Pimper v. State ex rel. Simpson, No. S01A0946.

CourtSupreme Court of Georgia
Writing for the CourtSEARS, Presiding Justice.
Citation555 S.E.2d 459,274 Ga. 624
PartiesPIMPER et al. v. STATE of Georgia, ex rel. SIMPSON.
Decision Date19 November 2001
Docket NumberNo. S01A0946.

555 S.E.2d 459
274 Ga. 624

PIMPER et al.
v.
STATE of Georgia, ex rel. SIMPSON

No. S01A0946.

Supreme Court of Georgia.

November 19, 2001.

Reconsideration Denied December 14, 2001.


Brinson, Askew, Berry, Seigler, Richardson & Davis, Robert M. Brinson, C. King Askew, J. Anderson Davis, Mark M.J. Webb,

555 S.E.2d 460
Rome, Alston & Bird, Theodore J. Sawicki, John H. Goselin, II, Craig H. Kuglar, Atlanta, Cook, Noell, Tolley, Bates & Michael, Edward D. Tolley, Athens, for appellant

Fred R. Simpson, Acting Dist. Atty., Thurbert E. Baker, Atty. Gen., David S. McLaughlin, Asst. Atty. Gen., Ekonomou, Atkinson & Lambros, Michael G. Lambros, Morris, Manning & Martin, Lewis E. Hassett, Smith, Price & Wright, Stephen D. Smith, Jr., Edward Hine, Jr., Bondurant, Mixson & Elmore, John E. Floyd, William Q. Bird, for appellee.

SEARS, Presiding Justice.

On January 29, 2001, under the authority of the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act,1 the Floyd County District Attorney filed a civil in personam forfeiture complaint against appellants David and Amy Pimper ("the Pimpers") and their wholly-owned corporations, D.L. Pimper Group, Inc., and Wall Street Creations, Ltd. ("the corporations"). This action was taken following investigations by both the Securities & Exchange Commission and the State. The State's complaint asserted appellants' involvement in theft, wire fraud, mail fraud, and violation of the Georgia Securities Act.2 The complaint explained the basis for the superior court's exercise of jurisdiction, identified certain property to be forfeited, and gave detailed grounds for the forfeiture.3

Also on January 29th, the District Attorney obtained an ex parte order from the superior court temporarily restraining appellants from transferring, concealing, assigning or disposing of all assets held in both individual and corporate capacities. Also acting ex parte, the trial court appointed a receiver and assigned him plenary powers to take immediate control of appellants' assets, books, and possessions; to assume sole control of the corporations; and to report to the court as to appellants' financial status. The ex parte hearing was not transcribed. However, at a subsequently-held hearing, the trial court made statements indicating that on January 29th, it was presented with sufficient sworn testimony and other evidence to support its entry of the TRO and appointment of the receiver.4

Within 24 hours of entry of the trial court's orders, on January 30, 2001, a hearing was held before the superior court at which appellants were afforded an opportunity to be heard on whether the State's forfeiture action, the court's ex parte appointment of a receiver, and issuance of the TRO were improper. Appellants, however, declined to give testimony or submit any evidence before the trial court, stating that they were "unable to bring witnesses forward who are willing to testify and risk criminal prosecution themselves, or further investigation, or risk waiving their privilege against self-incrimination."

Six days later, on February 5, 2001, appellants filed a motion to dissolve the TRO and receivership order, alleging that the ex parte proceedings were improper. The following day, February 6, the [274 Ga. 625] superior court held a hearing on appellants' motion to dissolve, again affording appellants the opportunity to present testimony and other evidence to contest the State's civil forfeiture action. Once more, appellants offered neither sworn testimony nor evidence to the trial court. The superior court then scheduled a full evidentiary hearing on appellants' dissolution motion, to be held four days later. That hearing was delayed while appellants sought unsuccessfully to remove this matter to the federal court, and the full hearing was rescheduled for February 15, 2001. On February 13, the State notified appellants that as part of its forfeiture action, it was subpoenaing their sworn testimony and the production of documents. The next day, appellants agreed to indefinitely postpone any evidentiary hearing on their motion to dissolve the TRO and receivership due to an improper ex parte hearing. On February 19, 2001, no evidence having been submitted in support of appellants' motion to dissolve, the motion was denied

