IN THE SUPERIOR COURT OF LAMAR COUNTY STATE OF GEORGIA

Transcription

1 IN THE SUPERIOR COURT OF LAMAR COUNTY STATE OF GEORGIA CLERK OF SUPERIOR COURT LAMAR COUNTY, GEORGIA 18B-138-W THOMAS H. WILSON JUN 26, :40 PM APPLICATION OF THE CITY OF ) BARNESVILLE, A MUNICIPALITY ) OF THE STATE OF GEORGIA, FOR ) A PERMIT UNDER CHAPTER 72 OF ) Case No.: 18B-138-W TITLE 36 OF THE OFFICIAL CODE ) OF GEORGIA ( ABANDONED ) CEMETERIES AND BURIAL ) GROUNDS ), O.C.G.A , ) ET SEQ., ) ) Applicant ) OBJECTOR CYNTHIA WADSWORTH S MOTION TO DISMISS APPLICATION WITH PREJUDICE COMES NOW CYNTHIA WADSWORTH, a descendant of the members of the Wadsworth family buried in the historic Wadsworth- Clayton Cemetery that is the subject of this litigation, and objects to the Application of the City of Barnesville, and further moves to dismiss, with prejudice, said application. In support of her Motion, Objector shows the following facts, argument and citation of authority: 1. The City wrongfully caused the disrepair and destruction of the cemetery, and should not be allowed to profit from its wrongdoing.

2 The City of Barnesville (hereinafter, City or the City ) owns the property within which the historically significant Wadsworth-Clayton Cemetery is located, as the result of its acquisition of the land surrounding and including the cemetery in Pretermitting the question of whether the City acquired good title from the nonadministered, non-probated estates of the property, it now appears that the City has exercised ownership and dominion over the entire property for over 22 years. At the time of the acquisition, this historic family cemetery was kept in good condition. Century-old oaks shaded the gravesites of some of the earliest settlers of Lamar County. Landowners and slaves, Civil War soldiers of both Union and Confederacy, and native Americans descended from Chief McIntosh of the Creek Nation, all shared this ground as their final resting place. Family members have returned to this place over many generations. Upon the City s acquisition of the land in 1996, though, it locked the cemetery gates and excluded everyone but those to whom it gave occasional permission to enter. That condition remains to this day. During the City s 22 years of ownership the Applicant has failed to

3 maintain the site, has allowed damage to the graves and headstones, and has gone so far as to cause deliberate destruction and desecration to this family cemetery. Within the past year City employees drove earth-moving equipment over the burial spaces, causing significant damage and desecration of a number of the graves. City employees cut down entirely or substantially most of the beautiful trees that had offered shade, dignity and beauty to those visiting the cemetery to pay respects to their family members. Now, following its complete and utter neglect of the cemetery, and immediately on the heels of those acts of desecration, the City brings the instant proceedings under the Abandoned Cemeteries and Burial Grounds Act, O.C.G.A , et seq., seeking a permit from this Court to move the cemetery, and, thereafter, to commercially develop the property upon which the cemetery is located. The Act provides, in pertinent part, Abandoned cemetery means a cemetery which shows signs of neglect including, without limitation, the unchecked growth of vegetation, repeated and unchecked acts of vandalism, or the disintegration of grave markers or boundaries for which no person can be found who is legally

4 responsible and financially capable of the upkeep of the property. O.C.G.A (1). As the owner of the property upon which the cemetery is located, the City had an ongoing duty, as the owner of that specialized property, commencing upon its acquisition in 1996, to preserve and protect the cemetery from such neglect. Compare Smith v. Pulaski County, 269 Ga. 688,689 (1998), wherein the Supreme Court held that a County can not be compelled to preserve and protect a family-owned cemetery simply because the cemetery is located within that county. In this case the cemetery is not simply located within the City, rather it is actually owned by the City, which has for over 20 years exercised its right to exclude ingress and egress to and from the site. The term, preserve and protect means to keep safe from destruction, or other adversity, and may include the placement of signs, markers, fencing or other such appropriate features so as to identify the site as a cemetery or burial ground and may also include the cleaning, maintenance, and upkeep of the site so as to aid in its preservation and protection. O.C.G.A (9).

