motion to strike georgia power's verified answer and counterclaim

IN THE SUPERIOR COURT OF DEKALB COUNTYSTATE OF GEORGIA

FILE NO: 07CY1139&6

GEORGIA POWERCOMPANY, et, al.,DEFENDANTS

Respectfully submitted th is 5" day of March, 2008.

60~1BY:

Stone Mountain, GA 30083(770) 879-8737

Fi fed®rDay o 2D00Linda CarterClek k of Superior Court

JANET D. MCDONALD,JAMES B. STEGEMAN,

PLAINTIFFS

V

CIVIL ACTION

PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S ANSWERS

COMES NOW Plaintiffs in the above listed Civil Action and file their MOTION

TO STRIKE DEFANDANT'S ANSWERS_ Plaintiffs file their Brief In Support of

Motion To Strike Defendant's Answers contemporaneously

J T D. MCDUNA W, Pro Se. 821 Sheppard Road

• Stone Mountain, GA 30(}83~` 770) 879-8737

l~ f

BY:B . STEGF 1, Pro Se

Case 1:08-cv-01971-WSD Document 9-4 Filed 07/11/2008 of 29

It

CERTIFICATE OF SERVICE

I Certify that I have this 5d' day of March, 2008 saved a copy of the foregoing

PLAINTIFF'S MOTION and BRIEF IN SUPPORT OF PLAINTIFF'S MOTION TO

STRIKE DEFENDANT'S ANSWERS upon defendants through their attorney on fi le via

U.S .P.S., F irst Class mail, proper postage pre-paid as follows:

Troutman Sanders, LLPBrian P. Watt5200 Bank of America Pinza600 Peachtree StreetAtlanta, GA 30308-2216

r

Fileday of; p~Candor CarterClark of Superior Court

. ..#f

,NET D. MCDONALD, fro Se821 Sheppard Rd

Stone Mountain. GA 30083(774) 879-8737

1ME$ Pro SC821 Sheppard Rd

Stone MovntaiH, GA 30083(770) 879-8737


.j

0

IN THE SUPERIOR COURT OF DEKALB COUNTYSTATE OF GEORGIA

FILE NO: U7G'v1139&6

GEORGIA POWER COMPANY, et, al.,DEFENDANTS

1 The facts clearly show that Georgia Power did not have an easement at 821 SheppardRoad. Any reference Pla intiffs make about an easement and their property is made only toavoid confusion and to avoid Plaintiffs continually stating that Georgia Power did not have aneasement agreement for their property and for the sake of argument only.

Y JANETD.MCDONALD,JAMES B. STEGEMAN,

PLAINTIFFS

V

CIVIL ACTION

P + S BRIEF IN SUPPORT OF PLAINTIUFF"SMOTION TO STRIKE DEFENDANT'S ANSWERS

Plaintiffs filed their Verified Complaint October 26 , 2007 due to an on-going

dispute with the named Defendants . In support of Plaintiff 's Motion, they show the

following:

I. Plaintiffs Property

Georgia Power has refused to address Pla intiffs claim that the Easement

agreement does not pertain to Plaintiffs property. Nowhere does the easement

agreement or the 1937 map show that Plaintiffs property is included in the agreement . '

To the contrary, Plaintiffs have attached a regular sized copy of the Easement

Agreement and an enlarged copy of the agreement so that it can be easily read. Plaintiffs

have also attached their Property Tax Results and a copy of the Property Map as shown

by DeKalb County. See Exhibit 1.


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The 1937 Easement shows the following description: "_ . . in Land Lot Number

73-74 of the 1 5" District . . ."

The 1941 Easement shows the following description: " . . . in Land Lot Number 37

& 74 of the 18'h District . . ."

Plaintiffs property description shows the following: Land Lot Number 73 of the 18th

District .

Plaintiffs believed they were negotiating with Ms . Huddleston about the easement

issue, and it would be a matter for the Courts before the August 2007 cutting took place .

Georgia Power used State Patrol Troopers by making false statements about Mr . GofP s

life being threatened and "}roper legal documents" to do so even though DeKaIb County

Police, Sheriffs Deputy and Code Enforcement had determined that there was an

easement violation .

Georgia Power denies and would have this Court believe that Senior Troopers of

State of Georgia Department of Public Safety falsely swore their statements in an internal

investigation of the August incident at Plaintiff's home. Response to ¶¶s 54, 55: " . . . that

Exhibit H . . . speaks for itself . . ." are inconsistent with their re sponse to ¶¶s 65, 66 which

concerns Matt Golf and what Matt Gaff represented to State Troopers : 65 :

" . . .denies ., ."; 66: " . . . Georgia Power admits that Matt Go ff conveyed to Georgia State

Troopers that in 2004 . . . Plaintiff McDonald. . . would get her gun . . ." The facts clearly

show that at the 2004 cutting, there was an Officer on the scene, should such a threat had

been made, there would have been an arrest or a Police report in the least .

