IN THE COURT OF APPEALS OF GEORGIA CHRISTOPHER MOSES Plaintiff-Appellant, v. TRATON CORP., et al. Defendants-Appellees. ] ] ] ] ] Case Number A07A1474
MOTION FOR RECONSIDERATION COMES NOW Appellant, Christopher Moses, and respectfully moves this Honorable Court for reconsideration. The outcome of this case is of great concern, gravity, and importance to the public because the Court's Opinion: (a) eviscerates a homeowner's ability to prevent others from damaging property that affects the value of the home; requires the County to maintain property that has, prior to this decision, always been understood by the general public as being the responsibility of the homeowner; exposes the County to liabilities for hazardous conditions on property that has, prior to this decision, always been maintained by homeowners; and prevents homeowners' requiring homeowners way that adjoins the of that right-of-way of the homeowner. associations ("HOA") from to properly maintain the right-ofhomeowners' lots, when maintenance has always been the responsibility
(b)
(c)
(d)
Surely the Court cannot intend such far-reaching consequences from this particular decision.
Appellant moves under Rule 37(e), noting that this Honorable Court has overlooked a material fact in the record and a statute which is controlling as authority and which would require a different judgment from that rendered. Appellant respectfully requests that this Honorable Court GRANT Appellant's Motion for Reconsideration. 19 July 2007. Respectfully submitted,
SAM HAN, P.C. 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
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IN THE COURT OF APPEALS OF GEORGIA CHRISTOPHER MOSES Plaintiff-Appellant, v. TRATON CORP., et al. Defendants-Appellees. ] ] ] ] ] Case Number A07A1474
BRIEF IN SUPPORT OF APPELLANT'S MOTION FOR RECONSIDERATION COMES NOW, Appellant, Christopher Moses, and files this Brief in Support of Appellant's Motion for Reconsideration under Rule 37(e), noting that this Court has overlooked a material fact in the record, and a statute which is controlling as authority and which would require a different judgment from that rendered. I. INTRODUCTION The outcome of this case is of great concern, gravity, and importance to the public because this Court's Opinion: (a) obliterates a homeowner's ability to prevent others from damaging property which directly affects the value of the home; requires the County to maintain property that has, prior to this decision, always been understood by the general public as being the responsibility of the homeowner; shifts liability from a homeowner to the County for hazardous conditions in the right-of-way portion of the homeowner's yard; and
(b)
(c)
(d)
prevents homeowners' associations ("HOA") from requiring homeowners to properly maintain the right-ofway that adjoins a homeowner's lots, despite the fact that homeowners have always been responsible for the maintenance of the right-of-way that forms a portion of the yard.
Surely the Court cannot intend such a far-reaching consequence from this particular decision. Here, both parties agree that the damage to the right-of-way affects the value of the home. Additionally, it is undisputed
that the homeowners' association imposed the burden of maintaining the damaged right-of-way on Mr. Moses (rather than requiring the County to maintain a portion of everyone's yard). Yet, Traton argued that Mr. Moses had no rights in the very land that directly affects the value of his home, and which Mr. Moses has always possessed and has always undertaken the responsibility to maintain. It is manifestly unjust, contrary to established precedent, and contrary to common sense for: (a) Traton to damage the rightof-way, thus detrimentally affecting the value of Mr. Moses' home; (b) require Mr. Moses to repair the damage that Traton caused; and (c) leave Mr. Moses with no legal recourse to prevent future damage to that right-of-way. Mr. Moses has submitted undisputed evidence to show that the Page 2
damaged right-of-way diminishes the value of his home and, hence, diminishes his enjoyment of his property. This Court, in
overlooking this fact, has overlooked a material fact in the record. Also, in addition to advancing his case under OCGA § 51-9-2, Mr. Moses advanced his case under OCGA § 51-9-3. However, in
wholly ignoring OCGA § 51-9-3 and focusing solely on OCGA § 51-92, this Court ignores a statute that is controlling as authority and which would require a different judgment from that rendered. II. ARGUMENT 1. This Court's Decision Imposes an Incredible Burden on the County to Maintain a Portion of Every Homeowners' Yard
This Court notes that "[t]he covenants merely require Moses and other Lot owners to maintain their Lots, and neither Moses's Lot nor any other owner's Lot includes the right of way."1 If
the Covenants do not cover the right-of-way portion of everyone's yard, then none of the homeowners are responsible for maintaining that portion of the yard. Consequently, the County would be
responsible for the proper maintenance and repair of that portion
1
Moses, v. Traton Corp., et al., Appeal No. A07A1474, 2007 Ga. App. LEXIS 811, *8-*9 (July 10, 2007). Page 3
of every homeowner's yard.
