Ohio Case Laws
Click on the below to read Ohio Case Laws for the following years:
2012
2011
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Ohio Case Law 2012
In American Bonding Company, Inc. v. American Contractors Indemnity Co., 2012 WL 3638684 (S.D.Ohio August 23, 2012) a bail bond agency sued a surety insurer complaining about the use of Build Up Fund (BUF) money held by the surety. Many of the agency’s original claims had been dismissed by agreement. The court granted the surety summary judgment as to the remaining claims. The court found that in its agency agreement with a third party intermediary, the agency had consented to the conduct it now alleged was a breach of trust. The court also held that there was no private right of action for alleged breaches of obligations under Ohio R.C. §3905, et seq. governing build up funds.
In State v. Sanders, 2012 Ohio 3858 (Ohio App. August 24, 2012) affirmed denial of the surety’s motion for remission of the forfeiture. The trial court considered the appropriate factors and did not abuse its discretion. The Court noted “that the clerk waited five years to ask for the money. However, appellant waited five years to request remission.”
In State v. Cheadle, 2012 Ohio 2965 (Ohio App. June 29, 2012) the surety moved for remission of forfeiture after the defendant was recovered. The trial court summarily denied the motion without holding a hearing or giving any reasons that showed it had considered the relevant factors. The Court of Appeals reversed and remanded the matter to the trial court for a hearing, if necessary, and for evaluation of the motion using the relevant factors.
In State v. Worley, 2012 WL 424954 (Ohio App. February 1, 2012) the defendant failed to appear and the court scheduled a bond forfeiture hearing. Neither the defendant nor the surety appeared at the hearing, and the court entered judgment for the amount of the bond. A week later, the surety moved to set aside the judgment and for discharge because the defendant’s failure to appear was explained by the fact that he had been and remained incarcerated in another county. The State secured the defendant’s return, and he pled guilty and was sentenced. The trial court denied the surety’s motion to set aside the judgment, and the surety appealed. The Court recognized that incarceration in another county would, if properly presented, have constituted a defense, but the surety did not explain its failure to appear at the forfeiture hearing or meet the requirements of Civ. Rule 60(B) for relief from the judgment. The fact that the surety may have had a meritorious defense did not justify its failure to appear and assert that defense. The Court thought that the surety’s disregard for the judicial system was not excusable neglect justifying relief from the judgment.
Ohio Case Law 2011
In State v. McQuay, 2011 Ohio 6709, Appellate No. 24673 (Ohio App. December 23, 2011) the defendant failed to appear and the bond was forfeited. The surety recovered the defendant a few weeks later and moved for remission of the bond. The trial court denied the surety’s motion on the ground that the forfeiture had been properly entered pursuant to R.C. 2937.36. The surety appealed and argued that the issue was not the initial forfeiture under R.C. 2937.36 but rather whether it was entitled to remission of that forfeiture pursuant to R.C. 2937.39. The Court of Appeals held that the trial court failed to consider the relevant factors, including the circumstances of the defendant’s recovery, the State’s inconvenience, expense and delay, and willfulness of the bond violation. The Court reversed the judgment and remanded for further proceedings. The Court directed that on remand the trial court “should exercise its discretion by evaluation Craven’s motion in light of the factors this court identified in Delgado.” [State v. Delgado, 2004 WL 41404 (Ohio App. January 9, 2004).]
Sylvester v. User Friendly Phone Book, 2011 WL 6740710 (Ohio App. December 19, 2011) was a suit between two bail agents over money due for bonds in three Ohio counties and alleged breach of a settlement agreement. The court discussed the parties’ contentions as to the amounts actually collected on the bonds. The parties acknowledged that the required 10% premium was often not charged, and the Court held that the trial court erred in basing damages on 5% of the face amount of the bonds instead of requiring proof of the actual amount collected.
In Department of Liquor v. Calvert, 2011 WL 4357206 (Ohio App. September 2, 2011) the surety appealed from a judgment that the “bondperson to pay in bond [within] 30 days.” The Court found that the appeal was timely because the appeal period ran from the judgment not from the earlier date on which the bond was forfeited. The Court also thought that although the trial court did not strictly comply with the time periods for notice to the surety, there was no showing of prejudice to the surety from the deficient notice and therefore no reversible error. However, the Court reversed the judgment because it did not state the dollar amount to be paid. The Court remanded the case for entry of a judgment consistent with the decision, i.e. a judgment for a specific amount up to the bond penalty.
In City of North Olmstead v. Ness, 2011 Ohio 3076 (Ohio App. June 23, 2011) the defendant failed to appear, and the trial court forfeited the bond. The court, however, did not follow the procedure required by R.C. 2937.36(C). It did not issue a rule to show cause or give the surety at least 20 days to produce the defendant or otherwise show cause why the bond should not be defaulted. The Court of Appeals vacated forfeiture of the bond and entered judgment for the surety.
In State v. Kondush, Case No. 95526 (Ohio App. April 21, 2011) the defendant was convicted at trial and referred for a presentence report. The trial court continued the bond, but directed that the surety be notified to see if it objected. The same day the surety filed a motion for relief from liability based on changed circumstances. The surety argued that the alien defendant’s conviction gave him a greater incentive to flee. When the defendant failed to appear, the court forfeited the bond. Eventually, the court entered judgment on the bond over the objections of the surety. The surety filed a series of motions for relief from liability, each of which the court denied but granted a stay of execution. Finally, the court denied the last motion and refused any further stay. The surety paid the judgment and appealed.
The State argued that the appeal was not timely because the surety should have appealed within 30 days from the original entry of the judgment or, at the latest, an earlier denial of the surety’s motion for relief from the judgment. The Court held that to start the 30 day appeal period the trial court had to comply with Civil Rule 58(B) by sending the parties notice of the judgment. Since that was not done, the surety’s appeal was timely. On the merits, the Court held that the trial court abused its discretion by denying the surety relief. The surety timely objected to continuing the bond after the defendant’s conviction and pointed out the increased risk.
