Beth's Bail Bonds, Inc. v. State

Cite as 2016 Ark. App. 183

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-15-541
Opinion Delivered March 30, 2016

BETH’S BAIL BONDS, INC. APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
APPELLANT FIRST DIVISION
V. [NOS. 60CR-13-2394, 60CV-15-912]

STATE OF ARKANSAS HONORABLE LEON JOHNSON, JUDGE
APPELLEE
AFFIRMED

DAVID M. GLOVER, Judge

Beth’s Bail Bonds, Inc. (Bail Bonds), appeals from the March 2, 2015 bond-forfeiture

judgment and the March 9, 2015 order denying its motion to set aside the bond-forfeiture

judgment. Bail Bonds raises four points of appeal: 1) the bond-forfeiture judgment should

not have been entered because the defendant, Robert Lewis Ford, was in the Pulaski County

Detention Center on the day of the hearing; 2) the trial court abused its discretion by not

granting Bail Bonds a continuance to have counsel present; 3) the provisions of Arkansas

Code Annotated section 16-84-207(Repl. 2005) were not followed in that the trial court

did not issue a warrant when Ford missed his court date; and 4) the trial court abused its

discretion by not setting aside the bond-forfeiture judgment pursuant to Rule 60 of the

Arkansas Rules of Civil Procedure. We affirm.

Bail Bonds wrote a $20,000 bail bond for Robert Lewis Ford in Case No. CR13-

2394. On November 17, 2014, Ford failed to appear for court, and a summons and order

to show cause were sent to Bail Bonds on that day, ordering it to appear in court on February
 Cite as 2016 Ark. App. 183

23, 2015, and show cause why Ford’s bond should not be forfeited due to his failure to

appear. It is undisputed the February 23 hearing was cancelled due to inclement weather

and rescheduled for February 25, 2015.

David Viele, who is not an attorney, appeared on behalf of Bail Bonds at the February

25, 2015 hearing. He informed the court that Bail Bonds’s counsel was not available to

come on that day, further explained that no warrant had been issued on Ford, and asked the

court to reset the show-cause hearing for March 9, when another bail matter involving Ford

and a different bail-bond company was to be addressed. The judge responded by saying,

“All right. Judgment for the county for $20,000.”

Ford was not present at the February 25 hearing, but Bail Bonds discovered that

afternoon that he had been in the Pulaski County Jail since February 24, 2015. Thinking

the bond-forfeiture judgment had already been entered, Bail Bonds filed a motion to set

aside the forfeiture judgment on that same date, February 25, 2015. In it, Bail Bonds’s basic

arguments for setting aside the forfeiture were that Ford had been in custody since February

24; that he was still in custody at the time of the bond-forfeiture hearing on February 25;

and that there was no evidence a warrant had ever been entered in the ACIC/NCIC system

based on Ford’s failure to appear on November 17, 2014.

On March 2, 2015, the trial court actually entered the bond-forfeiture judgment

against Bail Bonds in the amount of $20,000. A hearing on the motion to set aside was held

March 9, 2015. Bail Bonds’s counsel was present at that hearing and argued the motion.

The trial court denied the motion, and an order to that effect was entered on March 9,

2015.

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 Cite as 2016 Ark. App. 183

For ease of discussion, we will address Bail Bonds’s arguments in a slightly different

order, beginning with the first and third points, followed by the second point and then the

fourth point. Bail Bonds first contends the bond-forfeiture judgment should not have been

entered because Ford was in the Pulaski County Detention Center on the day of the hearing.

We disagree.

In M & M Bonding Co. v. State, 59 Ark. App. 228, 233, 955 S.W.2d 521, 524 (1997)

(citations omitted), our court explained in pertinent part:

Although the surety is not expected to keep the principal in physical restraint he is
expected to keep close track of his whereabouts and keep him within this state subject
to the jurisdiction of the court.

