The trial court did not abuse its discretion by denying a surety's motion for relief from final
judgments of bail bond forfeitures based upon “extraordinary circumstances” under N.C.G.S. § 15A-
544.8, even though the surety surrendered defendant to the county sheriff and the trial court may
have erred in failing to grant the surety's initial motions to set aside the bond forfeitures under
N.C.G.S. § 15A-544.5(b)(3), because the surety's failure to appeal the orders denying his initial
motions divested him of the right to appellate review of the merits of those orders.
Judge WYNN dissenting.
Appeal by surety from order entered 10 March 2003 by Judge E.
Lynn Johnson in Cumberland County Superior Court. Heard in the
Court of Appeals 25 May 2004.
David Phillips, for the Cumberland County Board of Education.
Parish & Cooke, by James R. Parish, for the surety.
CALABRIA, Judge.
Robert L. McQueen (“McQueen”) appeals the trial court's denial
of his motion for relief from final judgment of bond forfeiture.
We affirm.
In November 2001, McQueen posted bonds for Alvis Luther Evans
(“the defendant”) in the amount of $10,000.00 for each of two
counts of trafficking in cocaine, and $5,000.00 for one count of
maintaining a place for controlled substances. The defendant
failed to appear, and the bonds were ordered forfeited on 6 May
2002 with a final judgment date of 17 October 2002. On 12 October 2002, McQueen located the defendant and
surrendered him to the Cumberland County Sheriff. Three days
later, on 15 October 2002, McQueen filed pro se motions to set
aside the forfeitures under N.C. Gen. Stat. § 15A-544.5, certifying
that he had served copies of the motions on the district attorney
and the school board attorney by mailing copies to each by first
class mail on 15 October 2002. However, the record shows the
notice was postmarked on 24 October 2002 and received by the Board
of Education on 28 October 2002. Based upon the delay in service,
the school board requested McQueen's motions to set aside the bond
forfeitures be denied.
On 26 November 2002, the trial court denied McQueen's motions
indicating “this case is one of nine cases on the Superior Court
calendar to be heard on this date and in each case the Cumberland
County Board of Education received notice on the 13th day after
filing.” The trial court concluded that “the Surety's actions do
establish a pattern of conduct that is in fact denying the
statutory required period of time for response by the Cumberland
County Board of Education.” Though the 26 November orders were
immediately appealable pursuant to N.C. Gen. Stat. § 15A-544.5(h)
(2003), McQueen filed no appeal, and the forfeitures became final
judgments as of 17 October 2002. Thereafter, McQueen initiated a
new proceeding on 31 January 2003 by filing a motion for relief
from final judgment of forfeiture.
The trial court denied said
motion by order entered 10 March 2003. From this denial, McQueen
appeals.
In ruling on motions for relief from a final judgment of
forfeiture, the trial court is guided by N.C. Gen. Stat. § 15A-
544.8 (2003), which provides the exclusive avenue for relief:
(b) Reasons. _ The court may grant the
defendant or any surety named in the judgment
relief from the judgment, for the following
reasons, and none other:
(1) The person seeking relief was not given
notice . . . .
(2) Other extraordinary circumstances exist
that the court, in its discretion, determines
should entitle that person to relief.
(emphasis added). Should the court determine at the hearing that
statutory grounds for relief exist, it
“may grant the party any
relief from the judgment that the court considers appropriate,
including the refund of all or a part of any money paid to satisfy
the judgment.” N.C. Gen. Stat. § 15A-544.8(c)(4)(2003).
Initially, we note McQueen did not raise insufficient notice
before the trial court or on appeal; accordingly, our review is
limited to whether the trial court abused its discretion in failing
to find that “other extraordinary circumstances” existed that would
entitle McQueen to relief from final judgment. On appeal, McQueen
draws this Court's attention to the mandatory provisions of N.C.
Gen. Stat. § 15A-544.5 (2003), which involves a trial court's
review of a bond forfeiture and mandates the setting aside of such
forfeiture when certain, exclusively-enumerated events occur. In
relevant part, N.C. Gen. Stat. § 15A-544.5(b)(3) requires a bond
forfeiture to be set aside when “[t]he defendant has been
surrendered by a surety on the bail bond . . . .” Assuming
arguendo McQueen's surrender of the defendant in the instant case
met the requirements of N.C. Gen. Stat. § 15A-544.5(b)(3) and thetrial court erred in failing to set aside the bond forfeitures, we
are not of the opinion that such error is conclusive of our
analysis of the trial court's denial of relief from final judgment
of forfeiture under N.C. Gen. Stat. § 15A-544.8.
