{
  "id": 4355980,
  "name": "STATE OF NORTH CAROLINA v. FRED ADAMS, Defendant and BANKERS INSURANCE COMPANY, Surety",
  "name_abbreviation": "State v. Adams",
  "decision_date": "2012-05-01",
  "docket_number": "No. COA11-988",
  "first_page": "406",
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  "provenance": {
    "date_added": "2019-08-29",
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    "judges": [
      "Judges BRYANT and STROUD concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. FRED ADAMS, Defendant and BANKERS INSURANCE COMPANY, Surety"
    ],
    "opinions": [
      {
        "text": "CALABRIA, Judge.\nBankers Insurance Company (\u201csurety\u201d) appeals the trial court\u2019s order denying its motion to set aside the forfeiture of a bond posted by surety on behalf of Fred Adams (\u201cdefendant\u201d). We affirm.\nI. Background\nOn 29 July 2009, defendant was charged with misdemeanor failure to file/pay income taxes. After his subsequent arrest, defendant posted a $5,000 appearance bond which was issued by Financial Casualty & Surety.\nOn 21 January 2010, defendant failed to appear in court as required and an order for arrest (\u201cOFA\u201d) was issued. However, the OFA was recalled that same day by the district court judge and the failure to appear was stricken. On 11 May 2010, defendant again failed to appear in court, a new OFA was issued, and his case was rescheduled for 30 June 2010. Defendant again failed to appear on that date.\nDefendant was subsequently re-arrested on the OFA. On 19 August 2010, the bail agent for surety issued defendant a $20,000 bond and defendant was released from custody. Defendant\u2019s release order included a finding by the magistrate that defendant had previously failed to appear two or more times in the instant case.\nOn 25 August 2010, defendant again failed to appear at his scheduled court appearance, and an OFA was issued. The bond issued by surety was forfeited. On 14 October 2010, surety filed a motion to set aside the forfeiture. The motion was opposed by the Wake County Board of Education.\nAfter a hearing, the trial court denied surety\u2019s motion. The court concluded that surety had notice, via the release order, of defendant\u2019s previous failures to appear and that, as a result, N.C. Gen. Stat. \u00a7 15A-544.5(f) required the court to deny surety\u2019s motion. Surety appeals.\nII. Standard of Review\nIn a hearing on a motion to set aside a bond forfeiture, \u201cthe standard of review for this Court is whether there was competent evidence to support the trial court\u2019s findings of fact and whether its conclusions of law were proper in light of such facts.\u201d State v. Dunn, 200 N.C. App. 606, 608, 685 S.E.2d 526, 528 (2009).\nIII. Bond Forfeiture\nSurety argues that the trial court erred by denying its motion to set aside defendant\u2019s bond forfeiture. We disagree.\nN.C. Gen. Stat. \u00a7 15A-544.5 governs the procedure under which a bond forfeiture may be set aside. This statute specifically forbids the trial court from setting aside a bond forfeiture under certain circumstances:\n(f) Set Aside Prohibited in Certain Circumstances. \u2014 No forfeiture of a bond may be set aside for any reason in any case in which the surety or the bail agent had actual notice before executing a bail bond that the defendant had already failed to appear on two or more prior occasions in the case for which the bond was executed. Actual notice as required by this subsection shall only occur if two or more failures to appear are indicated on the defendant\u2019s release order by a judicial official. The judicial official shall indicate on the release order when it is the defendant\u2019s second or subsequent failure to appear in the case for which the bond was executed.\nN.C. Gen. Stat. \u00a7 15A-544.5(f) (2011). In the instant case, the trial court relied upon this provision in concluding that surety was not entitled to relief from forfeiture. Surety contends that this conclusion was erroneous and that the trial court\u2019s order included several findings of fact which were not supported by competent evidence.\nA. Failure to Appear\nSurety first challenges the trial court\u2019s finding that defendant had previously failed to appear on 11 May 2010 and 30 June 2010. Surety argues that the trial court\u2019s finding that defendant failed to appear on 30 June 2010 is not supported by any evidence.\nThe trial court based its finding that defendant had failed to appear on 30 June 2010 upon a notation on the outside of defendant\u2019s district court file (\u201cshuck\u201d). The notation, \u201cCF 6-30-10,\u201d meant that defendant\u2019s name had been called out in district court and he failed to respond on that date. Surety contends that this notation was insufficient because the shuck did not also contain an OFA for defendant after he failed to appear on that date. Surety argues that an OFA is statutorily required when a defendant fails to appear and that without an OFA, the trial court could not find that defendant failed to appear.\nN.C. Gen. Stat. \u00a7 15A-305 governs OFAs. Under this statute, \u201c[a]n order for arrest may be issued when ... [a] defendant who has been arrested and released from custody pursuant to Article 26 of this Chapter, Bail, fails to appear as required.\u201d N.C. Gen. Stat. \u00a7 15A-305 (2011) (emphasis added). Thus, contrary to surety\u2019s argument, this statute does not require a court to issue an OFA when a defendant fails to appear. It merely permits the court to do so. See Felton v. Felton, 213 N.C. 194, 198, 195 S.E. 533, 536 (1938) (\u201cThe word \u2018may\u2019 as used in statutes in its ordinary sense is permissive and not mandatory.\u201d). Accordingly, surety\u2019s argument that an OFA was required to be issued after defendant failed to appear on 30 June 2010 is without merit.