CopyCited 15 times | Published | Supreme Court of Georgia | Jun 16, 2020 | 309 Ga. 66
...STATE OF GEORGIA.
WARREN, Justice.
This case stems from an October 2016 incident at the Atlanta
airport during which law enforcement officers seized $46,820 in cash
from Shara Cumins, James Crowder’s daughter. In the ensuing in
rem forfeiture proceeding under OCGA §
9-16-12, the trial court
awarded Crowder the property....
...ate?
Must a trial court rule on a pending motion for more
definite statement before striking a claimant’s answer as
insufficient?
As to the first question, we conclude that the Court of Appeals
properly interpreted OCGA §
9-16-12 (b) (3) as permitting service by
publication in an in rem forfeiture proceeding if the owner of the
subject property resides outside of Georgia, and properly rejected
Crowder’s claims that personal service was required and that the
S...
...Nevertheless, and as explained more below,
the Court of Appeals must remand the case to the trial court for it
to address Crowder’s claim that the State’s service by publication
did not satisfy due process. As for the second question, we conclude
that OCGA §
9-16-12 (c) (2) requires a trial court to first rule on a
motion for a more definite statement before dismissing a claimant’s
answer....
...App. at 850-853. After law enforcement
officers seized $46,820 in cash from Cumins, the State filed an in
rem complaint for forfeiture against the property in December 2016
and named Cumins as a potential owner of the property. See OCGA
§
9-16-12 (a); §
9-16-12 (b) (1)....
...In February
2017, the State amended its forfeiture complaint, naming Crowder,
who was a resident of Alabama, as a potential owner. The State
attempted to personally serve Crowder but was unsuccessful.
Thereafter, in April 2017, the State obtained an order for service by
publication under OCGA §
9-16-12 (b) (3), which provides that, if an
“owner or interest holder is unknown or resides out of this state . . .
a copy of the notice of the complaint for forfeiture shall be published
once a week for two consecutive weeks in the legal organ of the
county in which the complaint for forfeiture is pending.”1 Under
1 OCGA §
9-16-12 (b) (3) provides in full:
If real property is the subject of the complaint for forfeiture
or the owner or interest holder is unknown or resides out of this
state or departs this state or cannot after due diligence be...
...int for forfeiture shall be
published once a week for two consecutive weeks in the legal organ
of the county in which the complaint for forfeiture is pending. Such
publication shall be deemed notice to any and all persons having
OCGA §
9-16-12 (c) (1), Crowder had 30 days from the “date of final
publication” on April 26, 2017, to file an answer, but he did not file
one until December 29, 2017.
Meanwhile, on December 6, 2017, in a pleading styled a
“motion for judgment on the pleadings,” the State contended that
Crowder had failed to answer the complaint within 30 days of the
date of final service by publication and that it was therefore entitled
to default judgment under OCGA §
9-16-12 (e) and OCGA § 9-11-55.2
On December 29, Crowder filed an unverified answer, admitting
that he was the owner of the property but contending that he had
not been properly served with the State’s forfeiture complaint....
...constitute notice to an interest holder unless that person is
unknown or resides out of this state or departs this state or cannot
after due diligence be found within this state or conceals himself
or herself to avoid service.
2 OCGA §
9-16-12 (e) provides that “[i]f at the expiration of the period set
forth in subsection (c) of this Code section no answer has been filed, the state
attorney may seek a default judgment as provided in Code Section
9-11-55[.]”
statement under OCGA §
9-16-12 (c) (2), contending that Crowder’s
answer failed to meet the requirements of OCGA §
9-16-12 (c) (1).3
In its motion for a more definite statement, the State did not move
to dismiss Crowder’s answer for failure to comply with the
requirements of paragraph (c) (1).
On January 9, 2018, Crowder moved to dismiss the State’s
complaint on the ground that the State had not personally served
him, as he claimed was required by OCGA §
9-16-12 (b) (2), and that,
even if service by publication were permitted, it did not comport with
due process principles under the circumstances of this case.
At a hearing in January 2018, Crowder testified that the cash
that had been seized belonged to him; that he received it in lump
3 Paragraph (c) (1) of OCGA §
9-16-12 provides that “[a]n answer shall
be verified by the owner or interest holder under penalty of perjury” and that
it shall set forth the claimant’s name and address; a “description of the
claimant’s interest in the property”; a...
...claimant”; the
“nature of the relationship between the claimant and the person who possessed
the property at the time of the seizure”; and a “copy of any documentation in
the claimant’s possession supporting his or her answer.” See OCGA §
9-16-12
(c) (1) (A-F).
sums from social security disability and from a settlement from an
accident; and that he kept it in his trailer next to his home until he
gave it to Cumins to use to buy a home in California....
...The Court of Appeals
rejected Crowder’s claim that the trial court should have granted his
motion to dismiss the State’s complaint based on insufficient service
of process. Crowder,
348 Ga. App. at 856-857. It held that the plain
terms of OCGA §
9-16-12 (b) (3) permitted service by publication “if
the owner of the subject property ‘resides out of this state,’” and that
“the State’s ability to serve a claimant who resides out of state via
publication is not contingent upon whether it first exercised due
diligence to serve such a claimant personally.” Id. at 857.
It also held that “Crowder’s answer failed to comply with the
special pleading requirements of OCGA §
9-16-12 (c) (1)” and that,
“accordingly, the trial court erred in denying the State’s motion for
judgment on the pleadings or, alternatively, in failing to dismiss
Crowder’s answer.” Crowder, 348 Ga....
...Under this
ruling, the State would be entitled to a judgment in its favor upon
the return of the case to the trial court. We granted certiorari,
asking the parties to address the two questions outlined above.
