MOSES Appeal Brief

8/14/2019 MOSES Appeal Brief

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CASE NUMBER S07A0780

IN THE SUPREME COURT OF GEORGIA

CHRISTOPHER MOSES ]Plaintiff-Appellant, ] Supreme Court Case Number

v. ] S07A0780TRATON CORP., et al. ]

Defendants-Appellees. ]

APPELLANT'S APPEAL BRIEF

Sam S. HanGeorgia Bar Number 322284

SAM HAN, P.C.330 Bloombridge WayMarietta, GA 30066

Phone: (404) 514-8237email: [email protected]

Counsel for Plaintiff-Appellant

Charles B. PekorGeorgia Bar Number 570601Daniel E. DeWoskinGeorgia Bar Number 220327

PEKOR & DeWOSKIN, LLC270 Peachtree Street, NWSuite 1060Atlanta, GA 30303

Phone: (404) 221-8887email: [email protected]

Counsel for Plaintiff-Appellant


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APPELLANT'S APPEAL BRIEF

COMES NOW Christopher Moses, Appellant, by and through his

undersigned attorney, and hereby appeals the lower court's GRANT

of summary judgment to Appellees and DENIAL of summary judgment

to Appellant.

I. JURISDICTION

The Supreme Court of Georgia has jurisdiction over this

matter because the requested relief includes an injunction, which

is considered an extraordinary remedy.1

This is a direct appeal

from a grant of summary judgment,2and is properly before this

Court in accordance with OCGA 5-6-34(a)(1).

II. JUDGMENT APPEALED, DATE OF ENTRY, AND PROCEDURAL HISTORY

Being appealed is the Order granting Defendants' Cross-

Motion for Summary Judgment and denying Plaintiff's Motion for

Summary Judgment.3

The Order is dated October 9, 2006, served on

counsel on October 10, 2006, and post-marked October 16, 2006. A

Notice of Appeal was timely filed with the Superior Court of Cobb

County on November 1, 2006, in accordance with the statutory

procedure set forth in OCGA 5-6-34(a)(1). The required fee was

timely paid, in accordance with Rule 5 of the Rules of the

Supreme Court of Georgia, through the Court's electronic payment

system on February 12, 2007.

1Constitution of the State of Georgia, Sec. VI, Para. III, Cl.(5).

2OCGA 9-11-56(h).

3Record ("R."), p. 1118-1127 (Order, Civil Action File No. 05-1-8395-35).


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III. STATEMENT OF FACTS

The following facts are supported by evidence of record.4

The lower court was required to view these facts in the light

most favorable to Plaintiff-Appellant, who is the non-moving

party on the Cross-Motion for Summary Judgment. Much of these

facts, if not all, were omitted or ignored by the lower court.

On May 27, 2004, Appellant purchased his home from one of

the Traton entities (hereinafter collectively referred to as

"Traton").5

Appellant's home is situated within the Lakefield

Manor subdivision.6

Traton is the developer for the Lakefield

Manor subdivision.7

Since the purchase of his home, Appellant

has always maintained immaculate care of the lawn that is

attached to his home,8including the right-of-way that is part of

his yard.9

The right-of-way is visibly indistinguishable from

4Transcript 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'sAttorney, December 8, 2005, Attached to Plaintiff's Motion forSummary Judgment as Exh.A); R. 308, 322 (Admitted by Defendant;see, Complaint and Answer, 24, Attached to Plaintiff's Motionfor Summary Judgment as Exhs. B and C).

6R. 1408; T. 4:1-4; T. 14:8-9. R. 308, 323 (Admitted byDefendant; see, Complaint and Answer, 28). See, also, R. 335,346 (Plaintiff's First Request for Admissions and Defendant'sResponse to First Request for Admissions (collectively "Traton'sFirst Admissions"), 2, Attached to Plaintiff's Motion forSummary Judgment as Exhs. D and E).

7R. 1409; T. 4:6-9; T. 14:9-12. R. 368, 399 (Admitted byDefendant, Plaintiff's Second Request for Admissions toDefendant Traton Corp. and Traton Corp.'s Amended Responses andObjections to Plaintiff's Second Request for Admissions(collectively "Traton's Second Admissions"), 17, Attached toPlaintiff's Motion for Summary Judgment as Exhs. F and G).

8T. 19:2-4; T. 58:11-22. R. 68 (Affidavit of Christopher Mosesin Support of Plaintiff's Opposition to Defendants' Motion toDismiss ("First Moses Affidavit"), 19-20).

9T. 61:8-9 (The right of way extends thirteen (13) feet beyond


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his recorded lot, and contiguous with Appellant's recorded lot.10

Subsequent to Appellant's purchase of his home, contractors

delivered additional materials to construction sites within the

Lakefield Manor subdivision.11

Given the ongoing construction

within the Lakefield Manor subdivision, Traton also functions as

the Home Owners' Association (HOA).12

During that construction process, construction trucks

repeatedly drove over Appellant's yard, thereby damaging the

yard.13

Appellant complained to Traton about damage to his yard,14

and requested Traton to discontinue driving over Appellant's

property.15

In fact, Appellant called Traton on more than one

occasion,16but Traton did not return Appellant's phone calls.

17

Since Traton did not return Appellant's phone calls,18

Appellant filed a grievance against Traton, using Traton's

the curb into Appellant's yard).10T.58:11-12; T. 65:21. R. 1123-1125 (Order, 20 ("right-of-

way adjacent to his property"), 23, and 28 ("right-of-wayadjoining Plaintiff's property")).11R. 1410; T. 4:10-13; T. 14:12-14. R. 107, 119 (Admitted byDefendant, Traton's First Admissions, 5).

