{ "id": 4245745, "name": "STATE OF NORTH CAROLINA v. ELDER G. CORTEZ, Defendant, and INTERNATIONAL FIDELITY INSURANCE COMPANY, Surety, and RICHARD L. LOWRY, Surety, and LARRY D. ATKINSON, Surety, and TONY L. BARNES, Surety; INTERNATIONAL FIDELITY INSURANCE COMPANY, Plaintiff v. ELDER GIOVANI CORTEZ; JOHNSTON COUNTY BOARD OF EDUCATION; STATE OF NORTH CAROLINA; and WILL R. CROCKER in his Official Capacity as the Clerk of Superior Court for Johnston County, Defendants;TONY L. BARNES; LARRY D. ATKINSON; RICHARD L. LOWRY; and LR&M LR&M BAILBONDS, INC., Plaintiffs v. ELDER GIOVANI CORTEZ; STATE OF NORTH CAROLINA; JOHNSTON COUNTY BOARD OF EDUCATION; WILL R. CROCKER in his Official Capacity as the Clerk of Superior Court for Johnston County; and STEVE BIZZELL in his Official Capacity as Sheriff of Johnston County, Defendants", "name_abbreviation": "State v. Cortez", "decision_date": "2013-08-20", "docket_number": "No. COA12 1399; No. COA12 1427", "first_page": "247", "last_page": "271", "citations": [ { "type": "official", "cite": "229 N.C. App. 247" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "617 S.E.2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633744, 12633741, 12633742, 12633743 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/617/0662-04", "/se2d/617/0662-01", "/se2d/617/0662-02", "/se2d/617/0662-03" ] }, { "cite": "641 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637929 ], "year": 2007, "pin_cites": [ { "page": "737" } ], "opinion_index": 0, "case_paths": [ "/se2d/641/0735-01" ] }, { "cite": "590 S.E.2d 448", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "455", "parenthetical": "alteration in original" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 183", "category": "reporters:state", "reporter": "N.C. 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Sess. Laws 1530", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "2009 N.C. Sess. Laws 847", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "weight": 3, "opinion_index": 0 }, { "cite": "2009 N.C. Sess. Laws 847,847", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "324 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "833" } ], "opinion_index": 0 }, { "cite": "312 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755941 ], "year": 1985, "pin_cites": [ { "page": "777" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0770-01" ] }, { "cite": "286 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "539" } ], "opinion_index": 0 }, { "cite": "305 N.C. 106", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566171 ], "year": 1982, "pin_cites": [ { "page": "112" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0106-01" ] }, { "cite": "2011 N.C. Sess. Laws 1530,1530", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "577 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "392" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 680", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9192134 ], "year": 2003, "pin_cites": [ { "page": "682" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0680-01" ] }, { "cite": "261 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "10", "parenthetical": "internal quotation marks omitted" }, { "page": "10", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "44 N.C. App. 361", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8554841 ], "year": 1969, "pin_cites": [ { "page": "540", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/4/0534-01" ] }, { "cite": "294 S.E.2d 369", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 555", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571905, 8571842, 8571878, 8571771, 8571807 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0555-05", "/nc/306/0555-03", "/nc/306/0555-04", "/nc/306/0555-01", "/nc/306/0555-02" ] }, { "cite": "291 S.E.2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "895" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 437", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524761 ], "pin_cites": [ { "page": "442" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0437-01" ] }, { "cite": "144 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1965, "pin_cites": [ { "page": "257", "parenthetical": "internal quotation marks omitted" }, { "parenthetical": "internal quotation marks omitted" }, { "page": "258" } ], "opinion_index": 0 }, { "cite": "265 N.C. 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575503 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "400", "parenthetical": "internal quotation marks omitted" }, { "page": "401" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0393-01" ] }, { "cite": "182 N.C. App. 229", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8170922 ], "year": 2007, "pin_cites": [ { "page": "232" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0229-01" ] }, { "cite": "293 S.E.2d 264", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "267" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 107", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523408 ], "year": 1982, "pin_cites": [ { "page": "111" } ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0107-01" ] }, { "cite": "444 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "253", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 377", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12129791 ], "year": 1994, "pin_cites": [ { "page": "379", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0377-01" ] }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 3, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 58-71-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "pin_cites": [ { "page": "(11)", "parenthetical": "defining \"[s]urety bondsman\" as a person licensed by the North Carolina Commissioner of Insurance who \"is appointed by an insurer by power of attorney to execute or countersign bail bonds for the insurer in connection with judicial proceedings\"" } ], "opinion_index": 0 }, { "cite": "182 L. Ed. 2d 165", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2012, "opinion_index": 0 }, { "cite": "731 S.E.2d 834", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "opinion_index": 0 }, { "cite": "365 N.C. 336", "category": "reporters:state", "reporter": "N.C.", "year": 2011, "opinion_index": 0 }, { "cite": "711 S.E.2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "211 N.C. App. 198", "category": "reporters:state", "reporter": "N.C. App.", "weight": 3, "opinion_index": 0 }, { "cite": "715 S.E.2d 881", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2011, "pin_cites": [ { "page": "882" }, { "page": "884" }, { "page": "884" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1429, "char_count": 63883, "ocr_confidence": 0.715, "pagerank": { "raw": 5.527646540942415e-08, "percentile": 0.3471146387299028 }, "sha256": "fb0426d1cb8e5a578c8804d748dd172665f5934caaee02c5866a1a428ec3d33c", "simhash": "1:8af9d17e562608f3", "word_count": 10417 }, "last_updated": "2023-07-14T15:07:10.338246+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and HUNTER, JR. concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ELDER G. CORTEZ, Defendant, and INTERNATIONAL FIDELITY INSURANCE COMPANY, Surety, and RICHARD L. LOWRY, Surety, and LARRY D. ATKINSON, Surety, and TONY L. BARNES, Surety INTERNATIONAL FIDELITY INSURANCE COMPANY, Plaintiff v. ELDER GIOVANI CORTEZ; JOHNSTON COUNTY BOARD OF EDUCATION; STATE OF NORTH CAROLINA; and WILL R. CROCKER in his Official Capacity as the Clerk of Superior Court for Johnston County, Defendants TONY L. BARNES; LARRY D. ATKINSON; RICHARD L. LOWRY; and LR&M LR&M BAILBONDS, INC., Plaintiffs v. ELDER GIOVANI CORTEZ; STATE OF NORTH CAROLINA; JOHNSTON COUNTY BOARD OF EDUCATION; WILL R. CROCKER in his Official Capacity as the Clerk of Superior Court for Johnston County; and STEVE BIZZELL in his Official Capacity as Sheriff of Johnston County, Defendants" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nBecause these cases involve common issues, they have been joined for the purposes of appeal pursuant to our authority under Rule 40 of the North Carolina Rules of Appellate Procedure. See N.C.R. App. P. 40 (\u201cTwo or more actions that involve common issues of law may be consolidated for hearing upon motion of a party to any of the actions made to the appellate court wherein all are docketed, or upon the initiative of that court.\u201d).\nAs a preliminary matter, we note that this Court has considered issues arising out of the proceedings for File No. 07 CRS 56935 in two prior appeals. See State v. Cortez (Cortez II), N.C. App. , 715 S.E.2d 881 (2011); State v. Cortez (Cortez I), 211 N.C. App. 198, 711 S.E.2d 876 (unpublished), supersedeas, disc. review, and cert. denied, 365 N.C. 336, 731 S.E.2d 834 (2011), cert. denied, __ U.S. _, 182 L. Ed. 2d 165 (2012). In order to fully address the issues properly before us, we recount the relevant procedural history for the proceedings that both preceded and followed Cortez I and Cortez II.\nTwenty-nine-year-old Elder Giovani Cortez (\u201cdefendant\u201d) was arrested and indicted for the offenses of first-degree kidnapping, first-degree rape of a child under the age of thirteen, and taking indecent liberties with a child, which offenses were alleged to have occurred on 23 August 2007. Defendant was authorized to be released upon the execution of a secured bond in the amount of $2,000,000.00, which was later reduced to $600,000.00. On 16 September 2008, four months after defendant\u2019s secured bond was reduced, defendant was released on bail subject to the conditions of appearance bonds executed by Tony L. Barnes, Larry D. Atkinson, and Richard L. Lowry in the amounts of $20,000.00, $10,000.00, and $570,000.00, respectively.