2. We first address whether OCGA §
9-16-12 (b) (3) permits
service by publication in the first instance on “owner[s] or interest
holder[s]” who reside out of state, and conclude that it does.
OCGA §
9-16-12 (b) (1) provides that “[a] copy of the complaint
and summons shall be served on any person known to be an owner
or interest holder and any person who is in possession of the
property.” Paragraph (b) (2) of OCGA §
9-16-12 then provides that
“[i]ssuance of the summons, form of the summons, and service of the
complaint and summons shall be as provided in subsections (a), (b),
(c), and (e) of Code Section
9-11-4.”4 Finally, OCGA §
9-16-12 (b) (3)
provides:
If real property is the subject of the complaint for
forfeiture or the owner or interest holder is unknown or
resides out of this state or departs this state or cannot
after due diligence b...
...Deposit Ins.
4 Of particular importance here is that subsection (e) of OCGA §
9-11-4
sets forth rules regarding personal service. We note that the State could have
utilized the methods of service set forth in OCGA §
9-11-4, but did not do so,
relying instead on the service provisions of OCGA §
9-16-12....
...whole statute, and the other law — constitutional, statutory, and
common law alike — that forms the legal background of the
statutory provision in question.” Id. (citation and punctuation
omitted).
(a) In determining the meaning of OCGA §
9-16-12 (b) (3), the
Court of Appeals examined only the text of paragraph (b) (3) itself
to conclude that the text of OCGA §
9-16-12 (b) (3) “plainly shows
that it allows for service by publication if the owner of the subject
property ‘resides out of this state.’” Crowder,
348 Ga. App. at 857.
We agree that the plain language of OCGA §
9-16-12 (b) (3) allows
for service by publication where, as here, the owner of property
subject to an in rem forfeiture proceeding “resides out of this state.”
Crowder argues, however, that an examination of the statutory
context requires a different interpretation. Under his reading,
OCGA §
9-16-12 (b) (3) must be considered alongside OCGA § 9-16-
12 (b) (2). Specifically, he argues that because paragraph (b) (3) says
only that “notice of the complaint” shall be published and does not
say that “service may be made by publication” — whereas OCGA §
9-16-12 (b) (2) explicitly says that “service of the complaint and
summons shall be as provided” by the personal service provision of
the Civil Practice Act, OCGA §
9-11-4 (e) — personal service is
required in all in rem forfeiture proceedings under OCGA §
9-11-4
(e). (Emphasis supplied.) Relatedly, he argues that because OCGA
§
9-16-12 (b) (3) is merely a notice provision — not a service provision
— the State must also provide notice by publication in all in rem
forfeiture cases.
Crowder is correct that OCGA §
9-16-12 (b) (3) does not use the
phrase “service by publication” or some variation thereof. However,
viewing the text and structure of the statute as a whole, Loudermilk,
305 Ga. at 562, we conclude that OCGA §
9-16-12 (b) (3) is a “service
by publication” provision.
To begin, OCGA §
9-16-12 (b) (1) indicates that subsection (b)
governs service for in rem forfeiture proceedings, providing that “[a]
copy of the complaint and summons shall be served on any person
known to be an owner or interest holder[.]” (Emphasis supplied.) In
that vein, OCGA §
9-16-12 (b) (2) generally requires personal service
for forfeitures involving owners or interest holders. Paragraph (b)
(3) of OCGA §
9-16-12 then provides an exception to OCGA § 9-16-
12 (b) (2), saying that, if an “owner or interest holder is unknown or
resides out of this state,” “a copy of the notice of the complaint for
forfeiture shall be published once a week for two consecutive weeks
in the legal organ of the county in which the complaint for forfeiture
is pending.” OCGA §
9-16-12 (c) (1) also provides important context
for interpreting paragraph (b) (3). To that end, paragraph (c) (1)
specifies that the time for filing an answer, “[i]f service is made by
publication,” is “within 30 days of the date of final publication.”
OCGA §
9-16-12 (c) (1) (emphasis supplied). The only two provisions
of the in rem forfeiture statute that mention publication are OCGA
§
9-16-12 (c) (1) and §
9-16-12 (b) (3). Read together, those
paragraphs make clear that OCGA §
9-16-12 (b) (3) addresses
service by publication, just as OCGA §
9-16-12 (b) (2) addresses
personal service.5
Indeed, the structure of OCGA §
9-16-12 shows that
paragraphs (b) (2) and (b) (3) set forth alternative methods of service
5 The Black’s Law Dictionary definition of “service,” as well as our case
law, also support our conclusion that notice by publication can also constitute
service under the statute....
...First, by beginning with the word
“[i]f,” the text of paragraph (b) (3) indicates that the type of service
set forth in that paragraph creates an exception to the personal
service requirement set forth in paragraph (b) (2). Second, under
OCGA §
9-16-12 (c) (1), an owner or interest holder who has been
served personally under paragraph (b) (2) has “30 days after the
service” to file an answer, whereas an owner or interest holder who
has been served by publication under paragraph (b) (3) and not
personally served has a different timeline for answering: “within 30
days of the date of final publication.” OCGA §
9-16-12 (c) (1)....
...case involving every “owner or interest holder,” irrespective of
whether they reside inside or outside of Georgia, then OCGA § 9-16-
12 would only need to provide a uniform, 30-day deadline from the
date of service in which to file an answer, and the third sentence of
OCGA §
9-16-12 (c) (1) would be meaningless.6 But we have
6 The portion of OCGA §
9-16-12 (c) (1) that addresses the time to file an
answer when “service is made by publication and personal service has not been
emphasized in our precedents that “we do not read a statute in a
way that ‘renders any part of the statute meaningless.’” Deal v.
