Bail and Pretrial Release--bond forfeiture--request for remittance--unverified petition for
relief--no jurisdiction
The trial court's order remitting a bail bond forfeiture based upon a surety's unverified
petition for relief is invalid because: (1) N.C.G.S. § 15A-544 requires the petition to be verified, and
the surety has not moved to amend its motion to include a verification; and (2) the trial court had no
jurisdiction over the motion since the requirement that a complaint filed pursuant to that statute be
verified is a jurisdictional requirement.
Appeal by Watauga County Board of Education from order entered
22 September 1999 by Judge William A. Leavell in Watauga County
District Court. Heard in the Court of Appeals 9 November 2000.
Miller & Johnson, PLLC, by Paul E. Miller, Jr., and Linda L.
Johnson, for plaintiff-appellant Watauga County Board of
Education.
Steven M. Carlson for defendant-appellee.
EDMUNDS, Judge.
Judgment creditor Watauga County Board of Education (Watauga)
appeals from an order remitting a bond forfeiture. We vacate and
remand.
On 24 August 1998, defendant Anthony Moraitis (Moraitis) was
arrested for felony possession of marijuana in violation of N.C.
Gen. Stat. § 90-95(a)(3) (1999). On that same date, he executed,
as principal, an appearance bond in the amount of $5,000, which was
secured by Mountaineer Bail Bonds (Mountaineer) as surety.
Moraitis was released from custody pending hearing on the charge.
When Moraitis failed to appear in court on 18 December 1998,
his scheduled court date, an order for his arrest was issued and anorder of forfeiture was entered on the bond. On 21 December 1999,
Moraitis and Mountaineer were notified of a 24 March 1999 hearing
at which either would be allowed to present evidence to show why
Moraitis' appearance at the 18 December 1998 hearing was impossible
or without fault. Judgment of forfeiture was entered on 23 June
1999 in the amount of the bond.
On 17 September 1999, Mountaineer filed a “Motion to Remit
Bond,” alleging as grounds for relief that:
2. Immediately, after receiving notice of
the Order of Forfeiture, the Surety began
diligent efforts to locate the Defendant for
the purpose of arresting him and surrendering
him to the Sheriff.
. . . .
4. The Surety was in no way a contributing
factor or cause in the Defendant's failure to
appear, and it promptly pursued action
designed to locate the Defendant and to
promote the purposes of the appearance bond.
5. Subsequently, the Surety sought the
assistance of the District Attorney's Office
in Watauga County however, he was informed
that there was no interest in apprehending or
prosecuting the Defendant.
6. The Surety is entitled to reasonable
assistance from the District Attorney and
other State agencies and lack of such
assistance has made it impossible for the
Surety to surrender the Defendant. Therefore,
the Surety is entitled to be released from all
obligations for payment of this bond.
After a hearing on 22 September 1999, the court granted the motion,
allowing remission in the amount of $5,000. Two orders were
entered on 22 September 1999, one on form AOC-CR-213. A second
more specific order was filed on 27 September 1999.
Watauga filed notice of appeal on 19 October 1999, raisingseveral assignments of error. We need address only the f
irst.
Watauga argues that the court's order remitting the bond
forfeiture is invalid because it is based upon an unverified
petition for relief in violation of N.C. Gen. Stat. § 15A-544
(1999). This argument requires examination of the statutory
language contained in section 15A-544, which provides in pertinent
part:
At any time within 90 days after entry of the
judgment against a principal or surety, the
principal or surety, by verified written
petition, may request that the judgment be
remitted in whole or in part, upon such
conditions as the court may impose, if it
appears that justice requires the remission of
part or all of the judgment.
N.C. Gen. Stat. § 15A-544(e) (emphasis added). In the case at bar,
although Mountaineer requested that the judgment be remitted within
ninety (90) days after entry of judgment of forfeiture, its request
was not verified, nor has Mountaineer moved to amend its motion to
include a verification. Accordingly, Watauga is correct in its
assertion that the trial court erred in remitting the judgment.
Mountaineer, citing Taylor v. Nationsbank Corp., 125 N.C. App.
