(dissenting in part) — I must respectfully disagree with the majority in this case as to the appropriate remedy for the State’s failure to renote this matter for trial following its successful appeal in Tellevik v. 31641 W. Rutherford St., 120 Wn.2d 68, 93, 838 P.2d 111, 845 P.2d 1325 (1992) (Johnson, J., dissenting). The harsh remedy imposed by the majority is neither mandated by the applicable statute nor by our decision in Tellevik. Worse, it is unfair.
The question presented in this case is whether the State complied with the due process requirement in Tellevik that an opportunity for a full adversarial hearing be provided within 90 days of the seizure of real property. The clear answer is yes. In Tellevik this court stated that:
The effect of a seizure is to commence the forfeiture proceeding. RCW 69.50.505(c). Once the property has been seized, the seizing agency may take further action to remove the occupants or enter into an occupancy agreement only upon further order of the court following notice and an opportunity for the property owners to be heard. Claimants are entitled to a full adversarial hearing within 90 days if they contest the seizure. RCW 69.50.505(e). At the hearing, the burden is upon the seizing agency to prove the real property is subject to seizure. RCW 69.50.505(e).
Tellevik, at 86.
*375Looking at the case before us, Tellevik v. Real Property Known as 31641 W. Rutherford St., the State filed a complaint for forfeiture in rem and a lis pendens on April 13, 1990. At an ex parte hearing held that day, the trial court signed a warrant of arrest in rem. The summons, complaint for forfeiture in rem, lis pendens, notice of seizure and intended forfeiture, the warrant of arrest in rem and supporting affidavit were served on the Defendants on April 13, 1990, as well. The Defendants appeared in superior court and moved to dismiss the complaint, arguing that the authority, therefore, RCW 69.50.505(b), was unconstitutional. Defendant Pearson also moved for summary judgment under the innocent owner provision of the statute. The State moved to continue the summary judgment motion pursuant to CR 56(f). On September 5,1990, the trial court denied the State’s continuance, granted Defendants’ motion for summary judgment, quashed the warrant for arrest in rem, canceled the lis pendens, and found RCW 69.50.505(b) was unconstitutional on its face and as applied. The State appealed.
This court accepted direct review and held that RCW 69.50.505(b) was not unconstitutional on its face nor as applied. It is implicit in this conclusion that RCW 69.50.505(b) was constitutional as applied precisely because the Defendants had received a full opportunity to contest the forfeiture action in King County Superior Court. This court reversed the trial court, including the grant of summary judgment and denial of the State’s CR 56(f) motion and stated: "Plaintiffs in Tellevik v. 31641 West Rutherford Street should be allowed to complete discovery in their case against Janet Pearson. As to the remaining Defendants, both cases are remanded for trial on the forfeitures.” Tellevik, at 92.
The Defendants argue here, and the majority agrees, that the 90-day period ordered by Tellevik applies to the renoting of their cases for trial and that the State’s failure to comply with this time limitation requires the dismissal of their cases. I disagree. Due process requires only an opportunity to be heard and to contest the seizure. Tellevik, at 86-87. The *376Defendants clearly have had that and more. Through the course of this matter the Defendants have even had the opportunity for Supreme Court review. The effect of the mandate in Tellevik was simply to put the parties hack in their respective positions before the trial court entered its erroneous dismissal order on September 5,1990. Given the procedural history in this case, I would hold that due process has been afforded to these Defendants. As with other substantive time limits, such as a statute of limitations, once the time requirement has been complied with, it need not be complied with again. For example, remand following reversal of a jury verdict in a civil case does not subject the case to the statute of limitations again. Rather, the civil rules of procedure dictate the course of the action on remand.
