State v. Nineteen Thousand Two Hundred and Thirty-Eight Dollars ($19,238.00) In U.S. Currency, THIRTY-EIGHT

• Decision Date: 13 October 1987
• Docket Number: CA-CIV,No. 1,THIRTY-EIGHT,1
• Citation: State v. Nineteen Thousand Two Hundred and Thirty-Eight Dollars ($19,238.00) In U.S. Currency, 755 P.2d 1166, 157 Ariz. 178 (Ariz. App. 1987)
• Parties: STATE of Arizona, Plaintiff-Appellee, v. NINETEEN THOUSAND TWO HUNDRED ANDDOLLARS ($19,238.00) IN UNITED STATES CURRENCY, and One Parcel of Real Estate Together With All Improvements, Appurtenances and Fixtures Thereon, Described as Lot 1024 Deerview Unit Eleven According to Book 139 of Maps, , Records of Maricopa County, Arizona, Defendants- Appellants, and John Paul Bauman, Claimant-Appellant. 9176.
• Court: Arizona Court of Appeals

Page 1166

755 P.2d 1166

157 Ariz. 178

STATE of Arizona, Plaintiff-Appellee, v. NINETEEN THOUSAND TWO HUNDRED AND THIRTY-EIGHT DOLLARS ($19,238.00) IN UNITED STATES CURRENCY and One Parcel of Real Estate Together With All Improvements, Appurtenances and Fixtures Thereon, Described as Lot 1024 Deerview Unit Eleven According to Book 139 of Maps, Page 4, Records of Maricopa County, Arizona, Defendants- Appellants and John Paul Bauman, Claimant-Appellant.

No. 1 CA-CIV 9176.

Court of Appeals of Arizona Division 1, Department A.

Oct. 13, 1987.

Reconsideration Denied Jan. 29, 1988.

Review Denied July 6, 1988.

[157 Ariz. 179] Thomas E. Collins, Maricopa Co. Atty. by Sandra L. Janzen, Deputy Co. Atty., Phoenix, for plaintiff-appellee.

Michael O. Wilkinson, Phoenix, for defendants-appellants and claimant-appellant.

John Paul Bauman, in pro. per.

OPINION

BURTON M. APKER, Judge Pro Tem.

This appeal is from summary judgment forfeiting the interest of John Paul Bauman in certain residential property pursuant to A.R.S. § 13-106 [Replaced by A.R.S. § 13-4301 to -4315] and A.R.S. § 13-2314 to -2317, and from an order denying relief from the judgment pursuant to rule 60(c), Arizona Rules of Civil Procedure.

The issues raised on appeal are: (1) whether Bauman was a party to the in rem forfeiture proceedings; (2) if so, whether Bauman was improperly denied an evidentiary hearing; and (3) whether the granting of a motion to suppress in the underlying criminal actions negated the factual and legal basis for summary judgment of forfeiture.

On November 13, 1985, the state filed an in rem civil complaint to obtain forfeiture of the residential property alleging that methamphetamine along with packaging materials, drug substances, scales and bags were found in a specially constructed false closet at Bauman's residence during a search of the premises. ¹ A criminal action against Bauman had been filed approximately nine months prior to the civil action, and a second criminal case had been filed one month prior to the civil case. Notice of the seizure and pending forfeiture was served on Bauman and Bauman filed a notice of claim pursuant to A.R.S. § 13-106(G), alleging that he was the owner of the property and that any unlawful act upon which the forfeiture was based was totally without his consent or knowledge.

On January 23, 1986, the state served Bauman with a request for admissions in the in rem action pursuant to rule 36, Arizona Rules of Civil Procedure, and rule 2.14, Local Rules of Practice for Maricopa County Superior Court. Included in the request were admissions that Bauman had: possessed and sold dangerous drugs at his residence, discussed the presence of drugs at his residence with others including the informant in the criminal proceedings, purchased narcotic drugs, directed construction and helped construct the hidden closet where the methamphetamine and paraphernalia were found.

The original request for admissions was hand-delivered to Bauman's attorney on January 23, 1986; consequently, the last day on which to file a timely response would be February 22, 1986. Rule 36, Arizona Rules of Civil Procedure. Bauman made no response until February 25, 1986, when Bauman filed an objection to the request for admissions alleging that he was not a "party" to the lawsuit and could not be subjected to discovery proceedings including a rule 36 request.

On March 12, 1986, the state filed a motion for partial summary judgment contending that the admissions set forth facts sufficient to establish grounds for forfeiture pursuant to A.R.S. § 13-106.

On March 25, 1986, Bauman filed motions in the criminal cases to suppress the evidence discovered during the search of his residence.

Bauman filed an objection to the motion for partial summary judgment on March 27, 1986, again alleging that he was merely a "claimant" and was not a party to the lawsuit. He did not at that time inform the court that the motions to suppress were pending.

By minute entry dated April 3, 1986, the trial court granted Bauman's objections to the request for admissions on grounds that there had been no response to the motion. The state then filed a reply to Bauman's objections to its motion for partial summary judgment and a motion asking the court to reconsider its ruling on Bauman's objection to the request for admissions.

