State v. NavarroÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA15-1065

Filed: 7 June 2016

Harnett County, No. 14 CR 50882

STATE OF NORTH CAROLINA

JOEL JUAN NAVARRO, Defendant, and CRUM & FORSTER INDEMNITY CO.,
Surety.

Appeal by surety from orders entered 23 January 2015 and 10 June 2015 by

Judge Jim Love, Jr. in Harnett County District Court. Heard in the Court of Appeals

24 February 2016.

W. Robert Denning, III and Mary McCullers Reece for surety-appellant Crum
& Forster Indemnity Co.

Rod Malone and Stephen G. Rawson, for respondent-appellee Harnett County
Board of Education.

Harnett County District Attorney Vernon K. Stewart for the State.

ELMORE, Judge.

This cases arises from an order of bond forfeiture issued after defendant failed

to appear in court. The trial court denied surety’s petition to remit and subsequent

Rule 59(e) motion on the grounds that surety failed to demonstrate “extraordinary

circumstances” which warrant relief from judgment. On appeal, surety principally

argues that (1) in its order denying surety’s motion to remit, the trial court failed to
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make sufficient findings of fact determinative of the ultimate issue, and (2) the trial

court abused its discretion in denying surety’s Rule 59(e) motion. We affirm.

I. Background

Joel Juan Navarro (defendant) was arrested in Harnett County for cocaine

trafficking. He was released after posting a $100,000.00 bond written by Jessica

Matthews, a bail agent for Crum & Forster Indemnity Co. (surety). Defendant was

scheduled to appear in Harnett County District Court on 27 May 2014, but failed to

do so. The next day, the court issued an order of forfeiture on the $100,000.00 bond.

The forfeiture notice listed 25 October 2014 as the final judgment date.

On 2 October 2014, surety contacted David Marshburn, one of its bail agents,

for assistance in finding defendant. Marshburn, along with Agents Berube and Ward,

drove from North Carolina to Miami and located defendant’s home. After conducting

surveillance, the agents entered the house. They observed no sign of defendant but

his girlfriend, Miriam Roche, and friend, Maria Romero, were present. Both told the

agents that defendant was in Boston and had not been back since he was released

from jail. Marshburn told Roche to “call Defendant’s Attorney in Harnett County

North Carolina and have the order for arrest and failure to appear recalled and make

sure Defendant goes to court.” He also told Romero to contact him when defendant’s

case was recalled. The agents then left and returned to North Carolina.

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On 16 October 2014, Marshburn learned from defendant’s attorney that the

district attorney was not willing to recall the order for arrest and failure to appear.

Nevertheless, the next day Marshburn traveled back to Miami in hopes that

defendant “would come back out of hiding since defendant thinks he does not have a

warrant.” At defendant’s home, Romero told Marshburn that defendant is in Boston

and that he was stopped a few days ago at the airport by TSA. Marshburn decided

to head to Boston.

Upon his arrival, Marshburn began conducting surveillance at the address

listed on the appearance bond. A neighbor told Marshburn that he saw defendant at

the address several weeks ago, at which point Marshburn decided to approach the

house. A woman answered the door and told Marshburn that defendant had been in

Miami with Roche about two weeks ago, but he was not at the house in Boston. She

also told Marshburn that if he “wanted to find defendant, he was going to have to

follow [Roche].”

Marshburn arrived back in North Carolina on 22 October 2014 before making

his way to Miami with Agents Berube and Ward. At defendant’s home, the agents

again questioned Roche and Romero, who told them that defendant was now in

Phoenix staying with a friend. The agents decided to return to North Carolina and

verify defendant’s travel with TSA.

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On 25 October 2014, Marshburn flew to Phoenix and found the apartment

complex where defendant was allegedly staying. After a day of surveillance,

Marshburn decided to question the maintenance man. He directed Marshburn to

defendant’s apartment unit, but added that he had “not seen defendant in a while.”

Hoping for an update on defendant’s location, Marshburn texted Romero, who told

him that defendant “went across the border into Mexico.” Marshburn returned to

North Carolina.

