Court: Court of Appeals of South Carolina; March 20, 2013; South Carolina; State Appellate Court
Four orders for bond estreatment are the subject of this appeal involving Appellants A AAA Bail Bonds, American Surety, and Bankers Insurance. The Appellants contend that the trial court abused its discretion by: 1) disregarding the language of South Carolina Code section 17-15-170 and ordering estreatment; 2) basing its orders on legal errors; 3) allowing the State's estreatment efforts to proceed despite being barred by laches; and 4) failing to consider the factors outlined in Ex parte Polk before ordering estreatment. The court affirmed the trial court's decision.
The factual background includes the arrests of four individuals—Martin Policao, Edwin Joel Quijivix, Fernando Nunez, and Robin Annette Cardenas—who were released on surety bonds issued by the Appellants. Each failed to appear in court, leading to bench warrants being issued for their arrests. The State issued notices of forfeited recognizance for these individuals, and after a hearing, the trial court ordered the full amounts of the bonds to be estreated. The Appellants received notice of these orders and appealed.
The standard of review indicates that a trial court's estreatment of a bond will only be overturned for abuse of discretion, which occurs when a ruling is based on a legal error. The Appellants specifically argued that the trial court erred by not requiring the State to issue an estreatment notice within ninety days of the bench warrants, claiming this would have allowed them to bring the Defendants into custody. However, the court disagreed with this assertion.
A person charged with a noncapital offense is generally entitled to be released on their own recognizance without the requirement for surety, unless the court determines that such release would not assure their appearance or pose an unreasonable danger to the community (S.C.Code Ann. 17-15-10(A)). The circuit court must impose bond conditions to protect victims from harassment or intimidation (S.C.Code Ann. 16-3-1525(I)(3)). The court can require an appearance bond with surety or allow a cash deposit of up to ten percent of the bond amount in lieu of the full bond (S.C.Code Ann. 17-15-15(a)). If the defendant fulfills bond conditions, the cash deposit is returned unless restitution is owed to the victim, in which case it may be applied towards that restitution (S.C.Code Ann. 17-15-15(a)(c)).
If a defendant fails to appear, the surety’s liability is activated, and the court must issue a bench warrant within seven days for the defendant's arrest (S.C.Code Ann. 38-53-70). If the surety does not surrender the defendant within ninety days, the bond is forfeited. Following forfeiture, a notice is issued for a hearing to confirm judgment against the surety (S.C.Code Ann. 17-15-170). The court may remit the judgment, in whole or part, based on justice considerations, including the costs incurred by the State to locate the defendant (S.C.Code Ann. 38-53-70). The surety may also be allowed to pay the forfeited amount in installments over six months, and if the defendant is surrendered during that period, further liability of the surety is relieved.
In State v. Cornell, the Supreme Court of South Carolina interpreted the 1902 estreatment statute, which mandates that upon forfeiture of a recognizance, the Attorney General or designated official must promptly summon the parties involved to court. The court concluded that the statute's "without delay" requirement is merely directory and does not impact the surety's liability or the legality of the proceedings. A delay of over three years was deemed insufficient to prevent the bond's estreatment.
In contrast, in State v. McClinton, the court held that a seven-and-a-half year delay was barred by the statute of limitations, stating that the three-year limitations period for contract actions applies to bail bond forfeiture actions, commencing thirty days after a bench warrant is issued for a defendant’s nonappearance. The McClinton court emphasized the specific procedures in Section 38-53-70 over the general directive in Section 17-15-170, which is also merely directory.
In the cases of Policao, Quijivix, Nunez, and Cardenas, notices of forfeited recognizances were issued on April 5, 2011, within three years of their respective bench warrants. Thus, these cases did not violate Section 38-53-70, and the State's actions were valid under the McClinton ruling.
Regarding the doctrine of laches, the appellants contended it barred the estreatment of the bonds. However, this issue was not raised or ruled upon in the trial court and was deemed unpreserved for appeal. Even if it were preserved, the court would affirm the decision on the merits.
Laches is defined as an unreasonable and unexplained delay in asserting a legal right, resulting in prejudice to the opposing party. To establish laches as a defense, the party must demonstrate that the delay was unreasonable and caused them harm. In the context of bond estreatment, although notices were filed more than ninety days after a bench warrant was issued, the Appellants failed to prove that these delays were unreasonable or prejudicial, as they had between one and three years to locate the Defendants. Consequently, the Appellants benefitted from the delay rather than suffering harm.
The Appellants also claimed the trial court abused its discretion by not considering the Polk factors before ordering estreatment, specifically regarding the actual costs to the State, the purpose of the bond, and the nature of the default. They argued that as pro se litigants, they had the right to expect adherence to South Carolina law without needing to explicitly request it. While a contemporaneous objection is typically required to preserve an error for appeal, there is an exception when the record does not show a knowing waiver of the right to counsel. The State's right to estreatment arises from the contract formed by the bail bond. South Carolina law allows litigants to represent themselves, and a trial court is not always required to ensure that a pro se decision is made knowingly and voluntarily, especially in civil proceedings involving liberty interests.
Appellants did not request the trial court to evaluate the Polk factors and failed to object to the court's cost determinations or the full estreatment of bonds. Their claim that the court had an obligation to consider the Polk factors due to their pro se status is rejected, as they are not criminal defendants who waived their right to counsel. The estreatment of bonds is a contractual matter, not a civil action involving a deprivation of liberty that necessitates legal representation. Consequently, Appellants were responsible for preserving issues for appellate review. The court found the issue unpreserved due to a lack of contemporaneous objection but also affirmed the trial court's decision on the merits. The Polk factors, which should guide the court's determination of bond remission, include the bond's purpose, the nature of default, and any prejudice to the State. The trial court noted the challenge and increased costs associated with locating defendants Cardenas, Policao, Quijivix, and Nunez, acknowledging that the appellants admitted difficulty in finding them prior to the estreatment notice. The trial court emphasized the surety's duty to ensure defendants' court appearances and deemed the bond amounts reasonable. Thus, the court did not abuse its discretion in not considering the Polk factors. The judgment of the trial court is affirmed.
