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STATE OF GEORGIA
CHRISTOPHER MOSES ]
Petitioner, ] Supreme Court Case No.
v. ]
TRATON CORP., et al. ] ______________________
Respondent. ]
PETITION
FOR WRIT OF CERTIORARI
PETITIONER:
Christopher L. Moses
Sam S. Han
Georgia Bar Number 322284
SAM HAN, P.C.
330 Bloombridge Way
Marietta, GA 30066
+1 (404) 514-8237
sam.han.pc@gmail.com
Robert K. Finnell
Georgia Bar Number 261575
THE FINNELL FIRM
Suite 200
PO Box 63
1 West Fourth Avenue
Rome, GA 30161-3003
Charles B. Pekor
Georgia Bar Number 570601
Daniel E. DeWoskin
Georgia Bar Number 220327
PEKOR & DeWOSKIN, LLC
Lenox Center
3355 Lenox Road, NE
Suite 450
Atlanta, Georgia 30326
IN THE SUPREME COURT
STATE OF GEORGIA
CHRISTOPHER MOSES ]
Petitioner, ] Supreme Court Case No. ________
v. ] Court of Appeals Case No. A07A1474
TRATON CORP., et al. ]
Respondent. ]
PETITION
FOR WRIT OF CERTIORARI
Corp. et al., Court of Appeals Case No. A07A1474,1 dated July 10,
1
Attached hereto as Exh. A.
2
Attached hereto as Exh. B.
Page 1
(B) Whether the Court of Appeals erred in ruling that the
County, rather than the homeowner, is liable for
maintaining a significant portion of the homeowner's
yard if that portion is located within a County-owned
right-of-way.
both the spirit and letter of the law, and insofar as such a
3
A picture of Petitioner's home and the 13-foot-wide tract of
damaged land, which is the property in question, is attached
hereto as Exh. C. This picture is found in the record at R.
Page 2
I. INTRODUCTION
very Court has repeatedly held that the "right of the humblest
statute to rights-of-way.8
and statutes, and despite this Court's mandate that the humblest
493-510.
4
See, e.g., Georgia Constitution, Art. I, § I, ¶¶ I, II, IV,
XXVI, and XXVII; Art. III, § III, ¶ I; Art. VII, § I, ¶¶ II and
III; Art. VII, § II, ¶¶ II and IV; and Art. IX, § VII, ¶ III.
5
Georgia Constitution, ¶ II.
6
Williams v. LaGrange, 213 Ga. 241 (1957); Ammons v. Central of
Georgia Railway Co., 215 Ga. 758 (1960).
7
OCGA §§ 51-9-1, 51-9-2, 51-9-3, and 51-9-10.
8
OCGA § 51-9-10.
Page 3
prevent others from continuously destroying the land which
value of that home.9 This is so, despite the fact that the
home.10
exercise.
protect the yard that adjoins the home, obligates the County to
9
The subject property is shown in Exh. C, attached (from the
trial court record at R. 493-510).
10
R. 66-67 (First Moses Affidavit, ¶¶ 4-8); See, Exh. D (Letter
from Homeowners' Association, attached to First Moses Affidavit
at R. 66-67).
Page 4
the intent of the parties to the subdivision covenants.
Page 5
II. SUBJECT MATTER OF THE LAWSUIT
Page 6
III. FACTS
Association (HOA).12
11
R. 1408; T. 4:1-4; T. 14:8-9. R. 308, 323 (Admitted by
Defendant; see, Complaint and Answer, ¶ 28). See, also, R.
335, 346 (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 Exhs. D and E).
12
R. 1411; T. 4:6-9; T. 14:14-21. R. 371, 403 (Traton's Second
Admissions, ¶ 60). See, also, R. 423-461 (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 Exh. H).
13
T. 19:2-4; T. 58:11-22. R. 68 (Affidavit of Christopher Moses
in Support of Plaintiff's Opposition to Defendants' Motion to
Dismiss ("First Moses Affidavit"), ¶¶ 19-20).
14
T. 61:8-9 (The right of way extends thirteen (13) feet beyond
the curb into Petitioner's yard).
15
T.58:11-12; T. 65:21. R. 1123-1125 (Order, ¶¶ 20 ("right-of-
way adjacent to his property"), 23, and 28 ("right-of-way
adjoining Plaintiff's property")).
