Appeal by petitioners from judgment entered 11 July 2003 by
Judge Knox V. Jenkins in Johnston County Superior Court. Heard in
the Court of Appeals 11 October 2004.
Benjamin R. Kuhn for petitioners-appellants.
Daughtry, Woodard, Lawrence & Starling, by James R. Lawrence,
Jr., and Woodruff, Reece & Fortner, by Gordon C. Woodruff and
Michael J. Reece, for plaintiffs-appellees.
MARTIN, Chief Judge.
Petitioner-appellants appeal from the trial court's order
denying their petition for relief from a final judgment of bond
forfeiture. The record discloses that on 3 June 1997, defendant
Phillip Jade Saunders (Saunders) was arrested on a charge of
trafficking in cocaine in violation of N.C. Gen. Stat. § 90-
95(h)(3). His bond was originally set at $200,000 but was reducedto $100,000 sua sponte by Superior Court Judge Lynn Johnson.
Montee Spells (Spells), as surety bondsman and attorney-in-
fact for The Ranger Insurance Company (Ranger), secured defendant's
appearance in court on 12 January 1998 by posting a $100,000 bond
on 30 August 1997. Defendant returned to his home in Miami where
Spells contacted him approximately once each month. Spells
regularly checked computer records of the Administrative Office of
the Courts (AOC), but the records never indicated any change of
court date, failure to appear, or forfeiture of bond in defendant's
case.
Defendant Saunders failed to appear in court on 12 January
1998, and orders were issued for his arrest and for forfeiture of
the bond. On 18 August 1998, Assistant District Attorney Dale
Stubbs (Stubbs) dismissed all charges against defendant, believing
defendant could not be readily found and produced for trial. On 12
April 1999, a notice was sent to Ranger at its Houston, Texas
office, notifying it of the order of forfeiture and that judgment
would be entered in the amount of the bond unless the principal,
Saunders, appeared on or before 8 July 1999 or the surety, Ranger,
satisfied the court that the principal's failure to appear was
without the principal's fault. Judgment of forfeiture in the
amount of the bond was entered on 8 July 1999, and notice of the
judgment was mailed to Ranger. On 13 July, the court entered an
Order of Bond Forfeiture.
The Notice of Judgment was not received by sureties-appellants
until approximately 22 July 1999. Immediately upon learning of thejudgment, sureties-appellants sought to locate defendant and return
him to Johnston County. After traveling to Miami, defendant's last
known address, Spells learned that defendant had fled to the
Bahamas. Because only the local prosecuting authority could
initiate extradition proceedings, Spells contacted Stubbs to
enlist his help. Initially Stubbs tried to assist, filling out
paperwork for defendant's extradition and making phone calls to
Washington. However, due to time and money limitations, Stubbs
discontinued his pursuit of defendant's extradition.
On 15 January 2003, sureties-appellants filed a Verified
Petition to Remit Bond Forfeiture After Judgment. The Johnston
County School Board responded and a hearing was held on 1 May 2003.
On 11 June 2003, the court denied sureties-appellants petition to
remit the bond forfeiture, concluding as a matter of law that
sureties-appellants had not shown evidence of extraordinary cause.
Appellants contend the trial court erred in denying their
motion to remit the judgment of bond forfeiture for extraordinary
cause. North Carolina General Statute § 15A-544(a)-(h) (1997), now
repealed, governed the bond forfeiture in this case. N.C. Gen.
Stat. § 15A-544(h) provided in pertinent part, “[f]or extraordinary
cause shown, the court which has entered judgment upon a forfeiture
of a bond may, after execution, remit the judgment in whole or in
part and order the clerk to refund such amounts as the court
considers appropriate.” N.C. Gen. Stat. § 15A-544(h) (1997).
Thus, “it is within the court's discretion to remit judgment forextraordinary cause,”
State v. McCarn, 151 N.C. App. 742, 745, 566
S.E.2d 751, 753 (2002) (citation omitted), and the appellate court
reviews only for abuse of discretion.
