Safety National Casualty Corporation, Accredited Surety & Casualty Company, Financial Casualty & Surety Company and Roche Surety & Casualty Company, Inc. v. State of Louisiana

• Court: Louisiana Court of Appeal
• Decided: August 14, 2019
• Docket: 52,785-CA
• Status: Published

Opinion

Judgment rendered August 14, 2019. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 52,785-CA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

SAFETY NATIONAL Plaintiffs-Appellees CASUALTY CORPORATION, ACCREDITED SURETY & CASUALTY COMPANY, FINANCIAL CASUALTY & SURETY COMPANY AND ROCHE SURETY & CASUALTY COMPANY, INC.

versus

STATE OF LOUISIANA Defendant-Appellant

Appealed from the Second Judicial District Court for the Parish of Bienville, Louisiana Trial Court No. 44-045

Honorable Robert W. Kostelka (Ad Hoc), Judge

OFFICE OF THE DISTRICT ATTORNEY Counsel for Appellant, SECOND JUDICIAL DISTRICT COURT State of Louisiana, By: Benjamin J. Bleich Daniel W. Newell, Teresa C. Carroll District Attorney Assistant District Attorneys

ELTON B. RICHEY & ASSOCIATES Counsel for Appellees, By: Elton B. Richey, Jr. Safety National Casualty Christina E. Hobbs Corporation, Accredited Surety & Casualty Company, Financial Casualty & Surety Company and Roche Surety & Casualty Company, Inc. JEFFREY M. LANDRY Counsel for Appellee, Attorney General State of Louisiana

MICHAEL S. HEIER Assistant Attorney General

Before WILLIAMS, PITMAN, and GARRETT, JJ. WILLIAMS, C.J.

The defendant, State of Louisiana through the Office of the District

Attorney for the Second Judicial District Court (“2d JDC”), appeals a

judgment granting summary judgment in favor of the plaintiffs, Safety

National Casualty Corporation, Accredited Surety & Casualty Company,

Financial Casualty & Surety Company and Roche Surety & Casualty

Company, Inc. The district court annulled the judgments of bond forfeiture.

For the following reasons, we affirm.

FACTS

On September 15, 2015, the district court rendered 19 judgments of

bond forfeiture sought by the 2d JDC District Attorney’s office. The bonds

had been issued for defendants who had failed to appear on various dates

from 2007 to 2013. Later in September 2015, notices of the bond forfeiture

judgments were mailed to the commercial sureties. In July 2016, the

plaintiffs, Safety National Casualty Corporation, Accredited Surety &

Casualty Company, Financial Casualty & Surety Company and Roche

Surety & Casualty Company, Inc., filed a petition to annul the judgments of

bond forfeiture against the defendant, State of Louisiana (“the State”),

through the Office of the Louisiana Attorney General and the 2d JDC

District Attorney’s Office. Plaintiffs alleged that the judgments of bond

forfeiture are nullities because the State failed to mail notice of each

forfeiture judgment within 60 days of the date of the named defendant’s

failure to appear in court. The 2d JDC District Attorney filed exceptions of

prescription and no cause of action. The Louisiana Attorney General filed

exceptions of vagueness, improper joinder and no cause of action. In

September 2016, plaintiffs filed an amended petition. In December 2016, district judges Clason, Teat and Fallin recused

themselves from this matter, stating as reasons the plaintiffs’ allegations of

ill practices by the 2d JDC District Attorney and “the working relationship”

between the district attorney and the above-named 2d JDC judges. In July

2017, Judge Kostelka was appointed to hear this matter. In September 2017,

plaintiffs filed a second amended petition to remove a reference to the

Bienville Parish Sheriff.

In November 2017, the district court denied the district attorney’s

exception of prescription and granted the attorney general’s exception of

improper joinder, dismissing the Louisiana Attorney General’s Office from

this action. Thereafter, plaintiffs filed a motion for summary judgment.