\nMr. Barnes executed the $20,000.00 bond as an \u201caccommodation bondsman,\u201d and Mr. Atkinson executed the $10,000.00 bond as a \u201cprofessional bondsman,\u201d which rendered each a surety on their respective bonds. See N.C. Gen. Stat. \u00a7 15A-531(8)(b)-(c) (2011) (defining \u201c[s]urety\u201d as \u201c[t]he professional [or accommodation] bondsman, when a bailbondis executed by a professional [or accommodation] bondsman\u201d). Because Mr. Lowry executed the $570,000.00 bond as a \u201cbail agent,\u201d the surety for that bond was the insurance company on behalf of which Mr. Lowry executed the bond. See N.C. Gen. Stat. \u00a7 15A-531(8)(a) (defining \u201c[s]urety\u201d as \u201c[t]he insurance company, when a bail bond is executed by a bail agent on behalf of an insurance company\u201d); see also N.C. Gen. Stat. \u00a7 15A-531(3) (defining \u201c[b]ail agent\u201d as a person licensed \u201cas a surety bondsman under Article 71 of Chapter 58 of the General Statutes, [and] is appointed by an insurance company by power of attorney to execute or countersign bail bonds for the insurance company in connection with judicial proceedings\u201d); N.C. Gen. Stat. \u00a7 58-71-1(11) (2011) (defining \u201c[s]urety bondsman\u201d as a person licensed by the North Carolina Commissioner of Insurance who \u201cis appointed by an insurer by power of attorney to execute or countersign bail bonds for the insurer in connection with judicial proceedings\u201d). The record shows that, at the time the bond was executed, Mr. Lowry was authorized to execute bail bonds both for International Fidelity Insurance Company (\u201cInternational\u201d) and for Accredited Insurance Company (\u201cAccredited\u201d). The insurance company named on the face of the appearance bond executed by Mr. Lowry was Accredited, while International was the insurance company named on the attached power of attorney that evidenced Mr. Lowry\u2019s authority to execute criminal bail bonds of up to $1 million. According to an affidavit from International\u2019s Senior Vice President Jerry W. Watson, International \u201cis not an affiliate, subsidiary, or parent of Accredited,\u201d and Accredited \u201cis, in fact, a competitor of [International].\u201d Only International received and accepted the $3,990.00 premium paid for the execution of the $570,000.00 bond.\nIn order to secure the $570,000.00 appearance bond executed by Mr. Lowry, defendant and his wife Raquel H. Cortez executed a promissory note in the amount of $600,000.00, made payable to \u201cL R & M Corp, Richard Lowry,\u201d upon the condition that, \u201cif [defendant] fails to appear for any scheduled or unscheduled court date in ... 07 CRS 56935 in the County of Johnston, State of North Carolina and a forfeiture issued[,] this note shall be due on demand.\u201d Two deeds of trust, each representing a total indebtedness of $300,000.00 and naming \u201cL R & M Corp\u201d and Mr. Lowry as beneficiaries, were provided as collateral to secure the $600,000.00 promissory note.\nOn 18 February 2009, defendant failed to appear in court, and the Johnston County Clerk of Superior Court\u2019s Office (\u201cClerk\u2019s Office\u201d) issued bond forfeiture notices to Mr. Barnes, Mr. Atkinson, and International, as the sureties of record, and to Mr. Lowry, as the bail agent for named surety International. Each notice, which was sent using the Administrative Office of the Courts\u2019 Form AOC-CR-213, indicated that the forfeiture of the bond for each surety named on the notice would become a final judgment on 23 July 2009, unless that forfeiture was set aside upon a party\u2019s motion prior to that date, or unless such motion was still pending on that date. The notices further provided that a forfeiture \u201cwill not be set aside for any . . . reason\u201d other than those enumerated on the form.\nOn 22 July 2009, one day before the forfeitures were set to become final judgments, Mr. Atkinson and Mr. Barnes as sureties, and Mr. Lowry as the bail agent for named surety International, each indicated their intent to move to set aside the forfeitures by signing and dating the \u201cMotion To Set Aside Forfeiture\u201d section on the second page of the bond forfeiture notice forms they had received from the Clerk\u2019s Office almost five months earlier. Although Form AOC-CR-213 allows the movant to mark the checkbox next to the enumerated reason that supports their request to set aside a forfeiture, Mr. Atkinson, Mr. Barnes, and Mr. Lowry (collectively \u201cthe Bondsmen\u201d) did not indicate by checkmark which of the reasons supported their motions to set aside, and instead wrote \u201cSee attached Petition\u201d at the top of their respective notice forms. Then, the Bondsmen and International filed a \u201cMotion for Remission of Forfeiture\u201d (\u201cthe Remission/Set Aside Motion\u201d) with the Clerk\u2019s Office, in which they collectively sought to \u201cset[] forth the contended ground for relief from the order of forfeiture.\u201d\nIn this Remission/Set Aside Motion, the movants alleged that they each \u201csigned as surety for the appearance of the defendant\u201d in this matter. They further alleged that, although defendant had been located in Mexico and a federal arrest warrant had been issued for service by the FBI and by the Mexican Federal Police, defendant had not yet been served with any arrest warrant but would be \u201cshortly.\u201d In support of their allegations, the movants then attached to the motion approximately 160 pages of e mails chronicling Mr. Lowry\u2019s efforts to locate defendant between February 2009 and July 2009. In addition to attaching a copy of the motion to the Form AOC-CR-213 they each filed with the Clerk\u2019s Office, copies of the Remission/Set Aside Motion were also served on the Johnston County District Attorney\u2019s Office (\u201cthe DA\u2019s Office\u201d) and on the attorney for the Johnston County School Board (\u201cthe Board\u201d).\nNeither the DA\u2019s Office nor the Board filed objections to the 22 July 2009 motions seeking to set aside the forfeitures. Consequently, on 3 August 2009, the Johnston County Clerk of Superior Court (\u201cthe Clerk\u201d) granted the movants\u2019 requests to set aside the forfeitures. On 7 August 2009, Mr. Lowry then executed a satisfaction of the deeds of trust that had been provided by defendant and his wife as collateral to secure the promissory note that secured the appearance bonds. On 25 August 2009, the Board filed a motion against defendant and the Bondsmen pursuant to N.C.G.S. \u00a7 1A-1, Rule 60 (\u201cthe Rule 60 Motion\u201d), in which the Board requested that the court strike the 3 August 2009 order that set aside the forfeitures. Although International was not named in the motion\u2019s caption, International was served with a copy of the Board\u2019s Rule 60 Motion, which specifically alleged that International posted a bond in the amount of $570,000.00 for the release of defendant.\nIn its Rule 60 Motion, the Board challenged whether the form of the movants\u2019 requests to set aside the forfeitures sufficiently complied with the procedures set forth in N.C.G.S. \u00a7 15A-544.5. Specifically, the Board asserted that the 3 August 2009 order setting aside the forfeitures should be stricken because: the movants did not indicate by checkmark on the second side of Form AOC-CR-213 which of the enumerated reasons supported their motions to set aside, and such a failure, the Board argued, was in dereliction of the requirements set forth in N.C.G.S. \u00a7 15A-544.5(b); the movants\u2019 Remission/Set Aside Motion was filed in contravention to the direction of a 12 January 2009 Administrative Order by the chief district and senior resident superior court judges for Judicial District 11 B that all motions to set aside a forfeiture made pursuant to N.C.G.S. \u00a7 15A-544.5 must be filed on Form AOC-CR-213; the documents accompanying the movants\u2019 Remission/Set Aside Motion were not sufficient evidence to support any of the grounds for which a forfeiture \u201cshall be set aside\u201d pursuant to N.C.G.S. \u00a7 15A-544.5(b); and the movants\u2019 Remission/Set Aside Motion was \u201cnot captioned as a Motion to Set Aside Forfeiture,\u201d but rather as a \u201cMotion for Remission of Forfeiture,\u201d which the Board alleged caused it to believe that no objection was required to contest said motion pursuant to N.C.G.S. \u00a7 15A-544.5(d). In response to this motion, the Bondsmen urged the court to conclude that the Board\u2019s failure to object to the Remission/Set Aside Motion pursuant to N.C.G.S. \u00a7 15A-544.5(d) caused the forfeitures to be set aside \u201cby operation of law.