2007, Motion for Reconsideration denied on July 30, 2007.2 The issues presented in this petition are of great concern, gravity, and importance to the public, and this petition should be granted because the Opinion from the Court of Appeals: (a) violates public policy; (b) produces manifestly unjust results; (c) contravenes Georgia's constitutional and statutory scheme; (d) departs significantly from decades of legal precedent; and (e) defies common sense. The issues on appeal are: (A)

1 2

Whether the Court of Appeals erred in ruling that a homeowner has no right to prevent others from repeatedly damaging the yard that adjoins the home, when the damaged yard affects the value of the home, and the homeowners' association (HOA) has threatened to impose financial penalties on the homeowner for the damaged yard (see Exh. C for photograph of damaged yard); and

Attached hereto as Exh. A. Attached hereto as Exh. B. Page 1

(B)

Whether the Court of Appeals erred in ruling that the County, rather than the homeowner, is liable for maintaining a significant portion of the homeowner's yard if that portion is located within a County-owned right-of-way.

This honorable Court should grant this Petition for Certiorari because of the negative repercussions that are left in the wake of the Court of Appeals' decision.

Namely, the Opinion

of the Court of Appeals: (1)

eviscerates every homeowner's ability to prevent others from damaging the yard that adjoins a homeowner's home;3

(2)

requires the County to maintain a significant portion of the yard that adjoins everyone's home, despite the fact that those yards have always been maintained by homeowners;

(3)

effectively abrogates a host of statutory provisions, including OCGA §§ 51-9-1, 51-9-3, 51-9-10, and 44-5165;

(4)

disregards legal precedent by affirming the lower court's impermissible resolution of genuine issues of material facts on summary judgment; and

(5)

prevents homeowners' associations from requiring homeowners to properly maintain the yard that adjoins the home, thereby effectively nullifying a contract between two private parties.

Insofar as the Court of Appeals departs significantly from both the spirit and letter of the law, and insofar as such a departure produces manifestly unjust results and is contrary to public policy, Petitioner respectfully petitions this Honorable Court to GRANT Certiorari. 3

A picture of Petitioner's home and the 13-foot-wide tract of damaged land, which is the property in question, is attached hereto as Exh. C. This picture is found in the record at R. Page 2

I.

INTRODUCTION An individual's property right is of such paramount

importance that both the U.S. Constitution and the Georgia Constitution are dedicated to the protection of private property. No fewer than eleven (11) separate paragraphs of the Georgia Constitution4 expressly address individual property rights. Particularly, the Georgia Constitution emphasizes that protection of property is "the paramount duty of government[,]"5 and this very Court has repeatedly held that the "right of the humblest individual in the enjoyment of his property must be protected."6 So important are property rights that the Georgia Legislature has codified property-related torts, thereby providing statutory causes of action for any interference with an individual's property rights.7

These property rights extend by

statute to rights-of-way.8 Despite the protections afforded by Georgia's Constitution and statutes, and despite this Court's mandate that the humblest individual's property rights must be protected, the Court of Appeals nevertheless holds that a homeowner has no right to

4

5 6 7 8

493-510. See, e.g., Georgia Constitution, Art. I, § I, ¶¶ I, II, IV, XXVI, and XXVII; Art. III, § III, ¶ I; Art. VII, § I, ¶¶ II and III; Art. VII, § II, ¶¶ II and IV; and Art. IX, § VII, ¶ III. Georgia Constitution, ¶ II. Williams v. LaGrange, 213 Ga. 241 (1957); Ammons v. Central of Georgia Railway Co., 215 Ga. 758 (1960). OCGA §§ 51-9-1, 51-9-2, 51-9-3, and 51-9-10. OCGA § 51-9-10. Page 3

prevent others from continuously destroying the land which adjoins the homeowner's home and which detrimentally affects the value of that home.9

This is so, despite the fact that the

homeowners' association has obligated the homeowner to maintain the damaged property, under threat of financial penalties to his home.10 Even a cursory examination of the land in question (see, Exh. C) removes any doubt that the homeowner, in fact, actually possesses the entire damaged yard and is responsible for maintaining the entire yard.

