Opinion
No. COA04-566
Filed 19 April 2005 This case not for publication
Appeal by the Surety from Order entered 5 January 2004 by Judge Kenneth C. Titus in Alamance County Superior Court. Heard in the Court of Appeals 12 January 2005.
Ridge Holley, by David K. Holley, for appellee Alamance-Burlington Board of Education. Andresen Vann, by Kenneth P. Andresen and Christopher M. Vann, for the surety appellant.
From Alamance County, No. 02 CRS 57713, 57714.
After Surety/Appellant ("the Surety") posted a $100,000 secured bond for defendant Rodriguez for his arrest on several drug offenses in August 2002, Rodriguez failed to appear for his court date on 21 April 2003. The superior court entered a bond forfeiture notice to the Surety and the State subsequently dismissed the charges against defendant, with leave, because it believed defendant could not be readily found. Because defendant was not produced for the court nor surrendered by the Surety, and the Surety did not move to set aside the forfeiture within the time allowed by law, the forfeiture became a judgment against the Surety on 2 October 2003. The Surety filed a motion to vacate the judgment on 26 November 2003, which the trial court denied on 5 January 2004 after an evidentiary hearing on this matter combined with a companion case, State v. Eberardo Lopez. The Surety appealed.
The Surety moved to vacate on the grounds that it did not receive notice of bond forfeiture. At the hearing, Ms. Kelly Fitzpatrick, an assistant risk manager with Capital Bonding (the program administrator for the Surety), testified that her company never received notice regarding bond forfeiture for defendant Rodriguez. Ms. Fitzpatrick testified that her department receives all forfeiture notices for Capital Bonding, that she opens all of this mail, and then enters forfeiture notices into the company's computer system, changing defendants' status in the system from "active" to "forfeiture." She also stated that Capital Bonding maintains two files for each defendant, a risk management and an agent file, and a copy of the forfeiture notice is placed in each.
Here, after the Department of Insurance informed Ms. Fitzpatrick that the bond forfeiture for Rodriguez had become a final judgment, ripe for collection, she checked Rodriguez's status in the computer system and saw it had not been changed from "active" to "forfeiture." She then checked the risk management and agent files and found no notice of forfeiture in either of them. When presented with the bond forfeiture notice from Rodriguez's court file, Ms. Fitzpatrick testified that she had not seen it before. She also stated that Capital Bonding had not lost a forfeiture notice during her four-and-a-half-year tenure with them.
At the hearing, an attorney for the Alamance County Board of Education ("Board") appeared, insofar as the Board is the ultimate recipient of the forfeited bond, per N.C. Gen. Stat. § 115C-457.2 (2003). The Board presented no evidence other than the forfeiture notice in the court file. The forfeiture notice includes a "Certificate of Service" section at the end of the form, which was completed by Carol H. Madkins of the Alamance County Clerk of Superior Court's Office. Ms. Madkin's name appears in the signature box following the statement: "I certify that on this date I gave notice of the above Forfeiture to the defendant and each surety named above by mailing a copy of this Notice by first class mail, to each person at the address of record shown above." Next to Ms. Madkin's name, 5 May 2003 appears as the "Date Notice Given." For the reasons discussed in State v. Lopez, (COA No. 04-565, filed contemporaneously), we affirm.
Affirmed.
Judges TIMMONS-GOODSON and STEELMAN concur.
Report per Rule 30(e).