In this in rеm forfeiture action, David Umberto Arreola-Soto, Maria de Lourdes Garcia, 1 Ramon Mares-Esparza, DVD Concrete, Inc., and A-Z Prestige, LLC (collectively “Appellants”) appeal from a judgment and order of forfeiture entered by the Clayton County Superior Court after the court struck their answer. 2 They contend that (1) the trial court erred by striking their answer, (2) the forfeiture was unconstitutionally excessive, and (3) the forfeiture complaint failed tо adequately describe the conduct giving rise to the forfeiture. For the reasons that follow, we affirm in part and reverse in part.
The record shows that the State filed a verified complaint for forfeiture of currenсy and numerous items of personal property and vehicles seized by the Clayton County Sheriffs Office in connection with the execution of a search warrant while assisting the U. S. Drug Enforcement Administration. 3 The complaint alleged a conspiracy among some of the Appellants to traffic in marijuana and cocaine.
1. The Appellants first contend that the trial court erred by striking their answer. We agree in part.
“In а civil in rem forfeiture action, a claimant’s answer must be in strict compliance with the special pleading requirements of OCGA § 16-13-49 (o) (3),” 4 which provides that the claimant’s answer must include, among other details, facts to show “[t]he dаte, identity of transferor, and circumstances of the claimant’s acquisition of the interest in the property.” 5 This particularized information is required, in part, “so as to assure some degree of legitimacy to the claim and to elicit supportive factual information so as to expedite the proceeding.” 6
Here, the answer as amended by the Appellants includes as an exhibit a copy of the State’s inventory of each itеm seized. The list contains approximately 47 items, 7 and each item on the exhibit has a handwritten entry addressing each claimant’s ownership interest. For 26 entries there is a blank or no information describing the Appellants’ prоperty interest, and certain additional items are listed with only vague information including “left by a friend” or “given by a friend” with no other description. These entries clearly do not contain sufficient information to satisfy the pleading requirement under OCGA § 16-13-49 (o) (3) (D). 8 Thus, with respect to these items, the trial court did not err by dismissing the Appellants’ claims. 9
For other items, however, the claimant’s ownership interest is described with the name of the transferor and a year of purchаse by the claimant. 10 Although exact dates are not given, we have stated that “if a date certain cannot be given, the time frame” of the acquisition of the ownership interest will suffice. 11 Further, the list states the type of transfer (рurchase) made to each claimant and identifies the prior owner. This information assures some degree of legitimacy to the Appellants’ prima facie claim of ownership, and the answer otherwise contains factual information necessary to expedite the proceeding.
While we are mindful of the State’s argument that the pleading requirements in a forfeiture action are strict, they are not meant to be impоssible. The legislative intent in enacting the forfeiture statute is not only to provide for the prompt disposition of seized property but also to protect the interests of innocent property owners.The pleading requirement must be construed to implement that intent. 12
Therefore, under the circumstances of this case, we conclude that this information was sufficient to plead an interest in the property under OCGA § 16-13-49 (o) (3) (D), 13 and the trial court еrred by striking the Appellants’ answer as to these items. 14
2. The Appellants also argue that the forfeiture was unconstitutionally excessive relative to the alleged offense. Nevertheless, this issue was not ruled upon by the trial court, because it struck the Appellants’ answer. “We will not consider errors, even those of constitutional magnitude, unless they were raised and ruled on in the trial court.” 15 “It is not enough that a constitutional question was duly made in the сourt below, but the trial court must have made a ruling thereon.” 16 Accordingly, this enumeration presents nothing for review at this time, and the defense remains pending for the surviving claims upon remittitur.
3. Finally, the Appellants challenge the Statе’s complaint itself, arguing that it failed to comply with the requirement in OCGA § 16-13-49 (n) (1), which provides as follows:
If the estimated value of personal property seized is $25,000.00 or less, the district attorney may elect to proceed under the provisions of this subsection in the following manner: (1) Notice of the seizure of such property shall be posted in a prominent location in the courthouse of the county in which the property was seized. Such noticе shall include a description of the property, the date and place of seizure, the conduct giving rise to forfeiture, a statement that the owner of such property has 30 days within which a claim must be filed, and the violation of law alleged. . . , 17
The Apрellants argue that the State’s complaint failed to adequately describe the conduct giving rise to forfeiture. Nevertheless, the Appellants misapprehend the proceeding below, which was an in rem proсeeding for property valued at more than $25,000. Thus, the pleading requirement of OCGA § 16-13-49 (o) applied, not subsection (n).
