STATE OF NORTH CAROLINA
FRANCISCO ERIZA HERNANDEZ,
and No. 03 CRS 52894
HARCO NATIONAL INSURANCE CO.,
HARNETT COUNTY BOARD OF
Duncan B. McCormick for respondent-appellant Harnett County
Board of Education.
Andresen & Associates, by Kenneth P. Andresen, for surety- appellee.
MARTIN, Chief Judge.
Respondent Harnett County Board of Education appeals from an order of the trial court, entered 10 January 2005, which vacated an entry of forfeiture entered 29 June 2004 and exonerated Harco National Insurance Company (Harco) from further liability on a bail bond which Harco executed for defendant Francisco Eriza Hernandez. For the reasons which follow, we affirm the order of the trial court.
Defendant Hernandez was arrested 6 May 2003 for trafficking in cocaine and maintaining a dwelling for the sale of controlled substances. He was released from custody 17 June 2003 on a $500,000 secured bond issued by Harco. Hernandez failed to appear for his scheduled court date of 13 August 2003, and the court entered an order on the same day forfeiting his bond.
Five months later, on 11 February 2004, the Harnett County Clerk of Superior Court mailed a notice of the bond forfeiture to Harco, notifying it that the forfeiture would become a final judgment on 10 July 2004. Harco moved to set aside the forfeiture on the ground that it did not receive notice thereof within thirty days of the entry of forfeiture as required by N.C. Gen. Stat. § 15A-544.4 (2005). On 2 June 2004, the trial court entered an order setting aside the bond forfeiture and ordering that no enforcement of the forfeiture be made, that the Clerk of Superior Court not issue a Writ of Execution, that the forfeiture not be reported to the Department of Insurance and that the surety be exonerated from further liability in this matter. (Emphasis added). Neither the State nor respondent Board of Education gave notice of appeal from the order setting aside the forfeiture.
Subsequently, the State re-calendared defendant Hernandez's case for 29 June 2004. When Hernandez failed to appear on that date, the trial court again ordered that his bond be forfeited. Timely notice of this second forfeiture was sent to Harco. Harcofiled a motion to vacate this second forfeiture on the ground that, having been exonerated from further liability in this matter on 2 June 2004, Harco no longer secured Hernandez's appearance on 29 June 2004. After a hearing on the motion, the trial court entered an order on 10 January 2005 in which it concluded, inter alia, that because Harco had been exonerated from further liability on 2 June 2004, it no longer secured Hernandez's appearance thereafter. The trial court ordered that the 29 June 2004 order of forfeiture be set aside.
Respondent Board of Education gave notice of appeal from the trial court's order of 10 January 2005, and its assignments of error relate only to that order. The Board argues in its brief, however, that the trial court erred in setting aside the 13 August 2003 forfeiture because the Clerk's failure to give Harco timely notice of that forfeiture is not a grounds to set the forfeiture aside or to exonerate Harco from further liability. Therefore, respondent Board argues, the trial court erred in its order of 10 January 2005 by concluding that defendant's appearance on 29 June 2004 was no longer secured by Harco.
North Carolina General Statute § 15A-544.5 sets forth six [e]xclusive grounds to set aside the forfeiture of an appearance bond and provides further that [a] forfeiture shall be set aside for any one of the following reasons, and none other. N.C. Gen. Stat. § 15A-544.5(b) (2005) (emphasis added). Failure to send timely notice as required by N.C. Gen. Stat. § 15A-544.4 is not one of the six express reasons for which a forfeiture may be set asideunder section 15A-544.5(b). Although N.C. Gen. Stat. § 15A-544.4 requires notice of the entry of forfeiture to be sent to the surety within thirty (30) days of a defendant's failure to appear, failure to send such notice simply prevents the entry of a final judgment on the forfeiture and is not a ground under section 15A-544.5(b) for setting aside the forfeiture. Thus, it would appear there is some merit to respondent Board's argument that the trial court erred when it set aside the 2003 forfeiture in its 2 June 2004 order.
However, respondent Board did not appeal from the 2 June 2004 order, notwithstanding the provisions of N.C. Gen. Stat. § 15A- 544.5(h), which provides that [a]n order on a motion to set aside a forfeiture is a final order . . . for purposes of appeal. N.C. Gen. Stat. § 15A-544.5(h) (2005). If the 2 June 2004 order was erroneous, respondent Board's remedy was to appeal from it; upon its failure to do so, the order became the law of the case, and the trial court was thereafter bound by it. Wall v. England, 243 N.C. 36, 39, 89 S.E.2d 785, 787 (1955) (If the ruling of the Judge of Superior Court were erroneous, the remedy of defendant was to except thereto and appeal . . . . And upon failure of the defendant to except and appeal the judgment becomes, not so much as res judicata, as the law of the case); Cameron v. McDonald, 216 N.C. 712, 715, 6 S.E.2d 497, 499 (1940) (A judgment not appealed from, however erroneous, is res judicata. . . . A judgment regularly entered by a court having jurisdiction and authority to act in the premises, from which no appeal is taken, operates as anestoppel upon the parties thereto . . . though the judgment may be erroneous in law).
Having never been appealed from, the trial court's 2 June 2004 order exonerating Harco from further liability with respect to Hernandez's appearance bond must stand. Pursuant thereto, Hernandez's 29 June 2004 appearance was not secured by Harco's bond, and the trial court properly set aside the forfeiture entered on that date. The order from which respondent Board appeals, relating to the trial court's 10 January 2005 order allowing Harco's motion to set aside the 29 June 2004 forfeiture, must be affirmed.
Judges McGEE and STEELMAN concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***