[Cite as Fairfield v. Lopez, 2018-Ohio-914.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
CITY OF FAIRFIELD, :
Plaintiff-Appellee, : CASE NO. CA2017-08-121
: OPINION
- vs - 3/12/2018
:
ALFONSO JUAREZ LOPEZ, et al., :
Defendants-Appellants. :
CRIMINAL APPEAL FROM FAIRFIELD MUNICIPAL COURT
Case No. 2016TRC2778
Clemmons & Wolterman Law Firm, LLC, Stephen J. Wolterman, Patrick R. Oelrich, 530
Wessel Drive, Suite 2A, Fairfield, Ohio 45014, for plaintiff-appellee
Rodriguez & Porter, Ltd., Paul W. Shonk, Greg Porter, 5103 Plainfield Road, Fairfield, Ohio
45014, for defendant-appellant
RINGLAND, J.
{¶ 1} Appellant, Leticia Palmer, appeals from the decision of the Fairfield Municipal
Court denying her motion for remission of bond forfeiture, and in the alternative, motion for
relief from judgment. For the reasons discussed below, we affirm in part, reverse in part, and
remand the matter for further proceedings.
{¶ 2} On November 13, 2016, Alfonso Juarez Lopez was arrested and charged with
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single misdemeanor counts of operating a vehicle while impaired, stopping after an accident,
driver's license required, and assured clear distance. Lopez was arraigned on November 16,
2016 and the municipal court set bond at $3,500. Upon the request of Lopez, the municipal
court continued the case until November 30, 2016 and set a pretrial hearing for the same
date. On November 16, 2016, Palmer signed as surety for Lopez on the $3,500
recognizance bond and the municipal court issued a release from jail for Lopez. The pretrial
hearing was continued to December 7, 2016 upon Lopez's request.
{¶ 3} On December 7, 2016, Lopez failed to appear for the pretrial hearing and the
municipal court issued a bench warrant. The municipal court sent Palmer a letter informing
her Lopez failed to appear for the pretrial hearing. The letter stated Palmer had 45 days from
the date of the missed court appearance to either produce the body of Lopez or make a
check payable to the Fairfield Municipal Court in the amount of $3,500. The letter further
informed Palmer that the court set a hearing for the matter on February 16, 2017. Neither
Palmer nor Lopez appeared at the hearing and the municipal court ordered the bond
forfeited.
{¶ 4} On June 14, 2017, Palmer filed a motion for remission of forfeiture pursuant to
R.C. 2937.39, or in the alternative, a motion for relief from judgment pursuant to Civ.R. 60(B).
Palmer asserted in her motion that immediately after posting bond, United States Immigration
and Customs Enforcement ("ICE") filed an immigration detainer for Lopez and he was placed
in ICE's legal custody before leaving Butler County Jail. On November 23, 2016, ICE "gave
notice of its intent to reinstate * * * Lopez's previous deportation to Mexico." Lopez was
deported to Mexico without being released from ICE's custody on an unknown date.
{¶ 5} The municipal court held a hearing on Palmer's motion on July 13, 2017. The
hearing contained the following discussion between Palmer's counsel and the municipal
court:
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THE COURT: * * * So you're asking me to * * * unforfeit a bond,
but yet the Defendant is not here?
[PALMER'S COUNSEL]: Correct, Judge.
THE COURT: What is the purpose of bond, Counselor?
[PALMER'S COUNSEL]: To assure the appearance of * * * the
Defendant in court.
THE COURT: Right. And if the Surety is foolish enough to post
a bond for someone who is in the country illegally, then it's on the
Surety.
Then, Palmer's counsel briefly discussed the defense of impossibility. The municipal court
stated Lopez "was to be released on this charge. If he has issues with the Feds because of
his immigration status, that's up to [Palmer] to investigate", "[i]f someone was foolish enough
to post a bond for someone who is in the country illegally, that's their risk, it's not the Court's
risk." At the conclusion of the hearing, the municipal court denied Palmer's motion.
{¶ 6} The present appeal followed.
{¶ 7} Assignment of Error No. 1:
{¶ 8} THE TRIAL COURT ABUSED ITS DISCRETION WHEN, AFTER MISSTATING
THE LAW, IT DENIED THE SURETY'S REQUEST FOR REMISSION OF THE BOND
FORFEITURE WITHOUT CONSIDERING THE COMMON LAW DEFENSE OF
IMPOSSIBILITY AND WITHOUT BALANCING ANY OF THE FACTORS ENUNCIATED IN
THE CASE LAW.
