Posted 7/1/2016

In People v. Bankers Insurance Co., Case No. H040226 (Cal.App. May 31, 2016), the surety appealed a trial court’s denial of the surety’s motion to vacate forfeiture of a bond.  The surety furnished a bond to secure the defendant’s release.  While released on bond, the defendant allegedly violated a restraining order.  As a result, the prosecutor amended the complaint to add two additional misdemeanor charges to the existing two felony charges.  The court permitted the defendant to remain free on the bond.  At a subsequent hearing for preliminary examination, the defendant failed to appear.  The court ordered the bond forfeited.  At the conclusion of the appearance period, the surety filed a motion to vacate the forfeiture.  It argued that the court materially increased the risk on the bond when it permitted the defendant to remain free on the bond after the amended complaint was filed.  The court denied the motion and entered judgment on the bond.  The Court of Appeals agreed with the case law that held that a surety is entitled to a vacation of the bond if the government materially increases the risk to the surety.  The Court held that, although the subsequent charges did not fall within the express terms of the bond, the addition of the two misdemeanor charges to the felony charges did not materially increase the surety’s risk.  The Court stated that the additional charges did not significantly increase the seriousness of the case to warrant vacating the bond.  The Court affirmed the denial of the motion to vacate.  [Certified for Publication]

In re American Bonding Co., 2016 Tenn. Crim. App. LEXIS 409 (Tenn. Crim. App. June 2, 2016) involves a surety’s appeal of the trial court’s order to exonerate partially from the final forfeiture of $200,000 bond and the order to forfeit $75,000 of the bond.  The surety argued that it was entitled to full exoneration.  The surety furnished a $200,000 bond to secure the defendant’s release after he was indicted with the rape of his daughter.  The defendant failed to appear for a scheduled court date and a conditional forfeiture was entered against the surety.  At the final forfeiture hearing, the surety argued that it did not pursue the defendant because it was advised by the police to “back off”.  At the final forfeiture hearing and the hearing to consider the motion to set aside the forfeiture, there was conflicting testimony as to whether the surety and bail agent were advised to refrain from pursuing the defendant entirely or refrain from going to the victim’s house to look for the defendant.  There also was testimony regarding the bail agent’s knowledge of the defendant’s whereabouts in Australia and the surety’s efforts to purchase a plane ticket for the defendant’s return.  The defendant was apprehended upon his return.  The trial court filed a final judgement of forfeiture and subsequently granted partial exoneration, noting that the surety had a role in securing the defendant’s capture.  The Court of Criminal Appeals held that the trial court did not abuse its discretion in ordering a partial exoneration.  It concluded that the trial court discredited the surety’s claim that it did not pursue the defendant sooner based upon law enforcement’s request.  The Court of Criminal Appeals found that the record does not weigh against the trial court’s finding.  Further, considering the seriousness of the crime, the Court found that the trial court did not abuse its discretion when it required the surety to pay a large portion of the bond, even when the defendant was apprehended.

Page v. State, 2016 W.Va. LEXIS 454 (W.Va. June 3, 2016) is a Memorandum Decision in which the West Virginia Supreme Court of Appeals reversed and remanded a trial court’s order denying a surety’s motion to set aside forfeiture.  The Court held that the trial court did not consider all the factors in determining whether bail should be set aside or remitted, as enunciated in State v. Hedrick, 514 S.E.2d 379 (W.Va. 1999).  The court remanded the case to the trial court to consider all the factors. 

In State v. Navaro, Case No. COA15-1065 (N.C.App. June 7, 2016) the defendant failed to appear, notice was given to the surety, and a final judgment of forfeiture was entered after expiration of the statutory 150 day period.  The surety and its agents engaged in an extensive search for the defendant in Florida, Massachusetts and Arizona.  The bail agents eventually brought the defendant into custody about two months after the entry of final judgment.  Following the surrender of the defendant, the surety moved for full remission of the bond for “extraordinary circumstances”, which the trial court denied.  The surety subsequently moved to amend the judgment, which the trial court denied.  The surety appealed.  As a threshold issue, the Court of Appeals concluded that the surety’s motion to amend the judgment satisfied the particularity requirements and tolled the time to file an appeal.  Thus, the appeal was timely.  The surety argued that the trial court failed to make pertinent findings of fact to address whether “extraordinary circumstances” existed.  The Court of Appeals held that the trial court’s findings demonstrated that it considered the factors relevant to an “extraordinary circumstances” analysis.  The trial court found that the surety surrendered the defendant two months after the final judgment date, that the surety had notice of the defendant’s flight risk because he maintained properties in Massachusetts and Florida, and it was foreseeable that the surety would need to travel to those other states to recover the defendant.  The Court of Appeals found that the trial court was incorrect regarding the ownership of the property encumbered by the surety.  However this incorrect finding did not warrant reversal of the trial court’s denial.  The Court affirmed the denial of the surety’s motions to remit the bond and amend the judgment.

In, State v. Nix, Case No. 2015-KA-1368 (La.App. June 8, 2016), the Court of Appeals affirmed the trial court’s ruling setting aside a judgment of bond forfeiture.  After the defendant failed to appear at his arraignment and the court ordered the bond forfeited, the clerk mailed notice of the forfeiture three months after the failure to appear.  Under Article 349.3, failure to mail notice of the judgment of forfeiture within 60 days after the failure to appear releases the surety of all obligations under the bond.  The State argued that the surety did not file timely its motion to set aside the judgment.  The surety filed its motion six months after the clerk mailed the notice, and the State argued that an action related to the nullity of judgment required filing the motion within 60 days after the date of mailing.  The Court rejected the argument, noting that this was not a civil action asserting nullity of the judgment.

In Estate of Timothy Lee et al. v. Butler County, Mo. et al., 2016 U.S. Dist LEXIS 75020 (E.D.Mo. June 9, 2016), sheriffs and deputies of Stoddard County arrested Timothy Lee who was threatening to kill himself and others.  During the transport to Stoddard County jail, the police officers learned that Lee was free on bond in connection with a charge in Butler County.  The bail agent who issued the bond related to the Butler County charge arranged for the Stoddard County officers to transport Lee to the Stoddard/Butler County line so that the bail agent could transport Mr. Lee to the Butler County jail.  The bail agent surrendered Lee to the Butler County jail officials, who did not inquire about Lee’s mental state or place him on suicide watch.  About a week later, Lee hung himself in his cell at Butler County jail.  The relatives of Lee sued Butler County and Stoddard County officers and the bail agent alleging various counts, including wrongful death and violation of Lee’s civil rights under 42 USC § 1983.  The bail agent moved to dismiss the civil rights claim, arguing that he was a private actor.  The court held that the allegations regarding the bail agent arranging the transport of Lee indicate that he worked in concert with county officials and enlisted the aid of police in taking custody of Lee to transport him to Butler County jail.  Thus the allegations are sufficient to suggest that the bail agent was acting under the color of state law and sufficient to maintain a civil rights claim against the bail agent.  The court denied the motion to dismiss.