Appeal by surety from order entered 31 December 2003 by Judge
Lawrence J. Fine in District Court, Forsyth County. Heard in the
Court of Appeals 11 January 2005.
Andresen & Vann, by Kenneth P. Andresen and Christopher M.
Vann, for surety-appellant.
Steven A. McCloskey and Drew H. Davis for Winston-
Salem/Forsyth County Schools, judgment creditor-appellee.
Capital Bonding Corporation (Capital Bonding) appeals the
trial court's order denying its motion for relief from final
judgment of forfeiture (motion for relief).
Manuel Gonzalez-Fernandez, a/k/a Angel Luis Sanchez-Pizarro
(defendant), was charged with multiple drug offenses on 23 January
2003. Defendant was released on 28 March 2003 on a $500,000 bond
for which Capital Bonding acted as surety. Defendant failed to
appear for his scheduled court date in Forsyth County District
Court on 10 April 2003. The Forsyth County Clerk of Court filed a
bond forfeiture notice on 22 April 2003. The forfeiture became a
final judgment of forfeiture on 19 September 2003.
Capital Bonding filed a motion for relief on 22 September
2003, along with an affidavit of Capital Bonding employee Timothy
Fitzpatrick (Fitzpatrick). Fitzpatrick stated in his affidavit
that Capital Bonding learned defendant had fled the jurisdiction
"the minute" defendant was released from Forsyth County Jail on the
A hearing on Capital Bonding's motion for relief was held on
16 October and 4 November 2003. Walter Smith (Smith), testified at
the 16 October 2003 hearing. Smith stated that he was an employee
of Southeast Bail Bonds, the managing body for Capital Bonding's
North Carolina bail agents. Smith testified that Fitzpatrick
notified Smith of the bond forfeiture on 22 April 2003, the day the
clerk of court filed the bond forfeiture notice. Smith did not take any further action on the matter until 6
May 2003, when he spoke to Fitzpatrick for a second time.
Fitzpatrick told Smith that defendant may have been in the custody
of the United States Drug Enforcement Administration in San Juan,
Puerto Rico. Smith spoke to Fitzpatrick again on 8 May 2003, when
Fitzpatrick informed Smith that defendant may have actually been in
United States Border Patrol custody in Champlain, New York. Smith
then contacted the United States Border Patrol in Champlain. Smith
discovered that the United States Marshal in Buffalo, New York took
defendant into custody on 11 April 2003 for giving false
information. Smith learned from the United States Attorney's
Office in Albany, New York that defendant was scheduled to be
sentenced to fifty-seven months in federal prison on 6 August 2003.
Smith then obtained documentation on 9 May 2003 indicating that
defendant attempted to enter Canada, was refused entry, and upon
reentry to the United States, was detained by United States Border
Patrol in Champlain.
Smith took no further action for almost three months. Smith
spoke to the United States Attorney in Albany on 6 August 2003 and
learned that defendant had been convicted and sentenced to six
months in federal prison, three years of supervised probation, and
a one hundred dollar fine.
Smith again refrained from acting on the case until
approximately 1 October 2003, two weeks prior to the hearing on
Capital Bonding's motion for relief. Smith contacted the United
States Marshal and asked to have a North Carolina order for arrest
served in New York. A supervisor told Smith that an order for
arrest could be served pending extradition. Smith unsuccessfully
attempted to obtain a copy of an order for arrest from ForsythCounty officials. Smith then learned that upon defendant's release
from federal prison in fourteen days, the Immigration and
Naturalization Service (INS) would be taking defendant into
custody. Smith contacted the Forsyth County Clerk of Court and
requested that a copy of the order for arrest be sent to the INS.
Smith was again informed that this was possible pending
extradition. Smith then had defendant's name placed in the
National Crime Information Center database on 9 October 2003 to
hold defendant for extradition. Capital Bonding never produced
defendant in Forsyth County District Court.
In an order announced in open court on 4 November 2003 and
entered 31 December 2003, the trial court found that Capital
Bonding was not entitled to relief from the final judgment of
forfeiture. The trial court made the following pertinent findings
16. [Capital Bonding] had no apparent
understanding of how to go about
obtaining a Governor's Warrant, or the
appropriate steps to be taken to secure
[defendant's] appearance pursuant to an
17. There was a lack of effort by [Capital
Bonding] between the time [Capital
Bonding] learned in May, 2003 that
[defendant] was in federal custody, and
learning of [defendant's] actual sentence
in October, 2003.
18. The efforts by [Capital Bonding] and its
agents do not rise to the level of
extraordinary measures so as to allow the
[trial court] to set aside the forfeiture
of the bond.