In American Bonding Company, Inc. v. American Contractors Indemnity Co., 2011 WL 1043946 (S.D.Ohio March 18, 2011) a bail bond agency sued an insurer with whom it had no direct contract. The agency alleged fraud, breach of trust, RICO, and similar claims based on the insurer’s payment of money from a build up fund to Roche Surety, Inc., with whom both the insurer and the agent allegedly had contracts. The insurer moved to dismiss the complaint for lack of jurisdiction, failure to state a claim and res judicata. The insurer argued that the same issues were being litigated in an action filed in Florida by Roche against the agent. The court noted that Roche was not a party to this action and the insurer was not a party to the Florida action and held that the Florida action did not deprive the court of jurisdiction pursuant to the first to file “jurisdictional priority” rule. The court also held that a partial summary judgment in the Florida case was not a final judgment upon which the insurer could base a res judicata argument. Finally, the court found that the insurer had not supported its failure to state a claim argument. The court denied the motion to dismiss.
In State v. Hicks, 2011 Ohio 1184 (Ohio App. March 9, 2011) after the defendant was indicted a summons was issued but not served on the defendant, apparently because no one came to the door at the address he had provided. The return on the summons was not filed until a year and a half later. The defendant did not appear and a rule to show cause was issued. The surety asked for and was granted a continuance. The record showed that the surety appeared at the continued hearing (although he disputed that) and was granted more time to locate the defendant with the hearing again continued. At the new hearing neither the defendant nor the surety appeared, and the court entered judgment forfeiting the bond. The surety did not appeal the judgment but later moved to vacate it. The trial court denied the motion, and the surety appealed.
The Court of Appeals treated the motion to vacate as a Civil Rule 60(b) motion for relief from judgment. The Court noted that it could refuse to hear the appeal as it was an untimely attempt to appeal from the judgment but nevertheless considered the merits of the surety’s arguments because the record showed various problems and delays with service or notices. The surety, however, failed to establish excusable neglect even if he did not appear at the hearing on the Rule to Show Cause, and there was a just basis for finding that the defendant failed to appear in spite of the failure to serve him with the summons. Service was attempted at the address the defendant had provided the trial court. The Court thought that it was the surety’s duty to keep track of the defendant. The Court stated, “Appellant may not rely on the trial court’s inability to serve the indictment, where this failure is the result of Appellant’s failure to maintain Hicks within the jurisdiction of the trial court.”
In State v. Barnes, Case No. S-10-025 (Ohio App. February 18, 2011) the defendant was uncooperative and the surety filed an Affidavit with the court asking to be released from the bond. The surety did not surrender the defendant or request a warrant for his arrest. The court denied the surety’s request. The defendant was late for one trial date and asked for a postponement at another to retain an attorney. The court thought he was “obstructionist.” The court revoked the bond and remanded the defendant to jail. After he retained new counsel, the court reinstated the bond and released the defendant. The defendant failed to appear for trial on February 18, 2010. The court issued a warrant and notified the surety to produce the defendant by March 1, 2010, or the bond would be forfeited. The surety did not appear on March 1 and the trial court entered judgment on the bond. The surety appealed and made three arguments. First, the trial court erred in denying the surety’s request to surrender the defendant. Second, the trial court erred in reinstating the bond after it had been revoked. Third, the trial court failed to give the required minimum 20 day notice of the show cause hearing. The Court of Appeals rejected each argument and affirmed the judgment as within the trial court’s discretion.
The surety did not follow the statutory requirements to surrender the defendant. The defendant was not produced in open court, and the surety did not request a warrant so that the sheriff could arrest him. The Court thought that the bond remained in effect and could be reinstated because there had been no verdict or plea and no forfeiture of the bond. The Court effectively ignored the trial court’s revocation of the bond. Finally, the Court admitted that the surety was given less than the required 20 days notice of the show cause hearing, but thought that the surety did not show prejudice from the lack of notice and, in fact, complained about the form of the notice, which did not state that a hearing would be held, rather than the timing. The Court thought that precedent supported the adequacy of a hearing notice that did not actually state a hearing would be held.
Ohio Case Law 2010
In Miller v. Reid, Case No. 96110 (Ohio App. December 28, 2010) the defendant was released on a $2,500 bond. She left two “vulgar, profanity laced” voice mails for the detective handling the case. The court increased her bond to $25,000 and she challenged the increase via a petition for habeas corpus. The Court held that the U.S. and Ohio Constitutions protected against excessive bail and that a petition for habeas corpus was a method to challenge excessive bail. The trial court observed the defendant’s demeanor, however, and considered a civil protective order issued against her as well as the voice mails. The Court held that the trial court acted within its discretion in setting the increased bail.
In State v. Slider, 2010 WL 4949486 (Ohio App. November 22, 2010) a judgment was originally entered against the employee of the bail agency. In an earlier appeal the Court remanded the case, and on remand the judgment was modified to name the bail bond agency and the surety rather than the individual employee. The agency and surety appealed. The Court held that the trial court had jurisdiction on remand to correct the judgment to name the proper parties, and that the failure to include the trial court’s denial of remission in the first appeal made it final and not subject to reconsideration on remand.
In State v. Huffman, 2010 WL 4027670 (Ohio App. October 15, 2010) the defendant failed to appear and the clerk failed to mail notice of a hearing for the surety to show cause why the bond should not be forfeited. Nevertheless, the trial court held several hearings and the surety was present for each of them. The defendant was arrested in another state, and the trial court entered judgment on the bond in the amount of the Sheriff’s expenses in returning the defendant to custody. The surety filed a motion for reconsideration and an appeal. The Court of Appeals held that failure to send the statutory notice of the hearings did not prejudice the surety because she had actual notice and appeared at each hearing. The Court also noted that the record did not support the surety’s contention that she had paid the costs of returning the defendant in another court and held that her motion for reconsideration of the final judgment could not be considered because she should have filed a motion for relief from the final judgment and her motion was not supported by sworn evidence that would allow the Court to treat it as a motion for relief from judgment. Nothing in the record supported the surety’s contention that the case had been before a municipal court or that she had paid the Sheriff’s costs. The Court affirmed the judgment.