\u201d\nOn 12 October 2009, the trial court entered an order denying the Board\u2019s motion \u201cto vacate or strike\u201d the 3 August 2009 order that set aside the forfeitures. The trial court concluded that, \u201c[n]otwithstanding the misleading caption on sureties\u2019 motion, the tenuous claim of the sureties under [N.C.G.S. \u00a7] 15A-544.5(b)(4)\u201d \u2014 which provides that a forfeiture \u201cshall be set aside\u201d when \u201c[t]he defendant has been served with an Order for Arrest for the Failure to Appear on the criminal charge in the case in question as evidence \u00bfy a copy of an official court record,\u201d N.C. Gen. Stat. \u00a7 15A-544.5(b)(4) (2011) \u2014 -\u201cand the sureties\u2019 loose compliance with this court\u2019s administrative order governing bond forfeitures,\u201d the Board and the DA\u2019s Office \u201chad actual notice of the nature of the relief sought by the sureties,\u201d failed to object within the then-ten-day period for doing so, and the Board \u201cmade no showing\u201d that it was entitled to relief under Rule 60(b)(1), (b)(4), or (b)(6). The Board appealed to this Court from the trial court\u2019s 12 October 2009 denial of its Rule 60 Motion; the Board did not appeal from the 3 August 2009 order setting aside the bond forfeitures.\nOn 19 April 2011, this Court reversed and remanded the trial court\u2019s denial of the Board\u2019s Rule 60 Motion seeking to strike the 3 August 2009 order. See Cortez I, 211 N.C. App. 198, 711 S.E.2d 876, slip op. at 14. In Cortez I, this Court determined that the Clerk was \u201cwithout authority to grant the motion\u201d because the movants\u2019 \u201cclaimed\u201d reasons for relief from forfeiture \u201c[did] not come within the purview of the statute [and] the requisite documentation [wa]s entirely absent.\u201d See id. at 14. Consequently, this Court concluded that the 3 August 2009 order, which set aside the forfeitures, \u201cwas void,\u201d and remanded the matter \u201cwith instructions for the trial court to either dismiss Sureties\u2019 [Remission/Set Aside Motion] or deny the same for the reasons set forth herein.\u201d Id. at 4,14.\nHowever, before this Court filed its decision in Cortez I, defendant\u2019s case was placed on another court calendar and, again, defendant failed to appear. Then, on 17 November 2009, two weeks after defendant failed to appear for the second time, and one week after the Board gave its notice of appeal to this Court from the denial of its Rule 60 Motion that was at issue in Cortez 7, the Clerk\u2019s Office issued another round of bond forfeiture notices to Mr. Barnes, Mr. Atkinson, and International, as sureties, and to Mr. Lowry as bail agent for named surety International. However, \u201cthe [s]ureties had not re bonded [defendant following his initial 18 February 2009 failure to appear\u201d; instead, this second round of forfeiture notices were issued only \u201cfor the original bonds executed by the [s]ureties.\u201d See Cortez 77,_N.C. App. at_, 715 S.E.2d at 882. Thus, in response to these second forfeiture notices, in April 2010, the Bondsmen filed their \u201cMotion to Dismiss and Motion to Set Aside Forfeiture,\u201d in which they asserted that the 17 November 2009 notices of forfeiture \u201cshould be stricken, vacated and set aside, and dismissed,\u201d because the trial court was divested of its jurisdiction to issue notices of forfeiture once the Board gave notice of appeal from the trial court\u2019s denial of the Board\u2019s Rule 60 Motion. After hearing the matter, on 17 May 2010, the trial court entered an order denying the Bondsmen\u2019s April 2010 motions. The Bondsmen appealed to this Court from this order.\nOn 20 September 2011, in Cortez II, this Court concluded, \u201c[w]ere we to hold that the Clerk and the ... court had jurisdiction to enter and affirm the second orders of forfeiture, the [sjureties would currently be liable for two separate failures to appear and, therefore, liable for two times the actual amount of the bonds executed in [defendant's case.\u201d Cortez II,_N.C. App. at_, 715 S.E.2d at 884. Thus, after determining that \u201cthe 10 November 2009 appeal divested the Clerk and the trial court of jurisdiction to take further action relating to the 16 September 2008 bonds so long as issues surrounding those bonds remained subject to appellate review,\u201d this Court vacated the trial court\u2019s second orders of forfeiture. Id. at_, 715 S.E.2d at 884.\nThe Board then filed a motion in the trial court requesting that the court comply with this Court\u2019s decision in Cortez I \u2014 which held that the 3 August 2009 order setting aside the forfeitures was void \u2014 by either dismissing or denying the movants\u2019 22 July 2009 Remission/Set Aside Motion. After hearing the matter, on 5 January 2012, the trial court entered an order (\u201cthe 5 January 2012 Order\u201d) in which it did the following: vacated its own 12 October 2009 order that denied the Board\u2019s Rule 60 Motion to strike the 3 August 2009 order setting aside the forfeitures; dismissed the movants\u2019 22 July 2009 Remission/Set Aside Motion \u201cfor the reasons set forth in the [Cortez I\\ decision\u201d; and ordered that the forfeitures \u201cshall become\u201d final judgments. The Clerk\u2019s Office then entered an electronic bond forfeiture judgment pursuant to the trial court\u2019s order, and issued a writ of execution to the Sheriff of Johnston County (\u201cthe Sheriff\u2019) giving notice that International must pay $570,000.00 plus interest and fees.\nOn 4 January 2012, one day before the trial court entered its order declaring that the forfeitures were final judgments, the Bondsmen and International together filed a complaint (\u201cthe Bondsmen Complaint\u201d) designated as File No. 12 CVS 30 against defendant, the State of North Carolina (\u201cthe State\u201d), the Board, the Clerk, and the Sheriff. In the Bondsmen Complaint, plaintiffs requested that the trial court \u201cshould declare that [the Clerk] did in fact terminate the Plaintiffs\u2019 contractual obligation [on the bonds]\u201d when it entered its 3 August 2009 order setting aside the forfeitures, and that, as a consequence, plaintiffs \u201cmay not be held liable on the [b]onds,\u201d or, in the alternative, that, \u201ceven if [the Clerk\u2019s 3 August 2009] Orders did not terminate the contractual obligation, the State and the Board are estopped from seeking to impose any kind of contractual liability upon the Plaintiffs relating to the [b]onds\u201d \u201cto the extent that the [b]onds were formerly secured by the [d]eeds of [t]rust (which [d]eeds of [t]rust were required to be cancelled).\u201d The Bondsmen also sought injunctive relief pursuant to 42 U.S.C. \u00a7 1983.\nThe day after the trial court entered its 5 January 2012 Order declaring that the forfeitures were final judgments, International returned the premium it received for defendant\u2019s bond. Then, one week later, International voluntarily dismissed its claims in the Bondsmen Complaint without prejudice pursuant to N.C.G.S. \u00a7 1A-I, Rule41(a), and filed a separate complaint (\u201cthe International Complaint\u201d) designated as File No. 12 CVS 201 against the same defendants. In the International Complaint, International requested that' the trial court declare that \u201cno forfeiture or judgment can be held against International in the matter of the bonds executed to secure the appearance of [defendant],\u201d because Accredited had been the insurance company named on the face of the appearance bond, and because Mr. Lowry \u201chad no authority to attach International\u2019s Power of Attorney to an [Accredited] bond.\u201d International further requested that the court declare that it was not a party to the 5 January 2012 Order, because neither the Board\u2019s Rule 60 Motion nor the 5 January 2012 Order named International as a party in the caption.\nThe Board then filed motions to dismiss the Bondsmen and International Complaints pursuant to Rule 12(b)(1) and (b)(6), and on the grounds that the complaints are impermissible collateral attacks on the trial court\u2019s 5 January 2012 Order and are further barred by the doctrines of res judicata, collateral estoppel, and equitable estoppel. The State, with the Clerk, filed motions to dismiss both complaints on similar grounds. The trial court conducted hearings on the motions to dismiss in both actions. On 11 April 2012, the trial court entered an order in File No. 12 CVS 30 allowing the Board\u2019s motion to dismiss the claims alleged in the Bondsmen Complaint \u201cas they relate to a declaratory judgment and to the substantive law of contracts involving the original contract [or appearance bond] between the plaintiffs and [the State],\u201d on the grounds that such claims constituted a collateral attack on the 5 January 2012 Order that made the forfeitures final judgments \u2014 from which the parties had not appealed \u2014 and on the grounds that such claims were barred by the doctrines of res judicata and collateral estoppel. However, the motion to dismiss the claim in the Bondsmen Complaint that sought injunctive relief for alleged violations of 42 U.S.C. \u00a7 1983 by the State was denied without prejudice. On the same day, the trial court also entered an order in File No. 12 CVS 201, in which it dismissed the claims that had been alleged in the International Complaint against the Board, the State, and the Clerk, on the grounds that such claims constituted a collateral attack on the 5 January 2012 Order that made the forfeitures final judgments, and on the grounds that such claims were barred by the doctrines of res judicata and collateral estoppel. International appealed to this Court from the trial court\u2019s order allowing the motions to dismiss the International Complaint, and the Bondsmen and L R & M Bailbonds, Inc. appealed from the order allowing the Board\u2019s motion to dismiss the first cause of action in the Bondmen Complaint. The trial court certified the appealability of its order regarding the Bondsmen Complaint pursuant to N.C.G.S. \u00a7 1A-1, Rule 54(b).