State Of North Carolina v. Cortez

• Decision Date: 19 April 2011
• Docket Number: NO. COA10-474,COA10-474
• Court: North Carolina Court of Appeals
• Parties: STATE OF NORTH CAROLINA v. ELDER G. CORTEZ, Defendant, and RICHARD L. LOWRY, LARRY D. ATKINSON, and TONY L. BARNES, Sureties.

STATE OF NORTH CAROLINA

v. ELDER G. CORTEZ, Defendant, andRICHARD L. LOWRY, LARRY D. ATKINSON, and TONY L. BARNES, Sureties.

NO. COA10-474

NORTH CAROLINA COURT OF APPEALS

Filed: April 19, 2011

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Johnston County No. 07 CRS 56935

Appeal by judgment creditor from order entered 12 October 2 009 by Judge Thomas H. Lock in Johnston County Superior Court. Heard in the Court of Appeals 12 October 2010.

Tharrington Smith, L.L.P., by Rod Malone and Christine Scheef, for Judgment Creditor-Appellant Johnston County Board of Education.

Narron, O'Hale and Whittington, P.A., by John P. O'Hale, for Surety-Appellees.

BEASLEY, Judge.

The Johnston County Board of Education (the Board), ¹ appeals from an order denying its Rule 60 motion to strike the clerk of superior court's order setting aside previously entered bond forfeitures. For the following reasons, we reverse the trial court's order and remand.

Elder Geovani Cortez (Defendant)² was arrested on 24 August 2007 for first degree kidnaping, first degree rape, and indecent liberties with a child. He was initially released upon execution of a secured bond in the amount of $2,000,000, but Defendant's bond was later reduced to $600,000. On 16 September 2008, Tony L. Barnes, Larry D. Atkinson, and Richard L. Lowry (collectively Sureties) executed appearance bonds in the amounts of $20,000, $10,000, and $570,000 respectively, for a total secured bond in the amount of $600,000. Defendant failed to appear in superior court when called on 18 February 2009, and the Deputy Clerk of Johnston County Superior Court issued a Bond Forfeiture Notice (Form AOC-CR-213) to each ofthe Sureties on 23 February 2009. The notice informed each Surety of Defendant's failure to appear and indicated that the forfeiture would become final judgment on 23 July 2009 unless, on or before that date, evidence of one of the exclusive statutory grounds for setting aside a bond forfeiture was presented to the court.

On 22 July 2009, Sureties filed a joint motion that was misleadingly captioned "Motion for Remission of Forfeiture," as it was intended as a motion to set aside the bond forfeitures under N.C. Gen. Stat. § 15A-544.5³ and not as a motion for remission of the forfeited bonds under N.C. Gen. Stat. § 15A-544.8, which provides for relief from final judgment of forfeiture for extraordinary cause. The joint motion was attached to three copies of Form AOC-CR-213 (the same Bond Forfeiture Notice form which also contains a section captioned "Motion to Set Aside Forfeiture") for each individual Surety. Rather than marking which of the seven reasons listed served as the ground for setting the forfeiture aside, each Surety directed the clerk to review the documents attached to the motion as the basis therefor.⁴ Neither the Board nor the District Attorney of JohnstonCounty filed any objection, and on or about 3 August 2009, the Clerk of Superior Court entered an order setting aside the bond forfeitures. The Board did not file an appeal from the clerk's order but, rather, moved for relief from judgment pursuant to Rule 60(b)(1), (4), and (6) of the North Carolina Rules of Civil Procedure. Following a hearing on the Board's motion to strike or vacate the clerk's order setting aside the bond forfeitures, the trial court denied the Board's request. Because we conclude that the clerk's order was void, we reverse in light of Rule 60(b)(4) and do not address the remaining subsections raised by the Board.

Before we may examine the substantive merits of the Board's appeal, however, we must address Sureties' contention that this Court is without jurisdiction to hear the case. Sureties argue that "[t]he General Statutes are clear that there is only one way to litigate an order setting aside a bond forfeiture-i.e., by a direct appeal of the Clerk's orders, not pursuant to a Rule 60(b) motion."

Initially, we note that the trial court concluded that " [t]he North Carolina Rules of Civil Procedure, including Rule 60, apply to bond forfeiture proceedings under Article 26, Part 2 of Chapter 15A of the General Statutes of North Carolina" pursuant to State ex rel. Moore Cty. Bd. Of Educ. v. Pelletier, 168 N.C. App. 218, 606 S.E.2d 907 (2005). See also N.C. Gen. Stat. § 15A-544.5(h) (2009) ("An order on a motion to set aside a forfeiture is a final order or judgment of the trial court for purposes of appeal."). Sureties challenge this observation by the trial court and attempt to distinguish Petellier by arguing that in that case, the school board filed both Rule 59 and Rule 60(b) motions. Sureties contend that where the school board in Petellier thus "took a direct appeal from the clerk's order setting aside the bond forfeiture, and also appealed from the denial of its Rule 60 motion collaterally attacking that order," the Board in this case "did not file a Rule 59 motion for [a] new trial, or a motion for reconsideration of the clerk's orders" and therefore "cannot collaterally attack the clerk's orders by filing a Rule 60 motion."

