State v. Ortiz
| Decision Date | 06 August 2019 |
| Docket Number | No. COA18-1311,COA18-1311 |
| Citation | 832 S.E.2d 474,266 N.C.App. 512 |
| Parties | STATE of North Carolina v. Elmer Romero ORTIZ, Defendant, and Anthony Broadway, Bail Agent, and 1st Atlantic Surety Company, Surety. |
| Court | North Carolina Court of Appeals |
Todd Allen Smith and Champion & Giles, P.A., Graham, by Robert Clyde Giles, II, for Alamance-Burlington Board of Education, Appellant.
No brief for Elmer Romero Ortiz, Defendant.
David K. Holley, Graham, for Anthony Broadway, Bail Agent, Appellee.
Brian Elston Law, Asheville, by Brian D. Elston, for 1st Atlantic Surety Company, Surety, Appellee.
The Alamance-Burlington Board of Education ("the Board") appeals from the trial court's order providing relief from a forfeited bond before a final judgment. The Board argues that the trial court erred in granting relief based on N.C. Gen. Stat. § 15A-301 because a different statute, N.C. Gen. Stat. § 15A-544.5, is the exclusive means for relief. After thorough review of the record and applicable law, we vacate the trial court's order.
The record tends to show the following1 :
On 29 June 2017, Defendant Elmer Romero Ortiz ("Defendant") was arrested in Alamance County on felony charges of committing a statutory sex offense on a child younger than fifteen years of age and taking indecent liberties with a minor. Defendant was released on a $50,000 bond on 30 June 2017 to secure his appearance at further proceedings. The bond was underwritten by Anthony Broadway as bail agent for 1st Atlantic Surety Company (collectively, "Sureties").
Defendant failed to appear for his 14 February 2018 court date. The court forfeited Defendant's bond and issued an order for his arrest. The forfeiture order was entered on 19 February 2018, the parties were notified of the forfeiture on 22 February 2018, and the final judgment of forfeiture was scheduled to be entered on 22 July 2018.
On 26 April 2018, Sureties filed a motion to recall the order for arrest and strike the forfeited bond, pursuant to N.C. Gen. Stat. §§ 15A-301 and 15A-544.5. Sureties alleged that Defendant was deported at the time of his missed 14 February 2018 court appearance.
During the initial hearing on the motion on 3 May 2019, the Board argued that because the forfeiture had not yet become a final judgment, Section 15A-544.5 was the sole avenue of relief and that Sureties could not establish any of that statute's enumerated factors to set aside the bond forfeiture. Sureties conceded that none of the factors existed, but argued that Section 15A-301 provided alternative authority for the trial court to strike the forfeiture. The trial court took the matter under advisement and continued the hearing.
At the second hearing on 9 May 2018, at the request of the trial court, Defendant's counsel and an assistant district attorney for Alamance County were present, along with Sureties and the Board. Defense counsel informed the trial court that Defendant was in federal immigration custody on 14 February 2018 and that his current whereabouts were unknown.2 The assistant district attorney asserted her belief that since being deported, Defendant "had already returned to the United States without proper permission and had been apprehended by law enforcement officials in Texas." The trial court again took the matter under advisement.
During the third hearing on 20 July 2018—two days before the original final judgment date—the trial court told the parties that it would not strike Defendant's arrest order but would grant Sureties relief from the forfeited bond. The trial court entered a written order on 18 September 2018 citing Section 15A-301 for its authority to grant relief and found "that extraordinary circumstances exist[ed] for good cause" to strike the bond forfeiture.
The Board appealed on 20 September 2018.
Sureties argue that the Board's appeal should be dismissed because it untimely filed notice of appeal more than two months following entry of final judgment on 20 July 2018. We disagree.
Rule 3 of our Rules of Appellate Procedure generally provides that in civil actions a party has 30 days to file and serve notice of appeal from the date of the trial court's final judgment or from the date of service if not served within three days upon judgment. N.C. R. App. P. 3(c) (2019); Brown v. Swarn , ––– N.C. App. ––––, ––––, 810 S.E.2d 237, 238 (2018). In describing what makes a judgment final, Rule 58 of our Rules of Civil Procedure states:
[A] judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court pursuant to Rule 5. The party designated by the judge or, if the judge does not otherwise designate, the party who prepares the judgment, shall serve a copy of the judgment upon all other parties within three days after the judgment is entered.