19. There was no evidence that defendant
. . . is being held for extradition or
that defendant is still in federal
20. Defendant . . . is not within this
State's jurisdiction to answer the
charges from which he fled.
21. Defendant's misdeeds, which have caused
him to be incarcerated in another
jurisdiction, do not in and of themselves
exonerate [Capital Bonding] from its
obligations under the bond.
The trial court then made the following conclusion of law:
[Capital Bonding] has not demonstrated
extraordinary circumstances or efforts
sufficient to set aside Defendant's bond
forfeiture pursuant to N.C. Gen. Stat. § 15A-
Bail bond forfeiture in North Carolina is governed by N.C.
Gen. Stat. §§ 15A-544.1_544.8 (2003). When a defendant is released
on a bail bond and fails to appear for a required court date, the
trial "court shall enter a forfeiture for the amount of that bail
bond in favor of the State against the defendant and against each
surety on the bail bond." N.C. Gen. Stat. § 15A-544.3(a). A
forfeiture becomes a final judgment of forfeiture on the 150th day
after notice of forfeiture is given, unless a motion to set aside
the forfeiture is either entered on or before or is pending on that
date. N.C. Gen. Stat. § 15A-544.6. Relief from final judgment of
forfeiture is governed by N.C. Gen. Stat. § 15A-544.8, which
(a) Relief Exclusive. _ There is no relief
from a final judgment of forfeiture
except as provided in this section.
(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 as provided in
[N.C. Gen. Stat. §] 15A-544.4.
(2) Other extraordinary
circumstances exist that the
court, in its discretion,
determines should entitle that
person to relief.
In this case, Capital Bonding admits that it was properly
given notice of the bond forfeiture under N.C. Gen. Stat. § 15A-
544.4. Therefore, Capital Bonding may only obtain relief from the
final judgment of forfeiture if extraordinary circumstances exist.
We review a trial court's decision whether to grant a motion
for relief from final judgment of forfeiture for an abuse of
discretion. N.C. Gen. Stat. § 15A-544.8(b); see also State v.
, 145 N.C. App. 237, 243, 550 S.E.2d 561, 566 (2001), disc.
, 355 N.C. 217, 560 S.E.2d 144 (2002).
(See footnote 1)
An abuse of
discretion occurs when the trial court's act is "'"done without
reason."'" State v. McCarn
, 151 N.C. App. 742, 745, 566 S.E.2d 751,
753 (2002) (citations omitted).
"Extraordinary circumstances" in the context of bond
forfeiture has been defined as "'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 would foresee.'" State v. Vikre
, 86 N.C.
App. 196, 198, 356 S.E.2d 802, 804, disc. review denied
, 320 N.C.
637, 360 S.E.2d 103 (1987) (alteration in original) (quoting
Webster's Third New International Dictionary
determination by our Court of whether circumstances are
"extraordinary" is a "heavily fact-based inquiry and therefore,
should be reviewed on a case by case basis." Coronel
, 145 N.C.
App. at 244, 550 S.E.2d at 566. We begin by noting that North Carolina case law has long been
clear that the foremost goal of the bond system is the production
of the defendant in court. See, e.g., State v. Robinson
, 145 N.C.
App. 658, 661, 551 S.E.2d 460, 462 (2001) (stating that securing
the appearance of a defendant "is the primary purpose of the bond
, 145 N.C. App. at 247, 550 S.E.2d at 568 ("the
court system's paramount concern is ensuring the return of the
criminal defendant for prosecution"); Vikre
, 86 N.C. App. at 199,
356 S.E.2d at 804 ("[t]he purpose of a bail bond is to secure the
appearance of the principal in court as required"); State v.
, 42 N.C. App. 486, 489, 256 S.E.2d 830, 832 (1979) ("[t]he
goal of the bonding system is the production of the defendant");
State v. Pelley
, 222 N.C. 684, 688, 24 S.E.2d 635, 638 (1943) ("The
very purpose of the bond [is] . . . to make the sureties
responsible for the appearance of the defendant at the proper
To achieve this goal, bondsmen are vested with broad powers to
bring their principals to court. In a landmark decision on the
bond system, the United States Supreme Court stated:
When bail is given, the principal is regarded
as delivered to the custody of his sureties.
Their dominion is a continuance of the
original imprisonment. Whenever they choose
to do so, they may seize him and deliver him
up in their discharge; and if that cannot be
done at once, they may imprison him until it
can be done. They may exercise their rights
in person or by agent. They may pursue him
into another State; may arrest him on the
Sabbath; and, if necessary, may break and
enter his house for that purpose. . . . It is
likened to the rearrest by the sheriff of an
escaping prisoner. In
6 Modern it is said:
"The bail have their principal on a string,
and may pull the string whenever they please,
and render him in their discharge."
