Property Located at 6757 S. Burcham Ave.

IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION TWO
) 2 CA-CV 2002-0092
IN RE PROPERTY LOCATED AT 6757 S. ) DEPARTMENT A
BURCHAM AVE. )
) OPINION
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. C-20010960
Honorable Lina S. Rodriguez, Judge
AFFIRMED
John D. Kaufmann Tucson
Attorney for Appellant Remy Segura
Barbara LaWall, Pima County Attorney
By Thomas D. Rankin Tucson
Attorneys for Appellee State of Arizona
B R A M M E R, Presiding Judge.
¶1 In this in rem forfeiture action, the trial court ordered appellant Remy Segura’s real
property forfeited pursuant to A.R.S. §§ 13-2301(D)(4), 13-2314(G), 13-3413, and 13-4301
through 4315. Segura appeals from the trial court’s denial of his motion for new trial, arguing
the court abused its discretion by allowing the state to call a witness and to introduce fingerprint
evidence, neither of which had been timely disclosed to him before trial. The state argues that,
because Segura failed to comply with § 13-2314(M) by not timely serving the attorney general
with a copy of the notice of appeal and the opening brief, this court lacks jurisdiction and should
dismiss the appeal.1 We conclude we have jurisdiction and affirm the trial court’s order.
Factual Background
¶2 We view the facts in the light most favorable to sustaining the trial court’s order.
In re United States Currency of $26,980.00, 199 Ariz. 291, 18 P.3d 85 (App. 2000). In
December 2000, Segura’s neighbor, G., contacted the Arizona Department of Public Safety (DPS)
and reported a large quantity of “what appeared to be bales of marijuana wrapped in a Saran wrap
type material” was being delivered to Segura’s home, which had been vacant for two months.
When DPS officers arrived at Segura’s home, E. met them at the gate and told them Segura owned
the property and would be returning within the hour. After conducting surveillance of the
property, the officers obtained a warrant to search the premises. When they executed the warrant,
the officers found nineteen bales of marijuana, loaded guns, a sword, a bulletproof vest, and loose
ammunition inside Segura’s home. In a trailer in his yard, they also found an additional nineteen
bales of marijuana. The officers seized a total of 862.5 pounds of marijuana from the premises,
and the state brought an action to forfeit Segura’s property.
Jurisdiction
¶3 Before addressing Segura’s substantive arguments, we must first answer the state’s
contention that this court lacks jurisdiction of the appeal because Segura failed to timely serve a
copy of his notice of appeal and opening brief on the Arizona Attorney General as mandated by
§ 13-2314(M), which this court found constitutional in In re 1988 Chevrolet ½ PU, 186 Ariz. 419,
924 P.2d 109 (App. 1996). We have a duty to determine whether we have jurisdiction of an
1
Although Segura did not serve the attorney general with his notice of appeal and opening
brief at the time he filed his opening brief, see A.R.S. § 13-2314(M), he did serve both nearly
three months before the state filed its answering brief. The attorney general did not file a brief.
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appeal. Davis v. Cessna Aircraft Corp., 168 Ariz. 301, 812 P.2d 1119 (App. 1991). Section
13-2314(M) states:
The attorney general may appear as amicus curiae in any
proceeding in which a claim under this section has been asserted,
including proceedings pursuant to chapter 39 of this title. . . . A
party who files a notice of appeal from a civil action brought under
this chapter or chapter 39 of this title shall serve the notice and one
copy of the appellant’s brief on the attorney general at the time the
person files the appellant’s brief with the court. This requirement
is jurisdictional.
¶4 In 1988 Chevrolet, we were also faced with a drug-related in rem forfeiture action.
In that appeal, the state also argued that this court lacked jurisdiction because the claimant had
failed to comply with § 13-2314(M). In response, the claimant argued that the attorney general
had suffered no prejudice from the lack of compliance because it had filed an amicus brief; that
jurisdiction had vested in this court upon her timely filing of a notice of appeal pursuant to Rule
8(a), Ariz. R. Civ. App. P., 17B A.R.S.; and that § 13-2314(M) was unconstitutional because it
usurped the rule-making power of the supreme court. We dismissed the appeal, concluding that
Rule 8(a) only applies when the subject matter of the appeal is already within our jurisdiction and
that “the statute has no more effect on the rule-making power of the court than does [A.R.S.]
