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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

MEMORANDUM IN OPPOSITION TO
DEFENDANTS' RENEWED MOTION FOR ATTORNEYS'
FEES AND EXPENSES OF LITIGATION

COMES NOW counsel for Plaintiff and hereby files their Memorandum in Opposition to

Defendants' Renewed Motion for Attorneys' Fees and Expenses of Litigation ("Renewed

Opposition to Attorney's Fees").

I. INTRODUCTION

OCGA §§ 9-15-14(a) and 9-15-14(b) only permit recovery of attorney's fees that are both:

(1) reasonable; and (2) necessary. Indeed, OCGA § 9-15-14(d) expressly prohibits recovery of

any fees that are either unreasonable or unnecessary. Here, none of Defendants' attorney's fees

were necessary, insofar as Plaintiff had agreed to dismiss this action if Defendants simply met

with Plaintiff to rationally discuss this matter. Defendants cannot choose to incur exorbitant

attorneys fees, and thereafter attempt to recoup those fees when all of those fees could have been

entirely avoided from the outset by simply agreeing to rationally discuss the matter with Plaintiff.

Additionally, none of Defendants' attorney's fees can be reasonable, insofar as Defendants

unreasonably chose to incur those fees.

Also, OCGA § 9-15-14(c) strictly prohibits attorney's fees for any claim that is asserted in

good faith. Here, Plaintiff provided ample evidence of his actual possession of the land and,

hence, his standing to bring this action. Defendants cannot accuse Plaintiff of failing to maintain
the property in dispute, refuse to rescind their accusations, and then claim that Plaintiff had no

reasonable basis to believe Defendants' own accusations. Defendants' position is absurd.

As additional examples of Defendants' unreasonableness, Defendants seek to recover

attorney's fees that are wholly unrelated to this Superior Court action. Namely, Defendants have

submitted all of their billing entries, fees, and expenses that Defendants incurred for the appeal.

Fully knowing that any appellate costs are prohibited under OCGA § 9-15-14, Defendants

nevertheless seek to recoup those unrecoverable costs. Moreover, Defendants include costs for

another action that has been wholly dismissed. Had Defendants wanted to recover the costs of

the separate action, Defendants should have filed a motion for attorney's fees in that motion,

rather than attempting to improperly collect it through this case.

In short, Defendants' attorneys fees are neither reasonable nor necessary, and Plaintiff's

position has both legal and factual bases. For at least these reasons, Defendants' Amended and

Renewed Motion for Attorneys' Fees and Expenses of Litigation ("Defendants' Renewed Motion

for Attorneys' Fees") must be DENIED in its entirety.

II. FACTS

Counsel for Plaintiff incorporates by reference all of the facts recited in Plaintiff's

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

Litigation ("Plaintiff's Opposition") as if those facts are expressly set forth herein in their

entireties. Counsel for Plaintiff also incorporates by reference all of the evidence and affidavits

attached to Plaintiff's Opposition. For the sake of brevity, only the most pertinent undisputed

facts are recited herein.

2
A. Facts Relating to Unnecessary and Unreasonable Attorney's Fees

More than three (3) weeks before Defendants' Answer was due, and well before

Defendants accrued any significant attorney's fees, Plaintiff agreed to dismiss the lawsuit if

Defendants would simply confirm that they were willing to reasonably dialogue with Plaintiff.1

No other demands were made in conjunction with Plaintiff's request for a reasonable dialogue.

Defendants acknowledged that they could "let the lawsuit be dropped" by just meeting with

Plaintiff.2 Despite this, they refused to meet with Plaintiff and chose to unnecessarily press

forward with the lawsuit.3 Unlike Defendants, Plaintiff was forced to press forward with this

lawsuit because Defendants refused to rescind their threats of imposing monetary fines on

