Magone v. Aul , 51 State Rptr. 1535 ( 1994 )

No. 94-275
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
DANIEL L. MAGONE, SHERIFF OF
MISSOULA COUNTY, STATE OF MONTANA,
Plaintiff and Respondent,
v.
THOMAS AUL, DEC 29 1994
Defendant and Appellant.
22 3midi
CLERK OF SUPREME COURT
STATE OF MONTANA
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John W. Larson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Terry G. Sehestedt, Missoula, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Jennifer
Anders, Assistant Attorney General, Helena, Montana
Karen Townsend, Deputy County Attorney, Missoula,
Montana
Submitted on Briefs: October 13, 1994
Decided: December 29, 1994
Filed:
Justice William E. Hunt, Sr., delivered the Opinion of the Court.
Petitioners instituted a forfeiture action against Ellen Au1
in the Fourth Judicial District Court, Missoula County. The
Missoula County Sheriff's Department seized $3000 in cash from
Ellen while she was being booked for purchasing marijuana from an
informant. Ellen committed suicide eight months later. Thomas Au1
appears as Ellen's successor in interest. Thomas appeals the
District Court's denial of his motion for summary judgment. We
reverse.
The issue on appeal is whether the District Court properly
denied Thomas's motion for summary judgment.
In May 1990, Thomas and Ellen Au1 were charged in Missoula
County with possession of marijuana with the intent to sell. On
November 2, 1990, while on bail and awaiting trial on the May 1990
charges, Ellen purchased one-quarter ounce of marijuana from an
undercover police informant. Detectives of the Missoula County
Sheriff's Department monitored the transaction between Ellen and
the informant and arrested Ellen. At the jail, officers discovered
$3000 in cash in Ellen's possession. The officers seized the cash,
and the instant forfeiture proceedings were initiated.
On December 18, 1990, Ellen filed a verified response to the
petition for forfeiture, denying all of the allegations of the
petition and affirmatively alleging that the money seized was not
used for the purposes alleged by the Sheriff's Department.
In May 1991, a jury found Thomas and Ellen guilty of the May
1990 charges. Before sentencing, Thomas and Ellen fled Missoula
2
and subsequently were arrested in Missouri. Ellen committed
suicide in jail in Missouri. Thomas was brought back to Montana.
On January 31, 1992, Ellen's attorney moved for summary
judgment against the petitioners. The District Court denied the
motion, ruling that genuine issues of material fact existed
concerning the source and intended use of the $3000 seized and
concerning which underlying drug transaction--the May 1990
transaction or the November 1991 transaction--gave rise to the
forfeiture action.
On April 28, 1992, Thomas moved for substitution of party in
the forfeiture action, stating that he was Ellen's surviving spouse
and sole heir and that he was entitled to payment or delivery of
her property and estate. On June 19, 1992, the parties stipulated
to the substitution.
On July 9, 1992, Thomas moved for summary judgment. Thomas
and his parents, David and Margaret Aul, each submitted sworn
affidavits stating that, in October 1990, David and Margaret had
given Thomas and Ellen $3300 in cash as an anniversary gift. David
and Margaret attached a copy of a bank receipt showing that they
withdrew $3300 from their account on October 2, 1990. Thomas
stated that the $3000 seized from Ellen was the gift money. David
and Margaret stated that they had intended the money to be used to
purchase a trailer, and Thomas stated that he and Ellen intended at
all times to use the money for that purpose. The State responded
by questioning the veracity of the affidavits and arguing that the
true source of the cash was Thomas and Margaret's extensive drug-
3
related activities. The District Court denied Thomas's motion for
summary judgment, and Thomas appeals.
Did the District Court properly deny summary judgment?
Our standard in reviewing a grant or denial of summary
judgment is the same as that initially utilized by the district
court. Cooper v. Sisters of Charity (Mont. 1994), 875 P.2d 352,
353, 51 St. Rep. 484, 485. Summary judgment is proper when there
is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.
On a summary judgment motion, the movant bears the initial burden
of proof; if the movant meets that burden of proof, the burden then
shifts to the non-moving party. Koepplin v. Zortman Mining (Mont.
1994), 881 P.2d 1306, 1309, 51 St. Rep. 880, 882. Once the burden
has shifted from the movant, the non-moving party must come forward
with "substantial evidence" raising a genuine issue of fact.
Thornton v. Songstad (1994), 263 Mont. 390, 397-98, 868 P.Zd 633,
637. "When raising the allegations that disputed issues of fact
exist, the non-moving party has an affirmative duty to respond by
affidavits or other sworn testimony containing material facts that
raise genuine issues; conclusory or speculative statements will not
suffice." Koeonlin, 881 P.2d at 1309. The non-moving party "must
set forth specific facts and cannot simply rely upon their
pleadings . . .' Thornton, 868 P.2d at 638.
