FOURTH DIVISION
DILLARD, P. J.,
RAY and SELF, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 5, 2017
In the Court of Appeals of Georgia
A17A0452. CITY OF SANDY SPRINGS BOARD OF APPEALS
et al. v. TRATON HOMES, LLC.
DILLARD, Presiding Judge.
The City of Sandy Springs Board of Appeals and members of the Board1
(collectively, “the Board”) filed this interlocutory appeal to the superior court’s denial
of a motion to dismiss Traton Homes, LLC’s petition for writ of certiorari. The Board
maintains that the trial court erred in denying its motion to dismiss when Traton
Homes failed to (1) meet the mandatory requirements of OCGA § 5-4-6 (b) for
service of the certiorari petition and writ on the Board as the respondent and (2) name
the City of Sandy Springs as the opposite party and, thus, separately failed to meet the
mandatory requirements of OCGA § 5-4-6 (b) with regard to service upon an opposite
1
The individually named members are Ted Sandler, Melissa Nodvin, Ron
Carpinella, Colin Lichtenstein, Ken Moller, Alvin Johnson, and Eric Johnson.
party. Because we agree that Traton Homes failed to satisfy these mandatory statutory
requirements, we reverse.
The record reflects that on December 11, 2015, Traton Homes filed a petition
for writ of certiorari in superior court, seeking to appeal the City of Sandy Springs
Board of Appeals’s decision to affirm a zoning interpretation that had been made by
the community development director for the City of Sandy Springs. The superior
court subsequently entered an “Order Sanctioning Petition for Certiorari and
Directing Service.” Also on that day, the court issued summonses to the named
respondents in certiorari, to wit, the Board and its members.
On January 19, 2016, the Board filed a special appearance and responsive
pleading to the petition, asserting that a writ had never been issued; the writ had
therefore not been properly served; and Traton Homes had not named the City of
Sandy Springs (“the City”), the opposite party, as a defendant, and thus had not
served the petition or writ on the City. On the same day, the Board also moved to
dismiss the petition for these reasons. Traton Homes responded, maintaining that the
court’s order sanctioning the filing was the writ; that alternatively, the summonses
issued by the clerk of court were tantamount to the required writ; and that, in any
event, it was the clerk of court’s duty to issue the writ, not the petitioner’s. Traton
2
Homes also argued that its failure to name the City as a defendant was not fatal to its
petition, and it filed an amended petition to that effect, citing OCGA § 5-4-10 as
authority for doing so.2 Finally, Traton Homes contended that by serving counsel for
the City within five days of filing its original petition, the City had been properly
served. But the Board replied, countering that the summonses were not tantamount
to the required writ, and that the City could not be added as a party through an
amendment. The trial court summarily denied the motion and then issued a certificate
of immediate review. The Board’s application for an interlocutory appeal followed,
which we granted.
At the outset, we note that if a motion to dismiss for lack of jurisdiction is
“decided on the basis of the written submissions, the reviewing court is in an equal
position with the trial court to determine the facts and therefore examines the facts
under a non-deferential standard.”3 And as for motions to dismiss for insufficient
service, a trial court’s ruling “will be upheld on appeal absent a showing of an abuse
2
OCGA § 5-4-10 provides that “[c]ertiorari proceedings shall be amendable
at any stage, as to matters of form or substance, as to the petition, bond, answer, and
traverse; and a valid bond may by amendment be substituted for a void bond or no
bond at all.”
3
Beasley v. Beasley, 260 Ga. 419, 420 (396 SE2d 222) (1990); accord Scovill
Fasteners, Inc. v. Sure-Snap Corp., 207 Ga. App. 539, 540 (428 SE2d 435) (1993).
3
of discretion.”4 Of course, when an appeal from the denial of a motion to dismiss
presents a question of law, we review the trial court’s decision de novo.5 With these
guiding principles in mind, we turn now to the Board’s contentions on appeal.
1. First, the Board argues that the trial court erred in denying the motion to
dismiss when Traton Homes failed to meet the mandatory requirements of OCGA §
5-4-6 (b) for service of the certiorari petition and writ upon the Board. We agree.
