State of Louisiana v. Valerie A. Tabb AKA Valerie A. Gilbert AKA Valerie A. Korn

• Court: Louisiana Court of Appeal
• Decided: August 3, 2016
• Docket: CA-0015-1129
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

15-1129

STATE OF LOUISIANA

VERSUS

VALERIE A. TABB AKA VALERIE A. GILBERT AKA VALERIE A. KORN

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 142742 HONORABLE JULES D. EDWARDS, III, DISTRICT JUDGE

D. KENT SAVOIE JUDGE

Court composed of Sylvia R. Cooks, Billy Howard Ezell, James T. Genovese, Shannon J. Gremillion, and D. Kent Savoie, Judges.

REVERSED.

COOKS, J., dissents and assigns reasons.

GREMILLION, J., dissents and assigns reasons. Keith A. Stutes District Attorney, Fifteenth Judicial District P. O. Box 3306 Lafayette, LA 70502-3306 (337) 232-5170 COUNSEL FOR PLAINTIFF-APPELLANT: State of Louisiana

Emilia Salas Pardo Assitant District Attorney, Fifteenth Judicial District 911 Lee Ave. Lafayette, LA 70501 (337) 232-5170 COUNSEL FOR PLAINTIFF-APPELLANT: State of Louisiana

Randy J. Lasseigne P. O. Box 5313 Lafayette, LA 70502-5313 (337) 233-1720 COUNSEL FOR DEFENDANTS-APPELLEES: International Fidelity Ins. Co. A-Abail Bonding

Gerald Block Fifteenth Judicial District Public Defenders Office P.O. Box 53506 Lafayette, LA 70505 (337) 233-9296 COUNSEL FOR DEFENDANT-APPELLEE Valerie A. Tabb AKA Valerie A. Gilbert AKA Valerie A. Korn

1 SAVOIE, Judge.

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.

FACTS

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 defendant’s detention prior to

the defendant’s return.”

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.

2 ANALYSIS

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.

For bonds that have a face value under fifty thousand dollars, a judgment forfeiting the appearance bond shall at any time, within one hundred eighty days after the date of mailing the notice of the signing of the judgment of bond forfeiture, be fully satisfied and set aside upon the surrender of the defendant or the appearance of the defendant.

La.Code Crim.P. art. 349.8(A)(1)

If during the period allowed for the surrender of the defendant, the defendant is found to be incarcerated in . . . a foreign jurisdiction, the judgment of bond forfeiture is deemed satisfied if all of the following conditions are met:

(1) The defendant or his sureties file a motion within the period allowed for the surrender of the defendant. The motion shall be heard summarily.

3 (2) The sureties of the defendant provide the court adequate proof of incarceration of the defendant, or the officer originally charged with his detention verifies his incarceration. A letter of incarceration issued pursuant to this Article verifying that the defendant was incarcerated within the period allowed for the surrender of the defendant at the time the defendant or the surety files the motion, shall be deemed adequate proof of the incarceration of the defendant.

(3) The defendant’s sureties pay the officer originally charged with the defendant’s detention, the reasonable cost of returning the defendant to the officer originally charged with the defendant’s detention prior to the defendant’s return.

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:

At all pertinent times, La.C[ode] Cr[im].P. art. 345(D) provided that, if within six months after a bond forfeiture judgment has been entered, a defendant is found incarcerated, the judgment of bond forfeiture is deemed satisfied if the surety meets three conditions. First, the filing of summary proceedings; second, the submission of proof of

4 the defendant’s incarceration; and third, that “defendant’s sureties pay the officer originally charged with the defendant’s detention, the reasonable cost of returning the defendant to the officer originally charged with the defendant’s detention.” This statute was amended in 1999 to add to the third requirement payment “prior to the defendant's return.” (Emphasis added). This 1999 amendment was remedial and for clarification of the obvious.

A plain reading of the statute shows that a surety must meet all three conditions before the surety’s obligation is satisfied and released. The record shows that the surety did not tender payment of the cost of transportation until approximately three weeks after [the defendant] had been released. Thus, at the time the fax was sent and the motion filed, the surety had not satisfied La.C[ode] Cr[im].P. art. 345(D). Thereafter, when the cost was tendered, the second condition of article 345(D), that defendant be incarcerated, was not met. We find that the trial court erred in releasing the surety from its bond obligations. We therefore reverse the trial court’s judgment and reinstate both bond forfeiture judgments against the surety.