\nThen, on 17 July 2012, the Board moved for monetary sanctions pursuant to N.C.G.S. \u00a7 15A-544.5(d)(8) against defendant, International, and the Bondsmen in File No. 07 CRS 56935 \u2014 the underlying criminal case for which the original appearance bonds had been made \u2014 on the grounds that the 22 July 2009 Remission/Set Aside Motion was \u201cplainly frivolous and filed for the sole purpose of preventing the forfeitures from going into judgment.\u201d The Board requested that the court impose monetary sanctions in the amount of fifty percent of each bond against Mr. Barnes and Mr. Atkinson individually, and against Mr. Lowry and International together. On 24 August 2012, the court ordered that, because Mr. Atkinson and Mr. Barnes \u201cpromptly\u201d paid their respective bonds after the 5 January 2012 Order, and because Mr. Lowry \u201cis not a surety\u201d for the $570,000.00 bond, only International \u201cshall pay a sanction in the amount of $285,000 pursuant to [N.C.G.S.] \u00a7 15A-544.5(d)(8).\u201d International gave timely notice of appeal from this order. The court then stayed the \u201cexecution on the civil judgment\u201d for monetary sanctions pursuant to the pending appeal; the stay was secured by a bond.\nA party \u201cis permitted to appeal from an interlocutory order when the trial court enters a final judgment as to one or more but fewer than all of the claims or parties and the trial court certifies in the judgment that there is no just reason to delay the appeal. \u201d Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994) (internal quotation marks omitted); see N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b) (2011) (\u201cWhen more than one claim for relief is presented in an action, ... or when multiple parties are involved, the court may enter a final judgment as to one or more but fewer than all of the claims or parties only if there is no just reason for delay and it is so determined in the judgment.\u201d). Here, on 11 April 2012, the trial court dismissed all claims against the Board arising out of the Bondsmen Complaint, but denied without prejudice the motion to dismiss the Bondsmen\u2019s prayers for injunctive relief for alleged violations of 42 U.S.C. \u00a7 1983 by the State. Accordingly, we limit our review of the 11 April 2012 order regarding File No. 12 CVS 30 to the issues certified for appeal as finally determined by the court pursuant to N.C.G.S. \u00a7 1A-1, Rule 54(b), which are those issues that \u201crelate[] to declaratory judgment and the substantive law of contracts on the original contract between [the State] and [the Bondsmen].\u201d\nThe parties bring forward the following issues on appeal: (I) whether the trial court erred by determining that International was the surety on the $570,000.00 bond executed by Mr. Lowry; (II) whether the trial court erred when it determined that International\u2019s \u201cexclusive remedy for relief from a final judgment of forfeiture\u201d is to appeal from that judgment pursuant to N.C.G.S. \u00a7 15A-544.8; (III) whether the trial court erred when it concluded that the International Complaint was a collateral attack on the court\u2019s 5 January 2012 Order; (TV) whether the trial court erred when it concluded that the International and Bondsmen Complaints were barred by the doctrines of res judicata and collateral estoppel; (V) whether the trial court erred when it concluded that the Board\u2019s motion for sanctions was timely; (VI) whether the trial court considered the relevant statutory factors before it imposed monetary sanctions against International; and (VII) whether the amount of the monetary sanctions imposed on International was unconstitutionally excessive, and whether the sanctions imposed violated the Ex Post Facto Clauses of the United States and North Carolina Constitutions.\nI.\nInternational first contends the trial court erred by determining that it was the surety on the $570,000.00 bond executed by Mr. Lowry, because International\u2019s name does not appear on the first page of the appearance bond form.\n\u201cAn appearance bond is a contract of the defendant and the surety with the State.\u201d State v. Corl, 58 N.C. App. 107, 111, 293 S.E.2d 264, 267 (1982). The form provided to bondsmen, insurance companies, and bail agents to evidence this contract is the Administrative Office of the Courts\u2019 Form AOC-CR-201, entitled \u201cAppearance Bond for Pretrial Release.\u201d According to the General Statutes, \u201c[t]he name of any insurance company executing the bond as surety, and the name, license number, and power of appointment number of the bail agent executing the bail bond on behalf of the insurance company\u201d \u201cshall be entered on each bail bond executed under Part 1 of [Article 26],\u201d N.C. Gen. Stat. \u00a7 15A-544.2(a)(4) (20H), including on \u201can appearance bond in a specified amount secured by ... at least one solvent surety.\u201d N.C. Gen. Stat. \u00a7 15A-534(a)(4) (2011). Accordingly, Side One of Form AOC-CR-201 includes empty boxes under the heading \u201cInsurance Company,\u201d in which a bail agent can indicate his or her own name and license number, as well as the name of the insurance company and the bail agent\u2019s power of appointment number for the named company. Additionally, bail agents and others who execute the form as a \u201cSurety Appearance Bond\u201d are directed to complete the affidavit on the reverse side of the form, which specifically directs the affiant to \u201cAffix Stamp or Power of Attorney Here.\u201d In other words, according to the directions on the \u201cAppearance Bond for Pretrial Release\u201d form, in order to execute an appearance bond on behalf of an insurance company, in addition to completing Form AOC-CR-201 itself, a bail agent must also attach or affix the power of attorney that evidences his or her authority to execute a bond for the named surety.\nIn the pres\u00e9nt case, the insurance company named on the face of the appearance bond executed by Mr. Lowry for $570,000.00 was Accredited, while the insurance company named on the attached power of attorney evidencing Mr. Lowry\u2019s authority to execute the bond was International. We can only surmise that this inconsistency may have been borne out of Mr. Lowry\u2019s inattentive selection of two pre populated documents, since the names of the insurance companies on the appearance bond form and on the power of attorney documentation are both typewritten, while the bond-specific information for defendant\u2019s case \u2014 e.g., defendant\u2019s name, the description of the charged offenses, the file numbers for the charged offenses, the amount of the bond, the date of execution of the bond, and the name of the county and the division of the court in which defendant\u2019s case is calendared \u2014 is handwritten on these same forms. Nevertheless, regardless of the cause of this inconsistency, International argues that \u201cbasic contract and agency law in North Carolina compels a conclusion that International cannot be required to pay a bond it did not sign,\u201d and that \u201cInternational was never a party to the contractual obligations of the [b]ond.\u201d We disagree.\n\u201cNo contract is formed without an agreement to which at least two parties manifest an intent to be bound.\u201d Parker v. Glosson, 182 N.C. App. 229, 232, 641 S.E.2d 735, 737 (2007). \u201cIf certain acts have been performed or contracts made on behalf of another without his authority, he has, when he obtains knowledge thereof, an election either to accept or repudiate such acts or contracts.\u201d Carolina Equip. & Parts Co. v. Anders, 265 N.C. 393, 400, 144 S.E.2d 252, 257 (1965) (internal quotation marks omitted). \u201cIf he accepts them, his acceptance is a ratification of the previously unauthorized acts or contracts, and makes them as binding upon him from the time they were performed as if they had been authorized in the first place.\u201d Id. (internal quotation marks omitted). Thus, \u201cintent may be inferred from failure to repudiate an unauthorized act . . . or from conduct on the part of the principal which is inconsistent with any other position than intent to adopt the act.\u201d Am. Travel Corp. v. Cent. Carolina Bank & Tr. Co., 57 N.C. App. 437, 442, 291 S.E.2d 892, 895 (omission in original) (internal quotation marks omitted), disc. review denied, 306 N.C. 555, 294 S.E.2d 369 (1982).