Motion To Strike Georgia Power's Verified Answer And Counterclaim

Case 1:08-cv-01971-WSD

Document 9-4

Filed 07/11/2008

Page 1 of 29

IN THE SUPERIOR COURT OF DEKALB COUNTY STATE OF GEORGIA

JANET D. MCDONALD, JAMES B. STEGEMAN, PLAINTIFFS

CIVIL ACTION FILE NO: 07CY1139&6

V GEORGIA POWER COMPANY, et, al., DEFENDANTS

PLAINTIFF'S MO TION TO STRIKE DEFENDANT'S ANSWERS COMES NOW Plaintiffs in the above listed Civil Action and file their MOTION TO STRIKE DEFANDANT'S ANSWERS_

Plaintiffs file their Brief In Support of

Motion To Strike Defendant's Answers contemporaneously

Respectfully submitted th is 5" day of March, 2008 .

60~1

BY:

J T D. MCDUNA W, Pro Se 821 Sheppard Road • Stone Mountain , GA 30(}83 ~` 770) 879-8 737 .

l~ f

BY:

B . STEGF

1, Pro Se

Stone Mountain, GA 3008 3 (770) 879-8737

Fifed ®rDay o 2D00 Linda Carter Clek k of Superior Cou rt

Case 1:08-cv-01971-WSD

Document 9-4

Filed 07/11/2008

. ..#f

Page 2 of 29

It

CERTIFICATE OF SERVICE I Certify that I have this 5d' day of March, 2008 sa ved a copy of the foregoing PLAINTIFF'S MOTION and BRIEF IN SUPPORT OF PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S ANSWERS upon defendants through their attorney on file via U.S.P.S., First Class mail, proper postage pre-paid as follows: Troutman Sanders, LLP Brian P. Watt 5200 Bank of America Pinza 600 Peachtree Street Atlanta, GA 30308-2216

,NET D. MCDONALD, fro Se 821 Sheppard Rd Stone Mountain. GA 30083 (774) 879-8737

r

1ME$ Pro SC 821 Sheppard Rd Stone Mov ntaiH, GA 30083 (770) 879-8737

Fileday of; Candor Carter

p~

Clark of Superior Court

Case 1:08-cv-01971-WSD

Document 9-4

Filed 07/11/2008

Page 3 of 29

.j 0

IN THE SUPERIOR COURT OF DEKALB COUNTY STATE OF GEORGIA

Y

JANET D. MCDONALD, JAMES B. STEGEMAN, PLAINTIFFS

CIVIL ACTION FILE NO: U7G'v1139&6

V GEORGIA POWER COMPANY, et, al., DEFENDANTS

P

+

S BRIEF IN SUPPORT OF PLAINTIUFF"S MOTION TO STRIKE DEFENDANT'S ANSWERS

Plaintiffs filed their Verified Complaint October 26 , 2007 due to an on-going dispute with the named Defendants .

In support of Plaintiff ' s Motion, they show the

following: I. Plaintiffs Property Georgia Power has refused to address Pla intiffs claim that the Easement agreement does not pertain to Plaintiffs property.

Nowhere does the easement

agreement or the 1937 map show that Plaintiffs property is included in the agreement .' To the contrary, Plaintiffs have attached a regular sized copy of the Easement

Agreement and an enlarged copy of the agreement so that it can be easily read. Plaintiffs have also attached their Property Tax Results and a copy of the Property Map as shown

by DeKalb County. See Exhibit 1.

1 The facts clearly show that Georgia Power did not have an easement at 821 Sheppard Road. Any reference Pla intiffs make about an easement an d their property is made only to avoid confusion and to avoid Plaintiffs continually stating that Geor gia Power did not have an easement agreement for their pro perty and for the sake of argument only.

Case 1:08-cv-01971-WSD

Document 9-4

Filed 07/11/2008

Page 4 of 29

The 1937 Easement shows the following description: "_ . . in Land Lot Number 73-74 of the 1 5" District . . ." The 1941 Easement shows the follow ing description: " . . . in Land Lot Number 37 & 74 of the 18'h District . . ." th Plaintiffs property description shows the following: Land Lot Number 73 of the 18 District.

Plaintiffs believed they were negotiating with Ms . Huddleston about the easement issue, and it would be a matter for the Courts before the August 2007 cutting took place. Georgia Power used State Patrol Troopers by making false statements about Mr . GofP s life being threatened and "}roper legal documents" to do so even though DeKaIb County Police, Sheriffs Deputy and Code Enforcement had determined that there was an easement violation . Georgia Power denies and would have this Court believe that Senior Troopers of State of Georgia Department of Public Safety falsely swore their statements in an internal investigation of the August incident at Plaintiff's home . Response to ¶¶s 54 , 55: " . . . that Exhibit H . . . speaks for itself . . ." are inconsistent with their re sponse to ¶¶s 65, 66 which concerns Matt Golf and what Matt Gaff represented to State Troopers : 65 : ". . .denies ., ."; 66: ". . . Georgia Power admits that Matt Go ff conveyed to Georgia State Troopers that in 2004 . . . Plaintiff McDonald. . . would get her gun . . ." The facts clearly show that at the 2004 cutting, there was an Officer on the scene, s hould such a threat had been made, there would have been an arrest or a Police report in the least . In recent Discovery requests from Defendant s to Plaintiffs, Plaintiffs provided the other Senior Trooper's statement on the incident in which Senior Trooper Mathis clearly states that Matt Goff told him ". . . that he had met with the homeowner approximately one month ago and was . . ." ".. also advise us that Georgia power had obtained the legal paperwork to perform the job ." Matt Goff had never been threatened by Plaintiffs and Georgia Power had not acquired "legal paperwork" which could only mean a Court Order which is what the Troopers told Plaintiffs Georgia Power said they had .

