In re T_T
| Decision Date | 11 July 2018 |
| Docket Number | No. 2 CA-CV 2017-0136,2 CA-CV 2017-0136 |
| Parties | IN RE $119,805 IN U.S. CURRENCY |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).
Appeal from the Superior Court in Pima County
The Honorable Sarah R. Simmons, Judge
AFFIRMED
Kimminau Law Firm P.C., Tucson
By Chris J. Kimminau
Counsel for Appellant
Barbara LaWall, Pima County Attorney
By Ellen R. Brown, Deputy County Attorney, Tucson
Counsel for Appellee
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred.
¶1 In this civil in rem forfeiture action, William Wright appeals from the trial court's imposition of sanctions and its rulings on competing motions for summary judgment. We affirm.
¶2 Wright contends that the trial court erred by requiring him to physically appear for a deposition, by awarding attorney fees to the state for his missed depositions, by imposing discovery sanctions barring him from presenting any evidence at trial, by granting summary judgment for the state, and by failing to grant him partial summary judgment on the issue of ownership. The state contends that the court did not so err. The issues to be decided are: 1) Did the court abuse its discretion in imposing discovery sanctions on Wright, including sanctions that barred him from introducing evidence at trial? And, 2) Did the court err in granting the state's motion for summary judgment and in denying Wright's motion for partial summary judgment?
¶3 On November 11, 2011, Pima County Sheriff Department Deputies stopped William Wright for a civil traffic infraction and seized $119,805 in U.S. currency for forfeiture. All parties who may have an interest in the property, including Wright, were served notice of the forfeiture proceeding. In February 2012, Wright filed a judicial claim for the property, and, in March 2012, the state filed an in rem forfeiture complaint. In October 2012, the trial court stayed the proceedings until the termination of Wright's related criminal matter. Wright's criminal charges were thereafter dismissed, and the court lifted the stay.
¶4 In February 2016, the state served Wright with a request for production of documents as to, among other things, Wright's alleged ownership of the cash, its source, and the circumstances of his travel toArizona. On May 13, 2016, the state filed a motion to compel Wright's production of documents. On June 13, 2016, at the hearing on the motion, Wright argued that the requested documents (bank and phone records) were not in his custody or control and offered to sign releases permitting their production. The trial court ordered Wright to either produce the documents within ten days or file "something" under oath certifying that he had tried to but could not obtain the records, or else the court would impose "further sanctions." On June 24, 2016, Wright produced some requested documents, but did not, as ordered, certify under oath his efforts to produce others.
¶5 On June 28, 2016, the state filed a motion for sanctions to strike Wright's claim for his failure to follow the trial court's order. After the state had filed its motion, but before the motion was heard, Wright failed to appear for his deposition on June 29. At the August 2016 hearing on the motion for sanctions, the state argued that Wright's claim should be struck both because of his failure to comply with the court's discovery order and because of his failure to appear at his deposition. Wright argued that he complied with the discovery orders in good faith and that his being in Florida lead to the untimeliness. Wright also argued that the cost of travel from Florida to Arizona to attend the deposition was prohibitive, and that he would be "asking for the Court to allow for a telephonic deposition." The court ordered that Wright appear in person for his deposition, and warned him that he would be sanctioned if he did not appear. The court also stated that it would impose sanctions if Wright's production of discovery was not "verif[ied] . . . within one week."1 The state requested costs and attorney fees related to the missed deposition, and the court granted them.
¶6 On September 23, 2016, the state filed another motion for sanctions to strike Wright's claim after he had, again, missed his deposition, which had been scheduled for September 20. At the September 30 hearing, the state asked for sanctions for the earlier discovery violations as well as for the most recently missed deposition. The state argued that, because Wright had not produced relevant bank records, he should be sanctioned and barred from producing any further documents in support of his claim. Wright's counsel argued that he had told his client the wrong date of the deposition, and therefore, Wright's failure to appear was not willful. Wright also argued that sanctions were inappropriate because the partieshad not engaged in a good-faith consultation required by Rule 26(g), Ariz. R. Civ. P. The trial court denied the state's motion to strike Wright's claim, but it precluded Wright from offering as exhibits any records not yet produced. The state also requested attorney fees, which the court granted, assessing $2,620 against Wright's counsel.