Id. at 566.

In City of Lafayette v. Tyler, 153 So.3d at 1279, this court stated that:

We agree with the analysis of the compliance requirements of La.Code Crim.P. art. 345(D) as set forth in State v. International Fidelity Insurance Co., 32,837, 32,838, pp. 2-3 (La.App. 2 Cir. 3/1/00), 756 So.2d 565, 566 . . . .

....

The obvious purpose of compliance with La.Code Crim.P. art. 345(D) by the surety is to place the officer who was originally charged with the defendant’s detention in a position to take immediate action to assure the defendant’s return from the parish of his incarceration.

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, the defendant was subsequently

incarcerated for two days in another jurisdiction and released, and the surety did

not pay transportation costs contemplated by La.Code Crim.P. art. 345(D)(3). The

appellate court found that the surety was “not entitled to relief because La.C[ode]

5 Cr[im].P. [art.] 345 is not applicable to these facts. The statute applies to

circumstances in which a defendant who fails to make a court appearance cannot

be surrendered by the surety because the defendant has been subsequently

incarcerated and is still in jail.” Id. at 1095 (emphasis added). “[Louisiana Code

of Criminal Procedure article] 345 applies to a subsequent incarceration which bars

the surety from bringing the defendant back to the officer originally in charge of

the defendant.” Id. at 1095, n.4.

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

6 matter.1 A “fortuitous event” is statutorily defined as “one that, at the time the

contract was made, could not have been reasonably foreseen by the surety.”

La.R.S. 15:83(C)(2). See also State v. De La Rosa, 43,696, 43,697 (La.App. 2 Cir.

10/22/08), 997 So.2d 165. We do not find that the State’s failure to obtain an

extradition warrant for Ms. Tabb after she refused to waive extradition, and prior to

her release on bond, was unforeseeable, or otherwise a “fortuitous event”

contemplated by La.Code Crim.P. art. 345(I).

CONCLUSION

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.

1 Similarly, La.R.S. 15:83 states that criminal bail bonds are contractual in nature, and that “[t]he surety, when entering into a criminal bail bond obligation, must consider the risks of his undertaking and assume those risks reasonably forseeable.” La.R.S. 15:83(B). However, “[t]he surety is not liable for his failure to perform when it is caused by a fortuitous event that makes performance impossible. A surety is, however, liable for his failure to perform when he has assumed the risk of such a fortuitous event.” La.R.S. 15:83(C)(1).

7 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

VALERIE A. TABB

AKA VALERIE A. GILBERT

AKA VALERIE A. KORN

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.

1 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, 36,401 (La.App. 2 Cir. 9/18/02), 827 So.2d 1180, writ denied, 02-2587

(La.12/13/02), 831 So.2d 989. As the surety notes, the purpose of the State’s strict

compliance with these provisions is to notify the sureties of the defendant’s non

appearance and to give the surety an opportunity to apprehend and surrender the

defendant.

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

2 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.

3 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

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. 3 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. Romee, 05-748

(La.App. 3 Cir. 5/9/06), 930 So.2d 1092, cited by the majority. Subsection (I)

provides:

In addition to and notwithstanding any other provision of law, a surety may seek an extension of time to surrender a defendant, or have the judgment of bond forfeiture set aside by filing a motion in the criminal court of record and after contradictory hearing with the district attorney and with proof satisfactory to the court that a fortuitous event has occurred and that the event has made it impossible to perform as required under the contract. A motion seeking relief pursuant to this Paragraph must be filed within three hundred sixty-six days from the date of the fortuitous event, excluding legal delays. The court in its discretion may do any of the following:

(1) Set aside the forfeiture or grant the nullity.

(2) Grant an extension of up to three hundred sixty-six days from the expiration of the initial time period allowed for the

2 surrender of the defendant from the date of the mailing of proper notice of bond forfeiture. If the court grants that extension, judicial interest shall be suspended during that additional time period.

(3) Deny the relief.

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.