The homeowners' actual possession

of the yard is further evidenced by a plethora of objective evidence, which is wholly ignored by the Court of Appeals. Indeed, the issue of actual possession is a factual inquiry that is improper for disposal by summary judgment, yet the Court of Appeals affirms the lower court's impermissible fact-finding exercise. Despite the homeowners' actual possession of the yard, the Court of Appeals shifts the responsibility for maintaining the yard from homeowners to the County.

In doing so, the Court of

Appeals simultaneously eviscerates every homeowner's ability to protect the yard that adjoins the home, obligates the County to maintain that portion of every homeowner's yard, and nullifies

9

The subject property is shown in Exh. C, attached (from the trial court record at R. 493-510). 10 R. 66-67 (First Moses Affidavit, ¶¶ 4-8); See, Exh. D (Letter from Homeowners' Association, attached to First Moses Affidavit at R. 66-67). Page 4

the intent of the parties to the subdivision covenants. Such a result: (a) contravenes Georgia's constitutional and statutory scheme; (b) violates public policy; (c) produces a manifestly unjust result; (d) significantly departs from decades of legal precedent; and (e) defies common sense. For these reasons, Petitioner respectfully requests this Honorable Court to GRANT Certiorari.

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II.

SUBJECT MATTER OF THE LAWSUIT

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III. FACTS Petitioner's home is situated within a covenanted subdivision.11

Given the ongoing construction within the

subdivision, the builder also functions as the Home Owners' Association (HOA).12 Since the purchase of his home, Petitioner has always maintained immaculate care of the lawn that is attached to his home,13 including the right-of-way that forms a part of his yard.14

As shown in Exh. C, the right-of-way is visibly

indistinguishable from Petitioner's recorded lot and adjoins the lot.15

In fact, homeowners believe that the entire yard is in

the homeowner's possession, and, hence, the homeowners maintain the entire yard in order to protect the value of their homes.

11

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). 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 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). 14 T. 61:8-9 (The right of way extends thirteen (13) feet beyond the curb into Petitioner's yard). 15 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")). Page 7

Over the course of eight (8) months, during continued development of the subdivision, the builder's large construction vehicles repeatedly drove over Petitioner's yard, thereby damaging the yard.16 Petitioner complained to the builder about the damage,17 and requested the builder to stop damaging the yard.18

Rather than

repairing the damage that it caused, the builder (acting as the HOA) cited Petitioner's damaged yard as being in violation of the subdivision covenants.19

In other words, the builder damaged the

yard and then cited that very damage, which the builder had caused, as being a violation of the covenants, thereby threatening to impose monetary fines on the homeowner if the homeowner failed to repair the damage.20 In an effort to stop the ongoing damage to the yard, Petitioner filed this lawsuit in Cobb County Superior Court on October 13, 2005.21

16

R. 1412; T. 4:13-17; T. 14:21-23. R. 373-374, 407(Admitted by Defendant, Traton's Second Admissions, ¶¶ 95-103). See, Exh. C, attached hereto. 17 R. 1413; R. 368, 400 (Admitted by Defendant, Traton's Second Admissions, ¶ 24). 18 R. 1413; T. 15:1-4. R. 336, 348 (Admitted by Defendant, Traton's First Admissions, ¶ 15). 19 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). 20 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). 21 R. 1423; T. 7:9-10; T. 15:25-16:1. R. 337, 351 (Admitted by Page 8

On October 9, 2006, the Superior Court disposed of this case on summary judgment, holding that Petitioner had no rights in the damaged land because the damage was confined to the right-of-way portion of Petitioner's yard.

In doing so, the Superior Court

made a factual finding on summary judgment that Petitioner did not have actual possession of the damaged land.