Coleman,
294 Ga. 170, 174 n.10 (751 SE2d 337) (2013) (citation
omitted). Accordingly, we reject Crowder’s argument that OCGA §
9-16-12 requires the State to provide personal service and service by
publication in all in rem forfeiture proceedings.
(b) Crowder also points to OCGA §
9-16-13, Georgia’s in
personam forfeiture statute, to argue that OCGA §
9-16-12,
Georgia’s in rem forfeiture statute, requires both personal service
and service by publication. We again disagree.
made” appears to contemplate situations where there will be both service by
publication and personal service. That is the result of the nature of in rem
proceedings against real property. OCGA §
9-16-12 (a) requires that “the
property which is the subject of the complaint for forfeiture . . . be named as
the defendant[,]” and OCGA §
9-16-12 (b) (3) provides that “[i]f real property is
the subject of the complaint for forfeiture, . . . a copy of the notice of the
complaint for forfeiture shall be published . . . .” Where an owner or interest
holder of that real property resides in Georgia, OCGA §
9-16-12 (b) (2) requires
that the owner or interest holder be personally served....
...Accordingly, in those
situations, there will be service by publication and personal service on the
owner or interest holder. By providing for the time to file an answer “[i]f
service is made by publication and personal service has not been made,” OCGA
§
9-16-12 (c) (1) exempts an owner of real property who resides in Georgia and
was personally served from the extra time to file an answer afforded to persons
who were served only by publication.
OCGA §
9-16-13 (b) (1) and (2) provide that f...
...rement contained in
paragraph (b) (1), thus explicitly allowing service by publication
under the circumstances set forth in paragraph (b) (2). He further
argues that, by extension, because there is no “except” clause at the
beginning of OCGA §
9-16-12 (b) (2), the General Assembly must
7 For purposes of Crowder’s argument, we will assume that the reference
in OCGA §
9-16-13 (b) (1) to OCGA §
9-11-4 (d), which addresses waiver of
service, is a typographical or clerical err...
...Whatever the appropriate interplay is between the “except” clause
of OCGA §
9-16-13 (b) and the use of “and” between paragraphs (b)
(1) and (b) (2) of that Code section, we conclude that OCGA § 9-16-
13 (b) is sufficiently textually and structurally distinct from OCGA
§
9-16-12 (b) that it does not provide context that alters our reading
of OCGA §
9-16-12 (b) that service by publication is permissible in
in rem forfeiture proceedings if the “owner or interest holder . . .
resides out of this state.”
(c) Finally, Crowder argues that OCGA §
9-16-11 requires
OCGA §
9-16-12 (b) to be read to require personal service in all in
rem forfeiture cases. But OCGA §
9-16-11 only governs forfeitures
“[i]f the estimated value of personal property seized is $25,000.00 or
less,” OCGA §
9-16-11 (a), whereas the forfeiture proceeding must
begin by the filing of a complaint under OCGA §
9-16-12 in any in
rem proceeding in which the estimated value of the property exceeds
$25,000. We thus conclude that the service provisions of §
9-16-11
do not control the meaning of the service provisions of in rem
forfeiture proceedings under OCGA §
9-16-12 where, as here, the
property involved has a value greater than $25,000 and must
proceed by a complaint in superior court under OCGA §
9-16-12. See
OCGA §
9-16-2 (2) (a “‘[c]ivil forfeiture proceeding’ means a quasi-
judicial forfeiture initiated pursuant to Code Section
9-16-11 or a
complaint for forfeiture initiated pursuant to Code Section
9-16-12
or
9-16-13”).
(d) For the foregoing reasons, we conclude that the Court of
Appeals was correct to conclude that OCGA §
9-16-12 (b) (3) permits
the State to serve owners and interest holders in the first instance
by publication. This conclusion does not, however, end our inquiry.
That is because the plain-language interpretation of OCGA
§
9-16-12 (b) (3) set forth above may well implicate constitutional
concerns regarding due process.8 To that end, we note that “the Due
Process Clause requires every method of service to provide ‘notice
reasonably calculated, under all the ci...
...l v. State,
306
Ga. 15, 20 (829 SE2d 99) (2019) (quoting Clark v. Martinez, 543 U. S. 371, 381
(125 SCt 716, 160 LE2d 734) (2005)) (punctuation omitted). But we cannot
rely on that canon to avoid the potential constitutional issue implicated by
OCGA §
9-16-12 (b) (3), because we can identify only one plausible
interpretation of that statute.
Trust Co., 339 U.S....
...461, 462-463 (769 SE2d 511) (2015)
(quoting Abba Gana v. Abba Gana,
251 Ga. 340, 343 (304 SE2d 909)
(1983)).
In the trial court proceedings in this case, Crowder — citing
cases such as Abba Gana — claimed that the State’s service by
publication under OCGA §
9-16-12 (b) (3) did not comport with due
process principles.9 Because the trial court ruled that OCGA § 9-16-
12 required personal service on Crowder, however, it did not address
9 Crowder did not, however, expressly challenge the constitutionality of
OCGA §
9-16-12 (b) (3).
Crowder’s due process claim. Crowder nonetheless raised the same
due process concerns in his appeal to the Court of Appeals. As a
result, when the Court of Appeals reversed the trial court and
concluded that service by publication was permitted under OCGA
§
9-16-12 (b) (3), it should have remanded the case to the trial court
for it to consider Crowder’s due process claim....
...court to consider Crowder’s due process arguments in the first
instance.10
3. We now turn to the second question presented: whether a
trial court must rule on a pending motion for more definite
statement before striking a claimant’s answer as insufficient. See
OCGA §
9-16-12 (c) (2). We answer that question “yes.”
