Summary
holding that North Carolina Rules of Civil Procedure Rule 60 applies to bond forfeiture
Summary of this case from State v. VaimiliOpinion
No. COA10-474
Filed 19 April 2011 This case not for publication
Appeal by judgment creditor from order entered 12 October 2009 by Judge Thomas H. Lock in Johnston County Superior Court. Heard in the Court of Appeals 12 October 2010.
Tharrington Smith, L.L.P., by Rod Malone and Christine Scheef, for Judgment Creditor-Appellant Johnston County Board of Education. Narron, O'Hale and Whittington, P.A., by John P. O'Hale, for Surety-Appellees.
Johnston County No. 07 CRS 56935.
The Johnston County Board of Education (the Board), appeals from an order denying its Rule 60 motion to strike the clerk of superior court's order setting aside previously entered bond forfeitures. For the following reasons, we reverse the trial court's order and remand.
The Board is a judgment creditor and the beneficiary of bond forfeiture funds. See N.C. Const. art. IX, § 7(a) (providing that "the clear proceeds of all penalties and forfeitures and of all fines collected in the several counties for any breach of the penal laws of the State, shall belong to and remain in the several counties, and shall be faithfully appropriated and used exclusively for maintaining free public schools"). Thus, the Board's right to appeal in this case is based on its status as an aggrieved party, where it is the ultimate recipient of forfeiture funds and the order of forfeiture has been set aside by court order. See N.C. Gen. Stat. § 1-271 (2009).
Elder Geovani Cortez (Defendant) was arrested on 24 August 2007 for first degree kidnaping, first degree rape, and indecent liberties with a child. He was initially released upon execution of a secured bond in the amount of $2,000,000, but Defendant's bond was later reduced to $600,000. On 16 September 2008, Tony L. Barnes, Larry D. Atkinson, and Richard L. Lowry (collectively Sureties) executed appearance bonds in the amounts of $20,000, $10,000, and $570,000 respectively, for a total secured bond in the amount of $600,000. Defendant failed to appear in superior court when called on 18 February 2009, and the Deputy Clerk of Johnston County Superior Court issued a Bond Forfeiture Notice (Form AOC-CR-213) to each of the Sureties on 23 February 2009. The notice informed each Surety of Defendant's failure to appear and indicated that the forfeiture would become final judgment on 23 July 2009 unless, on or before that date, evidence of one of the exclusive statutory grounds for setting aside a bond forfeiture was presented to the court.
Defendant is not a party to this appeal.
On 22 July 2009, Sureties filed a joint motion that was misleadingly captioned "Motion for Remission of Forfeiture," as it was intended as a motion to set aside the bond forfeitures under N.C. Gen. Stat. § 15A-544.5 and not as a motion for remission of the forfeited bonds under N.C. Gen. Stat. § 15A-544.8, which provides for relief from final judgment of forfeiture for extraordinary cause. The joint motion was attached to three copies of Form AOC-CR-213 (the same Bond Forfeiture Notice form which also contains a section captioned "Motion to Set Aside Forfeiture") for each individual Surety. Rather than marking which of the seven reasons listed served as the ground for setting the forfeiture aside, each Surety directed the clerk to review the documents attached to the motion as the basis therefor. Neither the Board nor the District Attorney of Johnston County filed any objection, and on or about 3 August 2009, the Clerk of Superior Court entered an order setting aside the bond forfeitures. The Board did not file an appeal from the clerk's order but, rather, moved for relief from judgment pursuant to Rule 60(b)(1), (4), and (6) of the North Carolina Rules of Civil Procedure. Following a hearing on the Board's motion to strike or vacate the clerk's order setting aside the bond forfeitures, the trial court denied the Board's request. Because we conclude that the clerk's order was void, we reverse in light of Rule 60(b)(4) and do not address the remaining subsections raised by the Board.
The order denying the Board's motion to vacate provides that "[i]n response to inquiry by the court, counsel for the sureties stated that his motion to set aside the forfeitures had been based on NCGS [§] 15A-544.5(b)(4)."
The form states: "Pursuant to G.S. 15A-544.5, the undersigned moves that the forfeiture entered on the date shown on the reverse side be set aside for the following reason(s)" and then provides a list of the grounds numbered one through seven, exactly as they appear in the statute, with a box preceding each. Instead of checking any of these boxes, Sureties circled the form's reference to "G.S. 15A-544.5" and wrote "See Attached Petition" at the top of the page.
