Filed Washington State Court of Appeals Division Two
December 27, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II CITY OF LONGVIEW POLICE No. 48410-2-II DEPARTMENT,
Respondent,
v.
SIDNEY A. POTTS, UNPUBLISHED OPINION
Appellant.
LEE, J. — Sidney A. Potts appeals the superior court’s order dismissing his appeal of an
administrative action forfeiting Potts’s property, cash, and bank accounts. Potts argues that (1)
this court’s ruling in his criminal case is dispositive, (2) the superior court erred in denying his
motion to vacate, (3) the superior court erred in dismissing his appeal, and (4) the superior court
erred in denying his motion to compel production of records. We reverse the superior court’s order
dismissing Potts’s appeal of the administrative action forfeiting Potts’s property, cash, and bank
accounts, and remand for further proceedings consistent with this opinion. No. 48410-2-II
FACTS
A. POTTS’S CRIMINAL CASE1
In July 2012, the City of Longview Police Department (the City) conducted several
controlled buys with Potts. State v. Potts, No. 45724-5-II, slip op. at 2-3
(Wash. Ct. App. July 6, 2016), http://www.courts.wa.gov/opinions/pdf/D2%2045724-5-
II%20Unpublished%20Opinion.pdf. On August 10, the City applied for a search warrant for three
properties connected to Potts: Potts Family Motors, Potts’s second car dealership, and Potts’s
home.2 Potts, No. 45724-5-II, slip op. at 5. However, the actual warrant only listed Potts Family
Motors in the finding of probable cause. Potts, No. 45724-5-II, slip op. at 5. Despite this, the City
searched all three properties, and under RCW 69.50.505, seized tools, vehicles, cash, and bank
accounts. Potts, No. 45724-5-II, slip op. at 10; Clerk’s Papers at 6-7, 10.
Potts was arrested and charged with one count of leading organized crime (count I), three
counts of violating the Uniform Controlled Substances Act (UCSA) with delivery within 1,000
feet of a school bus route stop (count II, III, V), one count of violating the UCSA with possession
within 1,000 feet of a school bus route stop (count VI), one count of violating the UCSA with
delivery (count IV), and one count of money laundering (count VII). Potts, No. 45724-5-II, slip
op. at 6. The State also filed aggravating factors, alleging that the current offense was a major
1 The facts pertaining to Potts’s criminal case are taken from our decision in his criminal appeal, which was included in the supplemental clerk’s papers for this case. State v. Potts, No. 45724-5- II, slip op. at 2 (Wash. Ct. App. July 6, 2016), http://www.courts.wa.gov/opinions/pdf/D2%2045724-5-II%20Unpublished%20Opinion.pdf. 2 In the City’s response to Potts’s motion to vacate, it noted that the search warrants were for three addresses in Longview, Washington: 411 Oregon Way (Potts Family Motors); 1275 Alabama Street (Potts’s second dealership); and 2839 Louisiana Street (Potts’s home).
2 No. 48410-2-II
violation of the UCSA for criminal profiteering. Potts, No. 45724-5-II, slip op. at 6. Subsequently,
count VII was dismissed and the sentencing enhancements on counts V and VI were also
dismissed. Potts, No. 45724-5-II, slip op. at 6.
While charges were pending, Potts moved for the return of his property. Potts, No. 45724-
5-II, slip op. at 10 n.7. The trial court denied Potts’s motion. Potts, No. 45724-5-II, slip op. at 10
n.7.
In November 2013, Potts was convicted of all the remaining counts and aggravators. Potts,
No. 45724-5-II, slip op. at 19. Potts appealed his convictions. Potts, No. 45724-5-II, slip op. at
19. Potts also challenged in a statement of additional grounds the trial court’s denial of his motion
for the return of property. Potts, No. 45724-5-II, slip op. at 50.
