                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1922
                             Filed October 15, 2014


IN THE MATTER OF PROPERTY SEIZED
FOR FORFEITURE FROM DEBRA
ARMSTRONG-HARRIS and MICHAEL HARRIS

DEBRA ARMSTRONG,
     Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Marshall County, Steven J. Oeth,

Judge.



      A vehicle owner challenges a forfeiture order, claiming the State failed to

follow proper procedures in obtaining the order. AFFIRMED.




      Thomas D. Hanson of Dickinson, Mackaman, Tyler & Hagen, P.C., Des

Moines, for appellant.

      Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney

General, Jennifer Miller, County Attorney, and Benjamin J. Stansberry, Assistant

County Attorney, for appellee State.



      Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
                                           2


DOYLE, J.

       Debra Armstrong challenges a forfeiture order, claiming the State failed to

follow proper procedures in obtaining the order. We affirm.

I.     Background Facts and Proceedings

       In November 2010, the State filed an “in rem forfeiture complaint” seeking

to forfeit a 1995 Pontiac Firebird owned by Debra Armstrong-Harris and Michael

Harris.1 In October 2011, Armstrong was personally served with the complaint at

the Polk County Jail.        The complaint listed the “conduct giving rise to the

forfeiture   action”   as:    “Delivery   of   Methamphetamine,     Possession     of

Methamphetamine, Possession of Methamphetamine with Intent to Deliver,

Ongoing Criminal Conduct, Money Laundering, and/or Conspiracy to Commit

Felony.” The complaint further provided:

       SUMMARY OF PROCEDURES AND PROCEDURAL RIGHTS
               1. Persons with an interest in property the State seeks to
       forfeit by this In Rem Complaint, must file an Answer with the
       Marshall County Clerk of Court within thirty (30) days[2] after the
       service of this In Rem Complaint of Forfeiture. THIS PERIOD
       CANNOT BE EXTENDED.
               2. The Answer shall be in the form described in Iowa Code
       Section 809A.13(4) and must be signed under oath.
               3. If a timely Answer is filed, the Court will schedule a
       hearing to the Court within sixty (60) days according to Iowa Code
       Section 809A.13(7).

Armstrong did not file an answer.

       In August 2012, the State filed an “application for forfeiture order.” The

application alleged “none of the possible claimants [Armstrong and Harris] have


1
  Debra Armstrong-Harris is now known as Debra Armstrong. Michael Harris takes no
part in this appeal.
2
  Iowa Code section 809A.13(5) (2011) provides an answer “shall be filed within twenty
days after service on the claimant of the civil in rem complaint.” (Emphasis added.)
                                             3


filed a timely claim or petition for recognition of exemption” and sought immediate

forfeiture of the property. The district court approved the application on the day it

was filed and entered a forfeiture order.3

       In June 2013, Armstrong filed a “petition to vacate forfeiture order” under

Iowa Rules of Civil Procedure 1.1012 and 1.1013,4 alleging “[n]umerous

procedural irregularities appear in these proceedings which impair and defeat the

validity of the in rem forfeiture order and precluded Armstrong’s rights to prevent

the forfeiture of her automobile.”5 The State resisted Armstrong’s petition.



3
   We note it appears from the record that Harris was incarcerated at a federal prison
camp in West Virginia when the forfeiture order was entered. Rule of Civil Procedure
1.211 prohibiting entry of judgment against an incarcerated party, unless a guardian ad
litem if appointed to represent a party’s interest, did not require appointment of a
guardian ad litem for Harris because the judgment entered in the forfeiture proceeding
was a judgment against the property itself and not “against a party,” as required for
application of Rule 1.211. Under our forfeiture statute, the defendant in forfeiture
proceedings is the property sought to be forfeited, not its owner. See In re Property
Seized From Hickman, 533 N.W.2d 567, 568 (Iowa 1995).
4
   Meanwhile, a flurry of filings had taken place following Armstrong’s receipt of the
court’s forfeiture order on her vehicle. In October 2012, Armstrong sent a letter to the
district court, which the court treated as a request to set aside the default forfeiture
order. Through counsel, Armstrong then filed an “application for extension of time to
properly controvert proceedings for default in rem forfeiture order.” The district court set
Armstrong’s application for extension of time for hearing. Following the hearing, the
district court entered an order directing Armstrong to file a petition for relief under Iowa
Rule of Civil Procedure 1.1012 within the prescribed time limit in order to challenge the
forfeiture order.
5
   Specifically, an affidavit of Armstrong was attached to the petition, which alleged in
part:
                 11. At no time before October 10, 2011, was I told or informed that
         my 1995 Trans Am was in the custody of Marshall County authorities or
         the State of Iowa. I was never told that the property was “seized” on
         September 1, 2010. In fact, I know it was taken three days before then.
                 12. I was never served with an In Rem Forfeiture Complaint
         before on or about October 10, 2011, while I was in the Polk County Jail
         awaiting sentencing. That was more than 10 months after the Complaint
         was filed. I was sentenced shortly thereafter, and although I tried to get
         the Complaint to my counsel, he apparently never received it although at
         the time, he was helping my mother with federal forfeiture proceedings on
         my homestead.
                                         4


