State v. Turner

THE STATE OF ARIZONA EX REL. M. LANDO VOYLES, Plaintiff/Appellee, v. GEOFFREY TURNER, Claimant/Appellant.

No. 2 CA-CV 2016-0090

ARIZONA COURT OF APPEALS DIVISION TWO

January 5, 2017

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).

Appeal from the Superior Court in Pinal County

No. S1100CV201500706

The Honorable Daniel A. Washburn, Judge

REVERSED AND REMANDED

COUNSEL

M. Lando Voyles, Pinal County Attorney

By Alex Mahon, Deputy County Attorney, Florence

Counsel for Plaintiff/Appellee

Robbins & Curtin, P.L.L.C., Phoenix

By Joel B. Robbins and Andrew L. Gartman

Counsel for Claimant/Appellant

MEMORANDUM DECISION

Presiding Judge Vásquez authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Miller concurred.

VÁSQUEZ, Presiding Judge:

¶1 In this civil-forfeiture action, Geoffrey Turner appeals from the trial court's denial of his motion to vacate an order of forfeiture entered after he failed to timely file an answer. On appeal, Turner argues the court erred "by finding that [his] use of the U.S. Postal Service for filing" was inexcusable neglect.¹ For the reasons that follow, we reverse the order denying the motion to vacate and remand this case for further proceedings.

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to upholding the trial court's denial of the motion to vacate. See Ezell v. Quon, 224 Ariz. 532, ¶ 2, 233 P.3d 645, 647 (App. 2010); In re $26,980 U.S. Currency, 199 Ariz. 291, ¶ 2, 18 P.3d 85, 87 (App. 2000). In April 2015, the state filed a notice of pending forfeiture and notice of seizure for forfeiture based on allegations of organized crime and drug sales.² Turner and two others filed claims to the seized property, and, on July 8, the state mailed its complaint. After receiving their answers, the state sent the following email to the claimants' attorneys:

All:

Please find copies of the Motions to Strike Answers I filed today. If you are of a mind to file Amended Answers that comply with the DRAFT Order, I will withdraw my Motions, annotating my agreement to the filing of the Amended Answers.

. . . .

[To Turner's counsel: W]hile I received a mailed copy of . . . Turner's Answer, the copy did not have the Clerk's filed stamp on it. When I checked the Clerk's file today, there was no filed Answer for . . . Turner in it—you may want to check on this.

¶3 Turner filed a motion to amend his answer with the trial court on August 14.³ On August 27, the state filed an application for an order of forfeiture and a response to Turner's motion, arguing Turner had "failed to timely file an answer to the [s]tate's [c]omplaint," it was too late to amend the answer, and the amended answer was deficient in any event. In the days that followed, Turner filed several answers and motions in an attempt to avoid default. After oral argument, the court entered an order of forfeiture against Turner.⁴

¶4 Turner hired new counsel, and filed a motion to vacate the order of forfeiture pursuant to Rule 60(c), Ariz. R. Civ. P.⁵ Turner also submitted an affidavit from his former counsel, who avowed he had mailed Turner's answer to the state and the court on July 22 and he could not "explain why copies of the [a]nswer were received by the [s]tate and not by the clerk's office even though they were mailed at the same time." He also asserted that he had relied on the state's email when he decided to file a motion to amend. The trial court denied the motion, finding that, although Turner had acted promptly, he "should have immediately investigated" after receiving the state's email and it was unreasonable to interpret the state's email as an extension of time.⁶ Turner appealed the denial of his motion. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(2).

Discussion

¶5 Turner argues the trial court erred by denying his motion to vacate the order of forfeiture. Generally, we review the denial of a motion to vacate a judgment for an abuse of discretion. See Blair v. Burgener, 226 Ariz. 213, ¶ 7, 245 P.3d 898, 901 (App. 2010). An abuse of discretion occurs when the court misapplies the law or makes a decision that is "unsupported by facts or sound legal policy." City of Phoenix v. Geyler, 144 Ariz. 323, 328-29, 697 P.2d 1073, 1078-79 (1985) (where question presented is "one of law or logic," we must "look over the shoulder" of trial court), quoting State v. Chapple, 135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 n.18 (1983).

¶6 To obtain relief pursuant to Rule 60(c)(1), the moving party must demonstrate that (1) the default resulted from mistake,inadvertence, surprise, or excusable neglect, (2) the party promptly sought relief after discovery of the default, and (3) the party has a meritorious defense. See Johnson v. Elson, 192 Ariz. 486, ¶ 15, 967 P.2d 1022, 1025-26 (App. 1998). "[T]he test of what is excusable is whether the neglect or inadvertence is such as might be the act of a reasonably prudent person under similar circumstances." Daou v. Harris, 139 Ariz. 353, 359, 678 P.2d 934, 940 (1984).

