In Re Indiana Lumbermens Mut. Ins.
This text of 633 So. 2d 715 (In Re Indiana Lumbermens Mut. Ins.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
In re BOND FORFEITURES AGAINST INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY IN BATON ROUGE CITY COURT.
Court of Appeal of Louisiana, First Circuit.
Carl Jackson, City Prosecutor, Baton Rouge, for plaintiff-appellee.
Graymond F. Martin, Smith, Martin & Schneider, New Orleans, for defendant-appellant.
Before WATKINS, SHORTESS and FOGG, JJ.
WATKINS, Judge.
The City of Baton Rouge (City) procured judgments against Indiana Lumbermens Mutual Insurance Company (Indiana Lumbermens) ordering the forfeiture of more than 100 appearance bonds in criminal proceedings in which the defendants failed to make scheduled appearances.[1] Indiana Lumbermens filed motions to set aside the judgments of bond forfeiture/petitions for nullity of judgment, which were consolidated. The trial court denied the surety's motions/petitions *716 and ruled that in 102 of the cases, the bond forfeitures were proper.
Indiana Lumbermens appeals on the ground that the City did not provide it with the proper statutory notice of the judgments of forfeiture. Finding no merit to Indiana Lumbermens' assignments of error, we affirm.
It is undisputed that Indiana Lumbermens provided appearance bonds for the defendants involved in all of these cases. Some of the bonds give the name and address of the surety on the face of the bond as "Indiana Lumberman Ins. Co., 3600 Woodview Trace, Indianapolis, IN." Other bonds name "Indiana Lumbermens" as the surety but do not have any address for it on the face of the bond. However, each of the bonds has an attached power of attorney which lists Indiana Lumbermens' address as "3600 Woodview Trace, P.O. Box 68932, Indianapolis, IN 46266."
It is undisputed that the clerk of city court sent the notices of bond forfeiture to Indiana Lumbermens at 3901 W. 86th, Indianapolis, IN 46268. The notices were sent by certified mail, and they were signed for by persons apparently representing Indiana Lumbermens. The deputy clerk of court in charge of collecting bond forfeitures testified that over 50 forfeitures noticed and accepted in this manner were paid by the surety.
Indiana Lumbermens first assigns as error the trial court's conclusion that the statute governing bond forfeitures does not require the notice of the bond forfeiture to be sent to the surety at the address provided on the face of the bond or the face of the power of attorney. In support of its contention, Indiana Lumbermens cites American Bankers Insurance Company v. State, 581 So.2d 313 (La.App. 1st Cir.1991). In that case this court was called upon to interpret the following pertinent language of LSA-R.S. 15:84A(1):
After entering the fact of such failure to appear in the court minutes, the clerk of court shall promptly mail notice of the forfeiture to the surety on the bond whose address is on the face thereof and shall execute an affidavit of the mailing and place it in the record. A copy of the notice also shall be mailed to the agent of the surety who posted the bond. Mailing the notice to the agent alone shall not constitute compliance with this Section. Failure to mail the proper notice within sixty days after the entry of the forfeiture shall release the surety from all obligations under the bond.
In the instant case the trial court correctly distinguished American Bankers on the facts, but incorrectly, in our opinion, made its own interpretation of the statute. The trial judge stated, "Based on both the plain wording of the statute and jurisprudential interpretation, this Court finds, as a matter of law, that the clerk must simply mail notice TO THAT PARTICULAR SURETY whose address appears on the face of the bond. The statute does not require that the notice be sent to any particular address."
Instead, we interpret the language of the statute as requiring that notice to the surety be provided at the address that appears on the face of the bond. However, if actual notice to the surety is achieved, the notice requirements are met. The purpose of enforcing strict compliance with the notice provisions in the bond forfeiture statutes is to provide prompt and adequate notice so the surety can quickly identify its bond obligation, locate the defendant, and surrender him to court for trial. State v. Bullock, 412 So.2d 1059, 1060 (La.1982); State v. Canto, 600 So.2d 152, 154 (La.App. 3d Cir.1992). In American Bankers, 581 So.2d at 314, we held that "[s]trict compliance does not necessarily equate to strict construction...." The requirements of the notice provisions are not sacrosanct; a bond forfeiture will be upheld if the surety is provided prompt and adequate notice and no prejudice to the surety is shown. See State v. Bullock.
In State v. Hartley, 614 So.2d 211 (La.App. 3d Cir.1993), State v. Canto, and American Bankers, the courts held that mailing the notice of forfeiture to the address on the face of the bond was sufficient to meet a due process challenge, even where actual notice was not received, because that procedure was "reasonably calculated" to provide actual service. We are aware of no jurisprudence *717 which holds that notice to an address obtained by the clerk, which results in actual notice to the surety, is insufficient to meet the requirements of LSA-R.S. 15:84. To the contrary, in State v. Hartley, the court implies that if the clerk of court knew of an address for the surety which was more recent than that on the face of the bond but deliberately disregarded it, the surety's entitlement to due process might be violated.
Accordingly, we find no merit in appellant's contention that it failed to receive "proper notice" of the bond forfeitures, thus barring the forfeitures for failure to comply with statutory notice requirements.
The appellant's second assignment of error is that the trial court erred in allowing the City to introduce parol evidence in an attempt to prove "actual service of the bond forfeitures on the surety." (Emphasis ours.)
The appellant misstates the proof allowed in the instant case. The parol evidence admitted by the trial court was allowed as proof of actual notice, not proof of service. All of the cases cited by appellant deal with the prohibition of parol evidence to vary the service of citation evidenced by a sheriff's return. Suffice it to say that those cases are inapposite here. There was no error on the part of the trial court in admitting parol evidence in the instant case, along with the documentary evidence of the receipts of the notices.
Finally, appellant argues that the trial court erred in its conclusion that the surety received notice of the bond forfeitures when the evidence clearly demonstrates that an entity other than the surety received the notices. Although the appellant labels the trial court's decision on this issue as a "legal conclusion," it was a factual determination on the trial court's part.
It is undisputed that the notices mailed to the W. 86th Street address were received without protest by Indiana Lumbermens for an extended period of time. There is documentary evidence in the record that the certified mail receipts were signed for by various persons, and there is no proof of forgeries or unauthorized signatures. Identical mailings resulted in numerous payments of the forfeitures. Thus, there is adequate support in the record for two permissible views: that there was actual notice to Indiana Lumbermens or that there was actual notice to another entity.
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
633 So. 2d 715, 1993 WL 601259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-indiana-lumbermens-mut-ins-lactapp-1993.