555 S.E.2d 461
based upon the pleadings. Appellants appealed that denial to this Court

On February 21, 2001, the receiver reported to the trial court there were virtually no assets remaining in appellants' estates not already subject to the claims of secured creditors, many of which were asserted before the State's forfeiture action was filed. On February 22, 2001, an involuntary petition for bankruptcy was brought against one of the corporations, D.L. Pimper Group, Inc. On February 26, 2001, the other corporation, Wall Street Creations, Ltd., filed a voluntary petition for bankruptcy. On February 26 and 27, acting on the State's motion, the trial court entered orders dismissing the State's forfeiture action and the underlying TRO and receivership. The trial court reapproved its dismissal of the State's action on April 17, 2001.5

Thereafter, the receiver was automatically converted by operation of law into a Bankruptcy Court custodian, and thus became authorized to dispose of property in the two bankruptcy estates only in accordance with the directives of the Bankruptcy Court.6

On June 22, 2001, the grand jury returned a 75 count indictment [274 Ga. 626] against David Pimper, alleging theft by deception,7 unlawful securities practice,8 false swearing,9 and the making of false writings and statements.10 On August 1, 2001, following a briefing and hearing, the Bankruptcy Court approved payment of the custodian's fees. Thereafter, the Bankruptcy Court custodian determined that 2,493.72 he had held since February 2001 was the personal property of the Pimpers, and did not belong to the estate of either of the two corporations in bankruptcy proceedings. On August 23, 2001, the Bankruptcy Court custodian sent a check in the amount of 2,493.72 to the Pimpers and their counsel. The Pimpers' counsel refused to accept the check from the Bankruptcy Court custodian. It is undisputed by the record that after the 2,493.72 was returned to the Pimpers, none of their personal assets are being held by the State as part of the now-defunct receivership. On September 26, 2001, the Bankruptcy Court custodian filed his final accountings of the estates of the two bankrupt corporations.

Insofar as this appeal concerns the bankrupt corporations, it rests within the exclusive jurisdiction of the Bankruptcy Court and is subject to the mandatory automatic stay provisions of the United States Bankruptcy Code.11 Therefore, this appeal must be dismissed with regard to the corporations.12

Insofar as this appeal concerns the Pimpers in their individual capacities, it is moot. An appeal is moot when it seeks to determine an issue which, if resolved, cannot have any practical effect on the underlying controversy,13 or when such resolution will determine only abstract questions not arising upon existing facts or rights.14 The Pimpers appealed to this Court complaining that the receivership and TRO should be dissolved. Such dissolution occurred when the State's RICO action was dismissed in February 2001, more than six months ago. While the

555 S.E.2d 462
statutory procedures for wrapping up a receivership may not have yet been completed, it is undisputed by the record that the receivership no longer exists and currently holds no assets belonging to the Pimpers in their individual capacity.

Thus, the record shows that appellants have obtained the relief they sought in the superior court—dissolution—and the State no longer exercises dominion over their personal assets. Any resolution [274 Ga. 627] of the issues raised in appellant's appeal will not have a practical effect on an underlying case or controversy, and would merely address such issues in the abstract. It follows that the appeal, insofar as it concerns the Pimpers in their individual capacity, is moot. It is, of course, well established that mootness is one of the grounds for dismissal of appeals set forth in OCGA § 5-6-48(b).

The dissent raises well-grounded concerns regarding the constitutional ramifications of an in personam RICO forfeiture action such as the one brought in this appeal, and urges that because these constitutional issues might recur and yet evade review, this appeal should not be dismissed as moot. However, this Court is without jurisdiction to consider the constitutional issues raised by the dissent, because the issues were not ruled upon by the trial judge after having been raised in the trial court.15

In conclusion, this Court may not exercise jurisdiction over that portion of this appeal that is now within the exclusive jurisdiction of the Bankruptcy Court, and all remaining issues are moot. Therefore, the appeal is dismissed in its entirety.

Dismissed.

All the Justices concur, except FLETCHER, C.J., and HUNSTEIN, J., who dissent.

HUNSTEIN, Justice, dissenting.

