On May 27, 2004, Mr.

Moses purchased his home from one of the Traton entities1 (hereinafter collectively referred to as "Traton").

1

Complaint and Answer, ¶ 24.

Mr. Moses' home is situated within the Lakefield Manor subdivision.2

2

Admitted by Defendant; see, Complaint and Answer, ¶ 28, 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, Exhibits D and E.

Traton Corp. has indicated that it is the developer for the Lakefield Manor subdivision.3

3

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, Exhibits F and G. See, also, Video Footage of Board of Zoning Appeals, April 13, 2005 (Traton agent represents to Cobb County governmental body that it is responsible for the development of the Lakefield Manor subdivision), available for viewing at <http://www.cobbcommunications.org/tv23vod/bza2005/04/133.asx>.

Subsequent to Mr. Moses' purchase of his home, contractors delivered additional materials to construction sites within the Lakefield Manor subdivision.4

4

Admitted by Defendant, Traton's First Admissions, ¶ 5.

Given the ongoing construction within the Lakefield Manor subdivision, Traton also functions as the Home Owners' Association (HOA).5

5

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), Exhibit H.

During that construction process, construction trucks repeatedly drove over Mr. Moses' yard, thereby damaging the yard.6

Mr. Moses complained to Traton about damage to his yard,7 and requested Traton to discontinue driving over Mr. Moses' property.8

6 7 8

Admitted by Defendant, Traton's Second Admissions, ¶¶ 95 through 103. Admitted by Defendant, Traton's Second Admissions, ¶ 24. Admitted by Defendant, Traton's First Admissions, ¶ 15.

In fact, Mr. Moses called Traton on more than one occasion,9 but Traton did not return Mr. Moses' phone calls.10

9

Admitted by Defendant, Traton's First Admissions, ¶ 18. Admitted by Defendant, Traton's First Admissions, ¶ 19.

10

Since Traton did not return Mr. Moses' phone calls,11 Mr. Moses filed a grievance against Traton, using Traton's Internet form.12

11 12

Admitted by Defendant, Traton's First Admissions, ¶ 19.

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, Exhibits I and J.

On behalf of Traton, Mr. Rick Foster replied by email13 and copied one or more officers of Traton in his reply.14

13 14

Admitted by Defendant, Foster's First Admissions, ¶ 20. Admitted by Defendant, Foster's First Admissions, ¶ 21.

In that email, Mr. Foster expressly stated that Traton would not fix the yard.15

15

Admitted by Defendant, Foster's First Admissions, ¶ 22.

Adding insult to injury, in addition to refusing to repair the damage, Traton cited Mr. Moses' damaged yard as being in violation of the subdivision Covenant.16 In other words, Traton damaged Mr. Moses' yard, and then cited that very damage as a violation of the Covenant.

16

Admitted by Defendant, Traton's Second Admissions, ¶¶ 25 and 27 through 55.

Given Traton's unreasonable posture, Mr. Moses filed a complaint with the Better Business Bureau ("BBB"),17 in which Mr. Moses expressly noted the destruction of his yard.18

Rather than calling Mr. Moses to discuss these issues, Traton responded to Mr. Moses through its attorneys,19 and demanded that Mr. Moses stop contacting Traton.

17 18 19

Admitted by Defendant, Traton's First Admissions, ¶ 31. Admitted by Defendant, Traton's Second Admissions, ¶¶ 116 through 118. Admitted by Defendant, Traton's First Admissions, ¶ 33.

Since Traton neither promised to fix the damage that it had caused, nor promised to refrain from further entering onto Mr. Moses' property, Mr. Moses filed this lawsuit in Cobb County Superior Court on October 13, 2005.20

20

Admitted by Defendant, Traton's First Admissions, ¶ 34. See, also, Complaint.

As a courtesy, a copy of the Complaint was emailed to Traton's attorney on October 13, 2005,21 and Traton was aware of this lawsuit by October 14, 2005.22

Despite being aware of this lawsuit, and despite knowing that the subjectmatter of this lawsuit included damage to Mr. Moses' yard,23 Traton nevertheless directed its agents to enter onto the damaged portion of the yard24 and tamper with the evidence.25
21 22 23 24

Admitted by Defendant, Traton's First Admissions, ¶ 35. Admitted by Defendant, Traton's First Admissions, ¶ 36. See, Defendants' Request for Entry Onto Land to Inspect, Exhibit K.

Admitted by Defendant, Traton's Second Admissions, ¶¶ 133 through 138. See, also, Letter from Traton, January 13, 2006, Exhibit L ("Traton directed that an individual stand in the grass allegedly damaged to photograph the degree of 'damage' . . .").
25

See, Pictures from Traton, Exhibit M (showing Traton agents mowing Mr. Moses' lawn). See, also, Email Message from Traton to its Attorney, October 19, 2005, 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).

Traton photographed the subsequent entry and their tampering with the evidence,26 and those photographs were sent to Mr. Moses by Traton's attorneys.27

26 27

Admitted by Defendant, Traton's Second Admissions, ¶¶ 133 through 138. Admitted by Defendant, Traton's Second Admissions, ¶ 143.

Despite Traton's egregious behavior and lousy customer service, Mr. Moses nevertheless attempted to reasonably dispose of this matter. Specifically, on October 14, 2005, Mr. Moses offered to dismiss this case if Traton would meet the following requests: (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.28 Traton rejected Mr. Moses' offer. Given Traton's refusal to reasonably resolve this matter, Mr. Moses initiated discovery.

28

See, Email Message to Traton, October 14, 2005, Exhibit O.

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."29

29

Admitted by Defendant, Traton's Second Admissions, ¶ 152.

