IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

IN RE $15,379 IN U.S. CURRENCY

No. 2 CA-CV 2015-0166

Filed October 18, 2016

Appeal from the Superior Court in Pinal County

Nos. CV201301603 and CV201301728 (Consolidated)

The Honorable Jason R. Holmberg, Judge

AFFIRMED IN PART;

REVERSED IN PART AND REMANDED

COUNSEL

Kenneth S. Countryman, P.C., Tempe

By Kenneth S. Countryman

Counsel for Appellant Corrina Macias

M. Lando Voyles, Pinal County Attorney

By Alex Mahon, Deputy County Attorney, Florence

Counsel for Appellee the State of Arizona
IN RE $15,379 U.S. CURRENCY

Opinion of the Court

2

OPINION

Chief Judge Eckerstrom authored the opinion of the Court, in which 

Judge Staring and Judge Fink1 concurred.

E C K E R S T R O M, Chief Judge:

¶1 In this civil forfeiture proceeding, appellant Corrina

Macias challenges the trial court’s refusal to award attorney fees, 

costs, and prejudgment interest when the proceeding terminated in 

her favor. She further contends the court erred in not ordering the 

state either to immediately return the currency seized from her or to 

issue payment. For the reasons that follow, we reverse the court’s 

order denying the immediate return of the property or an equivalent 

payment, the order denying costs, and the order denying sanctions 

under Rule 11, Ariz. R. Civ. P. We otherwise affirm the judgment.

Factual and Procedural Background

¶2 On May 28, 2013, a Pinal County Sheriff’s deputy seized 

over $15,000 in cash from a vehicle driven by Macias’s husband,

who was also transporting a sizeable load of marijuana. Due to 

defects in the resulting forfeiture action, the trial court determined it 

lacked jurisdiction over the proceeding and ordered the currency 

returned to Macias, with one qualification. The court specifically 

ordered that the property be returned “to the extent that this 

$15,379.00 is not being held as evidence in any criminal matter.” 

The court subsequently denied Macias’s request for attorney fees, 

costs, and expenses. It further denied her request for immediate 

release of the property or an equivalent payment, again citing the 

 

1The Hon. Thomas Fink, a judge of the Santa Cruz County

Superior Court, is authorized and assigned to sit as a judge on the 

Court of Appeals, Division Two, pursuant to Arizona Supreme 

Court order filed July 13, 2016.
IN RE $15,379 U.S. CURRENCY

Opinion of the Court

3

pending criminal matter against her husband and the prosecutor’s 

assertion that the currency was being held as evidence.

¶3 Although the trial court’s order initially lacked 

certification pursuant to Rule 54(c), Ariz. R. Civ. P., we stayed the 

appeal sua sponte and revested jurisdiction in the trial court to 

obtain such certification. See Ariz. R. Civ. App. P. 3(b); Madrid v. 

Avalon Care Ctr.-Chandler, L.L.C., 236 Ariz. 221, ¶ 5, 338 P.3d 328, 

330-31 (App. 2014). With a formal judgment now included in the 

appellate record, we have jurisdiction pursuant to 

A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).

Discussion

Return of Currency or Payment

¶4 On appeal, Macias contends the state’s action is 

“unlawful” and violates due process “because the state has no 

legitimate basis for the refusal to issue payment” or return the 

property. Regardless of whether this argument was preserved 

below,2 we address its merits because doing so is necessary to avoid 

an erroneous decision on appeal. See Nold v. Nold, 232 Ariz. 270, 

¶ 10, 304 P.3d 1093, 1096 (App. 2013) (noting waiver a discretionary 

doctrine). “[W]hen interpretation and application of statutes are 

involved, we are not necessarily ‘limited to the arguments made by 

the parties if that would cause us to reach an incorrect result.’” 

Odom v. Farmers Ins. Co. of Ariz., 216 Ariz. 530, ¶ 18, 169 P.3d 120, 125 

(App. 2007), quoting Yarbrough v. Montoya-Paez, 214 Ariz. 1, n.6, 147 

P.3d 755, 762 n.6 (App. 2006).

¶5 Our forfeiture statutes generally provide that property 

not subject to forfeiture must be returned.3 See A.R.S. §§ 13-4310(B), 

 

2In the trial court, Macias argued her “property [was] being 

wrongfully withheld by the state,” and her motion for relief cited 

Arizona case law based on due process principles.