In other words, the consequence of
this Court's decision is that the County is now exposed to an obligation to repair and maintain the rights-of-way that form a part of every homeowner's yard.2 In short, despite the fact that Traton damaged the yard, the County would be responsible for repairing that damage. Going
further, the County would be a necessary party to every dispute relating to the rights-of-way that adjoin every homeowner's property. Surely, this cannot be the intended consequence of
this Court's decision. As both parties agree, this portion of the right-of-way, which is visibly indistinguishable from the homeowner's land, has historically always been the responsibility of the homeowner, whose home is contiguous to that right-of-way. did, this Court: (a) eviscerates a homeowner's ability to prevent others from damaging property which directly affects the value of the home; requires the County to maintain property that has, prior to this decision, always been understood by the general public to be the responsibility of the homeowner; shifts liability from a homeowner to the County for By ruling as it
(b)
(c)
2
R. 493-510 (see Exh. A, attached). Page 4
hazardous conditions in the right-of-way that forms a portion of the homeowner's yard; and (d) prohibits homeowners' associations ("HOA") from requiring homeowners to properly maintain the right-ofway that adjoins the homeowners' lots, despite the fact that the homeowners have historically always been held responsible for the condition of this right-of-way.
Appellant respectfully moves this Court for reconsideration of its decision in view of the significant impact of this Court's Opinion. 2. In Determining Standing, the Court Overlooks a Material Undisputed Fact: that the Damaged Right-of-Way Detrimentally Affects the Value of Mr. Moses' Home and Mr. Moses' Enjoyment of His Home
Both Parties agree that the condition of the right-of-way, which is contiguous to a homeowners' lot, affects the homeowners' enjoyment of his land.3 Yet, this Court finds that "Moses has
identified no diminishment in his right of user [sic] or enjoyment with respect to his own property . . . ."4 In
overlooking the fact that Mr. Moses' enjoyment of his land is diminished by the damaged right-of-way, this Court overlooks a material fact. To be clear, Mr. Moses does not claim that he has the right
3 4
T. 49:13-16; T. 50:3-8; T. 41:11-21. Moses, v. Traton Corp., et al., Appeal No. A07A1474, 2007 Ga. App. LEXIS 811, *7 (July 10, 2007). Page 5
to exclude the general public from simply traversing the rightof-way if such an act does not damage the land or affect the value of his home. However, Mr. Moses claims that he has the
right to prevent others from damaging the right-of-way, especially when such damage affects the value of his home and his right to enjoyment of his home.5 Here, it is undisputed that the condition of the right-ofway affects the value of Mr. Moses' home.6 Indeed, the
homeowners' association's threat to impose monetary penalties on Mr. Moses' home7 detrimentally affects Mr. Moses' enjoyment of his home. By showing that the damaged right-of-way detrimentally
affects the value of his home and his enjoyment of his home,8 Mr. Moses has proven a real harm to his own property. For this
reason, Mr. Moses has standing to bring an action on the very property that affects the value of his home.9 Mr. Moses respectfully requests reconsideration based on the fact that the Court overlooked this material fact.
5 6 7 8 9
OCGA § 51-9-1. T. 49:13-16; T. 50:3-8; T. 41:11-21. R. 66-67 and 71-72. OCGA § 51-9-1. OCGA § 51-9-1. Page 6
3.
