In Re $15,379.00 in U.S. Currency

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
IN RE $15,379 IN U.S. CURRENCY
No. 2 CA-CV 2015-0166
Filed October 18, 2016
Appeal from the Superior Court in Pinal County
Nos. CV201301603 and CV201301728 (Consolidated)
The Honorable Jason R. Holmberg, Judge
AFFIRMED IN PART;
REVERSED IN PART AND REMANDED
COUNSEL
Kenneth S. Countryman, P.C., Tempe
By Kenneth S. Countryman
Counsel for Appellant Corrina Macias
M. Lando Voyles, Pinal County Attorney
By Alex Mahon, Deputy County Attorney, Florence
Counsel for Appellee the State of Arizona
IN RE $15,379 U.S. CURRENCY
Opinion of the Court
OPINION
Chief Judge Eckerstrom authored the opinion of the Court, in which
Judge Staring and Judge Fink1 concurred.
E C K E R S T R O M, Chief Judge:
¶1 In this civil forfeiture proceeding, appellant Corrina
Macias challenges the trial court’s refusal to award attorney fees,
costs, and prejudgment interest when the proceeding terminated in
her favor. She further contends the court erred in not ordering the
state either to immediately return the currency seized from her or to
issue payment. For the reasons that follow, we reverse the court’s
order denying the immediate return of the property or an equivalent
payment, the order denying costs, and the order denying sanctions
under Rule 11, Ariz. R. Civ. P. We otherwise affirm the judgment.
Factual and Procedural Background
¶2 On May 28, 2013, a Pinal County Sheriff’s deputy seized
over $15,000 in cash from a vehicle driven by Macias’s husband,
who was also transporting a sizeable load of marijuana. Due to
defects in the resulting forfeiture action, the trial court determined it
lacked jurisdiction over the proceeding and ordered the currency
returned to Macias, with one qualification. The court specifically
ordered that the property be returned “to the extent that this
$15,379.00 is not being held as evidence in any criminal matter.”
The court subsequently denied Macias’s request for attorney fees,
costs, and expenses. It further denied her request for immediate
release of the property or an equivalent payment, again citing the
1The Hon. Thomas Fink, a judge of the Santa Cruz County
Superior Court, is authorized and assigned to sit as a judge on the
Court of Appeals, Division Two, pursuant to Arizona Supreme
Court order filed July 13, 2016.
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Opinion of the Court
pending criminal matter against her husband and the prosecutor’s
assertion that the currency was being held as evidence.
¶3 Although the trial court’s order initially lacked
certification pursuant to Rule 54(c), Ariz. R. Civ. P., we stayed the
appeal sua sponte and revested jurisdiction in the trial court to
obtain such certification. See Ariz. R. Civ. App. P. 3(b); Madrid v.
Avalon Care Ctr.-Chandler, L.L.C., 236 Ariz. 221, ¶ 5, 338 P.3d 328,
330-31 (App. 2014). With a formal judgment now included in the
appellate record, we have jurisdiction pursuant to
A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Discussion
Return of Currency or Payment
¶4 On appeal, Macias contends the state’s action is
“unlawful” and violates due process “because the state has no
legitimate basis for the refusal to issue payment” or return the
property. Regardless of whether this argument was preserved
below,2 we address its merits because doing so is necessary to avoid
an erroneous decision on appeal. See Nold v. Nold, 232 Ariz. 270,
¶ 10, 304 P.3d 1093, 1096 (App. 2013) (noting waiver a discretionary
doctrine). “[W]hen interpretation and application of statutes are
involved, we are not necessarily ‘limited to the arguments made by
the parties if that would cause us to reach an incorrect result.’”
Odom v. Farmers Ins. Co. of Ariz., 216 Ariz. 530, ¶ 18, 169 P.3d 120, 125
(App. 2007), quoting Yarbrough v. Montoya-Paez, 214 Ariz. 1, n.6, 147
P.3d 755, 762 n.6 (App. 2006).