Id.
Although the statute does not define the term, this Court has
previously defined “extraordinary cause” as “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 would foresee.”
Id. “In
determining whether the facts of a particular case constitute
extraordinary cause, the trial court must make brief, definite,
pertinent findings and conclusions.”
Id. Because the
determination of extraordinary cause is a “heavily fact-based
inquiry,”
State v. Coronel, 145 N.C. App. 237, 244, 550 S.E.2d 561,
567 (2001)
, disc. review denied, 355 N.C. 217, 560 S.E.2d 144
(2002), these cases must be reviewed on a “case by case basis.”
Id.
Appellants first argue they did not receive timely and proper
notice of the Order of Forfeiture. N.C. Gen. Stat. § 15A-544(b)
(1997) provides in pertinent part:
If forfeiture is ordered by the court, a copy of the
order of forfeiture and notice that judgment will be
entered upon the order after 60 days must be served on
each obligor. Service is to be made by the clerk mailing
by first-class mail a copy of the order of forfeiture and
notice to each obligor at each obligor's address as noted
on the bond and note on the original the date of mailing.
Service is complete three days after the mailing.
On 12 April 1999, the Clerk mailed, by first-class mail, the
Order of Bond Forfeiture and Notice. Judgement of forfeiture was
not entered until 8 July 1999, giving more than the required sixtyday notice. The statute does not require notice to be mailed
within a certain time period after the Order of Forfeiture is
entered.
The bond noted Ranger's address as:
Ranger Insurance
P.O. Box 2807
Houston, TX 77252-2807
However, the Order of Bond Forfeiture and Notice shows notice was
actually mailed to:
Ranger Insurance Company
10777 Westheimer Rd.
P.O. Box 2807
Houston, TX 77252-2807.
At the 1 May 2003 hearing, Crystal Creech Sherron, Deputy Clerk in
the Johnston County clerk's office, testified she addressed the
notice to the address listed on her rolodex. Except for a street
address, which was above the line containing the post office box,
the address used for Ranger was identical to the address on the
bond. Furthermore, there was no indication in the record that the
notice was returned to the clerk's office. We conclude the
addition of the street address was mere surplusage that did not
affect compliance with the statute.
Appellant relies on
State v. Cox, 90 N.C. App. 742, 370 S.E.2d
260 (1988), where the Court of Appeals found that the trial court
committed reversible error when it entered an order of forfeiture
and judgment of forfeiture without providing timely and proper
notice to the surety. In
Cox, however, the surety was neither
mailed nor personally served with a copy of the order of forfeiture
and notice. The Court found “[t]he failure to follow the statutoryrequirements denied the surety his right to receive notice of the
order of forfeiture.”
Id. at 745, 370 S.E.2d at 261. Here, the
notice met all statutory requirements; it was mailed more than
sixty days prior to the entry of judgment and it was mailed by
first-class mail to the address listed on the bond.
Appellants also contend the fifteen to eighteen month delay
between the date the Order of Forfeiture and Notice was entered and
the date it was mailed and/or received by petitioners prejudiced
the appellants. They argue if the sureties had been advised of
defendant's failure to appear, defendant could have been
apprehended and returned to face charges.
At the hearing, Spells admitted the last contact he had with
defendant prior to his court date of 12 January 1998 was in
November or December of 1997. He further testified that between 12
January 1998 and 12 April 1999 he contacted defendant between five
and seven times during the five to six months after the court date.
However, Spells was unaware defendant had missed his court date of
12 January 1998 until he received the fax from Eddie Lee in July
1999.
Although Spells repeatedly checked the AOC computer records
which continued to show a 12 January court date even after the date
had passed, he never spoke with defendant's attorney, the district
attorney's office or the clerk's office to find out if defendant
had appeared in court or if defendant had a new court date.
