MOSES Memorandum Opposing TRATON Motion for Attorneys Fees FINAL

8/14/2019 MOSES Memorandum Opposing TRATON Motion for Attorneys Fees FINAL

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THE SUPERIOR COURT FOR THE COUNTY OF COBB

STATE OF GEORGIA

CHRISTOPHER MOSES ]Plaintiff, ] Civil Action File

v. ]] No.05-1-8395-35

TRATON CORP., et al. ]

Defendants. ] JURY TRIAL DEMANDED

PLAINTIFF'S MEMORANDUM IN OPPOSITION TO

DEFENDANTS' MOTION FOR ATTORNEYS'

FEES AND EXPENSES OF LITIGATION

COMES NOW Plaintiff, by and through its undersigned attorney, and hereby files its

Memorandum in Opposition to Defendants' Motion for Attorneys' Fees and Expenses of

Litigation ("Defendants' Motion for Attorneys' Fees").

I. INTRODUCTION

Defendants incorrectly allege that Plaintiff advanced a claim that had a complete absence

of any justiciable issue of law or fact when:

(a) most, if not all, of Plaintiff's alleged facts were conclusively established by

Defendants' own admissions; and(b) the legal bases for Plaintiff's claims comes from express statutory provisions,

which grant to Plaintiff a right to bring a trespass action if Plaintiff can show barepossession.

Defendants continue to misquote Pope v. Pulte Home Corporation,1 which only

addresses ownership, and has no bearing on possession. Thus, Defendants misdirect the Court's

attention from clear statutory provisions, which provide that "bare possession of land shall

authorize the possessor to recover damages from any person who wrongfully interferes with such

possession in any manner."2

1 246 Ga. App. 120 (2000).2 OCGA 51-9-3, emphasis supplied.


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Also, Defendants complain about Plaintiff's use of the judicial process when Defendants'

own counsel expressly voiced approval of Plaintiff's use of the judicial process. So much so, that

counsel for Defendants indicated that he wished to refer a case to Plaintiff's counsel to be

handled in like fashion. Additionally, Defendants neglect to mention that Defendants' own

dilatory tactics were the very cause of Plaintiff's refining and propounding such numerous

requests for admissions upon Defendants.

In view of the reasonableness of Plaintiff's position, both legally and factually, and in the

absence of any improper conduct by Plaintiff, Defendants' Motion for Attorneys' Fees must be

DENIED.

II. FACTS

A. Facts Relating to the Reasonableness of Plaintiff's Position in Advancing this

Matter

Prior to filing the Complaint in this lawsuit, counsel for Plaintiff investigated the facts

and researched the legal issues related to this matter,3 discussed this matter with several other

attorneys,4 and spent no less than three (3) days confirming the facts relayed to counsel by

Plaintiff.5 These facts, which were relayed to counsel by Plaintiff, included the following:6

a. On May 27, 2004, Mr. Moses purchased his home from one of the

Traton entities (hereinafter collectively referred to as "Traton").b. Mr. Moses' home is situated within the Lakefield Manor

subdivision.

c. Traton is involved in the development of homes in the Lakefield

3 Affidavit of Sam S. Han in Support of Plaintiff's Memorandum in Opposition to Defendants'Motion for Attorneys' Fees and Expenses of Litigation ("Han Affidavit"), 4.4 Han Affidavit, 5.5 Han Affidavit, 6; Affidavit of Christopher Moses in Support of Plaintiff's Memorandum in

Opposition to Defendants' Motion for Attorneys' Fees and Expenses of Litigation ("MosesAffidavit"), 5.6 Han Affidavit, 7; Moses Affidavit, 6 through 12.


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Manor subdivision.d. Since the purchase of his home, Mr. Moses has always maintained

immaculate care of the lawn that is attached to his home, includingthe right-of-way that is part of his yard.

e. The damaged property is visibly indistinguishable from his

recorded lot, and contiguous, if not overlapping, with Mr. Moses'recorded lot.

f. Subsequent to Mr. Moses' purchase of his home, contractors

delivered materials to construction sites within the LakefieldManor subdivision.

g. Traton was aware that contractors delivered materials to the

construction sites within the Lakefield Manor subdivision.h. Given the ongoing construction within the Lakefield Manor

subdivision, Traton also functions as the Home Owners'

Association (HOA).i. Mr. Foster wrote: "As for your [Mr. Moses'] yard issues, simply

stated, Traton has fixed your corner many times in the past due tothe fact that it seemed reasonable to assume that the developer'slarge equipment trailers ran over your curb and placed a rut in your

grass." j. Mr. Moses complained to Traton about damage to his yardk. Mr. Moses requested Traton to discontinue driving over Mr.

Moses' property.l. Mr. Moses called Traton on more than one occasionm. Traton did not return all of Mr. Moses' phone calls.

n. Mr. Moses filed a grievance against Traton using Traton's Internetform.

o. Mr. Rick Foster replied by email and copied one or more officersof Traton in his reply.

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

q. Traton cited Mr. Moses' damaged yard as being in violation of thesubdivision Covenant.

r. The HOA and others in the neighborhood consider the damaged

yard to be Mr. Moses' yard.s. Mr. Moses filed a complaint with the Better Business Bureau

("BBB"), in which Mr. Moses expressly noted the destruction of

his yard.t. Rather than calling Mr. Moses to discuss these issues, Traton

responded to Mr. Moses through its attorneys, and demanded thatMr. Moses stop contacting Traton.

All of these facts, which formed the bases for Plaintiff's Requests for Admissions to


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Defendants,7 were admitted by Defendants.8

In researching the legal issues, Plaintiff's counsel also spent a considerable amount of

time reviewing the relevant statutes and applicable legal precedent relating to the tort of

trespass,9 including at least the following statutes:10 OCGA 51-9-1,11 51-9-2,12 51-9-3,13 and

51-2-5.14 The legal research also included reviewing a treatise by Professor Charles Adams, III,15

and reviewing the following legal decisions:16Lanier et al. v. Burnette et al.;17Roberts v.

Chapman;18Autry v. Adams;19 andNewman Manufacturing Co. v. Young.20

7

Han Affidavit, 8.8 Han Affidavit, 9.9 Han Affidavit, 10.10 Han Affidavit, 11.11 "The right of enjoyment of private property being an absolute right of every citizen, every actof another which unlawfully interferes with such enjoyment is a tort for which an action shall

lie."12 "The bare right to possession of lands shall authorize their recovery by the owner of such right,

as well as damages for the withholding of such right."13 "The bare possession of land shall authorize the possessor to recover damages from any personwho wrongfully interferes with such possession in any manner."

14 "An employer is liable for the negligence of a contractor: (1) When the work is wrongful initself or, if done in the ordinary manner, would result in a nuisance; (2) If, according to theemployer's previous knowledge and experience, the work to be done is in its nature dangerous to

others however carefully performed; (3) If the wrongful act is the violation of a duty imposed byexpress contract upon the employer; (4) If the wrongful act is the violation of a duty imposed bystatute; (5) If the employer retains the right to direct or control the time and manner of executing

the work or interferes and assumes control so as to create the relation of master and servant or sothat an injury results which is traceable to his interference; or (6) If the employer ratifies theunauthorized wrong of the independent contractor."15Georgia Law of Torts, Thomson-West Publishing. Han Affidavit, 13.16 Han Affidavit, 12.17 245 Ga. App. 566 (2000) ("[T]he act of trespass must have been a voluntary, intentional act inthat it intended the immediate consequences of the act, causing the trespass or invasion.").18 228 Ga. App. 365 (1997) ("The question of the sufficiency of the description of property in a[ninstrument] is one of law, for the court; that of the identity of the property [described] is one of

fact, to be decided by the jury.").19 95 Ga. App. 207 (1957) ("A willful trespasser can be defined in general terms as one who

knows that he is wrong . . .").