§ 12-2101,” which enumerates the appealable orders this court has jurisdiction to hear. 186 Ariz.
at 421, 924 P.2d at 111.
¶5 In Pompa v. Superior Court, 187 Ariz. 531, 931 P.2d 431 (App. 1997), Division
One of this court disagreed with 1988 Chevrolet, concluding that § 13-2314(M) is unconstitutional
because appellate procedural rules promulgated by the supreme court prevail over conflicting
statutes. Division One reasoned that the Arizona Constitution requires our three branches of
government to remain separate and confers on the supreme court “‘[p]ower to make rules relative
to all procedural matters in any court.’” 187 Ariz. at 533, 931 P.2d at 433, quoting Ariz. Const.
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art. 6, § 5(5). The court explained that the substantive right to appeal is granted by the legislature
while procedural rules promulgated by the supreme court govern how that right is exercised,
observing that, “when a statute conflicts with a rule of procedure, the rule controls as to
procedural matters.” Id. at 534, 931 P.2d at 434. The court ultimately concluded that “[a]n
impermissible conflict exists between A.R.S. section 13-2314(M) and the judicially-made Arizona
Rules of Civil Appellate Procedure,” 187 Ariz. at 534, 931 P.2d at 434, specifically, Rules 8(d)
and 15(b), Ariz. R. Civ. App. P. Division One held that the failure to comply with these rules
will not divest this court of jurisdiction to hear an appeal, although they do permit the imposition
of sanctions for such failures, including dismissal, if appropriate. See Ariz. R. Civ. App. P. 8(a)
and 15(c). The court held the “jurisdictional provision of section 13-2314(M) must yield to Rules
8 and 15 under article 6, section 5 of our state constitution.” 187 Ariz. at 535, 931 P.2d at 435.
¶6 Although several cases have cited Pompa with approval, none involved
§ 13-2314(M). These cases do not resolve the conflict between 1988 Chevrolet and Pompa, but
nonetheless are instructive. See State ex rel. Napolitano v. Brown, 194 Ariz. 340, 982 P.2d 815(1999) (citing Pompa for proposition that statute setting reduced time limits for filing petitions for
post-conviction relief that conflicted with procedural rule was unconstitutional); Pima County v.
Hogan, 197 Ariz. 138, 3 P.3d 1058 (App. 1999) (citing Pompa for proposition that procedural
rule controls over conflicting eminent domain statute); Graf v. Whitaker, 192 Ariz. 403, 966 P.2d
1007 (App. 1998) (citing Pompa for proposition that procedural rule permitting dismissal does not
diminish substantive right to appeal). Although we acknowledge that 1988 Chevrolet held that
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§ 13-2314(M) is a substantive jurisdictional requirement, we nonetheless conclude that the result
reached in Pompa was correct and overrule 1988 Chevrolet.2
¶7 Pursuant to A.R.S. § 12-2101(F)(1), Segura had a substantive right to appeal the
trial court’s denial of his motion for new trial. See Pompa. He exercised that substantive right
by timely filing a notice of appeal pursuant to Rules 8(a) and 9(a), Ariz. R. Civ. App. P.
Accordingly, jurisdiction vested in this court when Segura timely filed his notice of appeal. See
§ 12-2101; Hyman v. Arden-Mayfair, Inc., 150 Ariz. 444, 724 P.2d 63 (App. 1986). Any statutes
that purport to govern how Segura may exercise his substantive right to appeal are, therefore,
procedural in nature. See Hogan. Any steps that § 13-2314(M) imposes upon an appellant are
thus extra procedural steps Segura was required to follow to further his appeal, not substantive
barriers to his right to have his appeal heard.
¶8 Although, as the state contended in oral argument in this court, it appears that the
legislature intended to vest in the attorney general a substantive discretionary right to appear in
civil forfeiture appeals, the existence of such a right is not inconsistent with the result we reach.
The right to appear can only be exercised if an appeal exists in which to make an appearance.
