The State of Louisiana appeals two judgments in favor of a surety deeming as satisfied two commercial bonds that had previously been adjudicated as forfeited. For the reasons that follow, we reverse.
Two commercial bonds were issued by International Fidelity Insurance Company, through its agent A-Abail Bonding, (hereinafter, collectively "Fidelity/A-Abail") to secure the appearance of Valerie A. Tabb, a/k/a Valerie A. Gilbert, a/k/a Valerie A. Korn, on charges of possession of hydrocodone, a violation of La.R.S. 40:968, possession of aplrazolam, a violation of La.R.S. 40:969, and theft of goods under $500.00, a violation of La.R.S. 14:67.10. One of the bonds was in the amount of $9,500.00, and the other was in the amount of $2,500.00. On September 17, 2013, Ms. Tabb was to be arraigned. She did not appear for her arraignment, and the matter was rescheduled for service. When she failed to appear on July 29, 2014, the trial court entered judgments of bond forfeiture.
According to the testimony of Lieutenant Dale Thomas, Supervisor of the Warrants Division of the Lafayette Parish Sheriff's Office, on December 9, 2014, Fidelity/A-Abail Bonding contacted him and asked that Ms. Tabb's name be placed into the National Crime Information Center database. On December 17, 2014, Ms. Tabb was detained by a recovery agent in Mesa County, Colorado, arrested as a fugitive, and incarcerated at Mesa County Detention Center. Ms. Tabb refused to waive extradition from Colorado. Therefore, according to Lieutenant Thomas, the next step would have been for a Governor's warrant or extradition warrant to be issued to the State of Colorado, and then the sheriff's Transportation Division would ascertain the cost of transporting Ms. Tabb from Colorado to Louisiana. However, no such warrant was issued. Ms. Tabb was released on bond on December 19, 2014.
Also on December 19, 2014, but several hours prior to Ms. Tabb's release from Mesa County Detention Center, Fidelity/A-Abail filed motions in the instant matter to have their bond obligations deemed satisfied on the basis that Ms. Tabb was incarcerated in Colorado. The matter was originally fixed for hearing in May 2015, but was continued at Fidelity's/A-Abail's request. In August 2015, the State filed oppositions to the motions in which it asserted that Ms. Tabb had been released from the Mesa County Detention Facility on bond. The State also asserted that Fidelity/A-Abail failed to comply with La.Code Crim.P. art. 345(D)(3), which requires payment of "the reasonable cost of returning the defendant to the officer originally charged with the
It is undisputed that Fidelity/A-Abail never tendered payment of the cost of transporting Ms. Tabb from Colorado to Louisiana. However, Fidelity/A-Abail argue that, because no extradition warrant was ever issued and they were never notified of the cost to transport Ms. Tabb back to Louisiana, they were "prohibited" from paying transportation costs as required by La.Code Crim.P. art. 345(D)(2), and therefore their bond obligations should be deemed satisfied.
The trial court agreed with Fidelity/A-Abail, granted the motions, and entered judgments deeming their bond obligations satisfied. The State appeals from these judgments. In its sole assignment of error, the State contends that the trial court erred in deeming the bond obligations satisfied because the reasonable cost for transporting Ms. Tabb was not paid.
The facts of this case are undisputed. At issue is the trial court's interpretation of La.Code Crim.P. art. 345(D), which is an issue of law that we review de novo. City of Lafayette v. Tyler, 14-663 (La.App. 3 Cir. 12/10/14), 153 So.3d 1276.
Bail is governed by Title VIII of the Louisiana Code of Criminal Procedure. "Bail is the security given by a person to assure his appearance before the proper court whenever required." La.Code Crim.P. art. 311. Louisiana recognizes several forms of bail, including bail with a commercial surety. La.Code Crim.P. art. 312(A)(1). As conditions of bail, the defendant must "appear at all stages of the proceeding[,] ... submit himself to the orders and process of the court, and [may] not leave the state without written permission of the court." La.Code Crim.P. art. 326(A). Commercial sureties are required to be given certain notices of the defendant's appearance dates. La.Code Crim.P. art. 344.
When a defendant fails to appear, the State may seek a judgment of bond forfeiture. La.Code Crim.P. art. 349.2.