Following the 1966 Civil Practice Act, “certiorari proceedings are considered
‘special statutory proceedings[,]’” which are proceedings “to which the Civil Practice
Act applies ‘except to the extent that specific rules of practice and procedure in
conflict . . . are expressly prescribed by law.’”6 And turning to the certiorari-
4
Woodyard v. Jones, 285 Ga. App. 323, 323 (646 SE2d 306) (2007).
5
See Atlanta Women’s Health Group, P.C. v. Clemons, 299 Ga. App. 102, 102
(681 SE2d 754) (2009) (“This appeal presents a question of law, which we review de
novo.”); In the Interest of P. N., 291 Ga. App. 512, 512 (662 SE2d 287) (2008)
(same).
6
Hudson v. Watkins, 225 Ga. App. 455, 456 (484 SE2d 24) (1997)
(punctuation omitted); see OCGA § 9-11-81 (“This chapter shall apply to all special
statutory proceedings except to the extent that specific rules of practice and procedure
in conflict herewith are expressly prescribed by law; but, in any event, the provisions
of this chapter governing the sufficiency of pleadings, defenses, amendments,
counterclaims, cross-claims, third-party practice, joinder of parties and causes,
making parties, discovery and depositions, interpleader, intervention, evidence,
motions, summary judgment, relief from judgments, and the effect of judgments shall
4
proceedings statute relevant to this appeal, we are mindful that in considering the
meaning of a statute, our charge as an appellate court is to “presume that the General
Assembly meant what it said and said what it meant.”7 Toward that end, we must
afford the statutory text its plain and ordinary meaning,8 consider the text
contextually,9 read the text “in its most natural and reasonable way, as an ordinary
speaker of the English language would,”10 and seek to “avoid a construction that
apply to all such proceedings.”).
7
Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013)
(punctuation and citation omitted); accord Arby’s Restaurant Group, Inc. v. McRae,
292 Ga. 243, 245 (1) (734 SE2d 55) (2012); Martinez v. State, 325 Ga. App. 267, 273
(2) (750 SE2d 504) (2013).
8
Deal, 294 Ga. at 172 (1) (a); State v. Able, 321 Ga. App. 632, 636 (742 SE2d
149) (2013).
9
See Arizona v. Inter Tribal Council of Arizona, Inc., ___U.S. ___, ___ (II) (B)
(133 SCt 2247, 186 LE2d 239) (2013) (“Words that can have more than one meaning
are given content, however, by their surroundings.” (punctuation omitted)); Deal, 294
Ga. at 172 (1) (a) (“[W]e must view the statutory text in the context in which it
appears[.]”); see also Tibbles v. Teachers Retirement Sys. of Ga., 297 Ga. 557, 558
(1) (775 SE2d 527) (2015) (“The common and customary usages of the words are
important, but so is their context.” (punctuation omitted)).
10
Deal, 294 Ga. at 172-73 (1) (a); accord Luangkhot v. State, 292 Ga. 423, 424
(1) (736 SE2d 397) (2013).
5
makes some language mere surplusage.”11 In summary, when the language of a statute
is “plain and susceptible of only one natural and reasonable construction, courts must
construe the statute accordingly.”12
Turning to the statutes in question, under OCGA § 5-4-3, whenever any party
in a case brought “before any inferior judicatory or before any person exercising
judicial powers” is dissatisfied with the ultimate decision or judgment, that party
“may apply for and obtain a writ of certiorari by petition to the superior court for the
county in which the case was tried, in which petition he shall plainly and distinctly
set forth the errors complained of.” The statute further provides as follows:
On the filing of the petition in the office of the clerk of the superior
court, with the sanction of the appropriate judge endorsed thereon,
together with the bond or affidavit, as provided in Code Section 5-4-5,
it shall be the duty of the clerk to issue a writ of certiorari, directed to
the tribunal or person whose decision or judgment is the subject matter
of complaint, requiring the tribunal or person to certify and send up all
11
In the Interest of L. T., 325 Ga. App. 590, 592 (754 SE2d 380) (2014)
(punctuation omitted); accord Ga. Transmission Corp. v. Worley, 312 Ga. App. 855,
856 (720 SE2d 305) (2011).
12
Holcomb v. Long, 329 Ga. App. 515, 518 (1) (765 SE2d 687) (2014)
(punctuation omitted); see Deal, 294 Ga. at 173 (1) (a) (“[I]f the statutory text is clear
and unambiguous, we attribute to the statute its plain meaning, and our search for
statutory meaning is at an end.” (punctuation omitted)).