5 The City, clearly, has taken steps, at one point during the interregnum of its ownership, to preserve and protect the cemetery, by having it fenced and gated, with locks affixed. In fact, permission is required to be obtained from the City for family members to even enter the cemetery. Gates remain locked when such permission is obtained. Over the years of its ownership, the City has attempted to remove the cemetery. Shortly after its acquisition of the property, in 1997, this Court entertained and rejected an application brought by the City to remove this cemetery. Thereafter the City neglected its responsibility to prevent the cemetery from waste, disrepair and disintegration. By 2017 the City, prior to seeking another permit to remove the cemetery, caused the trees on the property to be cut down and drove heavy equipment over the burial spaces, thereby causing actual destruction and desecration of headstones, gravesites and remains. The City cannot legally cause the cemetery to become in a state of abandonment so as to exploit the provisions of the Abandoned Cemeteries and Burial Grounds Act. Ex injuria sua neato habere debet

6 is a time-honored principle of our law that instructs that a wrongdoer should not be entitled to profit or take an advantage from his misdeeds. See, e.g., Fuller v. Fuller, 211 Ga. 201, 202 (1954), holding that a party will not be permitted to profit by his wrongdoing. Second, the City has a fiduciary duty to preserve and protect this cemetery, and to not commit waste. Given the special place that is afforded to cemeteries under not only centuries of our cultural and religious practice, but also under our law, an implied trusteeship in the City was created upon its acquisition of the property and subsequent exclusion of all other persons and activities, save and except the rarely granted permission to enter and observe. A fiduciary duty was created with respect to the Wadsworth-Clayton historic cemetery, and that duty, one which imposed upon the City the responsibility to act in the utmost good faith regarding this special and revered property. Third, the City s misconduct creates an estoppel. The City s conscious direction of its employees to harvest the shade trees and to drive earth-moving equipment over the gravesites, desecrating and destroying them, creates an estoppel as a matter of law that should

7 prevent the City from succeeding in this permit application, and should result in its dismissal, with prejudice. Fourth, even if the Act is held to be applicable to the facts of this cemetery, the City s Application should be denied, with prejudice, because the City failed to take the legal steps that are a condition precedent to obtaining relief thereunder. On or about April 18 th, 2018 the City of Barnesville GA filed for a permit Application of the City to the Superior Court of Lamar County to remove the Historical Wadsworth-Clayton cemetery. Pretermitting, for the sake of this discussion, whether the cemetery meets the statutory definition of abandoned cemetery, the City, on page 2 of the Introduction, urges that it has obtained a permit from the local governing authority, pursuant to O.C.G.A Our recent, successful appeal to the Fulton County Superior Court has established that, as a municipality the City must follow O.C.G.A , which states, in pertinent part,

8 Notwithstanding any provisions of this chapter to the contrary, when any agency, authority, or political subdivision of the state seeks to file an application for a permit under this chapter, the superior court having jurisdiction over the real property wherein the cemetery or burial ground is located shall have exclusive jurisdiction over the permit application. The superior court shall conduct its investigation and determination of the permit in accordance with Code Sections through Objector, and the host of family members for whom she speaks, disagrees with the City s assertion on page 1 of its Application that the cemetery is abandoned cemetery. The descendants share a common experience that, although they have been excluded by locked gates and fences since the City s acquisition of the property in 1996, the cemetery has not been abandoned. Over the years of the City s exclusive domain, though, it has allowed the cemetery to fall, in places into waste and desuetude because of the intentional, wrongful, and possibly criminal acts of desecration that it committed immediately prior to its commencement of permit applications.

9 In fact, it has never been an abandoned cemetery, yet the City of Barnesville has done all if can to desecrate and keep the descendants out since It is notable that the acts of desecration, committed by City employees, immediately preceded the filing by the City of its first permit application in The cemetery was in as good a condition as any other country cemetery in Georgia prior to the gross violence and disturbance of remains caused by the Applicant, in its apparent effort to make its proceedings under this Act a legal possibility. On page 2 of the Application, the City states that its deed contains no reference to a burial ground. However, at the (legally improper) public hearing before the Board of Commissioners last year, Mr. Kenny Roberts stated that the city knew when it purchased the property that there was a cemetery on the property. This is noted in the public meeting minutes in What the City hides by purposeful omission is that that a plat was filed in 1974, and is part of the public Records of the Superior Court of Lamar County, documenting the cemetery s location and clearly separating the cemetery from the rest of the property. See Exhibit A. Objector would show that the cost of the