After a hearing, the district court found that the bond forfeiture judgments

were null because they were not obtained within the statutory time period for

such forfeitures. The district court rendered judgment granting plaintiffs’

motion for summary judgment. The State appeals the judgment.

DISCUSSION

The State contends the trial court erred in denying the State’s

exception of prescription. The State argues that plaintiffs’ action has

prescribed because they did not file a summary proceeding objecting to the

forfeiture judgments within 60 days of the date that notice of the judgments

was mailed.

The State must strictly comply with the provisions of the statute

concerning bond forfeitures before a judgment of forfeiture can be entered.

State v. Cook, 616 So.2d 272 (La. App. 2 Cir. 1993). A bond forfeiture is

basically a civil proceeding subject to special rules in the Code of Criminal

Procedure. State v. Cook, supra. The defendant and his sureties shall be 2 entitled to assert defenses and actions in nullity by use of summary

proceedings in the criminal matter before the trial court that issued the

judgment of bond forfeiture within 60 days after the date of mailing the

notice of the signing of the forfeiture judgment. La. C.Cr.P. art.

349.5(A)(1). Nullity actions pursuant to the Code of Civil Procedure Article

2001 et seq. not filed within the 60-day period for filing summary

proceedings shall be brought by the use of ordinary civil proceedings. La.

C.Cr.P. art. 349.5(A)(2).

The nullity of a final judgment may be demanded for vices of either

form or substance. La. C.C.P. art. 2001. A final judgment obtained by fraud

or ill practices may be annulled. An action to annul a judgment on these

grounds must be brought within one year of the plaintiff’s discovery of the

ill practice. La. C.C.P. art. 2004.

In this case, the state contends in its brief that plaintiffs were required

to file their nullity action within the 60-day period set forth in Article

349.5(A)(1). However, Article 349.5(A)(2) specifically provides that nullity

actions not filed in that 60-day period shall be filed by the use of ordinary

civil proceedings. In addition, this court has previously stated that the

failure to file a petition within the 60-day period does not bar the surety’s

action seeking the nullity of the forfeiture judgment. See Cook, supra.

Article 2004 provides that an action to annul a judgment must be

brought within one year of the plaintiff’s discovery of the ill practice. In

July 2016, plaintiffs filed a petition alleging they had discovered the state’s

ill practice in September 2015. Thus, the plaintiffs’ action was filed within

the applicable one-year prescriptive period and the trial court did not err in

3 denying the State’s exception of prescription. This assignment of error lacks

merit.

The State contends the trial court erred in granting plaintiffs’ motion

for summary judgment. The State argues that summary judgment was not

proper because there are issues of material fact regarding the dates of

nonappearance and whether the State committed ill practices.

Upon motion of the prosecuting attorney and proof of the bail

contract, notice to defendant and the surety and the defendant’s failure to

appear as required, a bond shall be forfeited and a judgment of bond

forfeiture shall be signed. La. C.Cr.P. art. 349.2(A). After entering the fact

of the signing of the forfeiture judgment in the court minutes, the clerk of

court shall promptly mail notice of the signing of the bond forfeiture

judgment. La. C.Cr.P. art. 349.3(A). Failure to mail notice of the signing of

the forfeiture judgment within 60 days after the defendant fails to appear

shall release the sureties of all obligations under the bond. La. C.Cr.P. art.

349.3( C).

An “ill practice” is any improper practice or procedure which

operates, even innocently, to deprive a litigant of some legal right. Safety

National Casualty Corp. v. State, 43,361 (La. App. 2 Cir. 6/4/08), 986 So.2d

802, writ denied, 2008-2180 (La. 3/27/09), 5 So.3d 140. When ill practices

are alleged, the court must examine the case from an equitable viewpoint to

determine whether the party seeking annulment has met the burden of

showing how he was prevented or excused from asserting his claims or

defenses. Safety National Casualty Corp., supra. There are two criteria to

consider in determining whether a judgment has been obtained through ill

practices, namely, when the circumstances of the judgment show the 4 deprivation of the legal rights of the litigant seeking relief and when the

enforcement of the judgment would be unconscionable or inequitable. The

trial court has discretion in deciding whether a judgment should be annulled

because of ill practice. Safety National Casualty, supra.