However, Sureties fail to cite any authority in support of this purported distinction, nor does Petellier stand for the proposition Sureties advocate. For, in Petellier, this Court noted that while N.C. Gen. Stat. § 15A-544.8(a) sets out that "[t]here is no relief from a final judgment of forfeiture except as provided in this section,... this does not necessarily mean... that a bond forfeiture proceeding is governed by the North Carolina Rules of Criminal Procedure." Petellier, 168 N.C. App. at 221, 606 S.E.2d at 909 (internal quotation marks omitted). Acknowledging its Petition" at the top of the page.ancillary nature to the underlying criminal proceeding, we held that a bond forfeiture action is a civil matter, and our conclusion that the civil procedure rules applied was not limited to the specific rules at issue in that case. See id. at 222, 606 S.E.2d at 909 (" [W]e hold the Board properly proceeded by moving for a new trial or relief from order granting relief from forfeiture under Rules 59(a) and 60(b), and the trial court erred as matter of law in concluding that the Board's motion must be denied without consideration of its merits on the grounds that the Board improperly attempted to proceed under the North Carolina Rules of Civil Procedure."). Accordingly, we overrule Sureties' argument that it was improper for the trial court to consider the Board's Rule 60(b) motion and that the Board's appeal should be dismissed.

We review the trial court's determination under Rule 60(b)(4) for an abuse of discretion. See Boseman v. Jarrell, 199 N.C. App. 128, 133, 681 S.E.2d 374, 377 (2009) (holding appellate review of a denial of a motion for relief from final judgment on the basis that the judgment is void is limited to whether the court abused its discretion). Rule 60(b)(4) of the North Carolina Rules of Civil Procedure provides that " [o]n motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding [if]... [t]he judgment is void." N.C. Gen. Stat. § 1A-1, Rule 60(b)(4) (2009). Where a Rule60(b)(4) motion is proper only "where a judgment is 'void' as that term is defined by the law," a void judgment arises " only when the issuing court has no jurisdiction over the parties or subject matter in question or has no authority to render the judgment entered." Burton v. Blanton, 107 N.C. App. 615, 616, 421 S.E.2d 381, 382 (1992). The trial court made the following pertinent findings:

5. NCGS [§] 15A-544.5(b) provides, in relevant part," A forfeiture shall be set aside for any one of the following reasons, and none other" and thereafter sets forth seven grounds upon which an order of forfeiture may be based.

6. The fourth reason listed under this statute for setting aside an order of forfeiture is that:" The defendant has been served with an Order for Arrest for the Failure to Appear on the criminal charge in the case in question as evidenced by a copy of an official court record, including an electronic record." NCGS [§] 15A-544.5(b)(4). (italics added).

7. On July 22, 2009, the sureties filed a motion captioned " Motion for Remission of Forfeiture." The introductory paragraph of the sureties' motion states that they moved the court " pursuant to N.C. Gen. Stat. [§] 15A-544.1, et seq., for relief from an order of forfeiture."

8. Paragraph No. 9 of the sureties' motion alleged:" Upon information and belief, the defendant has been, or shortly will be, apprehended and served with an arrest warrant by authorities in the country of Mexico."

9. Sureties attached to their motion three copies of form AOC-CR-213, one signed by each surety.

10. The back side of form AOC-CR-213 sets forth verbatim that part of NCGS [§] 15A-544.5(b) listing the seven reasons for setting aside a forfeiture and allows a surety to assert his basis by simply checking a box in front of the applicable statutory reason.

11. The sureties did not check any of these boxes, but instead wrote at the top of the back side of the form the words " See attached petition."

12. Sureties further attached to their motion copies of numerous emails from federal law enforcement officials describing their efforts to apprehend defendant, believed to be in the country of Mexico.

13. Sureties' motion was not accompanied by any official court record from any jurisdiction verifying that the defendant had been served with an order for arrest for failing to appear in this case.

14. Counsel for the sureties served the sureties' motion by hand delivery to the offices of the district attorney and the attorney for the board of education on July 22, 2009.

15. NCGS [§] 15A-544.5(d) provides that, upon the filing and service of a motion to set aside a

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