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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. MIGUEL ANGEL GONZALEZ ESCOBAR a/k/a
JUAN JOSE ARBUSTOS-NAVARETTE Defendant, HARCO NATIONAL INSURANCE
(See footnote 1)
Filed: 20 November 2007
1. Civil Procedure--Rule 52--findings
Rule 52 does not require a recitation of evidentiary facts, and the trial court fulfilled its
obligations when a denying a motion for relief from a bail bond forfeiture by making a specific
finding that defendant was located by the surety's efforts, but that the District Attorney was
ultimately responsible for returning defendant to Union County. The court's findings did not
ignore questions of fact that had to be resolved before judgment could be entered.
2. Rules of Civil Procedure--Rule 52 conclusion--basis in findings
The trial court did not abuse its discretion by making conclusions on allegedly incomplete
findings when denying a motion for relief from a bail bond forfeiture.
3. Bail and Pretrial Release_relief from bond forfeiture_extraordinary circumstances
The trial court did not err by concluding that there were no extraordinary circumstances
entitling a bail bond surety to relief from a forfeiture judgment where the evidence showed that
the surety was aware of defendant's ties to Mexico, failed to verify his bogus social security
number, did not stay abreast of defendant's location prior to his court date, and was not
responsible for defendant's capture.
Appeal by surety from order entered 16 November 2006 by Judge
W. David Lee in Superior Court, Union County. Heard in the Court
of Appeals 16 October 2007.
Kenneth W. Honeycutt, for plaintiff-appellee Union County
Board of Education.
Andresen & Associates, by Kenneth P. Andresen, for defendant-
appellant Harco National Insurance Company.
A trial court is not required to recite evidentiary facts in
its findings of fact, but is required to make specific findings on
the ultimate facts established by the evidence.
(See footnote 2)
Here, a bonding
company argues that the trial court erred because it failed to make
findings of fact regarding its efforts to locate defendant after he
failed to appear at a scheduled court appearance. Because the
trial court was not required to make findings of fact specifying
the tasks completed by the bonding company, we affirm.
Following Defendant Miguel Angel Gonzalez Escobar's arrest on
several counts of trafficking cocaine in violation of N.C. Gen.
Stat. § 90-95 (2003), the trial court ultimately set his bond at
$250,000. On 27 June 2003, Harco National Insurance Company
(Harco) posted bond for Defendant's release. Defendant failed to
appear for a scheduled court appearance on 4 August 2003;
consequently, the trial court entered a Notice of Bond Forfeiture
and an Order for Defendant's arrest on 14 August 2003.
On 25 November 2003, the Union County District Attorney
dismissed the charges against Defendant with leave. The forfeiture
became a final judgment on 16 January 2004.
Upon learning of Defendant's failure to appear, Harco, through
its agents, engaged in a search to locate him. Harco conducted
numerous database searches, monitored residences of Defendant's
girlfriend, and contacted various law enforcement officials andrelatives of Defendant. Through United States Marshals, Harco
learned that Defendant had been deported to Mexico. Additional
research revealed that Defendant had returned illegally to the
United States and had been arrested in Tennessee. After talking to
one of Defendant's relatives, Harco discovered that Defendant was
using the alias Juan Arbustos-Navarette. After comparing
photographs and next of kin, Harco concluded that Defendant was
located in a detention facility in Blount County, Tennessee.
On 15 March 2005, Harco informed Detective Macki Goodman of
the Union County Sheriff's Department that it had located
Defendant. On 21 March 2005, Harco sent a letter to Assistant
District Attorney Tina Pope seeking her assistance in filing the
necessary extradition process for Defendant. On 24 March 2005,
the Union County District Attorney reinstated the State's case
against Defendant. Subsequently, the District Attorney's office
contacted the United States Marshal's Office and had a hold placed
on Defendant, who was actually in federal custody, but was being
held in Blount County.
In August 2006, Defendant was returned to Union County upon a
Writ of Habeas Corpus Ad Prosequendum, prepared by Harco's counsel
at the court's direction.
On 5 September 2006, Harco filed a Motion for Relief from
Judgment, arguing that pursuant to N.C. Gen. Stat. § 15A-544.8
(2005), extraordinary circumstances existed which entitled Harco to
the return of its forfeited money. The trial court denied Harco's
Motion for Relief from Judgment on 16 November 2006. On appeal to this Court, Harco argues that the trial court
erred by: (I) failing to make findings of fact regarding its
efforts to locate Defendant, thereby violating Rule 52 of our Rules
of Civil Procedure and (II) making conclusions of law based on
 Harco first contends that the trial court violated Rule 52
of our North Carolina Rules of Civil Procedure because it failed to
include determinative facts in its findings of fact. We disagree.