Appellate courts review summary judgments de novo, using the same

criteria that govern the trial court’s consideration of whether summary

judgment is appropriate. Argonaut Great Central Ins. Co. v. Hammett,

44,308 (La. App. 2 Cir. 6/3/09), 13 So.3d 1209, writ denied, 2009-1491 (La.

10/2/09), 18 So.3d 122. Summary judgment shall be rendered if the motion,

memorandum and supporting documents show there is no genuine issue as

to material fact and that the mover is entitled to judgment as a matter of law.

La. C.C.P. art. 966(A)(3).

In the present case, the plaintiffs filed a motion for summary judgment

along with a statement of uncontested facts listing the dates on which the

named defendants failed to appear and for which the judgments of forfeiture

were rendered. In opposing plaintiffs’ motion, the State did not contest the

accuracy of those dates with contradictory evidence. Thus, plaintiffs

established that no genuine issue of material fact exists regarding the dates

of nonappearance that are the basis for the forfeiture judgments.

This case involves the application of La. C.Cr.P. arts. 349 through

349.9, which were repealed by Acts 2016, No. 613, effective January 2017.

At the time the forfeiture judgments at issue were rendered, the language of

Article 349.3( C) required that notice be mailed within 60 days of the

nonappearance date for which a written judgment of bond forfeiture is

ultimately rendered. See Louisiana Bail Bonds, Inc. v. State, 41,091 (La.

App. 2 Cir. 5/17/06), 930 So.2d 1113; State v. Murphy, 40,485 (La. App. 2 5 Cir. 12/14/05), 917 So.2d 769, writ denied, 2006-0056 (La. 4/17/06), 926

So.2d 520; and State v. Anaya, 29,843 (La. App. 2 Cir. 9/24/97), 699 So.2d

1158 (cases applying the same language contained in the predecessor statute

to Article 349.3).

The State asserts in its brief that this court has interpreted the statute

as allowing notice of the signing of the forfeiture judgment to be mailed

within 60 days of the date of the judgment itself, citing State v. Young,

47,387 (La. App. 2 Cir. 9/26/12), 106 So.3d 116, and Safety National

Casualty, supra. Contrary to the State’s assertion, the cases of Louisiana

Bail Bonds, Murphy and Anaya demonstrate that this court has applied the

express language of the statute, which required that notice of the signing of

the bond forfeiture judgment be mailed within 60 days after the defendant

fails to appear. This interpretation, that the 60-day notice period begins on

the date of nonappearance for which the forfeiture judgment is rendered, is

consistent with the plain meaning of Article 349.3( C) and we decline to

adopt any contrary interpretation.

The State is required to strictly comply with the statutory provisions

for bond forfeiture. In addition, an ill practice deprives a litigant of a legal

right. The evidence presented demonstrates that the State, in obtaining bond

forfeitures years after the dates of defendants’ nonappearance, failed to

comply with the statutory notice requirement and deprived plaintiffs of the

opportunity to promptly locate and bring the named defendants before the

court. Pursuant to Article 349.3( C), as it appeared at the time of the

forfeitures, the State’s failure to mail notice of the signing of the forfeiture

judgment within 60 days of the nonappearance date for which the judgment

was rendered released the plaintiffs from their obligations under the bonds. 6 Based upon this record, the district court did not err in granting the

plaintiffs’ motion for summary judgment and annulling the judgments of

bond forfeiture. Thus, the assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the district court’s judgment annulling the

judgments of bond forfeiture is affirmed. Costs of this appeal in the amount

of $2,385.50 are assessed to the appellant, State of Louisiana, through the

Office of the District Attorney of the Second Judicial District Court, in

accordance with La. R.S. 13:5112(A).

AFFIRMED.