State v. Sampy

274 So. 3d 171
CourtLouisiana Court of Appeal
DecidedJune 5, 2019
Docket18-877
StatusPublished

This text of 274 So. 3d 171 (State v. Sampy) 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.

Bluebook
State v. Sampy, 274 So. 3d 171 (La. Ct. App. 2019).

Opinion

SAVOIE, Judge.

*172In this bond forfeiture case, American Surety Company (American) appeals the judgment of the trial court, finding American, as surety, liable for the full amount of the bond for criminal defendant Donovan Paul Sampy. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

On February 2, 2017, American, a commercial surety company, issued a criminal bail bond for the release of Sampy in the amount of THIRTY THOUSAND DOLLARS ($ 30,000.00). An arrest warrant was issued for Sampy after he failed to appear before the court on October 16, 2017. Notice of the warrant for arrest was mailed on October 17, 2017. On May 14, 2018, the State filed a Petition for Rule to Show Cause why a bond forfeiture judgment should not be rendered because one hundred and eighty days had passed since the mailing of the notice of warrant for arrest and Sampy had not made an appearance. Attached to the petition was a bond undertaking in the amount of THIRTY THOUSAND DOLLARS ($ 30,000.00) dated February 2, 2017, naming as principal Donovan Paul Sampy and naming as surety Accredited Surety and Casualty Co. Also attached to the petition was the notice of arrest and a power of attorney executed by Act Right Bonds on behalf of American and signed by Defendant Sampy.

On August 28, 2018, Sampy made an appearance and accepted service for his pre-trial setting on November 8, 2018. This appearance was made outside the one hundred and eighty (180) days he was mandated to appear from the mailing of the notice of the warrant for arrest. The petition for bond forfeiture was placed on the August 30, 2018 criminal docket and was taken up on August 31, 2018.

After a hearing, the trial court rendered judgment in favor of the State and against Sampy, as principal, and American, as surety, for the full amount of the bond. American now appeals.

ASSIGNMENTS OF ERROR

1. The trial court erred when it rendered a judgment against American, whose name does not appear on the bail undertaking.
2. The trial court erred when it rendered a judgment against Donovan Sampy, who was not notified of the hearing date for the State's Petition to Forfeit Bond.
3. The trial court erred when it rendered a judgment against Donovan *173Sampy, who was in the custody of the Lafayette Parish Sheriff at the time of the hearing on the State's Petition to Forfeit Bond and not brought to Court for the hearing.
4. The trial court erred when it rendered a judgment against American Surety Company, as surety for Donovan Sampy, when Donovan Sampy was not notified of the hearing and was not brought to court for the hearing.

LAW AND DISCUSSION

I. Standard of Review

"When an issue raised on appeal posits a question of law, the standard of review is de novo wherein the appellate court determines whether the lower court was legally correct." State v. Peraza , 17-136, p. 3 (La.App. 3 Cir. 10/4/17), 227 So.3d 860, 861-62 (citing Tran v. Williams , 10-1030 (La.App. 3 Cir. 2/9/11), 56 So.3d 1224.

II. Assignment of Error Number One

American first complains that, because a different name was listed on the bond undertaking, it cannot be liable for the amount of the bond. The proof needed at a bond forfeiture hearing is listed in La.Code Crim.P. art. 336, which states:

A. The court at a contradictory hearing shall forfeit the bail undertaking and sign a judgment of bond forfeiture upon proof of all of the following:
(1) The bail undertaking.
(2) The power of attorney, if any.
(3) Notice to the defendant and the surety as required by Article 334.
(4) Proof that more than one hundred eighty days have elapsed since the notice of warrant for arrest was sent.

"When a party posts an appearance bond for release of a defendant pending criminal proceedings, a suretyship agreement with the state is created. This agreement creates a civil contract based on an act under private signature, breach of which will lead to a money judgment against the surety." State, City of Bossier v. Miller , 40,492, pp. 6-7 (La.App. 2 Cir. 1/25/06), 920 So.2d 408, 412. Louisiana Code of Civil Procedure Article 3038 states that suretyship "must be express and in writing."

The suretyship agreement in this case, i.e. the bond undertaking, is express and in writing, and it clearly lists Accredited Surety and Casualty Co. as the surety for Sampy. However, the Power of Attorney attached to the petition is executed by Act Right Bonds on behalf of American. American argues that this court may not look outside the four corners of the contract because it has not been destroyed, lost or stolen. Louisiana Civil Code Article 1832 provides that "[w]hen the law requires a contract to be in written form, the contract may not be proved by testimony or by presumption, unless the written instrument has been destroyed, lost, or stolen." The bail undertaking in this case must be in writing. See La.Code Crim.P. art. 328 and La.Code Civ.P. art. 3038. As such, we need not look beyond the bond undertaking. We agree.

Louisiana Civil Code Article 2056 states: "In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text. A contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party." American contends that the bond undertaking is a standard form contract prepared by the State and should, therefore, be construed against the State.

*174The State argues that, in accordance with La.Code. Crim.P. art. 328, the bail undertaking is not defective. Louisiana Code of Criminal Procedure Article 328 provides:

A. The bail undertaking shall:
(1) Be in writing.
(2) State the court before which the defendant is bound to appear.
(3) Be entered into before an officer who is authorized to take it.
(4) State a single amount of bail for each charge.
B. The bail undertaking shall be enforceable if the above requirements are met; and no officer may refuse to accept the posting of a bail undertaking and releasing a defendant on bail if the conditions set by this Title are met.

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Related

State v. Peraza
227 So. 3d 860 (Louisiana Court of Appeal, 2017)
Tran v. Williams
56 So. 3d 1224 (Louisiana Court of Appeal, 2011)
State v. Miller
920 So. 2d 408 (Louisiana Court of Appeal, 2006)

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Bluebook (online)
274 So. 3d 171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sampy-lactapp-2019.