On July 6, 2016, we affirmed his convictions, but held that the search warrant only
authorized a search for the property connected with Potts Family Motors.3 Potts, No. 45724-5-II,
slip op. at 47. We also held that “because Potts will not be retried and because we conclude above
that the search warrant for Potts’s home [2839 Louisiana Street] was invalid, we conclude the
property seized from Potts’s home should be returned to its rightful owner(s).”4 Potts, No. 45724-
5-II, slip op. at 51.
3 On appeal, the State conceded that the warrant did not authorize seizure of tools. Potts, No. 45724-5-II, slip op. at 47 n.25. 4 The opinion is silent as to whether the property from Potts’s second dealership located at 1275 Alabama Street was to be returned to the rightful owner.
3 No. 48410-2-II
B. POTTS’S CIVIL FORFEITURE CASE
On December 19, 2013, prior to this court’s decision in Potts’s direct appeal, a civil
forfeiture hearing was held regarding property the City had seized from Potts.5 The hearing officer
concluded that the property was obtained in the commission of a felony relating to the sale or
delivery of illegal controlled substances, and was subject to forfeiture under former RCW
69.50.505(a)(4).6 On January 29, 2014, the hearing officer entered findings of fact and conclusions
of law, and ordered the property forfeited to the City.7
On March 5, Potts filed a notice of appeal with the superior court, appealing the order of
forfeiture, and mailed a copy to the City. Potts stated that he was notified of the forfeiture of his
property, attached the hearing officer’s order, and requested the superior court set a schedule for
pursuing the appeal.
On July 1, the City filed a motion to dismiss Potts’s appeal, arguing that the City was not
properly served with the notice of appeal. On July 10, Potts filed a judicial notice of fact, which
included additional facts and argument against forfeiture, and requested that his property be held
until a final decision on appeal. On July 30, the superior court subsequently granted the City’s
motion and dismissed Potts’s appeal of the forfeiture order.
5 The seized property at issue in the forfeiture hearing included 29 vehicles, 19 tools and pieces of equipment, and almost $56,000 in cash and bank accounts. 6 RCW 69.50.505 was amended in 2003. No substantive changes were made; rather, the paragraphs within this statute were renumbered. LAWS OF 2003, ch. 53, § 348. The provision cited to by the hearing officer is now RCW 69.50.505(1)(d). 7 The order was served on Potts on February 18, 2014.
4 No. 48410-2-II
On August 6, Potts appealed the superior court’s dismissal of his appeal to this court. On
appeal, the City withdrew its argument that it was not timely served with the notice of appeal. City
of Longview Police Dep’t v. Potts, No. 46574-4-II, slip op. at 1 (Wash. Ct. App. July 14, 2015),
http://www.courts.wa.gov/opinions/pdf/D2%2046574-4-II%20Unpublished%20Opinion.pdf.
Rather, the City argued for the first time on appeal that the appeal was properly dismissed because
Potts failed to comply with the requirements of RCW 34.05.546. Potts, No. 46574-4-II, slip op.
at 2.
We treated the City’s withdrawal of its untimely service argument as a concession that the
superior court erred in dismissing Potts’s appeal, held that the superior court improperly dismissed
Potts’s appeal, and remanded the case to the superior court. Potts, No. 46574-4-II, slip op. at 2, 3-
4. We did not address the City’s argument on RCW 34.05.546 raised for the first time on appeal,
but expressly stated that “[o]n remand, the City is free to argue that Potts’s notice of appeal did
not comply with RCW 34.05.546.” Potts, No. 46574-4-II, slip op. at 4.
On August 10, 2015, Potts filed a supplemental notice of appeal in the superior court. The
supplemental notice included additional facts and argument against forfeiture, such as the lack of
probable cause for the seizure of property, and requested that such property be returned. The City
responded by filing a motion to dismiss the appeal, arguing that Potts failed to comply with RCW
34.05.546.
On October 14, the superior court held a hearing on the City’s motion and granted the
City’s motion to dismiss Potts’s appeal pursuant to RCW 34.05.546. On November 9, Potts
appealed the superior court’s order of dismissal pursuant to RCW 34.05.546. We accepted review
on April 7, 2016. .