Before we may examine the substantive merits of the Board's appeal, however, we must address Sureties' contention that this Court is without jurisdiction to hear the case. Sureties argue that "[t]he General Statutes are clear that there is only one way to litigate an order setting aside a bond forfeiture-i.e., by a direct appeal of the Clerk's orders, not pursuant to a Rule 60(b) motion."
Initially, we note that the trial court concluded that "[t]he North Carolina Rules of Civil Procedure, including Rule 60, apply to bond forfeiture proceedings under Article 26, Part 2 of Chapter 15A of the General Statutes of North Carolina" pursuant to State ex rel. Moore Cty. Bd. Of Educ. v. Pelletier, 168 N.C. App. 218, 606 S.E.2d 907 (2005). See also N.C. Gen. Stat. § 15A-544.5(h) (2009) ("An order on a motion to set aside a forfeiture is a final order or judgment of the trial court for purposes of appeal."). Sureties challenge this observation by the trial court and attempt to distinguish Petellier by arguing that in that case, the school board filed both Rule 59 and Rule 60(b) motions. Sureties contend that where the school board in Petellier thus "took a direct appeal from the clerk's order setting aside the bond forfeiture, and also appealed from the denial of its Rule 60 motion collaterally attacking that order," the Board in this case "did not file a Rule 59 motion for [a] new trial, or a motion for reconsideration of the clerk's orders" and therefore "cannot collaterally attack the clerk's orders by filing a Rule 60 motion."
However, Sureties fail to cite any authority in support of this purported distinction, nor does Petellier stand for the proposition Sureties advocate. For, in Petellier, this Court noted that while N.C. Gen. Stat. § 15A-544.8(a) sets out that "[t]here is no relief from a final judgment of forfeiture except as provided in this section, . . . this does not necessarily mean . . . that a bond forfeiture proceeding is governed by the North Carolina Rules of Criminal Procedure." Petellier, 168 N.C. App. at 221, 606 S.E.2d at 909 (internal quotation marks omitted). Acknowledging its ancillary nature to the underlying criminal proceeding, we held that a bond forfeiture action is a civil matter, and our conclusion that the civil procedure rules applied was not limited to the specific rules at issue in that case. See id. at 222, 606 S.E.2d at 909 ("[W]e hold the Board properly proceeded by moving for a new trial or relief from order granting relief from forfeiture under Rules 59(a) and 60(b), and the trial court erred as matter of law in concluding that the Board's motion must be denied without consideration of its merits on the grounds that the Board improperly attempted to proceed under the North Carolina Rules of Civil Procedure."). Accordingly, we overrule Sureties' argument that it was improper for the trial court to consider the Board's Rule 60(b) motion and that the Board's appeal should be dismissed.
We review the trial court's determination under Rule 60(b)(4) for an abuse of discretion. See Boseman v. Jarrell, 199 N.C. App. 128, 133, 681 S.E.2d 374, 377 (2009) (holding appellate review of a denial of a motion for relief from final judgment on the basis that the judgment is void is limited to whether the court abused its discretion). Rule 60(b)(4) of the North Carolina Rules of Civil Procedure provides that "[o]n motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding [if] . . . [t]he judgment is void." N.C. Gen. Stat. § 1A-1, Rule 60(b)(4) (2009). Where a Rule 60(b)(4) motion is proper only "where a judgment is `void' as that term is defined by the law," a void judgment arises "only when the issuing court has no jurisdiction over the parties or subject matter in question or has no authority to render the judgment entered." Burton v. Blanton, 107 N.C. App. 615, 616, 421 S.E.2d 381, 382 (1992).
The trial court made the following pertinent findings:
5. NCGS [§] 15A-544.5(b) provides, in relevant part, "A forfeiture shall be set aside for any one of the following reasons, and none other" and thereafter sets forth seven grounds upon which an order of forfeiture may be based.
6. The fourth reason listed under this statute for setting aside an order of forfeiture is that: "The defendant has been served with an Order for Arrest for the Failure to Appear on the criminal charge in the case in question as evidenced by a copy of an official court record, including an electronic record." NCGS [§] 15A-544.5(b)(4). (italics added).
7. On July 22, 2009, the sureties filed a motion captioned "Motion for Remission of Forfeiture." The introductory paragraph of the sureties' motion states that they moved the court "pursuant to N.C. Gen. Stat. [§] 15A-544.1, et seq., for relief from an order of forfeiture."