OCGA §
9-16-12 (c) (2) provides that if the State’s attorney
10 The State argues that any failure of notice was cured because Crowder
had actual notice of the proceeding before the final hearing....
...However, we have
held that a “defect in service [i]s not cured by the fact that defendants had
actual knowledge that the [proceeding] had been filed against them.” Rehman
v. Belisle,
294 Ga. 71, 71 (751 SE2d 97) (2013).
determines that an answer fails to comply with the requirements of
OCGA §
9-16-12 (c) (1), “he or she may file a motion for a more
definite statement.” “....
...If the motion is granted and the order of
the court is not obeyed within 15 days after notice of the order, or
within such other time as the court may fix, the court may strike the
pleading to which the motion was directed or make such order as it
deems just. . . .” OCGA §
9-16-12 (c) (2).
The State concedes that this statutory text, read “in its most
natural and reasonable way,” Loudermilk, 305 Ga....
...r notice of the
order, or within such other time as the court may fix.” OCGA § 9-
16-12 (c) (2). The Court of Appeals thus erred by concluding that,
because “Crowder’s answer failed to comply with the special
pleading requirements of OCGA §
9-16-12 (c) (1),” “the trial court
erred in denying the State’s motion for judgment on the pleadings
or, alternatively, in failing to dismiss Crowder’s answer.” Crowder,
348 Ga....
...at 855 (citation and punctuation omitted).
Despite conceding this error, the State contends that we may
nonetheless affirm the Court of Appeals’s ultimate decision in favor
of the State because the State was entitled to a default judgment
under OCGA §
9-16-12 (e) based on Crowder’s failure to file a timely
answer. In this regard, the record shows that the State moved for a
default judgment against Crowder under OCGA §
9-16-12 (e) on the
ground that he had failed to timely answer the complaint....
CopyCited 2 times | Published | Supreme Court of Georgia | May 29, 2024
...plaint, claiming to be
the owners of the seized property, and moved to dismiss the
complaint. In their motion to dismiss, Appellants argued that the
trial court had failed to timely hold a bench trial or order a
continuance, in violation of OCGA §
9-16-12 (f), which provides that,
“[i]f an answer is filed, a bench trial shall be held within 60 days
after the last claimant was served with the complaint; provided,
however, that such trial may be continued by the court for good
cause sho...
...to dismiss, and the Court of Appeals affirmed. See Smith v. State of
Ga.,
366 Ga. App. 815 (884 SE2d 403) (2023).
We then granted certiorari to address three questions.1 First,
we asked whether the Court of Appeals erred in holding that OCGA
§
9-16-12 (f)’s 60-day time period for holding a bench trial or
continuing the trial for good cause in an in rem civil-asset-forfeiture
case began to run when the last claimant, who was never served,
filed an answer without raising the defense...
...The case was docketed to
this Court’s term beginning in December 2023 and was orally argued on
January 9, 2024.
1
intent element of theft by taking could be inferred from the
allegations of the second amended complaint, and thus that the
second amended complaint satisfied OCGA §
9-16-12 (a)’s
requirement that the complaint allege the essential elements of the
offense....
...nswer
was not equivalent to the date it was served with the complaint. On
that basis, we affirm the trial court’s denial of Appellants’ motion to
dismiss the complaint for failure to timely hold a bench trial or
continue the trial under OCGA §
9-16-12 (f)....
...2
As further explained below, we hold that the trial court and the
Court of Appeals erred in holding that the second amended
complaint adequately alleged the essential elements of theft by
taking, as required by OCGA §
9-16-12 (a)....
...On February 28, 2022, Appellants filed a motion seeking
dismissal of the second amended complaint or judgment on the
pleadings. As relevant here, Appellants argued that the trial court
had failed to timely hold a bench trial or order a continuance, as
required by OCGA §
9-16-12 (f), and that the State had failed to
allege the essential elements of a crime, as required by OCGA § 9-
16-12 (a).
6
Following a hearing, the trial court denied Appellant’s motion
on March 7, 2022. The trial court rejected Appellant’s timeliness
argument under OCGA §
9-16-12 (f) for two reasons....
...run until SmithCo Transfer filed its answer on January 21, 2022.
The trial court also rejected Appellants’ argument that the
second amended complaint failed to allege the essential elements of
a criminal violation supporting civil forfeiture, as required by OCGA
§
9-16-12 (a)....
...t by receiving
stolen property.”
On appeal, the Court of Appeals affirmed these rulings. See
Smith,
366 Ga. App. at 817-820 (2)-(3). The Court of Appeals rejected
Appellants’ argument that the case should have been dismissed
under OCGA §
9-16-12 (f), concluding that the 60-day time period
did not run from the date that Garrett Smith, Stacey Smith, and
SmithCo Recycling were served with the original complaint, as
Appellants argued, but rather from the date that SmithCo Transfer
filed an answer without having been served....
...nt service, the time SmithCo
Transfer’s answer was filed is the equivalent of the time the last
claimant was served.” Id.
The Court of Appeals also rejected Appellants’ contention that
the second amended complaint did not satisfy OCGA §
9-16-12 (a)’s
pleading requirement that an in rem civil-asset-forfeiture complaint
8
allege the essential elements of a criminal violation....
...ons of the complaint.” Id. at
9
817-818 (2). We granted certiorari to address these rulings.
2. The first certiorari question concerns the determinations of
the trial court and Court of Appeals that OCGA §
9-16-12 (f) did not
require dismissal of the second amended complaint. As noted above,
OCGA §
9-16-12 (f) provides that “[i]f an answer is filed, a bench
trial shall be held within 60 days after the last claimant was served
with the complaint,” unless the trial is “continued by the court for
good cause shown.” Here, the dispute...
