***ORAL -"ORAL ARGUMENT NOT REQUESTED***

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1 E-Filed Document Oct :37: CA Pages: 16 IN THE SUPREME COURT OF MISSISSIPPI CITY OF MERIDIAN vs. VS. APPELLANT NO CA COA 201S-CA COA $104, U.S. CURRENCY, ET AL. APPELLEE LEE ON APPEAL FROM THE CIRCUIT COURT OF LAUDERDALE COUNTY, MISSISSIPPI 14-CV-1S(W) -1 BRIEF OF APPELLEE ***ORAL -"ORAL ARGUMENT NOT REQUESTED*** J..I. Stewart Parrish (MS Bar No ) Attorney for Appellee Post Office Box 823 Meridian, MS (601)( (office) (601) (fax) Jessica L. Massey (MS Bar No ) ,d 23rd Avenue Meridian, MS (office) (fax) Auorneys!or Allorneysfor Appellee

2 IN THE SUPREME COURT OF MISSISSIPPI CITY OF MERIDIAN vs. APPELLANT NO CA COA $104, U.S. CURRENCY, ET AL. APPELLEE CERTIFICATE OF INTERESTED PERSONS Pursuant to Miss. R. App. P. 28(a)(l), undersigned counsel ofrecord certifies that the following listed persons have an interest in the outcome of the case. The representations are made in order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal: 1) Honorable Lester F. Williamson, Jr., Circuit Court Judge 2) Honorable V eldore Young, County Court Judge 3) Andy Davis, Counsel for Appellant 4) City of Meridian Police Department, Appellant 5) Lauderdale County Sheriffs Department ex rel East Mississippi Drug Task Force, Appellant 6) J. Stewart Parrish, Counsel for Appellee 7) Jessica L. Massey, Counsel for Appellee 8) Maria Catalan, Appellee So certified, this the day of October, s/ J Stewart Parrish J. Stewart Parrish (Miss. Bar No ) Jessica L. Massey (MS Bar No ) Attorneys for Appellee II

3 TABLE OF CONTENTS Certificate of Interested Persons \\ Table of Contents iii Table of Authorities iv Statement of the Issues... 1 Statement of the Case I. Nature of the Case Statement of Facts Course of Proceedings IV. Disposition Summary of the Argument.... 3,4 Standard of Review Argument Issue J Issue II Conclusion : Certificate of Service \

4 TABLE OF AUTHORITIES Cases $107, v. Stale ex rei. Harrison County Sheriffs Dept., 643 So. 2d 917, 920 (Miss. 1994).. 5 Butler v. Bd. o/supervisors, 659 So.2d 578, 581 (Miss. 1995) Cannon v. State, 918 So.2d 734, 744 ('1131) (Miss. Ct. App. 2005).....4,6,7,9,10 Crowe v. Smith, 603 So. 2d 301 (Miss. 1992) Farmer v. B & G Food Enter., Inc., 818 So. 2d 1154 (Miss. 2002)... 9 HeartSouth, PLLCv. Boyd, 865 So.2d 1095, 1101 ('11 13) (Miss. 2003) Jackson v. State ex rei. Mississippi Bureau of Narcotics, 591 So. 2d 820, 823 (Miss. 1991) Neely v. State ex rei Tate County, 628 So. 2d 1376, 1381 (Miss. 1993) Parcel Real Property v. City o/jackson, 664 So. 2d (Miss. 1995) Penn. Nat'l Gaming, Inc. v. Ratliff, 954 So.2d 427, 432 (Miss. 2005) ,6 Saikv. State, 473 So. 2d 188 (Miss. 1985) Schonewitz v. Pack, 913 So.2d 416 (Miss. Ct. App. 2005) West v. West, 891 So. 2d 203 (Miss. 2004) Statutes Miss. Code Aim Miss. Code Ann ,8 Miss. Code Ann Miss. Code Ann Mississippi Rules of Civil Procedure Miss. R. Civ. P ,6,9, 11 Miss. R. Civ. P ,7, 11 Miss. R. Civ. P ,11 IV

