                                                                           FILED BY CLERK
                                                                              MAY 28 2010
                             IN THE COURT OF APPEALS
                                 STATE OF ARIZONA                              COURT OF APPEALS
                                                                                 DIVISION TWO
                                   DIVISION TWO

                                             )      2 CA-CV 2009-0171
                                             )      DEPARTMENT B
                                             )
IN RE SEARCH WARRANT                         )      OPINION
NO. 08 SW 1417                               )
                                             )
                                             )
                                             )

            APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                 Cause No. C-20091800

                             Honorable Ted B. Borek, Judge

                            REVERSED AND REMANDED


Terry Goddard, Arizona Attorney General
 By Albert B. Lassen                                                                Tucson
                                                           Attorneys for Plaintiff/Appellee

J. David Franklin, Sr.                                               San Diego, California
                                                                        In Propria Persona


B R A M M E R, Judge.

¶1            After obtaining and executing a search warrant for appellant J. David

Franklin, Sr. and his sole proprietorship, Hurricane Motors, the State of Arizona brought

an action for forfeiture of certain property seized as a result of the search. Franklin then

subsequently moved pursuant to A.R.S. § 13-3922 to controvert the grounds upon which

the search warrant had been issued and to recover property he alleged had been seized
illegally. The state successfully moved to dismiss the motion to controvert, arguing the

trial court lacked jurisdiction to entertain it.

¶2              Franklin now appeals from the trial court‟s order dismissing his motion.

He asserts (1) the court‟s conclusion it lacked jurisdiction to consider Franklin‟s motion

was predicated on its erroneous interpretation of § 13-3922; (2) the court improperly

based its decision on a ground the state did not present; (3) the court erred in denying his

motion with respect to seized business records, because they were not sought as a part of

the state‟s forfeiture action; and (4) § 13-3922 is unconstitutional to the extent it

precludes the owner of seized property from controverting the grounds of the search

warrant while a simultaneous forfeiture action proceeds against the same property

interests. We reverse and remand the case to the trial court.

                            Factual and Procedural Background

¶3              On December 17, 2008, Judge Deborah Bernini signed a search warrant,

supported by the affidavit of Special Agent Rick Valencia of the Arizona Attorney

General‟s Office, authorizing the state to search Franklin and Hurricane Motors1 for

“business records.” The state executed the search warrant the next day and seized, in

addition to business records, numerous items of personal property not listed in the search

warrant. These items included motor vehicles, motorcycles, bicycles, and parts. The

state then filed a return of search warrant, providing an inventory of the property and

records seized. It also filed an addendum to the search warrant, seeking approval to


       1
           We refer to Hurricane Motors and Franklin collectively as “Franklin.”

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expand the warrant to include two additional pieces of property—a motor vehicle and

engine—that also had been seized during the search.           Judge Christopher Browning

granted the addendum.

¶4            The day after the state had executed the search warrant, Judge Browning

signed a seizure warrant, supported by a second affidavit signed by Valencia, authorizing

the state‟s seizure for forfeiture of the property already seized during execution of the

search warrant.    The seizure warrant did not, however, authorize the state to seize

business records for forfeiture. On February 17, 2009, the state initiated a forfeiture

action against the items of seized property listed in the seizure warrant.

¶5            While the forfeiture action was pending before Judge Miller, Franklin filed

with a different judge a motion pursuant to § 13-3922 to controvert the grounds on which

the search warrant had been issued. The state in turn moved to dismiss Franklin‟s motion

to controvert. Judge Ted Borek granted the state‟s motion and dismissed the motion to

controvert, concluding § 13-3922(A) deprived him of jurisdiction to consider it because

of the state‟s pending forfeiture action. This appeal followed.2

                                        Discussion

Standard of Review

¶6            Franklin asserts the trial court erred in granting the state‟s motion to

dismiss. Although styled a “motion to dismiss,” the state‟s motion referred to facts not

contained in Franklin‟s motion to controvert the grounds for the search warrant,

       2
       Two other individuals, John Jay Franklin and Ladonna Lomeli, joined in J. David
Franklin‟s motion to controvert the search warrant, but they are not parties to this appeal.

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specifically the procedural history of the forfeiture action.        Thus, the motion more

properly is characterized as a motion for summary judgment. See Parks v. Macro-

Dynamics, Inc., 121 Ariz. 517, 519-20, 591 P.2d 1005, 1007-08 (App. 1979) (motion to

dismiss referring to facts not in complaint viewed as motion for summary judgment); see

also Ariz. R. Civ. P. 12(b).

¶7            In reviewing a trial court‟s ruling on a motion for summary judgment, we

determine de novo whether there existed any genuine issues of material fact, viewing the

facts in the light most favorable to the nonmoving party. Prince v. City of Apache

Junction, 185 Ariz. 43, 45, 912 P.2d 47, 49 (App. 1996); see also Ariz. R. Civ. P. 56(c).