...for good cause on February 10, 2022. Thus, assuming without
deciding that the trial court erred in concluding that the formerly
assigned trial-court judge had granted a continuance during the e-
10
mail exchange on January 24 and 25, 2022, OCGA §
9-16-12 (f)
would mandate dismissal of the second amended complaint if the 60-
day period ran from the date that the Smiths and SmithCo Recycling
were served but not if the 60-day period ran from the date that
SmithCo Transfer filed an answer....
...e-mails, the parties and the court discussed the possibility of
alternative trial dates on February 9 or 10, 2022. And the State
neither moved for a continuance nor served SmithCo Transfer.
From this email exchange, it is clear that the parties and the
court understood OCGA §
9-16-12 (f) to require the court to hold a
bench trial or grant a continuance for good cause by early February
2022 based on the service date of the Smiths and SmithCo Recycling,
and that the State intended to move for a continuance in order to
serve SmithCo Transfer....
...But Appellants
then “deliberately chang[ed] [their] position[ ],” Ward-Poag,
310 Ga.
at 292 (2) (b) (citation and punctuation omitted), when challenging
the trial court’s conclusion that, because SmithCo Transfer’s answer
was “in effect a substitute for service,” OCGA §
9-16-12 (f)’s 60-day
time period to hold a bench trial “began to run ....
...ts stated
intention to move for a continuance to serve SmithCo Transfer, and
thus, the trial court was never called upon to decide whether a
continuance was necessary to effect actual service on SmithCo
Transfer. Second, the trial court’s OCGA §
9-16-12 (f) analysis did
not expressly rely on Appellants’ representation that SmithCo
17
Transfer’s answer date was equivalent to its service date, although
the trial court quoted the relevant language from the e-mail
exchange in the section of its order addressing OCGA §
9-16-12 (f)
and reached a conclusion consistent with that representation.
By contrast, the third factor — “whether the party seeking to
assert an inconsistent position would derive an unfair advantage or
impose an unfair detriment on the opposing party if not estopped,”
Ward-Poag,
310 Ga. at 293-294 (2) (b) (citation and punctuation
omitted) — is clearly present here. Appellants argue on appeal that
OCGA §
9-16-12 (f)’s 60-day time period to hold a bench trial or
obtain a continuance must have run from the date that the Smiths
and SmithCo Recycling were served because they were “the only
parties served,” and that the deadline expired on Feb...
...d motion for a
continuance. But then Appellants opportunistically took the
opposite position when challenging the trial court’s denial of its
motion to dismiss the case for failure to timely hold a bench trial or
grant a continuance under OCGA §
9-16-12 (f)....
...Appellants are estopped from arguing that the trial court or Court
of Appeals erred in equating the date that SmithCo Transfer
answered the complaint with the date that SmithCo Transfer was
served. And as a result, Appellants cannot challenge the conclusion
that OCGA §
9-16-12 (f)’s 60-day time period to hold a bench trial or
obtain a continuance, which runs from the date of service on the last
claimant, ran from the date that SmithCo Transfer answered the
complaint. In light of our conclusion, we vacate Division 3 of the
Court of Appeals’ decision without expressing any opinion on
whether the Court of Appeals correctly interpreted OCGA §
9-16-12
(f) in equating, as a matter of law, the date that “the last claimant
was served” with the date that the last claimant filed an answer
without raising a defense of insufficient service....
...In the second certiorari question, we asked if the Court of
Appeals erred in holding that, because the intent element of theft by
taking could be inferred from the allegations of the second amended
complaint, the second amended complaint satisfied OCGA §
9-16-12
(a)’s requirement that the complaint allege the essential elements of
the offense....
...As explained below, we conclude that the Court of
Appeals erred in concluding that the State adequately alleged theft
by taking because the standard for assessing whether an in rem civil
forfeiture complaint adequately alleges the essential elements of a
criminal violation under OCGA §
9-16-12 (a) is the same as the
standard for assessing whether criminal charges in an indictment
can survive a general demurrer, and the State’s allegations
regarding theft by taking fall short of that standard.
(a) The Uniform Civil Forfeiture Procedure Act sets out the
pleading requirements for an in rem civil-asset-forfeiture complaint
in OCGA §
9-16-12 (a). As relevant here, that provision states that
an in rem civil-asset-forfeiture “complaint shall . . . allege the
essential elements of the criminal violation which is claimed to
21
exist.” OCGA §
9-16-12 (a).
To determine whether the Court of Appeals correctly
interpreted and applied this provision, we must “examine the
statute’s plain language” and read that text “in its most natural and
reasonable way, as an ordinary speaker of the English language
would.” Ford Motor Co....
...structure and history of the whole statute, and the other law —
constitutional, statutory, and common law alike — that forms the
legal background of the statutory provision in question.” Id. (citation
and punctuation omitted).
We begin our construction of OCGA §
9-16-12 (a) by noting that
the provision, which was enacted in 2015, see Ga....
...The only
difference between this language and the language of OCGA § 9-16-
12 (a) is that the latter provision specifies that it is the essential
elements of a “criminal” violation that the State must allege. And
the inclusion of the word “criminal” suggests that, while a forfeiture
complaint under OCGA §
9-16-12 (a) is civil in nature, criminal law
continues to provide relevant context for interpreting the meaning
of the provision.
In the criminal context, alleging the essential elements of a
criminal offense has long been understood as a...
...indictment on which a defendant is convicted contain all the
essential elements of the crime.”).
The standard for assessing whether the State has adequately
alleged the essential elements of a criminal offense was well
understood when the General Assembly enacted OCGA §
9-16-12 (a)
in 2015, as it is today....
