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Denials of Petitions for Certiorari

October 22, 2012

The Supreme Court has added a new feature to its website enabling the review of denials of petitions for certiorari. The Court has denied approximately 48 civil petitions since October 1. Below are selected cases from that group. We plan to update denials of petitions for certiorari on cases of significance and welcome input from the bar about additional cases that may be of interest to practitioners.


This is a personal injury case that resulted in a default judgment. Dinku was an employee of LAZ Parking, which contracted with PHF to park cars at the Sheraton Buckhead hotel. On Christmas Day 2007, Dinku was walking along the skywalk when a hotel guest’s two large dogs began running towards him. Dinku jumped onto the ledge to try to escape but then fell 30 feet to the ground and suffered severe and permanent injuries. Dinku sued PHF and the hotel guest in 2008, and PHF never answered despite being served with a copy of the complaint. Dinku moved for entry of a default judgment, which the trial court granted. After a hearing on damages, the trial court entered a final order and judgment of more than $3 million. PHF appeared several weeks later, moving to set aside the default and open the default. PHF also filed a motion for new trial. The trial court denied all the motions several years later and PHF appealed.

On March 22, 2012, the Court of Appeals (Dillard, Mikell, Boggs) affirmed in part and reversed in part, finding that the trial court properly denied the motion to set aside the default judgment and to open the default. The Court of Appeals was prohibited from revisiting those issues because they had already been decided, but did not find PHF’s contention that it was Dinku’s statutory employer persuasive. But the Court of Appeals reversed the denial of the motion for new trial because no hearing was held and remanded the case for further proceedings.

On October 1, 2012, the Supreme Court unanimously denied the petition for certiorari.


This case involves adverse possession of airspace above a property. Garibaldi’s and Congress Street own adjoining properties in Savannah. In 1980, Garibaldi’s began operating its property as Garibaldi’s Cafe and also began use of a ventilation system outside the wall of its building that encroached on the airspace of the adjoining property. Congress Street purchased the property in 2002. In 2009, Congress Street demanded that Garibaldi’s remove the ventilation system. Garibaldi’s then filed suit, seeking a declaratory judgment that it adversely possessed the space occupied by the ventilation system for more than 29 years. The trial court found Garibaldi’s established the elements of adverse possession in OCGA 44-5-161(a) and granted summary judgment to it. Congress Street appealed.

On February 16, 2012, the Court of Appeals (Dillard, Mikell, Boggs) affirmed the trial court’s grant of summary judgment to Garibaldi’s, because Garibaldi’s was not required to prove that the use of the airspace lacked permission of the previous landowners as part of its case. Garibaldi’s burden was satisfied when it established the elements of OCGA 44-5-161(a) by preponderance of the evidence, and then the burden shifted to Congress Street to rebut the presumption of adverse possession.

On October 15, 2012, the Supreme Court unanimously denied the petition for certiorari.

S12C1364. VANCE et al. v. BENEFIELD

This case involves the liability of a homeowner for a band member that was injured after falling on steps at the house. Vance is the bassist for the Honky Tonk Rangers (audio available at link) and played a house party in 2008. When the band first arrived, Vance noticed and discussed with others that the steps leading from the patio to the pool area looked unsafe and slippery. But while packing up his equipment, Vance noticed one of the homeowners’ employees and Vance’s niece engaging in an altercation by the pool. When the employee drew back his arm, apparently about to strike Vance’s niece, Vance yelled and proceeded down the steps. In the process, he lost his footing and injured himself. Vance then sued the homeowner for his injury. The homeowner moved for summary judgment, claiming that the undisputed facts showed that Vance had equal or superior knowledge of the condition. Vance argued that his prior knowledge did not preclude recovery because of the distraction of the fight. The trial court agreed with Vance and denied summary judgment.

On March 21, 2012, the Court of Appeals (Doyle and Miller; Ellington concurring in judgment only) reversed the trial court’s decision and granted summary judgment to the homeowner. The Court of Appeals found that Robinson v. Kroger Co., 268 Ga. 735 (1997), overruled the prior line of cases, and that once a plaintiff has knowledge of an alleged hazard, a distraction cannot remove the knowledge component. Because Vance knew of the danger, the distraction did not remove his equal knowledge of the steps and required summary judgment be granted to the homeowner.

On October 15, 2012, the Supreme Court denied the petition for certiorari in a 4-3 vote (Hunstein, Nahmias, Blackwell dissenting).


This case addresses whether a nonparty may recover attorney fees and litigation expenses under OCGA 9-15-14, overruling Slone v. Myers, 288 Ga. App. 8 (2007), which previously held such an award was appropriate. During a medical malpractice case, plaintiffs’ counsel served a subpoena for the production of documents on Upson Regional Medical Center. Upson Regional moved to quash the subpoena and plaintiffs’ counsel moved to compel production. But before the Court could rule on the motions, Upson Regional agreed to produce some documents and the subpoena was withdrawn. Upson Regional then moved to recover attorney fees and expenses under OCGA 9-15-14 and the trial court awarded more than $23,000. Reeves appealed the award.

On March 21, 2012, the en banc Court of Appeals (Blackwell, writing for the unanimous court) reversed, finding that the entire text of OCGA 9-15-14 only permits an award of fees and expenses to “any party” as opposed to nonparties.

On October 15, 2012, the Supreme Court unanimously denied the petition for certiorari (Blackwell not participating).


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