Moses Reply Brief On Motion For Reconsideration For Certiorari

IN THE SUPREME COURT STATE OF GEORGIA SUPREME COURT DOCKET NUMBER S07C1858 COURT OF APPEALS CASE NUMBER A07A1474 CHRISTOPHER MOSES Petitioner, v. TRATON CORP., et al. Respondent.

] ] ] ] ]

Supreme Court Case No. S07C1858

PETITIONER'S REPLY BRIEF ON MOTION FOR RECONSIDERATION 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.

] ] ] ] ]

Supreme Court Case No. S07C1858 Court of Appeals Case No. A07A1474

PETITIONER'S REPLY BRIEF ON MOTION FOR RECONSIDERATION COMES NOW Petitioner and files Petitioner's Reply Brief on Motion for Reconsideration and hereby shows this Honorable Court the following:

I.

THIS CASE IS ONE OF GREAT CONCERN, GRAVITY, AND IMPORTANCE BECAUSE THE OPINION OF THE COURT OF APPEALS CREATES DISHARMONY IN THE LAW Contrary to Respondent's allegations, the issues presented

in the petition are of great concern, gravity, and importance to the public because the decision of the Court of Appeals creates disharmony with existing law and inconsistencies in precedent. Specifically, the decision of the Court of Appeals is contrary to this Honorable Court's holding in Justice v. Aikin,1 which only requires bare possession of land to confer standing to sue for trespass.

Justice is consistent with the plain

language of OCGA § 51-9-3, which recites: "The bare possession of land shall authorize the possessor to recover damages from any person who wrongfully interferes with such possession in any manner."

The contrary holding in this case by the Court of Appeals adversely affects the fundamental right of every homeowner. Thus, this case is one of great concern, gravity, and importance to the public.

II.

JUSTICE V. AIKIN IS APPLICABLE AND SUPPORTS PETITIONER'S POSITION Originally, Justice was cited by Respondent as being

applicable to this action.

Upon realizing that Justice supports

Petitioner's position, Respondent now argues that Justice is inapplicable to this action.

This Honorable Court's own words

in Justice speak for themselves.

Namely:

Possession is one degree of title. It is the lowest, it is true, but it is sufficient for one to maintain the action of ejectment against another who is a mere wrong-doer and who has intruded into possession, and the bare right of possession of lands authorizes their recovery by the owner of such right, and also damages for withholding the right.2 The holding by the Court of Appeals, which effectively requires ownership, is contrary to both the plain language of the statute and also the holding by this Court in Justice.

As

such, the Opinion of the Court of Appeals creates a marked departure from established law.

1 2

104 Ga. 714 (1898). Justice v. Aikin, 104 Ga. 714, 717 (1898), internal citations omitted, emphasis supplied. Page 2

III. THE RECORD IS REPLETE WITH EVIDENCE OF ACTUAL POSSESSION Respondent argues that the "county has the duty and right to maintain" the right-of-way portion of Petitioner's yard.3 However, during the entire time that Petitioner has owned his home, the county has never cultivated, mowed, landscaped, or otherwise maintained that right-of-way.

To the contrary, as the

undisputed evidence shows, Petitioner has always maintained that right-of-way.4

To require the county to now begin maintaining

everyone's lawn is preposterous.

However, that is the exact

result from the Opinion of the Court of Appeals. Also, Respondent has admitted in judicio that the damaged yard is Petitioner's land,5 and Petitioner has shown possession

3

4

5

Respondent's Response to Petitioner's Motion for Reconsideration of Denial of Certiorari ("Respondent's Response"), p. 11. 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")). 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 Page 3

of the land to be in Petitioner, and not some other entity.6

In

fact, Petitioner's neighbors considered Petitioner to be in possession of that land,7 and Respondent itself has threatened to impose monetary fines on Petitioner for failing to properly maintain that land.8

Given all of this evidence, it is

difficult to imagine that Petitioner did not possess the land. Even the Court of Appeals agreed that Petitioner had submitted evidence "such as his mowing of the area, or another property owners' opinions with respect to [Petitioner's] legal interest in the land."9

Despite all of this evidence showing

Petitioner's possession of the land, Respondent incredibly argues that Petitioner has failed to show possession of the land.

6

7

8

9

Request for Admission No. 138")). 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)"). R. 368-370, 372-374, 400, 402, 404-405, 407 (Traton's Second Admissions, ¶¶ 25, 55, 72, 78, 95, and 100103 (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")). T. 58:11-22. R. 368-370, 372-374, 400, 402, 404-4-5, 407 (Traton's Second Admissions, ¶¶ 25, 55, 72, 78, 95, and 100103 (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")). 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")). Respondent's Response, p. 6. Page 4

Respondent also cites to Davis v. Palmer,10 where this Court held that "the plaintiff had established evidence of actual possession by fencing the property, utilizing the property for gardening, parking of automobiles, and to pile lumber and junk thereon."11

Petitioner's evidence of record, as

recognized by the Court of Appeals, is the same type of evidence considered in Palmer. Petitioner humbly submits that dismissal of this action on summary judgment is improper when actual possession is a disputed question of fact, which cannot be disposed of on summary judgment.

Additionally, requiring a heightened showing

of ownership is contrary to well-established Georgia law, and requires reversal by this Honorable Court.

IV.

CONCLUSION The Opinion of Court of Appeals establishes a new standard

for maintaining a trespass action.

Namely, it requires

ownership rather than bare possession.

Such a heightened

standard is contrary to the plain language of Georgia's statutes, inconsistent with Georgia's statutory scheme, contrary to long-established legal precedent, and repugnant to every homeowner's rights as established by the Georgia Constitution. Such a marked departure from established law requires

10 11

213 Ga. 862 (1958). Palmer, 213 Ga. at 863. Page 5

reversal or clarification by this Honorable Court.

As such,

Petitioner respectfully requests reconsideration of the Petition for Writ of Certiorari. [SIGNATURE TO FOLLOW] 19 November 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]

Page 6

IN THE SUPREME COURT STATE OF GEORGIA SUPREME COURT DOCKET NUMBER S07C1858 COURT OF APPEALS CASE NUMBER A07A1474 CHRISTOPHER MOSES Petitioner, v. TRATON CORP., et al. Respondent.

] ] ] ] ]

Supreme Court Case No. S07C1858

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 one (1) copy of the within and foregoing PETITIONER'S REPLY BRIEF ON MOTIO FOR RECONSIDERATION 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] 19 November 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]