Star Residential, LLC v. Manuel Hernandez

FOURTH DIVISION
DOYLE, P. J.,
COOMER and MARKLE, 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
March 16, 2020
In the Court of Appeals of Georgia
A19A2267. STAR RESIDENTIAL, LLC et al. v. HERNANDEZ.
DOYLE, Presiding Judge.
In this interlocutory appeal, Star Residential, LLC, and Terraces at
Brookhaven, LLC, (the “Defendants”) appeal a trial court order denying their motion
to dismiss certain claims brought against them by Manuel Hernandez seeking
damages for injuries he received in a shooting at his apartment complex. The
Defendants contend that the trial court erred by ruling that (1) Hernandez has alleged
a viable personal injury claim under the Georgia Street Gang Terrorism and
Prevention Act (“GSGTPA”),1 and (2) Hernandez has alleged a viable negligence per
se claim based on city and county nuisance ordinances. For the reasons that follow,
we affirm.
1
OCGA § 16-15-1 et seq.
The relevant factual background is not in dispute. Hernandez’s complaint
alleges that he was a tenant in an apartment complex owned by Terraces at
Brookhaven, LLC, and operated by Star Residential, LLC. In 2017, when Hernandez
approached the doorway to his apartment, he was shot from behind in an unprovoked
attack and robbery involving two shooters and a getaway driver. Hernandez survived
the attack but was paralyzed from the waist down.
Based on his injuries, Hernandez sued the Defendants, alleging claims of
negligent security/premises liability and nuisance, later amending his complaint to
refine the nuisance claim under the GSGTPA and add claims for negligence per se
based on alleged violations of DeKalb County and City of Brookhaven public
nuisance ordinances. The Defendants answered and moved to dismiss the claims
based on the GSGTPA and local nuisance ordinances. Following a hearing, the trial
court denied the motion, and this Court granted the Defendants’ application for
interlocutory review.2
2
The Georgia Defense Lawyers Association filed an amicus curiae brief
reiterating many of the same arguments made by the appellants and making new
arguments hinging on constitutional questions. The GDLA concedes that the
constitutional questions were not raised in the trial court nor distinctly ruled upon by
that court. Therefore, those questions are not properly before us. See Smith v.
Baptiste, 287 Ga. 23, 30 (694 SE2d 83) (2010) (“Because Appellees did not raise this
constitutional issue in the trial court and obtain a distinct ruling on it from that court,
2
1. The Defendants contend that the trial court erred by denying their motion to
dismiss Hernandez’s claim (Count 2) predicated on the GSGTPA. Specifically, the
Defendants argue that the language of the GSGTPA does not apply to the claim
against them in this case because they merely own and operate the property, and
Hernandez does not allege that the Defendants were involved in the shooting. Based
on the breadth of the language of the GSGTPA and its clear instruction that the finder
the issue cannot be considered for the first time in this Court.”). Further, the
constitutional questions raised by the GDLA appear to be issues of first impression.
Thus, even if those questions had been raised and distinctly ruled upon, this Court
lacks jurisdiction to consider them. See City of Decatur v. DeKalb County, 284 Ga.
434, 436-437 (2) (668 SE2d 247) (2008) (“The Court of Appeals has jurisdiction
when the constitutionality of a state law is questioned if the law has been held to be
constitutional against the same attack being made, as such a case requires merely an
application of unquestioned and unambiguous constitutional provisions.”)
(punctuation omitted)).
3
of fact determine whether a claim falls within the Act’s legislative intent,3 we discern
no reversible error.