Since due process was satisfied any further time requirements are not of constitutional magnitude but are merely procedural. The State argues that time requirements which are merely procedural do not require dismissal for noncompliance. I agree with the State. As the United States Supreme Court held recently in United States v. James Daniel Good Real Property, 510 U.S. 43, 126 L. Ed. 2d 490, 114 S. Ct. 492 (1993), if a statute does not specify a consequence for noncompliance with an internal timing provision, the court should not fashion its own coercive sanction. Good, 114 S. Ct. at 506. RCW 69.50.505 specifies neither a time limit for trial following remand nor a consequence if trial is set beyond 90 days from the issuance of a mandate. Nor does Tellevik provide a time requirement for trial following remánd. If dismissal was improper in Good, where the statute contained a timing provision, it is clearly improper in this case where the statute and the case law are silent as to time requirements for trial following appeal. As the court concluded in Good, dismissal is not the proper remedy.
In support of dismissal, the Defendants attempt to analogize the forfeiture scheme of RCW 69.50 to the speedy trial requirement of CrR 3.3. They cite Seattle v. Hilton, 62 Wn. App. 487, 815 P.2d 808 (1991), review denied, 122 Wn.2d 1012 (1993) as authority for their argument that the man*377date in Tellevik retriggers the running of the 90-day hearing requirement. In Hilton, this court was asked to construe the provisions of CrRLJ 3.3 which set out the time requirements for trial in criminal cases following appeal or stay. The court found that the time requirements of the rule were commenced by the filing of the mandate. As the State correctly points out, however, there is no corresponding rule which dictates time limits for commencement of trial following appeal in a drug forfeiture case. Nor, as pointed out earlier, does Tellevik address whether the 90-day requirement begins anew following appeal. Defendants’ reliance on CrR 3.3 is thus unpersuasive.
Moreover, if Defendants are correct that the filing of a mandate following appeal triggers the same preappeal requirements, such as the right to a hearing within 90 days as determined by Tellevik, then it follows that the Defendants should also be required to recomply with RCW 69.50.505(e) by filing another written notice contesting seizure after the mandate. See Tellevik, at 86. That statute, as well as Telle-vik, requires that a reasonable opportunity to be heard be afforded to the property owner only if that person notifies the seizing law enforcement agency in writing of the person’s claim of ownership or right to possession of the property within 90 days. RCW 69.50.505(e); Tellevik, at 87. The failure of the owner to notify the seizing agency of a claim to the property will result in automatic forfeiture after 90 days. RCW 69.50.505(e).
Here, the Defendants filed no written notice contesting the seizure of their property following the mandate in Tellevik. The only written notice by the Defendants in this case was filed on June 12, 1990. If the State has not met its burden, the Defendants, likewise, have not met theirs.
Finally, the State correctly argues that the Defendants themselves caused the delay in resetting the case. An affidavit filed by counsel for the State recites a conversation between the State and the Defendants’ attorney about selecting the trial date. The State had contacted the defense to set a court date within 90 days following the mandate. In that discussion, the Defendants’ counsel stated his prefer*378ence that the matter be. put off pending a decision to seek review by the United States Supreme Court. It is well settled that the right to due process may be waived. In re Adoption of Jackson, 89 Wn.2d 945, 952, 578 P.2d 33 (1978); State v. Myers, 86 Wn.2d 419, 426, 545 P.2d 538 (1976). Although the State would have been wise to formalize the agreement for delay in a case such as this, in which both parties are struggling with application of new law, this court should find that the verbal request for delay by defense counsel was sufficient to waive the 90-day requirement; that the State relied, to its detriment, on defense counsel’s position; and that the Defendants are estopped from complaining of the delay.
It must be borne in mind that we are not dealing with fundamental rights such as the right to speedy trial under CrR 3.3 nor the right to a jury of 12 in a criminal case. Under consideration today is the renoting of a matter in which the trial court’s erroneous grant of summary judgment and dismissal resulted in reversal and remand. Given this circumstance, this court’s dismissal for failure to comply with the 90-day requirement set forth in RCW 69.50.505(e) is both an inappropriate and an unfair result.
Durham and Guy, JJ., concur with Madsen, J.