\nHere, International does not dispute that Mr. Lowry intended to enter into a contract with the State by executing an appearance bond for defendant. International also does not dispute that Mr. Lowry had actual authority to execute appearance bonds on its behalf, and does not dispute that it was within Mr. Lowry\u2019s authority to execute a bond on International\u2019s behalf in the amount of the bond at issue. Additionally, the record before us shows that International both received and accepted a $3,990.00 premium in exchange for executing the $570,000.00 bond for defendant, which International only sought to return or refund about three years later, after the trial court entered its 5 January 2012 Order making the $570,000.00 bond forfeiture a final judgment. Moreover, after receiving notice from the Clerk\u2019s Office pursuant to N.C.G.S. \u00a7 15A-544.4 that the $570,000.00 bond would be subject to forfeiture, on 22 July 2009, International, with the Bondsmen, filed the Remission/Set Aside Motion, in which International admitted to the court that it \u201csigned as surety for the appearance of the defendant in the Superior Court of Johnston County, as appears of record.\u201d (Emphasis added.) Furthermore, the record shows that: International was served with copies of the Board\u2019s Rule 60 Motion, which sought to strike the 3 August 2009 order setting aside the forfeitures, as well as with copies of the Board\u2019s notice of appeal from the trial court\u2019s 12 October 2009 order denying the Board\u2019s Rule 60 Motion, the proposed record on appeal for Cortez I, and the second bond forfeiture notices sent in November 2009 that were the subject of the appeal brought before this Court in Cortez II; International was also represented by the same attorney as the Bondsmen with respect to this matter from at least July 2009 through 4 January 2012, when the Bondsmen Complaint \u2014 in which International was also originally a named party \u2014 was filed; and International first disclaimed its status as a surety on the $570,000.00 bond, sought to refund or return the premium on the bond, retained separate legal counsel from the Bondsmen in this matter, voluntarily dismissed its claims in the Bondsmen Complaint, and filed its own separate declaratory judgment complaint only after the court entered its 5 January 2012 Order, in which the court ordered that the bond forfeitures were final. We agree that it would have been a better practice for the Clerk\u2019s Office to only have processed the appearance bond and the accompanying power of attorney if the power of attorney attached to the bond evidenced Mr. Lowry\u2019s authority to execute the bond for the company indicated on the face of the bond form. However, based on the record before us, we conclude that International\u2019s subsequent actions, admissions, and seemingly uninterrupted participation in this litigation are inconsistent with its present position disclaiming its intent to be bound by the contract entered into by its agent, Mr. Lowry, when he executed the $570,000.00 bond for defendant. See, e.g., Carolina Equip. & Parts Co., 265 N.C. at 401, 144 S.E.2d at 258 (\u201cIt is what a party does, and not what he may actually intend, that fixes or ascertains his rights under the law. He cannot do one thing and intend another and very different and inconsistent thing. The law will presume that he intended the legal consequences of what he does, or, in other words, that his intention accords in all respects with the nature of his act.\u201d (internal quotation marks omitted)). Accordingly, despite the inconsistencies in the named insurance companies on the face of the appearance bond and on the accompanying power of attorney, as a result of International\u2019s later conduct which demonstrated its intent to be bound to the contract entered into by its agent, Mr. Lowry, we hold that International is the surety on the $570,000.00 bond executed by Mr. Lowry for defendant and, as such, is liable for the same.\nInternational also asserts, in the alternative and without supporting legal authority, that \u201ceven if International were a party to the [b]ond,\u201d the bond \u201cceased to be a binding contract as to International\u201d when the trial court entered its 3 August 2009 order that set aside the forfeitures. However, in Cortez I, this Court concluded that the 3 August 2009 order \u201cwas void\u201d because the Clerk \u201clacked the authority to grant Sureties\u2019 [Remission/Set Aside Motion].\u201d See Cortez I, 211 N.C. App. 198, 711 S.E.2d 876, slip op. at 4, 13. Because International fails to direct us to any authority upon which we could conclude that the court\u2019s order that was deemed void in its entirely and vacated can still be said to be \u201cfinal as to International,\u201d we decline to address this assertion further.\nII.\nInternational next contends the trial court erred by concluding in the 11 April 2012 order dismissing the International Complaint that International\u2019s \u201cexclusive remedy for relief from a final judgment of forfeiture\u201d is to appeal from that judgment pursuant to N.C.G.S. \u00a7 15A-544.8. We disagree.\n\u201cIf a defendant who was released ... upon execution of a bail bond fails on any occasion to appear before the court as required, the court shall enter a forfeiture for the amount of that bail bond in favor of the State against the defendant and against each surety on the bail bond.\u201d N.C. Gen. Stat. \u00a7 15A-544.3(a) (2011). Unless a forfeiture is set aside in accordance with the procedures set forth in N.C.G.S. \u00a7 15A-544.5, \u201c[w]hen a forfeiture has become a final judgmentf,]... the clerk of superior court. . . shall docket the judgment as a civil judgment against the defendant and against each surety named in the judgment.\u201d N.C. Gen. Stat. \u00a7 15A-544.7(a) (2011). \u201cThere is no relief from a final judgment of forfeiture except as provided in [N.C.G.S. \u00a7 15A-544.8],\u201d which provides that, \u201c[a]t any time before the expiration of three years after the date on which a judgment of forfeiture became final,\u201d any surety named in the judgment may make a written motion for relief if \u201c[t]he person seeking relief was not given notice [of the forfeiture] as provided in G.S. 15A- 544.4,\u201d or for \u201c[o]ther extraordinary circumstances\u201d that the court, \u201cin its discretion,\u201d \u201cdetermines should entitle [the movant] to relief\u2019 from the forfeiture. N.C. Gen. Stat. \u00a7 15A-544.8(a), (b), (c)(1) (2011).\nIn the present case, International asserts only that it cannot seek relief from the forfeiture on the $570,000.00 bond pursuant to N.C.G.S. \u00a7 15A-544.8 because \u201cInternational is not a surety subject to the statute.\u201d However, because we have already determined that International is the surety on the $570,000.00 bond executed by Mr. Lowry, International is subject to the bail bond forfeiture statutes, see N.C. Gen. Stat. \u00a7 I5A-544.1 (2011) (\u201cBy executing a bail bond the defendant and each surety submit to the jurisdiction of the court and irrevocably consent to be bound by any notice given in compliance with [the \u2018Bail Bond Forfeiture\u2019 Part of the \u2018Bail\u2019 Article in the General Statutes.] \u201d), and we find this assertion is without merit. Here, the record reflects that, after defendant failed to appear in court, International received timely and proper notice of the entry of forfeiture of the $570,000.00 bond executed by Mr. Lowry in accordance with N.C.G.S. \u00a7\u00a7 15A-544.3 and 15A-544.4. Although an order had been entered that set aside the forfeitures, such order has since been rendered a nullity and vacated, and the forfeitures have been made final judgments. Thus, according to the applicable statutes, as the surety on the $570,000.00 bond, International may only seek relief from the now final judgment of forfeiture on this bond pursuant to N.C.G.S. \u00a7 15A-544.8. Because we have determined that International is the surety on the bond at issue, we decline to address International\u2019s concern regarding what, if any, mechanism it could have employed within the existing statutory scheme of the \u201cBail Bond Forfeiture\u201d Part of Article 26 in Chapter 15A of the General Statutes to challenge any enforcement proceedings levied against it pursuant to N.C.G.S. \u00a7 15A-544.7 if it had not been the surety on the bond.\nIII.\nInternational next contends the trial court erred by concluding that the International Complaint was a collateral attack on the court\u2019s 5 January 2012 Order, which decreed the forfeitures to be final judgments.\n\u201cA collateral attack is one in which a plaintiff is not entitled to the relief demanded in the complaint unless the judgment in another action is adjudicated invalid.\u201d Thrasher v. Thrasher, 4 N.C. App. 534, 540, 167 S.E.2d 549, 553 (1969) (internal quotation marks omitted). \u201c[A] collateral attack upon a judicial proceeding [is] an attempt to avoid, defeat, or evade it, or deny its force and effect, in some incidental proceeding not provided by law for the express purpose of attacking it.\u201d Hearon v. Hearon, 44 N.C. App. 361, 362, 261 S.E.2d 9, 10 (1979) (internal quotation marks omitted). \u201cNorth Carolina does not allow collateral attacks on judgments.\u201d Reg\u2019l Acceptance Corp. v. Old Republic Sur. Co., 156 N.C. App. 680, 682, 577 S.E.2d 391, 392 (2003).\nInternational asserts, without support, that the International Complaint is not a collateral attack on the 5 January 2012 Order because its claims \u201cdo not seek an adjudication that the [Order] is invalid,\u201d but instead \u201cmerely seek[] a declaration\u201d that the forfeiture on the $570,000.00 bond cannot be enforced against it. However, the International Complaint specifically claims: \u201cThe [$570,000.00] Bond is null and void. At minimum, the Bond is null and void as to International.