MOSES Memorandum Opposing TRATON Motion For Attorneys Fees FINAL

THE SUPERIOR COURT FOR THE COUNTY OF COBB
STATE OF GEORGIA
CHRISTOPHER MOSES ]
Plaintiff, ] Civil Action File
v. ]
] No.05-1-8395-35
TRATON CORP., et al. ]
Defendants. ] JURY TRIAL DEMANDED
PLAINTIFF'S MEMORANDUM IN OPPOSITION TO

DEFENDANTS' MOTION FOR ATTORNEYS'
FEES AND EXPENSES OF LITIGATION
COMES NOW Plaintiff, by and through its undersigned attorney, and hereby files its
Memorandum in Opposition to Defendants' Motion for Attorneys' Fees and Expenses of
Litigation ("Defendants' Motion for Attorneys' Fees").
I. INTRODUCTION
Defendants incorrectly allege that Plaintiff advanced a claim that had a complete absence
of any justiciable issue of law or fact when:
(a) most, if not all, of Plaintiff's alleged facts were conclusively established by
Defendants' own admissions; and
(b) the legal bases for Plaintiff's claims comes from express statutory provisions,
which grant to Plaintiff a right to bring a trespass action if Plaintiff can show 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
1
246 Ga. App. 120 (2000).
2
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. On May 27, 2004, Mr. Moses purchased his home from one of the
Traton entities (hereinafter collectively referred to as "Traton").
b. Mr. Moses' home is situated within the Lakefield Manor
subdivision.
c. Traton is involved in the development of homes in the Lakefield
3
Affidavit of Sam S. Han in Support of Plaintiff's Memorandum in Opposition to Defendants'
Motion for Attorneys' Fees and Expenses of Litigation ("Han Affidavit"), ¶ 4.
4
Han Affidavit, ¶ 5.
5
Han Affidavit, ¶ 6; Affidavit of Christopher Moses in Support of Plaintiff's Memorandum in
Opposition to Defendants' Motion for Attorneys' Fees and Expenses of Litigation ("Moses
Affidavit"), ¶ 5.
6
Han Affidavit, ¶ 7; Moses Affidavit, ¶¶ 6 through 12.
2
Manor subdivision.
d. Since the purchase of his home, Mr. Moses has always maintained
immaculate care of the lawn that is attached to his home, including
the right-of-way that is part of his yard.
e. The damaged property is visibly indistinguishable from his
recorded lot, and contiguous, if not overlapping, with Mr. Moses'
recorded lot.
f. Subsequent to Mr. Moses' purchase of his home, contractors
delivered materials to construction sites within the Lakefield
Manor subdivision.
g. Traton was aware that contractors delivered materials to the
construction sites within the Lakefield Manor subdivision.
h. Given the ongoing construction within the Lakefield Manor
subdivision, Traton also functions as the Home Owners'
Association (HOA).
i. Mr. Foster wrote: "As for your [Mr. Moses'] yard issues, simply
stated, Traton has fixed your corner many times in the past due 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."
j. Mr. Moses complained to Traton about damage to his yard
k. Mr. Moses requested Traton to discontinue driving over Mr.
Moses' property.
l. Mr. Moses called Traton on more than one occasion
m. Traton did not return all of Mr. Moses' phone calls.
n. Mr. Moses filed a grievance against Traton using Traton's Internet
form.
o. Mr. Rick Foster replied by email and copied one or more officers
of Traton in his reply.
p. In that email, Mr. Foster expressly stated that Traton would not fix
the yard.
q. Traton cited Mr. Moses' damaged yard as being in violation of the
subdivision Covenant.
r. The HOA and others in the neighborhood consider the damaged
yard to be Mr. Moses' yard.
s. Mr. Moses filed a complaint with the Better Business Bureau
("BBB"), in which Mr. Moses expressly noted the destruction of
his yard.
t. Rather than calling Mr. Moses to discuss these issues, Traton
responded to Mr. Moses through its attorneys, and demanded 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
7
8
9
10
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
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
As such, Plaintiff's counsel relied on at least the above-recited facts and law in assessing
the reasonableness of Plaintiff's case prior to filing the Complaint,21 and all of the above-recited
facts and law formed the bases for filing the Complaint.22
Prior to filing the lawsuit, and also during the course of litigation, Plaintiff attempted on
numerous occasions to discuss this matter rationally with Defendants.23 Defendants refused to
open communications with Plaintiff.24
Subsequent to filing the Complaint, Plaintiff received, through counsel, a letter
("Defendants' First Letter"), dated November 22, 2005, which indicated Defendants' intent to
assert a claim for abusive litigation against Plaintiff.25 Shortly after receiving Defendants' First
Letter, Plaintiff's counsel again reviewed all of the above-recited statutes, legal precedent, and
Professor Adams' treatise.26 Upon this subsequent review, Plaintiff's counsel concluded that
Plaintiff had a reasonable basis for continuing with this lawsuit.27
On January 6, 2006, counsel for Plaintiff received a letter ("Defendants' Second Letter")
indicating Defendants' belief that the discovery requests were motivated by harassment.28 On
that same day, Plaintiff's counsel responded by email ("Email Response"), explaining in
20
109 Ga. App. 763 (1964) ("While consent, or a valid license from an owner of land, is a good
defense to an action of trespass for acts done within the scope of the license, even if given 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
22
23
Moses Affidavit, ¶¶ 13, 15, and 24.
24
Moses Affidavit, ¶ 14 and 16.
25
26
27
28
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
29
30
31
32
33
34
35
36
37
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
38
"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
Upon reviewing at least these laws related to trespass, Plaintiff's counsel again concluded
that Plaintiff had a reasonable legal basis for advancing the lawsuit,46 and that Defendants'
primary case, Pope v. Pulte Home Corporation, did not affect Plaintiff's case, since the basis of
Plaintiff's lawsuit was not ownership, as in Pope, but possession.47
At this time, Plaintiff's counsel was also aware of at least the following facts,48 much, if
not all, of which were admitted by Defendants in response to Plaintiff's Requests for
Admissions:49
a. Mr. Moses filed this lawsuit in Cobb County Superior Court on

