                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                  STATE OF ARIZONA, Plaintiff/Appellee,

                                        v.

              NICHOLAS S. MAUCELI, Defendant/Appellant.

                             No. 1 CA-CV 18-0063
                               FILED 12-20-2018


            Appeal from the Superior Court in La Paz County
                       No. S1500CV201700074
                The Honorable Derek C. Carlisle, Judge

                      REVERSED AND REMANDED


                                   COUNSEL

La Paz County Attorney’s Office, Parker
By Joshua C. Smith
Counsel for Plaintiff/Appellee

Robert S. Wolkin, Attorney at Law, Tucson
By Robert S. Wolkin
Counsel for Defendant/Appellant
                            STATE v. MAUCELI
                            Decision of the Court



                        MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Jon W. Thompson joined.


P E R K I N S, Judge:

¶1          Claimant Nicholas S. Mauceli appeals the superior court’s
order denying his attorney fees. For the following reasons, we reverse and
remand.

            FACTUAL AND PROCEDURAL BACKGROUND

¶2            In June 2017, the State of Arizona seized $11,113.00 in United
States currency (the “Currency”) from the trunk of Mauceli’s vehicle during
a traffic stop initiated by Department of Public Safety (“DPS”) trooper
Matthew Murray.

¶3            Murray was observing traffic on a highway in La Paz County
when he first saw Mauceli’s vehicle. Murray noticed Mauceli’s vehicle had
a paper temporary registration tag and decided to follow Mauceli and run
the vehicle’s registration. While following Mauceli’s vehicle, Murray
observed a radar detector that he believed to be in an improper location on
Mauceli’s windshield and further stated he believed Mauceli was traveling
78 miles per hour, 3 miles per hour over the posted speed limit. Murray
determined that Mauceli was speeding by pacing Mauceli’s vehicle, though
Murray later testified that “78 in a 75 . . . is probably normal for that area at
that time.” Based on Mauceli’s speed and the allegedly improperly
positioned radar detector, Murray initiated a traffic stop to “talk to
[Mauceli] about the position of . . . [the] radar detector.” Murray then issued
Mauceli a written warning for traveling 78 miles per hour in a 75 mile per
hour zone and “improper tinting of windows or windshield.” Murray’s
warning did not mention the radar detector nor did Murray indicate there
was any problem with Mauceli’s vehicle registration.

¶4           During the traffic stop, Murray stated he believed he smelled
marijuana in Mauceli’s vehicle and initiated a search. Though Murray did
not locate any marijuana or any other illicit items, he found a backpack
containing the Currency in Mauceli’s trunk. Murray then called La Paz
County detective Leif Flores to the scene and assisted him in seizing the



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                           Decision of the Court
Currency. Later, Murray testified that he would have returned the
Currency if Mauceli had provided proof of its origin.

¶5            When Flores arrived, he did not smell marijuana in or around
Mauceli’s vehicle. Nevertheless, Flores advised Mauceli he would be
arrested for money laundering if he could not explain the origin of the
Currency. Flores went on to explain that he would arrest Mauceli because
the Currency exceeded “the threshold of transporting currency” though,
while testifying at a subsequent probable cause hearing, Flores was unable
to explain the nature of this “threshold” or how transporting United States
currency within the United States is unlawful.

¶6            During the traffic stop, after informing Mauceli he would be
arrested for possessing the Currency, and allegedly after Mauceli asked if
he could avoid arrest, Flores offered Mauceli a DPS “Disclaimer of
Ownership of Currency or Property” form. Mauceli signed the form,
purporting to waive all forfeiture notice requirements, and stating Mauceli
was not the owner of the Currency. The form further indicates that the
signor “hereby state[s] that [he] is not the owner of [the] currency or
property, [he has] no legal interest in it, and [he makes] no claim for the
return of the currency or property.” Finally, the form contends that, to the
best of the signor’s knowledge, the Currency is the property of La Paz
County. After Mauceli signed the form, the State seized the Currency.
Despite their earlier threats, Murray and Flores did not arrest Mauceli.

