THE SUPERIOR COURT FOR THE COUNTY OF COBB STATE OF GEORGIA CHRISTOPHER MOSES Plaintiff, v. TRATON CORP., et al.

Defendants. ] ] ] ] ] ]

Civil Action File No.05-1-8395-35 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) (b) most, if not all, of Plaintiff's alleged facts were conclusively established by Defendants' own admissions; and 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.

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

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

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. b. c.
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On May 27, 2004, Mr. Moses purchased his home from one of the Traton entities (hereinafter collectively referred to as "Traton"). Mr. Moses' home is situated within the Lakefield Manor subdivision. Traton is involved in the development of homes in the Lakefield

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 ("Moses Affidavit"), ¶ 5. 6 Han Affidavit, ¶ 7; Moses Affidavit, ¶¶ 6 through 12. 2

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Manor subdivision. Since the purchase of his home, Mr. Moses has always maintained immaculate care of the lawn that is attached to his home, including the right-of-way that is part of his yard. The damaged property is visibly indistinguishable from his recorded lot, and contiguous, if not overlapping, with Mr. Moses' recorded lot. Subsequent to Mr. Moses' purchase of his home, contractors delivered materials to construction sites within the Lakefield Manor subdivision. Traton was aware that contractors delivered materials to the construction sites within the Lakefield Manor subdivision. Given the ongoing construction within the Lakefield Manor subdivision, Traton also functions as the Home Owners' Association (HOA). Mr. Foster wrote: "As for your [Mr. Moses'] yard issues, simply stated, Traton has fixed your corner many times in the past due to the fact that it seemed reasonable to assume that the developer's large equipment trailers ran over your curb and placed a rut in your grass." Mr. Moses complained to Traton about damage to his yard Mr. Moses requested Traton to discontinue driving over Mr. Moses' property. Mr. Moses called Traton on more than one occasion Traton did not return all of Mr. Moses' phone calls. Mr. Moses filed a grievance against Traton using Traton's Internet form. Mr. Rick Foster replied by email and copied one or more officers of Traton in his reply. In that email, Mr. Foster expressly stated that Traton would not fix the yard. Traton cited Mr. Moses' damaged yard as being in violation of the subdivision Covenant. The HOA and others in the neighborhood consider the damaged yard to be Mr. Moses' yard. Mr. Moses filed a complaint with the Better Business Bureau ("BBB"), in which Mr. Moses expressly noted the destruction of his yard. Rather than calling Mr. Moses to discuss these issues, Traton responded to Mr. Moses through its attorneys, and demanded that Mr. Moses stop contacting Traton.

All of these facts, which formed the bases for Plaintiff's Requests for Admissions to 3

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:16 Lanier et al. v. Burnette et al.;17 Roberts v. Chapman;18 Autry v. Adams;19 and Newman Manufacturing Co. v. Young.20

Han Affidavit, ¶ 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 act of 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 person who 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 in itself or, if done in the ordinary manner, would result in a nuisance; (2) If, according to the employer'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 by express contract upon the employer; (4) If the wrongful act is the violation of a duty imposed by statute; (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 so that an injury results which is traceable to his interference; or (6) If the employer ratifies the unauthorized wrong of the independent contractor." 15 Georgia 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 in that 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[n instrument] 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 . . ."). 4
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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

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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 by mistake, yet the consent is no defense to if the acts done are not within the scope of the license or not 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. 5

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

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Han Affidavit, ¶ 22. 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. 6

precedent: OCGA § 51-9-10;38 Lowry v. Norris Lake Shores Development Corp.;39 Gibson et al. v. Huffman et al.;40 Walker v. Duncan et al.;41 Doughtie et al. v. Dennisson et al.;42 Gibson et al. v. Huffman et al.;43 Clayton County v. Billups Eastern Petroleum Co.;44 and Pope v. Pulte Home Corporation.45

"The unlawful interference with a right of way or a right of common constitutes a trespass to the 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 the parties). 41 236 Ga. 331 (1976) (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 easement acquired 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 in the 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 easement acquired 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 in the 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 a highway 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 way from a locus a quo to the locus ad quem, and from the latter forth to any other spot to which the party 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 the leased property was taken, no physical damages were done to the premises, and the plaintiff makes 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 purposes which 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 injuries to his property need not necessarily be caused by acts amounting to trespass, or by an actual physical invasion of his real estate; but 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 the direct consequence of the construction and use of any public improvement, his right of action is complete, 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 7