¶5 Our forfeiture statutes generally provide that property
not subject to forfeiture must be returned.3 See A.R.S. §§ 13-4310(B),
2Inthe trial court, Macias argued her “property [was] being
wrongfully withheld by the state,” and her motion for relief cited
Arizona case law based on due process principles.
3We do not address contraband in this opinion, which is an
exception to the general rule. See State v. Gambling Equip., 45 Ariz.
112, 117-18, 40 P.2d 746, 748 (1935) (stating property without lawful
use will not be returned to owner).
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Opinion of the Court
13-4314(E). However, those statutes also implicitly recognize, as
does our case law, that the state may retain seized property as
evidence for criminal prosecutions. See A.R.S. § 13-4306(G)(2); State
v. Fifteen Slot Machines, 45 Ariz. 118, 119, 40 P.2d 748, 749 (1935); cf.
A.R.S. §§ 13-3941(C) (stolen or embezzled property), 13-4429(A), (B)
(crime victim’s property, generally). The power to seize evidence
has long existed under the common law, Smith v. Jerome, 93 N.Y.S.
202, 202-03 (N.Y. Sup. Ct. 1905), but that power is limited by the
“fundamental principle that our Constitution protects . . . against
unreasonable . . . seizures.” Search Warrants C-419847 & C-419848 v.
State, 136 Ariz. 175, 176, 665 P.2d 57, 58 (1983) (emphasis added).
Accordingly, even when a lawful arrest and seizure have occurred,
the retention of property as evidence for a criminal prosecution must
be reasonable under the Fourth and Fourteenth Amendments to the
United States Constitution. Krimstock v. Kelly, 464 F.3d 246, 250-51
(2d Cir. 2006).
¶6 Whether items are seized for civil forfeiture or criminal
prosecution, a deprivation of property occurs whenever the state
retains someone’s belongings, and the owner who is affected may be
an innocent party not involved in a criminal case. See id. at 254;
Greehling v. State, 135 Ariz. 498, 500, 662 P.2d 1005, 1007 (1982).
People therefore may seek the return of their seized property under
the Fourteenth Amendment’s Due Process Clause or article II, § 4 of
the Arizona Constitution.4 See In re Approximately $50,000, 196 Ariz.
626, ¶¶ 8, 11, 2 P.3d 1271, 1274, 1275-76 (App. 2000).
¶7 Although we have found no Arizona authority
addressing the particular issue in this case, numerous federal
appellate courts recognize that “[a] prosecutor’s right to retain
material evidence necessary for trial does not mean that prosecutors
can decide unilaterally that [the property] is material and its
retention necessary.” Krimstock, 464 F.3d at 255; accord Black Hills
Inst. of Geological Research v. U.S. Dep’t of Justice, 967 F.2d 1237,
4In addition to the statutes cited above, a person also might
seek the return of seized property through Rule 28.2, Ariz. R.
Crim. P., or A.R.S. § 13-3922, though those provisions are not
implicated here.
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Opinion of the Court
1240-41 (8th Cir. 1992) (while government “may take whatever steps
necessary to establish proof of the evidence,” government “may not
in all cases insist on holding the [property] itself as evidence to be
presented to the jury”); In re Smith, 888 F.2d 167, 168 (D.C. Cir. 1989)
(per curiam) (“bald assertion” that money has evidentiary value is
insufficient to justify withholding property). The procedural due
process framework set forth in Mathews v. Eldridge, 424 U.S. 319, 335
(1976), applies to motions to return seized property. See Krimstock,
464 F.3d at 253-54. This means, at minimum, that a trial court must
subject the state’s asserted need for property “to scrutiny for
reasonableness,” “weighing the competing interests . . . in light of
less drastic means.” Id. at 251. “If the [state]’s sole interest in
retaining . . . currency is for its use as evidence, the court should
consider whether this purpose would be equally well served by the
alternatives to holding the money itself . . . .” United States v. 608
Taylor Ave., 584 F.2d 1297, 1304 (3d Cir. 1978).
