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In re $70

Court of Appeals of Arizona, Second Division

September 30, 2014

IN RE $70,070 IN U.S. CURRENCY

Appeal from the Superior Court in Pinal County. Nos. S1100CV201301076 and S1100CV201301129 (Consolidated). The Honorable Bradley M. Soos, Judge Pro Tempore, The Honorable Karen J. Stillwell, Judge Pro Tempore.

For Appellant: Robert Louis Murray, Law Office of Robert Louis Murray, Tucson.

For Appellees: Craig Cameron, Deputy Pinal County Attorney, M. Lando Voyles, Pinal County Attorney, Florence.

Judge Espinosa authored the opinion of the Court, in which Presiding Judge Miller and Chief Judge Eckerstrom concurred.

OPINION

Page 546

[236 Ariz. 24] ESPINOSA, Judge:

[¶1] Fernando Peña challenges a trial court ruling striking his answer to a forfeiture complaint and ordering the state to proceed with an uncontested forfeiture pursuant to A.R.S. § § 13-4314 and 13-4315. He contends the court erred when, at a hearing held prior to entry of this order, it refused to consider his motion for summary judgment and applied the wrong standard to his motion to dismiss. We vacate the court's order and remand the case for further proceedings consistent with this decision.

Factual and Procedural Background

[¶2] This case turns on procedural issues and its history requires detailed explication. In April 2013, Peña was stopped by an Arizona Department of Public Safety (DPS) officer while driving on Interstate 10. After a consensual search of his truck revealed " numerous bundles of currency" hidden in a compartment in the truck bed, police seized the currency and the truck, and served Peña with a notice of pending forfeiture. He filed a timely notice of claim and the state subsequently filed an in rem complaint, under a different cause number, seeking forfeiture of the seized property based on an allegation of racketeering. The two actions were subsequently consolidated at Peña's request.

[¶3] Peña filed a Rule 12(b)(6), Ariz. R. Civ. P., motion to dismiss, in which he argued the state would be unable to " show probable cause to believe that the property is subject to forfeiture" and that its complaint " fail[ed] to allege any specific conduct that will tie the currency and the truck to any act on the part of Mr. Peña which can be traced to racketeering." In response, the state argued Peña's motion was untimely because it did not comply with the time limit for such challenges under A.R.S. § 13-4310(B). The trial court found that statute inapplicable, but deferred its ruling on Peña's motion to dismiss pending an evidentiary hearing " pursuant to A.R.S. § 13-4311(N)(1)(a)," to determine " whether the State can establish by a preponderance of the evidence that the [property] is subject to forfeiture under A.R.S. § [13-]4304."

Page 547

[236 Ariz. 25] Peña then filed a " Motion for Summary Judgment" in which he argued that his motion to dismiss should be " disposed of as provided in [Arizona Rule of Civil Procedure] 56" because it had been accompanied by matters outside the pleadings. The state objected to the conversion of Peña's motion on grounds that the forfeiture statutes preclude motions for summary judgment before an answer has been filed.

[¶4] At the evidentiary hearing, the trial court initially indicated that the purpose of the hearing was to " determine whether the State could conclude by preponderance of the evidence that the [property] is subject to forfeiture." After denying the state's motion to continue the hearing, the court inquired whether it was prepared to proceed. The state's attorney said he was " prepared to proceed on a probable cause basis," and the court replied: " Okay. Well, let's do that, then." Peña's counsel objected, and a discussion about the purpose of the hearing ensued:

[COUNSEL]: Your Honor, if I may make a record. Well, I'll object and--because this is supposed to be a 12(b)(6) hearing, and the State has filed no response to my 12(b)(6) motion. I mean, they provided me with no ...

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