Plaintiff's home for the damaged right-of-way.4

1
Email Message from Moses to Defendants, October 20, 2005, attached hereto as Exhibit A1
("Upon receiving confirmation that Traton is willing to dialogue with Chris, he has agreed to
dismiss the action without prejudice").
2
Email Message Between Traton Officers, December 8, 2005, attached as Exhibit P ("I feel very
strongly that I want to 'teach this guy a lesson', but as I try to remove my emotionalism from
this, I come back to the question, 'is this the best thing for the company just to meet with the
idiot and let the lawsuit be dropped?'").
3
Id. ("I feel like if word get around that all you have to do is file a lawsuit to get the head man at
Traton to meet with you or what else you might negotiate at that meeting we could be in for a
lot of harassment. It would seem we could find out the cost of not counter-suing but let his
case go to court") (emphasis supplied).
4
Letter from Defendants' Employee to Moses, October 7, 2005, attached hereto as Exhibit C1
("There are two areas of your yard that are in violation of the Covenants, Conditions and
Restrictions of the Lakefield Manor Homeowner's Association. The first area is the pine bed
closest to your driveway. Please remove the weeds and add new pinestraw. The second area
in violation is the front right corner of your yard (looking from the street at your home). Due
to recent conversations you have had with Traton employees, you specifically stated that you
were going to refuse to mow and maintain this portion of your yard. The fact that you have
decided to refuse to mow this portion of your yard has upset your surrounding neighbors, and
is a violation of the CC&R's. If these two violations are not corrected, the Homeowners
Association has the authority to remedy the violations and charge your home for the
expense."); see, also, Plaintiff's Second Request for Admissions to Defendant Traton Corp.,
and Traton Corp.'s Amended Responses and Objections to Plaintiff's Second Request for
3
B. Facts Relating to Reasonableness of Plaintiff's Action

Plaintiff, from the date of purchase of his home, maintained immaculate care of his yard,

including the damaged right-of-way that is contiguous to his lot.5

Defendants' employees, believing that Plaintiff had possession of the land, stated in

writing that the damaged land was Plaintiff's land.6 Additionally, Defendants threatened to

impose monetary fines on Plaintiff if Plaintiff failed to maintain the damaged right-of-way.7

When Plaintiff expressly requested Defendants to rescind their threat,8 Defendants refused to do

so, thereby leading Plaintiff to believe that the damaged land was Plaintiff's land. Plaintiff relied

on Defendants' own accusations in bringing this lawsuit. Defendants never rescinded those

accusations.

In addition to Plaintiff and Defendants uniformly believing that the damaged right-of-way

was Plaintiff's yard, Plaintiff's neighbors considered the damaged property to be Plaintiff's

property.9 Plaintiff's possession of the yard was so blatantly obvious that, when specifically

asked about the damaged right-of-way, Mr. Garry Thomas of the City of Marietta indicated in

writing that it "would be the responsibility of the home owner to repair the grass."10 In other

words, even the City of Marietta confirmed that Plaintiff (i.e., home owner) had possession of the

Admissions (collectively "Traton's Second Admissions"), ¶¶ 25 and 27-55, attached hereto as


Exhibits F and G.
5
Affidavit of Christopher Moses in Support of Plaintiff's Opposition to Defendants' Motion to
Dismiss ("Moses Affidavit 1"), ¶¶ 19-20, attached hereto as Exhibit 1.
6
Email Exchange Between Foster and Moses, attached hereto as Exhibit D1.
7
Letter from Defendants' Employee to Moses, October 7, 2005, attached hereto as Exhibit C1;
see, also, Traton's Second Admissions, ¶¶ 25 and 27-55, attached hereto as Exhibits F and G.
8
See, Email Message to Traton, October 14, 2005, attached hereto as Exhibit O.
9
Letter from Mark Calhoun, September 9, 2006, attached hereto as Exhibit E1; see, also,
Traton's Second Admissions, ¶¶ 25, 55, 72, 78, 95, and 100-103, Exhibits F and G.
10
See, Email Message from Mr. Garry Thomas to Moses, July 27, 2007, attached hereto as

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right-of-way.

Lastly, Defendants' own billing entries evidence the fact that either Defendants' counsel

or this Court had reservations about ruling on summary judgment. Namely, the billing entries

show that counsel for Defendants conducted over five (5) hours of legal research for this matter,

even after the close of summary judgment.11 Had there been "no justiciable issue of fact or law,"

then such legal research would have been completely unnecessary.

C. Facts Relating to Appellate Proceedings

Included in the billing entries are all costs, fees, and expenses related to "defending this

action on appeal to the Court of Appeals."12 Additionally, Defendants seek to recover all costs,

fees, and expenses related to "Plaintiff's Petition for Writ of Certiorari."13 Defendants attempt to

recover over almost $9,000 in unrecoverable appellate costs. Plaintiff plans to show the

impropriety of these costs and fees by cross-examining Defendants, cross-examining counsel for

Defendants, and questioning other witnesses.