5 No. 48410-2-II
After we accepted review, Potts filed a motion in the superior court to compel the City to
produce the agency record for his appeal pursuant to RCW 34.05.566(1). The superior court held
a hearing on Potts’s motion to compel and denied the motion.
Also after we accepted review, Potts filed a motion in the superior court to vacate the order
dismissing his appeal. The superior court denied Potts’s motion.
ANALYSIS
A. DISMISSAL OF APPEAL
Potts argues that the superior court erred when it dismissed his appeal pursuant to RCW
34.05.546. Specifically, Potts argues that the superior court had jurisdiction over his appeal,8 his
notice of appeal complied with RCW 34.05.546, his notice of appeal substantially complied with
RCW 34.05.546, he remedied any noncompliance, and the dismissal was not the proper remedy
for any noncompliance.9
1. Compliance with RCW 34.05.546
Under RCW 34.05.546, the petition for review must include:
(1) The name and mailing address of the petitioner;
8 Potts argues that the superior court had jurisdiction to review his appeal, and because the City does not dispute this, we do not address the issue. 9 Potts also argues in his reply that the superior court violated his due process rights when it granted the State’s motion to dismiss his appeal pursuant to RCW 34.05.546. Although this alleged violation was noted in Potts’s notice of appeal, he failed to provide argument in his opening brief as required by RAP 10.3, and does so for the first time in his reply. We will not consider due process arguments raised for the first time in a reply brief. Joy v. Dep’t of Labor & Indus., 170 Wn. App. 614, 630, 285 P.3d 187 (2012), review denied, 176 Wn.2d 1021 (2013). Potts also fails to provide any relevant legal argument or support for his argument. He only cites to the civil rules and judicial rules of conduct but does not explain how his due process rights were violated by a violation of these rules. Therefore, we decline to address this claim. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
6 No. 48410-2-II
(2) The name and mailing address of the petitioner’s attorney, if any; (3) The name and mailing address of the agency whose action is at issue; (4) Identification of the agency action at issue, together with a duplicate copy, summary, or brief description of the agency action; (5) Identification of persons who were parties in any adjudicative proceedings that led to the agency action; (6) Facts to demonstrate that the petitioner is entitled to obtain judicial review; (7) The petitioner’s reasons for believing that relief should be granted; and (8) A request for relief, specifying the type and extent of relief requested.
In his petition for review, Potts only noted when he was informed of the forfeiture of certain
property, acknowledged the 30-day deadline for filing a notice of appeal, requested the superior
court set a schedule for the appeal, and attached the hearing officer’s forfeiture order. Potts did
not include his mailing address, the “name and mailing address of the agency whose action [was]
at issue,” “[i]dentification of the agency action at issue, together with a duplicate copy, summary,
or brief description of the agency action,” “[i]dentification of persons who were parties in any
adjudicative proceedings that led to the agency action,” “[f]acts to demonstrate that the petitioner
[was] entitled to obtain judicial review,” “reasons for believing that relief should be granted,” nor
“[a] request for relief, specifying the type and extent of relief requested.” RCW 34.05.546.
While Potts argues that he complied with RCW 34.05.546 by attaching the forfeiture order,
this argument is not persuasive. Such attachment has only been held as substantial compliance
when the content of the attachment meets the requirements of RCW 34.05.546. See Skagit
Surveyors & Eng’rs, LLC v. Friends of Skagit County, 135 Wn.2d 542, 557, 958 P.2d 962 (1998).
Potts did not comply with the requirements of RCW 34.05.546 by attaching the forfeiture
order. Unlike Skagit Surveyors where the missing required information was included in the
forfeiture order, the missing and required information here was not stated in the hearing officer’s
forfeiture order. Neither Potts’s petition nor the forfeiture order included Potts’s mailing address,
7 No. 48410-2-II
facts to demonstrate that he was entitled to obtain judicial review, reasons for believing that relief
should be granted, nor a request for relief, specifying the type and extent of relief requested.