Consequently,

the Superior Court dismissed the case, holding that Petitioner had no standing to bring any legal action for the damaged land (see Exh. C). Petitioner appealed, noting: (a) that Petitioner had actual possession of the damaged land; (b) that possession was a question of fact, for which Petitioner had submitted ample evidence; and (c) that summary judgment was inappropriate, since the factual inquiry of actual possession could not be disposed of on summary judgment. On July 10, 2007, the Court of Appeals affirmed, holding that Petitioner's factual indicia of actual possession was irrelevant, since Petitioner could not, as a matter of law, have a possessory interest in that portion of Petitioner's yard.22

In

Defendant, Traton's First Admissions, ¶ 34). See, also, R. 615 (Complaint). 22 Petitioner submits that the logic of the Court of Appeals is circular. Rather than reviewing the factual indicia of possession to determine whether there was actual possession (which would confer standing), the Court of Appeals first concludes that Petitioner has no possessory interest, and then dismisses the objective evidence of actual possession as being irrelevant in determining actual possession. Petitioner respectfully submits that the Court of Appeals has placed the proverbial cart before the horse. Page 9

doing so, the Court of Appeals shifted the liability for maintaining a significant portion of every homeowner's yard from the homeowners to the County. On July 19, 2007, Petitioner filed a Motion for Reconsideration with the Court of Appeals, noting that the Court of Appeals overlooked a material fact in the record, and also overlooked a statute that is controlling as authority and which would require a different judgment from that rendered. On July 30, 2007, Petitioner's Motion for Reconsideration was denied, and, on August 07, 2007, Petitioner filed with the Court of Appeals his Notice of Intention to Petition for Writ of Certirorari. Petitioner now files this Petition for Writ of Certiorari.

IV.

ARGUMENT A.

The Opinion of the Court of Appeals Contravenes Georgia's Constitutional and Statutory Scheme, Departs Substantially from Decades of Precedent, Violates Public Policy, and Defies Common Sense

The Opinion of the Court of Appeals contravenes Georgia's constitutional and statutory scheme, departs substantially from decades of precedent, is contrary to public policy, and defies common sense. 1.

The Opinion of the Court of Appeals Contravenes Georgia's Constitutional and Statutory Scheme, and also Departs Significantly from Decades of Legal Precedent

As noted above, the Georgia Constitution and this Court

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consider an individual's property rights to be of paramount importance.23

Given that an individual's home is of such

importance, Georgia provides statutory remedies for any interference with an individual's property rights. For example, OCGA § 51-9-1 recites that "[t]he right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a tort for which an action shall lie."24 Rather than requiring ownership of property, OCGA § 51-9-3 permits those in bare possession to bring an action for trespass.25

The issue of whether one actually possesses land is

a question of fact that cannot be disposed of on summary 26

judgment.

Despite Georgia's constitutional and statutory scheme, which emphasizes the importance of an individual's property rights, the Court of Appeals deprives a homeowner of the right to bring an action to prevent damage to land, which indisputably affects the value of the home and for which the homeowner has actual possession.

Even though actual possession is a question of fact

23

Georgia Constition, Art. I, § I, ¶ II. Williams v. LaGrange, 213 Ga. 241 (1957); Ammons v. Central of Georgia Railway Co., 215 Ga. 758 (1960). 24 OCGA § 51-9-1 (emphasis supplied). 25 OCGA § 51-9-3 ("The bare possession of land shall authorize the possessor to recover damages from any person who wrongfully interferes with such possession in any manner"). 26 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 Page 11

that cannot be disposed of on summary judgment,27 the Court of Appeals wholly discounts the objective evidence of actual possession28 and affirms the lower court's summary judgment, that homeowners cannot protect their yards. By ruling as it did, the Court of Appeals obliterates a homeowner's ability to prevent others from damaging property which directly affects the value of the home.