D. Facts Relating to a Separate Proceeding

On October 13, 2006, Plaintiff filed a separate action in Cobb County Superior Court,

naming inter alia the two Defendants in this action. The parties voluntarily dismissed that action

upon receiving the ruling from the Court of Appeals. Defendants failed to timely seek attorney's

fees for that action.

Exhibit B1.
11
Exhibit 1 to Affidavit of Attorney's Fees (attached as Exhibit T to Defendants' Motion for
Attorneys' Fees and Expenses of Litigation) ("research regarding Kaolin case cited by Judge").
12
Affidavit of Attorney's Fees, Exhibit T to Defendants' Motion for Attorneys' Fees and
Expenses of Litigation.
13
Affidavit of Attorney's Fees, Exhibit T to Defendants' Motion for Attorneys' Fees and
Expenses of Litigation.
5
Defendants add all of their fees and costs associated with that action as part of the costs

for this action.14 The sum total of those fees and costs is almost $3,300. Plaintiff plans to show

the impropriety of these costs and fees by cross-examining Defendants, cross-examining counsel

for Defendants, and questioning other witnesses.

E. Facts Related to Costs and Fees that are Unrelated to this Proceeding

In addition to all of the appellate costs and all costs associated with the separate action,

Defendants attempt to recoup all costs and fees that are wholly unrelated to this action. For

example, the billing entries include fees for discussions relating to trademark infringement.

Trademark infringement has nothing to do with this lawsuit. These, and other irrelevant costs,

total upwards of $10,000.

Counsel for Defendants argue, on one hand, that this case is "simple," yet in the same

breath Defendants seek to recover tens-of-thousands-of dollars in attorney's fees for such a

"simple" case. Defendants' position is absurd.

In total, Defendants have submitted tens-of-thousands-of-dollars in fees and expenses that

are disallowed under OCGA § 9-15-14. Plaintiff plans to show the impropriety of these costs

and fees by cross-examining Defendants, cross-examining counsel for Defendants, and

questioning other witnesses.

III. LEGAL AUTHORITY

Counsel for Plaintiff incorporates by reference all of the arguments presented in Plaintiff's

Opposition as if those arguments are expressly set forth herein in their entireties. For the sake of

brevity, counsel for Plaintiff recounts a handful of pertinent facts herein.

14
Affidavit of Attorney's Fees, Exhibit T to Defendants' Motion for Attorneys' Fees and

6
A. Statutory Requirements for Assessing Attorney's Fees

Georgia's statute unambiguously requires that attorney's fees be both: (1) necessary; and

(2) reasonable.15 Additionally, the statute provides a safe harbor that prohibits the assessment of

attorney's fees for any claim or defense that was asserted in good faith.16 Here, none of

Defendants' attorney's fees are either reasonable or necessary, thereby precluding the award of

fees under OCGA § 9-15-14. Additionally, all of Plaintiff's claims were asserted in good faith,

thereby precluding the award of attorney's fees.

B. Defendants' Attorneys' Fees are neither Reasonable nor Necessary

OCGA § 9-15-14(d) recites:

Attorney's fees and expenses of litigation awarded under this Code


section shall not exceed amounts which are reasonable and
necessary for defending or asserting the rights of a party.17

The statute mandates that attorney's fees be both: (1) reasonable; and (2) necessary. Thus,

if the requested attorney's fees are either unreasonable or unnecessary, then those fees cannot be

awarded. Here, none of Defendants' attorneys' fees are either reasonable or necessary.

Defendant admits that before any significant attorney's fees had accrued for Defendants,

Plaintiff had agreed to dismiss the lawsuit if Defendants simply confirmed that they were willing

to rationally dialogue with Plaintiff.18 No other requests were made in conjunction with

Plaintiff's request for a reasonable dialogue. Plaintiff made this offer within one (1) week of

Expenses of Litigation ("Defending the subsequent action filed by Plaintiff").


15
OCGA §§ 9-15-14(a), (b), (d), and (f).
16
See, OCGA § 9-15-14(c).
17
OCGA § 9-15-14(d), emphasis supplied.
18
Email Message from Moses to Defendants, October 20, 2005, Exhibit A1; see, also, Traton's
Second Admissions, ¶¶ 152-153, Exhibits F and G.
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filing the lawsuit.19

Defendants acknowledged that they could "let the lawsuit be dropped" by just meeting

with Plaintiff.20 Despite this, Defendants refused to discuss this matter with Plaintiff, and chose

to press forward with the lawsuit.21 In other words, none of the fees and costs associated with

this action was necessary, since Defendants could have avoided all costs without even filing their

Answer.

