NO. COA01-930
Appeal by surety from order entered 3 April 2001 by Judge Kyle
D. Austin in Watauga County District Court. Heard in the Court of
Appeals 13 May 2002.
Steven M. Carlson for Mountaineer Bail Bonds, surety-
appellant.
Miller & Johnson, PLLC, by Paul E. Miller, Jr., for Watauga
County Board of Education, judgment creditor-appellee.
TYSON, Judge.
I. Facts
Mountaineer Bail Bonds ("Mountaineer") appeals the District
Court's order denying their motion to remit judgment of bond
forfeiture. The Watauga County Board of Education ("the Board")
are judgment creditors and appellees in the present action by
virtue of its opportunity to be heard pursuant to G.S. § 15A-544
(1999) (repealed Jan. 1, 2001).
The facts relevant to this appeal are as follows: On 24August 1998, Anthony Moraitis was arrested for possession of
marijuana. On the same day, Mountaineer posted an appearance bond
in the amount of $5000.00 and Moraitis was released. On 21
December 1998, an Order of Bond Forfeiture and Notice was entered
after Moraitis failed to appear in court.
On 17 September 1999, Mountaineer filed a motion to remit
bond, asking that the court strike the forfeiture and release them
from any obligation to pay the bond. On 22 September 1999, the
trial court entered an order remitting the amount of $5000.00 to
Mountaineer. The Board appealed the remission of the bond, and
this Court vacated the trial court's order because Mountaineer's
motion had not been verified.
On 8 January 2001, Mountaineer filed a motion to amend,
seeking to include verification to their previously filed motion to
remit bond. Also on 8 January 2001, Mountaineer filed a verified
motion to remit bond separate from their motion to amend their
previous motion to remit bond. On 6 February 2001, the trial court
denied the motion to amend, stating that the defect in the previous
motion could not be cured by amendment. The trial court further
denied the verified motion to remit bond, stating that the motion
“can be made only after execution on a judgment has occurred, which
hasn't been done in this matter.”
On 22 March 2001, a writ of execution was entered on the bond
forfeiture. Finally, on 3 April 2001, the trial court entered an
order denying remission of the bond. Mountaineer appeals.
II. Issue
Mountaineer's sole argument on appeal is that the trial court
abused its discretion by failing to remit the bond for
extraordinary cause. Mountaineer asserts that they made diligent
efforts to locate Moraitis, including contacting Moraitis' father
and the District Attorney to see if they had any information
regarding Moraitis' location. They were unable to quickly locate
Moraitis. Mountaineer contends they then began additional efforts,
including asking the District Attorney on several occasions to
place Moraitis' name on the NCIC computer list. Mountaineer notes
that Moraitis' name was never placed on the NCIC list, even though
it would have “greatly enhanced the chance that Defendant would be
apprehended and made to appear in court.” Mountaineer further
notes that the District Attorney's office indicated to them that
they had no interest in apprehending or prosecuting Moraitis.
Accordingly, Mountaineer argues that “[w]hen the State fails to
take even minor simple steps which would help fulfill the basic
purposes and principles underlying the forfeiture and bond
statutes, extraordinary cause demands that the bond be remitted.”
III. Conclusion
After careful review of the record, briefs and contentions of
the parties, we affirm. This Court has stated:
it is within the court's discretion to remit
judgment for 'extraordinary cause,' and we
therefore review the court's decision pursuant
to section 15A-544(h) for abuse of discretion.
'Extraordinary cause,' under section
15A-544(h), is cause 'going beyond what is
usual, regular, common, or customary ... of,
relating to, or having the nature of an
occurrence or risk of a kind other than what
ordinary experience or prudence wouldforesee.' In determining whether the facts of
a particular case constitute 'extraordinary
cause,' the trial court must make 'brief,
definite, pertinent findings and conclusions.'
State v. Coronel, 145 N.C. App. 237, 243, 550 S.E.2d 561, 566
(2001)(citations omitted),
disc. review denied, 355 N.C. 217, 560
S.E.2d. 144 (2002).
Here
, the trial court found as fact that Mountaineer had: (1)
“made phone calls for assistance to the District Attorney's office
and the Defendant's father;” (2) “asked the District Attorney's
office to place the Defendant's name on the NCIC computer list,”
and; (3) “incurred out-of-pocket expenses and cost in his efforts
to locate the Defendant, but failed to bring him in.” Based on
these findings, the trial court concluded that the efforts of
Mountaineer did not constitute “'[e]xtraordinary [c]ause' under
NCGS 15A-544(h).” Mountaineer does not assign error to the trial
court's findings, but argues that the court erred in concluding
that the facts did not constitute extraordinary cause. We find no
abuse of discretion. The crux of Mountaineer's argument is that
the failure of the District Attorney to place Moraitis' name on the
NCIC list, and its alleged lack of interest in apprehending and
prosecuting Moraitis, constituted “extraordinary cause.” The State
has no affirmative duty, however, to assist a surety in locating a
defendant, and Mountaineer has not shown that the State interfered
with their efforts to locate the defendant. Furthermore, the
efforts expended by Mountaineer to locate defendant do not appear
to be extraordinary, but rather amount to basic diligence. We
affirm the order of the trial court. Affirmed.
Judges GREENE and HUDSON concur.
Report per Rule 30(e).
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