State v. Shearson Lehman Bros., Inc., No. 76348

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtPER CURIAM; Except as authorized by law or rule; WILLIAM M. FLEMING, JAMES E. FINDLEY and PHILIP F. ETHERIDGE
Citation372 S.E.2d 276,188 Ga.App. 120
Decision Date11 July 1988
Docket NumberNo. 76348
Parties, RICO Bus.Disp.Guide 7053 STATE of Georgia, et al. v. SHEARSON LEHMAN BROTHERS, INC. et al.

Page 276

372 S.E.2d 276
188 Ga.App. 120, RICO Bus.Disp.Guide 7053
STATE of Georgia, et al.
v.
SHEARSON LEHMAN BROTHERS, INC. et al.
No. 76348.
Court of Appeals of Georgia.
July 11, 1988.
Rehearing Denied July 28, 1988.

Page 277

[188 Ga.App. 124] Michael J. Bowers, Atty. Gen., Harrison Kohler, George P. Shingler, Sr. Asst. Attys. Gen., David F. Walbert, Atlanta, for appellants.

Ellis G. Arnall, Macon, Allen I. Hirsch, John Clay Spinrad, Atlanta, Harvey D. Myerson, Lloyd S. Clareman, New York City, Robert J. Mandell, for appellees.

[188 Ga.App. 120] PER CURIAM.

The State of Georgia on May 14, 1985, filed this civil action under Georgia's Racketeer Influenced & Corrupt Organizations Act, OCGA § 16-4-1 et seq. (RICO), against twenty brokerage dealers and insurance companies, including appellees Shearson Lehman Brothers, Inc., and the Robinson-Humphrey Company, Inc. In its complaint, the State alleged that appellees and the other defendants committed various RICO predicate offenses including state and federal securities violations and mail and wire fraud. Appellees and the other defendants immediately removed the case to the federal court, but the case was remanded to the superior court on August 16, 1985. The other defendants have since been dismissed as a result of settlement. Appellant Marion T. Pope, Jr., filed a petition for intervention and class certification on September 30, 1985, which was granted ex parte by the superior court. In June 1986, appellees filed a motion to disqualify one of the attorneys for appellants, Special Assistant Attorney General Andrew Ekonomou, on the ground that he had been a hearing officer in a related administrative hearing. After receiving evidence at a hearing in September 1986, the superior court granted that motion and disqualified Ekonomou. In December 1986, appellees filed a motion to dismiss the complaint, on the ground that the complaint failed to state a claim upon which relief could be granted. The motion also attacked the court's class certification and grant of intervention to Judge Pope. The court granted the motion to dismiss for failure to state a claim and this appeal followed.

1. Appellees have filed a motion to dismiss this appeal on the ground that exclusive appellate jurisdiction rests in the Georgia Supreme Court. We deny this motion as appellate jurisdiction is proper in this court for the following reasons: (1) the equitable relief sought by the State (the permanent injunction) has become moot because appellees no longer market the financial instruments complained of; (2) the State has formally abandoned all relief sought for the revocation of business licenses; (3) because the complaint primarily seeks forfeiture and money damages, any minor equitable relief sought as a corollary to those money damages is properly heard by the Court of Appeals; and (4) jurisdiction over the appeal by Marion T. Pope, Jr., should not be heard by the Supreme Court because Judge Pope originally sought no equitable relief in the trial court.

[188 Ga.App. 121] 2. We note at the outset that all such motions to dismiss for failure to state a claim should be granted only where a complaint "shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim". Property Pickup

Page 278

v. Morgan, 249 Ga. 239, 240, 290 S.E.2d 52, 53 (1982). See OCGA § 9-11-12(b)(6). In its order granting appellee's motion to dismiss, citing as authority the expression of the General Assembly's intent in enacting RICO, the court below found that the complaint failed to state a civil RICO claim because appellants did not allege that appellees were "organized criminal elements attempting to take over the legitimate economy of this state". See OCGA § 16-14-2. As this level of criminal activity would not have been shown even if all the facts in appellants' allegations proved to be true, the court granted the motion to dismiss. We hold, however, that the expression of legislative purpose in enacting Georgia's RICO act is not an element of a civil cause of action under the act, and reverse the grant of appellees' motion to dismiss for failure to state a claim.