When the trial court sits without a jury, Rule 52 of our Rules
of Civil Procedure requires the court to find the facts specially
and state separately its conclusions of law thereon and direct the
entry of the appropriate judgment. N.C. Gen. Stat. § 1A-1, Rule
52(a)(1) (2005). To meet the requirements of Rule 52:
[T]he trial court must make a specific
statement of the facts on which the rights of
the parties are to be determined, and those
findings must be sufficiently specific to
enable an appellate court to review the
decision and test the correctness of the
judgment. Rule 52(a)(1) does not require
recitation of evidentiary facts, but it does
require specific findings on the ultimate
facts established by the evidence, admissions
and stipulations which are determinative of
the questions involved in the action and
essential to support the conclusions of law
Chemical Realty Corp. v. Home Federal Sav. & Loan Ass'n., 65 N.C.
App. 242, 249, 310 S.E.2d 33, 37 (1983) (quotation and citations
omitted), disc. review denied, 310 N.C. 624, 315 S.E.2d 689, cert.denied, 469 U.S. 835, 83 L. Ed. 2d 69 (1984). Where a trial
court's findings of fact ignore questions of fact that must be
resolved before judgment can be entered, the action should be
remanded. Id. at 250, 310 S.E.2d at 37. In reviewing a trial
court's findings of fact, the findings are conclusive on appeal if
supported by competent evidence. State v. Coronel, 145 N.C. App.
237, 250, 550 S.E.2d 561, 570 (2001), disc. review denied, 355 N.C.
217, 560 S.E.2d 144 (2002).
Under our bail forfeiture statutes, if a criminal defendant is
released on bond and fails to appeal, the 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) (2005). The court then mails a copy
of the entry of forfeiture to the defendant and each surety on the
bond. Id. § 15A-544.4. After 150 days from the notice of the
forfeiture, the forfeiture becomes a final judgment of forfeiture,
provided that there is no motion to set aside the forfeiture
pending on that date. Id. § 15A-544.6. A defendant or surety is
only entitled to relief from a final judgment of forfeiture if the
person seeking relief was not given notice . . . or [o]ther
extraordinary circumstances exist that the court, in its
discretion, determines should entitle that person to relief. Id.
In the context of bond forfeiture, the term extraordinary
circumstances has been defined as going beyond what is usual,
regular, common, or customary . . . of, relating to, or having thenature of an occurrence or risk of a kind other than what ordinary
experience or prudence would foresee. State v. Edwards, 172 N.C.
App. 821, 825, 616 S.E.2d 634, 636, disc. review denied, 360 N.C.
69, 623 S.E.2d 776 (2005). Whether the evidence presented rises to
the level of extraordinary circumstances 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.
In this case, Harco argues that the trial court failed to make
findings of fact regarding its extensive efforts to locate
Defendant, which was determinative of the question of extraordinary
circumstances. The trial court made the following finding of fact
regarding Harco's efforts:
4. Efforts of and on behalf of Harco
resulted in locating Escobar in the penal
system of another jurisdiction, but did
not result in the apprehension or capture
of Escobar by authorities in that
jurisdiction. . . . Escobar's return to
this jurisdiction is by writ based upon
the continuing efforts of the District
Attorney to prosecute Escobar on the
original charges in this jurisdiction.
Harco contends that the trial court did not make findings of
fact specifying the numerous tasks completed by Harco in its
efforts to locate Defendant. However, the trial court was not
required to make such findings, as Rule 52(a)(1) does not require
recitation of evidentiary facts. Chemical Realty Corp., 65 N.C.
App. at 249, 310 S.E.2d at 37. [T]he court need only make brief,
definite, pertinent findings and conclusions upon the contested
matters. State v. Rakina, 49 N.C. App. 537, 540-41, 272 S.E.2d 3,
5 (1980) (holding that more specificity in the findings of fact wasnot required where the surety argued that the trial court failed to
address the personal efforts of surety), disc. review denied, 302
N.C. 221, 277 S.E.2d 70 (1981). The trial court fulfilled its
obligations under Rule 52(a)(1) because it made a specific finding
of fact that Harco's efforts resulted in locating Defendant, but
the District Attorney was ultimately responsible for returning
Defendant to Union County. The trial court's findings of fact did
not ignore questions of fact that had to be resolved before
judgment could be entered. Chemical Realty Corp., 65 N.C. App. at
250, 310 S.E.2d at 37. Accordingly, we affirm.
