2. Bail and Pretrial Release--bond forfeiture--civil action
The trial court erred as a matter of law by concluding that the Board of Education's motion
for a new trial or relief from order granting relief from a bond forfeiture under N.C.G.S. § 1A-1,
Rules 59(a) and 60(b) must be denied without consideration of its merits on the ground that the
Board improperly attempted to proceed under the North Carolina Rules of Civil Procedure, because:
(1) N.C.G.S. § 15-544.7(a)9 provides that the clerk of superior court shall docket a final judgment
of forfeiture as a civil judgment against defendant and against each surety named in the judgment;
(2) the Court of Appeals has previously utilized our Rules of Civil Procedure in reviewing a trial
court's denial of remission of a bond forfeiture; (3) N.C.G.S. § 15A-544.8 provides that an appeal
from an order on a motion for relief from a final judgment of forfeiture is the same as provided for
appeals in civil actions; and (4) due to the nature and function of a bond, while a bond forfeiture
proceeding is ancillary to the underlying criminal proceeding, it is a civil matter.
3. Appeal and Error_-appellate rules--citing unpublished opinions
The surety's citation to unpublished authority in a bond forfeiture case is expressly
disfavored by our appellate rules, and citation to unpublished opinions should be done solely in
those instances where the persuasive value of a case is manifestly superior to any published opinion.
Appeal by the Moore County Board of Education from order
entered 19 March 2003 by Judge Michael E. Helms in Moore County
Superior Court. Heard in the Court of Appeals 20 October 2004.
Schwartz & Shaw, P.L.L.C., by Richard A. Schwartz and Craig W.
Noyes, for the State.
Charles M. Lineberry, Jr., for Lexington National Insurance
Corporation.
CALABRIA, Judge.
The Moore County Board of Education (the “Board”) appeals the
trial court's denial of its motion to grant a new trial or relief
from order entered 3 March 2003 granting Lexington National
Insurance Corporation's (the “surety”) motion for relief from final
judgment of bond forfeiture. We reverse.
In September 2000, the surety posted bond for Don Pelletier
(the “defendant”) in the amount of $150,000.00 for charges pending
in Moore County. The defendant failed to appear as required before
the court, and the bond was ordered forfeited on 28 February 2001
with a final judgment date of 3 August 2001. After final judgment
of bond forfeiture was entered and the bond was paid by the surety,
the surety contacted law enforcement in Nevada on or about 12
November 2001 and directed them to defendant's location. Defendant
was arrested, and the surety helped coordinate defendant's return
to Moore County.
On 29 January 2003, the surety moved for relief from final
judgment of forfeiture. The matter was set for hearing on 3 March
2003 in Moore County Superior Court. Judge Michael E. Helms called
the bond forfeiture calendar at 10:30 a.m. after the criminal
calendar had been called. The courtroom clerk informed Judge Helms
that it was customary in Moore County to allow the Board's attorney
to arrive at 11:00 a.m. for the forfeiture cases since the criminal
calendar call usually lasted until 11:00 a.m. Notwithstanding this
custom, Judge Helms elected to proceed with the surety's motion in
the absence of the Board's attorney and granted relief from thebond forfeiture at the close of the hearing. The Board's attorney
arrived at approximately 10:40 a.m. and asked to approach the bench
approximately twenty minutes after learning the bond forfeiture
cases had been decided and was advised by the trial court that she
had “won one and . . . lost one.” A bench conference ensued, which
concluded when Judge Helms informed the Board's attorney, “I don't
intend to debate it with you. You may step back.” Judgment
granting relief from forfeiture was entered 3 March 2003.
On 14 March 2003, the Board moved for a new trial or relief
from order pursuant to N.C. Gen. Stat. § 1A-1, Rules 59(a) and
60(b) (2003). The Board's motion noted, in pertinent part, the
following: (1) “[t]he bond forfeiture calendar is always called by
the school board attorney[,]” (2) “the custom and procedure of the
court [was] to hear bond forfeiture matters at 11:00 o'clock,” (3)
the judges and district attorney requested that the Board's
attorney not arrive at 10:00 a.m., (4) the procedure was that “the
Superior Court calendar and preliminary matters [were] handled
prior to the bond forfeiture matters[,]” and (5) the Board's
attorney “arrived at court the same time that she has been arriving
for over three years, by agreement with the court and its
officers.” Nonetheless, in denying the Board's motion, Judge Helms
found “that the orderly and expeditious disposition of cases in the
Superior Court . . . is adversely affected when the Court allows
the attorneys to set their own schedules as to when they will be in
Court without prior communication with or permission of theCourt.”