10 survey was incurred, and that the plat was filed, to protect the cemetery. Additionally, the City has failed to follow the plain dictates of O.C.G.A , which requires the City to submit a genealogist s plan, so as to get notice to those parties who are entitled to appear and object to the Application. There is no certified genealogist who was a member of a national professional society employed by the Applicant, and within the entire filing there is no report filed by the purported expert that contains her signature, as required by Georgia law. In fact, the resume of Callie McGinnis obtained by Objector and descendant Cynthia Wadsworth (Exhibit B ) shows that Ms. McGinnis is not a professional genealogist. Her resume shows no professional membership in a national society, nor is she certified as a genealogist. Her resume focuses on one limited geographical area in Georgia, Muscogee County. Yet, if McGinnis is so knowledgeable about this area and she states she is the Executive Director of the Muscogee Genealogical Society on her resume, it is curious why does she not

11 mention the 21 Wadsworths noted in the surname list on her society s website? (Exhibit C ) It is obvious to those of us who are merely amateur genealogists that it should be obvious that those 21 individuals were likely to be members of the same family. Any credible genealogical effort should have involved the pre-application research of them, followed by a search for their descendants who STILL may live in her area. Further, in a specific issue of the Muscogiana of which she was the editor (Exhibit D ) there is a large article on a Seaborn Jones. Probably more than coincidentally, a Seaborn Jones is mentioned in this application, which was almost certainly a member of this same family? The descendants show that Callie McGinnis had information in her hands about the Wadsworth and Jones families that she purposely omitted. Since the filing of this Application, it has come to the attention of the family and their legal counsel that there have been a number of descendants who have not received statutorily required notification of the Application and the hearing associated with it. One of these

12 happens to be an old family friend of Objector s Attorney s wife, and who is arguably the most famous personality among the living Wadsworths. Charles Wadsworth was raised in Newnan, Georgia, and that City s concert hall and auditorium, Wadsworth Hall, is named in his honor. He, for decades, was piano accompaniment for Beverly Sills, a star of the Metropolitan Opera in New York City. He has been the driving force behind the Lincoln Center Chamber Music Society, and has served for many years as musical director for Charleston s world-renowned Spoleto Festival. He is one of Georgia s most famous sons, and his entire nuclear family have been ignored with respect to notice of these proceedings. No competent genealogical effort would have failed to include this highly renowned and accomplished personality. The Application should be dismissed for the City s failure to comply with the notification requirements of O.C.G.A It is not simply that the City missed the most obvious and nationally famous member of this old and esteemed family, it did not even provide notification to those persons entitled to notice by operation of the Act. O.C.G.A mandated the City to prepare

13 and implement their plan to locate and identify the descendants no later than the date the Application was submitted. The family notes that a number of the individuals recited on the list as descendants have not been given notification. On page 25 of the Application the City states that it will notify each of the descendants who contacted them in 2017, as required by Section 6 of the Act. It lists several descendants, none of whom have been notified. One descendant (Vivian Newkirk) listed in the Application notified the City of Barnesville on May 8 th, 2018 that she had not been notified. On May 27 th, 2018 Vivian Newkirk notified Cynthia Wadsworth that she still had NO information about the permit application. Objector/descendant Cynthia Wadsworth (who was NOT found by the City s hired genealogist but instead located by a concerned citizen after the June 20, 2017 meeting) received her information about the hearing on May 7 th, 2018, well after the application was submitted to the courts despite the city saying they would notify her in the application. Cynthia Wadsworth was earlier given a false name and a nickname in the permit application.

14 The City of Barnesville was mailed a list of over 35 descendants and their locations on July 8 th, They were provided the same list at the meeting on July 13, All these individuals had voiced their opposition to the cemetery removal. None of these individuals are mentioned in the City s current permit application. Another list given to the city at the July, 2017 public meeting showed the names of descendants found by a local historian/citizen Mr. Jeffrey Stevens. These individuals who were against the cemetery removal are not mentioned in the permit. Additional names were added to the list and given to the city and these descendants are not in the permit. The City obviously did not lose multiple lists of descendants it simply omitted from its notice/service list those individuals who had declared their interest and their opposition to the permit in Curiously, the counties named by the City (where they said they would place their notice of a permit application for 2018) are not where the greatest numbers of descendants are located as shown by the lists they were given.

