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CHRISTOPHER MOSES ]
Plaintiff-Appellant, ] Supreme Court Case Number
v. ] S07A0780
TRATON CORP., et al. ]
Defendants-Appellees. ]
Sam S. Han
Georgia Bar Number 322284
SAM HAN, P.C.
330 Bloombridge Way
Marietta, GA 30066
Phone: (404) 514-8237
email: sam.han.pc@gmail.com
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: pekordewoskin@yahoo.com
Counsel for Plaintiff-Appellant
APPELLANT'S APPEAL BRIEF
to Appellant.
I. JURISDICTION
Notice of Appeal was timely filed with the Superior Court of Cobb
1
Constitution of the State of Georgia, Sec. VI, Para. III, Cl.
(5).
2
OCGA § 9-11-56(h).
3
Record ("R."), p. 1118-1127 (Order, Civil Action File No. 05-1-
8395-35).
1
III. STATEMENT OF FACTS
4
The following facts are supported by evidence of record.
The lower court was required to view these facts in the light
4
Transcript of Motions Hearing ("T."), p. 44, lines 1-5 ("44:1-
5").
5
R. 1407; T. 4:1-4; T. 14:6-7. R. 303 (Letter from Traton's
Attorney, December 8, 2005, Attached to Plaintiff's Motion for
Summary Judgment as Exh. A); R. 308, 322 (Admitted by Defendant;
see, Complaint and Answer, ¶ 24, Attached to Plaintiff's Motion
for Summary Judgment as Exhs. B and C).
6
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).
7
R. 1409; T. 4:6-9; T. 14:9-12. R. 368, 399 (Admitted by
Defendant, Plaintiff's Second Request for Admissions to
Defendant Traton Corp. and Traton Corp.'s Amended Responses and
Objections to Plaintiff's Second Request for Admissions
(collectively "Traton's Second Admissions"), ¶ 17, Attached to
Plaintiff's Motion for Summary Judgment as Exhs. F and G).
8
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).
9
T. 61:8-9 (The right of way extends thirteen (13) feet beyond
2
10
his recorded lot, and contiguous with Appellant's recorded lot.
In that email, Mr. Foster expressly stated that Traton would not
Traton damaged Appellant's yard, and then cited that very damage
enter onto the damaged portion of the yard31 and do further damage
27
R. 1423; T. 7:9-10; T. 15:25-16:1. R. 337, 351 (Admitted by
Defendant, Traton's First Admissions, ¶ 34). See, also, R. 6-15
(Complaint).
28
R. 1424; T. 7:10-12; T. 16:2-3. R. 337, 351-352 (Admitted by
Defendant, Traton's First Admissions, ¶ 35).
29
R. 1424; T. 7:17-19. R. 337, 352 (Admitted by Defendant,
Traton's First Admissions, ¶ 36).
30
R. 1425-1426; T. 11:19-12:5; T. 15:3-8. See, R. 179-180
(Defendants' Request for Entry Onto Land to Inspect, Attached to
Plaintiff's Motion for Summary Judgment as Exh. K).
31
R. 1425-1426; T. 11:19-12:5; T. 15:3-8. R. 376-377, 410-411
(Admitted by Defendant, Traton's Second Admissions, ¶¶ 133-138).
See, also, R. 490 (Letter from Traton, January 13, 2006,
Attached to Plaintiff's Motion for Summary Judgment as Exh. L
("Traton directed that an individual stand in the grass
allegedly damaged to photograph the degree of 'damage' . . .")).
32
R. 1425-1426; T. 11:19-12:5; T. 18:4-19:17. See, R. 493-510
(Pictures from Traton, Attached to Plaintiff's Motion for
Summary Judgment as Exh. M (showing Traton agents mowing
Plaintiff's lawn)). See, also, R. 512-513 (Email Message from
Traton to its Attorney, October 19, 2005, Attached to
Plaintiff's Motion for Summary Judgment as Exh. N ("The first
six pictures are before pictures taken 10/14/05, the last 9 were
taken this morning." A comparison of the before and after
pictures shows that Traton's agent tampered with the evidence
5
33
use of their lawn equipment on the damaged yard. Those
34
photographs were sent to Appellant by Traton's attorneys.
requests:
the right to exclude others from entering onto the land, Traton
matter.
reason that it did not want "word to get around that all you have
estimated $2,950,000.00.43
41
R. 1459; R. 657 (February 13, 2006, Email from Plaintiff to
Traton).
42
R. 1460; R. 663-665 (February 27, 2006, Email from Traton to
Plaintiff, Attached to Plaintiff's Motion for Summary Judgment
as Exh. T).
43
R. 1461; T. 21:12-21. R. 668-669 (Defendants' Response to
Plaintiff's Motion to Add Defendants and Amend Complaint, pp. 2-
3 (Traton's attorneys certified to this lower court that
compliance with discovery was "estimated to cost
$2,950,000.00"), Attached to Plaintiff's Motion for Summary
Judgment as Exh. U).
