PEOPLE OF MI V JOEL EDWARD FREEDLAND
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 1, 2002
Plaintiff-Appellee,
v
No. 231855
Wayne Circuit Court
LC No. 83-002469
JOEL EDWARD FREEDLAND,
Defendant,
and
INTERNATIONAL FIDELITY INSURANCE
COMPANY,
Appellant,
and
AUDREY FREEDLAND,
Intervening Appellee.
Before: Saad, P.J., and Smolenski and Owens, JJ.
PER CURIAM.
International Fidelity Insurance Company appeals as of right from the trial court’s order
of a judgment of forfeiture on a surety bond in the amount of $50,000. We affirm.
On February 5, 1987, defendant was convicted of one count of conspiracy to commit
Medicaid fraud, MCL 400.606, and twenty-two counts of Medicaid fraud, MCL 400.607. The
trial court sentenced defendant to five to ten years’ imprisonment for the conspiracy conviction,
and two to four years’ imprisonment on each of the Medicaid fraud convictions. Thereafter, the
trial court granted defendant’s motion for an appeal bond in the amount of $50,000.
International Fidelity, through its local bonding agent, Goldfarb Bond Agency, issued the appeal
bond.
Defendant appealed his conviction to the Court of Appeals and this Court affirmed
defendant’s conviction in a published opinion, People v Freedland, 178 Mich App 761; 444
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NW2d 250 (1989). The Michigan Supreme Court denied defendant’s application for leave to
appeal. Thereafter, defendant filed a motion for bond pending petition for certiorari to the
United States Supreme Court and the trial court granted the motion. However, the United States
Supreme Court denied defendant’s petition for certiorari.
Defendant failed to appear to begin serving his sentence and the court entered a capias
and judgment which ordered defendant to appear before the court on October 29, 1990. At the
same time, the court entered an ex parte judgment against International Fidelity. Almost seven
years later, on October 1, 1997, the court entered a second capias and judgment and once again
ordered defendant to appear to serve his prison sentence, and renewed the judgment against
International Fidelity. On September 22, 1999, the trial court issued a third capias and judgment,
and renewed the judgment against International Fidelity. On September 30, 1999, International
Fidelity’s agent, Charles Goldfarb, was served with a copy of the September 22, 1999 capias and
judgment.
International Fidelity argues that the bond forfeiture was improper under Kondzer v
Wayne Co Sheriff, 219 Mich App 632; 558 NW2d 215 (1996). Specifically, International
Fidelity argues that it was not bound by the unilateral condition imposed without its consent
when the trial court allowed defendant to remain free on bond following the Michigan appeals
process. International Fidelity further argues that, because there was an additional risk of flight,
the trial court should not have extended the bond without its consent or a new bond.
A surety bond is a contract between the government and the principal and the surety.
Kondzer, supra at 634. The interpretation of a contract is a question of law which we review de
novo. Henderson v State Farm Fire and Cas Co, 460 Mich 348, 353; 596 NW2d 190 (1999).
The goal in the interpretation of contracts is to honor the intent of the parties. Mikonczyk v
Detroit Newspapers, Inc, 238 Mich App 347, 349-350; 605 NW2d 360 (1999). To that end, the
court must look at the contract language to discern the intent of the parties. UAW-GM v KSL
Recreation Corp, 228 Mich App 486, 491; 579 NW2d 411 (1998). Contractual language must
be construed according to its plain and ordinary meaning, and technical or strained constructions
should be avoided. Id. at 491-492.
Contrary to International Fidelity’s argument, Kondzer, supra, is not controlling in this
case. In Kondzer, the plaintiff signed a bail bond that included five written conditions and a
clause which stated that “if all the terms and conditions of [the] bond are not met, the full amount
of the bond may be forfeited.” Kondzer, supra at 636. At the defendant’s preliminary
examination, the district court added a condition to the defendant’s release that he have no
contact with the complaining witness, which the defendant later violated. Id. at 635-636. In
Kondzer, the no-contact clause was clearly not part of the original terms of the bond to which the
plaintiff agreed. The bond at issue here is an appeal bond and it provides:
The undersigned SURETY and DEFENDANT acknowledge themselves bound
unto the State of Michigan in the Penal Sum of Fifty Thousand (50,000)
DOLLARS, to be levied on their property (real, personal or mixed), and to be
evidenced by a judgment if default be made in the conditions following:
THE CONDITIONS OF THIS RECOGNIZANCE ARE, That if the undersigned
defendant shall personally appear in the RECORDER’S COURT FOR THE CITY
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OF DETROIT when and at such times as the Court shall order, and shall not
depart said Court without leave thereof, then this obligation to be void, otherwise
to remain in full force and effect.
