In re: Rader Bonding Company

12/14/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
July 17, 2018 Session

STATE OF TENNESSEE v. SAUL ALDABA-ARRIAGA

IN RE: RADER BONDING COMPANY

Appeal from the Criminal Court for Davidson County
No. 2016-C-1186 Mark J. Fishburn, Judge
___________________________________

No. M2017-01687-CCA-R3-CD
___________________________________

In this appeal, we must determine whether the Appellant, Rader Bonding Company
(“Rader”), remained obligated as surety for the $7,500 bond set for the Defendant, Saul
Aldaba-Arriaga, for a charge of driving under the influence of an intoxicant (“DUI”),
second offense, and his $2,500 bond for a charge of driving on a revoked license when
the State later obtained an indictment that increased the severity of the Defendant’s
misdemeanor charge of DUI second offense to a felony charge of DUI fourth offense and
included additional charges. After the Defendant failed to appear in court on the indicted
charges, the trial court initiated forfeiture proceedings and entered a final judgment of
forfeiture against the Defendant and Rader following a hearing. We conclude that based
on the specific and unique circumstances of this case, Rader’s obligation under the
bonding agreement for the $7,500 bond on the Defendant’s DUI second offense charge in
general sessions court did not extend to the indicted charge of DUI fourth offense and
that as a result, the trial court erred in entering a judgment of final forfeiture against
Rader on the $7,500 bond. We further conclude that Rader’s obligation for the $2,500
bond on the Defendant’s charge of driving on a revoked license in general sessions court
continued when the Defendant was indicted for the same offense and that the trial court
did not abuse its discretion in denying Rader’s request for exoneration. Accordingly, the
trial court’s judgment is affirmed in part and reversed in part, and this case is remanded
for further proceeding in accordance with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in
Part; Reversed in Part; and Remanded

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., J. joined. ROBERT H. MONTGOMERY, JR., J., filed a separate
dissenting opinion.
Joel H. Moseley, Jr., Old Hickory, Tennessee, for the appellant, Rader Bonding
Company.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Glenn R. Funk, District Attorney General; and Kyle Anderson, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

On October 4, 2015, the Defendant, Saul Aldaba-Arriaga, was arrested and
charged with DUI second offense, a Class A misdemeanor, and driving on a revoked
license, a Class B misdemeanor. See T.C.A. §§ 55-10-401, -402(a)(2) (Supp. 2015), 55-
50-504(a)(1). The affidavits of complaint stated that the Defendant ran a stop light and
struck another vehicle, injuring the driver. The Defendant had a strong odor of alcohol
on his breath and watery, bloodshot eyes, admitted to drinking three beers before driving,
showed multiple signs of impairment during field sobriety tests, and consented to having
his blood drawn. The arresting officer determined that the Defendant’s license had been
revoked due to two prior convictions for DUI first offense. According to the affidavits,
the Defendant was arrested and charged with DUI second offense “due to a prior DUI 1st
Offense charge in Maury County.”

The Defendant’s charges were each assigned a separate case number in general
sessions court: GS742122 for the DUI second offense charge and GS742123 for the
driving on a revoked license charge. The magistrate entered an order setting the
Defendant’s bond for each case. The order listed a $7,500 bond for case number
GS742122 and a $2,500 bond for case number GS742123 for a total bond of $10,000. A
“Criminal Appearance Recognizance” (“the bonding agreement”) signed by the
Defendant, Rader, and the court clerk also was filed and provided as follows:

This case having been continued, thereupon the defendant, named
above, with Surety, Rader, his security, acknowledge themselves to owe
and be indebted to the State of Tennessee in the Penal sum of $10,000.00
jointly and severally, to be levied of their goods and chattels, lands and
tenements; to be void, however, on condition that the defendant doth make
his personal appearance before the Court of Davidson County, having
jurisdiction of his cause, from day to day, then and there to answer to the
State of Tennessee on a charge of:
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CASE/ CHARGE BOND COURT
WARRANT# DATE/TIME
GS742123 55-50-504 License - Driving on $2,500.00 11/05/2015 08:30
Revoked B MISD AM
GS742122 55-10-401 Driving Under the $7,500.00 11/05/2015 08:30
Influence - 2nd A MISD AM
Total: $10,000.00

In January 2016, the Defendant waived a preliminary hearing, and the general
sessions court bound the case over to the grand jury. In July 2016, the Defendant was
indicted for: reckless aggravated assault through the use or display of a deadly weapon to
wit: a motor vehicle, a Class D felony; DUI fourth or subsequent offense, a Class E
felony; DUI per se with a blood-alcohol concentration of .20% or more, fourth or
subsequent offense, a Class E felony; driving on a revoked license, a Class B
misdemeanor; and failure to comply with the financial responsibility law at the time of an
accident resulting in bodily injury or death for which the Defendant was at fault, a Class
A misdemeanor. See T.C.A. §§ 39-13-102(a)(1)(B)(iii), (e)(1)(A)(v) (Supp. 2016); 55-
10-401; -402(a)(4) (Supp. 2015); 55-12-139(c)(1), (3)(A); 55-50-504(a)(1).