¶8 Here, the trial court did not reach the question of
reasonableness presented by Macias’s motions. She sought either
the immediate return of her currency or an equal payment because
“[m]oney is fungible.” Ariz. Dep’t of Revenue v. M. Greenberg Constr.,
182 Ariz. 397, 401, 897 P.2d 699, 703 (App. 1995), abrogated on other
grounds by Valencia Energy Co. v. Ariz. Dep’t of Revenue, 191 Ariz. 565,
¶¶ 10 & n.3, 34, 959 P.2d 1256, 1261 & n.3, 1267 (1998). She also
argued below, and the state did not dispute, that actual cash is
typically not presented as evidence in criminal cases. Such evidence
usually takes the form of photographs and photocopies, which were
in fact obtained by the state here in the related criminal case.
¶9 The record does not disclose why the prosecutor
insisted upon retaining the actual currency. The state failed to file a
written response to Macias’s request for the immediate release of the
money or repayment, and the state articulated no specific
evidentiary need for this property at the subsequent hearing. Thus,
in taking under advisement Macias’s request for immediate relief,
the trial court observed, “I don’t think that you are making an
unreasonable request, I just want to make sure under the law . . . I’m
not messing up anything in the criminal matter.” To the extent the
court believed that it was not empowered to order the relief
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Opinion of the Court
requested, or did not consider the reasonableness of retaining the
currency in light of the available alternatives, this was an error of
law representing an abuse of the court’s discretion. See State v.
Mangum, 214 Ariz. 165, ¶ 6, 150 P.3d 252, 254 (App. 2007).
Furthermore, given the state’s failure to allege any particular need to
retain the currency as evidence, the record is devoid of any ground
to support the order denying relief. See Little v. Little, 193 Ariz. 518,
¶ 5, 975 P.2d 108, 110 (1999) (“An abuse of discretion exists when the
record, viewed in the light most favorable to upholding the trial
court’s decision, is ‘devoid of competent evidence to support’ the
decision.”), quoting Fought v. Fought, 94 Ariz. 187, 188, 382 P.2d 667,
668 (1963).
¶10 On appeal, the state offers several arguments to support
the trial court’s ruling, essentially echoing the court’s observation
that “there is a division” between the benches of the superior court.
The state contends, specifically, that civil forfeiture and criminal
prosecution are “parallel” and “entirely separate” proceedings, with
a “civil trial court” lacking “jurisdiction” or “authority” to return
property held as evidence in a pending criminal case. The state
further suggests that the court could grant Macias no relief beyond
declaring her interest in the property. We are not persuaded by
these assertions, many of which the state offers in conclusory
fashion.
¶11 Proceedings to return seized property are often civil in
nature, yet that characterization does not limit a trial court’s power
to grant relief. See, e.g., Greehling, 135 Ariz. at 500, 662 P.2d at 1007.
Indeed, when a court is authorized to order the return of property, it
is irrelevant that the disposition may affect a related criminal case
over which the court does not have jurisdiction. See State ex rel.
Milstead v. Melvin, 140 Ariz. 402, 405, 682 P.2d 407, 410 (1984). But
the trial court here did not lack jurisdiction in any sense.
¶12 The superior court is a single court of general
jurisdiction, In re Approximately $50,000, 196 Ariz. 626, ¶ 7, 2 P.3d at
1274, and its administrative divisions have no effect on its
jurisdiction. Marvin Johnson, P.C. v. Myers, 184 Ariz. 98, 102, 907 P.2d
67, 71 (1995). Even when an in rem forfeiture proceeding is
improperly initiated, as happened in this case, the superior court has
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Opinion of the Court
jurisdiction to order the return of property within the state to its
owner. In re Approximately $50,000, 196 Ariz. 626, ¶ 7, 2 P.3d at 1274.
¶13 The superior court had original jurisdiction here under
article VI, § 14(3) or (11) of the Arizona Constitution, see State ex rel.
Neely v. Brown, 177 Ariz. 6, 9, 864 P.2d 1038, 1041 (1993), and could
make necessary orders pursuant to A.R.S. § 12-123(B). See In re
Approximately $50,000, 196 Ariz. 626, ¶ 8, 2 P.3d at 1274. Under the
text of § 13-4314(E), which allows compensation for an “interest” in
property, the court was not necessarily restricted to ordering the
return of the actual currency seized. See State v. Clifton Lodge No.