6
the proceedings in the case to the superior court, as directed in the writ
of certiorari.13
Giving further direction, OCGA § 5-4-6 (a) and (b) provide as follows:
(a) All writs of certiorari shall be applied for within 30 days after the
final determination of the case in which the error is alleged to have been
committed. Applications made after 30 days are not timely and shall be
dismissed by the court.
(b) The certiorari petition and writ shall be filed in the clerk’s office
within a reasonable time after sanction by the superior court judge; and
a copy shall be served on the respondent, within five days after such
filing, by the sheriff or his deputy or by the petitioner or his attorney. A
copy of the petition and writ shall also be served on the opposite party
or his counsel or other legal representative, in person or by mail; and
service shall be shown by acknowledgment or by certificate of the
counsel or person perfecting the service.14
Looking to the plain and unambiguous language of these two statutes, OCGA
§ 5-4-3 and OCGA § 5-4-6, it is evident that the petition for certiorari filed by the
dissatisfied party, the writ of certiorari issued by the superior court clerk, and the
sanction of the writ by the superior court judge are separate entities, as we and our
13
OCGA § 5-4-3 (emphasis supplied).
14
(Emphasis supplied).
7
Supreme Court have indicated in prior cases.15 Additionally, in further contradiction
of Traton Homes’ contentions, neither the order sanctioning the petition nor the
summonses issued in this case satisfied the requirements of a writ of certiorari which,
according to statute, must be “directed to the tribunal or person whose decision or
judgment is the subject matter of complaint, requiring the tribunal or person to certify
and send up all the proceedings in the case to the superior court, as directed in the
15
See Asher v. Cope, 95 Ga. 31, 31 (22 SE 41) (1894) (“It appears from the
record that the petition was presented to the judge of the superior court; that it was
sanctioned, and the writ of certiorari ordered to issue . . . , and that the writ of
certiorari issued regularly . . . ; that the order sanctioning the issue of the writ was
entered upon, and the writ itself attached to, the petition for certiorari[.]”); Goldstein
v. Smith, 141 Ga. App. 493, 494 (2) (233 SE2d 864) (1977) (“[OCGA § 5-4-3] . . .
requires the petition to be filed in the office of the clerk of the superior court, with the
sanction of the judge of the circuit endorsed thereon, in order for the clerk to issue the
writ directed to the inferior judicatory thereby requiring that court to certify and send
up all the proceedings in the cause to the superior court as directed in the writ of
certiorari.”); Smith v. City of Washington, 4 Ga. App. 514, 514 (61 SE 923) (1908)
(“The petition for certiorari was duly sanctioned by the judge of the superior court,
and the petition, with the sanction of the judge indorsed thereon, was delivered by
[appellant’s] attorney to the clerk of the superior court . . . . It appears from the record
that the clerk of the superior court promptly and properly issued the writ directed to
the mayor of the city of Washington, bearing teste in the name of the judge of the
superior court of the circuit, entered the case upon the docket, copied the petition and
the sanction of the judge, attached the writ of certiorari, and kept the same in his
office until April 29th, when they were handed by him to the petitioner’s counsel
upon counsel’s request to be furnished with papers in those cases which he
represented.”).
8
writ of certiorari.”16 Indeed, the order directed that (1) the petition for certiorari be
filed in the clerk’s office within a reasonable time after sanction, (2) that the petition
be served on the respondent within five days of filing, (3) that a copy of “the petition
and writ . . . also be served on the opposite party,”17 and (4) that the respondent
answer the writ within thirty days of service of the “petition and writ upon the
[r]espondent”18 in accordance with OCGA § 5-4-6. And the summonses directed the
Board and its members to “serve upon plaintiff’s attorney” an “answer to the
complaint which is herewith served upon you” and warned that the failure to do so
could result in a default judgment. Thus, neither the order nor the summonses
satisfied the dictates of the statute as applied to the contents of a writ.19
Accordingly, although the Board was served with a copy of the petition for
certiorari, a sanction of the writ by the superior court, and summonses, there was a
16
OCGA § 5-4-3.
17
(Emphasis supplied).
18
(Emphasis supplied).