In Robb v. Hudson, 2010 WL 3910305 (S.D.Ohio October 5, 2010) several employees of a bail bond agency sued the Commissioner of Insurance and other officials arguing that statutes, regulations or rules restricting the solicitation of bail bond business in courts or jails were unconstitutional. The Insurance Department had initiated administrative proceedings to revoke the license of the owner of the bail bond agency for violating the solicitation restrictions. The court found that the administrative proceedings, and any appeal from an adverse finding, provided an adequate opportunity to vindicate the constitutional rights involved. The court stayed the case pursuant to Younger v. Harris to avoid interference with the ongoing state proceeding.
In City of Toledo v. Gaston, 2010 WL 2698274 (Ohio App. July 9, 2010) the defendant failed to appear, and at a bond forfeiture hearing the court ordered that the bond be paid within 30 days. The defendant was arrested through the surety’s efforts before the 30 day period expired, but the defendant was again released pursuant to a federal court order related to jail overcrowding. At her next appearance, the court ordered the “bond continued” and set a new trial date. The existing bond forfeiture and payment order were vacated due to the fact that the defendant was returned to custody. The defendant did not appear on the new trial date and has not been recovered. The bond was again forfeited and judgment entered, and the surety’s motion for relief from judgment or for remission was denied.
On appeal the surety argued that the defendant was returned to custody and released on another bond. The court found that the release was due to the federal court overcrowding order not another bond. The court denied the surety’s request for relief but found that its decision conflicted with State v. Hancock , 2006 WL 827386 (Ohio App. March 31, 2006) and certified the following issue to the Ohio Supreme Court: “Whether, pursuant to R.C. 2937.40(A)(3), a trial court may vacate an R.C. 2937.36(C) judgment of forfeiture of a surety bond posted as bail under Crim.R. 46 at any time prior to payment of the forfeiture judgment and continue obligations of the surety under the bond pursuant to Crim.R. 46(H) with respect to the future appearance of the defendant.”
In City of Youngstown v. Durrett, 2010 WL 1208300 (Ohio App. March 26, 2010) the defendant failed to appear but was rearrested a few days later. The trial court denied the surety any relief even though by the time of the show cause hearing the defendant had pled guilty and been sentenced. The trial court’s reason was that the surety had not contributed to the re-arrest, which occurred the day after the surety was notified of the failure to appear. The Court of Appeals reversed and ordered full remission of the forfeiture. The Court reviewed the factors considered for remission and found that under the facts the trial court abused its discretion.
In Huntington National Bank v. Lomaz, 2010 WL 702439 (Ohio App. February 26, 2010) a judgment creditor recorded its judgment and sought to foreclose on real property owned by the defendants. The defendants appealed and posted a $92,500 supersedeas bond. The bond was obtained from an agent who used a $50,000 power of attorney for bail bonds and secured the balance with property allegedly owned by the agent. The appeal was eventually dismissed, and after several hearings the trial court entered judgment against the agent and surety, jointly and severally, for $50,000 and against the agent for the balance of the bond amount. On appeal, the agent and surety raised several procedural issues. They also argued that the judgment was not affirmed and, since the property was sold there were no damages to collect from the bond. The surety argued that the power of attorney showed on its face that it was only for bail bonds and the agent had no actual or apparent authority to bind the surety to a supersedeas bond.
The Court rejected each argument and affirmed the judgment. In the trial court the surety and agent were represented by the same attorney (apparently the agent’s attorney) and the surety did not raise the power of attorney issue. The Court held that the plain error doctrine did not allow the surety to raise the issue for the first time on appeal. The Court also thought that the agent prepared the bond and the principal got the benefit of the bond by delaying the foreclosure, so any technical defects in the bond were chargeable to the agent not the innocent judgment creditor. The judgment creditor presented evidence of its damages from the delay caused by the appeal, and the agent did not attack this evidence before the trial court. As such, he waived any objection to it on appeal. The surety and agent had an opportunity to present their evidence and arguments in the trial court and did not raise their various procedural objections there. They could not be raised for the first time on appeal.
Ohio Case Law 2009
In State v. Gaskins, 2009 WL 50128 (Ohio App. January 9, 2009) the defendant failed to appear and the bonds were forfeited. After several extensions of time to pay the forfeiture, the surety moved to vacate the forfeiture because its agents had located the defendant in another state and turned her over to law enforcement authorities to hold pending extradition. The trial court denied the notion, and the surety appealed. The Court of Appeals treated the motion as one for remission of penalty pursuant to R.C. 2937.39. The Court held that the trial court did not abuse its discretion. The defendant was not, in fact, returned to custody, and the State was going to incur costs to extradite her and transport her back to Ohio. The trial court recited the correct legal standard and the factors to be considered, and although it did not explain its decision applying the factors, the record was sufficient to hold that there was no abuse of discretion.
In State v. Jackson, 2009 WL 282612 (Ohio App. February 6, 2009) the defendant was arrested on other charges two days after he failed to appear and before the surety received notice of the forfeiture. He pled guilty to the charge in the case on which he had been released on bond. The surety filed a motion for release of the bond. The court denied the motion without any explanation and ordered the bond forfeited. The Court of Appeals reviewed the factors a trial court is supposed to consider in determining whether to remit some or all of a bond forfeiture. Since in this case the trial court gave no indication it considered any of the factors, its decision was arbitrary and an abuse of discretion. The Court reversed the judgment of forfeiture and remanded the case for further consideration. The Court also rejected the surety’s argument that once the defendant pled guilty the court lost authority to declare a forfeiture for the pre-existing failure to appear.