Therefore, Potts did not comply with RCW 34.05.546.
2. Substantial Compliance with RCW 34.05.546
Alternatively, Potts argues that he substantially complied with RCW 34.05.546 by
attaching the forfeiture order to his notice of appeal. Again, we disagree.
“[A]n essential aspect of substantial compliance is some level of actual compliance with
the substance essential to the statute, although a procedural fault rendered the compliance
imperfect.” Clymer v. Emp’t Sec. Dep’t, 82 Wn. App. 25, 28-29, 917 P.2d 1091 (1996). But “a
failure to comply (through inaction, inadvertence, or in a manner which does not fulfill the
objective of the statute), or belated compliance, cannot constitute substantial compliance with the
requirements relating to the filing of a petition for judicial review.” Id. at 29.
Here, Potts argues that he substantially complied with RCW 34.05.546 by attaching the
forfeiture order to his notice of appeal. But attaching the forfeiture order did not constitute
substantial compliance. While the forfeiture order included his business mailing address, the name
of the agency whose action was at issue, identified the agency action at issue, and identified
persons who were parties in proceedings that led to the action at issue, the forfeiture order did not
include all the requirements that were missing in his notice of appeal. Specifically, the forfeiture
order did not include “[f]acts to demonstrate that the petitioner [was] entitled to obtain judicial
review,” “reasons for believing that relief should be granted,” or “[a] request for relief, specifying
the type and extent of relief requested.” RCW 34.05.546. Because there was no level of
compliance with these requirements, Potts failed to substantially comply with RCW 34.05.546.
8 No. 48410-2-II
3. Noncompliance Cured
Potts argues that his judicial notice of fact and supplemental notice of appeal cured any
noncompliance with RCW 34.05.546. We agree.
A petition for review must be timely filed and contain the statutorily required information.
See RCW 34.05.542 and .546. But when procedural defects exist in a timely filed petition, courts
should provide a reasonable time to cure once the defect is brought to the attention of the petitioner.
See e.g., Biomed Comm, Inc. v. Dep’t of Health Bd. of Pharmacy, 146 Wn. App. 929, 938, 193
P.3d 1093 (2008).
Here, Potts’s petition seeking review of the forfeiture order by the superior court was timely
filed on March 5, 2014, but the petition did not contain the information required under RCW
34.05.546. Potts endeavored to cure any noncompliance with RCW 34.05.546 by filing his judicial
notice of fact on July 10, 2014. Potts’s judicial notice of fact, combined with his original petition
and attached forfeiture order, contained all of the information required under RCW 34.05.546.
Potts first appealed the superior court’s order dismissing his appeal of the forfeiture order
on August 6, 2014. The City argued for the first time in that appeal that Potts failed to meet the
requirements of RCW 34.05.546. We reversed the superior court’s dismissal of Potts’s petition
and held that the City was free to argue that Potts failed to meet the requirements of RCW
34.05.546 on remand.
After we filed our decision, Potts filed a supplemental notice of appeal. The supplemental
notice contained additional facts to demonstrate that the seizure of property from Potts’s home and
second dealership was done without probable cause, additional reasons for believing relief should
be granted (that the seizure was unlawful), and another request for return of the unlawfully seized
9 No. 48410-2-II
property. These additional facts, reasons, and requests for relief further cured Potts’s initial
noncompliance with RCW 34.05.546. Under these circumstances, we hold that Potts cured any
noncompliance with RCW 34.05.546.
B. EFFECT OF CRIMINAL PROCEEDING
Potts argues that this court’s holding in his criminal case controls the outcome of the civil
forfeiture action. We agree.