According to the court minute entries, the Defendant appeared before the trial
court on August 5th “being represented by counsel,” and the case was continued until
September 16th. When the Defendant failed to appear in court on September 16th, the
trial court entered a conditional judgment of forfeiture of the $10,000 bond against the
Defendant and Rader and had a writ of scire facias issued requiring the Defendant and
Rader to appear within 180 days to show cause why the judgment should not become
final.

On March 10, 2017, Rader filed an answer to the scire facias and a motion to set
aside the conditional judgment and to be relieved as the surety. In addition to raising
issues regarding the sufficiency of the scire facias, Rader argued that it should be
relieved as surety because the State abandoned the Defendant’s charges brought in
general sessions court that were the subject of the bond agreement and because the return
of the indictment began a new proceeding that was not covered by the bond agreement.
Rader also argued that the State breached its implied covenant of good faith and fair
dealing by misleading Rader as to the nature and severity of the charges against the
Defendant and inducing Rader to enter into the bond agreement, by failing to either
continue to prosecute the charges bound over by the general sessions court or dismiss the
charges once the State sought an indictment on the new charges, and by failing to have a
capias issued and the Defendant taken into custody once the indictment was returned.
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The State filed a response maintaining that case number GS742122, the DUI charge, was
the basis for the DUI charges in the indictment and that case number GS742123 was the
basis for the charge of driving on a revoked license in the indictment.

During the hearing, Rader did not present any evidence but reiterated the
arguments raised in its motion. Counsel for Rader argued that Rader’s evaluation of the
Defendant’s risk of flight and its decision to enter into the bond agreement were based
upon the Defendant’s charges in the general sessions court and not upon the increased
and additional charges in the indictment. Counsel also argued that by increasing and
adding new charges without formally dismissing the charges from the general sessions
court and without having a capias issued against the Defendant, the State materially
increased Rader’s risk of forfeiture. Counsel for Rader acknowledged evidence that the
Defendant fled due to the indictment was “circumstantial only.” Counsel for Rader stated
that, regardless, Rader was not asking the trial court to assume that the Defendant fled
due to the charges in the indictment but was requesting that the trial court hold the State
and Rader to the terms of the bond agreement, which limited Rader’s responsibility to the
Defendant’s charges as they appeared in general sessions court. The State reiterated its
argument that the charges in the indictment were a continuation of the Defendant’s
charges in general sessions court.

The trial court subsequently issued oral findings and a written order denying
Rader’s claim for relief. The trial court found that neither the grand jury nor the State
exceeded their authority in returning the indictment, and it rejected Rader’s claims that
the State breached its duty of good faith. The trial court also found that although the
indictment included additional charges, the facts alleged in the affidavits of complaint
indicated that additional charges were possible and that the additional charges did not
change “the face amount of the bond” or Rader’s financial risk. The trial court found
Rader failed to submit any evidence that the Defendant’s failure to appear was motivated
by the additional charges. The trial court entered a final judgment of $10,000 plus costs
against the Defendant and Rader to be awarded to the State.

Rader filed a motion to alter or amend the trial court’s order and final judgment
pursuant to Tennessee Rule of Civil Procedure 59.04 and a memorandum of law. Rader
again urged the trial court to require the parties to be bound by the terms of the bond
agreement and argued that the State did not have the authority to unilaterally modify or
extend the bond agreement beyond its written terms to a new case and new charges.
Following a hearing, the trial court entered an order denying the motion, and Rader
subsequently filed a notice of appeal.