On 31 October 2014, Marshburn and Berube flew to Miami after hearing that

defendant “might show up” at a Halloween party hosted by Roche. They did not find

defendant, but they did install a tracking device on his car before returning to North

Carolina. A week later, Marshburn received information from the tracking device

showing that defendant’s car had moved to an unfamiliar address. Marshburn

traveled back to Miami with Agents Berube and Griggs to conduct surveillance and

tail cars leaving the house. On 14 November 2014, after no sign of defendant, the

agents once again returned to North Carolina.

The trail went cold until 7 December 2014, when Marshburn received a text

message containing defendant’s new phone number. He purchased a phone with a

Phoenix area code and had Agent Jiminez call defendant to “befriend” him. Six days

later, Marshburn and Jiminez flew to Phoenix to set up a meeting with defendant

but, according to Marshburn, defendant “gave Agent Jiminez the run around and

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never would meet.” Eventually, defendant disconnected the phone and the agents’

subsequent attempts to track it failed. They returned to North Carolina.

On 27 December 2014, Marshburn made his final visit to Miami with Agent

Trotter. Marshburn had received another text message containing defendant’s

location and intercepted defendant as he was heading toward his home in Miami. On

30 December 2014, the agents surrendered defendant into custody in Harnett County

on behalf of surety.

Following defendant’s surrender, Marshburn submitted a petition seeking full

remission of the $100,000.00 bond. The court denied the petition by a written order

entered 23 January 2015, which contained the following relevant findings of fact:

5. The Harnett County Clerk of Court issued a Bond
Forfeiture Notice giving notice of the Defendant’s failure to
appear to the Defendant, Surety, and Bail Agent on 28 May
2014.

6. The Bond Forfeiture Notice indicated 25 October 2014
was the Final Judgment Date.

7. The Surety surrendered the Defendant on 30 December
2014 to the Harnett County Detention Center.

8. On 6 January 2015, the Surety filed a Petition for
Remission with the Harnett County Clerk of Court
requesting the Court remit the 100,000.00 dollar bond
which was paid by the Surety on 27 October 2015.

....

10. The Surety and the Bail Agent are engaged in the bail
bonding profession.

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11. The Surety and the Bail Agent received proper notice
of the pending bond forfeiture and the final judgment date.

12. The Surety and Bail Agent were aware the Defendant
owned property in Massachusetts and Florida prior to
posting the Defendant’s bond.

13. The Surety and Bail Agent were aware the Defendant
did not reside in the State of North Carolina.

14. The Defendant was apprehended by the Surety in the
State of Florida where he owned a home.

15. Prior to posting the Defendant’s bond, the surety
secured a 100,000.00 dollar lien against the Defendant’s
home located in Florida.

Based on these findings, the trial court concluded surety and bail agent failed to

demonstrate that any extraordinary cause exists to warrant relief from the final

judgment of the Court.1

On 2 February 2015, surety filed a motion to alter or amend the judgment

pursuant to Rule 59. Along with the motion, surety included exhibits and affidavits

from Marshburn describing his efforts to apprehend and surrender defendant. After

a hearing, the trial court took the matter under advisement and later denied surety’s

motion by an order entered 10 June 2015. On 23 June 2015, surety appealed both

the 10 June 2015 order denying the motion to alter or amend the judgment, and the

1 Although the trial court included this statement in its findings of fact, we agree with both
surety and the Board that it is more properly characterized as a conclusion of law, as it requires “the
exercise of judgment, or the application of legal principles . . . .” In re Helms, 127 N.C. App. 505, 510,
491 S.E.2d 672, 675 (1997) (citations and quotation marks omitted).

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23 January 2015 order denying surety’s petition to remit.

II. Discussion

A. Jurisdiction

As a threshold matter, the Board argues that this Court lacks jurisdiction over

surety’s appeal from the trial court’s 23 January 2015 order. The Board maintains

that surety’s motion to alter or amend the judgment was not a proper Rule 59 motion

because (1) it failed to state the grounds with particularity, as required by Rule 7,

and (2) it attempts only to reargue matters from the original hearing and present

evidence that could have been offered but was not. According to the Board, therefore,

surety’s motion was insufficient to toll the time for appeal of the underlying order.