October 13, 2005.
b. As a courtesy, a copy of the Complaint was emailed to Traton's
attorney on October 13, 2005
c. Traton was aware of this lawsuit by October 14, 2005.
d. After being put on notice of this lawsuit, Traton agents again
entered onto the damaged portion of the yard, and used lawn
equipment on the damaged portion of the yard.
e. Traton photographed the subsequent entry and the use of their lawn
equipment on the damaged yard.
f. Those photographs were sent to Mr. Moses by Traton's attorneys.
g. On October 14, 2005, Mr. Moses offered to dismiss this case 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.
h. Traton rejected Mr. Moses' offer.51
i. During the course of discovery, Traton served on Mr. Moses a
and the corresponding right to exclude others from using the property).
46
Han Affidavit, ¶ 37; Pekor Affidavit, ¶¶ 5 and 6; DeWoskin Affidavit, ¶¶ 5 and 6.
47
48
49
50
Moses Affidavit, ¶ 15.
51
8
Request for Entry onto Land for Inspection.52
j. Mr. Moses denied Traton's request.53
k. In a second attempt to dispose of this matter, Mr. Moses offered to
dismiss the lawsuit if Traton was "agreeable to making reasonable
efforts to reach a mutually-acceptable resolution."54
l. 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
m. No other demands were made in conjunction with Mr. Moses'
request for a reasonable dialogue.56
n. Traton refused to rationally discuss this matter with Mr. Moses.57
o. Despite Traton's ability to stop the continued ingress onto Mr.
Moses' property by Traton's agents, Traton continued to approve of
the unauthorized entries.
p. Traton never disciplined any of its agents for entering onto Mr.
Moses' property.
q. Traton never disciplined any of its agents for damaging 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
52
53
54
55
56
57
58
59
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
60
61
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
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 § 44-5-
167;75 OCGA § 44-5-165;76 and Friendship Baptist Church, Inc. v. West.77
That Motion for Reconsideration is currently pending before this Court.
To this day, neither Mr. Pekor nor Mr. DeWoskin, either individually or as a corporate
67
Han Affidavit, ¶ 62; Moses Affidavit, ¶ 28; Pekor Affidavit, ¶ 10; DeWoskin Affidavit, ¶ 10.
68
69
70
71
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
entity, has been served with a notice under OCGA § 51-7-84.78
B. Facts that were Recited in Plaintiff's Motion for Summary Judgment
The following facts, which were supported by evidence of record,79 were presented to this
Court, which was required to view these facts in the light most favorable to Plaintiff, who was
the non-moving party on Defendants' Cross-Motion for Summary Judgment.
On May 27, 2004, Plaintiff purchased his home from one of the Traton entities
(hereinafter collectively referred to as "Traton").80 Plaintiff's home is situated within the
Lakefield Manor subdivision.81 Traton is the developer for the Lakefield Manor subdivision.82
Since the purchase of his home, Plaintiff has always maintained immaculate care of the lawn that
is attached to his home,83 including the right-of-way that is part of his yard.84 The right-of-way is
visibly indistinguishable from his recorded lot, and contiguous with Plaintiff's recorded lot.85
Subsequent to Plaintiff's purchase of his home, contractors delivered additional materials
78
Pekor Affidavit, ¶ 4; DeWoskin Affidavit, ¶ 4.
79
Transcript of Motions Hearing ("T."), p. 44, lines 1-5 ("44:1-5").
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
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
86
T. 4:10-13; T. 14:12-14 (Admitted by Defendant, Traton's First Admissions, ¶ 5).
87
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
93
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).
13
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
97
T. 15:14-15 (Admitted by Defendant, Foster's First Admissions, ¶ 22).
98
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
100
T. 5:23-25 (Admitted by Defendant, Traton's Second Admissions, ¶¶ 116 through 118).
101
102
T. 7:9-10; T. 15:25-16:1 (Admitted by Defendant, Traton's First Admissions, ¶ 34). See, also,
Complaint.
103
104
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) Issue an apology for failing to respond to Plaintiff's phone calls and email
messages;
(2) Completely repair the damage done to the yard;
(3) To the best of its ability, instruct Traton's subcontractors to refrain from driving
over Plaintiff's yard; and
(4) Rescind its accusation that the yard was not being properly maintained.110
Traton rejected Plaintiff's offer. Given Traton's refusal to reasonably resolve this matter,
Plaintiff initiated discovery.
During the course of discovery, Traton served on Plaintiff a Request for Entry onto Land
for Inspection.111 In other words, recognizing that Plaintiff was in possession of the land, and
had the right to exclude others from entering onto the land, Traton officially requested
permission from Plaintiff to enter onto Plaintiff's property. Plaintiff denied Traton's request.
damaged to photograph the degree of 'damage' . . .").