¶7 In considering these matters, the trial court must resolve "all doubts . . . in favor of the moving party." Gen. Elec. Capital Corp. v. Osterkamp, 172 Ariz. 185, 188, 836 P.2d 398, 401 (App. 1992); see also Ruiz v. Lopez, 225 Ariz. 217, ¶ 8, 236 P.3d 444, 447 (App. 2010) (law favors resolution of case on merits). As Osterkamp explains, Arizona courts often applied this rule—the resolution of doubt in favor of the moving party—before the civil rules were amended to include a ten-day grace period because "[t]he prior rule did not require that a defendant be given notice that default was to be entered." 172 Ariz. at 189-90, 836 P.2d at 402-03 (grace period "virtually eliminates any claim of lack of notice as a basis for setting aside a default"); see Ariz. R. Civ. P. 55(a)(3), (4); 144 Ariz. XXXV-XXXVI (1985). However, our legislature has not included a grace period in the civil-forfeiture statutes, see State ex rel. Horne v. Anthony, 232 Ariz. 165, ¶¶ 20-21, 303 P.3d 59, 63 (App. 2013), and, in turn, the "resolution of doubt" rule remains applicable here.

Excusable Neglect

¶8 Section 13-4311(G), A.R.S., provides that, in a civil-forfeiture action, a claimant must file an answer "twenty days after service of the complaint." Service may include "personal service, publication or the mailing of written notice." A.R.S. § 13-4307; see § 13-4311(A) (state may serve complaint pursuant to § 13-4307 or rules of civil procedure). If a claimant fails to timely file an answer, the state can then seek an order of forfeiture.⁷ § 13-4311(G); see A.R.S. §§ 13-4314, 13-4315.

¶9 In this case, the state mailed its complaint to Turner on July 8, 2015. Because the state mailed its complaint, Turner had until August 3 to file an answer. See Ariz. R. Civ. P. 6(a), (e); In re $47,611.31 U.S. Currency, 196 Ariz. 1, ¶¶ 11-16, 992 P.2d 1, 3-4 (App. 1999) (five-day extension under Rule 6(e) applicable in civil forfeiture after receiving service by mail under § 13-4307). Turner's counsel mailed his answer to the trial court and a copy to the state on July 22, twelve days before the deadline. Although the state received its copy, the answer mailed to the court was never filed.⁸

¶10 In its ruling denying the motion to vacate, the trial court stated that Turner "improperly believes that . . . mailing amounts to filing of the [a]nswer." We disagree with this characterization for two reasons. First, Turner did not challenge whether the answer was actually filed, nor could he. Instead, although Turner could not "provide an explanation for why only the [state] received [his] answer when he placed the original and the copy in the mail on the very same day," he argued "[t]he fact that the [state] timely received its copy[] demonstrates that [he] made a good faith effort to timely file the [a]nswer with the court." In short, Turner did not suggest that he filed the answer by mailing⁹ but, rather, that his failure to timely file amounted to mistake, inadvertence, surprise, or excusable neglect under Rule 60(c)(1).

¶11 Second, we agree that ignorance of the rules of procedure is not excusable neglect, Baker Int'l Assocs., Inc. v. Shanwick Int'l Corp., 174 Ariz. 580, 584, 851 P.2d 1379, 1383 (App. 1993), but "[t]he rules do not prohibit mail as a form of filing," Lee v. State, 218 Ariz. 235, ¶ 13, 182 P.3d 1169, 1172 (2008); see M-11 Ltd. P'ship v. Gommard, 235 Ariz. 166, ¶ 7, 330 P.3d 356, 358 (App. 2014) (discussing filing by mail in Superior Court for Maricopa County). In fact, the rules do not give any guidance as to how parties should deliver a document to the court, so long as the document actually arrives in the clerk's hands. See Ariz. R. Civ. P. 5(h). As a practical matter, we must allow attorneys to rely on the services of others in the performance of their duties. For example, attorneys are entitled to rely on their administrative assistants, so long as they design procedures "to ensure that answers [are] timely filed," Sax v. Superior Court, 147 Ariz. 518, 520, 711 P.2d 657, 659 (App. 1985), even though "errors . . . inevitably occur," Geyler, 144 Ariz. at 332, 697 P.2d at 1082. Accordingly, we see no reason to hold as a matter of law that reliance on the U.S. Postal Service is per se unreasonable. The better inquiry is whether a reasonably prudent attorney would believe that specific circumstances required reliance on the postal service and whether he or she took the proper steps to confirm its delivery. See Daou, 139 Ariz. at 359, 678 P.2d at 940; Garden Dev. Co. v. Carlaw, 33 Ariz. 232, 234, 263 P. 625, 625 (1928).

¶12 Here, Turner was simultaneously preparing his defense in a related criminal proceeding in Maricopa County. His attorneys were located in Maricopa County, and in his claim to the property, Turner contested whether venue in Pinal County was proper. Thus, it...