Opinion
No. COA04-748
Filed 5 April 2005 This case not for publication
Appeal by surety from order entered 28 January 2004 by Judge Anderson D. Cromer in Guilford County Superior Court. Heard in the Court of Appeals 17 February 2005.
Brooks, Pierce, McLendon, Humphrey Leonard, L.L.P., by Jill R. Wilson and C. Robin Britt, Jr., for Guilford County Board of Education. Andresen Vann, by Kenneth P. Andresen and Christopher M. Vann, for surety appellant.
Guilford County Nos. 02 CRS 101195-98.
Aegis Security Insurance Company (surety) appeals from an order entered 28 January 2004 denying its motion for relief from final judgment of forfeiture. We affirm.
The relevant procedural history of this case is as follows: On 20 December 2002 surety signed, by the signature of its attorney in fact, an appearance bond in the amount of $250,000.00 for the pretrial release of criminal defendant Ernestor Zuniga Banuelos (Banuelos) who was charged with offenses related to trafficking in cocaine. The terms of the appearance bond required that Banuelos appear "whenever required" by the court and that he "at all times remain amenable to the orders and processes of the [c]ourt."
On 27 January 2003 Banuelos failed to appear for a court appearance. He was "called and failed" in open court, and his appearance bond was ordered forfeited. The order of forfeiture listed 27 January 2003 as the date of forfeiture, and 4 July 2003 as the date the forfeiture would become final. The notices of forfeiture were mailed no sooner than 4 February 2003, and no later than 6 February 2003. Consequently, by operation of law, the order of forfeiture became a final judgment no later than 6 July 2003. See N.C.G.S. 15A-544.6 (2003) ("A forfeiture . . . becomes a final judgment . . . on the one hundred fiftieth day after notice is given[.]").
On 26 November 2003 surety moved, pursuant to N.C.G.S. § 15A-544.8(b)(1), to vacate the final judgment of forfeiture on the grounds that the clerk failed to provide notice of the entry of forfeiture as required by N.C.G.S. § 15A-544.4. This motion was heard in superior court on 12 January 2004.
The evidence presented at the hearing is summarized as follows: Guilford County Assistant Clerk of Court Tasha Harrell (Harrell) testified that, though she could not recall preparing surety's specific notice of forfeiture, she had prepared and mailed surety's notice according to her regular office procedures. Once a criminal defendant's bond is ordered forfeited, the courtroom clerk brings the court file to Harrell, who then issues the bond forfeiture notices. Harrell creates the computer-generated notices by entering the "call and failed" date along with the surety's address for each criminal defendant into the court's computer system. Copies are printed for the criminal defendant, the surety, and for the clerk's records. Harrell "checks" the deputy clerk of superior court "box" next to her type-written signature on each form and puts each notice (excluding the copy retained in the clerk's records) in a properly addressed envelope. She places the envelopes in an "office basket" for outgoing mail. Harrell further testified that, according to regular office procedures, another employee later picks up the outgoing mail from the office mail basket, takes it to the mail room (where proper postage is affixed), and mails it. In this way, according to Harrell, notices are placed "in the first-class mail."
After examining her signature on the copy of the forfeiture notice retained for the clerk's records, Harrell was able to testify "with a reasonable degree of certainty" that she had issued and served the notice on surety. According to regular office procedures, all envelopes containing notices returned undelivered are placed in the court file. Consistent with this practice, the envelope containing the notice of forfeiture mailed to Banuelos, yet returned undelivered, was attached to the court file. There was no evidence that the notice mailed to surety had been returned undelivered. Moreover, based upon her examination of the date stamp on the undelivered envelope addressed to Banuelos, Harrell testified that the notice to surety was actually mailed 6 February 2003, not 4 February 2003 as indicated in her certificate of service.
Kelly Fitzpatrick, an assistant manager in the risk department of Capitol Bonding Corporation, the designated recipient of surety's bond forfeiture notices, testified that surety had not received the notice of forfeiture. Fitzpatrick explained the regular procedures for receiving notices of forfeiture in her office in Reading, Pennsylvania. Mail is received in one general location at the company and then routed to the correct agent. Since North Carolina is one of the states for which she is responsible, Fitzpatrick receives all the mail pertaining to bonds underwritten by surety in North Carolina. When forfeiture notices are received, she enters the data in a computer and keeps hard copies of them in a file next to her desk. Hard copies of notices of forfeiture are secured in filing cabinets in various departments. Copies of forfeiture notices are also sent to the recovery department.