3We do not address contraband in this opinion, which is an 

exception to the general rule. See State v. Gambling Equip., 45 Ariz. 

112, 117-18, 40 P.2d 746, 748 (1935) (stating property without lawful 

use will not be returned to owner).
IN RE $15,379 U.S. CURRENCY

Opinion of the Court

4

13-4314(E). However, those statutes also implicitly recognize, as 

does our case law, that the state may retain seized property as 

evidence for criminal prosecutions. See A.R.S. § 13-4306(G)(2); State

v. Fifteen Slot Machines, 45 Ariz. 118, 119, 40 P.2d 748, 749 (1935); cf. 

A.R.S. §§ 13-3941(C) (stolen or embezzled property), 13-4429(A), (B)

(crime victim’s property, generally). The power to seize evidence 

has long existed under the common law, Smith v. Jerome, 93 N.Y.S. 

202, 202-03 (N.Y. Sup. Ct. 1905), but that power is limited by the 

“fundamental principle that our Constitution protects . . . against 

unreasonable . . . seizures.” Search Warrants C-419847 & C-419848 v. 

State, 136 Ariz. 175, 176, 665 P.2d 57, 58 (1983) (emphasis added). 

Accordingly, even when a lawful arrest and seizure have occurred, 

the retention of property as evidence for a criminal prosecution must 

be reasonable under the Fourth and Fourteenth Amendments to the 

United States Constitution. Krimstock v. Kelly, 464 F.3d 246, 250-51 

(2d Cir. 2006).

¶6 Whether items are seized for civil forfeiture or criminal 

prosecution, a deprivation of property occurs whenever the state 

retains someone’s belongings, and the owner who is affected may be 

an innocent party not involved in a criminal case. See id. at 254; 

Greehling v. State, 135 Ariz. 498, 500, 662 P.2d 1005, 1007 (1982). 

People therefore may seek the return of their seized property under 

the Fourteenth Amendment’s Due Process Clause or article II, § 4 of 

the Arizona Constitution.

4 See In re Approximately $50,000, 196 Ariz. 

626, ¶¶ 8, 11, 2 P.3d 1271, 1274, 1275-76 (App. 2000).

¶7 Although we have found no Arizona authority 

addressing the particular issue in this case, numerous federal 

appellate courts recognize that “[a] prosecutor’s right to retain 

material evidence necessary for trial does not mean that prosecutors 

can decide unilaterally that [the property] is material and its 

retention necessary.” Krimstock, 464 F.3d at 255; accord Black Hills 

Inst. of Geological Research v. U.S. Dep’t of Justice, 967 F.2d 1237, 

 

4In addition to the statutes cited above, a person also might 

seek the return of seized property through Rule 28.2, Ariz. R.

Crim. P., or A.R.S. § 13-3922, though those provisions are not 

implicated here.
IN RE $15,379 U.S. CURRENCY

Opinion of the Court

5

1240-41 (8th Cir. 1992) (while government “may take whatever steps 

necessary to establish proof of the evidence,” government “may not 

in all cases insist on holding the [property] itself as evidence to be 

presented to the jury”); In re Smith, 888 F.2d 167, 168 (D.C. Cir. 1989)

(per curiam) (“bald assertion” that money has evidentiary value is 

insufficient to justify withholding property). The procedural due 

process framework set forth in Mathews v. Eldridge, 424 U.S. 319, 335 

(1976), applies to motions to return seized property. See Krimstock, 

464 F.3d at 253-54. This means, at minimum, that a trial court must 

subject the state’s asserted need for property “to scrutiny for 

reasonableness,” “weighing the competing interests . . . in light of 

less drastic means.” Id. at 251. “If the [state]’s sole interest in 

retaining . . . currency is for its use as evidence, the court should 

consider whether this purpose would be equally well served by the 

alternatives to holding the money itself . . . .” United States v. 608 

Taylor Ave., 584 F.2d 1297, 1304 (3d Cir. 1978).