In recent Discovery requests from Defendants to Plaintiffs, Plaintiffs provided the

other Senior Trooper's statement on the incident in which Senior Trooper Mathis clearly

states that Matt Goff told him " . . . that he had met with the homeowner approximately

one month ago and was . . ." ".. also advise us that Georgia power had obtained the legal

paperwork to perform the job ." Matt Goff had never been threatened by Plaintiffs and

Georgia Power had not acquired "legal paperwork" which could only mean a Court Order

which is what the Troopers told Plaintiffs Georgia Power said they had .


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Plaintiffs have endured a dispute with Georgia Power and have been without the

assets to hire legal counsel to protect their Rights . Plaintiffs are still without the funds for

an attorney and filed this civil action Pro Se against their will and better judgment, but

the violations of Plaintiff s Rights and property must end .

II . Verified Answers

Several issues of the complaint list the only persons) at Georgia Power that could affirm

or deny an allegation, such as Matt Goff or Nancy Huddleston . Defendant's answers

were evasive and or non-responsive, stating: ". . . is not within the personal knowledge o f

any one individual at Georgia Power, . : '; " . . .has been assembled by authorized

employees and counsel . . . "; " . . . from records and files . . ."; "from interviews of

appropriate employees . . ."; " . . .are true and correct to the best of his knowledge,

information and belief."

See bearing v. State of Ga., 243 Ga. App. 195, 201 (1) (532SE2d 75 1) LAWSKILLS (2000) holding that a fal severification by oath constitutes perjury

There is no reference to what information, where it came from, who the individuals were

and further states: "without knowledge or information sufficient . . ." as shown in the

following fifty paragraphs: 1 , 2, 5, 6, 15 , 16, 17, 18, 19, 20, 21 , 22, 23, 24, 25, 28, 31 ,

32, 33, 34, 35, 36, 37, 40, 41 , 42, 43, 44, 45 , 46, 47, 54, 78, 84, 85, 89, 91, 92, 1 00, 101,

103 , i04, 105, 110, 1 i 1 , 112, 113, i24, i27, 12$.

III. False Swearing/ Perjury

Therefore, Georgia Power has continually made false representation concerning

Plaintiff's property . Further, Georgia Power has falsely sworn to the facts concerning

Plaintiff's property. This shows that Georgia Power knowingly and intentionally falsely

swore to the facts in their Verified Answers and Counterclaim, and why Georgia Power

employed liable in order to have State Patrol Troopers come to Plaintiff's property to

once again trespass, violate and destroy Plaintiffs property .


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The only record attached to the Verified answer is one of the Easement

agreements March 17, 1941, the Easement agreement dated May 4, 1937 was not

included, both agreements had been provided to Plaintiffs by Georgia Power and Ms .

Huddleston. ;

Ms. Huddleston's letter to Plaintiff Stegeman stated that Georgia Power had an

Easement Agreement with the previous owner; Plaintiffs challenged that statement, Ms .

Huddleston changed her statement from `previous owner" to "Dr. Wells", and provided

the May 4, ] 937 and March 1 7, 1941 agreements, neither of which show any definite

reference to Plaintiff's property .

In the Magistrate Hearing of September 2007 at which Ms . Huddleston was

present, Georgia Power's attorney told the Judge that the pole2 had been in place since

"1941-42". Georgia Power's Counterclaim, pg. 31 19 states " . . . maintained and utilized

its easement in an uninterrupted, open notorious manner for over twenty years". The pole

has not been in the same place for twenty years, this is evidenced by the inspection

plaque and the size of Plaintiff's trees cut and addressed in the complaint . This is a

falsely sworn statement . Plaintiffs have had an on-going dispute with Georgia Power

which was not refuted at the Magistrate Hearing .

Plaintiffs have been unable to find one pole on Sheppard Road that has been in

place for 20 years. Further O.C .G.A. §44-9-40 shows that 20' is the maximum easement

in Georgia, every pole on Sheppard Road is in violation . Georgia Power claims the they

have a right to keep clear another 15' around the pole. Should the pole have been placed

in accordance with the 1937 map showing pole locations at 5'2" and add the 15' Georgia

Power claims to have a right to clear for their lines and poles, it comes up to 20' as stated

in the statute .

Q.C.G.A.§44-9-40"(a) The superior court shall have jurisdiction . . .""(b) When any person or corporation of this state . . . ingress,and egress not to exceed 20 feet in width over and across theproperty of the private person or corporation . . ."

