In re US Currency in Amount of $26,980.00

• Decision Date: 21 December 2000
• Docket Number: No. 2 CA-CV 00-0051.,2 CA-CV 00-0051.
• Parties: In re UNITED STATES CURRENCY IN the AMOUNT OF $26,980.00.
• Court: Arizona Court of Appeals

18 P.3d 85

199 Ariz. 291

In re UNITED STATES CURRENCY IN the AMOUNT OF $26,980.00.

No. -0051.

Court of Appeals of Arizona, Division 2, Department B.

December 21, 2000.

Barbara LaWall, Pima County Attorney by Kevin S. Krejci, Tucson, for Appellant State of Arizona.

John D. Kaufmann, Tucson, for Claimant/Appellee.

Janet Napolitano, Arizona Attorney General by Cameron H. Holmes, Phoenix, for Amicus Curiae State of Arizona.

OPINION

HOWARD, Presiding Judge.

¶ 1 This court previously concluded in this in rem civil forfeiture action that the trial court had erred in granting summary judgment to claimant/appellee Beverly Gilbert on the issue of probable cause and, therefore, reversed and remanded for further proceedings. In re U.S. Currency in the Amount of $26,980.00, 193 Ariz. 427, 973 P.2d 1184 (App.1998). After a bench trial on remand, the trial court ordered appellant Pima County to return to claimant/appellee Beverly Gilbert the funds seized plus ten percent interest from the time of the seizure. We affirm the portion of the judgment ordering the seized funds returned but vacate the portion of the judgment awarding Gilbert ten percent prejudgment interest because A.R.S. § 13-4314(E) prohibits prejudgment interest at the legal rate in in rem forfeiture actions. We remand this case to the trial court because Gilbert is entitled to interest the government actually earned on the seized funds, as well as post-judgment interest.

BACKGROUND

¶ 2 As to the factual issues, we view the evidence in the light most favorable to upholding the judgment. In re 4030 W. Avocado, 184 Ariz. 219, 219, 908 P.2d 33, 33 (App.1995); In re 1978 Dodge Trans-Van, 129 Ariz. 362, 363, 631 P.2d 144, 145 (App.1981). In 1990, Pima County and Gilbert's husband settled a forfeiture action involving $23,560 by agreeing the County would return $11,780 to Gilbert's husband's attorney and Gilbert's husband would forfeit the remainder. In 1991, police searched Gilbert's and her husband's home, seizing seventy-nine pounds of marijuana, cash, and other items. The state filed a related civil forfeiture action that was settled in 1991 with the return of approximately $5,000 to Gilbert and her husband. In the criminal prosecution related to that seizure, Gilbert's husband was convicted in 1992 of possession and sale of marijuana, illegally conducting a criminal enterprise, and conspiracy to traffic in marijuana.

¶ 3 Four years later, in August 1996, Gilbert called a coworker at the University of Arizona Sociology Department and informed her that Gilbert was expecting a Federal Express package of textbooks for a class she would be taking. Federal Express delivered the package, which was addressed to Gilbert and had a return address of "Professor Timoyht [sic] Walters" at Hofstra University in Hempstead, New York. After the package was delivered, a man called the sociology department and said he wanted to retrieve the package. The sociology department business manager told him that he would not be allowed to do so. The business manager opened the package, which contained $26,980, and then contacted the police.

¶ 4 The police confronted Gilbert at her home about the package. She denied the package was hers and signed a disclaimer of ownership of the money. A week and a half later, however, Gilbert's attorney sent a letter to the police making a claim for the money on Gilbert's behalf. Gilbert later asserted the money was a return of funds she had invested in Timothy Walters' construction business.

¶ 5 At trial, Gilbert testified that she had sent the money in 1992 to Sheldon Fredericks, who had promoted reggae shows with her husband, and that it was he who had returned the money, plus interest, back to her. She testified that the money she had sent to Fredericks had originally come from her mother and from the prior forfeiture settlements, including $5,000 from the 1990 forfeiture settlement that had been in her underwear drawer when the police searched her house in 1991. Her mother testified that she had lent or given Gilbert $10,500 in the second half of 1991 from a personal injury settlement. Gilbert also testified that she had signed the original disclaimer because, based on her prior experiences with the police, she had wanted the police to leave her house.

RULE 52(a)

¶ 6 Pima County first argues the trial court failed to enter sufficient findings of fact and conclusions of law pursuant to Rule 52(a), Ariz. R. Civ. P., 16 A.R.S., claiming it had requested them before trial. Gilbert contends, however, that Pima County did not specifically request factual findings and legal conclusions before trial pursuant to Rule 52(a), noting that Pima County merely submitted proposed findings and conclusions prior to trial according to the trial court's procedures, not Rule 52(a). But Pima County also requested the court enter those proposed findings and conclusions. The trial court did not state Pima County's request was inadequate, and we believe Pima County's actions were sufficient to require the court to enter appropriate findings.

