Opinion
No. 1 CA-CV 14-0217
03-24-2015
JAMES ROBERT HARRIS, an individual, Plaintiff/Appellant, v. CITY OF SCOTTSDALE, a municipal body politic and corporate, Defendant/Appellee.
COUNSEL Law Office of David Dow, Phoenix By David W. Dow Counsel for Plaintiff/Appellant Scottsdale City Attorney's Office, Scottsdale By Eric C. Anderson Counsel for Defendant/Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2013-012732
The Honorable Robert H. Oberbillig, Judge
AFFIRMED
COUNSEL Law Office of David Dow, Phoenix
By David W. Dow
Counsel for Plaintiff/Appellant
Scottsdale City Attorney's Office, Scottsdale
By Eric C. Anderson
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Maurice Portley joined.
THOMPSON:
¶1 James Robert Harris appeals from the superior court's grant of summary judgment and dismissal of his claim against the City of Scottsdale (City). For the following reasons, we affirm.
BACKGROUND
¶2 After a report that Harris and his wife were stealing from an elderly man and unlawfully using a power of attorney, Scottsdale police executed a search warrant in February 2012, in connection with its investigation into the allegations. Police seized numerous items of Harris's property from his home and a safe deposit box, including cash and jewelry. Police also impounded a vehicle and confiscated firearms. Beginning a year later, Harris demanded the return of his property because no charges had been filed against him and no notice of forfeiture had been filed. Harris's demands were ignored.
The money that Harris "held" for the victim of the alleged crimes was apparently returned to the victim.
Harris was indicted for felonies against the victim, including identity theft, in June 2014 in Maricopa Superior Court No. CR 2014-002014. The state also filed a civil forfeiture action against him in May 2014 in Maricopa Superior Court No. CV 2014-008258.
¶3 Harris subsequently filed a complaint in replevin alleging the City was wrongfully detaining his property. The City moved for summary judgment on the grounds that Harris did not file a notice of claim as required by Arizona law. After briefing, the court found that "the proper procedure for seeking the return of the property is for the Plaintiff to file a Motion pursuant to A.R.S. [§] 13-3922 in the Search Warrant matter" and granted the City's motion. Harris filed a motion to reconsider/motion for new trial, which the court denied. This appeal followed, and we have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (2015), -2101(A)(1) (2015).
DISCUSSION
¶4 We review de novo the grant of a motion for summary judgment. Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 199, ¶ 15, 165 P.3d 173, 177 (App. 2007). We are free to affirm an award of summary judgment if it is correct for any reason. Chi. Ins. Co. v. Manterola, 191 Ariz. 344, 346, ¶ 7, 955 P.2d 982, 984 (App. 1998); see also See Glaze v. Marcus, 151 Ariz. 538, 540, 729 P.2d 342, 344 (App. 1986) ("We will affirm the trial court's decision if it is correct for any reason, even if that reason was not considered by the trial court.").
¶5 Section 13-3922 provides, in relevant part:
If an owner of seized property controverts the grounds on which the warrant was issued, the magistrate shall proceed to take testimony relative thereto . . . . If it appears that the property taken is not the same as that described in the warrant . . . or that probable cause does not exist for believing the items are subject to seizure, the magistrate shall cause the property to be restored to the person from whom it was taken if the property is not such that any interest in it is subject to forfeiture or its possession would constitute a criminal offense.A.R.S. § 13-3922(A).
¶6 Harris argues the superior court erred as a matter of law in concluding § 13-3922 provides the proper procedure for him to seek the return of his seized property. Specifically, Harris contends the statute applies only to individuals who have been charged with a criminal offense and want their property returned on the basis the search warrant that led to the property's seizure was not supported by probable cause. Harris also argues the length of time police retained the property without conducting an investigation violated his due process rights. As a result, he asserts that a replevin action was the only procedure available to him to seek the return of his property.
