Moses Reply Brief To Respondent On Petition For Certiorari Filed

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.

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Supreme Court Case No. S07C1858

PETITIONER'S REPLY BRIEF 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. S07C1858 Court of Appeals Case No. A07A1474

PETITIONER'S REPLY BRIEF COMES NOW Petitioner and files Petitioner's Reply Brief in reply to Respondents' Brief in Opposition to Petition for Writ of Certiorari and hereby shows this Honorable Court the following:

I.

INTRODUCTION This case is of great importance and concern to the public,

and this Honorable Court should grant Petitioner's petition for at least the following reasons. First, the miscarriage of justice is always a matter of great concern.

So important is justice that the Georgia

Constitution expressly recites the objective of ensuring justice for all.1

Here, Respondent damaged property and then

threatened to impose monetary penalties against Petitioner's home if Petitioner failed to repair the damage caused by Respondent.

Permitting wrongdoers to profit from their misdeeds

would be a miscarriage of justice, and this Honorable Court should not tolerate such a miscarriage of justice.

1

See, Georgia Constitution, Preamble ("insure justice to all").

Second, the Georgia Constitution emphasizes that protection of property is "the paramount duty of government."2

Of such

importance is an individual's right to property that this very Court has repeatedly held that the "right of the humblest individual in the enjoyment of his property must be protected."3 Here, Petitioner's case has been improperly dismissed on summary judgment when there existed genuine issues of material fact.

The improper dismissal of this action deprived Petitioner

of any recourse for the violation of his fundamental right to the enjoyment of his property.

Since the protection of an

individual's enjoyment of his home is so paramount, this Court should grant certiorari. Third, the curtailment of a fundamental right, such as the right to enjoyment of one's home, is a matter of great concern and importance to the public.

Here, not only were Petitioner's

rights curtailed by the decision of the Court of Appeals, but also the rights of all Georgia homeowners.

The prerequisite for

bringing a trespass action by any citizen, under Georgia law, is bare possession.4

It is not ownership; nor is it heightened

possession; nor is it exclusive possession.

2 3 4

Adopting the

Georgia Constitution, ¶ II. Williams v. LaGrange, 213 Ga. 241 (1957); Ammons v. Central of Georgia Railway Co., 215 Ga. 758 (1960). 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."). Page 2

requirement of "exclusive possession," as Respondent urges,5 the Court of Appeals curtailed the rights of every Georgia citizen. This Court should grant certiorari to correct the error by the Court of Appeals, which affects all Georgia homeowners. Fourth, requiring "exclusive possession," as urged by Respondent, is repugnant to the plain meaning of OCGA § 51-9-10, which provides a cause of action for any "unlawful interference with a right-of-way or a right of common."6

By requiring

"exclusive possession" of a right-of-way, the Georgia Court of Appeals nullifies OCGA § 51-9-10, since no private entity has "exclusive possession" of a right-of-way.

Insofar as the

decision of the Georgia Court of Appeals is repugnant to the plain language of the statute, and since there have been no cases that have addressed whether "exclusive possession" is required for standing under OCGA § 51-9-10, this case is worthy of certiorari.7 Lastly, 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 Court's holding in Justice v. Aikin,8 which only requires bare possession, and not exclusive possession (or other

5 6 7

8

Respondents' Opposition, pp. 8-10. OCGA § 51-9-10. Swift, Currie, McGhee & Hiers v. Henry, 276 Ga. 571 (2003) (granting certiorari to resolve a question of first impression). See, M. M. Buice, et al. v. P. K. Dixon, 223 Ga. 645 (1967). Page 3

heightened possession).

As such, this case is worthy of

certiorari to correct the inconsistency that is created by the decision of the Court of Appeals.9 For at least these reasons, Petitioner respectfully requests this Honorable Court to GRANT Certiorari.

II.

FACTS Petitioner seeks to clarify only one fact.

Respondent

mischaracterizes the record by excerpting, out of context, one segment of a statement by counsel for Petitioner.

