Opinion
No. 2 CA-CV 2019-0120
04-29-2020
IN RE 2014 MAZDA M6, VIN: JM1GJ1W64E1151356, AZ LIC: CFZ8926, AND U.S. CURRENCY IN THE AMOUNT OF $209.00
COUNSEL The Law Office of Nesci & St. Louis, Tucson By Joseph P. St. Louis and Sean M. McNally Counsel for Claimant/Appellant Barbara LaWall, Pima County Attorney, Tucson By Ellen R. Brown, Deputy County Attorney Counsel for Appellee
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NOT FOR PUBLICATION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
No. C20186317
The Honorable Charles V. Harrington, Judge
APPEAL DISMISSED
COUNSEL The Law Office of Nesci & St. Louis, Tucson
By Joseph P. St. Louis and Sean M. McNally
Counsel for Claimant/Appellant Barbara LaWall, Pima County Attorney, Tucson
By Ellen R. Brown, Deputy County Attorney
Counsel for Appellee
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Vásquez concurred. BREARCLIFFE, Judge:
¶1 On appeal of this uncontested forfeiture proceeding, Allen Worthington Hensley III claims that the trial court erred in denying his Rule 60 motion to set aside judgment of forfeiture for lack of standing due to his failure to file a timely claim. For the following reasons, and for the same reasons found by the trial court, we conclude that Hensley lacks standing to appeal and that we lack appellate jurisdiction.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the trial court's ruling. In re 4030 W. Avocado, 184 Ariz. 219, 219 (App. 1995). On October 15, 2018, at the time of Hensley's arrest, the arresting officers found illegal drugs in his vehicle, a 2014 Mazda M6. The Pima County Sherriff's Department seized the vehicle and $209.00. On November 28, 2018, the state initiated an uncontested forfeiture proceeding under A.R.S. § 13-4309, by mailing a notice of pending forfeiture (the "Notice") to Hensley by certified, first class mail. Hensley received the Notice on December 1, and, on December 31, filed a notice of claim.
¶3 On January 23, 2019, the state filed an application for order of forfeiture, asserting that the statutory time period in which to file a claim to the forfeited property under A.R.S. § 13-4311 had expired and that no timely claim had been filed. Accordingly, the trial court entered an Order of Judgment of Forfeiture on January 31. On February 1, Hensley filed an opposition to the state's application for order of forfeiture, and, because the court had already entered the forfeiture judgment, Hensley also filed a motion for relief from judgment under Rule 60(b), Ariz. R. Civ. P. In that latter motion, Hensley claimed he had been entitled, under Rule 6, Ariz. R. Civ. P., to an additional five days to file his claim and thus that his claim was not untimely.
¶4 In its opposition to the Rule 60(b) motion, the state, quoting A.R.S. § 13-4307, asserted that the notice of pending forfeiture was effective at the time of its mailing on November 28. Thus, Hensley was required to file his forfeiture claim within thirty days of that mailing; not when he did—thirty-three days later—on December 31. The state also claimed that Hensley was not entitled to an extension of time pursuant to Rule 6, Ariz. R. Civ. P., because Rule 6 "has been amended and it no longer applies to the filing of a claim in forfeiture."
¶5 At oral argument on the Rule 60(b) motion, Hensley abandoned his argument that Rule 6 applied, arguing instead that his notice of claim was timely filed because he filed it within thirty days of his actual receipt of the Notice. The trial court denied Hensley's motion, stating that
[t]he statutory language of Arizona's forfeiture statutes is unambiguous—a claim must be filed within 30 days after the effective date of the Notice under A.R.S. § 13-4311, and the Notice is effective at the mailing of the written notice, not at the delivery or receipt of the Notice.It further stated that, as concluded by this court in In re $47,611.31 U.S. Currency (Counterman), 196 Ariz. 1 (App. 1999), "the date of mailing is the effective date when the notice of pending forfeiture is given or provided by certified mail. Pima County mailed the Notice via certified mail." Consequently, in accord with the state's argument, the court found that Hensley had not timely filed his claim and that he lacked standing to contest the forfeiture. The court also refused to address the application of Rule 6, Ariz. R. Civ. P., because Hensley had abandoned that argument. This appeal followed.
