State v. Cisneros-Ruiz ( 2016 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In the Matter of:
2000 PETERBILT TRACTOR & TRAILER, WA LIC: 19601RP, VIN:
1XPSD69X2YD479117; $12,500.00 U.S. CURRENCY; SEIZED IN
MCSO #13-073240.
STATE OF ARIZONA ex rel. MARK BRNOVICH, Plaintiff/Appellee,
v.
RAFAEL CISNEROS-RUIZ, a single man, Claimant/Defendant/Appellant.
No. 1 CA-CV 14-0763
FILED 3-15-2016
Appeal from the Superior Court in Maricopa County
No. CV2013-009164; CV2013-012378; CV2013-012889 (Consolidated)
The Honorable Dawn M. Bergin, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Kenneth R. Hughes
Counsel for Plaintiff/Appellee
Thomas S. Hartzell, Tucson
Counsel for Claimant/Defendant/Appellant
STATE v. CISNEROS-RUIZ
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Patricia A. Orozco joined.
J O N E S, Judge:
¶1 Rafael Cisneros-Ruiz appeals the trial court’s order granting
an in rem forfeiture of currency, a semi-truck, and a trailer. Cisneros argues
he did not timely waive service and that, because he was not thereafter
properly served, he was not required to answer the State’s complaint within
the limitations period set forth in Arizona Revised Statutes (A.R.S.) section
13-4311(G)1 or the extended period allowed in exchange for waiving
service. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In April 2013, law enforcement officers performed a traffic
stop on a semi-truck Cisneros was driving. Cisneros consented to a search
of the truck, and the officers found $9,000 in a bag under the passenger seat.
The police also found $3,564 in Cisneros’s pocket. Cisneros was arrested on
suspicion of money laundering, and the money, truck, and trailer were
seized. An additional $31,040 was discovered hidden behind the
dashboard after the truck was impounded, and these funds were also
seized.
¶3 In September 2013, the State filed a notice of pending in rem
and in personam forfeiture, a copy of which was sent to Cisneros via certified
mail.2 The following month, Cisneros filed a claim “against forfeiture and
for return of seized property” in the State’s forfeiture action. In his claim,
1 Absent material changes from the relevant date, we cite a statute’s
current version.
2 Cisneros was already actively seeking the return of this property
having previously filed in two separate actions a complaint in July 2013
against the Maricopa County sheriff and a “Petition for Order to Show
Cause Why Property Should Not be Returned” in September 2013. The trial
court consolidated these cases with the State’s case in December 2013.
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STATE v. CISNEROS-RUIZ
Decision of the Court
Cisneros directed that all future mailings be sent to his legal counsel at an
address he provided.
¶4 On October 31, 2013, the State filed a complaint in the
forfeiture action. On November 4, 2013, the State mailed the forfeiture
complaint to Cisneros at the address he had provided in his claim. The
complaint was accompanied by a request for waiver of service pursuant to
Arizona Rule of Civil Procedure 4.1(c). Thirty-seven days after the
complaint and waiver request were mailed, on December 11, 2013,
Cisneros’s attorney signed the waiver of service form for Cisneros and
returned it to the State. Then, on January 14, 2014 — thirty-four days after
his attorney returned the waiver of service form and seventy-one days after
the complaint and waiver request were mailed to him — Cisneros filed an
answer to the forfeiture complaint.
¶5 In February 2014, the State filed an application for an order of
in rem forfeiture pursuant to A.R.S. § 13-4311(G) alleging Cisneros’s answer
was untimely. After oral argument, the trial court granted the State’s
application, dismissed Cisneros’s claims, and ordered all property seized
from Cisneros be forfeited in rem. Cisneros timely appealed, and, because
Cisneros made a timely claim against the property pursuant to A.R.S. § 13-
4311, we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and
-2101(A)(1). See State ex rel. Goddard v. Ochoa, 224 Ariz. 214, 215, 217, ¶¶ 6,
10 (App. 2010) (noting a person must make a timely and valid claim against
seized property under A.R.S. § 13-4311 in order to have standing to contest
a forfeiture action) (citing In re $47,611.31 U.S. Currency, 196 Ariz. 1, 2, ¶ 4
(App. 1999)).
DISCUSSION
¶6 Cisneros asserts his waiver of service was ineffective because
the waiver form was signed and returned outside the thirty-day window
specified within the waiver form, and therefore no deadline to file an
answer had been triggered because he was not otherwise served with the
complaint. Interpretation of the effectiveness of a waiver of service is a
question of law, which we review de novo. See Duckstein v. Wolf, 230 Ariz.
227, 282, ¶ 8 (App. 2012) (noting the interpretation of court rules requires de
novo review) (citing State v. Bryant, 219 Ariz. 514, 516, ¶ 4 (App. 2008), and
Vega v. Sullivan, 199 Ariz. 504, 507, ¶ 8 (App. 2001)).
¶7 The State argues it could have served Cisneros pursuant to
either the procedures set forth in A.R.S. § 13-4307 or the Arizona Rules of
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STATE v. CISNEROS-RUIZ
Decision of the Court
Civil Procedure and that service of a summons was unnecessary here. We
agree.