-2-

Case 1:08-cv-01971-WSD

Document 9-4

Filed 07/11/2008

Page 5 of 29

Plaintiffs have endured a dispute with Georgia Power and have been without the assets to hire legal counsel to protect their Rights . Plaintiffs are still without the funds for an attorney and filed this civil action Pro Se against their will and better judgment, but the violations of Plaintiff s Rights and property must end .

II.

Verified Answers

Several issues of the complaint list the only persons) at Georgia Power that could affirm or deny an allegation, such as Matt Goff or Nancy Huddleston . Defendant's answers were evasive and or non-responsive, stating: ". . . is not within the personal knowledge o f any one individual at Georgia Power, .: '; " . . .has been assembled by authorized employees and counsel . . . "; " . . . from records and files . . ."; "from interview s of appropriate employees . . ."; ". . .are true and correct to the best of his knowledge, information and belief." See bearing v. State of Ga., 243 Ga. App. 195, 201 (1) (532 SE2d 7 5 1) LAWSK ILLS (2000) holding that a fal se verification by oath constitutes perjury There is no reference to what information, where it came from, who the individuals were and further states : "without knowledge or information sufficient . . ." as shown in the following fifty paragraphs: 1, 2, 5, 6, 15, 16, 17, 18, 19, 20, 21 , 22, 23, 24, 25, 28, 31 , 32, 33, 34, 35, 36, 37, 40, 41 , 42, 43, 44, 45 , 46, 47, 54, 7 8, 84, 85, 89, 91, 92, 1 00, 101, 103 , i04, 105, 110, 1 i 1 , 112, 113, i24, i27, 12$.

III. False Swearing/ Perjury Therefore, Georgia Power has continually made false representation concerning Plaintiff's property . Further, Georgia Power has falsely sworn to the facts concerning Plaintiff's property. This shows that Georgia Power knowingly and intentionally falsely swore to the facts in their Verified Answers and Counterclaim, and why Georgia Power employed liable in order to have State Patrol Troopers come to Plaintiff's property to once again trespass, violate and destroy Plaintiffs property .

-3-

Case 1:08-cv-01971-WSD

Document 9-4

Filed 07/11/2008

Page 6 of 29

The only record attached to the Verified answer is one of the Easement agreements March 17, 1941, the Easement agreement dated May 4, 1937 was not included, both agreements had been provided to Plaintiffs by Georgia Power and Ms . Huddleston. ; Ms . Huddleston's letter to Plaintiff Stegeman stated that Georgia Power had an Easement Agreement with the previous owner ; Plaintiffs challenged that statement, Ms . Huddleston changed her statement from `previous owner" to "Dr . Wells", and provided the May 4, ] 937 and March 1 7, 1941 agreements, neither of which show any definite reference to Plaintiff's property . In the Magistrate Hearing of September 2007 at which Ms . Huddleston was present, Georgia Power's attorney told the Judge that the pole2 had been in place since "1941-42" . Georgia Power's Counterclaim, pg. 31 19 states ". . . maintained and utilized its easement in an uninterrupted, open notorious manner for over twenty years". The pole has not been in the same place for twenty years, this is evidenced by the inspection plaque and the size of Plaintiff's trees cut and addressed in the complaint . This is a falsely sworn statement . Plaintiffs have had an on-going dispute with Georgia Power which was not refuted at the Magistrate Hearing . Plaintiffs have been unable to find one pole on Sheppard Road that has been in place for 20 years . Further O.C .G.A. §44-9-40 shows that 20' is the maximum easement in Georgia, every pole on Sheppard Road is in violation . Georgia Power claims the they have a right to keep clear another 15' around the pole . Should the pole have been placed in accordance with the 1937 map showing pole locations at 5'2" and add the 15' Georgia Power claims to have a right to clear for their lines and poles, it comes up to 20' as stated in the statute . Q.C.G.A.§44-9-40 "(a) The superior court shall have jurisdiction . . ." "(b) When any person or corporation of this state . . . ingress, and egress not to exceed 20 feet in width over and across the property of the private person or corporation . . ." 2 In reference to the pole located at 831 Sheppard Road -4-

Case 1:08-cv-01971-WSD

Document 9-4

Filed 07/11/2008

Page 7 of 29

Defendant's Answer and Counterclaim, pg . 38 I¶s 34, 35 again claims twenty years . The following paragraphs and pages show that they illegally took the land and that the Easement agreements never pertained to Plaintiffs property : 134 " . . . Georgia Power has acquired a prescriptive easement" ; ¶39 " . . . has a prescriptive easement by adverse possession . . ." Georgia Power's response to complaint ¶¶'s 15-22, ¶24, T2$ : "without knowledge . . . they can neither admit nor deny" cannot be a true statement as AT&T rents pole space from Georgia Power, AT&T had a new pole erected in order to cross the street where the 1937 map shows a pole is to be placed ; the result of which are none of AT&T's lines cross Plaintiff's property. Georgia Power would have one believe that AT&T did not informm them of DeKa1b Police, Sheriff's Deputy, and Code enforcement's determination that easement had been violated. AT&T had already run and attached their new line to all of Georgia Power's poles along Sheppard Road from the direction of Rockbridge Road stopping at the corner of Sheppard Road and Sheppard Court waiting for Plaintiffs trees to be cut in order to run the tines across Plaintiffs property . When AT&T was told there was an easement violation they coiled the loose end of the line up at the pole on the corner of Sheppard Road and Sheppard Court where it stayed for two months while AT&T waited to see what Georgia Power was going to do . Q.C.G.A. §16-1Q-71 . (a) A person to whom a lawful oath or affirmation has been administered or who executes a document knowing that it purports to be an acknowledgment of a lawful oath or affirmation commits the offense of false swearing when, in any matter or thing other than a judicial proceeding, he knowingly and willfully makes a false statement. Response to 144 Georgia Power states : " that the terms of the deed granting Georgia Power easement rights over Plaintiffs property require that "[n]ay timber cut on said land by or for said Company shall remain the property of the owner of said timber ." One would believe that Georgia Power is stating that they have almost any kind of