In each of State v. Holmes, 2009 WL 582578 (Ohio App. March 4, 2009), State v. Scott, 2009 WL 582582 (Ohio App. March 4, 2009) and State v. Thomas, 2009 WL 582584 (Ohio App. March 4, 2009) the defendant failed to appear in 2001 and the bonds were forfeited. In each case the defendant was re-arrested in fairly short order, but the surety waited six years to move for remission of the forfeiture. The trial court denied the motions and the Court of Appeals affirmed. The Court held that the burden was on the surety to prove that it was entitled to remission, the surety’s evidence was vague and showed little monitoring or recovery efforts, and the court could consider the long delay in seeking remission. In each case the Court held that the trial court did not abuse its discretion and affirmed denial of the surety’s motion.
In State v. Sinkfield, 2009 WL 582760 (Ohio App. March 4, 2009) the defendant was only charged with traffic offenses but completely disregarded his obligations to appear in court. From the record, it seemed he never appeared voluntarily and repeatedly had to be re-arrested. The Court held that the trial court could consider the “cavalier attitude” of the surety’s agent toward the likelihood that the defendant would fail to appear. The agent admitted that he know the defendant had a history of not appearing, but he was in the area and could easily be recovered. The trial court denied remission to discourage bail bond companies from posting bonds without adequately investigating the principals, and the Court of Appeals affirmed.
In State v. Williams, 2009 WL 641339 (Ohio App. March 13, 2009) the defendant failed to appear and a show cause hearing was set. The defendant was arrested the day before the show cause hearing and was present in court for the hearing. The court nevertheless forfeited the bond. The surety appealed, and the Court of Appeals held that the bond can not be forfeited if the defendant appears at the show cause hearing. The Court reversed the trial court and directed remission of the bond amount to the surety.
In State v. Call, 2009 WL 806583 (Ohio App. March 20, 2009) the defendant failed to appear for trial. The court held a show cause hearing and ordered forfeiture of the bond. After the hearing the surety located the defendant in another state and apprehended him. The surety was ready to transport him back to Ohio, but the law enforcement authorities of the other state kept him for formal extradition. The surety moved for relief from the forfeiture. The trial court denied the surety’s motion without holding a hearing or explaining its decision and the surety appealed. The Court of Appeals held that the surety did not have a statutory right to exoneration because it did not return the defendant prior to the show cause hearing but that it did have a right to a reasoned decision on its request for remission. The Court vacated the judgment and remanded the case for the trial court to consider a number of factors in exercising its discretion whether to grant remission.
In State v. Slider, 2009 WL 2521203 (Ohio App. August 12, 2009) the defendant failed to appear and the trial court revoked the bond, issued a warrant and scheduled a forfeiture hearing. The hearing was held on September 3, 2008, which was 22 days after the court mailed notice of the hearing. The surety requested that it be given more time to recover the defendant, but the trial court denied the request and forfeited the bond. The trial court apparently treated the bail agency’s employee who signed the bond as the surety and entered judgment against him personally. On September 7 the defendant was arrested in Michigan and promptly returned to Ohio. The trial court denied the surety’s motion for release and the surety appealed.
The Court of Appeals held that the trial court’s order to “revoke” the bond meant to forfeit the bond not release the surety and that the hearing 22 days after the notice was mailed complied with the statutory requirement that the hearing be not less than 20 nor more than 30 days after notice. The Court refused to read into the statute the civil rule granting an extra three days when notices are mailed. The Court also rejected the argument that the trial court should have granted remission of all or part of the forfeiture. The surety did not move for remission or present the trial court with evidence on the factors to be considered in connection with a motion for remission. The surety’s motion was for release of the bond, and it did not appeal the court’s denial of that relief. The Court also held that the trial court did not err in refusing to grant the surety additional time. At the hearing the surety did not present facts to support such an extension. The fact that the defendant was arrested in another state four days later was not a basis to question the trial court’s exercise of its discretion on the facts then before it. Finally, the Court held that the personal judgment against the employee of the bail agency who signed the bond “Richard Mayle with American Contractors Indemnity Co.” should be vacated and the case remanded because the record was ambiguous. Under Ohio law, an attorney in fact signing for a principal is not personally liable unless he agrees to be personally responsible for the debt, and here the trial court needed to hear extrinsic evidence to resolve the facial ambiguity as to the intent of the agent in signing the bond.
In State v. Crosby, 2009 WL 2991129 (Ohio App. September 21, 2009) the defendant pled guilty but failed to appear for sentencing. The court declared a forfeiture and scheduled a show cause hearing. Before the date set for the hearing, the defendant was arrested and held without bond in the county jail. Neither he nor the surety, his mother, appeared at the show cause hearing. The Judge was aware the defendant was in the county jail but entered judgment forfeiting the bond anyway. The court granted the surety’s motion to set aside the forfeiture, and the State appealed. The Court of Appeals held that relief from judgment under Civil Rule 60(B) was a separate remedy from statutory remission of a forfeiture, and the existence of the statutory remedy did not foreclose use of the Rule. The Court also held that because the defendant was incarcerated and available to the court on the day of the show cause hearing it was error to enter judgment on the bond. The trial court correctly set the judgment aside.
In City of Toledo v. Floyd, 2009 WL 3325384 (Ohio App. October 16, 2009) the defendant failed to appear and notice was mailed to the defendant and surety setting a bond forfeiture hearing. The defendant was re-arrested by law enforcement the same day the notices were mailed, and the defendant and surety both appeared at the forfeiture hearing. The trial court nevertheless forfeited the bonds because law enforcement officers, rather than the surety, had produced the defendant. The surety appealed and argued the forfeiture hearing was only 14 days after notice, as opposed to the statutory minimum of 20 days, and the defendant was present at the hearing. The Court rejected the first argument because the surety was not prejudiced by the short notice but reversed the judgments on the second ground. The purpose of bail is the appearance of the defendant, and if the defendant appears at the hearing that purpose is served without regard to who recovered him.In City of Toledo v. Hunter, 2009 WL 5174179 (Ohio App. December 31, 2009) the defendant failed to appear and the court set a date for a show cause hearing on forfeiture of the bond. The police arrested the defendant prior to the date for the hearing, but the trial court nevertheless refused to vacate the forfeiture and ordered payment of the bond amount. The surety appealed, and the Court of Appeals reversed. The Court held that entry of forfeiture when the defendant was in custody or had appeared before the date of the show cause hearing was an abuse of discretion.