La.Code Crim.P. art. 349.8(A)(1)
La.Code Crim.P. art. 345(D).
The State focuses its argument on La. Code Crim.P. art 345(D)(3), and maintains that the trial court may not adjudge the bond obligations satisfied without all three conditions having been met. In support thereof, it cites State v. International Fidelity Insurance Co., 32,837, 32,838, (La. App. 2 Cir. 3/1/00), 756 So.2d 565. In that case, the surety secured the defendant's appearance in Ouachita Parish, but the defendant failed to appear, and therefore a judgment of bond forfeiture was entered. The defendant was later incarcerated in Union Parish, but was released on bond. Three weeks after the defendant had been released from Union Parish, the surety submitted a check to Ouachita Parish in the amount necessary to transport the defendant back to Ouachita Parish; however, the check was rejected because the defendant was no longer incarcerated. The surety moved to have the bond obligation deemed satisfied, and the trial court granted the motion. The appellate court reversed and found the surety's bond obligation had not been satisfied, stating:
Id. at 566.
In City of Lafayette v. Tyler, 153 So.3d at 1279, this court stated that:
Similarly, in State v. Ramee, 05-748 (La. App. 5 Cir. 5/9/06), 930 So.2d 1092, the appellate court found that a bond obligation had not been satisfied when, after a bond forfeiture judgment had been entered,
In the instant matter, Fidelity/A-Abail had not satisfied La.Code Crim.P. art. 345(D)(3) at the time of filing its motion as it had not paid transportation costs. Even though the State had not sought extradition and the sheriff's Transportation Division had not ascertained, or informed Fidelity/A-Abail of, the amount of transportation costs, there is no indication in La.Code Crim.P. art. 345(D) that a surety's obligation to pay transportation costs is dependent on the State seeking extradition or notifying the surety of the amount of costs. Moreover, while Ms. Tabb was incarcerated at the time Fidelity/A-Abail's motions were filed, she was released on bond several hours later, and prior to any payment of transportation costs. Therefore, even if Fidelity/A-Abail had tendered transportation costs prior to the hearing on its motions, release from their bond obligations pursuant to La.Code Crim.P. art. 345(D) would not have been appropriate as Ms. Tabb was no longer incarcerated. Therefore, there was insufficient proof to release Fidelity/A-Abail from its bond obligations pursuant to La. Code Crim.P. art. 345(D).
Moreover, while La.Code Crim.P. art. 345(I) allows a judgment of bond forfeiture to be set aside "with proof satisfactory to the court that a fortuitous event has occurred and that the event has made it impossible [for the surety] to perform as required under the contract[,]" we do not find any such "fortuitous event" in this matter.
For the reasons set forth above, we reverse the judgment of the trial court and reinstate the bond forfeiture judgments in favor of the State. All costs of this appeal are assessed against Defendants-Appellees International Fidelity Insurance Company and A-Abail Bonding.
GREMILLION, J., dissents and assigns reasons.
GREMILLION, Judge, dissents.
I dissent from the opinion of the majority, largely in agreement with Judge Cooks' well-reasoned dissent.
The State focuses its argument on La. Code Crim.P. art 345(D)(3), and maintains that the trial court may not adjudge the bond obligation satisfied without all three conditions having been met. In support thereof, it cites State v. Int'l Fid. Ins. Co., 32,837 (La.App. 2 Cir. 3/1/00), 756 So.2d 565. In that matter, the surety had bonded the defendant's appearance in district court in Ouachita Parish. The defendant failed to appear. He became incarcerated in Union Parish and was released from Union Parish into the custody of the West Monroe Police Department, who sought him in connection with pending charges in West Monroe City Court. The same surety who had bonded the defendant's appearance in district court then bonded the defendant and secured his release from the West Monroe City Jail. Later, that surety submitted a check to the Ouachita Parish Police Jury for the cost of having the defendant transported from Union Parish to Ouachita Parish, despite knowing that defendant was not incarcerated in Union Parish. The police jury returned the check to the surety because the bond forfeiture judgment had not been satisfied. The surety filed a motion to have the obligation deemed satisfied, which was granted. The court of appeal reversed, holding that the surety must pay the transportation costs under La.Code Crim.P. art. 345(D)(3) before the defendant is released.
