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DONALD ANDERSON, DOUGLAS TENCH, and MARY TENCH,

Appellees herein, and file their Brief in Opposition to Appellant STEWART

ENTREPRISES, INC.’S (“Stewart”) Application for Interlocutory Appeal.

I. REPLY TO JURISDICTIONAL STATEMENT

Respondents do not oppose Applicant’s statement of appellate

jurisdiction.

II. PROCEDURAL HISTORY

A. Standard of Review

In considering an Application for Interlocutory Review, this Court

must determine whether the trial court order “appears erroneous and will

probably cause a substantial error at trial or will adversely affect the rights of

the appealing party until entry of final judgment.” Rule 30(a)(2) of the

Rules of the Court of Appeals of the State of Georgia. Stewart seeks by its

Application a review of a trial court’s denial of a Motion for Summary

Judgment. At the trial court level, both named Defendants filed nearly

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identical Motions for Summary Judgment, but only Stewart has filed an

Application.

“Summary judgment is appropriate when no genuine issue of material

fact exists and the evidence warrants judgment as a matter of law.” Long v.

Natarajan, 291 Ga. App. 814, 815, 662 S.E.2d 876 (2008) (internal quotes

omitted). “The cardinal rule in the summary judgment procedure is that the

court can neither resolve the facts nor reconcile the issues, but only look to

ascertain if there is an issue of fact. The party moving for summary

judgment has the burden of showing the absence of a genuine issue of

material fact and if the trial court is presented with a choice of inferences to

be drawn from the facts, all inferences of fact from the proofs proffered at

the hearing must be drawn against the movant and in favor of the party

opposing the motion.” Jonesboro Tool & Die Corp. v. Georgia Power Co.,

158 Ga. App. 755, 757, 282 S.E.2d 211 (1981) (citations omitted).

“This Court’s review of the grant or denial of summary judgment is de

novo in order to determine whether any genuine issue of material fact exists

for resolution by a jury.’” McCullough v. Reyes, 287 Ga. App. 483, 651

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S.E.2d 810 (2007). “The sole question for review is whether or not the

evidentiary material contained in the record discloses the existence of

genuine issues of material fact.” Duncan-Rose v. First State Bank and Trust

Co. of Valdosta, Inc., 255 Ga. 225, 226, 167 S.E.2d 586 (1985).

B. Trial Court Litigation and History

Stewart filed its Application for Leave to Appeal an Interlocutory Order

after the trial court entered an Order on December 22, 2008 denying both

Stewart and Gold Star Grave Vault and Grave Services, Inc.’s (“Gold

Star”) Motions for Summary Judgment. The Certificate of Immediate

Review entered by the Court on December 30, 2008 references only one of

the Defendants in the underlying action: “THIS COURT … denied

Defendant’s Motion for Summary Judgment … .” (See Exhibit 2 to

Stewart’s Application Papers). As of the filing of this Reply in Opposition

by the Applicant, Gold Star has not joined in the Application, nor has it

submitted a separate Application to this Court.

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The trial court’s Order states in pertinent part: “The Court finds there are

issues of material fact that should be decided by a jury.” (Order, Paragraph

2, Stewart Exhibit 1). It does not identify either Stewart or Gold Star

separately in its findings. The Court noted, “Defendants’ Motion for

Summary Judgment is denied.” (Order, Paragraph 3, Stewart Exhibit 1). The

trial court correctly held that the evidence in the record presented genuine

issues of material facts as to both defendants which should be decided by a

jury. In light of the evidence presented to the trial court and the reasonable

inferences drawn therefrom, the trial court’s ruling was not erroneous.

Stewart will not be unfairly prejudiced by bearing the consequences at trial

of the documents and testimony provided by its representatives and

witnesses.1

Stewart filed its Application for Interlocutory Appeal on January 6,

2009. Stewart has failed to comply with the Court of Appeals Rule 30(d)

requirement that copies of Stewart’s Motion for Summary Judgment to the

trial court, together with Respondents’ complete response thereto be

submitted with the Application. Rule 30(d) is clear: An applicant shall

1 Stewart has also filed a cross-claim against Gold Star.

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include a copy of any petition or motion which led directly to the order or

judgment being appealed and a copy of any responses to the petition or

motion with the application.

