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Civil / Real Property suit Defendants

Discussion in 'Alternative Dispute Resolution' started by Lisa Phipps, May 12, 2021.

  1. adjusterjack

    adjusterjack Super Moderator

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    Yes, we can read them. Court filings are public record so I see no harm in leaving them here even though they identify the parties and the locations.

    To answer your original question about selling your property during the lawsuit, based on all the allegations I'm guessing that your neighbors will be happy to allow you to sell out and leave.

    They might even drop the lawsuit when you do.
     
  2. Lisa Phipps

    Lisa Phipps Law Topic Starter New Member

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    I know. I thought I uploaded the documents. Can you not see it?
    I'm bound to lose this case simply because he is wealthy with a good lawyer and, I am the opposite. He has made it seem as if I am a drug dealer making drugs at my home.
    At the time he filed this complaint there were myself, my son, his girlfriend and her Mother living out my house. I am the only one with a automobile in the household so at times there was a good bit of going in and out the driveway. I've lived here since 97' so my son and I know alot of people that are ,(were), welcomed to come by anytime. I have always been diplomatic and unbiased so people often come to me if they have relationship issues. Any type of relationship.
    To my neighbor, this many people means drugs. And fires being burned, with the occasional plastic or other thrown in,( which people learn very quickly how much I am apposed to pollution, if that happens) means making drugs.
    When my son had a vehicle he would drive it rather he had gas or not to the friendly neighbors across the street. Mind you my easements 1/2 mile long. He ran out more than once. One time he left it on side of driveway longer than he should have. Plaintiff called police. Police ran tags. Vehicle in my name. Police came to "make sure I'm ok". One Bartow county regular car, one drug task force with K-9 unit and one game warden in his black pick up truck. I comment on it being odd that they were running together. They blew it off. Asked to come in out of cold wind. I obliged. They never mentioned my neighbors had called them.
    Later, neighbor alleges that I hit his mailbox in retaliation to him call police because it was hit the next day ! Absurd! Law has been called to my house more in the year since ive had these neighbors , than in all the years I've been here. Since 1997. Probably hoping police would see what they suspected. They did not.
    They are gathering whatever they can hoping to prove me a nuisance. I have complied to everything I could, being the diplomat that I am. Thinking it would resolve itself. They tell their lawyer that things are worse! This tells me that I cant please him other than just not being here.
    Did I mention that I have never spoken to this neighbor? He always has his phone recording video of everyone he sees in the easement. I think trying to provoke an incident. He recorded and called police when my son's little chorkie died and son was crying very upset , walking with his little lifeless buddies of 5 yrs to good neighbors cause he was home alone.
    I dont hardle go out side at night anymore, I never walk to the end of driveway. I used to enjoy that very much. I'm afraid of being confronted or videotaped by this man who obviously thinks his better than I. Maybe so , but only financially.
    If I lose, judge would most likely award him by having me pay his lawyer fees. That is going to be at least the upward of $100,000.00.
    I believe his plan is for me to not be able to pay that as ordered. That would give him ability to buy my home. Then he'd have noone driving through his property and he could live happily ever after.

    Oh and I filed for interrogatories. Probably falls under production or such. I want to see the videos he plans to use against me and the names of the couple who lived with them. That person told me he moved out of their home because he was sick of hearing my name.
    Plaintiffs response was
    objection :that's to much footage to go through and would be to time consuming and expensive to give me all videos he has of me and my guest.
    Objection : he dosent see why I need the prior roommates info for any reason other than to harras them.

    I have never harrassed anyone ! I'm really upset he.has formed such a strong opinion of me when we have never spoke to eachother.
     
  3. Lisa Phipps

    Lisa Phipps Law Topic Starter New Member

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    I really dont want to sale. I just want to be comfortable at home.
    I would like opinions on a good approach and any advice you can give me would be a blessing. Any pep talks or advice would not be in vain.
     
  4. justblue

    justblue Well-Known Member

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  5. welkin

    welkin Active Member

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    I have read the complaint and I think it's a joke (I am not an attorney).

    Count one is trespass. You can't be a trespasser if you are on a granted easement. You are not responsible for what other people do.

    Count two is nuisance. Without specific language in the grant of the easement to limit its use there is no nuisance when you or others use it at any time of the day or night.