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As such, Plaintiff's counsel relied on at least the above-recited facts and law in assessing

the reasonableness of Plaintiff's case prior to filing the Complaint,21 and all of the above-recited

facts and law formed the bases for filing the Complaint.22

Prior to filing the lawsuit, and also during the course of litigation, Plaintiff attempted on

numerous occasions to discuss this matter rationally with Defendants.23 Defendants refused to

open communications with Plaintiff.24

Subsequent to filing the Complaint, Plaintiff received, through counsel, a letter

("Defendants' First Letter"), dated November 22, 2005, which indicated Defendants' intent to

assert a claim for abusive litigation against Plaintiff.25 Shortly after receiving Defendants' First

Letter, Plaintiff's counsel again reviewed all of the above-recited statutes, legal precedent, and

Professor Adams' treatise.26 Upon this subsequent review, Plaintiff's counsel concluded that

Plaintiff had a reasonable basis for continuing with this lawsuit.27

On January 6, 2006, counsel for Plaintiff received a letter ("Defendants' Second Letter")

indicating Defendants' belief that the discovery requests were motivated by harassment.28 On

that same day, Plaintiff's counsel responded by email ("Email Response"), explaining in

20 109 Ga. App. 763 (1964) ("While consent, or a valid license from an owner of land, is a good

defense to an action of trespass for acts done within the scope of the license, even if given bymistake, yet the consent is no defense to if the acts done are not within the scope of the license ornot covered by such consent." "A willful trespasser can be defined in general terms as one who

knows that he is wrong . . .").21 Han Affidavit, 14.22 Han Affidavit, 15.23 Moses Affidavit, 13, 15, and 24.24 Moses Affidavit, 14 and 16.25 Han Affidavit, 16.26 Han Affidavit, 18.27 Han Affidavit, 19.28 Han Affidavit, 20.


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excruciating detail why the requests were both relevant and not unduly burdensome.29 In that

Email Response, Plaintiff's counsel also indicated that Defendants' conduct in failing to properly

respond to Plaintiff's discovery requests was the cause of Plaintiff's subsequent discovery

requests. Ignoring Plaintiff's explanation, Defendants filed a Motion for Protective Order,30 to

which Plaintiff served a Rule 6.4 Letter, attaching a draft copy of Plaintiff's Opposition to

Defendants' Motion for Protective Order and providing substantially the same reasons as

Plaintiff's Email Response.31 Shortly thereafter, Defendants withdrew their Motion for Protective

Order.32

On January 13, 2006, Defendants faxed a letter ("Defendants' Third Letter") to the

managing partners at McGuireWoods, LLP ("McGuireWoods"), but not to lead counsel for

Plaintiff.33 Instead, the letter was mailed to Plaintiff's lead counsel, post-marked January 17,

2006, which was four (4) days after the date of the fax.34 Defendants' Third Letter indicated

Defendants' intent to assert a claim for abusive litigation against McGuireWoods and against

Plaintiff's lead counsel, personally.35

Upon receiving Defendants' Third Letter, Plaintiff's counsel once again reviewed all of

the statutes, legal precedent, and Professor Adams' treatise,36 and conducted additional legal

research.37 That follow-up research included reviewing at least the following statutes and legal

29 Han Affidavit, 22.30 Han Affidavit, 24.31 Han Affidavit, 25.32 Han Affidavit, 26.33 Han Affidavit, 29.34 Han Affidavit, 30.35 Han Affidavit, 27.36 Han Affidavit, 35.37 Han Affidavit, 36.


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precedent: OCGA 51-9-10;38Lowry v. Norris Lake Shores Development Corp.;39 Gibson et al.

v. Huffman et al.;40Walker v. Duncan et al.;41 Doughtie et al. v. Dennisson et al.;42 Gibson et al.

v. Huffman et al.;43Clayton County v. Billups Eastern Petroleum Co.;44 and Pope v. Pulte Home

Corporation.45

38 "The unlawful interference with a right of way or a right of common constitutes a trespass tothe party entitled thereto."39 231 Ga. 549 (1974) (The general rule is that a covenant that runs with the land will be enforced

according to the intention of the parties).40 246 Ga. App. 218 (2000) (The cardinal rule of construction is to ascertain the intention of theparties).41

236 Ga. 331 (1976) (It is well-established that where a developer sells lots according to arecorded plat, the grantees acquire an easement in any areas set apart for their use. An easementacquired in this manner is considered an express grant, and is an irrevocable property right. The

rationale is that the grantees of the property have given consideration for its enhanced value inthe increased price of their lots).42 240 Ga. 299 (1977) (It is well-established that where a developer sells lots according to a

recorded plat, the grantees acquire an easement in any areas set apart for their use. An easementacquired in this manner is considered an express grant, and is an irrevocable property right. The

rationale is that the grantees of the property have given consideration for its enhanced value inthe increased price of their lots).43 246 Ga. App. 218 (2000) (Where a grantor sells his property with a restriction benefiting his

neighbors, the neighbor, as the beneficiary, may enforce it).44 104 Ga. App. 778 (1961) (Supreme Court held that owners of property contiguous to ahighway own rights which do not belong to the public generally, and that included in these rights

is an easement of access which includes the right of ingress, egress, and regress, a right of wayfrom a locus a quo to the locus ad quem, and from the latter forth to any other spot to which theparty may lawfully go, or back to the locus a quo. All the construction performed during the

improving of the highway by the defendant was done on the existing right of way. No part of theleased property was taken, no physical damages were done to the premises, and the plaintiffmakes no claim for damage other than for its right of ingress and egress to the station and the

highway which, it is alleged, constituted a taking or damaging of the property for public purposeswhich substantially destroyed this right of ingress and egress to the property, making the

plaintiff's lease of no value. The damages, therefore, that an individual may recover for injuriesto his property need not necessarily be caused by acts amounting to trespass, or by an actualphysical invasion of his real estate; but if his property be depreciated in value by his beingdeprived 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 any public improvement, his right of action iscomplete, and he may recover to the extent of the injury sustained).45 246 Ga. App. 120 (2000) (The owner has the rights to possess, use and dispose of the property


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Upon reviewing at least these laws related to trespass, Plaintiff's counsel again concluded

that Plaintiff had a reasonable legal basis for advancing the lawsuit,46 and that Defendants'

primary case, Pope v. Pulte Home Corporation, did not affect Plaintiff's case, since the basis of

Plaintiff's lawsuit was not ownership, as in Pope, but possession.47

At this time, Plaintiff's counsel was also aware of at least the following facts,48 much, if

not all, of which were admitted by Defendants in response to Plaintiff's Requests for

