Manuel Bail Bond Company, Inc. v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

MANUEL BAIL BOND COMPANY, INC.

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CA04-557

JUNE 22, 2005

APPEAL FROM THE OUACHITA COUNTY CIRCUIT COURT

[NO. CR2002-238-4]

HONORABLE CAROL CRAFTON ANTHONY, CIRCUIT JUDGE

SUBSTITUTED OPINION UPON DENIAL OF REHEARING

Karen R. Baker, Judge

On April 27, 2005, this court handed down an unpublished opinion in this case in which we affirmed the trial court's judgment against appellant, Manuel Bail Bond, Company, Inc., and denied appellant's motion to set aside the judgment. See Manuel Bail Bond Co. Inc. v. State, ___ Ark. App____, ____ S.W.3D___(April 27, 2005). Appellant has filed a petition for rehearing. In response to that petition, which alleged that this court's decision contained a mistake of law, we issue this substituted opinion and deny appellant's petition.

This appeal arises from a judgment against appellant, Manuel Bail Bond, Co., Inc., and the denial of the motion to set aside that judgment based upon the argument that the bail bond company was not served by certified mail, which rendered the trial court without authority to render judgment. The order to show cause was served on the appellant personally by a sheriff's deputy and not by certified mail. A show-cause hearing was held at which the hearing was waived, the validity of the bond was admitted, the absence of the criminal defendant was admitted, and the appellant was given 120 days to locate the criminal defendant.

On November 20, 2002, appellant, Manuel Bail Bonds Company, Inc., posted a $100,000 bail bond for the release of criminal defendant John Tyrone Israel. On June 23, 2003, defendant Israel failed to appear, and the trial court issued a bench warrant. On June 26, 2003, a motion for bonding agent to show cause was filed. An order to show cause entered on July 10, 2003, was personally served by the sheriff on appellant on July 14, 2003.

On August 18, 2003, appellant appeared and waived the show-cause hearing. However, during the proceedings, appellant admitted that the bond was valid and that it had 120 days from July 14, 2003 in which to produce defendant Israel. The docket sheet reflected that appellant admitted to a valid bond and that defendant Israel failed to show.

On November 19, 2003, a hearing was held on appellant's motion to set aside the bond forfeiture. At the beginning of the hearing the circuit court and appellant confirmed that appellant waived "everything" and admitted that the time for which appellant had to produce the missing defendant ran from service on July 14, 2003. However, at some point later in the hearing, appellant attempted to challenge the service of the show-cause order. The circuit court responded as follows: I think you waived all that when you appeared. First of all, I think you argued that the new law applied. You and, and Mr. Pratt was here. And I was trying to look at the old law. And you told me it didn't apply. And we went to the new law. But either way, you came in and you had your people here and you admitted you'd been served. You admitted it had been correct. You waived the probable cause hearing. Said you owed him and you=d have him and you knew where he was and you'd have him here before the 120 days, agreed to it being the 14th of July which was the date the summons was issued. I don't think you have an argument there, [counselor]. Because I think you waived all that.

Appellant took issue with whether the "old or new law" applied. Soon thereafter, appellant attempted to withdraw the waiver and argue that it did not waive the statutory service requirements.

Despite this argument, the circuit court entered a judgment on the bond and directed the prosecutor to prepare the precedent finding that appellant had not produced defendant Israel within the allotted time.

On January 23, 2004, a bond-forfeiture judgment for $100,000 was entered against appellant. Thereafter, on February 3, 2004, appellant filed a motion to set aside judgment pursuant to Ark. R. Civ. P. 60(a) and (b)(2004). Appellant filed a notice of appeal on February 18, 2004. In an order entered on March 30, 2004, the circuit court denied appellant's motion to set aside the judgment. On April 22, 2004, appellant amended its notice of appeal to include the order of March 30, 2004.

