State v. Maye

• Court: Court of Appeals of North Carolina
• Decided: August 6, 2024
• Docket: 24-77
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-77

Filed 6 August 2024

Lenoir County, No. 18 CRS 51929

STATE OF NORTH CAROLINA

v.

LEON MAYE A.K.A. DANNY BROWN, Defendant,

KENYA L. RODGERS, Bail Agent,

and

1ST ATLANTIC SURETY COMPANY, Surety.

Appeal by Surety from order entered 28 September 2023 by Judge Imelda J.

Pate in Lenoir County Superior Court. Heard in the Court of Appeals 29 May 2024.

Practus, LLP, by M. Brad Hill, for Other-Appellant 1st Atlantic Surety Company.

Mintz Law Firm, PLLC, by Rudolph I. Mintz, III, for Other-Appellee Lenoir County Board of Education.

Tharrington Smith LLP, by Stephen G. Rawson, for Other-Appellee Lenoir County Board of Education.

CARPENTER, Judge.

1st Atlantic Surety Company (“ASC”) appeals from the trial court’s order

denying ASC’s motion to set aside its bond forfeiture. After careful review, we agree

with ASC: The trial court erred by denying ASC’s motion to set aside. We reverse

and remand. STATE V. MAYE

Opinion of the Court

I. Factual & Procedural Background

On 17 October 2018 in Lenoir County Superior Court, ASC posted a $35,000

bail bond for Leon Maye (“Defendant”). On 30 January 2023, Defendant failed to

appear for court, so the trial court entered a bond-forfeiture notice.

On 13 July 2023, ASC filed a motion to set aside the bond forfeiture. The

motion included several copies of orders for Defendant’s arrest. On 2 August 2023,

the Lenoir County School Board (the “Board”)1 filed an objection to ASC’s motion.

The objection included a notice of hearing, which incorrectly listed the hearing date

as 2 August 2023; the hearing date was actually 30 August 2023. In an affidavit

attached to its motion to dismiss this appeal, the Board asserts that it remedied its

mistake by mailing ASC a corrected notice of hearing.

On 30 August 2023, the trial court heard this matter, but ASC did not appear.

On 28 September 2023, the trial court entered an order (the “Order”) denying ASC’s

motion to set aside. In the Order, the trial court found that: the Board properly

mailed copies of the objection and notice of hearing; all parties were properly served;

and ASC did not appear at the hearing. The trial court concluded by denying ASC’s

motion to set aside. The Order does not state why the trial court denied the motion

to set aside, but a narrative from the hearing states that the trial court “reviewed the

court file, and in the absence of any representative of [ASC], denied the motion to set

1 A local board of education is authorized to act in place of the State concerning objections to

bond forfeitures. See N.C. Gen. Stat. § 15A-544.5(d)(3) (2023).

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aside and asked [the Board] to prepare a written order to that effect.”

On 27 October 2023, ASC filed notice of appeal. On 11 March 2024, the Board

filed a motion to dismiss this appeal. That same day, the Board also filed a motion

to amend the record.

In its motion to dismiss, the Board argues that ASC violated Rules 9 and 11 of

our Rules of Appellate Procedure. Concerning Rule 11, the Board asserts that ASC

never served it with a proposed record. Nonetheless, on 26 January 2024, ASC served

and filed a purportedly settled record. ASC, however, argues that it did serve a

proposed record on 11 December 2023, and thus, the record was necessarily settled

on 13 January 2024.

Concerning Rule 9, the Board complains that the purportedly settled record

lacks an amended notice of hearing that the Board mailed to ASC on 4 August 2023.

The Board also complains that the record lacks a transcript or a narrative from the

objection hearing.

In its motion to amend, the Board asks to amend the record to include: three

letters containing the amended notice of hearing; an appearance bond for Defendant;

documentation of a power of attorney concerning Defendant’s bond; and a narrative

from the objection hearing. In response, ASC says that it “does not object to [the

Board] seeking to amend the Record on Appeal.”

II. Jurisdiction

We have jurisdiction over this case under N.C. Gen. Stat. § 7A-27(b)(1) (2023).

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We may, however, sanction parties for failing to adhere to our Rules of Appellate

Procedure, N.C. R. App. P. 25(b), and we may do so by dismissing their appeal, N.C.