Actual Possession Under OCGA § 51-9-3, which This Court Overlooks, is a Separate Legal Inquiry than Possessory Interest Under OCGA § 51-9-2
This Court wholly ignores OCGA § 51-9-3, which, if considered, would require a different judgment than that rendered. Namely, this Court recites: "in light of our rulings
herein with respect to Moses's lack of legal interest in the right of way, the facts Moses points to, such as his mowing of the area, or another property owners' opinions with respect to Moses's legal interest in the land, are not sufficient to create in Moses a legally cognizable possessory interest in the public right of way."10 The Court focuses solely on OCGA § 51-9-2, which addresses possessory interest, and wholly ignores the separate and distinct statutory provision of OCGA § 51-9-3, which is directed to actual possession. OCGA § 51-9-3 recites that "[t]he bare possession of
land shall authorize the possessor to recover damages from any person who wrongfully interferes with such possession in any manner."11 In other words, not only does the Georgia Code
10 11
Moses, v. Traton Corp., et al., Appeal No. A07A1474, 2007 Ga. App. LEXIS 811, *9 (July 10, 2007). See, OCGA § 51-9-3 (emphasis supplied). Page 7
address possessory interest,12 the Georgia code also addresses actual possession.13 Mr. Moses advanced his case under OCGA § 51-9-3,14 yet this Court wholly disposes of OCGA § 51-9-3 by dismissing all of Mr. Moses' factual indicia of actual possession.15 In other words,
rather than viewing the evidence to see if Mr. Moses had actual possession, the Court begins with the conclusion that Mr. Moses did not have a possessory interest and, from there, summarily concludes that an analysis of actual possession is unnecessary. Insofar as actual possession under OCGA § 51-9-3 is a distinct inquiry from possessory interest under OCGA § 51-9-2, this Court cannot simply ignore the factual indicia of actual possession under a separate statutory provision, regardless of this Court's conclusion on possessory interest. This is
especially so on summary judgment, when all facts must be viewed in favor of Mr. Moses. "Actual possession of lands may be evidenced by enclosure,
12 13 14 15
See, OCGA § 51-9-2. See, OCGA § 51-9-3. See, Appellant's Appeal Brief at 15, 26, and 27. Moses, v. Traton Corp., et al., Appeal No. A07A1474, 2007 Ga. App. LEXIS 811, *9 (July 10, 2007). Page 8
cultivation, or any use and occupation of the lands[,]"16 and since actual possession is a separate legal inquiry from possessory interest, the Court was required to consider Mr. Moses' factual indicia of actual possession in the light most favorable to Mr. Moses, and not simply discount it as being irrelevant. For this reason, Mr. Moses respectfully requests the Court to reconsider its Opinion. 4. In View of the Obligations Imposed on Mr. Moses by the Homeowners' Association, It is Manifestly Unjust to Deny Mr. Moses the Right to Prevent Others from Damaging the Very Land Which the Homeowners' Association Obligates Mr. Moses to Maintain
It is undisputed that the homeowners' association obligated Mr. Moses to maintain the right-of-way that abuts his lot.17 The
homeowners' association threatened that if Mr. Moses failed to repair the damage that Traton caused, then the homeowners' association would impose monetary penalties on Mr. Moses.18 It
is indisputable that the threat of such monetary penalties, which are directly tied to the home itself, will adversely affect a homeowners' enjoyment of his home.
16 17 18
This is exactly what happened
OCGA § 44-5-165. T. 58:11-22. R. 368-370, 400-402. R. 66-67 and 71-72. Page 9
in this case:
Mr. Moses' enjoyment of his own home was
detrimentally affected by the obligation that the homeowners' association imposed on Mr. Moses due to the damaged land. Mr. Moses respectfully submits that it is manifestly unjust to deny Mr. Moses the right to prevent others from damaging the right-of-way that forms a portion of his yard, when that very damage and threat of financial penalties adversely affects his right to the enjoyment of his own home.19 For this reason, Mr. Moses respectfully requests the Court to reconsider its Opinion. III. CONCLUSION For at least the reasons set forth above, Mr. Moses respectfully requests that this court GRANT Appellant's Motion for Reconsideration or, in the alternative, that this Court issue a clarifying Order that relieves Mr. Moses of any obligation to maintain the damaged property.
19
OCGA § 51-9-1. Page 10
19 July 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
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EXHIBIT A (From R. 493-510)
IN THE COURT OF APPEALS OF GEORGIA CHRISTOPHER MOSES Plaintiff-Appellant, v. TRATON CORP., et al. Defendants-Appellees. ] ] ] ] ] Case Number A07A1474
CERTIFICATE OF SERVICE AND FILING This is to certify that on this day I filed with the Court and served the within and foregoing: (1) (2) APPELLANT'S MOTION FOR RECONSIDERATION; AND BRIEF IN SUPPORT OF APPELLANT'S MOTION FOR RECONSIDERATION.
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 PAGE TO FOLLOW]
19 July 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
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