44
R. 1425-1426; T. 11:19-12:5; T. 15:3-8. R. 376-377, 410-411
(Admitted by Defendant, Traton's Second Admissions, ¶¶ 133-138).
See, also, R. 490 (Letter from Traton, January 13, 2006,
Attached to Plaintiff's Motion for Summary Judgment as Exh. L
("Traton directed that an individual stand in the grass
allegedly damaged to photograph the degree of 'damage' . . .")).
45
R. 1462; T. 21:22-25. R. 340-341, 357-358 (Admitted by
Defendant, Traton's First Admissions, ¶¶ 69 and 74).
8
46
damaging the property (i.e., running over a portion of
yard).
Appellant's property:47
Appellant's property.51
On Sunday, September 10, 2006, just two (2) days after the
46
R. 1463; T. 21:25-22:2. R. 341, 359 (Admitted by Defendant,
Traton's First Admissions, ¶ 80).
47
R. 1464; T. 22:2-7. See, R. 466-467, 476-477 (Foster's First
Admissions, ¶¶ 30-37).
48
R. 1464; T. 22:2-7. R. 341, 360 (Admitted by Defendant,
Traton's First Admissions, ¶ 83).
49
R. 1464; T. 22:2-7. R. 342, 360 (Admitted by Defendant,
Traton's First Admissions, ¶ 85).
50
R. 1464; T. 22:2-7. R. 342, 361 (Admitted by Defendant,
Traton's First Admissions, ¶ 87).
51
R. 1465; T. 22:10-13. R. 342, 362 (Admitted by Defendant,
Traton's First Admissions, ¶ 96).
52
R. 1107 (Affidavit of Christopher Moses in Support of
Plaintiff's Memorandum in Opposition to Defendants' Cross Motion
9
requested that Appellant watch Mr. Chao's pets and take care of
53
Mr. Chao's home during his absence. On the afternoon of
Mr. Chao's mailbox.54 Appellant took the bag off of Mr. Chao's
situated, was Officer Calhoun's property, and any entry onto that
property.
its errant view that Appellant neither had legal nor factual
V. ARGUMENT
12
undisputed facts, as admitted by Defendants-Appellees,
trespass claim.
action.
62
See, e.g., OCGA §§ 51-9-2 and 51-9-3.
63
Emphasis supplied.
13
64
manner." As such, the statutory language is clear that bare
for standing.
quote from Pope shows that Pope applies to ownership, and not
64
Emphasis supplied.
65
Pope v. Pulte Home Corporation, 246 Ga. App. 120 (2000). It is
worthwhile to note that Defendants-Appellees also mis-quote
Pope. T. 31:22-32:10.
66
Pope, 246 Ga. App. 120 (2000), internal quotations omitted.
14
possession, in determining standing.
67
T. 33:21-24.
68
OCGA § 44-5-167.
69
R. 1119 (Order, ¶ 5).
70
R. 1119 (Order, ¶ 5).
71
R. 1119 (Order, ¶ 6).
15
72
recorded Lot. In short, the damaged property is contiguous to
was also shown in the deed, the lower court nevertheless found
that Appellant did not have possession of the damaged land. This
72
R. 1122-1125 (Order, ¶¶ 20, 23, and 27).
73
OCGA § 51-9-10.
74
R. 1124 (Order, ¶ 23, quoting from Pope, 246 Ga. App. 120
(2000)).
16
75
property." However, as noted above, the "right to dispose of
the property" and the "right to exclude others from using the
75
R. 1123 (Order, ¶ 20, quoting from Pope, 246 Ga. App. 120
(2000)).
76
T. 45:22-46:14.
77
104 Ga. App. 778 (1961).
17
[the Appellant's] property be depreciated in value by his being
injury sustained."78
bring an action against the county, who did own the right-of-way.
78
Clayton County v. Billups Eastern Petroleum Co., 104 Ga. App.
778 (1961).
79
T. 49:13-16; T. 50:3-8. R. 1054 (Plaintiff's Opposition to
Defendants' Cross-Motion for Summary Judgment, p. 10); R. 70
(First Moses Affidavit, ¶¶ 43-45).
80
T. 41:11-21 ("[The right-of-way] is the area that you maintain
because you want to make sure it looks nice, because it is your
18
(b) The lower court disregarded the standard for summary
judgment and engaged in impermissible fact-finding
such, the lower court wholly disregarded the standard for summary
judgment.
the land) in the light most favorable to Appellant, and make all
90
T. 58:11-22. R. 368-370, 400-402 (Traton's Second Admissions,
¶¶ 25 and 27-55).
91
Lowry v. Norris Lake Shores Development Corp., 231 Ga. 549
(1974) ("Covenants will be enforced according to the intent of
the parties").
92
Worth v. State, 179 Ga. App. 207 (1986) (Intent is a question
of fact).
93
R. 275-282 (Plaintiff's Motion for Summary Judgment and
Memorandum in Support of Plaintiff's Motion (herafter
"Plaintiff's Motion for Summary Judgment"), pp. 2-9).