\nIn the instant case, it is undisputed that defendant failed to appear on 11 May 2010, and that as a result, the court issued an OFA. That OFA was still outstanding when defendant failed to appear on his next scheduled court date, 30 June 2010. Consequently, it was unnecessary for the trial court to issue a second OFA. Defendant\u2019s shuck clearly notes that he failed to appear in court as required on 30 June 2010. This notation fully supports the trial court\u2019s finding. This argument is overruled.\nB. Notice of Defendant\u2019s Failure to Appear\nSurety next contends that the trial court erred in finding that surety had actual knowledge that defendant had already failed to appear on two or more occasions before surety executed defendant\u2019s bond. Pursuant to N.C. Gen. Stat. \u00a7 15A-544.5(f), \u201c[a]ctual notice as required by this subsection shall only occur if two or more failures to appear are indicated on the defendant\u2019s release order by a judicial official.\u201d\nSurety does not dispute that defendant\u2019s release order contains an explicit finding that \u201cdefendant was arrested or surrendered after failing to appear in a prior release order .. . two or more times in this case.\u201d Rather, surety claims that it determined after an independent investigation that this finding was erroneous. Surety states that its agent performed a search of the court system\u2019s computerized database and determined that defendant had only forfeited a bond once previously, for defendant\u2019s failure to appear on 11 May 2010. There was no information in the database regarding defendant\u2019s failure to appear on 30 June 2010. Surety contends that since the database did not indicate a forfeiture for 30 June 2010 and there was no OFA for that date placed in defendant\u2019s shuck, its agent should have been free to disregard the finding on the release order.\nHowever, surety\u2019s reasoning is inconsistent with the plain language of N.C. Gen. Stat. \u00a7 15A-544.5(f). The statute only requires a finding on a release order \u201cwhen it is the defendant\u2019s second or subsequent failure to appear in the case for which the bond was executed.\u201d N.C. Gen. Stat. \u00a7 15A-544.5(f) (2011)(emphasis added). Thus, it is only a defendant\u2019s failure to appear in court that is relevant to the judicial official who is entering a release order. The statute contains no requirements regarding the number of bond forfeitures or OFAs, and we may not judicially impose such additional requirements. See State v. Davis, 364 N.C. 297, 302, 698 S.E.2d 65, 68 (2010)(\u201c[C]ourts must give [an unambiguous] statute its plain and definite meaning, and are without power to interpolate, or superimpose, provisions and limitations not contained therein.\u201d (internal quotations and citation omitted)). Accordingly, the fact that surety\u2019s investigation only revealed one prior bond forfeiture and one prior OFA is immaterial. As previously noted, defendant\u2019s shuck provided sufficient evidence that defendant had failed to appear on 11 May 2010 and 30 June 2010, and thus, the finding on defendant\u2019s release order was proper.\nSince defendant\u2019s release order included a finding, supported by the evidence from his shuck, which reflected that he had previously failed to appear on two or more occasions, the trial court properly found that surety had actual notice as defined by N.C. Gen. Stat. \u00a7 15A-544.5(f). This finding, in turn, supported the trial court\u2019s conclusion that surety was not entitled to relief from forfeiture. This argument is overruled.\nIV. Conclusion\nThe trial court\u2019s finding of fact that defendant had failed to appear on two prior occasions was supported by competent evidence, because defendant\u2019s shuck demonstrated that he had failed to appear on 11 May 2010 and 30 June 2010. Moreover, defendant\u2019s prior failures to appear were noted on his release order, and therefore supported the trial court\u2019s finding that surety had actual notice as defined by N.C. Gen. Stat. \u00a7 15A-544.5(f). Accordingly, the trial court properly concluded that N.C. Gen. Stat. \u00a7 15A-544.5(f) barred surety from having the forfeiture set aside. The trial court\u2019s order is affirmed.\nAffirmed.\nJudges BRYANT and STROUD concur.",
        "type": "majority",
        "author": "CALABRIA, Judge."
      }
    ],
    "attorneys": [
      "Tharrington Smith, LLP, by Rod Malone and Benita N. Jones, for appellee Wake County Board of Education.",
      "Bryant Saunders, PLLC, by Ta-Letta Saunders, for appellant Bankers Insurance Company."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. FRED ADAMS, Defendant and BANKERS INSURANCE COMPANY, Surety\nNo. COA11-988\n(Filed 1 May 2012)\nSureties \u2014 motion to set aside bond forfeiture \u2014 defendant failed to appear on two prior occasions \u2014 actual notice\u2014 denial of motion proper\nThe trial court properly concluded that N.C.G.S. \u00a7 15A-544.5(f) barred the surety from having defendant\u2019s bond forfeiture set aside. Defendant\u2019s shuck provided sufficient evidence that defendant had failed to appear in court on two previous occasions and the surety had actual notice of this fact where defendant\u2019s release order included an explicit finding that defendant had previously failed to appear on two occasions.\nAppeal by surety from order entered 21 April 2011 by Judge Keith O. Gregory in Wake County District Court. Heard in the Court of Appeals 14 December 2011.\nTharrington Smith, LLP, by Rod Malone and Benita N. Jones, for appellee Wake County Board of Education.\nBryant Saunders, PLLC, by Ta-Letta Saunders, for appellant Bankers Insurance Company."
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  "file_name": "0406-01",
  "first_page_order": 416,
  "last_page_order": 421
}