VITALIANA GOVEA V CITY OF GRAND RAPIDS
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STATE OF MICHIGAN
COURT OF APPEALS
VITALIANA GOVEA,
UNPUBLISHED
September 3, 1999
Plaintiff-Appellee,
v
No. 209874
Kent Circuit Court
LC No. 97-006382 AW
CITY OF GRAND RAPIDS,
Defendant-Appellant.
Before: Markman P.J., and Saad and P. D. Houk*, JJ.
PER CURIAM.
Defendant appeals by right from the circuit court’s order of mandamus directing defendant to
accept plaintiff’s claim and bond to contest a forfeiture of property pursuant to the forfeiture statutes in
the controlled substances provisions of the Public Health Code, MCL 333.7521 et seq.; MSA
14.15(7521) et seq. We reverse. This appeal is being decided without oral argument pursuant to
MCR 7.214(E).
We review the trial court’s decision for an abuse of discretion. Keaton v Village of Beverly
Hills, 202 Mich App 681, 683; 509 NW2d 544 (1993). Issuance of a writ of mandamus is proper
where (1) the plaintiff has a clear legal right to performance of the specific duty sought to be compelled,
(2) the defendant has a clear legal duty to perform it, (3) the act is ministerial, and (4) the plaintiff is
without other adequate legal or equitable remedy. Tuscola Co Abstract Co v Tuscola Co Register of
Deeds, 206 Mich App 508, 510-11; 522 NW2d 686 (1994).
Here, the trial court found that defendant provided plaintiff with “proper notice” of seizure and
intent to forfeit at the time of her arrest on a drug offense. However, the trial court reasoned that
because the notice form was subsequently removed from plaintiff when she entered the county jail, and
thereafter remained “unavailable” to her or her attorneys during her incarceration, plaintiff’s failure to file
* Circuit judge, sitting on the Court of Appeals by assignment.
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a claim and bond within twenty days of her receipt of notice, as required by MCL 333.7523(1)(c);
MSA 14.15(7523)(1)(c) should be excused. We respectfully disagree.
Specifically, MCL 333.7523; MSA 14.14(7523) provides in pertinent part:
(1) If property is seized pursuant to section 7522, forfeiture proceedings shall
be instituted promptly. If the property is seized without process as provided under
section 7522, and the total value of the property seized does not exceed $50,000.00,
the following procedure shall be used:
(a) The local unit of government that seized the property, or, if the property was
seized by the state, the state shall notify the owner of the property that the property has
been seized, and that the local unit of government, or if applicable, the state intends to
forfeit and dispose of the property by delivering a written notice to the owner of the
property or by sending the notice to the owner by certified mail. If the name and
address of the owner are not reasonably ascertainable, or delivery of the notice cannot
be reasonably accomplished, the notice shall be published in a newspaper of general
circulation in the county in which the property was seized, for 10 successive publishing
days.
According to one of the arresting officers, he showed the completed notice form to plaintiff,
explained that it was a seizure form, told plaintiff exactly which items were being seized and the amount
of bond, and advised her that she would have to appear within twenty days, identifying another officer
as the person for her to contact. He offered plaintiff an opportunity to ask questions, but she did not
ask any. The officer also testified that he placed plaintiff’s copy of the form in front of her on the kitchen
table and that she appeared to read it. He estimated that the form remained in front of plaintiff and her
son on the kitchen table for approximately thirty to forty five minutes, until the time that plaintiff and her
son were taken to jail. He did not see whether plaintiff had the notice with her when she left for jail,
explaining that once a notice is served, it is the recipient’s own choice whether to take the notice or to
leave it at home.