2 In reference to the pole located at 831 Sheppard Road


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Defendant's Answer and Counterclaim, pg . 38 I¶s 34, 35 again claims twenty

years. The following paragraphs and pages show that they illegally took the land and that

the Easement agreements never pertained to Plaintiffs property : 134 " . . . Georgia Power

has acquired a prescriptive easement" ; ¶39 " . . . has a prescriptive easement by adverse

possession . . ."

Georgia Power's response to complaint ¶¶'s 15-22, ¶24, T2$ : "without knowledge

. . . they can neither admit nor deny" cannot be a true statement as AT&T rents pole space

from Georgia Power, AT&T had a new pole erected in order to cross the street where the

1937 map shows a pole is to be placed ; the result of which are none of AT&T's lines

cross Plaintiff's property. Georgia Power would have one believe that AT&T did not

informm them of DeKa1b Police, Sheriff's Deputy, and Code enforcement's determination

that easement had been violated. AT&T had already run and attached their new line to

all of Georgia Power's poles along Sheppard Road from the direction of Rockbridge

Road stopping at the corner of Sheppard Road and Sheppard Court waiting for Plaintiffs

trees to be cut in order to run the tines across Plaintiffs property. When AT&T was told

there was an easement violation they coiled the loose end of the line up at the pole on the

corner of Sheppard Road and Sheppard Court where it stayed for two months while

AT&T waited to see what Georgia Power was going to do .

Q.C.G.A. §16-1Q-71.(a) A person to whom a lawful oath or affirmation has beenadministered or who executes a document knowing that itpurports to be an acknowledgment of a lawful oath oraffirmation commits the offense of false swearing when, inany matter or thing other than a judicial proceeding, heknowingly and willfully makes a false statement.

Response to 144 Georgia Power states : " that the terms of the deed granting

Georgia Power easement rights over Plaintiffs property require that "[n]ay timber cut on

said land by or for said Company shall remain the property of the owner of said timber ."

One would believe that Georgia Power is stating that they have almost any kind of


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easement available except for a "timber easement" which is defined by Black's Law

Dictionary Seventh edition, pg. 529: "timber easement. An easement that permit s the

holder to cut and remove timber from another's property." One would assume that

Georgia Power is stating that they do not have a "timber easement", Georgia Power

admitted that timber was cut , but said timber was the property of the owner .

In Plaintiff's attempt to understand the statement, they came up the following

meanings of"timber":

See :TIMBER -General term applied to forests and their products .-Sawed lumber more than 4 by 4 inches in breadth andthickness .3

Noun: timber timbu(r) 41 . The wood of trees cut and prepared for use as buildingmaterial - lumber2. A beam made of wood

Tim tiers :n. 1 . a. Trees or wooded land considered as a source of wood .b. Wood used as a building material; lumber .2. a. A dressed piece of wood, especially a beam in astructure .b. Nautical A rib in a sip's frame .3 . A person considered to have qualities suited for a particularactivity: That trainee is executive timber .

Timber:6Definition : That sort o f wood which is proper for buildings

or for tools , utensils, firniture, carriages, fences, ships, andthe like ; usually said of felled trees, but sometimes of thosestanding. Cf. Lumber,Definition : The body, stem, or trunk of a tree .Definition : A single piece or squared stick of wood

intended for building, or already fi arced ;

3 A Complete LOGGING AND TIMBER HARVESTING GLOSSARY Portions MadeAvailable to Forestry at About by the U . S. Department of Labor

4 http :l/www.wordwebonline.com5 http://www.thefreedictionary.com/6 http ://ardictionary.com/Tiamberl4067


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Plaintiffs agree that Georgia Power has destroyed trees that are over 20 years in

age and/or that are large enough to be used for building material . Plaintiff's trees could

not be the size they are had Georgia Power's pole continuously been in the same location

for 20 or more years. Besides, mandatory inspections are done to all wooden poles, at the

time of inspections a metal plaque is attached to the pole to show the inspection date .

The pole at the 831 property lacks inspection plaques going back 20 years .

III. Easements/Condemnation

Georgia Power admits to having attorneys on staff for land and easements and

knows that such disputes are for determination made only by a Superior Court Judge .

Georgia Power further has fiill knowledge of condemnation and the procedures thereof,

ignoring Georgiaa statute, they illegally took Plaintiff's property, and violated easement

agreements with other property owners of Sheppard Road .

Jackson Electric Membership Corporation v . Echols, et., at ., addresses an

easement executed in August 1941 very similar except in the instant case there was no

easement agreement and Plaintiffs also have possession of the Original 1937 map that

shows where the poles were to have been placed .