This Court cannot burden Plaintiff with Defendants' unreasonable choice to press

forward, when their defense that was completely unnecessary. Indeed, OCGA §§ 9-15-14(a), (b),

and (d) uniformly prohibit any fees that are either unreasonable or unnecessary. Unlike Plaintiff,

who was forced to press forward with the lawsuit due to Defendants' threats to impose fines on

his home, Defendants had no reason or need to continue litigation. For this reason alone,

Defendants' attorney's fees are entirely unnecessary and unreasonable, and Defendants' motion

should be DENIED in its entirety.

C. The Safe Harbor Clause of OCGA § 9-15-14(c) Provides an Absolute Bar to


Defendants' Claims for Attorney's Fees

Georgia's statute also 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.22

Attorneys' fees are inappropriate when, "even assuming that the authority upon which

19
Email Message from Moses to Defendants, October 20, 2005, Exhibit A1.
20
Email Message Between Traton Officers, December 8, 2005, Exhibit P.
21
Id.
22
OCGA § 9-15-14(c), emphasis supplied.
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appellee relied was the more persuasive, it cannot be said that the authority upon which appellant

relied was entirely unpersuasive."23 Thus, a prevailing party, even on summary judgment, "is not

perforce entitled to an award of attorney fees under this statutory subsection."24 Moreover,

attorney's fees can be assessed only "upon a proper determination,"25 and the court "must

determine whether the claim asserted below either had some factual merit or presented a

justiciable issue of law."26 As such, attorney's fees cannot be awarded if the court finds that

either: (1) the claim had some factual merit; or (2) the claim presented a justiciable issue of law.

Furthermore, "[t]he fact that the Georgia Court of Appeals issued a rather lengthy analysis

of the issue, rather than dismiss the claim summarily, belies [Defendants'] argument."27 Indeed,

the Court of Appeals addressed each and every one of Plaintiff-Appellant's arguments and

provided a reasoned basis for its holding. In view of this, "[w]hile [Plaintiff] was ultimately

unsuccessful in its position, the position does not rise . . . to the level of frivolity or

injusticiability required for the recovery of attorney's fees and expenses of litigation required by

OCGA § 9-15-14."28

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 § 51-9-3,29

23
Hill v. All Seasons Florist, Inc., 201 Ga. App. 870 (1991).
24
Hyre v. Denise, 214 Ga. App. 552 (1994).
25
Deljou v. Sharp Boylston Management Co., 194 Ga. App. 505 (1990).
26
Moore v. Harris, 201 Ga. App. 248 (1991); Brown v. Kinser, 218 Ga. App. 385 (1995).
27
Harrison v. CGU Ins. Co., 269 Ga. App. 549, 554 (2004).
28
Id.
29
"The bare possession of land shall authorize the possessor to recover damages from any person
who wrongfully interferes with such possession in any manner."
9
which requires only "bare possession" to bring a lawsuit for trespass to lands. According to

OCGA § 44-5-165,30 possession can be evidenced by cultivation and maintenance of land. Here,

it is undisputed that Plaintiff exclusively cultivated and maintained the damaged right-of-way.

Such cultivation and maintenance should have been sufficient to show "bare possession,"

especially since all facts should have been viewed in the light most favorable to Plaintiff, the

non-moving party on summary judgment. In other words, 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"31 or that Plaintiff's claims "lacked substantial justification."32

Additionally, even if the damage is done to a right-of-way, which cannot be owned by

individuals, one can nevertheless bring an action for trespass to rights-of-way under OCGA § 51-

9-10.33 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."34 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"35

30
"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."
31
OCGA § 9-15-14(a).
32
OCGA § 9-15-14(b).
33
"The unlawful interference with a right of way or a right of common constitutes a trespass to
the party entitled thereto."
34
Clayton County v. Billups Eastern Petroleum Co., 104 Ga. App. 778 (1961).
35
Billups, 104 Ga. App. 778 (1961).
10
of the invasion and "he may recover to the extent of the injury sustained."36 Here, it is

undisputed that Plaintiff was threatened with monetary penalties to his home due to the very

damage that is the subject matter of this lawsuit. Those threats and accusations by Defendants

deprived Plaintiff of his right of use or enjoyment growing out of and appurtenant to his estate as

a direct consequence of the damage to the right-of-way.