Admissions:49

a. Mr. Moses filed this lawsuit in Cobb County Superior Court onOctober 13, 2005.

b. As a courtesy, a copy of the Complaint was emailed to Traton'sattorney on October 13, 2005

c. Traton was aware of this lawsuit by October 14, 2005.

d. After being put on notice of this lawsuit, Traton agents againentered onto the damaged portion of the yard, and used lawnequipment on the damaged portion of the yard.

e. Traton photographed the subsequent entry and the use of their lawnequipment on the damaged yard.

f. Those photographs were sent to Mr. Moses by Traton's attorneys.

g. On October 14, 2005, Mr. Moses offered to dismiss this case ifTraton would meet the following requests:50

(1) Issue an apology for failing to respond to Mr. Moses' phonecalls 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 Mr. Moses' yard; and(4) Rescind its accusation that the yard was not being properly

maintained.

h. Traton rejected Mr. Moses' offer.51i. During the course of discovery, Traton served on Mr. Moses a

and the corresponding right to exclude others from using the property).46 Han Affidavit, 37; Pekor Affidavit, 5 and 6; DeWoskin Affidavit, 5 and 6.47 Han Affidavit, 38.48 Han Affidavit, 39.49 Han Affidavit, 40.50 Moses Affidavit, 15.51 Moses Affidavit, 16.


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Request for Entry onto Land for Inspection.52 j. Mr. Moses denied Traton's request.53

k. In a second attempt to dispose of this matter, Mr. Moses offered todismiss the lawsuit if Traton was "agreeable to making reasonableefforts to reach a mutually-acceptable resolution."54

l. Specifically, Mr. Moses, through counsel, stated: "[u]pon receivingconfirmation that Traton is willing to dialogue with [Mr. Moses],[Mr. Moses] has agreed to dismiss the action without prejudice."55

m. No other demands were made in conjunction with Mr. Moses'request for a reasonable dialogue.56

n. Traton refused to rationally discuss this matter with Mr. Moses.57

o. Despite Traton's ability to stop the continued ingress onto Mr.Moses' property by Traton's agents, Traton continued to approve ofthe unauthorized entries.

p. Traton never disciplined any of its agents for entering onto Mr.Moses' property.

q. Traton never disciplined any of its agents for damaging theproperty.

As such, Plaintiff's counsel concluded that there was a reasonable factual basis for

continuing to advance this lawsuit.58

Upon confirming that Plaintiff had a reasonable basis for continuing to advance this

lawsuit, Plaintiff's lead counsel wrote a memorandum to his superiors at McGuireWoods with the

substance of those findings.59 The senior attorney at McGuireWoods, to whom the memorandum

was directed, wrote "we are of the view that the litigation described in this matter would not

constitute abusive litigation."60 Despite the assessment that there was a reasonable basis in fact

and law for continuing with this lawsuit, McGuireWoods chose to withdraw from the lawsuit

52 Moses Affidavit, 17.53 Moses Affidavit, 18.54 Moses Affidavit, 19.55 Moses Affidavit, 20.56 Moses Affidavit, 21.57 Moses Affidavit, 22.58 Han Affidavit, 41.59 Han Affidavit, 42.


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because this matter did not align with the financial goals or business objectives of

McGuireWoods.61 Upon withdrawal by McGuireWoods, Plaintiff engaged the law firm of Pekor

& DeWoskin, LLP ("Pekor & DeWoskin") as counsel for this matter. The partners at Pekor &

DeWoskin independently reviewed the facts and relevant law relating to this matter.62

This matter was also discussed with at least four (4) other attorneys,63 who agreed that

this case was meritorious.64 All of the above-recited facts, which were reviewed by Plaintiff's

counsel and confirmed by Defendants' own admissions, were: (i) recited in Plaintiff's Motion for

Summary Judgment; (ii) recited in Plaintiff's Opposition to Defendants' Cross-Motion for

Summary Judgment; and (iii) presented to this Court during oral arguments on September 8,

2006.65 Additionally, all of the above-recited law, which was researched by Plaintiff's counsel,

was brought to the attention of this Court in: (i) Plaintiff's Motion for Summary Judgment; (ii)

Plaintiff's Opposition to Defendants' Cross-Motion for Summary Judgment; and (iii) oral

arguments.66

On September 8, 2006, counsel for Defendants approached Plaintiff and counsel for

Plaintiff, and in their presence stated that Plaintiff's thoroughness in utilizing discovery during

60 Han Affidavit, 43.61 Han Affidavit, 46.62 Affidavit of Charles B. Pekor in Support of Plaintiff's Memorandum in Opposition toDefendants' Motion for Attorneys' Fees and Expenses of Litigation ("Pekor Affidavit"), 5, 6,

and 7. Affidavit of Daniel E. DeWoskin in Support of Plaintiff's Memorandum in Opposition toDefendants' Motion for Attorneys' Fees and Expenses of Litigation ("DeWoskin Affidavit"), 5,6, and 7.63 Han Affidavit, 55.64 Han Affidavit, 56; Pekor Affidavit, 8; DeWoskin Affidavit, 8.65 Han Affidavit, 57, 58, 59, and 60; Pekor Affidavit, 9; DeWoskin Affidavit, 9.66 Han Affidavit, 57, 58, 59, and 60; Pekor Affidavit, 9; DeWoskin Affidavit, 9.


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the course of this litigation was impressive,67 so much so that counsel for Defendants indicated

that he wanted to refer a case to Plaintiff's counsel so that it could be handled in similar fashion.68

This Court granted Defendants' Cross-Motion for Summary Judgment on October 9,

2006.69 Plaintiff timely filed a Motion for Reconsideration on October 19, 2006,70 and also

timely filed an appeal with the Supreme Court of Georgia by filing with this Court a Notice of

Appeal on November 1, 2006.71 In addition to the law and facts recited in Plaintiff's Motion for

Summary Judgment and Plaintiff's Opposition to Defendants' Cross-Motion for Summary

Judgment, Plaintiff also relied on at least the following statutes and legal precedent to support

Plaintiff's Motion for Reconsideration:72 OCGA 51-9-2;73 OCGA 51-9-3;74 OCGA 44-5-

167;75 OCGA 44-5-165;76 and Friendship Baptist Church, Inc. v. West.77

That Motion for Reconsideration is currently pending before this Court.

To this day, neither Mr. Pekor nor Mr. DeWoskin, either individually or as a corporate

67 Han Affidavit, 62; Moses Affidavit, 28; Pekor Affidavit, 10; DeWoskin Affidavit, 10.68 Han Affidavit, 63; Moses Affidavit, 29; Pekor Affidavit, 11; DeWoskin Affidavit, 11.69 Han Affidavit, 65; Pekor Affidavit, 13; DeWoskin Affidavit, 13.70 Han Affidavit, 66; Pekor Affidavit, 14; DeWoskin Affidavit, 14.71 Han Affidavit, 69; Pekor Affidavit, 17; DeWoskin Affidavit, 17.72 Han Affidavit, 68; Pekor Affidavit, 15 and 16; DeWoskin Affidavit, 15 and 16.73 "The bare right to possession of lands shall authorize their recovery by the owner of such right,as well as damages for the withholding of such right."74 "The bare possession of land shall authorize the possessor to recover damages from any personwho wrongfully interferes with such possession in any manner."75 "Possession under a duly recorded deed will be construed to extend to all the contiguousproperty embraced in the deed."76 "Actual possession of lands may be evidenced by enclosure, cultivation, or any use andoccupation 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."77 265 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.").