Taylor v. Taintor
, 83 U.S. (16 Wall.) 366, 371-72, 21 L. Ed. 287,290 (1873) (citations omitted). Our Supreme Court, in setting
forth its modern case law, has echoed the tenets espoused in
Today's commercial bondsmen have retained the
same broad common law powers sureties have
always enjoyed regarding the custody, control
and recapture of the principal.
. . . .
The comprehensive powers of the bondsman
recognized in Taintor
are based on the
underlying source of the bondsman's authority
to recapture the principal which derives from
the contractual relationship between the
surety and the principal. Essentially, the
bond agreement provides that the surety post
the bail, and in return, the principal agrees
that the surety can retake him at any time,
even before forfeiture of the bond.
State v. Mathis
, 349 N.C. 503, 509-10, 509 S.E.2d 155, 159 (1998).
With these principles in mind, we now consider Capital
Bonding's assignments of error.
 Capital Bonding first argues it should be relieved from
liability under the bond because defendant had been in continuous
federal custody. Capital Bonding argues that once defendant was in
federal custody, Capital Bonding had no means by which to produce
defendant in court, and therefore extraordinary circumstances exist
justifying relief from forfeiture.
A defendant's imprisonment in another jurisdiction that
results in that defendant's failure to appear in a North Carolina
court does not relieve a surety from liability on the bond.
, 222 N.C. at 689, 24 S.E.2d at 638; see also Vikre
, 86 N.C.
App. at 199-200, 356 S.E.2d at 804-05. In Pelley
, the defendant
had been taken into federal custody three days before he was
scheduled to appear in court in North Carolina.
222 N.C. at 685-86, 24 S.E.2d at 636. As a result, the defendant failed to appear
for his North Carolina court date and forfeited on his bond. Id
at 686, 24 S.E.2d at 636. Our Supreme Court held that the
defendant's detention in federal custody did not relieve the surety
of liability under the bond. Id
. at 692-93, 24 S.E.2d at 640. The
Court found that, due to the defendant's own wrongdoing, neither
the defendant nor the surety should be entitled to relief from the
It matters not whether [the defendant] left
the jurisdiction of this State with or without
the permission of his sureties, he was
entrusted to their custody. His conduct while
in their custody set in motion the machinery
of the law in other jurisdictions which made
his appearance in [court in North Carolina] on
27 July, 1942, impossible. Had [the
defendant] not committed the offenses for
which he was tried and convicted in Indiana,
and for which he is now imprisoned, he
doubtless could have answered to the call of
the Superior Court . . . at the proper time.
He alone is responsible for his inability to
appear in the North Carolina court at the time
required in his bail bond. He cannot avail
himself of his own wrong and thereby escape
the penalty of his bond; and, as stated in
Taylor v. Taintor
, . . . "What will not avail
him, cannot avail his sureties."
. at 692-93, 24 S.E.2d at 640 (quoting Taintor
, 83 U.S. (16
Wall.) at 374, 21 L. Ed. at 291). See also Vikre
, 86 N.C. App. at
200-01, 356 S.E.2d at 804-05 (holding that the defendant's
incarceration in Mexico resulting in his failure to appear in court
in North Carolina did not relieve the surety of liability under the
bond, since the defendant's failure to appear was the result "of
his own criminal acts rendering him subject to imprisonment
pursuant to the criminal laws of another jurisdiction").
We hold that, under Pelley
, defendant's federal incarceration
is not evidence of extraordinary cause meriting Capital Bonding
relief from liability under the bond. We first note thatdefendant, unlike the defendant in Pelley
, was not in federal
custody on the date that he was scheduled to appear in Forsyth
County District Court. Rather, defendant was not in federal
custody until the day after
his failure to appear. Therefore,
Capital Bonding was remiss in its custody of defendant even prior
to defendant's detention in federal custody. Fitzpatrick's
affidavit states that Capital Bonding was aware that defendant had
left Forsyth County as soon as defendant was released on bond: "In
monitoring . . . defendant we learned that the minute that
. . . defendant was bonded out of the Forsyth County Jail
[defendant] fled the [country][.]" With this information, Capital
Bonding had advance notice of its need to exercise its powers and
apprehend defendant. By choosing not to act, Capital Bonding
consequently risked forfeiture on the bond. Furthermore, like in
, defendant's federal incarceration was the result of
defendant's own misdeeds, and "'[w]hat will not avail [defendant],
cannot avail his suret[y].'" Pelley
, 222 N.C. at 693, 24 S.E.2d at
640 (quoting Taintor
, 83 U.S. (16 Wall.) at 374, 21 L. Ed. at 291).