In other words,

contrary to Georgia's constitutional and statutory scheme, which mandates protection of even the "humblest individual in the in the enjoyment of his property,"29 the Court of Appeals deprives homeowners of the very protection that the Georgia Constitution seeks to provide. Here, the homeowners' association (HOA) obligates Petitioner to maintain the damaged land, including the damaged sod, turf, and grass in the right-of-way.30

Petitioner's neighbors expect

fact for the jury"). 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"). 28 Moses v. Traton Corp., et al., Appeal No. A07A1474, 2007 Ga. App. LEXIS 811, *8 (July 10, 2007) ("Factual Indicia of Possession . . . . [T]he facts Moses points to, such as his mowing of the area, or another property owners' opinions with respect to Moses's legal interest in the land, are not sufficient to create in Moses a legally cognizable possessory interest in the public right of way."). 29 Williams v. LaGrange, 213 Ga. 241 (1957); Ammons v. Central of Georgia Railway Co., 215 Ga. 758 (1960). 30 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). 27

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Petitioner to maintain the damaged yard.31

Petitioner has been

maintaining the right-of-way portion of his yard since the day that he bought his home.

Indeed, every Georgia homeowner

maintains the entire yard, including the sod, turf, and grass in the right-of-way.

This is because rights-of-way often extend

well into the yard from the curb.32

For this very reason, the

homeowners actually possess the entire yard "by enclosure, cultivation, or any use and occupation of the lands[.]"33 The Court of Appeals nevertheless holds that neither Petitioner nor any other homeowner has any obligation to maintain the 13-foot-wide portion of the lawn that extends to the curb.34 Consequently, the Court of Appeals holds that Petitioner has no standing to sue for damage done to that portion of Petitioner's yard.

Such a ruling is contrary to Georgia's statutory scheme

that requires only "bare possession of land,"35 and incompatible with Georgia's constitution, which considers an individual's property rights to be of paramount importance. Furthermore, while OCGA § 51-9-10 provides that an "unlawful interference with a right-of-way or a right of common constitutes

31

R. 66-67 and 71-72. T. 61:8-9 (The right of way extends thirteen (13) feet beyond the curb into Petitioner's yard). 33 OCGA § 44-5-165. 34 Moses v. Traton Corp., et al., Appeal No. A07A1474, 2007 Ga. App. LEXIS 811, *8 (July 10, 2007). 35 OCGA § 51-9-3 ("The bare possession of land shall authorize the possessor to recover damages from any person who wrongfully interferes with such possession in any manner"). 32

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a trespass to the party entitled thereto[,]"36 the Court of Appeals limits the statutory reach of OCGA § 51-9-10 to only the rights of ingress and egress.37

This is contrary to precedent:

The damages, therefore, that an individual may recover for injuries to his property need not necessarily be caused by acts amounting to trespass, or by an actual physical invasion of his real estate; but if his 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 any public improvement, his right of action is complete, and he may recover to the extent of the injury sustained.38 It makes no sense that OCGA § 51-9-10 permits a homeowner to recover for the lesser act of hindering access to a right-of-way with no physical damage to the right-of-way, yet prohibits a homeowner from recovering for the greater harm of actual physical damage to the right-of-way.

Such a construction of OCGA § 51-9-

10 is contrary to established precedent, which permits recovery for "being deprived of some right of use or enjoyment growing out of and appurtenant to [a homeowner's] estate."39 For at least these reasons, Petitioner respectfully requests this Honorable Court to GRANT Certiorari.

36

OCGA § 51-9-10. Moses v. Traton Corp., et al., Appeal No. A07A1474, 2007 Ga. App. LEXIS 811, *6 (July 10, 2007). 38 Clayton County v. Billups Eastern Petroleum Co., 104 Ga. App. 778 (1961) (emphasis supplied). 39 Clayton County v. Billups Eastern Petroleum Co., 104 Ga. App. 778 (1961). 37

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2.

The Opinion of the Court of Appeals Violates Public Policy

In addition to contravening Georgia's constitutional and statutory scheme, the Opinion of the Court of Appeals violates public policy.

In holding that homeowners have no obligation to

maintain the right-of-way portion of their respective yards,40 the Court of Appeals now obligates the County to maintain a significant portion of every homeowner's yard.41 Prior to the decision by the Court of Appeals, the counties have never mowed, weeded, cultivated, landscaped, or maintained the right-of-way portion of any homeowner's lawn.