8. Paragraph No. 9 of the sureties' motion alleged: "Upon information and belief, the defendant has been, or shortly will be, apprehended and served with an arrest warrant by authorities in the country of Mexico."
9. Sureties attached to their motion three copies of form AOC-CR-213, one signed by each surety.
10. The back side of form AOC-CR-213 sets forth verbatim that part of NCGS [§] 15A-544.5(b) listing the seven reasons for setting aside a forfeiture and allows a surety to assert his basis by simply checking a box in front of the applicable statutory reason.
11. The sureties did not check any of these boxes, but instead wrote at the top of the back side of the form the words "See attached petition."
12. Sureties further attached to their motion copies of numerous emails from federal law enforcement officials describing their efforts to apprehend defendant, believed to be in the country of Mexico.
13. Sureties' motion was not accompanied by any official court record from any jurisdiction verifying that the defendant had been served with an order for arrest for failing to appear in this case.
14. Counsel for the sureties served the sureties' motion by hand delivery to the offices of the district attorney and the attorney for the board of education on July 22, 2009.
15. NCGS [§] 15A-544.5(d) provides that, upon the filing and service of a motion to set aside a forfeiture:
(3) Either the district attorney or the county board of education may object to the motion by filing a written objection in the office of the clerk and serving a copy on the nonmoving party.
(4) If neither the district attorney nor the board of education has filed a written objection to the motion by the tenth day after the motion is served, the clerk shall enter an order setting aside the forfeiture.
(italics added).
16. Neither the district attorney nor the Board of Education filed a written objection to the sureties' motion in this matter.
(alterations omitted). The trial court first concluded that, despite "the misleading caption" of Sureties' motion, their "tenuous claim" under N.C. Gen. Stat. § 15A-544.5(b)(4), and their "loose compliance" with the rules governing bond forfeitures, the district attorney and Board "had actual notice of the nature of the relief sought" and "failed to object within ten days." The trial court then stated that N.C. Gen. Stat. § 15A-544.5(d)(4):
does not provide that the clerk should consider the merits of a motion to set aside a forfeiture or the sufficiency of the documentation attached to the motion if neither the district attorney nor the board of education files a written objection to the motion. To the contrary, the statute requires the clerk to set aside the forfeiture if no written objection is filed.
The court then concluded that the clerk's order setting aside the bond forfeitures "was not void so as to warrant relief under Rule 60(b)(4) in that the clerk had jurisdiction over the parties and the subject matter and had authority to render the order entered."
However, this conclusion is contrary to our Court's decision in State v. Sanchez, 175 N.C. App. 214, 623 S.E.2d 780 (2005), which suggests that the clerk did not, in fact, have authority to render the order setting the forfeitures aside. In Sanchez, the sureties moved to set aside the bond forfeiture based on a lack of notice, but this Court noted that the "motion to set aside the entry of forfeiture was not premised on any ground set forth in G.S. § 15A-544.5." Id. at 218, 623 S.E.2d at 782. Emphasizing the clear statutory language that "[t]here shall be no relief from a forfeiture except as provided in [this] section," and that "[a] forfeiture shall be set aside for any one of the [reasons set forth in Section (b)(1-7)], and none other," N.C. Gen. Stat. § 15A-544.5(a)-(b) (2009), we held that "[t]he trial court, then, lacked the authority to grant surety's motion." Id. (internal quotation marks omitted). We acknowledge that Sureties' motion in this case more closely resembles one of the grounds set forth in the statute and that the trial court correctly recognized the relevant justification for setting aside a forfeiture. However, subsection (b)(4) explicitly lays out that, to qualify for this ground, the defendant must have " been served with an Order for Arrest for the Failure to Appear on the criminal charge in the case in question" and such must be "evidenced by a copy of an official court record [.] "N.C. Gen. Stat. § 15A-544.5(b)(4) (emphasis added). Moreover, the statute also establishes "the only procedure for setting [the forfeiture] aside," the first step of which requires "the defendant or any surety on a bail bond [to] make a written motion that the forfeiture be set aside, stating the reason and attaching the evidence specified in subsection (b) of this section" within 150 days of the forfeiture notice. N.C. Gen. Stat. § 15A-544.5(d)(1) (emphasis added).