1174, Benev. & Protective Order of Elks of U.S., 20 Ariz. App. 512, 513,
514 P.2d 265, 266 (App. 1973) (forfeiture statutes “are to be
construed according to the fair import of their terms, with a view to
effect their object and to promote justice”); cf. A.R.S. § 12-1838
(authorizing “necessary or proper” orders for further relief based on
declaratory judgment).
¶14 Moreover, as the state conceded at oral argument, the
state has no “absolute right to retain an individual’s property,” and
it cannot justify a continued deprivation simply by asserting that the
relevant statute of limitations has not expired. State v. Salerno, 216
Ariz. 22, ¶¶ 12, 17, 162 P.3d 661, 664 (App. 2007). Rather, the state
must articulate a reasonable basis for retaining the property. See id.
¶ 19. Such a basis is lacking on the record before us. We therefore
reverse the trial court’s order denying the immediate release of the
currency or an equivalent payment.5
Attorney Fees
¶15 Macias next contends the trial court abused its
discretion by not awarding attorney fees under either Rule 11, Ariz.
R. Civ. P., or A.R.S. § 13-2314(A). We review all aspects of a court’s
5As we discuss in paragraph thirty-two and footnote seven of
this opinion, we do not address the state’s assertions concerning a
new forfeiture proceeding allegedly affecting this currency, because
no issue related to that proceeding is properly before us in this
appeal.
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Opinion of the Court
Rule 11 order for an abuse of discretion. James, Cooke & Hobson, Inc.
v. Lake Havasu Plumbing & Fire Prot., 177 Ariz. 316, 319, 868 P.2d 329,
332 (App. 1993). An abuse-of-discretion standard of review also
applies to a trial court’s decision to grant or deny fees under
§ 13-2314(A). See Hannosh v. Segal, 235 Ariz. 108, ¶ 22, 328 P.3d 1049,
1056 (App. 2014); State ex rel. Goddard v. Gravano, 210 Ariz. 101, ¶ 37,
108 P.3d 251, 260 (App. 2005).
¶16 As our supreme court stated in Boone v. Superior Court:
Rule 11 is violated by the filing of a
pleading when the party or counsel knew,
or should have known by such
investigation of fact and law as was
reasonable and feasible under all the
circumstances, that the claim or defense
was insubstantial, groundless, frivolous, or
otherwise unjustified. It is also violated by
the filing of pleadings for an improper
purpose such as those intended to harass,
coerce, extort, or delay.
145 Ariz. 235, 241-42, 700 P.2d 1335, 1341-42 (1985). The rule, in
other words, can result in sanctions if either an objective basis for a
claim is lacking or the claim was brought for an improper subjective
purpose. See In re Levine, 174 Ariz. 146, 153, 847 P.2d 1093, 1100
(1993); In re Estate of Friedman, 217 Ariz. 548, ¶ 32 & n.11, 177 P.3d
290, 298-99 & 299 n.11 (App. 2008).
¶17 Here, the trial court found two jurisdictional defects in
the forfeiture proceeding. First, the notice of pending forfeiture was
not properly served, because the law enforcement officer who issued
it did not obtain the prior authorization from the county attorney
required by A.R.S. § 13-4308(A). Second, the state’s claim was filed
seventy-two days after the seizure for forfeiture, beyond the
sixty-day limit prescribed by § 13-4308(B).
¶18 Citing these shortcomings, Macias first suggests the
attorney who initiated the forfeiture did not have a “subjective
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Opinion of the Court
basis” for believing the action was sustainable. 6 The trial court
noted, however, that there was some evidence in the record
suggesting the officer had properly contacted the attorney for the
state and the resulting notice of forfeiture was properly served.
