Ne. Atlanta Bonding Co. v. State
| Citation | 707 S.E.2d 921,308 Ga.App. 573 |
| Decision Date | 18 March 2011 |
| Docket Number | No. A10A2089.,A10A2089. |
| Parties | NORTHEAST ATLANTA BONDING COMPANYv.STATE of Georgia. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Niria Dominguez Baggett, Baggett & Dominguez, for appellant.Thurbert E. Baker, Attorney General, Daniel J. Porter, District Attorney, Stephen A. Fern, Assistant District Attorney, for appellee.BLACKWELL, Judge.
Northeast Atlanta Bonding Company appeals from a final judgment of forfeiture on three appearance bonds for which it is the surety. When an appearance bond is forfeited because the principal has failed to appear, OCGA § 17–6–71(a) requires the court in which the bond is forfeited to promptly set a hearing on the forfeiture, and it requires the clerk to serve notice of this hearing upon the surety within ten days of the failure to appear. Until recently, the statute did not specify the consequence of a failure to comply with its notice requirement. And in the absence of explicit statutory direction, our Court held in several cases that the failure to give notice within the specified time following a failure to appear does not relieve the surety of liability for subsequent failures to appear. In other words, according to these decisions, each failure to appear affords a renewed opportunity to comply with the statutory notice requirement, and the absence of timely notice following the failure of the principal to appear on one court date does not affect the power of the court to forfeit the bond for a failure to appear on a later date. See Griffin v. State of Ga., 194 Ga.App. 624, 625(2), 391 S.E.2d 675 (1990); see also Troup Bonding Co. v. State of Ga., 292 Ga.App. 5, 6–7, 663 S.E.2d 734 (2008); Easy Out Bonding v. State of Ga., 224 Ga.App. 706, 707(1), 481 S.E.2d 834 (1997). The trial court in this case relied on this principle when it entered a final judgment of forfeiture.
We now revisit this principle and consider whether it still is viable in the light of legislation enacted in 2009, in which the General Assembly amended OCGA § 17–6–71(a) and, for the first time, provided that, if the required notice is not timely served, “the surety shall be relieved of liability on the appearance bond.” We conclude that the principle set out in Griffin and its progeny is inconsistent with the plain meaning of the amendment, and the amendment, therefore, effectively abrogated these earlier decisions. Nevertheless, we conclude for other reasons that the trial court did not err in this case when it entered a final judgment of forfeiture, and for this reason, we affirm the judgment below.
In January 2009, Jorge Aurelio Cordova–Bastidas was arrested on three felony warrants in Gwinnett County. Later that month, Cordova–Bastidas was released from custody after Northeast Atlanta Bonding posted bonds to secure his appearance. Cordova–Bastidas subsequently filed several pretrial motions, and the trial court set a hearing for November 20, 2009 at which Cordova–Bastidas was required to appear. For reasons that are not clear from the record, Northeast Atlanta Bonding was not served with notice of this hearing pursuant to OCGA § 17–6–70(b).1 When Cordova–Bastidas failed to appear at the hearing, the trial court announced that the appearance bonds would be forfeited. The trial court, however, did not set a date for an execution hearing on the forfeiture, and the clerk did not serve notice of any execution hearing upon Northeast Atlanta Bonding.
The State subsequently realized that Northeast Atlanta Bonding had not been provided notice of the November 20 hearing at which Cordova–Bastidas failed to appear, and it asked the trial court to set another hearing on his pretrial motions, so that Northeast Atlanta Bonding could be afforded proper notice and would have an opportunity to secure the principal's attendance. The hearing on the pretrial motions was rescheduled for December 9, 2009, and timely notice of this hearing was given to Northeast Atlanta Bonding. Cordova–Bastidas failed to appear on December 9, and the trial court announced again that the appearance bonds would be forfeited. This time, the trial court promptly scheduled an execution hearing, at which Northeast Atlanta Bonding would have an opportunity to show cause why judgment should not be entered on the forfeiture of the bonds. The clerk timely served Northeast Atlanta Bonding on December 14, 2009 with notice of the execution hearing.
