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STATE OF GEORGIA
CHRISTOPHER MOSES ]
]
Plaintiff, ] Civil Action File
v. ]
]
TRATON CORP., and ] No.05-1-8395-35
RICK FOSTER ]
] JURY TRIAL DEMANDED
Defendants. ]
In accordance with O.C.G.A. §§ 9-11-56(e) and 56(f), Plaintiff, Christopher Moses, files
this Motion for Leave to File a Supplemental Brief in Opposition to Defendants' Cross-Motion
for Summary Judgment. The basis for this motion is that on September 10, 2006, only two (2)
days after the hearing for Plaintiff's Motion for Summary Judgment and Defendants' Cross-
Motion for Summary Judgment, new evidence was discovered, which supports Mr. Moses'
position that he has a property interest in the right-of-way in front of his home.
2006, from Mr. Mark Calhoun (attached as Exhibit A to the Affidavit of Christopher Moses in
(a) the husband of Ms. Tammy Calhoun, whom Mr. Moses has moved to add as a
Defendant in this matter;
(b) a law enforcement officer; and
(c) a resident of same subdivision as Mr. Moses and bound by the same Covenants
that grant Mr. Moses the property rights in the right-of-way in front of Mr. Moses'
home.
In that hand-written letter, Mr. Calhoun indicated that entry onto the right-of-way in front
Insofar as this letter was written by Mr. Calhoun on September 10, which is two days
after the hearing date, Plaintiff respectfully submits that he could not have presented this
evidence on or before the date of the hearing. Additionally, Mr. Calhoun's letter will aid in the
resolution of Defendants' Cross Motion for Summary Judgment, insofar as it presents facts that
evidence the intent of the parties to the Covenants, which grant Mr. Moses a property interest in
In view of this newly-discovered evidence, Plaintiff moves this Court for leave to file
2
THE SUPERIOR COURT FOR THE COUNTY OF COBB
STATE OF GEORGIA
CHRISTOPHER MOSES ]
Plaintiff, ] Civil Action File
v. ] JURY TRIAL DEMANDED
TRATON CORP., et al. ] No.05-1-8395-35
Defendants. ]
This is to certify that on this day I filed with the Court and served the within and
JUDGMENT DUE TO THE DISCOVERY OF NEW EVIDENCE by first class mail to:
3
THE SUPERIOR COURT FOR THE COUNTY OF COBB
STATE OF GEORGIA
CHRISTOPHER MOSES ]
]
Plaintiff, ] Civil Action File
v. ]
]
TRATON CORP., and ] No.05-1-8395-35
RICK FOSTER ]
] JURY TRIAL DEMANDED
Defendants. ]
I. STATEMENT OF FACTS
For the sake of brevity, Plaintiff recites herein only those facts that are relevant to the
newly-discovered evidence.
On Sunday, September 10, 2006, I was house-sitting for Mr. Ryan Chao, one of my
neighbors, who was away on vacation.1 Mr. Chao had requested that I watch his pets and take
care of his home during his absence.2 On the afternoon of September 10, 2006, I noticed a
plastic bag attached to Mr. Chao's mailbox.3 I took the bag off of Mr. Chao's mailbox.4 Inside
the bag, I found a copy of Defendants' Brief in Opposition to Plaintiff's Motion for Summary
Judgment and in Support of Defendants' Cross Motion for Summary Judgment (hereafter
1
Affidavit of Christopher Moses in Support of Plaintiff's Memorandum in Opposition to
Defendants' Cross Motion for Summary Judgment (hereafter "Moses Affidavit"), ¶ 3, attached
hereto as Exhibit A.
2
Moses Affidavit, ¶ 4.
3
Moses Affidavit, ¶ 5.
4
Moses Affidavit, ¶ 6.
4
"Defendants' Cross Motion").5 On the back of the first page of Defendants' Cross Motion was a
In that hand-written letter, Mr. Mark Calhoun indicated that the mailbox, and the right-of-
way within which the mailbox is situated, is Mr. Calhoun's property, and any entry onto that
I called Mr. Ryan Chao and requested his permission to keep a copy and the original of
the hand-written letter from Mr. Mark Calhoun.7 Mr. Ryan Chao granted me permission to keep
(a) the husband of Ms. Tammy Calhoun, whom Mr. Moses has moved to add as a
Defendant in this matter;9
(b) a law enforcement officer;10 and
(c) a resident of same subdivision as Mr. Moses and bound by the same Covenants
that grant Mr. Moses the property rights in the right-of-way in front of Mr. Moses'
home.11
Insofar as a law enforcement officer and the husband of a potential Defendant believes
that homeowners have a property right in the right-of-way, this evidence is both relevant and
sufficient to overcome Defendants' Cross Motion for Summary Judgment, since all evidence
5
Moses Affidavit, ¶ 7.