19
See OCGA § 5-4-3 (providing that a writ of certiorari be “directed to the
tribunal or person whose decision or judgment is the subject matter of complaint,
requiring the tribunal or person to certify and send up all the proceedings in the case
to the superior court, as directed in the writ of certiorari”).
9
failure to comply with the express terms of OCGA § 5-4-3 and OCGA § 5-4-6
because no writ has been issued and served.20 And while it is true that it was the
clerk’s duty to issue the writ, it is also separately the petitioner or his counsel’s duty
to ensure that a writ is served.21 Thus, Traton Homes cannot completely divorce itself
20
See Neal v. Neal, 122 Ga. 804, 804 (1) (50 SE 929) (1905) (“[T]he writ of
certiorari itself is issued by the clerk of the superior court under the sanction of the
judge[.]”); Gregory v. Daniel, 93 Ga. 795, 796 (2) (20 SE 656) (1894) (“The writ of
certiorari ought to have been issued, and the case made returnable to the December
term, 1892, of Burke superior court, but the clerk failed to issue the writ. At the term
last mentioned the court passed an order directing the writ of certiorari to issue, and
that the same stand for trial at the next term of the court. The writ was accordingly
issued . . . . “); see also Cobb County v. Herren, 230 Ga. App. 482, 484 (496 SE2d
558) (1998) (“Absent the sanction, the clerk of the superior court has no authority to
either file the application for certiorari or issue the writ. Sanctioning is an integral
part of the application for certiorari and without it, the certiorari process cannot move
forward.” (citation omitted)); Bellew v. State Highway Dep’t, 127 Ga. App. 301, 302
(1) (193 SE2d 202) (“[An applicant] may file [an application for certiorari] with the
clerk of superior court, after sanction by the judge, and the clerk will thereupon be
required to issue a writ of certiorari. But, absent sanction, the clerk has no authority
to file the application or issue the writ of certiorari.” (citation omitted)); McElhannon
v. State, 112 Ga. 221, 224 (37 SE 402) (1900) (“It makes no practical difference, we
think, whether the judge of the superior court issues the writ of certiorari himself, or
sanctions the petition and orders the clerk to issue it. Certainly the issuing of the writ
by the judge necessarily involves a sanction of the petition.”).
21
See OCGA § 5-4-6 (b) (“The certiorari petition and writ shall be filed in the
clerk’s office within a reasonable time after sanction by the superior court judge; and
a copy shall be served on the respondent, within five days after such filing, by the
sheriff or his deputy or by the petitioner or his attorney. A copy of the petition and
writ shall also be served on the opposite party or his counsel or other legal
representative, in person or by mail; and service shall be shown by acknowledgment
10
from the failure that occurred in this case.22 Accordingly, the superior court erred in
denying the Board’s motion to dismiss when there was a complete failure to even
issue a writ of certiorari, let alone serve same upon the respondent, the Board.23 And
or by certificate of the counsel or person perfecting the service.”); Smith, 4 Ga. App.
at 514 (2) (“The clerk of the superior court performed his full duty in the premises as
clerk when he issued the writ, attached it to the petition, made a copy of the petition
and the writ, and docketed the case. Furthermore, it was the duty of the petitioner or
of his counsel to see that the mayor was served with the copy of the petition and with
the writ of certiorari.”).
22
See Fisher v. City of Atlanta, 212 Ga. App. 635, 635-36 (442 SE2d 762)
(1994) (“It cannot readily be determined why § 5-4-6 (b) requires ‘the respondent’
(the inferior judicatory) to be served, since OCGA § 5-4-3 fully and expressly
provides for ‘service’ by the clerk of court of the writ of certiorari on the inferior
judicatory . . . . Even though the [respondent] received service of the writ from the
superior court clerk under OCGA § 5-4-3, we must hold that the petition was properly
dismissed for lack of service under § 5-4-6 (b).”); cf. Johnston v. Ga. Public Serv.
Comm’n, 209 Ga. App. 224, 225 (433 SE2d 65) (1993) (“Considering the fact that the
mistaken designation [of a nonexistent transcript] in the notice of appeal could have
been easily discovered if some attention had been paid to the matter, and that the
earliest inquiry about the status of the appeal did not occur until several months after
the notice of appeal had been filed, the trial court was also authorized to find that the
delay was inexcusable and caused by the appellants.”).