Ohio Case Law 2008
In State v. Bryson, 2008 WL 188118 (Ohio App. January 22, 2008) the defendant was released on an unsecured bond. When she failed to appear for a pretrial hearing, the court issued a warrant and scheduled a hearing on forfeiture of the bond. The court subsequently changed the scheduled hearing to an earlier date, but there was no evidence the defendant was informed of the change. She did not appear, and the bond was forfeited. She was arrested two weeks later and entered a guilty plea. She appealed the trial court’s forfeiture of the bond. The Court of Appeals noted the re-scheduled hearing date, the brief time before the defendant was arrested, and the lack of prejudice to the State. The Court held that justice clearly did not require forfeiture of the bond amount and vacated the trial court’s order.
In State v. Hopings, 2008 WL 303141 (Ohio App. February 1, 2008) the defendant was sentenced but his surrender postponed for a month with his bail continued. He failed to surrender to serve his sentence, and the court forfeited the bond. The surety appealed arguing that the court lost jurisdiction to forfeit the bond once it sentenced the defendant. The Court disagreed and held that Ohio Criminal Rule 46(H) vested the trial court with discretion to continue the bond after sentencing.
In State v. Miller, 2008 WL 314936 (Ohio App. February 1, 2008) the defendant failed to appear and the court granted the surety two continuances to produce him. After expiration of the second period, the court entered an order forfeiting the bond, entering judgment on the bond, and ordering execution of the judgment against the defendant and the sureties. The sureties appealed on the ground that they were entitled by statute to a notice and opportunity to show cause why judgment should not be entered against them. The three judges of the Court of Appeals panel each had a different evaluation of the issue. One judge agreed with State v. Martin, 2007 WL 2164151 (Ohio App. July 27, 2007) which addressed the same legal issue and applied a no harm no foul analysis to uphold the judgment (by a 2 to 1 vote). Another judge disagreed with the result in State v. Martin but thought that since the State v. Martin decided the issue that decision was binding. Those two judges, therefore, affirmed the trial court. The third judge disagreed and dissented for the same reasons stated by the dissenting judge in the State v. Martin case.
State v. Yount, 2008 WL 697704 (Ohio App. March 14, 2008) held that the trial court abused its discretion in denying the surety’s motion for relief from a judgment forfeiting the bond. The defendant failed to appear, and the court issued a warrant and a rule to show cause requiring the defendant and surety to appear and show why judgment should not be entered on the bond. Neither the defendant nor the surety appeared, and judgment was entered against them. The surety moved for relief from the judgment on the ground that the defendant had been incarcerated in another county on the date he failed to appear. The trial court denied relief because the surety presented only hearsay evidence that the defendant was in jail and the surety failed to establish excusable neglect in not appearing at the show cause hearing. The surety appealed. The Court of Appeals held that the surety needed only to allege a meritorious defense to obtain relief from the judgment not prove the validity of that defense and that the surety’s failure to appear at the show cause hearing did not exhibit a complete disregard for the judicial system or the State and so was excusable. The hearsay evidence was sufficient support for the alleged defense, and the surety’s actions to advise the authorities of the defendant’s location justified not appearing at the hearing.
State v. Ramey, 2008 WL 2586753 (Ohio App. June 30, 2008) reversed the trial court’s judgment forfeiting the bond. The defendant failed to appear and the court forfeited the bond and scheduled a show cause hearing for a date that was between 20 and 30 days from the date the notice was mailed. Without notice, the court changed the hearing date to a date less than 20 days from the mailing of the notice and at the hearing ordered full payment of the bond. The defendant was arrested by law enforcement authorities, and the surety moved for remission of the forfeiture, but the court denied the motion because of the court’s “normal policy.” The surety appealed and the Court of Appeals held that the trial court’s refusal to set aside the judgment was an abuse of discretion for three reasons: (1) the record did not show the surety was advised of the re-scheduled hearing date, (2) the re-scheduled date did not give the surety the statutory minimum of 20 days notice, and (3) denial of the motion based on the court’s “normal policy” rather than after consideration of the factors required by the law.
In State v. Tucker, 2008 WL 2635518 (Ohio App. July 7, 2008) the defendant failed to appear and the court scheduled a forfeiture hearing. At the surety’s request the hearing was continued, and the surety recovered the defendant prior to the continued hearing. The court nevertheless forfeited the bond and ordered remission of 50%. The Court of Appeals held that when the surety returned the defendant to custody prior to the continued hearing, the trial court lost the ability to forfeit the bond.
Ohio Case Law 2007
In State v. Martin, 2007 WL 2164151 (Ohio App. July 27, 2007) the defendant failed to appear and the court notified the surety that the bond would be forfeited if the defendant did not appear by June 15. On May 11 the court telephoned the bail agent and told him to produce the defendant by June 16 or face forfeiture of the bond. On May 17, the bail agent appeared before the court to request more time. On June 19 the court entered an order that both forfeited the bail and entered judgment against the surety. The court did not comply with the notice requirement of Ohio R.C. §2937.36(C) which provides that upon forfeiture the clerk shall send the surety by mail a notice to show cause, on a date at least 20 and not more than 30 days from the date the notice is mailed, why judgment should not be entered against the surety.
In a 2 to 1 decision, the Court of Appeals adopted a “no harm no foul” reading of the statute. Because the bail agent knew the defendant had not appeared and that a forfeiture would be entered, he could have presented any reasons he had why judgment should not have been entered. The Court relied on State v. Ward, 372 N.E.2d 586 (Ohio 1978) in which the Ohio Supreme Court affirmed use of a conditional judgment in which the judgment was entered before the notice but provided that it would become final in 20 days if the surety did not produce the defendant.