12R. 1411; T. 4:6-9; T. 14:14-21. R. 371, 403 (Traton's SecondAdmissions, 60). See, also,R. 423-461 (Declaration ofCovenants, Conditions and Restrictions for Lakefield ManorSubdivision ("Covenant") (stating that the Declarant is PostonProperties, Inc., which is an affiliate of Traton Corp),Attached to Plaintiff's Motion for Summary Judgment as Exh. H).

13R. 1412; T. 4:13-17; T. 14:21-23. R. 373-374, 407(Admitted byDefendant, Traton's Second Admissions, 95-103).

14R. 1413; R. 368, 400 (Admitted by Defendant, Traton's Second

Admissions, 24).15R. 1413; T. 15:1-4. R. 336, 348 (Admitted by Defendant,Traton's First Admissions, 15).

16R. 1414; T. 4:22-25; T. 5:19-21; T. 15:5-7. R. 336, 349(Admitted by Defendant, Traton's First Admissions, 18).

17R. 1414; T. 5:20-21; T. 15:5-7. R. 336, 349 (Admitted byDefendant, Traton's First Admissions, 19).

18R. 1415; T. 15:8-10. R. 336, 349 (Admitted by Defendant,


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Internet form.19

On behalf of Traton, Mr. Rick Foster replied by

email20and copied one or more officers of Traton in his reply.

21

In that email, Mr. Foster expressly stated that Traton would not

fix the yard.22

Adding insult to injury, in addition to refusing

to repair the damage, Traton cited Appellant's damaged yard as

being in violation of the subdivision Covenant.23

In other words,

Traton damaged Appellant's yard, and then cited that very damage

as a violation of the Covenant.

Given Traton's unreasonable posture, Appellant filed a

complaint with the Better Business Bureau ("BBB"),24in which

Appellant expressly noted the destruction of his yard.25

Rather

than calling Appellant to discuss these issues, Traton responded

to Appellant through its attorneys,26and demanded that Appellant

stop contacting Traton.

Traton's First Admissions, 19).19R. 1415; T. 15:8-10. R. 465, 473 (Admitted by Defendant,

Plaintiff's First Request for Admissions to Defendant RickFoster and Defendant Rick Foster's Responses to Plaintiff'sFirst Request for Admissions (collectively, "Foster's FirstAdmissions"), 15, Attached to Plaintiff's Motion for SummaryJudgment as Exhs. I and J).

20R. 1416; T. 15:11-13. R. 466, 474 (Admitted by Defendant,Foster's First Admissions, 20). R. 67 (First Moses Affidavit, 11-15).

21R. 1416; T. 15:11-13. R. 466, 474 (Admitted by Defendant,Foster's First Admissions, 21).

22R. 1417; T. 15:14-15. R. 466, 474 (Admitted by Defendant,Foster's First Admissions, 22).

23R. 1418-1420; T. 6:11-17; T. 11:16-18; T. 15:16-21. R. 368-370, 400-402 (Admitted by Defendant, Traton's Second Admissions, 25 and 27-55). R. 66-67 (First Moses Affidavit, 4-8).


25R. 1421; T. 5:23-25. R. 375, 409 (Admitted by Defendant,Traton's Second Admissions, 116-118).



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Since Traton neither promised to fix the damage that it had

caused, nor promised to refrain from further entering onto

Appellant's property, Appellant had no other option but to seek

legal recourse. As such, Appellant filed this lawsuit in Cobb

County Superior Court on October 13, 2005.27

As a courtesy, a

copy of the Complaint was emailed to Traton's attorney on October

13, 2005,28and Traton was aware of this lawsuit by October 14,

2005.29

Despite being aware of this lawsuit, and despite knowing

that the subject-matter of this lawsuit included damage to

Appellant's yard,30Traton nevertheless directed its agents to

enter onto the damaged portion of the yard31and do further damage

to the yard.32

Traton photographed the subsequent entry and the

27R. 1423; T. 7:9-10; T. 15:25-16:1. R. 337, 351 (Admitted byDefendant, Traton's First Admissions, 34). See, also, R. 6-15(Complaint).

28R. 1424; T. 7:10-12; T. 16:2-3. R. 337, 351-352 (Admitted by

Defendant, Traton's First Admissions, 35).29R. 1424; T. 7:17-19. R. 337, 352 (Admitted by Defendant,Traton's First Admissions, 36).

30R. 1425-1426; T. 11:19-12:5; T. 15:3-8. See, R. 179-180(Defendants' Request for Entry Onto Land to Inspect, Attached toPlaintiff's Motion for Summary Judgment as Exh. K).

31R. 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 grassallegedly damaged to photograph the degree of 'damage' . . .")).

32R. 1425-1426; T. 11:19-12:5; T. 18:4-19:17. See, R. 493-510(Pictures from Traton, Attached to Plaintiff's Motion forSummary Judgment as Exh.M(showing Traton agents mowingPlaintiff's lawn)). See, also, R. 512-513 (Email Message fromTraton to its Attorney, October 19, 2005, Attached toPlaintiff's Motion for Summary Judgment as Exh.N ("The firstsix pictures are before pictures taken 10/14/05, the last 9 weretaken this morning." A comparison of the before and afterpictures shows that Traton's agent tampered with the evidence


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use of their lawn equipment on the damaged yard.33

Those

photographs were sent to Appellant by Traton's attorneys.34

Despite Traton's egregious behavior and lousy customer

service, Appellant nevertheless attempted to reasonably dispose

of this matter. Specifically, on October 14, 2005, Appellant

offered to dismiss this case if Traton would meet the following

requests:

(1) Issue an apology for failing to respond to Appellant'sphone calls and email messages;

(2) Completely repair the damage done to the yard;(3) To the best of its ability, instruct Traton's

subcontractors to refrain from driving over Appellant's

yard; and(4) Rescind its accusation that the yard was not being

properly maintained.35

Traton rejected Appellant's offer. Given Traton's refusal

to reasonably resolve this matter, Appellant initiated discovery.

