Opinion
No. COA13–33.
2013-07-16
STATE of North Carolina, Plaintiff v. Roger Lee COOK, Defendant and David J. Exum, and Seneca Insurance Company, Inc., Sureties.
Taylor & Brown, P.A., by Lee F. Taylor, for plaintiff-appellant. Roberts & Stevens, P.A., by Ann–Patton Hornthal, for surety-appellees.
Appeal by plaintiff from order entered 28 September 2012 by Judge C. Randy Pool in McDowell County District Court. Heard in the Court of Appeals 22 May 2013. Taylor & Brown, P.A., by Lee F. Taylor, for plaintiff-appellant. Roberts & Stevens, P.A., by Ann–Patton Hornthal, for surety-appellees.
CALABRIA, Judge.
The McDowell County Board of Education (“plaintiff”) appeals the trial court's order granting Seneca Insurance Company, Inc. & David J. Exum's (collectively “sureties”) motion to set aside the forfeiture of an appearance bond (“motion to set aside”) and denying plaintiff's motion for sanctions. We affirm.
I. Background
On 27 June 2012, Roger Lee Cook (“defendant”) was arrested for larceny of a motor vehicle. Defendant was released on a $15,000 appearance bond issued by sureties. On 29 June 2012, defendant failed to appear in the McDowell County District Court, an order for arrest (“OFA”) was issued, and his bond was forfeited. On 3 July 2012, defendant was arrested and served with the OFA. On 12 July 2012, sureties filed a motion to set aside on the basis that defendant had been served with an OFA. However, sureties failed to attach documentation evidencing that defendant had been served with the OFA. On 30 July 2012, plaintiff filed an objection to sureties' motion to set aside. On 14 September 2012, sureties filed an amended motion to set aside which included documentation that defendant had been served with an OFA. However, the amended motion neglected to indicate the reason to set aside the forfeiture. On 28 September 2012, the trial court granted sureties' motion. Plaintiff appeals.
II. Motion to Dismiss
As an initial matter, we address sureties' motion to dismiss the appeal. In their motion, sureties argue that plaintiff failed to serve notice of appeal upon defendant pursuant to Rule 3 of the North Carolina Rules of Appellate Procedure, and therefore this Court lacks jurisdiction.
Pursuant to Rule 3,
[a]ny party entitled by law to appeal from a judgment or order of a superior or district court rendered in a civil action or special proceeding may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties within the time prescribed by subsection (c) of this rule.
N.C.R.App. P. 3(a) (2013). In Lee v. Winget Rd., LLC, this Court held that, pursuant to this Rule, “all other parties” at the trial level, including non-appealing parties, must be served with a copy of the notice of appeal. 204 N.C.App. 96, 99, 693 S.E.2d 684, 688 (2010). As a result, the Court found that the appellants failed to comply with Rule 3 by failing to serve the non-appealing plaintiffs. Id. at 100–01, 693 S.E.2d at 688. The Court dismissed the case “[b]ecause two of the parties. were never informed of the fact that there was an appeal which affects their interests [and] this Court has no way of knowing the positions these parties would have taken in this appeal.” Id. at 103, 693 S.E.2d at 690.
However, the statutory rules governing the procedure for seeking relief from bond forfeiture render Lee inapplicable to the instant case, as it is clear under these statutes that defendant was not a party to the adjudication of sureties' motion. N.C. Gen.Stat. § 15A–544.8(c)(1) (2011) permits “[t]he defendant[,]” “[a]ny surety[,]” “[a] professional bondsman or a runner acting on behalf of a professional bondsman[,]” or “[a] bail agent acting on behalf of an insurance company” to file a motion to set aside a final judgment of bond forfeiture. The moving party is then required to “serve a copy of the motion on the district attorney for that county and on the attorney for the county board of education.” N.C. Gen.Stat. § 15A–544.8(c)(2) (2011). There is no requirement to serve the motion on any other party that was liable under the forfeiture judgment. At the hearing on the motion to set aside, the trial court may only grant the moving party “any relief from the judgment that the court considers appropriate[.]” N.C. Gen.Stat. § 15A–544.8 (c)(4) (2011). Finally, the statute specifically provides that “[t]he finality of a final judgment of forfeiture shall not be affected, as to any party to the judgment, by the filing of a motion by, or the granting of relief to, any other party .” N.C. Gen.Stat. § 15A–544.8(e) (2011).
According to these statutory provisions, the filing of a motion to set aside initiates a proceeding between only the party or parties filing the motion and the State. Any other parties who were liable under the bond forfeiture judgment are not parties to the motion to set aside and their rights are not affected by its adjudication. Since defendant was not a party to sureties' motion to set aside, he was not a party to the proceedings which precipitated this appeal. Thus, sureties were not required to serve their notice of appeal on defendant pursuant to N.C.R.App. P. 3 (2012). Sureties' motion to dismiss is denied.