On April 16, 1986, Bauman moved for a protective order on Fifth Amendment grounds against the state's request for admissions, and asked the court to stay the forfeiture proceedings until the motions to suppress were decided in the criminal cases.

On April 18, 1986, a hearing was conducted on the state's motion to reconsider and motion for partial summary judgment. Counsel for Bauman was present but apparently observed the proceeding rather than participating. After taking the matter under advisement, the trial judge granted the state's motion to reconsider finding that Bauman's objection to the request for admissions had been untimely and that the facts set forth in the request were deemed admitted. The judge then concluded that there were no disputed issues of material fact and granted the state's motion for summary judgment. At the same time, the court denied Bauman's motion for protective order in which Bauman asked the court to stay the proceedings until the disposition of the criminal case.

Bauman later filed a motion asking the court to reconsider its order granting summary judgment. He reiterated his contention that he was not a party to the in rem cause of action. He also advised the court that his motion to suppress the evidence acquired during the search of his home had been granted in the criminal proceeding, and argued that the suppressed evidence could not be used in the civil proceeding to forfeit his interest in the residence. Bauman's motion to reconsider was denied and this appeal followed.

We first address Bauman's contention that he was not a party to the in rem proceedings. A.R.S. § 13-106 gives any person claiming an interest in forfeitable property the right to file a verified claim to protect that interest. The effect of filing such claim is to determine the interest of the claimant in the property subject to forfeiture. Both former A.R.S. §§ 13-106 and 13-2314 provide for in personam and in rem forfeiture. In an in personam action, the state may recover against any property held by the person, while in an in rem action, any recovery is limited to the defendant properties before the court. O'Leary v. Superior Court, 104 Ariz. 308, 312, 452 P.2d 101, 105 (1969), overruled on other grounds, Walker v. Dallas, 146 Ariz. 440, 706 P.2d 1207 (1985). Compare A.R.S. § 13-4310 with § 13-4311. For the reasons stated below, the fact that this litigation is an in rem proceeding does not negate a claimant's status as a party, nor, were there a proper predicate, his responsibility to adhere to the rules of civil procedure applicable to such proceedings.

A party is one who has a right to control proceedings, to make a defense, to present evidence and to appeal. Chalpin v. Mobile Gardens, Inc., 18 Ariz.App. 231, 501 P.2d 407 (1972). This court has stated that:

It is thus not the formalization of the existence of the "party" status by order of the court which makes a person a "party" to the action, but rather it is the right to appear and contest which is controlling. This right comes into existence upon subjecting oneself, to the jurisdiction of the court ... or by the apparent exercise of the courts' jurisdiction over a person....

18 Ariz.App. at 234, 501 P.2d at 410, accord Helge v. Druke, 136 Ariz. 434, 437, 666 P.2d 534, 537 (App.1983).

Bauman participated in this action. He made an appearance authorized by A.R.S. § 13-106 by filing a verified claim; he had a direct interest in the realty as he claimed it was his; he had a right to contest the evidence presented by the state; and he had the right to examine and cross-examine witnesses. In fact, pursuant to § 13-106(G), a claimant is required to present witnesses or other evidence to support his claim and carry his burden of proof. Thus, Bauman was a party subject to discovery and other rules applicable in a civil lawsuit.

We then address Bauman's contention that he was improperly denied an evidentiary hearing. In connection with this position Bauman argues that the discovery rules and summary judgment rules applicable to civil lawsuits were not applicable to the forfeiture proceeding.

Forfeiture of property by the state at times relevant to this appeal was governed by A.R.S. § 13-106, which provided that "the procedure for forfeiture shall be as set forth in this section and the rules of civil procedure apply, unless a different procedure is otherwise provided by law." Bauman apparently contends that the "rules of civil procedure" referred to in § 13-106 are not the "Rules of Civil Procedure" set forth in Title 16 of Arizona Revised Statutes because the phrase is not capitalized. We find no merit to this argument.

Rule 1 of the Arizona Rules of Civil Procedure expressly states that the rules are applicable in civil suits, and they have been held so applicable unless there is a specific statute directly in conflict. See, e.g., A.R.S. § 12-1171 to -1183; Byrd v. Peterson, 66 Ariz. 253, 186 P.2d 955 (1947).

It is abundantly clear that summary judgment is appropriate in forfeiture proceedings. Numerous courts have so held. See, e.g., United States v. Little Al, 712 F.2d 133 (5th Cir.1983); United States v. One 1975 Mercedes, 590 F.2d 196 (6th Cir.1978). Accord United States v. Various Slot Machines on Guam, 658 F.2d 697 (9th Cir.1981); SEC v. Spence & Green Chem. Co., 612 F.2d 896 (5th Cir.1980), cert. denied, 449 U.S. 1082, 101 S.Ct. 886, 66 L.Ed.2d 806 (1981).

Bauman argues that A.R.S. § 13-106 sets forth a procedure which conflicts with the Rules of Civil Procedure. He maintains that a rule 56 hearing on summary judgment is not permitted under §...