Opinion
2 CA-CV 2012-0176
08-02-2013
In re ONE RESIDENCE LOCATED AT 9220 S. RINCON MESA DR. (PC) E133' OF N2 S2 SE4 NE4 1 AC SEC 33-15-16 aka RINCON MESA EST E133' OF N2 S2 LOT 6 RS 2/10, RECORDED IN THE OFFICE OF THE PIMA COUNTY RECORDER IN DOCKET 11768 AT PAGE 965, INCLUDING ALL BUILDINGS, FIXTURES, STRUCTURES, AND APPURTENANCES THERETO.
Barbara LaWall, Pima County Attorney By Robin W. Schwartz Attorneys for Appellee Law Office of Paul Gattone By Paul J. Gattone Attorney for Appellants
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24.
MEMORANDUM DECISION
Not for Publication
Rule 28, Rules of Civil
Appellate Procedure
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. C20123586
Honorable Charles V. Harrington, Judge
AFFIRMED
Barbara LaWall, Pima County Attorney
By Robin W. Schwartz
Tucson
Attorneys for Appellee
Law Office of Paul Gattone
By Paul J. Gattone
Tucson
Attorney for Appellants
VÁSQUEZ, Presiding Judge. ¶1 In this civil forfeiture action, appellants Randall Smith, Brandon Smith, and Dustin Smith (collectively the Smiths) appeal from the trial court's judgment forfeiting two parcels of real property, various items of personal property, and $14,075 in cash. On appeal, the Smiths contend the court erred by striking their claim on forfeiture for failure to include a proper verification rather than allowing them to amend the claim. For the reasons stated below, we affirm.
Factual Background and Procedural History
¶2 We view the facts in the light most favorable to upholding the trial court's judgment. In re $26,980.00 U.S. Currency, 199 Ariz. 291, ¶ 2, 18 P.3d 85, 87 (App. 2000). In April 2012, the Counter Narcotics Alliance executed search warrants at Randall's residence at 13460 E. Kahlua and Brandon's residence at 9220 S. Rincon Mesa Drive, both in Pima County, "regarding possible illegal marijuana growing operations." As a result of those searches, officers seized more than one-hundred marijuana plants from each residence, as well as personal property and $14,075 in cash. In May 2012, the state initiated uncontested civil forfeiture proceedings against the personal property and cash. On May 25, 2012, after receiving the notice of pending forfeiture, Randall and Brandon submitted petitions for remission or mitigation of forfeiture to the state. ¶3 The state subsequently constructively seized for forfeiture the two parcels of real property "by recording an In Rem Notice of Seizure for Forfeiture in the Pima County Recorder's Office." On June 5, 2012, the state initiated the current in rem forfeiture action pursuant to A.R.S. § 13-4311 by filing in the Pima County Superior Court a notice of seizure for forfeiture and notice of pending forfeiture against the real property, personal property, and cash. The Smiths were served notice of the pending forfeiture on June 11, 2012, and, on that same day, the state also served Randall and Brandon with a declaration of forfeiture as to the uncontested proceeding. On July 3, 2012, the Smiths submitted to the state a petition for remission or mitigation of forfeiture, bearing incorrect criminal case numbers. The state contacted the Smiths' attorney, notifying him that the document was "improper" and providing the civil cause number. ¶4 A few days later, the Smiths filed a claim on forfeiture with the trial court under the civil cause number. The state subsequently moved to strike the claim, arguing it "[wa]s not properly verified" because the verification pages were "simply copies" of the verification pages attached to the May 25 and July 3 petitions. Shortly thereafter, the Smiths moved to amend their claim on forfeiture to correct any "potential technical defect." They also opposed the state's motion to strike, arguing that "[t]here is nothing in § 13-4311(E) dealing with the form of the verification or the date on which it is signed, only that there be a signed verification" and that their claim did include signed verifications. ¶5 After a hearing, the trial court granted the motion to strike and denied the motion to amend. The court explained:
The statutes on this issue are very unforgiving. A.R.S. § 13-4311(E) states, "The claim shall be signed by the claimant under penalty of perjury and shall set forth the following . . . " (emphasis added). Here the claim itself is not verified. A different document, the Petition for Remission orThe state subsequently moved for an order of forfeiture "because the statutory time periods . . . ha[d] expired" and the "claims that had been filed relating to [the] property [were] stricken." The court entered a judgment of forfeiture on September 27, 2012. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21 and 12-2101(A)(1).