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entity, has been served with a notice under OCGA 51-7-84.78

B. Facts that were Recited in Plaintiff's Motion for Summary Judgment

The following facts, which were supported by evidence of record,79

were presented to this

Court, which was required to view these facts in the light most favorable to Plaintiff, who was

the non-moving party on Defendants' Cross-Motion for Summary Judgment.

On May 27, 2004, Plaintiff purchased his home from one of the Traton entities

(hereinafter collectively referred to as "Traton").80 Plaintiff's home is situated within the

Lakefield Manor subdivision.81 Traton is the developer for the Lakefield Manor subdivision.82

Since the purchase of his home, Plaintiff has always maintained immaculate care of the lawn that

is attached to his home,83 including the right-of-way that is part of his yard.84 The right-of-way is

visibly indistinguishable from his recorded lot, and contiguous with Plaintiff's recorded lot.85

Subsequent to Plaintiff's purchase of his home, contractors delivered additional materials

78

Pekor Affidavit, 4; DeWoskin Affidavit, 4.79 Transcript of Motions Hearing ("T."), p. 44, lines 1-5 ("44:1-5").80T. 4:1-4; T. 14:6-7 (Letter from Traton's Attorney, December 8, 2005, Attached to Plaintiff's

Motion for Summary Judgment as Exhibit A).81T. 4:1-4; T. 14:8-9 (Admitted by Defendant; see, Complaint and Answer, 28, Attached to

Plaintiff's Motion for Summary Judgment as Exhibits B and C). See, also, Plaintiff's FirstRequest 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

Exhibits D and E.82T. 4:6-9; T. 14:9-12 (Admitted by Defendant, Plaintiff's Second Request for Admissions toDefendant Traton Corp. and Traton Corp.'s Amended Responses and Objections to Plaintiff's

Second Request for Admissions (collectively "Traton's Second Admissions"), 17, Attached toPlaintiff's Motion for Summary Judgment as Exhibits F and G).83T. 19:2-4; T. 58:11-22 (Affidavit of Christopher Moses in Support of Plaintiff's Opposition toDefendants' Motion to Dismiss ("First Moses Affidavit"), 19 and 20).84T. 61:8-9 (The right of way extends thirteen (13) feet beyond the curb into Appellant's yard).85T.58:11-12; T. 65:21 (Order, 20 ("right-of-way adjacent to his property"), 23, and 28

("right-of-way adjoining Plaintiff's property")).


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to construction sites within the Lakefield Manor subdivision.86 Given the ongoing construction

within the Lakefield Manor subdivision, Traton also functions as the Home Owners' Association

(HOA).87

During that construction process, construction trucks repeatedly drove over Plaintiff's

yard, thereby damaging the yard.88 Plaintiff complained to Traton about damage to his yard,89

and requested Traton to discontinue driving over Plaintiff's property.90 In fact, Plaintiff called

Traton on more than one occasion,91 but Traton did not return Plaintiff's phone calls.92

Since Traton did not return Plaintiff's phone calls,93 Plaintiff filed a grievance against

Traton, using Traton's Internet form.94 On behalf of Traton, Mr. Rick Foster replied by email95

and copied one or more officers of Traton in his reply.96 In that email, Mr. Foster expressly

stated that Traton would not fix the yard.97 Adding insult to injury, in addition to refusing to

repair the damage, Traton cited Plaintiff's damaged yard as being in violation of the subdivision

86T. 4:10-13; T. 14:12-14 (Admitted by Defendant, Traton's First Admissions, 5).87T. 4:6-9; T. 14:14-21 (Traton's Second Admissions, 60). See, also,Declaration of

Covenants, Conditions and Restrictions for Lakefield Manor Subdivision ("Covenant") (statingthat the Declarant is Poston Properties, Inc., which is an affiliate of Traton Corp), Attached to

Plaintiff's Motion for Summary Judgment as Exhibit H.88T. 4:13-17; T. 14:21-23 (Admitted by Defendant, Traton's Second Admissions, 95 through

103).89 Admitted by Defendant, Traton's Second Admissions, 24.90T. 15:1-4 (Admitted by Defendant, Traton's First Admissions, 15).91T. 4:22-25; T. 5:19-21; T. 15:5-7 (Admitted by Defendant, Traton's First Admissions, 18).92T. 5:20-21; T. 15:5-7 (Admitted by Defendant, Traton's First Admissions, 19).93T. 15:8-10 (Admitted by Defendant, Traton's First Admissions, 19).94T. 15:8-10 (Admitted by Defendant, Plaintiff's First Request for Admissions to DefendantRick Foster and Defendant Rick Foster's Responses to Plaintiff's First Request for Admissions(collectively, "Foster's First Admissions"), 15, Attached to Plaintiff's Motion for Summary

Judgment as Exhibits I and J).95T. 15:11-13 (Admitted by Defendant, Foster's First Admissions, 20) (First Moses Affidavit, 11-15).96T. 15:11-13 (Admitted by Defendant, Foster's First Admissions, 21).


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Covenant.98 In other words, Traton damaged Plaintiff's yard, and then cited that very damage as

a violation of the Covenant.

Given Traton's unreasonable posture, Plaintiff filed a complaint with the Better Business

Bureau ("BBB"),99 in which Plaintiff expressly noted the destruction of his yard.100 Rather than

calling Plaintiff to discuss these issues, Traton responded to Plaintiff through its attorneys,101 and

demanded that Plaintiff stop contacting Traton.

Since Traton neither promised to fix the damage that it had caused, nor promised to

refrain from further entering onto Plaintiff's property, Plaintiff had no other option but to seek

legal recourse. As such, Plaintiff filed this lawsuit in Cobb County Superior Court on October

13, 2005.102 As a courtesy, a copy of the Complaint was emailed to Traton's attorney on October

13, 2005,103 and Traton was aware of this lawsuit by October 14, 2005.104

Despite being aware of this lawsuit, and despite knowing that the subject-matter of this

lawsuit included damage to Plaintiff's yard,105 Traton nevertheless directed its agents to enter

onto the damaged portion of the yard106 and do further damage to the yard.107 Traton

97T. 15:14-15 (Admitted by Defendant, Foster's First Admissions, 22).98T. 6:11-17; T. 11:16-18; T. 15:16-21 (Admitted by Defendant, Traton's Second Admissions,

25 and 27 through 55) (First Moses Affidavit, 4-8).99T. 5:21-23; T. 15:22-23 (Admitted by Defendant, Traton's First Admissions, 31).100T. 5:23-25 (Admitted by Defendant, Traton's Second Admissions, 116 through 118).101T. 6:2-3; T. 15:23-25 (Admitted by Defendant, Traton's First Admissions, 33).102T. 7:9-10; T. 15:25-16:1 (Admitted by Defendant, Traton's First Admissions, 34). See, also,Complaint.