Drug forfeiture actions are civil proceedings to which the
rules of civil procedure, including Rule 56, M.R.Civ.P., apply.
See State v. Baker (1983), 205 Mont. 244, 252, 667 P.Zd 416, 420.
4
Title 44, chapter 12, MCA, provides for the forfeiture of property
used or intended to be used in relation to the possession,
transfer, transportation, or concealment of dangerous drugs.
Criticalto this case is the construction of §§ 44-12-203 and -204,
MCA. Section 44-12-203 (11, MCA, provides that U [tlhere is a
rebuttable presumption of forfeiture as to all property" seized
under chapter 12 of Title 44. To rebut the presumption,
5 44-12-204, MCA, provides in pertinent part that:
(1) an owner of property who has a verified answer
on file must prove that the property was not used for the
purpose charged;
(2) an owner of property listed in 44-12-102(l) (g)
who has a verified answer on file may prove in the
alternative that the use of the property occurred without
his knowledge or consentE.1
Thomas argues that, when he submitted the three affidavits
showing the legitimate source and intended use of the seized cash,
he fulfilled the requirements of § 44-12-204, MCA. Having rebutted
the presumption, he argues that, to prevent the grant of summary
judgment in his favor, the burden then shifted to the petitioners
to present evidence sufficient to create a genuine issue of
material fact. He asserts that the petitioners failed to produce
any evidence which would create such an issue; instead, he asserts
that the petitioners merely set forth unsworn, speculative, and
conclusory allegations. According to Thomas, such allegations are
insufficient to create a genuine issue of material fact, and the
District Court improperly denied his motion for summary judgment.
The District Court concluded:
7. Neither 5 44-12-102 nor any other Montana
statute addresses the standard of proof, if any, that
5
must be met by Petitioner in establishing the facts upon
which the rebuttable presumption in § 44-12-203(l) is
based.
11. At trial, it is the owner's burden to rebut the
presumption of forfeiture by proving that the property
was not used for the purpose charged. 5 44-12-204(l),
MCA.
12. Respondent must rebut the presumption of
forfeiture by a preponderance of the evidence. Rule
301(b) (2), M.R.Evid.; Matter of the Seizure of a 1988
Chevrolet Van, 251 Mont. 180, 183, 823 P.2d 858, 860
(1991).
13. Respondent has failed to rebut the presumption
of forfeiture by [al preponderance of the evidence.
Petitioners argue that Thomas failed to meet his initial
burden, arguing that Rogers v. Swingley (1983), 206 Mont. 306,
309-10, 670 P.2d 1386, 1388, requires that
[tlo satisfy this burden, the movant must make a clear
showing as to what the truth is so as to exclude any
doubt as to the existence of any genuine issues of
material fact.
Petitioners assert that the affidavits submitted by Thomas and his
parents "do not conclusively determine the two issues relevant to
this forfeiture proceeding: the source of the $3,000 cash or its
intended use." Petitioners assert that the affidavits fail to
"conclusively link" the anniversary gift money to the money found
on Ellen at the time of her arrest. Petitioners cite Cereck v.
Albertsons, Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 512, for
the maxim that 'I [tlhe party opposing the motion for summary
judgment is entitled to the benefit of all reasonable inferences
that may be drawn from the offered proof." Under Cereck,
6
petitioners claim that the District Court properly concluded that
Thomas failed to meet his burden of proof.
The Auls' affidavits, however, are explicit and unequivocal
statements regarding the legitimate source and intended purpose of
the money seized from Ellen. Although the petitioners questioned
the veracity of the affidavits, they failed to provide the District
court with any substantial evidence challenging the sworn
statements or establishing an alternative source or intended
purpose of the money. We conclude that the sworn affidavits of
Thomas and his parents constituted sufficient evidence to rebut the
presumption of forfeiture.
Petitioners argue that even if Thomas met his initial burden,
"the State presented sufficient evidence to confirm that several
factual issues remained which required resolution at trial."
(Emphasis added.) As we stated in Thornton, 868 P.2d at 638,
"[tlhe non-moving party must set forth soecific facts and cannot
simply rely upon their pleadings . .II We conclude that
petitioners failed to set forth specific facts to refute the
affidavits and relied solely upon the speculative and conclusory
allegations contained in their pleadings. Because the petitioners
failed to show the existence of a genuine issue of material fact,
the District Court improperly denied summary judgment.
Reversed.
Justice
We concur:
a