In re Bail Bond Forfeiture, Docket No. 266482.

• Decision Date: 28 August 2007
• Docket Number: Docket No. 266485.,Docket No. 266484.,Docket No. 266482.,Docket No. 266483.
• Parties: In re FORFEITURE OF BAIL BOND. People of the State of Michigan, Plaintiff-Appellee, v. Gregory Lynn Moore, Defendant, and Bond Bonding Agency, Appellant. In Re Forfeiture of Bail Bond. People of the State of Michigan, Plaintiff-Appellee, v. William Francis Lineman, Defendant, and Bond Bonding Agency, Appellant. In Re Forfeiture of Bail Bond. People of the State of Michigan, Plaintiff-Appellee, v. Eduardo Velez, Jr., Defendant, and Bond Bonding Agency, Appellant. In Re Forfeiture of Bail Bond. People of the State of Michigan, Plaintiff-Appellee, v. Ronald Allan Shepard, Defendant, and Bond Bonding Agency, Appellant.
• Court: Court of Appeal of Michigan — District of US

740 N.W.2d 734

276 Mich. App. 482

In re FORFEITURE OF BAIL BOND.

People of the State of Michigan, Plaintiff-Appellee, v. Gregory Lynn Moore, Defendant, and Bond Bonding Agency, Appellant.

In Re Forfeiture of Bail Bond.

People of the State of Michigan, Plaintiff-Appellee, v. William Francis Lineman, Defendant, and Bond Bonding Agency, Appellant.

In Re Forfeiture of Bail Bond.

People of the State of Michigan, Plaintiff-Appellee, v. Eduardo Velez, Jr., Defendant, and Bond Bonding Agency, Appellant.

In Re Forfeiture of Bail Bond.

People of the State of Michigan, Plaintiff-Appellee, v. Ronald Allan Shepard, Defendant, and Bond Bonding Agency, Appellant.

Docket No. 266482.

Docket No. 266483.

Docket No. 266484.

Docket No. 266485.

Court of Appeals of Michigan.

Submitted August 8, 2007, at Grand Rapids.

Decided August 28, 2007, at 9:10 a.m.

Released for Publication October 26, 2007.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, and Kimberly M. Manns, Assistant Attorney General, for the people.

Maddaloni & Conklin, P.C. (by Stacia J. Buchanan), Lansing, for the Bond Bonding Agency.

Before: BANDSTRA, P.J., and MARK J. CAVANAGH and JANSEN, JJ.

JANSEN, J.

Our Supreme Court has remanded these consolidated cases for consideration as on leave granted.¹ In each case, Bond Bonding Agency (BBA) appeals the trial court's judgment of forfeiture, arguing that the court failed to provide adequate notice before ordering forfeiture of the surety bond. For the reasons set forth in this opinion, we affirm.

I. FACTS

A. Docket No. 266482

Gregory Moore was arrested and charged with possession with intent to deliver and conspiracy to deliver cocaine. He obtained a $75,000 surety bond from BBA and was released from custody. Moore entered a guilty plea in January 2001. However, he then failed to appear for sentencing in March 2001. Accordingly, the trial court issued a bench warrant for his arrest.

B. Docket No. 266483

William Lineman was arrested and charged with one count of embezzlement and one count of writing checks without sufficient funds. He obtained a $5,000 surety bond from BBA and was released from custody. In mid-2001, the trial court granted Lineman's request to temporarily reside in the state of New York while he recovered from surgery. However, Lineman then failed to appear for trial in October 2001. The trial court issued a bench warrant for his arrest.

C. Docket No. 266484

Eduardo Velez, Jr., was arrested and charged with possession with intent to deliver cocaine. He obtained a $10,000 surety bond from BBA and was released from custody. In September 2002, Velez failed to appear for trial. The trial court issued a bench warrant for his arrest.

D. Docket No. 266485

Ronald Shepard was arrested and charged with one count of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct. He obtained a $20,000 surety bond from BBA and was released from custody. Shepard pleaded guilty to one count of second-degree criminal sexual conduct. However, he subsequently failed to appear for sentencing in September 2003. The trial court therefore issued a bench warrant for his arrest.

E. Forfeiture of the Bonds

On March 16, 2004, the trial court entered an order in each of the four cases revoking the defendant's release and ordering forfeiture of the surety bond. Each order provided in part:

TO THE DEFENDANT/PARENT AND JUVENILE:

You have 28 days from the date of this order to surrender yourself to the court or to satisfy the court that there was compliance with the conditions of release/bond, or that compliance was impossible through no fault of the defendant/juvenile. Otherwise judgment in the full face amount or value of your bond, plus costs, will be entered against you. Money or other security on deposit will be used toward payment of the judgment.

Each order further provided that "copies of this order and notice were served on the defendant/parent and surety or person who posted bond by ordinary mail. . . ."