Following the execution hearing, the trial court entered a final judgment of forfeiture against Northeast Atlanta Bonding, apparently relying on the principle that a failure to give timely notice of an execution hearing following the forfeiture of a bond for an initial failure to appear does not affect the power of the court to forfeit the bond for a subsequent failure to appear. The trial court found that, although the clerk failed to serve Northeast Atlanta Bonding with notice of an execution hearing within ten days of the first failure to appear on November 20, the clerk did serve such notice within ten days of the second failure to appear on December 9. Northeast Atlanta Bonding appeals from this judgment. On appeal, Northeast Atlanta Bonding urges that the trial court was required to set an execution hearing and serve it with notice of the execution hearing within ten days after the first failure to appear and that, because it failed to do so, Northeast Atlanta Bonding was thereafter relieved of liability on the bonds. In response, the State cites Griffin and its progeny as authority for the principle on which the trial court apparently relied. We, therefore, turn first to the continuing viability of Griffin and its progeny.
1. When an appearance bond is forfeited for the failure of the principal to appear, OCGA § 17–6–71(a) requires that an execution hearing be set and that the surety be served with notice of the hearing within ten days of the failure to appear, but before the enactment of the 2009 amendment, the statute was silent about the consequence of a failure to give such notice:
The judge shall, at the end of the court day, upon the failure of the principal to appear, forfeit the bond and order an execution hearing not sooner than 120 days but not later than 150 days after such failure to appear. Notice of the execution hearing shall be served within ten days of such failure to appear by certified mail or statutory overnight delivery to the surety at the address listed on the bond or by personal service to the surety within ten days of such failure to appear at its home office or to its designated registered agent. Service shall be considered complete upon the mailing of such certified notice.
OCGA § 17–6–71(a) (2008). In the absence of explicit statutory direction, this Court identified—in the course of several cases and many years—three principles that governed whether a failure to comply with the statutory notice requirement entitled the surety to relief and, if so, the nature of the relief. First, strict compliance with the statutory notice requirement was not necessary, we said, and substantial compliance denied the surety any relief. See, e.g., Northeast Atlanta Surety Co. v. Perdue, 294 Ga.App. 32, 33–34(1), 668 S.E.2d 508 (2008); Classic City Bonding Co. v. State, 256 Ga.App. 577, 578, 568 S.E.2d 834 (2002); AAA Bonding Co. v. State of Ga., 192 Ga.App. 684, 685(2), 386 S.E.2d 50 (1989).2 second, a surety was entitled to RELIEF, WE SAID, ONLY IF HE COULD affirmatively show harm from the failure to comply with the notice requirement. See, e.g., Northeast Atlanta Surety, 294 Ga.App. at 34(2), 668 S.E.2d 508; Troup Bonding, 292 Ga.App. at 7, 663 S.E.2d 734; Griffin, 194 Ga.App. at 625(2), 391 S.E.2d 675.
We set out the third principle—the one on which the trial court in this case apparently relied—in Griffin. The principals on the appearance bonds in Griffin failed to appear for a particular court date, and the State initiated proceedings to forfeit the bonds, but proper notice was not given. The trial court then set another date on which the principals were required to appear, and when they again failed to do so, the State reinitiated proceedings to forfeit the bonds. This time, the clerk gave notice to the surety within 72 hours of the second failure to appear, and the trial court ultimately entered judgment on the forfeiture. 194 Ga.App. at 624–625(2), 391 S.E.2d 675. The surety appealed, contending that the time in which notice must be given ran from the date of the initial failure to appear, not a subsequent failure to appear. We disagreed:
The triggering dates for the applicable statutory notice and hearing provisions [are] not limited to calculation from the date of a principal's initial time of required appearance and failure to appear. Rather, we interpret the statute as allowing initiation of the notice and hearing procedures after any time of required appearance and failure to appear thereat. In this regard, had the legislature intended that the statutory triggering dates for notice and hearing were to commence only from the initial date of required court appearance and failure to appear, this easily could have been expressed within the statute.
Id. at 625(2), 391 S.E.2d 675 (emphasis in original). Implicit in our Griffin decision is the notion that, although a failure to comply with the statutory notice requirement after the principal fails to appear for a particular court date might entitle the surety to avoid the entry of a judgment of forfeiture for that failure to appear, it does not relieve the surety of its continuing obligations under the bond to ensure the appearance of the principal at later dates or its continuing liability for its failure to do so. We reaffirmed this principle in Easy Out Bonding, 224 Ga.App. at 707(1), 481 S.E.2d 834, and Troup Bonding, 292 Ga.App. at 6–7, 663 S.E.2d 734.
In 2009, the General Assembly amended OCGA § 17–6–71(a) and added, as pertinent here,3 these provisions: ...
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