IN THE SUPREME COURT

STATE OF GEORGIA

SUPREME COURT DOCKET NUMBER S07C1858

COURT OF APPEALS CASE NUMBER A07A1474

CHRISTOPHER MOSES ]
Petitioner, ] Supreme Court Case No.
v. ]
TRATON CORP., et al. ] S07C1858
Respondent. ]

PETITIONER'S REPLY BRIEF

PETITIONER:

Christopher L. Moses

COUNSEL FOR PETITIONER:

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. S07C1858
v. ] Court of Appeals Case No. A07A1474
TRATON CORP., et al. ]
Respondent. ]

PETITIONER'S REPLY BRIEF

COMES NOW Petitioner and files Petitioner's Reply Brief in

reply to Respondents' Brief in Opposition to Petition for Writ

of Certiorari and hereby shows this Honorable Court the

following:

I. INTRODUCTION

This case is of great importance and concern to the public,

and this Honorable Court should grant Petitioner's petition for

at least the following reasons.

First, the miscarriage of justice is always a matter of

great concern. So important is justice that the Georgia

Constitution expressly recites the objective of ensuring justice

for all.1 Here, Respondent damaged property and then

threatened to impose monetary penalties against Petitioner's

home if Petitioner failed to repair the damage caused by

Respondent. Permitting wrongdoers to profit from their misdeeds

would be a miscarriage of justice, and this Honorable Court

should not tolerate such a miscarriage of justice.

1
See, Georgia Constitution, Preamble ("insure justice to all").
 Second, the Georgia Constitution emphasizes that protection

of property is "the paramount duty of government."2 Of such

importance is an individual's right to property that this very

Court has repeatedly held that the "right of the humblest

individual in the enjoyment of his property must be protected."3

Here, Petitioner's case has been improperly dismissed on

summary judgment when there existed genuine issues of material

fact. The improper dismissal of this action deprived Petitioner

of any recourse for the violation of his fundamental right to

the enjoyment of his property. Since the protection of an

individual's enjoyment of his home is so paramount, this Court

should grant certiorari.

Third, the curtailment of a fundamental right, such as the

right to enjoyment of one's home, is a matter of great concern

and importance to the public. Here, not only were Petitioner's

rights curtailed by the decision of the Court of Appeals, but

also the rights of all Georgia homeowners. The prerequisite for

bringing a trespass action by any citizen, under Georgia law, is

bare possession.4 It is not ownership; nor is it heightened

possession; nor is it exclusive possession. Adopting the

2
Georgia Constitution, ¶ II.
3
Williams v. LaGrange, 213 Ga. 241 (1957); Ammons v. Central of
Georgia Railway Co., 215 Ga. 758 (1960).
4
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 2
requirement of "exclusive possession," as Respondent urges,5 the

Court of Appeals curtailed the rights of every Georgia citizen.

This Court should grant certiorari to correct the error by the

Court of Appeals, which affects all Georgia homeowners.

Fourth, requiring "exclusive possession," as urged by

Respondent, is repugnant to the plain meaning of OCGA § 51-9-10,

which provides a cause of action for any "unlawful interference

with a right-of-way or a right of common."6 By requiring

"exclusive possession" of a right-of-way, the Georgia Court of

Appeals nullifies OCGA § 51-9-10, since no private entity has

"exclusive possession" of a right-of-way. Insofar as the

decision of the Georgia Court of Appeals is repugnant to the

plain language of the statute, and since there have been no

cases that have addressed whether "exclusive possession" is

required for standing under OCGA § 51-9-10, this case is worthy

of certiorari.7

Lastly, the decision of the Court of Appeals creates

disharmony with existing law and inconsistencies in precedent.

Specifically, the decision of the Court of Appeals is contrary

to this Court's holding in Justice v. Aikin,8 which only

requires bare possession, and not exclusive possession (or other

5
Respondents' Opposition, pp. 8-10.
6
OCGA § 51-9-10.
7
Swift, Currie, McGhee & Hiers v. Henry, 276 Ga. 571 (2003)
(granting certiorari to resolve a question of first
impression).
8
See, M. M. Buice, et al. v. P. K. Dixon, 223 Ga. 645 (1967).

Page 3
heightened possession). As such, this case is worthy of

certiorari to correct the inconsistency that is created by the

decision of the Court of Appeals.9

For at least these reasons, Petitioner respectfully

requests this Honorable Court to GRANT Certiorari.

II. FACTS

Petitioner seeks to clarify only one fact. Respondent

mischaracterizes the record by excerpting, out of context, one

segment of a statement by counsel for Petitioner. In proper

context, the relevant portion of the record recites:

So essentially what [Respondents] asked [Mr.