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 ANALYSIS

Rader contends that the trial court erred in entering the final judgment of forfeiture
against Rader for $10,000. Specifically, Rader maintains that: (1) the State abandoned its
prosecution in general sessions court of the Defendant’s charges which were subject to
the bond agreement and the indictment constituted new proceedings to which the bond
agreement did not apply; (2) the terms of the bonding agreement did not extend to the
charges in the indictment; and (3) the State materially increased Rader’s risk on the bond
and breached its implied covenant of good faith and fair dealing on the bond agreement.
The State responds that this court’s review is limited to the trial court’s denial of Rader’s
motion to alter or amend and that the trial court properly concluded that Rader was not
released of its obligation on the bond.1

As a preliminary matter, we must first address the State’s contention that this
court’s review on appeal is limited to the issue of whether the trial court erred in denying
Rader’s motion to alter or amend pursuant to Tennessee Rule of Civil Procedure 59.04.
A timely filed Rule 59.04 motion tolls the time for filing a notice of appeal in a civil
action. Tenn. R. App. P. 4(b)(4); see In re Guy James Bonding, No. M2003-01033-CCA-
R3-CD, 2004 WL 1402562, at *1 n.3 (Tenn. Crim. App. June 23, 2004) (concluding that
the bail bond forfeiture process is a civil proceeding governed by the Tennessee Rules of
Civil Procedure). Because Rader filed a timely post-trial motion, it was entitled to appeal
both the underlying judgment of final forfeiture and the order denying the motion to alter
or amend the judgment. See Burris v. Burris, 512 S.W.3d 239, 254 n.11 (Tenn. Ct. App.
2016).

The State maintains that because Rader stated in its notice of appeal that it was
appealing from the trial court’s judgment rendered on July 25, 2017, in which the trial
court denied Rader’s motion to alter or amend, this court’s review is limited to the
question of whether the trial court erred in denying the motion to alter or amend. The
State cites to no authority to support its position. Moreover, “the notice of appeal plays
no part in defining the scope of appellate review.” Tenn. R. App. P. 3(f) Advisory
Comm’n Cmts. Tennessee Rule of Appellate Procedure 13(a) governs the scope of
review and provides that “any question of law may be brought up for review.” “[T]his
subdivision rejects use of the notice as a review-limiting device,” including the federal
practice of limiting the issues that an appellant may raise on appeal to those affecting the
portion of the judgment specified in the notice of appeal. Tenn. R. App. P. 13(a)
Advisory Comm’n Cmts. Rather, Rule 3(f), when read in conjunction with Rule 13(a),

1
While Rader alleges in a footnote in its “Statement of Facts” that the scire facias was
insufficient, Rader does not address the issue in the “Argument” section of its brief or offer any support
for its claim. Thus, the issue is waived. See Tenn. R. App. P. 27(a); Tenn. Ct. Crim. App. R. 10(b).
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“permits any question of law to be brought up for review … as long as any party formally
declares an intention to appeal in a timely fashion.” Tenn. R. App. P. 3(f) Advisory
Comm’n Cmts. On appeal, Rader does not focus its arguments on the trial court’s denial
of its motion to alter or amend but maintains that the trial court erred in entering the final
judgment of forfeiture against Rader. Accordingly, we will review the propriety of the
trial court’s final judgment.

A bail bond is a contract between the State on one side and the defendant and the
defendant’s surety on the other, “whereby the surety assumes custody of the defendant
and guarantees to the State either the appearance of the defendant in court or the payment
of the full amount of bail set by the court.” In re Sanford & Sons Bail Bonds, Inc., 96
S.W.3d 199, 202 (Tenn. Crim. App. 2002). Prior to or at the time of the execution of the
bail bond, a bondsman and the defendant enter into a contract whereby the bondsman
agrees to act as the defendant’s surety for a fee and the defendant agrees to appear for all
scheduled court appearances. Id. “The bondsman only makes a profit when he is able to
collect fees from the defendant and avoid paying the amount of the bond to the court.”
Id. (citation omitted). Because there is a risk that the defendant will flee or refuse to
appear in court after signing the contract and securing his release, the bondsman must
protect his investment by assessing the risk of flight before writing the bond and
maintaining contact with the defendant after the bond is written. Id.

The forfeiture of bail bonds is controlled by statute. See T.C.A. § 40-11-201 et.
seq. When a defendant fails to appear in court, the trial court may enter a conditional
judgment of forfeiture against the defendant and his sureties. T.C.A. § 40-11-201(a).
Upon entering a judgment of conditional forfeiture, the trial court must issue a writ of
scire facias requiring the defendant and his sureties to show cause why the judgment
should not become final. T.C.A. § 40-11-202. The surety has 180 days from the date of
service of the scire facias to produce the defendant; otherwise, the court may enter a final
judgment. T.C.A. § 40-11-139(b).