N.C. Gen. Stat. § 1A-1, Rule 58 (2017) (emphasis added). Thus, "the rendering of an oral ruling does not constitute the entry of a final judgment or order." Kingston v. Lyon Constr., Inc. , 207 N.C. App. 703, 709 n.3, 701 S.E.2d 348, 353 n.3 (2010) (citing Kirby Bldg. Sys., Inc. v. McNiel , 327 N.C. 234, 393 S.E.2d 827 (1990) ); see also Carter v. Hill , 186 N.C. App. 464, 465-66, 650 S.E.2d 843, 844 (2007) ().
After the trial court's oral ruling at the 20 July 2018 hearing, the clerk stamped "forfeiture stricken" on the bond forfeiture notice, and the trial court signed and dated that stamp. The clerk also wrote "entered" and the date next to the stamp. No copy of the signed and stamped forfeiture notice was served on either of the parties. Sureties assert that (1) the stamped forfeiture notice constituted a valid written final judgment and (2) because final judgment was rendered, the Board had actual notice of the entry of judgment and its content, notwithstanding the lack of service.3
It is clear from the 18 September 2018 order that the trial court did not construe the signed and stamped forfeiture notice to be a final judgment. Not only was the stamped notice not served on the parties, as required by Rule 58 of the Rules of Civil Procedure, the parties’ and trial court's actions contravene Sureties’ argument. At the conclusion of the 20 July 2018 hearing, the trial court told Sureties, consistent with Rule 58, to draft a proposed final order, deliver it to the Board for review, and then submit it to the trial court. After Sureties submitted a proposed order, the trial court notified the parties that it would write its own final order. These communications are inconsistent with the stamped and signed forfeiture notice serving as a final judgment. See Russ v. Woodard , 232 N.C. 36, 41, 59 S.E.2d 351, 355 (1950) ().
Further, the Board's conduct reflects that it did not have notice that final judgment had been rendered before the trial court's written order in September 2018. See Durling v. King , 146 N.C. App. 483, 494, 554 S.E.2d 1, 7 (2001) (citations omitted) ("[T]he purposes of the requirements of Rule 58 are to make the time of entry of judgment easily identifiable, and to give fair notice to all parties that judgment has been entered."). After the trial court indicated that it would write the final order, the Board continually inquired up until 18 September 2018 as to when the order would be finalized because it "wished to enter a timely notice of appeal."
We therefore conclude that the trial court's judgment granting relief from the forfeited bond was not entered on 20 July 2018, but rather on 18 September 2018. Because the Board timely filed notice of appeal two days later, we need not address Sureties’ secondary argument concerning the Board's actual notice, and proceed in reviewing the merits of the issue on appeal.
The Board argues that Section 15A-544.5 is the sole provision in Chapter 15A for a court to provide relief before the date of a forfeited bond's final judgment and that the trial court erred in granting relief from the bond forfeiture. In response, Sureties argue that Section 15A-301 granted the trial court authority to relieve them of their bond obligation. For the reasons set out below, we conclude that the trial court exceeded its statutory authority provided by Chapter 15A and vacate the trial court's order.
Section 15A-554.1 et seq. of our General Statutes govern bail bond forfeiture and establish the contours of the trial court's authority to relieve an obligor from its bond liability. When a bond has been issued to secure the pre-trial release of a criminal defendant who then proceeds to "fail[ ] on any occasion to appear before the court as required," the trial court is obligated to "enter a forfeiture for the amount of that bond ... against each surety on the bail bond." N.C. Gen. Stat. § 15A-544.3(a) (2017). A forfeiture order becomes a final judgment 150 days after notice is given to the interested parties. Id. § 15A-544.6. Once final, the judgment is docketed "as a civil judgment ... against each surety named in the judgment." Id. § 15A-544.7(a).
In certain statutorily-prescribed circumstances, the trial court can grant relief to a surety from the forfeited bond pre- and post-final judgment. For bonds that have not become final judgments, the trial court can only "set aside" a forfeiture if one of seven enumerated reasons have been established, such as due to the defendant's death or additional incarceration. See id. § 15A-544.5(b) ("Reasons for Set Aside."). For final judgments, the trial court can grant "relief" if (1) "[t]he person seeking relief was not given notice"...
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State v. Roulhac
...a forfeiture if one of seven enumerated reasons have been established," as provided in section 15A-544.5(b). State v. Ortiz , 266 N.C.App. 512, 517, 832 S.E.2d 474, 477 (2019).(b) Reasons for Set Aside. – Except as provided by subsection (f) of this section,1 a forfeiture shall be set aside......