The reason

being that the counties are not equipped with sufficient funds or personnel to maintain even a small portion of everyone's yard. In view of the decision by the Court of Appeals, it is now evident that all of the counties have been unjustly enriched by every Georgia homeowner, insofar as the homeowners have been maintaining county-owned public property at the homeowner's expense. Moreover, going forward, the Court of Appeals' decision exposes the counties to legal action by the homeowners, should the homeowners wish for the counties to begin landscaping and maintaining the county-owned rights-of-way that form a portion of

40

Moses v. Traton Corp., et al., Appeal No. A07A1474, 2007 Ga. App. LEXIS 811, *8 (July 10, 2007). 41 T. 41 ("Mr. Moore: Ultimately, your honor, that property is owned by the public. It's Cobb County public right-of-way. Ultimately, Cobb County is responsible to maintain its rightof-way, the full width of its right-of-way."). Page 15

each homeowner's yard. Surely, burdening the counties with the maintenance of every homeowner's yards cannot be an acceptable public policy.

For

this additional reason, Petitioner respectfully requests this Honorable Court to GRANT Certiorari.

3.

The Opinion of the Court of Appeals Defies Common Sense

The Opinion of the Court of Appeals also defies common sense.

As Justice Frankfurter noted, and as the Georgia courts

have recognized, "[t]here comes a point where th[e] Court should not be ignorant as judges of what we know as men."42

Here, the

Court of Appeals did exactly what Justice Frankfurter cautioned against.

A review of the damaged yard, shown in Exh. C, clearly

evidences that the damaged land is an integral portion of the homeowner's yard, irrespective of whether or not it is a rightof-way.

The Court of Appeals defies common sense by holding that

homeowners cannot prevent others from repeatedly damaging that portion of the yard, especially since it is undisputed that the damaged land diminishes the value of the home, and the damage affects the homeowner's enjoyment of his home.43

42

Byrom v. Felker et al., 137 Ga. App. 400, 224 SE2d 72 (1976), citing Watts v. Indiana, 338 U.S. 49, 52 (1949). 43 T. 58:11-22 ("Mr. Moses has, since buying this house, continued to maintain that portion of the property, because he was under the understanding that that was his property. The Homeowners' Association was under the understanding that it was his property. All of his neighbors are still giving Mr. Moses grief because he's not maintaining his property. And all of Page 16

For this additional reason, Petitioner respectfully requests this Honorable Court to GRANT Certiorari.

4.

The Opinion of the Court of Appeals Produces a Manifestly Unjust Result

As noted above, the builder and the HOA are the same entity, namely, the Respondent.

It is undisputed that Respondent

obligated Petitioner to maintain the right-of-way that abuts Petitioner's lot.44

Respondent threatened that if Petitioner

failed to repair the damage that Respondent caused, then Respondent would impose monetary penalties on Petitioner.45 It is indisputable that the threat of such monetary penalties, which are directly tied to the home itself, adversely affects a homeowners' enjoyment of his home. what happened in this case:

This is exactly

Petitioner's enjoyment of his own

home was detrimentally affected by the obligation that Respondent imposed on Petitioner due to the damaged land.

Ample evidence,

including Petitioner's affidavit, was submitted to show the detrimental effect on Petitioner's enjoyment of his home.46

these individuals that have maintained that this is Mr. Moses' property are signatories to the covenant. And those facts need to be viewed in the light most favorable to Mr. Moses"). R. 68 (First Moses Affidavit, ¶¶ 19 ("I take great pride in maintaining a beautiful yard") and 20 ("As such, I have attempted to keep immaculate care of my yard")). 44 T. 58:11-22. R. 368-370, 400-402. See, Exh. D, appended hereto. 45 R. 66-67 and 71-72. 46 T. 58:11-22 ("Mr. Moses has, since buying this house, continued to maintain that portion of the property, because he was under the understanding that that was his property. The Page 17

Petitioner respectfully submits that it is manifestly unjust to deny Petitioner the right to prevent others from damaging the right-of-way that forms a portion of Petitioner's yard, when that very damage and threat of financial penalties adversely affects Petitioner's right to the enjoyment of his own home.47 Here, it is especially unjust, since: (a) it was Respondent that repeatedly damaged Petitioner's yard; and (b) it was Respondent that cited Petitioner for the damage done by Respondent.