A surety may petition the trial court for relief from forfeiture. T.C.A. § 40-11-
204(a); see In re Paul’s Bonding Co., Inc., 62 S.W.3d 187, 193 (Tenn. Crim. App. 2001).
The trial court must grant a hearing, and the surety has the burden of proving that its
petition for exoneration should be granted. In re Sanford & Sons Bail Bonds, Inc., 96
S.W.3d at 204; In re Paul’s Bonding Co., Inc., 62 S.W.3d at 193. The surety may be
exonerated from forfeiture by surrendering the defendant to the court at any time before
paying the judgment of forfeiture. T.C.A. § 40-11-203. Otherwise, the surety must seek
relief pursuant to Tennessee Code Annotated section 40-11-204(a), which provides that

the judges of the general sessions, circuit, criminal and supreme courts may
receive, hear and determine the petition of any person who claims relief is
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 merited on any recognizances forfeited, and so lessen or absolutely remit
the same, less a clerk’s commission …, and do all and everything therein as
they shall deem just and right, and consistent with the welfare of the state,
as well as the person praying for relief. This power shall extend to the
relief of those against whom final judgment has been entered whether or
not the judgment has been paid, as well as to the relief of those against
whom proceedings are in progress.

T.C.A. § 40-11-204(a)(1).

The trial court’s discretion under section 40-11-204 is “broad and comprehensive,
empowering trial courts to make determinations in accordance with [their] conception of
justice and right.” In re Paul’s Bonding Co., Inc., 62 S.W.3d at 194 (internal quotations
and citations omitted). Accordingly, we review a trial court’s decision for an abuse of
discretion and grant the trial court “the benefit of its decision unless the trial court
‘applied an incorrect legal standard, or reached a decision which is against logic or
reasoning that caused an injustice to the party complaining.’” Id. (quoting State v Shuck,
953 S.W.2d 622, 669 (Tenn. 1997)). However, “‘[b]oth the interpretation of statutes and
the interpretation of contracts are questions of law and, therefore, require a de novo
review on appeal with no presumption of correctness given to the lower courts’
conclusions of law.’” State v. Aliscia Caldwell, No. M2013-01368-CCA-R3-CD, 2014
WL 3764499, at *6 (Tenn. Crim. App. July 31, 2014) (quoting State ex rel. Pope v. U.S.
Fire Ins. Co., 145 S.W.3d 529, 533 (Tenn. 2004)).

Rader contends that its obligations under the bonding agreement did not extend to
the Defendant’s charges in the indictment. Rader specifically contends that (1) the grand
jury’s return of the indictment resulted in new criminal proceedings that were not subject
to the bonding agreement; (2) the terms of the bonding agreement did not extend to the
Defendant’s indicted charges; and (3) Rader should be exonerated from its obligations
because the State breached its implied covenant to avoid increasing Rader’s risk under
the bonding agreement by returning an indictment that charged additional and more
severe charges. The State responds that Rader remained obligated for the $10,000 bond
pursuant to Tennessee Code Annotated section 40-11-130(a)(1) because there had been
no disposition in accordance with section 40-11-138.

Tennessee Code Annotated section 40-11-130(a)(1), which addresses the length of
time in which a bond on a charge remains in effect, provides in pertinent part:

If a defendant in a criminal case executes a bond or recognizance before
any court or other person authorized by law to take a bond or recognizance
for the defendant’s personal appearance before a court to answer a criminal
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 charge and there has not been a disposition pursuant to § 40-11-138(b), the
bond or recognizance shall be valid and binding upon the defendant and the
defendant’s sureties, until the time allowed by law for the defendant to
appeal a finding of guilt to the court of criminal appeals.

A disposition under Tennessee Code Annotated section 40-11-138(b) includes
circumstances in which “the charge against the surety’s principal is disposed of by
acquittal, agreement with the state, whether diversion or otherwise, or retirement.”
T.C.A. § 40-11-138(b)(1). “If the charge is disposed of by conviction or a plea of guilty,
the bond shall remain in effect until the court renders the defendant’s sentence.” T.C.A.
§ 40-11-138(b)(2)(A). “If the defendant is placed on pre-trial, post-plea or judicial
diversion, community correction, fined or if the defendant’s sentence is suspended and
probation granted, any such action shall constitute a disposition pursuant to § 40-11-
138(b).” T.C.A. § 40-11-130(b)(1).