Standing and Appellate Jurisdiction
¶6 This court "always has jurisdiction to determine its own jurisdiction." In re Marriage of Flores & Martinez, 231 Ariz. 18, ¶ 10 (App. 2012) (quoting Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 118 (1998)); see also Morgan v. Hays, 102 Ariz. 150, 152-53 (1967). A trial court's decision on standing may be raised on appeal. See, e.g., Alliance Marana v. Groseclose, 191 Ariz. 287, 289 (App. 1997). Whether an appellant has standing is a question of law we review de novo. Id. And, we review the denial of a Rule 60 request for relief from judgment for abuse of discretion. City of Phoenix v. Geyler, 144 Ariz. 323, 328 (1985).
Hensley Lacks Standing to Invoke This Court's Appellate Jurisdiction Due to an Untimely Forfeiture Claim
¶7 Section 13-4309(1) provides that "[i]f the attorney for the state in his discretion makes uncontested forfeiture available, he shall provide notice of pending forfeiture by giving notice within thirty days after seizure for forfeiture as provided in § 13-4307 . . . ." Section 13-4307 states that, "Whenever notice of pending forfeiture is required under this chapter it . . . is effective at the time of personal service, publication or the mailing of written notice, whichever is earlier . . . ." In an uncontested civil forfeiture, "[a]n owner of or interest holder in the property may elect to file . . . a claim with the court within thirty days after the notice . . . ." § 13-4309(2). If no claim is timely filed, the attorney for the state shall, as it did here, apply to the court for an order of forfeiture. A.R.S. § 13-4314(A).
Section 13-4309(2) also provides that the owner or interest holder in the property may elect to file a petition for remission or mitigation of forfeiture. However, neither was filed here.
¶8 Hensley argues that our decision in Counterman concludes that a claim in forfeiture is timely if filed within thirty days of a potential claimant's receipt of the notice of pending forfeiture. He argues that, under Counterman, "the receipt of the document . . . is the triggering event under the forfeiture statutes." Counterman, however, supports the trial court's application of § 13-4307.
Counterman was a judicial forfeiture action under § 13-4311(D) not, as this case, an uncontested forfeiture action under § 13-4309. 196 Ariz. 1, ¶¶ 1, 4. Consequently, Counterman's holding as to § 13-4311 is inapplicable.
¶9 In Counterman, the state initiated a judicial forfeiture action in the superior court on August 22 by filing a notice of seizure for forfeiture and a notice of pending forfeiture as to seized cash. 196 Ariz. 1, ¶ 2. On August 26, it mailed a copy of the notice to the Countermans. Id. The Countermans received that notice on September 2. Id. On September 28, the state filed an in rem complaint for forfeiture and on September 29, filed an application for order of forfeiture. Id. The Countermans filed their claim on September 30. Id. We rejected the Countermans' contention "that their claim was timely because it was filed within thirty days of the date they received the notice of pending forfeiture in the mail." Id. ¶ 6. Instead, we held "that under A.R.S. section 13-4311(D), the claim must be filed within thirty days after the effective date of the notice of pending forfeiture. When the notice is given or provided by certified mail, the effective date is the date of mailing." Id. ¶ 9.
¶10 In accord with the plain language of § 13-4307 and Counterman, when a notice of forfeiture is served by certified mail, the thirty-day period in which to file a claim under § 13-4309 begins to run on the date of mailing. Thus, Hensley's claim, filed thirty-three days after the mailing of the notice of pending forfeiture, was untimely.