5 STATEMENT OF ISSUES The issues presented by Appellant, as condensed by Appellee pursuant to MRAP 28(b): 1. The Circuit Court Properly Granted the Motion to Dismiss by Looking to the Pleadings Alone in Finding the Petition Failed to State a Claim Upon Which Relief Could be Granted; Therefore, Notice was not Required as the Court did not Convert the Motion to Dismiss into a Motion for Summary Judgment A. The Petition Failed to State a Claim for Relief under the forfeiture Statute B. The Court Followed the Applicable Law and Looked to the Pleadings Alone in Granting the Motion to Dismiss C. Notice was not Provided because the Court was Ruling on a Motion to Dismiss II. The Circuit Court did not Commit Reversible Error and should be Affirmed. STATEMENT OF THE CASE I. Nature of the Case This appeal stems from the dismissal of a civi l forfeiture action initiated by Appellant, the City of Meridian ex rel East Mississippi Drug Task Force ("the City"), to seize the personal property of Appellee, Maria Catalan ("Ms. Catalan"), through the Mississippi Uniform Controlled Substances Law. [C.P. 2-4]. II. Statement of Facts In the Petition for Forfeiture ("the Petition"), the City alleges that on or about June 2, 2012, officers with the Meridian Police Department and East Mississippi Drug Task Force

6 unlawfully seized Ms. Catalan' s vehicle, a 2003 Ford F-150, and $104, in United States Currency. [C.P. 2-3] 1 These are the only facts plead in support of this forfeiture action. UL Course of Proceedings On June 20, 2012, the City filed a Petition for Forfeiture requesting the forfeiture of Ms. Catalan's 2003 F-150 and money. [C.P. 2-4]. Ms. Catalan timely filed her Answer as well as a request for production. [C.P. 8-11]. The City then moved the Comt to continue the case until any pending the criminal action is resolved or, in the alternative, to set the matter for hearing at a time convenient to all parties. [C.P. 12]. On August 13, 2012, after considering the request, the Court set the matter for a non-jury trial on November 5, [C.P. 14]. That same day, the City propounded its first set of interrogatories and requests for admissions and production of documents to Ms. Catalan. [C.P ]. On August 20, 2012, Ms. Catalan submitted he answers to requests for admissions. [C.P ]. The City' s answer to Ms. Catalan's request for product of documents was filed on September 24, [C.P ]. On February 25, 2013, the City filed a Motion to Compel moving the Court to require Ms. Catalan to respond to certain interrogatories and requests for production. [C.P.26-27]. On March 5, 2013, Ms. Catalan responded to the City's first set of interrogatories and requests for admissions and production of documents by asserting her Fifth Amendment privileges to others. [C.P ]. The City subsequently filed a Second Motion to Compel on March 22, [C.P ]. The matter came before the County Court for hearing on or about May 6, [C.P. 37]. A month later, the Court issued an order denying the City's Motion to Compel finding that Ms. Catalan has the right to assert her Fifth Amendment privileges. [C.P. 38]. 1 C.P. references the Clerk's Papers from County Court. 2

7 Ms. Catalan followed with a Motion to Dismiss on August 14,2013. [C.P ]. On September 25, 2013, the City filed a Response to the Motion to Dismiss as well as a Motion in Limine moving the Court to punish Ms. Catalan for asserting her Fifth Amendment privileges and preclude Ms. Catalan essentially from presenting any evidence. [C.P.42-45]. The case remained stagnant for nearl y a year until the City fil ed a notice of deposition and request for production. [c.p ]. On November 13,2013, the Motion to Dismiss came before the Court for hearing. After taking the matter under advisement, on September 10,20 14, the Court entered its Order on the Motion to Dismi ss granting the Motion and ordering the return of the subject money and truck to Ms. Catalan. [C.P ]. IV. Disposition On September 18, 2014, the City fi led a Notice of Appeal. [C.P After receiving briefs from both parties, the Court entered its Order Affirming County Court on April 28, [R.E.6-14]. The City responded with the appeal presently before this Court. SUMMARY OF THE ARGUMENT The Petition is completely devoid of any facts aside from the date of the seizure and a description of the property seized and, therefore, woefully failed to meet the pleading requirements under Rule 8 of the Mississippi Rules of Civil Procedure and in turn fail s to state a claim upon which relief can be granted. The Petition simply claims the subject property was lawfully seized under the applicable statute without stating any factual basis to support such a claim or any factual background whatsoever. When Ms. Catalan raised that very issue in her Motion to Dismi ss, the lower courts rightfully agreed. The City's attempt to argue that the County Court converted Ms. Catalan' s Motion to Dismiss into a Motion for Summary Judgment is contradicted by the record and the Petition 3