“[A] bond forfeiture proceeding, while ancillary to the underlying criminal

proceeding, is a civil matter.” State ex rel. Moore Cnty. Bd. of Educ. v. Pelletier, 168

N.C. App. 218, 222, 606 S.E.2d 907, 909 (2005) (citing State v. Mathis, 349 N.C. 503,

509 S.E.2d 155 (1998)). Pursuant to Rule 3 of the North Carolina Rules of Appellate

Procedure, a party has thirty days to appeal from a judgment or order in a civil action.

N.C. R. App. P. 3(c) (2016). “ ‘The running of the time for filing and serving a notice

of appeal in a civil action . . . is tolled . . . by a timely [Rule 59] motion’ for a new trial

or to alter or amend a judgment.” Smith v. Johnson, 125 N.C. App. 603, 606, 481

S.E.2d 415, 417 (1997) (quoting N.C. R. App. P. 3(c), (c)(3), (c)(4)).

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Rule 59 of the North Carolina Rules of Civil Procedure lists nine grounds upon

which a party may move to alter or amend a judgment. N.C. Gen. Stat. § 1A-1, Rule

59(a) & (e) (2015). Such grounds include “[i]nsufficiency of the evidence to justify the

verdict or that the verdict is contrary to law,” and “[a]ny other reason heretofore

recognized as grounds for new trial.” N.C. Gen. Stat. § 1A-1, Rule 59(a)(7) & (9). Like

any other written motion, a Rule 59 motion is subject to the requirements of Rule 7.

N.C. Gen. Stat. § 1A-1, Rule 7(b)(1) (2015); see, e.g., N.C. Alliance for Transp. Reform,

Inc. v. N.C. Dep’t of Transp., 183 N.C. App. 466, 468–70, 645 S.E.2d 105, 107–08

(2007) (finding a Rule 59 motion procedurally deficient under Rule 7(b)(1)).

Rule 7(b)(1) states, “An application to the court for an order shall be by motion

which . . . shall be made in writing, shall state with particularity the grounds therefor,

and shall set forth the relief or order sought.” N.C. Gen. Stat. § 1A-1, Rule 7(b)(1)

(2015) (emphasis added). “The mere recitation of the rule number relied upon by the

movant is not a statement of the grounds within the meaning of Rule 7(b)(1).” Smith,

125 N.C. App. at 606, 481 S.E.2d at 417. Rather, the movant “must supply

information revealing the basis of the motion.” Id. (citing Sherman v. Myers, 29 N.C.

App. 29, 30, 222 S.E.2d 749, 750 (1976); 11 Charles Alan Wright, Arthur R. Miller &

Mary Kay Kane, Federal Practice and Procedure: Civil § 2811 (2d ed. 1995)). If

necessary, a Rule 59 motion may be supported by accompanying affidavits. See N.C.

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Gen. Stat. § 1A-1, Rule 59(c) (2015) (“When a motion for new trial is based upon

affidavits they shall be served with the motion.”).

After examining the contents of the challenged motion and attached affidavits,

we are convinced that surety’s motion satisfied the particularity requirements

expressed in Rule 7. In its motion, surety offered the following grounds for relief:

“[P]etitioner asserts that there was an insufficiency of the evidence before the Court

to justify the verdict or judgment and the conclusions of law as well as other reasons

heretofore recognized as grounds to alter or amend judgment.” While the foregoing

statement tracks the language from Rule 59(a)(7) and (9), surety elaborates on the

basis of its motion: “Movant prays the Court open this judgment previously entered,

take additional testimony on the issue of extraordinary cause and upon such evidence

to amend the findings of fact and conclusions of law will make [sic] new findings and

conclusions and direct the entry of an amended and new judgment.”

Surety also attached and incorporated by reference Marshburn’s affidavit,

which included a brief description of his efforts to surrender defendant and his

assertion that “[s]uch efforts constitute extraordinary cause to justify relief from

judgment under North Carolina law.” Marshburn’s second affidavit, attached and

incorporated into his first, as well as the exhibits documenting Marshburn’s travel,

receipts, text messages, and other information, provides a detailed account of his

efforts to locate and surrender defendant. The affidavits and exhibits offer

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evidentiary support for surety’s argument that the verdict was based on insufficient

evidence—which is not the same as “re-arguing matters from the original hearing.”

