Arizona Court of Appeals Division Two Holds That Under A.R.S. § 13-4311(H), a Motion for Summary Judgment Is Not a Responsive Pleading and That the Trial Court Improperly Considered Evidence When It Ruled on a Motion to Dismiss.

Fernando Peña challenged the trial court’s ruling striking his answer to a forfeiture complaint and ordering the state to proceed with an uncontested forfeiture pursuant to A.R.S. §§ 13-4314 and 13-4315.  In response to the State’s forfeiture complaint, Peña filed a motion for summary judgment and a motion to dismiss.  The trial court denied both motions.  During a hearing on the motion to dismiss, the trial court heard testimony by officers regarding the funds.  The Court of Appeals held that the trial court properly denied the summary judgment motion because it is not a responsive pleading under A.R.S. § 13-4311(H).   The Court reversed the trial court’s motion to dismiss ruling because a Rule 12(b)(6) motion to dismiss examines the sufficiency of the complaint’s allegations, not any supporting evidence. 

Judge Espinoza authored the opinion; Presiding Judge Miller and Chief Judge Eckerstrom concurred.