Ultimately, because neither the officer nor the attorney could
remember the details in this particular case, the court found that
evidence deficient. But the record nonetheless supports a finding
that the attorney believed he had complied with § 13-4308(A). The
record likewise supports a finding that the state’s attorney believed
he had complied with § 13-4308(B) insofar as the state asserted in its
responsive filing, albeit mistakenly, that the proceeding was timely
initiated. We therefore have no basis to disturb the trial court’s
implicit determination under Rule 11 that the state’s attorney acted
with appropriate intentions. Furthermore, given that § 13-2314(A)
states that a trial court “may . . . award[] costs and reasonable
attorney fees” to a person who prevails in an adverse forfeiture
action, we cannot conclude the trial court erred in denying a
discretionary fee award under this provision. (Emphasis added.)
¶19 We agree with Macias, however, that the state lacked an
objective basis for initiating the untimely forfeiture proceeding. “An
attorney violates Rule 11 by filing a document that he or she knows
or should know asserts a position that ‘is insubstantial, frivolous,
groundless or otherwise unjustified.’” Cal X-Tra v. W.V.S.V.
Holdings, L.L.C., 229 Ariz. 377, ¶ 113, 276 P.3d 11, 44 (App. 2012),
quoting James, Cooke & Hobson, Inc., 177 Ariz. at 319, 868 P.2d at 332.
Compliance with this rule is measured by an objective standard of
reasonableness. Id.; Standage v. Jaburg & Wilk, P.C., 177 Ariz. 221,
230, 866 P.2d 889, 898 (App. 1993). The relevant inquiry is whether,
under the circumstances presented, a reasonably prudent attorney
would have instituted the proceeding. Smith v. Lucia, 173 Ariz. 290,
297, 842 P.2d 1303, 1310 (App. 1992). When an attorney signs a
pleading in violation of the rule, some form of sanction is required.
See Wells Fargo Credit Corp. v. Smith, 166 Ariz. 489, 497, 803 P.2d 900,
908 (App. 1990) (Rule 11 sanctions “mandatory”); see also Cal X-Tra,
6A different attorney was substituted as counsel for the state
on appeal.
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Opinion of the Court
229 Ariz. 377, ¶ 112, 276 P.3d at 44; Villa De Jardines Ass’n v. Flagstar
Bank, FSB, 227 Ariz. 91, ¶ 13, 253 P.3d 288, 293 (App. 2011).
¶20 Section 13-4308(B), as noted, requires the state to
commence a civil forfeiture proceeding within sixty days of seizing
property by a notice of pending forfeiture. We have held that the
plain language of this statute “does not allow the court to excuse the
state’s failure to timely initiate forfeiture proceedings for
‘oversight.’” In re $3,636.24, 198 Ariz. 504, ¶ 15, 11 P.3d 1043, 1045
(App. 2000).
¶21 Here, the state offered no reason for filing its complaint
nearly two weeks after this deadline. The state only mistakenly
asserted in its response to Macias’s motion—a response that was,
itself, untimely filed—that the proceeding had been timely initiated.
The proceeding had no chance of success in light of In re $3,636.24,
and counsel offered no argument to limit or modify that precedent.
Furthermore, Macias filed a claim in the trial court seeking the
return of her property during the period of time in which the state
still could initiate a timely forfeiture proceeding. On the particular
facts before us, we therefore conclude that counsel for the state
failed to conduct an adequate inquiry into the factual and legal basis
for the forfeiture action and fell below objective standards of
professional competence. See Standage, 177 Ariz. at 230, 866 P.2d at
898.
¶22 Accordingly, even when we put aside counsel’s alleged
improper delegation of duties under § 13-4308(A), we find that the
state engaged in sanctionable conduct by untimely initiating the
present forfeiture proceeding. The trial court did not explain the
grounds for its Rule 11 ruling on the record. If the court determined
no violation of the rule occurred, this would represent an error of
law and an abuse of the court’s discretion. See James, Cooke &
Hobson, Inc., 177 Ariz. at 319 n.4, 868 P.2d at 332 n.4. On remand, we
therefore direct the court to impose an appropriate sanction for the
state’s violation of Rule 11, including possible attorney fees. See
Taliaferro v. Taliaferro, 188 Ariz. 333, 341, 935 P.2d 911, 919 (App.
