1. Bail and Pretrial Release--bond forfeiture-_motion to vacate--notice
The trial court did not err by denying the surety's motion to vacate a bond forfeiture
judgment even though the surety contends there was insufficient evidence that the clerk of court
mailed the notice of bond forfeiture to the surety, because: (1) where a clerk of court is charged
with providing notice of a court action, there is a presumption that notice properly addressed and
mailed is delivered to the addressee; (2) the record on appeal contains a copy of the bond
forfeiture notice for defendant which is dated 13 March 2003 and signed electronically by a
deputy clerk of court, thus supporting the trial court's finding that the deputy clerk of court
mailed the notice in compliance with N.C.G.S. § 15A-544.4; (3) N.C.G.S. § 15A-544.4 states
that notice is effective when the notice of bond forfeiture is mailed, and the statute does not
require that the surety receive the notice of bond forfeiture for notice to be effective; and (4)
while an assistant risk manager from the surety's program administrator testified that notice was
not received, this evidence merely created an issue of fact for the trial court.
2. Appeal and Error--preservation of issues-_failure to set out assignment of error
Although a surety contends that the North Carolina notice of bond forfeiture statute under
N.C.G.S. § 15A-544.4 violates the notice requirements of substantive due process, the surety
failed to preserve this issue for review because: (1) the assignment of error listed by the surety in
its brief does not correspond to the issue of whether the notice of bond forfeiture statute violates
the notice requirements of the substantive due process doctrine; and (2) none of the assignments
of error provided in the record make reference to the substantive due process issue or the trial
court's failure to address an issue raised at trial.
GAVIN, COX, PUGH & WILHOIT, LLP, by Robert E. Wilhoit and Alan
V. Pugh, for the State.
ANDRESEN & VANN, by Kenneth P. Andresen and Christopher M.
Vann, for surety.
No brief filed for defendant.
TIMMONS-GOODSON, Judge.
Surety Aegis Security Insurance Co. (“Aegis” or “surety”)
appeals an order of the trial court denying Aegis's motion to
vacate a bond forfeiture judgment. For the reasons provided
herein, we affirm the order of the trial court.
The factual and procedural history of this case is as follows:
On 12 March 2002, Mario Ferrer
(See footnote 1)
(“Ferrer”) was arrested in Randolph
County on drug charges. On 10 May 2002, Aegis secured Ferrer's
release from jail by posting a $100,000 surety appearance bond for
pretrial release. Ferrer was called upon to appear in court on 3
March 2003, but failed to make his court appearance. The trial
court entered a Bond Forfeiture Notice, which listed Aegis as the
surety and provided the address of Aegis's program administrator,
Capital Bonding, in Reading, Pennsylvania. The Bond Forfeiture
Notice also provided the name of a bail agent and the bail agent's
address in Lillington, North Carolina. The Bond Forfeiture Notice
indicated that the bond forfeiture would become a final judgment on
10 August 2003 unless Aegis surrendered Ferrer to the sheriff's
department or met one of the other conditions provided therein.
Aegis failed to meet any of the conditions required to prevent the
bond forfeiture, and the trial court entered a forfeiture judgment
on 12 August 2003. On 26 November 2003, Aegis filed a motion to
vacate the judgment pursuant to N.C. Gen. Stat. § 15A-544.8(b)(1),
arguing that it “did not receive notice of the forfeiture as
required by statute.” The matter was called for hearing together
with the case of State v. Landaver & Aegis Security Insurance Co.(appealed at COA04-934) on 1 March 2004. Kelly Fitzpatrick
(“Fitzpatrick”), assistant risk manager at Capital Bonding, Carolyn
Comer (“Comer”) and Wanda Simpson (“Simpson”), deputy clerks of
court for Randolph County Superior Court, testified at the hearing.
Comer testified that her job responsibilities included
processing bond forfeitures. She stated that when the trial court
entered a bond forfeiture notice, it was customary that a copy of
the notice be sent via first-class mail to the defendant, the
surety, and the bail agent. She further testified that if a bond
forfeiture notice was returned by the post office as undeliverable,
the returned envelope would be placed in the defendant's case file.
Simpson testified that her job responsibilities included
placing bond forfeiture notices into envelopes and placing the
envelopes in a bin to be taken to a United States Postal Service
mailbox by another deputy clerk of court. She further testified
that she specifically remembered mailing a bond forfeiture notice
for Ferrer.