103T. 7:10-12; T. 16:2-3 (Admitted by Defendant, Traton's First Admissions, 35).104T. 7:17-19 (Admitted by Defendant, Traton's First Admissions, 36).105T. 11:19-12:5; T. 15:3-8. See, Defendants' Request for Entry Onto Land to Inspect, Attached

to Plaintiff's Motion for Summary Judgment as Exhibit K.106T. 11:19-12:5; T. 15:3-8 (Admitted by Defendant, Traton's Second Admissions, 133through 138). See, also, Letter from Traton, January 13, 2006, Attached to Plaintiff's Motion for

Summary Judgment as Exhibit L ("Traton directed that an individual stand in the grass allegedly


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photographed the subsequent entry and the use of their lawn equipment on the damaged yard.108

Those photographs were sent to Plaintiff by Traton's attorneys.109

Despite Traton's egregious behavior and lousy customer service, Plaintiff nevertheless

attempted to reasonably dispose of this matter. Specifically, on October 14, 2005, Plaintiff

offered to dismiss this case if Traton would meet the following requests:

(1) Issue an apology for failing to respond to Plaintiff's phone 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 Plaintiff's yard; and(4) Rescind its accusation that the yard was not being properly maintained.110

Traton rejected Plaintiff's offer. Given Traton's refusal to reasonably resolve this matter,

Plaintiff initiated discovery.

During the course of discovery, Traton served on Plaintiff a Request for Entry onto Land

for Inspection.111 In other words, recognizing that Plaintiff was in possession of the land, and

had the right to exclude others from entering onto the land, Traton officially requested

permission from Plaintiff to enter onto Plaintiff's property. Plaintiff denied Traton's request.

damaged to photograph the degree of 'damage' . . .").107T. 11:19-12:5; T. 18:4-19:17. See, Pictures from Traton, Attached to Plaintiff's Motion for

Summary Judgment as Exhibit M (showing Traton agents mowing Plaintiff's lawn). See, also,Email Message from Traton to its Attorney, October 19, 2005, Attached to Plaintiff's Motion for

Summary Judgment as Exhibit N ("The first six pictures are before pictures taken 10/14/05, thelast 9 were taken this morning." A comparison of the before and after pictures shows that

Traton's agent tampered with the evidence and manipulated the very subject-matter of thislitigation).108T. 12:6-7; T. 17:24-18:1; T. 18:4-19:17 (Admitted by Defendant, Traton's Second

Admissions, 133 through 138).109T. 12:7-9; T. 18:1-19:17 (Admitted by Defendant, Traton's Second Admissions, 143).110See, Email Message to Traton, October 14, 2005, Attached to Plaintiff's Motion for Summary

Judgment as Exhibit O.111See, Defendants' Request for Entry Onto Land to Inspect, Attached to Plaintiff's Motion for


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In a second attempt to dispose of this matter, Plaintiff offered to dismiss the lawsuit if

Traton was "agreeable to making reasonable efforts to reach a mutually-acceptable resolution."112

Specifically, Plaintiff, through counsel, stated: "[u]pon receiving confirmation that Traton is

willing to dialogue with [Plaintiff], [Plaintiff] has agreed to dismiss the action without

prejudice."113 No other demands were made in conjunction with Plaintiff's request for a

reasonable dialogue. Despite Plaintiff's generous offer, Traton refused to rationally discuss this

matter with Plaintiff, 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 . . . ."114

Despite the ongoing discovery, in yet another effort to resolve this without further

escalating costs, Plaintiff presented his third settlement offer to Traton on February 13, 2006.115

In that offer, Plaintiff requested the following:

(1) Face-to-face meeting with Traton officers (Bill Poston, Dale Bercher, MillburnPoston, etc.);

(2) Admission of wrong by Traton, and issue written apology to Plaintiff;

(3) Repair of damaged yard to Plaintiff'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).116

Plaintiff's third offer was rejected.117 Thus, rather than rationally dialoguing with

Summary Judgment as Exhibit K.112 Admitted by Defendant, Traton's Second Admissions, 152.113 Admitted by Defendant, Traton's Second Admissions, 153.114 Email Exchange between Traton Officers, December 8, 2005, Attached to Plaintiff's Motionfor Summary Judgment as Exhibit P.115 February 13, 2006, Email from Plaintiff to Traton, Attached to Plaintiff's Motion for

Summary Judgment as Exhibit S.116 February 13, 2006, Email from Plaintiff to Traton.117 February 27, 2006, Email from Traton to Plaintiff, Attached to Plaintiff's Motion for

Summary Judgment as Exhibit T.


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Plaintiff, Traton deliberately chose to continue with discovery, which Traton certified would cost

an estimated $2,950,000.00.118

Despite Traton's ability to stop the continued ingress onto Plaintiff's property by Traton's

agents, Traton continued to approve of the unauthorized entries. Traton never disciplined any of

its agents for entering onto Plaintiff's property.119 Traton never disciplined any of its agents for

damaging the property120 (i.e., running over a portion of Plaintiff's property with a lawn mower

and further damaging the yard).

Although Traton instructed its agents to enter onto Plaintiff's property:121

(1) Traton does not assume responsibility for the actions of its employees.122(2) Traton does not assume responsibility for the actions of its agents.123(3) Traton does not assume responsibility for the actions of its contractors.124

In fact, it appears that Traton refuses to accept responsibility for anything.

Rather than rationally discussing this matter and seeking prompt resolution, Traton

continued to press forth with this lawsuit, despite the numerous opportunities that were provided

to Traton to resolve this issue. In doing so, Traton continued to stall and obstruct discovery. For

example, in responding to discovery requests, Traton indicated that it "lacks sufficient knowledge

to admit or deny" who are its own corporate officers.125 In other words, Traton's position, at one

118T. 21:12-21 (Defendants' Response to Plaintiff's Motion to Add Defendants and AmendComplaint, pp. 2-3 (Traton's attorneys certified to this lower court that compliance withdiscovery was "estimated to cost $2,950,000.00"), Attached to Plaintiff's Motion for Summary

Judgment as Exhibit U).

119T. 21:22-25 (Admitted by Defendant, Traton's First Admissions, 69 and 74).120T. 21:25-22:2 (Admitted by Defendant, Traton's First Admissions, 80).121T. 22:2-7. See, Foster's First Admissions, 30 through 37.122T. 22:2-7 (Admitted by Defendant, Traton's First Admissions, 83).123T. 22:2-7 (Admitted by Defendant, Traton's First Admissions, 85).124T. 22:2-7 (Admitted by Defendant, Traton's First Admissions, 87).125 Admitted by Defendant, Plaintiff's Third Request for Admissions to Defendant Traton Corp.,


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time, was that it did not even know the identity of its own officers. This was despite the fact that

the officers for various Traton entities were listed on the website for the Georgia Secretary of

State,126 as well as on Traton Corp.'s tax statements.127 Additionally, Traton's attorneys engaged

in underhanded tactics, which formed the bases of a grievance filed with the State Bar of

Georgia.128

As of today: (a) Traton has not rescinded its threat to impose monetary fines on Plaintiff

for the damaged property; (b) Traton has refused to refrain from entering onto Plaintiff's

property; and (c) Traton has refused to repair the damage done to Plaintiff's property.