This appeal stems from an in personam RICO forfeiture complaint the Floyd County District Attorney filed against David and Amy Pimper and two corporations. The in personam nature of the complaint is incontrovertible, given the style of the complaint16 and the recital within the complaint specifying that it was brought pursuant to OCGA § 16-14-7(m),17 the provision in the RICO forfeiture statute which authorizes in personam forfeitures. I have grave reservations regarding the use of in personam forfeiture proceedings in a case where, as here, none of the defendants had been convicted of or even indicted for any criminal racketeering activity.18 The use of in [274 Ga. 628] personam forfeiture under such circumstances raises serious concerns of constitutional dimension which I believe this Court must address and resolve.

Unlike civil in rem forfeitures, which are...

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28 practice notes
  • Barrow v. Beskin, S20A1029
    • United States
    • Supreme Court of Georgia
    • May 14, 2020
    ...or when such resolution will determine only abstract questions not arising upon existing facts or rights." Pimper v. State of Ga. , 274 Ga. 624, 626, 555 S.E.2d 459 (2001) (footnotes omitted). See also Randolph County v. Johnson , 282 Ga. 160, 160, 646 S.E.2d 261 (2007) ("An appeal becomes ......
  • Fair v. State, Nos. S10A1034, S10A1035.
    • United States
    • Supreme Court of Georgia
    • November 22, 2010
    ...State, 257 Ga. 15, 16, 354 S.E.2d 144 (1987). Accordingly, this constitutional issue is not ripe for review. See Pimper v. State of Ga., 274 Ga. 624, 627, 555 S.E.2d 459 (2001) (holding that this Court was without jurisdiction to consider constitutional issues "not ruled upon by the trial j......
  • Cisco v. State
    • United States
    • Georgia Supreme Court
    • June 15, 2009
    ...time since 2001 that any appellate court has been presented the opportunity to address OCGA § 16-14-7(m).3 In Pimper v. State of Ga., 274 Ga. 624, 555 S.E.2d 459 (2001), the majority recognized there were "well-grounded concerns regarding the constitutional ramifications of an in personam R......
  • IN RE JULY-AUGUST, 2003 DEKALB CTY., No. A04A0500
    • United States
    • United States Court of Appeals (Georgia)
    • February 26, 2004
    ...the appellate court lacks subject matter jurisdiction to decide issues never ruled upon by the trial court. See Pimper v. State of Ga., 274 Ga. 624, 627, 555 S.E.2d 459 (2001). Such constitutional error is waived unless ruled upon by the trial court. Haynes v. Wells, 273 Ga. 106, 108(3), 53......
  • Request a trial to view additional results
28 cases
  • Barrow v. Beskin, S20A1029
    • United States
    • Supreme Court of Georgia
    • May 14, 2020
    ...or when such resolution will determine only abstract questions not arising upon existing facts or rights." Pimper v. State of Ga. , 274 Ga. 624, 626, 555 S.E.2d 459 (2001) (footnotes omitted). See also Randolph County v. Johnson , 282 Ga. 160, 160, 646 S.E.2d 261 (2007) ("An appeal becomes ......
  • Fair v. State, Nos. S10A1034, S10A1035.
    • United States
    • Supreme Court of Georgia
    • November 22, 2010
    ...State, 257 Ga. 15, 16, 354 S.E.2d 144 (1987). Accordingly, this constitutional issue is not ripe for review. See Pimper v. State of Ga., 274 Ga. 624, 627, 555 S.E.2d 459 (2001) (holding that this Court was without jurisdiction to consider constitutional issues "not ruled upon by the trial j......
  • Cisco v. State
    • United States
    • Georgia Supreme Court
    • June 15, 2009
    ...time since 2001 that any appellate court has been presented the opportunity to address OCGA § 16-14-7(m).3 In Pimper v. State of Ga., 274 Ga. 624, 555 S.E.2d 459 (2001), the majority recognized there were "well-grounded concerns regarding the constitutional ramifications of an in personam R......
  • IN RE JULY-AUGUST, 2003 DEKALB CTY., No. A04A0500
    • United States
    • United States Court of Appeals (Georgia)
    • February 26, 2004
    ...the appellate court lacks subject matter jurisdiction to decide issues never ruled upon by the trial court. See Pimper v. State of Ga., 274 Ga. 624, 627, 555 S.E.2d 459 (2001). Such constitutional error is waived unless ruled upon by the trial court. Haynes v. Wells, 273 Ga. 106, 108(3), 53......
  • Request a trial to view additional results

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