¶7 On September 30, 2016, the state filed a notice of deposition of Wright for November 4, 2016. Wright did not file an objection to the place of deposition. On September 27, 2016, Wright was incarcerated in Florida. On November 1, 2016, the state filed a motion opposing any postponement of Wright's November 4 deposition, claiming that, although Wright's counsel knew that Wright was incarcerated since October 20, his counsel had not sought any relief from the trial court, and therefore the deposition should not be postponed. On November 4, Wright did not attend his deposition but instead filed a motion to extend the deadline for the deposition, noting that he was currently in custody without bond on federal charges, with trial set for December 2016. On November 10, the state filed a third motion for sanctions to strike Wright's claim. Wright filed a response in which he offered to attend his deposition either by phone or in person at the facility where he was held, but he did not otherwise seek a protective order.
¶8 At the December 2016 evidentiary hearing on the sanctions motion, the state opposed Wright's request for a telephonic deposition, arguing that Wright should not be given another opportunity for a deposition. The trial court initially ordered, as a sanction, that Wright could not offer any testimony on his own behalf, but the court later rescinded that sanction. The court continued the evidentiary hearing until January 2017.
¶9 At the January 2017 evidentiary hearing, the state argued that the trial court should strike Wright's claim because of his repeated discovery violations. Wright, appearing telephonically, testified that he missed the first deposition due to his sick mother, the second deposition due to his counsel telling him the wrong date, and the third deposition due to his being incarcerated. Wright additionally testified that he was willing to be deposed telephonically. The court refused to grant the ultimate sanction of striking Wright's claim, and instead barred him from "present[ing] any evidence . . . on this matter." The court based its ruling on the cumulative discovery violations, finding that Wright willfully did not respond to the interrogatories, that Wright willfully failed to attend two of the depositions, and that it was Wright's obligation to move for a telephonic deposition. The court found that Wright's counsel was also at fault.
¶10 In March 2017, the state filed a motion for summary judgment, which it supported with depositions from Detectives Svec and Barajas and an affidavit from Detective Boudreau, among other exhibits. According to his deposition, in November 2011, Barajas met with Wright and another man, J.C. Barajas negotiated the purchase of marijuana with J.C., while Wright sat in the truck. Barajas met with Wright and J.C. a second time to complete the transaction. Barajas asked Wright if he was ready to complete the deal, and Wright said he was. However when Barajas asked to the see the money, Wright refused and, because the operation was not going as planned, Barajas, looking out for his own safety, terminated the transaction. Sheriff Deputies later stopped Wright in his car for a traffic violation, discovered the cash, and seized it.
¶11 Wright filed an opposition to the state's motion and filed his own motion for partial summary judgment on the issue of ownership. The state opposed Wright's motion, arguing, in part, that the trial court's sanctions prevented Wright from meeting his burden of proving ownership.
¶12 In May 2015, at the hearing on the competing motions for summary judgment, the trial court initially noted that it was inclined to deny each. The state then emphasized that, because of the court's earlier sanction precluding Wright from presenting evidence, Wright could not meet his burden to show ownership of the property, nor could he present evidence to rebut the state's factual showing that the property was subject to forfeiture. Wright argued that, because he claims he owns the property, the state admits he controlled the property, and the state put forward no evidence to show that anyone else owns the property, there are no issues of material fact on the issue of ownership.
¶13 The trial court denied Wright's motion for partial summary judgment and granted the state's motion for summary judgment. The court determined that the sanctions imposed on Wright prevented him from proving ownership and from rebutting the state's evidence showing that there was no genuine issue of material...
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