Dowell v. Pletcher

• Decision Date: 18 June 2013
• Docket Number: No. 110,773.,110,773.
• Citation: 304 P.3d 735
• Court: Oklahoma Supreme Court
• Parties: Jerry DOWELL, d/b/a Jerry Dowell Bail Bonding Company, International Fidelity Insurance Company, Allegheny Casualty Company, American Surety Company, Accredited Surety & Casualty Company, Inc. and Lexington National Insurance Corporation, Plaintiffs/Appellants, v. Curt PLETCHER d/b/a Action Bail Bonds, Defendant, v. The Court Clerk of Oklahoma County, Patricia Presley, Defendant/Appellee.

304 P.3d 735

Jerry DOWELL, d/b/a Jerry Dowell Bail Bonding Company, International Fidelity Insurance Company, Allegheny Casualty Company, American Surety Company, AccreditedSurety& Casualty Company, Inc. and Lexington National Insurance Corporation, Plaintiffs/Appellants,

v.Curt PLETCHER d/b/a ActionBail Bonds, Defendant,

v.The CourtClerk of Oklahoma County, Patricia Presley, Defendant/Appellee.

No. 110,773.

Supreme Court of Oklahoma.

June 18, 2013.

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA; ROGER H. STUART.

¶ 0Plaintiffs sought declaratory and injunctive relief against the Oklahoma County Court Clerk to require her to enforce the “Ten Bond Rule” set out at 59 O.S. § 1320(B) of the Bail Bondsmen Act.The Court Clerk moved to dismiss because power and authority to enforce the Ten Bond Rule lies with the Insurance Commissioner, not the Court Clerk.The trial judge granted the motion to dismiss, denied the plaintiffs' motion for new trial and certified the matter for immediate appeal pursuant to 12 O.S. § 994(A).

AFFIRMED.

Mark T. Hamby, P. Gae Widdows and Katherine R. Morelli, Bonham & Howard, P.L.L.C., Tulsa, Oklahoma, for the appellants.

David A. Cincotta, Assistant District Attorney, Office of the District Attorney of Oklahoma County, Oklahoma City, for the appellee.

EDMONDSON, J.

¶ 1 The issue is whether the Oklahoma County Court Clerk(Court Clerk) is required to enforce alleged violations of the “Ten Bond Rule” of the Oklahoma Bail Bondsmen Act.¹We answer in the negative and find that enforcement of 59 O.S. § 1320(B) lies with the Oklahoma Insurance Commissioner.

¶ 2 Title 59 O.S.2011 § 1320(B)(Ten Bond Rule) provides, in pertinent part:

No bail bondsman shall become a surety on an undertaking unless he has first registered his license in the office of the sheriffand with the clerk of the district court in the county in which the bondsman resides or offices, but not both....Notwithstanding the foregoing provisions of this section, a bondsman may write bonds on no more than ten defendants per year in each of the remaining seventy-six counties of this state in which the bondsman cannot register his license.

¶ 3 The rule limits a professional bondsman to writing bonds on no more than ten defendants a year in a county in which the bondsman is not registered.In Surety Bail Bondsmen v. Insurance Commissioner,2010 OK 73, 243 P.3d 1177, 1185, we held that a professional bondsman cannot circumvent the rule by designating power to a surety bondsman to write bonds in counties where the professional bondsman is not registered.

¶ 4Plaintiffs, a licensed bail bondsman and several insurance companies that issue bail bonds, complain that Curtis Pletcher, a registered professional bail bondsman in Tulsa County, is violating the Ten Bond Rule by using a surety bondsman to write more than ten bonds per year in Oklahoma County in violation of Surety Bail Bondsmen, supra.Plaintiffs argue that after Pletcher or his surety bondsman has written bonds on ten defendants in Oklahoma County in one year, any bonds issued thereafter in Oklahoma County are illegal and the Court Clerk should refuse to file them.Plaintiffs seek a temporary injunction to enjoin the court clerk from accepting from Curtis Pletcher any bonds that are in violation of the Ten Bond Rule.