See the following:

Jackson Electric Membership Corporation v . Echols, et., al .,1951 .GA.484 VERSUSLAW, 66 S.E.2d 770, 84 Ga. App.610 Affirmed:

At [ 1 I ]: " . . .in August 1941 , . . . the right to enter upon thedescribed lands . . ."to place, construct, operate, repair,maintain, relocate and replace thereon and in or upon allstreets, . . ., and to cut and trim trees and shrubbery to theextent necessary to keep them clear of sa id electric lines orsystem . . .." By this instrument no particular location of theright-of-way or easement was specified."

At [13]: "White the easement relied upon by the pla intiff didnot specifically designate the location or the extent of the lineor systemm of lines to be erected on and over the defendants'lands, the subsequent erection of a line and the termination of


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the work thereon for a considerable period of time operated tofix and determine this feature of the contract. Gaston v .Gainesville &c . Ry. Co., 120 Ga. 516(1) (48 S.E. 188) ."

"Having thus established the location of the line . . _ intendedto be permitted by the easement, the plaintiff was thereafterprecluded, . . . to enter upon the defendants' lands and takeadditional portions thereof for the erection of an extension orextensions of the line or system without first obtaining fromthe defendants a further or additional easement or by a propercondemnation proceeding . fa6: "see Martin v. Seaboard Air-Line R., 139 Ga. 807, 809 (1) (77 SE 1060) (1913) g(granteeconfined to land used in first establishing easement}"

"To construe the original easement in any other mannerwould be to authorize the plaintiff to eventually take all thedefendants' hand . . . no matter how great the defendants' lossesmight be as a result thereof. This was clearly not the intentionof the parties . . . did not intend to convey to the plaintiffblanket authority to take any and all their land whenever itmight suit the convenience or necessity of the plaintiff, . . ."

At [14): ". . . the plaintiff had no right under the originaleasement to use the defendants ' lands for the purpose oferecting this additional line or system . . . overruling themotion for a new trial on the special grounds thereof."

See also Bibb County v. Georgia Power Co ., 241 Ga.Agp. 131 , 525 S.E.2d 136

which was reversed in part and affirmed in part . In arguing summary judgment, the

parties focus first on the validity of a 1941 agreement between Bibb County and Georgia

Power

Bibb County v. Georgia Power Co ., 241 Ga.App. 131 , 525S.E.2d 136 VERSUSLAW (Ga.App. 11 /1011999)

At [17] : "Once so established , the easements could not bechanged without Georgia Power first obtaining from thelandowners a further or additional ea sement , whether bycondemnation or otherwise. *fn6 Jackson ElectricMembership Corp . v. Echols *fn7 explained theconsequences of a contrary holding:"


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At [ 18] "To construe the original easement in any othermanner would be to authorize the [utility] to eventually takeall the [landowners'] land if the necessities of their businessdictated, without requiring the payment of any additionaldamages or compensation to the [landowners) no matter howgreat the landowners'] losses might be. . ." "Certainly the[landowners] did not intend to convey to the [utility) blanketauthority to take any and all their land whenever it might suitthe convenience or necessity of the [utility], . . ."

At [19] : "Once fixed by actual placement of the poles,indefinite easements do not "float" according to the businessnecessities of the utility ."

At [21] : "Georgia Power did not retain records showing theplacement of poles from the early time periods; . . . "

At j29] : "But altering, repairing, and extending the powerlines do not encompass the right to move the fixed polesseveral feet in one direction ; otherwise, by incrementaladjustments, Georgia Power could eventually take over theentire property, a result not contemplated by such language ."

At [321: "But if pursuant to easements with the previouslandowners Georgia Power had located the poles on the land. . . these sections would appear to violate the GeorgiaConstitution provision prohibiting the taking of privateproperty for public purposes w ithout just and adequatecompensation being first paid . *fn19 Georgia Power Co . v.City of Macon" ""An easement is a property right, of whichits owner cannot be deprived without just and adequatecompensation . *fn2 i Absent the proper exercise of the powerof condemnation , the underlying landowner has no powerunilaterally to alter the path of an easement , even if thealternate route is "gold-plated .""

At [34] : "6. After entry of the two summary judgment orders,the trial court sua sponte amended its second order to add thatGeorgia Power had a "liberty interest" in the slight movementOf its Does and facilities on the i'lffl]t-of-wav. which iibenvinterest was DTOIeCie(1 nV ille r ourteenin tirrienament . ri o16Lya1 or IaCilla.l Slli[lOI'1N SUDDOE"[S Si1Ct1 a l,0IIC1US1011 . . .