This Application must also be dismissed because of Stewart’s failure

to meet the requirements of Court of Appeals Rule 30(e), which provides

that Stewart (and not Respondents) must provide materials sufficient to

apprise the Court of the appellate issues, in context, and support the

arguments advanced. Failure to submit sufficient material to apprise the

Court of the issues and support the argument shall result in denial of the

application. Stewart did not file one document with this Court that had been

filed by Respondents with the trial court.2

Stewart’s Motion and the Court’s Order on the Motions came after

Plaintiffs filed a two-count Complaint in the State Court of Douglas County:

Count I alleges Interference with a Burial Easement, and Count II alleges

Interference with a Burial Right. The Complaint named both Stewart and

Gold Star as defendants.

2 The documents included the Reply to the Motions for Summary Judgment, Affidavits,

Photographs, and Deposition transcripts that were heavily relied upon during oral argument of the Motions.

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After discovery began, Stewart and Gold filed Motions for Summary

Judgment and Respondents filed their papers in opposition. In addition to

filing a Reply in Opposition to the Motion for Summary Judgment,

Respondents filed with the trial court among other things an Affidavit from

Appellee Mary Tench with Exhibits to same (See Exhibit 1 to this Reply);

an Affidavit from Appellee Donald Anderson (See Exhibit 2 to this Reply)

and an Affidavit from Douglas Tench (See Exhibit 3 to this Reply).

Appellees also filed with the trial court Stewart’s “Rules and Regulations”

(See Exhibit 4 to this Reply).

Respondents oppose the Application for Interlocutory Appeal

procedurally as set forth above and substantively as set forth below

III. RESPONDENTS’ REPLY TO RULE 30 STATEMENT

In purporting to set forth facts relevant to this Court’s decision on the

Application, Stewart omits, misstates, or re-characterizes the allegations as

well as the evidence in the record that was available to be factored into the

trial court’s decision to deny the motions before it.

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At the time the trial court rendered the decision challenged, the

allegations before the trial court showed that the matter is much more than a

mere “inadvertent misburial” of a vault of a burial lot as represented by

Stewart (Stewart Application, Page 2). This is a case where it has been

alleged that not only was another body buried in an unmarked grave vault;

one of the counts of this multi-count Complaint claims that both Defendants

(Stewart and Defendant Gold Star) grossly mishandled the burial of a

deceased.

IV. STATEMENT OF FACTS

Stewart placed another vault in an internment space assigned to

Respondents, and both Stewart and Gold Star failed to properly prepare a

burial vault for the deceased wife of Appellee/Plaintiff Donald Anderson.

The trial court was presented with evidence that those who witnessed the

ultimate burial which forms the basis of Count II saw water gushing from

the sides of the deceased's casket the day of her burial. Appellee Donald

Anderson and Appellee Douglas Tench (father of the deceased), family

members, and friends of the deceased physically assisted in the actual burial

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of the deceased. This is a case where employees and agents of the Stewart

actually abandoned the burial of the deceased, leaving Anderson, Douglas

Tench, and friends and family to complete the burial of the deceased over

the course of a more than eight hours.

Helen Anderson died on March 29, 2005. She was survived by her

husband Donald Anderson, as well as her father, Douglas Tench (a Plaintiff

in this action), Mary Tench (a Plaintiff and stepmother of the deceased),

children and other family members. On March 29, 2005 (a Tuesday), Mrs.

Helen Anderson died after a long bout with cancer. (See Mary Tench

Deposition, Pages 32-44, Exhibit 5 to this reply).

Mrs. Anderson was to be buried on March 31, 2005, a Thursday. (Id.)

She was to be buried in a Lot as to which interment rights had been

purchased by Douglas and Mary Tench (See Stewart Application, Exhibit 7).