The surety is not released from forfeiture except where an act of God, the State, or
of a public enemy, or actual duress prevents appearance by the accused at the time
fixed in the bond. Absent one of those excuses the failure of an accused to appear at
the time fixed is sufficient basis for forfeiture.

Proceedings after forfeiture are summary ones. The order to show cause pursuant to [the
statute] merely affords the bondsman an opportunity to be heard with respect to remission of
all or some part of the forfeiture.

Where the principal does not appear there is no exoneration from liability under the
bond, regardless of the extent of the search by the surety, if the surety shows no more
than a disappearance of the principal. The trial court’s authority to remit a forfeiture
when the accused is subsequently surrendered by the surety is discretionary and that
discretion will not be interfered with unless it is arbitrary or abused. It devolves upon
the bail bondsman to establish facts which justify favorable action in the exercise of
the trial court’s discretion, and the failure to allow him even his expenses in this
matter is not necessarily an abuse of the court’s discretion. The mere fact that the bail
takes the accused into custody after the forfeiture and surrenders him to the
authorities, even during the same term of court, does not entitle the bail to a right
to remission of the penalty, even though the return of the principal was at the expense
of the surety.

(Emphasis in original.) See also Ark. Code Ann. § 16-84-207(b)(1) (“If the defendant fails to

appear at any time when the defendant’s presence is required under subsection (a) of this

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 Cite as 2016 Ark. App. 183

section, the circuit court shall . . . adjudge the bail bond of the defendant or the money deposited in

lieu thereof to be forfeited, . . . .”) (Emphasis added.)

Here, the most critical date regarding the bond forfeiture was November 17, 2014

— the date when Robert Ford failed to appear in court for a scheduled hearing. Bail Bonds

acknowledges that more than seventy-five days had passed by the time Ford was confined

in jail in February on different charges, making the issue one that clearly involved the trial

court’s discretion. See Ark. Code Ann. § 16-84-207(c)(2)(A). Further, Ford’s capture was

not achieved by Bail Bonds. Without citing any legal authority, and relying on an argument

we do not find convincing, Bail Bonds asks us to reverse the bond-forfeiture judgment based

on the fact Ford was in custody at the time of the show-cause hearing. We find no abuse of

the trial court’s discretion and decline to reverse the bond-forfeiture judgment on that basis.

Bail Bonds next contends the provisions of Arkansas Code Annotated section 16-84-

207 were not followed because the trial court did not issue a warrant when the defendant

missed his court date. Again, we find no basis for reversal.

Arkansas Code Annotated section 16-84-207 provides in pertinent part:

(b)(1) If the defendant fails to appear at any time when the defendant’s presence is
required under section (a) of this section, the circuit court shall enter this fact by written
order or docket entry, adjudge the bail bond of the defendant or the money deposited
in lieu thereof to be forfeited, and issue a warrant for the arrest of the defendant.
(Emphasis added.)
It is undisputed that an arrest warrant for Ford was not issued immediately after he

had failed to appear at the November hearing even though the trial court stated at the

November hearing that one was to issue. In fact, an arrest warrant was not issued until after

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Ford was already in jail on another charge. However, it is also undisputed the summons and

show-cause order were entered the same day that Ford failed to appear.

Bail Bonds relies on First Arkansas Bail Bonds, Inc. v. State, 373 Ark. 463, 284 S.W.3d

525 (2008), to support its contention we should reverse the bond-forfeiture judgment

because the trial court did not strictly comply with the requirements of Arkansas Code

Annotated section 16-84-207(b)(1). We are not convinced. First Arkansas addressed with

the statutory requirement that a summons be “immediately” issued to the surety by the

circuit clerk. See Ark. Code Ann. § 16-84-207(b)(2)(B) (“The circuit clerk shall . . .

