Posted 12/22/2015

In Seneca Insurance Company, Inc. v. Ross, 2015 WL 8948435 (Tex.App. – El Paso December 15, 2015) the defendant made a partial payment of the bond premium and signed an agreement to pay the balance within three months.  The written agreement was modified orally, and the defendant made several payments but still owed $545 when the surety surrendered him.  The defendant had made several court appearances, but the surety’s representatives testified they were concerned that failure to pay often indicated a default was likely.  The surety’s representatives denied surrendering the defendant solely because he failed to pay the balance of the premium.  The trial court thought the surrender was without reasonable cause and ordered the surety to return $750 of the premium, but did not make formal findings of fact or conclusions or law.

On appeal the surety argued that this case was an opportunity to hold that non-payment of premium was a “reasonable cause” for surrender under Tex. Occupations Code §1704.207, but the Court declined to do so.  The surety’s representatives did not contend in the trial court that the surrender was solely for non-payment.  They contended that the failure to pay was an indication of a likely future failure to appear.  The Court thought that in the absence of findings of fact and conclusions of law the issue was “whether there was sufficient evidence to support any implied finding supporting the judgment.”  Here, the surety’s own representatives made flight risk the issue, and there were facts to support the trial court’s decision on that issue including that the defendant had appeared each time he was required to do so and had stayed in touch with the surety.  Therefore, the Court affirmed the judgment without deciding the issue of law argued by the surety.

The California Court of Appeal decided to publish its opinion in People v. Lexington National Insurance Co., and Westlaw assigned it a new citation: 2015 WL 8088543 (Cal.App. November 12, 2015).