Appeal by surety from judgment entered 30 March 2004 by Judge
Paul L. Jones in Greene County Superior Court. Heard in the Court
of Appeals 24 March 2005.
WARREN, KERR, WALSTON, TAYLOR & SMITH, LLP, by John Turner
Walston, for the Greene County Board of Education.
ANDRESEN & VANN, by Kenneth P. Andresen and Christopher M.
Vann, for the surety.
No brief filed for defendant.
TIMMONS-GOODSON, Judge.
Surety Aegis Security Insurance Co. (“Surety”) posted a
$500,000 bond for defendant Miuler Flores to guarantee his 10
February 2003 court appearance on felony drug charges. Following
defendant's failure to appear on his assigned court date, the trial
court entered a bond forfeiture judgment against surety. Surety
appeals a ruling of the trial court denying its motion, pursuant to
N.C. Gen. Stat. § 15A-544.8(b)(1), to vacate the bond forfeiture
judgment.
The issues presented by surety on appeal are whether (I) there
was sufficient evidence to support the trial court's findings of
fact and conclusions of law; and (II) the bond forfeiture statute
violates the notice requirements of the Substantive Due Process
doctrine.
Surety first argues that there was insufficient evidence to
support the trial court's findings of fact and conclusions of law
that the deputy clerk of court mailed the notice of bond forfeiture
to surety. For the reasons stated in
State v. Ferrer & Aegis
Security Insurance Co. (COA04-935, filed contemporaneously), we
hold that there was sufficient evidence presented at trial to
support the trial court's findings of fact and conclusions of law.
Accordingly, we affirm the order of the trial court.
Surety also 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.
“A constitutional issue not raised at trial will generally not
be considered for the first time on appeal.”
Anderson v. Assimos,
356 N.C. 415, 416, 572 S.E.2d 101, 102 (2002) (per curiam).
[Our appellate courts] may exercise [their]
supervisory power to consider constitutional
questions not properly raised in the trial
court, but only in exceptional circumstances.
Even so, constitutional analysis always
requires thorough examination of all relevant
facts. Thus, a constitutional question is
addressed only when the issue is squarely
presented upon an adequate factual record and
only when resolution of the issue is
necessary. To be properly addressed, a
constitutional issue must be definitely drawninto focus by plaintiff's pleadings. If the
factual record necessary for a constitutional
inquiry is lacking, an appellate court should
be especially mindful of the dangers inherent
in the premature exercise of its jurisdiction.
Id. at 416-17, 572 S.E.2d at 102. (citations, quotations and
emphasis omitted).
In the present case, our review of the record on appeal
reveals that surety did not make a Substantive Due Process argument
in its motion to vacate the judgment. Furthermore, our review of
the trial transcript reveals surety did not raise this
constitutional issue during oral arguments at trial. Thus,
pursuant to
Anderson, we decline to address this issue on appeal.
We have considered all of surety'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.
Report per Rule 30(e).
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