-5-

Case 1:08-cv-01971-WSD

Document 9-4

Filed 07/11/2008

Page 8 of 29

eas ement available except for a "timber easement" which is defined by Black's Law Dictionary Seventh edition, pg. 529 : "timber easement . An easement that permit s the holder to cut and remove timber from another's property."

One would as sume that

Georgia Power is stating that they do not have a "timber easement", Georgia Power admitted that timber was cut , but said timber was the property of the owner . In Plaintiff's attempt to understand the statement, they came up the following meanings of "timber": See : TIMBER -General term applied to forests and their products . -Sawed lumber more than 4 by 4 inches in breadth and thickness .3 Noun : timber timbu(r) 4 1 . The wood of trees cut and prepared for use as building material - lumber 2. A beam made of wood Tim tiers : n. 1 . a. Trees or wooded land considered as a source of wood . b. Wood used as a building material; lumber .

2. a. A dressed piece of wood, especially a beam in a structure . b. Nautical A rib in a sip's frame . 3 . A person considered to have qualities suited for a particular activity: That trainee is executive timber . Ti mber:6 Definition : That sort o f wood which is proper for buildings or for tools , utensils, firniture , carriages, fences, ships, and the like ; usually said of felled trees, but sometimes of those standing. Cf. Lumber, Definition : The body, stem, or trunk of a tree . Definition : A single piece or squared stick of wood intended for building, or already fi arced ; 3 A Complete LOG GING AND TIMBER HARVESTING GLOSSARY Portions Made Available to Forestry at About by the U . S . Department of Labor 4 http :l/www .wordwebonline .com 5 http ://www.thefreedictionary.com/ 6 http ://ardictionary .com/Tiamberl4067

-6-

Case 1:08-cv-01971-WSD

Document 9-4

Filed 07/11/2008

Page 9 of 29

Plaintiffs agree that Georgia Power has destroyed trees that are over 20 years in age and/or that are large enough to be used for building material . Plaintiff's trees could not be the size they are had Georgia Power's pole continuously been in the same location for 20 or more years . Besides, mandatory inspections are done to all wooden poles, at the time of inspections a metal plaque is attached to the pole to show the inspection date . The pole at the 831 property lacks inspection plaques going back 20 years .

III. Easements/Condemnation Georgia Power admits to having attorneys on staff for land and easements and knows that such disputes are for determination made only by a Superior Court Judge . Georgia Power further has fiill knowledge of condemnation and the procedures thereof, ignoring Georgiaa statute, they illegally took Plaintiff's property, and violated easement agreements with other property owners of Sheppard Road . Jackson E lectric Membersh ip Corporation v . Echols, et., at., addresses an easement executed in August 1941 very similar except in the instant case there was no easement agreement and Plaintiffs also have possession of the Original 1937 map that shows where the poles were to have been placed . See the following: Jackson Electric Membership Corporation v . Echols, et., al., 1951 .GA.484 VERSUSLAW, 66 S.E.2d 770, 84 Ga. App. 610 Affirmed: At [ 1 I ]: " . . .in August 1941 , . . . the right to enter upon the described lands . . ."to place , construct, operate, repair, maintain, relocate and replace thereon and in or upon all streets, . . ., and to cut and trim trees and shrubbery to the extent necessary to keep them clear of sa id electric lines or system . . .." By this instrument no particular location of the right-of-way or easement was specified." At [13]: "White the easement relied upon by the pla intiff did not speci fically designate the location or the extent of the line or system m of lines to be erected on and over the defendants' lands, the subsequent erection of a line and the termination of

-7-

Case 1:08-cv-01971-WSD

Document 9-4

Filed 07/11/2008

Page 10 of 29

the work thereon for a considerable period of time operated to fix and determine this feature of the contract. Gaston v . Gainesville &c . Ry. Co., 120 Ga. 516(1 ) (48 S .E. 188) ." "Having thus established the location of the line . . _ intended to be permitted by the easement, the plaintiff was thereafter precluded, . . . to enter upon the defendants' lands and take additional portions thereof for the erection of an extension or extensions of the line or system without first obtaining from the defendants a further or additional easement or by a proper condemnation proceeding . fa6: "see Martin v. Seaboard AirLine R., 139 Ga. 807 , 809 (1) (77 SE 1060) (1913) g(grantee confined to land used in first establishing easement}" "To construe the original easement in any other manner would be to authorize the plaintiff to eventually take all the defendants' hand . . . no matter how great the de fendants' losses might be as a result thereof. This was clearly not the intention of the parties . . . did not intend to convey to the plaintiff blanket authority to take any and all their land whenever it might suit the convenience or necessity of the plaintiff, . . ." At [14) : ". . . the plaintiff had no right under the original easement to use the defendants ' lands for the purpose of erecting this additional line or system . . . overruling the motion for a new trial on the special grounds thereof." See also Bibb County v. Georgia Power Co ., 241 Ga. Agp. 131 , 525 S.E.2d 136 which was reversed in part and affirmed in part . In arguing summary judgment, the parties focus first on the validity of a 1941 agreement between Bibb County and Georgia Power Bibb County v. Georgia Power Co ., 24 1 Ga. App. 131 , 525 S.E.2d 136 VERSUSLAW (Ga.App. 11 /1011999) At [17] : "Once so established , the easements could not be changed without Georgia Power first obtaining from the landowners a further or additional ea sement , whether by condemnati on or otherwise. *fn6 Jackson Electric Membership Corp . v. Echols *fn7 explained the consequences of a contrary holding:"