The dissenting judge pointed out that the statute gives the surety a right to written notice and an opportunity to show cause why a judgment should not be entered against it after the bail is forfeited. The surety is entitled to 20 to 30 days after notice of forfeiture to produce the defendant or otherwise show cause, and the procedure sanctioned by the majority deprived the surety of that opportunity by combining forfeiture of the bail and entry of final judgment against the surety in one order. The dissent pointed out that unlike the Ward case, here there was no conditional judgment that did not become final if the surety produced the defendant.
In State v. Munn, 2007 WL 2430091 (Ohio App. August 27, 2007) the defendant failed to appear but the bail agent recovered him within 60 days. The trial court followed a Stark County Local Rule and remitted 25% of the bond. The Court of Appeals recognized that the case law requires consideration of a series of factors and the exercise of discretion by the trial court, but in this case the surety’s attorney did not argue to the trial court that it should go beyond the Local Rule or that it should consider the various factors and exercise discretion. In effect, the surety in the trial court acquiesced in application of the Rule and did not preserve for appeal its argument that the trial court erred in considering nothing beyond the Rule. The Court thus affirmed the trial court’s judgment on a procedural point, but the opinion at least suggests that in a proper case the Court might find that blind adherence to the Local Rule is incompatible with the trial court’s duty to exercise discretion.
In East Liverpool v. Stith, 2007 WL 2582593 (Ohio App. September 5, 2007) the defendant pled no contest and was sentenced to 30 days in jail and unsupervised probation. The court continued his bond until he “begins jail sentence.” He failed to appear to serve his sentence, and the court forfeited the bond. The surety argued that the trial court lost jurisdiction when it sentenced the defendant to probation, which started immediately, and that the court could not condition the bond on appearance anywhere but in court. The Court of Appeals rejected both arguments. It held that the trial court had jurisdiction over the defendant and could continue his bond until he began serving his sentence and that under Ohio R.C. 2937.35 and Criminal Rule 46 a bail bond can be conditioned on things other than appearance.
Ohio Case Law 2006
In State v. Johnson, 2006 WL 235042 (Ohio App. January 27, 2006) the defendant failed to appear for sentencing on March 28, 2005, and the court forfeited his bond and ordered the defendant and the surety to appear on April 25 to show cause why judgment should not be entered on the bond. This had the effect of giving the defendant until April 25 to appear and giving the surety until April 25 to produce the defendant. On April 19 the defendant’s lawyer filed a motion to continue the sentencing date because the defendant was allegedly shot on April 16 and was incapacitated in a hospital. On May 6 the court entered judgment on the bond.
On appeal, the surety argued that the motion told the state where to find the defendant, and the state should have arrested him. The court held that the state was not subject to estoppel, the theory advanced by the surety, but that the information in the motion filed by the defendant’s attorney, if true, was a basis for a finding of good cause for the inability of the surety to exonerate the bond by producing the defendant in court on or before the show cause hearing on April 25. The court reversed the judgment and remanded the case. The court rejected the surety’s other argument that a subsequent bond replaced its bond, and held that the second bond was additional security not a replacement.
In Smith v. Leis, 2006 WL 256733 (Ohio App. February 3, 2006) the defendant was convicted of various felonies but the Court of Appeals reversed the conviction because the anonymous tip that led to a search of the defendant’s car was not sufficiently reliable. The State appealed to the Ohio Supreme Court. The issue, raised by the defendant through a habeas corpus petition, was his release on bail during the State’s appeal. The trial court set bail at “$500,000 no 10%.” The Court of Appeals initially reduced it to $50,000 but in this decision on reconsideration held that the defendant had to be released on his own recognizance. Ohio Criminal Rule 12(K) would have required such a release if the trial court had suppressed the evidence and the State appealed to the Court of Appeals. In this case, of course, the trial court convicted the defendant and the Court of Appeals suppressed the evidence. The majority thought the situation was analogous and the defendant had to be released. The dissenting Judge disagreed and would have stuck with the $50,000 bail set before reconsideration. The case discusses the bail options available under Ohio Criminal Rule 46 and how the trial courts should use them.
State v. Thornton, 2006 WL 401594 (Ohio App. February 17, 2006) reversed and remanded the trial court’s order remitting only 40% of the bond forfeiture. The defendant failed to appear during his trial but was convicted. The surety located him less than a month later and had the police arrest him. The state made no showing of delay or expense other than the police making the arrest. The trial court thought that the surety made an inadequate investigation of his background and the likelihood he would appear before it wrote the bond. The Court of Appeals held that under the circumstances it was an abuse of discretion to forfeit 60% of the bond.
In State v. Hancock, 2006 WL 827386 (Ohio App. March 31, 2006) the defendant failed to appear and the bond was forfeited. The defendant appeared before the hearing to show cause, however, and the court reinstated the bond without notice to the surety or the surety’s consent. The defendant eventually pled guilty but did not appear for sentencing. The trial court forfeited the bond and in due course entered judgment against the surety. The Court of Appeals vacated the judgment because Ohio law permits forfeiture of bonds and remission of forfeitures, but it does not permit reinstatement of a forfeited bond. Once the bond is forfeited, if the defendant appears the court must require a new bond and consider remission of the forfeiture. In this case, the bond was forfeited the first time the defendant failed to appear, and on remand the trial court was directed to consider remission of that initial forfeiture.
In State v. Hein, 2006 WL 1541036 (Ohio App. June 7, 2006) the court dismissed the surety’s appeal for lack of jurisdiction. When the defendant failed to appear, the trial court noted, “Surety bonds posted to be forfeited” and the clerk sent the surety a letter stating that the bond had been forfeited, but the court never actually ordered forfeiture. The surety moved to vacate the non-existent forfeiture, and the trial court denied the motion. Nevertheless, the Court of Appeals found no actual forfeiture order in the records and therefore no final judgment from which an appeal could lie.
