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
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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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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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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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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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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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