NOTICE: NOT FOR OFFICIAL PUBLICATION. 

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE 

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA ex rel. MARK BRNOVICH, Plaintiff/Appellee,

v.

FRANK LEE CULVER, Defendant/Appellant. 

No. 1 CA-CV 15-0150 

Appeal from the Superior Court in Maricopa County 

No. CV2013-014946 

The Honorable James R. Morrow, Judge Pro Tempore

APPEAL DISMISSED 

COUNSEL 

Arizona Attorney General’s Office, Phoenix 

By Eric S. Rothblum, Kenneth R. Hughes 

Counsel for Plaintiff/Appellee 

Frank Lee Culver, Douglas 

Defendant/Appellant
STATE v. CULVER 

Decision of the Court 

2

MEMORANDUM DECISION 

Judge Donn Kessler delivered the decision of the Court, in which Presiding 

Judge Peter B. Swann and Judge Lawrence F. Winthrop joined. 

K E S S L E R, Judge: 

¶1 Frank Lee Culver appeals from the trial court’s order denying 

his motion to set aside the judgment pursuant to Arizona Rule of Civil 

Procedure (“Rule”) 60(c). Because Culver was not a party, and thus lacked

standing to file for such relief, 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 court2 before 

filing an untimely Notice of Appeal with this Court on March 18, 2014. This 

Court dismissed the appeal for lack of jurisdiction. Culver then filed a 

Motion to Set Aside the Judgment pursuant to Rule 60(c). The trial court 

 

1 The currency was seized during a traffic stop on September 27, 2013. 

2 Culver filed the following documents with the trial court: (1) a Motion to 

Return Property, filed February 11, 2014; (2) a letter dated January 7, 2014, 

filed February 13, 2014; (3) a Motion for an Order to Renew Motion to 

Release Illegally Seized Property, filed March 10, 2014; (4) a Motion to Set 

Aside Illegal De Facto Forfeiture Proceedings Initiated Without Probable 

Cause with Fabricated Information and False Charges, filed March 11, 2014; 

and (5) a Motion to Set Aside Order of Judgment of an Illegal De Facto 

Forfeiture, filed March 11, 2014. 
STATE v. CULVER 

Decision of the Court 

3

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). 

¶4 Culver timely appealed. We have jurisdiction pursuant to 

Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-

120.21(A)(1) (2003) and -2101(A)(1) (Supp. 2015). 

DISCUSSION 

¶5 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 

 

3 Culver’s original Motion to Set Aside the Judgement cites generally to 

Rule 60(c) and argues that (1) the State’s NOSF was invalid, and (2) Apache 

County Jail personnel obstructed Culver’s access to the mail system 

resulting in a judgment by default. If Culver’s motion was predicated on 

Rule 60(c)(1)-(3), it would be untimely because a motion for relief from 

judgment pursuant to those subsections must be filed within six months of 

the entry of judgment. See Ariz. R. Civ. P. 60(c) (“The motion shall be filed 

within a reasonable time, and for reasons (1), (2) and (3) not more than six 

months after the judgment or order was entered or proceeding was 

taken.”). We also find the motion would fail if made pursuant to Rule 60(c) 

subsection 4, as the judgment was not void. “Compliance with the notice 

requirements of the statutes is necessary to both give the court jurisdiction 

over a property and to give an owner of record an opportunity to protect 

his interests.” State ex rel. Horne v. Rivas, 226 Ariz. 567, 571, ¶ 16 (App. 2011). 

Here, the State complied with the requirements of A.R.S. §§ 13-4311, -4308 

(2010), -4307 (2010), and -4306 (2010). The property was not “seiz[ed] for 

forfeiture” until the State filed the NOSF. See A.R.S. § 13-4301(9) (2010) 

(“‘Seizure for forfeiture’ means seizure of property by a peace officer with 

an assertion by the seizing agency or by an attorney for the state that the 

property is subject to forfeiture.”). Thus the State had sixty days from the 

date it filed its NOSF to file the NOPF. Because the State filed the NOSF 

and NOPF on the same day, it complied with the statutory requirements of 

A.R.S. § 13-4308(B), thus giving the court jurisdiction over the property 

seized. Culver was also provided notice of the NOSF and NOPF within 

twenty days of the filing, further complying with the notice requirements 

of A.R.S. §§ 13-4311, -4307, and -4306(C). Giving Culver the benefit of the 

doubt, we analyze the trial court’s denial of his Rule 60(c) motion under 

Rule 60(c)(6). 
STATE v. CULVER 

Decision of the Court 

4

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). We 

find no error because Culver either did not timely file a claim or the claim 

was substantively insufficient.4

¶6 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). “No extension of 

time for the filing of a claim may be granted.” A.R.S. § 13-4311(F). 

¶7 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 

 

4 Our colleagues on the motions panel summarily denied the State’s motion 

to dismiss the appeal, which argued that Culver was not a party to the 

judgment and lacked standing to pursue the appeal. We are not bound by 

the decisions of the motions panel. See Tripati v. Forwith, 223 Ariz. 81, 84 

(App. 2009) (disagreeing with motions panel); In re Stagecoach Utils., Inc., 86 

B.R. 229, 230 (B.A.P. 9th Cir. 1988) (“Motion Panel decisions are not binding 

on the Panel assigned the case.”).
STATE v. CULVER 

Decision of the Court 

5

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). 

¶8 Furthermore, even if we give Culver the benefit of the doubt 

and assume that his claim was timely filed,5 he 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 judgment pursuant to Rule 60(c). See 8136 S. Dobson Street, Chicago, 

Ill., 125 F.3d at 1082. 

CONCLUSION 

¶9 For the foregoing reasons, we conclude that Culver lacked 

standing in the forfeiture proceedings and continued to lack standing in his 

Rule 60(c) motion for relief from judgment. We therefore dismiss this 

appeal challenging the forfeiture judgment for lack of appellate jurisdiction. 

 

5 Culver’s Motion to Return Property, although filed February 11, 2014, is 

dated January 14, 2014, and letters from the Office of the Sheriff note that in 

January and February 2014 there might have been a delay in sending mail 

out. According to the inmate mail log report, Culver’s first piece of mail 

addressed to the Clerk of the Superior Court in the relevant time frame was 

sent on February 8, 2014. Applying the mailbox rule, that Motion to Return 

Property would be deemed mailed on February 8. See State v. Goracke, 210 

Ariz. 20, 22, ¶ 5 (App. 2005) (stating that pursuant to the prisoner mailbox 

rule, a pro se prisoner is deemed to have filed a properly addressed 

pleading at the time it is delivered to the proper prison authorities for 

filing). But because he allegedly gave it to jail personnel who might have 

delayed mailing it, we will assume it was deemed mailed January 14.