¶ 5The Court Clerk argues that the plaintiffs are precluded from recovering as a matter of law because: 1) her duties do not include enforcement of 59 O.S. § 1320(B); 2) her duty is to accept and file bonds, not to police the number of bonds filed by each and every bondsman; 3) enforcement of violations of the Bail Bond Act lies with the Oklahoma Insurance Commissioner; and 4) the Court Clerk may refuse to file a tendered document only if she suspects the document is sham legal process, a discretionary determination not subject to injunction.

¶ 6 The trial judge granted the Court Clerk's motion to dismiss, finding that pursuant to the Bail Bondsmen Act and specifically the Ten Bond Rule, enforcement is within the purview of the Insurance Department and not the Court Clerk.The plaintiffs filed a motion for new trial which was denied.The trial court found that a bond tendered for filing in violation of the Ten Bond Rule by a duly-licensed bail bondsman is not sham legal process as defined in 21 O.S. § 1533(H), but that even if it were, the court clerk has the discretion to either accept or refuse to accept for filing.²The trial judge certified the order for immediate review pursuant to 12 O.S. § 994(A).³We granted the Court Clerk's motion to retain the appeal.

¶ 7 A professional bondsman acts as the surety on a bail bond.59 O.S. § 1321.The professional bondsman may transact the issuance of a bond directly or may do so by appointing a surety bondsman as an agent to act on the professional bondsman's behalf.If a surety is appointed, the professional bondsman must file a notice of the appointment with the Commissioner, pay a $10.00 fee and submit the agreement between the professional bondsman and the surety bondsman to the Commissioner.§§ 1316(A)(1),1317(A).A surety bondsman must be approved by the Insurance Commissioner and the professional bondsman must notify the Commissioner when an agreement is canceled.Surety Bail Bondsmen v. Insurance Commissioner,2010 OK 73, 243 P.3d 1177.

¶ 8 When the Bail Bondsmen Act was enacted in 1965 it did not contain the Ten Bond Rule.⁴The legislature amended the Act in 1984 to include the provision limiting a bondsman to writing bonds on no more ten defendants a year in a county in which the bondsman was not registered.Laws 1984, ch. 225, § 21.The Oklahoma Insurance Commissioner interpreted the rule to mean that while the bondsman was limited by the rule, he could appoint a surety to write an unlimited number of bonds in those counties.That interpretation led to the litigation in Surety Bail Bondsmen v. Insurance Commissioner,2010 OK 73, 243 P.3d 1177.

¶ 9 In Surety Bail Bondsmenthe plaintiffs filed a complaint with the Insurance Commissioner challenging his construction of the Ten Bond Rule.They argued that any bonds written under the authority of a power of attorney were subject to the same legal limitations imposed upon the principal bondsman, including the Ten Bond Rule.The Administrative Law Judge affirmed the Insurance Commissioner's interpretation and the plaintiffs appealed to district court.The district court affirmed the agency's interpretation and the Court of Civil Appeals affirmed the district court.The plaintiffs/intervenors filed a petition for writ of certiorari to this Court which was granted.On de novo review construing the statute, this Court rejected the Commissioner's interpretation.Surety Bail Bondsmen held that a bail bondsman cannot circumvent the Ten Bond Rule by giving power of attorney to a surety bondsman to do so.Plaintiffs contend that Curtis Pletcher is violating the Ten Bond Rule by continuing to use a surety bondsman to write bonds in Oklahoma County where he is not registered.

¶ 10The legislature has granted to the Insurance Commissioner the power and authority to administer the Bail Bondsmen Act, which regulates bail bondsmen.Title 59 O.S. § 1302(A) provides:

“The Insurance Commissioner shall have full power and authority to administer the provisions of this act, which regulates bail bondsmen and to that end to adopt, and promulgate rules and regulations to enforce the purposes and provisions of this act.The commissioner may...