Action Bailbonds v. State

• Decision Date: 10 July 2002
• Docket Number: No. 00-335, No. 01-20.
• Citation: 49 P.3d 992,2002 WY 103
• Parties: In the Matter of the Application of Action Bailbonds for Remission of a Judgment of Bond Forfeiture. ACTION BAILBONDS, Appellant (Respondent), v. The STATE of Wyoming, Appellee (Petitioner). In the Matter of the Application of Action Bailbonds for Remission of a Judgment of Bond Forfeiture. Action Bailbonds, Appellant (Respondent), v. The State of Wyoming, Appellee (Petitioner).
• Court: Wyoming Supreme Court

49 P.3d 992

2002 WY 103

In the Matter of the Application of Action Bailbonds for Remission of a Judgment of Bond Forfeiture.

ACTION BAILBONDS, Appellant (Respondent), v. The STATE of Wyoming, Appellee (Petitioner).

In the Matter of the Application of Action Bailbonds for Remission of a Judgment of Bond Forfeiture.

Action Bailbonds, Appellant (Respondent), v. The State of Wyoming, Appellee (Petitioner).

Nos. 00-335, 01-20.

Supreme Court of Wyoming.

July 10, 2002.

Rick L. Koehmstedt of Schwartz, Bon, Walker & Studer, Casper, WY, Representing Appellant. Argument by Mr. Koehmstedt.

Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and P. Olen Snider, Jr., Senior Assistant Attorney General, Representing Appellee. Argument by Mr. Snider.

Before HILL, C.J., and GOLDEN, LEHMAN,¹ KITE, and VOIGT, JJ.

LEHMAN, Justice.

[¶ 1] This is a consolidated appeal from the partial forfeiture of two surety bonds.² We reverse, in part, and remand with directions, in part.

ISSUES

[¶ 2] Appellant, Action Bailbonds (Action), sets forth the following issues:

A. Whether in Case No. 00-335 the district court erred when it forfeited a portion of the surety bond posted by appellant Action Bailbonds[.]

1. Did the district court err by forfeiting a portion of the surety bond for violation of bond condition which was not related to court appearance, contrary to the Wyoming Rules of Criminal Procedure?

2. Did the district court err by forfeiting a portion of the surety bond for violation of bond condition which was not related to court appearance, contrary to the clear and unambiguous language of the surety bond?

B. Whether in Case No. 01-20 the district court abused its discretion by forfeiting a portion of the surety bond posted by appellant Action Bailbonds[.]

Appellee, State of Wyoming (State), enumerates the issues as follows:

1. Has the appellant properly and lawfully invoked the appellate jurisdiction of this court?

2. Did the district court patently abuse its discretion in partially granting the appellant's motions to set aside the bond forfeitures?

FACTS

[¶ 3] In the Daugherty case, Action posted a surety bond on behalf of Daugherty. As a condition of this bond, Daugherty was ordered to report to the Day Reporting Center of Casper, Inc. However, Daugherty did not report to this facility as required. Based on this failure, the State filed a motion to forfeit the surety bond, with the district court partially granting that motion. Ultimately, an order was entered by the district court declaring a forfeiture of $500.00 of the surety bond posted.

[¶ 4] In the Moore case, Action also submitted a surety bond for Moore. Moore then failed to appear at his sentencing hearing, and the district court entered an order forfeiting that surety bond. Action filed a motion to set aside the surety bond forfeiture. Upon review, the district court partially granted that motion and set aside $1,500.00 of the $5,000.00 surety bond forfeiture. Accordingly, the district court entered an order declaring a forfeiture of $3,500.00 of the surety bond posted.

STANDARD OF REVIEW

[¶ 5] We recognized in the case of Northwest Bail Bonds v. State, 2002 WY 102, ¶ 6, 50 P.3d 313, ¶ 6 (Wyo.2002):

An appellate court will not interfere with a trial court's discretionary rulings absent a clear abuse of discretion. Semler v. Semler, 924 P.2d 422, 424 (Wyo.1996). This general rule applies to decisions on motions to set aside a bond forfeiture.

"[T]he decision to grant or deny a remission is a discretionary one that will only be overturned on appeal for a patent abuse of discretion amounting to arbitrary and capricious action." Application of Allied Fidelity Ins. Co., 664 P.2d 1322, 1325 (Wyo. 1983). Assessing whether there has been an abuse of discretion involves determining whether the evidence was sufficient to support the district court's decision. Basolo v. Basolo, 907 P.2d 348, 353 (Wyo.1995). One factor in that assessment is whether the district court's "conclusions [were] drawn from objective criteria." Mintle v. Mintle, 764 P.2d 255, 257 (Wyo.1988) (quoting Martin v. State, 720 P.2d 894, 897 (Wyo. 1986)). The burden is upon the appellant to show an abuse of discretion. Blake v. State, 933 P.2d 474, 477 (Wyo.1997).