While the trial court relied on subsection (d)(4), which provides that the clerk shall set aside the forfeiture if neither the district attorney nor the board of education file a written objection to the surety's motion, it is clear that our legislature intended for this requirement to be triggered if, and only if, the clerk has authority to enter an order setting the forfeiture aside in the first place. For, if the clerk could set aside the forfeiture based on a lack of objection even when the motion itself is inadequate in its failure to comply with "the only procedure for setting it aside," § 15A-544.5(d)(1) would be rendered useless. See In re K.W., 191 N.C. App. 812, 815, 664 S.E.2d 66, 68 (2008) ("In interpreting a statute, we must presume the legislature meant for every word and provision to have meaning, and that interpretation, if possible, does not render any provision meaningless."); see also Jackson v. Board of Adjustment, 275 N.C. 155, 167, 166 S.E.2d 78, 86 (1969) (specifying that "[w]hen a statute . . . prescribes two or more prerequisites to official action, the presumption is that none of them is a mere repetition of the others[,]" as "[a]ll parts of the same statute dealing with the same subject are to be construed together as a whole," giving effect to every part thereof). Thus, read as in context with and as a part of the composite whole, § 15A-544.5(d)(4), requiring the clerk to set aside a forfeiture upon a failure to object, comes into play only if the trial court has authority to grant the surety's motion under subsection (b).
The exclusive reasons for which a forfeiture will be set aside, as provided in subsection (b), include only the following:
(1) The defendant's failure to appear has been set aside by the court and any order for arrest issued for that failure to appear has been recalled, as evidenced by a copy of an official court record, including an electronic record.
(2) All charges for which the defendant was bonded to appear have been finally disposed by the court other than by the State's taking dismissal with leave, as evidenced by a copy of an official court record, including an electronic record.
(3) The defendant has been surrendered by a surety on the bail bond as provided by G.S. 15A-540, as evidenced by the sheriff's receipt provided for in that section.
(4) The defendant has been served with an Order for Arrest for the Failure to Appear on the criminal charge in the case in question as evidenced by a copy of an official court record, including an electronic record.
(5) The defendant died before or within the period between the forfeiture and the final judgment as demonstrated by the presentation of a death certificate.
(6) The defendant was incarcerated in a unit of the North Carolina Department of Correction and is serving a sentence or in a unit of the Federal Bureau of Prisons located within the borders of the State at the time of the failure to appear as evidenced by a copy of an official court record or a copy of a document from the Department of Correction or Federal Bureau of Prisons, including an electronic record.
(7) The defendant was incarcerated in a local, state, or federal detention center, jail, or prison located anywhere within the borders of the United States at the time of the failure to appear, and the district attorney for the county in which the charges are pending was notified of the defendant's incarceration while the defendant was still incarcerated and the defendant remains incarcerated for a period of 10 days following the district attorney's receipt of notice, as evidenced by a copy of the written notice served on the district attorney via hand delivery or certified mail and written documentation of date upon which the defendant was released from incarceration, if the defendant was released prior to the time the motion to set aside was filed.
N.C. Gen. Stat. § 15A-544.5(b).
Here, although Sureties' claimed ground more closely resembles one specified in the statute than was the case in Sanchez, the fact that Sureties believed that Defendant has been or shortly will be apprehended and served with an arrest warrant in Mexico does not allow Sureties to proceed under subsection (b)(4), which requires service of an order for arrest and inclusion of an official court record. Thus, we conclude that our holding in Sanchez controls, and the clerk lacked the authority to grant Sureties' motion, even where the district attorney and Board failed to object thereto, because the motion to set aside the forfeiture was not premised on any of the precise seven grounds explicitly set forth in N.C. Gen. Stat. § 15A-544.5(b). This is not to say that the clerk is required to consider the merits of the motion or the sufficiency of the documentation actually attached, but when the claimed reason or reasons for relief from forfeiture do not come within the purview of the statute or the requisite documentation is entirely absent, the clerk is without authority to grant the motion. We also note that sureties who post bond for the appearance of defendants are not without recourse if their motion to set aside the forfeiture fails for inapplicability of § 15A-544.5(b) or for any other reason. As in this case, where Sureties attached copious documentation describing their efforts to apprehend Defendant but fell short of verifying service of an arrest warrant, N.C. Gen. Stat. § 15A-544.8(b)(2) specifically allows for discretionary relief from final judgment of forfeiture for extraordinary circumstances.
We reverse and remand with instructions for the trial court to either dismiss Sureties' motion or deny the same for the reasons set forth herein.
Reversed and Remanded.
Judges McGEE and HUNTER, JR. concur.
Report per Rule 30(e).