A. Return of the Indictment

Rader maintains that the return of the indictment by the grand jury was the
beginning of a new criminal proceeding which was not subject to the bond agreement.
Rader relies upon Waugh v. State, 564 S.W.2d 654, 660 (Tenn. 1978), in which our
supreme court held that the magistrate’s dismissal of the bind-over order and release of
the defendant from custody terminated the criminal proceeding and that the return of the
indictment was the beginning of a new proceeding. In the present case, however, the
general sessions judge did not dismiss the charges against the Defendant but bound the
cases over to the grand jury. Thus, the general sessions court’s decision did not result in
a disposition of the charges that would have relieved Rader of liability pursuant to
Tennessee Code Annotated section 40-11-138(b). Moreover, the State did not abandon
the Defendant’s charges in the general sessions court but based the counts in the
indictment for DUI and driving on a revoked license upon the Defendant’s charges in the
general sessions court. Accordingly, the return of the indictment by the grand jury did
not constitute the beginning of new criminal proceedings but was a continuation of the
proceedings that initiated in the general sessions court.

Rader maintains that the State, in seeking an indictment, and the grand jury, in
returning the indictment, were limited to the Defendant’s charges at the general sessions
level. According to Rader, the State and the grand jury exceeded their respective
authorities by increasing the Defendant’s original charges and including additional
charges in the indictment.

Our supreme court has recognized that “[p]rior to indictment, the district attorney
‘has virtually unbridled discretion in determining whether to prosecute and for what
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offense.’” State v. Mangrum, 403 S.W.3d 152, 163 (Tenn. 2013) (quoting Dearborne v.
State, 575 S.W.2d 259, 262 (Tenn. 1978)). “‘[S]o long as the prosecutor has probable
cause to believe that the accused committed an offense …, the decision whether or not to
prosecute, and what charge to file or bring before a grand jury, generally rests entirely
within his discretion.’” State v. Harris, 33 S.W.3d 767, 771 (Tenn. 2000) (quoting
Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)). The function of the grand jury is to
determine probable cause. State v. Brackett, 869 S.W.2d 936, 938 (Tenn. 1993). “The
grand jury may indict an accused for any ‘indictable or presentable offense[] found to
have been committed or to be triable within the county.’” State v. Spradlin, 12 S.W.3d
432, 434 n.3 (Tenn. 2000) (quoting Tenn. R. Crim. P. 6(d)).

This court has rejected the contention that the authority of the State and the grand
jury is limited by the actions and findings of the general sessions court. See State v.
D’Anna, 506 S.W.2d 200, 203 (Tenn. Crim. App. 1973) (holding that the grand jury’s
authority and power to return a presentment or an indictment upon finding probable cause
“is in no way interfered with or prevented by the fact that a committing magistrate fails to
find probable cause and discharges the accused in a preliminary hearing”); see also State
v. Brian Robert Lawson, No. M2017-00238-CCA-R3-CD, 2017 WL 4407832, at *4
(Tenn. Crim. App. Oct. 3, 2017) (holding that the State acted within its authority and
discretion in seeking and obtaining an indictment charging the defendant with domestic
assault by causing bodily injury even though the general sessions court found at the
preliminary hearing that probable cause existed to show that the defendant committed
domestic assault by offensive contact rather than by causing bodily injury), perm. app.
denied (Tenn. Feb. 14, 2018). We conclude that the State and the grand jury did not
exceed their respective authorities by increasing the Defendant’s original charges and
including additional charges in the indictment.

B. Effect of the Indicted Charges on Rader’s Obligations

The bond order signed by the magistrate listed the applicable case numbers from
the general sessions court and did not list the specific charges that applied to each case
number. However, in the trial court, the State attached documentation to its pleadings
establishing that only the indicted charges for DUI fourth offense, DUI per se fourth
offense, and driving on a revoked license were based on the Defendant’s charges in
general sessions court. Accordingly, we must determine whether Rader’s obligation
under the bond for the Defendant’s charges in general sessions court continued for these
indicted charges pursuant to Tennessee Code Annotated section 40-11-130(a)(1).

In interpreting a statute, this court must “assign a statute the full effect of the
legislative intent without restricting or expanding the intended scope of the statute.”
State v. Gibson, 506 S.W.3d 450, 455 (Tenn. 2016) (citing State v. Davis, 484 S.W.3d
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138, 144 (Tenn. 2016); State v. Smith, 484 S.W.3d 393, 403 (Tenn. 2016)). In
determining legislative intent, this court must first examine the plain language of the
statute and give the words of the statute their natural and ordinary meaning. Davis, 484
S.W.3d at 144-45; Smith, 484 S.W.3d at 403. When the statute’s words are clear and
unambiguous, we must enforce the statute as written. Gibson, 506 S.W.3d at 455-56
(citing Frazier v. State, 495 S.W.3d 246, 249 (Tenn. 2016)). “We presume that every
word in the statute has meaning and purpose and should be given full effect unless it
violates the obvious intent of the General Assembly.” Id. (citing Dycus, 456 S.W.3d at
924; State v. Marshall, 319 S.W.3d 558, 561 (Tenn. 2010)). “Statutes, ‘in pari materia,’
are to be read together, in order to advance their common purpose or intent.” State v.
Davis, 173 S.W.3d 411, 414 (Tenn. 2005). “[S]pecific statutory language will control
over general statutory language.” Id. at 415.