A program was prepared noting that a service would be held at Bill Head

Funeral Home on March 31, 2005, at 2:00 p.m., and that the internment of

Mrs. Anderson would be conducted at North Atlanta Memorial Park. Mrs.

Anderson was not buried that day. (See Mary Tench Affidavit, Exhibit 1).

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Mrs. Anderson was ultimately buried on April 2, 2005. In other words, the

mishandled burial was held three days after it was originally scheduled to

have had happened.

How was the deceased Mrs. Anderson to be buried? Stewart would

first open a vault space, using Gold Star to perform the work, under the

supervision and control of Stewart (See Rules and Regulations, Page 8,

Exhibit 4 to this Reply). Stewart’s control was so pervasive that it produced

a videotape which was produced during discovery and provided to the trial

court by Respondents as part of its Reply to the Motion for Summary

Judgment. The video is entitled, “Basics of Burial.” Appellees filed with the

trial court a copy of the videotape converted to a CD.

The Stewart-prepared video sets forth instructions for those who

worked at its cemeteries. The videotape included an explanation of what to

do in “Bad Weather.” According to the video, workers are told, “To keep

dirt dry, store in shed or cover with [a] tarp.” Employees are also taught that

“every effort should be made to keep the memorial areas free of mud:” The

below is a screen shot from the video that the trial court had before it,

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submitted without any objection, and which was part of the Opposition

Reply papers filed with the trial court, but not provided by Stewart to this

Court:

(Emphasis added – in yellow, by counsel, Exhibit 6 to this Reply).

Douglass Braswell was deposed in this action, as he others were

charged with the responsibility of opening the vault on March 31, 2005 (See

Braswell Deposition, Page 13 Lines 5 -11, Exhibit 7 to this Reply). On that

same date, the Whitlock vault was found, removed, and placed elsewhere.

Prior to any work being done to prepare the space, a Stewart employee had

outlined and marked where the grave must be dug. (See Braswell

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Deposition, Page 14, Lines 21-25). As directed by Stewart’s employee,

Braswell attempted to prepare the burial space but encountered water in the

space where Mrs. Anderson would be buried. (See Braswell Deposition,

Page 27, Lines 15-24, Exhibit 7 to this Reply).

Stewart fails to mention in its Application that water was encountered

on the first attempt to prepare the burial space for the deceased on March 31,

2005. Why? In Pages 4 through 7 of its Application, Stewart simply omits

the fact that water was found in the internment space on March 31, 2005.

There was a significant amount of water: Mr. Braswell was asked about the

water found in the space, and he testified that “water kept coming in” as he

worked that day. (Braswell Deposition, Page 32, Line 7, Exhibit 7 to

Reply). A Stewart employee was present during the task of digging the six-

foot deep burial space. (Braswell Deposition, Page 30, Lines 15-24, Exhibit

7 to this Reply).

During the preparation of the space, Braswell’s feet were wet and his

pants were wet. He said, “it wasn’t a real comfortable situation.” (Braswell

Deposition, Page 32, Line 21, Exhibit 7 to Reply). (Because Stewart did not

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include the entire transcript of the Braswell Deposition as it was required to

do it will be nearly impossible to explain what was argued to the trial court).

The space was finally finished and Braswell and others left.

The burial and attendant memorial services were finally set for April

2, 2005. Once the memorial services concluded, the casket was readied to be

place into the burial space.

In its Application, Stewart has tried its level best to downplay what

was seen by Respondents when the deceased’s vault was lowered into the

ground, simply stating to this Court that “water was observed to rise up

along the side of the vault.” (Application at Page 8). In fact, there was “an

astronomical amount of water.” (See Mary Tench Deposition, Page 40,

Lines 6-7, Exhibit 5). According to Douglas Tench:

[I] could see the water and the casket wasn’t going down. It [the

casket/vault] was just floating in the water.

(Douglas Tench Deposition, Page 39, Lines 9-25, Exhibit 8 to this Reply).

