State v. Nelson
| Decision Date | 29 September 2016 |
| Docket Number | NO. CAAP–12–0001042,NO. CAAP–12–0001044,NO. CAAP–12–0001041,NO. CAAP–12–0001040,NO. CAAP–12–0001046,NO. CAAP–12–0001043,NO. CAAP–12–0001045,NO. CAAP–12–0001047,CAAP–12–0001040,CAAP–12–0001041,CAAP–12–0001042,CAAP–12–0001043,CAAP–12–0001044,CAAP–12–0001045,CAAP–12–0001046,CAAP–12–0001047 |
| Citation | 384 P.3d 923,139 Hawai'i 147 |
| Parties | State of Hawai‘i, Plaintiff–Appellee, v. Semisi Nelson, Defendant–Appellee, and International Fidelity Insurance Company, Real Party in Interest/Appellant. (CR. No. 05–1–2446) and State of Hawai‘i, Plaintiff–Appellee, v. Karen Teruya, Defendant–Appellee, and International Fidelity Insurance Company, Real Party in Interest/Appellant. (CR. No. 02–1–1718) and State of Hawai‘i, Plaintiff–Appellee, v. Conrado Cabigon, Jr., Defendant–Appellee, and International Fidelity Insurance Company, Real Party in Interest/Appellant. (CR. No. 08–1–1192) and State of Hawai‘i, Plaintiff–Appellee, v. Steven D. Ferraris, Defendant–Appellee, and International Fidelity Insurance Company, Real Party in Interest/Appellant. (CR. No. 11–1–0306) and State of Hawai‘i, Plaintiff–Appellee, v. David K. Berry, Defendant–Appellee, and International Fidelity Insurance Company, Real Party in Interest/Appellant. (CR. No. 10–1–1289) and State of Hawai‘i, Plaintiff–Appellee, v. Justin Nakamura, Defendant–Appellee, and International Fidelity Insurance Company, Real Party in Interest/Appellant. (CR. No. 09–1–1364) and State of Hawai‘i, Plaintiff–Appellee, v. Cedro Muna, Defendant–Appellee, and International Fidelity Insurance Company, Real Party in Interest/Appellant. (CR. No. 09–1–0616) and State of Hawai‘i, Plaintiff–Appellee, v. John Paul Luna, Defendant–Appellee, and International Fidelity Insurance Company, Real Party in Interest/Appellant. (CR. No. 10–1–0621) |
| Court | Hawaii Court of Appeals |
On the briefs:
Matson Kelley, Wailuku and Michael C. Carroll, Sarah M. Love, (Bays Lung Rose & Holma of counsel), Honolulu, for Real Party in Interest–Appellant.
Brian R. Vincent, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff–Appellee.
In the eight criminal cases that are part of this appeal, a bail bond was executed by a bail agent, the defendant failed to appear in court as required under the bond, and a bail forfeiture judgment was issued pursuant to Hawaii Revised Statutes (HRS ) § 804–51 (2014)
. The primary question in the appeal is whether the notice to the “surety” about the bail forfeiture judgment, which is required under HRS § 804–51, was satisfied by notice to the bail agent who signed the bail bond, or whether the insurance company that conferred power-of-attorney on the bail agent to execute the bail bond was the “surety” who should have received the notice.
Real Party in Interest/Appellant International Fidelity Insurance Company (International Fidelity ) filed motions to set aside the bail forfeiture judgments in the eight criminal cases. In each case, either Ida Peppers (Peppers ) or Linda Del Rio (Del Rio ) of Freedom Bail Bonds (FBB ), or Charles Fisher (Fisher ) of AAA Local Bail Bonds (AAA ), executed the bail bond as the “undersigned surety.” For each of the bail bonds, International Fidelity had issued a power-of-attorney to either Peppers, Del Rio, or Fisher.
8 1511 International Fidelity contends that it is the surety on the bail bonds, and thus the notice given to the bail agent in each case regarding the bail forfeiture judgment did not satisfy the notice requirements under HRS § 804–51
.
The Circuit Court for the First Circuit (circuit court) held a consolidated hearing on International Fidelity's motions.2 On October 31, 2012, the circuit court denied the motions by way of its “Findings of Fact, Conclusions of Law, and Order Denying International Fidelity Insurance Company's Consolidated Motions to Set Aside Judgment Entered Against International Fidelity Insurance Company” (Order Denying Motions to Set Aside Forfeiture Judgment ).