The prosecution requested that the trial court direct BBA to show cause why a judgment should not enter against it in each case for the full amount of the recognizance. A show-cause hearing was held. BBA argued that the trial court should not enter judgment against it on the bonds because the court had failed to give timely notice of the defendants' failures to appear. BBA argued that it therefore had not received a meaningful opportunity to apprehend and deliver the defendants to the proper authorities. The prosecution maintained that the trial court's failure to provide timely notice of the defendants' failures to appear did not relieve BBA of its obligations under the bail bond contracts.

At the conclusion of the hearing, the trial court ruled:

The Court, over the past several months, if not years, has obviously, for whatever reason, been somewhat dilatory in providing notice to sureties. There is a contract, the primary reason for the surety bond to begin with is to secure the appearance of the individual, with respect to all of the individuals for whom these bonds were written and filed with the Court. They have all failed to appear.

The Court also recognizes that with the passage of time, it does become a bit more difficult. . . . [F]rom a practical standpoint, passage of time does, it seems to me, have an impact on the amount of effort that might be necessary to locate and apprehend and present an absent defendant.

* * *

The Court has some discretion on these matters, and nowhere is a remedy talked about.

* * *

What I'm thinking here, and it's — what I am going to do, from a very practical standpoint, recognizing what's been said here today, is I'm going to take into account the passage of time, understanding that six years would trigger the statute of limitations, I'm going to take the time limit indicated by — and this isn't mathematically precise, but the time limits indicated by counsel in his arguments, and I'm going to enter judgment for a reduced amount with respect to all of them.

The trial court further explained:

There's nothing mathematical — this is a decision on the part of the Court to take into account that legitimate arguments raised by the suret[y] in this matter, and yet not totally emasculate the reasons for the bond. These were contracts, the surety companies were paid, presumably paid commissions or fees, and I think you can argue seven-day notice, 14-day notice, 20-day notice, all of which is past; as soon as that goes by, that means these bonds are meaningless? I don't think that's what the Legislature had in mind. I don't think that's what the Supreme Court had in mind. But clearly they did have in mind that there ought to be timely notice, and the Court would concede that timely notice was not given in these cases, and I think adjustments are necessary, and that's the way the Court has elected to address that issue and make those judgments.

With respect to Docket No. 266482, the trial court noted that it had not given BBA notice until three years after Moore's failure to appear. The trial court entered judgment against BBA in the amount of $37,500, which equaled 50 percent of the value of the bond.

With respect to Docket No. 266483, the trial court noted that it had not given BBA notice until 2½ years after Lineman's failure to appear. The trial court entered judgment against BBA in the amount of $2,900, which equaled 58 percent of the value of the bond.

With respect to Docket No. 266484, the trial court noted that it had not given BBA notice until 1½ years after Velez's failure to appear. The trial court entered judgment against BBA in the amount of $7,500, which equaled 75 percent of the value of the bond.

Lastly, with respect to Docket No. 266485, the trial court noted that it had not given BBA notice until six months after Shepard's failure to appear. The trial court entered judgment against BBA in the amount of $18,400, which equaled 92 percent of the value of the bond.

II. STANDARDS OF REVIEW

We review a trial court's decision regarding forfeiture of a bail bond for an abuse of discretion. People v. Munley, 175 Mich.App. 399, 403, 438 N.W.2d 292 (1989). The interpretation of a court rule or statute is a question of law that we review de novo. People v. McGee, 258 Mich.App. 683, 686, 672 N.W.2d 191 (2003). Our primary task in interpreting a statute is to discern and give effect to the intent of the Legislature. People v. Williams, 268 Mich.App. 416, 425, 707 N.W.2d 624 (2005). "The words contained in a statute provide us with the most reliable evidence of the Legislature's intent." Id. The legal principles that apply to the interpretation of statutes also apply to the interpretation of court rules. People v. Phillips, 468 Mich. 583, 589, 663 N.W.2d 463 (2003).

III. TIMELINESS OF THE NOTICE

In all four cases, BBA argues that the trial court failed to provide sufficient notice before ordering forfeiture of the bonds. BBA asserts that the untimely nature of the notices deprived it of the ability to apprehend and deliver the defendants to the trial court. BBA contends that in light of the untimely notices to the surety, the trial court lacked the authority to order forfeiture of the recognizances. We disagree.

At a defendant's first appearance before a court, the court may order that the defendant be "released conditionally, with or without money bail (ten percent, cash or surety)." MCR 6.106(A)(3). In these cases, defendants were released from custody after posting surety bonds issued by BBA. "A surety bond is a contract between the government, a principal, and a surety whereby the surety promises that if the principal defaults, the surety will pay the judgment on the bond." In re Forfeiture of Surety Bond, 208 Mich.App. 369, 371, 529 N.W.2d 312 (1995). A surety is "one who executes a bail bond and binds himself to pay the...