Page 7
Over the course of eight (8) months, during continued
yard and then cited that very damage, which the builder had
16
R. 1412; T. 4:13-17; T. 14:21-23. R. 373-374, 407(Admitted by
Defendant, Traton's Second Admissions, ¶¶ 95-103). See, Exh.
C, attached hereto.
17
R. 1413; R. 368, 400 (Admitted by Defendant, Traton's Second
Admissions, ¶ 24).
18
R. 1413; T. 15:1-4. R. 336, 348 (Admitted by Defendant,
Traton's First Admissions, ¶ 15).
19
R. 1418-1420; T. 6:11-17; T. 11:16-18; T. 15:16-21. R. 368-
370, 400-402 (Admitted by Defendant, Traton's Second
Admissions, ¶¶ 25 and 27-55). R. 66-67 (First Moses Affidavit,
¶¶ 4-8).
20
R. 1418-1420; T. 6:11-17; T. 11:16-18; T. 15:16-21. R. 368-
370, 400-402 (Admitted by Defendant, Traton's Second
Admissions, ¶¶ 25 and 27-55). R. 66-67 (First Moses Affidavit,
¶¶ 4-8).
21
R. 1423; T. 7:9-10; T. 15:25-16:1. R. 337, 351 (Admitted by
Page 8
On October 9, 2006, the Superior Court disposed of this case
had no standing to bring any legal action for the damaged land
on summary judgment.
was denied, and, on August 07, 2007, Petitioner filed with the
Certirorari.
IV. ARGUMENT
common sense.
Page 10
consider an individual's property rights to be of paramount
value of the home and for which the homeowner has actual
23
Georgia Constition, Art. I, § I, ¶ II. Williams v. LaGrange,
213 Ga. 241 (1957); Ammons v. Central of Georgia Railway Co.,
215 Ga. 758 (1960).
24
OCGA § 51-9-1 (emphasis supplied).
25
OCGA § 51-9-3 ("The bare possession of land shall authorize
the possessor to recover damages from any person who wrongfully
interferes with such possession in any manner").
26
Housing Authority of Atlanta v. Famble, 170 Ga. App. 509, 520
(1984); Friendship Baptist Church, Inc. v. West, 265 Ga. 745,
746 (1995) (If the possession is not clearly evident, as in
enclosure or cultivation, then "possession becomes a question of
Page 11
that cannot be disposed of on summary judgment,27 the Court of
seeks to provide.
maintains the entire yard, including the sod, turf, and grass in
well into the yard from the curb.32 For this very reason, the
31
R. 66-67 and 71-72.
32
T. 61:8-9 (The right of way extends thirteen (13) feet beyond
the curb into Petitioner's yard).
33
OCGA § 44-5-165.
34
Moses v. Traton Corp., et al., Appeal No. A07A1474, 2007 Ga.
App. LEXIS 811, *8 (July 10, 2007).
35
OCGA § 51-9-3 ("The bare possession of land shall authorize
the possessor to recover damages from any person who wrongfully
interferes with such possession in any manner").
Page 13
a trespass to the party entitled thereto[,]"36 the Court of
36
OCGA § 51-9-10.
37
Moses v. Traton Corp., et al., Appeal No. A07A1474, 2007 Ga.
App. LEXIS 811, *6 (July 10, 2007).
38
Clayton County v. Billups Eastern Petroleum Co., 104 Ga. App.
778 (1961) (emphasis supplied).
39
Clayton County v. Billups Eastern Petroleum Co., 104 Ga. App.
778 (1961).
Page 14
2. The Opinion of the Court of Appeals Violates
Public Policy
being that the counties are not equipped with sufficient funds or
expense.
40
Moses v. Traton Corp., et al., Appeal No. A07A1474, 2007 Ga.
App. LEXIS 811, *8 (July 10, 2007).
41
T. 41 ("Mr. Moore: Ultimately, your honor, that property is
owned by the public. It's Cobb County public right-of-way.
Ultimately, Cobb County is responsible to maintain its right-
of-way, the full width of its right-of-way.").
Page 15
each homeowner's yard.
damaged land diminishes the value of the home, and the damage
42
Byrom v. Felker et al., 137 Ga. App. 400, 224 SE2d 72 (1976),
citing Watts v. Indiana, 338 U.S. 49, 52 (1949).