¶7 We disagree with Harris's arguments. First, as a matter of law, replevin is not an available remedy for Harris to seek return of his seized property. The replevin statute, A.R.S. § 12-1301, in relevant part states:
If a plaintiff claims in his complaint the possession of specific personal property, he may at any time . . . before rendition of judgment file an affidavit showing:Although the police seized and held the property for more than a year before he was indicted, it is undisputed that Harris's property was either seized pursuant to a search warrant or voluntarily given to police. Moreover, Harris has not cited a statute that exempts the property from such seizure. Because the taking of Harris's property was lawful, he also does not have a common law right of replevin. See First Nat. Bank of Arizona v. Superior Court, 112 Ariz. 292, 295, 541 P.2d 392, 395 (1975) ("We conclude that there is no common law right of prejudgment replevin in Arizona when the subject matter of the dispute, although wrongfully detained, is lawfully acquired by defendant.").
. . .
the property . . . has not been seized under any process . . . or, if so seized, that it is by statute exempt from such seizure.
Without citing to the record, Harris summarily asserts "much of the property was seized as 'evidence' not under the search warrant." We disregard unsupported "facts" and instead draw the facts from properly-supported factual recitations and from the record on appeal. See Ariz. Dep't of Econ. Sec. v. Redlon, 215 Ariz. 13, 15, ¶ 2, 156 P.3d 430, 432 (App. 2007).
¶8 Additionally, as Harris notes, and the superior court's record in SW2012-001499 reflects, Harris did file a motion for return of property on February 18, 2014, nine days before he filed his notice of appeal in this case. See State v. Valenzuela, 109 Ariz. 109, 110, 506 P.2d 240, 241 (1973) (appellate court may take judicial notice of superior court records). Thus, Harris's own conduct demonstrates that replevin was not his sole available remedy to seek return of his property.
¶9 Most importantly, however, the court in the search warrant case ultimately denied Harris's motion by a minute entry order dated June 23, 2014. It found that the seized property is either evidence in a felony criminal case against Harris that began with his indictment on June 20, 2014, or is the subject of a civil in rem forfeiture action filed on May 28, 2014.
The superior court's docket indicates trial is set in the criminal matter for May 13, 2015, and by stipulation of the parties, the forfeiture action is stayed pending resolution of the criminal case.
¶10 Harris's motion for return in the search warrant case raised the same issues he raises here, and, significantly, he did not appeal from the search warrant court's denial of his motion. See Greehling v. State, 135 Ariz. 498, 500, 662 P.2d 1005, 1007 (1982) (denial of a motion for return of property seized pursuant to a search warrant is an appealable order). Accordingly, we will not find reversible error in this case because, on remand, Harris would be precluded from reiterating his challenge to the City's retention of his property. See Arizona v. California, 460 U.S. 605, 619 (1983) ("To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions.") (citing cases; quoting Montana v. United States, 440 U.S. 147, 153-54 (1979)); Hall v. Lalli, 194 Ariz. 54, 57, ¶ 7, 977 P.2d 776, 779 (1999) ("The doctrine of res judicata will preclude a claim when a former judgment on the merits was rendered by a court of competent jurisdiction and the matter now in issue between the same parties or their privities was, or might have been, determined in the former action."); see also Pettit v. Pettit, 218 Ariz. 529, 531, ¶ 4, 189 P.3d 1102, 1104 (App. 2008) (noting that the application of res judicata is a question of law that we review de novo).
¶11 Finally, the Arizona cases Harris relies upon do not support his position. For example, in Greehling, our supreme court addressed whether a superior court's denial of a motion for return of property under A.R.S. § 13-3922 can be reviewed by direct civil appeal. 135 Ariz. at 498, 662 P.2d at 1006. Unlike here, the movants in that case did not seek return of their property in a replevin action. Id. The same distinguishing factor is found in State v. Salerno, upon which Harris primarily relies. In that case, a prison inmate "filed a motion with the court to return the seized property" that was the subject of an indictment the court had dismissed. 216 Ariz. 22, 23, ¶¶ 2-3, 162 P.3d 661, 662 (App. 2007).
Based on our resolution of this appeal, we do not address whether Harris's failure to file a notice of claim required dismissal of his complaint.
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CONCLUSION
¶12 We affirm the judgment.