In proper

context, the relevant portion of the record recites: So essentially what [Respondents] asked [Mr. Moses] to do was repair the damage they had caused. And if he wasn't willing to do it they were going to put a lien on his house. At that point is when Mr. Moses came and visited me. He said, "Sam, I don't know what to do in this position. They have continued to run over my yard for months and months and months. They've refused to fix it. And now they're telling me that if I don't fix their damage, they're going to come put a lien on my house. What should I do? So I advised Mr. Moses . . . .10 In short, Respondents mischaracterize Petitioner's quote. Petitioner had no choice but to either file a lawsuit, or face financial penalties imposed by Respondent.

In other words,

Respondent: (a) caused the damage; and (b) threatened to fine Petitioner if Petitioner did not repair the damage that

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See, M. M. Buice, et al. v. P. K. Dixon, 223 Ga. 645 (1967). T. 6:17-7:2, emphasis supplied. Page 4

Respondent had caused. Respondents misquote Petitioner's counsel by omitting the context of Petitioner's statement to the trial court.

III. ARGUMENT The question of whether or not "bare possession" is sufficient to bring an action under OCGA § 51-9-10 has not been addressed by this Court, and is, therefore, one of first impression.

All of Respondents' cases, with the exception of

Justice v. Aikin,11 when read in their entirety, address ownership (or title), rather than bare possession.

Justice, the

only case cited by Respondent that addresses possession, supports Petitioner's position that only bare possession is necessary to bring an action for trespass. Respondent cites Florence v. Lovell,12 for the proposition that "possession alone does not raise a prima facie presumption of title."

Clearly, Florence is directed to ownership (i.e.,

title to land) and not bare possession.

Here, Petitioner's case

is not based on title, but on actual possession.

As such,

Florence, an ownership case, is inapplicable to Petitioner's possession case. Next, Respondent quotes Florence for the proposition that "where an action of trespass is brought for injury to the

11 12

104 Ga. 714 (1898). 75 Ga. App. 401 (1947), emphasis supplied. Page 5

freehold the right of the plaintiff to recover depends upon his showing that he is the true owner of the freehold . . . ."13 Here, Petitioner brings an action for damage to a right-of-way, and not for damage to any property that he owns in fee (i.e., this is not a freehold case).

As such, Florence is

inapplicable, and OCGA § 51-9-10, among other statutory provisions, controls. Next, true to character, Respondents misquote, out of context, Justice v. Aikin14 for the proposition that "[p]ossession implies a present right to deal with property at pleasure, and to exclude other persons from meddling with it." In context, this entire passage recites: 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. Possession implies a present right to deal with property at pleasure, and to exclude other persons from meddling with it. It will not do to reply to the petition in this case, that the petitioners do not show title to be in them. Admitting the allegations in the petition to be true, the petitioners were in possession of the land. If the defendant had title which gave him the right to the possession, it could be recovered; but the petition alleges that he was without title, and whether the petitioners had or did not have title is no concern of one who has neither title nor the right of 13 14

Id. 104 Ga. 714 (1898). Page 6

possession of the land. Being out of possession, the defendant could not acquire it without showing a superior right to the possession to be in himself; and we see no reason why the petitioners might not jointly, in right of their possession, resist the action of any one who, in the absence of superior right, sought to recover it from them. The question which is raised is not that of title; and whether or not the petitioners had title other than is given by possession is not a question which the defendant, who, according to the allegations of the petition, is about to become a trespasser, can make.15 Here, Respondent is the wrong-doer and has no superior title to the right-of-way.

In fact, Respondent admits that no

private entity can have title to a right-of-way.

Thus, as this

Court held in Justice, the "question which is raised is not that of title; and whether or not the petitioners had title other than is given by possession is not a question which the defendant, who, according to the allegation of the petition, is about to become a trespasser, can make."

Given this, "[i]t will

not do to reply to the petition in this case, that the petitioners do not show title to be in them."

As seen from the

very case that Respondents misquote, it is not sufficient for Respondents to simply allege that Petitioner "do[es] not show title to be in [him]."