- 8-

Case 1:08-cv-01971-WSD

Document 9-4

Filed 07/11/2008

Page 11 of 29

At [ 18] "To construe the original easement in any other manner would be to authorize the [utility] to eventually take all the [landowners'] land if the necessities of their business dictated, without requiring the payment of any additional damages or compensation to the [landowners) no matter how great the landowners'] losses might be. . ." "Certainly the [landowners] did not intend to convey to the [utility) blanket authority to take any and all their land whenever it might suit the convenience or necessity of the [utility], . . ." At [19] : "Once fixed by actual placement of the poles, indefinite easements do not "float" according to the business necessities of the utility ." At [21] : "Georgia Power did not retain records showing the placement of poles from the early time periods;. . . " At j29] : "But altering, repairing, and extending the power lines do not encompass the right to move the fixed poles several feet in one direction ; otherwise, by incremental adjustments, Georgia Power could eventually take over the entire property, a result not contemplated by such language ." At [321: "But if pursuant to easements with the previous landowners Georgia Power had located the poles on the land . . . these sections would appear to violate the Georgia Constitution provision prohibiting the taking of private property for public purposes w ithout just and adequate compensation being first paid . *fn19 Georgia Power Co . v. City of Macon" ""An easement is a property right, of which its owner cannot be deprived without just and adequate compensation . *fn2 i Absent the proper exercise of the power of condemnation , the underlying landowner has no power unilaterally to alter the path of an easement , even if the alternate route is "gold-plated ."" At [34] : "6. After entry of the two summary judgment orders, the trial court sua sponte amended its second order to add that Georgia Power had a "liberty interest" in the slight movement

which iibenv interest was DTOI eCie (1 nV ill e r ourteenin tirrienament. ri o 16Ly a1 or IaCilla.l Slli[lOI'1N SUDDOE"[S Si1Ct1 a l, 0IIC1US1011 . . . Of its Does

and facilities

on

-Q-

the

i'lffl]t-of- wav.

Case 1:08-cv-01971-WSD

Document 9-4

Filed 07/11/2008

Page 12 of 29

The Courts have cons istently held that once an easement agreement is made, it cannot be altered, see also Herren v . Pettengill, 273 Ga. 122, 273 Ga. 122, 538 S.E.2d

735, 538 S.E.2d 735 (Ga. 11/13/2000) Affi rmed : Herren v. Pettengill , 273 Ga . 122, 273 Ga . 122, 538 S.E.2d 735 , 538 S .E.2d 735 VERSUSLAW (Ga . 11/13/2000) At [9]: "Because the owner of the servient estate cannot sub stantially alter or relocate an ea sement without the consent of the owner of the dominant estate, we affirm ." At (131 : " . . . once the location becomes fixed , the same rule controls relocation issues , so long as the grant conta ins no conditions or reservations . *fn4 " at [241: "*fn4 See William B. Johnson, Annotation, Locating Easement of Way Created by Necessity , 34 A.L.R. 4th 769 (1985); Annotation, Locating Easement of Way of Neces sity, 68 A.L .R. 528 (1930) ." At [15]: " . . . Additionally, our courts have held that easements for utilities and railroads are confined to their original location, and, in order to alter, expand , or move them, consent or additional easements must be obtained . *fn9 at [29] : "*fn9 Martin v . Seaboard Air-Line R ., 139 Ga . 807 (77 SE 1060) (1913) ; Bibb County v. Georgia Power Co ., 241 Ga. App. 131, 133- 134 (525 SE2d 136) (1999) ; Jackson Elec. Membership Corp . v. Echols, 84 Ga. App. 610 (66 SE2d 770) (1951 )." "A grant of an easement is to be construed in accordance with the rules applied to deeds and other written instruments. In the construction of instruments creating easements, it is the duty of the court to ascertain and give effect to the intention of the parties."7 Orr et., al. v. Georgia Transmission Corporation, 633 S.E. 2d 564 , 280 Ga . App. 251 , 6 FCDR 1885, 2006 which held : At 113] : ". . . is entitled to have an accurate , definite description of the property . . . Without this, the owner of the property cannot know what port ion o f his land is requ ired, . . .