8 itself. The City even acknowledged that the Court "dismissed the matter under Rule 12(b )(6) based on the pleadings alone" that "the record contains no facts, transcripts or evidence" and that "facts relating to the case have not been developed and are not part of the record." [C.P. 4-18]. 2 In reviewing Ms. Catalan' s Motion to Dismiss, the County Court held a hearing on the Motion to Dismiss without a court reporter present, upon agreement of the parties. No exhibits, affidavits, or any other forms of evidence were introduced at the hearing on the Motion to Dismiss. Arguments made by respective counsel are not evidence. The Court appropriately looked to the pleadings alone in finding that Appellant failed to state a claim upon which relief could be granted and affirmance is warranted. ST AND ARD OF REVIEW A trial court's grant or denial of a motion to dismiss is reviewed de novo. Forest Hill Nursing Center and Long Term Care Management, LLC v. Brister, 992 So.2d 1179, 1187 (Miss. 2008) (citing Cmty. Ho~p. v. Goodlett, 968 So.2d 391, 396 (Miss. 2007) (quoting Penn. Nat'! Gaming, Inc. v. Ratl~ff, 954 So.2d 427, 430 (Miss. 2007)) (overruled on other grounds)). ARGUMENT I. The Circuit Court Properly Granted the Motion to Dismiss by Looking to the Pleadings Alone in Finding the Petition Failed to State a Claim Upon Which Relief Could be Granted; Therefore, Notice was not Required as the Court did not Convert the Motion to Dismiss into a Motion for Summary Judgment D. The Petition Failed to State a Claim for Relief under the Forfeiture Statute Mississippi Appellate Cou1is have repeatedly held that forfeiture is a creature of statute and "not favored in this state; therefore, before a forfeiture may be ordered, it must come within the terms of the statute which imposes the liability of forfeiture." Cannon v. State, 918 So.2d 734, 744 (,I 31) (Miss. Ct. App. 2005) (rev'd and rem'd solely on the issue of criminal 2 C.P. here is referring to the Clerk's Papers from Circuit Court. 4

9 sentencing) (quoting Jackson v. State ex rei. Mississippi Bureau o/narcotics, 591 So. 2d 820, 823 (Miss. 1991)); See also $107, v. State ex rei. Harrison Counly Sherif s Dept., 643 So. 2d 917, 920 (Miss. 1994); Neely v. Siale ex rei Tate County, 628 So. 2d 1376, 1381 (Miss. 1993). In terms of analyzing actions for forfeiture, it is a "longstanding principle that forfeiture statutes must be strictly construed, since they are penal in nature." Parcel Real Property Located al 335 West Ash Street, Jackson, Miss. v. City o/.!ackson, 664 So. 2d 194, 198 (Miss. 1995) (citing Saik v. State, 473 So. 2d 188 (Miss. 1985)). The authority for forfeiture of certain person property is found under the Mississippi Uniform Controlled Substances Law provides which enumerates various situations in which certain property may be subject to forfeiture. Referencing such statutory authority, the Petition states the following grounds for forfeiture of Catalan's property: provide: "are subject to forfeiture under the provisions of Miss. Code Ann I 53(a)(5) and/or (a)(7) (Supp. 1991), said truck and currency having been used, or intended for use or constituting proceeds in violation of the Mississippi Uniform Controlled Substances Law; That said property should be forfeited pursuant to Miss. Code Ann (4) and (2) (Supp. 1991)." As cited in the Petition, Miss. Code Ann (a)(5) and (a)(7), (a) The following are subject to forfeiture: (5) All money, deadly weapons, books, records, and research products and materials, including formulas, microfi lm, tapes and data which are used. or intended for use, in violation of this article or in violation of Article 5 of thi s chapter; (7) Everything of value, including real estate, furnished, or intended to be furnished, in exchange for a controlled substance in violation of thi s article, all proceeds traceable to such an exchange, and all monies, negotiable instruments, businesses or business investments, securities, and other things of value used, or intended to be used, to facilitate any violation of this article. Alimonies, coin and currency found in close proximity to forfeitable controlled substances, to forfeitable drug manufacturing or distributing paraphernalia, or to forfeitable records of the 5

