STATE OF ARIZONA ex rel. MARK BRNOVICH, Plaintiff/Appellee,
FRANK LEE CULVER, Defendant/Appellant.
from the Superior Court in Maricopa County No. CV2013-014946
The Honorable James R. Morrow, Judge Pro Tempore.
Arizona Attorney General's Office, Phoenix By Eric S.
Rothblum, Kenneth R. Hughes Counsel for Plaintiff/Appellee.
Lee Culver, Douglas Defendant/Appellant.
Donn Kessler delivered the opinion of the Court, in which
Presiding Judge Peter B. Swann and Judge Lawrence F. Winthrop
Frank Lee Culver appeals from the trial court's order
denying his motion to set aside the judgment of forfeiture
pursuant to Arizona Rule of Civil Procedure
("Rule") 60(c). Culver failed to file a timely,
sufficient notice of claim and thus was not a party to the
forfeiture proceedings. He therefore lacked standing to file
for Rule 60 relief and we dismiss this appeal for lack of
AND PROCEDURAL HISTORY
On November 5, 2013, the State filed a joint Notice of
Pending Forfeiture ("NOPF") and Notice of Seizure
for Forfeiture ("NOSF") for currency in the amount
of $40, 333. The State sent a copy of the notice to
Culver at his California address via certified mail on
November 13, 2013. When it was discovered that Culver was in
Apache County Jail, the State personally served him on
December 23, 2013. The State filed its Application for Order
of Forfeiture and mailed a copy to Culver on February 3,
2014. On February 5, 2014, the trial court entered an order
of forfeiture against the property and awarded it to the
Culver filed several documents with the trial
court before filing an untimely Notice of Appeal
with this Court on March 18, 2014. This Court dismissed the
appeal for lack of jurisdiction. On December 24, 2014, Culver
filed a Motion to Set Aside the Judgment pursuant to Rule
60(c). The trial court denied the motion, finding no basis to
set aside the judgment because Culver did not file a claim
meeting the substantive requirements of Arizona Revised
Statutes ("A.R.S.") section 13-4311(E) (2010)
within the timeframe required in A.R.S. § 13-4311(D).
Culver timely appealed.
Culver appeals from the trial court's denial of his Rule
60(c) motion, which we will analyze under Rule
60(c)(6). We review a trial court's ruling on a
motion for relief from judgment under Rule 60(c) for an abuse
of discretion. City of Phoenix v. Geyler, 144 Ariz.
323, 329 (1985). Culver either did not timely file a claim or
the claim was substantively insufficient. Accordingly, he did
not have standing to seek Rule 60 relief and does not have
standing to pursue this appeal.
One must be a party to an action and have standing to contest
a forfeiture action. In re $70, 269.91 in U.S.
Currency, 172 Ariz. 15, 19 (App. 1991). Standing is
acquired in a civil forfeiture action by alleging an interest
in the property. Id. An owner or interest holder in
property subject to forfeiture asserts their interest by
timely filing a claim against the property. A.R.S. §
13-4311(D) (2010) (providing that a claim must be filed
within thirty days after receiving notice of the NOPF);
see also In re $70, 269.91 in U.S. Currency, 172
Ariz. at 19. The claim must also include the substantive
elements listed in A.R.S. § 13-4311(E). See In re
$70, 269.91 in U.S. Currency, 172 Ariz. at 19-20. Once
the owner timely "files a proper claim, he becomes a
'claimant' and is entitled to a hearing to adjudicate
the validity of his interest" in the property. Id.;
see also A.R.S. § 13-4311(D); see also In re
$70, 269.91 in U.S. Currency, 172 Ariz. at 19. "No
extension of time for the filing of a claim may be
granted." A.R.S. § 13-4311(F).
The State personally served Culver with the NOSF and NOPF on
December 23, 2013. Thus to be timely, Culver needed to file
his notice of claim by January 22, 2014. See A.R.S.
§ 13-4311(D) ("An owner of or interest holder in
the property may file a claim against the property,
within thirty days after the notice, for a hearing
to adjudicate the validity of his claimed interest in the
property." (emphasis added)). Culver, however, did not
file anything with the superior court until February 11,
2014. See supra n.2, ¶ 3. "If the claim is
not timely filed, the person does not become a claimant and
lacks standing to contest the forfeiture." In re
Forty-Seven Thousand Six Hundred Eleven Dollars &
Thirty-One Cents (47, 611.31) U.S. Currency, 196 Ariz.
1, 2, ¶ 4 (App. 1999). Because Culver did not file a
timely claim in compliance with the statute, he was not a
party to the forfeiture action. Because he was not a party,
Culver could not make a claim for relief from judgment
pursuant to Rule 60(c). See United States v. 8136 S.
Dobson Street, Chicago, Ill., 125 F.3d 1076,
1082 (7th Cir. 1997) (stating that non-party in a forfeiture
action cannot make a Rule 60 claim for relief from judgment).
Furthermore, even had Culver timely filed his claim,
failed to comply with the substantive statutory requirements
of A.R.S. § 13-4311(E). Again, because Culver did not
file a claim in compliance with statutory requirements, he
was not a party to the forfeiture action, and cannot make a
claim for relief from ...