As a threshold matter, we note that
a motion to dismiss for failure to state a claim upon which relief may be
granted should not be sustained unless (1) the allegations of the
complaint disclose with certainty that the claimant would not be entitled
to relief under any state of provable facts asserted in support thereof;
and (2) the movant establishes that the claimant could not possibly
introduce evidence within the framework of the complaint sufficient to
warrant a grant of the relief sought. If, within the framework of the
complaint, evidence may be introduced which will sustain a grant of the
relief sought by the claimant, the complaint is sufficient and a motion to
dismiss should be denied. In deciding a motion to dismiss, all pleadings
are to be construed most favorably to the party who filed them, and all
doubts regarding such pleadings must be resolved in the filing party’s
3
We note that the record contains one federal and three state trial court orders
where the court either granted motions to dismiss or denied motions to amend similar
GSGTPA claims. Those courts disregarded the statute’s clear mandate that the “finder
of fact determine[] that the action is consistent with the intent of the general
assembly,” and instead substituted their own judgment as to that issue. For example,
the United States District Court for the Northern District concluded as follows: “The
Court’s review of the above statutory language informs that Plaintiff’s proposed claim
against Defendants is not permitted by the statute and that a judgment on such a claim
in Plaintiff’s favor would not be consistent with the General Assembly’s intent.”
Thus, not only are those orders not binding, the reasoning is not persuasive.
4
favor. On appeal, a trial court’s ruling on a motion to dismiss for failure
to state a claim for which relief may be granted is reviewed de novo.4
Our substantive analysis begins with the familiar rules of statutory
construction.
A statute draws its meaning, of course, from its text. Under our
well-established rules of statutory construction, we presume that the
General Assembly meant what it said and said what it meant. To that
end, we must afford the statutory text its “plain and ordinary meaning,”
we must view the statutory text in the context in which it appears, and
we must read the statutory text in its most natural and reasonable way,
as an ordinary speaker of the English language would. Though we may
review the text of the provision in question and its context within the
larger legal framework to discern the intent of the legislature in enacting
it, where the statutory text is clear and unambiguous, we attribute to the
statute its plain meaning, and our search for statutory meaning ends.5
Here, Hernandez’s nuisance count relies on OCGA § 16-15-7, which provides:
(a) Any real property which is erected, established, maintained, owned,
leased, or used by any criminal street gang for the purpose of conducting
4
(Punctuation omitted.) RES-GA McDonough, LLC v. Taylor English Duma
LLP, 302 Ga. 444, 445-446 (807 SE2d 381) (2017).
5
(Punctuation omitted; emphasis in original.) Ga. Lottery Corp. v. Tabletop
Media, LLC, 346 Ga. App. 498, 502 (2) (816 SE2d 438) (2018).
5
criminal gang activity shall constitute a public nuisance and may be
abated as provided by Title 41, relating to nuisances.6
(b) An action to abate a nuisance pursuant to this Code section may be
brought by the district attorney, solicitor-general, prosecuting attorney
of a municipal court or city, or county attorney in any superior, state, or
municipal court.
(c) Any 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; provided, however, that no cause
of action shall arise under this subsection as a result of an otherwise
legitimate commercial transaction between parties to a contract or
agreement for the sale of lawful goods or property or the sale of
securities regulated by Chapter 5 of Title 10 or by the federal Securities
and Exchange Commission. Such person shall also recover attorney’s
fees in the trial and appellate court and costs of investigation and
litigation reasonably incurred. All averments of a cause of action under
this subsection shall be stated with particularity. No judgment shall be
awarded unless the finder of fact determines that the action is consistent
6
See generally OCGA § 41-1-3 (“A public nuisance generally gives no right
of action to any individual. However, if a public nuisance in which the public does
not participate causes special damage to an individual, such special damage shall
give a right of action.”) (emphasis supplied); Hammond v. City of Warner Robins,
224 Ga. App. 684, 689 (482 SE2d 422) (1997) (“Under OCGA § 41-1-3. . . , if an
individual has ‘special damages,’ then the individual has a right of action.”).
6
with the intent of the General Assembly as set forth in Code Section
16-15-2.
(d) The state, any political subdivision thereof, or any person aggrieved
by a criminal street gang or criminal gang activity may bring an action
to enjoin violations of this chapter in the same manner as provided in
Code Section 16-14-6.7
The plain language of subsection (c) is clear that “[a]ny person who is injured
by reason of criminal gang activity shall have a cause of action” for treble damages.
The subsection is also explicit that a judgment on the cause of action is not available
“unless the finder of fact determines that the action is consistent with the intent of the
General Assembly as set forth in Code Section 16-15-2.” That Code section provides:
(a) The General Assembly finds and declares that it is the right of every
person to be secure and protected from fear, intimidation, and physical
harm caused by the activities of violent groups and individuals. It is not
the intent of this chapter to interfere with the exercise of the
constitutionally protected rights of freedom of expression and
association. The General Assembly recognizes the constitutional right
of every citizen to harbor and express beliefs on any lawful subject
whatsoever, to associate lawfully with others who share similar beliefs,
7
(Emphasis supplied.)
