Moses Reply Brief On Appeal

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

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Supreme Court Case Number S07A0780

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

APPELLANT'S APPEAL BRIEF I. INTRODUCTION Mr. Moses, Appellant: (1) can have possession of a right-ofway; and (2) did in fact have possession of the right-of-way that forms the yard that is attached to his home.

As such, Mr. Moses

had standing to bring this action. Appellees' entire position is summed up in a single erroneous statement.

Namely, "actual possession of public

property cannot be legally obtainable."1

Thus, according to

Appellees, an individual can never have standing to bring an action for trespass to a right-of-way.

In other words, while

Appellees admit that they have continually entered onto Mr. Moses' yard, repeatedly destroyed the land, regularly interfered with Mr. Moses' enjoyment of his home, and threatened to impose monetary penalties on Mr. Moses for their destruction of his yard, Appellees nevertheless argue that Mr. Moses has no legal recourse. It would be manifestly unjust, and contrary to established law, to permit Appellees to continue their destruction of Mr. Moses' yard. II.

ARGUMENT (a)

As a matter of law, an individual can have possession of a right-of-way

Appellees sole argument is "that actual possession of public

1

property cannot be legally obtainable."2

Appellees are wrong for

a variety of reasons. First, OCGA § 51-9-10 provides a cause of action for unlawful interference with a right-of-way.

Appellees recognize

that "[t]his statutory provision is commonly relied upon by owners of property abutting public rights-of-way."3

Despite

this, Appellees contend that no property owner could ever have standing to enforce OCGA § 51-9-10.

It is difficult to

understand how "this statutory provision can be relied upon by owners of property abutting public rights-of-way" if "actual possession [of those rights-of-way] cannot be legally obtainable" by those owners.

Appellees' position is absurd.

As explained in

greater detail below with reference to City of Marietta v. CSX Transportation, Inc. ("CSX"),4 private entities can have possession of rights-of-way, and, hence, can have standing to bring trespass actions for damage to rights-of-way. Second, as noted in Clayton County v. Billups Eastern Petroleum Co. (hereafter "Billups"),5 "the Supreme Court held that . . . if [the Appellant's] property be depreciated in value by his being deprived of some right of use or enjoyment growing out of and appurtenant to his estate as the direct consequence of

1

Appellees' Reply Brief to Appellant's Appeal Brief ("Appellees Brief"), p. 18 (ellipsis omitted). 2 Appellees Brief, p. 18 (ellipsis omitted). 3 Appellees Brief, p. 14. 4 272 Ga. 612 (2000). 5 104 Ga. App. 778 (1961). 2

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."6

While Billups may be a "Takings Clause"

case, it is evident that the state cannot "take" the property of an individual, unless that property is first owned or possessed by the individual.

Stated differently, the property (i.e.,

right-of-way) that can be taken by the state is the same property that can be trespassed upon by Appellees.

Since an individual

can bring a "takings" action against the state for interfering with a right-of-way, it is axiomatic that an individual can likewise bring a trespass action against a private entity for interfering with that same right-of-way. Third, while a private entity cannot obtain ownership (i.e., title) to a public right-of-way by prescription, a private entity can possess a right-of-way.

In citing CSX,7 Appellees again

mistake ownership and possession.

Contrary to Appellees'

mischaracterization, CSX involves ownership of public property (i.e., title), and not bare possession.

Specifically, this Court

stated that "this case [CSX] involves the title to state property,"8 and that "this case [CSX] decides whether the state retains title to the W&A railroad or whether the city has

6

Clayton County v. Billups Eastern Petroleum Co., 104 Ga. App. 778 (1961). 7 City of Marietta v. CSX Transportation, Inc., 272 Ga. 612 (2000). 8 City of Marietta v. CSX Transportation, Inc., 272 Ga. 612, 614 (2000). 3

acquired title by public use."9 and not possession.

Thus, CSX is about ownership,

In fact, even in CSX, the railroad possessed

the state-owned property.10

As such, Appellees are simply wrong

in arguing that private entities can never possess public property. Given that individuals can possess public property, Appellees' position that an individual is "legally incapable of exercising actual possession of public property" must be rejected. (b)

As a matter of fact, Mr. Moses did have actual possession of the right-of-way that forms a portion of the lawn that is attached to his home

Not only can Mr. Moses possess a right-of-way, Mr. Moses did, in fact, possess the right-of-way that forms a portion of the yard attached to his home.