Specifically, Mr. Moses, through counsel, stated: "[u]pon receiving confirmation that Traton is willing to dialogue with Chris [Mr. Moses], he [Mr. Moses] has agreed to dismiss the action without prejudice."30 No other demands were made in conjunction with Mr. Moses' request for a reasonable dialogue.

30

Admitted by Defendant, Traton's Second Admissions, ¶ 153.

Despite Mr. Moses' generous offer, Traton refused to rationally discuss this matter with Mr. Moses, 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 . . . ."31

31

Email Exchange between Traton Officers, December 8, 2005, Exhibit P.

Upon discovering additional facts, Mr. Moses filed a Motion to Add Defendants and Amend Its Complaint ("Motion to Add Defendants").32

32

Plaintiff's Motion to Add Defendants and Amend Its Complaint, and Brief in Support of Plaintiff's Motion, Exhibit Q.

The Supplemental and Second Amended Complaint, which accompanied the Motion to Add Defendants, included the following Counts: (1) Trespass, under O.C.G.A. §§ 51-9-1 and 51-9-3; (2) Continuing Trespass, under O.C.G.A. § 51-9-6; (3) Liability for Torts of Independent Employee, under O.C.G.A. § 51-2-4; (4) Liability for Torts of Contractors, under O.C.G.A. § 51-2-5; (5) Civil Conspiracy; (6) Breach of Contract; (7) Breach of Fiduciary Duty; (8) Officers' Personal Liability for Corporate Action; (9) Litigation Expenses, under O.C.G.A. § 13-6-11; and (10) Punitive Damages, under O.C.G.A. § 51-12-5.1.33

33

Supplemental and Second Amended Complaint, Exhibit R.

Despite the ongoing discovery, in yet another effort to resolve this without further escalating costs, Mr. Moses presented his third settlement offer to Traton on February 13, 2006.34

34

February 13, 2006, Email from Mr. Moses to Traton, Exhibit S.

In that offer, Mr. Moses requested the following: (1) Face-to-face meeting with Traton officers (Bill Poston, Dale Bercher, Millburn Poston, etc.); (2) Admission of wrong by Traton, and issue written apology to Mr. Moses; (3) Repair of damaged yard to Mr. Moses' 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).35

35

February 13, 2006, Email from Mr. Moses to Traton.

Mr. Moses' third offer was rejected.36

36

February 27, 2006, Email from Traton to Mr. Moses, Exhibit T.

Thus, rather than rationally dialoguing with Mr. Moses, Traton deliberately chose to continue with discovery, which Traton certified would cost an estimated $2,950,000.00.37

37

Defendants' Response to Plaintiff's Motion to Add Defendants and Amend Complaint, pp. 2-3 (Traton's attorneys certified to this Court that compliance with discovery was "estimated to cost $2,950,000.00"), Exhibit U.

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.38

38

Admitted by Defendant, Traton's First Admissions, ¶¶ 69 and 74.

Traton never disciplined any of its agents for tampering with evidence39 (i.e., running over a portion of Mr. Moses' property with a lawn mower).

39

Admitted by Defendant, Traton's First Admissions, ¶ 80.

Although Traton instructed its agents to enter onto Mr. Moses' property:40 (1) Traton does not assume responsibility for the actions of its employees.41 (2) Traton does not assume responsibility for the actions of its agents.42 (3) Traton does not assume responsibility for the actions of its contractors.43 In fact, it appears that Traton refuses to accept responsibility for anything.

40 41 42 43

See, Foster's First Admissions, ¶¶ 30 through 37. Admitted by Defendant, Traton's First Admissions, ¶ 83. Admitted by Defendant, Traton's First Admissions, ¶ 85. Admitted by Defendant, Traton's First Admissions, ¶ 87.

Notwithstanding the numerous unauthorized entries onto Mr. Moses' property by Traton's agents, Traton has never instructed its contractors to refrain from driving over Mr. Moses' property.44

44

Admitted by Defendant, Traton's First Admissions, ¶ 96.

Rather than rationally discussing this matter and seeking prompt resolution, Traton continues to press forth with this lawsuit, despite the numerous opportunities that have been provided to Traton to resolve this issue. In doing so, Traton has continued to stall and obstruct discovery. For example, in responding to discovery requests, Traton has indicated that it "lacks sufficient knowledge to admit or deny" who are its own corporate officers.45 In other words, Traton's position, at one time, was that it did not even know the identity of its own officers.

45

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.

This is despite the fact that the officers for various Traton entities are listed on the website for the Georgia Secretary of State,46 as well as on Traton Corp.'s tax statements.47
1.

Additionally, Traton's attorneys engaged in underhanded tactics, which formed the bases of a grievance filed with the State Bar of Georgia.48
46 47 48

Admitted by Defendant, Traton's Second Admissions, ¶¶ 104 through 109. Tax Statements of Traton Corp. for 2005, Exhibit V.

See, Memorandum of Grievance Against Jeffrey Daxe, filed with the Office of the General Counsel of the State Bar of Georgia, March 1, 2006, Exhibit W. See, also, Rebuttal Memorandum: Grievance Against Jeffrey Daxe, filed with the State Bar of Georgia, April 6, 2006, Exhibit X.

Other facts, which are relevant to the amount of damages and attorneys fees, include revenue information that has been published by two (2) independent sources,49 as well as the corporate tax statements of
49

2005 Giants Results, housingzone.com, downloaded from <http://www.housingzone.com/>, November 25, 2005, and produced to Defendants as MOS 0000131, Exhibit Y; Builder 100 Listing, BuilderOnline.com, downloaded from <http://www.builderonline.com>, December 9, 2005, and produced to Defendants as MOS 0000144, Exhibit Z.

Defendants.50

50

Tax Statements of Traton Corp. for 2005.