7
to petition lawfully constituted authority for a redress of perceived
grievances, and to participate in the electoral process.
(b) The General Assembly, however, further finds that the State of
Georgia is in a state of crisis which has been caused by violent criminal
street gangs whose members threaten, terrorize, and commit a multitude
of crimes against the peaceful citizens of their neighborhoods. These
activities, both individually and collectively, present a clear and present
danger to public order and safety and are not constitutionally protected.
(c) The General Assembly finds that there are criminal street gangs
operating in Georgia and that the number of gang related murders is
increasing. It is the intent of the General Assembly in enacting this
chapter to seek the eradication of criminal activity by criminal street
gangs by focusing upon criminal gang activity and upon the organized
nature of criminal street gangs which together are the chief source of
terror created by criminal street gangs.
(d) The General Assembly further finds that an effective means of
punishing and deterring the criminal activities of criminal street gangs
is through forfeiture of the profits, proceeds, and instrumentalities
acquired, accumulated, or used by criminal street gangs.
8
Thus, OCGA § 16-15-7 provides for a cause of action for treble damages to persons
injured by reason of criminal gang activity if the factfinder determines that the action
is consistent with the above codified legislative intent.8
Notably, the statute is silent as to the nature of the cause of action or the
intended defendant of such an action. The GSGTPA does define “criminal gang
activity” to include “the commission . . . of . . . [a]ny criminal offense in the State of
8
OCGA § 16-15-7 (c) also requires that “[a]ll averments of a cause of action
under this subsection shall be stated with particularity.” We question whether the
complaint pleaded sufficiently particular facts showing that the two shooters and
getaway driver were part of a criminal street gang because the complaint included
only general statements followed by legal conclusions that Hernandez was injured
“by the coordinated violent acts of three (3) individuals and thereby a criminal street
gang,” and there were no specific allegations of a common name, identifying attire,
or other distinguishing characteristics. See OCGA § 16-15-3 (3) (“‘Criminal street
gang’ means any . . . group of three or more persons associated in fact, whether
formal or informal, which engages in criminal gang activity as defined in [OCGA §
16-15-3 (1) (J)]. The existence of such . . . group of individuals associated in fact may
be established by evidence of a common name or common identifying signs, symbols,
tattoos, graffiti, or attire or other distinguishing characteristics, including, but not
limited to, common activities, customs, or behaviors.”) Nevertheless, the trial court
explicitly ruled that the complaint met the particularity standard, and the Defendants
do not challenge this ruling on appeal. See Gresham v. Harris, 349 Ga. App. 134,
138, n.10 (825 SE2d 516) (2019) (“[The appellant] has waived, then, any claim that
the trial court erred in this respect by failing to enumerate it as an error and provide
any supporting argument.”). Even so, to the extent the complaint failed to provide
adequate particularity, the proper remedy would be to treat the motion to dismiss as
a motion for a more definite statement and proceed on that basis. See, e.g., Roberts
v. JP Morgan Chase Bank, Natl. Assn., 342 Ga. App. 73, 78-79 (3) (802 SE2d 880)
(2017).
9
Georgia . . . that involves violence, possession of a weapon, or use of a weapon . . .
,”9 and it appears plain that the violent injury Hernandez alleges he received falls
within this type of conduct.10 The statute is also explicit that it is for the factfinder to
determine whether the action is consistent with the legislative intent expressed in
OCGA § 16-15-2.11 Thus, whether the present action is consistent with the intent set
forth in OCGA § 16-15-2 is not a threshold issue for courts to resolve,12 particularly
at the motion to dismiss stage, and we must give effect to that policy choice.
The facts alleged in Hernandez’s complaint, which we must construe in his
favor at this stage of the litigation, state that: criminal activity and numerous
shootings were the result of gang activity at his apartment complex ; his apartment
complex was used by criminal street gangs for the purpose of conducting gang
activity ; lack of adequate security provided by the Defendants “enabled criminal
street gangs to overtake the property to the point that residents were exposed to living
9
OCGA § 16-15-3 (1) (J).