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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. b. c. d. Mr. Moses filed this lawsuit in Cobb County Superior Court on October 13, 2005. As a courtesy, a copy of the Complaint was emailed to Traton's attorney on October 13, 2005 Traton was aware of this lawsuit by October 14, 2005. After being put on notice of this lawsuit, Traton agents again entered onto the damaged portion of the yard, and used lawn equipment on the damaged portion of the yard. Traton photographed the subsequent entry and the use of their lawn equipment on the damaged yard. Those photographs were sent to Mr. Moses by Traton's attorneys. On October 14, 2005, Mr. Moses offered to dismiss this case if Traton would meet the following requests:50 (1) Issue an apology for failing to respond to Mr. Moses' 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 Mr. Moses' yard; and (4) Rescind its accusation that the yard was not being properly maintained. Traton rejected Mr. Moses' offer.51 During the course of discovery, Traton served on Mr. Moses a

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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. 8

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Request for Entry onto Land for Inspection.52 Mr. Moses denied Traton's request.53 In a second attempt to dispose of this matter, Mr. Moses offered to dismiss the lawsuit if Traton was "agreeable to making reasonable efforts to reach a mutually-acceptable resolution."54 Specifically, Mr. Moses, through counsel, stated: "[u]pon receiving confirmation that Traton is willing to dialogue with [Mr. Moses], [Mr. Moses] has agreed to dismiss the action without prejudice."55 No other demands were made in conjunction with Mr. Moses' request for a reasonable dialogue.56 Traton refused to rationally discuss this matter with Mr. Moses.57 Despite Traton's ability to stop the continued ingress onto Mr. Moses' property by Traton's agents, Traton continued to approve of the unauthorized entries. Traton never disciplined any of its agents for entering onto Mr. Moses' property. Traton never disciplined any of its agents for damaging the property.

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
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Moses Affidavit, ¶ 17. 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. 9

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

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Han Affidavit, ¶ 43. Han Affidavit, ¶ 46. 62 Affidavit of Charles B. Pekor in Support of Plaintiff's Memorandum in Opposition to Defendants' 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 to Defendants' 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. 10

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 § 44-5167;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

Han Affidavit, ¶ 62; Moses Affidavit, ¶ 28; Pekor Affidavit, ¶ 10; DeWoskin Affidavit, ¶ 10. 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 person who wrongfully interferes with such possession in any manner." 75 "Possession under a duly recorded deed will be construed to extend to all the contiguous property embraced in the deed." 76 "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 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."). 11
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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

Pekor Affidavit, ¶ 4; DeWoskin Affidavit, ¶ 4. Transcript of Motions Hearing ("T."), p. 44, lines 1-5 ("44:1-5"). 80 T. 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). 81 T. 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 First Request for Admissions and Defendant's Response to First Request for Admissions (collectively "Traton's First Admissions"), ¶ 2, Attached to Plaintiff's Motion for Summary Judgment as Exhibits D and E. 82 T. 4:6-9; T. 14:9-12 (Admitted by Defendant, Plaintiff's Second Request for Admissions to Defendant Traton Corp. and Traton Corp.'s Amended Responses and Objections to Plaintiff's Second Request for Admissions (collectively "Traton's Second Admissions"), ¶ 17, Attached to Plaintiff's Motion for Summary Judgment as Exhibits F and G). 83 T. 19:2-4; T. 58:11-22 (Affidavit of Christopher Moses in Support of Plaintiff's Opposition to Defendants' Motion to Dismiss ("First Moses Affidavit"), ¶¶ 19 and 20). 84 T. 61:8-9 (The right of way extends thirteen (13) feet beyond the curb into Appellant's yard). 85 T.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")). 12
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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 T. 4:10-13; T. 14:12-14 (Admitted by Defendant, Traton's First Admissions, ¶ 5). T. 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") (stating that the Declarant is Poston Properties, Inc., which is an affiliate of Traton Corp), Attached to Plaintiff's Motion for Summary Judgment as Exhibit H. 88 T. 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. 90 T. 15:1-4 (Admitted by Defendant, Traton's First Admissions, ¶ 15). 91 T. 4:22-25; T. 5:19-21; T. 15:5-7 (Admitted by Defendant, Traton's First Admissions, ¶ 18). 92 T. 5:20-21; T. 15:5-7 (Admitted by Defendant, Traton's First Admissions, ¶ 19). 93 T. 15:8-10 (Admitted by Defendant, Traton's First Admissions, ¶ 19). 94 T. 15:8-10 (Admitted by Defendant, Plaintiff's First Request for Admissions to Defendant Rick 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). 95 T. 15:11-13 (Admitted by Defendant, Foster's First Admissions, ¶ 20) (First Moses Affidavit, ¶¶ 11-15). 96 T. 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