7 28A C .J. S. Easements §57, at 233 (1996) . - 10 -

Case 1:08-cv-01971-WSD

Document 9-4

Filed 07/11/2008

Page 13 of 29

cannot know the precise boundaries of the land so as not to trespass on property not acquired ." At ( 16]: " . . . In Mosteller Mill . . . found that the "nonspecific and undefined" easement a s set out in the condemnation petition conveyed "no idea of the extent of the contemplated invasion" and failed to describe sufficiently the interest being taken . 271 Ga . App. at 288-289 (1)." At [1 7]: ". . . In Dorsey v. Dept. of Transp ., 248 Ga. 34 (279 SE2d 707) (1981), the Supreme Court of Georgia considered, . . . the effect of an inadequate descript ion of the property or interest taken. . . . which does not conform . . .because it does not describe the nature or duration of an easement "cannot vest title to the land in the condemnor . " 248 Ga . at 37." See McMahon v . Hines, 298 Ill. App. 3d 231 , 236 , 697 N .E.2d 1199 (1998) . : "Court s tend to strictly construe easement agreements so as to permit the greatest possible use of property by its owner ." McMahon, 298 Ill . App. 3d at 236-37 . "The extent of an easement created by express grant depends on the terms of the grant. If it is specific in terms, it is decisive of the limits of the easement ." R. Ward, Extent of Easement Over Servient Estate, 33 POF 2d 669, 677 (1983). See Consolidated Cable Ut ilities , Inc . v. City of Aurora, 108 111 . App. 3d 1035, 1041 , 439 N .E.2d 1272 (1982) .: "In other words , "[i]f the language of a grant is clear and free from doubt, such language i s not the subject of interpretation , and no resort to extrinsic facts and circumstance s may be made to modify the clear terms of the grant ." Extent and Reasonableness of Use of Private Way in Exercise of Easement Granted in General Terms, 3 A.L.R.3d 1256, 1260 (1965) .

IV. Scope Of Easement "The power company's rights are not, however, unlimited . The power company must not inflict unnecessary damage to the land nor may its

-11-

Case 1:08-cv-01971-WSD

Document 9-4

Filed 07/11/2008

Page 14 of 29

exerc i se of its right unreasonably increase the burden placed on the servient tenement." Kell, 170 W.Va. at 17 , 289 S.E.2d at 454. The Kell court further stated: ""The power company cannot indiscriminately wreak havoc upon the owner's land and its appurtenances in order to exercise its limited right to protect its lines from danger and hindrance from overhanging branches and trees." (Emphasis added.) Kell, 170 W.Va. at 20, 289 S.E.2d at 456." In Stirling v. Dixie Electric Membership Corp ., 344 So . 2d 427 (La . App. 1977), the plaintiffs filed a lawsuit against the defendant electric company for damage to their trees , shrubs, and plants . The Court held : "The vast major ity of trees and shrub s were not a threat to the electrical line nor [did the defendant) claim that they were ." Stirling, 344 So. 2d at 429 . According to the Stirling court : "it would be more sympathetic to defendant 's cause had any effort been made to minimize the damage or even consider the use of mechanized equipment . *** Plaintiffs' carefully landscaped front yard was accorded no greater consideration than an ordinary fence row." Stirling, 344 So. 2d at 429. As such, the Stirling court awarded damages to the plaintiffs." Stirling, 344 So. 2d at 429. In Marshall v. Georgia Power Co., 134 Ga. App. 479 , 214 S .E.2d 728 (1975), the plaintiff sued the defendant for cutting down Christmas trees on his property located withi n an easement granted to the defendant in 1925 by the plaintiffs predecessor that gave the defendant authority to trim and remove trees and underbrush . . . Marshall , 134 Ga . App. at 479, 214 S.E.2d at 730: The Marshall court concluded: that the defendant had "the right to clear the trees, but did not have the right to damage other lands of the plaintiffs in do i ng so ." Marshall , 134 Ga . App. at 481 , 214 S.E.2d at 730 . In this regard, the court stated that "[w]hile the easement grants the right of entry , it does not provide for the

- 12-

Case 1:08-cv-01971-WSD

Document 9-4

Filed 07/11/2008

Page 15 of 29

indiscriminate violation of plaintiffs property rights in so doing." Marshall , 1 34 Ga. App. at 481, 214 S .E.2d at 731 . In Moore v . Choctawhatchee Electric Co-Operative , inc ., 196 So . 2d 788 (Fla. App. 1967 ), the plaintiffs filed a lawsuit against the defendant after it cleared a large strip of the plaintiffs' land. Moore , 196 So . 2d at 789 . The Moore court noted that: "even a ssuming the defendant had an easement over the property , . . . easement clearly authorize[d] the cutting and trimming . . . only to the extent necessary to keep them clear of said electric line ." Moore, 196 So. 2d at 789. According to the court , "'[s]uch language does not in and of itself vest i n defendants as a matter of law the right to clear a 30-foot swarth , which was the width of the clearing as alleged and proved by plaintiffs." Moore, 196 So. 2d at 789. See also Crowell v. Florida Power Corp., 438 So . 2d 958, 959 (Fla. App. 1983) concluding that : "even assuming the defendant had consent to enter upon the plainti ffs property, a genuine issue of material fact ex isted as to whether the defendant v iolated the boundaries of the consent by trimming the trees in the manner it did"; Hanner v. Duke Power Co., 34 N.C. App. 737, 738, 239 S .E.2d 594, 595 (1977) Although the instant case is different than most of those detailed above because , in those cases , the utility company was specifically granted the right to cut down or remove trees in addition to the right to trim, the cases are nonetheless instructive on the issue of when conduct falls within or exceeds the scope of an easement based on the specific language of the relevant easement .8

g United States Court of Appeals, Second Division Appeal from the Circuit Court of Cook County, IL Robert J . Duresa and Bonnie S . Duresa, Plaintiffs-Appellants, v . Commonwealth Edison Company, a/k/a/ COM ED, Defendant-Appellee ; JUSTICE BURKE delivered the opinion

-13

Case 1:08-cv-01971-WSD

Document 9-4

Filed 07/11/2008

Page 16 of 29

V. Contract Construction Plaintiffs and Defendants have had an Easement dispute for several years, acknowledged before the Magistrate Judge September 2007 . Although the Plaintiffs have never had the money to hire an attorney to enforce their Rights concerning their property and Georgia Power has continually taken advantage of that fact, Plaintiffs continually protested to Georgia Power . Georgia Power has past experience with easement disputes and knows that easement i ssues are governed by the rules of contract construction . Irvin v . Laxmi, Inc.,