State v. Johnson, 2006 WL 1791262 (Ohio App. June 30, 2006) is a roadmap of how not to seek remission of a bond forfeiture in Ohio. The defendant failed to appear and the court revoked the bond, issued a bench warrant, and scheduled a forfeiture hearing. At the hearing a representative of the surety appeared but the bond was forfeited. A month later, the surety filed a “Notice of Surrender and Motion to Vacate Bail Bond Forfeiture.” The court denied the motion but granted the surety leave to file a motion for remission of the bond. Instead of following the court’s suggestion, the surety filed a “Supplemental Brief in Support of Motion to Vacate Bail Bond Forfeiture.” The court construed this as a duplicate of the motion it had already denied and refused to rule on it. The surety appealed from that order. The Court of Appeals held that there was no timely appeal from either the forfeiture order or denial of the motion to vacate the forfeiture order. Even if the refusal to rule on the “Supplemental Brief” were considered an order, it would be denial of reconsideration after a final judgment was entered, and the trial court had no jurisdiction to reconsider its final judgment. Any decision on such a motion would be a nullity. The Court dismissed the appeal.
State v. Smith, 2006 WL 2574582 (Ohio App. September 1, 2006) affirmed the trial court’s refusal to remit any part of the bond forfeiture even though the surety had recovered the defendant some eight months after he fled during trial. The court first determined that the appeal was timely even though the surety failed to appeal the forfeiture or denial of its first motion for remission. The Court held that Civil Rule 58 applied to the bond forfeiture and required that the surety be given notice of entry of the judgment in order to make the judgment final and appealable. Since the notice was not given, the earlier judgments were not final. On the merits of the appeal, however, the trial court considered the proper factors and was within its discretion in denying any remission. The Court mentioned that the defendant had been in jail for five months and paid only $3,000 of the $5,000 bond premium as evidence that the surety did not act responsibly in writing the bond.
Ohio Case Law 2005
In City of Willoughby v. Beckwith, 2005 WL 880220 (Ohio App. April 15, 2005) the surety filed a motion to vacate forfeiture of its bond and a motion for reconsideration of the denial of the motion to vacate. It then appealed denial of the motion for reconsideration. The Court dismissed the appeal on the grounds that the surety could have appealed the original order of forfeiture or the order denying its motion to vacate the forfeiture, but that a motion for reconsideration of a final order, and any decision on such a motion, are nullities from which no appeal can be taken. Therefore, the appeal was untimely and was dismissed.
Castle Bail Bonds, Inc. v. Stoneman, 2005 WL 1005276 (Ohio App. April 28, 2005) affirmed summary judgment for the surety against the indemnitors (the parents of the defendant) based on a promissory note and indemnity agreement they signed. The court rejected the indemnitors’ argument that they should not be liable because they did not read what they signed or no one explained it to them.
State v. Sheldon, 2005 WL 1283681 (Ohio App. May 27, 2005) held that a bail bond can be revoked for violation of conditions other than appearance, but that a forfeiture could be entered only if the defendant failed to appear. The defendant’s presence at the hearing to show cause why the bond should not be forfeited prevented the trail court from entering a partial forfeiture, and the trial court’s judgment was reversed.
State v. Stoneman, 2005 WL 1384662 (Ohio App. June 9, 2005) denied the surety’s motion to remit all or part of the bond forfeiture. The defendant fled, and the surety was unable to recover him in spite of several time extensions. After the bond was forfeited, the defendant was captured by law enforcement authorities in Canada and returned to Ohio. The court refused to remit any part of the forfeiture and held that the surety’s small expense in trying to locate the defendant weighed against the major, successful efforts of law enforcement personnel fully justified the trail court’s denial of any remittitur.
Smith v. Leis, 835 N.E.2d 5 (Ohio 2005) held that cash only bail violated the provision of the Ohio Constitution guarantying that “all persons shall be bailable by sufficient sureties . . . .” Prior to 1998, the Court had held in several cases that the sufficient sureties clause barred cash only bail, but in 1998 the Constitution was amended, and the issue before the Court was whether the amendments changed that result. In a 4-3 decision, the Court held that it did not. The purpose of the amendment was to allow pre-trial detention, under certain circumstances, of defendants charged with less than a capital offense. Among other things, the amendment added the following to Section 9, Art. I, “the court may determine at any time the type, amount, and conditions of bail.” The Court thought that reading Section 9 as a whole, the added language did not give the court an option to prohibit bail by sufficient sureties.
In State v. Hodge, 2005 WL 2936283 (Ohio App. November 7, 2005) the defendant posted a $50,000 cash bond and fled to Florida. She was arrested there and returned. The state incurred costs of about $6,000 to transport her back to Ohio. The Court affirmed denial of her motion for partial remission of the forfeiture. Her failure to appear was willful, and she was apprehended in Florida and involuntarily returned. The factors to be considered in a request for remission are the cost and inconvenience to the state, the willfulness of the violation and such other factors as the trail court finds relevant. The court properly balanced the relevant factors and denial of the defendant’s motion was not arbitrary, unreasonable or unconscionable.
In State v. Carter, 2005 WL 3337733 (Ohio App. December 9, 2005) the defendant had failed to appear in court 66 times in the past including at least three times in this case. Nevertheless, the bail agency provided a bond, the defendant did not appear, and the bond was forfeited. After the police arrested the defendant, the bail agency moved to remit the forfeiture. The trial court denied the motion, and the Court of Appeals affirmed. Remission is within the discretion of the trial court, and none of the factors to be considered favored remission. The Court noted the defendant’s history and stated, “A company engaged in the bail bond business is ultimately engaged in the business of guaranteeing attendance of the defendant at court hearings.”
