In re $46, 523 in U.S. Currency; 2010 Chevrolet Camaro Reg. AZ/BJK1323
from the Superior Court in Pinal County No. S1100CV201502397
The Honorable Richard T. Platt, Judge Pro Tempore.
& Rowe, P.C., Phoenix By Andrew L. Gartman Counsel for
Volkmer, Pinal County Attorney By James W. Fritz, Deputy
County Attorney, Florence Counsel for Appellee.
Presiding Judge Staring authored the opinion of the Court, in
which Judge Eppich concurred and Judge Brearcliffe dissented.
STARING, PRESIDING JUDGE.
Jose Silva and Ramon Rangel ("claimants") appeal
from the trial court's order granting the state's
application for forfeiture of property seized from them
during a traffic stop. The court found the claimants'
answers to the state's forfeiture complaint were
untimely. However, because we conclude claimants did not
receive constitutionally sufficient notice of the forfeiture
complaint, we reverse.
and Procedural Background
"We accept the court's factual findings unless they
are clearly erroneous." In re $2, 390 U.S.
Currency, 229 Ariz. 514, ¶ 5 (App. 2012). In
December 2015, during a traffic stop in Pinal County, an
Arizona Department of Public Safety officer seized cash
totaling $40, 160 and a 2010 Chevrolet Camaro from Silva, and
$6, 363 in cash from Rangel. On the date of the seizure, the
state personally served claimants with notice of its intent
to proceed with forfeiture of the property. Claimants timely
filed claims for the seized property, representing they would
"accept future mailings from the court or attorney for
the [s]tate" at one address, which was the office of
On February 1, 2016, the state filed a complaint against the
seized property. On the same day, the state sent two copies
of a summons and the complaint in one envelope by certified
mail to the address claimants had provided. On February 29,
the envelope was returned to the state marked
"unclaimed." The following day, the state sent a
facsimile to claimants' attorney, stating:
Complaint filed on February 1, 2016. Mailed to you on
February 1, 2016. Certified mail returned as
"Unclaimed" (see face of envelope, page two of this
fax). Pursuant to A.R.S. §§ 13-4311(A) and
13-4307(1)(b) service is effective upon the mailing of the
complaint. Time to file an answer has expired. I will be
filing an application for forfeiture pursuant to A.R.S.
filed their answers the next day, on March 2. The state filed
an application for order of forfeiture on March 3, averring
it had served claimants by certified mail.
Claimants objected to the state's application, arguing it
had failed to properly serve claimants with the complaint.
Claimants' attorney asserted he only became aware of the
complaint when he received the March 1 facsimile from the
state. Claimants also moved to dismiss the complaint for
insufficient process and service of process pursuant to Rule
12(b)(4), (5), Ariz. R. Civ. P.
The trial court set the matter for oral argument. Prior to
oral argument, claimants obtained new counsel, who submitted
a pre-hearing brief arguing the state's service of the
complaint failed to satisfy the requirements of due process.
In a ruling issued after oral argument, the court entered
factual findings and concluded the state's service was
complete upon mailing and claimants' answers were
untimely, granting the state's application for
Claimants timely appealed and we have jurisdiction pursuant
to A.R.S. § 12-2101(A)(1).
"We review the trial court's application of the
forfeiture statutes de novo." $2, 390 U.S.
Currency, 229 Ariz. 514, ¶ 5. We also review
constitutional claims de novo. In re Estate of
Snure, 234 Ariz. 203, ¶ 5 (App. 2014).
Before the state may deprive an individual of life, liberty,
or property it must accord due process. U.S. Const. amend.
XIV, § 1. Essential to due process is notice and an
opportunity to be heard. Mullane v. Cent. Hanover Bank
& Trust Co., 339 U.S. 306, 314 (1950). Claimants
argue the constitutional requirement of due process required
the state "to provide notice by some other means when
its sole notice by certified mail was returned
Under A.R.S. § 13-4311(A), the state has two options for
serving a forfeiture complaint: (1) "in the manner
provided by [A.R.S.] § 13-4307, " or (2) "by
the Arizona rules of civil procedure." If the state
elects to serve the complaint according to § 13-4307,
and "the owner's . . . name and current address are
known, " then the state may serve the complaint by
"[p]ersonal service, " or by "[m]ailing a copy
of the notice by certified mail to the [known] address."
Under Rule 5(c), Ariz. R. Civ. P., "personal service is
not required when . . . the party to be served has already
appeared in the case." In re 2000 Peterbilt Tractor
& Trailer,240 Ariz. 450, ¶ 8 (App. 2016).
"A party appears when he 'take[s] any action, other
than objecting to personal jurisdiction, that recognizes the
case is pending in court, '" such as the filing of a