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The area around the burial space was a mess. There was mud

everywhere, as Tench noted (Douglas Tench Deposition, Page 38, Lines 15-

25, Exhibit 8 to this Reply). The Mary Tench Affidavit includes a

photograph showing the huge amounts of mud removed by friends and

family the day of the burial. The trial court had the photograph below (and

others) when it considered the Defendants' Motion for Summary Judgment.

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The above photograph was taken by Mary Tench the ultimate day of

Mrs. Anderson's burial (Saturday, April 2, 2005). It is a photograph of

family friend T. Sandstrum emptying buckets of mud from Anderson grave

(See Tench Affidavit, Photograph 11, Exhibit to this Reply). Did Stewart

meets its duty as stated in the video? Obviously the trial court did not

believe it had.

What transpired the day of April 2, 2005? Braswell had been asked to

return along with fellow employee Jason Hofer to help remove the huge

amounts of water from the burial space into which the casket and vault of

Mrs. Anderson were to be lowered - finally - that day. (Braswell Deposition

at P. 70, Lines 2-13, Exhibit 6; reference to “Jason” at P. 71, Lines 9-11).

When he arrived, Braswell found at least two to three feet of water in the

burial space, which was “a lot more water” than the first day the space had

been dug (Braswell Deposition at P. 70, Lines 15-24, Exhibit 6).

Once the water was seen by Respondents around the casket, family

and friends at the memorial service tried to help assist in the unfolding

disaster. It took most of the day. For some reason Braswell and Hofer made

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the decision to simply leave the Anderson burial space with the job not yet

done, the area still “a mess” (Braswell Deposition at P. 71, Line 24). Quite

simply, they abandoned the deceased’s husband (Respondent Anderson) and

father that tragic day.

After Braswell and Hofer left, Respondents, family and friends

finished the job themselves. (See Affidavit of Mary Tench, Paragraphs 9, 10,

11, 13, and 14, Exhibit to this Reply).

V. ARGUMENT AND CITATION OF AUTHORITY

This issue before the trial court and this Court is a straightforward one

to decide, based on the evidence submitted - whether the Respondents

should be denied the right to have the pending claims heard by a jury. As

was aptly stated in a Georgia court opinion nearly a century ago when

considering a case similar to the one now pending:

Death is unique. Something has gone. The body is left still and cold, and is

all that is visible to mortal eye of the [woman] we knew. Around it cling love

and memory. [T]he body must [now] be buried or disposed of. If buried, it

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must be carried to the place of burial. And the law, in its all-sufficiency,

must furnish some rule, by legislative enactment or analogy, or based on

some sound legal principle, by which to determine between the living

questions of the disposition of the dead and rights surrounding their bodies.

In doing this the courts will not close their eyes to the customs and

necessities of civilization in dealing with the dead and those sentiments

connected with it. See Louisville & Nashville R.R. Co. v. Wilson, 51 S.E.

24, 25 (Ga.1905); See also, In re: Tri-State Crematory Litig., 215 F.R.D. 660

(N.D.Ga. 2003).

A. There is sufficient evidence to deny a Motion for Summary Judgment

on the argument made by Stewart that Count I is time barred.

Stewart argues that the claim alleging interference with a burial

easement should have been disposed of by Motion for Summary Judgment.

Stewart argues that an unmarked plot, which Respondents did not have

real property rights to, should serve to bar this claim.

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Georgia has long recognized that “one who is the owner of the

easement of burial in a cemetery is entitled to recover damages from anyone

who wrongfully interferes with such right.” See Phinizy v. Garnder, 159 Ga.

136 (1924); Jacobus v Congregation of Israel, 107 Ga. 518 (33 S.E. 853);

Wright v.Hollywood Cemetery Corp., 159 Ga. 136 (125 S.E. 195). The

variety of the factual situations in the cited cases demonstrates that there is

not a single act on which liability in such cases rests. What is consistent in

each case is that a burial must be handled “with the utmost dignity.” See

Mayer v. Turner, 142 Ga. App. 63, 234 S.E. 2D 853 (1977) (Appellate Court

reversed the grant of a Summary Judgment entered by a lower court).