During the course of discovery, Traton served on Appellant a

Request for Entry onto Land for Inspection.36

In other words,

recognizing that Appellant was in possession of the land, and had

the right to exclude others from entering onto the land, Traton

officially requested permission from Appellant to enter onto

Appellant's property. Appellant denied Traton's request.

and manipulated the very subject-matter of this litigation)).33R. 1427-1445; T. 12:6-7; T. 17:24-18:1; T. 18:4-19:17. R. 376-377, 410-411 (Admitted by Defendant, Traton's Second Admissions, 133-138).

34R. 1427-1445; T. 12:7-9; T. 18:1-19:17. R. 377, 411 (Admittedby Defendant, Traton's Second Admissions, 143).

35R. 1446-1449; See, R. 515-517 (Email Message to Traton, October14, 2005, Attached to Plaintiff's Motion for Summary Judgment asExh. O).

36See, R. 179-180 (Defendants' Request for Entry Onto Land toInspect, Attached to Plaintiff's Motion for Summary Judgment asExh. K).


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In a second attempt to dispose of this matter, Appellant

offered to dismiss the lawsuit if Traton was "agreeable to making

reasonable efforts to reach a mutually-acceptable resolution."37

Specifically, Appellant, through counsel, stated: "[u]pon

receiving confirmation that Traton is willing to dialogue with

[Appellant], [Appellant] has agreed to dismiss the action without

prejudice."38

No other demands were made in conjunction with

Appellant's request for a reasonable dialogue. In other words,

Appellant agreed to dismiss the action if Defendants-Appellees

would simply meet with Appellant to rationally discuss this

matter.

Despite Appellant's generous offer, Traton refused to

rationally discuss this matter with Appellant, giving as its

reason that it did not want "word to get around that all you have

to do is file a lawsuit to get the head man at Traton to meet

with you . . . ."39

Despite the ongoing discovery, in yet another effort to

resolve this without further escalating costs, Appellant

presented his third settlement offer to Traton on February 13,

2006.40

In that offer, Appellant requested the following:

(1) Face-to-face meeting with Traton officers (Bill Poston,

37R. 1450; R. 378, 412 (Admitted by Defendant, Traton's SecondAdmissions, 152).

38R. 1451; R. 378, 413 (Admitted by Defendant, Traton's SecondAdmissions, 153).

39R. 1452; R. 519 (Email Exchange between Traton Officers,December 8, 2005, Attached to Plaintiff's Motion for SummaryJudgment as Exh. P).

40R. 1456-1458; R. 657-661 (February 13, 2006, Email fromPlaintiff to Traton, Attached to Plaintiff's Motion for SummaryJudgment as Exh. S).


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Dale Bercher, Millburn Poston, etc.);(2) Admission of wrong by Traton, and issue written apology

to Appellant;(3) Repair of damaged yard to Appellant's satisfaction;(4) Promise to refrain from future damage;(5) Promise to fix future damage that can be attributed to

Traton; and(6) Payment of out-of-pocket litigation expenses (~$500)

(but not any costs for attorney time).41

Appellant's third offer was rejected.42

Thus, rather than

rationally dialoguing with Appellant, Traton deliberately chose

to continue with discovery, which Traton certified would cost an

estimated $2,950,000.00.43

Despite Traton's ability to stop the continued ingress onto

Appellant's property by Traton's agents, Traton continued to

approve of the unauthorized entries, and, in fact, expressly

directed its agents to enter onto Appellant's yard.44

Traton

never disciplined any of its agents for entering onto Appellant's

property.45

Traton never disciplined any of its agents for

41R. 1459; R. 657 (February 13, 2006, Email from Plaintiff toTraton).

42R. 1460; R. 663-665 (February 27, 2006, Email from Traton toPlaintiff, Attached to Plaintiff's Motion for Summary Judgmentas Exh. T).

43R. 1461; T. 21:12-21. R. 668-669 (Defendants' Response toPlaintiff's Motion to Add Defendants and Amend Complaint, pp. 2-3 (Traton's attorneys certified to this lower court thatcompliance with discovery was "estimated to cost$2,950,000.00"), Attached to Plaintiff's Motion for SummaryJudgment as Exh. U).

44R. 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 grassallegedly damaged to photograph the degree of 'damage' . . .")).

45R. 1462; T. 21:22-25. R. 340-341, 357-358 (Admitted byDefendant, Traton's First Admissions, 69 and 74).


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damaging the property46(i.e., running over a portion of

Appellant's property with a lawn mower and further damaging the

yard).

Although Traton instructed its agents to enter onto

Appellant's property:47

(1) Traton does not assume responsibility for the actionsof its employees.

48

(2) Traton does not assume responsibility for the actionsof its agents.

49

(3) Traton does not assume responsibility for the actionsof its contractors.

50

In fact, it appears that Traton refuses to accept

responsibility for anything.

