State Ex Rel. Brnovich v. Cisneros-Ruiz

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 8-16-2016
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
Kevin S. Krejci, Tucson
Counsel for Amicus Curiae Pima County Attorney
Alexander T. Mahon, Florence
Counsel for Amicus Curiae Pinal County Attorney
OPINION
Judge Kenton D. Jones delivered the opinion 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
the 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 period set forth in Arizona Revised Statutes (A.R.S.) section 13-4311(G)1
or within the extended period allowed to one who waives 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, in which officers found $9,000 in a bag under the passenger
seat and $3,564 in Cisneros’s pocket. The officers arrested Cisneros on
suspicion of money laundering and seized the money, truck, and trailer.
After impounding the truck, officers found and seized an additional $31,040
hidden behind the dashboard.
¶3 In September 2013, the State filed a notice of pending in rem
and in personam forfeiture with the court, a copy of which was sent to
Cisneros via certified mail.2 The following month, Cisneros filed a timely
1 Absent material changes from the relevant date, we cite a statute’s
current version.
2 By the time of the State’s notice, Cisneros was already actively
seeking the return of the seized property, having filed a complaint against
the Maricopa County Sheriff in July 2013 and, in a separate action, a
“Petition for Order to Show Cause Why Property Should not be Returned”
in September 2013. The trial court consolidated those cases with the State’s
case in December 2013.
STATE v. CISNEROS-RUIZ
Opinion of the Court
claim “against forfeiture and for return of seized property” in the State’s
forfeiture action. In his claim, Cisneros directed that all future mailings
should be sent to his legal counsel at an address he provided.
¶4 On October 31, 2013, the State filed a complaint within that
same forfeiture action. Consistent with Cisneros’s instruction, the State
mailed the forfeiture complaint and a request for waiver of service to his
attorney on November 4, 2013. That request advised Cisneros that, should
he agree to waive service and return the executed waiver form within thirty
days of November 4, 2013, he would be allowed sixty days from November
4, 2013 to file his answer. On December 11, 2013, thirty-seven days after the
State mailed the complaint and waiver request, Cisneros’s attorney signed
the waiver of service form on behalf of his client and returned it to the State.
The State then filed the waiver with the trial court. On January 14, 2014,
thirty-four days after returning the waiver of service form and seventy-one
days after the State mailed the complaint and waiver request, Cisneros filed
his answer.
¶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 we have
jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).
DISCUSSION
¶6 Although Cisneros admits his attorney signed the waiver
form, he argues the waiver was ineffective because his attorney signed and
returned the waiver form more than thirty days after the date the State
mailed it. Cisneros argues his belated waiver of service means there was
no service because he was not otherwise properly served with the
complaint. The validity 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 effected service of the complaint upon
Cisneros pursuant to the Arizona Rules of Civil Procedure. 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 5(c),
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STATE v. CISNEROS-RUIZ
Opinion of the Court
personal service is not required when, as here, the party to be served has
already appeared in the case. See Kline v. Kline, 221 Ariz. 564, 569, ¶ 18 (App.
2009) (noting, after comparing Rule 4 with Rule 5(c), “[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)). The record
reflects the State commenced the forfeiture action by filing a notice of
pending forfeiture in September 2013. The following month, Cisneros filed
a claim under the same cause number contesting the forfeiture and seeking
return of the seized property. Through the filing of his claim, Cisneros
appeared in the forfeiture case for a purpose other than contesting personal
jurisdiction and recognized the State’s forfeiture case was pending before
the State even filed its complaint. See Ariz. R. Civ. P. 4(f).
¶9 Once a party has appeared in a forfeiture case, service is
governed by Rule 5(c) and A.R.S. § 13-4307. See A.R.S. § 13-4311(A) (“The
state may serve the complaint in the manner provided by § 13-4307 or by
the Arizona rules of civil procedure.”). If a party is represented by an
attorney, Rule 5(c)(1) mandates 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 [attorney’s] last known address — in which event service is
complete upon mailing.” Ariz. R. Civ. P. 5(c)(2)(C); see also A.R.S. § 13-4307
(“Whenever notice of pending forfeiture is required under this chapter it . .
. is effective at the time of . . . the mailing of written notice.”). These rules
are consistent with Cisneros’s direction to the State within his claim that
future mailings be sent to his attorney. Because Cisneros had already made
an appearance under Rule 4(f), the State properly effected service of the
complaint by mailing it to Cisneros’s attorney.