For statute of limitations purposes, the general rule for determining

the time a cause of action accrues is well-settled in Georgia. "The true test to

determine when a cause of action accrues is to ascertain the time when the

plaintiff could first have maintained [his or] her action to a successful

result.” See Colormatch Exteriors Inc. v. Hickey, 275 Ga. 249, 569 S.E.2d

495 (2002). See also, Stamschror v. Allstate Ins. Co., 267 Ga. App. 692,

600 S.E 2d. 751 (2004) (A cause of action “accrues and the statute of

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limitation begins to run when there is” an act “ coupled with a proximately

resulting injury,” Stamschror at 693 Here there was no “injury” until it

actually occurred – the afternoon of March 31, 2005.

As before the trial court, in Stewart’s Application Stewart attempts

to deflect any attempt by the Courts to actually read the papers submitted by

it. The first Agreement was executed in 1977 (See Stewart Application,

Exhibit 7). It shows that only an “exclusive right of interment” was

purchased. (Id.)

Although the copy provided to Appellees is nearly illegible, the

second page of that paper provides that certain Rules and Regulations must

be adhered to by those who signed the Agreement (See Stewart Application,

Exhibit 7, Page 2, Para. 8). As was done for the trial court, Respondents

have enlarged the language of Page 2 of said Exhibit, and include it here as

Exhibit 9 to this Reply.

An Agreement signed February 25, 1985 by Mary Tench and

Douglas Tench, attached to the Mary Tench Deposition (See Exhibit 10 this

Reply) was considered by the trial court and has similar language in what

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can truly be described as the fine print. At Page 2, Paragraph 12 (3) the

1985 Agreement also provides that “at all times the Rules and Regulations”

maintained by Stewart govern.

It is uncontradicted that these Rules and Regulations governed the

facilities, rights and obligations of the parties at the time of burial. Because

of the many deficiencies in Stewart’s Application, it is logical to conclude

that Stewart intentionally left out of its Application such document.

The Rules and Regulations state: “The term Internment Right is

defined as the Lot Owners right to use a specific space” (Exhibit 4, Page 1,

Para. e ). The term “Right of Internment” is used throughout the papers, and

is set forth at the top of the 1985 Agreement, the first full paragraph (See

Exhibit 10 to this Reply). In this case, the Rules and Regulations also state:

that Internment Rights do not infer actual ownership of the Ground Space,

Crypt … Niche or Niche Front. (Exhibit 4, Page 1, Para. e ).

At Page 6 of the Rules and Regulations, under the heading

“PROPERTY RIGHTS OF LOT OWNERS”, section “a” the description

therein is key to both the Motion and this Application. Property Rights are

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“limited to a right of internment of human remains only.” (Exhibit 4). That

is, there are no rights that exist or spring forth regarding the purchased space

until an event – a death with a need to exercise the right to internment –

happens.

The decisions cited by Stewart simply do not apply or are

distinguishable. In Hill v. City of Ft. Valley, 251 Ga. App. 615, 554 S.E.2d

783 (2001) the issue related to a trespass claim. No such claim has been

alleged here.

Armstrong v. Royal Lakes Association, 232 Ga. App. 643, 502 S.e.2d

758 (1998) simply does not apply here. In that case, the claim asserted

damage to realty (not merely “property” as represented by Stewart,

Application at Page 10), and the statute of limitations relating to such realty.

Here, the Agreements’ own terms, as well as the Rules and Regulations go

to great lengths to explain that there is “no actual ownership” of any realty

or property.

As no right of internment exists until the lot space is needed for a

burial, Colormatch confirms that the actual injury -- and hence the start of

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the statutes of limitations clock -- would have occurred on March 31, 2005

when it was discovered that the Whitlock vault had been placed, unmarked,

in ground. The relief should be denied.