515, 481 S.E.2d 358, disc. review allowed, 346 N.C. 288, 487 S.E.2d
570, disc. review improvidently allowed, 347 N.C. 388, 493 S.E.2d
57 (1997) and Alford v. Shaw, 327 N.C. 526, 398 S.E.2d 445 (1990),
contends that Watauga failed to object to the lack of verification
at the 22 September 1999 hearing and is therefore precluded from
raising such argument on appeal. However, these cases are
distinguishable from the case at bar. In Taylor, we held that
because the plaintiffs failed to raise any objection at trial
regarding the absence of verification of the defendants' answer,the issue was not properly preserved for appellate review.
However, unlike a request for remittance of judgment made pursuant
to N.C. Gen. Stat. § 15A-544(e), the defendants' answer was not
required to be verified by statute.
Alford is more closely analogous to the case at bar and
requires analysis. In Alford, the plaintiff failed properly to
verify its complaint in a shareholder derivative suit, as required
by N.C. Gen. Stat. § 1A-1, Rule 23 (1983). Our Supreme Court held,
however, that “because N.C.G.S. § 1A-1, Rule 23(b) addresses the
procedure to be followed in, and not the substantive elements of,
a shareholder's derivative suit, plaintiffs' failure to comply with
the verification requirement at the time the complaint was filed is
not a jurisdictional defect.” Alford, 327 N.C. at 531, 398 S.E.2d
at 447. Accordingly, the Court held that “[b]ecause the rule
containing the verification requirement is not jurisdictional in
nature, where the purposes behind the rule have been fulfilled by
the time the objection to a defective or absent verification is
lodged, dismissal or summary judgment in favor of defendants is not
appropriate.” Id. at 532, 398 S.E.2d at 448 (internal citations
omitted).
The question presented to this Court in the present case is
whether the verification requirement in N.C. Gen. Stat. § 15A-544
is jurisdictional. The issue of lack of subject matter
jurisdiction can be raised at any time, even on appeal. See
Wildcatt v. Smith, 69 N.C. App. 1, 316 S.E.2d 870, disc. review
allowed, 312 N.C. 90, 321 S.E.2d 909 (1984). This particular issue
is one of first impression in this State, and we begin with areview of general principles of statutory construction. A statute
that is clear on its face must be enforced as written. See Bowers
v. City of High Point, 339 N.C. 413, 451 S.E.2d 284 (1994). We
presume that the use of a word in a statute is not superfluous and
must be accorded meaning, if possible. See N.C. Bd. of Exam for
Speech Path. v. N.C. State Bd. of Educ., 122 N.C. App. 15, 468
S.E.2d 826, disc. review allowed, 343 N.C. 513, 472 S.E.2d 16
(1996), aff'd in part and disc. review improvidently allowed in
part, 345 N.C. 493, 480 S.E.2d 50 (1997). Where a term used in a
statute has obtained long-standing legal significance, we presume
that the legislature intended that significance to attach to the
use of the term, absent an indication to the contrary. See Black
v. Littlejohn, 312 N.C. 626, 325 S.E.2d 469 (1985).
We now consider whether the use of the term “verified” in the
statute governing Mountaineer's motion imposed a jurisdictional
requirement on the party filing the motion. As established in
Alford, the resolution of the issue turns on whether the statute
requiring verification addresses only the procedure to be followed
in the forfeiture proceeding, as opposed to addressing the
substantive elements of the proceeding. We are mindful that we
have previously held in In Re Triscari Children, 109 N.C. App. 285,
426 S.E.2d 435 (1993) that “[t]he shareholder derivative suit
appears to be the only situation where a specific requirement that
the pleadings be verified is not considered jurisdictional in
nature.” Id. at 288, 426 S.E.2d at 437.
Our review of N.C. Gen. Stat. § 15A-544 in its entirety
reveals that the statute addresses both substantive and proceduralelements. Accordingly, consistent with Alford and the principles
of statutory interpretation reviewed above, we hold that the
requirement that a complaint filed pursuant to that statute be
verified is a jurisdictional requirement. Because Mountaineer
failed to comply with this requirement, the trial court had no
jurisdiction over the motion. Accordingly, the order of the court
is vacated and the matter is remanded to the trial court for action
consistent with this opinion.
Vacated and remanded.
Judges MARTIN and TIMMONS-GOODSON concur.
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