State of Louisiana v. Nathan Cedric Johnson (A-Second 2 None Bail Bond & Bankers Insurance Company)

• Court: Louisiana Court of Appeal
• Decided: March 1, 2023
• Docket: 54,860-CA
• Status: Published

Opinion

Judgment rendered March 1, 2023. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 54,860-CA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

STATE OF LOUISIANA Plaintiff-Appellant

versus

NATHAN CEDRIC JOHNSON (A- Defendant-Appellee SECOND 2 NONE BAIL BOND & BANKERS INSURANCE COMPANY)

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 360224

Honorable John D. Mosely, Jr., Judge

Tommy Jan Johnson Counsel for Appellant

Bankers Insurance Company Counsel for Appellee Phyllis Green, Bonding Agent

Before STEPHENS, ROBINSON, and HUNTER, JJ. HUNTER, J.

The plaintiff, State of Louisiana, appeals a judgment denying the

state’s motion to enjoin a commercial surety from executing criminal bail

bonds in Caddo Parish. The trial court ordered the surety to pay the amount

of the bond forfeiture judgment, but denied the state’s request to prohibit the

surety from issuing bail bonds for lack of timely payment. For the following

reasons, we affirm.

FACTS

In September 2016, Bankers Insurance Company, a commercial surety

company, executed a bail bond in the amount of $15,000 for release of

defendant, Nathan Johnson, through its agent, A-Second 2 None Bail Bonds

(“Second 2 None”). Defendant was ordered to appear in court on May 1,

2019, and notice of this date was sent to defendant and the surety.

On May 1, 2019, Nathan Johnson failed to appear in court for a

hearing and a bench warrant for his arrest was issued. On June 7, 2019,

notice of the arrest warrant was mailed to Bankers Insurance Company

(“Bankers”) and filed into the record. More than 180 days passed from the

date of mailing of the notice of the arrest warrant without the surrender or

constructive surrender of Johnson. The state filed a petition against Johnson

and Bankers to show cause why a bond forfeiture judgment should not be

rendered against them. On June 4, 2020, the state obtained a judgment of

bond forfeiture against Bankers and Johnson in the amount of $15,000. This

judgment was not appealed and is final.

In October 2020, Phyllis Green, the bail bondsman acting in proper

person, filed a motion to set aside the judgment of forfeiture and a petition

for nullity of judgment. Green is not an attorney and was not representing Bankers. Green is the owner of Second 2 None. Green and her company are

agents of the surety, Bankers, and were not parties to the litigation.

In December 2021, the state filed a motion to prohibit the commercial

surety from executing criminal bail bonds in Caddo Parish. The motion

sought an order requiring Bankers to pay the judgment of forfeiture or show

cause why it should not be enjoined from posting criminal bonds in the First

Judicial District Court. On December 23, 2021, service of process was made

on Bankers through the office of the Louisiana Secretary of State.

In February 2022, at the hearing on the state’s motion to enjoin

Bankers from posting bail bonds, Green stated she had made a mistake and

failed to complete the requirements for a constructive surrender of Johnson.

After the trial court questioned whether there had been service on the

insurer, the state presented a return of service to the court. The trial court

then granted the state’s motion in part and rendered a judgment ordering

Bankers to pay the judgment of bond forfeiture in the amount of $15,000.

However, the trial court denied the state’s request to prohibit the surety from

posting criminal bonds in Caddo Parish for a failure to pay the bond

forfeiture amount. The state appeals the judgment.

DISCUSSION

The state contends the trial court erred in denying the state’s motion to

prohibit Bankers from issuing bail bonds for failure to pay the amount of the

bond forfeiture judgment. The state argues the trial court abused its

discretion in denying the motion because the elements required in the statute

to enjoin the surety from issuing bail bonds were satisfied in this case.

If a defendant fails to appear and a judgment of bond forfeiture

rendered against a commercial surety company has not been satisfied or 2 timely appealed, the prosecuting attorney may file with the court, where the

bail undertaking is forfeited, a rule to show cause why the commercial surety

should not be prohibited from executing criminal bail undertakings in the

court issuing the bond forfeiture judgment. La. R.S. 15:85(A). The trial

court may issue an order enjoining the commercial surety from posting

criminal bail undertakings before the court issuing the judgment of bond

forfeiture if such judgment has not been satisfied within ten days and the

trial court finds the following: 1) a judgment of bond forfeiture was

rendered against the surety, 2) proper notice of the judgment was shown by

the affidavit stating the date of mailing to the parties, 3) defendant did not

appear and was not surrendered or constructively surrendered within 180

days after the notice of arrest warrant was sent, 4) no suspensive appeal was

taken, and 5) the judgment of bond forfeiture has not been satisfied by

payment. La. R.S. 15:85(B).

In this case, the record contains evidence showing Johnson was

incarcerated in DeSoto Parish in April 2019, prior to the date he was

scheduled to appear in Caddo district court. At the hearing on the state’s

motion, the bail bondsman, Green, attended and acknowledged to the trial

court she had mistakenly failed to pay the cost for transporting Johnson to

the district court in Caddo Parish. As a result, the constructive surrender of

Johnson did not occur.

Under R.S. 15:85, the language authorizing the court to prohibit a

surety from issuing bail bonds is not mandatory. Rather, the trial court is

given discretion in determining whether to issue an order enjoining a

commercial surety from posting criminal bail bonds. In making a

determination on the state’s motion to prohibit Bankers from issuing bail 3 bonds in Caddo Parish, the trial court took into consideration the

circumstances explained by the bail bondsman. The evidence presented

supports the trial court finding although Bankers and Second 2 None did not

take the proper steps to avoid bond forfeiture, such a failure was inadvertent

in light of Green’s statement and the document indicating Johnson failed to

appear on May 1, 2019, because he was incarcerated in another parish.

Based upon this record, the trial court could reasonably conclude

Bankers was liable to pay the bond forfeiture judgment, but the

circumstances of this case did not support the issuance of an order enjoining

the commercial surety from posting criminal bail bonds in the court which

issued the bond forfeiture judgment. After considering the evidence

presented and the applicable law, we cannot say the trial court abused its

discretion in denying the state’s request to enjoin Bankers from posting

criminal bail bonds in the First Judicial District Court for failure to satisfy

the bond forfeiture judgment. Consequently, the assignment of error lacks

merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed.

Pursuant to La. R.S. 13:5112, costs of this appeal in the amount of $837 are

assessed to the appellant, State of Louisiana.

AFFIRMED.