Moses] to do was repair the damage they had
caused. And if he wasn't willing to do it
they were going to put a lien on his house.
At that point is when Mr. Moses came and
visited me. He said, "Sam, I don't know
what to do in this position. They have
continued to run over my yard for months and
months and months. They've refused to fix
it. And now they're telling me that if I
don't fix their damage, they're going to
come put a lien on my house. What should I
do? So I advised Mr. Moses . . . .10

In short, Respondents mischaracterize Petitioner's quote.

Petitioner had no choice but to either file a lawsuit, or face

financial penalties imposed by Respondent. In other words,

Respondent: (a) caused the damage; and (b) threatened to fine

Petitioner if Petitioner did not repair the damage that

9
See, M. M. Buice, et al. v. P. K. Dixon, 223 Ga. 645 (1967).
10
T. 6:17-7:2, emphasis supplied.

Page 4
Respondent had caused.

Respondents misquote Petitioner's counsel by omitting the

context of Petitioner's statement to the trial court.

III. ARGUMENT

The question of whether or not "bare possession" is

sufficient to bring an action under OCGA § 51-9-10 has not been

addressed by this Court, and is, therefore, one of first

impression. All of Respondents' cases, with the exception of

Justice v. Aikin,11 when read in their entirety, address

ownership (or title), rather than bare possession. Justice, the

only case cited by Respondent that addresses possession,

supports Petitioner's position that only bare possession is

necessary to bring an action for trespass.

Respondent cites Florence v. Lovell,12 for the proposition

that "possession alone does not raise a prima facie presumption

of title." Clearly, Florence is directed to ownership (i.e.,

title to land) and not bare possession. Here, Petitioner's case

is not based on title, but on actual possession. As such,

Florence, an ownership case, is inapplicable to Petitioner's

possession case.

Next, Respondent quotes Florence for the proposition that

"where an action of trespass is brought for injury to the

11
104 Ga. 714 (1898).
12
75 Ga. App. 401 (1947), emphasis supplied.

Page 5
freehold the right of the plaintiff to recover depends upon his

showing that he is the true owner of the freehold . . . ."13

Here, Petitioner brings an action for damage to a right-of-way,

and not for damage to any property that he owns in fee (i.e.,

this is not a freehold case). As such, Florence is

inapplicable, and OCGA § 51-9-10, among other statutory

provisions, controls.

Next, true to character, Respondents misquote, out of

context, Justice v. Aikin14 for the proposition that

"[p]ossession implies a present right to deal with property at

pleasure, and to exclude other persons from meddling with it."

In context, this entire passage recites:

Possession is one degree of title. It is

the lowest, it is true, but it is sufficient
for one to maintain the action of ejectment
against another who is a mere wrong-doer and
who has intruded into possession, and the
bare right of possession of lands authorizes
their recovery by the owner of such right,
and also damages for withholding the right.
Possession implies a present right to deal
with property at pleasure, and to exclude
other persons from meddling with it. It
will not do to reply to the petition in this
case, that the petitioners do not show title
to be in them. Admitting the allegations in
the petition to be true, the petitioners
were in possession of the land. If the
defendant had title which gave him the right
to the possession, it could be recovered;
but the petition alleges that he was without
title, and whether the petitioners had or
did not have title is no concern of one who
has neither title nor the right of

13
Id.
14
104 Ga. 714 (1898).

Page 6
 possession of the land. Being out of
possession, the defendant could not acquire
it without showing a superior right to the
possession to be in himself; and we see no
reason why the petitioners might not
jointly, in right of their possession,
resist the action of any one who, in the
absence of superior right, sought to recover
it from them. The question which is raised
is not that of title; and whether or not the
petitioners had title other than is given by
possession is not a question which the
defendant, who, according to the allegations
of the petition, is about to become a
trespasser, can make.15

Here, Respondent is the wrong-doer and has no superior

title to the right-of-way. In fact, Respondent admits that no

private entity can have title to a right-of-way. Thus, as this

Court held in Justice, the "question which is raised is not that

of title; and whether or not the petitioners had title other

than is given by possession is not a question which the

defendant, who, according to the allegation of the petition, is

about to become a trespasser, can make." Given this, "[i]t will

not do to reply to the petition in this case, that the

petitioners do not show title to be in them." As seen from the

very case that Respondents misquote, it is not sufficient for

Respondents to simply allege that Petitioner "do[es] not show

title to be in [him]." The opinion by the Court of Appeals,

which contravenes the holding by this Court in Justice, leads to

disharmony in the existing law and creates an inconsistency in

15
Justice v. Aikin, 104 Ga. 714, 717 (1898), internal citations
omitted, emphasis supplied.

Page 7
precedent. As such, this case is worthy of certiorari.16

Continuing, Respondent incorrectly states that "a claim of

trespass based upon possession alone must arise out of actual,

exclusive possession . . . ."17 The requirement of "exclusive

possession" is nowhere in the statute and contrary to Georgia's

statutory scheme and precedent, which only requires "bare

possession."18 Additionally, the requirement of "exclusive

possession" cannot be reconciled with OCGA § 51-9-10, which

permits an action for unlawful interference with a right-of-way.