10 importation, manufactw'e or distribution of controlled substances are presumed to be forfeitable under this paragraph; the bw'den of proof is upon claimants of tbe property to rebut thi s presumption. A careful anal ysis of the two subsections cited as the basis for forfeitw'e illustrates how simply citing to the statute while failing to set fo rth a single factual allegation is insuflicient to state a claim for relief. The two subsections cited in the Petition enumerate a number of situations warranting forfeiture. Subsection (a)(5) specifi call y provides for forfeiture of money that is either (I) being used or (2) intended for use in violation oftbe Controlled Substances Law. Subsection (a)(7) provides for forfeiture of either money or a vehicle, among other property, if either is ( I) furni shed or (2) intended to be furni shed in exchange for a controlled substance or (3) serves as proceeds traceable to such an exchange or (4) is used or (5) intended to be used to facilitate a violation of the controlled substances law. Subsecti on (a)(7) then goes on to outline another scenario fo r forfeiture of money found in close proximity to forfeitable controlled substances or the like. The Petition simply claims that a vehicle and money were seized and are subj ect to forfeiture under the Uniform Controlled Substances Law. The City summaril y failed to allege where the money was located or if the money was found in close proximity to any controlled substances or paraphernalia to support a claim under of the subsections cited in the Petition and; therefore, failed to adequately state a claim upon on which relief could be granted. B. The Court Followed the Applicable Law and Looked to the 1)leadings Alone in Granting the Motion to Dismiss Miss. R. Civ. P. l2(b)(6) tests the legal sufficiency ofa complaint, and provides that di smissal shall be granted to the moving pal1y where the plainti ff has failed to state a claim upon which relief can be granted. In considering a 1110tion to di smiss, the Supreme Court has held that: 6

11 A Rule 12(b)(6) motion should not be granted unless it appears "to a certainty that the plaintiff is entitled to no relief under any set of facts that could be proved in support the claim." M.R.C.P. 12 cmt. We have stated that a Rule 12(b)(6) motion to dismiss "should not be granted unless it appears beyond a reasonable doubt that the Plaintiff can prove no set of facts in support of his claim which entitles him to relief." Butler v. Bd. of Supervisors for Hinds County, 659 So.2d 578, 581 (Miss.1995) ( citations omitted). HeartSouth, PLLC v. Boyd, 865 So.2d 1095, 1101 (ij 13) (Miss. 2003). The Petition in the case before this Court is a bare-bones form petition that solely includes the date of seizure and a description of the seized property. There were several hearings prior to the County Court' s Order on Motion to Dismiss. Most notably, the County Court ruled on the Motion to Dismiss nearly a year after the hearing on the Motion to Dismiss took place. No exhibits, affidavits, or any other forms of evidence were introduced at the hearing on the Motion to Dismiss. It is clear that the Court looked to the law on fo rfeiture and concluded the City' s Petition did not adequately state a claim upon which relief could be granted. This is clear from the Order, appropriately styled "Order on Motion to Dismiss," in which the Court quotes directly from Miss. Code Ann. Section subsections (a)(5) and (a)(7), finding that such subsections specifi cally list what is subject to forfeiture and what is required for forfeiture to occur. [C.P. 54]. The City makes much of the Court's inclusion of information outside the four corners of the Petition in the Order on Motion to Dismiss. The Court purposefully prefaced such information as a "brief history of the case.'' [C.P ]. 3 This inforn1ation was not given under oath in the form of an affidavit or live testimony. Given that the Petition did not provide any factual basis whatsoever in support of forfei ture, the Court recited information provided by counsel for both parties. The Court' s attempt to provide a factual background and history 3 C.P. is referring to Clerk' s Papers from County Court. 7

