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In re 2000 Peterbilt Tractor & Trailer, Wa LLC

Court of Appeals of Arizona, First Division

August 16, 2016

In the Matter of: 2000 PETERBILT TRACTOR & TRAILER, WA LIC: 19601RP, VIN: 1XPSD69X2YD479117; $12, 500.00 U.S. CURRENCY; SEIZED IN MCSO #13-073240.STATE OF ARIZONA ex rel. MARK BRNOVICH, Plaintiff/Appellee,
v.
RAFAEL CISNEROS-RUIZ, a single man, Claimant/Defendant/Appellant.

         Appeal from the Superior Court in Maricopa County Nos. CV2013-009164; CV2013-012378; CV2013-012889, The Honorable Dawn M. Bergin, Judge

          Arizona Attorney General's Office, Phoenix By Kenneth R. Hughes Counsel for Plaintiff/Appellee

          Thomas S. Hartzell, Tucson Counsel for Claimant/Defendant/Appellant

          Kevin S. Krejci, Tucson Counsel for Amicus Curiae Pima County Attorney

          Alexander T. Mahon, Florence Counsel for Amicus Curiae Pinal County Attorney

          Judge Kenton D. Jones delivered the opinion of the Court, in which Presiding Judge Diane M. Johnsen and Judge Patricia A. Orozco joined.

          OPINION

          JONES, Judge

         ¶1 Rafael Cisneros-Ruiz appeals the trial court's order granting the in rem forfeiture of currency, a semi-truck, and a trailer. Cisneros argues he did not timely waive service and that, because he was not thereafter properly served, he was not required to answer the State's complaint within the period set forth in Arizona Revised Statutes (A.R.S.) section 13-4311(G)[1]or within the extended period allowed to one who waives service. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2 In April 2013, law enforcement officers performed a traffic stop on a semi-truck Cisneros was driving. Cisneros consented to a search of the truck, in which officers found $9, 000 in a bag under the passenger seat and $3, 564 in Cisneros's pocket. The officers arrested Cisneros on suspicion of money laundering and seized the money, truck, and trailer. After impounding the truck, officers found and seized an additional $31, 040 hidden behind the dashboard.

         ¶3 In September 2013, the State filed a notice of pending in rem and in personam forfeiture with the court, a copy of which was sent to Cisneros via certified mail.[2] The following month, Cisneros filed a timely claim "against forfeiture and for return of seized property" in the State's forfeiture action. In his claim, Cisneros directed that all future mailings should be sent to his legal counsel at an address he provided.

         ¶4 On October 31, 2013, the State filed a complaint within that same forfeiture action. Consistent with Cisneros's instruction, the State mailed the forfeiture complaint and a request for waiver of service to his attorney on November 4, 2013. That request advised Cisneros that, should he agree to waive service and return the executed waiver form within thirty days of November 4, 2013, he would be allowed sixty days from November 4, 2013 to file his answer. On December 11, 2013, thirty-seven days after the State mailed the complaint and waiver request, Cisneros's attorney signed the waiver of service form on behalf of his client and returned it to the State. The State then filed the waiver with the trial court. On January 14, 2014, thirty-four days after returning the waiver of service form and seventy-one days after the State mailed the complaint and waiver request, Cisneros filed his answer.

         ¶5 In February 2014, the State filed an application for an order of in rem forfeiture pursuant to A.R.S. § 13-4311(G) alleging Cisneros's answer was untimely. After oral argument, the trial court granted the State's application, dismissed Cisneros's claims, and ordered all property seized from Cisneros be forfeited in rem. Cisneros ...


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