Bail is set on the criminal offense for which a defendant is charged and not
criminal offenses for which the defendant may be charged in the future as a result of a
criminal episode. The language of both sections 40-11-130(a)(1) and 40-11-138(b) focus
upon the “charge” against the defendant upon which the bond is based. When read
together, we conclude that the statutes require that a surety remain obligated on a bond
set for a criminal charge until that charge is disposed under section 40-11-138(b). In the
present case, Rader remained obligated on the $2,500 bond set for the Defendant’s charge
of driving on a revoked license in general sessions court when the Defendant was the
indicted for the same charge. However, the statutes do not address Rader’s obligation on
the $7,500 bond for DUI second offense when the Defendant was indicted on the
increased charge of DUI fourth offense. While the DUI second offense charge has not
been disposed of under section 40-11-138(b), the State is no longer prosecuting the
Defendant for that specific offense.

Rather, “because a bail bond is nothing more than a type of contract,” the proper
resolution of this issue depends upon an application of the principles of contract law.
State v. Clements, 925 S.W.2d 224, 226-27 (Tenn. 1996) (applying the principles of
contract law in holding that the cash bail bond deposited by the defendant’s father could
not be attached to cover fines and costs incurred by the defendant). A contract is
enforceable “only to the extent that it is assented to by the parties.” Id. at 227. The bond
agreement entered into by the State, Rader, and the Defendant did not include any
language expanding Rader’s obligations to include the later-indicted DUI fourth offense
charges. Cf. People v. Ind. Lumbermens Mut. Ins. Co., 202 Cal. App. 4th 1541, 1549-50
(Cal. Ct. App. 2012) (holding that the language of the bond agreement encompassed the
additional charge against the defendant when the agreement provided that the surety
undertook to guarantee the defendant’s appearance “to answer any charge in the
accusatory pleading based upon the acts supporting the complaint filed against him/her
and all duly authorized amendments thereof, in whatever court it may be prosecuted”)
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(emphasis in original); People v. Int’l Fidelity Ins. Co., 185 Cal. App. 4th 1391, 1395-96
(Cal. Ct. App. 2010) (same).

Applying principles of the law of contracts and sureties, some courts have
recognized,

An increase in the severity of a charge or charges for which a surety is
already liable on an existing bond increases the surety’s risk under the bond
contract. It follows that such an increase in the charge or charges without a
surety’s consent alters the terms of the bond contract and discharges the
surety’s obligations under the bond.

Fireline Bail Bonds v. Brock, 110 So. 3d 11, 14 (Fla. Dist. Ct. App. 2013). By increasing
the Defendant’s charge from a misdemeanor to a felony, the State increased the
Defendant’s possible punishment and, thus, increased Rader’s risk under the bonding
agreement. “Such a unilateral alteration of the contract’s terms that increases the surety’s
risk entitled the surety to discharge under settled principles of suretyship.” Id. at 15; see
Integrity Bail Bonds v. Pineallas Cnty. Bd. of Cnty. Comm’rs., 884 So. 2d 85, 86 (Fla.
Dist. Ct. App. 2004) (holding that a surety was discharged from its obligations when the
State increased the charged from a third-degree felony to a second-degree felony); A-
Alternative Release Bail Bonds v. Martin Cty., 882 So. 2d 414, 415-16 (Fla. Dist. Ct.
App. 2004) (same).

The plain terms of the bonding agreement limited Rader’s obligations to the
charge of DUI second offense. Requiring Rader to remain obligated for the Defendant’s
appearance for a DUI charge under the bonding agreement when the State increased the
charge to a felony offense would result in a unilateral alteration of the terms of the
bonding agreement. “A court may not unilaterally alter the terms of a bail bond contract
unless statutorily authorized.” State v. Robert Bradley, Jr., No. W2004-00113-CCA-R3-
CD, 2005 WL 1105182, at *2 (Tenn. Crim. App. May 5, 2005). Because there is no
statutory authority providing for such an alteration, we conclude that once the State
obtained an indictment increasing the Defendant’s charge of DUI second offense to DUI
fourth offense, Rader was discharged from its obligations as surety as it related to the
$7,500 bond for the DUI second offense charge. Accordingly, the trial court erred in
applying the judgment of forfeiture to Rader for the $7,500 bond.

