Michael Akkouche, Appellant, vs. 1999 Chrysler Concorde, 4 door, VIN No. 2 C3HD46J9XH620614, Respondent.

Michael Akkouche, Appellant, vs. 1999 Chrysler Concorde, 4 door, VIN No. 2 C3HD46J9XH620614, Respondent. A06-1333, Court of Appeals Unpublished, September 11, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1333

 

Michael Akkouche,

Appellant,

 

vs.

 

1999 Chrysler Concorde, 4 door,

VIN No. 2C3HD46J9XH620614,

Respondent.

 

 

Filed September 11, 2007

Affirmed Worke, Judge

 

Anoka County District Court

File No. CX-05-7718

 

Stan Nathanson, 14700 North FLW Boulevard, Suite 157, Scottsdale, AZ 85260 (for appellant)

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Robert M.A. Johnson, Anoka County Attorney, Kristin Larson, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Seventh Floor, Anoka, MN 55303 (for respondent)

 

            Considered and decided by Worke, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.

 

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

On appeal from an order dismissing a complaint challenging the drug-related forfeiture of his vehicle, appellant argues that he had a Fifth Amendment privilege to not respond to the state's discovery requests and that the agency failed to prove a sufficient connection between the vehicle and the drug activity to support forfeiture.  We affirm.

 D E C I S I O N

            Appellant Michael Akkouche argues that the district court abused its discretion by dismissing his complaint for judicial determination of forfeiture for failing to respond to discovery because he had a Fifth Amendment right to not respond.  The district court dismissed appellant's complaint under Minn. R. Civ. P. 41.02(a), which states that "[t]he court may upon its own initiative, or upon motion of a party, and upon such notice as it may prescribe, dismiss an action or claim for failure to prosecute or to comply with these rules or any order of the court."  Appellate courts will reverse an involuntary dismissal under Minn. R. Civ. P. 41.02(a) when the district court abused its discretion.  Bonhiver v. Fugelso, Porter, Simich & Whiteman, Inc., 355 N.W.2d 138, 144 (Minn. 1984). 

            Appellant was pulled over in his vehicle while in possession of methamphetamine and pleaded guilty to fifth-degree controlled-substance crime.  Appellant was served with notice of forfeiture of the vehicle and filed a complaint demanding a judicial determination regarding the forfeiture.  "[A]ll conveyance devices containing controlled substances with a retail value of $100 or more if possession or sale of the controlled substance would be a felony under chapter 152" are subject to administrative forfeiture.  Minn. Stat. § 609.5314, subd. 1(a)(2) (Supp. 2005).  The forfeiture action in this case "is a civil in rem action and is independent of any criminal prosecution."  Minn. Stat. § 609.531, subd. 6a (2004).  Proceedings in a judicial forfeiture determination are governed by the Minnesota Rules of Civil Procedure.  Minn. Stat. § 609.5314, subd. 3(a) (2004).

            Parties may obtain discovery regarding any matter, not privileged, that is relevant to a claim or defense of any party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. 

 

Minn. R. Civ. P. 26.02(a).  A party upon whom discovery requests are served shall serve a written response within 30 days.  Minn. R. Civ. P. 33.01(b) (interrogatories), 34.02 (production of documents), 36.01 (admissions).     

            On September 15, 2005, the county served discovery requests.  Under the rules, appellant's discovery responses were due on or before October 18, 2005.  On October 21, the county called appellant's attorney, who failed to return the call.  In December, the county received appellant's answers to the requests for admissions and a letter from appellant's attorney indicating that the remaining discovery would be provided "by the end of next week."  Appellant failed to complete the requests for discovery.  The county moved to compel discovery or dismiss.  Appellant failed to appear at the hearing, and the district court granted the motion to dismiss.  Because appellant failed to respond to discovery, the district court was within its discretion to dismiss appellant's complaint. 

Appellant also argues that the district court erred in determining that the vehicle was subject to forfeiture, contending that there was no connection between the vehicle and the criminal activity.  Determining whether the district court erred in ordering the forfeiture of the vehicle requires review of the forfeiture statute.  "Statutory construction is a question of law, which this court reviews de novo." Wolf Motor Co. v. One 2000 Ford F-350, 658 N.W.2d 900, 902 (Minn. App. 2003).  This court's "primary objective in interpreting statutory language is to give effect to the legislature's intent as expressed in the language of the statute."  Pususta v. State Farm Ins. Cos., 632 N.W.2d 549, 552 (Minn. 2001).  The drug-forfeiture statute must be liberally construed to effectuate its remedial purposes, including reducing the economic incentives for engaging in crime and increasing the pecuniary loss resulting from the detection of criminal activity.  Minn. Stat. § 609.531, subd. 1a (2004).

Under the forfeiture statute, all property "that has been used, or is intended for use, or has in any way facilitated, in whole or in part, the . . . delivering, . . . transporting, or exchanging of contraband or a controlled substance" is subject to forfeiture.  Minn. Stat. § 609.5311, subd. 2(a) (Supp. 2005).  A motor vehicle "containing controlled substances with a retail value of $100 or more," if the sale or possession of the controlled substances would constitute a felony, is "presumed to be subject to administrative forfeiture."  Minn. Stat. § 609.5314, subd. 1(a)(2).  The claimant of the property bears the burden to rebut the presumption.  Id., subd. 1(b) (Supp. 2005).   

Here, the county's request for admissions included the following: admit that (1) appellant was pulled over while driving his vehicle; (2) officers found methamphetamine on appellant; (3) the vehicle was used, intended for use, or facilitated the transporting of a controlled substance; (4) the controlled substance had a value of $100 or more; and (5) appellant pleaded guilty to fifth-degree controlled-substance crime.  A matter is deemed admitted unless the person upon whom the request is served responds within 30 days.  Minn. R. Civ. P. 36.01.  Appellant failed to respond; therefore, it is deemed admitted that appellant was stopped while driving the vehicle, that he had methamphetamine, that he used the vehicle to transport the methamphetamine, and that the methamphetamine had a value of $100 or more.  The district court did not err in determining that the vehicle was subject to forfeiture.

            Affirmed.