Opinion
112,416.
07-24-2015
STATE of Kansas, Appellee, v. Cindy April EVANS, Appellee, and Heartland Bail Bonds, LLC, Appellant.
Zachary P. Roberson, of Roberson Law, LLC, of Olathe, for appellant. Steven J. Obermeier, deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Zachary P. Roberson, of Roberson Law, LLC, of Olathe, for appellant.
Steven J. Obermeier, deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., SCHROEDER and GARDNER, JJ.
MEMORANDUM OPINION
SCHROEDER, J.
Heartland Bail Bonds, LLC, (Heartland) appeals the district court's forfeiture of its $10,000 surety bond issued for the release of Cindy April Evans from custody pending trial. The bond was set for forfeiture because Evans failed to appear at a prior scheduled hearing. At the forfeiture hearing, the district court found Heartland failed to comply with K.S.A.2014 Supp. 22–2807(3) by not providing to the district court a sworn statement under penalty of perjury establishing Evans failed to appear because she was held in custody by another jurisdiction. Finding no error by the district court, we affirm.
Facts
Evans was charged with identity theft and obstruction of the legal process. Bond was set at $10,000 cash or surety. Heartland posted a $10,000 bond on Evans' behalf, and Evans was released from custody. The State subsequently filed a criminal fugitive case against Evans alleging she was a fugitive from Clay County, Florida, and issued a warrant for her arrest. Evans was arrested and transferred to the custody of the Clay County, Florida Sheriff's Office on January 16, 2014.
Due to her incarceration in Florida, Evans was physically unable to appear for her February 6, 2014, court appearance in Johnson County District Court for this case. When Evans missed her court date, at the request of the State, the district court judge ordered the forfeiture of Evans' appearance bond and the issuance of an arrest warrant. The State filed a motion for judgment on the bond against Heartland, and a hearing was scheduled for July 21, 2014.
At the July 21, 2014, hearing, an unidentified speaker, who appears to have been Heartland's agent, stated that Evans had missed the February 6, 2014, hearing because she was incarcerated in Florida on unrelated charges. The agent did not attempt to proffer any evidence to verify Evans' incarceration. In addition, Heartland did not file any evidence of Evans' incarceration with the district court prior to or after the hearing.
The district court found Heartland had posted a $10,000 appearance bond on Evans' behalf and that Evans had failed to appear at the February 6, 2014, hearing. The district court forfeited Heartland's $10,000 bond and granted the State judgment for $10,000 with 12% per annum interest.
Following the July 21, 2014, hearing, Heartland retained counsel and on August 1, 2014, filed a motion for reconsideration of the district court's ruling. At the hearing on the motion, Heartland argued the bond forfeiture should have been set aside pursuant to K.S.A.2014 Supp. 22–2807(3). However, no documentary evidence was presented to the district court showing Heartland had complied with the statutory requirements under K.S.A.2014 Supp. 22–2807(3) to set aside the bond forfeiture. The district court denied Heartland's motion. Additionally, the district court found Heartland had failed to follow the requirements of K.S.A.2014 Supp. 22–2807(3) by failing to present to the district court prior to judgment of default on the bond forfeiture, a statement signed by Heartland under penalty of perjury detailing Evans' incarceration.
The statute at issue, K.S.A.2014 Supp. 22–2807(3), provides:
“The court may direct that a forfeiture be set aside, upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture. If the surety can prove that the defendant is incarcerated somewhere within the United States prior to judgment of default by providing to the court a written statement, signed by the surety under penalty of perjury, setting forth details of such incarceration, then the court shall set aside the forfeiture. Upon the defendant's return, the surety may be ordered to pay the costs of that return.” (Emphasis added.)
Analysis
Did the district court err in ordering forfeiture of the bond?
Before we answer the question, we will address our standard of review. To the extent the question before us requires interpretation of K.S.A.2014 Supp. 22–2807(3), our review is unlimited. State v.. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. State v. Williams, 298 Kan. 1075, 1079, 319 P.3d 528 (2014). “ ‘When a statute is plain and unambiguous, an appellate court does not speculate about the legislative intent’ “ behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. State v. Brooks, 298 Kan. 672, 685, 317 P.3d 54 (2014) (quoting State v. Urban, 291 Kan. 214, 216, 239 P .3d 837 [2010] ). Where there is no ambiguity, the court need not resort to statutory construction. Phillips, 299 Kan. at 495. The language of K.S.A.2014 Supp. 22–2807(3) is clear and unambiguous.
Heartland makes a limited argument we must interpret and apply the word “shall” as it is used in K.S.A.2014 Supp. 22–2807(3). However, because Heartland is really contesting how the district court applied the statute at issue to the forfeiture of its bond, we decline to address statutory interpretation. Our standard of review is abuse of discretion. Did the district court abuse its discretion by forfeiting the bond given the lack of evidence presented?
A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013). An abuse of discretion occurs if discretion is guided by an erroneous legal conclusion or goes outside the framework of or fails to consider proper statutory limitations or legal standards. Graham v. Herring, 297 Kan. 847, 855, 305 P.3d 585 (2013). The party asserting the trial court abused its discretion bears the burden of showing such abuse of discretion. State v. Rojas–Marceleno, 295 Kan. 525, 531, 285 P.3d 361 (2012).