Notwithstanding the numerous unauthorized entries onto

Appellant's property by Traton's agents, Traton has never

instructed its contractors to refrain from driving over

Appellant's property.51

On Sunday, September 10, 2006, just two (2) days after the

hearing for both Appellant's and Appellees' motions for summary

judgment, Appellant was house-sitting for Mr. Ryan Chao, one of

Appellant's neighbors, who was away on vacation.52

Mr. Chao had

46R. 1463; T. 21:25-22:2. R. 341, 359 (Admitted by Defendant,Traton's First Admissions, 80).

47R. 1464; T. 22:2-7. See, R. 466-467, 476-477 (Foster's FirstAdmissions, 30-37).

48R. 1464; T. 22:2-7. R. 341, 360 (Admitted by Defendant,Traton's First Admissions, 83).




52R. 1107 (Affidavit of Christopher Moses in Support ofPlaintiff's Memorandum in Opposition to Defendants' Cross Motion


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requested that Appellant watch Mr. Chao's pets and take care of

Mr. Chao's home during his absence.53

On the afternoon of

September 10, 2006, Appellant noticed a plastic bag attached to

Mr. Chao's mailbox.54

Appellant took the bag off of Mr. Chao's

mailbox.55

Inside the bag, Appellant found a copy of Defendants'

Brief in Opposition to Plaintiff's Motion for Summary Judgment

and in Support of Defendants' Cross Motion for Summary Judgment

(hereafter "Defendants' Cross Motion").56

On the back of the

first page of Defendants' Cross Motion was a hand-written letter

from a law enforcement officer, Mr. Mark Calhoun, to Mr. Chao.57

Officer Calhoun is:

(a) the husband of Ms. Tammy Calhoun, whom Appellant hasmoved to add as a Defendant in this matter;

58

(b) a law enforcement officer;59and

(c) a resident of same subdivision as Appellant and boundby the same Covenants that grant Appellant the propertyrights in the right-of-way in front of Appellant'shome.

60

In that hand-written letter, Officer Calhoun indicated that

the mailbox, and the right-of-way within which the mailbox is

situated, was Officer Calhoun's property, and any entry onto that

property would be considered a trespass. That letter was

submitted to the lower court for consideration, but the lower

for Summary Judgment (hereafter "Second Moses Affidavit"), 3,attached to Plaintiff's Motion to Supplement the Record as Exh.A).53R. 1107 (Second Moses Affidavit, 4).54R. 1107 (Second Moses Affidavit, 5).

55R. 1107 (Second Moses Affidavit, 6).







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court chose to ignore that evidence as being immaterial.61

As of today: (a) Traton has not rescinded its threat to

impose monetary fines on Appellant for the damaged property being

in violation of the subdivision Covenants; (b) Traton has refused

to refrain from entering onto Appellant's property; and (c)

Traton has refused to repair the damage done to Appellant's

property.

The lower court erred by failing to view all of the above-

recited facts in the light most favorable to the Appellant, and

granting Appellees' Cross-Motion for Summary Judgment based on

its errant view that Appellant neither had legal nor factual

possession of the damaged land.

IV. ENUMERATION OF ERRORS

(a) In determining standing to bring an action for trespass, thelower court ignored both clear statutory provisions andprecedent from the Supreme Court of Georgia;

(1) Contrary to clear statutory language, the lower court

erroneously required ownership of real property forstanding to bring a trespass action, when only barepossession was necessary for standing;

(2) The lower court failed to recognize possession ofproperty by Appellant, despite clear statutory languageconferring possession of the property to Appellant;

(3) The lower court nullifies OCGA 51-9-10 for unlawfulinterference with a right-of-way by requiring thatAppellant have a right to dispose of the right-of-wayand a right to exclude others from the right-of-way;

(4) The lower court decision overrules Georgia SupremeCourt precedent, which recognizes that owners of landthat is contiguous to a right-of-way have rights whichdo not belong to the public generally;

(b) The lower court disregarded the standard for summary

61R. 1126 (Order, 30).


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judgment and engaged in impermissible fact-finding;

(1) The lower court ignored Appellant's undisputed facts,which showed that Appellant was in actual possession ofthe property at issue;

(2) The lower court engaged in impermissible fact-findingon summary judgment, rather than viewing all facts inthe light most favorable to the non-moving party,Plaintiff-Appellant;

(c) The lower court misconstrued the Covenants, which granted toAppellant a property interest in the damaged propertythereby conferring to Appellant standing to bring an actionfor trespass;

(d) The lower court erred by holding that newly-submittedevidence did not identify any material issue of fact, whenthe newly-submitted evidence demonstrated actual possession

of property by Appellant.

(e) The lower court erred by failing to grant summary judgmentfor Appellant, when all of the undisputed facts, admitted byDefendants-Appellees, conclusively established each andevery element of Appellant's claim for trespass.

V. ARGUMENT

The lower court committed reversible error by: (a)

erroneously requiring ownership of land, when all that is

necessary is bare possession; (b) erroneously failing to view any

of the material facts relating to actual possession in the light

most favorable to the non-moving party; (c) erroneously finding

that the Covenant provides an "undefinable right," when the

Covenant expressly defines a property right that is granted to

Appellant; and (d) erroneously dismissing newly-submitted

evidence as being immaterial, when the newly-submitted evidence

showed actual possession of the damaged property by Appellant.

Additionally, the lower court committed reversible error by

denying summary judgment to Appellant, because all of the


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manner."64

As such, the statutory language is clear that bare

possession, without more, is sufficient to confer standing to the

possessor. Stated differently, ownership is not the prerequisite

for standing.