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) 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 Plaintiff;
(3) Repair of damaged yard to Plaintiff's satisfaction;
(4) Promise to refrain from future damage;
(5) Promise to fix future damage that can be attributed to Traton; and
(6) Payment of out-of-pocket litigation expenses (~$500) (but not any costs for
attorney time).116
Plaintiff's third offer was rejected.117 Thus, rather than rationally dialoguing with
Summary Judgment as Exhibit K.

112
113
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) Traton does not assume responsibility for the actions of its employees.122
(2) Traton does not assume responsibility for the actions of its agents.123
(3) Traton does not assume responsibility for the actions of its contractors.124
In fact, it appears that Traton refuses to accept responsibility for anything.
Rather than rationally discussing this matter and seeking prompt resolution, Traton
continued to press forth with this lawsuit, despite the numerous opportunities that were provided
to Traton to resolve this issue. In doing so, Traton continued to stall and obstruct discovery. For
example, in responding to discovery requests, Traton indicated that it "lacks sufficient knowledge
to admit or deny" who are its own corporate officers.125 In other words, Traton's position, at one
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
123
124
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
Hill v. All Seasons Florist, Inc., 201 Ga. App. 870 (1991).
131
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
136
"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
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
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
(2) 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
(3) Defendant's acknowledgement that Plaintiff's neighbors considered the damaged
143
OCGA § 9-15-14(a).
144
OCGA § 9-15-14(b).
145
Han Affidavit, ¶¶ 57 through 60; Moses Affidavit, ¶¶ 6 through 12.
146
Affidavit of Christopher Moses in Support of Plaintiff's Opposition to Defendants' Motion to
Dismiss, ¶¶ 19-20.
147
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.
(5) 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.
(6) Plaintiff's refusal to grant access to the land evidences Plaintiff's possession of the
land.
(7) The actions of the parties to the Covenant, namely, the threat by the Homeowners'
Association to impose monetary fines on Plaintiff if Plaintiff failed to 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
In addition to these particular facts, all of the other facts, recited above and largely
admitted in judicio by Defendants, provide the factual bases for Plaintiff's claims. Since
Plaintiff's action is based on such undisputed facts, this Court cannot find that "there was a
complete absence of any justiciable issue of . . . fact"155 or that Plaintiff's action "lacked
substantial justification."156 Thus, an award of attorneys' fees to Defendants under OCGA § 9-
15-14(a) would be improper.
150
Traton's Second Admissions, ¶¶ 25, 55, 72, 78, 95, and 100-103.
151
Traton's Second Admissions, ¶¶ 25, 55, 72, 78, 95, and 100-103.
152
Defendants' Request for Permission to Enter Upon Land for Inspection.
153
Traton's Second Admissions, ¶¶ 25 and 27-55.
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
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
159
160
161
162
163
164
Georgia Law of Torts, Thomson-West Publishing. Han Affidavit, ¶ 13.
165
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
168
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
169
170
Hyre v. Denise, 214 Ga. App. 552 (1994)
171
172
173
Email Exchange between Traton Officers, December 8, 2005, Attached to Plaintiff's Motion
for Summary Judgment as Exhibit P.
174
25
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
177
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
178
179
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
Court and is currently being appealed.
Defendants also note the bar grievance filed by Plaintiff against counsel for
Defendants.184 However, the substance of the bar grievance further evidences the dilatory tactics
of Defendants' counsel, which unnecessarily expanded these proceedings. Specifically, the basis
of the bar grievance was the failure of Defendants' counsel to properly produce documents, which
had been expressly promised in writing by counsel for Defendants. Had counsel for Defendants