Accepting McQueen's argument would be tantamount to holding
that the trial court, as a matter of law, abuses its discretion by
failing to equate the statutory criteria for setting aside a
forfeiture listed in N.C. Gen. Stat. § 15A-544.5(b)(1)-(6) (2003)
with “extraordinary circumstances” for purposes of obtaining relief
from final judgment under N.C. Gen. Stat. § 15A-544.8(b)(2).
However, nothing in the statutes suggests the General Assembly
intended to give a surety an opportunity, under the mantle of N.C.
Gen. Stat. § 15A-544.8's “extraordinary circumstances,” to re-
capitulate to the trial court arguments concerning the alleged
fulfilment of one of the statutory events which would mandate the
setting aside of a forfeiture after those arguments were rejected
and the motion was denied under N.C. Gen. Stat. § 15A-544.5.
A final reason to distinguish between McQueen's failure to
observe the appropriate statutory method provided for raising these
arguments to the appellate division under N.C. Gen. Stat. § 15A-
544.8 and a proper appeal of such arguments under N.C. Gen. Stat.
§ 15A-544.5 is as follows: while the setting aside of a forfeiture
that has not become final imposes no burden on any party, the
court's grant of relief from a final judgment of forfeiture can be
burdensome on local school boards, which, as beneficiaries of the
proceeds from forfeited appearance bonds, may be required to pay a“refund of all or a part of any money paid to satisfy the judgment”
under N.C. Gen. Stat. § 15A-544.8(c)(4).
Thus, regardless of whether the trial court erred in denying
McQueen's motions to set aside the forfeitures, McQueen's failure
to appeal those orders divested him of the right to appellate
review of their merits. We will not resurrect the arguments of
that appeal or ignore the effect of failing to properly appeal
those orders by holding, as a matter of law, that the trial court
abuses its discretion when it abstains from equating an arguably
erroneous denial of a motion to set aside forfeiture with
“extraordinary circumstances” under N.C. Gen. Stat. § 15A-544.8.
Affirmed.
Judge LEVINSON concurs.
Judge WYNN dissents in a separate opinion.
WYNN, Judge dissenting.
This case presents the issue of whether a bondsman who has
surrendered a defendant to proper legal authorities is entitled to
have a final judgment of bond forfeiture set aside based upon
extraordinary circumstances under N.C. Gen. Stat. § 15A-544.8
(2003). As this Court's precedent indicates such a surrender
constitutes extraordinary circumstances, I respectfully dissent.
The efforts of a bondsman resulting in the detention of a
principal on the charge for which the bond was secured constitutes
extraordinary cause. See State v. Locklear, 42 N.C. App. 486, 488-
89, 256 S.E.2d 830, 832 (1979)(stating “[t]he efforts of the
bondsman, while not dramatic, did result in the principal's
detention on the charge for which the bond had secured theprincipal's appearance” and recognizing “the goal of the bonding
system is the production of the defendant, not increased revenues
for the county school fund . . . and in this case the surety's
efforts led directly to achieving that goal”); see also State v.
Coronel, 145 N.C. App. 237, 245, 550 S.E.2d 561, 567 (2001)
(stating “our appellate courts have held that extraordinary cause
exists where the professional surety actually recovered the
defendant after the ninety-day deadline, although the surety's
efforts were not dramatic”) (quotations omitted).
(See footnote 1)
In this case,
McQueen surrendered Defendant prior to entry of the final judgment
of forfeiture. If the surrender of a defendant after the final
judgment of forfeiture has been entered constituted extraordinary
cause, then surely the surrender of a defendant before the final
judgment of forfeiture has been entered constitutes extraordinary
cause.
Indeed, appellate cases focus upon the efforts of the surety
to secure the presence of the defendant in determining whether to
grant relief from a final judgment of bond forfeiture. As stated
in State v. Robinson, 145 N.C. App. 658, 661, 551 S.E.2d 460, 462
(2001):
“The goal of the bonding system is the
production of the defendant[.]” State v.
Locklear, 42 N.C. App. 486, 489, 256 S.E.2d
830, 832 (1979) (citation omitted). In
Locklear, our Court affirmed the trial court'sorder to remit the bond to the surety because
“[t]he efforts of the bondsman, while not
dramatic, did result in the principal's
detention on the charge for which the bond had
secured the principal's appearance.” Id. In
State v. Vikre, our Court affirmed the trial
court's denial of the surety's petition to
remit and held that “the efforts made by the
sureties . . . did not lead to [defendant's]
appearance in [court], the primary goal of the
bonds.” Vikre, 86 N.C. App. 196, 199, 356
S.E.2d 802, 804 (citations omitted), disc.
review denied, 320 N.C. 637, 360 S.E.2d 103
(1987). Therefore our Court found that “we
cannot say, as a matter of law, that the
sureties' evidence conclusively demonstrates
. . . justifying remission of the bonds[.]”