Citing only a truncated portion of a quote from Pope v.

Pulte Home (hereafter "Pope"),65the lower court held that

Appellant's claim for trespass ". . . is conditioned upon the

right of the Appellant to possess, use and dispose of the

property, and the corresponding right to exclude others from

using the property."66

However, a careful reading of the entire

quote from Pope shows that Pope applies to ownership, and not

possession. Specifically, Pope recites that "[t]he owner has the

rights to possess, use and dispose of the property and the

corresponding right to exclude others from using the property."

As such, the lower court effectively required ownership of

property, rather than "bare possession," as a precondition to a

claim for trespass.

Requiring the heightened showing of ownership, rather than

bare possession, in determining whether Appellant had standing to

bring an action for trespass, effectively nullified the statutory

language that "bare possession" was sufficient to confer

standing. The lower court committed reversible error by imposing

such a heightened ownership standard, and wholly disregarding

64Emphasis supplied.

65Pope v. Pulte Home Corporation, 246 Ga. App. 120 (2000). It isworthwhile to note that Defendants-Appellees also mis-quotePope. T. 31:22-32:10.

66Pope, 246 Ga. App. 120 (2000), internal quotations omitted.


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possession, in determining standing.

(2) The lower court failed to recognize possession ofproperty by Appellant, despite clear statutory languageconferring possession of the property to Appellant

Appellant based his standing to bring this action on his

possession, and not on ownership, of the property in dispute.67

The lower court refused to recognize that Appellant had

possession of the property in dispute, despite clear statutory

language that conferred possession of the property to Appellant.

Under Georgia law, "[p]ossession under a duly recorded deed

will be construed to extend to all the contiguous property

embraced in the deed."68

As such, if the damaged property is

contiguous to Appellant's property in the recorded deed, then

that possession is "construed to extend to all the contiguous

property embraced in the deed."

Here, Appellant's property is part of a platted subdivision

known as the Lakefield Manor Subdivision.69

With respect to

Appellant's property and the Subdivision, such property is

platted pursuant to a final plat recorded and in the Records of

Cobb County, Georgia.70

The recorded plat, which includes

Appellant's property, clearly delineates the boundary lines of

Appellant's property or Lot in the Lakefield Manor Subdivision.71

It is undisputed that the damaged property, which is the

subject-matter of this lawsuit, is adjacent to Appellant's

67T. 33:21-24.

68OCGA 44-5-167.

69R. 1119 (Order, 5).

70R. 1119 (Order, 5).

71R. 1119 (Order, 6).


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recorded Lot.72

In short, the damaged property is contiguous to

Appellant's property in a duly recorded deed in Cobb County,

Georgia. Thus, as a matter of law, Appellant is deemed to be in

possession of the damaged property, since that property is

contiguous to Appellant's property in the recorded deed. Such

possession is sufficient to confer standing, since only bare

possession is necessary to bring an action for trespass.

Despite finding that Appellant's property in his duly

recorded deed was contiguous to the damaged right-of-way, which

was also shown in the deed, the lower court nevertheless found

that Appellant did not have possession of the damaged land. This

was reversible error, since, as a matter of law, Appellant's

possession extends to the contiguous right-of-way.

(3) The lower court nullifies OCGA 51-9-10 for unlawfulinterference with a right-of-way by requiring thatAppellant have a right to dispose of the right-of-wayand a right to exclude others from the right-of-way

The lower court erroneously held that Appellant had no

standing to bring an action under OCGA 51-9-10, which recites:

"The unlawful interference with a right of way or a right of

common constitutes a trespass to the party entitled thereto."73

The lower court's erroneous holding was based on its finding

that Appellant had neither "a right to dispose of the

property[,]"74nor a "right to exclude others from using the

72R. 1122-1125 (Order, 20, 23, and 27).

73OCGA 51-9-10.

74R. 1124 (Order, 23, quoting from Pope, 246 Ga. App. 120(2000)).


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property."75

However, as noted above, the "right to dispose of

the property" and the "right to exclude others from using the

property" are related to ownership and not to bare possession.

Importing the ownership requirement from Pope effectively

abrogates OCGA 51-9-10 for unlawful interference with a right-

of-way.76

The reason being that individuals neither have the

right to "dispose of the [right-of-way]," nor the right to

"exclude others from using the [right-of-way]," because all

rights-of-way are owned by the county.

The lower court committed reversible error by requiring that

Appellant have the right to dispose of the right-of-way and the

right to exclude others from using the right-of-way in order to

have standing to bring a trespass action. The imposition of such

a heightened requirement nullifies OCGA 51-9-10. This

constitutes legal error.

(4) The lower court decision overrules Georgia Supreme

Court precedent, which recognizes that owners of landthat is contiguous to a right-of-way have rights whichdo not belong to the public generally

The lower court overrules precedent from the Supreme Court

of Georgia by failing to recognize that owners of land that is

contiguous to a right-of-way have rights which do not belong to

the public generally.

In Clayton County v. Billups Eastern Petroleum Co.

(hereafter "Billups"),77"the Supreme Court held that . . . if

75R. 1123 (Order, 20, quoting from Pope, 246 Ga. App. 120(2000)).

76T. 45:22-46:14.

77104 Ga. App. 778 (1961).


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[the Appellant's] property be depreciated in value by his being

deprived of some right of use or enjoyment growing out of and

appurtenant to his estate as the direct consequence of the

construction and use of the public improvement, his right of

action is complete, and he may recover to the extent of the

injury sustained."78

The Billups decision, which was expressly cited by

Plaintiff-Appellant in the lower court proceedings, held that an

individual, who did not own the right-of-way, had standing to

bring an action against the county, who did own the right-of-way.

