State v. Roulhac

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA19-1070

Filed: 1 September 2020

Martin County, 15 CRS 50823

STATE OF NORTH CAROLINA

v.

PETER LEE ROULHAC, III, Defendant,

and

BRYAN KELLEY, PALMETTO SURETY CORPORATION, Bail Agent/Surety,

and

MARTIN COUNTY BOARD OF EDUCATION, Judgment Creditor.

Appeal by surety from order entered 5 August 2019 by Judge Walter H.

Godwin, Jr., in Martin County Superior Court. Heard in the Court of Appeals 29 April

2020.

Brian Elston Law, by Brian D. Elston, for surety-appellant.

Daniel A. Manning for judgment creditor-appellee.

ZACHARY, Judge.

The Palmetto Surety Corporation appeals from an order denying its motions

seeking, inter alia, “an order instructing the [c]lerk not to enter [final] judgment” of

forfeiture. After careful review, we affirm the trial court’s order.

Background

STATE V. ROULHAC

Opinion of the Court

The undisputed facts of this case are as follows: On 14 December 2016, the

Palmetto Surety Corporation (“Surety”) executed a $100,000 appearance bond

securing the pretrial release of Defendant Peter Lee Roulhac, III, on criminal charges

pending in Martin County Superior Court. After Defendant failed to appear in court

on 5 November 2018, the trial court issued an order for his arrest. On 13 December

2018, the Honorable Wayland J. Sermons, Jr., ordered that the appearance bond be

forfeited. On that same date, an assistant clerk of superior court issued a bond

forfeiture notice and served Surety and Defendant with a copy of the notice of entry

of forfeiture by first-class mail.

On 13 May 2019, Surety moved the trial court (1) to modify the bond forfeiture

pursuant to Rule 60 of the North Carolina Rules of Civil Procedure; (2) to strike the

bond forfeiture; (3) to stay the proceedings; or (4) in the alternative, to grant Surety

relief from the bond forfeiture pursuant to N.C. Gen. Stat. § 15A-544.8 (2019). Surety

argued that “the Clerk did not provide proper notice of the Bond Forfeiture until 38

days past the Defendant’s failing to appear” for his court date, rather than within the

requisite 30-day period; thus, pursuant to N.C. Gen. Stat. § 15A-544.4(e), the “notice

was not timely” and the bond forfeiture could not “become a final judgment.” In the

alternative, Surety asserted that N.C. Gen. Stat. § 15A-544.8 “also authorizes relief

when notice was not provided under” N.C. Gen. Stat. § 15A-544.4 and that the trial

court “should grant relief by not enforcing the bond forfeiture.” The Martin County

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STATE V. ROULHAC

Opinion of the Court

Board of Education objected to the motion, and the trial court heard Surety’s motion

on 15 July 2019.

By order entered 5 August 2019, the Honorable Walter H. Godwin, Jr., denied

Surety’s motions and declared the bond forfeiture a final judgment as of 27 July 2019.

Surety timely appealed.

Discussion

On appeal, Surety contends that the trial court erred (1) “in its application of

N.C. Gen. Stat. § 15A-544.5 to situations governed by the [North Carolina] Rules of

Civil Procedure”; and (2) by failing to modify the order “so it complied with . . . N.C.

Gen. Stat. § 15A-544.4(e)[.]”

Standard of Review

“When the trial court sits without a jury, the standard of review for this Court

is whether there was competent evidence to support the trial court’s findings of fact

and whether its conclusions of law were proper in light of such facts.” State v. Dunn,

200 N.C. App. 606, 608, 685 S.E.2d 526, 528 (2009) (citing State v. Lazaro,190 N.C.

App. 670, 671, 660 S.E.2d 618, 619 (2008)). Questions of law are reviewed de novo.

State v. Hinnant, 255 N.C. App. 785, 787, 806 S.E.2d 346, 347-48 (2017).

Analysis

“Bail bond forfeiture in North Carolina is governed by N.C. Gen. Stat. §§ 15A-

544.1 – 544.8[.]” State v. Gonzalez-Fernandez, 170 N.C. App. 45, 48, 612 S.E.2d 148,

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STATE V. ROULHAC

Opinion of the Court

151 (2005). “If a defendant who was released . . . upon execution of a bail bond fails

. . . to appear before the court as required, the court shall enter a forfeiture for the

amount of that bail bond in favor of the State against the defendant and against each

surety on the bail bond.” N.C. Gen. Stat. § 15A-544.3(a).

The defendant and each surety whose name appears on the bail bond are to be

served with notice of the entry of bond forfeiture by first-class mail. Id. § 15A-

544.4(a)-(b).

Notice under this section shall be mailed not later than the

30th day after the date on which the defendant fails to

appear as required and a call and fail is ordered. If notice

under this section is not given within the prescribed time,

the forfeiture shall not become a final judgment and shall

not be enforced or reported to the Department of Insurance.

Id. § 15A-544.4(e).

It is well settled that “[t]he exclusive avenue for relief from forfeiture of an

appearance bond (where the forfeiture has not yet become a final judgment) is

provided in [N.C. Gen. Stat.] § 15A-544.5.” State v. Robertson, 166 N.C. App. 669, 670-

71, 603 S.E.2d 400, 401 (2004) (emphasis added). “For bonds that have not become

final judgments, the trial court can only ‘set aside’ a forfeiture if one of seven

enumerated reasons have been established,” as provided in section 15A-544.5(b).

State v. Ortiz, ___ N.C. App. ___, ___, 832 S.E.2d 474, 477 (2019).