{¶ 9} Assignment of Error No. 2:
{¶ 10} WHETHER THE APPELLANT'S MOTION * * * WAS CONSTRUED AS A
MOTION FOR RELIEF FROM JUDGMENT OR A MOTION UNDER R.C. 2[9]37.39, THE
TRIAL COURT ABUSED ITS DISCRETION WHEN IT FIRST GRANTED A HEARING ON
THE MOTION AND THEN DENIED THE MOTION WITHOUT HEARING EVIDENCE.
{¶ 11} Palmer contends the municipal court erred in denying her motion because
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production of Lopez's body was rendered impossible by an act of law. Palmer further
contends the municipal court erred by failing to consider certain relevant factors before
deciding whether to remit all or part of the bond forfeiture under R.C. 2937.39. Palmer
argues the municipal court further erred by rendering its decision without first asking if she
intended to present evidence.
{¶ 12} We review the municipal court's denial of Palmer's motion for remission of
bond forfeiture and motion for relief from judgment for an abuse of discretion. State v. Berry,
12th Dist. Clermont No. CA2013-11-084, 2014-Ohio-2715, ¶ 8; State v. Crosby, 12th Dist.
Clermont No. CA2009-01-001, 2009-Ohio-4936, ¶ 28.
{¶ 13} The purpose of bail is to ensure the accused's presence in court at all stages
of the proceedings. Crosby at ¶ 23. A "recognizance" is a "written undertaking by one or
more persons to forfeit the sum of money set by the court * * *, if the accused is in default
appearance." R.C. 2937.22(A)(3). A surety bond is a form of recognizance. R.C. 2937.281.
"[A] surety bond is a contract that is subject to the rules governing the performance of
contracts * * *." Berry at ¶ 11. Crim.R. 46(I) states, in pertinent part, that "[a]ny person who
fails to appear before any court as required is subject to the punishment provided by the law,
and any bail given for the person's release may be forfeited * * *." (Emphasis added.) Thus,
where a surety bond serves as a recognizance, it "is a contract in which the surety promises
the court that it will pay a monetary penalty if the accused who is released on the bond
posted by the surety fails to appear in court when ordered." Berry at ¶ 9.
{¶ 14} R.C. 2937.35, which is entitled "forfeit of bail" states:
Upon the failure of the accused or witness to appear in
accordance with its terms the bail may in open court be adjudged
forfeit, in whole or in part by the court or magistrate before whom
he is to appear. But such court or magistrate may, in its
discretion, continue the cause to a later date certain, giving
notice of such date to him and the bail depositor or sureties, and
adjudge the bail forfeit upon failure to appear at such later date.
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R.C. 2937.36, which governs forfeiture proceedings, states in pertinent part:
Upon declaration of forfeiture, the magistrate or clerk of the court
adjudging forfeiture shall proceed as follows:
***
(C) As to recognizances the magistrate or clerk shall notify the
accused and each surety * * * of the default of the accused and
the adjudication of forfeiture and require each of them to show
cause on or before a date certain to be stated in the notice * * *
why judgment should not be entered against each of them * * *.
{¶ 15} R.C. 2937.36(C) provides, by implication, "that a surety may be exonerated if
good cause 'by production of the body of the accused or otherwise' is shown." (Emphasis
omitted.) State v. Hughes, 27 Ohio St.3d 19, 20 (1986), quoting R.C. 2937.36(C). Thus,
pursuant to R.C. 2937.36(C), production of the body of the defendant on the date or dates
specified in the notice of default and adjudication of forfeiture constitutes a showing of good
cause why judgment should not be entered against each surety of the defendant. State v.
Holmes, 57 Ohio St.3d 11, 13 (1991).
{¶ 16} Palmer argues that the municipal court failed to hold a "show cause" hearing
as proscribed by R.C. 2937.36(C) because the docket transcript referred to the hearing as a
"bond absolute" hearing and the letter did not contain language of conditional forfeiture.
Therefore, the hearing was an opportunity to produce the body of Lopez, but not a "true show
cause hearing."
{¶ 17} The municipal court sent Palmer a letter informing her that Lopez failed to
appear on December 7, 2016 for the scheduled pretrial hearing. It informed her that she had
45 days from the date of the missed court appearance to either produce the body of Lopez or
make a check payable to the Fairfield Municipal Court in the amount of $3,500. The letter
further informed her that the court set a hearing for the matter on February 16, 2017. Neither
Palmer nor Lopez appeared at the hearing and the municipal court ordered the bond
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forfeited.
{¶ 18} While the letter did not directly quote R.C. 2937.36(C), it did provide notice of
the necessary information required by the statute. The letter notified Palmer that Lopez
failed to appear on December 7, 2016, provided the deadline by which she must produce the
body of Lopez and that she would incur a monetary penalty in the amount of the posted bond
upon her failure to do so, and that a hearing on the matter was set for February 16, 2017.
Palmer did not attend the February 16, 2017 hearing, and thus, failed to show good cause
why judgment should not have been entered against her.