       Following a hearing, the district court denied Armstrong’s petition to

vacate.    Armstrong filed a “motion to reconsider or in the alternative second

motion for relief under rule 1.1012,” which the district court denied. Armstrong

appeals.

II.    Standard of Review

       The parties assert our review is for correction of errors at law. Indeed, this

court’s review of forfeiture proceedings is for correction of errors at law. In re

Prop. Seized for Forfeiture from Young, 780 N.W.2d 726, 727 (Iowa 2010).

Armstrong’s appeal, however, is taken from the district court’s rulings on her

petition to vacate the forfeiture order and motion to reconsider. “A proceeding for

the vacation of a judgment is on assigned errors and is not triable de novo.”

Stoner v. Kilen, 528 N.W.2d 648, 650 (Iowa Ct. App. 1995). The district court is

vested with considerable discretion when ruling on a petition to vacate judgment,

and we will only reverse if that discretion has been abused. Soults Farm, Inc. v.

Schafer, 797 N.W.2d 92, 109 (Iowa 2011). However, we are more inclined to

find an abuse of discretion when relief has been denied than when granted. Id.

III.   Discussion

       On appeal, Armstrong claims the district court should have vacated the

forfeiture order due to the State’s “multiple failures to give timely notice.”

Specifically, Armstrong asserts no notice was given to her that her vehicle was

seized in September 2010, and she was not served with the forfeiture complaint

until October 2011 “just before she was transported to a federal penitentiary.”

Relying on Iowa Rule of Civil Procedure 1.1012, Armstrong claims these failures
                                             5


amounted to procedural irregularities, which prevented her from defending the

forfeiture action. See Iowa R. Civ. P. 1.1012(2), (5). We disagree.

       The State seized Armstrong’s vehicle in September 2010, initially following

Armstrong’s arrest for driving without a license, and again several weeks later

following the execution of a search and seizure warrant for Armstrong’s home

and vehicle upon further investigation into Armstrong’s drug-related criminal

activity. See Iowa Code § 809A.6(1) (2011) (authorizing police to seize property

upon issuance of a seizure warrant), (2) (authorizing police to seize property

without process on probable cause).              Armstrong then—according to her

affidavit—attempted to locate the vehicle, but she did not file a claim for the

return of the vehicle or otherwise request the release of the vehicle. See In re

Prop. Seized for Forfeiture from Williams, 676 N.W.2d 607, 609 (Iowa 2004)

(acknowledging the State’s duty under section 809A.8(2)(b) to file a notice of

pending forfeiture against the property within ninety days after seizure was

triggered by the property owner’s filing of a claim for the return of the seized

property).6

       In November 2010, the State filed with the district court an in rem forfeiture

complaint describing the property, date, and location of the property’s seizure


6
 As the court in Williams explained:
                Section 809A.8(1)(a)(1)’s requirement that notice of pending
       forfeiture be filed within ninety days is a special statutory limitation. It
       creates the State’s right to forfeit the property in rem if an owner has
       requested the release of the property. In order to exercise its right of
       forfeiture under these circumstances, the State must comply with the time
       limits contained in the statute creating the right to forfeit the property.
       Section 809A.20’s five-year limitation is a general statute of limitation. It
       sets an outer limit for commencing the civil forfeiture action to enforce the
       State’s right of forfeiture.
676 N.W.2d at 613.
                                             6

and conduct giving rise to the forfeiture action. See Iowa Code § 809A.13(1)

(discussing judicial in rem forfeiture proceedings); (2) (allowing prosecuting

attorney to bring an action in rem “pursuant to a notice of pending forfeiture or

verified complaint for forfeiture”); see also Young, 780 N.W.2d at 728 (discussing

the ways in which an in rem proceeding might be brought, one of which does not

require a ninety-day notice). Armstrong was personally served with the forfeiture

complaint in October 2011 at the Polk County Jail. See id. §§ 809A.13(2) (“The

state may serve the complaint in the manner provided in section 809A.8,

subsection 2, or as provided by the rules of civil procedure.”); 809A.8(2)(a)(1)