23
See Fisher, 212 Ga. App. at 635-36 (“Even though the [respondent] received
service of the writ from the superior court clerk under OCGA § 5-4-3, we must hold
that the petition was properly dismissed for lack of service under § 5-4-6 (b).”); cf.
Bass v. City of Milledgeville, 121 Ga. 151, 151 (121 SE 919) (1904) (“[T]he failure
to deliver the writ and a copy of the petition to the officer whose decision is sought
to be reviewed . . . will not . . . result in a dismissal of the proceeding [when] it is
shown that the failure was not due to the fault or negligence of the plaintiff in
certiorari. [When] this appears, an order will be granted allowing further time within
11
even if we assume, without deciding, that dismissal with prejudice was not required
by this error,24 the failure to comply with the certiorari requirements as to the opposite
party, as discussed in Division 2 infra, did require dismissal with prejudice.
Consequently, we turn to this second enumerated error.
2. The Board next argues that the trial court erred in denying its motion to
dismiss the petition for certiorari when Traton Homes failed to name the City of
Sandy Springs as the opposite party, further failing to comply with the mandatory
requirements of OCGA § 5-4-6 (b). Once again, we agree.
Looking to the statute at issue, OCGA § 5-4-6 (b) plainly provides not only
that a copy of the certiorari petition and writ be served upon the respondent within
five days of filing same in the clerk’s office, but additionally that “[a] copy of the
petition and writ shall also be served on the opposite party or his counsel or other
which to serve.”).
24
Cf. City of Dunwoody v. Discovery Practice Mgmt., Inc., 338 Ga. App. 135,
136-37 (1) (789 SE2d 386) (2016) (discussing writ and petition as two separate items,
and noting that “the failure to deliver, within the time required by the statute, the
petition and writ to the officer whose decision is under review, will not render the
proceeding void, but that it is a mere irregularity, which can be cured either by a
waiver by the officer himself, evidenced by the filing of his answer, or by an
extension of time by the judge of the superior court” (punctuation omitted) (emphasis
supplied)).
12
legal representative, in person or by mail; and service shall be shown by
acknowledgment or by certificate of the counsel or person perfecting the service.”25
As we have previously explained, “the judicatory body whose decision is
appealed is the ‘respondent’ on whom service is required”26 or, in other words, the
“respondent” is “the judicatory body in the dispute,”27 while the “opposite party” is
the “party to a dispute.”28 The judicatory body/respondent and the opposite
party/party to a dispute are, thus, “separate entities with possibly conflicting
interests.”29 And because the Board (as respondent) and the City (as the proper
opposite party) are two separate entities with possibly conflicting interests, we reject
Traton Homes’s argument that service of the original petition upon the city attorney
was sufficient service upon the City as an opposite party when the City was not
25
(Emphasis supplied).
26
Fisher, 212 Ga. App. at 635.
27
Id. at 636 (emphasis supplied); see also Hudson, 225 Ga. App. at 456 (2)
(noting that “the respondent” is “[t]he tribunal whose decision is being reviewed”).
28
Fisher, 212 Ga. App. at 636 (emphasis supplied).
29
Id.; see also Hudson, 225 Ga. App. at 456 (2) (“[T]he respondent, is not,
however, the ‘opposite party’ referred to in OCGA § 5-4-6 and also required to be
served.”).
13
named as the opposite party—only the Board and its members were named in the
original petition.30
To that end, our Supreme Court long ago established that “[f]ailure to serve the
opposite party with notice of the sanction and of the time and place of hearing renders
nugatory and void that which had been commenced as a good suit, but had never been
30
See Fisher, 212 Ga. App. at 636 (“Appellant . . . contends service of the
petition on the City of Atlanta was service on the City of Atlanta Civil Service Board,
but we decline to so hold as a matter of law. The superior court apparently found that
the attorney for the City of Atlanta did not accept or waive service on the Civil
Service Board as ‘respondent.’ Under the circumstances, these are separate entities
with possibly conflicting interests, as one is a party to a dispute and the other is the
judicatory body in the dispute.”); see also id. at 636 (on motion for reconsideration)
(“[Because] appellant had not named the respondent (Civil Service Board) as a party
on December 7 when he served the City of Atlanta (employer) and [because] we hold
that service on the City of Atlanta (employer) is not service on the Civil Service
Board (‘respondent’/tribunal) as a matter of law, it logically follows that the . . .