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21 practice notes
  • Brandvain v. Ridgeview Institute, Inc., No. 76331
    • United States
    • United States Court of Appeals (Georgia)
    • July 11, 1988
    ...Jerry Kirkpatrick, Brynda S. Rodriguez, Atlanta, for appellee. Jack S. Schroder, Jr., James F. Owens, Atlanta, Thomas W. Bennett, Macon, [188 Ga.App. 120] Don C. Keenan, Atlanta, David S. Bills, amici [188 Ga.App. 106] BEASLEY, Judge. Deborah Brandvain appeals the trial court's grant of the......
  • Southern Intermodal Logistics v. D.J. Powers Co., No. CV 496-209.
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • March 18, 1998
    ...fraudulently induced another to enter a similar contract could constitute a second predicate act); State v. Shearson Lehman Bros., Inc., 188 Ga.App. 120, 122, 372 S.E.2d 276 (1988) (reversing dismissal of case where pattern of racketeering was alleged from "multiple transactions with numero......
  • Marshall v. City of Atlanta, Civ. A. No. 1:95-CV-1595-JOF.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • March 29, 1996
    ...Georgia law. Cf. J.G. Williams v. Regency Properties, Ltd., 672 F.Supp. 1436, 1443 (N.D.Ga.1987); State v. Shearson Lehman Bros., Inc., 188 Ga.App. 120, 372 S.E.2d 276, 278 (1988); see also Dairymen, supra, 813 F.Supp. at 13 Georgia RICO prohibits the acquisition or maintenance of an intere......
  • State v. Reddick, No. A00A1059.
    • United States
    • United States Court of Appeals (Georgia)
    • May 3, 2000
    ...424-425, 9 S.E.2d 670 (1940); Reese v. Ga. Power Co., 191 Ga.App. 125, 127, 381 S.E.2d 110 (1989); State v. Shearson Lehman Bros., Inc., 188 Ga.App. 120, 123(4), 372 S.E.2d 276 (1988); Mitchell v. Mitchell, 184 Ga.App. 903, 363 S.E.2d 159 (1987); Summerlin v. Johnson, 176 Ga.App. 336, 338, ......
  • Request a trial to view additional results
21 cases
  • Brandvain v. Ridgeview Institute, Inc., No. 76331
    • United States
    • United States Court of Appeals (Georgia)
    • July 11, 1988
    ...Jerry Kirkpatrick, Brynda S. Rodriguez, Atlanta, for appellee. Jack S. Schroder, Jr., James F. Owens, Atlanta, Thomas W. Bennett, Macon, [188 Ga.App. 120] Don C. Keenan, Atlanta, David S. Bills, amici [188 Ga.App. 106] BEASLEY, Judge. Deborah Brandvain appeals the trial court's grant of the......
  • Southern Intermodal Logistics v. D.J. Powers Co., No. CV 496-209.
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • March 18, 1998
    ...fraudulently induced another to enter a similar contract could constitute a second predicate act); State v. Shearson Lehman Bros., Inc., 188 Ga.App. 120, 122, 372 S.E.2d 276 (1988) (reversing dismissal of case where pattern of racketeering was alleged from "multiple transactions with numero......
  • Marshall v. City of Atlanta, Civ. A. No. 1:95-CV-1595-JOF.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • March 29, 1996
    ...Georgia law. Cf. J.G. Williams v. Regency Properties, Ltd., 672 F.Supp. 1436, 1443 (N.D.Ga.1987); State v. Shearson Lehman Bros., Inc., 188 Ga.App. 120, 372 S.E.2d 276, 278 (1988); see also Dairymen, supra, 813 F.Supp. at 13 Georgia RICO prohibits the acquisition or maintenance of an intere......
  • State v. Reddick, No. A00A1059.
    • United States
    • United States Court of Appeals (Georgia)
    • May 3, 2000
    ...424-425, 9 S.E.2d 670 (1940); Reese v. Ga. Power Co., 191 Ga.App. 125, 127, 381 S.E.2d 110 (1989); State v. Shearson Lehman Bros., Inc., 188 Ga.App. 120, 123(4), 372 S.E.2d 276 (1988); Mitchell v. Mitchell, 184 Ga.App. 903, 363 S.E.2d 159 (1987); Summerlin v. Johnson, 176 Ga.App. 336, 338, ......
  • Request a trial to view additional results

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