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The Courts have cons istently held that once an easement agreement is made, it

cannot be altered, see also Herren v. Pettengill, 273 Ga. 122, 273 Ga. 122, 538 S.E.2d

735, 538 S.E.2d 735 (Ga. 11/13/2000) Affirmed :

Herren v. Pettengill , 273 Ga . 122, 273 Ga. 122, 538 S.E.2d735, 538 S.E.2d 735 VERSUSLAW (Ga. 11/13/2000) At [9] :"Because the owner of the servient estate cannot substantiallyalter or relocate an ea sement without the consent of the ownerof the dominant estate, we affirm ."

At (131: " . . . once the location becomes fixed , the same rulecontrols relocation issues , so long as the grant conta ins noconditions or reservations . *fn4" at [241: "*fn4 See WilliamB. Johnson, Annotation, Locating Easement of Way Createdby Necessity , 34 A.L.R. 4th 769 (1985); Annotation, LocatingEasement of Way of Necessity, 68 A.L .R . 528 (1930)."

At [15]: " . . . Additionally, our courts have held thateasements for utilities and railroads are confined to theiroriginal location, and, in order to alter, expand , or move them,consent or additional easements must be obtained . *fn9 at[29] : "*fn9 Martin v . Seaboard Air-Line R ., 139 Ga . 807 (77SE 1060) (1913) ; Bibb County v. Georgia Power Co ., 241Ga. App. 131, 133- 134 (525 SE2d 136) (1999) ; Jackson Elec .Membership Corp. v . Echols, 84 Ga. App. 610 (66 SE2d 770)(1951 )."

"A grant of an easement is to be construed in accordance with the rules applied to

deeds and other written instruments. In the construction of instruments creating

easements, it is the duty of the court to ascertain and give effect to the intention of the

parties."7

Orr et., al . v. Georgia Transmission Corporation, 633 S.E.2d564, 280 Ga . App. 251 , 6 FCDR 1885, 2006 which held:

At 113] : ". . . is entitled to have an accurate, definitedescription of the property . . . Without this, the owner of theproperty cannot know what port ion of his land is requ ired, . . .

7 28A C .J . S . Easements §57, at 233 (1996) .


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cannot know the precise boundaries of the land so as not totrespass on property not acquired ."

At (16]: " . . . In Mosteller Mill . . . found that the "nonspecificand undefined" easement as set out in the condemnationpetition conveyed "no idea of the extent of the contemplatedinvasion" and failed to describe sufficiently the interest beingtaken . 271 Ga . App. at 288-289 (1)."

At [1 7]: " . . . In Dorsey v. Dept. of Transp ., 248 Ga. 34 (279SE2d 707) (1981), the Supreme Court of Georgia considered,. . . the effect of an inadequate descript ion of the property orinterest taken. . . . which does not conform . . .because it doesnot describe the nature or duration of an easement "cannotvest title to the land in the condemnor . " 248 Ga . at 37."

See McMahon v. Hines, 298 Ill . App. 3d 231 , 236 , 697 N .E.2d 1199(1998) . :

"Courts tend to strictly construe easement agreements so asto permit the greatest possible use of property by its owner ."McMahon, 298 Ill . App. 3d at 236-37 . "The extent of aneasement created by express grant depends on the terms ofthe grant. If it is specific in terms, it is decisive of the limitsof the easement ." R. Ward, Extent of Easement Over ServientEstate, 33 POF 2d 669, 677 (1983).

See Consolidated Cable Ut ilities , Inc. v. City of Aurora, 108111 . App. 3d 1035, 1041 , 439 N .E.2d 1272 (1982) . :"In other words , "[i]f the language of a grant is clear and freefrom doubt, such language i s not the subject of interpretation ,and no resort to extrinsic facts and circumstance s may bemade to modify the clear terms of the grant ." Extent andReasonableness of Use of Private Way in Exercise ofEasement Granted in General Terms, 3 A .L.R.3d 1256, 1260(1965) .

IV. Scope Of Easement

"The power company's rights are not, however, unlimited . The powercompany must not inflict unnecessary damage to the land nor may its


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exerc ise of its right unreasonably increase the burden placed on the servienttenement." Kell , 170 W.Va. at 17 , 289 S.E.2d at 454.

The Kell court further stated:

""The power company cannot indiscriminately wreak havocupon the owner's land and its appurtenances in order toexercise its limited right to protect its lines from danger andhindrance from overhanging branches and trees." (Emphasisadded.) Kell, 170 W.Va. at 20, 289 S.E.2d at 456."

In Stirling v. Dixie Electric Membership Corp ., 344 So . 2d 427 (La . App.1977), the plaintiffs filed a lawsuit against the defendant electric companyfor damage to their trees , shrubs, and plants . The Court held :

"The vast majority of trees and shrub s were not a threat to theelectrical line nor [did the defendant) claim that they were ."Stirling, 344 So. 2d at 429 .