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T. 15:14-15 (Admitted by Defendant, Foster's First Admissions, ¶ 22). T. 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). 99 T. 5:21-23; T. 15:22-23 (Admitted by Defendant, Traton's First Admissions, ¶ 31). 100 T. 5:23-25 (Admitted by Defendant, Traton's Second Admissions, ¶¶ 116 through 118). 101 T. 6:2-3; T. 15:23-25 (Admitted by Defendant, Traton's First Admissions, ¶ 33). 102 T. 7:9-10; T. 15:25-16:1 (Admitted by Defendant, Traton's First Admissions, ¶ 34). See, also, Complaint. 103 T. 7:10-12; T. 16:2-3 (Admitted by Defendant, Traton's First Admissions, ¶ 35). 104 T. 7:17-19 (Admitted by Defendant, Traton's First Admissions, ¶ 36). 105 T. 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. 106 T. 11:19-12:5; T. 15:3-8 (Admitted by Defendant, Traton's Second Admissions, ¶¶ 133 through 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 14

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) (2) (3) (4) Issue an apology for failing to respond to Plaintiff's phone calls and email messages; Completely repair the damage done to the yard; To the best of its ability, instruct Traton's subcontractors to refrain from driving over Plaintiff's yard; and 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' . . ."). 107 T. 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, the last 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 this litigation). 108 T. 12:6-7; T. 17:24-18:1; T. 18:4-19:17 (Admitted by Defendant, Traton's Second Admissions, ¶¶ 133 through 138). 109 T. 12:7-9; T. 18:1-19:17 (Admitted by Defendant, Traton's Second Admissions, ¶ 143). 110 See, Email Message to Traton, October 14, 2005, Attached to Plaintiff's Motion for Summary Judgment as Exhibit O. 111 See, Defendants' Request for Entry Onto Land to Inspect, Attached to Plaintiff's Motion for 15

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) (2) (3) (4) (5) (6) Face-to-face meeting with Traton officers (Bill Poston, Dale Bercher, Millburn Poston, etc.); Admission of wrong by Traton, and issue written apology to Plaintiff; Repair of damaged yard to Plaintiff's satisfaction; Promise to refrain from future damage; Promise to fix future damage that can be attributed to Traton; and 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 Motion for 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. 16

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

118

T. 21:12-21 (Defendants' Response to Plaintiff's Motion to Add Defendants and Amend Complaint, pp. 2-3 (Traton's attorneys certified to this lower court that compliance with discovery was "estimated to cost $2,950,000.00"), Attached to Plaintiff's Motion for Summary Judgment as Exhibit U). 119 T. 21:22-25 (Admitted by Defendant, Traton's First Admissions, ¶¶ 69 and 74). 120 T. 21:25-22:2 (Admitted by Defendant, Traton's First Admissions, ¶ 80). 121 T. 22:2-7. See, Foster's First Admissions, ¶¶ 30 through 37. 122 T. 22:2-7 (Admitted by Defendant, Traton's First Admissions, ¶ 83). 123 T. 22:2-7 (Admitted by Defendant, Traton's First Admissions, ¶ 85). 124 T. 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., 17

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 any claim or defense which the court determines was asserted by said attorney or party in a good faith attempt to establish a new theory of law in Georgia if such new theory of law is based on some recognized 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. 128 See, 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). 18

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 in judicio. 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

130 131

Hill v. All Seasons Florist, Inc., 201 Ga. App. 870 (1991). Hyre v. Denise, 214 Ga. App. 552 (1994). 132 Deljou v. Sharp Boylston Management Co., 194 Ga. App. 505 (1990), internal citations and quotations 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 litigation claim, even if reduced to judgment, did not mandate the award of attorney fees. Accordingly, the trial court did not err by refusing to award attorney fees merely because Deljou prevailed on the abusive litigation claim."). 133 Deljou v. Sharp Boylston Management Co., 194 Ga. App. 505 (1990). 134 Moore v. Harris, 201 Ga. App. 248 (1991); Brown v. Kinser, 218 Ga. App. 385 (1995). 135 Hill v. All Seasons Florist, Inc., 201 Ga. App. 870 (1991). 19

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

"The bare possession of land shall authorize the possessor to recover damages from any person 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 claimant and so exclusive as to prevent actual occupation by another." 138 "Possession under a duly recorded deed will be construed to extend to all the contiguous property embraced in the deed." 139 "The unlawful interference with a right of way or a right of common constitutes a trespass to the party entitled thereto." 140 Clayton County v. Billups Eastern Petroleum Co., 104 Ga. App. 778 (1961). 141 Billups, 104 Ga. App. 778 (1961). 142 Billups, 104 Ga. App. 778 (1961). 20