Fitzpatrick testified that upon receipt of a bond forfeiture
notice, Capital Bonding's custom was to (1) change the defendant's
file in the computer database system from active status to
forfeiture status, (2) give a copy of the bond forfeiture notice to
the recovery department, which is charged with locating the
defendant, and (3) place copies of the bond forfeiture notice in
the defendant's risk management file and the file for the bail
agent to whom the defendant is assigned. Fitzpatrick testified
that she receives and processes all of the bond forfeiture noticesmailed to Capital Bonding. She further testified that Ferrer's
file in the computer database system had not been changed from
active status to forfeiture status, and that there were no copies
of a bond forfeiture notice in Ferrer's risk management file or in
the agent's file, which indicated that Capital Bonding did not
receive the bond forfeiture notice.
After considering the evidence, the trial court entered an
order on 9 March 2004 containing the following pertinent findings
of fact:
5. Following the entry of the forfeiture and
pursuant to N.C.G.S. § 15A-544.4, the
Clerk of Superior Court, through its
employee Wanda Simpson . . . mailed to
Aegis the Notice of Hearing on the
Forfeiture on March 13, 2003. The notice
was sent by first-class mail not later
than thirty (30) days after the date on
which the forfeiture was entered.
6. As of March 1, 2004 the Defendant has not
been arrested nor surrendered by Aegis,
and the bond is still outstanding.
7. Aegis presented no evidence of
extraordinary cause to support its Motion
to Vacate.
The order also contained the following conclusions of law:
1. The Court shall give notice of the entry
of forfeiture by mailing a copy of the
forfeitures [sic] to the Defendant and to
each Surety named on the bond by first
class mail. Notice given under this
North Carolina law is effective when
notice is mailed.
2. Aegis has failed to establish that it did
not receive notice as required by law.
3. Aegis failed to establish any valid
statutory reasons to set aside the
forfeiture in this action.
The trial court denied Aegis's motion to vacate the judgment and
ordered Aegis to pay $100,000 to satisfy the judgment. It is from
this order that Aegis appeals.
The issues presented by Aegis on appeal are whether (I) there
was sufficient evidence for the trial court to find that the clerk
of court mailed the notice of bond forfeiture to Aegis; and (II)
the North Carolina notice of bond forfeiture statute violates the
notice requirements of the Substantive Due Process doctrine.
[1] Aegis first argues that there was not sufficient evidence
for the trial court to find that the clerk of court mailed the
notice of bond forfeiture to Aegis. We disagree.
N.C. Gen. Stat. § 15A-544.4 provides the following guidelines
for mailing a notice of bond forfeiture:
(a) The court shall give notice of the entry
of forfeiture by mailing a copy of the
forfeiture to the defendant and to each
surety whose name appears on the bail
bond.
(b) The notice shall be sent by first-class
mail to the defendant and to each surety
named on the bond at the surety's address
of record.
(c) If a bail agent on behalf of an insurance
company executed the bond, the court
shall also provide a copy of the
forfeiture to the bail agent, but failure
to provide notice to the bail agent shall
not affect the validity of any notice
given to the insurance company.
(d) Notice given under this section is
effective when the notice is mailed.
(e) Notice under this section shall be mailed
not later than the thirtieth day after
the date on which the forfeiture is
entered. If notice under this section is
not given within the prescribed time, the
forfeiture shall not become a final
judgment and shall not be enforced or
reported to the Department of Insurance.
(2003) (emphasis added).
“It is well-settled that 'the trial court's findings of fact
have the force and effect of a verdict by a jury and are conclusive
on appeal if there is evidence to support them, even though the
evidence might sustain findings to the contrary.'” Mark IV
Beverage, Inc. v. Molson Breweries USA, 129 N.C. App. 476, 485, 500
S.E.2d 439, 445 (1998) (quoting In re Estate of Trogdon, 330 N.C.
143, 147, 409 S.E.2d 897, 900 (1991)). Where a clerk of court is
charged with providing notice of a court action, there is a
presumption that notice properly addressed and mailed is delivered
to the addressee. York v. York, 271 N.C. 416, 420, 156 S.E.2d 673,
675-76 (1967); see e.g. State v. Teasley, 9 N.C. App. 477, 485-86,
176 S.E.2d 838, 845 (1970). To establish this presumption the
clerk of court does not have to prove that he physically and
personally carried the mailing to the post office. York, 271 N.C.
at 420, 156 S.E.2d at 675-76. Where “he, or one in his office,
authorize[d] the mailing of a notice, and there is proof by the
person to whom the mailing is entrusted that it was mailed, . . .
this constitutes compliance with the statute.” Id. The
presumption of regularity is “the presumption that 'public
officials will discharge their duties in good faith and exercise
their powers in accord with the spirit and purpose of the law.'” Huntley v. Potter, 255 N.C. 619, 628, 122 S.E.2d 681, 687 (1961)
(quoting Construction Co. v. Electrical Workers Union, 246 N.C.
481, 488, 98 S.E.2d 852, 857 (1957)).
In the present case, Simpson testified on direct examination
as follows:
Q: And tell me, tell the Court what
procedure you go through in issuing that
notice.
