traton news court exhibits

8/14/2019 Traton News Court Exhibits

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On May 27, 2004, Mr. Moses purchased his home from one of the Tratonentities1 (hereinafter collectively referred to as "Traton").

1 Complaint and Answer, 24.


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Mr. Moses' home is situated within the Lakefield Manor subdivision.2

2 Admitted by Defendant;see, Complaint and Answer, 28, Exhibits B and C. See, also, Plaintiff's First Request for Admissions andDefendant's Response to First Request for Admissions (collectively "Traton's First Admissions"), 2, Exhibits D and E.


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Traton Corp. has indicated that it is the developer for the Lakefield Manorsubdivision.3

3 Admitted by Defendant, Plaintiff's Second Request for Admissions to Defendant Traton Corp. and Traton Corp.'s Amended Responsesand Objections to Plaintiff's Second Request for Admissions (collectively "Traton's Second Admissions"), 17, Exhibits F and G. See,also, Video Footage of Board of Zoning Appeals, April 13, 2005 (Traton agent represents to Cobb County governmental body that it isresponsible for the development of the Lakefield Manor subdivision), available for viewing at.


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Subsequent to Mr. Moses' purchase of his home, contractors deliveredadditional materials to construction sites within the Lakefield Manorsubdivision.4

4 Admitted by Defendant, Traton's First Admissions, 5.


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During that construction process, construction trucks repeatedly drove overMr. Moses' yard, thereby damaging the yard.6

Mr. Moses complained to Traton about damage to his yard,7 and requestedTraton to discontinue driving over Mr. Moses' property.8

6 Admitted by Defendant, Traton's Second Admissions, 95 through 103.

7 Admitted by Defendant, Traton's Second Admissions, 24.



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In fact, Mr. Moses called Traton on more than one occasion,9 but Traton didnot return Mr. Moses' phone calls.10




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Since Traton did not return Mr. Moses' phone calls,11 Mr. Moses filed agrievance against Traton, using Traton's Internet form.12


12 Admitted by Defendant, Plaintiff's First Request for Admissions to Defendant Rick Foster and Defendant Rick Foster's Responses toPlaintiff's First Request for Admissions (collectively, "Foster's First Admissions"), 15, Exhibits I and J.


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On behalf of Traton, Mr. Rick Foster replied by email13 and copied one ormore officers of Traton in his reply.14

13 Admitted by Defendant, Foster's First Admissions, 20.



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In that email, Mr. Foster expressly stated that Traton would not fix theyard.15



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Adding insult to injury, in addition to refusing to repair the damage, Tratoncited Mr. Moses' damaged yard as being in violation of the subdivisionCovenant.16 In other words, Traton damaged Mr. Moses' yard, and thencited that very damage as a violation of the Covenant.

16 Admitted by Defendant, Traton's Second Admissions, 25 and 27 through 55.


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Given Traton's unreasonable posture, Mr. Moses filed a complaint with theBetter Business Bureau ("BBB"),17 in which Mr. Moses expressly noted thedestruction of his yard.18

Rather than calling Mr. Moses to discuss these issues, Traton responded toMr. Moses through its attorneys,19 and demanded that Mr. Moses stopcontacting Traton.





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Since Traton neither promised to fix the damage that it had caused, norpromised to refrain from further entering onto Mr. Moses' property, Mr.Moses filed this lawsuit in Cobb County Superior Court on October 13,2005.20

20 Admitted by Defendant, Traton's First Admissions, 34. See, also, Complaint.


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As a courtesy, a copy of the Complaint was emailed to Traton's attorney onOctober 13, 2005,21 and Traton was aware of this lawsuit by October 14,2005.22

Despite being aware of this lawsuit, and despite knowing that the subject-matter of this lawsuit included damage to Mr. Moses' yard,23 Tratonnevertheless directed its agents to enter onto the damaged portion of theyard24 and tamper with the evidence.25


22 Admitted by Defendant, Traton's First Admissions, 36.23See, Defendants' Request for Entry Onto Land to Inspect, Exhibit K.

24 Admitted by Defendant, Traton's Second Admissions, 133 through 138. See, also, Letter from Traton, January 13, 2006, Exhibit L("Traton directed that an individual stand in the grass allegedly damaged to photograph the degree of 'damage' . . .").

25See, Pictures from Traton, Exhibit M (showing Traton agents mowing Mr. Moses' lawn). See, also, Email Message from Traton to itsAttorney, October 19, 2005, Exhibit N ("The first six pictures are before pictures taken 10/14/05, the last 9 were taken this morning."A comparison of the before and after pictures shows that Traton's agent tampered with the evidence and manipulated the very subject-


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matter of this litigation).


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Traton photographed the subsequent entry and their tampering with theevidence,26 and those photographs were sent to Mr. Moses by Traton'sattorneys.27




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Despite Traton's egregious behavior and lousy customer service, Mr. Mosesnevertheless attempted to reasonably dispose of this matter. Specifically, onOctober 14, 2005, Mr. Moses offered to dismiss this case if Traton wouldmeet the following requests:

(1) Issue an apology for failing to respond to Mr. Moses' phonecalls and email messages;(2) Completely repair the damage done to the yard;(3) To the best of its ability, instruct Traton's subcontractors torefrain from driving over Mr. Moses' yard; and(4) Rescind its accusation that the yard was not being properlymaintained.28

Traton rejected Mr. Moses' offer.