15 The City omits the material portion of the archeological survey which protects the Wadsworth-Clayton Cemetery. On page 4 of the Application, the City states that it has completed an archeological survey of the cemetery and included its results within the application. However, the City omitted the crucial page 15 of that survey, which is the summary of the Ground Penetrating Radar which they state is included in the permit application. (Exhibit E ). The descendants believe this omission was omitted purposeful, for that summary states that the cemetery is an extremely important part of the history of both Lamar County, Georgia and the region in general. The author expressed his hope that the completed... body of information will enable wise stewardship of this important historical, cultural, natural, and spiritual site and help with its long-term preservation. The City concealed a detailed Archeological Report showing the historical significance of this Cemetery. It is likewise obvious that the City purposely omitted from its Application the extremely detailed 1997 archeological survey (Exhibit F), because that survey gave the cemetery a State Archeological Site Number, and caused it to be filed as a historical archaeological site. The only way the descendants

16 were able to obtain a copy was through a Ph.D.-prepared archaeologist as required by the State of Georgia. These careful, lawful, and scientifically directed steps taken by this illustrious family, should have been sufficient to keep this historical archaeological site, numbered 9LR67, and cemetery site safe from looters and relic hunters, but it could not keep it safe from the City of Barnesville, Georgia, who has continuously neglected and desecrated the cemetery since gaining ownership of the land in The pictures contained within the application show a cemetery with trees, but it does not show the current view of this cemetery after it was desecrated by the City of Barnesville.

17 The Objector will present evidence at the Public Hearing from an historian relative to the historical significance of this Cemetery. Barry Leo Brown is a recently retired historian who spent his career employed by the State of Georgia. He is the author of the seminal historical compendium of significant Civil War historical sites throughout Georgia, and will offer evidence of the historical significance of the Wadsworth-Clayton Cemetery as the burial ground of the survivors Confederate and Union, slave and free alike of a terrible railroad collision that occurred following the Battle of Atlanta in 1864 at Lavender s Curve, close to the Cemetery. It is also believed that Native American remains, artifacts, and an intersection of two Native American roads are located at the Cemetery. The City has utterly failed in its statutory responsibility to conduct a thorough archeological study in light of the preliminary evidence of Native American remains.

18 It has long been passed down among the generations of Wadsworths in this Objector s line that the grandson of Chief McIntosh the leader of the Creek Nation at the time of the forced ouster (locally euphemized as removal ) married a Wadsworth girl, lived and farmed on the property not far from the cemetery, and may even be buried there, as would have been likely with any member of the family. CONCLUSION This Application should be denied with prejudice, because the City s misconduct after becoming the property owner created the previously nonexistent factual basis for any proceedings involving the Abandoned Cemeteries and Burial Grounds Act. It cannot deliberately and possibly criminally neglect, deface and desecrate a cemetery and then proceed as though it had been abandoned within the statutory definition. It may not legally profit from its wrongdoing.

19 Independently of that argument, the City has failed to meet the requirements of the Act, even if it is deemed to be legally applicable to this Cemetery under all the facts and circumstances. Its historical work ignores the substantial, the long-recognized significance of this Cemetery. Its archeological report is disingenuous and omits the substantial work of the 1997 archeologist. Its non-professional genealogist gave an utterly incomplete and obviously incompetent effort. It deliberately failed to provide notice of this Application and hearing to those who had the temerity to voice their opposition to last summer s failed Application effort. Both the law and our Constitutional sense of what due process requires is offended. The City s Application, we pray, should be denied, with prejudice. This 26 th day of June, /s/ R. EDWARD FURR, JR Candler Road Decatur, Georgia (404) voice (404) facsimile edwardfurr@yahoo.com R. Edward Furr, Jr. Georgia Bar No Attorney for CYNTHIA WADSWORTH

20 IN THE SUPERIOR COURT OF LAMAR COUNTY STATE OF GEORGIA APPLICATION OF THE CITY OF ) BARNESVILLE, A MUNICIPALITY ) OF THE STATE OF GEORGIA, FOR ) A PERMIT UNDER CHAPTER 72 OF ) Case No.: 18B-138-W TITLE 36 OF THE OFFICIAL CODE ) OF GEORGIA ( ABANDONED ) CEMETERIES AND BURIAL ) GROUNDS ), O.C.G.A , ) ET SEQ., ) ) Applicant ) CERTIFICATE OF SERVICE This is to certify that I have this day served a true and accurate copy of the within and foregoing ENTRY OF APPEARANCE upon all counsel and parties of record in this matter by statutory electronic service and by depositing the same in properly addressed envelopes in the U.S. Mail with sufficient postage affixed to assure the delivery of the same to its proper destinations, to wit: John L. Strauss, Esquire Mr. Scott Mayfield C. Robert Melton, Esq Conyers St., S.E. 404 Thomaston St. 87 North Lee St. Covington, Georgia Barnesville, GA Forsyth, Georgia This 27 th day of June, Candler Road Decatur, Georgia (404) voice (404) facsimile /s/ R. EDWARD FURR, JR. R. Edward Furr, Jr. Georgia Bar No Attorney for CYNTHIA WADSWORTH

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