1. Collateral Estoppel
Criminal proceedings and civil forfeiture proceedings, while parallel, are separate. See
RCW 69.50.505; Deeter v. Smith, 106 Wn.2d 376, 378, 721 P.2d 519 (1986). But courts have
found that a criminal ruling, including rulings on the legality of a seizure, controls in a parallel
civil forfeiture proceeding when collateral estoppel applies. See Barlindal v. City of Bonney Lake,
84 Wn. App. 135, 145, 925 P.2d 1289 (1996); see also City of Walla Walla v. $401,333.44, 150
Wn. App. 360, 365-66, 208 P.3d 574 (2009).
Collateral estoppel requires a showing of: (1) identical issues, (2) a final judgment on the
merits, (3) the party against whom the issue is asserted must have been a party to or in privity with
a party to the prior adjudication, and (4) application of the doctrine must not work an injustice on
the party against whom the doctrine is to be applied. $401,333.44, 150 Wn. App. at 365. “Privity
denotes a mutual or successive relationship to the same right or property.” Barlindal, 84 Wn. App.
at 143.
Here, collateral estoppel applies. First, the issues are identical—whether there was a search
pursuant to a valid warrant. Second, there is a final judgment on the legality of the search issue
on the merits—the State Supreme Court denied Potts’s petition for review in the criminal case and
10 No. 48410-2-II
a mandate has been issued. Third, privity exists between the City and the State. The City and the
State both operated under the same state law, relied upon the same search warrant and subsequent
search, and both would benefit from an order of forfeiture as 10 percent of the proceeds of any
property forfeited must be remitted to the state treasurer and deposited into the state general fund.
See RCW 69.50.505(9)(a). The City and the State “had a mutual interest and shared a common
purpose in a successful prosecution . . . as well as a successful forfeiture of [the owner’s]
possessions.”10 Barlindal, 84 Wn. App. at 143. Fourth, injustice would not result against the City
because its officers conducted the initial investigation and created the affidavit of probable cause,
the affidavit was then used to support the warrant used in this case to conduct the search and
seizure, and that affidavit and warrant was reviewed at trial and on appeal. Therefore, collateral
estoppel applies.11
2. Void Forfeiture Order
Applying our prior holding in the criminal appeal, we hold the forfeiture order was void as
it related to the property seized from Potts’s home and his second dealership.
10 Furthermore, “the inability of a [City] attorney to control the prosecution does not diminish the common interests that both agencies have in the outcome of the prosecution.” Barlindal, 84 Wn. App. at 144. 11 Potts also argues that (1) the search warrant did not authorize seizure of certain property from Potts Family Motors, and thus, that property could not be forfeited; and (2) the Department failed to follow RCW 69.50.505’s notice requirements. Our record on appeal contains neither the search warrant nor evidence of any notice or lack thereof. Therefore, we decline to address this issue. Wash. Pub. Tr. Advocates v. City of Spokane, 120 Wn. App. 892, 898, 86 P.3d 835 (2004) (“If the record is insufficient for review, we may decline review of a particular issue.”).
11 No. 48410-2-II
a. Legal principles
Under RCW 69.50.505(1)(b), any equipment used, or intended to be used, to produce or
deliver any controlled substance under the chapter, is subject to forfeiture. Any vehicles used, or
intended to be used, to facilitate the sale, delivery, or receipt of any controlled substance under the
chapter are also subject to forfeiture. RCW 69.50.505(1)(d). And any monies furnished or
intended to be furnished in exchange for a controlled substance in violation of the chapter are also
subject to forfeiture. RCW 69.50.505(g).
Property subject to forfeiture may be seized by any law enforcement officer without
process if the seizure is incident to a search warrant. RCW 69.50.505(2)(a). The authority to order
forfeiture is statutory and must comply with proper forfeiture procedure. City of Walla Walla v.
$401,333.44, 164 Wn. App. 236, 246, 262 P.3d 1239 (2011).
We review final agency orders under the APA, “stand[ing] in the shoes of the superior
court.” Musselman v. Dep’t of Soc. & Health Servs., 132 Wn. App. 841, 846, 134 P.3d 248 (2006).
When a trial court lacks the authority to enter an order, the order is void. Servatron, Inc. v.