We emphasize that our holding is limited to the specific and unique circumstances
of this case. Based upon the information included in the affidavit of complaint, it appears
that the State was unaware of the extent of the Defendant’s prior DUI convictions when
the Defendant was charged with DUI second offense. Since the Defendant’s arrest,
however, Tennessee Code Annotated section 40-11-142 was enacted and provides that
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following an arrest for certain enumerated offenses, including DUI, law enforcement
must exercise due diligence in determining a defendant’s prior arrests for such offenses
by examining the available databases to which the agency has access prior to the
determination of bond for the arrested offense. See T.C.A. § 40-11-142 (Supp. 2016).
This statute reduces the risk of a recurrence of a situation in which the defendant is
initially charged with and a bond is set on a DUI but the State later increases the charge
to a felony offense upon learning of the extent of the defendant’s prior DUI convictions.
Furthermore, the State could have requested that the trial court set a new and increased
bond when the Defendant appeared before the trial court following the return of the
indictment.

C. Breach of Implied Covenant

Rader remained obligated under the bonding agreement for the $2,500 bond for
the Defendant’s charge of driving on a revoked license when he was indicted for the
offense. Rader asserts that the trial court erred in failing to relieve Rader of its obligation
under the bond agreement because the State breached its implied covenant to avoid
increasing Rader’s risk under the bonding agreement by returning an indictment that
charged additional and increased charges.

A trial court’s discretionary authority to relieve sureties from liability pursuant to
section 40-11-204 is limited to “‘extreme cases, such as the death of the defendant or
some other condition making it impossible for sureties to surrender the defendant; the
good faith effort made by the sureties or the amount of their expense are not excuses.’”
In re Paul’s Bonding Co., 62 S.W.3d at 194 (quoting State v. Shredeh, 909 S.W.2d 833,
836 (Tenn. Crim. App. 1995)). The restrictive interpretation of section 40-11-204 is
based in part on public policy considerations and appears to stem from the United States
Supreme Court’s recognition that a surety is limited to relief to those situations “when
performance is rendered impossible by a supervening act of God, act of the State that is
the beneficiary of the bail bond, or act of the law that is operative in the beneficiary State
and obligatory in its effect upon her authorities.” In re Sanford & Sons Bail Bonds, Inc.,
96 S.W.3d at 203 (citing Taylor v. Taintor, 83 U.S. 366, 369 (1873)).

A ground for relief will not constitute an “extreme case” for exoneration for
purposes of Tennessee Code Annotated section 40-11-204 if it is the realization of a risk
that the surety assumed in entering into the bail bond agreement. Id.; see In re: Paul’s
Bonding Co., 62 S.W.3d at 195. “‘[B]y entering into a bail bond agreement, a surety
does not assume the risk that the State will interfere with the surety’s performance of its
obligation under the bail bond.’” In re Sanford & Sons Bail Bonds, Inc., 96 S.W.3d at
203 (citing Reese v. United States, 76 U.S. 12, 21-22 (1869)). There is an implied
covenant on the part of State that “‘it will not in any way interfere with th[e] covenant
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between [the principal and his sureties], or impair its obligation, or take any proceedings
with the principal which will increase the risks of the sureties or affect their remedy
against him.’” Id. (quoting Reese, 76 U.S. at 22). “A state’s material breach of this
implied covenant will relieve a surety of its obligation under a bail bond.” Id. The
State’s breach, however, must be the cause of the surety’s inability to satisfy its
obligation under the bail bond. Id.

Rader bound itself to have the Defendant present to answer a charge of driving on
a revoked license, and the State only demanded that Rader perform what it had bound
itself to do. The fact that the State sought to try the Defendant for additional crimes did
not alter Rader’s obligation to produce the Defendant on the original charge of driving on
a revoked license. See e.g., Fireline Bail Bonds v. Brock, 110 So. 3d at 15 (providing that
“the addition of a new charge or charges to an existing indictment or information does
not result in a surety’s discharge on an existing bond because the new charge or charges
do not work any change in the surety’s contractual obligation”); Kansas v. Indem. Ins.
Co. of N. Am., 672 P.2d 251, 253 (Kan. Ct. App. 1983) (holding that a surety was not
discharged from liability on a bond conditioned upon the defendant’s appearance on an
aggravated assault charge when the State amended the charging document to add counts
for rape, kidnapping, and unlawful restraint).

