McDonald & Cody v. State

• Decision Date: 23 June 2022
• Docket Number: A22A0531
• Court: Georgia Court of Appeals
• Parties: McDONALD & CODY v. STATE OF GEORGIA.

McDONALD & CODY v. STATE OF GEORGIA.

No. A22A0531

Court of Appeals of Georgia, Fourth Division

June 23, 2022

DILLARD, P. J., MARKLE, J., and SENIOR APPELLATE JUDGE PHIPPS

PHIPPS, SENIOR APPELLATE JUDGE

In this forfeiture case, law firm McDonald & Cody appeals from a trial court order finding that the firm and attorneys Sam Sliger and Steve Maples did not have a valid and enforceable attorneys' lien as a matter of law under OCGA § 15-19-14 (c).^[1] On appeal, McDonald & Cody contends that the trial court erred by (a) setting aside a prior order dismissing the underlying forfeiture complaint entered on June 24, 2019, and (b) finding that McDonald & Cody Sliger, and Maples had no valid and enforceable attorneys' lien as to the property that was the subject of the forfeiture action. For the following reasons, we reverse.

In November 2018, the State filed a complaint for forfeiture based on alleged violations of the Georgia Controlled Substances Act by Jigneshkumar Patel and his wife Toral Patel (the "Patels"). The complaint for forfeiture listed a number of bank accounts belonging to the Patels that the State had seized in September and October 2018. The Patels hired McDonald & Cody to resolve all claims relating to the seized accounts and signed contingency fee agreements in February 2019. Sliger, who worked at McDonald & Cody represented the Patels in both the civil forfeiture case and the underlying criminal case. Maples also represented Jigneshkumar Patel in the civil forfeiture case. In addition attorney Steven Sadow represented Jigneshkumar Patel in both the civil case and the underlying criminal case.

McDonald & Cody filed answers on behalf of the Patels in the forfeiture action, seeking, inter alia, the return of the seized property. Then, McDonald & Cody moved to dismiss the forfeiture complaint based on the State's failure to schedule and begin a bench trial within 60 days after the last claimant was served with the complaint as required by OCGA § 9-16-12 (f).^[2] Maples filed a brief in support of the motion to dismiss. After a hearing, the trial court dismissed the State's complaint. At the same hearing, after the trial court announced its decision to dismiss the complaint, Sliger asked whether the State was required to return the property or post a supersedeas bond. The trial court's June 24, 2019 written order dismissing the complaint concluded as follows:

It is therefore the order of the court that the claimants' motion to dismiss the complaint for forfeiture be granted. It is further the order of the court that the assets held by the State be paid into the registry of the court until such time as the deadline for appeal has expired or this judgment has been affirmed. Upon satisfaction of the aforementioned conditions precedent, all of the property described and listed in the complaint for forfeiture shall be returned to the claimants.

(Capitalization omitted.)

After obtaining a certificate of immediate review, the State filed an application for interlocutory appeal, which we granted on the basis that "the trial court's June 24 order is a final order that dismissed the complaint and announced the return of all of the property identified in the complaint to [the Patels], pending any appeal." Case No. A19I0284.^[3] The State's ensuing appeal was docketed in this Court as Case No. A20A0351.

While the State's appeal of the June 24, 2019 order was pending, Jigneshkumar Patel entered into a plea agreement, which was negotiated with the State by Sadow, to resolve his criminal case. Under the terms of the plea agreement, Jigneshkumar Patel entered an Alford^[4] plea to a single count of violating the Georgia Racketeer Influenced and Corrupt Organizations Act ("Georgia RICO Act") and was given an eight-year probated sentence. As part of the plea agreement, the Patels agreed to forfeit the assets in the forfeiture complaint, and the State agreed to unfreeze certain bank accounts and to dismiss all charges against Toral Patel. Thereafter, on May 21, 2020, the Patels withdrew their answers in the forfeiture case and consented to forfeiture of all of the assets in the forfeiture complaint. The next day, the State filed a motion in this Court to withdraw its appeal in Case No. A20A0351, which we granted on May 29, 2020.