12 through the inclusion of such information was only necessary because of the complete absence of factual allegations in the Petition. This information was not introduced as evidence at the hearing on the Motion to Dismiss. This information was not offered as an exhibit or evidence of any kind. The information stated in the Order on Motion to Dismiss was simply gleaned from counsel for both parties throughout the course of the case and included for the sake of clarity. As previously outlined, the Petition claims that Ms. Catalan' s property is subject to forfeiture and was lawfully seized pursuant to Miss. Code Ann The Comi's rulings logically correspond with the scenarios listed in subsection (b) (1-4) as well as subsections (a)(5) and (a)(7). When no factual basis is alleged to support these scenarios for forfei ture, it is not error for the Court to grant a motion to dismi ss for failure to state a claim upon which relief can be granted. It would be error for the Court to allow a party to simply state a cause of action without pleading any factual basis for the action. Furthermore, it is important to note that not only is the Petition devoid of any facts necessary to meet pleading standards under Rule 8, but the City also did not elect to amend the Petition as allowed under Rule 15 of the Mississippi Rules of Civil Procedure. 4 To grant the City's request for reversal, would effectively eviscerate Rule 8 and allow the City to conduct a discovery "fishing expedition" and to use the power and process of the Court to develop facts to support their case without setting out what their theory of recovery or liability actually is in the Petition and allow for the continued use of identical form pleadings devoid of facts. C. Notice was not Provided because the Court was Ruling on a Motion to Dismiss 4 Prior to 2003, Rule 15 provided an a utomatic right to amend the complaint within 30 days after dismissal pursuant to Rule 12(b)(6). Failure to do amend prevented the party from doing so on appeal. See Farmer v. B & G Food Enter., Inc., 818 So. 2d (Miss. 2002). 8

13 The Court's Order on Motion to Dismiss was simply that. Therefore, the Court did not need to provide the parties with ten (10) days notice. Fmihennore, the City failed to raise the issue often (10) days notice in its appeal to Circuit Court and is precluded from asse1iing this new argument on appeal. On appeal, "[i]ssues that were not presented to the trial court cannot be raised before this Court." Schonewilz v. Pack, 913 So.2d 416, 424 c,r 34) (Miss. Ct. App. 2005). As this Court elaborated, "an appellant is not entitled to raise a new issue on appeal, since to do so prevents the trial court from having the opportunity to address the alleged error." Id. (citing West v. West, 891 So. 2d 203, 214 (Miss. 2004) (quoting Crowe v. Smith, 603 So. 2d 301, 305 (Miss. 1992)). II. The Circuit Court did not commit reversible error and should be affirmed. in finding that: The Circuit Court looked at the Petition on its face and the applicable forfeiture statutes Petition failed to state any factual basis as to how the money and automobile were either intended for use or being used in violation of the controlled substances in law. Likewise, the Petition does not allege that the money was found in close proximity to any controlled substances or paraphernalia. As such, the Petition for Forfeiture failed to state a claim. [C.P. 42]. 5 The Circuit Court further looked to the fact that no exhibits, affidavits or any other forms of evidence were introduced at the hearing on the Motion to Dismiss in affirming the County Court. [C.P. 43]. The necessity of a factual basis to support a claim for forfeiture is readily apparent from the plain reading of the Controlled Substances Law. In Cannon v. State, this Comi addressed the issue of whether the State's petition for forfeiture failed to sufficiently state a cause of action and found that the petition for forfeiture did not meet the pleading requirements under the Rules of 5 C.P. refers to Circuit Clerk's Papers. 9