We conclude, therefore, that surety filed a proper Rule 59 motion to toll the thirty-

day period for appeal.

B. Challenged Finding of Fact No. 15

Turning now to the merits of the appeal, surety first argues that the trial

court’s Finding of Fact No. 15 is not supported by competent evidence. Surety does

not challenge the court’s finding that defendant owned a home in Florida, as stated

in Finding of Fact No. 14, but instead argues that the home securing the bond

belonged to a person other than defendant.

“In reviewing a trial judge’s findings of fact, we are ‘strictly limited to

determining whether the trial judge’s underlying findings of fact are supported by

competent evidence, in which event they are conclusively binding on appeal, and

whether those factual findings in turn support the judge’s ultimate conclusions of

law.’ ” State v. Williams, 362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008) (quoting State

v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)); see also Sisk v. Transylvania

Cmty. Hosp., Inc., 364 N.C. 172, 179, 695 S.E.2d 429, 434 (2010) (“ ‘[F]indings of fact

made by the trial judge are conclusive on appeal if supported by competent evidence,

even if . . . there is evidence to the contrary.’ ” (quoting Tillman v. Commercial Credit

Loans, Inc., 362 N.C. 93, 100–01, 655 S.E.2d 362, 369 (2008))).

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Opinion of the Court

After careful review of the record, we have found no evidence that surety

secured a $100,000.00 lien against defendant’s home in Florida. The record actually

shows that the bond was secured by the home of Alexander Garcia, who executed a

mortgage deed and contingent promissory note securing $100,000.00 in future

advances to surety in the event of forfeiture. The address of the encumbered property

described in the mortgage deed does not match defendant’s address listed in

Marshburn’s affidavit. There is no evidence that defendant owned or had any interest

in the encumbered property. Nor can we even determine the nature of Garcia’s

relationship to defendant. Because Finding of Fact No. 15 is not supported by

competent evidence, it may not be used to support the conclusion of law that surety

failed to demonstrate “extraordinary circumstances.” See Cavenaugh v. Cavenaugh,

317 N.C. 652, 658, 347 S.E.2d 19, 23 (1986) (“Since the trial judge’s findings of fact

are not supported by competent evidence, they cannot be used to support a conclusion

of law . . . .”).

C. Sufficiency of the Trial Court’s Findings of Fact

Next, surety argues that the trial court erred in denying surety’s motion to

remit the bond forfeiture because it failed to make pertinent findings of fact on

contested matters, as required by N.C. Gen. Stat. § 1A-1, Rule 52.

“In all actions tried upon the facts without a jury,” Rule 52 of the North

Carolina Rules of Civil Procedure requires the trial court to “find the facts specially

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and state separately its conclusions of law thereon and direct the entry of the

appropriate judgment.” N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) (2015). To satisfy Rule

52,

the trial court must make “a specific statement of the facts
on which the rights of the parties are to be determined, and
those findings must be sufficiently specific to enable an
appellate court to review the decision and test the
correctness of the judgment.” Rule 52(a)(1) does not
require recitation of evidentiary facts, but it does require
specific findings on the ultimate facts established by the
evidence, admissions and stipulations which are
determinative of the questions involved in the action and
essential to support the conclusions of law reached.

Chem. Realty Corp. v. Home Fed. Sav. & Loan Ass’n, 65 N.C. App. 242, 249, 310

S.E.2d 33, 37 (1983) (citations and quotation marks omitted), disc. review denied, 310

N.C. 624, 315 S.E.2d 689, cert. denied, 469 U.S. 835, 83 L. Ed. 2d 69 (1984); see also

State v. Rakina, 49 N.C. App. 537, 540–41, 272 S.E.2d 3, 5 (1980) (“Under Rule 52(a),

. . . the court need only make brief, definite, pertinent findings and conclusions upon

the contested matters.”). “Where a trial court’s findings of fact ignore questions of

fact that must be resolved before judgment can be entered, the action should be

remanded.” State v. Escobar, 187 N.C. App. 267, 270, 652 S.E.2d 694, 697 (2007)

(citing Chem. Realty Corp., 65 N.C. App. at 250, 310 S.E.2d at 37).