III. LEGAL AUTHORITY

Georgia's statute provides that:

No attorney or party shall be assessed attorney's fees as to anyclaim or defense which the court determines was asserted by said

attorney or party in a good faith attempt to establish a new theoryof law in Georgia if such new theory of law is based on somerecognized precedential or persuasive authority.129

Moreover, attorneys' fees are inappropriate when, "even assuming that the authority upon

which appellee relied was the more persuasive, it cannot be said that the authority upon which

and Traton Corp.'s Responses and Objections to Plaintiff's Third Request for Admissions(collectively "Traton's Third Admissions"), 2 through 12.126 Admitted by Defendant, Traton's Second Admissions, 104 through 109.127 Tax Statements of Traton Corp. for 2005, attached to Plaintiff's Motion for Summary

Judgment as Exhibit V.128See, Memorandum of Grievance Against Jeffrey Daxe, filed with the Office of the General

Counsel of the State Bar of Georgia, March 1, 2006, attached to Plaintiff's Motion for Summary

Judgment as Exhibit W. See, also, Rebuttal Memorandum: Grievance Against Jeffrey Daxe,filed with the State Bar of Georgia, April 6, 2006, attached to Plaintiff's Motion for Summary

Judgment as Exhibit X.129 OCGA 9-15-14(c).


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appellant relied was entirely unpersuasive."130 Thus, a prevailing party, even on summary

judgment, "is not perforce entitled to an award of attorney fees under [OCGA 9-15-14(a)]."131

Additionally, OCGA 9-15-14 does not mandate an award of attorneys fees, even when a party

prevails on a claim for abusive litigation.132 As such, attorneys fees are proper only "upon a

proper determination,"133 and the court "must determine whether the claim asserted below either

had some factual merit or presented a justiciable issue of law."134

Here, as provided in greater detail below, Plaintiff has provided a reasonable basis in law

for advancing this matter. As such, the court cannot find that "the authority upon which

[Plaintiff] relied was entirely unpersuasive."135 Additionally, all of Plaintiff's facts have been

confirmed by Defendants' admissions injudicio. As such, the court cannot find that Plaintiff's

claims were groundless. Moreover, since counsel for Defendants have indicated that Plaintiff's

conduct in litigating this matter has been commendable, Plaintiff cannot be found to have

initiated or continued this action in a harassing manner. Nor can Plaintiff be found to have

unnecessarily expanded this action by any improper conduct, since much of Plaintiff's discovery

was necessitated by Defendants' own conduct during the course of this litigation.

As such, an award of attorneys' fees to Defendants under OCGA 9-15-14 would be

130Hill v. All Seasons Florist, Inc., 201 Ga. App. 870 (1991).131Hyre v. Denise, 214 Ga. App. 552 (1994).132Deljou v. Sharp Boylston Management Co., 194 Ga. App. 505 (1990), internal citations andquotations omitted ("[T]he section does not mandate an award whenever a party prevails on an

abusive litigation claim. Thus, the jury verdict awarding damages on Deljou's abusive litigationclaim, even if reduced to judgment, did not mandate the award of attorney fees. Accordingly, thetrial court did not err by refusing to award attorney fees merely because Deljou prevailed on theabusive litigation claim.").133Deljou v. Sharp Boylston Management Co., 194 Ga. App. 505 (1990).134Moore v. Harris, 201 Ga. App. 248 (1991);Brown v. Kinser, 218 Ga. App. 385 (1995).135Hill v. All Seasons Florist, Inc., 201 Ga. App. 870 (1991).


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improper.

1. Plaintiff's Claims are Based on Georgia Statutes and Established

Legal Precedent

Plaintiff's claims are based on Georgia statutes and established legal precedent, and,

therefore, have a reasonable basis in law. Specifically, Plaintiff relied on OCGA 51-9-3,136

which requires only "bare possession" to bring a lawsuit for trespass to lands. According to

OCGA 44-5-165,137 possession can be evidenced by cultivation. Moreover, when the deed to

property is duly recorded, then, according to OCGA 44-5-167,138 possession extends to all

property that is contiguous to the deeded property.

Even if the damage is done to a right-of-way, one can bring an action for trespass under

OCGA 51-9-10.139 As the appellate courts have held, "owners of property contiguous to a

highway [which is a right-of-way] own rights which do not belong to the public generally."140

Thus, an individual's right of action is complete "if his 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

a direct consequence"141 of the invasion and "he may recover to the extent of the injury

sustained."142

136 "The bare possession of land shall authorize the possessor to recover damages from anyperson who wrongfully interferes with such possession in any manner."137 "Actual 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 claimantand so exclusive as to prevent actual occupation by another."138 "Possession under a duly recorded deed will be construed to extend to all the contiguousproperty embraced in the deed."139 "The unlawful interference with a right of way or a right of common constitutes a trespass tothe party entitled thereto."140Clayton County v. Billups Eastern Petroleum Co., 104 Ga. App. 778 (1961).141Billups, 104 Ga. App. 778 (1961).142Billups, 104 Ga. App. 778 (1961).


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Thus, Plaintiff did not need to show ownership in order to maintain his action for

trespass. Rather, Plaintiff simply needed to produce evidence of his possession of the real

property. Insofar as Plaintiff's action is based on statutes and established legal precedent, this

Court cannot find that "there was a complete absence of any justiciable issue of law"143 or that

Plaintiff's claims "lacked substantial justification."144 Therefore, this Court cannot award

attorneys fees to Defendants under OCGA 9-15-14(a).

2. Plaintiff's Claims are Based on Facts that have been Admitted in

Judicio by Defendants

Plaintiff presented evidence to this Court to show that Plaintiff had possession of the

property at issue in this litigation. 145 To show possession, Plaintiff proffered the following

evidence to this Court, much of which were admitted in judicio by Defendants:

(1) Plaintiff's affidavit, in which Plaintiff notes his immaculate maintenance of his

yard, including the damaged property.146 This fact shows Plaintiff's maintenanceand cultivation of the yard, which is evidence of actual possession.147

(2) The acknowledgement of the Homeowners' Association that the damaged land isPlaintiff's land.148 This acknowledgement evidences that Plaintiff actually

possessed the damaged land (i.e., "your land").149

(3) Defendant's acknowledgement that Plaintiff's neighbors considered the damaged

143 OCGA 9-15-14(a).144 OCGA 9-15-14(b).145 Han Affidavit, 57 through 60; Moses Affidavit, 6 through 12.146 Affidavit of Christopher Moses in Support of Plaintiff's Opposition to Defendants' Motion to

Dismiss, 19-20.147 "Actual 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 claimantand so exclusive as to prevent actual occupation by another."148 Traton's Second Admissions, 25 and 27-55.149 Almost every English-language dictionary defines the word "your" to mean "of or relating to

you or yourself or yourselves especially as possessor or possessors" (emphasis supplied). Assuch, when Defendants' consistently accused Plaintiff of failing to maintain "your" property, it is

undisputed evidence of Plaintiff's possession of the property in dispute.


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property to be Plaintiff's property.150 The neighbors' belief that the damagedproperty was Plaintiff's property is evidence of actual possession.

(4) Defendant's own accusations that the damaged property was Plaintiff's property("your yard").151 Defendants' accusations evidence that Plaintiff actually

possessed the damaged property.