By permitting Respondent to financially penalize

Petitioner for the damage, the Court of Appeals punishes Petitioner for Respondent's wrongful acts.

In other words, the

Opinion of the Court of Appeals produces an unjust result by rewarding the wrongdoer and denying the aggrieved any remedy. Such a result is fundamentally unjust, and should not be permitted by this Court.

This Court should not permit the legal

system to be used as such an instrument of injustice.48 For this additional reason, Petitioner respectfully requests that this Honorable Court GRANT Certiorari.

Homeowners' Association was under the understanding that it was his property. All of his neighbors are still giving Mr. Moses grief because he's not maintaining his property. And all of these individuals that have maintained that this is Mr. Moses' property are signatories to the covenant. And those facts need to be viewed in the light most favorable to Mr. Moses"). R. 68 (First Moses Affidavit, ¶¶ 19 ("I take great pride in maintaining a beautiful yard") and 20 ("As such, I have attempted to keep immaculate care of my yard")). 47 OCGA § 51-9-1. 48 As inscribed in this Court's hallowed halls, Fiat Justitia, Page 18

B.

This Court should Grant Certiorari to Correct the Numerous Errors of the Court of Appeals

In affirming the trial court's grant of summary judgment, the Court of Appeals commits numerous legal errors.

First, the

Court of Appeals fails to view all facts in the light most favorable to the non-moving party.

Namely, the question of

actual possession is a question of fact that should have been viewed in favor of Petitioner on summary judgment.

Secondly, the

Court of Appeals overlooks undisputed material facts, which evidence that the damaged property affects the value of Petitioner's home.

Additionally, the Court of Appeals overlooks

controlling statutes, which, if considered, would require a different result.

1.

Actual Possession Under OCGA § 51-9-3, a Statute which the Court of Appeals Overlooks, is a Question of Fact that Cannot be Disposed of on Summary Judgment

The Court of Appeals wholly ignores OCGA § 51-9-3,49 which, if considered, would require a different judgment than that rendered.

Namely, the Court of Appeals recites: "in light of our

rulings herein with respect to Moses's lack of legal interest in the right of way, the facts Moses points to, such as his mowing of the area, or another property owners' opinions with respect to

Ruat Caelum. Petitioner expressly cited this statutory provision to the Court of Appeals in both the Appellate Brief and in the Brief in Support of Appellant's Motion for Reconsideration. The Court of Appeals, however, wholly ignored OCGA § 51-9-3.

49

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Moses's legal interest in the land, are not sufficient to create in Moses a legally cognizable possessory interest in the public right of way."50 The Court wholly ignores the statutory provision of OCGA § 51-9-3, which is directed to actual possession, which is a factual inquiry.51

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."52

In other words, not only does the

Georgia Code address possessory interest (under OCGA § 51-9-2), the Georgia code also addresses actual possession (under OCGA § 51-9-3). Petitioner advances his case under OCGA § 51-9-3,53 yet the Court of Appeals wholly ignores OCGA § 51-9-3 by dismissing all of Petitioner's factual indicia of actual possession.54

In other

words, rather than viewing the evidence to see if Petitioner had actual possession, the Court of Appeals begins with the conclusion that Petitioner did not have a possessory interest (OCGA § 51-9-2) and, from there, summarily concludes that an