That fact further supports our conclusion that the requirement of § 13-2314(M) cannot divest this
court of jurisdiction to hear an appeal simply because the appellant fails to timely serve the notice
of appeal and the opening brief on the attorney general.
¶9 It is apparent that, in enacting § 13-2314(M), the legislature intended to divest this
court of jurisdiction to hear a case in which an appellant fails to serve the attorney general with
the notice of appeal and opening brief. It is equally apparent, however, that the subsection
2
Although of no precedential value, it is interesting to note that our supreme court denied
review of 1988 Chevrolet, and review of Pompa was not sought. See State v. Benenati, 203 Ariz.
235, n.2, 52 P.3d 804, n.2 (App. 2002).
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impermissibly conflicts with Rule 8(a), Ariz. R. Civ. App. P., which states that failure to “take
any step other than the timely filing of a notice of appeal does not affect the validity of the appeal,
but is a ground only for such action as the appellate court deems appropriate, which may include
dismissal of the appeal.” The discretion Rule 8(a) vests in the court may not be compromised by
an appellant’s failure to comply with § 13-2314(M), which facially requires that a perfected appeal
be dismissed. This is because Rule 8(a) takes precedence over § 13-2314(M). Pompa.
Moreover, our supreme court has held that procedural devices “should not be used to trap the
unwary.” Gorman v. City of Phoenix, 152 Ariz. 179, 183, 731 P.2d 74, 78 (1987). The
legislature’s substantive grant in § 12-2101(F)(1) of the right to appeal a trial court’s order
granting or denying a motion for new trial vests jurisdiction in this court to hear that appeal. The
legislature cannot divest Segura of that substantive right or this court of jurisdiction to hear his
appeal because of Segura’s failure to comply with a statute that conflicts with a rule promulgated
by our supreme court. Accordingly, because Segura timely filed a notice of appeal from an
appealable order, we conclude that we have jurisdiction to hear his appeal.
Untimely Disclosure
¶10 Segura argues the trial court erred by denying his motion for new trial, in which
he argued the court erroneously allowed the state to call G. as a witness and to introduce
fingerprint evidence, contending neither had been timely disclosed to Segura before trial. We will
not overturn a trial court’s ruling on a motion for new trial absent an abuse of discretion. Suciu
v. AMFAC Distrib. Corp., 138 Ariz. 514, 675 P.2d 1333 (App. 1983). The state disclosed G.’s
name on July 6, 2001, and the fingerprint evidence on July 10, although Segura had moved to
produce reports of “fingerprint comparisons” in March 2000. Trial began on July 12. Segura
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argues he was prejudiced because he had inadequate time to investigate and rebut what became
crucial evidence against him because it substantially contradicted his testimony.
¶11 Although Segura attached to his opening brief an excerpt from what appears to be
the transcript of the hearing on his motion to preclude the untimely disclosed evidence, he failed
to include any transcripts in the record on appeal. It is an appellant’s responsibility to include in
the record on appeal “such parts of the proceedings as he deems necessary.” Ariz. R. Civ. App.
P. 11(b)(1). “We may only consider the matters in the record before us. As to matters not in our
record, we presume that the record before the trial court supported its decision.” Ashton-Blair
v. Merrill, 187 Ariz. 315, 317, 928 P.2d 1244, 1246 (App. 1996).
¶12 We do have Segura’s motion in limine to exclude G.’s testimony and his motion
for new trial, which complained about the trial court’s admission of the fingerprint evidence. We
also have the state’s opposition to Segura’s motion for new trial. In the latter, the state claimed
G. had not been a surprise witness because his name had been disclosed in the police reports,
Segura had repeatedly discussed G.’s prior criminal history with the prosecutor before trial, and
Segura had been prepared to call G.’s former wife as a witness. Segura can neither dispute those
assertions nor support his argument that the trial court abused its discretion in allowing the state
to introduce the evidence absent transcripts in the record on appeal. Accordingly, we can only
conclude that the trial court did not abuse its discretion in admitting this evidence and, therefore,
affirm its ruling.
________________________________________
J. WILLIAM BRAMMER, JR., Presiding Judge
CONCURRING:
______________________________________
M. JAN FLÓREZ, Judge
______________________________________
JOSEPH W. HOWARD, Judge
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