Ralph Stassi VS State of Louisiana

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STATE QF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NU 2011 CA 2264 RALPH STASSI VERSUS STATE OF LOUISIANA Judgment Renderea S Z 201Z Appealed from the 23rd Judicial District Court In and for the Parish of Ascension State of Louisiana Case No 99 948 The Honorable Jane M Triche udge Presiding Milazzo x Michael D Singletary pelousas Louisiana Ricky L Babin District Attorney Counsel for Ylaintiff Appellant Ralph Stassi Counsel for I Appellee efendant State of Louisiana Donald D Candell Assistant District Attorney Gonzales Louisiana SEFORE GAIDRY McDONALD AND HUGHES JJ Gv 9 K d lc GAIDRY J In this case a bail bondsman appeals a ji dismissing his dgment petition to nullify several judgments of bond forfeiiture where he was not a party to the bond forfeiture proceedings and was t nc cast in judgment We affirm FACTS AND PROCEDURAL HISTORY On 1VIay 3 201 l Ralph Stassi a bail bondsman doing business in Ascension Parish filed suit agains the State of Louisiana all that the ging State had improperly secured civil judgments of bond forfeiture against him in three cases in which he had placed appearance bonds to secure the release of criminal defendants and that the State recorded those judgments in the mortgage records of Ascension Parish pursuant tu the provisions of La P Cr C art 349 Mr Stassi petition alleged the iollowing deticiencies in 4 s the bond forfeiture proceedings the State did r introduce all of the ot evidence required by La C art 349 at the Y forfeiture hearings P Cr 2 ond Mr Stassi was cast in judgment without service of process or without proof of service of proc as required by La C art 344 and in some of the ss P Cr Although Mr Stassi alleges in his petition that judgments ofband forfeiture were rendered against him it was undisputcd at the hearing of this matter and Mr Stassi admits in hi appellate brief that he was not a party to the bond forfeiture proceedings and was not cast in judgment z Louisiana Code ofi Crirninal Carticle 349 provides in pertinent part rocedure 2 Upon motion of the prosecuting attorney and upon proof ot the bail contract the power of attorney if any notice to the defendant and the suret as required by Article y 344 and the defendant sfailure to appear as required a bond shall be forfeited and a judgment of bond forfeiture shatl be signed Louisiarta Code of Procedure article 344 provides Crirninal A When a bail bond fixes an appearance date the defendant appears as ordered and natice of the next appearance date is given to the defendant no additional natice of that appearance date is required to be given to the defendant or the personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety B When a bail bond does not tix the appearance date written notice of the time date and place the defendant is first ordered by the court to appear shall be given to the defiendant or his duly appoinied a and his personal surety or the com surety or ent nercial the agcnt or bondsman who posted the bond for the a urety mmercial C If the defendant appears as ordered and the proceeding is continued to a specific date the defendant and the personal s or the commercial surety or the agent or bondsman rrety who posted the bond f the comniercial surety need not be given notice of the new or 2 I cases the notice of the signing of the judgment of bond forfeiture was not mailed as required by La P Cr C art 9 3 As a result of these deficiencies Mr Stassi asked the court to declare the judgments of bond forfeiture null A hearing was held on August 22 2011 on the State dilatory s exceptions of lack of proc capacity vaguen and ambiguity and dural ss peremptory exceptions of no right of action no cause of action and res Because Mr Stassi was never named as a defendant in th suits judicata and was not cast in judgment the court ruled that rte had no right of action appearance date If the detendant iails to appear as ordered or the proceeding is not continued to a specific date the defendant or his duly ppointed agent the personal surety or the agent or bondsman who posted the bond for the commercial surety shall be given notice of the new appearance date D Notice required pursuant to the provisions of this Article ro the defendant and the personal sureiy or the coanmercial surety or the agent or bondsman who posted the bond for the cammercial surety shall be made to the address provided pursuant to Article 322 Notice may be 1 Delivered by an officer designated by the court at leasr twn days prior to the appearance date 2 Mailed by United States first ciass mail at least five days prior to the appearance date E Failure to give the notice required by this Article relieves the surety from liability on a judgment of bond forfeiture for the nonappearance of the defendant on that particular date Louisiana Code of Criminal Procedure article 349 provides in pertinent part 3 A I After entering the fact of the signing of the judgment of bcrnd forfeiture in the court aninutes the clerk of court shall pro mail notice of the si of the judgment of iptly ning bnnd forfeiture 1 notice of the si of the judgment shall be mailed by United he ning States certified mail with return receipt affixed thereto to the defendant the personal surety the agent or bondsman who posted the bond for the coinmercial surety and the commercial surety at the addresses designated in Article 322 PJotice to the commercial surety shall include the power of attorney number used to execute the bond without which the bond obligation of the commercial surety shall be suspended until the power of attorney number is supplied provided the commercial surety provides notice to the clerk of court who mailed the notice to the surety of the failure ta inc such number in the lude notice by certified mail not later than thirty days following receipt of notice of the judgment If the power of attorney number is not provided tu the