 Harco next argues that the trial court's conclusions of
law constituted an abuse of discretion because the findings of fact
were incomplete. We disagree.
We have previously held that it is within the court's
discretion to remit judgment for 'extraordinary cause,' and we
therefore review the court's decision . . . for abuse of
, 145 N.C. App. at 243, 550 S.E.2d at 566;
N.C. Gen. Stat. § 15A-544.8. A trial court may be reversed for
abuse of discretion only upon a showing that it was so arbitrary
that it could not have been the result of a reasoned decision.
White v. White
, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).
In determining whether a forfeited bond may be remitted for
extraordinary cause, courts consider the following factors:
[T]he inconvenience and cost to the State and
the courts; the diligence of sureties in
staying abreast of the defendant's whereabouts
prior to the date of appearance and insearching for the defendant . . .; [in cases
where the defendant has died] the surety's
diligence in obtaining information of the
defendant's death; the risk assumed by the
sureties; [and] the surety's status, be it
private or professional . . . .
, 145 N.C. App. at 248, 550 S.E.2d at 569. Although a
surety's diligence is a factor in determining whether a forfeited
bond may be remitted for extraordinary cause, diligence alone will
not constitute 'extraordinary cause,' for due diligence by a surety
is expected. Id.
Recently, we held that the mere return of a
defendant does not constitute extraordinary circumstances as a
matter of law. Edwards
, 172 N.C. App. at 827, 616 S.E.2d at 637.
We first note that the trial court's findings of fact are
binding on appeal because Harco failed to specifically assign error
to any of the findings. State v. Cheek
, 351 N.C. 48, 63, 520
S.E.2d 545, 554 (1999) (noting that because the defendant failed to
specifically except to any of the trial court's findings of fact
and failed to identify in his brief which of the trial court's
findings of fact were not supported by the evidence, the court's
review of the assignment of error was limited to whether the trial
court's findings of fact supported its conclusions of law), cert.
, 530 U.S. 1245, 147 L. Ed. 2d 965 (2000).
In addition to the findings of fact regarding Harco's efforts
to locate Defendant, the trial court found that [at] the time of
the posting of the bond, information obtained by the bail agent
included that Escobar was born in Mexico. The findings of fact
also state that Harco did not determine the legal status of
Escobar in this country at the time of the posting of the bond,and the only contact on behalf of the surety with Escobar after
the initial meeting . . . was sporadic telephone contact. The
trial court then concluded that:
[T]he defendant's failure to appear at the
scheduled court date is attributable not only
to his voluntary, unlawful acts, but also to
the inattention, neglect and lack of diligence
by the surety and its agents in obtaining
information and in staying abreast of
defendant's whereabouts prior to the scheduled
court date; that subsequent efforts by the
surety and its agents did not lead to
defendant's apprehension and capture but only
to locating him in the penal system of a
sister State after his apprehension by others.
The trial court's conclusions reflect a consideration of the
factors outlined in Coronel.
145 N.C. App. at 248, 550 S.E.2d at
569. We have held that where the surety knew at the time it
executed a bond that the defendant was a Texas resident and
traveled outside of the United States in connection with his
employment, [it] was entirely foreseeable . . . that the sureties
would be required to expend considerable efforts and money to
locate [defendant] in the event he failed to appear. State v.
, 86 N.C. App. 196, 199, 356 S.E.2d 802, 804, disc. review
, 320 N.C. 637, 360 S.E.2d 103 (1987).
 Here, the evidence in the record shows that Harco was
aware of Defendant's ties to Mexico, failed to verify his bogus
Social Security number, did not stay abreast of his location prior
to his court date, and, as the trial court stated in its findings
of fact, was not responsible for Defendant's capture. Accordingly,
we cannot conclude that the trial court abused its discretion inconcluding that there were no extraordinary circumstances entitling
Harco to relief from judgment.
Judges HUNTER and GEER concur.
Harco National Insurance Company is not listed in the
caption of the 16 November 2007 order, but is included in the
caption here because it is the appellant.
Chemical Realty Corp. v. Home Federal Sav. & Loan Ass'n of
, 65 N.C. App. 242, 249, 310 S.E.2d 33, 37 (1983), disc.
, 310 N.C. 624, 315 S.E.2d 689, cert. denied
, 469 U.S.
835, 83 L. Ed. 2d 69 (1984).
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