Intelligent Wireless Prods., Inc., 186 Wn. App. 666, 679-80, 346 P.3d 831 (2015). We review de
novo whether a judgment is void. Trinity Universal Ins. Co. of Kansas v. Ohio Cas. Ins. Co., 176
Wn. App. 185, 195, 312 P.3d 976 (2013), review denied, 179 Wn.2d 1010 (2014).
b. Property illegally seized from Potts’s home and second dealership
Here, we held in Potts’s criminal appeal that the search warrant used by the City to search
Potts’s home and his second dealership, and seize property from those properties, was invalid. See
Potts, slip. op. at 47-48, 51. Therefore, the seizure of property from those two properties was
unlawful.
12 No. 48410-2-II
Potts argues that this seizure pursuant to an invalid warrant for lack of probable cause
rendered the hearing officer without jurisdiction. But the lack of probable cause for a seizure goes
to the merits of a forfeiture claim, and not to a court’s jurisdiction to hear the claim. $401,333.44,
164 Wn. App. at 251.
Here, because the City unlawfully seized the property from Potts’s home and the second
dealership, the hearing officer could not find that the property was seized pursuant to RCW
69.50.505, which allows officers to seize property without process if done so under a search
warrant. Without such a finding, the hearing officer could not order the property forfeited.
Therefore, we hold that the forfeiture order relating to the property seized from Potts’s home and
his second dealership was void and vacate those portions of the order.12
C. MOTION TO VACATE
Potts argues that the superior court erred when it denied his motion to vacate the dismissal
of his appeal. We do not address this claim.
Under RAP 5.3(a), a notice of appeal must “designate the decision or part of decision which
the party wants reviewed.” We will review a trial court decision not designated in the notice of
appeal, “if (1) the order or ruling prejudicially affects the decision designated in the notice, and (2)
the order is entered, or the ruling is made, before the appellate court accepts review.” RAP 2.4(b).
If a party wants to seek review of a trial court decision entered “after review in the same case has
12 We note that it would be the height of irony in this case if the State were allowed to keep unconstitutionally seized property because Potts did not provide a mailing address under RCW 34.05.546.
13 No. 48410-2-II
been accepted by the appellate court, the party must initiate a separate review of the decision by
timely filing a notice of appeal.” RAP 5.1(f).
Here, Potts did not designate the superior court’s denial of his motion to vacate in his notice
of appeal. And Potts did not initiate a separate review of the denial by filing another notice of
appeal. Furthermore, the superior court’s denial of Potts’s motion to vacate the order does not
prejudicially affect the order of dismissal pursuant to RCW 34.05.546, which is the decision on
appeal. The superior court’s denial of Potts’s motion to vacate is not before this court on appeal,
and we do not address it further.13
D. MOTION TO COMPEL
Potts argues that the superior court erred when it denied his motion to compel agency
records. The record on appeal does not contain Potts’s motion, but contains only objections and
responses thereto. The record is insufficient for us to address this claim. Wash. Pub. Tr. Advocates
v. City of Spokane, 120 Wn. App. 892, 898, 86 P.3d 835 (2004).
13 Potts also argues that we should vacate the hearing officer’s forfeiture order and the superior court’s dismissal order because: the hearing officer did not have personal jurisdiction over the property seized from Potts Family Motors due to the City’s failure to provide the required notice to Potts Family Motors, notice was served on the hearing officer that the property belonged to Potts Family Motors, and no hearing was held to determine the ownership of the property seized. However, the record is insufficient for us to address this issue. Wash. Pub. Tr. Advocates, 120 Wn. App. at 898. The notice allegedly provided does not exist in the record. Therefore, we decline to address this claim.
14 No. 48410-2-II
We reverse the superior court’s order dismissing Potts’s appeal of the administrative action
forfeiting Potts’s property, cash, and bank accounts and remand for further proceedings consistent
with this opinion.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Lee, J. We concur:
Worswick, P.J.
Sutton, J.