...s that the General
Assembly adopted the standard for assessing the sufficiency of an
indictment to withstand a general demurrer as the standard for
assessing the sufficiency of an in rem civil-asset-forfeiture
complaint. As explained above, OCGA §
9-16-12 (a)’s requirement
that the State “allege the essential elements of the criminal violation
which is claimed to exist” not only mirrored a provision formerly in
the Criminal Code but also invoked language that the law
recognized as...
...243, 245 (2) (a) (444 SE2d 76) (1994). Here, the
legislature has provided special pleading standards for in rem civil-
asset-forfeiture proceedings, requiring the State to “allege the
essential elements of the criminal violation which is claimed to
exist.” OCGA §
9-16-12 (a). As a result, the State’s argument that
the Civil Practice Act’s pleading standards for ordinary civil
complaints govern the adequacy of in rem civil-asset-forfeiture
complaints fails.
Accordingly, we hold that OCGA §
9-16-12 (a)’s requirement
that an in rem civil-asset-forfeiture complaint “allege the essential
elements of the criminal violation which is claimed to exist” requires
the State to include allegations that could withstand a general
demurrer challenging the sufficiency of an indictment....
...338, 341 (1) (830 SE2d
206) (2019) (citation and punctuation omitted).
(b) Having determined the appropriate standard for judging
whether an in rem civil-asset-forfeiture complaint “allege[s] the
essential elements of the criminal violation which is claimed to
exist,” OCGA §
9-16-12, we turn now to whether the Court of
Appeals erred in holding that the second amended complaint
satisfied that requirement.
As relevant here, the second amended complaint sought
forfeiture of the seized property under OCGA §
10-1-359.3....
...element of any crime, and that the intent to deprive the original owner of the
stolen property in question is an essential element of the offense of [t]heft by
[t]aking.”
31
supplied)). Accordingly, to satisfy OCGA §
9-16-12 (a)’s pleading
standard, the State was required to either “recite the language of
the statute that sets out” the intent-to-deprive element or “allege the
facts necessary to establish” that element....
CopyPublished | Supreme Court of Georgia | Nov 19, 2024 | 320 Ga. 426
...contraband related to drug and firearm offenses. The State filed an
in rem complaint for civil forfeiture against the property, naming
Garcia as an owner or interest holder and listing his address in
Florida. The State later obtained an order for service by publication
under OCGA §
9-16-12 (b) (3), which says, in pertinent part, that if
an “owner or interest holder is unknown or resides out of this state
....
..., a copy of the notice of the complaint for forfeiture shall be
published once a week for two consecutive weeks in the legal organ
of the county in which the complaint for forfeiture is pending.”
Garcia filed in the trial court a constitutional challenge to OCGA §
9-16-12 (b) (3), contending that it violates due process by permitting
service of process by publication in the first instance, even when a
person’s address is known, and the trial court summarily denied
that claim.1 We granted Garcia’s application for interlocutory appeal
primarily to decide whether OCGA §
9-16-12 (b) (3) violates due-
process principles to the extent it allows service only by publication
when an owner or interest holder’s out-of-state address is known.2
1 Garcia did not specify whether his claim is that the statute is...
...in this case, although it appears that the answer may well be “yes.”
Indeed, we suggested as much four years ago in a case in which
the same question was raised. In Crowder v. State,
309 Ga. 66 (844
SE2d 806) (2020), we addressed whether OCGA §
9-16-12 (b) (3)
permits service of process by publication in the first instance on
owners or interest holders who reside out of state. There, after
construing the text, context, and structure of the statute, we
concluded that it does. See id. at 69-73. We noted, however, that
OCGA §
9-16-12 (b) (3) “may well implicate constitutional concerns
regarding due process,” which “requires every method of service to
provide notice reasonably calculated, under all the circumstances, to
which says that if the state attorney fails to file a complaint for forfeiture
within 60 days from the date of seizure, “the property shall be released on the
request of an owner or interest holder, pending a complaint for forfeiture
pursuant to Code Section
9-16-12 or
9-16-13, unless the property is being held
as evidence....
...re
unknown is a showing that reasonable diligence has been
exercised in attempting to ascertain their whereabouts.
Id. at 74 (citations and punctuation omitted). But we did not decide
in that case whether notice by publication under OCGA §
9-16-12 (b)
(3) violates due-process principles; the trial court had not ruled on
that issue, so we remanded the case with the direction that the trial
court consider the claim in the first instance. See id.
In this case, by contrast, Garcia raised, and the trial court
ruled on, the same sort of due-process challenge to OCGA §
9-16-12
(b) (3) that was implicated in Crowder....
...because the wife testified that she knew locations where the
husband might be found but could not pinpoint his current
residence, such that she “was not reasonably diligent” in seeking his
whereabouts).
Unfortunately, though, we cannot reach the issue of whether
OCGA §
9-16-12 (b) (3) violates due process in this case. The record
shows that the trial court’s order authorizing service of process by
6
publication pursuant to OCGA §
9-16-12 (b) (3) also directed service
by certified mail sent to Garcia’s Florida address, and the State
properly followed that direction....
...at 272 (holding that
even though a debtor failed to serve process on a creditor, the creditor “received
actual notice” of the bankruptcy proceeding, which “more than satisfied [the
8
only by publication under OCGA §
9-16-12 (b) (3) violates due-
process principles....
...But because the certified mailing to Garcia’s address clearly met
the requirements of due process, there is no need to determine whether due
process was also satisfied by actual notice in this case.
9
question the constitutionality of OCGA §
9-16-12 (b) (3), we should
consider addressing that issue in a case where it is properly
presented....
...And because such a case may not arise soon enough, I
encourage the General Assembly to consider amending OCGA § 9-
16-12 (b) (3) to ensure that it comports with due-process principles.
Ordered November 19, 2024.
OCGA §
9-16-12 (b) (3); constitutional question....