According to the Stirling court: "it would be moresympathetic to defendant 's cause had any effort been made tominimize the damage or even consider the use of mechanizedequipment . *** Plaintiffs' carefully landscaped front yard wasaccorded no greater consideration than an ordinary fencerow." Stirling, 344 So. 2d at 429.

As such, the Stirl ing court awarded damages to the plaintiffs."Stirling, 344 So. 2d at 429.

In Marshall v . Georgia Power Co., 134 Ga. App. 479 , 214 S .E.2d 728(1975), the plaintiff sued the defendant for cutting down Christmas trees onhis property located within an easement granted to the defendant in 1925 bythe plaintiffs predecessor that gave the defendant authority to trim andremove trees and underbrush . . . Marshall , 134 Ga . App. at 479, 214 S.E.2dat 730:

The Marshall court concluded: that the defendant had "theright to clear the trees, but did not have the right to damageother lands of the plaintiffs in do ing so." Marshall , 134 Ga .App. at 481 , 214 S.E.2d at 730 .

In this regard, the court stated that "[w]hile the easementgrants the right of entry, it does not provide for the


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indiscriminate violation of plaintiffs property rights in sodoing." Marshall , 1 34 Ga. App. at 481, 214 S .E.2d at 731 .

In Moore v. Choctawhatchee Electric Co-Operative, inc., 196 So . 2d 788(Fla. App. 1967 ), the plaintiffs filed a lawsuit against the defendant after itcleared a large strip of the plaintiffs' land. Moore, 196 So . 2d at 789 .

The Moore court noted that:"even assuming the defendant had an easement over theproperty , . . . easement clearly authorize[d] the cutting andtrimming . . . only to the extent necessary to keep them clearof said electric line." Moore, 196 So. 2d at 789.According to the court , "'[s]uch language does not in and ofitself vest in defendants as a matter of law the right to clear a30-foot swarth, which was the width of the clearing as allegedand proved by plaintiffs." Moore, 196 So. 2d at 789.

See also Crowell v. Florida Power Corp., 438 So . 2d 958, 959(Fla. App. 1983) concluding that :"even assuming the defendant had consent to enter upon theplaintiffs property, a genuine issue of material fact ex isted asto whether the defendant v iolated the boundaries of theconsent by trimming the trees in the manner it did"; Hanner v.Duke Power Co., 34 N.C. App. 737, 738, 239 S .E.2d 594, 595(1977)

Although the instant case is different than most of those detailed above because , in

those cases , the utility company was specifically granted the right to cut down or remove

trees in addition to the right to trim, the cases are nonetheless instructive on the issue of

when conduct falls within or exceeds the scope of an easement based on the specific

language of the relevant easement .8

g United States Court of Appeals, Second Division Appeal from the Circuit Court of CookCounty, IL Robert J . Duresa and Bonnie S. Duresa, Plaintiffs-Appellants, v. CommonwealthEdison Company, a/k/a/ COM ED, Defendant-Appellee ; JUSTICE BURKE delivered theopinion


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V. Contract Construction

Plaintiffs and Defendants have had an Easement dispute for several years,

acknowledged before the Magistrate Judge September 2007 . Although the Plaintiffs have

never had the money to hire an attorney to enforce their Rights concerning their property

and Georgia Power has continually taken advantage of that fact, Plaintiffs continually

protested to Georgia Power .

Georgia Power has past experience with easement disputes and knows that

easement i ssues are governed by the rules of contract construction . Irvin v . Laxmi, Inc.,

266 Ga. 204, 205 (467 SE2d 510) (1996) .

SeeMunicipal Electric Authority of Georg ia, et., al . v . Gold-Arrow Farms, Inc., et., al . ; Georgia Power Company v. Gold-Arrow Farms, Inc., et ., al . ; Interstate F ibernet, Inc. v . Gold-Arrow Farms , Inc., et., al. A05A1400, A05A1401,AOSAi402 . COURT OF APPEALS OF GEORGIA 276 Ga.App . 862; 625 S .E.2d 57; 2005 Ga. App. LEXIS 1 319; 2005 .Affirmed in part , reversed in part and remanded in part .

At [ 11 ] : " . . . Generally, this presents a question of law for thecourt, unless the language presents an ambiguity that cannotbe resolved by the rules of construction. Hardman v.Dahlonega-Lumpkin County Chamber of Commerce , 238 Ga .551 , 553 (233 SE2d 753) (1977); Imerys Marble Ca v. J . M.Huber Corp., 276 Ga. 401, 403 (577 SE2d 555) (2003) ."