On appeal, International Fidelity contends that the circuit court erred by:
(1) concluding that HRS § 804–51
did not require Plaintiff–Appellee State of Hawai‘i (State ) to give International Fidelity direct notice of the bail forfeiture judgments;
(2) concluding that International Fidelity received the notice required under HRS § 804–51
;
(3) concluding that there was no violation of International Fidelity's due process rights, and further, violating International Fidelity's due process rights by upholding the forfeitures;
(4) declining to vacate the bail forfeiture judgments pursuant to Hawai‘i Rules of Civil Procedure (HRCP ) Rule 60(b)
or HRS § 804–51 ;
(5) failing to find good cause to vacate the bail forfeiture judgments; and
(6) failing to enter a proper judgment.
For the reasons discussed below, we affirm. On the primary question presented, we hold in these cases that the bail agent was the “surety” and therefore, under HRS § 804–51
, notice of the bail forfeiture judgment to the bail agent was proper. We also do not find merit in the other points of error raised by International Fidelity.
The eight separate criminal cases were consolidated for purposes of this appeal. In each case, International Fidelity conferred power-of-attorney on either Peppers, Del Rio, or Fisher, to execute bail bonds. In each case, the circuit court declared the bail forfeited and entered a bail forfeiture judgment. Notice of each bail forfeiture judgment was given to the respective bail agent, either Peppers, Del Rio, or Fisher, through their bail bond company. In six of the cases, the bail bond company filed a motion to set aside the forfeiture judgment and all of these motions were denied. In all eight cases, even when the bail bond company had already filed a motion that had been denied, International Fidelity filed a motion to set aside the bail forfeiture judgment. International Fidelity's motions were filed long after the bail agent in each case had received notice of the forfeiture judgment. International Fidelity's motions were also filed more than thirty days after it had received a letter in each case from the State of Hawai‘i Judiciary regarding the respective bail forfeiture judgment.
After the consolidated hearing on International Fidelity's motions, the circuit court entered detailed findings of fact (FOF ) for each case. None of the circuit court's findings are challenged on appeal, and thus we are bound by the findings. Bremer v. Weeks, 104 Hawai‘i 43, 63, 85 P.3d 150, 170 (2004)
() (citations and ellipses omitted).
The circuit court's FOFs are as follows:
THE SUM OF ...
(emphasis added). Included thereafter was the sum of money the surety or sureties would pay to the State of Hawaii if the defendant “failed to perform either of these conditions.” The bonds were signed by either Ida Peppers (“Peppers”) or Linda Del Rio (“Del Rio”) of Freedom Bail Bonds (“FBB”) or Charles Fisher (“Fisher”) of AAA Local Bail Bonds (“AAA”).
2. Attached to the bail bond in each of the cases outlined below was a power-of-attorney that read as follows:3
KNOW ALL MEN BY THESE PRESENTS, that International Fidelity Insurance Company, a corporation duly organized and existing under the laws of the State of New Jersey, has constituted and appointed, and does hereby constitute and appoint, its true and lawful Attorney–in–Fact, with full power and authority to sign the company's name and affix its corporate seal to, and deliver on its behalf as surety, any and all obligations as herein provided, and the execution of such obligations in pursuance of these presents shall be as binding upon the company as fully and to all intents and purposes as if done by the regularly elected officers of said company at its home office in their own proper person; and the said company hereby ratifies and confirms all and whatsoever its said Attorney–in–Fact may lawfully do and perform in the premises by virtue of these presents.... Authority of such Attorney–in–Fact is limited to the execution of appearance bonds and cannot be construed to guarantee defendant's future lawful conduct, adherence to travel limitation, fines, restitution, payments or penalties, or any other condition imposed by a court not specifically related to court appearances. A separate Power of Attorney must be attached to each bond executed.
3. As noted below, it was Peppers of FBB in Cr. Nos. 02–1–1718, 05–1–2446, 08–1–1192, 09–1–0616, 09–1–1364, and 11–1–0306, Del Rio of FBB in Cr. No. 10–1–1289, and Fisher of AAA in Cr. No. 10–1–0621, who executed the bail bonds as “the undersigned surety or sureties” and the authorized attorney-in-fact for [International Fidelity].
4. In Cr. No. 02–1–1718, a bail bond in the amount of $ 5000 was posted on behalf of Defendant Karen Teruya on March 24, 2009 (“Teruya Bond”). The Teruya Bond was executed by Peppers as the “undersigned surety, or sureties” on behalf of FBB and as authorized by the [International Fidelity] power of attorney.
a. A Judgment and Order of Forfeiture of Bail Bond was filed on July 13, 2009 after Teruya failed to appear at a hearing before Judge Steven Alm.
b. On July 13, 2009, notice of the entry of the Judgment and Order of Forfeiture of Bail Bond was sent pursuant to HRS § 804–51 by certified mail, return receipt requested, to Peppers of FBB as surety on the Teruya Bond.
c. On August 5, 2009, and again on October 20,...
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