Since Plaintiff's action was based on established Georgia statute and legal precedent,

Plaintiff is well within the safe harbor provision of OCGA § 9-15-14(c). Thus, this Court cannot

award attorneys fees to Defendants under OCGA § 9-15-14.

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.37 As such, Plaintiff had a reasonable basis in fact for

advancing this lawsuit.

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 noted his immaculate maintenance of his
yard, including the damaged property.38 This fact showed Plaintiff's maintenance
and cultivation of the yard, which was evidence of actual possession.39

36
Billups, 104 Ga. App. 778 (1961).
37
Affidavit of Sam Han in Support of Plaintiff's Opposition to Defendants' Motion for Attorneys'
Fees and Expenses of Litigation ("Han Affidavit"), ¶¶ 57 through 60; Affidavit of Christopher
Moses in Support of Plaintiff's Opposition to Defendants' Motion for Attorneys' Fees and
Expenses of Litigation ("Moses Affidavit 2"), ¶¶ 6 through 12.
38
Moses Affidavit 1, ¶¶ 19-20, Exhibit 1.
39
"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."
11
(2) Defendants' accusation that the damaged land was Plaintiff's land.40 This
acknowledgement evidenced that Plaintiff actually possessed the damaged land
(i.e., "your land").41

(3) Defendants threat to impose monetary fines on Plaintiff if Plaintiff failed to


maintain the damaged right-of-way,42 and Defendants' refusal to rescind that
threat.43 It is axiomatic that one cannot be burdened to maintain property that one
neither owns nor possesses.

(4) Plaintiff's neighbors noting that the damaged property was Plaintiff's property.44
The neighbors' belief that the damaged property was Plaintiff's property was
evidence of actual possession.

Plaintiff's possession of the yard was so blatantly obvious that, when specifically asked

about the damaged right-of-way, Mr. Garry Thomas of the City of Marietta indicated in writing

that it "would be the responsibility of the home owner to repair the grass."45 In other words, even

the City of Marietta confirmed that Plaintiff (i.e., home owner) had possession of the right-of-

way.

Furthermore, Defendants' own billing entries evidence the fact that either Defendants'

counsel or this Court had reservations about ruling on summary judgment. Namely, the billing

entries show that counsel for Defendants conducted over five (5) hours of legal research for this

40
Email Exchange Between Foster and Moses, Exhibit D1; see, also, Traton's Second
Admissions, ¶¶ 25 and 27-55, Exhibits F and G.
41
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 damaged property.
42
Letter from Defendants' Employee to Moses, October 7, 2005, Exhibit C1; Traton's Second
Admissions, ¶¶ 25 and 27-55, Exhibits F and G.
43
See, Email Message to Traton, October 14, 2005, Exhibit O.
44
Letter from Mark Calhoun, Exhibit E1; Traton's Second Admissions, ¶¶ 25, 55, 72, 78, 95, and
100-103, Exhibits F and G.
45
See, Email Message from Mr. Garry Thomas to Moses, July 27, 2007, Exhibit B1.
12
matter, even after the close of summary judgment.46 Had there been "no justiciable issue of fact

or law," then such legal research after the summary judgment hearing would have been

completely unnecessary.47

In addition to these particular facts, all of the other facts (which are recited in Plaintiff's

assorted pleadings and motions and largely admitted in judicio by Defendants) provide the

factual bases for Plaintiff's claims. Since Plaintiff had sufficient factual bases for his claim, this

Court cannot find that "there was a complete absence of any justiciable issue of . . . fact"48 or that

Plaintiff's action "lacked substantial justification."49 For at least this reason, Plaintiff again falls

within the safe harbor provision of OCGA § 9-15-14(c), which prohibits attorney's fees for any

claim asserted in good faith. Thus, an award of attorneys' fees to Defendants under OCGA § 9-

15-14 would be improper for this additional reason.