"The cardinal rule of construction is to ascertain the intent ofthe parties . Irvin, 266 Ga. at 205."""Where the contract terms are clear and unamb iguous, thecourt will look to that alone to find the true intent of theparties." Southern Fed. Sav. & Loan Assn . &c. v. Lyle, 249Ga. 284, 287 (290 SE2d 455) (1982) ; Park `N Go of Ga . v. U.S. Fidelity &c . Co., 266 Ga. 787, 791 (471 SE2d 500) (1996).To determine the intent of the parties, all the contract termsmust be considered together in arriving at the construction ofany part, and a construction upholding the contract in wholeand every part is preferred. Cole v. Thrasher, 246 Ga. 683,684 (272 SE2d 696) (1980); McCann v . Glynn Lumber Co .,199 Ga. 669,674 (34 SE2d 839) (1945) ."


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At [12]: " . . .An "[a]mbiguity is defined as duplicity,indistinctness , an uncertainty of meaning or expression usedin a written instrument, and also signifies of doubtful oruncertain nature; wanting clearne ss or definiteness; difficultto comprehend or distinguish; of doubtful purport; open tovarious interpretations." (Citation and punctuation omitted .)Early v . Kent, 215 Ga. 49, 50 (108 SE2d 708) (1959)."

VI. Default

Service was perfected November 2, 2007 . Having not received a responsive

pleading on December 5 , 2007, Plaintiff McDonald contacted the Clerk for the

Honorable Judge Becker and was told that there had been no responsive pleading

filed. Neither the Plaintiffs nor this Court received Defendant's responsive pleadings

within the 30 days mandated by statute . See O.C.G.A. §9-11-12 :

OCGA 49-11-12(a) When answer presented.

"A defendant shall serve his answer within 30 days after the serviceof the summons and complaint upon him . . ."

Further, Defendants failed to Motion to open default and or pay the costs to open

default, this case therefore stands in default under O .C.G.A. §9-11 -55 :

OCGA„§ 9-11-55"When an answer ha s not been filed within the time required thecase automatically becomes in default."

Plaintiffs have neither waived their Right to have the Defendant's Answers

stricken nor their Right to Default Judgment . See the following:

Ewing et., al ., v . Johnston9 175 Ga. 1221 (334 S .E.2d 703)VERSUSLAW, 1985 :

at [13]: "Several issue s . . . When does the time begin to runin computing the 30-day period a defendant has to answerunder OCGA § 9-11-12 (a)?"

9 Plaintiffs were unable to find exact cases to cite and realize the difference in circumstancesbetween Ewing v. Johnston and the instant case .


-16-

at [14] : "(a) "A defendant shall serve his answer within 30days after the service of the summons and complaint uponhim, unless otherwise provided by statute." (Emphasissupplied.)" . . . "We conclude that the 30 days within which adefendant has to file an answer begins to run from the date ofservice and not from the filing of the return."

At 115): "(b) Because time ran from the actual date ofservice, default occurred on the 31st day following service". . . " "The filing of the answer by defendant within 15 daysfollowing the default in this ca se, without payment of costs ,does not alone open the default . Hazzard v . Phillips , 249 Ga.24,25 (287 S .E.2d 191)."

At [ 16] : "However, in Muscogee Realty Dev. Corp . v.Jefferson Co., 252 Ga . 400 (314 S.E.2d 199), . . . in default forfiling an answer on the 31st day follow ing service, and theplaintiff apparently did not notice the default , . . . In reversing

. . ., the Supreme Court held that . . . trial Judge abused hisdiscretion because "the plaintiff allowed the case to proceedto trial without moving that the defaulting defendants 'answers be stricken and/or for a judgment on the pleading sbecause of the late filing of the answer s . . . " Id . p. 402 ."

See also :

Fred Chenoweth Equip . Co. v. Oculus Corp., 254 Ga . 321(328 SE2d 539) (1985). "The default judgment merelydetermined that [Evens] failed to follow the proceduralrequirement that a timely answer be filed . The consequenceof this failure was that judgment was entered against[Evens]." Chenoweth, supra at 323 .


.~D

Respectfully submitted this Sm day of March, 2008

~.JANET D. MCDONALD, Pro Se

821 Sheppard RoadStone Mountain, GA 30083

/-7(770) 879-8737

GA 30083Stone Mountain,(770) 879-8737

Fted9bay o 12fLinda CarterClerk of Superior Court

-17-

PRAYER

Plaintiffs have shown the following: Georgia Power had full knowledge that there

was no easement concerning Plaiatitrs property, full knowledge of the dispute and had

decided to ignore Georgia statutes and took matters into their own hands .

Plaintiffs have shown this Honorable Court that the Verified Answers are

insufficient, and unresponsive, and falsely sworn to . Plaintiffs have further shown that

the Counterclaim filed by Defendants requests relief which cannot be granted.