266 Ga. 204, 205 (467 SE2d 510) (1996) . See Municipal Electric Authority of Georg ia, et., al . v. GoldArrow Farms, Inc., et., al . ; Georgia Power Company v. GoldArrow Farms, Inc., et., al.; Interstate F ibernet, Inc. v. GoldArrow Farms , Inc., et., al . A05A1400, A05A1401, AOSAi402 . COURT OF APPEALS OF GEORGIA 276 Ga . App . 862; 625 S .E.2d 57 ; 2005 Ga . App. LEXIS 1 319 ; 2005 . Affirmed in part , reversed in part and remanded in part . At [ 11 ] : " . . . Generally, this presents a question of law for the court, unless the language presents an ambiguity that cannot be resolved by the rules of construct i on. Hardman v. Dahlonega-Lumpkin County Chamber of Commerce , 238 Ga . 551 , 553 (233 SE2d 753) (1977) ; Imerys Marble Ca v. J . M. Huber Corp., 276 Ga . 401, 403 (577 SE2d 555) (2003) ." "The card inal rule of construction is to ascertain the intent of the parties. Irvin, 266 Ga. at 205." ""Where the contract terms are clear and unamb iguous, the court will look to that alone to find the true intent of the parties ." Southern Fed. Sav. & Loan Assn . &c. v. Lyle, 249 Ga. 284, 287 (290 SE2d 455) (1982) ; Park `N Go of Ga . v. U. S. Fidelity &c. Co., 266 Ga. 787, 791 (471 SE2d 500) (1996). To determine the intent of the parties, all the contract terms must be considered together in arriving at the construction of any part, and a construction upholding the contract in whole and every part is preferred. Cole v. Thrasher, 246 Ga. 683 , 684 (272 SE2d 696) (1980); McCann v . Glynn Lumber Co ., 199 Ga. 669,674 (34 SE2d 839) (1945) ."

-1 4 -

Case 1:08-cv-01971-WSD

Document 9-4

Filed 07/11/2008

Page 17 of 29

At [12] : " . . .An "[a]mbiguity is defined as duplicity, indistinctness, an uncertainty of meaning or expression used in a written instrument, and also signifies of doubtful or uncertain nature; wanting clearne ss or definiteness; difficult to comprehend or distinguish; of doubtful purport; open to variou s interpretations ." (Citation and punctuation omitted.) Early v. Kent, 215 Ga. 49, 50 (108 SE2d 708) (1959)." VI.

Default Service was perfected November 2, 2007 . Having not received a responsive

pleading on December 5 , 2007, Plaintiff McDonald contacted the Clerk for the Honorable Judge Becker and was told that there had been no responsive pleading filed. Neither the Plaintiffs nor this Court rece ived Defendant 's responsive pleadings within the 30 days mandated by statute . See O.C.G.A . §9-11-12 :

OCGA 49-11-12 (a) When answer presented. "A defendant shall serve his answer within 30 days after the service of the summons and complaint upon him . . ." Further, Defendants failed to Motion to open default and or pay the costs to open

default, this case therefore stands in default under O .C.G.A. §9-11 -55 : OCGA„§ 9-11-55 "When an answer ha s not been filed within the time required the case automatically becomes in default." Plaintiffs have neither waived their Right to have the Defendant's Answers

stricken nor their Right to Default Judgment . See the following: Ewing et., al., v. Johnston9 175 Ga. 1221 (334 S .E.2d 703) VERSUSLAW, 1985 : at [13] : "Several issue s . . . When does the time begin to run in computing the 30-day period a defendant has to answer under OCGA § 9-11-12 (a)?" 9 Plaintiffs were unable to find exact cases to cite and realize the difference in circumstances between Ewing v. Johnston and the instant case . -15-

Case 1:08-cv-01971-WSD

Document 9-4

Filed 07/11/2008

Page 18 of 29

at [14] : "(a) "A defendant shall serve his answer within 30 days after the service of the summons and complaint upon him, unless otherwise provided b y s tatute." (Emphasis supplied .)" . . . "We conclude that the 30 days within which a defendant has to file an answer begins to run from the date of service and not from the filing of the return ." At 115) : "(b) Because time ran from the actual date of service, default occurred on the 31st day following service" . . . " "The filing of the answer by defendant within 15 days following the default in this ca se, without payment of costs , does not alone open the default . Hazzard v . Phillips , 249 Ga. 24,25 (287 S .E.2d 191)." At [ 16] : "However, in Muscogee Realty Dev. Corp . v. Jefferson Co., 252 Ga . 400 (314 S.E.2d 199), . . . in default for filing an answer on the 31st day follow ing service, and the plaintiff apparently did not notice the default , . . . In reversing . . ., the Supreme Court held that . . . trial Judge abused his discretion because "the plaintiff allowed the case to proceed to trial without moving that the defaulting defendants ' answers be stricken and/or for a judgment on the pleading s because of the late filing of the answer s. .. " Id. p. 402 ."

See also : Fred Chenoweth Equip . Co. v. Oculus Corp., 254 Ga . 321 (328 SE2d 539) (1985) . "The default judgment merely determined that [Evens] failed to follow the procedural requirement that a timely answer be filed . The consequence of this failure was that judgment was entered against [Evens]." Chenoweth, supra at 323 .