50

Moses v. Traton Corp., et al., Appeal No. A07A1474, 2007 Ga. App. LEXIS 811, *9 (July 10, 2007). 51 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"). 52 See, OCGA § 51-9-3 (emphasis supplied). 53 See, Petitioner's Appeal Brief at 15, 26, and 27. 54 Moses v. Traton Corp., et al., Appeal No. A07A1474, 2007 Ga. App. LEXIS 811, *9 (July 10, 2007). Page 20

analysis of actual possession (OCGA § 51-9-3) is unnecessary. Such an analysis places the cart before the horse, insofar as it begins with the conclusion and then summarily discounts the facts, which should have been viewed in the light most favorable to Petitioner. Insofar as actual possession under OCGA § 51-9-3 is a distinct inquiry from possessory interest under OCGA § 51-9-2, the Court of Appeals cannot simply ignore the factual indicia of actual possession under OCGA § 51-9-3, regardless of its conclusion on possessory interest under OCGA § 51-9-2.

This is

especially so on summary judgment, when all facts (including whether or not Petitioner actually possessed the damaged land) must be viewed in favor of the non-moving party (i.e., Petitioner). "Actual possession of lands may be evidenced by enclosure, cultivation, or any use and occupation of the lands[,]"55 and since actual possession is a separate factual legal inquiry from ownership or legal possessory interest, the Court was required to consider Petitioner's factual indicia of actual possession in the light most favorable to Petitioner, and not simply discount it as being irrelevant. The factual indicia of possession, which the Court of Appeals ignores, includes: (1) Respondents' admission that the pictures of the damaged

55

OCGA § 44-5-165. Page 21

property56 (see Exh. C) were of Mr. Moses' home and Mr. Moses' yard.57 (2) Petitioner's affidavit, in which Petitioner noted his immaculate maintenance of his yard, including the damaged property.58 (3) Respondent's admission that the Homeowners' Association, which is operated by Respondent, indicated that the damaged land was Petitioner's land.59 (4) Respondent's admission that Petitioner's neighbors considered the damaged property to be Petitioner's property.60 (5) Respondent's admission that Respondent considered the damaged property to be Petitioner's property.61 56

R. 492-510. R. 377, 411 (Traton's Second Admissions, ¶¶ 137 ("Admit that the pictures of Exhibit A show Mr. Moses' home"; "Defendant admits the allegations contained in Request for Admission No. 137") and 138 ("Admit that the pictures of Exhibit A show Mr. Moses' yard"; "Defendant admits the allegations contained in Request for Admission No. 138")). 58 T. 58:11-22 ("If we're looking at just the damage to the property, it's not just the portion of the property that is on the other side of the curb. It's actually the property that's contiguous to Mr. Moses' lot. And, again, Mr. Moses has, since buying this house, continued to maintain that portion of the property, because he was under the understanding that that was his property. The Homeowners' Association was under the understanding that it was his property. All of his neighbors are still giving Mr. Moses grief because he's not maintaining his property. And all of these individuals that have maintained that this is Mr. Moses' property are signatories to the covenant. And those facts need to be viewed in the light most favorable to Mr. Moses"). R. 68 (First Moses Affidavit, ¶¶ 19 ("I take great pride in maintaining a beautiful yard") and 20 ("As such, I have attempted to keep immaculate care of my yard")). 59 T. 58:11-22. R. 368-370, 400-402 (Traton's Second Admissions, ¶¶ 25 and 27-55 ("The second area in violation is the front right corner of your yard (looking from the street at your home)"). 60 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 100-103 (e.g., "The fact that you have decided to refuse to mow this portion of your yard has upset your surrounding neighbors, and is a violation of the CC&R's")). 61 T. 58:11-22. R. 368-370, 372-374, 400, 402, 404-4-5, 407 57

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(6) Defendants' Request for Entry Upon Land for Inspection, in which Respondents and counsel for Respondents requested Petitioner's permission to enter upon the damaged land for inspection.62 (7) Petitioner's refusal to grant access to the land.63 (8) The threat by Respondent (HOA) to impose monetary fines on Petitioner if Petitioner failed to maintain the right-ofway.64 All of these facts supporting actual possession should have been taken as true, and Petitioner's evidence of actual possession, which is a factual inquiry, should not have been disposed of on summary judgment.