43
T. 58:11-22 ("Mr. Moses has, since buying this house,
continued to maintain that portion of the property, because he
was under the understanding that that was his property. The
Homeowners' Association was under the understanding that it was
his property. All of his neighbors are still giving Mr. Moses
grief because he's not maintaining his property. And all of
Page 16
For this additional reason, Petitioner respectfully requests
As noted above, the builder and the HOA are the same entity,
permitted by this Court. This Court should not permit the legal
Page 18
B. This Court should Grant Certiorari to Correct the
Numerous Errors of the Court of Appeals
different result.
the right of way, the facts Moses points to, such as his mowing
Ruat Caelum.
49
Petitioner expressly cited this statutory provision to the
Court of Appeals in both the Appellate Brief and in the Brief
in Support of Appellant's Motion for Reconsideration. The
Court of Appeals, however, wholly ignored OCGA § 51-9-3.
Page 19
Moses's legal interest in the land, are not sufficient to create
right of way."50
51-9-3).
50
Moses v. Traton Corp., et al., Appeal No. A07A1474, 2007 Ga.
App. LEXIS 811, *9 (July 10, 2007).
51
Housing Authority of Atlanta v. Famble, 170 Ga. App. 509, 520
(1984); Friendship Baptist Church, Inc. v. West, 265 Ga. 745,
746 (1995) (If the possession is not clearly evident, as in
enclosure or cultivation, then "possession becomes a question
of fact for the jury").
52
See, OCGA § 51-9-3 (emphasis supplied).
53
See, Petitioner's Appeal Brief at 15, 26, and 27.
54
Moses v. Traton Corp., et al., Appeal No. A07A1474, 2007 Ga.
App. LEXIS 811, *9 (July 10, 2007).
Page 20
analysis of actual possession (OCGA § 51-9-3) is unnecessary.
facts, which should have been viewed in the light most favorable
to Petitioner.
Petitioner).
being irrelevant.
55
OCGA § 44-5-165.
Page 21
property56 (see Exh. C) were of Mr. Moses' home and Mr.
Moses' yard.57
Page 22
(6) Defendants' Request for Entry Upon Land for Inspection, in
which Respondents and counsel for Respondents requested
Petitioner's permission to enter upon the damaged land for
inspection.62
(Traton's Second Admissions, ¶¶ 25, 55, 72, 78, 95, and 100-103
(e.g., "As for your yard issues, simply stated, Traton Homes
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")).
62
R. 179-180 (Defendants' Request for Permission to Enter Upon
Land for Inspection).
63
T. 51:10-22.
64
T. 58:11-22. R. 368-370, 400-402 (Traton's Second Admissions,
¶¶ 25 and 27-55 ("If these two violations are not corrected the
Homeowners Association has the authority to remedy the
violations and charge your home for the expense")).
Page 23
2. In Determining Standing, the Court of Appeals
Overlooks Undisputed Material Facts: Namely, that
the Damaged Right-of-Way Detrimentally Affects the
Value of Petitioner's Home and Petitioner's
Enjoyment of His Home
property that affects the value of his home and his right to
affects the value of his home and his enjoyment of his home,70
Petitioner has proven a real harm to his own property right. For
65
T. 49:13-16; T. 50:3-8; T. 41:11-21.
66
Moses v. Traton Corp., et al., Appeal No. A07A1474, 2007 Ga.
App. LEXIS 811, *7 (July 10, 2007).
67
OCGA § 51-9-1.
68
T. 49:13-16; T. 50:3-8; T. 41:11-21.
69
R. 66-67 and 71-72.
70
OCGA § 51-9-1.
Page 24
this reason, Petitioner has standing to bring an action on the
action for the damaged yard. This Honorable Court should GRANT
III. CONCLUSION
[SIGNATURE TO FOLLOW]
17 August 2007.
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
71
OCGA § 51-9-1.
Page 25
EXHIBIT A
(Opinion from the Court of Appeals)
Exhibit B
(Court of Appeals, Denial of Motion for Reconsideration)
EXHIBIT C
(From R. 493-510)
EXHIBIT D
(From Moses First Affidavit, R. 66-67)
IN THE SUPREME COURT
STATE OF GEORGIA
CHRISTOPHER MOSES ]
Petitioner, ] Supreme Court Case No. ________
v. ] Court of Appeals Case No. A07A1474
TRATON CORP., et al. ]
Respondent. ]
one (1) original and seven (7) copies, and served the within and
follows:
[SIGNATURE TO FOLLOW]
17 August 2007.
Respectfully submitted,
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