-16-

Case 1:08-cv-01971-WSD

Document 9-4

Filed 07/11/2008

D

Page 19 of 29

.~

PRAYER Plaintiffs have shown the following: Georgia Power had full knowledge that there

was no easement concerning Plaiatitrs property, full knowledge of the dispute and had decided to ignore Georgia statutes and took matters into their own hands . Plaintiffs have shown this Honorable Court that the Verified Answers are insufficient, and unresponsive, and falsely sworn to . Plaintiffs have further shown that the Counterclaim filed by Defendants requests relief which cannot be granted.

Georgia Power filed an untimely answer the results of which are they are in Default, and they have failed to Open Default and/or pay the fees to Open Default .

Plaintiffs Pray that this Honorable Court will consider the foregoing paragraphs and Grant their Motion To Strike Defendant's Verified Answers.

Respectfully submitted this Sm day of March, 2008

BY:

~. JANET D. MCDONALD, Pro Se 821 Sheppard Road Stone Mountain, GA 30083 /-7(770) 879-8737

Stone Mountain, GA 30083 (770) 879-8737

Fted9bay o Linda Carter

12f

Clerk of Superior Court

-17-

Case 1:08-cv-01971-WSD

Document 9-4

Filed 07/11/2008

Page 20 of 29

.1

CERTIFICATE OF SERVICE I Certify that I have this 5P day of March, 2008 served a copy of the foregoing PLAINTIFF'S MOTION and BRIEF IN SUPPORT OF PLAINTIff'S MOTION TO STRIKE DEFENDANT'S ANSWERS capon defendants through their attorney on file via U.S.P.S., First Class mail, proper postage pm-paid as follows: Troutm an Sanders, LLP Brian P. Watt 5200 Bank of A merica Plaza 600 Peachtree Street Atlanta, GA 30308-2216

D. MCDUN , Pro Se 821 Sheppard Rd Mautsin, GA 30083 (770) 879-8737

1TrSLep~rd Rd Stone Mountain, GA 30083

(770) 879-8737 RledlL` Qay 0l~ 0& ~"~ Linda Carter Clerk of Superior Court ~

- 18 -

Case 1:08-cv-01971-WSD

Document 9-4

Filed 07/11/2008

JOL

Exhibit 1

Page 21 of 29

Case 1:08-cv-01971-WSD

l F

Document 9-4

Filed 07/11/2008

i

~.

S

Page 22 of 29 ~. G'SI

a3

~. ~

itittitit 11~~

.~

+

.~' 1

041

6

.

r ~~

.~

~'

S

v t

~

itilt" If

.~

~~

. ~

l

. ~. ~.

[

~

a

L Y

{

~.

r

~.

n r. ~

i .'

~~ r

%I

Ul

N

r

L

t

Case 1:08-cv-01971-WSD

Document 9-4

Filed 07/11/2008

Page 23 of 29

•r ¢ A

4

I ~~ . f FT

r ~~

..

i

~~ ~ a∎r

i

D1111L11 ~ [t ~

A

F

i

i

w

i~'' ~+f~19fy i

i

V g

g

OKI

;

f.

-~ ~

~.

~ .

~ . ~

4 a

Iii

,. ~

t

,~; ..

LAI

.,

.~-

a

Case 1:08-cv-01971-WSD

r r

14

.

Document 9-4

Filed 07/11/2008

Page 24 of 29

,. t~Io . ~ ~,

I. Y

4

1 ky -~.~S 1~ Eli

p

S

I i

r ~~ . Ir

,

.~ 10, 'n

a

~ .~ .~~ ~ .

~ ry

Case 1:08-cv-01971-WSD

Document 9-4

Filed 07/11/2008

Page 25 of 29

~f~.~# ~SSAyi'ci

A

wV, ~r

.~ :

~

A

1

.°

. ~

t 1 v

;.. f

., . .

~1 r

A

4

~ ~~

egR [

i

d

R g

N

a P

∎

Y

.,, .~ hp~ ; q ; ~ r y~~„ ?r ..

t;.l

., ~ r

M1'

t~ 1

~~ . .

~a I

s

IL

7 ry~

ry~

rr

~1

Case 1:08-cv-01971-WSD

Document 9-4

Filed 07/11/2008

t

Page 26 of 29

F~

.,

,~

--

, ..

. _~

14 u..

~. .. .

1 e

+~

/l a

r

,

~ =l, , Y

~

~

~ 'y} ~ ~~ . w

1

t

y

y "

'

i

d

K

d

M

A

J

1

4

Case 1:08-cv-01971-WSD (17)

22 ~.'10

~

141

•~:~

(P

VE

ti

ct6 1

1

,5.

I

76

-

242 k

17C

t,

'

c

C133

v 222

'2 )

1

ri

-

C

132 =, ~

240

~

(2 3 )

(4)

220

(22)

N 243 -

117

~

Page 27 of 29

s~

~ (24) 237 ~ -10 .4 221 c53

4,3 .

N

Filed 07/11/2008

01) 4'

(25)

241

78' 177 (37~ to

1

~

15

.,~',)

7

1

(26) r

Document 9-4 CO

23 8

r ( 3)

t9 ~

gr J

u'

r1

96 ~

1~ ~

196

69 ~

244

r 118

( 3s )

,

150'

4r

(28)

CIO

G~

s 119

5) 98 ~,

tt n '

24J ~

`

97 -

^1

248

45 ,

247 a

~

( a~

,127

~

124

w 21 7

f331

7 AC

1-

N

(32)

~6

(34) 25C)l 35, 4 e 26 ,0o'

En

T ~ 1210 1 LO 1 22 123

99 ~

~ 2 18 249 g O 0

3a,

2 46

120

i~

~(3\P, G

(2) -, '

219

~

141)

-

9

239

SEE

80

7

~

752466'

71

E

c9

70 - 69

r

EAGLE

DRIVE

100 ' ,_

~-10~ ~

10 9 J

LV

E

(i)

4

(z)

loc .

go'

(3)

5

~N

(36)

~

..r i IA rn O~ (f~

cfi

215^r:~

7> is~

~ssr

ss

( ) 7

} ~ 73

~ 0

4.