(5) Defendants' Request for Entry Upon Land for Inspection, in which Defendants

and counsel for Defendants requested permission from Plaintiff to enter upon thedamaged land for inspection.152 This fact evidences Defendants' acknowledgmentthat permission was necessary to enter onto the land, thereby evidencing Plaintiff's

possession of the land.

(6) Plaintiff's refusal to grant access to the land evidences Plaintiff's possession of the

land.

(7) The actions of the parties to the Covenant, namely, the threat by the Homeowners'Association to impose monetary fines on Plaintiff if Plaintiff failed to maintainthe right-of-way.153 This fact evidences the parties' intent, that the Covenant

impose an obligation to Plaintiff to maintain the right-of-way.154

In addition to these particular facts, all of the other facts, recited above and largely

admitted in judicio by Defendants, provide the factual bases for Plaintiff's claims. Since

Plaintiff's action is based on such undisputed facts, this Court cannot find that "there was a

complete absence of any justiciable issue of . . . fact"155 or that Plaintiff's action "lacked

substantial justification."156 Thus, an award of attorneys' fees to Defendants under OCGA 9-

15-14(a) would be improper.

150 Traton's Second Admissions, 25, 55, 72, 78, 95, and 100-103.151 Traton's Second Admissions, 25, 55, 72, 78, 95, and 100-103.152 Defendants' Request for Permission to Enter Upon Land for Inspection.153 Traton's Second Admissions, 25 and 27-55.154Lowry v. Norris Lake Shores Development Corp., 231 Ga. 549 (1974) ("Covenants will be

enforced according to the intent of the parties").155 OCGA 9-15-14(a).156 OCGA 9-15-14(b).


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3. Pre-filing Investigations by Plaintiff's Counsel Show the Objective

Reasonableness of Plaintiff's Claims

The pre-filing investigation by Plaintiff's counsel shows the objective reasonableness of

Plaintiff's claims. In particular, prior to filing the Complaint in this lawsuit, counsel for Plaintiff

investigated the facts and researched the legal issues related to this matter,157 discussed this

matter with several other attorneys,158 and spent no less than three (3) days confirming the facts

relayed to counsel by Plaintiff.159 The facts, which Plaintiff's counsel reviewed and were

subsequently admitted by Defendants during the course of this litigation,160 are recited above.

Plaintiff's counsel also spent a considerable amount of time reviewing the relevant

statutes and applicable legal precedent relating to the tort of trespass161 including statutes,162

various legal precedents,163 and a treatise on torts.164 The law, upon which Plaintiff relied in

bringing this action,165 is recited above.

Given the objective reasonableness of Plaintiff's claims, an imposition of attorneys' fees

against Plaintiff or Plaintiff's counsel under OCGA 9-15-14 would be improper.

4. Evidence Obtained During the Course of Litigation Showed thatPlaintiff's Claims were Meritorious

During the course of litigation, Plaintiff obtained conclusive evidence from Defendants to

157 Han Affidavit, 4.158 Han Affidavit, 5.159 Han Affidavit, 6.160 Han Affidavit, 9.161 Han Affidavit, 10.162 Han Affidavit, 11.163 Han Affidavit, 12.164Georgia Law of Torts, Thomson-West Publishing. Han Affidavit, 13.165 Han Affidavit, 15.


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support Plaintiff's claims.166 Insofar as Defendants' own admissions167 supported Plaintiff's

claims, this Court cannot find that Plaintiff's claims were without merit. As such, attorneys' fees

under OCGA 9-15-14 would be improper.

5. Plaintiff's Conduct in Litigating this Matter was Reasonable

Plaintiff's conduct in litigating this case was reasonable, as evidenced by comments from

Defendants' counsel and exchanges with opposing counsel.

i. Statements by Counsel for Defendants Reveal thatPlaintiff's Conduct in Litigating this Matter was

Commendable

Statements by opposing counsel reveal the reasonableness of Plaintiff's conduct during

the course of this lawsuit. Specifically, on September 8, 2006, counsel for Defendants

approached Plaintiff and counsel for Plaintiff, and in their presence stated that Plaintiff's

thoroughness in utilizing discovery during the course of this litigation was impressive,168 so

much so that counsel for Defendants indicated that he wanted to refer a case to Plaintiff's counsel

so that it could be handled in similar fashion.169

In view of such comments from opposing counsel, this Court cannot find that Plaintiff's

conduct was improper. Thus, an award of attorneys' fees to Defendants under OCGA 9-15-14

would be improper.

ii. Much of the Discovery Propounded by Plaintiff wasNecessitated by Defendants' Behavior During the Course of

this Litigation

Much of the discovery that was propounded by Plaintiff was necessitated by Defendants'

166 Han Affidavit, 39.167 Han Affidavit, 40.168 Han Affidavit, 62; Moses Affidavit, 28; Pekor Affidavit, 10; DeWoskin Affidavit, 10.


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behavior during the course of this litigation. This Court should "consider as one factor whether

the opposing party or opposing counsel also contributed to the unnecessary expansion of the

proceedings by any relevant form of improper conduct."170

For example, early on in the litigation, Plaintiff offered to dismiss the lawsuit if Traton

was "agreeable to making reasonable efforts to reach a mutually-acceptable resolution."171

Specifically, Plaintiff, through counsel, stated: "[u]pon receiving confirmation that Traton is

willing to dialogue with [Plaintiff], [Plaintiff] has agreed to dismiss the action without

prejudice."172 No other demands were made in conjunction with Plaintiff's request for a

reasonable dialogue. Despite Plaintiff's generous offer, Traton refused to rationally discuss this

matter with Plaintiff, 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 . . . ."173 Insofar as

Defendants deliberately chose to continue with discovery, rather than rationally discussing this

with Plaintiff, Defendants must shoulder the blame for unnecessarily expanding these

proceedings.

Additionally, the exchanges with opposing counsel show that Defendants deliberately

expanded the proceedings by their gamesmanship in discovery. For example, on January 6,

2006, counsel for Plaintiff received Defendants' Second Letter indicating Defendants' belief that

the discovery requests were motivated by harassment.174 On that same day, Plaintiff's counsel

169 Han Affidavit, 63; Moses Affidavit, 29; Pekor Affidavit, 11; DeWoskin Affidavit, 11.170Hyre v. Denise, 214 Ga. App. 552 (1994)171 Admitted by Defendant, Traton's Second Admissions, 152.172 Admitted by Defendant, Traton's Second Admissions, 153.173 Email Exchange between Traton Officers, December 8, 2005, Attached to Plaintiff's Motion

for Summary Judgment as Exhibit P.174 Han Affidavit, 20.


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sent his Email Response, explaining in excruciating detail why the requests were both relevant

and not unduly burdensome.175 In that Email Response, Plaintiff's counsel also indicated that

Defendants' conduct in failing to properly respond to Plaintiff's discovery requests was the cause

of Plaintiff's subsequent discovery requests. Specifically, Plaintiff's counsel noted as follows:

We have propounded our requests as a result of Traton's failure orrefusal to properly answer our First Request for Admissions.Specifically, Traton has denied that Mr. Moses has complained

about the destruction of his yard. Additionally, in Traton's answersand responses, Traton has repeatedly alleged that Mr. Moses'questions and requests are overly broad and vague.

