In re 2000 Peterbilt Tractor & Trailer – 8/16/2016

September 1, 2016

Arizona Court of Appeals Division One holds that a party may accept a waiver of personal service even if it is returned after the requested response time.

Police stopped the driver of a semi-truck and found a total of over $43,000 in cash on his person, in a bag, and hidden behind the dashboard.  The State seized the truck, trailer, and money.  The State filed a forfeiture action, and the driver made a claim for return.  The State sent the complaint to the driver’s attorney with a request that he return a waiver of service within thirty days.  The request stated that if the drivPeter returned the form, then he would have sixty days instead of twenty to file an answer.  The attorney returned the waiver but did so a week after the thirty days had passed.  The State accepted and filed the waiver.  The driver filed an answer, which was also late with or without the additional time.  The driver argued that his waiver of service was ineffective because he returned it late, and that because he was not otherwise served, his deadline to file an answer never began to run.  The State argued that service was effective and the answer was untimely.  The trial court ruled in favor of the State, and the driver appealed.

The Court of Appeals affirmed the validity of the service.  First, personal service was not actually required because the driver had already made an appearance in the forfeiture action by filing a claim.  Under Ariz. R. Civ. P. 5(c)(2)(C), service was complete upon mailing the complaint to his attorney.  The State chose to accept and file the waiver even though the driver returned it late.  Although nothing obligated the State to accept or file the late waiver form, the waiver nevertheless became effective when the State chose to accept and file it. 

Judge Jones authored the opinion; Presiding Judge Johnsen and Judge Orozco concurred.