Opinion
No. 2 CA-CV 2017-0068
10-20-2017
IN RE BOND FORFEITURE IN PINAL COUNTY CAUSE NUMBER CR201602738
COUNSEL Samantha Dumond, Phoenix Counsel for Appellants Bailzona Bail Bonds and Nan Hummel Kent Volkmer, Pinal County Attorney By Craig Cameron, Deputy County Attorney, Florence Counsel for Appellee State of Arizona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pinal County
The Honorable Kevin D. White, Judge
AFFIRMED
COUNSEL Samantha Dumond, Phoenix
Counsel for Appellants Bailzona Bail Bonds and Nan Hummel Kent Volkmer, Pinal County Attorney
By Craig Cameron, Deputy County Attorney, Florence
Counsel for Appellee State of Arizona
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred. ECKERSTROM, Chief Judge:
¶1 Bailzona Bail Bonds appeals from the trial court's order forfeiting bond posted on behalf of Fernando Montes. For the following reasons, we affirm the finding of the trial court that Bailzona should have reasonably known of the risk that Montes would be deported.
Factual and Procedural Background
¶2 In November 2016, Nan Hummel, owner of Bailzona Bail Bonds, posted bond for Fernando Montes. In determining whether to post the bond, she reviewed "Arizona state-issued identification cards" from three of Montes's family members, all of which listed Arizona addresses. The family members put up three vehicles as collateral, all registered in Arizona. She "r[a]n a court check through the Pinal County Inmate Search system" and discovered that he had a $10,000 secured bond, but her search did not show any "bond hold." She then ran a "Public Access Search" and discovered that Montes "had outstanding cases in multiple jurisdictions." In particular, Montes had been convicted in Maricopa County Superior Court of an offense for which he was sentenced to probation. He was not deported at that time. She did not receive any documents indicating that any agency had placed an immigration hold on Montes.
¶3 Ms. Hummel did not seek any documentation from Montes's family regarding Montes's citizenship or legal presence in the United States. The record does not indicate that she ever inquired whether Montes was a United States citizen. However, Montes's arrest and booking records both clearly indicated that Montes "admitted he was not a citizen of the United States." Ms. Hummel testified that she was not aware that she could access those records, but the trial court noted that they are part of the public case file.
¶4 The United States deported Montes sometime between November 23 and December 19, although the exact date is not clear from the record. He failed to appear at a court hearing on December 19, and Bailzona requested the bond be exonerated. On December 30, the state filed a motion for an order to show cause why the bond should not be forfeited. The trial court held an evidentiary hearing on the matter and ultimately ordered forfeiture of the bond. Bailzona appealed.
Bond Forfeiture
¶5 Pursuant to A.R.S. § 13-3974(A)(3), a surety is relieved from liability on a bond if the defendant is transferred to the custody of another government agency and "(a) [t]he surety did not know and could not have reasonably known of the release or transfer or that a release or transfer was likely to occur" and "(b) [t]he defendant's failure to appear was a direct result of the release or transfer." Bailzona claims the trial court erred in concluding that it reasonably could have known that Montes was likely to be deported. We review a trial court's decision to forfeit a bond for an abuse of discretion, viewing the facts in the light most favorable to upholding the trial court's decision. See In re Bond Forfeiture in Pima Cty. Cause No. CR-20031154 (Pima Cty. Bond), 208 Ariz. 368, ¶ 2, 93 P.3d 1084, 1085 (App. 2004).
¶6 Bailzona argues the trial court abused its discretion in concluding that it reasonably could have known that Montes's deportation was likely, claiming the court "elevat[ed] the reasonableness standard." It maintains the record does not support the trial court's conclusion that Ms. Hummel could have accessed the case file and seen the arrest and booking records that clearly gave notice that Montes was not a citizen. In support of this argument, it cites the testimony from Ms. Hummel, claiming "she has never had access to these documents throughout her four years as a bail bond agent." However, Ms. Hummel's testimony establishes only that she did not believe she could access the case file and never attempted to do so.
¶7 Bailzona also claims the failure to look at the case file was reasonable because "the family contacted Ms. Hummel . . . toward the end of the workday . . . one day before Thanksgiving," and that she "would have needed to wait until the court was open," which would have left Montes waiting five days to be released. Bailzona has cited no authority for the proposition that such a delay is unreasonable.
¶8 Moreover, the trial court also noted in its ruling that Bailzona "failed to make other reasonable inquiry to determine [Montes]'s legal status in the United States," such as questioning family members or Montes himself. Bailzona has not made any argument as to why it was unreasonable to inquire about Montes's citizenship status before posting bond. "[A] surety should exercise care in ascertaining the defendant's circumstances and community ties before executing an appearance bond." Pima Cty. Bond, 208 Ariz. 368, ¶ 4, 93 P.3d at 1085. Bailzona has not met its burden of demonstrating the court abused its discretion in determining that it reasonably could have known Montes was likely to be deported. See Gen. Elec. Capital Corp. v. Osterkamp, 172 Ariz. 191, 193, 836 P.2d 404, 406 (App. 1992) (party who disagrees with judgment has burden to show court abused discretion).
Because § 13-3974(A)(3) requires a surety to show both that it did not know and could not reasonably have known a defendant was likely to be transferred and that the defendant's failure to appear resulted from the transfer, and Bailzona has not shown the court abused its discretion in concluding it reasonably could have known the transfer was likely, we need not consider Bailzona's arguments that the trial court erred in concluding Montes's deportation was not the cause of his failure to appear. --------
Attorney Fees
¶9 The state has requested its attorney fees in this action, noting that "this dispute is derived between a contract between the court and the surety." However, the state has not pointed to any contractual provision mandating such an award and has not explained why such an award is appropriate. See Ariz . R. Civ. App. P. 21(a)(2) (claim for fees must "specifically state the statute, rule, decisional law, contract, or other authority for an award of attorneys' fees"); see also Munger Chadwick, P.L.C. v. Farwest Dev. & Constr. of the SW, LLC, 235 Ariz. 125, ¶ 14, 329 P.3d 229, 232 (App. 2014) (attorney fees under § 12-341.01 discretionary). Accordingly, we deny the state's request for attorney fees.
Disposition
¶10 For the foregoing reasons, we affirm the judgment of the trial court.