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State ex rel. Brnovich v. Culver

Court of Appeals of Arizona, First Division

June 7, 2016

STATE OF ARIZONA ex rel. MARK BRNOVICH, Plaintiff/Appellee,
v.
FRANK LEE CULVER, Defendant/Appellant.

         Appeal 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.

          Frank Lee Culver, Douglas Defendant/Appellant.

          Judge Donn Kessler delivered the opinion of the Court, in which Presiding Judge Peter B. Swann and Judge Lawrence F. Winthrop joined.

          OPINION

          KESSLER, JUDGE.

         ¶1 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 appellate jurisdiction.

         FACTUAL AND PROCEDURAL HISTORY

         ¶2 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.[1] 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 State.

         ¶3 Culver filed several documents with the trial court[2] 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.

         DISCUSSION

         ¶4 Culver appeals from the trial court's denial of his Rule 60(c) motion, which we will analyze under Rule 60(c)(6).[3] 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.[4]

         ¶5 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).

         ¶6 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).

         ¶7 Furthermore, even had Culver timely filed his claim, [5] he failed to comply with the substantive statutory requirements of A.R.S. ยง 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 ...


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