    Count three is interference with property rights. I don't see it. You are not a cop policing an easement and you are not responsible for what other people do. You are responsible for what you do.

    Count four is the same as count three.

    Count five is the misuse of the easement. There is no such tort. They could claim that the easement is overburdened by you by running a business for example when it was deeded for residential ingress/egress but they didn't. Once again I point to the language of the easement grant. If there are no limitations on its use in the grant then there are none outside of the intended prepuce (access to your property). It's your easement to use as you see fit.

    I'll stop here because it's just more of the same. This complaint IMO is just to harass and intimidate you. The neighbor bought their property knowing there was an easement across it.

    I will repeat that you need to get an attorney to help you.
     
  6. adjusterjack

    adjusterjack Super Moderator

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    I read the complaint and agree it's all BS. Unfortunately, the defendant must answer all the allegations properly and raise appropriate defenses and counter-claims. That's going to require the services of an attorney.
     
  7. Tax Counsel

    Tax Counsel Well-Known Member

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    Well, I am an attorney, read the complaint, and I don't see it as just "a joke." There is some meat there, if the plaintiff can prove the factual allegations made in the complaint. Most attorneys will not file a frivolous complaint (i.e. one that is a joke) because of the possibility of court sanctions against client, the attorney, or both.

    Georgia law apparently recognizes the concept of a misuse of an easement. For example, consider this from the Georgia Supreme Court:

    That portion of Sycamore Street lying between plaintiff Datry's store and the proposed MARTA station will be converted into a pedestrian thoroughfare. Even if the thoroughfare were to constitute a misuse of the easement, such a misuse or diversion would not work a reversion of the property, free of the easement, to the owner of the dominant fee but would only entitle plaintiffs to an injunction against the misuse of the easement. Donalson v. Georgia Power &c. Co., 175 Ga. 462(5), 165 S.E. 440 (1932).

    Metro. Atlanta Rapid Transit Auth. v. Datry, 235 Ga. 568, 574, 220 S.E.2d 905, 909โ€“10 (1975)(bolding added).


    I wholeheartedly agree with that.
     
    Last edited: May 15, 2021
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  8. adjusterjack

    adjusterjack Super Moderator

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    Did you mean "won't" file a frivolous complaint?
     
  9. Tax Counsel

    Tax Counsel Well-Known Member

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    I meant "will not" and have corrected that error in my original post.
     
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  10. welkin

    welkin Active Member

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    The misuse of an easement is a use not granted in the grant. In your example, a pedestrian thoroughfare would not extinguish the easement for the granted purpose. Not exactly on point in OP's case. The easement is also an implied dedication to the public not a private driveway.

    I still maintain that misuse of an easement is not a tort. Trespass, nuisance, overburdening, and negligence are plead in easement law. And all being a collective misuse of an easement.
     
    Last edited: May 16, 2021
  11. Tax Counsel

    Tax Counsel Well-Known Member

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    It doesn't have to be a separate tort. That's not the point. The purpose of the complaint is to set out the facts that, if true, would entitle the plaintiff to the requested relief. If the claimed misuse would amount to some violation of the easement, under whatever label you want to put on it, then the complaint has done its job of putting the matter at issue in the litigation.

    No, not exactly the same situation. But the case nevertheless does show the court recognized the concept of a misuse of the easement.
     
  12. Lisa Phipps

    Lisa Phipps Law Topic Starter New Member

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    Thank you so much
    I wish I could find an attorney in my area who would work with me. I just cant afford $2,000.00 for one to get started! I dont know what vfc to do.
    I know I am. I cant figure out how to block out personal info on pdfs!! Ok so the notice says pursuant to OCGA 9-11-34
    There is a gate at the road at the end of the easment that we c pi und both use. I suggested this in the begin. We could keep it closed at night. Problem solved, right? Plaintiff wasnnor interested in solving the problem this way.
     
  13. zddoodah

    zddoodah Well-Known Member

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    No, they're not. Why would you write something so obviously untrue?

    Your neighbor's are suing you for what they regard as "unreasonable overuse of the" easement. They allege that, in "the last few months" prior to the filing of the lawsuit in March 2020, "over 70 different vehicles have visited [your] property . . . at all hours of the day and not, most staying for 15-30 minutes and then leaving." They further alleged that all of this traffic is deteriorating the driveway, that your guests leave trash on their property, that you abandoned a car on their property, that you and your guests block the driveway, and that your guests trespass on your neighbor's property. I was surprised to read these allegations because nothing you previously wrote even hints at them. So...what say you about these allegations? Any truth to them? These allegations strongly suggest that folks are coming to your house to buy drugs.