If, as Respondents urge, no citizen has exclusive possession of

a right-of-way, then the requirement of exclusive possession

would nullify OCGA § 51-9-10, since, according to Respondents,

only exclusive possessors can bring an action under OCGA § 51-9-

10. Such a result nullifies the statute, and flies in the face

of the plain language of the statute.

Respondent argues that "it is the position [Petitioner]

advances, that each citizen be granted the right to sue for

damages to public property, which would be contrary to common

sense."19 However, Georgia statute and precedent unquestionably

supports Petitioner's position. Namely, OCGA § 51-9-10 permits

citizens to sue for the unlawful interference with a right-of-

16
See, e.g., M. M. Buice, et al. v. P. K. Dixon, 223 Ga. 645
(1967); McCollum v. Bass, et al., 201 Ga. 537 (1946); Innovative
Clinical and Consulting Services, LLC v. First National Bank of
AMES, 279 Ga. 672 (2005).
17
Respondents' Opposition, p. 9.
18
OCGA § 51-9-3; see, also, Justice, 104 Ga. 714, 717 (1898).

Page 8
way [i.e., public property]. The ruling by the Georgia Court of

Appeals, which is contrary to the plain language of the statute,

violates public policy by curtailing rights that the legislature

intended to confer upon the citizens of Georgia.

Continuing, Respondents incorrectly state that "the alleged

actions of the Lakefield Manor Homeowner's Association, a non-

party to this action, have no legal effect . . . ."20 First of

all, the homeowners' association is the Respondent in this

action. Next, the statement by Respondent is evidence of actual

possession, since Respondent's employee, acting on behalf of

Respondent, stated repeatedly that the damaged land was "your

land" (i.e., Petitioner's land). One can hardly dispute that

the term "your" is one of possession, and has always been so.21

Since actual possession is a question of fact,22 the legal

effect of Respondent's accusation ("your land") is an admission

by Respondent that Petitioner actually possessed the damaged

land. "Your land" as used by Respondent can mean nothing else.

Respondents' allegation that Respondents' admissions "have no

legal effect" is preposterous.

19
Respondents' Opposition, p. 10.
20
Respondents' Opposition, p. 14.
21
The dictionary defines "your" as: "of or relating to you or
yourself or yourselves especially as possessor or possessors."
Merriam-Webster's Online Dictionary, <http://www.m-
w.com/dictionary/your>.
22
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

Page 9
 Lastly, Respondents incredibly argue that this case is of

no importance23 when this very Court has held that the "right of

the humblest individual in the enjoyment of his property must be

protected."24 Such a stark disagreement between Petitioner and

Respondents, and the disagreement in the cases cited by

Petitioner and Respondents, supports Petitioner's position that

there now exists disharmony and inconsistencies in appellate

court precedent due to the erroneous ruling by the Court of

Appeals. Such error warrants review by this Court.

IV. CONCLUSION

Insofar as the issues presented in Petitioner's Petition

for Certiorari are of great importance and gravity to the

public, Petitioner respectfully requests that this court GRANT

Petitioner's Petition for Writ of Certiorari.

[SIGNATURE TO FOLLOW]

of fact for the jury").

23
Respondents' Opposition, p. 15.
24
Williams v. LaGrange, 213 Ga. 241 (1957); Ammons v. Central
of Georgia Railway Co., 215 Ga. 758 (1960).

Page 10
 __ September 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

Page 11
 IN THE SUPREME COURT
STATE OF GEORGIA

SUPREME COURT DOCKET NUMBER S07C1858

COURT OF APPEALS CASE NUMBER A07A1474

CHRISTOPHER MOSES ]
Petitioner, ] Supreme Court Case No.
v. ]
TRATON CORP., et al. ] S07C1858
Respondent. ]

CERTIFICATE OF SERVICE AND FILING

This is to certify that on this day I filed with the Court

one (1) original and seven (7) copies, and served one (1) copy

of the within and foregoing PETITIONER'S REPLY BRIEF 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

[SIGNATURE TO FOLLOW]

__ September 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