3. Defendants' Attorney's Time Entrees are Replete with Fees and


Expenses that are Not Recoverable Under OCGA § 9-15-14

It is settled law that fees, costs, and expenses associated with appellate proceedings

cannot be recovered under OCGA § 9-15-14.50 Additionally, costs associated with a wholly

separate action are not recoverable in this action. Had Defendants wished to recover fees

associated with that separate action, Defendants should have filed their motion at the close of that

46
Exhibit 1 to Affidavit of Attorney's Fees (attached as Exhibit T to Defendants' Motion for
Attorneys' Fees and Expenses of Litigation) ("research regarding Kaolin case cited by Judge").
47
Plaintiff intends to cross-examine counsel for Defendants on the substance of their work for
which Defendants seek to recover attorney's fees. Specifically, Plaintiff intends to cross-
examine Defendants' counsel on numerous unrecoverable entries in their billing statements.
48
OCGA § 9-15-14(a).
49
OCGA § 9-15-14(b).
50
Harkleroad v. Stringer, 231 Ga. App. 464, 472 (1998), citing Dept. of Transp. v. Franco's
Pizza &c., 200 Ga. App. 723, 727 (1991), overruled on other grounds, White v. Fulton County,
264 Ga. 393, 394 (1994).
13
lawsuit, rather than attempting to recoup those fees through this action. Additionally, had

Defendants wished to recover appellate costs, then Defendants should have filed proper motions

with the appellate courts, rather than trying to improperly collect those appellate costs under

OCGA § 9-15-14.

Defendants also cannot recoup costs that have no bearing to this matter, since those costs

are neither reasonable nor necessary for the defense of the matter at hand.51 As set forth in

greater detail below, Defendants have improperly attempted to recover such costs. Strangely,

counsel for Defendants filed an affidavit swearing to the propriety of these improper fees.52

Insofar as the Affidavit of Attorney's Fees fails to properly identify recoverable costs and falsely

certifies that all costs are recoverable, that falsely-sworn affidavit should be stricken in its

entirety.

i. Defendants Seek to Improperly Recoup Costs, Fees, and Expenses


Related to Appellate Proceedings

It is well-established that appellate costs and fees are unrecoverable under OCGA § 9-15-

14.53 Despite this, Defendants seek to recover all appellate costs and fees, such as "defending

this action on appeal to the Court of Appeals," "responding to a Motion for Reconsideration

[appellate],""responding to Plaintiff's Petition for Writ of Certiorari," and "responding to

51
See, generally, OCGA §§ 9-15-14(a), (b), and (d).
52
Affidavit of Attorney's Fees, Exhibit T to Defendants' Motion for Attorneys' Fees and
Expenses of Litigation ("The professional services rendered and the litigation expenses
incurred were customary, reasonable, necessary, and justified in defending the civil action in
light of the nature of this litigation. The professional services rendered total an amount not
less than $69,358.63 to date.").
53
Harkleroad v. Stringer, 231 Ga. App. 464, 472 (1998), citing Dept. of Transp. v. Franco's
Pizza &c., 200 Ga. App. 723, 727 (1991), overruled on other grounds, White v. Fulton County,
264 Ga. 393, 394 (1994).
14
Plaintiff's Motion for Reconsideration [appellate]."54 In other words, Defendants attempt to

recover over almost $9,000 in unrecoverable appellate costs.

Despite being fully aware that none of these costs are recoverable under OCGA § 9-15-

14, Defendants nevertheless attempt to recover those costs. To add to their impropriety, counsel

for Defendants files a sworn affidavit, certifying to this Court that those fees are "customary,

reasonable, necessary, and justified,"55 when counsel for Defendants fully knows that none of

those appellate costs are customary, reasonable, necessary, or justified. Plaintiff plans to show

the impropriety of these costs and fees by cross-examining Defendants, cross-examining counsel

for Defendants, and questioning other witnesses.

ii. Defendants Seek to Improperly Recover Costs, Fees, and Expenses


Related to a Separate Lawsuit

Any costs and fees that are not associated with this action are not recoverable.56 Yet

Defendants seek to recover those unrecoverable costs, fees, and expenses, falsely certifying to

this Court that those fees, costs, and expenses are "customary."57

On October 13, 2006, Plaintiff filed a separate action in Cobb County Superior Court,

naming inter alia the two Defendants in this action. The parties voluntarily dismissed that action

immediately after the Court of Appeals issued its ruling related to this matter. Defendants failed

to timely seek attorney's fees for that action. As such, all costs and fees associated with that

action are prohibited.