Id. See also State v. Pelley, 222 N.C. 684,
688, 24 S.E.2d 635, 638 (1943) (“the very
purpose of the bond was not to enrich the
treasury of [the] County, but to make the
sureties responsible for the appearance of the
defendant at the proper time”).
See also State v. Fonville, 72 N.C. App. 527, 325 S.E.2d 258
(1985)(extraordinary cause found where a private surety brought a
defendant to court after entry of the forfeiture judgment to pay
his fine). Moreover, the factors to be considered in determining
whether extraordinary circumstances exist favor the surety in this
case. These factors include:
[1.] the inconvenience and cost to the State
and the courts;
[2.] the diligence of sureties in staying
abreast of the defendant's whereabouts prior to
the date of appearance and in searching for the
defendant . . . ;
[3.] [in cases where the defendant has died],
the surety's diligence in obtaining information
of the defendant's death . . . ;
[4.] the risk assumed by the sureties;
[5.] the surety's status, be it private or
professional.
Coronel, 145 N.C. App. at 248, 550 S.E.2d at 569 (citations
omitted). In this case, the surety located and surrendered thedefendant prior to the entry of final judgment of forfeiture at no
expense to the State.
(See footnote 2)
In denying McQueen's motion, the trial court did not consider
McQueen's surrender of defendant or his efforts in procuring
defendant's surrender in determining whether extraordinary cause
was shown. Rather, the trial court denied McQueen's motion for
relief from final judgment of forfeiture because the erroneous
certificate of service denied the school board an opportunity to
object to his motion to set aside bond forfeiture in several cases.
This is not the focus of the extraordinary cause test and,
moreover, McQueen's actions did not prejudice the school board.
In this case, McQueen timely filed a written motion to set
aside the forfeiture with the sheriff's surrender acknowledgment
attached before the expiration of 150 days after receipt of the
bond forfeiture notice. On the standardized motion form, McQueen
indicated he mailed a copy of the motion to the school board
attorney on 15 October 2002; however, the motion was not postmarked
until 24 October 2002.
Under N.C. Gen. Stat. § 15A-544.5(d)(4), if the board of
education does not object by the tenth day after the motion is
served, the clerk shall enter an order setting aside the
forfeiture. If the motion is served via mail, the school board hasan additional three days in which to object to the motion. See
N.C. Gen. Stat. § 1A-1, Rule 6(e) (2003).
(See footnote 3)
The school board
contends that because the certificate of service indicates McQueen
served the motion via mail on 15 October 2002, the bond forfeiture
would have been automatically set aside on 28 October 2002 if the
school board did not timely object. However, McQueen did not mail
the motion to the school board until 24 October 2002, as evidenced
by the envelope's postmark. The school board received the motion
on 28 October 2002. Thus, the school board argued that McQueen had
effectively denied the school board time to object to the motion in
an attempt by the surety to achieve the automatic set aside of the
forfeiture that would occur.
However, the school board could have moved for more time to
respond to McQueen's motion. N.C. Gen. Stat. § 1A-1, Rule 5(b)
states that:
[W]ith respect to such other pleadings and
papers, service upon the attorney or upon a
party may also be made by delivering a copy to
the party or by mailing it to the party at the
party's last known address or, if no address
is known, by filing it with the clerk of
court. . . . Service by mail shall be
complete upon deposit of the pleading or paper
enclosed in a post-paid, properly addressed
wrapper in a post office or official
depository under the exclusive care and
custody of the United States Postal Service.
Moreover, N.C. Gen. Stat. § 1A-1, Rule 5(d) states:
With respect to all pleadings and other papers
as to which service and return has not beenmade in the manner provided in Rule 4, proof
of service shall be made by filing with the
court a certificate either by the attorney or
the party that the paper was served in the
manner prescribed by this rule, or a
certificate of acceptance of service by the
attorney or the party to be served. Such
certificate shall show the date and method of
service or the date of acceptance of service.