Mitigation of Forfeiture, is verified and the dates . . . to those verifications do not coincide with the Claim on Forfeiture. This does not comply with the statute and the statute is clear in its requirements.
Discussion
¶6 The Smiths argue the trial court erred by striking their claim on forfeiture and denying their motion to amend because "the only defect [in the claim] was a technical defect." We generally review a trial court's decision to strike pleadings for an abuse of discretion. Dowling v. Stapley, 221 Ariz. 251, ¶ 45, 211 P.3d 1235, 1250 (App. 2009). Likewise, we review the denial of a motion to amend for an abuse of discretion. Dube v. Likins, 216 Ariz. 406, ¶ 24, 167 P.3d 93, 102 (App. 2007). But a trial court's factual findings will not be disturbed unless clearly erroneous. In re $315,900.00 U.S. Currency, 183 Ariz. 208, 211, 902 P.2d 351, 354 (App. 1995). ¶7 This court previously has considered the circumstances under which a trial court should allow claimants to amend a forfeiture claim that fails to meet the requirements of § 13-4311(E). In re $70,269.91 U.S. Currency (Benson), 172 Ariz. 15, 20, 833 P.2d 32, 37 (App. 1991). In Benson, we said the claimant "must satisfy two primary substantive concerns": (1) "the claimant must claim and verify a specific property interest" and (2) "the claimant must properly and timely file the claim." 172 Ariz. at 20, 833 P.2d at 37. We explained that, once these substantive requirements are met, the trial court may permit a claimant to amend a claim to "correct technical inadequacies." Id. at 20-21, 833 P.2d at 37-38. We thus concluded, "[a] trial court should exercise its discretion to grant a claimant time to amend a technically deficient claim when 'the goals underlying the time restriction and the verification requirement are not thwarted.'" Id. at 21, 833 P.2d at 38, quoting United States v. 1982 Yukon Delta Houseboat, 774 F.2d 1432, 1436 (9th Cir. 1985). In reaching this conclusion, we noted that although § 13-4311(F) prohibits the court from extending the time for filing a claim, it "does not deprive a trial court of discretionary power to grant a claimant additional time to perfect a timely claim that is in substantive, but not technical, compliance" with § 13-4311(E). Benson, 172 Ariz. at 21, 833 P.2d at 38. ¶8 The Smiths acknowledge their claim on forfeiture contained a defect but contend it "met basic substantive concerns" and "substantially complied" with the requirements of § 13-4311(E). They maintain the defect was an "incorrect date" on the verifications, which they describe as a "technical defect" because that information is not even required by § 13-4311(E). Relying on Benson, 172 Ariz. at 21, 833 P.2d at 38, the Smiths therefore argue the trial court should have granted their motion to amend, rather than striking the claim. The state responds that the verifications attached to the Smiths' claim did not merely include the wrong date, but were "created for and previously attached to other documents." Accordingly, the state argues the trial court found correctly that the claim on forfeiture was unverified. And, "[b]ecause the lack of a verification is not a technical deficiency," the state asserts the Smiths "ha[d] no right to amend" their claim. ¶9 We review de novo the trial court's interpretation and application of a statute. In re $315,900.00 U.S. Currency, 183 Ariz. at 211, 902 P.2d at 354. In interpreting the meaning of a statute, we seek to discern the legislature's intent, "'look[ing] to the plain language of the statute . . . as the best indicator'" of that intent. State ex rel. Goddard v. Ochoa, 224 Ariz. 214, ¶ 9, 228 P.3d 950, 953 (App. 2010), quoting Fragoso v. Fell, 210 Ariz. 427, ¶ 7, 111 P.3d 1027, 1030 (App. 2005). "[I]f the language is clear and unambiguous, 'we give effect to that language'" and apply it without resorting to other methods of statutory construction. Id., quoting Fragoso, 320 Ariz. 427, ¶ 7, 111 P.3d at 1030. ¶10 A judicial in rem forfeiture proceeding is commenced when the state files a verified complaint and provides owners and interest holders with notice of the pending forfeiture. § 13-4311(A), (C). An owner or interest holder may, within thirty days after being served with the notice, file a claim on forfeiture in