\u201d The complaint then specifically requests \u201c[t]hat the [trial court] enjoin and restrain the Defendants from entering and/or executing any judgment against the International [sic] relative to any liability upon the Bond,\u201d and that the court declare \u201cthat the Bond is not an enforceable obligation against International.\u201d In other words, International would only be entitled to the relief demanded in its complaint if the trial court declared that International \u2014 the erstwhile self-identified surety on the $570,000.00 bond now subject to enforcement proceedings under N.C.G.S. \u00a7 15A-544.7 \u2014 has no liability on the $570,000.00 bond forfeiture made final by the court\u2019s 5 January 2012 Order. Because such an outcome would allow International to \u201cavoid, defeat, [and] evade\u201d the enforcement of the judgment made final by the court\u2019s 5 January 2012 Order, thus \u201cdeny[ing] [the order\u2019s] force and effect,\u201d see Hearon, 44 N.C. App. at 362, 261 S.E.2d at 10 (internal quotation marks omitted), we must conclude that the trial court did not err when it concluded that the International Complaint was a collateral attack on the court\u2019s 5 January 2012 Order.\nIV.\nInternational and Mr. Lowry each next contend the trial court erred when it concluded that their respective complaints, both filed in January 2012, were barred by the doctrines of res judicata and collateral estoppel, because they assert that the claims and issues raised in their complaints \u201ccould not have been litigated in an earlier proceeding due to the limitations of the Bond Forfeiture Statutes, particularly [N.C.G.S.] \u00a7 15A-544.5(b).\u201d We conclude that the trial court\u2019s determination that the complaints were each impermissible collateral attacks on the court\u2019s 5 January 2012 Order renders unnecessary our review of whether the complaints were additionally barred by the affirmative defenses of res judicata and collateral estoppel.\nV.\nIn July 2012, the Board moved for monetary sanctions against International and the Bondsmen pursuant to N.C.G.S. \u00a7 15A-544.5(d)(8). In August 2012, the trial court entered an order imposing monetary sanctions against International, in which it concluded:\nIn light of the Sureties\u2019 \u201cmisleadingly captioned\u201d Motion, the time required for the Court of Appeals to review the matter and issue its decision, and the Board\u2019s defense of the two lawsuits filed by the Sureties in January 2012, . . . the Board\u2019s motion for sanctions was filed in a timely fashion as there is no timing requirement for a motion for sanctions under the applicable statutes.\nInternational argues that this conclusion was erroneous because the Board\u2019s motion for sanctions was not timely filed. We disagree.\nAt the time International and the Bondsmen filed the Remission/Set Aside Motion on 22 July 2009, N.C.G.S. \u00a7 15A-544.5(d) provided, in relevant part, as follows:\nIf a forfeiture is not set aside . . . [pursuant to a court\u2019s order striking the defendant\u2019s failure to appear and recalling any order for arrest issued for that failure to appear], the only procedure for setting it aside is as follows:\n(1) At any time before the expiration of 150 days after the date on which notice was given under G.S. 15A-544.4, the defendant or any surety on a bail bond may make a written motion that the forfeiture be set aside, stating the reason and attaching the evidence specified in subsection (b) of this section.\n(3) Either the district attorney or the county board of education may object to the motion by filing a written objection in the office of the clerk and serving a copy on the moving party.\n(4) If neither the district attorney nor the board of education has filed a written objection to the motion by the tenth day after the motion is served, the clerk shall enter an order setting aside the forfeiture.\n(5) If either the district attorney or the county board of education files a written objection to the motion, then not more than 30 days after the objection is filed a hearing on the motion and objection shall be held in the county, in the trial division in which the defendant was bonded to appear.\n(8) If at the hearing the court determines that the documentation required to be attached pursuant to subdivision (1) of this subsection is fraudulent or was not attached to the motion at the time the motion was filed, the court may order monetary sanctions against the surety filing the motion, unless the court also finds that the failure to attach the required documentation was unintentional. This subdivision shall not limit the criminal prosecution of any individual involved in the creation or filing of any fraudulent documentation.\nN.C. Gen. Stat. \u00a7 15A-544.5(d) (2007) (emphasis added).\nHere, International suggests, without support, that, to have been deemed timely filed, the Board\u2019s motion for sanctions must have been filed according to the same time constraints as those set out for filing written objections to a motion to set aside pursuant to N.C.G.S. \u00a7 15A-544.5(d)(3)~(5). However, we find no support for International\u2019s assertion in the plain language of the statute, which provides no express instruction as to when a party must move for sanctions against a surety pursuant to this subsection in order to be considered timely. Moreover, when the General Assembly amended several bail bond statutes in 2011, including the provision at issue, the General Assembly expressly stated in the preamble of the enabling legislation that this Court\u2019s narrow interpretation of another subdivision of N.C.G.S. \u00a7 15A-544.5(d) in Cortez I\u2014 in which apanel of this Court determined that subdivision (d) (1) imposed a jurisdictional limitation on the clerk\u2019s authority to grant a motion to set aside under subdivision (d)(4) \u2014 \u201cwas not the intent of the General Assembly.\u201d See 2011 N.C. Sess. Laws 1530,1530-31, ch. 377. Accordingly, in the absence of express language from the bail bond forfeiture statutes directing us to impose the narrowly-construed time limitations urged upon us by International\u2019s reading of subsection (d), and in light of the General Assembly\u2019s recent rejection of this Court\u2019s narrow interpretation of another subdivision of this same statutory subsection, we are disinclined to adopt as rule International\u2019s unsupported assertion that the Board\u2019s motion for sanctions was per se untimely.\nInstead, the record shows that, although the Remission/Set Aside Motion was filed on 22 July 2009, it was only finally decided by the trial court on 5 January 2012. One week later, International initiated other litigation proceedings against the Board and other parties by filing its declaratory judgment action, which action was dismissed pursuant to the trial court\u2019s 11 April 2012 order. Then, three months after that final disposition, the Board filed its motion for sanctions pursuant to N.C.G.S. \u00a7 15A-544.5(d)(8). Thus, because the record shows that the Board\u2019s motion for sanctions was brought within three months of the trial court\u2019s dismissal of International\u2019s Remission/Set Aside Motion\u2014 after almost three years of litigation initiated by and with the participation of the Bondsmen and International that included two appeals to this Court \u2014 and because International was given timely notice of the hearing on the Board\u2019s motion for sanctions, which motion was heard three weeks after International received notice of such motion, we overrule International\u2019s contention that the trial court erred when it concluded, in light of the procedural complexities and anomalies of this case, that the Board\u2019s motion for sanctions was timely.\nVI.\nInternational next contends the trial court abused its discretion because the court did not properly consider the relevant statutory factors before it imposed monetary sanctions against International pursuant to N.C.G.S. \u00a7 15A-544.5(d)(8). As we indicated above, at the time that International and the Bondsmen filed the Remission/Set Aside Motion, N.C.G.S. \u00a7 15A-544.5(d)(8) provided that, if the court \u201cdetermines that the documentation required to be attached pursuant to subdivision (1) of this subsection is fraudulent or was not attached to the motion at the time the motion was filed, the court may order monetary sanctions against the surety filing the motion,\u201d unless \u201cthe court also finds that the failure to attach the required documentation was unintentional.\u201d N.C. Gen. Stat. \u00a7 15A-544.5(d)(8) (2007). In its August 2012 order imposing monetary sanctions on International, the trial court found and concluded that the Remission/Set Aside Motion \u201cdid not include the supporting documentation required by [N.C.G.S.] \u00a7 15A-544.5(d).\u201d There was no evidence in the record to support, and the court did not find, that International\u2019s failure to attach this documentation was unintentional. Thus, because International failed to attach the documentation required to support its motion seeking to set aside the forfeiture, and because such a failure is one of the grounds upon which the court is authorized to impose sanctions under N.C.G.S. \u00a7 15A-544.5(d)(8), we conclude that it was within the trial court\u2019s authority and discretion pursuant to N.C.G.S. \u00a7 15A-544.5(d)(8) to impose monetary sanctions on International. In the absence of any legal argument to support the remaining assertions advanced by International with respect to this issue on appeal, we decline to address this issue further.