The certificate of service gives rise to a rebuttable
presumption of proper service upon the other party. See N. State
Fin. Co., Inc. v. Leonard, 263 N.C. 167, 170, 139 S.E.2d 356, 358
(1964)(stating “When the return shows legal service by an
authorized officer, nothing else appearing, the law presumes
service. The service is deemed established unless, upon motion in
the cause, the legal presumption is rebutted by evidence upon which
a finding of nonservice is properly based. Upon hearing such
motion, the burden of proof is upon the party who seeks to set
aside the officer's return or the judgment based thereon to
establish nonservice as a fact; and, notwithstanding positive
evidence of nonservice, the officer's return is evidence upon which
the court may base a finding that service was made as shown by the
return.”) (citations omitted); see also Hocke v. Hanyane, 118 N.C.
App. 630, 633, 456 S.E.2d 856, 860 (1995)(stating “the certificate
of service itself indicates sufficient compliance with Rule 4 to
raise a rebuttable presumption of valid service”) (quotation
omitted). Thus, the school board could have rebutted the
presumption that it was served on 15 October 2002 by providing the
trial court with the postmarked envelope indicating the motion was
not mailed until 24 October 2002. Upon showing the motion was not
mailed until 24 October 2002, the school board would have hadthirteen days from 24 October to object to the surety's motion to
set aside the bond forfeiture. See N.C. Gen. Stat. § 15A-
544.5(d)(4)(stating “[i]f neither the district attorney nor the
board of education has filed a written objection to the motion by
the tenth day after the motion is served, the clerk shall enter an
order setting aside the forfeiture”)(emphasis added).
Second, although the school board argues the surety is
effectively denying it an opportunity to object to the surety's
motions to set aside bond forfeitures, the school board did not
have a basis for objecting in this case. Indeed, N.C. Gen. Stat.
§ 15A-544.5 requires a bond forfeiture be set aside upon the
showing of one of six reasons. In this case, the surety, by
surrendering the defendant to the county sheriff within the
relevant time period, met one of the six reasons. Thus, the school
board did not have a basis for objecting to the surety's motion and
was not prejudiced by delay in the mailing of the motion.
Moreover, the school board is not without a remedy against a
surety whose certification of service date repeatedly fails to
reflect the accurate date upon which the surety mailed or served
the school board. Indeed, a surety's failure to follow the
procedures set forth in N.C. Gen. Stat. § 15A-544.5 could be
addressed by filing a complaint with the Commissioner of Insurance.
Under N.C. Gen. Stat. § 58-71-80(a) (2003):
The Commissioner may deny, suspend, revoke, or
refuse to renew any license under this Article
. . . [w]hen in the judgment of the
Commissioner, the licensee has in the conduct
of the licensee's affairs under the license,
demonstrated incompetency, financial
irresponsibility, or untrustworthiness; or
that the licensee is no longer in good faithcarrying on the bail bond business; or that
the licensee is guilty of rebating, or
offering to rebate, or offering to divide the
premiums received for the bond.
As N.C. Gen. Stat. § 58-71-35 specifically references Article 26 of
Chapter 15A (Bail) as the provision governing bail forfeiture and
remittance, the surety's failure to adhere to those procedures in
good faith could form the basis for the denial, suspension,
revocation or refusal to renew a surety's license by the
Commissioner of Insurance.
Finally, notwithstanding the majority's concern that relief
from a final judgment of forfeiture may place a burden upon school
boards, precedent indicates the impact upon school boards is not to
be considered in determining whether extraordinary circumstances
have been demonstrated and cannot be a basis for denying a motion
for relief from a judgment of forfeiture. As stated in State v.
Lanier, “[t]he school board, as the trial judge observed, may
indeed need the funds more than the surety. However, this is not
the test. . . . The required test is whether “extraordinary cause”
is shown. State v. Lanier, 93 N.C. App. 779, 781, 379 S.E.2d 109,
110-11 (1989).
In sum, the trial court's decision is reviewed for an abuse of
discretion. N.C. Gen. Stat. § 15A-544.8(b)(2)(2001); see also
State v. McCarn, 151 N.C. App. 742, 745, 566 S.E.2d 751, 753
(2002). “An abuse of discretion results when an act is not done
according to reason or judgment, but depending upon the will alone
and done without reason.” McCarn, 151 N.C. App. at 745, 566 S.E.2d
at 753 (quotations omitted). In my opinion, the trial court's
decision was without reason because: (1) precedent indicatesextraordinary cause was shown; (2) the board of education did not
have any basis for objecting to McQueen's motion to set aside the
bond forfeiture; (3) the school board could have moved for
additional time in which to respond, as the certificate of service
only raises a presumption of service, and in this case the school
board could rebut the presumption by demonstrating service occurred
on a different date; (4) there are other means by which the school
board can address the surety's noncompliance with statute; and (5)
the burden upon school boards is not a part of the extraordinary
cause test.
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