IN THE SUPREME COURT

STATE OF GEORGIA

SUPREME COURT DOCKET NUMBER S07C1858

COURT OF APPEALS CASE NUMBER A07A1474

CHRISTOPHER MOSES ]
Petitioner, ] Supreme Court Case No.
v. ]
TRATON CORP., et al. ] S07C1858
Respondent. ]

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
sam.han.pc@gmail.com

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, ] Supreme Court Case No. S07C1858
v. ] Court of Appeals Case No. A07A1474
TRATON CORP., et al. ]
Respondent. ]

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
104 Ga. 714 (1898).
2
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
Respondent's Response to Petitioner's Motion for
Reconsideration of Denial of Certiorari ("Respondent's
Response"), p. 11.
4
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")).
5
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.

Request for Admission No. 138")).

6
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 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 seemed reasonable to assume that the developer's
large equipment trailers ran over your curb and placed a rut
in your grass")).
7
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")).
8
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")).
9
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
213 Ga. 862 (1958).
11
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: sam.han.pc@gmail.com

Page 6
 IN THE SUPREME COURT
STATE OF GEORGIA

SUPREME COURT DOCKET NUMBER S07C1858

COURT OF APPEALS CASE NUMBER A07A1474

CHRISTOPHER MOSES ]
Petitioner, ] Supreme Court Case No.
v. ]
TRATON CORP., et al. ] S07C1858
Respondent. ]

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: sam.han.pc@gmail.com