Monroe v. Lv Metro Police Dept.

IN THE SUPREME COURT OF THE STATE OF NEVADA
DAIMON MONROE, No. 62264
Appellant,
vs.
LAS VEGAS METROPOLITAN POLICE
DEPARTMENT,
FILED
Respondent. MAR 1 8 2016
ORDER AFFIRMING IN PART,
REVERSING IN PART AND REMANDING
This is a pro se appeal from a district court summary
judgment in a forfeiture action. Eighth Judicial District Court, Clark
County; Douglas Smith, Judge.
Appellant was found guilty of one count of conspiracy to
possess stolen property and/or to commit burglary and 25 counts of
possession of stolen property for his part in a series of burglaries.
Respondent seized $281,656.73 in connection with the burglaries. Of
those funds, $13,825 was seized from appellant's home that he shared
with Tanya Trevarthen and $26,938.64 was seized from Trevarthen's bank
account that appellant accessed as if it was a joint account he held with
Trevarthen. Respondent also recovered $5,634.33 from bail bond
companies and $40,002.18 from attorneys that Trevarthen allegedly paid
on appellant's behalf. Respondent filed a forfeiture complaint and in
support of its summary judgment motion, respondent attached excerpts of
the transcripts of Trevarthen's testimony at the grand jury hearing and
the jury trial on appellant's criminal charges that the money in the house
was proceeds from stolen property and that most of the money in the bank
account was proceeds from stolen property. The district court granted
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respondent's motion for summary judgment on the underlying forfeiture
complaint.
Having considered the parties' arguments and the record on
appeal, we conclude that the district court properly granted respondent's
motion for summary judgment in regard to the money seized from
appellant's house and Trevarthen's bank account, but erred in granting
the motion concerning the funds recovered from the bail bond companies
and the attorneys.' See Wood v. Safeway, Inc., 121 Nev. 724, 729, 121
P.3d 1026, 1029 (2005) (explaining that this court reviews a district court's
grant of summary judgment de novo); NRCP 56(c) (providing that
'summary judgment is only appropriate when there is no genuine issue of
material fact); Fergason v. Las Vegas Metro. Police Dep't, 131 Nev., Adv.
Op. 94, 364 P.3d 592, 595-96 (2015) (providing that to support a forfeiture
action "the State must establish by clear and convincing evidence (1) that
a felony was committed or attempted, and (2) that the funds seized . . . are
attributable to or denied directly or indirectly from the commission or
attempt" (internal citation omitted)).
As an initial matter, the district court erred in concluding that
appellant's judgment of conviction was conclusive evidence establishing all
elements of the forfeiture complaint. See Fergason, 131 Nev., Adv. Op. 94,
364 P.3d at 596. While appellant's judgment of conviction can be used to
establish that a felony was committed, NRS 179.1173(5) (2001), here it
"We conclude that the district court had jurisdiction to enter the
summary judgment order despite appellant's then pending appeal from an
order denying his motion to strike the summary judgment motion because
"[a]n appeal from a non-appealable order does not divest the trial court of
jurisdiction." Knox v. Dick, 99 Nev. 514, 516, 665 P.2d 267, 269 (1983).
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cannot be used to establish that the funds seized were attributable to the
felony. 2 Fergason, 131 Nev., Adv. Op. 94, 364 P.3d at 596. "Possession of
stolen property, without more . . . does not establish the funds . . . as the
proceeds of those crimes but, rather, his possession of specific items of
stolen property." Id.
Here, Trevarthen's testimony concerning the money in the
house and the bank account established that those funds were directly
attributable to the felony. She testified that appellant did not work, he
would keep cash from selling stolen property in the house, and that the
money in the bank account, other than her income, was money appellant
made selling stolen property. 3
There was no evidence included with respondent's summary
judgment motion, however, that established that the funds recovered from
the bail bond companies and the attorneys were attributable to the
felony. 4 See Cuzze v. Univ. & Cmty. Coll, Sys., 123 Nev. 598, 602, 172 P.3d
2 We note that appellant's conspiracy charge was a gross
misdemeanor, not a felony, see NRS 199.480, and thus, that charge could
not be a predicate for forfeiture under NRS 179.1164 because that statute
requires connection to a felony. NRS 179.1164(1)(a).
3 Appellant would have no interest in Trevarthen's income that was
deposited into the bank account and a default was taken against
Trevarthen for failing to answer the forfeiture complaint.
4Appellant has standing to contest the funds seized from the bail
bond companies and attorneys because appellant has claimed an interest
in those funds. NRS 179.1158 (defining a claimant in a forfeiture action
as a person claiming to have an interest in the property or proceeds or a
person having possession of the property or proceeds at the time of
seizure); see also Fergason, 131 Nev., Adv. Op. 94, 364 P.3d at 601
(explaining that a party has standing to challenge a forfeiture complaint if
they claim an interest in the property).
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131, 134 (2007) (explaining that the party requesting summary judgment
must introduce evidence entitling it to judgment as a matter of law in the
absence of contrary evidence when that party bears the burden of
persuasion). Trevarthen's testimony that there were "some instances
where I removed money to pay attorney fees" without more evidence does
not establish that the funds recovered from the attorneys were
attributable to the felony. Accordingly, the district court's summary
judgment regarding the funds seized from the house and Trevarthen's
bank account is affirmed, but the summary judgment concerning the funds
recovered from the bail bond companies and the attorneys is reversed and
remanded for further proceedings. 5
It is so ORDERED.
/ frea in
-
, J.
Hardesty
Saitta
jo ,J.
cc: Hon. Douglas Smith, District Judge
Daimon Monroe
Marquis Aurbach Coffing
Clark County District Attorney
Eighth District Court Clerk
We direct the clerk of this court to file appellant's pro se response
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received on January 11, 2016. To the extent appellant's additional
arguments are not addressed herein, we conclude they lack merit and do
not warrant relief other than provided in this order.
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