As such, Billups demonstrates how a bare possessor can assert an

action for trespass against an owner.

Similar to Billups, here, Appellant expressly noted that

Appellant benefited from the enhanced value of his home due to

the adjacent right-of-way, and that the damage to the right-of-

way deprived him of the right of enjoyment of his home.79

Even

Appellees conceded that the condition of the right-of-way

affected the value of Appellant's home.80

As such, Appellant's

"right of action [wa]s complete." Despite this, the lower court

held that Appellant's rights were insufficient to confer

standing. Such a holding cannot be reconciled with the Supreme

Court's decisions that are cited in Billups.

78Clayton County v. Billups Eastern Petroleum Co., 104 Ga. App.778 (1961).

79T. 49:13-16; T. 50:3-8. R. 1054 (Plaintiff's Opposition toDefendants' Cross-Motion for Summary Judgment, p. 10); R. 70(First Moses Affidavit, 43-45).

80T. 41:11-21 ("[The right-of-way] is the area that you maintainbecause you want to make sure it looks nice, because it is your


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(b) The lower court disregarded the standard for summaryjudgment and engaged in impermissible fact-finding

Summary judgment is appropriate only when all the facts and

reasonable inferences from those facts, viewed in a light most

favorable to the non-moving party, show that there is no triable

issue as to each essential element in the case.81

Here, the lower court failed to view the facts presented by

Appellant, the non-moving party, in the light most favorable to

Appellant, all of which were supported by evidence of record. As

such, the lower court wholly disregarded the standard for summary

judgment.

(1) The lower court ignored Appellant's undisputed facts,which showed that Appellant was in actual possession ofthe property at issue

Appellant based his standing on possession and not ownership

of the real property at issue. Under Georgia law, "[a]ctual

possession of lands may be evidenced by enclosure, cultivation,

or any use and occupation of the lands which is so notorious as

to attract the attention of every adverse claimant and so

exclusive as to prevent actual occupation by another."82

In support of his position, Appellant produced evidence of

actual possession. The lower court was required to view

Appellant's evidence (showing cultivation, use, or occupation of

the land) in the light most favorable to Appellant, and make all

reasonable inferences in favor of Appellant.

house or in your subdivision").81Clifton v. Murray, 223 Ga. App. 756, 758 (1996); R. 1120(Order, 11).

82OCGA 44-5-165, emphasis supplied.


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Appellant's facts, which evidenced possession, and which

were conspicuously absent from the Order, included:

(1) Appellant's affidavit, in which Appellant noted hisimmaculate maintenance of his yard, including the damaged

property.83

This fact shows Appellant's maintenance andcultivation of the yard, which is evidence of actualpossession.

84

(2) The acknowledgement by the Homeowners' Association, that thedamaged land is Appellant's land.

85This acknowledgement

evidences that Appellant had actual possession of the damagedland (i.e., "your land").

(3) Appellee's admission that Appellant's neighbors consideredthe damaged property to be Appellant's property.

86The

neighbors' belief that the damaged property was Appellant'sproperty is evidence of actual possession.

(4) Appellee's own accusations that the damaged property wasAppellant's property.

87Appellees' position, that Appellant

possessed the damaged property, is evidence of Appellant'sactual possession.

(5) Defendants' Request for Entry Upon Land for Inspection, inwhich Appellees and counsel for Appellees requestedAppellant's permission to enter upon the damaged land forinspection.

88This fact evidences Appellees' acknowledgment

that permission was necessary to enter onto the land, therebyevidencing Appellant's actual possession of the land.

(6) Appellant's refusal to grant access to the land, whichevidences Appellant's actual possession of the land andAppellant's right to exclude Appellees.

89

(7) The actions of the parties to the Covenant, namely, the

83T. 58:11-22. R. 68 (First Moses Affidavit, 19-20).

84Seignious v. MARTA, 252 Ga. 69, 72-73 (1984) ("The maintenance[of property] satisfies the requirement of possession . . . ").

85T. 58:11-22. R. 368-370, 400-402 (Traton's Second Admissions, 25 and 27-55).

86T. 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).

87T. 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).

88R. 179-180 (Defendants' Request for Permission to Enter UponLand for Inspection).

89T. 51:10-22.


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threat by the Homeowners' Association to impose monetaryfines on Appellant if Appellant failed to maintain the right-of-way.

90This fact evidences the intent of the parties to

the Covenant, namely, that the Covenant impose an obligationon Appellant to maintain the right-of-way.

91Since intent is

a question of fact,92the lower court was required to view

this fact in the light most favorable to Appellant.

All of these facts were provided to the lower court: (a) in

Plaintiff-Appellant's Motion for Summary Judgment;93(b) in

Plaintiff-Appellant's Opposition to Defendants-Appellees' Cross-

Motion for Summary Judgment;94(c) during oral arguments;

95and (d)

Plaintiff's Motion for Reconsideration.96

The lower court wholly

ignored all of these facts in its erroneous determination that

ownership was required for standing.

By contrast, the following facts were presented to the lower

court by Defendants-Appellees to show that Appellant did not have

possession of the property in dispute: nothing.97

In other words,

Appellees only addressed ownership and not possession.

Despite the lower court's claim that the undisputed facts

were viewed in the light most favorable to Appellant,98the lower

90T. 58:11-22. R. 368-370, 400-402 (Traton's Second Admissions, 25 and 27-55).