¶8 Here, the trial court did not reach the question of 

reasonableness presented by Macias’s motions. She sought either 

the immediate return of her currency or an equal payment because

“[m]oney is fungible.” Ariz. Dep’t of Revenue v. M. Greenberg Constr., 

182 Ariz. 397, 401, 897 P.2d 699, 703 (App. 1995), abrogated on other 

grounds by Valencia Energy Co. v. Ariz. Dep’t of Revenue, 191 Ariz. 565, 

¶¶ 10 & n.3, 34, 959 P.2d 1256, 1261 & n.3, 1267 (1998). She also

argued below, and the state did not dispute, that actual cash is 

typically not presented as evidence in criminal cases. Such evidence 

usually takes the form of photographs and photocopies, which were 

in fact obtained by the state here in the related criminal case.

¶9 The record does not disclose why the prosecutor 

insisted upon retaining the actual currency. The state failed to file a 

written response to Macias’s request for the immediate release of the 

money or repayment, and the state articulated no specific 

evidentiary need for this property at the subsequent hearing. Thus, 

in taking under advisement Macias’s request for immediate relief, 

the trial court observed, “I don’t think that you are making an 

unreasonable request, I just want to make sure under the law . . . I’m 

not messing up anything in the criminal matter.” To the extent the 

court believed that it was not empowered to order the relief 
IN RE $15,379 U.S. CURRENCY

Opinion of the Court

6

requested, or did not consider the reasonableness of retaining the 

currency in light of the available alternatives, this was an error of 

law representing an abuse of the court’s discretion. See State v. 

Mangum, 214 Ariz. 165, ¶ 6, 150 P.3d 252, 254 (App. 2007). 

Furthermore, given the state’s failure to allege any particular need to 

retain the currency as evidence, the record is devoid of any ground

to support the order denying relief. See Little v. Little, 193 Ariz. 518, 

¶ 5, 975 P.2d 108, 110 (1999) (“An abuse of discretion exists when the 

record, viewed in the light most favorable to upholding the trial 

court’s decision, is ‘devoid of competent evidence to support’ the 

decision.”), quoting Fought v. Fought, 94 Ariz. 187, 188, 382 P.2d 667, 

668 (1963).

¶10 On appeal, the state offers several arguments to support 

the trial court’s ruling, essentially echoing the court’s observation 

that “there is a division” between the benches of the superior court. 

The state contends, specifically, that civil forfeiture and criminal 

prosecution are “parallel” and “entirely separate” proceedings, with 

a “civil trial court” lacking “jurisdiction” or “authority” to return 

property held as evidence in a pending criminal case. The state 

further suggests that the court could grant Macias no relief beyond 

declaring her interest in the property. We are not persuaded by 

these assertions, many of which the state offers in conclusory 

fashion.

¶11 Proceedings to return seized property are often civil in 

nature, yet that characterization does not limit a trial court’s power 

to grant relief. See, e.g., Greehling, 135 Ariz. at 500, 662 P.2d at 1007. 

Indeed, when a court is authorized to order the return of property, it 

is irrelevant that the disposition may affect a related criminal case 

over which the court does not have jurisdiction. See State ex rel. 

Milstead v. Melvin, 140 Ariz. 402, 405, 682 P.2d 407, 410 (1984). But 

the trial court here did not lack jurisdiction in any sense.

¶12 The superior court is a single court of general 

jurisdiction, In re Approximately $50,000, 196 Ariz. 626, ¶ 7, 2 P.3d at 

1274, and its administrative divisions have no effect on its

jurisdiction. Marvin Johnson, P.C. v. Myers, 184 Ariz. 98, 102, 907 P.2d 

67, 71 (1995). Even when an in rem forfeiture proceeding is 

improperly initiated, as happened in this case, the superior court has 
IN RE $15,379 U.S. CURRENCY

Opinion of the Court

7

jurisdiction to order the return of property within the state to its 

owner. In re Approximately $50,000, 196 Ariz. 626, ¶ 7, 2 P.3d at 1274.

¶13 The superior court had original jurisdiction here under 

article VI, § 14(3) or (11) of the Arizona Constitution, see State ex rel. 

Neely v. Brown, 177 Ariz. 6, 9, 864 P.2d 1038, 1041 (1993), and could 

make necessary orders pursuant to A.R.S. § 12-123(B). See In re 

Approximately $50,000, 196 Ariz. 626, ¶ 8, 2 P.3d at 1274. Under the 

text of § 13-4314(E), which allows compensation for an “interest” in 

property, the court was not necessarily restricted to ordering the 

return of the actual currency seized. See State v. Clifton Lodge No. 