As plaintiff’s own complaint concedes and the trial court itself found, plaintiff was in fact
personally served with “proper notice” at the time of her arrest. At that point the notice requirements of
MCL 333.7523(1)(a); MSA 14.14(7523)(1)(a) were satisfied. Although plaintiff claimed that she was
“in shock,” at the time, there is no indication that she was actually mentally or physically incapacitated at
the time. Cf. Midler v Judge of Superior Court, 38 Mich 310 (1878) (service of process by merely
laying it on the body of a person too sick to understand it is not valid). Although plaintiff is from
Mexico, she has lived in the United States for twenty-seven years and has earned a degree in computers
from Davenport College. She testified in English and obviously has an adequate understanding of the
language.
As defendant notes, neither plaintiff nor the trial court cites any authority to support the notion
that defendant had any further obligation to provide notice after delivering the written notice required by
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the statute to plaintiff. MCL 333.7523(1)(c); MSA 14.15(7523)(1)(c) provides that the 20-day claim
period commences upon “receipt,” suggesting that delivery of the required notice is all that is necessary
to charge the property owner with the obligation of filing a claim and bond within twenty days.
As noted by this Court in In re Forfeiture of $19,250, 209 Mich App 20, 27; 530 NW2d
759 (1995), federal courts have also been reluctant to extend a notifying jurisdiction’s duty beyond the
initial notice absent exceptional circumstances. This Court cited Sarit v United States Drug
Enforcement Administration, 987 F2d 10, 14-15 (CA 1, 1993), a case where a notice of forfeiture
mailed to the property owner was found to be adequate even though the notice letter was later returned
“unclaimed,” where the property owner’s lawyer had actual notice of the forfeiture proceedings. The
court in Sarit opined that the focus should be limited to whether the notifying jurisdiction knew or had
reason to know that the notice would be ineffective at the time it was sent. While other federal courts
have found an obligation to provide further notice where the notifying jurisdiction later learns that the
initial notice was never received, we are unaware of any cases suggesting that the notifying jurisdiction
has any continuing obligation with respect to notice once it has been actually received by a competent
person entitled to receive it.
It may well be true, as plaintiff argues, that the statute contemplates providing property owners
with written notice a full twenty days prior to the deadline for contesting forfeiture in order to allow the
recipient adequate time to gain full comprehension and knowledge through inquiry and counsel.
However, it does not follow that it is the responsibility of the notifying jurisdiction to ensure that the
recipient actually keeps the notice document “available” for that purpose, just as it does not follow that
the jurisdiction has any responsibility to ensure that the recipient actually discusses the matter with her
attorneys. In short, what the recipient does with the notice after receiving it is the recipient’s
responsibility.
Because defendant had no clear legal duty to monitor and ensure the continued “availability” of
the notice document after plaintiff received it, the trial court’s order of mandamus should be reversed.1
We do not retain jurisdiction.
/s/ Stephen J. Markman
/s/ Henry William Saad
/s/ Peter D. Houk
1
Defendant’s alternative argument, that mandamus was inappropriate because plaintiff had an adequate
legal remedy in the form of a separate civil action for conversion or wrongful taking of property is
meritless, however. MCL 333.7523(2); MSA 14.15(7523)(2) bars institution of a civil action to
recover seized property subject to forfeiture under the controlled substance provisions of the Public
Health Code, and therefore filing a claim and bond to contest forfeiture in accordance with the
procedures of the code is plaintiff’s sole remedy. In re Return of Forfeited Goods, supra; Derrick v
City of Detroit, 168 Mich App 560, 562-563; 425 NW2d 154 (1988). It should also be noted that
there is no merit to plaintiff’s objection that defendant has no appeal of right because the trial court’s
mandamus ruling is an interlocutory matter, akin to an order setting aside a default judgment. Unlike the
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default situation, where relief is granted in the same proceeding in which the default was entered, an
action for mandamus is an original action, entirely separate from the forfeiture proceedings in question.
Thus, when the trial court granted plaintiff’s request for an order of mandamus, the court disposed of all
of the claims involved in the mandamus case, and the order of mandamus therefore constitutes a final
order or judgment for purposes of an appeal by right. MCR 7.202(8)(a)(i).
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