(See footnote 1)
In addition, the trial court found “that the school board
is attempting to obtain relief from the Court's order pursuant to
Rules 59(a) and 60(b) of the N.C. Rules of Civil Procedure.” The
trial court found the proceeding was “obviously . . . a criminal
matter and [was] controlled by the N.C. Rules of Criminal
Procedure” based on N.C. Gen. Stat. § 15A-544.8(a), which provides
that “[t]here is no relief from a final judgment of forfeiture
except as provided in this section.” The trial court therefore
found that the Board “brought its motion relying on a statute that
does not allow the Court to consider their prayer for relief” and
concluded that “the Court must deny the motion without a hearing”
because “the school board . . . attempted to proceed under the
rules of Civil Procedure instead of the rules of Criminal
Procedure,” which it further concluded was “the exclusive remedy
for this situation.” The Board appeals, asserting the trial court
erred as a matter of law by refusing to consider the merits of its
motion on the ground that the Board had improperly utilized the
North Carolina Rules of Civil Procedure.
[1] As a preliminary matter, the surety argues the trial court
lacked jurisdiction to entertain the Board's Rule 59(a) motion
because it “failed to file and serve its motion with the time
period prescribed . . . .” “A motion for a new trial shall be
served not later than 10 days after entry of the judgment.” N.C.
Gen. Stat. § 1A-1, Rule 59(b) (2003). Thus, the relevant actionthe movant must make within 10 days of entry of judgment under Rule
59(a) is service, not filing. Accord Muse v. Charter Hospital of
Winston-Salem, 117 N.C. App. 468, 480, 452 S.E.2d 589, 598 (1995).
In the instant case, judgment was entered on 3 March 2003. While
the Board's motion was filed on 14 March 2003, the certificate of
service clearly indicates the Board served the motion for a new
trial on 13 March 2003. Accordingly, the Board's motion was
timely. We additionally note, with disapproval, that the surety
has asserted in its brief that the Board's “motion for new trial
was not dated until 14 March 2003, more than ten (10) days after
entry of the judgment, and had attached a certificate of service
thereto reflecting mailing to counsel for [the surety] on the same
date, and was filed with the clerk of court on the same day.” It
is incumbent on all parties to an appeal to carefully and
accurately set forth in their briefs and arguments that which
appears in the settled record on appeal.
[2] Turning to the nature of a bond forfeiture proceeding, the
trial court accurately noted N.C. Gen. Stat. § 15A-544.8(a) (2003)
provides “[t]here is no relief from a final judgment of forfeiture
except as provided in this section.” However, this does not
necessarily mean, as the trial court concluded, that a bond
forfeiture proceeding is governed by the North Carolina Rules of
Criminal Procedure. First, N.C. Gen. Stat. § 15A-544.7(a) (2003),
entitled “Docketing and enforcement of final judgment of
forfeiture[,]” provides that the clerk of superior court “shall
docket [a final judgment of forfeiture] as a civil judgment against
the defendant and against each surety named in the judgment.” Second, this Court has previously utilized our Rules of Civil
Procedure in reviewing a trial court's denial of remission of a
bond forfeiture. See, e.g., State v. Coronel, 145 N.C. App. 237,
550 S.E.2d 561 (2001) (applying Rules 52(a) and 58 of the North
Carolina Rules of Civil Procedure). Third, N.C. Gen. Stat. § 15A-
544.8 provides that an appeal from an order on a motion for relief
from a final judgment of forfeiture “is the same as provided for
appeals in civil actions.” It would be anomalous to categorize the
underlying action as a criminal action yet treat its appeal as an
appeal of a civil action. Finally, due to the nature and function
of a bond, it stands to reason that a bond forfeiture proceeding,
while ancillary to the underlying criminal proceeding, is a civil
matter. See State v. Mathis, 349 N.C. 503, 509 S.E.2d 155 (1998)
(describing the relationship between a surety and the person who
has been arrested as contractual in nature).
For these reasons, we hold the Board properly proceeded by
moving for a new trial or relief from order granting relief from
forfeiture under Rules 59(a) and 60(b), and the trial court erred
as matter of law in concluding that the Board's motion must be
denied without consideration of its merits on the grounds that the
Board improperly attempted to proceed under the North Carolina
Rules of Civil Procedure. We reverse and remand for further
proceedings not inconsistent with this opinion.
[3] As a final matter, we deem it appropriate to address the
surety's citation of an unpublished opinion in its brief to this
Court. The surety cites State v. Nixon, 150 N.C. App. 440, 563
S.E.2d 640 (COA01-1238) (2002) for the propositions that (1) relieffrom final judgment of forfeiture may be granted within the
discretion of the trial court upon (2) finding diligent efforts by
the surety. Citation to unpublished authority is expressly
disfavored by our appellate rules but permitted if a party, in
pertinent part, “believes . . . there is no published opinion that
would serve as well” as the unpublished opinion. N.C. R. App.
30(e)(3) (2004). Neither of the principles propounded by the
surety justify citation to the Nixon opinion in this matter, and we
reiterate that citation to unpublished opinions is intended solely
in those instances where the persuasive value of a case is
manifestly superior to any published opinion.
Reversed and remanded.
Judges STEELMAN and GEER concur.
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