Professional Documents
Culture Documents
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
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.
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
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,
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
II. FACTS
Counsel for Plaintiff incorporates by reference all of the facts recited in Plaintiff's
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
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
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,
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
4
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,"
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
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
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
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,
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
are disallowed under OCGA § 9-15-14. Plaintiff plans to show the impropriety of these costs
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
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,
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
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
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.
8
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
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
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
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
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
To show possession, Plaintiff proffered the following evidence to this Court, much of
(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
(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-
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.
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
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
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
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
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
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.
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
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
witnesses.
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
Initially, Plaintiff again notes that Defendants deliberately chose to continue with
discovery, rather than rationally discussing this with Plaintiff. Thus, Defendants must shoulder
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.
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:
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
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'
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
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. ]
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.
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:
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