B. There is sufficient evidence to deny a Motion for Summary Judgment

or the requested relief before this Court on the argument made by

Stewart that Count II is time barred.

Count II of the Complaint alleges “Interference with Right of Burial.”

In each count of the pending Complaint, damages are sought for injury to

"peace, happiness, and feelings,” pursuant to O.C.G.A. §51-12-6.

Under O.C.G. A. Sec. 51-12-6, the statute provides: “In a tort action

in which the entire injury is to the peace, happiness, or feelings of the

plaintiff, no measure of damages can be prescribed except the enlightened

consciences of impartial jurors.”

The interference with the exercise of a burial right is a tort. See

Habersham v. Habersham, 164 Ga. App. 676, 297 S.E. 2d 315 (1982); Wright

v. Hollywood Cemetery Corp., 112 Ga. 884, 38 S.E. 94 (1901). It is beyond

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peradventure that under Georgia law a tort is as an unlawful violation of a

private legal right other than a mere breach of contract. See O.C.G.A.

Section 51-1-1.

The sole substantive argument made by Stewart is that Count II must

fail because there is no allegation of any “physical injury” that required

medical care. Unfortunately for Stewart, that is not the standard in the

instant action. Like the instant matter, Habersham involved a tort claim

alleging interference with a burial right.

In Mayer, the Plaintiff alleged negligence regarding the burial of a

deceased sister. In Mayer, the Plaintiff in the underlying case was told that a

grave had been dug in the wrong place. The appellant was asked if the burial

service could proceed with the deceased placed in the wrong grave, and on

the next day moved to the proper grave. The Court in Mayer agreed. After

suit was filed alleging breach of contract and negligence, the defendant in

that case moved for Summary Judgment. In reversing the lower court's grant

of the Motion, the Court noted that as to negligence, the appellants had

presented sufficient facts supporting the denial of the Motion. The Mayer

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Court noted that there was evidence before it that the appellant in the case

had – post burial – endured an inability to eat and sleep, suffered

nervousness, and weight loss. Id. at 65.

In this case, it is clear that that mishandling of the burial of Ms.

Anderson caused injury to the peace, feelings, and happiness of the

Plaintiffs, and there are facts before the Court which are similar to those in

Mayer. 3

Donald Anderson's Affidavit shows the Court these facts: After the

handling of the burial, Mr. Anderson went through numerous nights with

little, no, or interrupted sleep for at least one month. (See Affidavit, Exhibit

3 to this Reply). At one point, after he visited his wife's grave, he was

despondent, pulled out a gun he owned, and considered ending his own life

(See Affidavit, Exhibit 3). Anderson testified to this in his deposition, and

Stewart has quoted this statement in its Application, See Page 20. Anderson

also went through bouts of anxiety and nervousness. Douglas Tench did so

likewise (See Douglas Tench Affidavit, Exhibit 3). The Mayer has been

3 Attempts to rely on the impact rule are misplaced.

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virtually ignored by the Applicant. The case is still good law, and supports

denial of the Application.

In the case before the Court, the photographs attached to the Mary

Tench Affidavit show in plan and graphic terms what the antiseptic Affidavit

of Stewart's employees do not – the sorrow and horror of the day that Mrs.

Anderson's own family and friends buried her. As to Gold Star, it is

abundantly clear that it did little or nothing that day to do its job at the

cemetery, and the testimony of Braswell confirms that he and others quit the

job that day.

There is an issue of fact, as the behavior the day of the burial surely is

tantamount to callous indifference to what was transpiring that day. As such,

the Motion was and should be have been denied. See Westview Cemetery v.

Blanchard, 234 Ga. 540, 216 S.E. 2d 776 (1975).

C. Stewart’s Arguments regarding Gold Star must fail, since the

evidence shows otherwise.

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When Stewart first filed its Motion for Summary Judgment, the

Motion did not set forth any argument that there is no liability based on Gold

Star’s actions being those of an independent contractor. When Stewart filed

its Brief in support of its Motion for Summary Judgment, it did not argue or

refer to one court decision on the law in this state regarding independent

contractors. Unfortunately, this Court cannot review either Stewart’s

Motion for Summary Judgment or the Brief filed with the trial court because

Stewart has failed in its application to meet the requirements of Rule 30(b).