54
Affidavit of Attorney's Fees, Exhibit T to Defendants' Motion for Attorneys' Fees and
Expenses of Litigation.
55
Affidavit of Attorney's Fees, Exhibit T to Defendants' Motion for Attorneys' Fees and
Expenses of Litigation.
56
See, generally, OCGA § 9-15-14(a), (b), (d), and (g) (requiring "reasonable and necessary").
57
Affidavit of Attorney's Fees, Exhibit T to Defendants' Motion for Attorneys' Fees and

15
In an attempt to recoup costs that they cannot recover, Defendants add all of their fees and

costs associated with that separate action as part of the fees and costs for this action.58 In other

words, Defendants add almost $3,300 in fees and costs that are associated with that separate

action, knowing fully that those fees cannot be recovered in this action. Again, Defendants

support their improper fees with a sworn affidavit, where counsel for Defendants falsely certifies

that all of those costs are "customary, reasonable, necessary, and justified."59 Plaintiff plans to

show the impropriety of these costs and fees by cross-examining Defendants, cross-examining

counsel for Defendants, and questioning other witnesses.

iii. Defendants Seek to Recover Fees, Costs, and Expenses for Matters
that are Wholly Unrelated to this Case

In addition to all of the appellate costs and all costs associated with the separate action,

Defendants attempt to recoup costs and fees that are wholly unrelated to this action. For

example, the billing entries include fees for discussions relating to trademark infringement.

Trademark infringement has nothing to do with this lawsuit. There are no claims or

counterclaims relating to trademarks in this action. These, and other irrelevant costs, total

upwards of $10,000. Additionally, counsel for Defendants argue, on one hand, that this case is

"simple," yet in the same breath Defendants seek to recover tens-of-thousands-of dollars in

attorney's fees for such a "simple" case. Defendants speak with a proverbial forked tongue.

In total, Defendants have submitted tens-of-thousands-of-dollars in fees and expenses that

are disallowed under OCGA § 9-15-14. Insofar as Defendants' affidavit supporting their motion

Expenses of Litigation.
58
Affidavit of Attorney's Fees, Exhibit T to Defendants' Motion for Attorneys' Fees and
Expenses of Litigation ("Defending the subsequent action filed by Plaintiff").
59
Affidavit of Attorney's Fees, Exhibit T to Defendants' Motion for Attorneys' Fees and

16
for attorneys' fees fails to properly identify the allowable fees, that affidavit is insufficient to

sustain an award for attorneys' fees.60

Defendants' affidavit should be stricken, and Defendants' motion DENIED in its entirety.

In the alternative, Plaintiff plans to show the impropriety of Defendants' requested costs and fees

by cross-examining Defendants, cross-examining counsel for Defendants, and questioning other

witnesses.

4. 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'

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."61

Initially, Plaintiff again notes that Defendants deliberately chose to continue with

discovery, rather than rationally discussing this with Plaintiff. Thus, Defendants must shoulder

the blame for unnecessarily expanding these proceedings.

Additionally, Defendants' filings show that Defendants deliberately expanded these

proceedings by their gamesmanship in discovery. For example, Plaintiff propounded

interrogatories that were substantively identical to those propounded by Defendants. Rather than

properly responding, Defendants objected and stated that those interrogatories were improper.

This forced Plaintiff to file a motion to compel. Defendants cannot contend that their

interrogatories were proper, and simultaneously contend that Plaintiff's identical interrogatories

Expenses of Litigation.
60
See, generally, Duncan v. Cropsey, 210 Ga. App. 814 (1997).

17
were improper. Insofar as Plaintiff's interrogatories were proper, Defendants cannot recover any

fees or costs associated with responding (or more accurately objecting) to those interrogatories.

Yet another example of Defendants' dilatory tactics is shown by Defendants' responses to

Plaintiff's requests for admissions. For example, Defendant indicated that it "lacks sufficient

knowledge to admit or deny" who are its own corporate officers.62 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,63 as well as on Defendant's own tax statements.64 Such obstructive and

improper responses by Defendants forced Plaintiff to aggressively pursue the needed evidence by

continuing to propound discovery requests. Defendants cannot recover the costs associated with

responding to numerous requests when they were ones that necessitated Plaintiff's numerous

requests.