In State ex rel. D & D Bonding, Ltd. v. Johnston, 2005 WL 3497709 (Ohio App. December 13, 2005) a bail bond agency and its owners and employees sought writs of Prohibition and mandamus to compel the Judge and Clerk of the Jackson County Municipal Court to accept bail bonds from them. The Court denied all relief. The facts are somewhat muddled, but on January 1, 2004, the Judge issued a bail bond schedule that permitted only cash bonds. On January 23 she withdrew that schedule and issued a replacement that permitted either 100% surety bonds or 10% cash bonds. The plaintiffs did not challenge the disparate treatment of surety bonds and cash bonds. The Court denied as moot the request for an order directing the Judge to accept surety bonds.
The plaintiffs also alleged that the Judge instructed the Clerk not to accept their bonds, but the proof did not support the allegation. The Court also stated that the Judge would have been within her discretion to order the clerk’s office to refuse bonds from an agency if she had doubts about the agent’s authority or intention to pay forfeitures.
State v. Warden, 2005 WL 3507844 (Ohio App. December 23, 2005) held that cash bail deposited by someone other than the defendant could not be used to pay the defendant’s fine. The Court stated that a bail bond can be forfeited only for failure to appear and that cash or securities deposited by anyone other than the defendant cannot be used to pay the defendant’s legal obligations except with the consent of the person making the deposit.
Ohio Case Law 2004
In State v. Delgado, 2004 WL 41404 (Ohio App. January 9, 2004) the trial court granted two extensions of time for the bail bond surety to apprehend the defendant but refused to remit any portion of the forfeiture when the defendant was returned shortly after forfeiture. The trial court’s only reasoning was that the nature of the surety’s business was to assume the risk that the defendant would not appear. The Court of Appeals reversed and remanded holding that the trial court had to consider a number of factors including the delay and cost to the state in obtaining the defendant and preparing for trial a second time, the surety’s efforts to return the defendant, and any other factors the court finds to be relevant. The trial court has discretion but must exercise it in light of the purpose of bail to assure that the defendant appears at all stages of the proceeding.
Jones v. Bea, 2004 WL 442876 (Ohio App. March 12, 2004) is a very strange case. The defendant’s father testified he obtained a $15,205 cashiers check payable to the Clerk of Court to pay a 10% cash bond plus fees to the clerk (he would have been liable for the balance of the $120,000 bond if his son failed to appear) but the bail agent waylaid him at the clerk’s office and insisted on signing the bond for the balance as surety, and they agreed that when the $15,000 was returned the bail agent would give the father $8,000 of the $15,000 and keep the rest as his fee. The defendant did not appear for sentencing and the bond was forfeited. The father then sued the bail agent for converting the cashiers check and won. The Court of Appeals reversed and held that since there was no refund there was no obligation to return anything.
In State v. Harshman, 2004 WL 491410 (Ohio App. March 15, 2004) the trial court ordered that cash bail deposited by the defendant and his mother be applied to court costs and restitution. The Court of Appeals held that this was improper. The Court first noted that the Ohio Supreme Court has held that the purpose of bail is the appearance of the defendant and reasons for forfeiture must be related to nonappearance. The State argued that the form signed when the bail was deposited consented to its application to costs and restitution, but the Court held that the consent was invalid because the availability of bail was conditioned on signing the form.
In State v. Rich, 2004 WL 2390085 (Ohio App. October 22, 2004) the surety (Capital Bonding Corp.) appealed denial of its motions to remit bond forfeitures in two cases in which it surrendered the defendants after forfeiture was entered. In the two cases the trial court made identical findings, including that the surety was negligent in writing the bond because the defendant had failed to appear on prior occasions. The Court of Appeals first held that the 30 day period to appeal ran from the date the clerk entered the defendant’s sentence, not the date the bond was forfeited or the date the motion for remission was denied. The Court also held that the trial court did not abuse its discretion in one of the cases because the record supported its findings but that in the other case there was no evidence the defendant had failed to appear on a prior occasion or that the state was inconvenienced by the failure to appear. In the latter case, the Court reversed and remanded for a determination of how much of the forfeiture should be remitted.
State v. Owens, 2004 WL 2526412 (Ohio App. November 9, 2004) held that the trial court abused its discretion in ordering forfeiture of the defendant’s cash bond. The trial court failed to consider the brief delay between the defendant’s breach and her voluntary appearance and the lack of any cost or inconvenience to the state. Rather than remand for consideration in light of these factors, however, the Court of Appeals directed that the bond money be released.
In Maloney v. Ohio Department of Insurance, 2004 WL 2590952 (Ohio App. October 4, 2004) the Court affirmed the Department’s denial of a bail bondsman’s license to a convicted felon. Ohio R.C. 3905.14 specifically provides that the superintendent of insurance may deny an application based on such a conviction, and there was no abuse of discretion in doing so in this case.
Ohio Case Law 2003
In City of Xenia v. Diaz, 2003 WL 22972039 (Ohio App. December 19, 2003) the court treated a cash deposit made by a third party as a cash bond by the defendant and not as a surety bond. The defendant was subject to an INS detainer, and even though bond was posted he never was released from custody. It appears the City did not try to have him returned for trial. The court held that the appellant who furnished the cash was not entitled to the statutory pre-forfeiture notice and an opportunity to show why the bond should not be forfeited which a surety would have been entitled to receive. It held, however, that he was entitled to a post forfeiture hearing to try to show that performance of the obligation was impossible (i.e., that the defendant was in federal custody). This case ought to give pause to anyone considering posting cash bail instead of a surety recognizance in Ohio. It is clear that the procedural protections extended to the surety will be lost if cash bail is provided.
In State v. Hardin, 2003 WL 23167301 (Ohio App. December 31, 2003) motions for remission of bond forfeitures were filed without requesting a hearing or setting forth any factual basis for relief. The trial court denied the motions without a hearing. The court of appeals affirmed, in a 2-1 decision, even though there was no basis in the record to review whether the trial court considered the various factors governing requests for remission of forfeiture. If the sureties had asked for a hearing and alleged facts entitling them to relief, the opinion suggests they would have been entitled to a hearing.