1174, Benev. & Protective Order of Elks of U.S., 20 Ariz. App. 512, 513, 

514 P.2d 265, 266 (App. 1973) (forfeiture statutes “are to be 

construed according to the fair import of their terms, with a view to 

effect their object and to promote justice”); cf. A.R.S. § 12-1838

(authorizing “necessary or proper” orders for further relief based on 

declaratory judgment).

¶14 Moreover, as the state conceded at oral argument, the 

state has no “absolute right to retain an individual’s property,” and 

it cannot justify a continued deprivation simply by asserting that the 

relevant statute of limitations has not expired. State v. Salerno, 216 

Ariz. 22, ¶¶ 12, 17, 162 P.3d 661, 664 (App. 2007). Rather, the state 

must articulate a reasonable basis for retaining the property. See id. 

¶ 19. Such a basis is lacking on the record before us. We therefore 

reverse the trial court’s order denying the immediate release of the 

currency or an equivalent payment.5

Attorney Fees

¶15 Macias next contends the trial court abused its 

discretion by not awarding attorney fees under either Rule 11, Ariz. 

R. Civ. P., or A.R.S. § 13-2314(A). We review all aspects of a court’s 

 

5As we discuss in paragraph thirty-two and footnote seven of 

this opinion, we do not address the state’s assertions concerning a 

new forfeiture proceeding allegedly affecting this currency, because 

no issue related to that proceeding is properly before us in this 

appeal.
IN RE $15,379 U.S. CURRENCY

Opinion of the Court

8

Rule 11 order for an abuse of discretion. James, Cooke & Hobson, Inc. 

v. Lake Havasu Plumbing & Fire Prot., 177 Ariz. 316, 319, 868 P.2d 329, 

332 (App. 1993). An abuse-of-discretion standard of review also

applies to a trial court’s decision to grant or deny fees under 

§ 13-2314(A). See Hannosh v. Segal, 235 Ariz. 108, ¶ 22, 328 P.3d 1049, 

1056 (App. 2014); State ex rel. Goddard v. Gravano, 210 Ariz. 101, ¶ 37, 

108 P.3d 251, 260 (App. 2005).

¶16 As our supreme court stated in Boone v. Superior Court:

Rule 11 is violated by the filing of a 

pleading when the party or counsel knew, 

or should have known by such 

investigation of fact and law as was 

reasonable and feasible under all the 

circumstances, that the claim or defense 

was insubstantial, groundless, frivolous, or 

otherwise unjustified. It is also violated by 

the filing of pleadings for an improper 

purpose such as those intended to harass, 

coerce, extort, or delay.

145 Ariz. 235, 241-42, 700 P.2d 1335, 1341-42 (1985). The rule, in 

other words, can result in sanctions if either an objective basis for a 

claim is lacking or the claim was brought for an improper subjective 

purpose. See In re Levine, 174 Ariz. 146, 153, 847 P.2d 1093, 1100 

(1993); In re Estate of Friedman, 217 Ariz. 548, ¶ 32 & n.11, 177 P.3d 

290, 298-99 & 299 n.11 (App. 2008).

¶17 Here, the trial court found two jurisdictional defects in 

the forfeiture proceeding. First, the notice of pending forfeiture was 

not properly served, because the law enforcement officer who issued 

it did not obtain the prior authorization from the county attorney 

required by A.R.S. § 13-4308(A). Second, the state’s claim was filed 

seventy-two days after the seizure for forfeiture, beyond the 

sixty-day limit prescribed by § 13-4308(B).

¶18 Citing these shortcomings, Macias first suggests the 

attorney who initiated the forfeiture did not have a “subjective 
IN RE $15,379 U.S. CURRENCY

Opinion of the Court

9

basis” for believing the action was sustainable. 6 The trial court 

noted, however, that there was some evidence in the record 

suggesting the officer had properly contacted the attorney for the 

state and the resulting notice of forfeiture was properly served. 