Published | Supreme Court of Georgia | May 29, 2024 | 320 Ga. 426
...plaint, claiming to be
the owners of the seized property, and moved to dismiss the
complaint. In their motion to dismiss, Appellants argued that the
trial court had failed to timely hold a bench trial or order a
continuance, in violation of OCGA §
9-16-12 (f), which provides that,
“[i]f an answer is filed, a bench trial shall be held within 60 days
after the last claimant was served with the complaint; provided,
however, that such trial may be continued by the court for good
cause sho...
...ion
to dismiss, and the Court of Appeals affirmed. See Smith v. State,
366 Ga. App. 815 (884 SE2d 403) (2023).
We then granted certiorari to address three questions. 1 First,
we asked whether the Court of Appeals erred in holding that OCGA
§
9-16-12 (f)’s 60-day time period for holding a bench trial or
continuing the trial for good cause in an in rem civil-asset-forfeiture
case began to run when the last claimant, who was never served,
1 We granted certiorari on September 19, 2023....
...cient service.
Second, we asked if the Court of Appeals erred in holding that the
intent element of theft by taking could be inferred from the
allegations of the second amended complaint, and thus that the
second amended complaint satisfied OCGA §
9-16-12 (a)’s
requirement that the complaint allege the essential elements of the
offense....
...nswer
was not equivalent to the date it was served with the complaint. On
that basis, we affirm the trial court’s denial of Appellants’ motion to
dismiss the complaint for failure to timely hold a bench trial or
continue the trial under OCGA §
9-16-12 (f)....
...irst certiorari question.
As further explained below, we hold that the trial court and the
Court of Appeals erred in holding that the second amended
complaint adequately alleged the essential elements of theft by
taking, as required by OCGA §
9-16-12 (a)....
...On February 28, 2022, Appellants filed a motion seeking
dismissal of the second amended complaint or judgment on the
pleadings. As relevant here, Appellants argued that the trial court
had failed to timely hold a bench trial or order a continuance, as
required by OCGA §
9-16-12 (f), and that the State had failed to
allege the essential elements of a crime, as required by OCGA § 9-
7
16-12 (a).
Following a hearing, the trial court denied Appellant’s motion
on March 7, 2022. The trial court rejected Appellant’s timeliness
argument under OCGA §
9-16-12 (f) for two reasons....
...run until SmithCo Transfer filed its answer on January 21, 2022.
The trial court also rejected Appellants’ argument that the
second amended complaint failed to allege the essential elements of
a criminal violation supporting civil forfeiture, as required by OCGA
§
9-16-12 (a)....
...t by receiving stolen
property.”
On appeal, the Court of Appeals affirmed these rulings. See
Smith,
366 Ga. App. at 817-820 (2)-(3). The Court of Appeals rejected
Appellants’ argument that the case should have been dismissed
under OCGA §
9-16-12 (f), concluding that the 60-day time period
did not run from the date that Garrett Smith, Stacey Smith, and
SmithCo Recycling were served with the original complaint, as
Appellants argued, but rather from the date that SmithCo Transfer
filed an answer without having been served....
...nt service, the time SmithCo
Transfer’s answer was filed is the equivalent of the time the last
claimant was served.” Id.
The Court of Appeals also rejected Appellants’ contention that
the second amended complaint did not satisfy OCGA §
9-16-12 (a)’s
9
pleading requirement that an in rem civil-asset-forfeiture complaint
allege the essential elements of a criminal violation....
... intent can be inferred from the allegations of the complaint.” Id. at
817-818 (2). We granted certiorari to address these rulings.
2. The first certiorari question concerns the determinations
of the trial court and Court of Appeals that OCGA §
9-16-12 (f) did
not require dismissal of the second amended complaint. As noted
above, OCGA §
9-16-12 (f) provides that “[i]f an answer is filed, a
bench trial shall be held within 60 days after the last claimant was
served with the complaint,” unless the trial is “continued by the
court for good cause shown.” Here, the dispute turns on whether
OCGA §
9-16-12 (f)’s 60-day period ran from December 6, 2021, the
date that the Smiths and SmithCo Recycling were served, or
January 21, 2022, the date that SmithCo Transfer filed an answer
without being served and without raising insufficiency of service as
a defense....
...emails, the parties and the court discussed the possibility of
alternative trial dates on February 9 or 10, 2022. And the State
neither moved for a continuance nor served SmithCo Transfer.
From this email exchange, it is clear that the parties and the
court understood OCGA §
9-16-12 (f) to require the court to hold a
bench trial or grant a continuance for good cause by early February
2022 based on the service date of the Smiths and SmithCo Recycling,
and that the State intended to move for a continuance in order to
serve SmithCo Transfer....
...But Appellants
then “deliberately chang[ed] [their] position[ ],” Ward-Poag,
310 Ga.
at 292 (2) (b) (citation and punctuation omitted), when challenging
the trial court’s conclusion that, because SmithCo Transfer’s answer
was “in effect a substitute for service,” OCGA §
9-16-12 (f)’s 60-day
time period to hold a bench trial “began to run ....
...ts stated
intention to move for a continuance to serve SmithCo Transfer, and
thus, the trial court was never called upon to decide whether a
continuance was necessary to effect actual service on SmithCo
Transfer. Second, the trial court’s OCGA §
9-16-12 (f) analysis did
18
not expressly rely on Appellants’ representation that SmithCo
Transfer’s answer date was equivalent to its service date, although
the trial court quoted the relevant language from the e-mail
exchange in the section of its order addressing OCGA §
9-16-12 (f)
and reached a conclusion consistent with that representation.