When Fitzpatrick received the letter from the North Carolina Department of Insurance listing the defendant and bond owed, she searched her computer records and hard files for the notice of forfeiture but was unable to locate it. In the four years she had worked in her department, she had not lost a North Carolina notice of forfeiture in-house. Fitzpatrick testified that "every so often" she failed to receive forfeiture notices. Fitzpatrick testified that she had filed seven to ten affidavits claiming lack of service in various counties in North Carolina, including Gaston, Wake, Alamance, Catawba, Cumberland, Forsyth, and Randolph Counties. She testified that the address on the forfeiture notice in question was correct.
On 28 January 2004 the trial court entered an order denying surety's motion for relief from final judgment. The order included, in pertinent part, the following findings of fact:
. . . .
2. On January 27, 2003, the Honorable Catherine C. Eagles ordered the bonds be forfeited to the Guilford Board of Education.
3. Following the entry of the forfeiture, and pursuant to N.C.G.S. 15A-544, the Clerk of Superior Court, through its employee Tasha Harrell (herinafter "the Clerk") mailed to Aegis the Notice of hearing on the forfeiture on February 6, 2003, less than 30 days before the time for mailing the notice expired. The Court finds that the Surety was provided notice provided in N.C.G.S. 15A-544.4.
4. As of the date of the hearing, January 12, 2004, the Defendant has not been arrested and the bond is still outstanding.
5. No extraordinary cause exists to support the movant's position.
Based on these findings, the trial court made the following conclusions of law:
1. Aegis has failed to establish that it did not receive notice as required by law.
2. Aegis has failed to establish that extraordinary cause exists to vacate the judgment of the Honorable Catherine Eagles entered on January 27, 2003.
From this order, surety now appeals.
Preliminarily, we observe that surety has failed to preserve its assignments of error numbers 1, 3, and 5 for failure to argue them in its brief. Accordingly, they are deemed abandoned. See N.C.R. App. P. 28(b)(6).
Furthermore, surety's final argument, that any construction or application of N.C.G.S. § 15A-544.4 not requiring forfeiture notices to be actually received by sureties violates its constitutional right to due process, is not properly before us on appeal. The assignment of error referred to does not assert that surety's constitutional rights to due process were violated. Arguing an issue not assigned as error is a substantial violation of the requirements set forth in N.C.R. App. P. 10. See N.C.R. App. P. 10(a) ("[T]he scope of review on appeal is confined to a consideration of those assignments of error set out in the record[.]"). Furthermore, this issue was not presented to the trial court for a ruling as required by N.C.R. App. P. 10. See N.C.R. App. P. 10(b)(1) ("In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion[.]"). Accordingly, this issue is not properly before us and we do not address it. See State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991) ("This Court will not consider arguments based upon matters not presented to or adjudicated by the trial tribunal.") (citation omitted).
We next consider the argument that surety has properly preserved for appellate review. Surety contends that finding of fact number 3 is unsupported by the evidence and therefore does not support conclusion of law number 1. Specifically, surety argues that the actions on the part of the clerk of court did not constitute "mailing" the notice of forfeiture as required by N.C.G.S. § 15A-544.4. On this basis, surety argues that (1) the presumption of regularity generally accorded to the official acts of public officers does not attach, and (2) that, because the only competent evidence in the record demonstrates surety did not actually receive the notice of forfeiture, the trial court was compelled to conclude that notice of forfeiture was not "given" pursuant to N.C.G.S. § 15A-544.4. We disagree.
N.C.G.S. § 15A-544.8 (2003) sets out the limited circumstances under which a trial court has authority to set aside a judgment of forfeiture:
(a) Relief Exclusive. — There is no relief from a final judgment of forfeiture except as provided in this section.
(b) Reasons. — The court may grant the defendant or any surety named in the judgment relief from the judgment, for the following reasons, and none other:
(1) The person seeking relief was not given notice as provided in G.S. 15A-544.4.
(2) Other extraordinary circumstances exist that the court, in its discretion, determines should entitle that person to relief.
(emphasis added).
In turn, N.C.G.S. § 15A-544.4 (2003) defines how the notice of forfeiture must be given:
(a) The court shall give notice of the entry of forfeiture by mailing a copy of the forfeiture to the defendant and to each surety whose name appears on the bail bond. (b) The notice shall be sent by first-class mail to the defendant and to each surety named on the bond at the surety's address of record. (c) If a bail agent on behalf of an insurance company executed the bond, the court shall also provide a copy of the forfeiture to the bail agent, but failure to provide notice to the bail agent shall not affect the validity of any notice given to the insurance company. (d) Notice given under this section is effective when the notice is mailed. (e) Notice under this section shall be mailed not later than the thirtieth day after the date on which the forfeiture is entered. If notice under this section is not given within the prescribed time, the forfeiture shall not become a final judgment and shall not be enforced or reported to the Department of Insurance.