The Court of Appeals, in

affirming the grant of summary judgment, contravenes wellestablished precedent that prohibits courts from engaging in fact-finding on summary judgment. Since the Court of Appeals errs in affirming the trial court's fact-finding on summary judgment, Petitioner respectfully requests this Court to GRANT Certiorari to correct the legal errors from the Court of Appeals.

(Traton's Second Admissions, ¶¶ 25, 55, 72, 78, 95, and 100-103 (e.g., "As for your yard issues, simply stated, Traton Homes has fixed your corner many times in the past due to the fact that it seemed reasonable to assume that the developer's large equipment trailers ran over your curb and placed a rut in your grass")). 62 R. 179-180 (Defendants' Request for Permission to Enter Upon Land for Inspection). 63 T. 51:10-22. 64 T. 58:11-22. R. 368-370, 400-402 (Traton's Second Admissions, ¶¶ 25 and 27-55 ("If these two violations are not corrected the Homeowners Association has the authority to remedy the violations and charge your home for the expense")). Page 23

2.

In Determining Standing, the Court of Appeals Overlooks Undisputed Material Facts: Namely, that the Damaged Right-of-Way Detrimentally Affects the Value of Petitioner's Home and Petitioner's Enjoyment of His Home

Both Parties agree that the condition of the right-of-way, which is contiguous to a homeowners' lot, affects the homeowners' enjoyment of his home.65

Yet, the Court of Appeals finds that

"Moses has identified no diminishment in his right of user [sic] or enjoyment with respect to his own property . . . ."66

In

overlooking the fact that Petitioner's enjoyment of his land is diminished by the damaged right-of-way, the Court of Appeals overlooks a material fact. Petitioner has the right to prevent others from damaging property that affects the value of his home and his right to enjoyment of his home.67

Here, it is undisputed that the

condition of the right-of-way affects the value of Petitioner's home.68

Indeed, the homeowners' association's threat to impose

monetary penalties on Petitioner's home69 detrimentally affects Petitioner's enjoyment of his home. By showing that the damaged right-of-way detrimentally affects the value of his home and his enjoyment of his home,70 Petitioner has proven a real harm to his own property right.

65

For

T. 49:13-16; T. 50:3-8; T. 41:11-21. Moses v. Traton Corp., et al., Appeal No. A07A1474, 2007 Ga. App. LEXIS 811, *7 (July 10, 2007). 67 OCGA § 51-9-1. 68 T. 49:13-16; T. 50:3-8; T. 41:11-21. 69 R. 66-67 and 71-72. 70 OCGA § 51-9-1. 66

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this reason, Petitioner has standing to bring an action on the very property that affects the value of his home.71 The Court of Appeals errs in overlooking this critical fact, and holding that Petitioner has no standing to bring a trespass action for the damaged yard.

This Honorable Court should GRANT

Certiorari to correct that legal error.

III. CONCLUSION For at least the reasons set forth above, Mr. Moses respectfully requests that this court GRANT Petitioner's Petition for Writ of Certiorari. [SIGNATURE TO FOLLOW] 17 August 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]

71

OCGA § 51-9-1. Page 25

EXHIBIT A (Opinion from the Court of Appeals)

Exhibit B (Court of Appeals, Denial of Motion for Reconsideration)

EXHIBIT C (From R. 493-510)

EXHIBIT D (From Moses First Affidavit, R. 66-67)

IN THE SUPREME COURT STATE OF GEORGIA CHRISTOPHER MOSES Petitioner, v. TRATON CORP., et al. Respondent.

] ] ] ] ]

Supreme Court Case No. ________ Court of Appeals Case No. A07A1474

CERTIFICATE OF SERVICE AND FILING This is to certify that on this day I filed with the Court one (1) original and seven (7) copies, and served the within and foregoing PETITION FOR WRIT OF CERTIORARI 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 [SIGNATURE TO FOLLOW] 17 August 2007. Respectfully submitted,

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