¶10 Once served with a complaint for forfeiture, a party has
twenty days to file an answer.3 See A.R.S. § 13-4311(G) (“Within twenty
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 In re $47,611.31 U.S.
Currency, 196 Ariz. 1, 3-4, ¶¶ 10-16 (App. 1999) (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 to the outcome here because Cisneros did not answer until well
after twenty-five days had passed.
4
STATE v. CISNEROS-RUIZ
Opinion of the Court
days after service of the complaint, the claimant shall file and serve the
answer to the complaint.”). Therefore, upon mailing, service of the
complaint was complete, Ariz. R. Civ. P. 5(c)(2)(C) and A.R.S. § 13-4307, and
the twenty-day period for filing an answer began to run.
¶11 Cisneros argues his time for answering the complaint was
disrupted, however, because the State simultaneously sought a waiver of
service, which, he asserts, had to be returned within thirty days in order to
be effective. Otherwise, he asserts personal service was required. We
cannot accept this argument. No language within the State’s requested
waiver of service obligated the State to reject Cisneros’s waiver of service if
more than thirty days passed before he returned it. The waiver merely
informed Cisneros that “[t]he cost of service will be avoided if a signed copy
of the waiver is received by this Office within thirty (30) days after the date
. . . this Request for Waiver of Service of Summons is sent.” Although
Cisneros’s act of having previously appeared in the case obviated any
concern regarding the cost or method of service, see supra ¶¶ 8-10, the
waiver 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 [November 4, 2013].
¶12 Consistent with the waiver form’s directive, the State filed the
waiver after Cisneros’s attorney signed and returned it. That Cisneros’s
attorney signed and returned the waiver thirty-seven days after its mailing
— sixteen days after the time for filing his answer had otherwise run under
A.R.S. § 13-4311(G) — did not, as Cisneros now argues, relieve him of any
duty 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.” When Cisneros signed and returned the waiver, he foreclosed any
further concern regarding service. And even though the waiver was
returned outside the specified timeframe, the State accepted the waiver and
proceeded according to its proffered terms — extending Cisneros’s time to
answer by forty days — and we find no case law or statute precluding the
State from accepting and filing a waiver of service executed and returned
after the time period prescribed within it. Indeed, Rule 4.2(d)(2)(F) requires
only that a request for waiver of service allow the defendant “a reasonable
5
STATE v. CISNEROS-RUIZ
Opinion of the Court
time to return the waiver, which shall be at least 30 days from the date the
notice is sent.”4 (Emphasis added).
¶13 Simply stated, Cisneros’s waiver of service was not ineffective
because he returned it more than thirty days after the State mailed it, and
the timeliness of its return was no longer an issue after the State accepted
and filed it.
¶14 Had Cisneros not executed and returned the State’s requested
waiver of service or had the State rejected the waiver for its late return,
Cisneros would have had twenty days from the date of service to file an
answer, pursuant to A.R.S. § 13-4311(G). Because the State accepted and
filed the belated waiver, Cisneros had a full sixty days from the date the
complaint and request for waiver of service were sent to him to file an
answer, pursuant to Rule 4.1(c)(3). In either regard, his answer — filed
seventy-one days after November 4, 2013 — was untimely. We therefore
conclude the trial court did not err.
CONCLUSION
¶15 The order of the trial court is affirmed.
¶16 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
4 The State’s mailing of the complaint with an accompanying request
to waive service was confusing, given that service had already been effected
on Cisneros. See supra ¶¶ 8-10. Rule 5(c) governed service in this case,
obviating any need to obtain a formal waiver of service. See Rule 4.2(d)(2)
(“An individual . . . that is subject to service under paragraph (b), (c), (h), (i)
or (k) of this Rule 4.2 and that receives notice of an action in the manner
provided in this paragraph has a duty to avoid unnecessary costs of serving
the summons. To avoid costs, the plaintiff may notify such a defendant of
the commencement of the action and request that the defendant waive
service of the summons.”). The State explained within its answering brief
that it sent the waiver to Cisneros's lawyer to “afford [Cisneros] an
additional forty days within which to file an answer.” Given that Cisneros
had already been served pursuant to Rule 5(c), if the State wished to afford
Cisneros more time to respond, it did not need to re-serve him; it could have
simply offered him an extension of time to answer the complaint.
6
STATE v. CISNEROS-RUIZ
Opinion of the Court
reasonable attorney fees.” Accordingly, the State is awarded its costs and
reasonable attorneys’ fees upon compliance with ARCAP 21(b).
Amy M. Wood • Clerk of the court
FILED: AA
7