State v. International Fidelity is readily distinguished from the matter at bar. In State v. International Fidelity, the same surety that furnished the defendant's bond in Ouachita Parish furnished the bond that secured his release from West Monroe City Jail. That the defendant was no longer incarcerated in a different jurisdiction was not entirely within the surety's control. The other cases cited by the State, namely, State v. Davila, 01-418 (La. App. 1 Cir. 3/28/01), 814 So.2d 56, and State v. Matteson, 36,628 (La.App. 2 Cir. 12/11/02), 833 So.2d 1199, are also distinguished from the present case. All were decided before a quite substantive amendment of Article 345 effected in 2006 La. Acts No. 466, which added Subsections (I) and (J). I hasten to point out that so was State v. Ramee, 05-748 (La.App. 3 Cir. 5/9/06), 930 So.2d 1092, cited by the majority. Subsection (I) provides:
City of Lafayette v. Tyler, 14-663 (La. App. 3 Cir. 12/10/14), 153 So.3d 1276, is also easily distinguishable from the present matter. In Tyler, the defendant had been incarcerated and the surety failed to notify the officer who was originally charged with his detention. It was not the failure of the State to act, but the surety.
The payment of the reasonable costs by International Fidelity were dependent upon the State seeking extradition of Ms. Tabb from Colorado, and the State having failed to do so, it was impossible for those costs to be paid. As Judge Cooks plainly points out in her dissent, "[C]learly the surety is not able to remove the defendant from custody in Colorado without the State doing its part." The trial court was well within its discretion under Subsection (I) to set aside the judgment of bond forfeiture.
I agree with Judge Cooks and would affirm the judgment of the trial court.
COOKS, J., dissenting.
I respectfully dissent from the majority opinion reversing the judgment of the trial court and reinstating the bond judgment forfeitures. In this case, the majority accepts the State's argument that the trial court may not adjudge the bond obligations satisfied without all three conditions of La.Code Crim.P. art. 345 having been met. While it is clear the third requirement of that article (payment of transportation costs) was not met, the record is equally clear this requirement was not met because of the actions or inactions of the State and not due to any failures on the part of the surety.
The surety notes in the long-standing case of Payne v. Lyons Cypress Lumber Co., 7 Orl.App. (La.App.Orleans 1910), the court stated "Defendant cannot avoid the burden of a contract when its own conduct prevented plaintiffs from carrying out his part of the undertaking, and when the latter was ready and willing to discharge his obligation." I am satisfied the record reflects the surety was prevented from paying the reasonable transportation costs of the defendant and meeting all the requirements of article 345 solely because of the policies and procedures of the Lafayette Parish Sheriff's Office and the inaction of the state actors.
In this case, a hold was placed by the Lafayette Parish Sheriff's Department on the defendant when she came under the custody of the state of Colorado on December 17, 2014. The surety agreed to pay extradition costs to bring Defendant back to Louisiana. The Lafayette Parish Sheriff's Department would not accept payment of the extradition costs until the Lafayette Parish District Attorney's Office agreed to extradite Defendant. The district attorney's office did not proceed with the necessary actions to extradite Defendant. The surety awaited word from the Sheriff or District Attorney as to the amount of transportation costs, but did not receive such. Thus, it was unable to pay the transportation costs as required by article 345 despite its fervent attempts to do so. The surety then moved to have the bond obligation deemed satisfied, which the trial court granted.
Courts have long held that bond forfeitures are not favored by law and the State must strictly comply with the statutory procedure in bond forfeiture actions in order to obtain a valid bond forfeiture. State v. Hathaway, 403 So.2d 737 (La. 1981); State v. Turner, 04-1111 (La.App. 3 Cir. 12/8/04), 893 So.2d 900; State v. Rice,
The State's inaction in this matter prevented the surety from meeting the three requirements imposed upon it by article 345. The defendant refused to waive extradition from Colorado. It was then incumbent upon the State to have an extradition warrant issued to secure defendant's release from custody in Colorado. The State did not do this. Clearly, the surety is not able to remove the defendant from custody in Colorado without the State doing its part. Thus, the surety was prevented from complying with the third requirement of article 345 (payment of transportation costs) because of the inaction of the State. Thus, the trial court did not err in granting the Motion to Have Bond Obligation Deemed Satisfied. I would affirm the judgment.