\nVII.\nFinally, International contends the amount of the monetary sanctions imposed on International by the trial court was unconstitutionally excessive, and that the trial court incorrectly applied the current version of N.C.G.S. \u00a7 15A-544.5(d)(8) when it imposed sanctions upon International, thus violating the Ex Post Facto Clauses of the United States and North Carolina Constitutions. However, International\u2019s response to the Board\u2019s motion, as it appears in the record before us, does not raise these constitutional challenges. Additionally, the extensive findings and conclusions of the trial court\u2019s order on the Board\u2019s motion for sanctions do not reflect that any constitutional challenges were presented to the court for consideration nor were any such challenges ruled upon by the court. Since \u201ca constitutional question which is not raised and passed upon in the trial court will not ordinarily be considered on appeal,\u201d see State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982), we decline to consider this issue further. Nonetheless, since International also suggests that the trial court abused its discretion by imposing a monetary sanction of $285,000.00 upon International, we must consider whether the court\u2019s decision to impose sanctions in this amount was \u201cmanifestly unsupported by reason,\u201d or \u201cwas so arbitrary that it could not have been the result of a reasoned decision.\u201d See White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).\nAs International concedes, at the time International filed the Remission/Set Aside Motion, N.C.G.S. \u00a7 15A-544.5(d)(8) \u201cd[id] not include a provision setting the amount of sanctions,\u201d and \u201cd[id] not provide any guidance or factors for the trial court to determine the amount of any sanction other than whether the documentation is fraudulent and whether the failure is intentional.\u201d However, when the General Assembly amended this provision one week after International filed the Remission/Set Aside Motion, it added the following instruction for the trial courts:\nIf the court concludes that a sanction should be ordered, in addition to ordering the denial of the motion to set aside, sanctions shall be imposed as follows: (i) twenty-five percent (25%) of the bond amount for failure to sign the motion; (ii) fifty percent (50%) of the bond amount for failure to attach the required documentation; and (iii) not less than one hundred percent (100%) of the bond amount for the filing of fraudulent documentation. Sanctions awarded under this subdivision shall be docketed by the clerk of superior court as a civil judgment as provided in G.S. 1-234. The clerk of superior court shall remit the clear proceeds of the sanction to the county finance officer as provided in G.S. 115C-452.\n2009 N.C. Sess. Laws 847,847, ch. 437, \u00a7 1. Thus, if a surety fails to attach the required documentation to a motion to set aside a forfeiture filed on or after 1 January 2010, a court is now authorized and required by the General Assembly under subdivision (d)(8) to impose a sanction equal to fifty percent of the bond\u2019s amount if the court decides to impose monetary sanctions against a surety for such a failure.\nHere, the Board sought $285,000.00 in monetary sanctions against International pursuant to N.C.G.S. \u00a7 15A-544.5(d)(8). As we mentioned above, the trial court concluded, and International concedes, that, at the time the Remission/Set Aside Motion was filed, there was no statutory limitation on the amount that a trial court could impose for monetary sanctions under N.C.G.S. \u00a7 15A-544.5(d)(8). The trial court also recognized that the General Assembly has since revised this statute, which now directs the trial court that \u201csanctions shall be imposed\u201d according to the percentage scheme excerpted above. The trial court then further concluded:\n6. The version of [N.C.G.S.] \u00a7 15A-544.5(d)(8) in effect at the time the Sureties filed their [Remission/Set Aside] Motion should govern the Court\u2019s review of the Board\u2019s motion for sanctions.\n.9. The version of [N.C.G.S.] \u00a7 15A-544.5(d)(8) in effect at the time the Sureties filed their Motion did not prohibit the Board from filing its motion for sanctions in July 2012.\n11. This Court is not bound by the current version of [N.C.G.S.] \u00a7 15A-544.5(d)(8), which would require a sanction in the amount of fifty percent of the bond for failure to attach the required documentation. The amount of any sanction(s) is within the Court\u2019s discretion.\n12. The Court has authority to order the payment of sanctions by the Sureties in amounts deemed reasonable to the Court due to the Sureties\u2019 failure to attach the documentation required by [N.C.G.S.] \u00a7 15A-544.5(d) (8) to their Motion.\nSince none of these conclusions are challenged by International on appeal, and in fight of .the record before us and the unrestrictive statutory language applicable at the time the Remission/Set Aside Motion was filed, we conclude that the trial court\u2019s decision to impose a monetary sanction in the amount of $285,000.00 against International cannot be said to have been manifestly unsupported by reason. Accordingly, we overrule this issue on appeal.\nLastly, we recognize that Mr. Lowry asserts that the first cause of action in the Bondsmen Complaint stated a claim upon which relief should have been granted. However, because Mr. Lowry does not challenge the trial court\u2019s determination that this cause of action was an impermissible collateral attack on the court\u2019s 5 January 2012 Order that made the forfeitures final judgments, and because the unsupported assertion in Mr. Lowry\u2019s brief on this issue is meritless in light of the plain language of N.C.G.S. \u00a7\u00a7 15A-544.6, 15A-544.7, and 15A-544.8, we decline to address this issue further. We further decline to address any remaining assertions raised in International\u2019s brief in support of which it has failed to present any relevant legal authority, see N.C.R. App. P. 28(a), (b)(6), or which are not determinative in light of. our disposition of other issues on appeal.\nAffirmed.\nJudges ELMORE and HUNTER, JR. concur.\n. Defendant\u2019s middle name appears in the record as \u201cGeovani,\u201d \u201cDeovani,\u201d and \u201cGiovani.\u201d Because the captions of the court\u2019s orders for File Nos. 12 CVS 30 and 12 CVS 201, from which the parties appeal, indicate that defendant\u2019s middle name is \u201cGiovani,\u201d we use the same appellation here.\n. At the time that the Bondsmen and International filed their motions to set aside the bond forfeiture notices in July 2009, N.C.G.S. \u00a7 15A-544.5(d)(4) provided that \u201cthe clerk shall enter an order setting aside the forfeiture\u201d \u201c[i]f neither the district attorney nor the board of education has filed a written objection to the motion by the tenth day after the motion is served.\u201d N.C. Gen. Stat. \u00a7 15A-544.5(d)(4) (2007) (emphasis added). However, this provision has since been amended to provide that a forfeiture shall be set aside if neither the district attorney nor the board of education has filed a written objection \u201cby the twentieth day\u201d after the motion is served. See 2009 N.C. Sess. Laws 847, 847, ch. 437, \u00a7 1.\n. We note that, in June 2011, in an apparent response to Cortez I, the General Assembly amended several bail bond statutes, including those that pertain to written motions to set aside bail bond forfeitures. The amendments were preceded by the following preamble:\nWhereas, the North Carolina Court of Appeals held recently in its unpublished opinion in [Cortez 7], COA10 474, that G.S. 15A-544.5(d)(l) constitutes a jurisdictional limitation on the clerk\u2019s authority to grant motions to set aside bond forfeitures under G.S. 15A-544.5(d)(4); and\nWhereas, contrary to the Court\u2019s reasoned interpretation of G.S. 15A-544.5(d), it was not the intent of the General Assembly in S.L. 2000 133 that the description of the content of motions to set aside in G.S. 15A-544.5(d)(l) would constitute a jurisdictional limitation on the clerk\u2019s authority to grant such motions ....\n2011 N.C. Sess. Laws 1530, 1530-31, ch. 377. Thus, it appears that the General Assembly rejected the reasoning upon which this Court relied when it determined that the 3 August 2009 order setting aside the forfeitures was void. However, since the parties did not appeal from the trial court\u2019s 5 January 2012 Order, which vacated the order that set aside the bond forfeitures \u201cfor the reasons set forth in the [Cortez 7] decision,\u201d since we are bound by the prior panel\u2019s decision, see In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36-37 (1989), and since \u201c[i]t is not the role of the appellate courts ... to create an appeal for an appellant,\u201d Viarv. N.C. Dep\u2019t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (per curiam), reh\u2019g denied, 359 N.C. 643, 617 S.E.2d 662 (2005), we decline to address this issue further.