service on the City of Atlanta (employer) could not have been intended by appellant
or accepted by the City of Atlanta (employer) as service on the Civil Service Board
(respondent).”); cf. Pope v. Bd. of Comm’r of Fulton Cnty., 248 Ga. App. 201, 202
(2) (546 SE2d 333) (2001) (“Fisher was correctly decided, as the Civil Service Board
did not initiate or prosecute the proceedings before it, but sat solely as a judicial
decision-maker in a dispute between the City and a civil servant. In this case,
however, the Board of Commissioners performs a more expansive role. . . . In such
circumstances, it is the Board of Commissioners, as the governing authority, which
is the proper defendant in certiorari. Here, . . . unlike Fisher, the superior court was
petitioned to review a quasi-judicial decision of the Board of Commissioners of
Fulton County under OCGA § 48-5-295 (b).”).
14
completed and perfected by service.”31 And when there is no such service upon the
opposite party, “there is no suit.”32 Indeed, as our Supreme Court recognized with
regard to certiorari proceedings as far back as 1904, “[w]ithout proper service the
court can have no jurisdiction of the case.”33 Additionally, although OCGA § 5-4-10
provides that “[c]ertiorari proceedings [are] amendable at any stage, as to matters of
form or substance, as to the petition, bond, answer, and traverse . . . ,” we have
previously held that “a failure to serve the opposite party is not a defect which can be
cured by amendment . . . .”34
31
Bass, 121 Ga. at 151; accord Hudson, 225 Ga. App. at 456 (2).
32
Bass, 121 Ga. at 151; accord Hudson, 225 Ga. App. at 456 (2); see O’Keefe
v. Cotton, 102 Ga. 516, 516 (27 SE 663) (1897) (syllabus by the court) (“Notice to
the opposite party of the sanction of a writ of certiorari, and of the time and place of
hearing, at least [ten] days before the sitting of the court to which the same shall be
returnable, being indispensable in the prosecution of a petition for certiorari, a failure
to give such notice renders the entire proceeding void[.]”); Franke v. May, 86 Ga.
659, 659 (12 SE 1068) (1891) (“[T]he statute requires written notice, and doubtless
it means what it says. . . . The court committed no error in dismissing the certiorari
at the hearing, because the statutory notice had not been given. For the lack of such
notice, there was no proper case pending in the court.”); see also Hudson, 225 Ga.
App. at 456 (1) (“It is appropriate for the court, without a motion from the party
improperly served, to consider whether the petition and writ are properly before it.”).
33
Jones v. Gill, 121 Ga. 93, 97 (48 SE 688) (1904).
34
Hudson, 225 Ga. App. at 456 (2). But cf. Jones, 121 Ga. at 97 (“If there has
been proper service, the plaintiff in certiorari should be allowed to amend his return
15
Accordingly, because Traton Homes failed to name the City as an opposite
party and, likewise, failed to serve the City with a copy of the petition and with a
copy of the writ (which, as explained in Division 1 supra, was never even issued) in
the time required by statute, the trial court erred in denying the Board’s motion to
dismiss. And that motion should have been granted with prejudice.35
For all these reasons, we reverse.
Judgment reversed. Ray and Self, JJ., concur.
so as to properly show that fact.” (emphasis supplied)); Pope, 248 Ga. App. at 291,
201-02 (1) (holding that, although case was improperly dismissed for failure to name
the County as the opposite party (when County was not the opposite party and, thus
was neither required to be named nor entitled to service), petitioner was properly
permitted amendment to name Board of Commissioners as the opposite party when,
under specific facts of the case and separately applicable statutory provisions, Board
was both the respondent and the opposite party, and Board had already previously
been named as the respondent and had been timely served as same).
35
See Hipp v. City of East Point, 105 Ga. App. 775, 776 (125 SE2d 672) (1962)
(“[T]he service upon the opposite party should ‘[a]lso’ be made within five days after
the filing of such writ in the clerk’s office. No service, or written waiver, appears in
the record and the judgments[ ] of the superior court dismissing the writ of certiorari
and denying the motion to reinstate such writ of certiorari must be [a]ffirmed.”).
16