Also, on January 6, 2006, counsel for Plaintiff received Defendants' letter alleging that

the discovery requests were motivated by harassment.65 On that same day, Plaintiff's counsel

sent his email response, explaining in excruciating detail why the requests were both relevant and

not unduly burdensome.66 In that email response, Plaintiff's counsel indicated that Defendants'

conduct in failing to properly respond to Plaintiff's discovery requests was the cause of Plaintiff's

61
Hyre v. Denise, 214 Ga. App. 552 (1994)
62
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, attached hereto as Exhibits F1
and G1.
63
Admitted by Defendant, Traton's Second Admissions, ¶¶ 104 through 109, Exhibits F and G.
64
Tax Statements of Traton Corp. for 2005, attached hereto as Exhibit V.
65
Han Affidavit, ¶ 20.
66
Han Affidavit, ¶ 22.
18
subsequent discovery requests. Specifically, Plaintiff's counsel explained:

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.67

Ignoring Plaintiff's explanation, Defendants uniformly objected to all of Plaintiff's

requests for admissions and filed a Motion for Protective Order.68 In response, Plaintiff served a

Rule 6.4 Letter, attaching a draft copy of Plaintiff's Opposition to Defendants' Motion for

Protective Order and provided substantially the same reasons stated above.69 Shortly thereafter,

67
Han Affidavit, ¶ 23, emphasis supplied.
68
Han Affidavit, ¶ 24.
69
Han Affidavit, ¶ 25.
19
Defendants withdrew their Motion for Protective Order.70 Defendants have, during the course of

this litigation, twice filed and withdrew motions,71 which Defendants knew were without merit.

Defendants cannot recover fees and costs associated with frivolous filings that they voluntarily

withdrew, since none of those fees are either reasonable or necessary.

Defendants also note the bar grievance filed by Plaintiff against counsel for Defendants.72

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.73

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. Indeed, the inescapable conclusion is that Defendants unnecessarily

expanded the proceedings. Insofar as Defendants' action was the sole cause of the escalation of

this lawsuit, an award of attorneys' fees to Defendants under OCGA § 9-15-14 is improper and

must be DENIED.

70
Han Affidavit, ¶ 26.
71
The other motion, which Defendants withdrew, was Defendants' Motion to Dismiss.
72
Defendants' Renewed Motion for Attorneys' Fees, p. 4.
73
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 hereto as Exhibit W. See, also,
Rebuttal Memorandum: Grievance Against Jeffrey Daxe, filed with the State Bar of Georgia,
April 6, 2006, attached hereto as Exhibit X.
20
IV. CONCLUSION

Defendants neglect to mention that Defendants' own dilatory tactics caused the

unnecessary expansion of this matter. 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.

5th day of May, 2008.

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
Georgia Bar Number 570601
Daniel E. DeWoskin
Georgia Bar Number 220327
PEKOR & DeWOSKIN, LLC
270 Peachtree Street, NW
Suite 1060
Atlanta, GA 30303

21
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. ]

LIST OF EXHIBITS FOR


RENEWED OPPOSITION TO ATTORNEY'S FEES

The exhibits attached to this Renewed Opposition to Attorney's Fees have previously been

submitted with other filings. To avoid ambiguity, exhibits that have been previously submitted are

designated herein with the same exhibit number. As such, any gaps in the exhibit numbering are

intentional.

Exhibit 1: Affidavit of Christopher Moses in Support of Plaintiff's Opposition to Defendants'


Motion to Dismiss ("Moses Affidavit 1")
Exhibit A1: Email Message from Moses to Defendants, October 20, 2005
Exhibit B1: Email Message from Mr. Garry Thomas to Moses, July 27, 2007
Exhibit C1: Letter from Defendants' Employee to Moses, October 7, 2005
Exhibit D1: Email Exchange Between Foster and Moses, September 14, 2005
Exhibit E1: Letter from Mark Calhoun, September 9, 2006
Exhibit F: Plaintiff's Second Request for Admissions to Defendant Traton Corp.
Exhibit F1: Plaintiff's Third Request for Admissions to Defendant Traton Corp.
Exhibit G: Traton Corp.'s Amended Responses and Objections to Plaintiff's Second Request for
Admissions
Exhibit G1: Traton Corp.'s Responses and Objections to Plaintiff's Third Request for Admissions
Exhibit O: See, Email Message to Traton, October 14, 2005
Exhibit P: Email Message Between Traton Officers, December 8, 2005
Exhibit V: Tax Statements of Traton Corp. for 2005
Exhibit W: Memorandum of Grievance Against Jeffrey Daxe, filed with the Office of the
General Counsel of the State Bar of Georgia, March 1, 2006
Exhibit X: Rebuttal Memorandum: Grievance Against Jeffrey Daxe, filed with the State Bar of
Georgia, April 6, 2006

22
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:

MEMORANDUM IN OPPOSITION TO
DEFENDANTS' RENEWED 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

5th day of May, 2008.

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

23

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