[i]mmediately issue a summons on each surety. . . .”) First Arkansas does not address the

issuance of an arrest warrant, which is described in a different subsection of the statute. Our

supreme court construed the statute “just as it reads, and [gave] the words their ordinary and

usually accepted meaning in the common language,” holding that the summons was not

issued “immediately” as required by the statute. Our supreme court further explained,

“Because our case law clearly states that we strictly construe statutory service requirements,”

reversal of the circuit court’s forfeiture judgment was required.

Here, we are dealing with the issuance of an arrest warrant for a defendant who failed

to appear, not the issuance of a summons on a surety, so the long history of case law

requiring the strict construction of statutory-service requirements is not applicable. The

subsection of the statute at issue here does not contain the directive for “immediate”

issuance. Consequently, we do not find First Arkansas controlling, Bail Bonds has not offered

any other authority for its position, and we are not convinced that the circumstances

presented here require reversal of the bond-forfeiture judgment.

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 Cite as 2016 Ark. App. 183

Bail Bonds next contends the trial court abused its discretion by not granting it a

continuance to have counsel present at the February 25 show-cause hearing. We find no

basis for reversal under this point.

Bail Bonds appeared in court through an agent, who explained that Bail Bonds’s

counsel was unable to be there. We agree with Bail Bonds’s contention that a corporation

cannot appear in court pro se—that it can only be represented in court through a licensed

attorney. However, even if we were to conclude that the trial court abused its discretion in

refusing to grant a continuance for the show-cause hearing, we are unable to find that Bail

Bonds was prejudiced in any fashion.

Bail Bonds subsequently filed its motion to set aside the bond-forfeiture judgment,

contending that Ford was in custody in Pulaski County on the date of the forfeiture hearing,

and that there was no evidence a warrant had ever been entered in the ACIC/NCIC system

as a result of Ford’s failure to appear at the November hearing. Bail Bonds was afforded a

hearing on this motion on March 9, 2015 where it was represented by counsel. In addition

to the bases asserted in its motion, Bail Bonds also argued that the denial of its request for a

continuance at the show-cause hearing provided a reason for setting aside the judgment.

We have already explained why the “in custody” and “lack of an arrest warrant”

arguments have no merit, and Bail Bonds has provided no further rationale as to why the

denial of its request for a continuance prejudiced its position. Consequently, Bail Bonds has

not demonstrated in any fashion how it was harmed by the denial of a continuance, and we

will not reverse the trial court under these circumstances when there has been no showing

of prejudice.

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 Cite as 2016 Ark. App. 183

For its final point of appeal, Bail Bonds contends the trial court abused its discretion

by not setting aside the bond-forfeiture judgment pursuant to Rule 60 of the Arkansas Rules

of Civil Procedure. We disagree.

In arguing its motion to set aside, Bail Bonds relied on the portion of Rule 60 that

is designed “to prevent the miscarriage of justice”:

(a) Ninety-Day Limitation. To correct errors or mistakes or to prevent the
miscarriage of justice, the court may modify or vacate a judgment, order or decree on
motion of the court or any party, with prior notice to all parties, within ninety days
of its having been filed with the clerk.
(Emphasis added.) The motion to set aside listed two primary bases for doing so: 1) Ford

had been in custody in the Pulaski County jail since February 24, 2015, which preceded the

February 25 bond-forfeiture hearing; and 2) there was no evidence a warrant had been

entered in the ACIC/NCIC system as a result of Ford’s failure to appear. At the hearing on

the motion, Bail Bonds additionally asserted the denial of its request for a continuance as a

basis for setting the judgment aside. We have fully discussed these three issues and why they

do not provide a basis for reversal of the bond-forfeiture judgment. Nor do they demonstrate

that the trial court abused its discretion in denying the motion to set aside.

Affirmed.

KINARD and HOOFMAN, JJ., agree.

Charles D. Hancock, for appellant.

Leslie Rutledge, Att’y Gen., by: Rebecca Bailey Kane, Ass’t Att’y Gen., for appellee.

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