A: After the defendant is called and failed
in the courtroom and they are put into a
process stack, and then another deputy
clerk will issue the order for arrest,
and then the file is put in a
supervisor's office, and I go in there
and get the files and issue the
forfeiture, and enter it into the V-Cap
Civil system, and then it's mailed out
first-class mail on the same day.
Q: And during what time period do you issue
this notice?
A: Within the thirty-day period, usually a
couple of days after the order for arrest
goes out or the very next day.
Q: Do both of these notices indicate that
they were issued within the thirty-day
period?
A: Yes, sir.
Q: And where are these notices mailed?
A: One goes to the defendant, one to the
insurance company, and one to the agent.
And then the clerk keeps one.
Q: Okay. Now, are these notices delivered
to _ how are they put into the mail
system?
A: I personally put them in the envelopes
and take them over to the mail bucket
that we have in our clerk's office, and
then another deputy clerk will pick upthat bucket and take it out to the
mailbox and put the mail in.
Simpson further testified on cross-examination as follows:
Q: Okay. Now, do you have a personal
recollection of [the Landaver and Ferrer
bond forfeiture] notices?
A: I do remember doing them, issuing the
forfeitures.
Q: Okay. So you remember these specific
forfeitures being printed off of your
computer?
A: Yes, sir.
Through Simpson's testimony, the State established that the
clerk of court produced and mailed a notice of bond forfeiture to
Aegis. Furthermore, the record on appeal contains a copy of the
bond forfeiture notice for Ferrer, which is dated 13 March 2003 and
signed electronically by Simpson. This evidence is sufficient to
support the trial court's finding that the deputy clerk of court
mailed the notice in compliance with N.C. Gen. Stat. § 15A-544.4.
While we recognize that this evidence is contradicted by
Fitzpatrick's testimony at trial and by affidavit that Aegis did
not receive the notice of bond forfeiture, we note that § 15A-
544.4(e) states that notice is effective when the notice of bond
forfeiture is mailed. The statute does not require that the surety
receive the notice of bond forfeiture for notice to be effective.
Furthermore, while Fitzpatrick's testimony constitutes “some
evidence” that notice was not mailed, this evidence did not compel
a finding in favor of surety, but rather created an issue of fact
for the trial court. “It is within the trial court's discretion todetermine the weight and credibility given to all evidence
presented during a non-jury trial.” Department of Transp. v. Elm
Land Co., 163 N.C. App. 257, 264, 593 S.E.2d 131, 136 (2004)
(citing Kirkhart v. Saieed, 98 N.C. App. 49, 54, 389 S.E.2d 837,
840 (1990)). “The findings of fact made by the trial judge are
conclusive on appeal if supported by competent evidence, even if,
arguendo, there is evidence to the contrary.” Lumbee River
Electric Corp. v. City of Fayetteville, 309 N.C. 726, 741, 309
S.E.2d 209, 219 (1983). For the reasons discussed supra, we
conclude that the trial court's findings of fact are supported by
competent evidence. In turn, the findings of fact support the
trial court's conclusions of law. The trial court did not err in
denying Aegis's motion to vacate.
[2] Aegis next argues that the North Carolina notice of bond
forfeiture statute violates the notice requirements of the
Substantive Due Process doctrine. This issue is not preserved for
appellate review.
“[T]he scope of review on appeal is confined to a
consideration of those assignments of error set out in the record
on appeal.” N.C.R. App. P. 10(a) (2005). In the appellant's
brief, immediately following each question presented on appeal, the
appellant must provide “a reference to the assignments of error
pertinent to the question, identified by their numbers and by the
pages at which they appear in the printed record on appeal.”
N.C.R. App. P. 28(b)(6) (2005). In the present case, immediately following the presentation of
this issue, Aegis identifies Assignment of Error No. 6 as the
pertinent assignment of error. Assignment of Error No. 6 is
provided in the record on appeal as follows: “Appellant Aegis
Security Insurance Co. assigns as error . . . [t]he court's denial
of Appellant's Motion to Vacate Judgment on the ground that such
denial is not supported by the evidence in the record.” This
assignment of error does not correspond to the issue of whether the
notice of bond forfeiture statute violates the notice requirements
of the Substantive Due Process doctrine. We recognize that Aegis
raised this constitutional issue at trial and the trial court
declined to rule on the matter. However, none of the assignments
of error provided in the record make reference to the Substantive
Due Process issue or the trial court's failure to address an issue
raised at trial. Because this issue is not set out in an
assignment of error, we hold that it is not preserved for appellate
review.
We have considered all of appellant's assignments of error
properly brought forward and for the reasons provided herein, we
affirm the order of the trial court.
AFFIRMED.
Judges CALABRIA and GEER concur.
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