On appeal, Heartland focuses its argument on how the district court failed to properly apply the statute before forfeiting its bond. Heartland argues that at the July 21, 2014, forfeiture hearing, “Heartland's agent had in his possession the required written statement, as well as other documentation proving that [Evans] had been incarcerated in Florida since January 31, 2014.” The plain language of the statute provides Heartland had to present to the district court a written statement signed under penalty of perjury setting forth the details of Evans' incarceration prior to the hearing for the bond forfeiture. Heartland admits in its brief that it did not do this; however, it argues the district court should have, on its own initiative, (1) inquired as to the documentation the agent was holding at the hearing and (2) provided Heartland's agent an opportunity to submit evidence prior to rendering judgment on the bond. Heartland also argues that by bringing the required perjury statement with him to the hearing, Heartland's agent substantially complied with K.S.A.2014 Supp. 22–2807(3), and, thus, the district court erred when it ordered Heartland to pay the bond forfeiture. Furthermore, while Heartland admits its agent could have filed the documents in advance of the hearing, he did not because he had little knowledge of the district court's electronic filing system.
The statute does not require the district court to provide Heartland an opportunity to proffer the required evidence. It was Heartland's responsibility to file the required statement under oath prior to the hearing on the pending forfeiture. Heartland failed to present anything to the district court for its consideration on the pending bond forfeiture.
Heartland's argument that by showing up at the forfeiture hearing with the necessary documents, it substantially complied with the statute is not persuasive. First, claiming to have the documents but failing to provide them to the district court is not substantially complying with the plain language of the statute. The statute required Heartland to provide the court “prior to judgment of default ... a written statement, signed by the surety under penalty of perjury.” K.S.A.2014 Supp. 22–2807(3). Second, there is no evidentiary support in the record for Heartland's assertion it had the necessary “signed by the surety under penalty of perjury” documents at the bond forfeiture hearing. The burden is on the party making a claim to designate facts in the record to support that claim; without such a record, the claim of error fails. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 644, 294 P.3d 287 (2013). Finally, Heartland failed to support its argument of substantial compliance with pertinent authority or show why it was sound despite the lack of authority. “[F]ailure to support [a point] with pertinent authority or show why [it] is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue.” State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013).
Based on the plain language of the statute, the district court did not err by declining to set aside the bond forfeiture and resulting default judgment against Heartland on its surety bond pursuant to K.S.A.2014 Supp. 22–2807(3).
In its brief, Heartland raised a second issue requesting this court order the district court to comply in the future with the statutory requirements of K.S.A.2014 Supp. 22–2807(3). At the oral argument in this case, counsel for Heartland withdrew his request for this court to address that issue on behalf of Heartland. We accept Heartland's withdrawal of the issue and find no need to address it further.
Conclusion
We find the district court did not abuse its discretion and properly applied the statutory conditions of K.S.A.2014 Supp. 22–2807(3) in ordering the forfeiture of Heartland's bond issued for Evans' benefit. Heartland failed to comply with the statutory condition that it provide “a written statement, signed by the surety under penalty of perjury, setting forth details of such incarceration.” We affirm.
Affirmed.
LEBEN, J., concurring.
I agree that the district court did not abuse its discretion when it refused to set aside the forfeiture of Heartland Bail Bonds' $10,000 surety bond. My reasoning may differ slightly from that of the majority, though, so I will set it out briefly here.
Heartland Bail Bonds is right that under some circumstances the district court “shall” (here meaning must) set aside a bond forfeiture. See K.S.A.2014 Supp. 22–2807(3). That's required when, “prior to judgment of default,” the surety provides “a written statement, signed by the surety under penalty of perjury, setting forth details of [an] incarceration” elsewhere that prevented the defendant from being present for a court hearing here. If the defendant does so, then the court “shall set aside the forfeiture.” K.S.A.2014 Supp. 22–2807(3).
Here, the surety did not present such a statement before a default judgment was entered against it. Thus, the statute's provisions did not require that the district court set aside the bond forfeiture.
In other circumstances, where the court is not required to set aside the bond forfeiture, the decision is a discretionary one for the district court. See K.S.A.2014 Supp. 22–2807(3) (“The court may direct that a forfeiture be set aside ... if it appears that justice does not require the enforcement of the forfeiture.”) (Emphasis added.); State v. Sedam, 34 Kan.App.2d 624, 626, 122 P.3d 829 (2005), rev. denied 280 Kan. 990 (2006). A court abuses its discretion if its judgment call is so unreasonable that no reasonable person could agree with it or is based on an error of fact or law. State v. Reed, 302 Kan. –––, –––– P.3d, ––––, 2015 WL 4155409, at *8 (2015).
The district court did not abuse its discretion here. Heartland complains that the court should have asked its representative whether he had a statement complying with K.S.A.2014 Supp. 22–2807(3) in his possession when he appeared in court. That statute doesn't place such a duty on the district court. A bail bonding company has to file a variety of documents—including the bond itself—with the court. There's nothing unreasonable about requiring that a bail bonding company file or proffer a statement complying with K.S.A.2014 Supp. 22–2807(3) without requiring someone to ask it to do so.
K.S.A.2014 Supp. 22–2807(1) requires that an appearance bond be declared forfeited if the defendant fails to appear for a hearing as directed. That makes sense, of course: the bond secures the defendant's appearance. See State v. Dahmer, No. 99,384, 2009 WL 2242422, at *1, 4 (Kan.App.2009) (unpublished opinion); State v. Thammavong, No. 97,278, 2008 WL 762507, at *1–2 (Kan.App.2008) (unpublished opinion).
The district court concluded that Heartland had posted its bond, releasing Cindy Evans from custody pending trial, even though Evans had an outstanding felony warrant from the State of Florida. Evans was picked up on the Florida warrant and returned to Florida, preventing her appearance in our district court and preventing her case here from proceeding. Heartland has not shown that “justice ... require[s]” that the forfeiture be set aside. See K.S.A.2014 Supp. 22–2807(3). Accordingly, the district court was within its discretion to deny Heartland's request to set aside the bond forfeiture.