10
The first amended complaint, in paragraph 32, alleges that Hernandez “was
violently robbed and shot at gunpoint. . . .”
11
See OCGA § 16-15-7 (c).
12
A court sitting as the factfinder in a bench trial could, of course,
appropriately reach this question.
10
in an environment that was equivalent to a ‘war zone’” ; and as a proximate result of
the dangerous conditions maintained by the Defendants at his apartment complex,
Hernandez was injured by criminal street gang activity. We cannot say as a matter of
law that Hernandez “could not possibly introduce evidence within the framework of
the complaint sufficient to warrant a grant of the relief”13 he seeks. Accordingly,
based on the broad definition of criminal gang activity, the role of the factfinder in
determining whether an action is consistent with the intent of the GSGTPA, and the
standard applicable to motions to dismiss, we affirm the trial court’s denial of the
Defendants’ motion to dismiss Hernandez’s claim under the GSGTPA.
2. The Defendants also contend that the trial court erred by denying their
motion to dismiss Hernandez’s negligence per se claims predicated on alleged
violations of DeKalb County and City of Brookhaven nuisance codes, arguing that
no duty to Hernandez is created by the respective nuisance code language. Based on
the language of the ordinances and Hernandez’s complaint, we disagree.
“[N]egligence per se arises when a statute [or ordinance] is violated, the person
injured by the violation is within the class of persons the [ordinance] was intended
to protect, and the harm complained of was the harm the [ordinance] was intended to
13
RES-GA McDonough, LLC, 302 Ga. at 446.
11
guard against.”14 The ordinances at issue here contain mirroring language, as
provided, for example, in the Brookhaven nuisance ordinance:
The governing authority of the [city/county] finds that nuisances are
such activities and conditions that cause a demonstrable adverse impact
on the community. These activities and conditions may be associated
with illegal criminal activity that has also been proven to have a
demonstrable adverse impact on community residences and results in
neighborhood blight. The [city/county] finds that there is a substantial
need directly related to the public health, safety[,] and general welfare
of its citizens to comprehensively address these concerns through the
adoption of the following regulations. The purpose and intent of the
governing authority . . . in enacting the ordinance . . . are as follows:
(1) To state that it is the duty of the owner of every . . . property
. . . to maintain . . . such . . . property in conformance with applicable
codes . . . which regulate and prohibit activities on property and which
declare it to be a public nuisance to . . . maintain any . . . property in
violation of such codes or ordinances; . . .
(5) To protect the health, welfare and safety of the citizens . . . by
the removal of both criminal perpetrators and housing blight on the
community; . . .
14
Goldstein, Garber & Salama, LLC v. J. B., 300 Ga. 840, 845 (2) (797 SE2d
87) (2017).
12
(7) To promote the safety of its citizens. . . .
In its order, the trial court relied on additional language declaring buildings used for
“prostitution, illegal gambling, or in connection with the commission of drug crimes
. . . to be a public nuisance.”15
The Defendants argue that Hernandez has not identified an ordinance
establishing a duty owed to him that they violated. But as pointed out by the trial
court, the ordinances at issue create a duty on the part of owners to maintain property
in conformance with applicable ordinances, and the stated purpose of the ordinances
is to protect the safety of citizens by reducing nuisances associated with criminal
activity. As noted in Division 1 of this opinion, Hernandez alleged that the
Defendants maintained the property in such a way as to create a “war zone” of
violence and criminal activity at the apartment complex. The complaint’s allegations
15
We note that this language does not appear in the appellate record. See
generally Whitfield v. City of Atlanta, 296 Ga. 641 (769 SE2d 76) (2015) (“City and
county ordinances must be alleged and proven in order to be considered by the
superior and appellate courts of this State. The proper method of proving a city
ordinance is production of the original ordinance or a certified copy thereof.”)
(citation omitted). In light of our analysis and the ordinance language in the record,
the failure to include this specific ordinance language is not fatal to Hernandez’s
claim at the motion to dismiss stage.