¶7            The State filed a notice of pending forfeiture on July 20, 2017,
informing potential claimants that the Currency had been seized for
forfeiture. Mauceli filed a notice of claim and applied for an order to show
probable cause for the seizure on July 31, 2017. The State then filed a
complaint for in rem forfeiture of the Currency on August 1. Mauceli filed
his answer and a motion to dismiss on August 14. At the October 2017 show
cause hearing, the superior court found that, at that point, there was not
probable cause for the forfeiture or to believe Mauceli knew or should have
known the Currency was the proceeds of an offense.

¶8             Shortly after the hearing, the State moved to dismiss the
matter. Mauceli did not oppose the dismissal, but argued that he was
entitled to his attorney fees, damages, and treble damages under Arizona
Revised Statutes (“A.R.S.”) section 13-4314(F), as amended by Arizona
Session Laws ch. 149, § 9, which became effective on August 9, 2017. The
State objected to Mauceli’s fee request, contending § 13-4314(F) is a
substantive amendment and cannot be retroactively applied. The superior
court dismissed the action and denied Mauceli’s request for attorney fees,
expenses, damages, and treble damages.


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                             STATE v. MAUCELI
                             Decision of the Court
¶9            Mauceli timely appealed the denial. The State moved to
dismiss the appeal, contending we lack jurisdiction to review the matter.
We denied the motion, determining that the issue is appealable under
A.R.S. § 12-2101(A)(3).

                                 DISCUSSION

¶10            We review de novo issues involving interpretation,
application, and retroactivity of statutes. City of Tucson v. Whiteco Metrocom,
Inc., 194 Ariz. 390, 393, ¶ 8 (App. 1999); State v. Jensen, 193 Ariz. 105, 107–08,
¶ 16 (App. 1998).

¶11          The sole issue on appeal is whether the current § 13-4314(F)
applies to Mauceli’s claim for fees. In 2017, the Arizona legislature made
the following changes to § 13-4314:

       F. The court shall order any claimant who fails to establish
       that his entire interest is exempt from forfeiture under section
       13 4304 to pay the costs of any claimant who establishes that
       his entire interest is exempt from forfeiture under section 13
       4304 and the state's costs and expenses of the investigation
       and prosecution of the matter, including reasonable attorney
       fees may award reasonable attorney fees, expenses and
       damages for loss of the use of the property to any claimant
       who substantially prevails by an adjudication on the merits
       of a claim. If the court finds that reasonable cause did not
       exist for the seizure for forfeiture or the filing of the notice
       of pending forfeiture, complaint, information or indictment
       and that the seizing agency or attorney for the state intended
       to cause injury or was grossly negligent, the court shall
       award the claimant treble costs or damages. The court must
       apportion the award for treble costs or damages between the
       agency that made the seizure and the office of the attorney
       for the state.

2017 Ariz. Sess. Laws, ch. 149, § 9 (1st Reg. Sess.). The Governor signed
amended § 13-4314(F) on April 12, 2017, and the statute thus went into effect
on August 9, 2017. See Ariz. Const. art. 4, pt. 1, § 1(3) (effective date of statute
is 90 days after the close of the session of the legislature enacting such
measure); see also https://www.azleg.gov/general-effective-dates/.

¶12         Mauceli initially filed a notice of claim and application for
order to show cause on July 31, 2017. In response, the State filed a
Complaint against the Currency with Mauceli as a claimant on August 1,



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                            Decision of the Court
2017, alleging, inter alia, that the Currency was subject to forfeiture under
§§ 13-4301 through 13-4315. Mauceli then filed an answer to the State’s
Complaint and motion to dismiss on August 14, 2017, five days after the
new version of § 13-4314(F) went into effect. “A claim for attorney’s fees
must be made in the pleadings or in a Rule 12 motion filed before the
movant’s responsive pleading.” Ariz. R. Civ. P. 54(g)(1). Here, Mauceli
requested his attorney fees in accordance with Rule 54(g)(1) in his answer
and motion to dismiss. Thus, the operative question is when did Mauceli’s
right to attorney fees vest, if at all.

