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. §§ 36-72-1, ) 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.

CLERK OF SUPERIOR COURTLAMAR COUNTY, GEORGIA

18B-138-WTHOMAS H. WILSON

JUN 26, 2018 04:40 PM

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 1996. Pretermitting the

question of whether the City acquired good title from the non-

administered, 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

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. § 36-72-1, 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

responsible and financially capable of the upkeep of the property.”

O.C.G.A. § 36-72-2(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. §36-72-2 (9).

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

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

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 18th, 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. § 36-72-5. Our recent,

successful appeal to the Fulton County Superior Court has established

that, as a municipality the City must follow O.C.G.A. § 36-72-14, which

states, in pertinent part,

“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 36-72-6 through 36-72-8.”

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.

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 1997. 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 2017. 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 2017. 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

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. § 36-72-6, 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

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

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. § 36-72-6.

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. § 36-72-6 mandated the City to prepare

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 8th, 2018 that she had not been

notified. On May 27th, 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 7th, 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.

The City of Barnesville was mailed a list of over 35 descendants

and their locations on July 8th, 2017. They were provided the same

list at the meeting on July 13, 2017. 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 2017. 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.

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

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 1996. 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.

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.

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.

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 26th day of June, 2018.

/s/ R. EDWARD FURR, JR. _________________________________ R. Edward Furr, Jr. Georgia Bar No. 280967 Attorney for CYNTHIA WADSWORTH 2316 Candler Road Decatur, Georgia 30032 (404) 284-7110 voice (404) 284-7111 facsimile

edwardfurr@yahoo.com

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. §§ 36-72-1, ) 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. 1132 Conyers St., S.E. 404 Thomaston St. 87 North Lee St. Covington, Georgia 30014 Barnesville, GA 30204 Forsyth, Georgia 31029 This 27th day of June, 2018. /s/ R. EDWARD FURR, JR. _________________________________ R. Edward Furr, Jr. Georgia Bar No. 280967 Attorney for CYNTHIA WADSWORTH 2316 Candler Road Decatur, Georgia 30032 (404) 284-7110 voice (404) 284-7111 facsimile

edwardfurr@yahoo.com