Under the applicable subsection, OCGA § 16-13-49 (o), the State’s complaint must meet, among others, the following requirement:
. . . The complaint shall be verified on oath or affirmation by a duly authorized agentof the state in a manner required by the laws of this state. Such complaint shall describe the property with reasonable particulаrity; state that it is located within the county or will be located within the county during the pendency of the action; state its present custodian; state the name of the owner or interest holder, if known; allege the essential еlements of the violation which is claimed to exist-, state the place of seizure, if the property was seized; and conclude with a prayer of due process to enforce the forfeiture. 18
Thus, the State’s statutоry burden, in relevant part, was to allege the essential elements of the violation, not the essential facts supporting the alleged offense. 19
The State’s complaint alleged that items were seized in an investigation “involving the conspiracy to traffic[ ] cocaine and marijuana.” The complaint furthеr alleged that “[t]he violations supporting this Complaint for Forfeiture are violations of the Georgia Controlled Substances Act (OCGA § 16-13-30, § 16-13-31, and/or § 16-13-33D].” Finally, the complaint alleged that the seized property “was used and/or was intеnded for use in a manner to facilitate a violation of the Georgia Controlled Substances Act,” and specifically stated that the seized vehicles “[were] used and/or [were] intended to be used to transport and/оr store cocaine and marijuana based on an investigation indicating criminal activity involving the conspiracy to traffic[ ] cocaine and marijuana.” Under these facts, because the forfeiture statute declares as contraband “property which is, directly or indirectly, used or intended for use in any manner to facilitate a [drug] violation,” 20 the complaint here “made out a prima facie case for civil forfeiture of the [property] as contraband.” 21 Accordingly, this enumeration is without merit.
Judgment affirmed in part and reversed in part.
Notes
Maria de Lourdes Garcia sometimes is referred to as “Made Lourdes Garcia.”
We note that the Stаte argues that the appeal should be dismissed because the
Appellants’ notice of appeal failed to adequately specify the judgment, ruling, or order from which they appeal as required by OCGA § 5-6-37. Nevertheless, “[w]here it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors аre sought to be asserted upon appeal, the appeal is not subject to dismissal and shall be considered.” (Punctuation omitted.)
Carter v. Fayette
County,
According to the State, the currency and property seized was valued at approximately $267,000.
(Punctuation omitted.)
Portee v. State of Ga.,
OCGA § 16-13-49 (o) (3) (D).
State of Ga. v. Cannon,
Some entries contain multiple items or components.
See
Edwards v. State of Ga.,
See
Gravley v. State of Ga.,
The answer described the claimants’ ownership interest with handwritten notes in the margin of an exhibit attached to their answer, leaving much of the information facially incоmplete. This is not an advisable practice, and it invites dismissal of such claims. Nevertheless, in this case, some property was described with sufficient particularity to plead an ownership interest.
(Emphasis supplied.)
Howard v. State of Ga.,
(Citation and punctuation omitted.)
Dennis v. State of Ga.,
The property adequately described is as follows:
E-2 to E-4: Somero Enterprises Copperhead XD 2.0 laser screener, blade, and 2 Trimble Grade Control Receivers (purchased from Somero Enterprises in 2006, current owner DVD Concrete, Inc.);
G-3 to G-6: Four Whiteman concrete dual blade finisher floats (purchased from Live Oak and White Cap in 2004 or 2005, current owner DVD Concrete, Inc.);
M-l: 1986 Mack Truсk VIN: 1M2T152CXGM002805 (purchased in 2008 from AB General Construction, current owner Made Lourdes Garcia);
R-l: 1997 Kenworth Aerocab truck VIN: 1XKWDB9X7VR737665 (in process of purchasing from Jose Ramirez, purchaser Made Lourdes Garcia);
S-6: 3 Honda industrial blowers (purchased from Live Oak or White Cap in 2005, current owner DVD Concrete, Inc.);
S-7: 2 yellow X4000 concrete wet saws (purchased from Live Oak or White Cap in 2005, current owner DVD Concrete, Inc.);
S-13: 1986 white Volvo sleeper cab VIN: WUYDCJF6GN10589 (purchasеd from Russell Hauling in 2009, current owner A-Z Prestige LLC); and U-l: 2000 white Ford F-650 VIN: 3FDWW65A8YMA36343 (purchased from Ford dealer in 2000, current owner David Arreola Soto).
We emphasize that this opinion is addressed to whether the Appellants met pleading requirements, not the merits of either the State’s forfeiture case or the Appellants’ ultimate claims to the property.
(Punctuation omitted.)
Griffin v. State of Ga.,
(Punctuation omitted.)
Bain v. State,
(Emphasis supplied.)
(Emphasis supplied.)
See
Hinton v. State of Ga.,
OCGA § 16-13-49 (d) (2).
Howard v. State of Ga.,