¶11 Given the untimeliness of Hensley's claim, our reasoning in State ex rel. Brnovich v. Culver, 240 Ariz. 18 (App. 2016) applies here. In Culver, the state served Culver with notice of pending forfeiture of a sum of currency by both certified mail and personal service. Id. ¶ 2. More than thirty days later, after no claim to the currency was filed, the state sought and received from the court an order of forfeiture. Id. Ultimately, Culver filed a motion to set aside the judgment under Rule 60, Ariz. R. Civ. P. Id. ¶ 3. The trial court denied the motion because Culver had failed to file a timely and sufficient claim under A.R.S. § 13-4311(D) and (E). Id. On Culver's appeal from the denial of the Rule 60 motion, this court concluded, in pertinent part, that, because Culver had failed to file a claim within thirty days of service of the notice of pending forfeiture he was not a party to the forfeiture action, could not seek relief under Rule 60, and, consequently, did not have standing to appeal a denial of that Rule 60 motion. Id. ¶¶ 6-7. We then dismissed the appeal for lack of appellate jurisdiction. Id. ¶ 8. As we concluded,
One must be a party to [the] action and have standing to contest a forfeiture action. Standing is acquired in a civil forfeiture action by alleging an interest in the property. An owner or interest holder in property subject to forfeiture asserts their interest by timely filing a claim against the property. . . . . Once the owner timely "files a proper claim, he becomes a 'claimant' and is entitled to a hearing to adjudicate the validity of his interest" in the property. . . .Id. ¶¶ 5-6 (citations omitted) (quoting In re $70,269.91 U.S. Currency, 172 Ariz. 15, 20 (App. 1991), and then Counterman, 196 Ariz. 1, ¶ 4); see also State ex rel. Goddard v. Ochoa, 224 Ariz. 214, ¶ 21 (App. 2010) ("Because [appellant's] verified claim was not timely filed, he lacks standing to further contest the forfeiture action."); Noriega v. Machado, 179 Ariz. 348, 353 (App. 1994) (A person that fails to become a party "d[oes] not have standing to contest the forfeiture based on lack of probable cause, unconstitutionality of the forfeiture statutes, or any other grounds.").
. . . "If the claim is not timely filed, the person does not become a claimant and lacks standing to contest the forfeiture."
¶12 Here, because Hensley's claim in forfeiture was untimely, like Culver, he was not a party to the forfeiture action and lacked standing to seek relief from the forfeiture judgment in the trial court. And, because he lacked standing to seek relief from judgment in the trial court, he similarly lacks standing to invoke our appellate jurisdiction to review the trial court's action. Id. Consequently, because we lack appellate jurisdiction, we must dismiss the appeal. See id.; see also Robinson v. Kay, 225 Ariz. 191, ¶ 4 (App. 2010) ("[W]e must dismiss an appeal over which we lack jurisdiction . . . .").
Hensley's Untimeliness is Not Forgiven by Excusable Neglect
¶13 Despite the untimeliness of his claim below under A.R.S. § 13-4307, Hensley argues that "even if a Court could find that the filing was late, [he] can easily establish excusable neglect" because "Mr. Hensley's Counsel calculated the 30-day response time afforded by A.R.S. § 13-411(D), and [Counterman]." We do not agree.
Although Hensley made this argument below, the trial court did not specifically rule on whether there was excusable neglect. However, it is implicit in the court's denial of Hensley's motion for Rule 60(b) relief that it did not find excusable neglect. Indeed, the court in its ruling stated, "The statutory language of Arizona's forfeiture statutes is unambiguous . . . ."
¶14 Section 13-4309(3)(c) provides that the notice of claim filed by an owner or interest holder in the property must comply with the requirement in A.R.S. § 13-4311(E) and (F). Section 13-4311(F) states "[n]o extension of time for the filing of a claim may be granted." Consequently, even if the trial court could find Hensley's delay "excusable" for the purposes of granting relief under Rule 60(b), his claim in forfeiture would only be valid if the court also retroactively granted him an extension to file his claim through December 31, 2018. Any such extension, however, is statutorily barred. See § 13-4311(F).
On appeal, Hensley further argues that he is entitled to an additional five days to file his claim pursuant to Rule 6(c), Ariz. R. Civ. P. However, as the trial court noted, during oral argument, Hensley abandoned this argument. Although we could, in our discretion, address this argument despite abandonment, we will not do so here. See City of Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. 544, n.9 (2005).
Disposition
¶15 For the foregoing reasons, we dismiss this appeal for lack of jurisdiction.