Here, Appellees' own admissions

conclusively established: (i) Mr. Moses' possessed the damaged property; and (ii) Appellees encroached upon that property without authorization.

Specifically, the evidence made of

record, and wholly ignored by the lower court and by Appellees in their response brief, included: (1) Appellees' admission that the pictures of the damaged property11 (examples of which are attached hereto as Exh. A)

9

City of Marietta v. CSX Transportation, Inc., 272 Ga. 612, 615 (2000). 10 City of Marietta v. CSX Transportation, Inc., 272 Ga. 612, 614 (2000) ("CSX Transportation leases the Western and Atlantic Railroad from the State of Georgia, which owns the railroad right-of-way"). 11 R. 492-510. 4

were of Mr. Moses' home and Mr. Moses' yard.12 (2) Appellant's affidavit, in which Appellant noted his immaculate maintenance of his yard, including the damaged property.13 (3) Appellee's admission that the Homeowners' Association, which is operated by Appellee, indicated that the damaged land was Appellant's land.14 (4) Appellee's admission that Appellant's neighbors considered the damaged property to be Appellant's property.15 (5) Appellee's admission that it considered the damaged property to be Appellant's property.16 12

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")). 13 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")). 14 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)"). 15 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")). 16 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., "As for your yard issues, simply stated, Traton Homes has fixed your corner many times in the past due to the fact that it 5

(6) Defendants' Request for Entry Upon Land for Inspection, in which Appellees and counsel for Appellees requested Appellant's permission to enter upon the damaged land for inspection.17 (7) Appellant's refusal to grant access to the land.18 (8) The actions of the parties to the Covenant, namely, the threat by Appellee to impose monetary fines on Appellant if Appellant failed to maintain the right-of-way.19 (9) Appellees' admission that "the facts in this case would tend to indicate that a portion of the county-owned right-of-way, consisting of grass, had been damaged by tire marks."20 Appellees mislead the Court by alleging that this evidence is "inadmissible hearsay"21 when, in fact, these statements are either: (i) Appellees' own admissions, which are admissible against Appellees and properly made a part of the record; or (ii) Appellant's statements submitted in an affidavit and properly made a part of the record. All of this evidence, showing that Mr. Moses continually maintained, cultivated, and used the right-of-way, evidence Mr. Moses' actual possession of the right-of-way.

In other words,

Appellant's possession was conclusively established by Appellees' admissions in judicio, none of which were refuted by Appellees, seemed reasonable to assume that the developer's large equipment trailers ran over your curb and placed a rut in your grass")). 17 R. 179-180 (Defendants' Request for Permission to Enter Upon Land for Inspection). 18 T. 51:10-22. 19 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")). 20 Appellee Brief, p. 14. 21 Appellee Brief, p. 22. 6

either at the hearing before the lower court or in Appellees' response brief. Since Appellees have submitted no evidence to show that Mr. Moses did not possess the damaged property, it is undisputed that Mr. Moses did, in fact, possess the damaged property at the time of the filing of the lawsuit.

Additionally, since Appellees

never refuted the unauthorized entry, Mr. Moses has likewise conclusively established the trespass by Appellees. III. CONCLUSION Mr. Moses: (1) can legally possess the right-of-way that forms a portion of his yard; and (2) did in fact possess that right-of-way.

As such, Mr. Moses had standing to bring this

trespass action against Appellees.

For at least the reasons

stated herein, the lower court Order must be reversed, and summary judgment must be granted in favor of Mr. Moses. 27 March 2007. Respectfully submitted,

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

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EXHIBIT A

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

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Supreme Court Case Number S07A0780

CERTIFICATION OF SERVICE AND FILING This is to certify that on this day I filed with the Supreme Court of Georgia one (1) original and seven (7) copies, and served one (1) copy of APPELLANT'S REPLY BRIEF upon the following my mail, postage prepaid, and properly addressed as follows: J. Kevin Moore, Esq. Attorney for Appellees Moore Ingram Johnson & Steele 192 Anderson Street Marietta, Georgia 30060 27 March 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]