91Lowry v. Norris Lake Shores Development Corp., 231 Ga. 549(1974) ("Covenants will be enforced according to the intent ofthe parties").

92Worth v. State, 179 Ga. App. 207 (1986) (Intent is a questionof fact).

93R. 275-282 (Plaintiff's Motion for Summary Judgment andMemorandum in Support of Plaintiff's Motion (herafter"Plaintiff's Motion for Summary Judgment"), pp. 2-9).

94R. 1048-1054 (Plaintiff's Opposition to Defendants' Cross-Motion for Summary Judgment, pp. 4-10).

95T. 58:11-22; T. 69:8-13.

96R. 1130-1152 (Plaintiff's Motion for Reconsideration andMemorandum Supporting Plaintiff's Motion).

97T. 51:25-52:2; T. 69:8-13.

98R. 1124-1125 (Order, 24, 28, and 29).


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court could not have viewed the facts in the light most favorable

to Appellant. Especially when: (i) the Order recites only four

of Appellant's facts,99none of which included the above-recited

facts that were advanced by Appellant and properly supported by

evidence of record;100

and (ii) the Order recites no facts to show

that Appellant did not have possession of the property in

dispute.101

The lower court committed reversible error by disregarding

the legal standard for summary judgment, and failing to view all

of these facts in the light most favorable to Appellant.

(2) The lower court engaged in impermissible fact-findingon summary judgment, rather than viewing all facts inthe light most favorable to the non-moving party,Plaintiff-Appellant

The question of whether Appellant had sufficient control or

possession of property is a question of fact that should have

99R. 1118-1119 (Order, 1-4). It is worthwhile to note that

there are over fifty (50) facts recited in Plaintiff's Motionfor Summary Judgment, and a plethora of other facts recited inPlaintiff's Opposition to Defendants' Cross-Motion for SummaryJudgment, much of which are based on Defendants' own admissions.The absence of almost all of these facts from the lower court'sOrder can only be explained by the fact that these facts, whichsupport Plaintiff's position, were not viewed in the light mostfavorable to Plaintiff. This constitutes reversible error.

100Of 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 HomeownersAssociation to allegedly maintain a certain portion ofPlaintiff's property by cutting the grass on one occasion."See, R. 1119 (Order, 4). This is incongruous with Plaintiff'sallegation that Defendants damaged Plaintiff's property byencroaching onto Plaintiff's property with lawn equipment. See,R. 30 (First Amended Complaint, 102-103).

101None of the facts recited in the Order address possession.

Rather, the facts recited by the lower court only addressownership.


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properly been left to a jury.102

Even though the lower court was

required to relinquish such fact-finding exercises to a jury, the

lower court nevertheless made fact determinations on summary

judgment. Moreover, even though all of Appellant's facts

evidenced possession, and none of Appellees' facts evidenced lack

of possession, the lower court still gave credence to Appellees'

absence of facts.

By engaging in the fact-finding exercise of whether or not

Appellant did, in fact, have possession of the damaged property,

the lower court committed reversible error.

(c) The lower court misconstrued the Covenants, which granted toAppellant a property interest in the damaged propertythereby conferring to Appellant standing to bring an actionfor trespass

The Order erroneously recites:

Regardless of the requirements contained within theDeclaration of Covenants of the Lakefield ManorSubdivision to maintain certain areas or propertywithin the Subdivision, whether located upon the

property of the Appellant or adjacent to it, such anundefinable interest does not rise to the level ofpossession required by Georgia law in order to maintainan action for trespass.

103

Here, the lower court erred for two reasons. First,

Appellant had shown not only a definable interest, but a defined

interest, which was expressly recited in the Covenant. Second,

Appellant had shown that the expressly-defined interest rose to

the level of "bare possession," which was the only requirement to

102Housing 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 inenclosure or cultivation, then "possession becomes a question offact for the jury").


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maintain an action for trespass.104

The Covenant expressly recites:

Declarant hereby declares that all of the propertiesdescribed on Exhibit 'A' referenced above shall be

held, sold and conveyed subject to the followingeasements, restrictions, covenants, and conditions,which are for the purpose of protecting the value anddesirability of, and which shall run with, the realproperty and be binding on all parties having anyright, title or interest in the described properties orany part thereof, their heirs, successors and assigns,and shall inure to the benefit of each owner thereof.

105

As such, the express language of the Covenant: (a) granted

Appellant a property interest insofar as the interest "shall run

with the real property"; (b) bound all of the property within the

subdivision, including the rights-of-way; and (c) granted

Appellant a right to protect the value and desirability of the

all the real property within the subdivision, including the

rights-of-way.

Additionally, the express language of the Covenant recites

that it "shall be enforceable by . . . each Owner, his legal

representatives, heirs, successors and assigns."106

As such, the

Covenant expressly granted Appellant standing to enforce the

rights that were conveyed to Appellant through the Covenant. In

other words, if any of the property rights defined by the

Covenant were violated, then Appellant had a right to "recover

damages from any person who wrongfully interferes with such

103R. 1124 (Order, 23), emphasis supplied.

104See, OCGA 51-9-2 and 51-9-3.

105T. 48:7-18. R. 423-424 (Covenant, pp. 1-2).

106R. 441 (Covenant, Article VIII, p. 19).