(“[S]ervice of an in rem complaint [if] the owner’s or interest holder’s name and

current address are known, [shall be given] by either personal service by any

person qualified to serve process or by any law enforcement officer or by mailing

a copy of the notice by restricted certified mail to that address.”).7

       Armstrong had an opportunity to file an answer to the forfeiture complaint.8

See id. §§ 809A.13(5) (“The answer shall be filed within twenty days after service




7
   Under section 809A.13(2), service could be accomplished pursuant to section
809A.8(2) or as provided in the rules of civil procedure. The rules of civil procedure
prescribe an outer time limit for service. The legislature has not included a similar time
limit in section 809A.8(2). We are troubled by the lengthy delay in effecting service of
the complaint. But, in the absence of a statutory deadline, we decline to reverse on this
basis.
8
  Although entitled an “in rem forfeiture complaint,” the notice stated Armstrong could file
an answer contesting forfeiture of the property. Armstrong does not allege section
809A.13(3) (2011) is unconstitutional, as recognized by the court in Young, which stated
that when read literally, section 809A.13(3) “appears to prohibit an owner or interested
party from defending a forfeiture initiated pursuant to a verified complaint.” 780 N.W.2d
at 728-29. Section 809A.13 has since been amended to eliminate that sentence of
section 809A.13(3). See Iowa Code § 809A.13(3) (2013) (as amended by 2013 Iowa
Acts ch. 41, § 1).
         In any event, the Young court declined to reverse the forfeiture judgment
because “the district court afforded Young an opportunity to file an answer to the verified
                                           7


on the claimant of the civil in rem complaint.”); 809A.8(2)(b) (“Notice is effective

upon the earlier of personal service, publication, or the mailing of a written

notice.”). She did not file an answer. The State thereafter filed an application for

final order of   default forfeiture, asserting no answer had been filed by an

interested party to contest forfeiture and seeking immediate forfeiture of the

property. The court approved the application and entered a forfeiture order. See

id. § 809A.16(3) (“[I]f a proper claim is not timely filed in an action in rem, or if a

proper answer is not timely filed in response to a complaint, the prosecuting

attorney may apply for an order of forfeiture and an allocation of forfeited

property pursuant to section 809A.17. Under such circumstance and upon a

determination by the court that the state’s written application established the

court’s jurisdiction, the giving of proper notice, and facts sufficient to show

probable cause for forfeiture, the court shall order the property forfeited to the

state.”); see also In re Prop. Seized for Forfeiture from McNeal, No. 13-0161,

2014 WL 1495487, at *2 (Iowa Ct. App. Apr. 16, 2014) (“McNeal had an

opportunity to file an answer to the forfeiture complaint. The State acknowledged

this opportunity in its application for forfeiture order, filed almost five months after

McNeal was served with the complaint. Accordingly, any assertion that McNeal

was denied a right to defend the complaint would have been unsuccessful.”); In

re Prop. Seized for Forfeiture from Burgess, No. 01-1968, 2002 WL 31757526, at

*1-2 (Iowa Ct. App. Dec. 11, 2002) (“Burgess’s failure to file a timely answer to




complaint of forfeiture.” 780 N.W.2d at 729. Similarly, here, Armstrong had significant
time to file an answer to the complaint.
                                          8


the in rem complaint allowed the State to seek and obtain a forfeiture order

without first complying with rule 1.972(2).”).

       Upon our review, we conclude the State followed the proper procedures in

obtaining a forfeiture order.     The district court was within its discretion to

conclude service was proper within the general statutory provision and no special

statutory limitations were applicable.        Because Armstrong received personal

service of an in rem forfeiture complaint, her assertion that she did not receive

notice her property was seized is unfounded. And it was not until ten months

later, during which Armstrong did not file an answer to the in rem forfeiture

complaint, that the court entered the forfeiture order. Because the applicable

statutory provisions required Armstrong to file an answer to the forfeiture notice

in order to contest forfeiture, Armstrong’s assertion that she was not allowed to

defend the complaint is also unsuccessful.

       We affirm the district court’s ruling denying Armstrong’s petition to vacate

the forfeiture order regarding her vehicle.

       AFFIRMED.
