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Star Residential, LLC v. Hernandez

Court of Appeals of Georgia, Fourth Division
Mar 28, 2022
No. A19A2267 (Ga. Ct. App. Mar. 28, 2022)

Opinion

A19A2267

03-28-2022

STAR RESIDENTIAL, LLC et al. v. HERNANDEZ.


DOYLE, P. J., MARKLE, J., and SENIOR APPELLATE JUDGE PHIPPS

Doyle, Presiding Judge.

In Star Residential, LLC v. Hernandez ("Hernandez I"), this Court addressed an interlocutory appeal by Star Residential, LLC, and Terraces at Brookhaven, LLC ("the Defendants"), challenging the trial court's denial of their motion to dismiss claims brought by Manuel Hernandez for nuisance predicated on the Georgia Street Gang Terrorism and Prevention Act ("GSGTPA") and negligence per se based on alleged code violations. In that case, this Court affirmed the trial court's denial of the Defendants' motion to dismiss those claims.

OCGA § 16-15-1 et seq.

OCGA § 16-15-7 (c) provides in part that "[a]ny person who is injured by reason of criminal gang activity shall have a cause of action for three times the actual damages sustained and, where appropriate, punitive damages. . . ."

See id. at 629.

The Supreme Court of Georgia granted the Defendants' petition for certiorari to examine this Court's holding with respect to the civil liability provision of the GSGTPA. The Supreme Court reversed this Court's judgment, ruling that the GSGTPA does not create a private cause of action for nuisance and that Hernandez cannot pursue a private cause of action against the Defendants for treble and punitive damages under OCGA § 16-15-7 (c) based on the facts alleged in his complaint. Accordingly, the Supreme Court reversed this Court's judgment as to those issues.

See Star Residential, LLC v. Hernandez, Case No. S20C1214, 2020 Ga. LEXIS 897 (November 2, 2020).

See Star Residential, LLC v. Hernandez, 311 Ga. 784, 790 (1) (860 S.E.2d 726) (2021). The Supreme Court did not address Division 2 of Hernandez I regarding negligence per se. Accordingly, that division remains binding upon return of the remittitur. See Callaway v. Garner, 333 Ga.App. 747, n.1 (776 S.E.2d 829) (2015).

We hereby vacate Division 1 of our earlier opinion and remand to the trial court for proceedings consistent with this opinion.

Judgment affirmed in part and reversed in part.

Markle, J., and Senior Appellate Judge Phipps concur.


Summaries of

Star Residential, LLC v. Hernandez

Court of Appeals of Georgia, Fourth Division
Mar 28, 2022
No. A19A2267 (Ga. Ct. App. Mar. 28, 2022)
Case details for

Star Residential, LLC v. Hernandez

Case Details

Full title:STAR RESIDENTIAL, LLC et al. v. HERNANDEZ.

Court:Court of Appeals of Georgia, Fourth Division

Date published: Mar 28, 2022

Citations

No. A19A2267 (Ga. Ct. App. Mar. 28, 2022)