International Fidelity argues that the no-contact clause in Kondzer is similar to the trial
court’s decision to allow defendant to remain free on bond following his state appeals while he
appealed to the United States Supreme Court. However, unlike the situation in Kondzer, the trial
court here did not impose a new obligation on the surety. As noted, this was an appeal bond, and
the trial court merely acted in accordance with the terms of the agreement. The language of the
bond indicates that defendant was required to appear before the court when ordered; this plain
language indicates that defendant was required to appear both during and after the conclusion of
the appeal process. If defendant’s appeal efforts were unsuccessful, under the clear terms of the
bond, defendant would have to appear in court to begin serving his sentence if so ordered.
Furthermore, the plain language of the bond does not specify or limit the “type” of appeal.
Because a plain reading of the terms of the contract are clear and unambiguous, we will not
rewrite the terms of the contract to impose limits on the appeal process. UAW-GM, supra at 491.
Accordingly, we hold that the trial court did not err when it held that a new bond was not
required after the completion of the Michigan appellate process.
International Fidelity also argues that the 1990 judgment is void because the prosecutor
did not give notify the surety before it was entered, in violation of MCL 765.28. International
Fidelity further asserts that the 1997 and 1999 judgments are also invalid because they are based
on the 1990 judgment. This Court reviews a trial court’s findings of fact for clear error. MCR
2.613(C); Chapdelaine v Sochocki, 247 Mich App 167, 169; 635 NW2d 339 (2001). A finding
of fact is clearly erroneous if, after a review of the entire record, an appellate court is left with a
definite and firm conviction that a mistake has been made. People v Swirles (After Remand), 218
Mich App 133, 136; 553 NW2d 357 (1996). However, the trial court’s ultimate conclusions of
law are subject to de novo review. People v Parker, 230 Mich App 337, 342; 584 NW2d 336
(1998). MCL 765.28 provides:
In addition to any other method available, it is hereby provided that
whenever default shall be made in any recognizance in any court of record, the
same shall be duly entered of record by the clerk of said court and thereafter said
court, upon the motion of the attorney general, prosecuting attorney or city
attorney, may give the surety or sureties 20 days’ notice, which notice shall be
served upon said surety or sureties in person or left at his or their last known place
of residence. Said surety or sureties shall be given an opportunity to appear
before the court on a day certain and show cause why judgment should not be
entered against him or them for the full amount of such recognizance. If good
cause is not shown, the court shall then enter judgment against the surety or
sureties on said recognizance for such amount as it may see fit not exceeding the
full amount thereof. Execution shall be awarded and executed upon said
judgment in like manner as is provided in personal actions.
Plaintiff and intervening-appellee, Audrey Freedland, argue that International Fidelity knew
about the 1990 judgment as is confirmed by an April 1998 misrepresentation to the trial court’s
assistant, that the judgment was paid in 1990. On this issue, the trial court found as follows:
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Goldfarb, by affidavit, denies receipt of the October, 1990 judgment. The
court file in this case shows that the judgment was entered on October 29, 1990.
The file is without a proof of service, however, an attorney (Ms. Kimberly [sic]
D.R. Reed) representing this court contacted Goldfarb regarding ancillary matters
on the subject of the bond funds on April 27, 1998. Goldfarb informed the court’s
legal counsel that “in 1990, the funds involved were returned to the General Fund
of the State Treasury.” The reasonable inference is that Surety’s agent had notice
and knowledge of the 1990 judgment. There is no proof and Surety concedes that
the judgment was never paid.
Because proofs of service are absent from the lower court file, notice is a question of fact.
After reviewing the contents of the entire record, and comparing Goldfarb’s affidavit in which he
denies knowledge of the October 29, 1990 and October 1, 1997, capias and judgments, with
Reed’s letter discussing the 1990 judgment, we find no clear error in the trial court’s conclusion.