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STATE V. ROULHAC

Opinion of the Court

(b) Reasons for Set Aside. – Except as provided by

subsection (f) of this section,1 a forfeiture shall be set aside

for any one of the following reasons, and none other:

(1) The defendant’s failure to appear has been set

aside by the court and any order for arrest issued for

that failure to appear has been recalled . . . .

(2) All charges for which the defendant was bonded

to appear have been finally disposed by the court

other than by the State’s taking dismissal with leave

....

(3) The defendant has been surrendered by a surety

on the bail bond as provided by [N.C. Gen. Stat. §]

15A-540 . . . .

(4) The defendant has been served with an Order for

Arrest for the Failure to Appear on the criminal

charge in the case in question . . . .

(5) The defendant died before or within the period

between the forfeiture and the final judgment . . . .

(6) The defendant was incarcerated in a unit of the

Division of Adult Correction and Juvenile Justice

. . . and is serving a sentence or in a unit of the

Federal Bureau of Prisons . . . at the time of the

failure to appear . . . .

(7) The defendant was incarcerated in a local, state,

or federal detention center, jail, or prison located

anywhere within the borders of the United States at

the time of the failure to appear, or any time

between the failure to appear and the final judgment

date, and the district attorney for the county in

1 Subsection (f) provides that no bond forfeiture “may be set aside for any reason in any case

in which the surety or the bail agent had actual notice before executing a bail bond that the defendant

had already failed to appear on two or more prior occasions in the case for which the bond was

executed.” N.C. Gen. Stat. § 15A-544.5(f). Accordingly, subsection (f) is inapplicable here.

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STATE V. ROULHAC

Opinion of the Court

which the charges are pending was notified of the

defendant’s incarceration while the defendant was

still incarcerated and the defendant remains

incarcerated for a period of 10 days following the

district attorney’s receipt of notice . . . .

N.C. Gen. Stat. § 15A-544.5(b).

Here, Surety argues that the grounds for setting aside a forfeiture as provided

in section 15A-544.5(b) are inapplicable, in that Surety did not move to set aside the

bond forfeiture, but merely to modify it for lack of compliance with subsection (e)’s

provisions.

This Court addressed a similar issue in State v. Sanchez, 175 N.C. App. 214,

623 S.E.2d 780 (2005). In Sanchez, a notice of bond forfeiture was issued after the

defendant failed to appear for his court date on 21 July 2004. 175 N.C. App. at 215,

623 S.E.2d at 780. The clerk mailed the notice of bond forfeiture to the defendant and

his sureties on 27 August 2004, outside of the 30-day period prescribed by N.C. Gen.

Stat. § 15A-544.4(e). Id. The surety then “moved to set aside the entry of forfeiture

pursuant to N.C. Gen. Stat. § 15A-544.4(e) on the grounds that [the] surety was not

provided with notice of the forfeiture within thirty days after entry of forfeiture.” Id.

On appeal, we concluded that because the “surety’s motion to set aside the entry of

forfeiture was not premised on any ground set forth in [N.C. Gen. Stat.] § 15A-544.5,”

the trial court “lacked the authority to grant [the] surety’s motion.” Id. at 218, 623

S.E.2d at 782.

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STATE V. ROULHAC

Opinion of the Court

In the instant case, Surety has adroitly attempted to recharacterize its efforts

to obtain relief from the entry of bond forfeiture. Nonetheless, because Surety moved

for relief from the entry of bond forfeiture prior to it becoming a final judgment, N.C.

Gen. Stat. § 15A-544.5 provides the “exclusive avenue for relief.” Ortiz, ___ N.C. App.

at ___, 832 S.E.2d at 478 (citation omitted); accord State v. Knight, 255 N.C. App. 802,

807-08, 805 S.E.2d 751, 755 (2017); State v. Cobb, 254 N.C. App. 317, 318, 803 S.E.2d

176, 178 (2017); State v. Williams, 218 N.C. App. 450, 451, 725 S.E.2d 7, 9 (2012);

Robertson, 166 N.C. App. at 670-71, 603 S.E.2d at 401. Any relief sought for violation

of N.C. Gen. Stat. § 15A-544.4(e)’s 30-day notice requirement is unavailable prior to

the entry of a final judgment.

Moreover, our General Statutes provide relief from a final judgment where a

surety did not receive the requisite notice. As this Court stated in Sanchez, N.C. Gen.

Stat. § 15A-544.8 provides that the trial court may set aside a final judgment of

forfeiture if “[t]he person seeking relief was not given notice as provided in” N.C. Gen.

Stat. § 15A-544.4. N.C. Gen Stat. § 15A-544.8(b)(1); Sanchez, 175 N.C. App. at 218,

623 S.E.2d at 782. “That the General Assembly specifically made allowance for relief

from final judgment of forfeiture for faulty notice, and omitted the same as a ground

for relief from an entry of forfeiture, suggests the legislature made a conscious choice

in this regard.” Sanchez, 175 N.C. App. at 218, 623 S.E.2d at 782. Despite Surety’s

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STATE V. ROULHAC

Opinion of the Court

contention that this statement from Sanchez is merely dicta, the reasoning is

nevertheless sound and persuasive.

Conclusion

In that the trial court’s findings support its conclusion that Surety failed to

establish any reasons for relief specified in N.C. Gen. Stat. § 15A-544.5(b), we affirm

the trial court’s order.2

AFFIRMED.

Judges DIETZ and MURPHY concur.

2 In light of our conclusion that the trial court properly denied Surety’s motion under N.C. Gen.

Stat. § 15A-544.5, we need not address Surety’s remaining arguments.

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