This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-96-1582

Hubert H. Humphrey, III

Attorney General,

Respondent,

vs.

Sixteen Vehicles, et al.,

Appellants.

Filed April 1, 1997

Affirmed

Klaphake, Judge

Dissenting, Randall, Judge

Meeker County District Court

File No. C8-95-310

Hubert H. Humphrey, III, Attorney General, James B. Early, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Peter J. Verdon, FPC-Duluth, P.O. Box 1400, Duluth, MN 55814 (Pro Se Appellant)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

KLAPHAKE, Judge

Peter Verdon appeals pro se from an order forfeiting 43 items of personal property as proceeds from illegal drug trafficking under Minn. Stat. § 609.5311, subd. 4(b) (1994). He argues that the trial court erred in conducting the trial on the same day of its ruling on his motion to dismiss and by allowing discovery to be used against him without first ruling on his motion to dismiss. Because double jeopardy is not implicated by this civil in rem proceeding, we affirm the trial court's denial of Verdon's motion to dismiss. Because Verdon failed affirmatively to seek an extension of time within which to respond to the state's request for admissions and those admissions support forfeiture of the subject property, we affirm that forfeiture.

D E C I S I O N

I.

Verdon's notice of appeal indicates that he is appealing from the "order" denying his motion for dismissal and forfeiting his property. Such an order is nonappealable. See Minn. R. Civ. App. P. 103. Notices of appeal are liberally construed, however, and may be sufficient even with minor clerical errors or defects that are not misleading. See Kelly v. Kelly, 371 N.W.2d 193, 195-96 (Minn. 1985). Here, the judgment and order were entered on the same day, Verdon obviously intended to appeal from the judgment, and the state has not claimed that it was misled by the notice of appeal. Under these circumstances, Verdon's appeal may be construed as taken from the appealable final judgment.

II.

Verdon moved for dismissal under Minn. R. Civ. P. 12.02, claiming that forfeiture of his property constituted double jeopardy. He argued that he had already been punished in federal court with a drug trafficking conviction and a forfeiture order involving cash proceeds from drug sales. The federal forfeiture order presumably involved the cash Verdon had in his possession in California when he was arrested on federal drug charges.

Under the dual sovereignty doctrine, successive prosecutions by two separate sovereigns, such as a state and the federal government, are not prohibited by double jeopardy. See Heath v. Alabama, 474 U.S. 82, 88-89, 106 S. Ct. 433, 437-38 (1985). Thus, even assuming that this case involves successive prosecutions for the same conduct, the state is not barred from pursuing it.

In addition, Verdon's federal conviction and the federal forfeiture action do not involve the same act or transaction as does this state forfeiture action. Rather, the state seeks forfeiture of property purchased before the federal arrest and with the proceeds from drug sales over the past ten years. The drugs and cash seized when Verdon was arrested in California could not have been the source of funds used to buy this property.

Finally, this statutory forfeiture is a "civil in rem action." See Minn. Stat. § 609.531, subd. 6a(a). Such a forfeiture presumptively does not constitute double jeopardy. See Pine Springs v. One 1992 Harley Davidson, 555 N.W.2d 749, 751 (Minn. App. 1996) (quoting United States v. Ursery, 116 S. Ct. 2135, 2148 n.3 (1996)). Further, double jeopardy is not implicated where the property seized is distinctly different in both actions because only one jurisdiction can seize and hold the subject property. See Humphrey v. $1109 in U.S. Currency, 539 N.W.2d 1, 2-3 (Minn. App. 1995), review denied (Minn. Dec. 20, 1995). Thus, the trial court did not err in concluding that this action was not prohibited by double jeopardy and in denying Verdon's motion to dismiss.

III.

Verdon argues that the trial court erred when it proceeded to the merits of this case on the same day it heard his motion to dismiss. The state asserts that Verdon was responsible for scheduling a hearing on his motion to dismiss and that his failure to do so prevented the motion from being heard before trial. However, Minn. R. Civ. P. 12.04 allows a motion to dismiss to "be heard and determined before trial on application of any party." (Emphasis added.) Thus, "either party may have the matter heard, [and] there is no special obligation on the moving party to place the matter on the calendar for hearing." 1 David F. Herr & Roger S. Haydock, Minnesota Practice § 12.12, at 282 (1985). While a court may sanction parties who fail to schedule a rule 12.02 motion by ordering a continuance of the trial, we cannot conclude that the trial court in this case abused its discretion by choosing to proceed to the merits. See id.; Dunshee v. Douglas, 255 N.W.2d 42, 45-46 (Minn. 1977) (granting of continuance within discretion of trial court).

Verdon further argues that the trial court erred in concluding that he was bound by his failure to respond to the state's requests for admissions.[1] A request for admissions

is admitted unless within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter * * *.