Defendant's incarceration in federal prison is not an extraordinary
circumstance justifying Capital Bonding relief from the bond
 We also find that Capital Bonding's efforts in attempting
to bring defendant to North Carolina after defendant's failure to
appear do not rise to the level of extraordinary circumstances. A
surety's efforts to bring a defendant to North Carolina to appear
in court are not extraordinary if it was foreseeable that the
surety would have to expend those efforts to produce the defendant
in court. Vikre
, 86 N.C. App. at 199, 356 S.E.2d at 804. In
, the sureties sought to avoid liability for a bond when thedefendant's incarceration in Mexico resulted in his failure to
appear for his North Carolina court date. Id
. at 197, 356 S.E.2d
at 803. The sureties argued that they had demonstrated
extraordinary cause, since they had sponsored trips to Texas and
Mexico looking for the defendant, had "incurr[ed] substantial
expenses," and had offered to pay for the defendant's extradition
from Mexico to the United States. Id
. at 197, 356 S.E.2d at 803.
Our Court disagreed with the sureties and held that these efforts
did not rise to the level of extraordinary cause. Id
. at 199, 356
S.E.2d at 804. We found that the defendant's out-of-state
residency and employment as a pilot made it "entirely foreseeable
. . . that the sureties would be required to expend considerable
efforts and money to locate [the defendant] in the event he failed
to appear." Id
. at 199, 356 S.E.2d at 804. We also found that
extraordinary cause did not exist, despite the sureties' efforts,
since the efforts did not ultimately lead to the defendant's
appearance in court, "the primary goal of the bonds." Id
. at 199,
356 S.E.2d at 804.
, Capital Bonding's efforts to return defendant to
North Carolina are not evidence of extraordinary cause. The
Forsyth County District Court's condition of release and release
order states that defendant had only resided in the Forsyth County
community for three weeks and had previously resided in New York.
In addition, defendant's immigration status and previous
deportation should have put Capital Bonding on notice that
defendant had ties outside of the country. As in Vikre
, it was
entirely foreseeable that Capital Bonding could potentially incur
much expense and effort in ensuring that defendant would appear in
court. Moreover, Capital Bonding did not expend any efforts in anattempt to bring defendant to court until well after defendant's
failure to appear, and the majority of these efforts did not occur
until after final judgment of forfeiture on the bond. Finally,
like in Vikre
, Capital Bonding's efforts did not result in
defendant's appearance in court in North Carolina. Capital
Bonding's efforts do not rise to the level of "extraordinary
 Similarly, Capital Bonding's overall lack of diligence in
its efforts to bring defendant before the Forsyth County District
Court precludes us from finding that extraordinary circumstances
exist. To that end, we find Coronel
instructive. In Coronel
sureties appealed an order denying their motion to remit judgment
of forfeiture. Coronel
, 145 N.C. App
. at 238, 550 S.E.2d at 563.
The defendants had failed to appear in court after they had fled to
Mexico and had died there in an automobile accident eight months
after their failure to appear. Id
. at 239-40, 550 S.E.2d at 563-
64. Our Court found that extraordinary cause did not exist to
merit remission of the forfeiture, since the "sureties' pursuit was
simply not diligent":
The key to this conclusion is a complete lack
of evidence demonstrating that the sureties
were concerned with defendants' 14 December
appearance [the date of the failure to
appear]. They did not attend court on that
date and acknowledged that they had no method
of knowing whether defendants attended court.
Moreover, they offered no explanation as to
why defendants were not in attendance.
Furthermore, sureties subsequently
located defendants in Mexico, apparently on
trips that did not commence until July 1999.
It appears that sureties could have detected
defendants' whereabouts much earlier . . . .
. at 249, 550 S.E.2d at 569.
As in Coronel
, Capital Bonding has failed to explain whydefendant did not appear in court on 10 April 2003, and instead
only offers an explanation for defendant's whereabouts after
date. Additionally, Capital Bonding made little effort to bring
defendant to court until after final judgment of forfeiture was
entered, almost six months after defendant failed to appear in
court. Capital Bonding's lack of diligence obviates a finding of
extraordinary circumstances in this case.
Since defendant's presence in federal custody, Capital
Bonding's efforts to obtain defendant, and its lack of diligence do
not justify a finding of extraordinary circumstances, we cannot
find that the trial court's order denying Capital Bonding's motion
for relief was an abuse of discretion.