By contrast, the third factor — “whether the party seeking to
assert an inconsistent position would derive an unfair advantage or
impose an unfair detriment on the opposing party if not estopped,”
Ward-Poag,
310 Ga. at 293-294 (2) (b) (citation and punctuation
omitted) — is clearly present here. Appellants argue on appeal that
OCGA §
9-16-12 (f)’s 60-day time period to hold a bench trial or
obtain a continuance must have run from the date that the Smiths
and SmithCo Recycling were served because they were “the only
parties served,” and that the deadline expired on Feb...
...d motion for a
continuance. But then Appellants opportunistically took the
opposite position when challenging the trial court’s denial of its
motion to dismiss the case for failure to timely hold a bench trial or
grant a continuance under OCGA §
9-16-12 (f)....
...Appellants are estopped from arguing that the trial court or Court
of Appeals erred in equating the date that SmithCo Transfer
answered the complaint with the date that SmithCo Transfer was
served. And as a result, Appellants cannot challenge the conclusion
that OCGA §
9-16-12 (f)’s 60-day time period to hold a bench trial or
obtain a continuance, which runs from the date of service on the last
claimant, ran from the date that SmithCo Transfer answered the
complaint. In light of our conclusion, we vacate Division 3 of the
Court of Appeals’ decision without expressing any opinion on
whether the Court of Appeals correctly interpreted OCGA §
9-16-12
(f) in equating, as a matter of law, the date that “the last claimant
was served” with the date that the last claimant filed an answer
without raising a defense of insufficient service....
...In the second certiorari question, we asked if the Court of
Appeals erred in holding that, because the intent element of theft by
taking could be inferred from the allegations of the second amended
complaint, the second amended complaint satisfied OCGA §
9-16-12
(a)’s requirement that the complaint allege the essential elements of
the offense....
...As explained below, we conclude that the Court of
Appeals erred in concluding that the State adequately alleged theft
by taking because the standard for assessing whether an in rem civil
forfeiture complaint adequately alleges the essential elements of a
criminal violation under OCGA §
9-16-12 (a) is the same as the
standard for assessing whether criminal charges in an indictment
can survive a general demurrer, and the State’s allegations
regarding theft by taking fall short of that standard.
(a) The Uniform Civil Forfeiture Procedure Act sets out the
pleading requirements for an in rem civil-asset-forfeiture complaint
in OCGA §
9-16-12 (a). As relevant here, that provision states that
an in rem civil-asset-forfeiture “complaint shall . . . allege the
22
essential elements of the criminal violation which is claimed to
exist.” OCGA §
9-16-12 (a).
To determine whether the Court of Appeals correctly
interpreted and applied this provision, we must “examine the
statute’s plain language” and read that text “in its most natural and
reasonable way, as an ordinary speaker of the English language
would.” Ford Motor Co....
...structure and history of the whole statute, and the other law —
constitutional, statutory, and common law alike — that forms the
legal background of the statutory provision in question.” Id. (citation
and punctuation omitted).
We begin our construction of OCGA §
9-16-12 (a) by noting that
the provision, which was enacted in 2015, see Ga....
...The only
difference between this language and the language of OCGA § 9-16-
12 (a) is that the latter provision specifies that it is the essential
elements of a “criminal” violation that the State must allege. And
the inclusion of the word “criminal” suggests that, while a forfeiture
complaint under OCGA §
9-16-12 (a) is civil in nature, criminal law
continues to provide relevant context for interpreting the meaning
of the provision.
In the criminal context, alleging the essential elements of a
criminal offense has long been understood as a...
...t is convicted contain all the
essential elements of the crime.”).
The standard for assessing whether the State has adequately
alleged the essential elements of a criminal offense was well
understood when the General Assembly enacted OCGA §
9-16-12 (a)
in 2015, as it is today....
...s that the General
Assembly adopted the standard for assessing the sufficiency of an
indictment to withstand a general demurrer as the standard for
assessing the sufficiency of an in rem civil-asset-forfeiture
complaint. As explained above, OCGA §
9-16-12 (a)’s requirement
that the State “allege the essential elements of the criminal violation
which is claimed to exist” not only mirrored a provision formerly in
28
the Criminal Code but also invoke...
...243, 245 (2) (a) (444 SE2d 76) (1994). Here, the
legislature has provided special pleading standards for in rem civil-
asset-forfeiture proceedings, requiring the State to “allege the
essential elements of the criminal violation which is claimed to
exist.” OCGA §
9-16-12 (a). As a result, the State’s argument that
the Civil Practice Act’s pleading standards for ordinary civil
complaints govern the adequacy of in rem civil-asset-forfeiture
complaints fails.
Accordingly, we hold that OCGA §
9-16-12 (a)’s requirement
that an in rem civil-asset-forfeiture complaint “allege the essential
elements of the criminal violation which is claimed to exist” requires
the State to include allegations that could withstand a general
demurrer challenging the sufficiency of an indictment....
...338, 341 (1) (830 SE2d
206) (2019) (citation and punctuation omitted).
(b) Having determined the appropriate standard for judging
whether an in rem civil-asset-forfeiture complaint “allege[s] the
essential elements of the criminal violation which is claimed to
exist,” OCGA §
9-16-12, we turn now to whether the Court of
Appeals erred in holding that the second amended complaint
satisfied that requirement.
As relevant here, the second amended complaint sought
forfeiture of the seized property under OCGA §
10-1-359.3....
...32
elements of the crime or crimes charged, including the required
mens rea, it violates due process, is void, and cannot withstand a
general demurrer.” (citation and punctuation omitted; emphasis
supplied)). Accordingly, to satisfy OCGA §
9-16-12 (a)’s pleading
standard, the State was required to either “recite the language of
the statute that sets out” the intent-to-deprive element or “allege the
facts necessary to establish” that element....
