State of Minnesota, Respondent, vs. Jesse Salvidor Rosillo, Defendant, Interstate Bonding, Inc., Appellant, Minnesota Surety and Trust Company, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1563

 

State of Minnesota,

Respondent,

 

vs.

 

Jesse Salvidor Rosillo,

Defendant,

 

Interstate Bonding, Inc.,

Appellant,

 

Minnesota Surety and Trust Company,

Appellant.

 

Filed June 1, 2004

Affirmed; motion to strike granted

Kalitowski, Judge

 

Ramsey County District Court

File No. K2-99-3426

 

Mike Hatch, Attorney General, John S. Garry, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2128 (for respondent)

 

Peter D. Plunkett, Plunkett & Associates, 107 West Oakland Avenue, P.O. Box 463, Austin, MN 55912; and

 

Frank Schulte, 617 Snelling Avenue South, St. Paul, MN 55116 (for appellants)

 

            Considered and decided by Minge, Presiding Judge; Toussaint, Chief Judge; and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellants Interstate Bonding, Inc. and Minnesota Surety and Trust Company challenge the district court's denial of their petition to reinstate and discharge two bail bonds, which were issued on behalf of Jesse Salvidor Rosillo, following remand from this court.  Because the district court correctly followed this court's instructions on remand, its findings of fact are not clearly erroneous, and it properly applied the law, we affirm. 

D E C I S I O N

I.

            The district court has broad discretion in deciding whether to reinstate and discharge a forfeited bail bond.  Minn. Stat. § 629.59 (2002) (district court may forgive or reduce the penalty); Minn. R. Gen. Pract. 702(f).  This court reviews a reinstatement decision for abuse of discretion.  State v. Williams, 568 N.W.2d 885, 887 (Minn. App. 1997), review denied (Minn. Nov. 18, 1997).  We will uphold the district court's findings of fact unless they are clearly erroneous.  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999).  The applicant bears the burden of proving that reinstatement and discharge of a bail bond is justified.  In re Application of Shetsky, 239 Minn. 463, 472, 60 N.W.2d 40, 46 (1953). 

            This court previously reversed the district court's initial denial of reinstatement and remanded for reconsideration.  State v. Rosillo, 645 N.W.2d 735 (Minn. App. 2002).  As to the $25,000 bond, we ordered the district court to reassess the petition and address what, if any, prejudice may have resulted from the court administrator's failure to notify appellants that the $50,000 bond had been forfeited.  Id. at 740-41.  As to the $50,000 bond, we ordered the district court to apply the Shetsky factors in determining whether to reinstate and discharge the bond.  Id. at 740. 

            Appellants argue that the district court improperly relied on the actions of Interstate's president in finding that they suffered no prejudice from the lack of notice.  We disagree.  This court's prior decision did not limit the scope of the district court's reconsideration to only the acts of the court administrator.  Nor did the decision assume that appellants were prejudiced by the court administrator's failure to give appellants notice of the initial forfeiture.  Id.   We conclude that the district court properly followed this court's remand instructions.

            It is undisputed that the Ramsey County court administrator failed to give appellants written notice that the $50,000 bond had been forfeited, thereby violating Minn. R. Gen. Pract. 702(e).  But the district court found that appellants knew from practice that written notice might not arrive for two to four days after the forfeiture.  Rosillo was arrested and the $50,000 bond was reinstated only two days after he failed to appear for a court hearing.  Moreover, the district court found that (1) appellants undertook very little effort to determine why Rosillo had been arrested again or why his bail had been raised from $50,000 to $75,000; (2) appellants neither asked Rosillo if he had missed an appearance nor checked public records to determine if he had; and (3)  appellants relied on the promises of Rosillo's family that there would be sufficient collateral to secure the bonds, but did not take steps to obtain legal claim to that collateral before posting the bonds, leaving appellants at risk of loss when the bonds were forfeited.  All these findings are supported by the record and are not clearly erroneous.

            Finally, appellants made no effort to ensure that Rosillo appeared in court as scheduled or to keep track of his whereabouts.  In agreeing to act as a surety for a defendant, a bonding company assures the district court that the defendant will personally appear to answer the charges against him.  State v. Due, 427 N.W.2d 276, 278 (Minn. App. 1988), review denied (Minn. Sept. 28, 1988).  We agree with the district court that appellants' loss arises primarily from the fact that they failed to keep track of the defendant for whom they had posted a $50,000 bond, not from the fact that the district court administrator failed to send written notice of forfeiture within two days of that forfeiture.  As in Due, appellants here cannot "absolve [themselves] of blame when [they] did not monitor [the defendant's] appearances and thus failed to timely learn of his nonappearance."  Id.  Appellants had no reasonable expectation that they could rely solely on notice of forfeiture to keep them advised of the case status.  We thus conclude the district court did not abuse its discretion by denying appellants' petition to reinstate and discharge the $25,000 bond.

II.

            In our prior decision, this court ordered the district court to apply the Shetsky factors when reassessing the petition to reinstate the $50,000 bond.  Under Shetsky, the court should consider the following factors:  (1) the purpose of bail, the civil nature of the proceedings, and the cause, purpose, and length of the defendant's absence; (2) the good faith of the surety as measured by the fault or willfulness of the defendant; (3) the good-faith efforts of the surety to apprehend and produce the defendant; and (4) the prejudice to the state in its administration of justice.  Shetsky, 239 Minn. at 471, 60 N.W.2d at 46. 

            Appellants admit that Rosillo's behavior is clearly willful and that under Shetsky his behavior is attributable to the surety.  See id. at 474, 60 N.W.2d at 48.  But appellants argue that Rosillo's bad faith does not outweigh their good-faith efforts to try to recover him.  See State v. Storkamp, 656 N.W.2d 539, 543 (Minn. 2003) (district court abused its discretion by automatically assuming that defendant's bad faith outweighed the surety's good faith). 

            The district court did take into account appellants' good-faith efforts to locate and recover Rosillo and reinstated $4,000 of the bond as compensation for the expenses appellants showed they had incurred in those efforts.  But the record indicates that Rosillo is now in custody in Mexico, awaiting trial on charges for crimes committed in that country.  The state has had to delay Rosillo's prosecution for the past three years and it is unclear when, if ever, the state will be able to prosecute him.  We conclude that the district court did not abuse its discretion in determining that on balance the Shetsky factors weighed against reinstatement and discharge of the $50,000 bond. 

III.

            Respondent has moved this court to strike parts of appellants' reply brief and appendix.  Under Minn. R. Civ. App. P. 128.02, subd. 3, arguments contained in a reply brief must be confined to new matters raised in the respondent's brief.  New issues raised in a reply brief are not properly before this court and will not be considered.  State by Humphrey v. Ri-Mel, Inc., 417 N.W.2d 102, 110 (Minn. App. 1987), review denied (Minn. Feb. 17, 1988). 

            The specific challenges to the district court's factual findings found in appellants' reply brief were not made in their initial brief to this court.  We therefore strike the parts of the reply brief that pose challenges to individual findings of fact.  In addition, the police report appellants included in the appendix to their reply brief is not part of the district court record and must be stricken. 

Affirmed; motion to strike granted.