Given Traton's refusal to reasonably resolve this matter, Mr. Mosesinitiated discovery.

28See, Email Message to Traton, October 14, 2005, Exhibit O.


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In a second attempt to dispose of this matter, Mr. Moses offered to dismissthe lawsuit if Traton was "agreeable to making reasonable efforts to reach amutually-acceptable resolution."29



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Specifically, Mr. Moses, through counsel, stated: "[u]pon receivingconfirmation that Traton is willing to dialogue with Chris [Mr. Moses], he[Mr. Moses] has agreed to dismiss the action without prejudice."30 No otherdemands were made in conjunction with Mr. Moses' request for a

reasonable dialogue.



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Despite Mr. Moses' generous offer, Traton refused to rationally discuss thismatter with Mr. Moses, giving as its reason that it did not want "word toget around that all you have to do is file a lawsuit to get the head man atTraton to meet with you . . . ."31

31 Email Exchange between Traton Officers, December 8, 2005, Exhibit P.


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Upon discovering additional facts, Mr. Moses filed a Motion to AddDefendants and Amend Its Complaint ("Motion to Add Defendants").32

32 Plaintiff's Motion to Add Defendants and Amend Its Complaint, and Brief in Support of Plaintiff's Motion, Exhibit Q.


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The Supplemental and Second Amended Complaint, which accompaniedthe Motion to Add Defendants, included the following Counts:

(1) Trespass, under O.C.G.A. 51-9-1 and 51-9-3;(2) Continuing Trespass, under O.C.G.A. 51-9-6;(3) Liability for Torts of Independent Employee, under O.C.G.A. 51-2-4;(4) Liability for Torts of Contractors, under O.C.G.A. 51-2-5;(5) Civil Conspiracy;(6) Breach of Contract;(7) Breach of Fiduciary Duty;(8) Officers' Personal Liability for Corporate Action;

(9) Litigation Expenses, under O.C.G.A. 13-6-11; and(10) Punitive Damages, under O.C.G.A. 51-12-5.1.33

33 Supplemental and Second Amended Complaint, Exhibit R.


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Despite the ongoing discovery, in yet another effort to resolve this withoutfurther escalating costs, Mr. Moses presented his third settlement offer toTraton on February 13, 2006.34

34 February 13, 2006, Email from Mr. Moses to Traton, Exhibit S.


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In that offer, Mr. Moses requested the following:(1) Face-to-face meeting with Traton officers (Bill Poston, DaleBercher, Millburn Poston, etc.);(2) Admission of wrong by Traton, and issue written apology toMr. Moses;(3) Repair of damaged yard to Mr. Moses' satisfaction;(4) Promise to refrain from future damage;(5) Promise to fix future damage that can be attributed to Traton;and(6) Payment of out-of-pocket litigation expenses (~$500) (but notany costs for attorney time).35

35 February 13, 2006, Email from Mr. Moses to Traton.

36


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Mr. Moses' third offer was rejected.36

36 February 27, 2006, Email from Traton to Mr. Moses, Exhibit T.


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Thus, rather than rationally dialoguing with Mr. Moses, Traton deliberatelychose to continue with discovery, which Traton certified would cost anestimated $2,950,000.00.37

37 Defendants' Response to Plaintiff's Motion to Add Defendants and Amend Complaint, pp. 2-3 (Traton's attorneys certified to thisCourt that compliance with discovery was "estimated to cost $2,950,000.00"), Exhibit U.

i ' i i i i '


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Despite Traton's ability to stop the continued ingress onto Mr. Moses'property by Traton's agents, Traton continued to approve of theunauthorized entries. Traton never disciplined any of its agents forentering onto Mr. Moses' property.38

38 Admitted by Defendant, Traton's First Admissions, 69 and 74.

T di i li d f i f i i h id 39


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Traton never disciplined any of its agents for tampering with evidence39

(i.e., running over a portion of Mr. Moses' property with a lawnmower).



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Notwithstanding the numerous unauthorized entries onto Mr. Moses'property by Traton's agents, Traton has never instructed its contractors torefrain from driving over Mr. Moses' property.44


R th th ti ll di i thi tt d ki t


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Rather than rationally discussing this matter and seeking promptresolution, Traton continues to press forth with this lawsuit, despite thenumerous opportunities that have been provided to Traton to resolvethis issue. In doing so, Traton has continued to stall and obstructdiscovery. For example, in responding to discovery requests, Tratonhas indicated that it "lacks sufficient knowledge to admit or deny" whoare its own corporate officers.45 In other words, Traton's position, atone time, was that it did not even know the identity of its own officers.

45 Admitted by Defendant, Plaintiff's Third Request for Admissions to Defendant Traton Corp., and Traton Corp.'s Responses andObjections to Plaintiff's Third Request for Admissions (collectively "Traton's Third Admissions"), 2 through 12.


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Other facts, which are relevant to the amount of damages and attorneysfees, include revenue information that has been published by two (2)independent sources,49 as well as the corporate tax statements of

49 2005 Giants Results, housingzone.com, downloaded from , November 25, 2005, and produced toDefendants as MOS 0000131, Exhibit Y; Builder 100 Listing, BuilderOnline.com, downloaded from ,December 9, 2005, and produced to Defendants as MOS 0000144, Exhibit Z.

Defendants 50


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Defendants.

50 Tax Statements of Traton Corp. for 2005.

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