 Capital Bonding argues that once defendant was in federal
custody, it could have avoided liability under the bond by
obtaining a certified copy of the order for arrest and serving it
on defendant in the New York federal facility. Capital Bonding
avers that its request for such an order for arrest was denied by
Forsyth County officials. Capital Bonding argues that these are
extraordinary circumstances meriting relief from liability under
Capital Bonding's argument is without merit. Under N.C. Gen.
Stat. § 15A-544.5(b)(4), a surety may obtain relief from a bond
a final judgment of forfeiture, when the defendant
has been served with an order for arrest. In this case, Capital
Bonding did not attempt to obtain an order for arrest until 1
October 2003, clearly after the final judgment of forfeiture was
entered on 19 September 2003. Capital Bonding's argument must
Furthermore, even if appellant's attempts to obtain an orderfor arrest had been timely, the Forsyth County Clerk of Court
properly denied Capital Bonding's request for an order for arrest.
N.C. Gen. Stat. § 15A-301(b) (2003) provides that "[w]arrants for
arrest and orders for arrest must be directed to a particular
officer, a class of officers, or a combination thereof, having
authority and territorial jurisdiction to execute the process."
For the purposes of this statute, "officer" is defined as "law-
enforcement officer." N.C. Gen. Stat. § 15A-101(6) (2003). The
record reveals that Capital Bonding's attorney, Lawrence Grayson
(Grayson), made the request for an order for arrest. The Forsyth
County Clerk of Court therefore complied with the statutory mandate
in denying Capital Bonding's request, since Grayson was not a law
 We next consider Capital Bonding's petition for writ of
certiorari to include additional material in the record on appeal.
Specifically, Capital Bonding seeks to include the following
documents in the record: a 28 October 2003 indictment from the
Middle District of North Carolina, indicting defendant on the
federal counterparts to the state drug offenses defendant was
originally charged with on 23 January 2003; the Forsyth County
District Attorney's dismissal of the state charges against
defendant, dated 6 November 2003; and a recall of defendant's order
for arrest dated 6 November 2003. Capital Bonding had originally
included these materials in its proposed record on appeal, but the
trial court sustained Winston-Salem/Forsyth County Schools'
objection to these materials, in accordance with the Rules ofAppellate Procedure in effect at the time.
(See footnote 2)
We recognize that "a challenge to the trial court's settlement
[of a record] may be preserved by an application for certiorari
with the perfection of the appeal upon what
record there is." Craver v. Craver
, 298 N.C. 231, 237, n. 6, 258
S.E.2d 357, 361, n. 6 (1979). However, the documents that Capital
Bonding seeks to include in the record were never presented to the
trial court until after it entered its order. We cannot conduct an
abuse of discretion review of a trial court's order based on
materials that were never made available to the trial court. We
also recognize that Capital Bonding had the opportunity to bring
these materials to the trial court's attention while the case was
still within the trial court's jurisdiction. The indictment was
filed 28 October 2003, prior to the trial court's announcement of
its order denying Capital Bonding's motion for relief on 4 November
2003. The dismissal and recall of order for arrest are dated 6
November 2003, just two days after the trial court's announcement
of its order and well before both this order was entered on 31
December 2003 and Capital Bonding's notice of appeal was given on
2 January 2004. Capital Bonding did not make a motion pursuant to
either North Carolina Rule of Civil Procedure 59 or 60 to bring
this material to the trial court's attention, but rather sought to
bring this material to light for the first time while this case was
already pending on appeal. See
N.C. Gen. Stat. § 1A-1, Rules 59
and 60 (2003). We find that this is further evidence of CapitalBonding's lack of diligence and deny Capital Bonding's petition for
writ of certiorari.
 Finally, we note that in its petition for writ of
certiorari, Capital Bonding asserts that this Court can take
judicial notice of the indictment, dismissal of charges, and recall
of order for arrest. However, we have held that this "Court may
not take [judicial] notice of matters excluded
from the record [on
appeal], since the order settling the record on appeal is final and
cannot be reviewed on appeal except on motion for certiorari."
Coiner v. Cales
, 135 N.C. App. 343, 346, 520 S.E.2d 61, 63 (1999)
(citing State v. Johnson
, 298 N.C. 355, 372, 259 S.E.2d 752, 763
(1979)). Since this material was excluded from the record and we
have denied Capital Bonding's petition for writ of certiorari to
include this material in the record, we may not take judicial
notice of this material.
Capital Bonding has failed to present any argument in support
of his remaining assignments of error. They are therefore deemed
abandoned. N.C.R. App. P. 28(b).
Judges WYNN and TYSON concur.