1996) (recognizing trial court’s discretion in fashioning sanction with
appropriate “relationship to the expenses directly caused by the
sanctionable conduct”).
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Opinion of the Court
¶23 Macias also sought an award of attorney fees under a
mandamus theory pursuant to A.R.S. § 12-2030. This statute
provides that a court must award “fees and other expenses” to a
private party who “prevails by an adjudication on the merits in a
civil action brought by the party against the state . . . to compel a
state officer . . . to perform an act imposed by law as a duty on the
officer.” § 12-2030(A).
¶24 The present forfeiture proceeding was a civil action
initiated by the state; it was not an action “brought by [a] party
against the state.” Id. Although Macias had earlier filed a “judicial
claim” seeking the release of the currency, this document was filed
within the sixty-day period of time in which the state could initiate a
forfeiture proceeding, when no legal duty existed to release the
property from its seizure for forfeiture under § 13-4308(B). See In re
Approximately $50,000, 196 Ariz. 626, ¶¶ 6-7, 10, 2 P.3d at 1274, 1275
(holding person with interest in property cannot compel forfeiture
proceeding).
¶25 An action seeks mandamus relief only “if it seeks to
compel a public official to perform a non-discretionary duty
imposed by law.” Stagecoach Trails MHC, L.L.C. v. City of Benson, 231
Ariz. 366, ¶ 19, 295 P.3d 943, 947 (2013). Absent a statutory duty to
release the currency here from its seizure for forfeiture, and given
the discretion that prosecutors generally have to retain evidence in
criminal cases, the present action did not seek relief in the nature of
mandamus. The fact that Macias prevailed in the forfeiture
proceeding and has now secured the release of her property or an
equivalent payment does not transform the proceeding into a
mandamus action. See id. ¶ 21. Thus, the trial court did not err in
refusing to grant the fees requested under the mandamus statute.
Costs
¶26 Macias also contends, as she did below, that she is
entitled to recover her costs under A.R.S. § 12-341 as “[t]he
successful party to a civil action.” We agree. An award of costs was
mandatory and not subject to the trial court’s discretion. See Roddy
v. County of Maricopa, 184 Ariz. 625, 627, 911 P.2d 631, 633 (App.
1996). Although the state filed no objection to the statement of costs
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Opinion of the Court
below, it now asserts that the expenses Macias sought to recover
cannot be awarded as taxable costs under A.R.S. §§ 12-332 and
12-341. We find the state’s contention waived and decline to address
it in the first instance. See Airfreight Express Ltd. v. Evergreen Air Ctr.,
Inc., 215 Ariz. 103, ¶ 17, 158 P.3d 232, 238 (App. 2007).
Prejudgment Interest
¶27 Macias further argues she is entitled to an award of
prejudgment interest pursuant to A.R.S. § 12-823. Rule 13(a)(7)(A),
Ariz. R. Civ. App. P., requires an appellant to provide supporting
record citations in the argument section of her opening brief.
Because Macias’s opening brief failed to provide the necessary
record citations demonstrating that she raised this issue below, we
find the argument waived on appeal. See Spillios v. Green, 137 Ariz.
443, 447, 671 P.2d 421, 425 (App. 1983).
Appellate Sanctions
¶28 Given the state’s conduct in this appeal, we ordered
briefing on whether it is appropriate for this court to impose
appellate sanctions. Having received those briefs, we now find that
sanctions in the form of appellate attorney fees are warranted
pursuant to A.R.S. § 12-349(A)(3) and Rule 25, Ariz. R. Civ. App. P.
¶29 Section 12-349(A)(3) allows a court to assess attorney
fees in a civil appeal if the state unreasonably delays the proceeding.