order to obtain "a hearing to adjudicate the validity of his claimed interest in the property." § 13-4311(D). Pursuant to § 13-4311(E), "[t]he claim shall be signed by the claimant under penalty of perjury and shall set forth" certain information enumerated in that statute. Section 13-4311(F) prevents the court from extending the time for filing a claim. ¶11 The language of § 13-4311(E) is clear and unambiguous. Accordingly, we must apply it as written. See Goddard, 224 Ariz. 214, ¶ 9, 228 P.3d at 953. As we have noted, the statute requires the claimant to sign "[t]he claim . . . under penalty of perjury." § 13-4311(E); see also Democratic Party of Pima Cnty. v. Ford, 228 Ariz. 545, ¶ 9, 269 P.3d 721, 724 (App. 2012) ("Generally, the use of the word . . . 'shall' denotes a mandatory provision."). Accordingly, the claim must be verified. See, e.g., Benson, 172 Ariz. at 20, 833 P.2d at 37 ("the claimant must claim and verify a specific property interest"); State ex rel. McDougall v. Superior Court, 173 Ariz. 385, 387, 843 P.2d 1277, 1279 (App. 1992) (noting § 13-4311(E) expressly requires claimant's verified signature). ¶12 In McDougall, this court addressed whether a forfeiture claim must be verified by the claimant or whether it is sufficient for it to be verified by counsel or another person familiar with the facts. 173 Ariz. at 385, 843 P.2d at 1277. Applying Rule 11(b), Ariz. R. Civ. P., which allows someone with personal knowledge to verify a pleading on the party's behalf, the trial court concluded the forfeiture claim had been properly verified by claimant's counsel. 173 Ariz. at 386, 843 P.2d at 1278. We rejected the trial court's conclusion, explaining that the rules of civil procedure "apply generally, but not entirely, to in rem forfeiture proceedings." 173 Ariz. at 387, 843 P.2d at 1279; see also § 13-4311(B) ("Judicial in rem forfeiture proceedings are . . . governed by the Arizona rules of civil procedure unless a different procedure is provided by law."). Because § 13-4311(E) expressly requires the claimant's signature, we said Rule 11(b) did not apply and the claimant must sign the claim himself. McDougall, 173 Ariz. at 387, 843 P.2d at 1279. ¶13 Here, although the Smiths signed the verifications attached to their claim on forfeiture, those verifications nonetheless do not verify the claim. The trial court found that "[a] different document," not the claim on forfeiture, "[wa]s verified." The Smiths do not address on appeal the court's finding of this substantive defect. And, they have not provided us with a transcript of the hearing. See Ariz. R. Civ. App. P. 11(b). We thus assume the missing transcript supports the court's findings and conclusions. See Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995). Moreover, the Smiths concede that the verifications for Randall and Brandon "were copies of the verification page[s]" from their May 25 petitions in the uncontested forfeiture proceeding relating to the personal property and cash. They also concede that the verification for Dustin was for the July 3 petition for remission or mitigation of forfeiture which "predated" their claim filed in the judicial proceedings. A signature page verifying a prior document does not meet the plain language of § 13-4311(E), which requires the claimant to sign "[t]he claim under penalty of perjury." When a signature page for a different document is attached, the claimant is not verifying under penalty of perjury that the claim filed in the civil action is true and correct. Cf. State v. Johnson, 184 Ariz. 521, 526, 911 P.2d 527, 532 (App. 1994) (certification should be "contemporaneous with and unique to the production of the specific record"). ¶14 A forfeiture claim "must be verified on oath or solemn affirmation because '[t]he danger of false claims in these cases is substantial.'" Benson, 172 Ariz. at 20, 833 P.2d at 37, quoting Baker v. United States, 722 F.2d 517, 519 (9th Cir. 1983). We acknowledge that this danger is somewhat mitigated when, as here, the claimants verified an interest in the property in prior petitions for remission or mitigation of forfeiture. But a claim on forfeiture could differ from a prior petition—either accidentally or intentionally—which underscores the importance of a claimant reviewing