Leigh Ann Huff v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION III

LEIGH ANN HUFF

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CA 01-919

April 10, 2002

APPEAL FROM THE PHILLIPS

COUNTY CIRCUIT COURT,

[CIV 2000-298]

HONORABLE L. T. SIMES,

JUDGE

REVERSED AND DISMISSED

This is a forfeiture case in which the facts are not significantly disputed. Appellant, Leigh Ann Huff, raises six points of appeal. It is only necessary to address her second point, however, because we agree that the trial court erred in failing to dismiss the State's forfeiture petition in its entirety. We therefore reverse and dismiss.

Appellant was the spouse of Pat Huff, deceased. On December 4, 1998, police officers served a search warrant at a residence located in Helena, Arkansas, and recovered drugs and drug-related items. The residence did not belong to Pat Huff, but while the officers were there, he arrived in a 1994 pick-up truck. Pat Huff and his vehicle were searched pursuant to the warrant, and several items belonging to him were seized, including the pick-up, a .357-caliber magnum, a shotgun, $364 in cash, binoculars, a radar detector,

a mobile scanner, a monocular, and a cell phone with a hands-free kit and speaker. Mr. Huff died prior to his criminal case coming to trial.

On November 15, 2000, the State filed a "Petition Relating to Seizure and Forfeiture." The petition was never served upon appellant.

On November 20, 2000, appellant filed a "Special Answer and Motion to Dismiss Petition Relating to Seizure and Forfeiture." In it, she stated that she intended "to preserve all their rights regarding Service and Service of Process upon Claimants and the Estate of Patrick Huff." She also stated under the Motion to Dismiss portion, "Claimants affirmatively state that Service and Service of Process [are] lacking in this case and the matter must therefore be dismissed or, in the alternative, proper Service must be obtained before Plaintiff should be allowed to proceed." Despite the fact that this pleading was filed just five days after the original petition, the State never perfected service.

A hearing was held on April 5, 2001. At the outset of the hearing, the court stated, "What is set for hearing today is [the] motion to dismiss . . . ." The court further stated, "The notice of hearing says `Motion to Dismiss.' It was filed February the 6th, first out hearing. So we'll take up the motion to dismiss and then I want to address the question, Mr. Halbert, your request for a jury trial. I need some authority on that with regard to a civil forfeiture."

At the conclusion of the hearing, the court recounted the facts about the search and seizure of Mr. Huff, concluded that the search was proper under the circumstances, expressed concern about the lack of service and proof of service, but concluded:

I've been searching for the truth in this case and the Court is going to deny the Motion to Dismiss for the reasons that are stated with one exception. The Court is going to order the State to return his Remington 1100 shotgun to Mrs. Huff, not the.357-caliber, and not the binoculars, the radar detector, the scanner, or the cell phone because I think these items are clearly confiscatible under the act. And Mr. Murray [deputy prosecutor], I'm going to [give] her children the $364.

In addition, the trial court allowed appellant's attorney until the next day to give the court the additional authority it had requested concerning jury trials in civil forfeiture cases.

On May 4, 2001, an order was filed in this matter. The opening sentence states that on April 5, 2001, "this cause came on for a hearing concerning the Motion to Dismiss . . . and the disposition of seized property, . . . ." (Emphasis added.) The order then states that the court found "that the above named property was seized incident to an arrest or a search under a search warrant and that grounds for forfeiture exist." (Emphasis added.) It orders that the motion to dismiss be denied "except that the Remington Model 1100 shotgun is ordered returned to [appellant]; and, that the $364.00 in cash is ordered to be given to [appellant] for the benefit of her minor children." The order further provided that the other designated items "are hereby forfeited." (Emphasis added.)

On May 9, 2001, appellant filed a "Motion to Correct Order," contending that the hearing was only on the motion to dismiss, that a copy of the May 4 order was never sent to appellant's counsel for approval, and that the court never ordered that items not returned to appellant were forfeited, "but only that probable cause existed for their forfeiture and the State was entitled to a hearing and Claimant's motion to dismiss as to those items as denied." The trial court never ruled on this motion, and on June 4, 2001, appellant filed her notice of appeal.

As mentioned at the outset of this opinion, appellant raises six points of appeal. Finding merit in her challenge of the trial court's refusal to dismiss the entire petition for the State's failure to provide proper service pursuant to Rule 4 of the Arkansas Rules of Civil Procedure, it is only necessary to address this point of appeal. In doing so, we first note that both appellant and the State apparently take the position that the applicable statute in this case is amended Arkansas Code Annotated section 5-64-505, which is the statute that was in effect at the time the State filed its petition on November 15, 2000, rather than the earlier version of the statute, which was in effect at the time the property was first seized pursuant to the search warrant on December 4, 1998. We, therefore, make no ruling on whether the previous statute should apply in this case instead of the statute as amended in 1999.

The amended statute relied upon by the parties, Arkansas Code Annotated section 5-64-505(g)(1)(A) (Supp. 2001), provides:

(g) Initiation of forfeiture proceedings - - Notice to claimants - - Judicial proceedings.

(1)(A) The prosecuting attorney shall initiate forfeiture proceedings by filing a complaint with the circuit clerk of the county in which the property was seized and by serving such complaint on all known owners and interest holders of the seized property in accordance with the Arkansas Rules of Civil Procedure.

(Emphasis added.) Moreover, the State acknowledges that appellant was entitled to notice of the forfeiture proceedings, and in fact a notice and summons to appellant were filed on the same date as the petition but they were never served.

Under Rule 4 of the Arkansas Rules of Civil Procedure, it is clear that the State's failure to serve appellant with the summons within 120 days after filing the petition requiredthat the case be dismissed. Ark. R. Civ. P. 4(i) (stating, "[i]f service of the summons is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court's initiative."). See also Raymond v. Raymond, 343 Ark. 480, 36 S.W.3d 733 (2001); Farm Bureau Mut. Ins. Co. v. Campbell, 315 Ark. 136, 865 S.W.2d 643 (1993). The trial court erred in failing to do so.

Furthermore, we reject the State's contentions that appellant either waived service of process and entered an appearance or, alternatively, that she stood in the shoes of her deceased husband who had earlier submitted to the court's jurisdiction by entering a prior "Agreed Order of Forfeiture" with respect to the pick-up truck.

With respect to whether appellant waived service, our supreme court explained in Farm Bureau, supra, "[n]onetheless, this court has specifically held that in deciding whether a defendant has waived his rights and entered his appearance, the determining factor is whether the defendant seeks affirmative relief, that is, whether the pleading filed is more than a defensive action. . . . An example of such affirmative action is where a defendant filed a cross-complaint." 315 Ark. at 141, 865 S.W.2d at 645 (emphasis added). Here, appellant preserved her position that she had not been properly served by asserting that position in her special answer and in her motion to dismiss, which were merely defensive actions. She sought no affirmative relief. See, e.g., Storey v. Brewer, 232 Ark. 552, 339 S.W.2d 112 (1960).

With respect to whether she had submitted to the court's jurisdiction by virtue of standing in the shoes of her deceased husband, we merely note that the 1999 Agreed Order of Forfeiture was entered in the decedent's criminal case, Case No. CR99-172; that the only property at issue in that order was the 1994 pick-up truck; and that the order specifically provided that all other issues related to the forfeiture of other property seized from him were to be reserved. The State provides us with no convincing legal authority nor argument persuading us that appellant was thereby not entitled to formal service of process in the instant civil forfeiture case.

Reversed and dismissed.

Jennings and Griffen, JJ., agree.