There are only two grounds upon which a surety may obtain relief from a final

judgment of forfeiture: “The person seeking relief was not given notice as provided

in G.S. 15A-544.4”; or “[o]ther extraordinary circumstances exist that the court, in its

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discretion, determines should entitle that person to relief.” N.C. Gen. Stat. § 15A-

544.8(b)(1) & (2) (2015). “ ‘Extraordinary circumstances’ in the context of bond

forfeiture has been defined as ‘going beyond what is usual, regular, common, or

customary . . . of, relating to, or having the nature of an occurrence or risk of a kind

other than what ordinary experience or prudence would foresee.’ ” State v. Gonzalez-

Fernandez, 170 N.C. App. 45, 49, 612 S.E.2d 148, 152 (2005) (quoting State v. Vikre,

86 N.C. App. 196, 198, 356 S.E.2d 802, 804 (1987)).

Whether extraordinary circumstances exist “is a heavily fact-based inquiry”

and “should be reviewed on a case by case basis.” State v. Coronel, 145 N.C. App. 237,

244, 550 S.E.2d 561, 566 (2001). Our courts have articulated several factors to

determine whether “extraordinary circumstances” exist to remit a judgment of

forfeiture. Those relevant to our discussion sub judice include (1) “the inconvenience

and cost to the State and the courts,” (2) “the surety’s status, be it private or

professional,” (3) “the risk assumed by the sureties,” and (4) “the diligence of sureties

in staying abreast of the defendant’s whereabouts prior to the date of appearance.”

Id. at 248, 550 S.E.2d at 569 (citations omitted).

As for the weight of particular factors, we have specifically cautioned that

“diligence alone will not constitute ‘extraordinary cause,’ for due diligence by a surety

is expected.” Id. (citation omitted). Nor “will the amount of expenses incurred by

professional sureties due to a forfeiture” be sufficient in and of itself. Id. (citation

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omitted). A surety assumes the risk of expending resources to the extent of its

foreseeable efforts. See Gonzalez-Fernandez, 170 N.C. App. at 53, 612 S.E.2d at 154

(“A surety’s efforts to bring a defendant to North Carolina to appear in court are not

extraordinary if it was foreseeable that the surety would have to expend those efforts

to produce the defendant in court.”); Vikre, 86 N.C. App. at 199, 356 S.E.2d at 804 (“It

was entirely foreseeable . . . that the sureties would be required to expend

considerable efforts and money to locate [the defendant] in the event he failed to

appear. The fact that the sureties incurred expenses in connection with the forfeiture

does not necessarily constitute extraordinary cause.”); see also Escobar, 187 N.C. App.

at 273, 652 S.E.2d at 699 (concluding that the surety failed to demonstrate

“extraordinary circumstances” where the surety was aware of the defendant’s ties to

Mexico but failed to stay abreast of his location after he was deported).

Here, surety claims that the trial court’s findings failed to address the

determinative factors necessary to support its conclusion on “extraordinary

circumstances.” According to surety, the trial court was required to make specific

findings regarding surety’s efforts and expenses—an argument similar to the one we

addressed in State v. Escobar. In Escobar, the trial court denied the surety’s motion

for relief from judgment of forfeiture, concluding that there were no extraordinary

circumstances which entitled the surety to relief. Escobar, 187 N.C. App. at 269, 273,

652 S.E.2d at 696, 699. In its order, the trial court found that the surety’s efforts

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resulted in locating [the defendant] in the penal system of
another jurisdiction, but did not result in the apprehension
or capture of [the defendant] by authorities in that
jurisdiction . . . . [The defendant]’s return to this
jurisdiction is by writ based upon the continuing efforts of
the District Attorney to prosecute [the defendant] on the
original charges in this jurisdiction.