Ultimately, because neither the officer nor the attorney could 

remember the details in this particular case, the court found that 

evidence deficient. But the record nonetheless supports a finding 

that the attorney believed he had complied with § 13-4308(A). The 

record likewise supports a finding that the state’s attorney believed 

he had complied with § 13-4308(B) insofar as the state asserted in its 

responsive filing, albeit mistakenly, that the proceeding was timely 

initiated. We therefore have no basis to disturb the trial court’s 

implicit determination under Rule 11 that the state’s attorney acted 

with appropriate intentions. Furthermore, given that § 13-2314(A) 

states that a trial court “may . . . award[] costs and reasonable 

attorney fees” to a person who prevails in an adverse forfeiture 

action, we cannot conclude the trial court erred in denying a 

discretionary fee award under this provision. (Emphasis added.)

¶19 We agree with Macias, however, that the state lacked an 

objective basis for initiating the untimely forfeiture proceeding. “An 

attorney violates Rule 11 by filing a document that he or she knows 

or should know asserts a position that ‘is insubstantial, frivolous, 

groundless or otherwise unjustified.’” Cal X-Tra v. W.V.S.V. 

Holdings, L.L.C., 229 Ariz. 377, ¶ 113, 276 P.3d 11, 44 (App. 2012), 

quoting James, Cooke & Hobson, Inc., 177 Ariz. at 319, 868 P.2d at 332. 

Compliance with this rule is measured by an objective standard of 

reasonableness. Id.; Standage v. Jaburg & Wilk, P.C., 177 Ariz. 221,

230, 866 P.2d 889, 898 (App. 1993). The relevant inquiry is whether, 

under the circumstances presented, a reasonably prudent attorney 

would have instituted the proceeding. Smith v. Lucia, 173 Ariz. 290, 

297, 842 P.2d 1303, 1310 (App. 1992). When an attorney signs a 

pleading in violation of the rule, some form of sanction is required. 

See Wells Fargo Credit Corp. v. Smith, 166 Ariz. 489, 497, 803 P.2d 900, 

908 (App. 1990) (Rule 11 sanctions “mandatory”); see also Cal X-Tra, 

 

6A different attorney was substituted as counsel for the state 

on appeal.
IN RE $15,379 U.S. CURRENCY

Opinion of the Court

10

229 Ariz. 377, ¶ 112, 276 P.3d at 44; Villa De Jardines Ass’n v. Flagstar 

Bank, FSB, 227 Ariz. 91, ¶ 13, 253 P.3d 288, 293 (App. 2011).

¶20 Section 13-4308(B), as noted, requires the state to 

commence a civil forfeiture proceeding within sixty days of seizing 

property by a notice of pending forfeiture. We have held that the 

plain language of this statute “does not allow the court to excuse the 

state’s failure to timely initiate forfeiture proceedings for 

‘oversight.’” In re $3,636.24, 198 Ariz. 504, ¶ 15, 11 P.3d 1043, 1045

(App. 2000).

¶21 Here, the state offered no reason for filing its complaint 

nearly two weeks after this deadline. The state only mistakenly 

asserted in its response to Macias’s motion—a response that was, 

itself, untimely filed—that the proceeding had been timely initiated. 

The proceeding had no chance of success in light of In re $3,636.24, 

and counsel offered no argument to limit or modify that precedent. 

Furthermore, Macias filed a claim in the trial court seeking the 

return of her property during the period of time in which the state 

still could initiate a timely forfeiture proceeding. On the particular 

facts before us, we therefore conclude that counsel for the state 

failed to conduct an adequate inquiry into the factual and legal basis 

for the forfeiture action and fell below objective standards of 

professional competence. See Standage, 177 Ariz. at 230, 866 P.2d at 

898.

¶22 Accordingly, even when we put aside counsel’s alleged

improper delegation of duties under § 13-4308(A), we find that the 

state engaged in sanctionable conduct by untimely initiating the 

present forfeiture proceeding. The trial court did not explain the 

grounds for its Rule 11 ruling on the record. If the court determined 

no violation of the rule occurred, this would represent an error of 

law and an abuse of the court’s discretion. See James, Cooke & 

Hobson, Inc., 177 Ariz. at 319 n.4, 868 P.2d at 332 n.4. On remand, we 

therefore direct the court to impose an appropriate sanction for the 

state’s violation of Rule 11, including possible attorney fees. See 

Taliaferro v. Taliaferro, 188 Ariz. 333, 341, 935 P.2d 911, 919 (App. 