On May 26, 2020, McDonald & Cody, Sliger, and Maples filed a "notice of attorneys' lien" and a "motion to vacate the withdrawal of claimants' answers and consents to forfeiture for the purpose of prosecuting the attorneys' contingency fee contract" in the civil forfeiture case. Thereafter, the State filed a motion to set aside the judgment dismissing the forfeiture complaint entered on June 24, 2019. McDonald & Cody, Sliger, and Maples opposed the State's motion to set aside. On December 8, 2020, the trial court entered two orders - one granting the State's motion to set aside the June 24, 2019 judgment, and the other denying the "motion to vacate the withdrawal of claimants' answers and consents to forfeiture for the purpose of prosecuting the attorneys' contingency fee contract." In the order granting the State's motion to set aside the judgment entered on June 24, 2019, the trial court directed the parties to brief the court "on whether the attorney[s'] lien filed under OCGA § 15-19-14 is valid and enforceable." Following briefing, the trial court entered an order on September 1, 2021, finding that there was no valid and enforceable attorneys' lien. This appeal followed.

1. McDonald & Cody contends that the trial court erred in setting aside the final judgment entered on June 24, 2019. We agree.

"A trial court's decision regarding a motion to set aside a judgment will not be reversed absent a showing of manifest abuse of discretion." Williams v. Contemporary Svcs. Corp., 325 Ga.App. 299, 300 (750 S.E.2d 460) (2013).

Here, the State moved to set aside the June 24, 2019 judgment under OCGA § 9-11-60 (d) (2), which provides: "A motion to set aside may be brought to set aside a judgment based upon . . . [f]raud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant." The State argued that the Patels' acts of withdrawing their answers and consenting to the forfeiture of the property on May 21, 2020, fell "squarely within the acts contemplated by OCGA § 9-11-60 (d) (2), as acts of the adverse party unmixed with any negligence or fault of the movant." (Emphasis in original.) The trial court granted the State's motion, explaining that the Patels, "the adverse parties, wish to withdraw their answer and forego any claim to the forfeited funds as part of their negotiated plea agreement in the companion criminal case" and that "[t]he State, the moving party, has not been negligent [ ]or . . . shown any fault[,]" which "provides the necessary basis for the [court] to set aside" the June 24, 2019 judgment. The trial court reasoned that "[s]etting aside the previous order would allow the parties to enforce a compromise that they each negotiated at arm's length, and would promote the administration of justice, not obscure it."

To decide whether a trial court properly set aside a judgment under OCGA § 9-11-60 (d) (2), we must first determine whether that judgment was based upon fraud, accident, mistake, or the acts of the adverse party. Principal Lien Svcs., LLC v. NAH Corp., 346 Ga.App. 277, 282-283 (3) (814 S.E.2d 4) (2018); Cheuvront v. Carter, 263 Ga.App. 837, 838 (589 S.E.2d 609) (2003). If so, we must also consider whether the fraud, accident, mistake, or act of the adverse party was unmixed with any negligence on the part of the State. Principal Lien Svcs., LLC, 346 Ga.App. at 283 (3); Cheuvront, 263 Ga.App. at 838.

Applying these standards, we first consider whether the June 24, 2019 judgment, which dismissed the forfeiture complaint on the basis that the trial required under OCGA § 9-16-12 (f) was not held or continued within 60 days after the last claimant was served, was based upon fraud, accident, mistake, or the acts of the Patels. See Principal Lien Svcs., LLC, 346 Ga.App. at 282-283 (3); Cheuvront, 263 Ga.App. at 838. The State argues that the withdrawals of answers and consents to forfeiture entered by the Patels in May 2020 were grounds for setting aside the June 24, 2019 judgment under OCGA § 9-11-60 (d) (2) as acts of the adverse party.

However, the State does not contend that the June 24, 2019 judgment was based upon fraud, accident, mistake, or the acts of the Patels, and we have found no evidence in the record that would support such a conclusion. On the facts of this case, the June 24, 2019 judgment could not have been based upon the acts by the Patels of withdrawing their answers and consenting to forfeiture in May 2020, because those acts had not yet occurred when the June 24, 2019 judgment was entered.^[5] Given these circumstances, the Patels' acts in May 2020 are not grounds for setting aside the June 24, 2019 judgment under OCGA § 9-11-60 (d) (2). See Principal Lien Svcs., LLC, 346 Ga.App. at 282-283 (3); Cheuvront, 263 Ga.App. at 838. Consequently, the trial court abused its discretion when it granted the State's motion to set aside the judgment on this basis. See Williams, 325 Ga.App. at 300.

2. McDonald & Cody contends that the trial court erred in holding that McDonald & Cody, Sliger, and Maples had no valid and enforceable attorneys' lien under OCGA § 15-19-14 (c) as a matter of law because there was no property recovered by the Patels. According to McDonald & Cody, the lien was perfected when the attorneys obtained a final judgment for the return of the property to the Patels. We agree.

OCGA § 15-19-14 (c) provides:

Upon all actions for the recovery of real or personal property and upon all judgments or decrees

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