Id. at 271, 652 S.E.2d at 697–98. On appeal, we rejected the surety’s argument that

Rule 52 required the trial court to enter more specific findings about its efforts to

locate the defendant, as “ ‘Rule 52(a)(1) does not require recitation of evidentiary

facts.’ ” Id. at 271, 652 S.E.2d at 698 (quoting Chem. Realty Corp., 65 N.C. App. at

249, 310 S.E.2d at 37). We determined instead that “[t]he trial court fulfilled its

obligations under Rule 52(a)(1) because it made a specific finding of fact that [the

surety]’s efforts resulted in locating Defendant, but the District Attorney was

ultimately responsible for returning Defendant to Union County.” Id. at 271, 652

S.E.2d at 698.

As in Escobar, here the trial court was not required to make “findings of fact

specifying the numerous tasks completed” by surety in its effort to surrender

defendant. Escobar, 187 N.C. App. at 271, 652 S.E.2d at 698. The court’s findings

demonstrate that it considered factors relevant to an “extraordinary circumstances”

analysis. Findings of Fact Nos. 6 and 7 show that surety surrendered defendant

nearly two months after the final judgment date, which bears on surety’s diligence.

Finding of Fact No. 10 addresses surety’s professional status in the bail bond

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profession. Finding of Fact Nos. 12 and 13 show that, before posting the bond, surety

had notice of defendant’s flight risk and it was foreseeable that surety would have to

travel to other states to surrender defendant. And finally, Finding of Fact No. 14

shows that defendant was apprehended in Florida, where surety knew that defendant

owned property. These findings were both relevant to and determinative of the

ultimate issue regarding “extraordinary circumstances.” To require a specific finding

that surety sent six agents on several trips to three different states, for example,

would be to require “a recitation of the evidentiary facts.” Chem. Realty Corp., 65

N.C. App. at 249, 310 S.E.2d at 37. We conclude, therefore, that the trial court

satisfied its obligation under Rule 52.

D. Denial of Surety’s Rule 59 Motion

Finally, surety argues that the trial court abused its discretion in denying

surety’s Rule 59 motion. Similar to its Rule 52 argument, surety maintains that “the

circumstances of defendant’s surrender were extraordinary” and “the trial court did

not consider and did not make any findings of fact regarding surety’s efforts and

expenses to produce [defendant] for trial . . . .” Pointing to the court’s Finding of Fact

No. 15, surety further asserts that the court improperly “focused on surety’s resources

for recoupment of the bond if [defendant] did not appear,” a factor which surety claims

has “no bearing on the ultimate goal of producing the defendant for trial.”

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After reviewing the trial court’s conclusion without the support of Finding of

Fact No. 15, we cannot say that the court’s decision to deny surety’s motion was

“manifestly unsupported by reason” or was “so arbitrary that it could not have been

the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523,

527 (1988). Surety’s efforts, while taxing, were not unexpected. Defendant’s property

ownership in Massachusetts and Florida, coupled with the fact that he did not live in

North Carolina, put surety on notice of defendant’s flight risk. And as a professional

bond agent, surety was especially aware of that risk. Surety’s expenses were largely

based on its travel to states where it knew defendant owned property and its

continued willingness to trust the information from Roche and Romero. The fact that

surety incurred substantial costs to surrender defendant does not warrant relief from

judgment in this case.

III. Conclusion

Although the trial court’s Finding of Fact No. 15 is not supported by competent

evidence, this error does not warrant a reversal. See In re Estate of Mullins, 182 N.C.

App. 667, 670–71, 643 S.E.2d 599, 601 (2007) (“In a non-jury trial, where there are

sufficient findings of fact based on competent evidence to support the trial court’s

conclusions of law, the judgment will not be disturbed because of other erroneous

findings which do not affect the conclusions.” (quoting In re Estate of Pate, 119 N.C.

App. 400, 402–03, 459 S.E.2d 1, 2–3 (1995))). The court’s remaining findings were

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both relevant and determinative of the ultimate issue regarding “extraordinary

circumstances,” and the court did not abuse its discretion in denying surety’s Rule

59 motion.

AFFIRMED.

Judges HUNTER, JR. and DAVIS concur.

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