commercial surety within thirty days after the date of receipt by the clerk of court af Che nptice that it was not included in the notice of the judgment the commercial surety shall be released from the bond obligation F3 After nthe notice of the signing ofthe judgment of bond forfeiture the clerk of ailing court shall execute an affidavit of the mailing and place the affidavit and the return receipts in the record C Failure to mail notice of the signing of the judgment within sixty days after the defendant fails to appear shall release the sureties of all obligations under the bond s As noted previously herein while there is no evidence in the record buf us that Mr Stassi was not a ore party to the forfeiture proceedings and was not cast in judg Mr Stassi admitted at the hearing and in nent his appellate brief that he was not a party and was not cast in judgment in the forfeiture proceedings 3 I i to seek to nullify those judgments and dismissed his suit with pr judice Because of this ruling on the exception of no ri of actian the court ht deemed the remaining exceptions moot Mr Stassi appealed allegin that the court erred in findin that he had no right of action to seek to nullify these judgments DISCUSSION The exception raising the objection af no righ action tests whether tof the plaintiff who seeks relief is or is not the person in whose favor the law P AHow dy rem La C art 927 rd v Administrators of extends a Tulane Educ 2224 Fund 07 La 7 986 08 1 2d So 47 59 This peremptory exception is a threshold device to terrriinate a suit brought by one who has no interest in judicially enforcing the right asserted MePherson v Foster 03 p l2 La l Cir 10 889 So 2696 App q4 29 2d 282 291 The ocus in an exception of no right of action is on whether the particular plaintiff has a right to bring suit but it a that the petition ssumes states a valid caus of action for some person anci questions whether the plaintiff in the particular case is a m of th class that has a legal mber st inter in the subject matter of the litigation Taylor v Babin OS 2063 App La 1 Cir S 13 So 633 637 writ denied 09 La 09 8 3d 1285 09 25 9 18 So 76 Reese v State Dep of Pu Safety and Corr 03 3d t 1 b 15 La 2 866 So 244 246 The perernptory exception raising 04 20 2d the objection of no right of action may be raised by either the trial or appellate court on its own motion La GC art 927 P B In his first assignment of error Mr Stassi arg that the fact that the ues law requires that notice of a judgment of bond forfeiture be given to the bail bondsman who posted the bond for the comm surety in addition to the rcial notice to the rcial comm surety means that the legislature obviously 4 recognizes bail bondsmen as a class of persons th has a legal interest in t bond forfeitures and therefore it was erc for the court to find that a bail bondsman has no right of actian to seek to annul a judgment of bond forfeiture While the law does require c notices to be given to a bail rtain bondsman a review of the law regarding borad forff makes it clear that iture the legislatur did not intend for the bail bondsman to have a legal interest in annuling the judgment of bond forfeiture First the law provides that a bail bondsman who represents the surety as an insurance agent shall not be solidarily liable for a bond forfeiture against the defendant and his sureties and in the event that the bail bondsman is held solidarily liable he may request to be released from the judgment without any effect on the judgment of bond forfeiture against the defendant and his sur ties La C art P Cr C 349 Furthermore the statutes providing the procedure for attacking judgments of bond forfeiture do not reveal an intent by the legislature for these procedures to be used by bail bondsmen Louisiana Code of Criminal Procedure article 5 349 concerning annulment of judgments of bond forfeiture states that defenses and actions in nullity relating to judgments of bond forfeiture may be asserted by the defendant and his sureties no mention is made of the bail bondsman Additionally La C art 349 P Cr 6 provides For appeals from judgments of bond forfeiture by the defendant and his sureties again no mention of the bail ndsman bc Mr s Stassi argument that the legislature must have intended for a bail bondsman to have a right of action to attack a judgment of bond forfeiture simply because notice of the signing of the judgment must be sent to the bail bondsman is not persuasive wh nviewed in light of the law as a vhole 5 Mr Stassi next argues that because he executE dth bail bonds at issue in the forfeitures and because he has a contract with his commercial surety which obligates him to indemnify the surety for any forfeitur he has a s right of action to seek to nullify the judgment of forfeiture Mr Stassi cites no authority for this proposition The fact that Mr Stassi may hav contractually obligated himself to the surety this do not bestow upon him es th power to collaterally attack the judgment against the surety Given that the legislature clearly did not intend for bail bondsmen to be liable for bond forfeitures on the original bond itself Mr Stassi was not a party to the forfeiture proceedings at issue herein and Mr Stassi was not cast in I ud g ment in the bond forfeiture P roceedin g s herein J we do not find that Mr Stassi would be the party with a legal interest to seek to annul these judgments of forfeiture This assignment of error is lso without merit DECREE The judgment dismissing Mr Stassi pet with prejudice is s ition affirmed Costs of this appeal are to be borne by ap Ralph Stassi ellant AFFIRMED 6 T Nt DESIGNATED FO RPUBLICATION STATE OF LOUIS AN COURT OF APPEAL FIRST CIRCUIT 2011 CA 2264 RALPH STASSI VERSUS STATE OF LOUISIAN HUGHES J dissenting I believe that the contractual indemnification doe provide Stassi with a right to annul and that is the purpose of the statutory notification t requiremer

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