As such, this argument should be stricken at a minimum, or the Application

rejected.

Should this Court decide to consider this aspect of Stewart’s

Application, the starting point for any inquiry is not a self serving

Supplement Affidavit. The proper starting point is the set of Rules and

Regulations provided to the trial court, but left out of the record here by the

Appellant.

The Rules and Regulations contain language that showed the trial

court there are issues of fact regarding the role Gold Star played in relation

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to Stewart. At Page 8, under “CONTROL OF WORK BY

CORPORATION” Paragraph “a” states in plain terms:

All work of any kind performed in the Cemetery … [including] all

openings and closings of Plots and internments shall be performed

only by the Corporation or under its supervision and control.

(Exhibit 4, Page 8).

The first filed Affidavit by Richard Williams was executed July 2,

2008. The “Supplemental” Affidavit by Richard Williams was executed

September 16, 2008, nearly two weeks after Plaintiffs/Respondents had

submitted reply papers.4 Reading the “Supplemental” Affidavit shows it to

be at its worst litigation by ambush, as it was not filed with the original

papers in support of Stewart’s Motion for Summary Judgment.5 At best, the

statements in such Affidavit clearly create an issue of fact with the Rules and

Regulations. It defies logic that Stewart would represent to the Court that it

4 The Supplemental Affidavit was the subject of a Motion to Strike filed by Plaintiffs/Respondents.

Stewart also failed to include the Motion to Strike with its Application. 5 This Motion is also not in the record before this Court.

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“did not exercise control” Gold Star (Stewart Application Page 26) when its

own documents state in plain English that it does indeed do so.

The cases cited by Stewart support denial of the Application. See

generally, Hampton v. McCord, 141 Ga. App. 97, 232 S.E.2d 582 (1977).

Stewart’s efforts to re-characterize the facts, or alternatively, to claim

a lack of evidence regarding the incident which is the subject of this

litigation, at best only underscores the need for a jury to resolve the issues

before the court.

Viewed in a light most favorable to Respondents, the evidence in the

record easily presents issues of fact for the jury to consider with respect to

the pending claims. Had Stewart or its agents/representatives from Gold

Star not abandoned the duties they were required to perform, these claims

may not have been made.

Undoubtedly, the trial court properly denied the motions for

summary judgment. Likewise, this Court should deny Stewart’s Application

for Interlocutory Appeal.

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VI. CONCLUSION

WHEREFORE, Respondents respectfully request that the Court deny

Stewart’s Application for Interlocutory Appeal of the trial court's order

denying the motions for summary judgment.

Dated this __ day of _________________, 2009.

For Plaintiffs/Respondents:

By: __________________________

O. Mark Zamora

GA Bar Number: 784239

LAW OFFICES OF MARK ZAMORA

Post Office Box 660216

Atlanta, GA 30366

Tel: 404.451.7781 FAX: 404.506.9223

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CERTIFICATE OF SERVICE

This is to certify that I have this day served a true and correct copy of

the within and foregoing REPLY TO APPLICATION FOR LEAVE TO

APPEAL INTERLOCUTORY ORDER by U.S. Mail with postage affixed

to: James W. Standard, Jr., Esq., Hall, Booth, Smith & Slover, P.C., 1180

West Peachtree Street NW, Atlantic Center Plaza, Suite 900, Atlanta,

Georgia 30309-3479 and Derek Mendicino, Esq., Penna & Mendicino, P.C.,

1902 Old Covington Highway, Conyers, Georgia 30012

Submitted this ____ day of ___________ , 2009.

By: __________________________

O. Mark Zamora

GA Bar Number: 784239

LAW OFFICES OF MARK ZAMORA

Post Office Box 660216

Atlanta, GA 30366

Tel: 404.451.7781 FAX: 404.506.9223