¶13           We addressed vested rights to statutorily authorized attorney
fees in Newman v. Select Specialty Hospital-Arizona, Inc., 239 Ariz. 558 (App.
2016). In Newman, a plaintiff pursuing a claim under A.R.S. § 46-455 sought
attorney fees as part of his damages for alleged vulnerable adult abuse. 239
Ariz. at 560–61, ¶¶ 2–6. During the life of the plaintiff’s case, there were
three different versions of § 46-455(H)(4). Id. at 563, ¶ 18. The first version,
in effect when the plaintiff was injured, capped attorney fees at twice the
total compensatory damages awarded in an action while the second, in
effect when the plaintiff filed his claim, limited attorney fees to no more
than the total compensatory damages awarded. Id. The final version, in
effect at the time of the verdict, eliminated an award of attorney fees
entirely. Id. Noting that “[t]he right to an award of attorney fees is a
substantive right” and that “[o]nce a substantive right vests, it may not be
impaired,” we held that the plaintiff’s right to attorney fees vests under §
46-455(H)(4) (2012) when the plaintiff files his claim. Id. at 563–64, ¶¶ 20–
21.

¶14           Under Newman, the right to attorney fees vests when it may
be asserted as a legal cause of action. 239 Ariz. at 563–64, ¶ 21; see also Hall
v. A.N.R. Freight Sys., Inc., 149 Ariz. 130, 139–40 (1986). Unlike the plaintiff
in Newman, Mauceli is a defendant in the underlying action and his first
opportunity to request fees, in accordance with Rule 54(g)(1), was his
August 14 answer to the State’s Complaint. Thus, Mauceli’s right to seek
attorney fees vested on August 14, 2017, after the effective date of Arizona
Session Laws ch. 149, § 9.

¶15            This conclusion does not impair the State’s right to seek
attorney fees under the prior version of § 13-4314(F). Under the version of
A.R.S. § 13-4314 in effect when the State brought its in rem forfeiture claim,
the State had a right to seek attorney fees from “any claimant who fails to
establish that his entire interest is exempt from forfeiture.” 2001 Ariz. Sess.
Laws, ch. 324, § 3 (1st Reg. Sess.). The State’s right to request these fees
vested under the prior version of the statute, at the latest, when it filed its
Complaint on August 1, 2017. See Newman, 239 Ariz. at 563–64, ¶¶ 18–24


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                             STATE v. MAUCELI
                             Decision of the Court
(the right to collect attorney fees vests on filing of a lawsuit). Because of the
unique procedures in civil in rem forfeiture cases, coupled with the unique
timing here, this case is subject to both the State’s vested right to seek
attorney fees under the prior statute and Mauceli’s right to seek fees under
§ 13-4314(F) (2017), as effective prior to Mauceli’s answer and motion to
dismiss.

¶16             The superior court ruled the State lacked probable cause for
the seizure. The State thereafter opted to voluntarily dismiss its claim rather
than pursuing it further, explicitly stating: “The State requests dismissal
because . . . the State does not believe it can meet its burden of proof at trial.”
The State did not prevail on the merits. Moreover, voluntary dismissal of
the State action, even without prejudice, does not preclude the superior
court from awarding attorney fees to Mauceli. See Vicari v. Lake Havasu City,
222 Ariz. 218, 225, ¶ 29 (App. 2009). Accordingly, we remand to the superior
court for factual findings in accordance with § 13-4314(F) (2017) and
consideration of Mauceli’s request for fees.

¶17          Mauceli requests his attorney fees on appeal under § 13-
4314(F) and Arizona Rule of Civil Appellate Procedure (“ARCAP”) 21. In
our discretion, we award Mauceli his reasonable attorney fees, in an
amount to be determined, and costs, upon compliance with ARCAP 21.

                                CONCLUSION

¶18            For the foregoing reasons we reverse and remand.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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