R. App. P. 34(b)(1). But “a party’s failure to comply with nonjurisdictional rule

requirements normally should not lead to dismissal of the appeal.” Dogwood Dev. &

Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 198, 657 S.E.2d 361, 365 (2008).

Rather, “only in the most egregious instances of nonjurisdictional default will

dismissal of the appeal be appropriate.” Id. at 200, 657 S.E.2d at 366.

Whether to dismiss an appeal because of non-jurisdictional violations is a case-

by-case inquiry. See N.C. ex rel. Expert Discovery, LLC v. AT&T Corp., 287 N.C. App.

75, 84, 882 S.E.2d 660, 668–69 (2022) (citing Dogwood, 362 N.C. at 199–200, 657

S.E.2d at 366). To determine whether a dismissal is warranted because of non-

jurisdictional violations, we consider: (1) whether the violations impair our review of

the case; (2) whether the violations “frustrate” the adversarial process; and (3) the

number of violations. Id. at 84, 882 S.E.2d at 669 (citing Dogwood, 362 N.C. at 200,

657 S.E.2d at 366–67).

Rule 9 requires the record to contain what is “necessary for an understanding

of all issues presented on appeal,” N.C. R. App. P. 9(a)(1)(e), which may include either

a transcript or narration of the relevant trial-court proceeding, N.C. R. App. P.

9(c)(1)–(2). Rule 9 is not jurisdictional. See In re Foreclosure of a Deed of Tr. Executed

by Moretz, 287 N.C. App. 117, 124, 882 S.E.2d 572, 577 (2022).

Under Rule 11, “[i]f the record on appeal is not settled by agreement under

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Rule 11(a), the appellant shall, within the same times provided, serve upon all other

parties a proposed record on appeal . . . .” N.C. R. App. P. 11(b). Rule 11 is also not

jurisdictional. See Day v. Day, 180 N.C. App. 685, 688, 637 S.E.2d 906, 908 (2006).

Here, the parties disagree concerning service of the proposed record and the

record’s necessary materials. But ASC “does not object to [the Board’s motion]

seeking to amend the Record on Appeal,” so we grant the Board’s motion to amend

the record. Because we grant the Board’s motion to amend the record, our review of

this case is not impaired, and ASC’s alleged rule violations do not frustrate the

adversarial process. See Expert Discovery, 287 N.C. App. at 84, 882 S.E.2d at 668–

69. Therefore, without resolving whether ASC indeed violated Rules 9 or 11, we deny

the Board’s motion to dismiss.

III. Issue

The issue on appeal is whether the trial court erred by denying ASC’s motion

to set aside its bond forfeiture.

IV. Analysis

A. Standard of Review

“On appeal from an order denying a motion to set aside a bond forfeiture, ‘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. Cash, 270 N.C. App. 433, 435, 841 S.E.2d 589, 590 (2020)

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

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“Competent evidence is evidence that a reasonable mind might accept as adequate to

support the finding.” State v. Ashworth, 248 N.C. App. 649, 651, 790 S.E.2d 173, 176,

(2016) (quoting State v. Chukwu, 230 N.C. App. 553, 561, 749 S.E.2d 910, 916 (2013)).

B. Preservation

In order to preserve an argument for appellate review, the moving party must

“clearly present[] the alleged error to the trial court.” N.C. Gen. Stat. § 8C-1, Rule

103(a)(1) (2023); see also N.C. R. App. P. 10(a)(1) (“In order to preserve an issue for

appellate review, a party must have presented to the trial court a timely request,

objection, or motion, stating the specific grounds for the ruling the party desired the

court to make if the specific grounds were not apparent from the context.”). Further,

the “specific grounds for objection raised before the trial court must be the theory

argued on appeal because ‘the law does not permit parties to swap horses between

courts in order to get a better mount in the [appellate court].’” State v. Harris, 253

N.C. App. 322, 327, 800 S.E.2d 676, 680 (2017) (quoting Weil v. Herring, 207 N.C. 6,

10, 175 S.E. 836, 838 (1934)).

C. Motion to Set Aside a Bond Forfeiture

Bail is a “security such as cash, a bond, or property,” which is “required by a

court for the release of a criminal defendant who must appear in court at a future

time.” Bail, BLACK’S LAW DICTIONARY (11th ed. 2019). Bail is typically a sum certain.

See State v. Corl, 58 N.C. App. 107, 111, 293 S.E.2d 264, 267 (1982).