¶ 7 After a bench trial, a trial court must enter findings of fact and conclusions of law when requested to do so before trial. Ariz. R. Civ. P. 52(a); Miller v. McAlister, 151 Ariz. 435, 436-37, 728 P.2d 654, 655-56 (App.1986). It is only required to make findings on the ultimate facts, not each subsidiary evidentiary fact on which the ultimate facts are based. Gilliland v. Rodriquez, 77 Ariz. 163, 167, 268 P.2d 334, 337 (1954); Ellingson v. Fuller, 20 Ariz.App. 456, 459-60, 513 P.2d 1339, 1342-43 (1973). The ultimate facts are "`the essential and determinative facts on which the conclusion was reached.'" Miller v. Pinal County Bd. of Supervisors, 175 Ariz. 296, 300, 855 P.2d 1357, 1361 (1993), quoting Star Realty Co. v. Sellers, 73 N.M. 207, 387 P.2d 319, 320 (1963)

. The purpose of requiring the trial court to enter findings of fact and conclusions of law is to enable this court to examine the bases for the trial court's decision. Reed v. Reed, 154 Ariz. 101, 103, 740 P.2d 963, 965 (App.1987); Ellingson, 20 Ariz.App. at 460,

513 P.2d at 1343.

¶ 8 Here, the trial court was not required to rule on each of Pima County's proposed findings of evidentiary fact, as Pima County had requested. The trial court entered sufficient findings of fact and conclusions of law to allow us to review its decision. By doing so, the trial court satisfied the purpose of Rule 52(a). See Reed; Ellingson. There was no error here.

OWNERSHIP

¶ 9 Pima County next contends the trial court erred in finding that Gilbert had proven that she owned the seized funds, a threshold issue that Gilbert was required to establish by a preponderance of the evidence before other evidence could be submitted at the hearing. A.R.S. § 13-4310(D). Pima County argues that this issue is subject to de novo review. But whether a claimant has proven ownership by a preponderance of the evidence is a question of fact. See American Sur. Co. of New York v. Nash, 95 Ariz. 271, 278, 389 P.2d 266, 270 (1964)

. And we accept the trial court's factual findings unless they are clearly erroneous. Arizona Bd. of Regents v. Phoenix Newspapers, Inc., 167 Ariz. 254, 257, 806 P.2d 348, 351 (1991); see also Smith v. Arizona Dep't of Transp., 146 Ariz. 430, 432, 706 P.2d 756, 758 (App.1985) (administrative decision on whether state satisfied burden of proof by a preponderance of evidence upheld unless no substantial evidence supports decision). Factual findings are not clearly erroneous if substantial evidence supports them, even if there is substantial conflicting evidence. Moore v. Title Ins. Co. of Minnesota, 148 Ariz. 408, 413, 714 P.2d 1303, 1308 (App.1985); see also Smith, 146 Ariz. at 432,

706 P.2d at 758 ("If two inconsistent factual conclusions could be supported by the record, then there is substantial evidence to support [a] ... decision that elects either conclusion."). "Substantial evidence is evidence which would permit a reasonable person to reach the trial court's result." In re Estate of Pouser, 193 Ariz. 574, ¶ 13, 975 P.2d 704, ¶ 13 (1999).

¶ 10 The trial court found Gilbert had proven ownership because the package containing the money was addressed to her, she claimed ownership of the money shortly after the seizure, and she testified that the money was hers. Substantial evidence supports these findings. Pima County notes that it produced evidence that recipients of packages containing money are typically intermediaries rather than actual owners of the funds, and that Gilbert initially denied ownership of the money. Although this evidence contradicts evidence supporting the trial court's finding, "we do not reweigh conflicting evidence or redetermine the preponderance of the evidence, but examine the record only to determine whether substantial evidence exists to support the trial court's action." Id. at ¶ 13, 975 P.2d at ¶ 13; see also Moore, 148 Ariz. at 413,

714 P.2d at 1308. And the trial court, not this court, assesses credibility. In re U.S. Currency in the Amount of $315,900.00, 183 Ariz. 208, 211, 902 P.2d 351, 354 (App.1995); see also City of Prescott v. Town of Chino Valley, 166 Ariz. 480, 486, 803 P.2d 891, 897 (1990). Because substantial evidence supports the trial court's factual finding that Gilbert owned the money, we accept it, notwithstanding evidence to the contrary. Pouser; Moore; Smith.

¶ 11 Pima County relies on In re 4030 W. Avocado, for the proposition that a mere assertion of ownership is insufficient to give a claimant standing to contest a forfeiture. In that case, however, we concluded that the record owner of real property had no real interest in the property for purposes of establishing the "innocent owner" exception to forfeiture because his father had selected the house and made the down payment and the record owner had never made mortgage or tax payments on the property, insured it, maintained it, or lived in it. 184 Ariz. at...