14 Civil Procedure. Cannon, 918 So. 2d at 745 ("ii 34). In finding that the complaint failed to state a claim, the Court looked to the comments to Rule 8 of the Mississippi Rules of Civil Procedure 6 noting that" [a]lthough Rule 8 abolishes many technical requirements of pleadings, it does not eliminate the necessity of stating circumstances, occurrences, and events which support the proffered claim." Id. at "ii 33 (citing Miss. R. Civ. P. 8 cmt.). In Cannon, the issue of insufficient pleading was raised by counsel at the trial level, yet it was never brought before the trial court for hearing; therefore, at the close of its case-in-chief, the State moved to amend the complaint to include "the description of the real property on which forfeiture was sought, and the reasons for the same." Id. at "ii 34. "It [was] that amendment which allowed the State' s complaint to meet the threshold pleading requirements of our Rules of Civil Procedure." Id. Just as the Court found in Cannon, the requirement that facts must be pled in order for a cause of action to sufficiently state a claim up on which relief can be granted is not alleviated simply because this is a forfeiture case. lt is apparent from the Memorandum Opinion and Order that the Circuit Court carefully reviewed the applicable statutes and case law in affirming the County Court' s Order in reaching its well-reasoned conclusion and as such did not commit reversible enor. CONCLUSION The Petition failed to state any factual basis whatsoever as to how the money and truck at issue were either intended for use or being used in violation of the Unifonn Controlled Substances Law in order to sufficiently state a claim for forfeiture. The Petition simply claims that a vehicle and money were seized and are subject to forfeiture under the Uniform Controlled 6 Appellee notes that the Comments to the Rules of Ci vil Procedure were repealed and replaced by Supreme Court Order effective July I, 2014; however, the new comments continue to reoect the necessity of sufficient pleadings. See Cmt to Rule 8 stating that " A plaintiff must set fo11h direct or inferential fact allegations concerning all elements ofa claim." See Penn. Nat'! Gaming, inc. v. Ratliff, 954 So.2d 427, 432 (Miss. 2005). 10

15 Substances Law. The City failed to allege where the money was located or if the money was found in close proximity to any controlled substances or paraphernalia to maintain a claim under either of the subsections cited in the Petition. The Comi properly considered the Motion to Dismiss and appropriately held that the Petition failed to state a claim upon which relief could be granted. The Comi solely considered arguments made by respective counsel, which are not evidence. No exhibits, affidavits, or any other forms of evidence were introduced or considered either by the County Court at the hearing on the Motion to Dismiss or by the Circuit Court on de novo review. At no time in the over two and a half years since this case was filed, not even after the filing of a l 2(b )( 6) Motion to Dismiss, did Appellant elect to amend the Petition under Rule 8 to set forth a factual basis for the forfeiture action. Likewise, Appellant did not move to amend under Rule 15 after the lower court granted the Motion to Dismiss. The Appellant had ample opportunity to sufficiently state a claim but chose not to as there is no factual basis to plead. lt is likewise clear from the record that the Court applied the correct legal standard in carefully considering and granting the Motion to Dismiss and did not commit reversible error and such sound judgment should be affirmed. Respectfully submitted, this the 15th day of October, sl J. Stewart Parrish J. Stewart Parrish (MS Bar No ) Post Office Box 823 Meridian, MS (601) (office) (601) (fax) sl Jessica L. Massey _ Jessica L. Massey (MS Bar No ) rd Avenue t. h,ridi«n, ~,tg (office) (fax) 11

16 CERTIFICATE OF SERVICE I, J. Stewart Parrish, certify that that I have this day caused the foregoing document to be electronically filed with the Clerk of Court using the MEC filing system pursuant to the Appellate E-filing Administrative Procedures and the Mississippi Rules of Appellate Procedure. Honorable Muriel EJ!is, Clerk Mississippi Supreme Court P.O. Box 117 Jackson, MS In addition, I hereby certify that I have this day caused to be served via electronic mail and/or United States Mail, postage prepaid, a true and correct copy of the Brief of Appellee to: Honorable Lester F. Williamson, Jr. (via hand-delivery) Lauderdale County Circuit Judge 500 Constitution Ave, 2"d Floor Meridian, Mississippi Honorable Veldore Young (via hand-delivery) Lauderdale County Court Judge 500 Constitution Ave, 3rd Floor Meridian, MS Honorable Andy Davis Witherspoon & Compton, LLC Post Office Box 845 Meridian, MS s/ J Stewart Parrish J. Stewart Parrish (MS Bar No ) Jessica L. Massey (MS Bar No ) Attorneys.for Appellee 12