FOURTH DIVISION
DOYLE, P. J.,
MARKLE, J., and SENIOR APPELLATE JUDGE PHIPPS
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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
March 28, 2022
In the Court of Appeals of Georgia
A19A2267. STAR RESIDENTIAL, LLC et al. v. HERNANDEZ.
DOYLE, Presiding Judge.
In Star Residential, LLC v. Hernandez (“Hernandez I”),1 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 Act2 (“GSGTPA”)3 and negligence per se based on
1
354 Ga. App. 629 (841 SE2d 392) (2020).
2
OCGA § 16-15-1 et seq.
3
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. . . .”
alleged code violations. In that case, this Court affirmed the trial court’s denial of the
Defendants’ motion to dismiss those claims.4
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.5 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.6
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.
4
See id. at 629.
5
See Star Residential, LLC v. Hernandez, Case No. S20C1214, 2020 Ga.
LEXIS 897 (November 2, 2020).
6
See Star Residential, LLC v. Hernandez, 311 Ga. 784, 790 (1) (860 SE2d 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 SE2d 829) (2015).
2