properly kept his promise, then Plaintiff would not have felt compelled to file such a
grievance.185
These, and numerous other examples, show the reasonableness of Plaintiff's actions and
the unreasonableness of Defendants' actions during the course of this litigation. In view of such
dilatory tactics by Defendants' counsel, this Court cannot find that Plaintiff unnecessarily
expanded these proceedings. As such, an award of attorneys' fees to Defendants under OCGA §
9-15-14(b) would be improper and must be denied.
IV. CONCLUSION
As shown above, Plaintiff initiated and advanced his claim because:
(a) most, if not all, of Plaintiff's alleged facts were conclusively established by
Defendants' own admissions; and
(b) the legal bases for Plaintiff's claims comes from express statutory provisions,
which grant to Plaintiff a right to bring a trespass action if Plaintiff can show bare
possession.
184
Defendants' Motion for Attorneys' Fees, p. 4.
185
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
246 Ga. App. 120 (2000).
187
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
Daniel E. DeWoskin
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, ] Civil Action File
v. ]
] No.05-1-8395-35
TRATON CORP., et al. ] JURY TRIAL DEMANDED
Defendants. ]
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
SAM HAN, P.C.
330 Bloombridge Way
Marietta, GA 30066
Phone: (404) 514-8237
email: sam.han.pc@gmail.com
31

MOSES Memorandum Opposing TRATON Motion For Attorneys Fees FINAL

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THE SUPERIOR COURT FOR THE COUNTY OF COBB

PLAINTIFF'S MEMORANDUM IN OPPOSITION TO

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

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

of any justiciable issue of law or fact when:

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

possession in any manner."2

requests for admissions upon Defendants.

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

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

open communications with Plaintiff.24

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

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

Plaintiff's lead counsel, personally.35

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

a. Mr. Moses filed this lawsuit in Cobb County Superior Court on

continuing to advance this lawsuit.58

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

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

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

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

That Motion for Reconsideration is currently pending before this Court.

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

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

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

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

a violation of the Covenant.

demanded that Plaintiff stop contacting Traton.

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

Plaintiff initiated discovery.

damaged to photograph the degree of 'damage' . . .").

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

In that offer, Plaintiff requested the following:

Summary Judgment as Exhibit K.

and further damaging the yard).

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

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

III. LEGAL AUTHORITY

Georgia's statute provides that:

No attorney or party shall be assessed attorney's fees as to any

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

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

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

property that is contiguous to the deeded property.

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

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

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

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

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

15-14(a) would be improper.

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

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

under OCGA § 9-15-14 would be improper.

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

Defendants' counsel and exchanges with opposing counsel.

i. Statements by Counsel for Defendants Reveal that

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

so that it could be handled in similar fashion.169

ii. Much of the Discovery Propounded by Plaintiff was

proceedings by any relevant form of improper conduct."170