Because the relevant facts here are undisputed, however, we need only determine whether

the court properly applied the law. See Town of Miami v. City of Globe, 195 Ariz. 176,

¶ 3, 985 P.2d 1035, 1037 (App. 1998) (“„When reviewing a grant of summary judgment

on undisputed facts, our role is to determine whether the trial court correctly applied the

substantive law to [the] facts.‟”), quoting St. Luke’s Health Sys. v. State, 180 Ariz. 373,

376, 884 P.2d 259, 262 (App. 1994) (alteration in Town of Miami).

Application of § 13-3922

¶8            Franklin first asserts the trial court‟s conclusion that it lacked jurisdiction to

consider the motion was predicated on its erroneous interpretation of § 13-3922. He

argues the statute only precludes taking testimony on a motion to controvert the grounds

of a search warrant if a forfeiture action is pending. A motion to controvert is civil in

nature, and an order denying a motion for the return of property, such as the order here

appealed, is a final judgment subject to judicial review. Greehling v. State, 135 Ariz.

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498, 500, 662 P.2d 1005, 1007 (1982); see also A.R.S. § 12-2101(A)-(B) (“An appeal

may be taken to the court of appeals . . . [f]rom a final judgment entered in an action . . .

commenced in a superior court.”); Mehrens v. State, 138 Ariz. 458, 460, 675 P.2d 718,

720 (App. 1983).

¶9            Our primary goal in interpreting § 13-3922 is to give effect to legislative

intent. State v. Ross, 214 Ariz. 280, ¶ 22, 151 P.3d 1261, 1264 (App. 2007). To

determine that intent, unless a statute is unclear or ambiguous, we look only to its plain

language. Fragoso v. Fell, 210 Ariz. 427, ¶ 7, 111 P.3d 1027, 1030 (App. 2005). If,

however, a statute is ambiguous or its meaning is unclear, “„we attempt to determine

legislative intent by interpreting the statutory scheme as a whole and consider the

statute‟s context, subject matter, historical background, effects and consequences, and

spirit and purpose.‟” Ross, 214 Ariz. 280, ¶ 22, 252 P.3d at 1264, quoting Hughes v.

Jorgenson, 203 Ariz. 71, ¶ 11, 50 P.3d 821, 823 (2002).              An issue of statutory

interpretation is a question of law that we review de novo. City of Tucson v. Clear

Channel Outdoor, Inc., 218 Ariz. 172, ¶ 5, 181 P.3d 219, 225 (App. 2008).

¶10           Section 13-3922 provides:

              A. If an owner of seized property controverts the grounds on
              which the warrant was issued, the magistrate shall proceed to
              take testimony relative thereto unless a [forfeiture]
              proceeding pursuant to chapter 39 of this title is or has been
              initiated relating to the same property interest. The testimony
              given by each witness shall be reduced to writing and
              certified by the magistrate. If it appears that the property
              taken is not the same as that described in the warrant and is
              not within § 13-3916, subsection C, D or E or § 13-3925,
              subsection C, or that probable cause does not exist for
              believing the items are subject to seizure, the magistrate shall

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              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.

              ....

              C. No stay may issue on the forfeiture of seized property or
              its use in an action pursuant to this title while contravention
              of the warrant is being litigated.

¶11           Franklin argues that, because subsection A refers only to the taking of

testimony, a pending proceeding for forfeiture of the same property interest merely

precludes the taking of testimony, but otherwise does not preclude the magistrate from

ruling on the motion to controvert.      In support of this proposition, he refers us to

subsection C of the statute, alleging it contemplates parties‟ litigating a motion to

controvert simultaneously with a pending forfeiture action.

¶12           We agree with the essence of Franklin‟s interpretation. Section 13-3922

clearly and unambiguously provides that a magistrate “shall proceed to take testimony”

unless a forfeiture action relating to the same property interest “is or has been” filed.

Thus, if such a forfeiture action is pending, the magistrate is precluded only from taking

testimony.   Nothing in the statute‟s plain language suggests the magistrate also is

precluded from deciding the motion on the papers. Despite neither citing supporting

authority nor providing any analysis, the state argues this interpretation of the statute is

“absurdly tortured.” We disagree. Because the language of § 13-3922 is clear, we need

not examine either the statutory scheme as a whole or the statute‟s context, subject




                                             6
matter, historical background, effects, consequences, spirit, or purpose. See Ross, 214

Ariz. 280, ¶ 22, 252 P.3d at 1264.

¶13           Accordingly, the trial court erred in dismissing Franklin‟s motion to

controvert. Moreover, we observe that the court may take testimony, if offered, relevant

to Franklin‟s motion as it relates to the seizure of his business records. Because the state

has not sought forfeiture of those records, no “proceeding pursuant to chapter 39 of this

title is or has been initiated” with respect to Franklin‟s property interest in those records.

§ 13-3922(A).     In light of our ruling, we need not address Franklin‟s remaining

arguments.

                                        Disposition

¶14           For the reasons stated, we reverse the trial court‟s order dismissing

Franklin‟s motion filed pursuant to § 13-3922.



                                               /s/ J. William Brammer, Jr.
                                               J. WILLIAM BRAMMER, JR., Judge

CONCURRING:



/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Presiding Judge




/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Judge


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