Georgia Power filed an untimely answer the results of which are they are inDefault, and they have failed to Open Default and/or pay the fees to Open Default .

Plaintiffs Pray that this Honorable Court will consider the foregoing paragraphsand Grant their Motion To Strike Defendant's Verified Answers.

BY:


CERTIFICATE OF SERVICE

I Certify that I have this 5P day of March, 2008 served a copy of the foregoing

PLAINTIFF'S MOTION and BRIEF IN SUPPORT OF PLAINTIff'S MOTION TO

STRIKE DEFENDANT'S ANSWERS capon defendants through their attorney on file via

U.S.P.S., First Class mail, proper postage pm-paid as follows:

D. MCDUN , Pro Se821 Sheppard RdMautsin, GA 30083(770) 879-8737

- 18 -

.1

Troutman Sanders, LLPBrian P. Watt5200 Bank of America Plaza600 Peachtree StreetAtlanta, GA 30308-2216

1TrSLep~rd RdStone Mountain, GA 30083

(770) 879-8737

RledlL` Qay0&0l~Linda Carter ~"~Clerk of Superior Court ~


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VPrint this page for y .;Necords

~, Securewith 1 98 Sit Encryption

For additional assistance, contact (404) 298-4000 .

Property Identification2008 ParcelID 29073020042007 parcellD 18 OT3 02 X04ZOO-ft Number 09747222007 Pin Number 0974722Property Address 621 5HEPPARD RD UNIProperty Type Real EstateTax District 04 Unincorporated

Property Value/Billing Assessment

Tamable Yew 2007Land ValueBuilding ValueMisc . Improvement ValueTotal Value40% Taxable Assessment

$46,200$10,600

$0$56,800$22,720

Owner Address 000821 SHEPPARD RDSTONE MOUNTAIN, GA 30083-3642 $0.00Tax Exempt Amount

Property Characteristics/Sales Information

NBHD Code 0690-00Acreage LOT

Zoning Type Single Family Residential District -R10Q

Zoning District R100Year Built 1940Condition Code P -Poor

Quality Grade 015 - AVERAGEAir Conditioning NFireplaces 0Stales i

1,143

0 Sq. Ft-0%2Full Baths: 1Half Baths: 008/16/1994$55.OEIO .OQ

Click here to view prop" map

Prior Years Taxs:please note the iMortnatbn below may be 2 days

old .

DeKalbCounty TaxTAxY r Too(-owed 7otal Paid Total due

2007 $125.98 j125.98 X0.00

2006 $125.84 $125.84 $0.00

2005 $292.22 $292.22 $0.00

2004 #48.0 #48.00 $0.00

7A03 $0.00 $0.00 $0.00

2O02 $225.00 $225.00 $0A0

Last Sold dateLast Sold Price

DeKaib County Tax CommissionerCollections DivisionPO Box 100004

Es in c 5c

Jan Ist OwnerCo-Owner

CAirrent OwnerCo-Owner

Owner InformationSTEGEMAN JAMES BMCELWANEY IAIVEf MSTEGEMAN JAMES BMCEtwAtrE r 3wXErH

Special Billing Address No Special Billing Address in60rmationavailable

"' CHANGE MAILING ADDRESS7

Deed InformationDeed Type Warranty DeedDeed Boolc,[Page 08Z93/ 0641Plat Book/Page 0000/ OUDO

square Footage(Heated Space)Basement Area :% Hsntt FinishedBedroomsBathrooms

A41d16oFUld Prope1iy Data

Property Tax Maili ng Address

Information as of 03/04/2008

Homestead Exemption

Exemption Type H3DF - SPECIALEXEMPTION FREEZE

Other Exemption Informat ionExemption typeValue Exemption $0 .00Iunouet

Tax Information SummaryTaxable Year 2007M11111age Rate 0.0393

OeKalb County Taxes Billed $125.98DeK,alb County Taxes Paid $125.98DelCalb County Taxes Due $0.00

TotalTaxes Billed ViewDetails $125.98Total Taxes paid ;125 .98

Total Taxes Due $OAOA penalty of 196 per month will be assessed on any unpaidbalance for the city of Atlanta Taxes after 911512007

Escrow Agency YesLast Payment Date 11/12/2007ner~Last Payment Amount $62.99


C .J

For additional Information on the data above, contact the PropertyAppraisal Department at 4Q4-371-2471 Tax Sale Fife Number

F9Fa-G'ED Book/PageLevy DaftSale DateDelinquent Amount Die

For additional assistance, contact (404) 298-4000.

=k May Now I

Decatur, GA 30031- 004 Delinquent Taxes/Tax Sale information


motion to strike georgia power's verified answer and counterclaim

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