In an effort to avoid Traton's objections that our requests are overly

broad and vague, we have broken down each request into verynarrowly-focused questions and requests. It is inevitable that sucha breakdown will result in numerous questions. However, each

request seeks a fact or opinion that is relevant to the claims againstTraton. Hopefully, the questions in the Second Request forAdmissions have now been crafted to specifically target various

facts that Mr. Moses hopes to conclusively establish, therebyremoving those issues from trial.

Given the specificity of each Request for Admission, it should takeless than a minute for Traton Corp. to answer each question. In

short, it should take less than four (4) hours to complete theresponses for the Request for Admissions. We hardly considerfour hours to be unduly burdensome to Traton, especially sinceTraton is responsible for escalating this case to its current status.

Also, given that it will likely take more time to file a motion for aprotective order, we are puzzled as to why Traton would notsimply spend four hours to answer the simple and straightforward

requests to admit.176

Ignoring Plaintiff's explanation, Defendants uniformly objected to all of Plaintiff's

requests for admissions and filed a Motion for Protective Order,177 to which Plaintiff served a

175 Han Affidavit, 22.176 Han Affidavit, 23.177 Han Affidavit, 24.


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Rule 6.4 Letter, attaching a draft copy of Plaintiff's Opposition to Defendants' Motion for

Protective Order and providing substantially the same reasons as Plaintiff's Email Response.178

Shortly thereafter, Defendants withdrew their Motion for Protective Order.179 Defendants have,

during the course of this litigation, twice filed and withdrew motions,180 which Defendants knew

were without merit.

Yet another example of Defendants' dilatory tactics is shown by Defendants' responses to

Plaintiff's requests for admissions. In particular, in response to Plaintiff's request for admissions,

Defendant indicated that it "lacks sufficient knowledge to admit or deny" who are its own

corporate officers.181 In other words, Defendants' position, at one time, was that it did not even

know the identity of its own officers. This was despite the fact that the officers for Defendant

were listed on the website for the Georgia Secretary of State,182 as well as on Defendant's own

tax statements.183 Such obstructive and improper responses by Defendants forced Plaintiff to

aggressively pursue the needed evidence by continuing to propound discovery requests.

Plaintiff also propounded interrogatories, which were substantively identical to those

propounded by Defendants. Rather than properly responding, Defendants objected and stated

that those interrogatories, which were substantively identical to Defendants' interrogatories, were

improper. This forced Plaintiff to file a motion to compel, which has been declared moot by this

178 Han Affidavit, 25.179 Han Affidavit, 26.180 The other motion, which Defendants withdrew, was Defendants' Motion to Dismiss.181 Admitted by Defendant, Plaintiff's Third Request for Admissions to Defendant Traton Corp.,and Traton Corp.'s Responses and Objections to Plaintiff's Third Request for Admissions

(collectively "Traton's Third Admissions"), 2 through 12.182 Admitted by Defendant, Traton's Second Admissions, 104 through 109.183 Tax Statements of Traton Corp. for 2005, attached to Plaintiff's Motion for Summary

Judgment as Exhibit V.


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Court and is currently being appealed.

Defendants also note the bar grievance filed by Plaintiff against counsel for

Defendants.184 However, the substance of the bar grievance further evidences the dilatory tactics

of Defendants' counsel, which unnecessarily expanded these proceedings. Specifically, the basis

of the bar grievance was the failure of Defendants' counsel to properly produce documents, which

had been expressly promised in writing by counsel for Defendants. Had counsel for Defendants

properly kept his promise, then Plaintiff would not have felt compelled to file such a

grievance.185

These, and numerous other examples, show the reasonableness of Plaintiff's actions and

the unreasonableness of Defendants' actions during the course of this litigation. In view of such

dilatory tactics by Defendants' counsel, this Court cannot find that Plaintiff unnecessarily

expanded these proceedings. As such, an award of attorneys' fees to Defendants under OCGA

9-15-14(b) would be improper and must be denied.

IV. CONCLUSION

As shown above, Plaintiff initiated and advanced his claim because:

(a) most, if not all, of Plaintiff's alleged facts were conclusively established by

Defendants' own admissions; and(b) the legal bases for Plaintiff's claims comes from express statutory provisions,

which grant to Plaintiff a right to bring a trespass action if Plaintiff can show bare

possession.

184 Defendants' Motion for Attorneys' Fees, p. 4.185See, Memorandum of Grievance Against Jeffrey Daxe, filed with the Office of the GeneralCounsel of the State Bar of Georgia, March 1, 2006, attached to Plaintiff's Motion for Summary

Judgment as Exhibit W. See, also, Rebuttal Memorandum: Grievance Against Jeffrey Daxe,filed with the State Bar of Georgia, April 6, 2006, attached to Plaintiff's Motion for Summary

Judgment as Exhibit X.


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Defendants continue to misquote Pope v. Pulte Home Corporation,186 which only

addresses ownership, and has no bearing on possession. Thus, Defendants misdirect the Court's

attention from clear statutory provisions, which provide that "bare possession of land shall

authorize the possessor to recover damages from any person who wrongfully interferes with such

possession in any manner."187

Also, Defendants complain about Plaintiff's use of the judicial process when Defendants'

own counsel expressly voiced approval of Plaintiff's use of the judicial process. So much so, that

counsel for Defendants indicated that he wished to refer a case to Plaintiff's counsel to be

handled in like fashion. Additionally, Defendants neglect to mention that Defendants' own

dilatory tactics were the very cause of Plaintiff's refining and propounding such numerous

requests for admissions upon Defendants.

In view of the reasonableness of Plaintiff's position, both legally and factually, and in the

absence of any improper conduct by Plaintiff, Defendants' Motion for Attorneys' Fees must be

DENIED.

186 246 Ga. App. 120 (2000).187 OCGA 51-9-3, emphasis supplied.


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___ December 2006.

Respectfully submitted,

SAM HAN, P.C.

Sam S. Han

Sam S. HanGeorgia Bar Number 322284

SAM HAN, P.C.

330 Bloombridge WayMarietta, GA 30066

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

Charles B. PekorGeorgia Bar Number 570601Daniel E. DeWoskin

Georgia Bar Number 220327

PEKOR & DeWOSKIN, LLC

270 Peachtree Street, NW

Suite 1060Atlanta, GA 30303


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THE SUPERIOR COURT FOR THE COUNTY OF COBB

STATE OF GEORGIA

CHRISTOPHER MOSES ]Plaintiff, ] Civil Action File

v. ]] No.05-1-8395-35

TRATON CORP., et al. ] JURY TRIAL DEMANDEDDefendants. ]

CERTIFICATE OF SERVICE

This is to certify that on this day I served the within and foregoing:

PLAINTIFF'S MEMORANDUM IN OPPOSITION TO

DEFENDANTS' MOTION FOR ATTORNEYS'

FEES AND EXPENSES OF LITIGATION

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

___ December 2006.

Respectfully submitted,

Sam S. Han

Sam S. Han

Georgia Bar Number 322284SAM HAN, P.C.

330 Bloombridge WayMarietta, GA 30066

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

MOSES Memorandum Opposing TRATON Motion for Attorneys Fees FINAL

Documents

Transcript of MOSES Memorandum Opposing TRATON Motion for Attorneys Fees FINAL