94
R. 1048-1054 (Plaintiff's Opposition to Defendants' Cross-
Motion for Summary Judgment, pp. 4-10).
95
T. 58:11-22; T. 69:8-13.
96
R. 1130-1152 (Plaintiff's Motion for Reconsideration and
Memorandum Supporting Plaintiff's Motion).
97
T. 51:25-52:2; T. 69:8-13.
98
R. 1124-1125 (Order, ¶¶ 24, 28, and 29).
21
court could not have viewed the facts in the light most favorable
the legal standard for summary judgment, and failing to view all
99
R. 1118-1119 (Order, ¶¶ 1-4). It is worthwhile to note that
there are over fifty (50) facts recited in Plaintiff's Motion
for Summary Judgment, and a plethora of other facts recited in
Plaintiff's Opposition to Defendants' Cross-Motion for Summary
Judgment, much of which are based on Defendants' own admissions.
The absence of almost all of these facts from the lower court's
Order can only be explained by the fact that these facts, which
support Plaintiff's position, were not viewed in the light most
favorable to Plaintiff. This constitutes reversible error.
100
Of these four facts, at least one of them is clearly not
viewed in the light most favorable to Plaintiff. Specifically,
the lower court finds that Defendants "allow[ed], or otherwise,
permit[ed] representatives of the Lakefield Manor Homeowners
Association to allegedly maintain a certain portion of
Plaintiff's property by cutting the grass on one occasion."
See, R. 1119 (Order, ¶ 4). This is incongruous with Plaintiff's
allegation that Defendants damaged Plaintiff's property by
encroaching onto Plaintiff's property with lawn equipment. See,
R. 30 (First Amended Complaint, ¶¶ 102-103).
101
None of the facts recited in the Order address possession.
Rather, the facts recited by the lower court only address
ownership.
22
102
properly been left to a jury. Even though the lower court was
absence of facts.
102
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").
23
104
maintain an action for trespass.
with the real property"; (b) bound all of the property within the
rights-of-way.
103
R. 1124 (Order, ¶ 23), emphasis supplied.
104
See, OCGA §§ 51-9-2 and 51-9-3.
105
T. 48:7-18. R. 423-424 (Covenant, pp. 1-2).
106
R. 441 (Covenant, Article VIII, p. 19).
24
107
possession in any manner."
others from using his neighbor's Lot, since Appellant is not the
that neighbor, even though the neighbor was the owner.108 The
property."110
enforceable by Appellant.
107
OCGA § 51-9-3, emphasis supplied.
108
T. 49:3-9. This very example was provided to the lower court,
and was ignored by the lower court in its erroneous holding that
ownership, rather than possession, was required for standing.
109
T. 48:7-18. R. 423-424 (Covenant, pp. 1-2).
110
R. 423-424 (Covenant, pp. 1-2).
25
(d) The lower court erred by holding that newly-submitted
evidence did not identify any material issue of fact, when
the newly-submitted evidence demonstrated actual possession
of property by Appellant
considered trespass.
26
VI. CONCLUSION
property by Appellant.
28 February 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: sam.han.pc@gmail.com
27
CASE NUMBER S07A0780
CHRISTOPHER MOSES ]
Plaintiff-Appellant, ] Supreme Court Case Number
v. ] S07A0780
TRATON CORP., et al. ]
Defendants-Appellees. ]
CITATION OF AUTHORITIES
CONSTITUTIONAL PROVISIONS
Constitution of the State of Georgia, Sec. VI, Para. III, Cl.
(5). .........................................................1
STATUTORY PROVISIONS
OCGA § 5-6-34(a)(1). .........................................1
OCGA § 44-5-165. ............................................21
OCGA § 44-5-167. ............................................16
OCGA § 51-9-10. .....................................13, 18, 19
OCGA § 51-9-2. ..........................................15, 26
OCGA § 51-9-3. ......................................15, 26, 27
OCGA § 9-11-56(h). ...........................................1
CASES
Clayton County v. Billups Eastern Petroleum Co., 104 Ga. App.
778 (1961). .................................................19
Clifton v. Murray, 223 Ga. App. 756, 758 (1996). ............20
Friendship Baptist Church, Inc. v. West, 265 Ga. 745, 746 (1995)
............................................................25
Housing Authority of Atlanta v. Famble, 170 Ga. App. 509, 520
(1984) ......................................................25
Lowry v. Norris Lake Shores Development Corp., 231 Ga. 549
(1974). .....................................................23
Pope v. Pulte Home Corporation, 246 Ga. App. 120 (2000) .......
....................................................15, 16, 18
Seignious v. MARTA, 252 Ga. 69 (1984) .......................22
Worth v. State, 179 Ga. App. 207 (1986) .....................23
CASE NUMBER S07A0780
CHRISTOPHER MOSES ]
Plaintiff-Appellant, ] Supreme Court Case Number
v. ] S07A0780
TRATON CORP., et al. ]
Defendants-Appellees. ]
Court of Georgia one (1) original and seven (7) copies, and
follows:
28 February 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: sam.han.pc@gmail.com