A bail bond is a contract between a defendant, a bondsman, and the State. See

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id. at 111, 293 S.E.2d at 267. In this contract, the bondsman agrees to post bond,

which is a portion of the bail; the defendant agrees to pay the bondsman a fee and to

appear in court; and the State agrees to release the defendant until he is scheduled

to appear in court. See State v. Vikre, 86 N.C. App. 196, 199, 356 S.E.2d 802, 804–05

(1987).

If the defendant fails to appear in court, the trial court enters a forfeiture of

the bond. State v. Escobar, 187 N.C. App. 267, 270, 652 S.E.2d 694, 697 (2007). From

there, the trial court mails a forfeiture notice to the bondsman. Id. at 270, 652 S.E.2d

at 697. If the bondsman then fails to file a motion to set aside the forfeiture, the

forfeiture order becomes a final judgment. Id. at 270, 652 S.E.2d at 697. Proceeds

from bond forfeitures go to the local school board. See N.C. CONST. art. IX, § 7.

If, however, the bondsman files a motion to set aside the forfeiture, the local

school board may then file an objection to the motion to set aside. N.C. Gen. Stat. §

15A-544.5(d)(3) (2023). If the school board files an objection, the trial court must hold

a hearing. Id. § 15A-544.5(d)(5).

When the bondsman files a motion to set aside, the “forfeiture shall be set aside

for any” of the reasons enumerated in subsection 15A-544.5(b). Id. § 15A-544.5(b)

(emphasis added). So when a “motion to set aside cites to at least one statutory

reason, supported by evidence, the trial court must grant the motion.” State v. Isaacs,

261 N.C. App. 696, 702, 821 S.E.2d 300, 305 (2018) (citing N.C. Gen. Stat. § 15A-

544.5(b)). One enumerated reason for relief is if the “defendant has been served with

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an Order for Arrest for the Failure to Appear on the criminal charge in the case in

question as evidenced by a copy of an official court record . . . .” N.C. Gen. Stat. §

15A-544.5(b)(4).

D. Failure to Appear

A party’s failure to appear at a motion hearing does not give the trial court

absolute discretion to deny the absent party’s motion. This is because, as stated by

the North Carolina Supreme Court, there is no “statute, rule of court or decision

which mandates the presence of a party to a civil action or proceeding at the trial of,

or a hearing in connection with, the action or proceeding unless the party is

specifically ordered to appear.” Hamlin v. Hamlin, 302 N.C. 478, 482, 276 S.E.2d

381, 385 (1981).

E. Application

Here, ASC argues that the trial court erred by denying its motion to set aside

because ASC complied with subsection 15A-544.5(b)(4). See N.C. Gen. Stat. § 15A-

544.5(b)(4). On the other hand, the Board argues that the trial court correctly denied

ASC’s motion to set aside because ASC failed to appear at the motion hearing, and

alternatively, the Board argues that the trial court correctly denied ASC’s motion to

set aside because the motion was improperly signed. We agree with ASC.

First, nothing in the record—including the Board’s additional narrative of the

motion hearing—shows that the Board contested the validity of ASC’s motion

signature. Therefore, any arguments concerning ASC’s motion signature are

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unpreserved, see N.C. Gen. Stat. § 8C-1, Rule 103(a)(1), and we will not consider

them, see Harris, 253 N.C. App. at 327, 800 S.E.2d at 680.

Second, the Order does not specify why the trial court denied ASC’s motion.

We can reasonably infer, however, that the trial court denied ASC’s motion because

ASC failed to appear at the motion hearing. Although it was in ASC’s best interests

to appear at the hearing—nothing compelled ASC to do so. See Hamlin, 302 N.C. at

482, 276 S.E.2d at 385; N.C. Gen. Stat. § 15A-544.5. Moreover, ASC’s motion cited a

valid reason to set aside the forfeiture, see N.C. Gen. Stat. § 15A-544.5(b)(4), and ASC

attached copies of Defendant’s arrest orders to its motion. Therefore, without any

contradictory evidence from the Board, the trial court should have set aside the

forfeiture. See Isaacs, 261 N.C. App. at 702, 821 S.E.2d at 305.

V. Conclusion

We conclude that the trial court erred by denying ASC’s motion to set aside the

forfeiture, despite ASC’s absence from the motion hearing. Therefore, we reverse the

Order and remand.

REVERSED AND REMANDED.

Judges TYSON and MURPHY concur.

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