1996) (recognizing trial court’s discretion in fashioning sanction with

appropriate “relationship to the expenses directly caused by the 

sanctionable conduct”).
IN RE $15,379 U.S. CURRENCY

Opinion of the Court

11

¶23 Macias also sought an award of attorney fees under a 

mandamus theory pursuant to A.R.S. § 12-2030. This statute 

provides that a court must award “fees and other expenses” to a 

private party who “prevails by an adjudication on the merits in a 

civil action brought by the party against the state . . . to compel a 

state officer . . . to perform an act imposed by law as a duty on the 

officer.” § 12-2030(A).

¶24 The present forfeiture proceeding was a civil action

initiated by the state; it was not an action “brought by [a] party 

against the state.” Id. Although Macias had earlier filed a “judicial 

claim” seeking the release of the currency, this document was filed 

within the sixty-day period of time in which the state could initiate a 

forfeiture proceeding, when no legal duty existed to release the 

property from its seizure for forfeiture under § 13-4308(B). See In re 

Approximately $50,000, 196 Ariz. 626, ¶¶ 6-7, 10, 2 P.3d at 1274, 1275

(holding person with interest in property cannot compel forfeiture 

proceeding).

¶25 An action seeks mandamus relief only “if it seeks to 

compel a public official to perform a non-discretionary duty 

imposed by law.” Stagecoach Trails MHC, L.L.C. v. City of Benson, 231 

Ariz. 366, ¶ 19, 295 P.3d 943, 947 (2013). Absent a statutory duty to 

release the currency here from its seizure for forfeiture, and given 

the discretion that prosecutors generally have to retain evidence in 

criminal cases, the present action did not seek relief in the nature of 

mandamus. The fact that Macias prevailed in the forfeiture 

proceeding and has now secured the release of her property or an 

equivalent payment does not transform the proceeding into a 

mandamus action. See id. ¶ 21. Thus, the trial court did not err in 

refusing to grant the fees requested under the mandamus statute.

Costs

¶26 Macias also contends, as she did below, that she is 

entitled to recover her costs under A.R.S. § 12-341 as “[t]he 

successful party to a civil action.” We agree. An award of costs was 

mandatory and not subject to the trial court’s discretion. See Roddy 

v. County of Maricopa, 184 Ariz. 625, 627, 911 P.2d 631, 633 (App. 

1996). Although the state filed no objection to the statement of costs 
IN RE $15,379 U.S. CURRENCY

Opinion of the Court

12

below, it now asserts that the expenses Macias sought to recover

cannot be awarded as taxable costs under A.R.S. §§ 12-332 and 

12-341. We find the state’s contention waived and decline to address 

it in the first instance. See Airfreight Express Ltd. v. Evergreen Air Ctr., 

Inc., 215 Ariz. 103, ¶ 17, 158 P.3d 232, 238 (App. 2007).

Prejudgment Interest

¶27 Macias further argues she is entitled to an award of 

prejudgment interest pursuant to A.R.S. § 12-823. Rule 13(a)(7)(A), 

Ariz. R. Civ. App. P., requires an appellant to provide supporting 

record citations in the argument section of her opening brief. 

Because Macias’s opening brief failed to provide the necessary 

record citations demonstrating that she raised this issue below, we 

find the argument waived on appeal. See Spillios v. Green, 137 Ariz. 

443, 447, 671 P.2d 421, 425 (App. 1983).

Appellate Sanctions

¶28 Given the state’s conduct in this appeal, we ordered 

briefing on whether it is appropriate for this court to impose 

appellate sanctions. Having received those briefs, we now find that

sanctions in the form of appellate attorney fees are warranted

pursuant to A.R.S. § 12-349(A)(3) and Rule 25, Ariz. R. Civ. App. P.

¶29 Section 12-349(A)(3) allows a court to assess attorney 

fees in a civil appeal if the state unreasonably delays the proceeding. 