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possession in any manner."107

As an example, Appellant can neither dispose of nor exclude

others from using his neighbor's Lot, since Appellant is not the

owner. However, if that neighbor failed to properly maintain his

lawn, then Appellant had a right to enforce the Covenant against

that neighbor, even though the neighbor was the owner.108

The

reason being that Appellant had a property interest in his

neighbor's Lot, because the Covenant granted to Appellant a right

that "shall run with[] the real property."109

Additionally,

Appellant could enforce the Covenant against his neighbor because

the Covenant granted to Appellant a property interest to

"protect[] the value and desirability of . . . the real

property."110

As shown here, the lower court committed reversible error by

holding that Appellant's rights were "undefinable" when, in

reality, those rights were expressly-defined in the Covenant.

Additionally, the lower court committed reversible error by

holding that the interests defined in the Covenant "d[id] not

rise to the level of possession required by Georgia law" when, in

reality, the Covenant expressly granted property rights that were

enforceable by Appellant.

107OCGA 51-9-3, emphasis supplied.

108T. 49:3-9. This very example was provided to the lower court,and was ignored by the lower court in its erroneous holding thatownership, rather than possession, was required for standing.

109T. 48:7-18. R. 423-424 (Covenant, pp. 1-2).

110R. 423-424 (Covenant, pp. 1-2).


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(d) The lower court erred by holding that newly-submittedevidence did not identify any material issue of fact, whenthe newly-submitted evidence demonstrated actual possessionof property by Appellant

The lower court erred by disregarding the newly-submitted

evidence of actual possession. The newly-submitted evidence

consisted of a document, written by a law enforcement officer,

who indicated that encroachment onto the right-of-way in front of

the officer's home, in Appellant's subdivision, would be

considered trespass.

This document evidences every homeowners' possession of the

right-of-way in front of their respective homes in Appellant's

subdivision. This evidence was relevant to possession, and

should have been considered in the light most favorable to

Appellant, rather than being discarded as immaterial.

(e) The lower court erred by failing to grant summary judgmentfor Appellant, when all of the undisputed facts, admitted byDefendants-Appellees, conclusively established each andevery element of Appellant's claim for trespass

Each and every element of Appellant's claim for trespass was

established by Defendants-Appellees' own admissions in judicio.

Defendants-Appellees' only argument was that Appellant did not

have standing to bring this action. Insofar as Appellant had

possession of the damaged property at the time of filing the

Complaint, Appellant established standing. Also, insofar as

Appellant had conclusively established his claim for trespass by

Defendants-Appellees' own admissions, summary judgment should

have been granted to Appellant. The lower court erred by failing

to grant summary judgment for Appellant.


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VI. CONCLUSION

The lower court erred in granting summary judgment to

Appellees because the lower court: (a) erroneously required

ownership when all that is necessary is bare possession; (b)

erroneously failed to view any of the material facts relating to

actual possession in the light most favorable to the non-moving

party; (c) erroneously found that the Covenant provides an

"undefinable right," when the Covenant expressly defines a

property right that is granted to Appellant; and (d) erroneously

dismisses newly-submitted evidence as being immaterial, when the

newly-submitted evidence shows actual possession of the damaged

property by Appellant.

Appellant respectfully requests this Honorable Court to

reverse the lower court's GRANT of Defendants-Appellees' Cross-

Motion for Summary Judgment, and remand with instructions to

GRANT Plaintiff-Appellant's Motion for Summary Judgment.

28 February 2007.

Respectfully submitted,

________________________SAM HAN, P.C.Sam S. Han

Sam S. HanGeorgia Bar Number 322284

SAM HAN, P.C.330 Bloombridge WayMarietta, GA 30066Phone: (404) 514-8237email: [email protected]


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CITATION OF AUTHORITIES

CONSTITUTIONAL PROVISIONSConstitution of the State of Georgia, Sec. VI, Para. III, Cl.(5). .........................................................1

STATUTORY PROVISIONSOCGA 5-6-34(a)(1). .........................................1OCGA 44-5-165. ............................................21

OCGA 44-5-167. ............................................16OCGA 51-9-10. .....................................13, 18, 19OCGA 51-9-2. ..........................................15, 26OCGA 51-9-3. ......................................15, 26, 27OCGA 9-11-56(h). ...........................................1

CASESClayton County v. Billups Eastern Petroleum Co., 104 Ga. App.778 (1961). .................................................19Clifton v. Murray, 223 Ga. App. 756, 758 (1996). ............20Friendship Baptist Church, Inc. v. West, 265 Ga. 745, 746 (1995)............................................................25

Housing Authority of Atlanta v. Famble, 170 Ga. App. 509, 520(1984) ......................................................25Lowry v. Norris Lake Shores Development Corp., 231 Ga. 549(1974). .....................................................23Pope v. Pulte Home Corporation, 246 Ga. App. 120 (2000) ...........................................................15, 16, 18Seignious v. MARTA, 252 Ga. 69 (1984) .......................22Worth v. State, 179 Ga. App. 207 (1986) .....................23


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CERTIFICATION OF SERVICE AND FILING

This is to certify that on this day I filed with the Supreme

Court of Georgia one (1) original and seven (7) copies, and

served one (1) copy ofAPPELLANT'S APPEAL BRIEF upon the

following my mail, postage prepaid, and properly addressed as

follows:

J. Kevin Moore, Esq.Attorney for Appellees

Moore Ingram Johnson & Steele192 Anderson Street

Marietta, Georgia 30060

28 February 2007.

Respectfully submitted,

__________________________Sam S. Han

Sam S. HanGeorgia Bar Number 322284SAM HAN, P.C.330 Bloombridge WayMarietta, GA 30066Phone: (404) 514-8237

email: [email protected]

Documents

MOSES Appeal Brief