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In re $46

Court of Appeals of Arizona, Second Division

February 28, 2018

In re $46, 523 in U.S. Currency; 2010 Chevrolet Camaro Reg. AZ/BJK1323

         Appeal from the Superior Court in Pinal County No. S1100CV201502397 The Honorable Richard T. Platt, Judge Pro Tempore.

          Lerner & Rowe, P.C., Phoenix By Andrew L. Gartman Counsel for Appellants.

          Kent 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.



         ¶1 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.

         Factual and Procedural Background

         ¶2 "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 their attorney.

         ¶3 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. [§] 13-4311(G).

         Claimants 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.

         ¶4 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.

         ¶5 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 forfeiture.

         ¶6 Claimants timely appealed and we have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).


         ¶7 "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).

         ¶8 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 'unclaimed.'"

         ¶9 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." § 13-4307(1).

         ¶10 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, ΒΆ 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 claim. ...

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