\n. Mr. Lowry does not challenge the trial court\u2019s conclusion that the first cause of action in the Bondsmen Complaint was a collateral attack on the court\u2019s 5 January 2012 Order. Thus, this determination remains undisturbed on appeal.\n. Although this statute was amended \u2014 just over a week after International and the Bondsmen filed the Remission/Set Aside Motion \u2014 to provide that \u201c[a] motion for sanctions and notice of the hearing thereof shall be served on the surety not later than 10 days before the time specified for the hearing,\u201d 2009 N.C. Sess. Laws 847, 847, ch. 437, \u00a7 1, the statute still lacles direction as to when a party must move for monetary sanctions pursuant to this subsection in order for such motion to be considered timely.\n. We note that International appears to presume that the sanctions imposed by the trial court were unconstitutionally excessive and violative of the Ex Post Facto Clauses because International suggests, without legal support, that monetary sanctions imposed under N.C.G.S. \u00a7 15A-544.5(d)(8) constitute a criminal punishment. However, because the General Assembly\u2019s 2009 amendment to N.C.G.S. \u00a7 15A-544.5(d)(8) modified the statute to expressly provide that \u201c[s]anctions awarded under this subdivision shall be docketed by the clerk of superior court as a civil judgment as provided in G.S. 1 234,\u201d 2009 N.C. Sess. Laws 847, 847, ch. 437, \u00a7 1 (emphasis added), and because \u201c[t]he location and labels of a statutory provision do not by themselves transform a civil remedy into a criminal one,\u201d see State v. White, 162 N.C. App. 183, 193, 590 S.E.2d 448, 455 (2004) (alteration in original) (internal quotation marks omitted), International\u2019s presumption that monetary sanctions imposed under this provision were intended by the Legislature to be criminal punishments appears to be misplaced.", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "Narron, O\u2019Hale and Whittington, P.A., by John P. O\u2019Hale, for plaintiffs-appellants Richard L. Lowry and LR&M Bailbonds, Inc.", "Ragsdale Liggett PLLC, by Mary Hulett, Amie C. Sivon, and John B. Walker, for appellant International Fidelity Insurance Company.", "Roy Cooper, Attorney General, by Grady L. Balentine, Jr., Special Deputy Attorney General, for defendants-appellees the State of North Carolina and Will R. Crocker in his Official Capacity as the Clerk of Superior Court for Johnston County.", "Tharrington Smith, L.L.P., by Rod Malone, and Daughtry, Woodard, Lawrence, & Starling, by James R. Lawrence, Jr., for defendant-appellee Johnston County Board of Education." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ELDER G. CORTEZ, Defendant, and INTERNATIONAL FIDELITY INSURANCE COMPANY, Surety, and RICHARD L. LOWRY, Surety, and LARRY D. ATKINSON, Surety, and TONY L. BARNES, Surety INTERNATIONAL FIDELITY INSURANCE COMPANY, Plaintiff v. ELDER GIOVANI CORTEZ; JOHNSTON COUNTY BOARD OF EDUCATION; STATE OF NORTH CAROLINA; and WILL R. CROCKER in his Official Capacity as the Clerk of Superior Court for Johnston County, Defendants TONY L. BARNES; LARRY D. ATKINSON; RICHARD L. LOWRY; and LR&M LR&M BAILBONDS, INC., Plaintiffs v. ELDER GIOVANI CORTEZ; STATE OF NORTH CAROLINA; JOHNSTON COUNTY BOARD OF EDUCATION; WILL R. CROCKER in his Official Capacity as the Clerk of Superior Court for Johnston County; and STEVE BIZZELL in his Official Capacity as Sheriff of Johnston County, Defendants\nNo. COA12 1399\nNo. COA12 1427\nFiled 20 August 2013\n1. Sureties \u2014 appearance bond \u2014 name on bond form\nInternational Fidelity Insurance Company (International) was the surety on an appearance bond for a defendant who did not appear even though International\u2019s name did not appear on the first page of the appearance bond form. International\u2019s subsequent actions, admissions, and seemingly uninterrupted participation in the litigation was inconsistent with its position disclaiming its intent to be bound by the contract entered into by its agent.\n2. Sureties \u2014 bail bond \u2014 forfeiture\u2014relief from final judgment\nThe trial court did not err in an action concerning forfeiture of a bail bond by concluding that International Fidelity Insurance Company\u2019s (International\u2019s) exclusive remedy for relief from a final judgment of forfeiture was to appeal from that judgment pursuant to N.C.G.S. \u00a7 15A-544.8. After defendant failed to appear, International received timely and proper notice of the entry of forfeiture; although an order was entered that set aside the forfeiture, that order was subsequently rendered a nullity and vacated, and the forfeiture was made a final judgment.\n3. Judgments \u2014 collateral attack \u2014 bail bond forfeiture\nThe trial court did not err in an action concerning a bail bond forfeiture when it concluded that a complaint by International Fidelity Insurance Company was a collateral attack on a judgment decreeing forfeitures to be final judgments.\n4. Appeal and Error \u2014 unnecessary issue \u2014 determination on another question\nThe question of whether certain complaints in an action concerning a bail bond forfeiture were barred by collateral estoppel and res judicata was rendered unnecessary by the trial court\u2019s determination that the complaints were impermissible collateral attacks.\n5. Sureties \u2014 bond forfeiture \u2014 sanctions\u2014motion timely\nIn light of the procedural complexities and anomalies of a bail bond forfeiture case, a school board\u2019s motion for sanctions against the bondsmen and the insurance company was timely. The plain language of N.C.G.S. \u00a7 15A-544.5(d) provides no express instruction as to when a party must move for sanctions against a surety in order to be timely.\n6. Bail and Pretrial Release \u2014 bond forfeiture \u2014 sanctions\u2014no abuse of discretion\nThe trial court did not abuse its discretion by imposing monetary sanctions on an insurance company (International) in an action concerning the forfeiture of a bail bond. International did not attach the documentation required to support its motion seeking to set aside the forfeiture and such a failure is one of the grounds upon which the court is authorized to impose sanctions under N.C.G.S. \u00a7 15A-544.5(d)(8).\n7. Appeal and Error \u2014 preservation of issues \u2014 constitutional issues not raised at trial \u2014 not considered\nConstitutional issues not raised in the record on appeal, not presented to the trial court, and not ruled on by the trial court were not considered.\n8. Sureties \u2014 bond forfeiture \u2014 sanctions\u2014amount\nThe trial court did not err in the amount of sanctions imposed against the insurance company in an action concerning a bail bond forfeiture where the statute in effect at the time the insurance company filed its motion for remission did not provide any applicable guidance or factors for determining the amount of sanctions and the statute was amended one week later to provide such guidance. The trial court\u2019s conclusion that the version of the statute in effect when the motion was filed governed was not challenged on appeal, and, in light of the record, the trial court\u2019s sanction cannot be said to have been manifestly unsupported by reason.\n9. Appeal and Error \u2014 preservations of issues \u2014 issues not addressed\nIssues in the appeal concerning a bail bond forfeiture were not addressed where they were not determinative in light of other issues, were not supported by relevant legal authority, were not challenged at trial, or were meritless in light of plain statutory language.\nAppeal by Richard L. Lowry and LR&M Bailbonds, Inc. from order entered 11 April 2012 by Judge William R. Pittman in Johnston County Superior Court. Appeal by International Fidelity Insurance Company from order entered 11 April 2012 by Judge William R. Pittman in Johnston County Superior Court, and from order entered 24 August 2012 by Judge Richard L. Doughton in Johnston County Superior Court. Heard in the Court of Appeals 4 June 2013.\nNarron, O\u2019Hale and Whittington, P.A., by John P. O\u2019Hale, for plaintiffs-appellants Richard L. Lowry and LR&M Bailbonds, Inc.\nRagsdale Liggett PLLC, by Mary Hulett, Amie C. Sivon, and John B. Walker, for appellant International Fidelity Insurance Company.\nRoy Cooper, Attorney General, by Grady L. Balentine, Jr., Special Deputy Attorney General, for defendants-appellees the State of North Carolina and Will R. Crocker in his Official Capacity as the Clerk of Superior Court for Johnston County.\nTharrington Smith, L.L.P., by Rod Malone, and Daughtry, Woodard, Lawrence, & Starling, by James R. Lawrence, Jr., for defendant-appellee Johnston County Board of Education.\n. Although the record indicates that LR&M Bailbonds, Inc. is a named party in File No. 12 CVS 30, the appellation representing this party in our caption matches that of the trial court\u2019s 11 April 2012 order, which identifies this party as \u201cLR&M LR&M Bailbonds, Inc.\u201d\n. Although the record indicates that Steve Bizzell, in his Official Capacity as the Sheriff of Johnston County, is a named party in File No. 12 CVS 201, our caption matches that of the trial court\u2019s 11 April 2012 order, which does not include this party." }, "file_name": "0247-01", "first_page_order": 257, "last_page_order": 281 }