¶8 Pursuant to A.R.S. § 13-4311(A), the State may serve a
forfeiture complaint “in the manner provided by [A.R.S.] § 13-4307 or by
the Arizona rules of civil procedure.” (Emphasis added). Under Rule 4 or
4.1, personal service is not required when, as here, a party has already
appeared in a case. See Kline v. Kline, 221 Ariz. 564, 569, ¶ 18 (App. 2009)
(concluding, after comparing Arizona Rules of Civil Procedure 4 and 5(c),
and Arizona Rules of Family Law Procedure 41 and 43(C), that “[t]he rules
governing service differ significantly depending on whether a party to be
served has made an ‘appearance’”). A party appears when he “take[s] any
action, other than objecting to personal jurisdiction, that recognizes the case
is pending in court.” Id. (citing Tarr v. Superior Court, 142 Ariz. 349, 351
(1984); State ex rel. Dep’t of Econ. Sec. v. Burton, 205 Ariz. 27, 29, ¶ 8 (App.
2003); and Austin v. State ex rel. Herman, 10 Ariz. App. 474, 477 (1969)).
¶9 After an appearance is made, service is governed by Rule 5(c).
If a party is represented by an attorney, Rule 5(c) mandates that the attorney
be served “unless the court orders service on the party.” Service can be
made by “[m]ailing it via U.S. mail to the person’s last known address — in
which event service is complete upon mailing.” Ariz. R. Civ. P. 5(c)(2)(C).
These rules are consistent with Cisneros’s direction within his claim that
future mailings be sent to his attorney. Once a party is served with a
complaint for forfeiture, he has twenty days to file an answer.3 See A.R.S.
§ 13-4311(G) (“Within twenty days after service of the complaint, the
claimant shall file and serve the answer to the complaint.”).
¶10 The record reflects the State initiated the case by filing a notice
of pending forfeiture in September 2013. The following month, Cisneros
filed a claim in that same case number contesting the forfeiture and seeking
return of the seized property. By filing his claim, Cisneros appeared in the
forfeiture case for a purpose other than contesting personal jurisdiction, see
supra ¶ 8, and recognized the case was pending before the State filed its
complaint. The State therefore properly effected service of the complaint
by mailing it to Cisneros’s attorney. See Ariz. R. Civ. P. 5(c)(1), (2)(C). Upon
3 Rule 6(e) allows five extra calendar days to answer after service
authorized by Rule 5(c)(2)(C), (D), or (E). See also $47,611.31, 196 Ariz. at 3-
4, ¶¶ 10-16 (concluding Rule 6(e) applies to extend the time period for
answering a forfeiture complaint where service is completed by mail).
However, the additional time is irrelevant here because Cisneros answered
well after the twenty-five day period expired.
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STATE v. CISNEROS-RUIZ
Decision of the Court
mailing, service of the complaint was complete, Ariz. R. Civ. P. 5(c)(2)(C),
and the twenty-day limitations period for filing an answer required under
A.R.S. § 13-4311(G) began to run.
¶11 Cisneros argues this timeline was disrupted because the State
simultaneously sought a waiver of service pursuant to Rule 4.1(c), and, as
a result, neither the twenty-day time period from service, nor the sixty-day
time period from the mailing of the waiver of service, applies. We cannot
accept this argument. The fact that Cisneros’s attorney signed the waiver
thirty-six days after its mailing cannot, as Cisneros now argues, be
interpreted to mean he had no deadline to answer the complaint. Rather,
we agree with the trial court that “no rule [and] no case . . . says that if the
Defendant fails to return the waiver within the time frame set forth in the
request that it makes an ineffective waiver.”
¶12 Indeed, Rule 4.2(d)(2)(F) requires only that a request for
waiver of service allow the defendant “a reasonable time to return the waiver,
which shall be at least 30 days from the date the notice is sent.” (Emphasis
added). Consistent with this rule, the waiver at issue here simply informed
Cisneros that “[t]he cost of service will be avoided” if the waiver were
signed and returned within thirty days. The waiver also specifically
advised Cisneros:
If you comply with this request and return the signed Waiver
of Service of Summons, the waiver will be filed with the Court
and no summons will be served on you. The action will then
proceed as if you had been served on the date the waiver is
filed, and you will be required to answer or otherwise
respond to the verified amended complaint within sixty (60)
days from the date designated below [November 4, 2013].”
Consistent with the language of the waiver form, the State filed the waiver
after Cisneros’s attorney signed and returned it. Cisneros’s waiver of
service was thus not ineffective simply for having been returned more than
thirty days after the State mailed it.
¶13 Regardless of whether Cisneros had sixty days to respond as
provided under Rule 4.1(c)(3) or twenty days to respond as provided under
A.R.S. § 13-4311(G), his answer was untimely. We therefore conclude the
trial court did not err.
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STATE v. CISNEROS-RUIZ
Decision of the Court
CONCLUSION
¶14 The order of the trial court is affirmed.
¶15 The State seeks an award of attorneys’ fees and costs. Under
A.R.S. § 13-4314(F), a “claimant who fails to establish his entire interest is
exempt from forfeiture under [A.R.S.] § 13-4304” must pay “the state’s costs
and expenses of investigation and prosecution of the matter, including
reasonable attorney fees.” Accordingly, the State is awarded its reasonable
costs and attorneys’ fees upon compliance with ARCAP 21(b).
:ama
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