6
Moses Affidavit, ¶ 8.
7
Moses Affidavit, ¶ 9.
8
Moses Affidavit, ¶ 10.
9
Moses Affidavit, ¶ 11.
10
Moses Affidavit, ¶ 12.
11
Moses Affidavit, ¶ 13.
5
II. ARGUMENT AND CITATION OF AUTHORITY
Summary Judgment is proper when there is no genuine issue of material fact and the
Judgment, all facts must be viewed in the light most favorable to the non-moving party.13 Here,
for Defendants' Cross Motion for Summary Judgment, Mr. Moses is the non-moving party. As
such, all facts must be viewed in the light most favorable to the non-moving party.
O.C.G.A. § 9-11-56(e) recites that "the Court may permit affidavits to be supplemented
56(f) recites: "Should it appear from the affidavits of a party opposing the motion that he cannot,
for reasons stated, present by affidavit facts essential to justify his opposition, the court may, . . .
The statutory scheme permits supplementation of the record by further affidavits, should
Mr. Moses has not delayed in presenting this newly-discovered evidence. Specifically,
Mr. Moses had no opportunity to present Mr. Mark Calhoun's letter at the hearing on September
8, 2006, since the letter was written and delivered by Mr. Calhoun on September 10, 2006, two
12
OCGA § 9-11-56(c); McCoy v. West Building Materials of Georgia, Inc., 232 Ga. App. 620
(1998).
6
days after the date of the hearing. Additionally, insofar as Mr. Moses is filing this Motion for
Leave and the corresponding Affidavit on the very next business day after the discovery of the
new evidence, Mr. Moses cannot be accused of any delay in presenting this evidence to the
Court.
Insofar as Mr. Calhoun is both a law enforcement officer and a resident of Lakefield
Manor, Mr. Calhoun's understanding of his property rights will aid this Court in its determination
of whether or not to deny Defendants' Cross Motion for Summary Judgment. Specifically,
insofar as Mr. Calhoun is an officer of the law, Plaintiff presumes that Mr. Calhoun is
knowledgeable on what does or does not constitute trespass. Additionally, since Mr. Calhoun is
a resident of Lakefield Manor, Mr. Calhoun's understanding of his property rights is evidence of
Here, clearly, Mr. Calhoun considers that right-of-way in which his mailbox is situated to
be his property. As such, Mr. Calhoun vehemently claims that any ingress onto that property,
What makes this evidence even more compelling is that Mr. Calhoun is the husband of
Tammy Calhoun, who Mr. Moses has moved to add to this lawsuit. As such, Mr. Calhoun
speaks of the very property in which both he and Tammy Calhoun have coterminous interests.
Given the significance of this evidence, Mr. Moses respectfully requests this Court for
Additionally, since all facts must be viewed in the light most favorable to the non-moving
party, when Mr. Calhoun's letter is viewed in the light most favorable to Mr. Moses, it is clear
13
Clifton v. Zemurray, 223 Ga. App. 756, 758 (1996).
7
that the parties to the Covenants intended the Covenants to grant each home owner a property
III. CONCLUSION
The newly-discovered evidence supports Mr. Moses' position that the home owners have
a property right in the right-of-way in front of their respective homes. Since this evidence only
came into existence after the date of the hearing, and since this evidence is being submitted
without delay, this Court should GRANT Plaintiff's Motion to Supplement the Record.
Additionally, since all facts must be viewed in the light most favorable to Mr. Moses, and
since the newly-discovered evidence shows the intent of the parties to the Covenant to grant a
property interest in the right-of-way in front of each home to its respective home owner, this
8
THE SUPERIOR COURT FOR THE COUNTY OF COBB
STATE OF GEORGIA
CHRISTOPHER MOSES ]
Plaintiff, ] Civil Action File
v. ] JURY TRIAL DEMANDED
TRATON CORP., et al. ] No.05-1-8395-35
Defendants. ]
This is to certify that on this day I filed with the Court and served the within and
9
Exhibit
A
10