13
are sufficient to survive a motion to dismiss the claims based on alleged violations
of the DeKalb County and Brookhaven ordinances.
[A] motion to dismiss for failure to state a claim should not be granted
unless the allegations of the complaint disclose with certainty that the
claimant would not be entitled to relief under any state of provable facts
asserted in support thereof. Put another way, if, within the framework of
the complaint, evidence may be introduced which will sustain a grant of
relief to the plaintiff, the complaint is sufficient.16
The ordinances at issue expressly contemplate that residents such as Hernandez could
be exposed to the criminal activity that the ordinances are designed to reduce. And
Hernandez’s complaint alleges that his injury was due to an environment allegedly
maintained by the Defendants in violation of the local ordinances at issue.
Accordingly, based on the record before us, the trial court did not err by denying the
Defendants’ motion to dismiss Hernandez’s negligence per se claims.
Judgment affirmed. Coomer, J., concurs; Markle, J., concurs fully and
specially.
16
(Citations and punctuation omitted.) Babalola v. HSBC Bank, USA, N.A., 324
Ga. App. 750, 752 (2) (751 SE2d 545) (2013).
14
A19A2267. STAR RESIDENTIAL, LLC et al. v. HERNANDEZ
MARKLE, Judge, concurring fully and specially.
I fully concur in the majority’s conclusion that the trial court properly denied
the motion to dismiss the negligence per se and nuisance claims. I write separately to
emphasize the unusual – and possibly undesirable – procedural posture this result
creates.
In interpreting the statute at issue, we are mindful of the
applicable principles of statutory construction and look diligently for the
intention of the General Assembly. In so doing, the ordinary
signification shall be applied to all words. Where the language of a
statute is plain and susceptible to only one natural and reasonable
construction, courts must construe the statute accordingly.
(Citation and punctuation omitted.) State v. Rich, 348 Ga. App. 467, 471 (823 SE2d
563) (2019).
Under OCGA § 16-15-7 (c), “any person who is injured by reason of criminal
gang activity shall have a cause of action . . . [and] [n]o judgment shall be awarded
unless the finder of fact determines that the action is consistent with” the legislative
intent as set forth in the statute. See also OCGA § 16-15-2. This language is plain and
unambiguous.
Although the statute is silent as to who is the proper defendant, the plain
language makes it clear that the factfinder is to decide whether the action comports
with the legislative intent. I am concerned, however, that this reading causes the
unintended consequence of allowing the jury to engage in statutory interpretation and
determine whether the landlord or property owner is a proper defendant even if there
was no evidence the landlord or property owner participated in the gang activity.1
1
Because we are considering the denial of a motion to dismiss, we must take
the allegations in the complaint as true and resolve any doubts in the plaintiff’s favor.
Austin v. Clark, 294 Ga. 773, 774-775 (755 SE2d 796) (2014). Here, Hernandez
alleged that the real property was “used by one or more criminal street gangs for the
purpose of conducting criminal gang activity,” that “[t]he lack of adequate security
at the [complex] enabled criminal street gangs to overtake the property,” and “that by
turning a blind eye towards criminal activity for the sake of their own profits,
Defendants gave criminal street gangs the run of the [complex].” (Punctuation
omitted.). I question whether these allegations are even sufficient to satisfy the
legislative intent of “punishing and deterring” the street gang’s activities by
“forfeiture of the profits, proceeds, and instrumentalities acquired, accumulated, or
used by criminal street gangs.” OCGA § 16-15-2 (d). But at this stage of the
proceedings, we must resolve this doubt in Hernandez’s favor.
2
Moreover, by placing this decision in the hands of the factfinder, this interpretation
will essentially eviscerate the summary judgment statute, OCGA § 9-11-56.
But this is clearly what the statute says, and, to the extent it leads to an absurd
result, the remedy is with the legislature. If the General Assembly “enacted into law
something different from what it intended, then it should amend the statute to
conform to its intent.” (Citations omitted.) Georgia Lottery Corp. v. Tabletop Media,
LLC, 346 Ga. App. 498, 506 (816 SE2d 438) (Dillard, J. concurring).
I am authorized to state that Presiding Judge Doyle joins this special
concurrence.
3