Sureties-appellants offered no explanation as to why defendant was
not in court nor did they present any evidence of defendant'swhereabouts from 12 January 1998 until after sureties received
notice of forfeiture. At the hearing, Spells admitted that as a
professional bondsman, it was his job to make certain defendant
appeared in court, even if he had to spend money to locate
defendant. If the sureties had determined through their own
efforts that defendant had not appeared in court, they would have
had more time to locate defendant prior to the entry of Judgment of
Forfeiture. Appellants were not prejudiced by the delay in
receiving notice of forfeiture.
Appellants next argue the trial court abused its discretion in
denying their petition to remit bond because the action and
inaction of government officials made it impossible for the
sureties to return defendant to Johnston County to face charges.
Again, we disagree.
“The purpose of a bail bond is to secure the appearance of the
principal in court as required.”
State v. Vikre, 86 N.C. App. 196,
199, 356 S.E.2d 802, 804,
disc. review denied, 320 N.C. 637, 360
S.E.2d 103 (1987). “The sureties become custodians of the
principal and are responsible for the bond if the principal fails
to appear in court when required.”
Id. at 199, 356 S.E.2d at 805.
Here, appellants claim Stubbs' failure to seek extradition of
defendant made it impossible for appellants to produce him for
trial. However, in
State v. McCarn, this Court held that the State
does not have an “affirmative duty to aid a surety in its effort to
locate a defendant who has not appeared in court as required.”
McCarn, 151 N.C. App. at 745, 566 S.E.2d at 753. Furthermore, itwas foreseeable that sureties, licensed professional bondsmen who
knew defendant was from the Bahamas, could be required to spend
time, energy and money locating defendant should he fail to appear
for court.
See Vikre, 86 N.C. App. at 199, 356 S.E.2d at 804
(holding sureties effort and expense to locate and return defendant
does not constitute extraordinary cause). Accordingly, we find the
trial court did not abuse its discretion in concluding as a matter
of law that extraordinary cause did not exist for remission of the
bond.
Sureties-appellants next argue the trial court erred in
finding as fact and concluding as a matter of law that the case was
governed by N.C. Gen. Stat. § 15A-544.1, et. seq. The lower
court's order made the following findings of fact:
2. That the parties are properly before the Court
pursuant to North Carolina General Statute 15A-544.1 et
seq., “Bond Forfeitures,” and specifically 15A-544.8,
“Relief from final Judgment.”
3. That the parties are before the Court pursuant to a
verified petition filed by the Surety, Montee Spells and
Ranger Insurance Company, for Remission of a Bond After
Execution for Extraordinary Cause.
4. That North Carolina General Statute 15A-544.1 et seq.
is the sole jurisdictional statute and procedure for the
petition to be heard.
The order also made the following conclusions of law:
1. That the Parties are properly before the Court
pursuant to N.C. Gen. Stat. § 15A-544.8 . . . .
2. That this matter is governed by North Carolina General
Statute 15A-544.8 as the exclusive remedy from a final
judgment of forfeiture.
The bail bond, issued on 30 August 1997, was governed by N.C.
Gen. Stat. § 15A-544(h), not N.C. Gen. Stat. § 15A-544.1 et seq.which became effective 1 January 2001. Sureties-appellants concede
in their brief that the parties discussed the applicable law at the
hearing and both parties acknowledged that N.C. Gen. Stat. § 15A-
544(h) was the controlling law in the case. It is apparent from
the record that the correct law was used by the court, and the
trial court's error in referring to the incorrect statute has
resulted in no prejudice to appellants. Nevertheless, we remand
the matter to the trial court for the limited purpose of correcting
the order to reflect the correct statute.
Sureties-appellants' remaining assignment of error was not
brought forward in his brief and therefore is deemed abandoned.
N.C. R. App. P. 28(a).
The order denying relief from the judgment of bond forfeiture
is affirmed, and this matter is remanded for correction of the
order in accordance with this opinion.
Affirmed; remanded for correction of order.
Judges TIMMONS-GOODSON and HUDSON concur.
Report per Rule 30(e).
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