    Your neighbor alleged entitlement to attorneys' fees under OCGA section 13-6-11. This section allows for the recovery of attorneys' fees by the prevailing party if he pleads and proves bad faith, that the other party has been "stubbornly litigious" or that the other party has caused "unnecessary trouble and expense." I'm not sure how this is interpreted, but it appears in a party of Georgia law relating to contracts, so I'm skeptical it's applicable. Regardless, I suspect it's not "most likely" that this will be the result.

    Two things might be in your best interests at this point. First cut off the traffic of which the neighbors are complaining. Second, build your own driveway out to the main road. Not much anyone can say beyond this unless you want to get into the details of the neighbors' allegations, which might not be smart on a public forum (especially since one of the things you're obligated to produce at your deposition will be all of the posts in this thread since they are communications with persons other than counsel about the subject matter of the lawsuit).
     
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  14. zddoodah

    zddoodah Well-Known Member

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    Clearly.

    True, but there are a number of allegations that the OP and her licensees have left the bounds of the easement.

    Wrong.

    Wrong. A lawful right to be on property doesn't mean anything goes. If my neighbor routinely has loud parties on his property at 2:00 a.m., that's nuisance, and I can sue and, if I do, I'll win.

    Wrong. Three strikes and you're out.

    I couldn't disagree more. If the factual allegations are true (and we obviously have no way of knowing if they are or to what extent), the OP is going to lose big.

    Last week, I suggested you contact your homeowner's insurance carrier. Have you done that?
     
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  15. Lisa Phipps

    Lisa Phipps Law Topic Starter New Member

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    I have complied to every complaint he had. Rather I agreed I should do so or not. Trying to show that I do care how they feel . There is no traffic
    An occasional guest at night. I do sometimes work the night shift. I actually work a unusual swing shift that's different each week.
    As far as trash, occasionally a can or bottle would be seen off the easement in the past I would walk and pick stuff up if there.were any. There has never been to much to comfortably carry.
    As to trespassing, I assume he's referring to another neighbor who was coming to my house. He cut through the field like he had for 50 years before these neighbors bought it. He learned his lesson about that.
    Abandoned cars, my son had a car that ran out of gas . Yes he left it there to long, about 4 days. And my switch messed up in my car on my way home up the driveway. It was no longer than 12 hours before I had it repaired and moved. Neither time was the driveway in any way blocked.
     
  16. Lisa Phipps

    Lisa Phipps Law Topic Starter New Member

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    I regretfully have to say ,I do not have homeowners .
     
  17. Lisa Phipps

    Lisa Phipps Law Topic Starter New Member

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    Yes we have different life styles. I am a respectful person. I care about everyone. That's why I have so many visitors. People come to me for a non biased ear and advice. I have stopped that now because of this lawsuit. This makes me very unhappy, to turn people away when they're in need.
    Just because our life styles are different. that doesnt mean one of us is wrong, does it?
    My neighbor has never spoke to me. He has formed an opinion of me that I dont deserve. In my opinion
     
  18. zddoodah

    zddoodah Well-Known Member

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    When your "lifestyle" involves passing over someone else's property and results in them not being able to have full use and enjoyment of their property, yes. You seemingly admit that the allegations are generally true (even if overblown somewhat). Maybe this sounds harsh, but I don't know anyone who would want to live next to someone like that.
     
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  19. Lisa Phipps

    Lisa Phipps Law Topic Starter New Member

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    As said. They are accusations And there isn't anything wrong with having visitor . Nothing can be done about our sc9being opposites. Should I be punished for that. There is not anymore late night visitors.
    I am the one that cant enjoy my property now in fear of confrontation. He Carrie's a gun pointed it at another neighbor. Videos anyone with his cell phone. This man dosent even know me. What gives him the right to harass me when anything that had merit was discontinued. Several months ago
     
  20. Lisa Phipps

    Lisa Phipps Law Topic Starter New Member

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    I'm not sure what you mean passing through there property. I have never trespassed on there property. The easement serves well for that.
     

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