Here, the state unreasonably delayed the appeal by initially failing
to file a timely answering brief, failing to file any motion in response
to this court’s order dated February 5, 2016 deeming the appeal
submitted for our review, and failing to allege good cause for
reopening the case until March 31, 2016, ten days after the appeal
had been reinstated in this court following the entry of a formal
judgment. Absent a timely answering brief, this court was prepared
to treat the state as having confessed error to the debatable issues
raised. See Mahar v. Acuna, 230 Ariz. 530, ¶ 21, 287 P.3d 824, 830
(App. 2012). The state’s motion to reopen the case and allow further
briefing on appeal, although summarily granted by the clerk of this
court, did not establish good cause for the state’s delay, especially
when viewed in light of later developments. See Ariz. R. Civ.
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Opinion of the Court
App. P. 6(b)(2) (acknowledging appellate court’s power to
independently review procedural motions granted by clerk).
¶30 The state’s motion to reopen alleged two specific
grounds for its failure to act in a timely fashion: (1) the trial court
proceedings had been stayed below in response to Macias’s May 5,
2014 motion “and a final appealable judgment was precluded
thereby” and (2) the order from which the appeal was taken lacked
the necessary certification under Rule 54(c), Ariz. R. Civ. P. The first
ground was entirely without merit because the parties addressed the
trial court’s stay order at the first of three hearings held in this
proceeding. Macias clarified in December 2014 that the stay she had
requested did not apply to her motion to return the currency, and
neither the parties nor the court interpreted the stay as precluding
further hearings or orders. Moreover, if the state actually believed
that the trial court’s stay order prevented the entry of a final,
appealable judgment, the state should have filed a motion in this
court pursuant to Rule 6, Ariz. R. Civ. App. P., to dismiss the appeal
for lack of jurisdiction. Yet the state never made such a motion nor
advanced such an argument.
¶31 The state’s second ground for reopening the case was
similarly without merit because a lack of certification does not result
in a lack of appellate jurisdiction, see Madrid, 236 Ariz. 221, ¶ 5, 338
P.3d at 330-31, and the proper response to such a defect, again,
would have been to seek an appropriate order from this court by
motion pursuant to Rule 6. In sum, the state’s proffered reasons for
its delay neither explained nor excused its failure to respond to this
appeal until ten days after the appeal had come at issue for our
decision.
¶32 Macias’s time-sensitive demand for the immediate
return of her currency or an equivalent payment was a central issue
in this appeal. The state’s answering brief opposed this request for
immediate relief, however, and on June 13, 2016, the state requested
oral argument in this court. At oral argument held in July 2016, the
state then conceded for the first time that the trial court had erred by
denying the request and not actually releasing the currency. The
state further asserted for the first time that the issue was now moot
due to a new, separate forfeiture proceeding that counsel for the
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Opinion of the Court
state had filed at the end of June 2016, when its request for oral
argument in this case was still pending.7
¶33 Given that the state has, in effect, exploited its
unreasonable delay in this appeal in an apparent effort to deny
Macias the relief to which she was admittedly entitled, we find
sanctions appropriate under § 12-349(A)(3). We also find sanctions
of attorney fees appropriate under Rule 25 in order to encourage
future compliance with our rules of appellate procedure and to
discourage the dilatory conduct the state displayed in this case.
Disposition
¶34 For the foregoing reasons, we grant Macias’s appellate
costs, see § 12-341, as well as her appellate attorney fees, subject to
her compliance with Rule 21, Ariz. R. Civ. App. P. We reverse the
trial court’s orders denying Macias her costs and her request for
Rule 11 sanctions. We also reverse the trial court’s orders denying
Macias’s request for the immediate release of the currency or
equivalent payment and instruct the trial court to order such relief
forthwith. We remand the case for further proceedings on these
matters consistent with this opinion. Otherwise, we affirm the trial
court’s judgment.
7We note that it is improper to assert a mootness claim at oral
argument based on materials not included in the record on appeal.
In re Henry’s Estate, 6 Ariz. App. 183, 188, 430 P.2d 937, 942 (1967). If
a mootness claim depends on such materials, a party should file an
appropriate motion with supporting documentation in accordance
with Rule 6(a)(3). Because the state never presented a proper
mootness claim in this court, we do not address that issue.
14