Appellant asserts one point of error on appeal: Because Manuel Bail Bond Company, Inc., was not served by certified mail, the trial court was without authority to render judgment. Appellant cites Hamm v. Office of Child Support Enforcement, 336 Ark. 391, 985 S.W.2d 742 (1999), and Sublett v. Hipps, 330 Ark. 58, 952 S.W.2d 140 (1997), and acknowledges that a general appearance by a defendant without specifically raising the defense of insufficiency of process or service of process in response to a complaint in a civil law suit waives these defenses. However, appellant asserts that the situation before us is peculiar to this particular law and urges us to hold that if a bail bond company is not served by certified mail, the 120-day period that the bail bond company has to procure the criminal defendant's presence never begins to run pursuant to Ark. Code Ann. ' 16-84-201(a)(1)(B)(Supp. 2001), and the trial court is prohibited from entering an order forfeiting a bail bond before that 120-day period runs as required by Ark. Code Ann. ' 16-84-201(d) (Supp. 2001).

Arkansas Code Annotated ' 16-84-201(a)(1)(B) (Supp. 2001) provides:

The one hundred twenty-day period in which the defendant must be surrendered or apprehended pursuant to subdivision (c)(2) of this section begins to run from the date notice is sent by certified mail to the surety company at the address shown on the bond, whether or not it is received by the surety.

The argument presented is that the State's failure to serve appellant by certified mail is the equivalent of a total failure of service in the context of a normal civil lawsuit situation in that it deprives the trial court of jurisdiction to enter a valid judgment. Appellant reasons that the law does not support a waiver argument because the trial court had no jurisdiction to enter the bond forfeiture. The natural progression of that reasoning is that a failure of service of process under this statutory structure prevents the trial court from obtaining jurisdiction to act and that jurisdiction cannot be waived.

While we agree with appellant that statutory service requirements must be strictly construed and that compliance with them must be exact, see Bob Cole Bonding v. State, 340 Ark. 641, 644, 13 S.W.3d 147, 149 (2000)(citations omitted), we find his argument unavailing. "It is well settled that pursuant to Ark. R. Civ. P. 12(h)(1), a party waives the defense of sufficiency of process under Ark. R. Civ. P. 12(b)(4) if he or she fails to raise the argument in either the answer or a motion filed simultaneously with or before the answer." Dunklin v. First Magnus Fin. Corp., 79 Ark. App. 246, 249, 86 S.W.3d 22, 24 (2002)(citing Southern Transit v. Collums, 333 Ark. 170, 176, 966 S.W.2d 906, 908 (1998)).

Our supreme court has clearly placed the burden of preserving issues and meeting the burden of proof on the surety in cases involving the forfeiture of bail bonds:

[O]nce the defendant has failed to appear, the entire amount of the bond is subject to forfeiture. The surety is given the opportunity to present evidence why the full amount of the bond should not be forfeited ....

...

That, of course, is the essence of a show-cause hearing-that the summoned bonding company should offer proof or argument as to why the bail bond should not be forfeited. In the instant case, the bonding company failed to present the circuit court with evidence of the bail bond itself which was the key to the bonding company's defense of erroneous service. In failing to do so, it did not meet its burden of proof.

Bob Cole Bonding, Inc., 340 Ark. at 644-45, 13 S.W.3d at 149.

In the case before us, appellant was represented at the August 18, 2003, hearing by the owner, Kirk Manuel, and an agent, Ricky McKinney, in addition to counsel. Not only was there was no objection to the sufficiency of the service of process at the hearing, but the hearing itself was waived, the validity of the bond admitted, and the 120-day deadline established. Similarly, appellant raised no objection to the sufficiency of service of process in a motion filed on November 12, 2003, asking the trial court to set aside the bond forfeiture and for additional time to produce the defendant. Appellant did not assert the defense of a failure of service of process until more than four months and two scheduled hearings after the forfeiture was initiated. Under the facts of this case, we find no error in the trial court's denial of appellant's motion to set aside the judgment.

Affirmed.

Hart, Gladwin, Griffen, Vaught, and Crabtree, JJ., agree.