and verifying the claim. See also State v. Jackson, 210 Ariz. 466, ¶ 17, 113 P.3d 112, 116 (App. 2005) ("There is a difference between a 'claim' and a 'petition for remission or mitigation.'"). Although the Smiths asserted below that their claim on forfeiture contained "the exact same information" as the prior petitions, they have not raised this argument in their opening brief. See Dawson v. Withycombe, 216 Ariz. 84, n.11, 163 P.3d 1034, 1050 n.11 (App. 2007) (arguments not raised in opening brief waived). And, in any event, the prior petitions are not part of our record on appeal. See Baker, 183 Ariz. at 73, 900 P.2d at 767 (we assume missing documents support trial court's findings and conclusions). Accordingly, the record on appeal does not support the Smiths' assertion that they verified the same information as contained in the claim. ¶15 In sum, "[t]he legislature has defined, in explicit terms, the elements needed to assert a claim in a forfeiture action, and this court must enforce the plain language of the statute." Benson, 172 Ariz. at 20, 833 P.2d at 37. Verification of a property interest in a forfeiture claim is a statutory, substantive requirement. See § 13-4311(E); Benson, 172 Ariz. at 20, 833 P.2d at 37. But, as the trial court found, the Smiths' claim on forfeiture "[wa]s not verified." Accordingly, the court did not abuse its discretion in striking the claim and denying the motion to amend. See Dowling, 221 Ariz. 251, ¶ 45, 211 P.3d at 1250; Dube, 216 Ariz. 406, ¶ 24, 167 P.3d at 102.
The state preliminarily contends the Smiths are arguing "for the first time on appeal that an 'incorrect' or 'invalid' date on a verification is a technical defect." Generally, arguments raised for the first time on appeal are untimely and deemed waived. See Orfaly v. Tucson Symphony Soc'y, 209 Ariz. 260, ¶ 15, 99 P.3d 1030, 1035 (App. 2004). "The waiver rule, however, is merely one of procedure, not jurisdiction." Yarbrough v. Montoya-Paez, 214 Ariz. 1, n.6, 147 P.3d 755, 762 n.6 (App. 2006). Although the Smiths' position may not have been as clear below as it is now, the argument was sufficiently raised. In their motion to amend, the Smiths referred to any potential defect as "technical." And, in their opposition to the motion to strike, the Smiths asserted that their verifications were proper because § 13-4311(E) does not require any particular form or date. In any event, we need not determine whether an incorrect date is a technical defect under Benson because, for the reasons discussed below, we agree with the trial court's conclusion, which the Smiths do not address on appeal, that the claim was not verified properly for other, substantive, reasons.
The information includes: (1) the caption of the proceeding and the claimant's name; (2) the address at which the claimant will accept mail; (3) the nature and extent of the claimant's property interest; (4) the date, the identity of the transferor, and the circumstances surrounding the claimant's acquisition of the property interest; (5) the statutory basis for asserting that the property is not subject to forfeiture; (6) facts supporting each assertion; (7) any additional facts supporting the claim; and (8) the relief sought. § 13-4311(E).
Similarly, in its answering brief, the state contends that the Smiths' reliance on the "liberal amendment policy" of Rule 15(a), Ariz. R. Civ. P., in the motion to amend "is misplaced." But the Smiths do not raise this argument on appeal, and we do not address it further.
Notably, had the Smiths responded to the state's notice of pending forfeiture by filing a claim with the trial court in compliance with § 13-4311(E) and (F), they would not be required to file a "duplicate or repetitive" claim with the court after the state initiated judicial forfeiture proceedings. A.R.S. § 13-4309(6)(a) ("The judicial proceedings shall adjudicate all timely filed claims."). The statute does not make the same allowance for petitions for remission or mitigation of forfeiture in response to a notice of pending forfeiture.
--------
Disposition
¶16 For the foregoing reasons, we affirm.
______________________
GARYE L. VÁSQUEZ, Presiding Judge
CONCURRING: ______________________
JOSEPH W. HOWARD, Chief Judge
______________________
VIRGINIA C. KELLY, Judge