III. Motion to Set Aside Forfeiture
Plaintiff argues that the trial court erred by granting sureties' motion to set aside. Specifically, plaintiff contends that because sureties failed to attach documentation indicating that defendant had been served with the OFA when they initially filed their motion, the trial court lacked authority to set aside the bond forfeiture. We disagree.
“In a hearing on a motion to set aside a bond forfeiture, the standard of review for this Court is whether there was competent evidence to support the trial court's findings of fact and whether its conclusions of law were proper in light of such facts.” State v. Adams, ––– N.C.App. ––––, ––––, 725 S.E.2d 94, 95 (2012)(internal quotations and citation omitted).
When a defendant is released upon execution of a bail bond and fails to appear in court, “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) (2011). At any time before the expiration of 150 days after the date on which the forfeiture notice is given, a party may make a written motion to have the forfeiture set aside. N .C. Gen.Stat. § 15A–544.5(d)(1) (2011). “The written motion shall state the reason for the motion and attach to the motion the evidence specified in subsection (b) ....“ Id. A party seeking to set aside the forfeiture may only obtain relief for one of seven reasons set forth in N.C. Gen.Stat. § 15A–544.5(b) (2011). See State v. Sanchez, 175 N.C.App. 214, 218, 623 S.E.2d 780, 782 (2005).
Pursuant to N.C. Gen.Stat. § 15A–544.5(b)(4) (2011), if “[a] 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,” forfeiture shall be set aside. In the instant case, it is undisputed that after his failure to appear, defendant was served with an OFA on 3 July 2012. Thus, defendant's bond forfeiture could be set aside under the statute. However, sureties initially failed to attach the appropriate documentation to its motion to set aside as required by N.C. Gen.Stat. § 15A–544.5 (d)(1) (2011). Sureties later filed an “amended” motion which attached the relevant documentation but failed to indicate its reason for seeking to have the forfeiture set aside.
Plaintiff argues that the trial court could not consider this “amended” motion because N.C. Gen.Stat. § 15A–544.5(e) bars a party from filing any document other than one motion to set aside. Plaintiff is mistaken. That statute states that “[n]o more than one motion to set aside a specific forfeiture may be considered by the court.” N.C. Gen.Stat. § 15A–544.5(e) (2011). We interpret the subsection as merely prohibiting a trial court from considering and ruling on more than one motion to set aside from the same party, regardless of whether the motion ultimately ruled upon is an original motion or an amended motion.
In the instant case, the trial court found that sureties filed an original motion and an amendment which supplemented the original motion, not two motions. The amendment was filed prior to the hearing on sureties' motion and within the statutory time limit pursuant to N.C. Gen.Stat. § 15A–544.5(d)(1), thus preventing any unfair prejudice to plaintiff. The better practice would have been to file a motion to set aside together with its required documentation at the same time. However, we find that that the trial court properly considered both the original motion and the amendment, because together those two filings met the statutory requirements of N.C. Gen.Stat. § 15A544.5 (d)(1). Therefore, we hold that the trial court correctly concluded that good grounds existed to set aside the forfeiture of sureties' bond. This argument is overruled.
We do not address the issue of whether a motion to set aside filed within the statutory time limit could be amended after the expiration of that limit, since it is not before us.
IV. Sanctions
Plaintiff argues that the trial court erred in denying its motion for sanctions when sureties failed to attach the correct documentation to their initial motion. N.C. Gen.Stat. § 15A544.5 (d)(8) (2011) provides that
[i]f at the hearing [on the motion to set aside] the court determines ... that the documentation required to be attached ... was not attached to the motion at the time the motion was filed, the court may order monetary sanctions against the surety filing the motion, unless the court also finds that the failure to sign the motion or attach the required documentation was unintentional.
(Emphasis added). The decision as to whether to impose sanctions is discretionary under the statute. See In re Hardy, 294 N.C. 90, 97, 240 S.E.2d 367, 372 (1978)(“Ordinarily when the word ‘may’ is used in a statute, it will be construed as permissive and not mandatory.”). Consequently, the trial court's ruling will not be disturbed absent an abuse of discretion. “An abuse of discretion results when an act is not done according to reason or judgment, but depending upon the will alone and done without reason.” State v. McCarn, 151 N.C.App. 742, 745, 566 S.E.2d 751, 753 (2002) (internal quotations and citations omitted).
In the instant case, the trial court's findings reflect that sureties filed an amendment to their original motion within the statutory period which included the required documentation. Since we have determined that this amendment appropriately corrected sureties' failure to attach the statutorily required documentation to their previously filed motion, we find no abuse of discretion in the trial court's decision to deny plaintiff's motion for sanctions. This argument is overruled.
V. Conclusion
The trial court properly found that sureties' motion to set aside and its subsequent amendment demonstrated that they were entitled to have their bond forfeiture set aside. The trial court did not abuse its discretion when it denied plaintiff's motion for sanctions. We affirm the trial court's order granting sureties' motion to set aside.
Affirmed. Judges STEELMAN and McCULLOUGH concur.
Report per Rule 30(e).