Reed’s letter states that in April 1998 she was informed by someone at Goldfarb Bond Agency
that “in 1990, the funds involved were returned to the General Fund of the State Treasury.” The
reasonable inference arising from the letter is that Goldfarb had actual knowledge of the 1990
judgment because Goldfarb represented to Reed that monies were paid in 1990 on the case,
presumably on the judgment. As such, we find that International Fidelity’s argument that the
prosecution’s evidence does not sustain the lower court’s finding that surety had notice of the
judgment, is without merit. Furthermore, for these reasons, the 1997 and 1999 judgments are
also valid because they are based on the valid 1990 judgment.
Lastly, International Fidelity argues that the totality of the circumstances show that it was
denied both due process of law and equal protection under the law. Generally, an issue must be
raised before and addressed by the trial court in order to be preserved for appeal. People v
Grant, 445 Mich 535, 546; 520 NW2d 123 (1994). This issue is not properly preserved for
review on appeal because it was not raised before or addressed by the trial court. People v
Malone, 193 Mich App 366, 371; 483 NW2d 470 (1992). Nevertheless, this Court may take
notice of plain errors which affected substantial rights even if not raised before the trial court.
MRE 103(d); Grant, supra, 445 Mich 535, 545, 553. Unpreserved claims of error are reviewed
by this Court for plain error that affected the defendant’s substantial rights. People v Carines,
460 Mich 750, 763; 597 NW2d 130 (1999). This Court may address an unpreserved issue if it is
one of law for which all the necessary facts were presented. Panian Chevrolet v Young, 239
Mich App 227, 233; 608 NW2d 89 (2000).
Equal protection of the law is guaranteed by both the federal and Michigan Constitutions,
US Const, Am XIV; Const 1963, art 1, § 2; Frame v Nehls, 452 Mich 171, 183; 550 NW2d 739
(1996). The purpose of the equal protection guarantee is to secure every person “against
intentional and arbitrary discrimination, whether occasioned by the express terms of a statute or
by its improper execution.” Village of Willowbrook v Olech, 528 US 562, 564; 120 S Ct 1073;
145 L Ed 2d 1060, 1063 (2000). Furthermore, no person may be deprived of life, liberty or
property without due process of law. US Const, Am V; Const 1963, art 1, § 17; Tolksdorf v
Griffith, 464 Mich 1, 7; 626 NW2d 163 (2001). Due process generally requires notice and an
opportunity to be heard. Dusenbery v United States, 534 US 161; 122 S Ct 694, 699; 151 L Ed
2d 597 (2002). Notice must be “reasonably calculated” to apprise interested parties of the
pendency of the action and must afford them an opportunity to present objections. Id., 701;
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Vincencio v Jaime Ramirez, MD, PC, 211 Mich App 501, 504; 536 NW2d 280 (1995). Actual
receipt of the notice is not required. Dusenbery, supra, 122 S Ct 701. Also, some form of
hearing is required before the deprivation of a property interest. Dow v State, 396 Mich 192,
205; 240 NW2d 450 (1976); Brandon Twp v Tomkow, 211 Mich App 275, 282-283; 535 NW2d
268 (1995).
International Fidelity argues that it was denied due process of law and equal protection
under the law when the court unilaterally extended the bond at issue without first getting surety’s
consent. International Fidelity also maintains that it was denied due process of law and equal
protection under the law because it was not notified of the 1990 judgment and, as a result, was
denied the right to be heard before forfeiture of the bond. Because we found that the trial court
did not err when it held that a new bond was not required after the completion of the Michigan
appellate process, this claim is without merit. Surety has not shown that the court intentionally
and arbitrarily discriminated against it in violation of the equal protection guarantee. Village of
Willowbrook, supra, 528 US 564. Also, International Fidelity’s argument is meritless because
actual receipt of the notice is not required and because we found that Goldfarb knew about the
judgments, and thus, received proper notice of his opportunity to be heard by the court.
Dusenbery, supra, 122 S Ct 701. Therefore, in light of these rules, together with the fact that
surety did not develop this argument in the lower court or on appeal, surety’s constitutional
arguments fail and reversal is not warranted. Carines, supra, 460 Mich 763.
Affirmed.
/s/ Henry William Saad
/s/ Michael R. Smolenski
/s/ Donald S. Owens
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