The opinion by the Court of Appeals,

which contravenes the holding by this Court in Justice, leads to disharmony in the existing law and creates an inconsistency in

15

Justice v. Aikin, 104 Ga. 714, 717 (1898), internal citations omitted, emphasis supplied. Page 7

precedent.

As such, this case is worthy of certiorari.16

Continuing, Respondent incorrectly states that "a claim of trespass based upon possession alone must arise out of actual, exclusive possession . . . ."17

The requirement of "exclusive

possession" is nowhere in the statute and contrary to Georgia's statutory scheme and precedent, which only requires "bare possession."18

Additionally, the requirement of "exclusive

possession" cannot be reconciled with OCGA § 51-9-10, which permits an action for unlawful interference with a right-of-way. If, as Respondents urge, no citizen has exclusive possession of a right-of-way, then the requirement of exclusive possession would nullify OCGA § 51-9-10, since, according to Respondents, only exclusive possessors can bring an action under OCGA § 51-910.

Such a result nullifies the statute, and flies in the face

of the plain language of the statute. Respondent argues that "it is the position [Petitioner] advances, that each citizen be granted the right to sue for damages to public property, which would be contrary to common sense."19

However, Georgia statute and precedent unquestionably

supports Petitioner's position.

Namely, OCGA § 51-9-10 permits

citizens to sue for the unlawful interference with a right-of16

See, e.g., M. M. Buice, et al. v. P. K. Dixon, 223 Ga. 645 (1967); McCollum v. Bass, et al., 201 Ga. 537 (1946); Innovative Clinical and Consulting Services, LLC v. First National Bank of AMES, 279 Ga. 672 (2005). 17 Respondents' Opposition, p. 9. 18 OCGA § 51-9-3; see, also, Justice, 104 Ga. 714, 717 (1898).

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way [i.e., public property].

The ruling by the Georgia Court of

Appeals, which is contrary to the plain language of the statute, violates public policy by curtailing rights that the legislature intended to confer upon the citizens of Georgia. Continuing, Respondents incorrectly state that "the alleged actions of the Lakefield Manor Homeowner's Association, a nonparty to this action, have no legal effect . . . ."20

First of

all, the homeowners' association is the Respondent in this action.

Next, the statement by Respondent is evidence of actual

possession, since Respondent's employee, acting on behalf of Respondent, stated repeatedly that the damaged land was "your land" (i.e., Petitioner's land).

One can hardly dispute that

the term "your" is one of possession, and has always been so.21 Since actual possession is a question of fact,22 the legal effect of Respondent's accusation ("your land") is an admission by Respondent that Petitioner actually possessed the damaged land.

"Your land" as used by Respondent can mean nothing else.

Respondents' allegation that Respondents' admissions "have no legal effect" is preposterous. 19

Respondents' Opposition, p. 10. Respondents' Opposition, p. 14. 21 The dictionary defines "your" as: "of or relating to you or yourself or yourselves especially as possessor or possessors." Merriam-Webster's Online Dictionary, . 22 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 20

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Lastly, Respondents incredibly argue that this case is of no importance23 when this very Court has held that the "right of the humblest individual in the enjoyment of his property must be protected."24

Such a stark disagreement between Petitioner and

Respondents, and the disagreement in the cases cited by Petitioner and Respondents, supports Petitioner's position that there now exists disharmony and inconsistencies in appellate court precedent due to the erroneous ruling by the Court of Appeals.

IV.

Such error warrants review by this Court.

CONCLUSION Insofar as the issues presented in Petitioner's Petition

for Certiorari are of great importance and gravity to the public, Petitioner respectfully requests that this court GRANT Petitioner's Petition for Writ of Certiorari. [SIGNATURE TO FOLLOW]

of fact for the jury"). Respondents' Opposition, p. 15. 24 Williams v. LaGrange, 213 Ga. 241 (1957); Ammons v. Central of Georgia Railway Co., 215 Ga. 758 (1960). 23

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__ September 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]

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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.

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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 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] __ September 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]