This court previously rejected a bonding company’s claim for exoneration based
on its argument that the State unilaterally increased the bonding company’s risk by
indicting the defendant for an additional and more serious offense in State v. Carlos
Alberto Cabellero-Grajeda, No. M2004-02097-CCA-R3-CD, 2005 WL 1931402, at *5
(Tenn. Crim. App. Aug. 11, 2005). In that case, the bonding company agreed to secure
the defendant’s appearance on a charge of money laundering. Id. at *1. The State later
indicted the defendant for the money laundering charge and a charge of conspiracy to
deliver 300 pounds of marijuana within 1,000 feet of a school zone, a Class A felony. Id.
In rejecting the bonding company’s claim for exoneration, this court held that if the
bonding company was concerned that the defendant would not appear in court to answer
the charges, the bonding company’s remedy would have been to surrender the defendant
and be exonerated from liability pursuant to Tennessee Code Annotated section 40-11-
132. Id. at *5; see T.C.A. § 40-11-132 (listing the circumstances under which a surety
may surrender a defendant in order to be exonerated). This court determined that the
bonding company did not establish that the circumstances constituted an “extreme case”
whereby it would have been impossible for the bonding company to surrender the
defendant. Carlos Alberto Cabellero-Grajeda, 2005 WL 1931402, at *6. This court
stated that while the bonding company had been unable to ascertain the defendant’s
whereabouts, “the risk that a criminal defendant will flee is exactly the type of risk
assumed by a professional bail bondsman when executing a bail bond and agreeing to
secure a criminal defendant’s appearance in court.” Id.
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 Rader contends that had a capias been issued pursuant to Tennessee Rule of
Criminal Procedure 9 upon return of the indictment, Rader could have surrendered the
Defendant and sought exoneration. Rule 9(a) provides that upon the return of an
indictment or a presentment, the clerk must issue a capias or a criminal summons for a
defendant “(1) who is not in actual custody; (2) who has not been released on
recognizance or bail; or (3) whose bail has been declared forfeited.” “The clerk shall
issue a criminal summons (instead of a capias) after an indictment or presentment and for
any subsequent process when so requested by the district attorney general or directed by
the court.” Id. In support of its contention that a capias was required following the
Defendant’s indictment for the additional offenses, Rader relies upon this court’s opinion
in State v. Norman G. Copeland, in which this court agreed with the State’s argument that
Rule 9(a) only prohibits the issuance of a capias upon indictment for the same offense for
which the defendant was previously released on bond. No. 01C01-9602-CC-00057, 1997
WL 137407, at *4-5 (Tenn. Crim. App. Mar. 27, 1997).

Regardless of whether a capias should have been issued upon the return of the
indictment in the present case, the absence of a capias did not affect Rader’s remedy to
surrender the Defendant and be exonerated from the bond in accordance with Tennessee
Code Annotated section 40-11-132. A bondsman or surety may surrender a defendant
and be exonerated from the bond where “[t]he bondsman or surety has good cause to
believe the defendant will not appear as ordered by the court having jurisdiction.” T.C.A.
§ 40-11-132(2). As reflected by this court’s opinion in Carlos Alberto Cabellero-
Grajeda, the return of an indictment that includes additional, more severe charges may
constitute good cause for a surety to believe that the defendant will not appear in court as
ordered. Rader does not claim that it did not have notice of the indictment prior to the
Defendant’s absconding. Because Rader has failed to establish an “extreme case”
justifying exoneration, the trial court did not abuse its discretion in denying Rader’s
request for exoneration for the $2,500 bond attached to the charge of driving on a
revoked license.

CONCLUSION

We conclude that based on the specific and unique circumstances of this case,
Rader’s obligation under the bonding agreement for the $7,500 bond on the Defendant’s
DUI second offense charge in general sessions court did not extend to the indicted
charges of DUI fourth offense and that as a result, the trial court erred in entering a
judgment of final forfeiture against Rader on the $7,500 bond. We further conclude that
Rader’s obligation for the $2,500 bond on the Defendant’s charge of driving on a revoked
license in general sessions court continued when the Defendant was indicted for the same
offense and that the trial court did not abuse its discretion in denying Rader’s request for

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exoneration. Accordingly, the trial court’s judgment is affirmed in part and reversed in
part, and this case is remanded for further proceeding in accordance with this opinion.

____________________________________________
JOHN EVERETT WILLIAMS, PRESIDING JUDGE

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