{¶ 19} After the municipal court entered judgment against her, Palmer filed her motion
for remission of the bond forfeiture and motion for relief from judgment. Where a court
properly complies with R.C. 2937.36, as we found above, there is no question that bond is
properly forfeited. See State v. Dorsey, 6th Dist. Lucas No. L-15-1289, 2016-Ohio-3207, ¶ 7.
However, "[r]emission of bond is a wholly separate issue, to which R.C. 2937.36 has no
bearing." Id. R.C. 2937.39 provides:
After judgment has been rendered against surety or after
securities sold or cash bail applied, the court or magistrate, on
the appearance, surrender, or rearrest of the accused on the
charge, may remit all or such portion of the penalty as it deems
just * * *.
Thus, "R.C. 2937.39 provides for post-appearance remission of forfeiture." Toledo v.
Gaston, 188 Ohio App.3d 241, 2010-Ohio-3217, ¶ 53 (6th Dist.). At the time of moving for
remission, Lopez had not reappeared or surrendered and had not been rearrested on the
charges. Therefore, the municipal court did not err in denying Palmer's motion for remission
of the bond forfeiture.
{¶ 20} Palmer contends the municipal court erred by denying the remission motion
without conducting an analysis of certain factors for remission. See State v. American Bail
Bond Agency, 129 Ohio App.3d 708, 712-13 (10th Dist.1998) (reciting factors for remission
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analysis). Contrary to Palmer's argument, a trial court need not conduct an analysis of the
remission factors where, as we found above, the requirements for consideration of remitting
a bond forfeiture pursuant to R.C. 2937.39 are not met. Therefore, the municipal court did
not abuse its discretion in denying Palmer's motion for remission of bond forfeiture.
{¶ 21} Next, we address Palmer's arguments with respect to her motion for relief from
judgment pursuant to Civ.R. 60(B). A motion for relief from judgment is a cumulative remedy
in bond forfeiture cases to statutory remission under R.C. 2937.39. State v. Crosby, 12th
Dist. Clermont No. CA2009-01-001, 2009-Ohio-4936, ¶ 26-27. To prevail on a Civ.R. 60(B)
motion, the movant must demonstrate to the trial court that it satisfies each of the following
elements: (1) a meritorious claim or defense, (2) entitlement to relief pursuant to one of the
grounds stated in Civ.R. 60(B)(1) thru (5), and (3) the motion is made within a reasonable
time, and, where the grounds of relief are Civ.R. 60(B)(1), (2), or (3), not more than one year
after the judgment, order or proceeding was entered or taken. State v. Berry, 12th Dist.
Clermont No. CA2013-11-084, 2014-Ohio-2715, ¶ 17. Relief from judgment may not be
granted if the movant fails to satisfy any one of the three elements. Id.
{¶ 22} "It is well-established that a court does not have to conduct a hearing on a
Civ.R. 60(B) motion unless the motion and accompanying materials contain operative facts to
support relief under Civ.R. 60(B)." Hamilton v. Digonno, 12th Dist. Butler No. CA2005-03-
075, 2005-Ohio-6552, ¶ 16. When a trial court exercises its discretion and grants a hearing
for a motion brought pursuant to Civ.R. 60(B), "any appeal taken from the court's order will * *
* be decided upon * * * whether the evidence introduced at the hearing demonstrates that the
party" established the three elements stated above. Bates & Springer, Inc. v. Stallworth, 56
Ohio App.2d 223 (8th Dist.1978), paragraph three of the syllabus.
{¶ 23} The municipal court granted a hearing on Palmer's motion for relief from
judgment, but did not provide an opportunity for Palmer to present evidence in support of her
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motion. Rather, the municipal court held a brief discussion with Palmer's counsel regarding
the purpose of bond and the defense of impossibility. Next, the municipal court stated, "if the
Surety is foolish enough to post a bond for someone who is in the country illegally, then it's
on the Surety" because it was a matter for Palmer to investigate before posting bond.
Palmer's motion requested a hearing to be held for the presentation of evidence and the
arguments of counsel. The record does not indicate Palmer no longer intended to present
evidence at the hearing. Therefore, the municipal court unreasonably made factual
determinations and rendered judgment without hearing any evidence or argument on the
grounds asserted for relief from judgment in Palmer's motion, thereby, abusing its discretion.
Jones v. Alvarez, 12th Dist. Butler No. CA2006-10-257, 2008-Ohio-1994, ¶ 28-29.
{¶ 24} Accordingly, the municipal court's judgment is affirmed in part, reversed in part,
and the matter is remanded for the sole purpose of holding an evidentiary hearing to
determine if Palmer is entitled to relief pursuant to Civ.R. 60(B).
S. POWELL, P.J., and HENDRICKSON, J., concur.
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