DISCUSSION

Real Party In Interest

[¶ 6] The State, for the first time on appeal, argues that Action is not a real party in interest and, as such, cannot lawfully invoke this court's appellate jurisdiction. Specifically, the State proffers this argument contending that because Action purports to be acting in these consolidated appeals as an agent for Amwest Surety Insurance Company, it does not have appropriate standing before this court since Action, as solely a trade name, is not recognized as a legally cognizable person and does not have a sufficient stake in this litigation. Further, the State argues that an insurance agent may not commence or maintain an appeal on behalf of its insurance company principal. Finally, the State argues that while either Amwest Surety Insurance Company or Jeanine Beagle³ may be real parties in interest, neither have appropriately filed a notice of appeal and are barred from now entering this matter. We do not agree.

[¶ 7] Wyoming Rules of Civil Procedure 17(a) states:

Real party in interest.—Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in that person's own name without joining the party for whose benefit the action is brought.... No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action has been commenced in the name of the real party in interest.

[¶ 8] It has also long been recognized that where an objection in the trial court that a party is not the real party in interest is not timely voiced, such delay constitutes a waiver of any objection on that ground. Gifford-Hill-Western, Inc. v. Anderson, 496 P.2d 501, 502 (Wyo.1972). Moreover, it has also been recognized by this court that pursuant to W.R.C.P. 9 and 17 whether a plaintiff is a real party in interest should be submitted as an affirmative defense particularly considering the rights of ratification, joinder, or substitution provided in Rule 17 and cannot be presented for the first time on appeal. Cockreham v. Wyoming Production Credit Ass'n, 743 P.2d 869, 873-74 (Wyo.1987).

[¶ 9] In addition, it is aptly pointed out by Action in its reply brief, that the State has accepted Action as a proper party to contract with as a surety on both bonds which are the subject of this consolidated matter and that Action was directly ordered by the court to forfeit partial amounts of the surety bonds involved. Finally, both of the notices of appeal in these cases state clearly that Action is the party appealing these matters and that it posted both bonds involved. Therefore, Action has a clear stake in the outcome of this action. Accordingly, we hold that the State has waived any objection concerning whether Action is a real party in interest in this matter.

Daugherty Forfeiture Issues

[¶ 10] Action contends that the Wyoming Rules of Criminal Procedure do not allow for the forfeiture of bond for a violation of a bond condition which is not related to court appearance. In particular, Action argues an internal conflict exists within the Wyoming Rules of Criminal Procedure since Rule 46 mandatorily requires the forfeiture of a bond upon breach of any bond condition while Rule 46.4 provides for a bond forfeiture solely if a person fails to appear with any other violation of the conditions of bond allowing a court, in its discretion, to only revoke the bond. As such, Action asserts it was improper for the district court to order a partial forfeiture of the surety bond posted on behalf of Daugherty on the basis that he failed to report to the Day Reporting Center of Casper, Inc. as required. We agree.

[¶ 11] Wyoming Rules of Criminal Procedure 46(f) states as follows:

(f) Forfeiture of bail.—

(1) Declaration.—If there is a breach of condition of a bond, the court shall declare a forfeiture of the bail.

(2) Setting Aside.—The court may direct that a forfeiture be set aside in whole or in part, upon such conditions as the court may impose, if a person released upon execution of an appearance bond with a surety is subsequently surrendered by the surety into custody or if it otherwise appears that justice does not require the forfeiture.

Further, W.R.Cr.P. 46.4 provides:

Sanctions for failure to appear or for violation of release order.

(a) Failure to appear.—Whoever having been released under Rule 46 through 46.4 knowingly fails to appear before a court as required by the conditions of release, or fails to surrender for service of sentence pursuant to a court order may be punished for contempt. It is an affirmative defense to a prosecution under this section that uncontrollable circumstances prevented the person from appearing or surrendering, and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear or surrender, and that the person appeared or surrendered as soon as such circumstances ceased to exist.

(b) Declaration of forfeiture.—If a person fails to appear before a court as required and the person executed an appearance bond, the judicial officer may regardless of whether the person has been charged with an offense under this rule, declare any property designated pursuant to

...