136

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 maintenance and cultivation of the yard, which is evidence of actual possession.147 The acknowledgement of the Homeowners' Association that the damaged land is Plaintiff's land.148 This acknowledgement evidences that Plaintiff actually possessed the damaged land (i.e., "your land").149 Defendant's acknowledgement that Plaintiff's neighbors considered the damaged

(2)

(3)
143 144

OCGA § 9-15-14(a). 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 claimant and 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). As such, when Defendants' consistently accused Plaintiff of failing to maintain "your" property, it is undisputed evidence of Plaintiff's possession of the property in dispute. 21

property to be Plaintiff's property.150 The neighbors' belief that the damaged property 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. Defendants' Request for Entry Upon Land for Inspection, in which Defendants and counsel for Defendants requested permission from Plaintiff to enter upon the damaged land for inspection.152 This fact evidences Defendants' acknowledgment that permission was necessary to enter onto the land, thereby evidencing Plaintiff's possession of the land. Plaintiff's refusal to grant access to the land evidences Plaintiff's possession of the land. 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 maintain the 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

(5)

(6)

(7)

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 § 915-14(a) would be improper.

Traton's Second Admissions, ¶¶ 25, 55, 72, 78, 95, and 100-103. 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. 154 Lowry 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). 22
151

150

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 that Plaintiff's Claims were Meritorious

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

157 158

Han Affidavit, ¶ 4. Han Affidavit, ¶ 5. 159 Han Affidavit, ¶ 6. 160 Han Affidavit, ¶ 9. 161 Han Affidavit, ¶ 10. 162 Han Affidavit, ¶ 11. 163 Han Affidavit, ¶ 12. 164 Georgia Law of Torts, Thomson-West Publishing. Han Affidavit, ¶ 13. 165 Han Affidavit, ¶ 15. 23

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 that Plaintiff'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 was Necessitated by Defendants' Behavior During the Course of this Litigation

Much of the discovery that was propounded by Plaintiff was necessitated by Defendants'
166 167

Han Affidavit, ¶ 39. Han Affidavit, ¶ 40. 168 Han Affidavit, ¶ 62; Moses Affidavit, ¶ 28; Pekor Affidavit, ¶ 10; DeWoskin Affidavit, ¶ 10. 24

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

Han Affidavit, ¶ 63; Moses Affidavit, ¶ 29; Pekor Affidavit, ¶ 11; DeWoskin Affidavit, ¶ 11. Hyre 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. 25
170

169

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 or refusal 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 answers and 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 very narrowly-focused questions and requests. It is inevitable that such a breakdown will result in numerous questions. However, each request seeks a fact or opinion that is relevant to the claims against Traton. Hopefully, the questions in the Second Request for Admissions have now been crafted to specifically target various facts that Mr. Moses hopes to conclusively establish, thereby removing those issues from trial. Given the specificity of each Request for Admission, it should take less than a minute for Traton Corp. to answer each question. In short, it should take less than four (4) hours to complete the responses for the Request for Admissions. We hardly consider four hours to be unduly burdensome to Traton, especially since Traton is responsible for escalating this case to its current status. Also, given that it will likely take more time to file a motion for a protective order, we are puzzled as to why Traton would not simply 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

175 176

Han Affidavit, ¶ 22. Han Affidavit, ¶ 23. 177 Han Affidavit, ¶ 24. 26

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

Han Affidavit, ¶ 25. 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. 27
179

178

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) (b) most, if not all, of Plaintiff's alleged facts were conclusively established by Defendants' own admissions; and 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.

184 185

Defendants' Motion for Attorneys' Fees, p. 4. See, 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. 28

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.

186 187

246 Ga. App. 120 (2000). OCGA § 51-9-3, emphasis supplied. 29

___ December 2006.

Respectfully submitted,

SAM HAN, P.C. Sam S. Han

Sam S. Han Georgia Bar Number 322284 SAM HAN, P.C. 330 Bloombridge Way Marietta, GA 30066 Phone: (404) 514-8237 email: sam.han.pc@gmail.com Charles B. Pekor Georgia Bar Number 570601 Daniel E. DeWoskin Georgia Bar Number 220327 PEKOR & DeWOSKIN, LLC 270 Peachtree Street, NW Suite 1060 Atlanta, GA 30303

30

THE SUPERIOR COURT FOR THE COUNTY OF COBB STATE OF GEORGIA CHRISTOPHER MOSES Plaintiff, v. TRATON CORP., et al. Defendants. ] ] ] ] ] ]

Civil Action File No.05-1-8395-35 JURY TRIAL DEMANDED

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 322284 SAM HAN, P.C. 330 Bloombridge Way Marietta, GA 30066 Phone: (404) 514-8237 email: sam.han.pc@gmail.com 31