Minn. R. Civ. P. 36.01. A party may seek an extension of time in which to respond. Herr & Haydock, Minnesota Practice § 36.4, at 184. A party who fails to respond may not argue at trial that it should not be bound by its silence. Verdon failed affirmatively to request an extension of time in which to respond to the state's request for admissions, and, even on appeal does not establish that he was entitled to an extension. Thus, we cannot conclude that the trial court abused its discretion in ruling that the admissions were automatically admitted.

Finally, these admissions and the reasonable inferences that may be drawn from them present a prima facie case to support forfeiture of the property. At no time has Verdon offered any evidence to the contrary or otherwise attempted to rebut the state's case. Therefore, he has not established a basis for waiving the rule. Id. at 185.

We therefore affirm the trial court's denial of Verdon's motion to dismiss and its forfeiture order.

Affirmed.

RANDALL, Judge (dissenting).

I respectfully dissent. Minn. R. Civ. P. 12.04 requires a motion to dismiss to "be heard and determined before trial on application of any party." According to one commentator:

The moving party will most frequently set the hearing date and time, and provide notice to all other parties, but that need not be the case. Because either party may have the matter heard, there is no special obligation on the moving party to place the matter on the calendar for hearing. Since the only requirement for time of hearing in the rule is that the hearing be held before trial, continuance of trial is the necessary sanction imposed upon the parties for [failing] to have the defenses resolved prior to trial.

1 David F. Herr & Roger S. Haydock, Minnesota Practice § 12.12, at 282 (1985).

Appellant Verdon served the State of Minnesota with a motion to dismiss under Minn. R. Civ. P. 12.02 in March 1995. Verdon's attorney filed that motion to dismiss rather than an answer to the state's complaint, which sought forfeiture of personal property.

The motion to dismiss was based on the argument that the forfeiture action was barred by double jeopardy. That was a simple issue for the state to respond to and the trial court to rule on. If the trial court ruled that appellant was correct, obviously no answer to the complaint would be needed and no civil discovery would have to be engaged in.

The trial court never ruled on the motion, even though by June 1995, appellant's memorandum in support of the motion and the state's memorandum in opposition to the motion were filed with the court. Five months later, in November, the state served requests for admissions on Verdon's attorney. The trial court still had not ruled on Verdon's motion to dismiss, which, if granted, would end the matter. If the motion had been formally denied, both sides would know that discovery was important, and not moot.

The trial was started on February 23, 1996 and the trial court still had not ruled on Verdon's motion to dismiss. Verdon's attorney claimed at the start of trial that the court had to rule on the motion to dismiss first, and also claimed that the Bureau of Prisons had indicated to him that it would not make Verdon available for a personal appearance in what was just a civil action. This is February 23, 1996. The trial court took the matter under advisement, and three months later, in May 1996, finally denied Verdon's motion to dismiss and immediately began to address the merits of the case. The trial court noted that since the "state's request for admissions had not been answered within 30 days" the court deemed them admitted, adopted them into its findings, and thus, held against appellant by way of default.

Verdon is now appearing pro se. It would seem, in all fairness to appellant, that when his attorney filed a motion to dismiss in March 1995, and the trial court did not address the motion until May 1996, a short continuance after the trial court denied the motion to dismiss would have been in order for a now pro se defendant, during which time the court could caution him that pro se or not he now only had a short reasonable time to engage in civil discovery and could no longer avoid discovery because now there was no chance that the issue of discovery would be mooted.

An earlier ruling on appellant's motion to dismiss and then a reasonable continuance to allow discovery could not prejudice the state, and they claim none. Appellant had a ten-year federal prison sentence imposed on him in January 1995. Today appellant is available for discovery, and is not going anyplace.

It is true, as the majority points out, that Verdon failed to affirmatively request an extension of time in which to respond to the state's request for admissions. But at all times that Verdon failed to request an extension, the trial court still had not ruled on his motion to dismiss, which, if ruled on, would have settled the matter with finality either way.

The majority states that Verdon's admissions and the reasonable inferences which may be drawn from them present a prima facie case to support forfeiture of the property. But, of course, in a civil case, when the other side's requests for admissions are not answered and then the trial court deems them admitted for purposes of a ruling, the request for admissions that the other side will always send you are so loaded up in their favor, that if you are "defaulted on them," your day in court is pretty much over.

I dissent and would reverse and remand to the trial court to grant Verdon a short reasonable continuance and point out to Verdon (now pro se) emphatically that his motion to dismiss has been denied, the civil case that the state brings is on, and whether he proceeds pro se or retains an attorney, he is bound by the Minnesota Rules of Civil Procedure and must participate in the discovery process.

[ ]1 While Minn. R. Civ. P. 12.01 postponed Verdon's obligation to file an answer to the complaint until his rule 12.02 motion was heard, it did not postpone his obligation to respond to discovery requests made during the pendency of that motion.