STATE OF NEW JERSEY v. JORGE ROJAS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5220-05T15220-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JORGE ROJAS,

Defendant,

and

FIRST COMMUNITY INSURANCE CO.,

Defendant-Appellant.

____________________________________

 

Submitted May 31, 2007 -Decided June 29, 2007

Before Judges Wefing and Yannotti.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, No. 98-10618-002.

Richard P. Blender, attorney for appellant.

Harry J. Del Plato, Essex County Counsel,

attorney for respondent (Thomas M. Bachman,

Assistant County Counsel, on the brief).

PER CURIAM

First Community Insurance Co. ("First Community") appeals from a trial court order denying its motion to vacate a bail forfeiture. After reviewing the record in light of the contentions advanced on appeal, we reverse.

In November 1998 Jorge Rojas, who had been indicted for possession of cocaine, was released from custody after posting a fifty thousand dollar surety bond issued by First Community. Rojas was scheduled to appear in court on September 20, 1999, but never appeared. A bench warrant was issued for the arrest of Rojas. Notice, however, was not provided to First Community until October 22, 2004, when the bail was forfeited.

In November 2004 First Community filed a motion to vacate the forfeiture, but on January 11, 2005, prior to that motion being heard, default judgment was entered on the forfeiture. First Community then sought to have that default judgment set aside. It appeals to us from the trial court's denial of that relief.

The applicable statute is N.J.S.A. 2A:162-5.

All recognizances of bail . . . which have been or shall be forfeited, but upon which no writ of scire facias or other process to enforce or collect the same shall have been issued and prosecuted to final judgment within a period of 6 years after the same shall have been filed and recorded in the clerk's office . . . shall, after 6 years from the date of the filing and recording of any such recognizances of bail in the clerk's office, no longer be enforceable . . . .

First Community argued to the trial court that the default judgment should be set aside because it was entered more than six years after the surety bond had been issued and recorded in the clerk's office. The county contended, on the other hand, that a cause of action to collect on the bond did not accrue until a bench warrant issued following defendant's failure to appear in November 1999. It stressed that default judgment was entered within six years of that date. The trial court rejected First Community's argument, concluding in a written opinion that the discovery rule applied and that the six-year period of limitations commenced to run on the date of forfeiture, not the date the bond was posted.

We are unable to agree with the trial court's analysis. The discovery rule "provides that in an appropriate case a cause of action will be held not to accrue until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim." Lopez v. Swyer, 62 N.J. 267, 272 (1973). We are unable to perceive how the discovery rule is applicable in the present context, when the date upon which bail was posted was a matter of record and known to all.

Under N.J.S.A. 2A:162-5, a surety's obligation on the bond it issues is finite: it is limited to a period of six years unless it is earlier discharged or forfeited. The surety's receipt of the bond premium does not extend its liability into the limitless future. Here, although defendant Rojas failed to appear shortly after the bond was issued, judgment was not entered until more than six years after the bond was posted.

There may be policy reasons why the approach urged by the county and adopted by the trial court is sound. We are not free, however, to disregard what we consider the plain language of the statute.

The order under review is reversed.

 

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A-5220-05T1

June 29, 2007