Here, the state unreasonably delayed the appeal by initially failing 

to file a timely answering brief, failing to file any motion in response 

to this court’s order dated February 5, 2016 deeming the appeal 

submitted for our review, and failing to allege good cause for 

reopening the case until March 31, 2016, ten days after the appeal 

had been reinstated in this court following the entry of a formal 

judgment. Absent a timely answering brief, this court was prepared 

to treat the state as having confessed error to the debatable issues 

raised. See Mahar v. Acuna, 230 Ariz. 530, ¶ 21, 287 P.3d 824, 830 

(App. 2012). The state’s motion to reopen the case and allow further 

briefing on appeal, although summarily granted by the clerk of this

court, did not establish good cause for the state’s delay, especially 

when viewed in light of later developments. See Ariz. R. Civ. 
IN RE $15,379 U.S. CURRENCY

Opinion of the Court

13

App. P. 6(b)(2) (acknowledging appellate court’s power to 

independently review procedural motions granted by clerk).

¶30 The state’s motion to reopen alleged two specific 

grounds for its failure to act in a timely fashion: (1) the trial court 

proceedings had been stayed below in response to Macias’s May 5, 

2014 motion “and a final appealable judgment was precluded 

thereby” and (2) the order from which the appeal was taken lacked 

the necessary certification under Rule 54(c), Ariz. R. Civ. P. The first 

ground was entirely without merit because the parties addressed the 

trial court’s stay order at the first of three hearings held in this 

proceeding. Macias clarified in December 2014 that the stay she had 

requested did not apply to her motion to return the currency, and 

neither the parties nor the court interpreted the stay as precluding

further hearings or orders. Moreover, if the state actually believed 

that the trial court’s stay order prevented the entry of a final,

appealable judgment, the state should have filed a motion in this 

court pursuant to Rule 6, Ariz. R. Civ. App. P., to dismiss the appeal 

for lack of jurisdiction. Yet the state never made such a motion nor 

advanced such an argument.

¶31 The state’s second ground for reopening the case was 

similarly without merit because a lack of certification does not result 

in a lack of appellate jurisdiction, see Madrid, 236 Ariz. 221, ¶ 5, 338 

P.3d at 330-31, and the proper response to such a defect, again,

would have been to seek an appropriate order from this court by 

motion pursuant to Rule 6. In sum, the state’s proffered reasons for 

its delay neither explained nor excused its failure to respond to this 

appeal until ten days after the appeal had come at issue for our 

decision.

¶32 Macias’s time-sensitive demand for the immediate 

return of her currency or an equivalent payment was a central issue 

in this appeal. The state’s answering brief opposed this request for 

immediate relief, however, and on June 13, 2016, the state requested 

oral argument in this court. At oral argument held in July 2016, the 

state then conceded for the first time that the trial court had erred by

denying the request and not actually releasing the currency. The 

state further asserted for the first time that the issue was now moot 

due to a new, separate forfeiture proceeding that counsel for the 
IN RE $15,379 U.S. CURRENCY

Opinion of the Court

14

state had filed at the end of June 2016, when its request for oral 

argument in this case was still pending.

7

¶33 Given that the state has, in effect, exploited its 

unreasonable delay in this appeal in an apparent effort to deny 

Macias the relief to which she was admittedly entitled, we find 

sanctions appropriate under § 12-349(A)(3). We also find sanctions

of attorney fees appropriate under Rule 25 in order to encourage 

future compliance with our rules of appellate procedure and to 

discourage the dilatory conduct the state displayed in this case.

Disposition

¶34 For the foregoing reasons, we grant Macias’s appellate 

costs, see § 12-341, as well as her appellate attorney fees, subject to 

her compliance with Rule 21, Ariz. R. Civ. App. P. We reverse the 

trial court’s orders denying Macias her costs and her request for 

Rule 11 sanctions. We also reverse the trial court’s orders denying 

Macias’s request for the immediate release of the currency or 

equivalent payment and instruct the trial court to order such relief 

forthwith. We remand the case for further proceedings on these 

matters consistent with this opinion. Otherwise, we affirm the trial 

court’s judgment.

 

7We note that it is improper to assert a mootness claim at oral 

argument based on materials not included in the record on appeal. 

In re Henry’s Estate, 6 Ariz. App. 183, 188, 430 P.2d 937, 942 (1967). If 

a mootness claim depends on such materials, a party should file an 

appropriate motion with supporting documentation in accordance 

with Rule 6(a)(3). Because the state never presented a proper 

mootness claim in this court, we do not address that issue.