(emphasis added).
In addition to these statutory provisions, our review is guided by numerous principles of common law. "The well established rule is that findings of fact made by the court in a non-jury trial have the force and effect of a jury verdict and are conclusive on appeal if there is evidence to support them[.]" Henderson County v. Osteen, 297 N.C. 113, 120, 254 S.E.2d 160, 165 (1979) (citation omitted). A trial court's conclusions of law, however, are reviewable de novo. Wright v. Auto Sales, Inc., 72 N.C. App. 449, 452, 325 S.E.2d 493, 495 (1985).
There is no requirement that the clerk of court herself carry notices to the post office in order to "mail" them. See York v. York, 271 N.C. 416, 420, 156 S.E.2d 673, 675 (1967) ("The clerk of court in Mecklenburg County would be able to do little except carry letters to the post office if he were physically and personally required to mail them.").
Official actions taken by public officers in North Carolina are accorded the presumption of regularity. See Huntley v. Potter, 255 N.C. 619, 628, 122 S.E.2d 681, 687 (1961) (defining the presumption of regularity as "the presumption that public officials will discharge their duties in good faith and exercise their powers in accord with the spirit and purpose of the law.") (citations and internal quotation marks omitted). Accordingly, the official actions of clerks of court are afforded this presumption of regularity. See Town of Winston v. Scott, 80 N.C. App. 409, 415, 342 S.E.2d 560, 564 (1986) ("When the Clerk of Court certifies that the execution of an instrument has been properly proven the presumption is that the document was properly executed."). Thus, for example, the mailing of notices of tax foreclosures, prepared by an assistant clerk of court for mailing through the sheriff's department, is accorded the presumption of regularity. Osteen, 297 N.C. at 117, 254 S.E.2d at 163. The presumption of regularity of official acts is a "true presumption rather than an inferential one." Id. at 118, 254 S.E.2d at 163. "[T]he presumption is only one of fact and is therefore rebuttable. But, in order for the [defendant] to rebut the presumption he must produce `competent, material and substantial' evidence. . . .'" Id. (quoting In re Appeal of Amp, Inc., 287 N.C. 547, 563, 215 S.E.2d 752, 762(1975)). "Evidence of nonreceipt of the letter by the addressee . . . is some evidence that the letter was not mailed[.]" Wilson v. Claude J. Welch Builders, 115 N.C. App. 384, 386, 444 S.E.2d 628, 629 (1994) (citations omitted).
Applying these principles and the relevant statutes to the facts of the instant case, we conclude that the trial court's finding of fact, that the clerk of court "mailed" the notice of forfeiture, was supported by sufficient evidence in the record. We further conclude that the trial court correctly concluded that "Aegis has failed to establish that it did not receive notice as required by law."
Assistant Clerk of Court Harrell testified not only about the regular practices of the clerk's office for preparing, collecting, and mailing outgoing mail, but also about the specific practices concerning the printing and mailing of forfeiture notices. She explained the office practice for depositing notices into the U.S. mail: the notices she prepared for mailing were placed in the basket for outgoing mail and were later picked up by an employee responsible for collecting and mailing the outgoing mail. Harrell's testimony helped establish that a notice to surety was, indeed, placed into the U.S. mail. There was no affirmative evidence that either Harrell or anyone else in the Clerk of Court's office failed to follow standard practices for depositing notices into the U.S. mail. Furthermore, the fact that defendant Banuelos' notice had been returned through the mail presented strong circumstantial evidence that surety's notice had been mailed as well.
We recognize that the testimony of surety's employee tended to show that surety did not receive the notice of forfeiture, and that this was relevant to the question of whether or not the clerk had mailed the notice. However, the trial court, after considering this along with the other evidence in the record, could properly conclude that the clerk had given notice in compliance with G.S. § 15A-544.4.
We hold that the evidence in the instant case was sufficient to support the trial court's finding that the assistant clerk of court mailed the notice in compliance with G.S. § 15A-544.4. This finding of fact supports the trial court's conclusion that surety had failed to establish that it had not received notice as required by G.S. § 15A-544.4. The corresponding assignments of error are overruled.
Affirmed.
Judges TIMMONS-GOODSON and BRYANT concur.
Report per Rule 30(e).