In re In re

• Decision Date: 28 February 2018
• Docket Number: No. 2 CA-CV 2017-0034,2 CA-CV 2017-0034
• Citation: In re In re, 418 P.3d 1124 (Ariz. App. 2018)
• Parties: IN RE $46,523 IN U.S. CURRENCY; 2010 Chevrolet Camaro Reg. AZ/BJK1323
• Court: Arizona Court of Appeals

418 P.3d 1124

IN RE $46,523 IN U.S. CURRENCY; 2010 Chevrolet Camaro Reg. AZ/BJK1323

No. 2 CA-CV 2017-0034

Court of Appeals of Arizona, Division 2.

Filed February 28, 2018

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 Staringauthored the opinion of the Court, in which Judge Eppichconcurred and Judge Brearcliffe dissented.

OPINION

STARING, Presiding Judge:

¶1Jose 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, 277 P.3d 219(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)and13-4307(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.

¶4Claimants 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.

¶5The 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.

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

Discussion

¶7"We review the trial court's application of the forfeiture statutes de novo."$2,390 U.S. Currency , 229 Ariz. 514, ¶ 5, 277 P.3d 219.We also review constitutional claims de novo.In re Estate of Snure , 234 Ariz. 203, ¶ 5, 320 P.3d 316(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, 70 S.Ct. 652, 94 L.Ed. 865(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, ¶ 8, 381 P.3d 244(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.Id. , quotingKline v. Kline , 221 Ariz. 564, ¶ 18, 212 P.3d 902(App.2009)(alteration inPeterbilt ).

¶11"Once a party has appeared in a forfeiture case, service is governed by Rule 5(c)and ... § 13-4307."Id.¶ 9."If a party is represented by an attorney, service ... must be made on the attorney," unless otherwise required by the court or by rule.Ariz. R. Civ. P. 5(c)(1)."A document is served ... by ... mailing it by U.S. mail to the [attorney's] last known address—in which event service is complete upon mailing."Ariz. R. Civ. P. 5(c)(2)(C);see also§ 13-4307("Whenever notice of pending forfeiture is required under this chapter it ... is effective at ... the mailing of written notice....").

¶12Claimants appeared in this matter by filing claims pursuant to § 13-4311(D), which included the address at which they"w[ould] accept future mailings from the court or attorney for the [s]tate."Accordingly, to effect service on claimants, the state was required to serve the complaint on their attorney of record.SeeAriz. R. Civ. P. 5.3(a)(1)(once attorney appears as attorney of record, attorney deemed responsible as party's attorney of record).And, by rule and by statute, service was complete upon mailing the complaint to the address provided.See§§ 13-4307(1)(b),13-4311(A);Ariz. R. Civ. P. 5(c)(2)(C).The state filed its complaint on February 1, and mailed copies to claimants' attorney by certified mail.Thus, claimants' answers, filed on March 2, were not timely.See§ 13-4311(G)(claimant"shall file and serve the answer to the complaint" within twenty days of service);Ariz. R. Civ. P. 6(c)("When a party may or must act within a specified time after service and service is made under Rule 5(c)(2)(C)... 5 calendar days are added after the specified period would otherwise expire.");In re $47,611.31 U.S. Currency , 196 Ariz. 1, ¶¶ 13-14, 992 P.2d 1(App.1999)(time extending provisions of civil procedure rules apply in civil forfeiture context).

¶13 Ordinarily, that would be the end of the matter.SeeDusenbery v. United States , 534 U.S. 161, 169-70, 122 S.Ct. 694, 151 L.Ed.2d 597(2002)(state required to attempt to provide actual notice, but not required to actually do so).In this case, however, the mailed copies of the complaint were returned to the state marked "unclaimed."And, although the state knew of the failed service, it made no further attempts to serve the complaint on claimants before applying to the trial court for an order of forfeiture.SeeA.R.S. §§ 13-4311(G),13-4314(A).Relying, in part, on Jones v. Flowers , 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415(2006), claimants assert the state's failure to attempt any other means of notice before proceeding with forfeiture deprived them of due process.We agree.

¶14 In Jones , the Arkansas Commissioner of State Lands mailed a certified letter to a property owner notifying him he was delinquent on the payment of taxes on his real property but that he had a right to redeem the property.547 U.S. at 223, 126 S.Ct. 1708.Because no one was home to sign for the letter and no one attempted to retrieve it at the post office, it was returned unopened and marked "unclaimed."Id. at 223-24, 126 S.Ct. 1708.Two years later, the state undertook to sell the property, sending a letter by certified mail to the owner stating that if he failed to pay the delinquent taxes, his property would be sold.Id. at 224, 126 S.Ct. 1708.Again, the letter was returned marked "unclaimed," and the state proceeded with the sale.Id.

¶15The Supreme Court observed that it had "never addressed whether due process entails further responsibility when the government becomes aware prior to the taking that its attempt at notice has failed."Id. at 227, 126 S.Ct. 1708.It then found the "Commissioner's effort to provide notice to [the owner] of an impending tax sale of his house was insufficient to satisfy due process given the circumstances of th[e] case."Id. at 239, 126 S.Ct. 1708.It also concluded the Commissioner would have done "more when the attempted notice letter was returned unclaimed, and there was more that reasonably could be done," had there been a true desire to alert the owner "he was in danger of losing his house."Id. at 238, 126 S.Ct. 1708.Thus, while the state was not required to make "heroic efforts" to assure the notice's delivery, Dusenbery , 534 U.S. at 170, 122 S.Ct. 694, its "knowledge that notice pursuant to the normal procedure was ineffective triggered an obligation ... to take additional steps to effect notice,"Jones , 547 U.S. at 230, 126 S.Ct. 1708.When "exerting extraordinary power against a property owner[,] ... [i]t is not too much to insist that the State do a bit more to attempt to let him know about it when the notice letter addressed to him is returned unclaimed."¹Id. at 239, 126...