4

g `' 'y

C? (37) 216

~

C? ,V Z= ~

.

(8 7)

(96 )

77 6 76

r ~.

,c a s, 3, ~~ 75 4 78 s

8C 42u, t

c3e~ t3iy

62

TINA COU

(84)

7

..~ ~ 79 0 187 z ~ # ~ m 7a 1 88 V, ~ , so 1 30 C 533 10 189 \

°

a : ° ~~ti ~ ~9

J

RT 80 2, (83 )

81 ~ c

~ t82 r

i 1'

' C m t BU 82

C

147 '

~~ z

90

(32 r

a; 186

(30)

1 114 1 1 5 116 ~

A

100,

214'--(~ K ti

'Z

__

9

C

110

~ [5F

l

m

r-

2

2 sa AC ~ ~ U4

~

19 1 12

~

sq .

~

oo

190,

Qj" 1 92

9

7

1

~~~ r

83

84 65

ceo ;

0', ( , 28 71,

0, 70'

)11 7 \i(12 9 r,3o, n3v 11=1

( 67 7

~

i1A

.. I~

Case 1:08-cv-01971-WSD

Document 9-4

Filed 07/11/2008

Page 28 of 29

V

Print this page for y.;Neco rd s

~, Secure with 1 9 8 Sit Encryption

Es in c 5c

For additional assistance, contact ( 404 ) 298-4000 . P roperty Identification 2008 ParcelID 2907302004 2007 parcellD 18 OT3 02 X04 ZOO-ft Number 0974722 2007 Pin N umber 097472 2 Property Address 621 5HEPPARD RD UNI Property Type Real Estate Tax District 04 Unincorporated

Own er

Information

Jan Ist Owner Co -Owner CAirrent Owner Co-Owner

STEGEMAN JAMES B MCELWANEY IAIVEf M STEGEMAN JAMES B MCEtwAtrE r 3wXE r H

Owner Address

000821 SHEPPARD RD STON E MOUNTA IN , GA 3 0083-3642 No Special Billing Address in60 rmation available " ' CHANGE MAILING ADDRESS7

P ro p erty Value/ Billing Assessment Tamable Yew 2007 Land Value Building Value Misc . Improvement Value Total Value 40% Taxable Assessment

$46,200 $10,600 $0 $56,800 $22,720

Information as of 03/04/2008

H omestead Exemption PECIAL Exemption Type H3DF - S EXEMPTION FREEZE $0 .00

Tax Exempt Amount

Special Billing Address

Deed Type Deed Boolc,[Page Plat Book/Page

D ee d Informatio n Warranty Deed 08Z93/ 0641

Value Exemption Iu nouet

$0 . 00

0000/ OUDO

Property Characteristics/ Sa l es Info rmation NBHD Code 0690-00 Acreage

Other Exempt i on Informat i on Exemption type

LOT

Zoning Type Sing le Family Residential District R10Q Zoning District R100 Year B uilt 1940 Condition Code P -Poor Quality Grade 015 - AVERAGE A ir Conditioning N

Fireplaces 0 Stales i square Footage 1, 143 (Heated Space) 0 Sq. FtBasement Area : % Hsntt Finished 0% Bedrooms 2 Bathrooms Full Baths : 1 Half Baths: 0 Last Sold date 08/16/1994 Last Sold Price $55.OEIO . OQ Click here to vi ew prop " map

Tax Information Su mmary Taxable Year 2007 M11111age Rate 0 .0393 $125.98 OeKalb County Tax es Billed $ 125 .98 DeK,alb County Taxes Paid DelCalb County Taxes Due $0.00 Total Taxes Billed

View Details

$125 .98

Total Taxes paid ;125 . 98 Total Taxes Due $OAO A penalty of 196 per month will be assessed on any unpaid balance for the city of Atlanta Taxes after 911512007

Escrow Agency Yes Last Payment ner~ Date 11/12/2007 Last Payment Amount $62 .99 Prior Years Tax s :please note the iMortnatbn below may be 2 days old . DeKalb

County Tax TAxY r Too(-owed 7otal Paid Total due

A41d16oFUld Prope1iy Data Property Tax M aili ng Ad dress

2007

$125 .98 j125 .98

2006

$125 .84 $125 .84

$0 .00

2005

$292 .22 $292 .22

$0 .00

#48.0

2004

DeKaib County Tax Commissioner Collections Division PO Box 100004

$0.00

$0 .00

$0 .00

$225 .00 $225 .00

$0A0

7A03 2O02

#48 .00

X0 .00

$0 .00

Case 1:08-cv-01971-WSD

Document 9-4

Filed 07/11/2008

Page 29 of 29

C .J Decatur, GA 3003 1- 004

Delinquent Taxes/ Tax Sale information

For additional Information on the data above, contact the Property Appra isal Department at 4 Q 4-37 1-247 1

Tax Sale Fife N umber F9Fa-G'ED Book/Page Levy Daft Sale Date Delinquent Amou nt Die

For add ition al assista nce, con tact ( 404 ) 298-4000 . =k

May Now I